Exhibit 10.24 (c)
CHICAGO BRIDGE & IRON COMPANY
SENIOR EXECUTIVE RELOCATION LOAN AGREEMENT
This Senior Executive Relocation Loan Agreement ("Loan Agreement") is
made as of September 13, 2001, by and between Chicago Bridge & Iron Company
(Delaware), (the "Company") whose address is at 0000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx and Xxxxxx X. Xxxxxx ("Executive") and Xxxxxxxx X. Xxxxxx,
("Spouse") whose address is 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000.
RECITALS
The Company is relocating its corporate headquarters and Executive's
principal place of work from Plainfield, Illinois to The Woodlands, Texas. In
connection with this relocation the Executive is purchasing a new principal
residence located or to be located at The Woodlands, Texas, (the "Property").
The Company desires to assist Executive with the purchase of his new principal
residence by extending a loan in a principal amount not to exceed Seven Hundred
Thousand Dollars ($700,000) (the "Loan") on the terms and conditions in this
Loan Agreement. The Loan is intended to be an employee-relocation mortgage loan
exempt from imputed interest pursuant to Section 1.7872-5T(c)(1)(i) of the
Income Tax Regulations.
AGREEMENT
In consideration of the premises and the mutual covenants contained in
this Loan Agreement, the Company agrees to loan to Executive and Spouse the
principal amount of Seven Hundred Thousand Dollars ($700,000), on the following
terms and conditions:
1. Loan. The Loan shall be represented by a promissory note or notes
(each, a "Note" and collectively, the "Notes") dated as of the date of this Loan
Agreement in substantially the form attached as Exhibit A. If the Loan is
borrowed through multiple draws (each, a "Draw") by the Executive and Spouse
pursuant to paragraph 11, each Draw shall be evidenced by a separate Note. Each
Note shall be due and payable in a single lump sum, without interest except as
provided in paragraph 3 below.
2. Maturity.
(a) Original Maturity Date. Except as otherwise set forth in
Paragraph 2(b) below,
(i) if the entire principal amount of the Loan is disbursed
all at one time, the Loan shall be due and payable, in full,
on the fourth anniversary of the date of disbursement, or
(ii) if the Loan is disbursed in more than one Draw, each Draw
shall be due and payable, in full, on the fourth anniversary
of the date of disbursement of such Draw.
Each Loan or Draw due date described in clauses (i) and (ii) above are
hereinafter referred to as an "Original Maturity Date".
(b) Modification of Original Maturity Date.
(i) Forgiveness on Termination of Employment by Death or
Disability. If, prior to any Original Maturity Date,
Executive ceases to be an employee of the Company
solely by reason of Executive's death or
"disability", then, as of the Termination Date (as
defined in paragraph 2(c) below), the Loan and all
Notes shall be
cancelled, and no repayment of outstanding principal
or interest accrued thereunder shall be required. As
used in this subparagraph 2(b)(i), "disability" shall
mean a disability entitling the Executive to
disability benefits under the long-term disability
plan or policy of the Company covering the Executive,
or, if no such plan or policy exists, then whether or
not the Executive has a disability shall be
determined by the Company in its sole discretion
reasonably exercised.
(ii) Extension of Maturity. If, after the date of this
Loan Agreement but prior to any Original Maturity
Date, (x) a "change of control" occurs which is not a
"growth transaction"; and (y) thereafter Executive
ceases to be an employee of the Company for any
reason other than (A) death or disability as
described in subparagraph 2(b)(i) above or (B)
termination by the Company for "cause", then the due
date of the Loan and all then unpaid Notes shall be
extended to a date which is the fifth anniversary of
the Termination Date (the "Extended Maturity Date").
If the provisions of this subparagraph 2(b)(ii)
apply, the entire unpaid principal balance of the
Loan and all accrued but unpaid interest thereon
shall be due and payable in full on the Extended
Maturity Date.
As used in this subparagraph 2(b)(ii) the terms
"change of control", "growth transaction" and "cause"
shall have the meanings set forth in that certain
Change of Control Severance Agreement between the
Company and the Executive dated as of October 13,
2000 as in effect on the date hereof, (the "Severance
Agreement").
(iii) Acceleration of Maturity. If, prior to any Original
Maturity Date, the Executive ceases to be an employee
of the Company for any reason other than as provided
in subparagraphs 2(b)(i) and 2(b)(ii) above, then,
except as set forth in the immediately succeeding
sentence, the Notes shall be accelerated such that
the entire outstanding principal balance of the Loan
and all accrued but unpaid interest threon shall be
due and payable in full on the Termination Date.
