Third Amended and Restated Subordinate Promissory Note



 Exhibit 10.33 
 

 
 THIRD AMENDED AND RESTATED SUBORDINATE PROMISSORY NOTE 
  

			
	$20,000,000.00	  	June 19, 2009

 1. COVENANT TO PAY. 
 1.1. Promise to Pay. FOR VALUE RECEIVED, PLAINS CAPITAL CORPORATION, a Texas corporation (herein called
“Maker”, whether one or more), promises to pay to the order of JP MORGAN CHASE BANK, NA, a national banking association [herein, together with all subsequent holders of this Subordinated Promissory Note
(“Note”), called “Payee”], on or before the Maturity Date (as defined below), as hereinafter provided, the principal sum of TWENTY MILLION AND NO/100 DOLLARS ($20,000,000.00), or so much thereof as may
actually be outstanding hereunder, together with interest on the unpaid principal balance from time to time outstanding at the rate herein specified and otherwise in strict accordance with the terms and provisions hereof. This Note is not a
deposit and is not federally insured. 
 2. INTEREST RATE COMPUTATION. 
 2.1. Interest Rate. Except as otherwise provided herein, interest on the principal balance of this Note outstanding from time
to time shall accrue at the lesser of (a) the Applicable Rate (as defined herein) or (b) the Maximum Lawful Rate (as defined herein). 
 2.2. Definitions. As used in this Note and the Loan Documents, the following terms shall have the respective meanings indicated below: 
 “Adjusted CB Floating Rate” means the sum of (i) 2.35% per annum plus (ii) the CB Floating Rate. 

“Adjusted One Month LIBOR Rate” means the sum of (i) 2.50% per annum plus (ii) the quotient of
(a) the interest rate determined by the Payee by reference to the Page to be the rate at approximately 11:00 am. London time, on such date or, if such date is not a Business Day, on the immediately preceding Business Day for dollar deposits
with a maturity equal to one (1) month, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to dollar deposits in the London interbank market with a maturity equal to one (1) month. 
 “Applicable Rate” shall mean, at any time, and as applicable to all or a portion of the principal balance hereof, the rate
of interest per annum equal to the Adjusted CB Floating Rate in effect from day to day; provided, however, subject to the limitations stated herein, Maker may elect in accordance with the procedures set forth below to have interest accrue and be
paid on all or a portion of the outstanding principal balance hereof at a rate per annum equal to the LIBOR Adjusted Rate (as defined below). 
 “Business Day” means (i) with respect to the Adjusted One Month LIBOR Rate and any borrowing, payment or rate selection of the LIBOR Adjusted Rate, a day (other than a Saturday or
Sunday) on which banks generally are open in Texas and/or New York for the conduct of substantially all of their commercial lending activities and on which dealings in United States dollars are carried on in the London interbank market and
(ii) for all other purposes, a day other than a Saturday, Sunday or any other day on which national banking associations are authorized to be closed. 
  


					
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 “CB Floating
Rate” means the Prime Rate; provided that the CB Floating Rate shall, on any day, not be less than the Adjusted One Month LIBOR Rate. The CB Floating Rate is a variable rate and any change in the CB Floating Rate due to any change in
the Prime Rate or the Adjusted One Month LIBOR Rate is effective from and including the effective date of such change in the Prime Rate or the Adjusted One Month LIBOR Rate, respectively. 
 “Charges” shall have the meaning specified in Section 5.4 hereof. 
 “Event of Default” shall have the meaning specified in Section 4.1 hereof. 
 “LIBOR Increment” shall mean the portion of the outstanding principal balance hereof specified by Maker to Payee in
accordance herewith to accrue interest at the LIBOR Adjusted Rate effective as of the applicable LIBOR Period Commencement Date; provided, however, in no event shall any such LIBOR Increment be less than Five Hundred Thousand and No/100 Dollars
($500,000.00). 
 “LIBOR Adjusted Rate” shall mean the LIBOR Rate, plus five percent (5.00%) per annum.

