Exhibit 10.24(a)
CHICAGO BRIDGE & IRON COMPANY
SENIOR EXECUTIVE RELOCATION LOAN AGREEMENT
This Senior Executive Relocation Loan Agreement ("Loan Agreement") is made
as of September 13, 2001, by and between Chicago Bridge & Iron Company
(Delaware) (the "Company") whose address is at 0000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx and Xxxxxx X. Xxxxx ("Executive") and Xxxxxxx X. Xxxxx
("Spouse"), individually and as co-trustees of The Xxxxx Land & Securities Trust
dated October 2, 1995 (the "Trust"), whose address is 00 Xxxxxxx Xxxx Xxxxx, Xxx
Xxxxxxxxx, XX 00000. Executive, Spouse and Trust are sometimes collectively
referred to herein as "Borrower".
RECITALS
The Company is relocating its corporate headquarters and Executive's
principal place of work from Plainfield, Illinois to The Woodlands, Texas. In
connection with this relocation the Executive is purchasing a new principal
residence located or to be located at The Woodlands, Texas (the "Property").
Title to the Property will be held in the Trust. The Company desires to assist
Executive with the purchase of his new principal residence by extending a loan
in a principal amount not to exceed Three Million Dollars ($3,000,000) (the
"Loan") on the terms and conditions in this Loan Agreement. The Loan is intended
to be an employee-relocation mortgage loan exempt from imputed interest pursuant
to Section 1.7872-5T(c)(1)(i) of the Income Tax Regulations.
AGREEMENT
In consideration of the premises and the mutual covenants contained in this
Loan Agreement, the Company agrees to loan to Borrower, the principal amount of
Three Million Dollars ($3,000,000), on the following terms and conditions:
1. Loan. The Loan shall be represented by a promissory note or notes
(each, a "Note" and collectively, the "Notes") in substantially the form
attached as Exhibit A. If the Loan is borrowed through multiple draws (each, a
"Draw") by Borrower pursuant to paragraph 9, each Draw shall be evidenced by a
separate Note. Each Note shall be due and payable in a single lump sum, without
interest except as provided in paragraph 3 below.
2. Maturity.
(a) Original Maturity Date. Except as otherwise set forth in paragraph
2(b) below,
(i) if the entire principal amount of the Loan is disbursed all at one
time, the Loan shall be due and payable, in full, on the third anniversary
of the date of disbursement, or
(ii) if the Loan is disbursed in more than one Draw, each Draw shall be due
and payable, in full, on the third anniversary of the date of disbursement
of such Draw.
Each Loan or Draw due date described in clauses (i) and (ii) above are
hereinafter referred to as an "Original Maturity Date".
(b) Modification of Original Maturity Date.
(i) Forgiveness on Termination of Employment by Death or Disability.
If, prior to any Original Maturity Date, Executive ceases to be
an employee of the Company
solely by reason of Executive's death or "disability", then, as
of the Termination Date (as defined in paragraph 2(c) below), the
Loan and all Notes shall be cancelled, and no repayment of
outstanding principal or any payment of interest shall be
required. As used in this subparagraph 2(b)(i), "disability"
shall mean a disability entitling the Executive to disability
benefits under the long-term disability plan or policy of the
Company covering the Executive, or, if no such plan or policy
exists, then whether or not the Executive has a disability shall
be determined by the Company in its sole discretion reasonably
exercised.
(ii) Acceleration of Maturity. If, prior to any Original Maturity
Date, the Executive ceases to be an employee of the Company for
any reason other than as provided in subparagraph 2(b)(i) above,
then, except as set forth in the immediately succeeding sentence,
the Notes shall be accelerated such that the entire outstanding
principal balance of the Loan and all accrued but unpaid interest
thereon shall be due and payable in full on the Termination Date
(the "Accelerated Maturity Date"). Notwithstanding the foregoing
sentence, if the Termination of Employment is due to (x)
Executive's involuntary termination by the Company without
"cause", or (y) termination by the Executive with "good reason"
(as "cause" and "good reason" are defined in that certain Change
of Control Severance Agreement between the Company and the
Executive dated as of October 13, 2000 as in effect on the date
hereof), then the entire outstanding principal balance of the
Loan and all accrued but unpaid interest thereon shall be due and
payable in full on the earlier of (A) the date which is 180 days
after the Termination Date, and (B) the Original Maturity Date of
such Note (the "Accelerated 180 Maturity Date").