Notwithstanding the foregoing sentence, if the
Termination of Employment is due to (x) Executive's
involuntary termination by the Company without
"cause", or (y) termination by the Executive with
"good reason" (as "cause" and "good reason" are
defined in the Severance Agreement), then the entire
outstanding principal balance of the Loan and all
accrued but unpaid interest thereon shall be due and
payable in full on the earlier of (A) the date which
is 180 days after the Termination Date, and (B) the
Original Maturity Date of such Note.
(iv) The Original Maturity Date(s) of the Loan and Notes
shall also be accelerated as provided in paragraph
12.
(c) Termination. As used herein, the term "Termination of Employment"
shall mean that the Executive is no longer an employee of the Company
for any reason whatsoever. As used herein, the term "Termination Date"
shall mean the first date upon which the Executive is no longer an
employee of the Company for any reason whatsoever.
3. Interest.
(a) Interest Free. No interest shall accrue on the Loan or any Draw or
Note prior to the first to occur of the following: (i) a Maturity Date,
(ii) a Termination of Employment other than as provided in paragraph
2(b)(i) above, or (iii) an Event of Default (as defined in paragraph
12).
- 2 -
(b) Triggering Events. Interest shall commence to accrue on the entire
outstanding principal balance of the Loan upon the first to occur of
the following (each, a "Triggering Event"): (i) any Maturity Date, (ii)
an Event of Default, or (iii) an acceleration of the Loan in accordance
with paragraph 2(b)(iii) (after taking into account any applicable
grace period as provided therein). Interest shall accrue on the entire
outstanding principal balance of the Loan from the date of such
Triggering Event until the entire outstanding principal balance of the
Loan is paid in full at a rate equal to the lesser of (a) two
percentage point(s) above the rate of interest per annum established
from time to time by Bank One at its main office in Chicago, Illinois
and designated as Bank One's "base" or "prime" rate of interest, which
Executive and Spouse hereby acknowledge and agree may not necessarily
be the lowest interest rate charged by Bank One, or (b) the maximum
lawful rate of interest. Fluctuations in the prime rate shall become
effective immediately, without necessity for any notice whatsoever.
(c) Interest after Extension. After a Termination of Employment
described in paragraph 2(b)(ii) above, interest shall accrue on the
Loan and all outstanding Notes from the Termination Date to the
Extended Maturity Date (or to the date of an Event of Default, if
earlier at which time interest shall start to accrue at the rate set
forth in paragraph 3(a) above) at a rate equal to the lesser of (x) the
annual interest rate on 30-year Treasury securities (as specified by
the Commissioner of Internal Revenue as of the beginning of a calendar
quarter pursuant to Section 417(e) of the Internal Revenue Code of 1986
(the "Code")), or (y) the maximum lawful rate of interest. Interest
under this paragraph shall be determined for each calendar quarter (or
for the portion of any calendar quarter) that is within the period
after the Termination of Employment and before the Extended Maturity
Date (or before an Event of Default, if earlier), based on the annual
interest rate on 30-year Treasury securities in effect as of the first
day of such calendar quarter, and may vary from quarter to quarter, but
shall not vary within a single calendar quarter from the rate
established as of the first day of that calendar quarter. Interest
under this paragraph shall be due and payable quarterly in arrears
within thirty days after the later of the end of each such calendar
quarter or the date the Company gives the Executive written notice of
the amount of interest payable for such quarter under this paragraph.
4. Use of Proceeds. Proceeds of the Loan will be used exclusively for
the purchase of the Property to acquire or initially construct a principal
dwelling to be used as the new principal residence of Executive. For this
purpose, "purchase" includes the costs of new construction of a principal
dwelling on the Property.
5. Collateral. The Loan will be secured by a lien on the Property,
documented by a real estate deed of trust in recordable form satisfactory to the
Company in its sole discretion reasonably exercised (a "Mortgage") containing
such provisions as are customary in deeds of trust securing loans between
unrelated parties acting at arms length. Funding of the Loan is subject to
execution of the Mortgage by Executive and Spouse and the Company's receipt of
satisfactory evidence of title showing no delinquent taxes, liens, judgments or
assessments or other exceptions as shown by a mortgagee title insurance policy
satisfactory to Company (as determined by the Company in its sole discretion
reasonably exercised). If Executive does not elect to purchase an owner's title
insurance policy at its closing for the Property then Company shall waive the
obligation for Executive to deliver a mortgagee title insurance policy.
