Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Annual Report 17± 87K
5: EX-10.10 Promissory Note 7± 27K
2: EX-10.1B Third Amendment to Lease 6± 23K
3: EX-10.5C Second Modification Agreement 4± 17K
4: EX-10.9 Mortgage Warehousing Credit & Security Agreement 37± 148K
6: EX-11 Computation of Earnings Per Share 1 6K
7: EX-13 Inside Cover + Pages 9-23 of Annual Report 23± 110K
8: EX-21 List of Subsidiaries 1 6K
9: EX-23 Consent of Independent Public Accountants 1 5K
EX-10.10 — Promissory Note
EXHIBIT 10.10
FORM OF PROMISSORY NOTE
REVOLVING LINE OF CREDIT
PROMISSORY NOTE
Phoenix, Arizona
$10,000,000.00 May 27, 1994
1. PROMISE TO PAY.
For value received, MILTEX MORTGAGE OF TEXAS LIMITED PARTNERSHIP, a
Texas limited partnership dba Miltex Mortgage Company ("Maker"),
promises to pay to the order of BANK ONE, ARIZONA, NA at its office at
241 North Central Avenue, Phoenix, Arizona 85004, or at such other
place as the holder hereof may from time to time designate in writing,
the principal sum of Ten Million Dollars ($10,000,000.00), or so much
thereof as shall from time to time be disbursed and outstanding under
that certain Mortgage Warehousing Credit and Security Agreement (as it
may be amended, modified, extended, and renewed and replaced from time
to time, the "Credit Agreement") of even date herewith between Maker
and the payee named above, together with accrued interest from the date
of disbursement on the unpaid principal at the applicable rate as set
forth in Section 4. The payee named above shall have no obligation to
make any Advances hereunder except in accordance with the Credit
Agreement. This note (as it may be amended, modified, extended, and
renewed from time to time, the "Note") is issued pursuant to, entitled
to the benefits of, and referred to as the "Note" in the Credit
Agreement. In the event of any inconsistency between the provisions of
this Note and the provisions of the Credit Agreement, the Credit
Agreement shall control. Capitalized terms used herein without
definition shall have the meanings set forth in the Credit Agreement.
2. MATURITY DATE.
Absent the occurrence of an Event of Default hereunder or under any of
the Credit Agreement, this Note, and other documents evidencing or
securing the loans contemplated by the Credit Agreement (collectively
the "Credit Agreement Documents"), the unpaid principal balance hereof,
together with all unpaid interest accrued thereon, and all other
amounts payable by Maker under the terms of the Credit Agreement
Documents, shall be due and payable on May 25, 1995 (the "Maturity
Date"). If the Maturity Date should fall (whether by acceleration or
otherwise) on a day that is not a Business Day, payment of the
outstanding principal shall be made on the next succeeding Business Day
and such extension of time shall be included in computing the interest
included in such payment.
3. PREPAYMENT.
Maker may prepay the unpaid principal balance, in whole or in part, at
any time without penalty or premium. Amounts prepaid may be reborrowed
in accordance with the Credit Agreement.
4. PAYMENTS.
(a) Absent an Event of Default hereunder or under any of the
Credit Agreement Documents, each Advance made hereunder shall
bear interest at a floating rate of interest equal to the sum
of the Prime Rate plus one-half of one percent (.5%) per
annum; provided, however, that if at any time the contract
rate shall exceed the Maximum Rate, thereby causing the
interest on this Note to be limited to the Maximum Rate, then
any subsequent reduction in the contract rate shall not reduce
the rate of interest on this Note below the Maximum Rate until
the total amount of interest accrued on this Note equals the
amount of interest which would have accrued on this Note if
the contract rate had at all times been in effect. Throughout
the term of this Note, interest shall be calculated on a
360-day year with respect to the unpaid balance of any Advance
and, in all cases, shall be computed for the actual number of
days in the period for which interest is charged. The floating
rate of interest will be adjusted as of the effective date of
each change in the Prime Rate.
The term "Maximum Rate," as used herein, shall mean at the
particular time in question the maximum rate of interest
which, under applicable law, may then be charged on this Note.
If such maximum rate of interest changes after the date hereof
and this Note provides for a fluctuating rate of interest, the
Maximum Rate shall be automatically increased or deceased, as
the case may be, without notice to Borrower from time to time
as of the effective date of each change in such maximum rate.
(b) All payments of principal and interest due hereunder shall
be made (i) without deduction of any present and future taxes,
levies, imposts, deductions, charges or withholdings, which
amounts shall be paid by Maker, and (ii) without any other set
off.
(c) Interest hereunder shall be payable by Maker to the holder
hereof on the first (1st) day of each and every month during
the term of this Note commencing with the first (1st) day of
the first month following the date hereof. If any payment of
interest to be made by Maker hereunder shall become due on a
day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and such extension of time
shall be included in computing the interest in such payment.
(d) Payments of principal shall be due as provided in the Credit
Agreement.
5. LAWFUL MONEY.
Principal and interest are payable in lawful money of the United States
of America.