(iii) The Original Maturity Date(s) of the Loan and Notes shall also
be accelerated as provided in paragraph 12 (the "Default Maturity
Date"). The Original Maturity Date, Accelerated Maturity Date,
Accelerated 180 Maturity Date, and the Default Maturity Date
shall sometimes herein collectively be referred to as the
"Maturity Date").
(c) Termination. As used herein, the term "Termination of Employment" shall
mean that the Executive is no longer an employee of the Company for any
reason whatsoever. As used herein, the term "Termination Date" shall mean
the first date upon which the Executive is no longer an employee of the
Company for any reason whatsoever.
3. Interest.
(a) Interest Free. No interest shall accrue on the Loan or any Draw or Note
prior to the first to occur of the following: (i) a Maturity Date, (ii) a
Termination of Employment other than as provided in paragraph 2(b)(i)
above, or (iii) an Event of Default (as defined in paragraph 12).
(b) Triggering Events. Interest shall commence to accrue on the entire
outstanding principal balance of each Note upon the first to occur of the
following (each, a "Triggering Event"): (i) any applicable Maturity Date
with respect to such Note, or (ii) an Event of Default. Interest shall
accrue on the entire outstanding principal balance of the Loan from the
date of such Triggering Event until the entire outstanding principal
balance of the Loan is paid in full at a rate equal to the lesser of (a)
two percentage point(s) above the rate of interest per annum established
from time to time by Bank One at its main office in Chicago, Illinois and
designated as Bank One's "base" or "prime" rate of interest, which
Executive, Spouse and Trust hereby acknowledge and agree may not
necessarily be the lowest interest rate charged by Bank One, or (b) the
maximum lawful rate
-2-
of interest. Fluctuations in the prime rate shall become effective
immediately, without necessity for any notice whatsoever.
4. Use of Proceeds. Proceeds of the Loan will be used exclusively for the
purchase of the Property to acquire or initially construct a principal dwelling
to be used as the new principal residence of Executive. For this purpose,
"purchase" includes the costs of new construction of a principal dwelling on the
Property.
5. Collateral. The Loan will be secured by a lien on the Property,
documented by a real estate deed of trust in recordable form satisfactory to the
Company in its sole discretion reasonably exercised (a "Mortgage") containing
such provisions as are customary in deeds of trust securing loans between
unrelated parties acting at arms length. Funding of the Loan is subject to
execution of the Mortgage by Borrower and the Company's receipt of satisfactory
evidence of title showing no delinquent taxes, liens, judgments or assessments
or other exceptions as shown by a mortgagee title insurance policy satisfactory
to Company (as determined by the Company in its sole discretion reasonably
exercised).
6. Insurance. Executive at Executive's expense will secure such property
insurance as is required by the Mortgagee naming the Company as an additional
insured in at least the amount of the Loan, and will supply a copy of such
policy to the Company on request, and such policy may not be cancelled, reduced
or materially altered without at least thirty (30) days' prior written notice
being given by Executive to Company.
7. Borrower Consent. Borrower will execute the Note(s), the Mortgage, or
any other documents that the Company may at any time reasonably require in
connection with this Loan Agreement; to the extent that the Property or any part
of the Property is considered homestead property under the Texas Constitution or
other laws, Executive, Spouse and Trust hereby consent to the Loan and the fact
that the Loan is secured by the Property, and Executive, Spouse and Trust have
executed this Loan Agreement in evidence of such agreement and consent.
8. Certification. Executive hereby certifies that Executive reasonably
expects to be entitled to and will itemize federal income tax deductions for
each year that the Loan is outstanding.
9. Availability of Funds. To the extent the Loan is not borrowed in full on
the date hereof, Executive may draw the Loan in borrowings of at least $10,000
per Draw by delivering to the Company a Note executed by Borrower in the amount
of the applicable Draw, provided that no Event of Default or Termination of
Employment has occurred or that no lien has been filed against the Property
without Executive complying with paragraph 17. Subject to the satisfaction of
all conditions thereto, the Company will make funds available for any such Draw
within five business days of the date Executive notifies the Company's chief
financial officer of the requested amount.
10. Prepayment. Borrower may prepay the Loan (in whole or in part) without
penalty or premium at any time prior to its applicable Maturity Date.
