Exhibit 99.01
DEED OF TRUST NOTE
$3,000,000.00 November 13, 2001
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇ MEDICAL GROUP, LP, a Texas limited partnership,
having its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ (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 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇, 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 Three Million and No/100 Dollars
($3,000,000.00), 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. Borrower shall pay to Lender a payment of interest
only in the amount of $43,636.36 on the twelfth (12th) day of each month during
the tern hereof (with the first such payment being due on December 12, 2001).
The outstanding principal balance of this Note, together with all accrued but
unpaid interest thereon, shall be due and payable on November 12, 2002 (the
"MATURITY DATE"). Each such Monthly Payment shall be applied to the payment of
interest computed at the Contract Rate (as hereinafter defined), 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.
2. INTEREST. The term "CONTRACT RATE" as used in this Note shall mean
from the date of this Note through (and including the Maturity Date, a rate of
sixteen percent (16%) per annum.
3. SECURITY. This Note is evidence of that certain loan made by ▇▇▇▇▇▇
to Borrower contemporaneously herewith (the "LOAN"). This Note is secured by (a)
a Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture
Filing of even date herewith in the amount of this Note given by Borrower for
the use and benefit of Lender covering the fee estate of Borrower in certain
premises as more particularly described therein (the "DEED OF TRUST"), (b) an
Assignment of Leases and Rents of even date herewith executed by Borrower in
favor of ▇▇▇▇▇▇ (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.
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 banking and savings and
loan institutions in New York 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 ▇▇▇▇▇▇
delivers written notice thereof to ▇▇▇▇▇▇▇▇ (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 therefor,
Borrower also shall pay on demand all costs of collection incurred by ▇▇▇▇▇▇,
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 ▇▇▇▇▇▇.
Borrower acknowledges that this facility is merely a short-term (i.e.,
twelve-month) 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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇ 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
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. ▇▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇▇▇ HEREBY 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 ▇▇▇▇▇▇▇▇, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY
EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD
OTHERWISE ACCRUE. ▇▇▇▇▇▇ 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 in which the Trust Property is located and
the applicable laws of the United States of America.
▇▇▇▇▇▇▇▇ has duly executed this Note the day and year first above
written.
BORROWER:
▇▇▇▇▇▇▇ MEDICAL GROUP, LP,
a Texas limited partnership
By: ▇▇▇▇▇▇▇ Group, LLC,
a Texas limited liability company,
its General Partner
By: 2001 Ladbrook, LLC,
a Texas limited liability company
its Manager
By: /s/ ▇▇▇▇▇ ▇. Due
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▇▇▇▇▇ ▇. ▇▇▇,
its Manager