6. APPLICATION OF PAYMENTS/LATE CHARGE.
(a) Absent the occurrence of an Event of Default hereunder or
under any of the other Credit Agreement Documents, any
payments received by the holder hereof pursuant to the terms
hereof shall be applied in the manner set forth in the Credit
Agreement or, if not so set forth, in such order as the holder
hereof may, in its sole discretion, elect. Any payments
received by the holder hereof after the occurrence of an Event
of Default hereunder or under any of the Credit Agreement
Documents shall be applied in such order as the holder hereof
may, in its sole discretion, elect.
(b) If any payment of interest is not received by the holder
hereof within fifteen (15) days of the due date thereof, then
in addition to the remedies conferred upon the holder pursuant
to Section 9 hereof and the other Credit Agreement Documents,
a late charge of four percent (4%) of the amount due and
unpaid will be added to the delinquent amount to compensate
the holder hereof for the expense of handling the delinquency
for such payment; provided, however, that the obligation to
pay a late charge shall be subject to the provisions hereof
limiting the charging, collection, and receipt of interest to
the Maximum Rate.
7. SECURITY.
This Note is secured by and is entitled to the benefits of the Credit
Agreement. The provisions of the Credit Agreement are incorporated
herein by reference as if set forth in full, and this Note is subject
to all of the covenants and conditions contained in the Credit
Agreement. This Note is guaranteed by the Guaranty.
8. EVENT OF DEFAULT.
The occurrence of any of the following shall be deemed to be an event
of default ("Event of Default") hereunder:
(a) Failure to Pay. Failure of Maker to make a payment of
principal or interest within fifteen (15) days of the due date
thereof or failure of Maker to make any other payment or
perform any obligation hereunder; or
(b) The occurrence of an Event of Default under any of the other
Credit Agreement Documents.
9. REMEDIES.
Upon the occurrence of an Event of Default, the entire balance of
principal together with all accrued interest thereon, and all other
amounts payable by Maker under the Credit Agreement Documents shall, at
the option of the holder hereof and without demand or notice,
immediately become due and payable. Upon the occurrence of an Event of
Default (and so long as such Event of Default shall continue), the
entire balance of principal hereof, together with all accrued interest
thereon, all other amounts due under the Credit Agreement Documents,
and any judgment for such principal, interest, and other amounts, at
the option of the holder hereof, shall bear interest equal to the
lesser of (i) the Default Rate; or (ii) the Maximum Rate. No delay or
omission on the part of the holder hereof in exercising any right under
this Note or under any of the other Credit Agreement Documents hereof
shall operate as a waiver of such right. The remedies of the holder
hereof, as provided in this Note and in the Credit Agreement or any
other instrument securing this Note, shall be cumulative and
concurrent, and may be pursued singularly, successively or together, at
the sole discretion of the holder hereof, and may be exercised as often
as occasion therefor shall arise.
10. WAIVER.
Maker, endorsers, guarantors, and sureties of this Note hereby waive
diligence, demand for payment, presentment for payment, protest, notice
of nonpayment, notice of protest, notice of intent to accelerate,
notice of acceleration, notice of dishonor, and notice of nonpayment,
and all other notices or demands of any kind and expressly agree that,
without in any way affecting the liability of Maker, endorsers,
guarantors, or sureties, the holder hereof may extend any maturity date
or the time for payment of any installment due hereunder, otherwise
modify the Credit Agreement Documents, accept additional security,
release any Person liable, and release any security or guaranty. Maker,
endorsers, guarantors, and sureties waive, to the full extent permitted
by law, the right to plead any and all statutes of limitations as a
defense.
11. CHANGE, DISCHARGE, TERMINATION, OR WAIVER.
No provision of this Note may be changed, discharged, terminated, or
waived except in a writing signed by the party against whom enforcement
of the change, discharge, termination, or waiver is sought. No failure
on the part of the holder hereof to exercise and no delay by the holder
hereof in exercising any right or remedy under this Note or under the
law shall operate as a waiver thereof.
12. ATTORNEYS' FEES.
If this Note is not paid when due or if any Event of Default occurs,
Maker promises to pay all costs of enforcement and collection and
preparation therefor, including but not limited to, reasonable
attorneys' fees, whether or not any action or proceeding is brought to
enforce the provisions hereof (including, without limitation, all such
costs incurred in connection with any bankruptcy, receivership, or
other court proceedings (whether at the trial or appellate level)).
13. SEVERABILITY.
If any provision of this Note is unenforceable, the enforceability of
the other provisions shall not be affected and they shall remain in
full force and effect.
14. INTEREST RATE LIMITATION.
Maker hereby agrees to pay an effective rate of interest that is the
sum of the interest rate provided for herein, together with any
additional rate of interest resulting from any other charges of
interest or in the nature of interest paid or to be paid in connection
with the Credit Agreement, including without limitation, any fees to be
paid by Maker pursuant to the provisions of the Credit Agreement
Documents; provided, however, that in no event shall the amounts
payable herein exceed the Maximum Rate.