Prepayments will be applied first to accrued interest, if any and the remainder
to principal in the order of maturity under the Notes so that they will be
applied to principal payments maturing first. These prepayments will not reduce
the amount or time of payment of the remaining payments, which will continue
until the principal amount of the Loan and all accrued interest under all Notes
are paid in full. Interest on the prepaid principal will immediately cease to
accrue.
11. Transferability. The Company may assign its rights under this Loan
Agreement. The rights of the Company under this Loan Agreement (to the extent of
the principal amount of the Note and interest accrued or to accrue thereon) will
be deemed assigned to and shall inure to the benefit of any person to whom the
Company endorses a Note representing all or part of the Loan under this Loan
-3-
Agreement. Borrower's rights under this Loan Agreement and the benefit of the
interest arrangement for the Loan contained in this Loan Agreement are not
transferable by the Executive or Spouse or Trust.
12. Events of Default. An event of default shall occur under this Loan
Agreement if (i) Borrower or any person or entity comprising Borrower fails to
pay when due and payable (whether upon an Original Maturity Date, Accelerated
Maturity Date, Accelerated 180 Maturity Date, Default Maturity Date, or
otherwise), the full principal amount of any Note and any accrued interest
thereon (other than quarterly interest pursuant to paragraph 3(c)), (ii)
Borrower or any person or entity comprising Borrower fails to pay when due and
payable any quarterly payment of interest pursuant to paragraph 3(c), or any
other payments under this Loan Agreement or the Mortgage and such failure to pay
is not cured within ten days after the occurrence thereof; (iii) Borrower or any
person or entity comprising Borrower sells, assigns, pledges, encumbers, or
otherwise transfers the Property or any interest in the Property, or any of
their rights under this Loan Agreement or attempts to sell, assign, pledge,
encumber, or otherwise transfer the Property or any interest in the Property or
their rights under this Loan Agreement, or (iv) any other obligation of Borrower
or any person or entity comprising Borrower under the Note, the Mortgage or
under any other agreement in connection with the Loan or that is secured in
whole or in part by the Property (collectively, "Loan Documents") is not paid
when due or is otherwise in default ((i) - (iv) individually and collectively
referred to as an "Event of Default"). If any Event of Default has occurred and
is continuing, then:
(a) The Loan and any Note(s) thereunder shall become immediately due and
payable in full, and interest shall immediately commence accruing on the
Note as provided in paragraph 3 and be immediately due and payable,
provided that the exercise of this right by Company is not prohibited by
federal law as of the date of this Loan Agreement. If Company exercises
this right, Company shall give Executive, Spouse and Trust notice of
acceleration and this notice shall provide a period of not less than 30
days from the date the notice is delivered or mailed within which Borrower
must pay all such sums and any other sums due under any of the Loan
Documents.
(b) Without thereby waiving any right to any other remedy upon an Event of
Default, and notwithstanding any other agreement between the Company and
Executive and/or Spouse and/or Trust, other than an agreement made after
the date hereof specifically referencing this Agreement, the Company may
offset all or any portion of any obligation of whatsoever nature the
Company (or any parent or direct or indirect subsidiary of the Company) may
owe to Executive by any amount due and payable but unpaid by Borrower under
the Loan Documents.
(c) The Company may exercise any and all rights under the Loan Documents,
including the right to foreclose upon its interest in the Property pursuant
to the Mortgage.
(d) The Company may proceed against Executive and/or Spouse and/or Trust in
another legal or equitable action available to collect the amount due on
any Loan Document; and shall also have any other rights which the Company
may have been afforded under any contract or agreement with Executive
and/or Spouse and/or Trust at any time and any other rights which the
Company may have pursuant to applicable law.
Except as may be otherwise set forth in the Mortgage, the proceeds from any
offset, sale or action described in clauses (b), (c) or (d) shall be applied (A)
first, to the payment of any costs and expenses (including reasonable attorneys'
fees) incurred by the Company in connection with such offset, sale or action,
(B) second, to accrued interest (including interest described in clause (a)) due
on the Loan, (C) third, to the outstanding principal amount due on the Loan, and
(D) the surplus from any sale of the Property pursuant to the foreclosure
described in clause (c) shall be returned to Borrower.
