Exhibit (b)(8)
TIB BORROWER
The Independent BankersBank FVNB Corp. COMMERCIAL
350 Xxxxxx Court P.O. Box 560528 A Texas Corporation VARIABLE RATE
Irving, Texas 75038 REVOLVING OR
Dallas, TX 75358-0528 DRAW NOTE
Dallas County ADDRESS
(000) 000-0000 P.O. Box 1338
Victoria, TX 77902
"LENDER" TELEPHONE NO. (000) 000-0000
IDENTIFICATION NO. 742871063
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Principal Funding/
Officer Interest Amount/ Agreement Maturity Customer Loan
Identification Rate Credit Limit Date Date Number Number
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GBG VARIABLE $8,000,000.00 08/15/01 08/15/06
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PROMISE TO PAY: For value received, Borrower promises to pay to the order of
Lender the principal amount of Eight Million and no/100 ($8,000,000.00) or, if
less, the aggregate unpaid principal amount of all loans or advances made by the
Lender to the Borrower under this Note, plus Interest on a unpaid principal
balance at the rate and in the manner described below, Until all amounts owing
under this Note are paid In full. All amounts received by Lender shall be
applied first to expenses, then to accrued, unpaid Interest, then to unpaid
principal, or In any other order as determined by Xxxxxx, In Xxxxxx's sole
discretion, as permitted by law.
REVOLVING OR DRAW FEATURE: / / This Note possesses a revolving feature. Upon
satisfaction of the conditions set forth In this Note, Borrower shall be
entitled to borrow up to the full principal amount of the Note and to repay and
reborrow from time to time during the term of this Note. [X] This Note possesses
a draw feature. Upon satisfaction of the conditions set forth In this Note,
Borrower shall be entitled to draw one or more times under this Note. Any
repayment may not be reborrowed. The aggregate amount of such draws shall not
exceed the full principal amount of this Note.
Information with regard to any loans or advances under this Note shall be
recorded and maintained by Lender In Its Internal records and such records shall
be conclusive of the principal and Interest owed by Borrower under this Note
unless there Is a material error in such records. The Lender's failure to record
the date and amount of any loan or advance shall not limit or otherwise affect
the obligations of the Borrower under this Note to repay the principal amount of
the loans or advances together with all Interest accruing thereon. Borrower
shall be entitled to Inspect or obtain a copy of the records during Xxxxxx's
business hours.
CONDITIONS FOR ADVANCES: If no Event of Default has occurred under this Note,
Borrower shall be entitled to borrow monies under this Note (subject to the
limitations described above) under the following conditions:
UPON LENDING OFFICER'S APPROVAL AND UNDER THE TERMS AND CONDITIONS SPECIFIED IN
THE
LOAN AGREEMENT DATED AS OF AUGUST 15, 2001, BETWEEN XXXXXXXX AND XXXXXX.
INTEREST RATE: This Note has a variable rate feature. The interest rate on this
Note may change from time to time If the Index Rate Identified below changes.
Interest on the outstanding principal balance shall be computed on the basis of
the actual number Of days over 360 days per year (and In any event, 365 or
366 days per year during periods when the Maximum Lawful Rate, which is defined
on the reverse Is in effect) and the actual number of days elapsed. So long as
no Event of Default has occurred, interest on this Note shall be calculated and
payable at a variable rate equal to 0.500% per annum under the Index Rate
provided that such rate shall not exceed the Maximum Lawful Rate. The Initial
Interest rate on this Note shall be 6.250% per annum. Any change In the Interest
rate resulting from a change
In the Index Rate will be effective on:
on day as it occurs
RATE LIMITATIONS: Subject to applicable law, the minimum Interest rate on this
Note shall be n/a% per annum. The maximum Interest rate on this Note shall not
exceed 18.00(degree)/ per annum, or If less, the Maximum Lawful Rate. The
maximum rate Increase at any one time will be n/a%. The maximum rate decrease at
any one time will be n/a%.
INDEX RATE: The Index Rate for this Note shall be: RATE OF INTEREST PER ANNUM,
THEN MOST RECENTLY PUBLISHED BY THE WALL STREET JOURNAL AS THE PRIME RATE AS SET
FORTH IN THE MONEY RATES TABLE THEREIN, OR IF NO SUCH RATE IS PUBLISHED THEN ANY
SUCCESSOR RATE ACCEPTABLE TO LENDER.
If the Index Rate Is redefined or becomes unavailable, then Lender may select
another Index which Is substantially similar.
PAYMENT SCHEDULE: Borrower shall pay the principal and Interest according to the
following schedule:
Quarterly payments in the principal amount of $285,714.30 plus all accrued
interest to begin January 15, 2002 and continue until maturity on August 15,
2006 when all remaining principal and interest will be due.
PREPAYMENT: This Note may be prepaid In part or in full on or before Its
maturity date. If this Note contains more than one Installment, any partial
prepayment will not affect the due date or the amount of any subsequent
installment, unless agreed to, In writing, by Xxxxxxxx and Xxxxxx. If this Note
Is prepaid In full, there will be:
/ / No prepayment penalty.