15. NUMBER AND GENDER.
In this Note the singular shall include the plural and the masculine
shall include the feminine and neuter gender, and vice versa.
16. HEADINGS.
Headings at the beginning of each numbered section of this Note are
intended solely for convenience and are not part of this Note.
17. CHOICE OF LAW.
This Note shall be governed by and construed in accordance with the
laws of the State of Arizona, without giving effect to conflict of laws
principles.
18. INTEGRATION.
The Credit Agreement Documents contain the complete understanding and
agreement of the holder hereof and Maker and supersede all prior
representations, warranties, agreements, arrangements, understandings,
and negotiations.
19. BINDING EFFECT.
The Credit Agreement Documents will be binding upon, and inure to the
benefit of, the holder hereof, Maker, and their respective successors
and assigns. Maker may not delegate its obligations under the Credit
Agreement Documents.
20. TIME OF THE ESSENCE.
Time is of the essence with regard to each provision of the Credit
Agreement Documents as to which time is a factor.
21. RELATIONSHIP.
The relationship of the parties hereto is that of borrower and lender
and it is expressly understood and agreed that nothing contained in
this Note or in the Credit Agreement shall be interpreted or construed
to make Maker and Payee partners, joint venturers or participants in
any other legal relationship except for borrower and lender.
22. SAVINGS CLAUSE.
This Note and all of the other Credit Agreement Documents are intended
to be performed in accordance with, and only to the extent permitted
by, all applicable usury laws. If any provision hereof or of any of the
other Credit Agreement Documents or the application thereof to any
person or circumstance shall, for any reason and to any extent, be
invalid or unenforceable, neither the application of such provision to
any other person or circumstance nor the remainder of the instrument in
which such provision is contained shall be affected thereby and shall
be enforced to the greatest extent permitted by law. It is expressly
stipulated and agreed to be the intent of the holder hereof to at all
times comply with the usury and other applicable laws now or hereafter
governing the interest payable on the indebtedness evidenced by this
Note. If the applicable law is ever revised, repealed or judicially
interpreted so as to render usurious any amount called for under this
Note or under any of the other Credit Agreement Documents, or
contracted for, charged, taken, reserved or received with respect to
the indebtedness evidence by this Note, or if Holder's exercise of the
option to accelerate the maturity of this Note, or if any prepayment by
Borrower results in Borrower having paid any interest in excess of that
permitted by law, then it is the express intent of Borrower and Holder
that all excess amount theretofore collected by Holder be credited on
the principal balance of this Note (or, if this Note and all other
indebtedness arising under or pursuant to the other Credit Agreement
Documents have been paid in full, refunded to Borrower), and the
provisions of this Note and the other Credit Agreement Documents
immediately be deemed reformed and the amounts thereafter collectable
hereunder and thereunder reduced, without the necessity of the
execution of any new document, so as to comply with the then 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, by Borrower for the use, forbearance, detention, taking,
charging, receiving or reserving of the indebtedness of Borrower to
Holder under this Note or arising under or pursuant to the other Credit
Agreement Documents shall, to the maximum extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout
the full term of such indebtedness until payment in full so that the
rate or amount of interest on account of such indebtedness does not
exceed the usury ceiling from time to time in effect and applicable to
such indebtedness for so long as such indebtedness is outstanding. To
the extent federal law permits Holder to contract for, charge or
receive a greater amount of interest, Holder will rely on federal law,
for the purpose of determining the Maximum Rate. Notwithstanding
anything to the contrary contained herein or in any of the other Credit
Agreement Documents, it is not the intention of Holder 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.
If the laws of the State of Texas are ever deemed to govern this Note
notwithstanding the parties' expressed intent to the contrary,
the parties agree that TEX. REV. CIV. STAT. ANN. art 5069 Ch. 15
(which regulated certain revolving loan accounts and revolving
tri-party accounts) shall in no event apply to this Note. Further, to
the extent that TEX. REV. CIV. STAT. ANN. art 5069-1.04, as amended,
is applicable to this Note, the "indicated rate ceiling" specified in
such article is the applicable ceiling; provided that, if any
applicable law permits greater interest, the law permitting the
greatest interest shall apply.
23. NOTICES.
Notices under this Note will be given in the manner set forth in the
Credit Agreement.
MILTEX MORTGAGE OF TEXAS LIMITED
PARTNERSHIP, a Texas limited partnership,
dba Miltex Mortgage Company
BY: MILTEX MANAGEMENT, INC., a Texas corporation
Its Sole General Partner
By:/s/ Randall C. Present
-------------------------------------
Name: Randall Present
-----------------------------------
Title: President
----------------------------------
"Maker"
Dates Referenced Herein
| This ‘10-K’ Filing | | Date | | Other Filings |
|---|
| |  |
| | 5/25/95 | | None on these Dates |
| Filed on: | | 8/23/94 |
| For Period End: | | 5/31/94 |
| | 5/27/94 |
| List all Filings |
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