-4-
13. Waivers. EXECUTIVE, SPOUSE AND TRUST HEREBY SEVERALLY WAIVE AND
RELINQUISH PAYMENT, DEMAND, NOTICE OF NONPAYMENT OR NONPERFORMANCE, PROTEST,
NOTICE OF PROTEST, NOTICE OF INTENT TO ACCELERATE, NOTICE OF ACCELERATION OR ANY
OTHER NOTICES OR ANY OTHER ACTION. EXECUTIVE AND SPOUSE AND TRUST AND ANY
ENDORSERS OR GUARANTORS HEREOF SEVERALLY WAIVE AND RELINQUISH, TO THE FULLEST
EXTENT PERMITTED BY LAW, ALL RIGHTS TO THE BENEFITS OF ANY MORATORIUM,
REINSTATEMENT, MARSHALING, FORBEARANCE, VALUATION, STAY, EXTENSION, REDEMPTION,
APPRAISEMENT, EXEMPTION AND HOMESTEAD NOW OR HEREAFTER PROVIDED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AND OF EACH STATE THEREOF,
EACH AS TO ITSELF AND IN AND TO ALL OF ITS PROPERTY, REAL AND PERSONAL, AGAINST
THE ENFORCEMENT AND COLLECTION OF THE OBLIGATIONS EVIDENCED BY THE NOTE OR BY
THE OTHER LOAN DOCUMENTS AND EXPRESSLY AGREE THAT THE TIME FOR ANY PAYMENT ON
THE LOAN MAY BE EXTENDED FROM TIME TO TIME BY COMPANY AND THAT THE COMPANY MAY
ACCEPT SECURITY FOR THE LOAN OR RELEASE SECURITY FOR THE LOAN, ALL WITHOUT IN
ANY WAY AFFECTING THE LIABILITY OF EXECUTIVE AND SPOUSE AND TRUST HEREUNDER. NO
WAIVER OR FORBEARANCE BY THE COMPANY SHALL ADVERSELY AFFECT ITS RIGHT TO
STRICTLY ENFORCE THE PROVISIONS OF THIS LOAN AGREEMENT.
14. Statutory Notice. THIS LOAN AGREEMENT, THE NOTE, THE MORTGAGE AND ANY
OTHER LOAN DOCUMENTS UNDER THE LOAN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF (INCLUDING BUT NOT LIMITED TO THAT LOAN
AGREEMENT DATED __________, 2001 AND ANY ASSOCIATED DOCUMENTS ) AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS
AMONG THE PARTIES HERETO.
15. Notices. Unless applicable law requires a different method, any notice
that must be given to Executive, Spouse, Trust or Company under this Loan
Agreement, the Note, or any other Loan Documents will be given by delivering it
or mailing it by first class mail to such party at the address above or at a
different address given to the other by a notice of different address.
16. Obligations of Persons under Loan. If more than one person or entity
signs any Note, each such person and entity is fully and personally obligated to
keep all of the promises made in such Note and this Loan Agreement, the
Mortgage, and any other Loan Documents, including the promise to pay the full
amount owed. Company may enforce its rights under this Loan Agreement, each
Note, the Mortgage, and any other Loan Documents against each person or entity
individually or against two or more persons and entities such that any one
person or entity may be required to pay all of the amounts owed under the Notes.
17. Mechanic's Liens and Other Liens. Borrower shall pay all taxes,
assessments, charges, fines, and impositions attributable to the Property on
time directly to the entity owed payment and shall promptly discharge all liens
in a manner acceptable to Company except that Borrower may contest any lien in
good faith and defend the enforcement of any such lien in any proceedings that
in Company's opinion operate to prevent the enforcement of the lien or may
obtain an agreement satisfactory to Company that subordinates the lien to the
Mortgage. Executive shall notify Company promptly in the
-5-
event any liens are filed, and upon notice from Company, Executive shall take
one or more of the actions set forth above within 10 days after Executive's
receipt of Company's notice.
18. Law. This Loan Agreement and all other Loan Documents shall be governed
by and construed in accordance with the laws of the State of Texas.
