Exhibit 99.04
AMENDED AND RESTATED
DEED OF TRUST NOTE
$5,572,385.22 As of November 12, 2002
FOR VALUE RECEIVED, XXXXXXX MEDICAL GROUP, L.P., a Texas limited
partnership, having its principal place of business at 00000 Xxxxxx Xxxx, Xxxxx
00, Xxxxxx, Xxxxx 00000 (hereinafter referred to as "BORROWER"), promises to pay
to the order of Medical Capital Management, Inc., a Delaware corporation, at its
principal place of business at 0000 X. Xxxxx Xxxxxxx Xxxx., Xxxxxxx, Xxxxxxxxxx
00000, Attn: Xx. Xxxx Xxxxx, Director of Underwriting (hereinafter referred to
as "LENDER"), or at such place as the holder hereof may from time to time
designate in writing, the principal sum of Five Million Five Hundred Seventy-Two
Thousand Three Hundred Eighty-Five and 22/100 Dollars ($5,572,385.22), in lawful
money of the United States of America, with interest thereon to be computed on
the unpaid principal balance from time to time outstanding at the Contract Rate
(as hereinafter defined), and to be paid in installments as provided herein:
1. PAYMENT TERMS.
(a) For the period commencing on the date of execution hereof and
continuing through and including November 11, 2003, interest only on the unpaid
principal balance of the Note shall be due and payable at the lesser of (i) the
Contract Rate or (ii) the Highest Lawful Rate (as hereinafter defined). Each
such payment in the amount of $65,011.16 (such amount being calculated on the
presumption that Borrower makes only the regular scheduled payments described
herein in accordance with the terms hereof) shall be due and payable on the
twelfth (12th) day of each month during such period (with the first such payment
being due on April 12, 2003). In addition, a principal payment in the amount of
$672,385.22 shall be due and payable on November 11, 2003.
(b) For the period commencing on November 12, 2003 and continuing
through and including November 11, 2004, interest only shall be due and payable
at the lesser of (i) the Contract Rate and (ii) the Highest Lawful Rate. Each
such payment in the amount of $57,166.67 (such amount being calculated on the
presumption that Borrower makes only the regular scheduled payments described
herein in accordance with the terms hereof) shall be due and payable on the
twelfth (12th) day of each month during such period (with the first such payment
being due on December 12, 2003). In addition, a principal payment in the amount
of $672,385.22 shall be due and payable on November 11, 2004.
(c) For the period commencing on November 12, 2004 and continuing
through and including November 11, 2005, accrued and unpaid interest at the
lesser of (i) the Contract Rate and (ii) the Highest Lawful Rate, together with
principal payments in the amount of $179,574.24, shall be due and payable on the
twelfth (12th) day of each month (with the first such payment being due on
December 12, 2004).
(d) The outstanding principal balance of this Note, together with all
accrued but unpaid interest thereon, shall be due and payable on November 12,
2005 (the "MATURITY DATE").
Each such monthly payment shall be applied to the payment of interest
computed at the Contract Rate, and the balance (if any) shall be applied toward
the reduction of the principal sum. Interest on the principal sum of this Note
shall be calculated on the basis of the actual number of days elapsed in the
related interest accrual period over a three-hundred-sixty (360) day year. All
amounts due under this Note shall be payable without setoff, counterclaim or any
other deduction whatsoever. Schedule "1", attached hereto and made a part hereof
for all purposes, sets forth the amounts and dates of the required payments
described above.
2. INTEREST. The term "CONTRACT RATE" as used in this Note shall
mean, from the date of execution of this Note through and including the Maturity
Date, a rate of fourteen percent (14%) per annum.
