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Exhibit 10.4
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LOAN NO. LOAN NAME ACCOUNT NO. NOTE DATE RATE NOTE AMOUNT MATURITY INITIALS
<S> <C> <C> <C> <C> <C> <C>
THOMAS M. PIERCY 04/19/00 PRIME + 1.5 $100,000.00 DEMAND or TDW
9% + 1.5 04/19/02
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(For Bank Purposes Only-AC)
PROMISSORY NOTE
MATRIX BANCORP, INC.
1. DATE AND PARTIES. The date of this Promissory Note (Note) is April 19,
2000. This Note evidences a loan which includes all extensions, renewals,
modifications and substitutions (Loan). The parties to this Note and Loan
are:
BORROWER:
THOMAS M. PIERCY
450 SOUTH FRANKLIN
DENVER, COLORADO 80209
Social Security # ###-##-####
BANK:
MATRIX BANCORP, INC.
a COLORADO corporation
1380 LAWRENCE STREET, SUITE 1400 DENVER, COLORADO 80204
Tax I.D. # 84-1233716
2. NAMES. The term "Bank" shall include any person or firm that holds this
Note. The pronouns "you, your" refer to Borrower, individually and
together, and "we, us, our" refer to Bank.
3. PROMISE TO PAY. For value received, you promise to pay to our order at
our office at the above address, or such other place as we may designate,
the sum of $100,000.00 (Principal) plus interest from April 19, 2000, on
the unpaid principal balance at an annual rate of 1.5 percentage points
above the Special Prime Rate (which rate is hereafter defined) until this
Note matures or the obligation is accelerated. The Special Prime Rate is
defined as WALL STREET JOUNAL PRIME RATE and is quoted by the Wall Street
Journal, as adjusted and announced or published from time to time. The
Special Prime Rate, plus 1.5 percentage points, may also be referred to
hereafter as the "Contract Rate."
The Contract Rate is the sum of the Special Prime Rate (9%) plus 1.5
percentage points. The effective Contract Rate today is 10.5%. The Special
Prime Rate today is not necessarily the lowest rate at which we lend our
funds. The Special Prime Rate is only an index rate from which interest
rates actually charged to customers may be measured. The use of the Special
Prime Rate is for convenience only and does not constitute a commitment by
us to lend money at a preferred rate of interest. The Special Prime Rate is
a benchmark for pricing certain types of loans. Depending on the
circumstances, such as the amount and term of the loan, the
creditworthiness of the borrower or any guarantor, the presence and nature
of collateral and other relationships between a borrower and we, loans may
be priced at, above or below the Special Prime Rate.
All adjustments to the Contract Rate will be made on each day that the
Special Prime Rate changes. Any increase to the Special Prime Rate may be
carried over to a subsequent adjustment date without resulting in a waiver
or forfeiture of such adjustment, provided an adjustment to the Contract
Rate is made within one year from the date of such increase. Any change in
the Contract Rate will take the form of different payment amounts. After
maturity or acceleration, the unpaid balance shall continue to bear
interest at the Contract Rate until this Note is paid in full. The Loan and
this Note are limited to the maximum lawful amount of interest (Maximum
Lawful Interest) permitted under federal and state laws. If the interest
accrued and collected exceeds the Maximum Lawful Interest as of the time of
collection, such excess shall be applied to reduce the principal amount
outstanding, unless otherwise required by law. If or when no principal
amount is outstanding, any excess interest shall be refunded to you
according to the actuarial method. Unless otherwise required by law, all
fees and charges, accrued, assessed or collected shall be amortized and
prorated over the full term of the Loan for purposes of determining the
Maximum Lawful Interest. Interest shall be computed on the basis of the
actual calendar year and the actual number of days elapsed.
All unpaid principal and accrued interest are due and payable upon demand.
Until demand is made, accrued interest is due and payable in 7 quarterly
payments on the 19th day of each third month, beginning July 19, 2000, or
the day following if the payment day is a holiday or is a non-business day
for Bank. Unless paid prior to maturity or demand is made, the last
scheduled payment plus all unpaid principal, accrued interest, costs and
expenses are due and payable on April 19, 2002, which is the date of
maturity. If the Contract Rate changes, any remaining payments may be a
different amount. All amounts shall be paid in legal U.S. currency. Any
payment made with a check will constitute payment only when collected.
4. EFFECT OF PREPAYMENT. You may prepay this Loan in full, subject to any
prepayment penalty or minimum charge as agreed to below. However, no
partial prepayment shall excuse or defer your subsequent payments or
entitle you to a release of any collateral. Interest will cease to accrue
on the amounts prepaid on the day actually credited by us.
5. MINIMUM FINANCE CHARGE. If you pay this Note in full before the maturity
date or otherwise, you agree to pay us a minimum finance charge of $35.00
or the earned finance charge, whichever amount is greater.
6. LATE CHARGE. You agree to pay us a late charge equal to 5 % of the unpaid
installment or $5.00, whichever is greater, but in no event more than
$150.00, if payment is not made in full on or before 15 days after the
scheduled due date.