Notwithstanding any business or personal relationship between Executive, Spouse,
Trust or Company, or any officer, director or employee of Company, the
relationship of Borrower with Company is solely that of debtor and creditor, and
Company has no fiduciary or other special relationship with Borrower. Whenever
Company shall exercise any right to approve or disapprove of any term, Company's
decision shall be satisfactory in its sole discretion and it shall be final and
conclusive. Subject to paragraph 11 the terms of this Loan Agreement and the
Loan Documents shall be binding upon and inure to the benefit of Borrower and
Company and their respective heirs, executors, legal representatives,
successors, successors-in-title and assigns, whether by voluntary action of the
parties, by operation of law or otherwise, and all other persons claiming by,
through or under them. Time is of the essence with respect to all provisions of
this Loan Agreement and the other Loan Documents. If any provision of this Loan
Agreement or the application thereof to any person or circumstance shall, for
any reason and to any extent, be invalid or unenforceable, then neither the
remainder of this Loan Agreement nor the application of such provision to other
persons or circumstances nor the other instruments referred to herein shall be
affected thereby, but rather shall be enforced to the greatest extent permitted
by applicable law.
19. Controlling Agreement. In the event of any conflict between the
provisions of this Loan Agreement and the Mortgage, it is the intent of the
parties hereto that the provisions of the Mortgage shall control. In the event
of any conflict between the provisions of this Loan Agreement and the Note or
any of the other Loan Documents (other than the Mortgage), it is the intent of
the parties hereto that the provisions of this Loan Agreement shall control. The
parties hereto acknowledge that they were represented by competent counsel in
connection with the negotiation, drafting and execution of this Loan Agreement
and the other Loan Documents and that this Loan Agreement and the other Loan
Documents shall not be subject to the principle of construing their meaning
against the party which drafted same.
IN WITNESS WHEREOF, the Company and Borrower have executed and
delivered this Loan Agreement on the date first written above.
-6-
CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
By:
-------------------------------------
Its:
---------------------------------
------------------------------------------
Xxxxxx X. Xxxxx - Executive
------------------------------------------
Xxxxxxx X. Xxxxx - Spouse
THE XXXXX LAND & SECURITIES TRUST DATED
OCTOBER 2, 1995
By:
-------------------------------------
Xxxxxx X. Xxxxx, Co-Trustee
By:
-------------------------------------
Xxxxxxx X. Xxxxx, Co-Trustee
-7-
Exhibit A
PROMISSORY NOTE
The Woodlands, Texas $___________
_____________ __, 2001
For value received, _________________, an individual resident of
_________, at __________________________________, __________________,
_______________ County, ______________, __________________________________, an
individual resident of _________, at __________________________________,
__________________, _______________ County, ______________, and
______________________________ (jointly and severally, the "Borrower"), promises
to pay to the order of Chicago Bridge & Iron Company (Delaware), a Delaware
corporation ("Lender"), at 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, ______
County, Illinois, the principal sum of ________________________
($______________) ("Principal Amount") at the Interest Rate as and when required
herein.
The Maturity Date, Interest Rate, obligation and timing of payments of
principal and interest, default, remedies and other terms are set forth in that
certain Senior Executive Relocation Loan Agreement dated as of September __,
2001, between Borrower and Lender (the "Loan Agreement"), which terms are
incorporated in this Note by this reference. The execution and delivery of this
Note are required under the Loan Agreement. All terms not defined herein shall
have the meaning described in the Loan Agreement.
This Note is secured by a deed of trust from Borrower to Xxxx X. Xxxxx,
trustee, which is dated _________ and covers the real property as described in
therein ("Deed of Trust"). This Note, the Loan Agreement, the Deed of Trust, and
any other loan documents executed in connection with the Loan shall be referred
to collectively as "Loan Documents."
Borrower hereby waives diligence, presentation for payment, protest and
demand for payment, notice of intent to accelerate, and notice of acceleration
of maturity, protest, demand, dishonor, and nonpayment of this Note. Borrower
expressly agrees that the time for any payment on the Loan may be extended from
time to time by Lender and that the Lender may accept security for the Loan or
release security for the Loan, all without in any way affecting the liability of
Borrower under this Note. No waiver or forbearance by the Lender shall adversely
affect its right to strictly enforce the provisions of this Note.
