Exhibit 10.10
REAL ESTATE LIEN
NOTE
Amount: $4,500,000.00
Date: August 29,
2007
For value
received, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, jointly and severally, (hereinafter
“Borrower”, whether one or more) promise to pay to the
order of INTERNATIONAL BANK OF COMMERCE (hereinafter
“Lender”), at 1600 FM Road 802, Brownsville, Cameron
County, Texas 78520, the sum of FOUR MILLION FIVE HUNDRED
THOUSAND AND NO/100 Dollars ($4,500,000.00) , in legal and
lawful money of the United States of America, with interest as it
accrues on the outstanding principal balance from date of advance
of such principal until paid.
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The interest
rate shall be _________________ percent per annum; or
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XX
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The interest
rate shall be floating at Zero (0.00%) percent per annum about the
JP Morgan Chase & Co., New York (“Prime Rate”)
(described below) as it fluctuates from time to time; provided,
however, that in no event shall the rate of interest (plus said
amount in excess thereof, if any) to be paid on the unpaid
principal of this Note be less than Six percent (6.0%) per annum,
nor more than the maximum legal rate allowed by applicable
law. This starting interest rate on the Note shall be
Eight and One-Quarter (8.25%) percent per annum. The
rate of interest due hereunder shall be recomputed as of the date
of any change in the Prime Rate.
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The
INTERNATIONAL BANK OF COMMERCE PRIME RATE shall mean the annual
lending rate of interest announced from time to time by Lender as
its prime rate.
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The NEW YORK
PRIME RATE shall mean the annual lending rate of interest announced
from time to time by JP Morgan Chase & Co., New
York, New York, as its prime rate. If the New
York Prime Rate has been selected as the Prime Rate and if,
thereafter, a prime rate is not announced by JP Morgan Chase &
Co., New York, New York, then the International Bank of Commerce
Prime Rate, minus one percent (1%) shall be the Prime
Rate.
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Use of either
of said Prime Rate is not to be construed as a warranty or
representation that such rates are more favorable than another rate
or index, that rates on other loans or credit facilities may not be
based on other indices or that rates on loans to others may not be
made below either of such Prime Rates. At Lender’s
sole discretion, any interest rate increase will take the form of
higher periodic payments, a greater balloon payment (if
applicable), and/or an increase in the number of periodic
payments.
The interest is
calculated on a 360-day factor applied on a 365-day year, or a
366-day year, in the event that the year is a leap year, on the
unpaid principal to the date of such installment
paid. Provided, however, that in the event the interest
rate reaches the maximum rate allowed by applicable law, said
maximum legal rate shall be computed on a full calendar year
365/365 days basis or on a 366/366 days basis, in the event that
the year is a leap year. The interest charged and herein
contracted for will not exceed the maximum allowed by law or 18%,
whichever is lower.
To the extent
allowed by law, all matured unpaid amounts will bear interest
computed on a full calendar year 365/365 days basis or on a 366/366
days basis, in the event that the year is a leap year, at the
highest legal rate of interest allowed by Texas law, unless Federal
law allows a higher interest rate, in which case, Borrower agrees
to pay the rate allowed by Federal law or 18%, whichever is
lower. If applicable law does not set a maximum rate of
interest for matured unpaid amounts, then Borrower agrees that the
maximum rate for such amounts shall be eighteen percent (18%) per
annum.
To the extent
allowed by law, as the late payment charge under this Agreement,
Bank may in its sole discretion (i) increase the interest on the
principal portion of any payment amount that is not received by the
payment due date to the maximum rate allowed by law, computed on a
full calendar year basis from the payment due date until paid, or
(ii) should any payment not be made within ten (10) days of the due
date, require Borrower to pay a one time “late charge”
per late payment equal to five percent (5%) of the amount of the
past due principal and interest of such payment, with a minimum of
$10.00 and a maximum of $1,500.00 per late payment. The
“late charge” may be assessed without notice, and shall
be immediately due and payable. This provision is
inapplicable if the outstanding indebtedness under the Note is
accelerated. No late charge will be assessed on any
payment when the only delinquency is due to late charges assessed
on earlier payment and the payment is otherwise a full
payment.