6. Insurance. Executive at Executive's expense will secure such
property insurance as is required by the Mortgagee naming the Company as an
additional insured in at least the amount of the Loan, and will supply a copy of
such policy to the Company on request, and such policy may not be cancelled,
reduced or materially altered without at least thirty (30) days' prior written
notice being given by Executive to Company.
- 3 -
7. Spousal and Executive Consent. Spouse will execute the Note(s), the
Mortgage, or any other documents that the Company may at any time reasonably
require in connection with this Loan Agreement; to the extent that the Property
or any part of the Property is considered homestead property under the Texas
Constitution or other laws, Executive and Spouse hereby consent to the Loan and
the fact that the Loan is secured by the Property, and Executive and Spouse have
executed this Loan Agreement in evidence of such agreement and consent.
8. Certification. Executive hereby certifies that Executive reasonably
expects to be entitled to and will itemize federal income tax deductions for
each year that the Loan is outstanding.
9. Availability of Funds. To the extent the Loan is not borrowed in
full on the date hereof, Executive may draw the Loan in borrowings of at least
$10,000 per Draw by delivering to the Company a Note in the amount of the
applicable Draw, provided that no Event of Default or Termination of Employment
has occurred or that no lien has been filed against the Property without
Executive complying with paragraph 19. Subject to the satisfaction of all
conditions thereto, the Company will make funds available for any such Draw
within five business days of the date Executive notifies the Company's chief
financial officer of the requested amount.
10. Prepayment. Executive and Spouse may prepay the Loan (in whole or
in part) without penalty or premium at any time prior to its due date.
Prepayments will be applied first to accrued interest, if any and the remainder
to principal in the order of maturity under the Notes so that they will be
applied to principal payments maturing first. These prepayments will not reduce
the amount or time of payment of the remaining payments, which will continue
until the principal amount of the Loan and all accrued interest under all Notes
are paid in full. Interest on the prepaid principal will immediately cease to
accrue.
11. Transferability. The Company may assign its rights under this Loan
Agreement. The rights of the Company under this Loan Agreement (to the extent of
the principal amount of the Note and interest accrued or to accrue thereon) will
be deemed assigned to and shall inure to the benefit of any person to whom the
Company endorses a Note representing all or part of the Loan under this Loan
Agreement. Executive's and Spouse's rights under this Loan Agreement and the
benefit of the interest arrangement for the Loan contained in this Loan
Agreement are not transferable by the Executive or Spouse.
12. Events of Default. An event of default shall occur under this Loan
Agreement if (i) Executive or Spouse fails to pay when due and payable (whether
upon an Original Maturity Date, Extended Maturity Date, Termination of
Employment, or otherwise), the full principal amount of any Note and any accrued
interest thereon (other than quarterly interest pursuant to Paragraph 3(c)),
(ii) Executive or Spouse fails to pay when due and payable any quarterly payment
of interest pursuant to Paragraph 3(c), or any other payments under this Loan
Agreement or the Mortgage and such failure to pay is not cured within ten days
after the occurrence thereof; (iii) the Executive or Spouse sells, assigns,
pledges, encumbers, or otherwise transfers the Property or any interest in the
Property, or any of their rights under this Loan Agreement or attempts to sell,
assign, pledge, encumber, or otherwise transfer the Property or any interest in
the Property or their rights under this Loan Agreement, or (iv) any other
obligation of Executive and Spouse under the Note, the Mortgage or under any
other agreement in connection with the Loan or that is secured in whole or in
part by the Property (collectively, "Loan Documents") is not paid when due or is
otherwise in default (i) - (iv) individually and collectively referred to as an
"Event of Default"). If any Event of Default has occurred and is continuing,
then:
(a) The Loan and any Note(s) thereunder shall become immediately due
and payable in full, and interest shall immediately commence accruing
on the Note as provided in paragraph 3 and be immediately due and
payable, provided that the exercise of this right by Company is not
prohibited by federal law as of the date of this Loan Agreement. If
Company exercises this right,
- 4 -
Company shall give Executive notice of acceleration and this notice
shall provide a period of not less than 30 days from the date the
notice is delivered or mailed within which Executive must pay all such
sums and any other sums due under any of the Loan Documents.