/ / A prepayment penalty of:
LATE CHARGE: If an Installment is received more than n/a days late, Borrower
will be charged a late charge of n/a% of the Installment. Borrower will pay this
late charge only once on any Installment.
SECURITY: To secure the payment and performance of obligations Incurred under
this Note, Borrower grants Lender a security Interest In all of Borrower's
right, title, and Interest In all monies, Instruments, savings, checking and
other accounts of Borrower (excluding IRA, Xxxxx, trust accounts and other
accounts subject to tax penalties If so assigned) that are now or In the future
In Lender's custody or control. Upon an Event of Default, and to the extent
permitted by applicable law, Lender may exercise Its security Interest In all
such property which shall be In addition to and cumulative of Lender's right of
common law setoff. If checked, the obligations under this Note are also
secured by the collateral described In any security Instrument(s) executed in
connection with this Note, and tiny collateral designated as security for this
Note now or In the future.
DISHONORED CHECK CHARGE: Borrower will pay a processing fee of $0.00 If any
check provided to Lender as payment on this loan Is dishonored and returned.
RENEWAL: / / If checked, this Note Is given In renewal of, but not In novation
or discharge, of Loan Number
THE PERSONS SIGNING BELOW ACKNOWLEDGE THAT THEY HAVE READ, UNDERSTAND, AND AGREE
TO THE TERMS AND CONDITIONS OF THIS NOTE, INCLUDING THE PROVISIONS ON THE
REVERSE SIDE, AND FURTHER ACKNOWLEDGE RECEIPT OF AN EXACT COPY OF THIS NOTE.
THIS NOTE AND RELATED DOCUMENTS HAVE BEEN SIGNED IN THE COUNTY OF XXXXXX'S
ADDRESS UNLESS OTHERWISE SPECIFIED:
Victoria
Dated: August 15, 20O1
BORROWER:
FVNB Corp. BORROWER:
A
Texas Corporation
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
President and CEO
BORROWER BORROWER:
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BORROWER BORROWER:
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TERMS AND CONDITIONS
1. COMPLIANCE WITH APPLICABLE LAW: It Is Xxxxxx's intention to comply fully with
Texas law, and federal law as applicable, regulating credit terms, interest,
fees, charges, expenses, and other amounts. For purposes of determining Lender's
compliance with such laws, the following shall apply to the extent permitted by
law: (a) any contract, charge or receipt by Lender, whether occurring now or In
the future, shall be strictly limited by this provision; (b) the "Maximum Lawful
Rate shall mean the maximum lawful ceiling, rate or amount that Lender could
have contracted to charge or receive under
Texas law or applicable federal law,
whichever permits the highest maximum ceiling, rate or amount; (c) to the extent
the
Texas Finance Code Chapter 303, as amended, provides the Maximum Lawful
Rate, the "weekly ceiling" shall apply unless changed by Lender in accordance
with
Texas law; (d) Lender may calculate rates or amounts by aggregating,
amortizing, prorating, allocating, and spreading amounts contracted for, charged
or received over the full term of the transaction; (e) no contract, charge or
receipt shall obligate Borrower or any obligor to pay any amount In excess of
the Maximum Lawful Rate or waive any right under the
Texas Finance Code; and (f)
any contract, charge or receipt that In the event of acceleration or under any
other contingency purports to require the payment or collection of any amount in
excess of the Maximum Lawful Rate shall automatically be reformed to not
obligate Borrower or any other obligor to pay any amount In excess of the
Maximum Lawful Rate. If Lender ever contracts for, charges or receives a rate or
amount in excess of the Maximum Lawful Rate, the excess (whether denominated
principal, interest or otherwise) shall be automatically subject to
reallocation, cancellation, credit, application, or refund to eliminate any
amount in excess of the Maximum Lawful Rate.
2. EVENTS OF DEFAULT: An Event of Default will occur under this Note In the
event that Borrower, any guarantor or any other third party pledging collateral
to secure this Note:
(a) fails to make any payment on this Note or any other Indebtedness to
Lender when due;
(b) fails to perform any obligation or breaches any warranty or covenant
to Lender contained In this Note or any other present or future
written agreement regarding this or any Indebtedness of Borrower to
Lender;
(c) provides or causes any false or misleading signature or representation
to be provided to Lender;
(d) allows any loss, diminution or impairment of the physical condition,
value, title, priority, possession, or control of any collateral
securing this Note or Borrower's or Lender's rights therein,
Including, but not limited to, allowing any part of the collateral to
be placed into receivership, removed, Impaired, lost, stolen,
destroyed, damaged, seized, confiscated or affected In any material
way;
(e) permits the entry or service of any garnishment, judgment, tax levy,
attachment or Iien against Xxxxxxxx, any guarantor, or any of their
property;
(f) dies, becomes legally incompetent, is dissolved or terminated, ceases
to operate Its business, becomes Insolvent, makes an assignment for
the benefit of creditors, or becomes the subject of any bankruptcy,
Insolvency or debtor rehabilitation proceeding; or
(g) causes Lender to deem itself insecure in good faith.