7. SET-OFF. You agree that we may exercise our right of set-off to pay any
or all of the outstanding Principal and accrued interest, costs and
expenses, attorneys' fees, and advances due and owing on this Note against
any obligation we may have, now or hereafter, to pay money, securities or
other property to you. This includes, without limitation:
A. any deposit account balance, securities account balance or
certificate of deposit balance you have with us whether general,
special, time, savings or checking;
B. any money owing to you on an item presented to us or in our
possession for collection or exchange; and
C. any repurchase agreement or any other non-deposit obligation or
credit in your favor.
If any such money, securities or other property is also owned by some other
person who has not agreed to pay this Note (such as another depositor on a
joint account) our right of set-off will extend to the amount which could
be withdrawn or paid directly to you on your request, endorsement or
instruction alone. In addition, where you may obtain payment from us only
with the endorsement or consent of someone who has not agreed to pay this
Note, our right of set-off will extend to your interest in the obligation.
Our right of set-off will not apply to an account or other obligation if it
clearly appears that your rights in the obligation are solely as a
fiduciary for another, or to an account, which by its nature and applicable
law (for example an IRA or other tax-deferred retirement account), must be
exempt from the claims of creditors. You hereby appoint us as your
attorney-in-fact and authorize us to redeem or obtain payment on any
certificate of deposit in which you have an interest in order to exercise
our right of set-off. Such authorization applies to any certificate of
deposit even if not matured. You further authorize us to withhold any early
withdrawal penalty without liability in the event such penalty is
applicable as a result of our set-off against a certificate of deposit
prior to its maturity.
Our right of set-off may be exercised:
A. without prior demand or notice;
B. without regard to the existence or value of any Collateral securing
this Note; and
C. without regard to the number or creditworthiness of any other
persons who have agreed to pay this Note.
We will not be liable for dishonor of a check or other request for payment
where there are insufficient funds in the account (or other obligation) to
pay such request because of our exercise of our right of set-off. You agree
to indemnify and hold us harmless from any person's claims and the costs
and expenses, including without limitation, attorneys' fees and paralegal
fees, incurred as a result of such claims or arising as the result of our
exercise of our right of set-off.
8. EVENTS OF DEFAULT. You shall be in default upon the occurrence of any of
the following events, circumstances or conditions (Events of Default):
A. Failure by any party obligated on this Note or any other obligations
you have with us to make payment when due; or
B. A default or breach by you or any co-signer, endorser, surety, or
guarantor under any of the terms of this Note, any construction loan
agreement or other loan agreement, any security agreement, mortgage,
deed to secure debt, deed of trust, trust deed, or any other
document or instrument evidencing, guarantying, securing or
otherwise relating to this Note or any other obligations you have
with us; or
C. The making or furnishing of any verbal or written representation,
statement or warranty to us which is or becomes false or incorrect
in any material respect by or on behalf of you, or any co-signer,
endorser, surety or guarantor of this Note or any other obligations
you have with us; or
D. Failure to obtain or maintain the insurance coverages required by
us, or insurance as is customary and proper for any collateral (as
herein defined); or
E. The death, dissolution or insolvency of, the appointment of a
receiver by or on behalf of, the assignment for the benefit of
creditors by or on behalf of, the voluntary or involuntary
termination of existence by, or the commencement of any proceeding
under any present or future federal or state insolvency, bankruptcy,
reorganization, composition or debtor relief law by or against you,
or any co-signer, endorser, surety or guarantor of this Note or any
other obligations you have with us; or
F. A good faith belief by us at any time that we are insecure with
respect to you, or any co-signer, endorser, surety or guarantor,
that the
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prospect of any payment is impaired or that any collateral (as
herein defined) is impaired; or
G. Failure to pay or provide proof of payment of any tax, assessment,
rent, insurance premium, escrow or escrow deficiency on or before
its due date; or
H. A transfer of a substantial part of your money or property.
9. REMEDIES ON DEFAULT. On or after the occurrence of an Event of Default,
at our option, all or any part of this Note shall be immediately due and
payable after we give any notice required by law. When the Event of Default
is the failure to make a payment required under the Loan within ten days of
the payment due date, we will, only as required by law, provide you with a
Notice of Right to Cure. If such notice is required by law, you will have
20 days after such notice is sent to make the required payment. We may
exercise all rights and remedies provided by law, equity, this Note, any
mortgage, deed of trust or similar instrument and any other security, loan,
guaranty or surety agreements pertaining to this Note and all other
obligations which you owe us. Bank is entitled to all rights and remedies
provided at law or equity whether or not expressly stated in this Note. By
choosing any remedy, Bank does not waive its right to an immediate use of
any other remedy if the event of default continues or occurs again.
10. COLLECTION EXPENSES. On or after an Event of Default, we may recover from
you all expenses of collection, reasonable expenses in realizing on any
security interest, and other related fees, charges, and expenses, to the
extent not prohibited by law. Any such fees and expenses shall be added to
the Principal of this Note and shall accrue interest at the same rate as
provided for in this Note.
