EXHIBIT 10.1
PROMISSORY NOTE
MATRIX BANCORP, INC.
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1. DATE AND PARTIES. The date of this Promissory Note (Note) is January 15,
1999. This Note evidences a loan which includes all extensions, renewals,
modifications and substitutions (Loan). The parties to this Note and Loan
are:
BORROWER:
XXXXXX X. XXXXXX
000 XXXXX XXXXXXXX
XXXXXX, XXXXXXXX 00000
Social Security ####-##-####
BANK:
MATRIX BANCORP, INC.
a COLORADO corporation
0000 XXXXXXXX XXXXXX, XXXXX 0000
XXXXXX, XXXXXXXX 00000
Tax I.D. #00-0000000
2. NAMES. The term "Bank" shall include any person or firm that holds this Note.
The pronouns "you, your" refer to Borrower, individually and together, and
"we, us, our" refer to Bank.
3. PROMISE TO PAY. For value received, you promise to pay to our order at our
office at the above address, or such other place as we may designate, the sum
of $195,000.00 (Principal) plus interest from January 15, 1999, on the unpaid
principal balance at the rate of 10% per annum (Contract Rate) until this
Note matures or the obligation is accelerated. After maturity or
acceleration, the unpaid balance shall continue to bear interest at the
Contract Rate until this Note is paid in full. The Loan and this Note are
limited to the maximum lawful amount of interest (Maximum Lawful Interest)
permitted under federal and state laws. If the interest accrued and collected
exceeds the Maximum Lawful Interest as of the time of collection, such excess
shall be applied to reduce the principal amount outstanding, unless otherwise
required by law. If or when no principal amount is outstanding, any excess
interest shall be refunded to you according to the actuarial method. Unless
otherwise required by law, all fees and charges, accrued, assessed or
collected shall be amortized and prorated over the full term of the Loan for
purposes of determining the Maximum Lawful Interest. Interest shall be
computed on the basis of the actual calendar year and the actual number of
days elapsed.
All unpaid principal, accrued interest, other costs and expenses are due and
payable upon demand. Unless demand is made, all unpaid principal, accrued
interest, other costs and expenses are due and payable in one payment on
December 31, 1999, which payment is estimated to be $213,698.63. This payment
amount is based upon timely payment. The amount shall be paid in legal U.S.
currency. Any payment made with a check will constitute payment only when
collected.
4. EFFECT OF PREPAYMENT. You may prepay this Loan in full, subject to any
prepayment penalty or minimum charge as agreed to below. Interest will cease
to accrue on the amounts prepaid on the day actually credited by us.
5. MINIMUM INTEREST CHARGE. If you pay this Note in full before the maturity
date or otherwise, you agree to pay us a minimum interest charge of $35.00 or
the earned interest charge, whichever amount is greater.
6. LATE CHARGE. You agree to pay us a late charge equal to 5% of the unpaid
installment or $5.00, whichever is greater, but in no event more than
$150.00, if payment is not made in full on or before 15 days after the
scheduled due date.
7. SET-OFF. You agree that we may exercise our right of set-off to pay any or
all of the outstanding Principal and accrued interest, costs and expenses,
attorneys' fees, and advances due and owing on this Note against any
obligation we may have, now or hereafter, to pay money, securities or other
property to you. This includes, without limitation:
A. any deposit account balance, securities account balance or certificate
of deposit balance you have with us whether general, special, time,
savings or checking;
B. any money owing to you on an item presented to us or in our possession
for collection or exchange; and
C. any repurchase agreement or any other non-deposit obligation or credit
in your favor.
If any such money, securities or other property is also owned by some other
person who has not agreed to pay this Note (such as another depositor on a
joint account) our right of set-off will extend to the amount which could be
withdrawn or paid directly to you on your request, endorsement or instruction
alone. In addition, where you may obtain payment from us only with the
endorsement or consent of someone who has not agreed to pay this Note, our
right of set-off will extend to your interest in the obligation. Our right of
set-off will not apply to an account or other obligation if it clearly
appears that your rights in the obligation are solely as a fiduciary for
another, or to an account, which by its nature and applicable law (for
example an IRA or other tax-deferred retirement account), must be exempt from
the claims of creditors. You hereby appoint us as your attorney-in-fact and
authorize us to redeem or obtain payment on any certificate of deposit in
which you have an interest in order to exercise our right of set-off. Such
authorization applies to any certificate of deposit even if not matured. You
further authorize us to withhold any early withdrawal penalty without
liability in the event such penalty is applicable as a result of our set-off
against a certificate of deposit prior to its maturity.
Our right of set-off may be exercised;
A. without prior demand or notice;
B. without regard to the existence or value of any Collateral securing this
Note; and
C. without regard to the number or creditworthiness of any other persons
who have agreed to pay this Note.
