EXHIBIT 10.15
REVOLVING PROMISSORY NOTE
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$3,500,000 October 2, 2001
For value received, FIRST CONSUMER CREDIT, INC., a Texas corporation
("Borrower", whether one or more) does hereby promise to pay to the order of
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THE FROST BANK ("Lender"), at X.X. Xxx 0000, Xxx Xxxxxxx, Xxxxx 00000, or at
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such other address as Lender shall from time to time specify in writing, in
lawful money of the United States of America, the sum of Three Million Five
Hundred Thousand AND N0/100 DOLLARS ($3,500,000.00), or so much thereof as from
time to time may be disbursed by Lender to Borrower under the terms of that
certain Loan Agreement dated of even date herewith between Borrower and Lender
(the "Loan Agreement"), and be outstanding, together with interest from date
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hereof on the principal balance outstanding from time to time as hereinafter
provided. Interest shall be computed on a per annum basis of a year of 360 days
and for the actual number of days elapsed, unless such calculation would result
in a rate greater than the highest rate permitted by applicable law, in which
case interest shall be computed on a per annum basis of a year of 365 days or
366 days in a leap year, as the case may be.
1. Payment Terms. Interest only on amounts outstanding hereunder shall be
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due and payable monthly as it accrues, on the first day of each and every
calendar month, beginning November 1, 2001, and continuing regularly and
monthly thereafter until March 1, 2003, when the entire amount hereof,
principal and interest then remaining unpaid, shall be then due and payable;
interest being calculated on the unpaid principal each day principal is
outstanding and all payments made credited to any collection costs and late
charges, to the discharge of the interest accrued and to the reduction of the
principal, in such order as Lender shall determine.
25. Late Charge. If a payment is made 10 days or more late, Borrower will
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be charged, in addition to interest a delinquency charge of (i) 5% of the
unpaid portion of the regularly scheduled payment or (ii) $250.00, whichever is
less. Additionally, upon maturity of this Note, if the outstanding principal
balance (plus all accrued but unpaid interest) is not paid within 10 days of
the maturity date, Borrower will be charged a delinquency charge of (i) 5% of
the sum of the outstanding principal balance (plus all accrued but unpaid
interest), or (ii) $250.00, whichever is less. Borrower agrees with Lender that
the charges set forth herein are reasonable compensation to Lender for the
handling of such late payments.
26. Interest Rate. Interest on the outstanding and unpaid principal
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balance hereof shall be computed at a per annum rate equal to the lesser of (a)
a rate equal to The Wall Street Journal London Interbank Offered Rate (as
defined below) plus two and six tenths of one percent (2.60%) per annum with
said rate to be adjusted to reflect any change in The Wall Street Journal
London Interbank Offered Rate at the time of any such change or (b) the highest
rate permitted by applicable law, but in no event shall interest contracted
for, charged or received hereunder plus any other charges in connection
herewith which constitute interest exceed the maximum interest permitted by
applicable law. As used herein, for any date, the "Wall Street Journal London
Interbank Offered Rate" shall mean the London Interbank Offered Rate (LIBOR)
for three months quoted in the most recently published issue of The Wall Street
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Journal (Southwest Edition) in the "Money Rates" column. If The Wall Street
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Journal London Interbank Offered Rate ceases to be made available by the
publisher, or any successor to the publisher of The Wall Street Journal
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(Southwest Edition) the interest rate will be determined by using a comparable
index. If more than one Wall Street Journal London Interbank Offered Rate for
three months is quoted, the higher rate shall apply. The Wall Street Journal
London Interbank Offered Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer.
27. Default Rate. Matured unpaid principal and interest shall bear
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interest from date of maturity until paid at The Wall Street Journal London
Interbank Offered Rate plus five percent (5%) per annum.
REVOLVING PROMISSORY NOTE - Page 1
28. Revolving Line of Credit. Under the Loan Agreement, Borrower may
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request advances and make payments hereunder from time to time, provided that
it is understood and agreed that the aggregate principal amount outstanding
from time to time hereunder shall not at any time exceed the lesser of (a) the
Collateral Value of the Eligible Installment Contracts (as defined in the Loan
Agreement) or (b) $3,500,000. The unpaid balance of this Note shall increase
and decrease with each new advance or payment hereunder, as the case may be.
This Note shall not be deemed terminated or canceled prior to its maturity,
although the entire principal balance hereof may from time to time be paid in
full. Borrower may borrow, repay and re-borrow hereunder. All payments and
prepayments of principal of or interest on this Note shall be made in lawful
money of the United States of America in immediately available funds, at the
address of Lender indicated above, or such other place as the holder of this
Note shall designate in writing to Borrower. If any payment of principal of or
interest on this Note shall become due on a day which is not a Business Day (as
hereinafter defined), such payment shall be made on the next succeeding
Business Day and any such extension oil time shall be included in computing
interest in connection with such payment As used herein, the term "Business
Day" shall mean any day other than a Saturday, Sunday or any other day on which
national banking associations are authorized to be closed. The certified and
authenticated books and records of Lender shall be prima facie evidence of all
outstanding principal of and accrued and unpaid interest on this Note.
29. Prepayment. Borrower reserves the right to prepay, prior to
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maturity, all or any part of the principal of this Note without penalty. Any
prepayments shall be applied first to accrued interest and then to principal.