 “LIBOR Period” shall mean a period of ninety (90) days from the LIBOR Period Commencement Date.
Notwithstanding the foregoing, in no event shall any LIBOR Period extend beyond the Maturity Date. 
 “LIBOR Period
Commencement Date” shall mean the proposed commencement of the applicable LIBOR Period. 
 “LIBOR Rate”
shall mean, with respect to a LIBOR Increment, the rate of interest per annum equal to the interest settlement rate for U.S. Dollars as published by the British Bankers Association as of 11:00 a.m. London Time two Business Days before the first day
of such LIBOR Period, for the approximate principal amount of the applicable LIBOR Increment, and for a period comparable to the applicable LIBOR Period. If no such rate is published by the British Bankers Association, then the comparable LIBOR or
Eurodollar rate published in The Wall Street Journal shall be utilized and if such rate is not available then no LIBOR Adjusted Rate may be elected pursuant to this Note. 
 “Loan Agreement” shall mean that certain Amended and Restated Subordinate Credit Agreement, dated of even date herewith, by
between Payee, as lender, and Maker, as borrower. 
 “Loan Documents” shall have the meaning specified in
Section 5.1 hereof. 
 “Maturity Date” shall mean the date on which this Note matures, whether by
acceleration, lapse of time or otherwise; provided, that such date shall be October 27, 2015, unless earlier accelerated as permitted herein, in the Loan Agreement or in any other Loan Document. 
 “Maximum Lawful Rate” shall have the meaning specified in Section 5.4 hereof. 
 “Page” means Reuters Screen LIBOR01, formerly known as Page 3750 of the Moneyline Telerate Service (together with any
successor or substitute, the “Service”) or any successor or substitute page of the Service providing rate quotations comparable to those currently provided on such page of the Service, as determined by the Payee from time to time
for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market. 
  


					
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 “Prime
Rate” means the rate of interest per annum announced from time to time by the Payee as its prime rate. The Prime Rate is a variable rate and each change in the Prime Rate is effective from and including the date the change is announced as
being effective. THE PRIME RATE IS A REFERENCE RATE AND MAY NOT BE THE PAYEE’S LOWEST RATE. 
 “Regulation
D” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve System. 
 “Reserve Requirement” means the
maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves) which is imposed under Regulation D. 
 All other capitalized terms used herein and not otherwise defined shall have the meaning given such terms in the Loan Agreement. 
 2.3. Interest Limitation Recoupment. Notwithstanding anything in this Note to the contrary, if at any time (i) interest at the Applicable Rate, and (ii) the Charges computed over
the full term of this Note, exceed the Maximum Lawful Rate, then the rate of interest payable hereunder, together with all Charges, shall be limited to the Maximum Lawful Rate; provided, however, that any subsequent reduction in the Applicable Rate
shall not cause a reduction of the rate of interest payable hereunder below the Maximum Lawful Rate until the total amount of interest earned hereunder, together with all Charges, equals the total amount of interest which would have accrued at the
Applicable Rate if such interest rate had at all times been in effect. Changes in the Applicable Rate resulting from a change in the Prime Rate shall be subject to the provisions of this paragraph. 
 2.4. Computation Period. Interest on the indebtedness evidenced by this Note shall be computed on the basis of a 360-day year
and shall accrue on the actual number of days any principal balance hereof is outstanding. 
 2.5. LIBOR Election.
If Maker elects to have the LIBOR Adjusted Rate apply, it shall advise Payee in writing by delivery to Payee of the LIBOR Election Notice attached hereto as Exhibit “A”, of its election and the LIBOR Period and LIBOR Increment for
which Maker desires said rate to apply not later than 10:00 am., Central Standard Time or Central Daylight Time (as applicable), two (2) Business Days prior to the LIBOR Period Commencement Date. Any such election may be made only while no
Event of Default is in existence and no event has occurred or condition exists which with notice and/or lapse of time would constitute an Event of Default. After Maker has designated a LIBOR Increment to which the LIBOR Adjusted Rate shall apply,
such rate shall apply to the LIBOR Increment for the duration of the LIBOR Period. If Maker elects the LIBOR Adjusted Rate, but the applicable LIBOR Period will commence on a date which is not a Business Day, such LIBOR Period shall be deemed to
commence on the next Business Day after it would otherwise commence, and any interest which accrues hereunder in the interim shall accrue at the Applicable Rate. At any one time during the term hereof, no more than five (5) LIBOR Increments may
be outstanding under this Note. 
 2.5.1 Failure of Election. Notwithstanding anything herein to
the contrary, if the Maker elects the LIBOR Adjusted Rate to apply, but Payee would be unable for any reason to obtain funds or a quote for funds in the London InterBank Market in the amount of the LIBOR Increment elected for the applicable LIBOR
Period and LIBOR Period Commencement Date elected, interest on the outstanding principal balance of this Note shall accrue at the Adjusted CB Floating Rate unless and until an election, in accordance with the provisions hereof, of a new LIBOR
Adjusted Rate, LIBOR Increment, LIBOR Period and LIBOR Period Commencement

