SECURED PROMISSORY NOTE
Exhibit 3(e)
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$___________.00
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____________,
20__
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FOR
VALUE RECEIVED, ___________________________, a
_____________________ (“Borrower”), hereby
unconditionally promises to pay to the order of MCI INCOME FUND
V, LLC, a Delaware
limited liability company (the “Lender”), as hereinafter
provided, the original principal sum of ____________________ and 00/100
Dollars ($________.00), or so much thereof as may be advanced by
Xxxxxx from time to time hereunder to or for the benefit or account
of Borrower, subject to the Modification Threshold described
herein, and together with interest thereon at the rate of interest
hereinafter provided, without right of offset in favor of Borrower
and otherwise in strict accordance with the terms and provisions
hereof.
1. Loan
Documents; Security. This Secured Promissory Note (this
“Note”)
evidences a Loan governed by that certain Master Credit Facility
dated as of the __ day of _____, 2021 (as may be amended and
modified from time to time, the “Master Credit Facility”),
by and between Borrower and Lender and is one of the
“Notes” referenced in the Master Credit Facility.
Capitalized terms used but not defined in this Note shall have the
respective meanings given to such terms in the Master Credit
Facility. Payment hereof is secured by, among other things, all
Deeds of Trust executed by Xxxxxxxx, as grantor for the benefit of
Lender, covering certain real property located in
________________County in the State of Texas, and reference is
hereby made to said Deed of Trust and the other Loan Documents for
a description of the security and the liens therein granted and the
rights of Borrower and Lender thereunder.
2. Interest. Unless
the Default Rate (as defined herein) shall apply, interest shall
accrue on the principal balance from day to day outstanding under
this Note at a rate equal to ____% (the “Base Rate”). Interest on
the outstanding principal amount of this Note shall be computed on
the basis of a three hundred sixty-five (365) day year and shall
accrue on the actual number of days elapsed for any whole or
partial month in which interest is being calculated. Upon the
occurrence and during the continuation of an Event of Default (as
defined herein), the outstanding principal amount of this Note
shall, at Lender’s option, automatically and without the
necessity of notice to Borrower, bear interest from the date of
such Event of Default at 18% (the “Default Rate”), unless
and until all delinquent amounts are paid and all Events of Default
have been cured to Lender’s satisfaction as confirmed by
Xxxxxx’s execution of a written agreement specifically
acknowledging and describing the Event of Default so cured, and/or
waived by Xxxxxx as confirmed by
Xxxxxx’s execution of a written agreement specifically
acknowledging and describing the Event of Default so
waived.
3. Modification
Threshold. The principal amount
due under the Note, upon consent of the Lender or otherwise
pursuant to subsequent amendment to the Note, may be adjusted to an
amount not to exceed, in the aggregate with other lienholders of
the real property described herein (excepting creditors with
involuntary liens), [_______________], such amount based on the
appraised value of the Mortgaged Property (“Modification Threshold”),
but in no case may the aggregate
principal amount of all loans outstanding under the Master Credit
Facility, on a portfolio basis, exceed 90% of the appraised value
of the assets underlying the portfolio of
loans.
4. Interest
and Principal Payments. Except upon any acceleration of this
Note, Borrower shall pay to Lender all principal and accrued and
outstanding interest on the Redemption Date (as defined in the
Master Credit Facility). Notwithstanding the foregoing, Borrower
may, in Xxxxxxxx’s sole discretion, choose to pay interest on
the outstanding principal balance of this Note without prepayment
fee or penalty on a monthly or other basis.
5. Payments.
All amounts are payable to Lender at the address for Xxxxxx
provided in the Master Credit Facility. Payments shall be made in
lawful money of the United States, without set-off, deduction, or
counterclaim. Under no circumstance may Borrower offset any amount
owing by Borrower to Lender with an amount owed by Lender to
Borrower under any arrangement. All payments shall be made in cash
or cash equivalents in immediately available funds.
6.
Prepayment.
Borrower may prepay this Note in whole or in part at any time and
from time to time without incurring any prepayment fee or penalty;
provided that, interest shall accrue on the outstanding principal
balance of any principal prepayment through the date of such
prepayment.
7.