It is expressly stipulated and agreed to be the intent of Borrower and
Lender at all times to comply strictly with the applicable Texas law governing
the maximum rate or amount of interest payable on the indebtedness evidenced by
this Note and any and all indebtedness ("Related Indebtedness") paid or payable
by Borrower to Lender pursuant to the Loan Documents or any other communication
or writing by or between Borrower and Lender related to the transaction or
transactions that are the subject matter of the Loan Documents. If the
applicable law is ever judicially interpreted so as to render usurious any
amount (i) contracted for, charged, taken, reserved or received pursuant to this
Note, any of the other Loan Documents or any other communication or writing by
or between Borrower and Lender related to the transaction or transactions that
are the subject matter of the Loan Documents, (ii) contracted for, charged,
taken, reserved or received by reason of Lender's exercise of the option to
accelerate the maturity of this Note and/or the Related Indebtedness, or (iii)
Borrower will have paid or Lender will have received by reason of any voluntary
prepayment by Borrower of this Note and/or the Related Indebtedness, then it is
Borrower's and Lender's express intent that all amounts charged in excess of the
amounts allowed by the Maximum Lawful Rate (defined below) shall be
automatically canceled, ab initio, and all amounts in excess of the Maximum
Lawful Rate theretofore collected by Lender shall be credited on the principal
balance of this Note and/or the Related Indebtedness (or, if this Note and all
Related Indebtedness have been or would thereby be paid in full, refunded to
Borrower), and the provisions of this Note and the other Loan Documents shall
immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder and thereunder;
provided, however, if this Note has been paid in full before the end of the
stated Maturity Date of this Note, then Borrower and Lender agree that Lender
shall, with reasonable promptness after Lender discovers or is advised by
Borrower that interest was received in an amount in
excess of the Maximum Lawful Rate, either refund such excess interest to
Borrower and/or credit such excess interest against this Note and/or any Related
Indebtedness then owing by Borrower to Lender. In no event shall the provisions
of Chapter 346 of the Texas Finance Code (which regulates certain revolving
credit loan accounts and revolving tri-party accounts) apply to this Note and/or
any of the Related Indebtedness. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the intention
of Lender to accelerate the maturity of any interest that has not accrued at the
time of such acceleration or to collect unearned interest at the time of such
acceleration. Lender is relying on Chapter 303 of the Texas Finance Code to
determine the Maximum Lawful Rate payable on the Note and/or any other portion
of the Indebtedness, and Lender will utilize the weekly ceiling from time to
time in effect as provided in such Chapter 303, as amended. To the extent
permitted by applicable law now or hereafter in effect, Lender may, at its
option and from time to time, utilize any other method of establishing the
Maximum Lawful Rate under such Chapter 303 or under other applicable law by
giving notice, if required, to Borrower as provided by applicable law now or
hereafter in effect. As used hereunder, the term "Maximum Lawful Rate" shall
mean the maximum lawful rate of interest which may be contracted for, charged,
taken, received or reserved by Lender in accordance with the applicable laws of
the State of Texas taking into account all fees, charges and/or any other things
of value, if any, contracted for, charged, taken, received or reserved by Lender
in connection with the transactions relating to this Note and the other Loan
Documents, which are treated as interest under applicable law made in connection
with the transaction evidenced by this Note and the other Loan Documents. This
provision overrides any conflicting provisions in this Note and all other Loan
Documents.
THIS NOTE, THE LOAN AGREEMENT, THE DEED OF TRUST, AND ANY OTHER LOAN
DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF
AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
If any holder of this Note retains an attorney-at-law in connection
with any Event of Default or at maturity or to collect, enforce, or defend this
Note or any part hereof, or any other Loan Document in any lawsuit or in any
probate, reorganization, bankruptcy or other proceeding, or if Borrower sues any
holder in connection with this Note or any other Loan Document and does not
prevail, then Borrower agrees to pay to each such holder, in addition to the
principal balance hereof and all interest hereon, all costs and expenses of
collection or incurred by such holder or in any such suit or proceeding,
including, but not limited to, reasonable attorneys' fees.
In the event of any conflict between the provisions of this Note and
the Deed of Trust, it is the intent of the parties hereto that the provisions of
the Deed of Trust shall control. In the event of any conflict between the
provisions of this Note and any of the other Loan Documents (other than the Deed
of Trust), it is the intent of the parties hereto that the provisions of the
Loan Agreement shall control.
---------------------------------------
Executive
---------------------------------------
Spouse
THE XXXXX LAND & SECURITIES TRUST DATED
OCTOBER 2, 1995
By:
------------------------------------
Xxxxxx X. Xxxxx, Co-Trustee
By:
------------------------------------
Xxxxxxx X. Xxxxx, Co-Trustee