  


					
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Date is made by Maker, and Payee is then able to obtain such funds or a quote for funds in the London InterBank Market. In the absence of an effective election by Maker of the LIBOR Adjusted Rate
in accordance with the above procedures prior to the expiration of the then current LIBOR Period with respect to any LIBOR Increment, interest on such LIBOR Increment shall accrue at the Adjusted CB Floating Rate, effective immediately upon the
expiration of such LIBOR Period. 
 2.5.2 Illegality. Notwithstanding any other provision of this
Note to the contrary, if it becomes unlawful for Payee to honor its obligation to allow all or a portion of the outstanding principal balance hereof to accrue interest based on the LIBOR Rate, then Payee shall promptly notify Maker thereof and
Payee’s obligation to allow interest to accrue based on the LIBOR Rate shall be suspended until such time as Payee may again allow interest to accrue based upon the LIBOR Rate. If the obligation of Payee to allow interest to accrue based upon
the LIBOR Rate is so suspended, all indebtedness evidenced hereby then accruing interest based upon the LIBOR Rate shall automatically convert to interest based on the Adjusted CB Floating Rate on the last days(s) of the then current LIBOR Period(s)
for such indebtedness or on such earlier date as Payee may specify to Maker. 
 3. PAYMENTS. 
 3.1. Payment Schedule. Interest, calculated on a daily basis, shall be payable quarterly in arrears on the first day of each
December, March, June and September, commencing on September 1, 2009, and continuing on the first day of each successive December, March, June and September thereafter until the Maturity Date, at which time all accrued and unpaid interest
hereon shall be due and payable in full. Commencing on September 1, 2011, and continuing on the first day of each successive December, March, June and September thereafter until the Maturity Date, in addition to and not in lieu of each interest
installment due hereunder, principal shall be due and payable in quarterly installments of $1,000,000.00 each. The aggregate outstanding principal balance under the Note plus all accrued but unpaid interest thereon shall be due and payable in full
on the Maturity Date. 
 3.2. Application. All payments on this Note shall, prior to an Event of Default, be
applied in the following order: (i) the payment of accrued but unpaid interest hereon, (ii) the payment or reimbursement of any expenses, costs or obligations (other than the principal hereof and interest hereon) for which Maker shall be
obligated or Payee entitled pursuant to the provisions hereof or of the other Loan Documents, and (iii) the payment of all or any portion of the principal balance then outstanding hereunder, in either the direct, or inverse, order of maturity.
After an Event of Default, all payments on the Note shall, at the sole option of Payee, be applied from time to time and in any order, to the foregoing items. 
 3.3. Place. All payments hereunder shall be made to Payee at JP MORGAN CHASE BANK, N.A., 10 South Dearborn Street, MC: IL1-l235, Chicago, Illinois 60603-2003, or as Payee may from time to
time designate in writing to Maker. 
 3.4. Business Days. If any payment of principal or interest on this Note
shall become due and payable on a Saturday, Sunday or any other day on which Payee is not open for normal business, such payment shall be made on the next succeeding business day of Payee. Any such extension of time for payment shall be included in
computing interest which has accrued and shall be payable in connection with such payment. 
 3.5. Legal Tender.
All amounts payable hereunder are payable in lawful money or legal tender of the United States of America. 
  