11. ATTORNEYS' FEES. Upon default of this Note and to the extent not
prohibited by law, we may recover from you reasonable attorneys' fees (not
exceeding 15 percent of the Loan at default) incurred by us. Any such fees
and expenses shall be added to the principal amount of this Note, shall
accrue interest at the same rate as this Note and shall be secured by the
Collateral you have granted us.
12. WAIVER AND CONSENT BY YOU AND OTHER SIGNERS. Regarding this Note, to the
extent not prohibited by law, you and any other signers:
A. waive protest, presentment for payment, demand, notice of
acceleration, notice of intent to accelerate and notice of dishonor.
B. consent to any renewals and extensions for payment on this Note,
regardless of the number of such renewals or extensions.
C. consent to our release of any borrower, endorser, guarantor, surety,
accommodation maker or any other co-signer.
D. consent to the release, substitution or impairment of any
collateral.
E. consent that you are, or any one of you is, authorized to modify the
terms of this Note or any instrument securing, guarantying or
relating to this Note.
F. consent to our right of set-off as well as any right of set-off of
any bank participating in the Loan.
G. consent to any and all sales, repurchases and participations of this
Note to any person in any amounts and waive notice of such sales,
repurchases or participations of this Note.
13. PAYMENTS APPLIED. All payments, including but not limited to regular
payments or prepayments, received by us shall be applied first to costs,
then to accrued interest and the balance, if any, to Principal unless
otherwise required by law.
14. LOAN PURPOSE. You represent and warrant that you shall only use the
proceeds of this Note for personal, family or household purposes.
15. NO CREDIT INSURANCE. You do not desire, or you understand that you are
not eligible for, any credit insurance.
16. FINANCIAL STATEMENTS. Until this Note is paid in full, you shall furnish
us, upon our request, your current financial statement, which you certify
to be true and accurate.
17. JOINT AND SEVERAL. You and all other makers, co-signers, sureties and
guarantors shall be jointly and severally liable under this Note.
18. GENERAL PROVISIONS.
A. TIME IS OF THE ESSENCE. Time is of the essence in your performance
of all duties and obligations imposed by this Note.
B. NO WAIVER BY US. Our course of dealing, or our forbearance from, or
delay in, the exercise of any of our rights, remedies, privileges or
right to insist upon your strict performance of any provisions
contained in this Note, or other loan documents, shall not be
construed as a waiver by us, unless any such waiver is in writing
and is signed by us.
C. AMENDMENT. The provisions contained in this Note may not be
amended, except through a written amendment which is signed by you
and us.
D. INTEGRATION CLAUSE. This written Note and all documents executed
concurrently herewith, represent the entire understanding between
the parties as to the Obligations and may not be contradicted by
evidence of prior, contemporaneous, or subsequent oral agreements of
the parties.
E. FURTHER ASSURANCES. You agree, upon our request and within the time
we specify, to provide any information, and to execute, acknowledge,
deliver and record or file such further instruments or documents as
we may require to secure this Note or confirm any lien.
F. GOVERNING LAW. This Note shall be governed by the laws of the State
of COLORADO, provided that such laws are not otherwise preempted by
federal laws and regulations.
G. FORUM AND VENUE. In the event of litigation pertaining to this
Note, the exclusive forum, venue and place of jurisdiction shall be
in the State of COLORADO, unless otherwise designated in writing by
us or otherwise required by law.
H. SUCCESSORS. This Note shall inure to the benefit of and bind the
heirs, personal representatives, successors and assigns of the
patties; provided however, that you may not assign, transfer or
delegate any of the rights or obligations under this Note.
I. NUMBER AND GENDER. Whenever used, the singular shall include the
plural, the plural the singular, and the use of any gender shall be
applicable to all genders.
J. DEFINITIONS. The terms used in this Note, if not defined herein,
shall have their meanings as defined in the other documents executed
contemporaneously, or in conjunction, with this Note.
K. PARAGRAPH HEADINGS. The headings at the beginning of any paragraph,
or any subparagraph, in this Note are for convenience only and shall
not be dispositive in interpreting or construing this Note.
L. IF HELD UNENFORCEABLE. If any provision of this Note shall be held
unenforceable or void, then such provision to the extent not
otherwise limited by law shall be severable from the remaining
provisions and shall in no way affect the enforceability of the
remaining provisions nor the validity of this Note.
M. CHANGE IN APPLICATION. You will notify us in writing prior to any
change in your name, address, or other application information.
N. NOTICE. All notices under this Note must be in writing. Any notice
given by us to you will be effective upon personal delivery or 24
hours after mailing by first class United States mail, postage
prepaid, addressed to you at the address indicated below your name
on page one of this Note. Any notice given by you to us will be
effective upon receipt by us at the address indicated below our name
on page one of this Note. Such addresses may be changed by written
notice to the other party.
19. RECEIPT OF COPY. You acknowledge that you have read and received a copy
of this Note by your signature below.
BORROWER:
/s/
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THOMAS M. PIERCY
Individually