Notwithstanding
anything contained herein to the contrary, if the Loan is subject
to the provisions of 24 Code of Federal Regulations Part 201 (Title
1 Property Improvement and Manufactured Home Loans), then the
following late charge provisions shall be applicable to the
exclusion of any other late charge and/or default interest
provisions in any instrument relating to any past due installment
of principal and/or interest due under the
Note. Borrower agrees to pay to Lender a late charge for
installments of principal and interest which are in arrears for
fifteen (15) calendar days or more. The late charge
shall be in an amount equal to the lesser of (a) five percent (5%)
of each late installment of principal and interest, up to a maximum
of $10.00 per installment for any property improvement loan and
$15.00 per installment for any manufactured home loan, or (b) the
maximum amount permitted by applicable Federal or State
Law. The sum of such late charges plus the interest
charged under the Note and other charges deemed interest by law,
shall be limited to the maximum non-usurious amount
permitted by applicable Federal or State
Law. This provision is inapplicable if the outstanding
indebtedness under the Note is accelerated or otherwise demanded in
full.
The outstanding
and unpaid principal of this Note and all accrued interest are
payable as follows:
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Number of
Payments
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Frequency
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Amount of
Payments
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When
Payments are Due
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SEE ATTACHED
ADDENDUM TO REAL ESTATE LIEN NOTE
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Final
Maturity Date: August 29, 2009
Any outstanding
and unpaid principal, all accrued and unpaid interest, and all
fees, accrued and unpaid late charges and/or other charges incurred
by, or on behalf of, Borrower, which remain due and owing on the
Final Maturity Date are due and payable on such date.
All payments
shall be made to Lender at 1600 FM Road 802, Brownsville, Cameron
County, Texas 78520.
Each payment
shall be applied as of its scheduled due date and in the order of
application as the Lender in its sole discretion may from time to
time elect.
The failure of
Borrower to pay any of the amounts due hereunder when the same is
due and payable shall permit Lender at its option, after the
expiration of any applicable grace period, to accelerate the
maturity, without notice to Borrower, of all, or any portion, of
the remaining unpaid principal balance outstanding and all accrued
and unpaid interest and all accrued and unpaid late charges of this
Note, whereupon the same shall be due and payable
immediately.
Lender, at its
discretion, may declare all sums owing by Borrower (including
endorsers and/or guarantors) immediately due and payable upon
deeming itself to be adversely affected and/or insecure by reason
of any material change in any of Borrower’s (including any
endorsers and/or guarantors) net worth, or by reason of any other
adverse material change in the financial condition whether or not
described herein.
BORROWER AND
LENDER INTEND THAT THE LOAN EVIDENCED BY THIS NOTE (THE
“LOAN”) SHALL BE IN STRICT COMPLIANCE WITH APPLICABLE
USURY LAWS. IF AT ANY TIME ANY INTEREST CONTRACTED FOR,
CHARGED OR RECEIVED UNDER THIS NOTE OR OTHERWISE IN CONNECTION WITH
THE LOAN WOULD BE USURIOUS UNDER APPLICABLE LAW, THEN REGARDLESS OF
THE PROVISION OF THIS NOTE OR THE DOCUMENTS AND INSTRUMENTS
EVIDENCING, SECURING OR OTHERWISE EXECUTED IN CONNECTION WITH THE
LOAN OR ANY ACTION OR EVENT (INCLUDING, WITHOUT LIMITATION,
PREPAYMENT OF PRINCIPAL HEREUNDER OR ACCELERATION OF MATURITY BY
THE LENDER) WHICH MAY OCCUR WITH RESPECT TO THIS NOTE OR THE LOAN,
IT IS AGREED THAT ALL SUMS DETERMINED TO BE USURIOUS SHALL BE
IMMEDIATELY CREDITED BY THE LENDER AS A PAYMENT OF PRINCIPAL
HEREUNDER, OR IF THIS NOTE HAS ALREADY BEEN PAID, IMMEDIATELY
REFUNDED TO THE BORROWER. ALL COMPENSATION WHICH
CONSTITUTES INTEREST UNDER APPLICABLE LAW IN CONNECTION WITH THE
LOAN SHALL BE AMORTIZED, PRORATED, ALLOCATED AND SPREAD OVER THE
FULL PERIOD OF TIME ANY INDEBTEDNESS IS OWING BY BORROWER, TO THE
GREATEST EXTENT PERMISSIBLE WITHOUT EXCEEDING THE APPLICABLE
MAXIMUM RATE ALLOWED BY APPLICABLE LAW IN EFFECT FROM TIME TO TIME
DURING SUCH PERIOD.
In no event
shall the provisions of Chapter 346 of the Texas Finance Code
(which regulates certain revolving loan accounts and revolving
tri-party accounts) apply to the Loan.