3. SECURITY. This Note is executed in connection with that certain
Renewal, Extension, Increase and Modification Agreement (the "RENEWAL
AGREEMENT") dated of even date herewith, executed by and among, among others,
Xxxxxx and Xxxxxxxx, with respect to that certain loan heretofore made by Xxxxxx
to Borrower (the "LOAN"). This Note is secured by (a) a Deed of Trust,
Assignment of Leases and Rents, Security Agreement and Fixture Filing dated as
of November 13, 2002, executed by Xxxxxxxx for the benefit of Xxxxxx covering
the fee estate of Borrower in certain premises as more particularly described
therein, as modified by the Renewal Agreement (the "DEED OF TRUST"), (b) an
Assignment of Leases and Xxxxx dated as of November 13, 2002 executed by
Xxxxxxxx in favor of Xxxxxx, as modified by the Renewal Agreement (the
"ASSIGNMENT OF LEASES"), and (c) the other Loan Documents (as hereinafter
defined). The term "LOAN DOCUMENTS" as used in this Note means collectively this
Note, the Deed of Trust, the Assignment of Leases and any and all other
documents securing, evidencing, or guaranteeing all or any portion of the Loan
or otherwise executed and/or delivered in connection with this Note and the
Loan, as modified by the Renewal Agreement.
4. LATE CHARGE. If any sum payable under this Note is not paid
within five (5) days of (and including) the date on which it is due, Borrower
shall pay to Lender upon demand an amount equal to the lesser of five percent
(5%) of such unpaid sum or the maximum amount permitted by applicable law in
order to defray a portion of the expenses incurred by Lender in handling and
processing such delinquent payment and to compensate Lender for the loss of the
use of such delinquent payment. If the day when any payment required under this
Note is due is not a Business Day (as hereinafter defined), then payment shall
be due on the first Business Day thereafter. The term "BUSINESS DAY" shall mean
a day other than (i) a Saturday or Sunday, or (ii) any day on which national
banking institutions in Texas are authorized or obligated by law or executive
order to be closed.
5. DEFAULT AND ACCELERATION. The whole of the principal sum of this
Note, together with all interest accrued and unpaid thereon, and all other sums
due under the Loan Documents (all such sums hereinafter collectively referred to
as the "DEBT"), or any portion thereof, shall without notice become immediately
due and payable at the option of Lender if any payment required in this Note is
not paid within five (5) days after the date on which it is due and the
continuation of such failure to pay for a period of ten (10) days after Xxxxxx
delivers written notice thereof to Xxxxxxxx (provided, however, Lender shall not
be required to give such notice more than twice during the term of this Note) or
upon the happening of any other "EVENT OF DEFAULT" (as defined in the Deed of
Trust). In the event that it should become necessary to employ counsel to
collect or enforce the Debt or to protect or foreclose the security therefore,
Borrower also shall pay on demand all costs of collection incurred by Xxxxxx,
including attorneys' fees and costs reasonably incurred for the services of
counsel whether or not suit be brought.
6. DEFAULT INTEREST. Borrower does hereby agree that upon the
occurrence of an Event of Default (including upon the failure of Borrower to pay
the Debt in full on the Maturity Date), Lender shall be entitled to receive and
Borrower shall pay interest on the entire unpaid principal sum and any other
amounts due at a rate (the "DEFAULT RATE") equal to the lesser of (a) the
maximum rate permitted by applicable law, or (b) one percent (1%) above the
Contract Rate. The Default Rate shall be computed from the occurrence of the
Event of Default until the date Borrower cures the Event of Default and such
cure is accepted by Lender. This charge shall be added to the Debt, and shall be
secured by the Deed of Trust. This paragraph, however, shall not be construed as
an agreement or privilege to extend the date of the payment of the Debt, nor as
a waiver of any other right or remedy accruing to Lender by reason of the
occurrence of any Event of Default.
7. RIGHT TO PREPAY. Borrower reserves the right to prepay any
principal of, and accrued and unpaid interest on, this Note prior to the
Maturity Date after giving ten (10) days' prior written notice to Xxxxxx.
Borrower acknowledges that this facility is merely a short-term mezzanine loan
facility and Borrower will be required to pay all amounts due and owing hereon
in accordance with the terms hereof no later than the Maturity Date.