Default and Remedies.
a. The
happening or occurrence, at any time and from time to time, of any
one or more of the following shall immediately constitute an
“Event of
Default” under this Note:
i. Borrower
shall fail, refuse, or neglect to pay and satisfy, in full and in
the applicable method and manner required, any required payment of
principal or interest under this Note or any other sum payable
under the Loan Documents within ninety days (90) days after the
same shall become due and payable but has not been paid, whether at
the stipulated due date thereof, at a date fixed for payment or at
maturity, by acceleration or otherwise; or
ii.
an Event of Default as defined in any of the Loan
Documents.
b.
Upon the occurrence of an Event of Default, Lender
shall have the immediate right, at the sole discretion of Lender
and without notice, presentment for payment, demand, notice of
nonpayment or nonperformance, protest, notice of protest, notice of
intent to accelerate, notice of acceleration or any other notice or
any other action (ALL OF WHICH
BORROWER HEREBY EXPRESSLY WAIVES AND RELINQUISHES) (i) to
declare the entire unpaid balance of the Indebtedness then
due—the “Indebtedness”
representing money borrowed from Lender which is created, assumed,
incurred, or guaranteed in any manner by Megatel or for which
Megatel is otherwise responsible or liable—at once
immediately due and payable (and upon such declaration, the same
shall be at once immediately due and payable) and may be collected
forthwith, whether or not there has been a prior demand for payment
and regardless of the stipulated date of maturity, (ii) to
foreclose any liens and security interests securing payment hereof
or thereof (including any liens and security interests covering all
or any portion of the Mortgaged Property (as defined in the Deed of
Trust)), (iii) refuse to make any Loan to Borrower, even if Xxxxxx
had previously agreed to make such Loan, and (iv) to exercise any
of Lender's other rights, powers, recourses and remedies under this
Note, under any other Loan Document, or at law or in equity, and
the same (A) shall be cumulative and concurrent, (B) may be pursued
separately, singly, successively or concurrently against Borrower
or others obligated for the repayment of the Indebtedness or any
part hereof, or against any one or more of them, or against all or
any portion of the Mortgaged Property, at the sole discretion of
Lender, (C) may be exercised as often as occasion therefor shall
arise, it being agreed by Borrower that the exercise,
discontinuance of the exercise of or failure to exercise any of the
same shall in no event be construed as a waiver or release thereof
or of any other right, remedy, or recourse, and (D) are intended to
be, and shall be, nonexclusive. All rights and remedies of Lender
hereunder and under the other Loan Documents shall extend to any
period after the initiation of foreclosure proceedings, judicial or
otherwise, with respect to all or any portion of the Mortgaged
Property. No delay on the part of Lender in exercising any power or
right shall operate as a waiver of such power or right nor shall
any single or partial exercise of any power or right further
preclude exercise of that power or right. This Note is also subject
to the terms and provisions of the Master Credit
Facility.
8. Attorneys'
Fees and Costs. If Lender 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 of the other Loan Documents, in any lawsuit or in
any probate, reorganization, bankruptcy, or other proceeding, or
otherwise, Xxxxxxxx agrees to pay all reasonable costs and expenses
of collection, including but not limited to, Xxxxxx's reasonable
attorneys' fees, whether or not any legal action shall be
instituted.
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9.
Usury
Savings Provisions. 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, or
applicable United States federal law (the “Highest Lawful Rate”) to
the extent that such law permits Lender to contract for, charge,
take, reserve, or receive a greater amount of interest than under
Texas law. If the applicable law is ever judicially interpreted so
as to render usurious any amount contracted for, charged, taken,
reserved or received in respect of the Indebtedness, including by
reason of the acceleration of the maturity or the prepayment
thereof, then it is Borrower's and Lender's express intent that all
amounts charged in excess of the Highest Lawful Rate shall be
automatically canceled, ab
initio, and all amounts in excess of the Highest Lawful Rate
theretofore collected by Xxxxxx shall be credited on the principal
balance of the Indebtedness (or, if the Indebtedness has 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 laws, 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 term hereof, then Borrower and Lender agree that Lender
shall, with reasonable promptness after Xxxxxx discovers or is
advised by Borrower that interest was received in an amount in
excess of the Highest Lawful Rate, either credit such excess
interest against the Indebtedness then owing by Borrower to Lender
and/or refund such excess interest to Borrower. Borrower hereby
agrees that as a condition precedent to any claim seeking usury
penalties against Xxxxxx, Xxxxxxxx will provide written notice to
Xxxxxx, advising Lender in reasonable detail of the nature and
amount of the violation, and Xxxxxx shall have sixty (60) days
after receipt of such notice in which to correct such usury
violation, if any, by either refunding such excess interest to
Borrower or crediting such excess interest against the Indebtedness
then owing by Borrower to Lender. All sums contracted for, charged,
taken, reserved or received by Lender for the use, forbearance or
detention of the Indebtedness shall, to the extent permitted by
applicable law, be amortized, prorated, allocated or spread, using
the actuarial method, throughout the stated term of this Note
(including any and all renewal and extension periods) until payment
in full so that the rate or amount of interest on account of the
Indebtedness does not exceed the Highest Lawful Rate from time to
time in effect and applicable to the Indebtedness for so long as
Indebtedness is outstanding. In no event shall the provisions of
Chapter 346 of the Texas Finance Code (which regulates certain
revolving credit loan accounts and revolving triparty accounts)
apply to this Note or any other part of the 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. The terms and provisions of this
paragraph shall control and supersede every other term, covenant or
provision contained herein, in any of the other Loan Documents or
in any other document or instrument pertaining to the
Indebtedness.