We will not be liable for dishonor of a check or other request for payment
where there are insufficient funds in the account (or other obligation) to
pay such request because of our exercise of our right of set-off. You agree
to indemnify and hold us harmless from any person's claims and the costs and
expenses, including without limitation, attorneys' fees and paralegal fees,
incurred as a result of such claims or arising as the result of our exercise
of our right of set-off.
8. EVENTS OF DEFAULT. You shall be in default upon the occurrence of any of the
following events, circumstances or conditions (Events of Default):
A. Failure by any party obligated on this Note or any other obligations you
have with us to make payment when due; or
B. A default or breach by you or any co-signer, endorser, surety, or
guarantor under any of the terms of this Note, any construction loan
agreement or other loan agreement, any security agreement, mortgage,
deed to secure debt, deed of trust, trust deed, or any other document or
instrument evidencing, guarantying, securing or otherwise relating to
this Note or any other obligations you have with us; or
C. The making or furnishing of any verbal or written representation,
statement or warranty to us which is or becomes false or incorrect in
any material respect by or on behalf of you, or any co-signer, endorser,
surety or guarantor of this Note or any other obligations you have with
us; or
D. Failure to obtain or maintain the insurance coverages required by us, or
insurance as is customary and proper for any collateral (as herein
defined); or
E. The death, dissolution or insolvency of, the appointment of a receiver
by or on behalf of, the assignment for the benefit of creditors by or on
behalf of, the voluntary or involuntary termination of existence by, or
the commencement of any proceeding under any present or future federal
or state insolvency, bankruptcy, reorganization, composition or debtor
relief law by or against you, or any co-signer, endorser, surety or
guarantor of this Note or any other obligations you have with us; or
F. A good faith belief by us at any time that we are insecure with respect
to you, or any co-signer, endorser, surety or guarantor, that the
prospect of any payment is impaired or that any collateral (as herein
defined) is impaired; or
G. Failure to pay or provide proof of payment of any tax, assessment,
rent, insurance premium, escrow or escrow deficiency on or before its
due date; or
H. A transfer of a substantial part of your money or property.
9. REMEDIES ON DEFAULT. On or after the occurrence of an Event of Default, at
our option, all or any part of this Note shall be immediately due and
payable without notice or demand. We may exercise all rights and remedies
provided by law, equity, this Note, any mortgage, deed of trust or similar
instrument and any other security, loan, guaranty or surety agreements,
pertaining to this Note and all other obligations which you owe us. Bank is
entitled to all rights and remedies provided at law or equity whether or not
expressly stated in this Note. By choosing any remedy, Bank does not waive
its right to an immediate use of any other remedy if the event of default
continues or occurs again.
10. COLLECTION EXPENSES. On or after an Event of Default, we may recover from
you all expenses of collection, reasonable expenses in realizing on any
security interest, and other related fees, charges, and expenses, to the
extent not prohibited by law. Any such fees and expenses shall be added to
the Principal of this Note and shall accrue interest at the same rate as
provided for in this Note.
11. ATTORNEYS' FEES. Upon default of this Note and to the extent not prohibited
by law, we may recover from you reasonable attorneys' fees incurred by us.
Any such fees and expenses shall be added to the principal amount of this
Note, shall accrue interest at the same rate as this Note and shall be
secured by the Collateral you have granted us.
12. NO DUTY BY US. We are under no duty to preserve or protect any Collateral
until we are in actual, or constructive, possession of the Collateral. For
purposes of this paragraph, we shall only be considered to be in "actual"
possession of the Collateral when we have physical, immediate and exclusive
control over the Collateral and have affirmatively accepted such control. We
shall only be considered to be in "constructive" possession of the
Collateral when we have both the power and the intent to exercise control
over the Collateral.
13. XXXXXX AND CONSENT BY YOU AND OTHER SIGNERS. Regarding this Note, to the
extent not prohibited by law, you any other signers;
X. xxxxx protest, presentment for payment, demand, notice of acceleration,
notice of intent to accelerate and notice of dishonor.
B. consent to any renewals and extensions for payment on this Note,
regardless of the number of such renewals or extensions.
C. consent to our release of any borrower, endorser, guarantor, surety,
accommodation maker or any other co-signer.
D. consent to the release, substitution or impairment of any collateral.
E. consent that you are, or any one of you is, authorized to modify the
terms of this Note or any instrument securing, guarantying or relating
to this Note.
F. consent to our right of set-off as well as any right of set-off of any
bank participating in the Loan.
G. consent to any and all sales, repurchases and participations of this
Note to any person in any amounts and waive notice of such sales,
repurchases or participations of this Note.