					
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 3.6.
Prepayments. 
 3.6.1 Maker shall have the right prior to the Maturity Date, upon ten
(10) days’ prior written notice and upon receipt of any required regulatory approval, to prepay all or any portion (except any portion constituting a LIBOR Increment during its applicable LIBOR Period) of the principal balance owing
hereunder from time to time; provided, however, that (a) if such prepayment is only a partial payment of the then outstanding principal balance hereof, such prepayment shall be accompanied by the payment of all accrued but unpaid interest on
the portion of the outstanding principal balance of the Note being so paid through the date the prepayment is made, and (b) for same day credit all monies shall be received at Payee’s office as specified in Section 3.3 hereof
on or before 12:00 noon, Central Standard Time or Central Daylight Time (as applicable). All monies received after this time shall be deemed received on the following day and shall continue to accrue interest at the Applicable Rate to the date funds
are deemed received. 
 3.6.2 Maker shall have the right to prepay any LIBOR Increment only upon payment
to Payee, at the time of such prepayment, of an amount equal to all costs, fees and penalties which would be incurred in the breaking of a LIBOR contract (whether then actually in existence or a hypothetical contract similar to the typical LIBOR
contracts then in existence) by Payee in connection with such prepayment, such amounts to include that sum which is equal to the excess of (i) the interest that would have been payable by Maker for such LIBOR Increment for the remainder of the
applicable LIBOR Period at the applicable LIBOR Rate had such prepayment not been made by Maker, over (ii) the interest to be earned on sums equal to the amount of such LIBOR Increment for the remainder of the applicable LIBOR Period as
invested by Payee in an interest bearing obligation of Payee’s selection, in its sole and absolute discretion. In addition, in any such event, the provisions of the immediately preceding sentence (relating to the obligation of Maker to pay to
Payee certain amounts in the event of the prepayment of a LIBOR Increment prior to the last day of the applicable LIBOR Period) shall apply with respect to any LIBOR Increment prepaid by Maker prior to the last day of the applicable LIBOR Period as
a result of the acceleration by Payee of the outstanding principal balance hereof 
 3.7. Late Charge. In addition
to the payments otherwise specified herein, subject to the provisions of Section 5.4 hereof, if Maker fails, refuses or neglects to pay, in full, any installment or portion of the indebtedness evidenced hereby, within ten (10) days
after same shall be due and payable, then Maker shall be obligated to pay to Payee a late charge equal to five percent (5%) of the amount of such delinquent payment to compensate Payee for Maker’s default and the additional costs and
administrative efforts required by reason of such default; provided, however, Payee will apply any late charge fee collected from Maker to the amount of interest charged at the Default Rate which covers the period for which such late charge was
collected. 
 4. DEFAULT AND REMEDIES. 
 4.1. Default. An “Event of Default” shall occur hereunder if (i) Maker shall fail, refuse or neglect to pay, in full, any installment or portion of the indebtedness
evidenced hereby, within ten (10) days after the same shall become due and payable, whether at the due date thereof as stipulated herein, or upon acceleration (but without any grace period), or (ii) an Event of Default (as defined and used
in any of the other Loan Documents) shall occur under any of the other Loan Documents. 
 4.2. Remedies. If an
Event of Default shall occur under this Note or any of the Loan Documents (as herein defined), then Payee may, at its option, without notice or demand, exercise all remedies provided for, and in accordance with, the Loan Agreement. All remedies
hereunder, under the Loan Documents and at law or in equity shall be cumulative. 
  


					
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 4.3.
Waiver. Except as specifically provided in the Loan Documents, Maker and any endorsers or guarantors hereof severally waive presentment and demand for payment, notice of intent to accelerate maturity, notice of acceleration of maturity,
protest and notice of protest and nonpayment, bringing of suit and diligence in taking any action to collect any sums owing hereunder or in proceeding against any of the rights and collateral securing payment hereof. Maker and any endorsers or
guarantors hereof agree (i) that the time for any payments hereunder may be extended from time to time without notice and consent, (ii) to the acceptance of further collateral, and/or (iii) the release of any existing collateral for the
payment of this Note, all without in any manner affecting their liability under or with respect to this Note. No extension of time for the payment of this Note or any installment hereof shall affect the liability of Maker under this Note or any
endorser or guarantor hereof even though the Maker or such endorser or guarantor is not a party to such agreement. 
 4.4.
No Waiver. Failure of Payee to exercise any of the options granted herein to Payee upon the happening of one or more of the events giving rise to such options shall not constitute a waiver of the right to exercise the same or any other
option at any subsequent time in respect to the same or any other event. The acceptance by Payee of any payment hereunder that is less than payment in full of all amounts due and payable at the time of such payment shall not constitute a waiver of
the right to exercise any of the options granted herein to Payee at that time or at any subsequent time or nullify any prior exercise of any such option without the express written acknowledgment of the Payee. 
 4.5. Collection Costs. Maker agrees to pay all reasonable costs of collection hereof when incurred, including reasonable
attorneys’ fees, whether or not any legal action shall be instituted to enforce this Note. 
 5. MISCELLANEOUS. 