10.
Ceiling
Election. To the
extent that Lender is relying on Chapter 303 of the Texas Finance
Code to determine the Highest Lawful Rate payable on this Note or
any other part of the Indebtedness, Xxxxxx will utilize the weekly
ceiling from time to time in effect as provided in such Chapter
303, as amended. To the extent United States federal law permits
Lender to contract for, charge, take, receive or reserve a greater
amount of interest than under Texas law, Lender will rely on United
States federal law instead of such Chapter 303 for the purpose of
determining the Highest Lawful Rate. Additionally, 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 Highest Lawful Rate under such Chapter 303 or
under other applicable law by giving notice, if required, to
Borrower as provided by such applicable law now or hereafter in
effect.
10.
WAIVER. EXCEPT AS SPECIFICALLY
PROVIDED IN THE LOAN DOCUMENTS TO THE CONTRARY, BORROWER, THE
BORROWER-RELATED PARTIES AND ANY SURETY, ENDORSER, OR GUARANTOR OF
THIS NOTE SEVERALLY AND EXPRESSLY (A) WAIVE AND RELINQUISH
PRESENTMENT FOR PAYMENT, DEMAND, NOTICE OF NONPAYMENT OR
NONPERFORMANCE, PROTEST, NOTICE OF PROTEST, NOTICE OF INTENT TO
ACCELERATE, NOTICE OF ACCELERATION, GRACE, DILIGENCE IN COLLECTING
THIS NOTE OR ENFORCING ANY SECURITY THEREFOR, OR ANY OTHER NOTICES
OR ANY OTHER ACTION, AND (B) CONSENT TO ALL RENEWALS, EXTENSIONS,
REARRANGEMENTS, AND MODIFICATIONS WHICH FROM TIME TO TIME MAY BE
GRANTED BY LENDER WITHOUT NOTICE AND TO ALL PARTIAL PAYMENTS
HEREON, WHETHER BEFORE OR AFTER MATURITY, WITHOUT PREJUDICE TO
LENDER. LENDER SHALL SIMILARLY HAVE THE RIGHT TO DEAL IN ANY WAY,
AT ANY TIME, WITH ONE OR MORE OF THE FOREGOING PARTIES WITHOUT
NOTICE TO ANY OTHER PARTY, AND TO GRANT ANY SUCH PARTY ANY
EXTENSIONS OF TIME FOR PAYMENT OF ANY OF SAID INDEBTEDNESS, OR TO
GRANT ANY OTHER INDULGENCES OR FORBEARANCES WHATSOEVER, WITHOUT
NOTICE TO ANY OTHER PARTY AND WITHOUT IN ANY WAY AFFECTING THE
PERSONAL LIABILITY OF ANY PARTY HEREUNDER.
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11.
CHOICE OF LAW.
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF SECURITY
INTERESTS OR REMEDIES IN RESPECT OF ANY PARTICULAR COLLATERAL IS
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
TEXAS, THIS NOTE, AND THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE
STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICTS OF LAWS
PROVISIONS.