3. RIGHTS OF LENDER ON EVENT OF DEFAULT: If there is an Event of Default under
this Note, Lender will be entitled to exercise one or more of the following
remedies without notice or demand (except as required by law);
(a) to declare the principal amount plus accrued interest under this (Note
and all other present and future obligations of Borrower Immediately
due and payable in full;
(b) to collect the outstanding obligations of Borrower with or without
resorting to judicial process;
(c) to lawfully and peaceably take possession of any collateral;
(d) to require Borrower to deliver and make available to Lender any
collateral at a place reasonably convenient to Borrower and Lender;
(e) to sell, lease or otherwise dispose of any collateral and collect any
deficiency balance in the manner permitted by law;
(f) to set-off Borrower's obligations (including past due installments)
against any amounts due to Borrower including, but not limited to,
monies, instruments, and deposit accounts maintained with Lender; and
(g) to exercise all other rights available to Lender under any other
written agreement or applicable law. Xxxxxx's rights are cumulative
and may be exercised together, separately, and In any order.
4. DEMAND FEATURE: / / If checked, this Note contains a demand feature, and then
notwithstanding anything to the contrary contained In this Note, Xxxxxx's rights
with respect to the events of default identified above shall not be limited,
restricted, Impaired or otherwise adversely affected by the demand feature of
this Note, Xxxxxx's right to demand payment, at any time and from time to time,
shall be in Lender's sole and absolute discretion, whether or not any default
has occurred.
5. DEFAULT RATE: If there is an Event of Default under this Note, the Lender
may, In Its discretion, Increase the Interest rate on this Note to: 18% OR
HIGHEST LENDING RATE PERMITTED BY LAW. or the Maximum Lawful Rate, whichever is
less. '
6. FINANCIAL INFORMATION: Borrower will provide Lender with current financial
statements Including, but not limited to, balance sheets and profit and loss
statements and other information upon request.
7. MODIFICATION AND WAIVER: The modification or waiver of any of Borrower's
obligations or Xxxxxx's rights under this Note must be contained in a writing
signed by Xxxxxx. Lender may perform any of Borrower's obligations or delay or
fail to exercise any of Its rights without causing a waiver of those obligations
or rights. A waiver on one occasion will not constitute a waiver on any other
occasion. Borrower's obligations under this Note shall not be affected If Lender
amends, compromises, exchanges, fails to exercise, Impairs or releases any of
the obligations belonging to any co-borrower or guarantor or any of Its rights
against any co-borrower, guarantor or collateral.
8. SEVERABILITY: If any provision of this Note violates the law or Is
unenforceable, the rest of the Note will remain valid.
9. ASSIGNMENT: Borrower will not be entitled to assign any of Its rights,,
remedies or obligations described In this Note without the prior written consent
of Lender which may be withheld by Lender In Its sole discretion. Lender will be
entitled to assign some or all of its rights and remedies described in this Note
without notice to or the prior consent of Borrower In any manner.
10. NOTICE: Any notice or other communication to be provided to Borrower or
Lender under this Note shall be In writing and sent to the parties at the
addresses described in this Note or such other address as the parties mail
designate in writing from time to time.
11. APPLICABLE LAW: THIS NOTE HAS BEEN EXECUTED AND DELIVERED IN AND IS TO BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
TEXAS AND
APPLICABLE FEDERAL LAWS, EXCEPT THAT CHAPTER 346 OF THE
TEXAS FINANCE CODE
(which REGULATES CERTAIN REVOLVING LOAN ACCOUNTS AND REVOLVING TRIPARTY
ACCOUNTS), DOES NOT APPLY TO THIS NOTE.
12. COLLECTION EXPENSES: If Xxxxxx hires an attorney (who is not a salaried
employee of Xxxxxx) to assist in collecting any amount due or enforcing any
right or remedy under this Note, Xxxxxxxx agrees to pay Xxxxxx's reasonable
attorneys' fees and collection costs subject to court award.
13. MISCELLANEOUS: This Note is being executed for commercial purposes, All
payments are to be made to Lender in the county described In Xxxxxx's address,
in lawful currency of the United States. Xxxxxxxx and Xxxxxx agree that time is
of the essence. Borrower waives presentment, demand for payment, notice of
intent to accelerate, notice of acceleration, notice of dishonor and protest.
All references to Borrower in this Note shall include all of the parties signing
this Note. If there Is more than one Borrower, their obligations will be joint
and several. This Note and any related documents represent the complete and
Integrated understanding between Borrower and Lender pertaining to the terms and
conditions of those documents.
14. ADDITIONAL TERMS:
IT SHALL BE A CONDITION TO XXXXXX'S OBLIGATION TO MAKE EACH ADVANCE
UNDER THIS NOTE THAT MAKING THE ADVANCE REQUESTED SHALL NOT CAUSE THE SUM OF ALL
ADVANCES TO EXCEED XXXXXX'S LEGAL LENDING LIMIT AS DETERMINED UNDER APPLICABLE
LAW. THIS NOTE AND ALL SUPPORTING DOCUMENTS ARE ALSO SUBJECT TO THE TERMS OF
LOAN AGREEMENT OF EVEN DATE HEREBY BY AND BETWEEN XXXXXX AND XXXXXXXX.