(b) Without thereby waiving any right to any other remedy upon an Event
of Default, and notwithstanding any other agreement between the Company
and the Executive other than an agreement made after the date hereof
specifically referencing this Agreement, the Company may offset all or
any portion of any obligation of whatsoever nature the Company (or any
parent or direct or indirect subsidiary of the Company) may owe to the
Executive by any amount due and payable but unpaid by Executive with
respect to the Loan Documents.
(c) The Company may exercise any and all rights under the Loan
Documents, including the right to foreclose upon its interest in the
Property pursuant to the Mortgage.
(d) The Company may proceed against the Executive and/or Spouse in
another legal or equitable action available to collect the amount due
on any Loan Document; and shall also have any other rights which the
Company may have been afforded under any contract or agreement with the
Executive at any time and any other rights which the Company may have
pursuant to applicable law.
Except as may be otherwise set forth in the Mortgage, the proceeds from any
offset, sale or action described in clauses (b), (c) or (d) shall be applied (A)
first, to the payment of any costs and expenses (including reasonable attorneys'
fees) incurred by the Company in connection with such offset, sale or action,
(B) second, to accrued interest (including interest described in clause (a)) due
on the Loan, (C) third, to the outstanding principal amount due on the Loan, and
(D) the surplus from any sale of the Property pursuant to the foreclosure
described in clause (c) shall be returned to the Executive.
13. Waivers. EXECUTIVE AND SPOUSE HEREBY SEVERALLY WAIVE AND RELINQUISH
PAYMENT, DEMAND, NOTICE OF NONPAYMENT OR NONPERFORMANCE, PROTEST, NOTICE OF
PROTEST, NOTICE OF INTENT TO ACCELERATE, NOTICE OF ACCELERATION OR ANY OTHER
NOTICES OR ANY OTHER ACTION. EXECUTIVE AND SPOUSE AND ANY ENDORSERS OR
GUARANTORS HEREOF SEVERALLY WAIVE AND RELINQUISH, TO THE FULLEST EXTENT
PERMITTED BY LAW, ALL RIGHTS TO THE BENEFITS OF ANY MORATORIUM, REINSTATEMENT,
MARSHALING, FORBEARANCE, VALUATION, STAY, EXTENSION, REDEMPTION, APPRAISEMENT,
EXEMPTION AND HOMESTEAD NOW OR HEREAFTER PROVIDED BY THE CONSTITUTION AND LAWS
OF THE UNITED STATES OF AMERICA AND OF EACH STATE THEREOF, BOTH AS TO ITSELF AND
IN AND TO ALL OF ITS PROPERTY, REAL AND PERSONAL, AGAINST THE ENFORCEMENT AND
COLLECTION OF THE OBLIGATIONS EVIDENCED BY THE NOTE OR BY THE OTHER LOAN
DOCUMENTS AND EXPRESSLY AGREE THAT THE TIME FOR ANY PAYMENT ON THE LOAN MAY BE
EXTENDED FROM TIME TO TIME BY COMPANY AND THAT THE COMPANY MAY ACCEPT SECURITY
FOR THE LOAN OR RELEASE SECURITY FOR THE LOAN, ALL WITHOUT IN ANY WAY AFFECTING
THE LIABILITY OF EXECUTIVE AND SPOUSE HEREUNDER. NO WAIVER OR FORBEARANCE BY THE
COMPANY SHALL ADVERSELY AFFECT ITS RIGHT TO STRICTLY ENFORCE THE PROVISIONS OF
THIS LOAN AGREEMENT.
14. Statutory Notice. THIS LOAN AGREEMENT, THE NOTE, THE MORTGAGE AND
ANY OTHER LOAN DOCUMENTS UNDER THE LOAN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG
THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS,
- 5 -
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND
MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO
ORAL AGREEMENTS AMONG THE PARTIES HERETO.
15. Notices. Unless applicable law requires a different method, any
notice that must be given to Executive, Spouse or Company under this Loan
Agreement, the Note, or any other Loan Documents will be given by delivering it
or mailing it by first class mail to such party at the address above or at a
different address given to the other by a notice of different address.
16. Obligations of Persons under Loan. If more than one person signs
any Note, each person is fully and personally obligated to keep all of the
promises made in such Note and this Loan Agreement, the Mortgage, and any other
Loan Documents, including the promise to pay the full amount owed. Company may
enforce its rights under this Loan Agreement, each Note, the Mortgage, and any
other Loan Documents against each person individually or against both persons
such that any one person may be required to pay all of the amounts owed under
the Notes.