IN THE EVENT
ANY ITEM, ITEMS, TERMS OR PROVISIONS CONTAINED IN THIS INSTRUMENT
ARE IN CONFLICT WITH THE LAWS OF THE STATE OF TEXAS OR FEDERAL LAW,
THIS INSTRUMENT SHALL BE AFFECTED ONLY AS TO ITS APPLICATION TO
SUCH ITEM, ITEMS, TERMS OR PROVISIONS, AND SHALL IN ALL OTHER
RESPECTS REMAIN IN FULL FORCE AND EFFECT. IT IS
UNDERSTOOD AND AGREED THAT IN NO EVENT AND UPON NO CONTINGENCY
SHALL THE BORROWER OR ANY PARTY LIABLE THEREON, OR HEREFORE, BE
REQUIRED TO PAY INTEREST IN EXCESS OF THE RATE ALLOWED BY THE LAWS
OF THE STATE OF TEXAS OR FEDERAL LAW, IF SUCH LAW PERMITS A GREATER
RATE OF INTEREST, THE INTENTION OF THE PARTIES BEING TO CONFORM
STRICTLY TO THE USURY LAWS AS NOW OR HEREINAFTER CONSTRUED BY THE
COURTS HAVING JURISDICTION.
THE BORROWER,
ENDORSERS, SURETIES, GUARANTORS AND ALL PERSONS TO BECOME LIABLE ON
THIS NOTE (THE “OBLIGORS”) HEREBY, JOINTLY AND
SEVERALLY, WAIVE EXPRESSLY ALL NOTICES OF OVERDUE INSTALLMENT
PAYMENTS, AND DEMANDS FOR PAYMENT THEREOF, NOTICES OF INTENTION TO
ACCELERATE MATURITY, NOTICES OF ACTUAL ACCELERATION OF MATURITY,
PRESENTMENT, DEMAND FOR PAYMENT, NOTICES OF DISHONOR, PROTEST,
NOTICES OF PROTEST, AND DILIGENCE IN COLLECTION
HEREOF. EACH OBLIGOR CONSENTS THAT THE LENDER OR OTHER
HOLDER OF THIS NOTE MAY AT ANY TIME, AND FROM TIME TO TIME, UPON
REQUEST OF OR BY AGREEMENT WITH ANY OF THEM, RENEW THIS NOTE AND/OR
EXTEND THE DATE OF MATURITY HEREOF OR CHANGE THE TIME OR METHOD OF
PAYMENTS WITHOUT NOTICE TO ANY OF THE OTHER OBLIGORS, MAKERS,
SURETIES OR ENDORSERS, WHO SHALL REMAIN BOUND FOR THE PAYMENT
HEREOF. OBLIGORS WAIVE EXPRESSLY THE LATE FILING OR ANY
SUIT OR CAUSE OF ACTION HEREON, OR ANY DELAY IN THE HANDLING OF ANY
COLLATERAL. OBLIGORS AGREE THAT HOLDER’S
ACCEPTANCE OF PARTIAL OR DELINQUENT PAYMENTS OR FAILURE OF HOLDER
TO EXERCISE ANY RIGHT OR REMEDY CONTAINED HEREIN OR IN ANY
INSTRUMENT GIVEN AS SECURITY FOR THE PAYMENT OF THIS NOTE SHALL NOT
BE A WAIVER OF ANY OBLIGATION OF THE OBLIGORS OR CONSTITUTE WAIVER
OF ANY PRIOR OR SUBSEQUENT DEFAULT. THE HOLDER MAY
REMEDY ANY DEFAULT WITHOUT WAIVING THE DEFAULT REMEDIED AND MAY
WAIVE ANY DEFAULT WITHOUT WAIVING ANY OTHER PRIOR OR SUBSEQUENT
DEFAULT.
To the extent
allowed by law, as security for this Note, and all other
indebtedness which may at any time be owing by Borrower (and any
endorsers and/or guarantors hereof) to Lender or other Lender
hereof, Borrower (and any endorsers and/or guarantors hereof) gives
to Lender or other Holder hereof, a security interest, a lien and
contractual right of set-off in and to all of the Borrower’s
(and any endorsers and/or guarantors hereof) money, credits,
deposit accounts, accounts and/or other property now in, or at any
time hereafter coming within, the custody or control of Lender or
other Holder hereof, or any member bank or branch bank of
International Bancshares Corporation, whether held in general or
special account or deposit, or for safekeeping or
otherwise. Every such security interest and right of
set-off may be exercised without demand or notice to Borrower (and
any endorsers and/or guarantors hereof). No security
interest or right