8. SAVINGS CLAUSE. It is expressly stipulated and agreed to be the
intent of Borrower and Lender at all times to comply with applicable state law
or applicable United States federal law (to the extent that it permits Lender to
contract for, charge, take, reserve, or receive a greater amount of interest
than under state law) and that this paragraph shall control every other covenant
and agreement in this Note and the other Loan Documents. If the applicable law
(state or federal) is ever judicially interpreted so as to render usurious any
amount called for under this Note or under any of the other Loan Documents, or
contracted for, charged, taken, reserved, or received with respect to the Debt,
or if Xxxxxx's exercise of the option to accelerate the Maturity Date, or if any
prepayment by Borrower results in Borrower having paid any interest in excess of
that permitted by applicable law, then it is Lender's express intent that all
excess amounts theretofore collected by Xxxxxx shall be credited on the
principal balance of this Note and all other Debt and the provisions of this
Note and the other Loan Documents immediately be deemed reformed and the amounts
thereafter collectible hereunder and thereunder reduced, without the necessity
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of the execution of any new documents, so as to comply with the applicable law,
but so as to permit the recovery of the fullest amount otherwise called for
hereunder or thereunder. All sums paid or agreed to be paid to Lender for the
use, forbearance, or detention of the Debt shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term of the Debt until payment in full so that the rate or amount of
interest on account of the Debt does not exceed the maximum lawful rate from
time to time in effect and applicable to the Debt for so long as the Debt is
outstanding. 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.
9. NO ORAL CHANGE; SUCCESSORS AND ASSIGNS; LIABILITY. This Note may
not be modified, amended, waived, extended, changed, discharged or terminated
orally or by any act or failure to act on the part of Borrower or Lender, but
only by an agreement in writing signed by the party against whom enforcement of
any modification, amendment, waiver, extension, change, discharge or termination
is sought. Whenever used, the singular number shall include the plural, the
plural the singular, and the words "LENDER" and "BORROWER" shall include their
respective successors, assigns, heirs, executors and administrators. If Borrower
consists of more than one person or party, the obligations and liabilities of
each such person or party shall be joint and several.
10. WAIVERS. Borrower and all others who may become liable for the
payment of all or any part of the Debt do hereby severally waive presentment and
demand' for payment, notice of dishonor, protest, notice of protest, notice of
nonpayment, notice of intent to accelerate the maturity hereof and of
acceleration. No release of any security for the Debt or any person liable for
payment of the Debt, no extension of time for payment of this Note or any
installment hereof, and no alteration, amendment or waiver of any provision of
the Loan Documents made by agreement between Lender and any other person or
party shall release, modify, amend, waive, extend, change, discharge, terminate
or affect the liability of Borrower, and any other person or party who may
become liable under the Loan Documents for the payment of all or any part of the
Debt.
11. AUTHORITY. Borrower (and the undersigned representative of
Borrower, if any) represents that Borrower has full power, authority and legal
right to execute, deliver and perform its obligations pursuant to this Note, the
Deed of Trust and the other Loan Documents and that this Note, the Deed of Trust
and the other Loan Documents constitute valid and binding obligations of
Borrower.
12. NOTICES. All notices or other communications required or
permitted to be given pursuant hereto shall be given in the manner specified in
the Deed of Trust directed to the parties at their respective addresses as
provided therein.
15. WAIVER OF JURY TRIAL BORROWER XXXXXX AGREES NOT TO ELECT A TRIAL
BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING
IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY XXXXXXXX, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY
EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD
OTHERWISE ACCRUE. XXXXXX IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH
IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER
16. APPLICABLE LAW. This Note shall be governed by and construed in
accordance with the laws of the State of Texas and the applicable laws of the
United States of America.
17. AMENDMENT AND RESTATEMENT. This Note is issued in amendment and
restatement of that certain Deed of Trust Note (the "PRIOR NOTE"), dated as of
November 13, 2002, in the stated principal amount of $3,000,000.00, executed and
delivered by Xxxxxxxx and payable to the order of Lender. The execution and
delivery of this Note shall not act as a novation or extinguishment of the loan
evidenced by the Prior Note or of any lien or security interest securing the
Prior Note and the Prior Note shall be and continue in full force and effect, as
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amended and restated hereby and by the other documents being executed and
delivered in connection with this Note, including, without limitation, the
Renewal Agreement.
IN WITNESS WHEREOF, Xxxxxxxx has duly executed this Note on the 24th day of
February, 2003, but to be effective for all purposes as of the day and year
first above written.
BORROWER:
XXXXXXX MEDICAL GROUP, L.P.,
a Texas limited partnership
By: Xxxxxxx Group, LLC,
a Texas limited liability company,
General Partner
By: 2001 Ladbrook, LLC,
a Texas limited liability company,
Manager
By:
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Xxxxx X. Xxx,
Manager
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