12. JURISDICTION;
VENUE. BORROWER IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING
IN RESPECT OF THIS NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE
BROUGHT BY IT IN THE DISTRICT COURTS OF DALLAS COUNTY, TEXAS, OR
THE UNITED STATES DISTRICT COURTS FOR THE NORTHERN DISTRICT OF
TEXAS, SHERMAN DIVISION (THE “SPECIFIED COURTS”). BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
SPECIFIED COURTS. BORROWER HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE THAT THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH SPECIFIED COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM AND HEREBY IRREVOCABLY AGREES TO A TRANSFER
OF ALL SUCH PROCEEDINGS TO THE SPECIFIED COURTS. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF LENDER TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST BORROWER OR ANY BORROWER-RELATED PARTY IN
ANY JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED BY
APPLICABLE LAW.
13. WAIVER
OF JURY TRIAL, PUNITIVE DAMAGES, ETC. BORROWER HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY (A) WAIVES,
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT SUCH PARTY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS NOTE OR THE LOAN DOCUMENTS OR ANY
TRANSACTION CONTEMPLATED HEREBY OR THEREBY OR ASSOCIATED HEREWITH
OR THEREWITH; (B) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY
LAW, ANY RIGHT SUCH PARTY MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY “SPECIAL DAMAGES”, AS DEFINED BELOW, (C)
CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OF LENDER OR
COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, OR IMPLIED THAT LENDER WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (D)
ACKNOWLEDGES THAT XXXXXX HAS BEEN INDUCED TO ENTER INTO THIS NOTE
AND THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY BASED UPON, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION. AS USED IN THIS SECTION,
“SPECIAL
DAMAGES” INCLUDES ALL SPECIAL, CONSEQUENTIAL,
EXEMPLARY, OR PUNITIVE DAMAGES (REGARDLESS OF HOW NAMED), BUT DOES
NOT INCLUDE ANY PAYMENTS OR FUNDS WHICH ANY PARTY HERETO HAS
EXPRESSLY PROMISED TO PAY OR DELIVER TO ANY OTHER PARTY
HERETO.
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14. Notices. Any
notice or demand required or given hereunder shall be delivered in
accordance with the notice provisions of the Master Credit
Facility.
15.
Successors and
Assigns. This
Note and all the covenants, promises, and agreements contained
herein shall be binding upon and shall inure to the benefit of
Borrower and Lender, and their respective successors and
assigns.
16. Time
is of the Essence. Time is of the essence with
respect to all provisions of this Note and the other Loan
Documents.
17. Termination. This
Note may not be terminated orally, but only by a discharge in
writing signed by Xxxxxx at the time such discharge is
sought.
18.
Right
of Setoff. In
addition to all liens upon and rights of setoff against the money,
securities, or other property of Borrower given to Lender now or in
the future that may exist under applicable law, Lender shall have
and Borrower hereby grants to Lender a lien upon and a right of
setoff after reasonable notice to Borrower against all money,
securities, and other property of Borrower, now or hereafter in
possession of or on deposit with Xxxxxx, whether held in a general
or special account or deposit, for safe-keeping or otherwise, and
every such lien and right of setoff may be exercised without demand
upon or notice to Borrower. No lien or right of setoff shall be
deemed to have been waived by any act or conduct on the part of
Lender, or by any neglect to exercise such right of setoff or to
enforce such lien, or by any delay in so doing, and every right of
setoff and lien shall continue in full force and effect until such
right of setoff or lien is specifically waived or released by an
instrument in writing executed by Xxxxxx.
19. Statement
of Unpaid Balance. At any time and from time to time,
Borrower will furnish promptly, upon the request of Xxxxxx, a
written statement or affidavit, in form satisfactory to Lender,
stating the unpaid balance of the Indebtedness and that there are
no offsets or defenses against full payment of the Indebtedness and
the terms hereof, or if there are any such offsets or defenses
known by Borrower, specifying them.
20. NO
ORAL AGREEMENTS. THIS
SECURED PROMISSORY NOTE AND THE OTHER LOAN DOCUMENTSREPRESENT 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 UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO. The provisions hereof
and the other Loan Documents may be amended or waived only by an
instrument in writing signed by Xxxxxxxx and Xxxxxx.
[The remainder of this page is left blank
intentionally.]
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EXECUTED effective
as of the day and year first written above.
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BORROWER:
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___________________________________
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a
__________________________________
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By:
______________________________
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Name:
______________________________
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Its:
_______________________________
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