5.1. Subordination; Loan Documents. This Note is issued pursuant to, and is governed by, the Loan Agreement. This Note is
the note defined therein as the “Note”. Furthermore, Maker and Payee agree that this Note and the Loan evidenced hereby are and shall be subordinate and junior in right of payment to all other senior indebtedness of Maker to the
extent necessary, but only to such extent, in accordance with applicable Governmental Requirements for the proceeds of the Loan to be deemed to be a portion of Maker’s “Tier II Capital.” This Note, the Loan Agreement and all the other
documents evidencing or pertaining to the transaction in which the indebtedness evidenced hereby was incurred are, collectively, referred to as the “Loan Documents”. 
 5.2. Notices. All notices, requests, demands or other communications required or permitted to be given pursuant to this
Agreement shall be in writing and given by (i) personal delivery, (ii) expedited delivery service with proof of delivery, or (iii) United States mail, postage prepaid, registered or certified mail, return receipt requested, sent to
the intended addressee at the address set forth on the first page hereof or to such different address as the addressee shall have designated by written notice sent pursuant to the terms hereof and shall be deemed to have been received either, in the
case of personal delivery, at the time of personal delivery, in the case of expedited delivery service, as of the date of first attempted delivery at the address and in the manner provided herein, or in the case of mail, upon deposit in a depository
receptacle under the care and custody of the United States Postal Service. Either party shall have the right to change its address for notice hereunder to any other location within the continental United States by notice to the other party of such
new address at least thirty (30) days prior to the effective date of such new address. For purposes of such notices, the addresses of the parties shall be as follows: 
  



					
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	Payee:	  	If intended for Payee and to be delivered in person, to:
		
		  	 JP Morgan Chase Bank, NA.
 10
South Dearborn Street
 MC: IL1-1235
 Chicago, Illinoi 60603-2003
 Attn.: Timothy Johnson

		
	Maker:	  	 PLAINS CAPITAL CORPORATION
 2911 Turtle Creek Boulevard, Suite 700
 Dallas, Texas 75219
 Attn: Jeff Isom


 5.3. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. THIS NOTE IS PERFORMABLE IN TARRANT COUNTY, TEXAS. Any action or proceeding under or in connection with this Note against Maker or any other
party ever liable for payment of any sums of money payable on this Note may be brought in any state court located in Fort Worth, Tarrant County, Texas, or any federal court in Tarrant County, Texas. Maker and each such other party hereby irrevocably
(i) submits to the nonexclusive jurisdiction of such courts, and (ii) waives any objection it may now or hereafter have as to the venue of any such action or proceeding brought in such court or that such court is an inconvenient forum.

 5.4. Interest Limitation. It is expressly stipulated and agreed to be the intent of Maker and Payee at all
times to comply with the applicable Texas law governing the maximum rate or amount of interest payable on this Note or the indebtedness (“Indebtedness”) evidenced hereby or evidenced or secured by the other Loan Documents (or
applicable United States Federal law to the extent that it permits Payee to contract for, charge, take, reserve or receive a greater amount of interest than under Texas law). If the applicable law 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 Indebtedness, or Payee’s exercise of the option to accelerate the maturity of
this Note, or any prepayment by Maker results in Maker having paid or Payee having received any interest in excess of that permitted by applicable law, then it is Maker’s and Payee’s express intent that all excess amounts theretofore
collected by Payee be credited on the principal balance of this Note and all other Indebtedness (or, if this Note and all other Indebtedness have been or would thereby be paid in full, refunded to Maker), 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 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 term of this Note, then Maker and Payee agree that Payee shall, with reasonable
promptness after Payee discovers or is advised by Maker that interest was received in an amount in excess of the Maximum Lawful Rate, either refund such excess interest to Maker or credit such excess interest against any other Indebtedness then
owing by Maker to Payee. Maker hereby agrees that as a condition precedent to any claim seeking usury penalties against Payee, that Maker will provide written notice to Payee, advising Payee in reasonable detail of the nature and amount of the
violation, and Payee shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest to Maker or crediting such excess interest against any other indebtedness
then owing by Maker to Payee. All sums contracted for, charged or received by Payee for the use, forbearance or detention of the Indebtedness shall, to the extent permitted by applicable law, be amortized or spread, using the actuarial method,
throughout the stated term of the Indebtedness until payment in full so that the rate or amount of interest on account of the