14. SECURITY. This Note is secured by the following type(s) (or items) of
property (Collateral):
Securities
which Collateral is wholly or partially described as follows:
18,000 SHARES OF STOCK IN MATRIX BANCORP, INC. IN ADDITION ALL ACCRUED
BUT UNPAID COMMISSIONS OWED AS OF JANUARY 15, 1999, PLUS ANY ADDITIONAL
COMMISSIONS EARNED AND ACCRUED FROM JANUARY 15, 1999 UNTIL THIS
OBLIGATION IS PAID IN FULL
The term "Collateral" further includes, but is not limited to, the following
property, whether now owned or hereafter acquired, and whether or not held
by a bailee for your benefit, all: accessions, accessories, additions,
fittings, increases, insurance benefits and proceeds, parts, products,
profits, renewals, rents, replacements, special tools and substitutions,
together with all books and records pertaining to the Collateral and access
to the equipment containing such books and records including computer stored
information and all software relating thereto, plus all cash and non-cash
proceeds and all proceeds of proceeds arising from the type(s) (items) of
property listed above.
15. PAYMENTS APPLIED. All payments, including but not limited to regular
payments or prepayments, received by us shall be applied first to costs,
then to accrued interest and the balance, if any, to Principal unless
otherwise required by law.
16. LOAN PURPOSE. You represent and warrant that you shall only use the proceeds
of this Note for personal, family or household purposes.
17. NO CREDIT INSURANCE. You do not desire, or you understand that you are not
eligible for, any credit insurance.
18. FINANCIAL STATEMENTS. Until this Note is paid in full, you shall furnish us,
upon our request, your current financial statement, which you certify to be
true and accurate.
19. JOINT AND SEVERAL. You and all other makers, co-signers, sureties and
guarantors shall be jointly and severally liable under this Note.
20. GENERAL PROVISIONS.
A. TIME IS OF THE ESSENCE. Time is of the essence in your performance of
all duties and obligations imposed by this Note.
B. NO WAIVER BY US. Our course of dealing, or our forbearance from, or
delay in, the exercise of any of our rights, remedies, privileges or
right to insist upon your strict performance of any provisions
contained in this Note, or other loan documents, shall not be construed
as a waiver by us, unless any such waiver is in writing and is signed
by us.
C. AMENDMENT. The provisions contained in this Note may not be amended,
except through a written amendment which is signed by you and us.
D. INTEGRATION CLAUSE. This written Note and all documents executed
concurrently herewith, represent the entire understanding between the
parties as to the Obligations and may not be contradicted by evidence
of prior, contemporaneous, or subsequent oral agreements of the
parties.
E. FURTHER ASSURANCES. You agree, upon our request and within the time we
specify, to provide any information, and to execute, acknowledge,
deliver and record or file such further instruments or documents as we
may require to secure this Note or confirm any lien.
F. GOVERNING LAW. This Note shall be governed by the laws of the State of
COLORADO, provided that such laws are not otherwise preempted by
federal laws and regulations.
G. FORUM AND VENUE. In the event of litigation pertaining to this Note,
the exclusive forum, venue and place of jurisdiction shall be in the
State of COLORADO, unless otherwise designated in writing by us or
otherwise required by law.
H. SUCCESSORS. This Note shall inure to the benefit of and bind the heirs,
personal representatives, successors and assigns of the parties;
provided however, that you may not assign, transfer or delegate any of
the rights or obligations under this Note.
I. NUMBER AND GENDER. Whenever used, the singular shall include the
plural, the plural the singular, and the use of any gender shall be
applicable to all genders.
J. DEFINITIONS. The terms used in this Note, if not defined herein, shall
have their meanings as defined in the other documents executed
contemporaneously, or in conjunction, with this Note.
K. PARAGRAPH HEADINGS. The headings at the beginning of any paragraph, or
any subparagraph, in this Note are for convenience only and shall not
be dispositive in interpreting or construing this Note.
L. IF HELD UNENFORCEABLE. If any provision of this Note shall be held
unenforceable or void, then such provision to the extent not otherwise
limited by law shall be severable from the remaining provisions and
shall in no way affect the enforceability of the remaining provisions
nor the validity of this Note.
M. CHANGE IN APPLICATION. You will notify us in writing prior to any
change in your name, address, or other application information.
N. NOTICE. All notices under this Note must be in writing. Any notice
given by us to you will be effective upon personal delivery or 24 hours
after mailing by first class United States mail, postage prepaid,
addressed to you at the address indicated below your name on page one
of this Note. Any notice given by you to us will be effective upon
receipt by us at the address indicated below our name on page one of
this Note. Such addresses may be changed by written notice to the other
party.
21. RECEIPT OF COPY. You acknowledge that you have read and received a copy of
this Note by your signature below.
BORROWER:
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XXXXXX X. XXXXXX
Individually
BANK:
MATRIX BANCORP, INC.
a COLORADO corporation [Corporate Seal*]
By:
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XXXXXXX X. XXXXXXX, CHAIRMAN OF THE BOARD
(*Corporate seal may be affixed, but failure to affix shall not affect validity
or reliance.)
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