Borrower will provide written notice to the holder of this Note of any such
prepayment of all or any part of the principal at the time thereof. All
payments and prepayments of principal or interest on this Note shall be made in
lawful money of the United States of America in immediately available funds, at
the address of Lender indicated above, or such other place as the holder of
this Note shall designate in writing to Borrower. All partial prepayments of
principal shall be applied to the last installments payable in their inverse
order of maturity.
30. Default. It is expressly provided that upon default in the punctual
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payment of this Note or any part hereof, principal or interest, within five (5)
days after the same shall become due and payable, or upon the occurrence of an
event of default specified in any of the other Loan Documents (as defined
below), the holder of this Note may, at its option, without further notice or
demand, (i) declare the outstanding principal balance of and accrued but unpaid
interest on this Note at once due and payable, (ii) refuse to advance any
additional amounts under this Note, (iii) foreclose all liens securing payment
hereof, (iv) pursue any and all other rights, remedies and recourses available
to the holder hereof, including but not limited to any such rights, remedies or
recourses under the Loan Documents, at law or in equity, or (v) pursue any
combination of the foregoing; and in the event default is made in the prompt
payment of this Note when due or declared due, and the same is placed in the
hands of an attorney for collection, or suit is brought on same, or the same is
collected through probate, bankruptcy or other judicial proceedings, then the
Borrower agrees and promises to pay all costs of collection, including
reasonable attorneys fees.
31. No Usury Intended; Usury Savings Clause. In no event shall interest
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contracted for, charged or received hereunder, plus any other charges in
connection herewith which constitute interest; exceed the maximum interest
permitted by applicable law. The amounts of such interest or other charges
previously paid to the holder of the Note in excess of the amounts permitted by
applicable law shall be applied by the holder of the Note to reduce the
principal of the indebtedness evidenced by the Note, or, at the option of the
holder of the Note, be refunded. To the extent permitted by applicable law,
determination of the legal maximum amount of interest shall at all times be
made by amortizing, prorating, allocating and spreading in equal parts during
the period of the full stated term of the loan and indebtedness, all interest
at any time contracted for, charged or received from the Borrower hereof in
connection with the loan and indebtedness evidenced hereby, so that the actual
rate of interest on account of such indebtedness is uniform throughout the term
hereof.
32. Security. This Note has been executed and delivered pursuant the
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Loan Agreement, and is secured by, inter alia, a Security Agreement of even
date herewith by and between Borrower and Lender, covering certain collateral
as more particularly described therein. This Note, the Loan Agreement and all
other
REVOLVING PROMISSORY NOTE - Page 2
documents evidencing, securing, governing, guaranteeing and/or pertaining to
this Note, including but not limited to those documents described above, are
hereinafter collectively referred to as the "Loan Documents." The holder of
this Note is entitled to the benefits and security provided in the Loan
Documents.
33. Joint and Several Liability; Waiver. Each maker, signer, surety and
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endorser hereof, as well as all heirs, successors and legal representatives of
said parties, shall be directly and primarily, jointly and severally, liable
for the payment of all indebtedness hereunder. Lender may release or modify the
obligations of any of the foregoing persons or entities, or guarantors hereof,
in connection with this loan without affecting the obligations of the others.
All such persons or entities expressly waive presentment and demand for payment
notice of default, notice of intent to accelerate maturity, notice of
acceleration of maturity, protest, notice of protest, notice of dishonor, and
all other notices and demands for which waiver is not prohibited by law, and
diligence in the collection hereof; and agree to all renewals, extensions,
indulgences, partial payments, releases or exchanges of collateral, or taking
of additional collateral with or without notice, before or after maturity. No
delay or omission of Lender in exercising any right hereunder shall be a waiver
of such right or any other right under this Note.
34. Texas Finance Code. In no event shall Chapter 346 of the Texas
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Finance Code (which regulates certain revolving loan accounts and revolving
tri-party accounts) apply to this Note. To the extent that Chapter 303 of the
Texas Finance Code is applicable to this Note, the "weekly ceiling" specified
in such chapter is the applicable ceiling; provided that if any applicable law
permits greater interest, the law permitting the greatest interest shall apply.
35. Governing Law, Venue. This Note is being executed and delivered, and
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is intended to be performed in the State of Texas. Except to the extent that
the laws of the United States may apply to the terms hereof, the substantive
laws of the State of Texas shall govern the validity, construction, enforcement
and interpretation of this Note. In the event of a dispute involving this Note
or any other instruments executed in connection herewith, the undersigned
irrevocably agrees that venue for such dispute shall lie in any court of
competent jurisdiction in Bexar County, Texas.
36. Purpose of Loan. Borrower agrees that no advances under this Note
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shall be used for personal, family or household purposes, and that all advances
hereunder shall be used solely for business, commercial, investment or other
similar purposes.
37. Captions. The captions in this Note are inserted for convenience
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only and are not to be used to limit the terms herein.
38. Financial Information. Borrower agrees to promptly furnish such
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financial information and statements, including financial statements in a
format acceptable to Lender, lists of assets and liabilities, agings of
receivables and payables, inventory schedules, budgets, forecasts, tax returns,
and other reports with respect to Borrower's financial condition and business
operations as Lender may reasonably request from time to time. This provision
shall not alter the obligation of Borrower to deliver to Lender any other
financial statements or reports pursuant to the terms of any other loan
documents executed in connection with this Note.
BORROWER :
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FIRST CONSUMER CREDIT, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
REVOLVING PROMISSORY NOTE - Page 3