  


					
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Indebtedness does not exceed the Maximum Lawful Rate from time to time in effect and applicable to the Indebtedness for so long as debt is outstanding. In no event shall the provisions of Chapter
346 of the Texas Finance Code (which regulates certain revolving credit loan accounts and revolving triparty accounts) apply to the Indebtedness. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, it is
not the intention of Payee 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. As used herein, the term “Maximum Lawful
Rate” shall mean the maximum lawful rate of interest which may be contracted for, charged, taken, received or reserved by Payee in accordance with the applicable laws of the State of Texas (or applicable United States Federal law to the
extent that it permits Payee to contract for, charge, take, receive or reserve a greater amount of interest than under Texas law), taking into account all Charges (as herein defined) made in connection with the transaction evidenced by this Note and
the other Loan Documents. As used herein, the term “Charges” shall mean all fees and charges, if any, contracted for, charged, received, taken or reserved by Payee in connection with the transactions relating to this Note and the
other Loan Documents or the Indebtedness, which are treated as interest under applicable law. To the extent that Payee is relying on the Texas Finance Code to determine the Maximum Lawful Rate payable on the Indebtedness, Payee will utilize
the “weekly ceiling” specified in Chapter 303 as the applicable ceiling, after taking into consideration all sums paid or agreed to be paid to Payee outside the provisions of this Note for the use, forbearance or detention of
the Indebtedness. To the extent United States federal law permits Payee to contract for, charge or receive a greater amount of interest, Payee will rely on United States federal law instead of the Texas Finance Code, for the purpose of determining
the Maximum Lawful Rate. Additionally, to the extent permitted by applicable law now or hereinafter in effect, Payee may, at its option and from time to time, implement any other method of computing the Maximum Lawful Rate under the Texas Finance
Code as supplemented by the Texas Credit Code, as amended, or under other applicable law by giving notice, if required, to Maker as provided by applicable law now or hereafter in effect. Maker and Payee hereby agree that any and all suits alleging
the contracting for, charging or receiving of usurious interest shall lie in Tarrant County, Texas, and each irrevocably waive the right to venue in any other county. 
 5.5. Captions. The article and section headings used in this Note are for convenience of reference only and shall not affect, alter or define the meaning or interpretation of the text of any
article or section contained in this Note. 
 5.6. Joint and Several Liability. If this Note is executed by more
than one party, each such party shall be jointly and severally liable for the obligations of Maker under this Note. If Maker is a partnership, each general partner of Maker shall be jointly and severally liable hereunder and each such general
partner hereby waives any requirement of law that in the event of a default hereunder Payee exhaust any assets of Maker before proceedings against such general partner’s assets. 
 5.7. AMENDMENT AND RESTATEMENT. THIS NOTE IS AN AMENDMENT AND RESTATEMENT IN ITS ENTIRETY, BUT NOT AN EXTINGUISHMENT, OF THAT
CERTAIN SECOND AMENDED AND RESTATED SUBORDINATE PROMISSORY NOTE IN THE ORIGINAL PRINCIPAL AMOUNT OF $20,000,000.00 EXECUTED BY MAKER AND PAYABLE TO THE ORDER OF PAYEE. 
 5.8. NO ORAL AGREEMENTS. THIS NOTE AND ALL THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT OF MAKER AND PAYEE 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 MAKER AND PAYEE. THERE

  


					
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ARE NO ORAL AGREEMENTS BETWEEN MAKER AND PAYEE. The provisions of this Note and the Loan Documents may be amended or revised only by an instrument in writing signed by the Maker and Payee.

 EXECUTED as of the date and year first above written. 
  

			
	MAKER:
	
	 PLAINS CAPITAL CORPORATION,
 A Texas corporation

		
	By:	 	 /s/ Jeff Isom

	Name:	 	 Jeff Isom

	Title:	 	 CFO



  


					
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