17. Mechanic's Liens and Other Liens. Executive and Spouse shall pay
all taxes, assessments, charges, fines, and impositions attributable to the
Property on time directly to the entity owed payment and shall promptly
discharge all liens in a manner acceptable to Company except that Executive may
contest any lien in good faith and defend the enforcement of any such lien in
any proceedings that in Company's opinion operate to prevent the enforcement of
the lien or may obtain an agreement satisfactory to Company that subordinates
the lien to the Mortgage. Executive shall notify Company promptly in the event
any liens are filed, and upon notice from Company, Executive shall take one or
more of the actions set forth above within 10 days after Executive's receipt of
Company's notice.
18. Law. This Loan Agreement and all other Loan Documents shall be
governed by and construed in accordance with the laws of the State of Texas.
Notwithstanding any business or personal relationship between Executive, Spouse
or Company, or any officer, director or employee of Company, the relationship of
Executive and Spouse with Company is solely that of debtor and creditor, and
Company has no fiduciary or other special relationship with Executive or Spouse.
Whenever Company shall exercise any right to approve or disapprove of any term,
Company's decision shall be satisfactory in its sole discretion and it shall be
final and conclusive. Subject to paragraph 11 the terms of this Loan Agreement
and the Loan Documents shall be binding upon and inure to the benefit of
Executive, Spouse and Company and their respective heirs, executors, legal
representatives, successors, successors-in-title and assigns, whether by
voluntary action of the parties, by operation of law or otherwise, and all other
persons claiming by, through or under them. Time is of the essence with respect
to all provisions of this Loan Agreement and the other Loan Documents. If any
provision of this Loan Agreement or the application thereof to any person or
circumstance shall, for any reason and to any extent, be invalid or
unenforceable, then neither the remainder of this Loan Agreement nor the
application of such provision to other persons or circumstances nor the other
instruments referred to herein shall be affected thereby, but rather shall be
enforced to the greatest extent permitted by applicable law.
19. Controlling Agreement. In the event of any conflict between the
provisions of this Loan Agreement and the Mortgage, it is the intent of the
parties hereto that the provisions of the Mortgage shall control. In the event
of any conflict between the provisions of this Loan Agreement and the Note or
any of the other Loan Documents (other than the Mortgage), it is the intent of
the parties hereto that the provisions of this Loan Agreement shall control. The
parties hereto acknowledge that they were represented by competent counsel in
connection with the negotiation, drafting and execution of this Loan Agreement
and the other Loan Documents and that this Loan Agreement and the other Loan
Documents shall not be subject to the principle of construing their meaning
against the party which drafted same.
- 6 -
IN WITNESS WHEREOF, the Company, Executive and Spouse have executed and
delivered this Loan Agreement on the date first written above.
CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Its: Vice President Human Resources
---------------------------------------
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxx - Executive
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxxxx X. Xxxxxx - Spouse
- 7 -
Exhibit A
PROMISSORY NOTE
The Woodlands, Texas $___________
_____________ __, 2001
For value received, _________________, an individual resident of
_________, at __________________________________, __________________,
_______________ County, ______________ and ______________________________
(jointly and severally, the "Borrower"), promises to pay to the order of Chicago
Bridge & Iron Company, a Delaware corporation ("Lender"), at 0000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, ______ County, Illinois, the principal sum of Seven Hundred
Thousand Dollars ($700,000.00) ("Principal Amount") at the Interest Rate as and
when required herein.
The Maturity Date, Interest Rate, obligation and timing of payments of
principal and interest, default, remedies and other terms are set forth in that
certain Senior Executive Relocation Loan Agreement dated as of September __,
2001, between Borrower and Lender (the "Loan Agreement"), which terms are
incorporated in this Note by this reference. The execution and delivery of this
Note are required under the Loan Agreement. All terms not defined herein shall
have the meaning described in the Loan Agreement.
This Note is secured by a deed of trust from Borrower to Xxxx X. Xxxxx,
trustee, which is dated _________ and covers the real property as described in
therein ("Deed of Trust"). This Note, the Loan Agreement, the Deed of Trust, and
any other loan documents executed in connection with the Loan shall be referred
to collectively as "Loan Documents."
Borrower hereby waives diligence, presentation for payment, protest and
demand for payment, notice of intent to accelerate, and notice of acceleration
of maturity, protest, demand, dishonor, and nonpayment of this Note. Borrower
expressly agrees that the time for any payment on the Loan may be extended from
time to time by Lender and that the Lender may accept security for the Loan or
release security for the Loan, all without in any way affecting the liability of
Borrower under this Note. No waiver or forbearance by the Lender shall adversely
affect its right to strictly enforce the provisions of this Note.
It is expressly stipulated and agreed to be the intent of Borrower and
Lender at all times to comply strictly with the applicable Texas law governing
the maximum rate or amount of interest payable on the indebtedness evidenced by
this Note and any and all indebtedness ("Related Indebtedness") paid or payable
by Borrower to Lender pursuant to the Loan Documents or any other communication
or writing by or between Borrower and Lender related to the transaction or
transactions that are the subject matter of the Loan Documents. If the
applicable law is ever judicially interpreted so as to render usurious any
amount (i) contracted for, charged, taken, reserved or received pursuant to this
Note, any of the other Loan Documents or any other communication or writing by
or between Borrower and Lender related to the transaction or transactions that
are the subject matter of the Loan Documents, (ii) contracted for, charged,
taken, reserved or received by reason of Lender's exercise of the option to
accelerate the maturity of this Note and/or the Related Indebtedness, or (iii)
Borrower will have paid or Lender will have received by reason of any voluntary
prepayment by Borrower of this Note and/or the Related Indebtedness, then it is
Borrower's and Lender's express intent that all amounts charged in excess of the
amounts allowed by the Maximum Lawful Rate (defined below) shall be
automatically canceled, ab initio, and all amounts in excess of the Maximum
Lawful Rate theretofore collected by Lender shall be credited on the principal
balance of this Note and/or the Related Indebtedness (or, if this Note and all
Related Indebtedness have been or would thereby be paid in full, refunded to
Borrower), and the provisions of this Note and the other Loan Documents shall
immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder and thereunder;
provided, however, if this Note has been paid in full before the end of the
stated Maturity Date of this Note, then Borrower and Lender agree that Lender
shall, with reasonable promptness after Lender discovers or is advised by
Borrower that interest was received in an amount in excess of the Maximum Lawful
Rate, either refund such excess interest to Borrower and/or credit such excess
interest against this Note and/or any Related Indebtedness then owing by
Borrower to Lender. In no event shall the
provisions of Chapter 346 of the Texas Finance Code (which regulates certain
revolving credit loan accounts and revolving tri-party accounts) apply to this
Note and/or any of the Related Indebtedness. 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. Lender is relying on Chapter 303 of the Texas Finance
Code to determine the Maximum Lawful Rate payable on the Note and/or any other
portion of the Indebtedness, and Lender will utilize the weekly ceiling from
time to time in effect as provided in such Chapter 303, as amended. To the
extent permitted by applicable law now or hereafter in effect, Lender may, at
its option and from time to time, utilize any other method of establishing the
Maximum Lawful Rate under such Chapter 303 or under other applicable law by
giving notice, if required, to Borrower as provided by applicable law now or
hereafter in effect. As used hereunder, the term "Maximum Lawful Rate" shall
mean the maximum lawful rate of interest which may be contracted for, charged,
taken, received or reserved by Lender in accordance with the applicable laws of
the State of Texas taking into account all fees, charges and/or any other things
of value, if any, contracted for, charged, taken, received or reserved by Lender
in connection with the transactions relating to this Note and the other Loan
Documents, which are treated as interest under applicable law made in connection
with the transaction evidenced by this Note and the other Loan Documents. This
provision overrides any conflicting provisions in this Note and all other Loan
Documents.
THIS NOTE, THE LOAN AGREEMENT, THE DEED OF TRUST, AND ANY OTHER LOAN
DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF
AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
If any holder of this Note retains an attorney-at-law in connection
with any Event of Default or at maturity or to collect, enforce, or defend this
Note or any part hereof, or any other Loan Document in any lawsuit or in any
probate, reorganization, bankruptcy or other proceeding, or if Borrower sues any
holder in connection with this Note or any other Loan Document and does not
prevail, then Borrower agrees to pay to each such holder, in addition to the
principal balance hereof and all interest hereon, all costs and expenses of
collection or incurred by such holder or in any such suit or proceeding,
including, but not limited to, reasonable attorneys' fees.
In the event of any conflict between the provisions of this Note and
the Deed of Trust, it is the intent of the parties hereto that the provisions of
the Deed of Trust shall control. In the event of any conflict between the
provisions of this Note and any of the other Loan Documents (other than the Deed
of Trust), it is the intent of the parties hereto that the provisions of the
Loan Agreement shall control.
----------------------------------------
Executive
----------------------------------------
Spouse
- 9 -
