COMMERCIAL NOTE
Exhibit 10.2
COMMERCIAL NOTE
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Lafayette, Louisiana
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$10,000,000.00
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March 19, 2019
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For value received, the undersigned maker(s) (hereinafter referred to as "Borrower", which term means individually, collectively, and interchangeably
any, each and/or all of them), jointly, severally, and solidarily, promises to pay to the order of XXXXXXX XXXXXXX BANK ("Bank"), a Mississippi state chartered bank, with an office located at 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, XX 00000,
the sum of TEN MILLION AND NO/100s DOLLARS ($10,000,000.00), together with interest thereon, in accordance with the terms set forth in this Commercial Note ("Note").
REPAYMENT:
Single principal, periodic interest. Principal shall be due
and payable in a single payment due on March 19, 2021 (the “Maturity Date”). Accrued interest shall be due and payable in consecutive payments beginning April 19, 2019,
and on the same day in each month thereafter until the Maturity Date, on which date any unpaid accrued interest shall be due and payable in full.
Unless sooner declared due and payable in accordance with the provisions of this Note, on the Maturity Date, all outstanding principal,
interest, fees, costs and expenses owing by Borrower to Bank shall be due and payable in full without notice or demand. Provided no other agreement between the Borrower and Bank expressly imposes a prepayment penalty, Borrower may prepay without
penalty any principal on this Note in whole or in part and any prepayments made on this Note shall be applied to the principal payment(s) due on this Note in the inverse order of their maturity.
INTEREST:
One Month ICE LIBOR. The interest rate on this Note is subject
to change from time to time based on changes in an independent index which is the One Month ICE LIBOR. As used in this Note, the term "One Month ICE LIBOR" shall mean
the One Month London InterBank Offered Rate in U.S. Dollars as calculated and published by the Intercontinental Exchange Benchmark Administration Ltd. (“ICE,” or the
successor thereto if ICE is no longer making a London Interbank Offered Rate available) and in effect on the first day of each calendar month. The One Month ICE LIBOR shall be obtained by Bank from an intermediary rate reporting source such as
Bloomberg, L.P. or other authoritative rate reporting source as selected by Bank, and is based on an average of interbank offered rates for one month deposits in U.S. Dollars based on quotes from designated banks in the London market. The One
Month ICE LIBOR shall be rounded up to the nearest one-eighth (1/8th) of one percent by Bank to determine the index (the "Index"). Notwithstanding anything
in this Note to the contrary, if the One Month ICE LIBOR as reported by Xxxxxxxxx, L.P or other rate reporting source is less than zero, then it shall be deemed to be zero percent (0.0%) and the Index shall be rounded up to one-eighth (1/8th)
of one percent. Interest on the unpaid balance of this Note shall accrue at a variable rate equal to the Index plus a margin of 3.00% per annum. The initial Index based on the One Month ICE LIBOR (rounded up to the nearest one-eighth (1/8th)
of one percent or rounded up to one-eighth (1/8th) of one percent if the reported One Month Ice Libor is less than zero) is 2.50% per annum resulting in an initial interest rate on this Note of 5.50% per annum. The Index shall be
adjusted on the first day of each calendar month. The Index is not necessarily the lowest rate charged by Bank for any particular class of borrowers or credit extensions. Borrower understands that Bank may make loans based on other rates as
well. If the Index becomes unavailable during the term of this Note, Bank may designate a substitute index by notice to Borrower. Borrower may obtain the current Index from Bank upon Xxxxxxxx’s request. Bank’s determination of the Index shall be
conclusive absent demonstrable error.
Floor Rate. Notwithstanding the foregoing, if, for any reason,
the interest rate on this Note as calculated pursuant to the previous paragraph would result in the rate falling below four percent (4.00%) per annum, the interest rate shall not fall below four percent (4.00%) per annum and shall remain at four
percent (4.00%) per annum until the interest rate as calculated pursuant to the previous paragraph equals or exceeds four percent (4.00) per annum.
Default Rate. After maturity, whether that maturity results
from acceleration or otherwise, interest shall, to the extent permitted by applicable law, accrue at the Default Rate. Additionally, upon the occurrence of any Event of Default hereunder other than a delinquent payment (and from and after the
date of such occurrence), interest shall, to the extent permitted by applicable law, accrue at the Default Rate. The Default Rate shall be the maximum rate authorized by applicable law, and if applicable law establishes no maximum rate, then
eighteen percent (18.0%) per annum.
All interest shall be computed on the basis of the actual number of days elapsed over a year composed of 360 days. Interest shall accrue from the first
date that funds are advanced to Borrower until all sums due hereunder are paid in full.
Notwithstanding the foregoing, under no circumstances will the effective rate of interest on this Note exceed the maximum rate permissible under
applicable law. To the extent federal law permits to contract for, charge or receive a greater amount of interest, Bank reserves the right to rely on federal law for the purpose of
determining the maximum rate. It is the intention of Borrower and Bank to conform strictly to any applicable usury laws. The aggregate of all consideration which constitutes interest under applicable law that is contracted for, charged
or received under this Note shall under no circumstances exceed the maximum amount of interest allowed by applicable law, and any excess shall be credited to the principal balance on this Note or, if this Note shall have been paid in full,
refunded to Borrower.
All payments to be made by the Borrower to Bank under or pursuant to this Note shall be in immediately available United States currency, without setoff
or counterclaim, and in the event that any payments submitted hereunder are in funds not available until collected, said payments shall continue to bear interest until collected.
LATE PAYMENT AND NSF CHARGES: In the event any installment payment of principal and/or interest is more than ten (10) days past due, Borrower promises to pay, in addition to the amount otherwise due hereunder, a delinquency charge of
5.00% of the unpaid portion of the regularly schedule payment, but not more than $1,000.00. In the event that any payment under this Note by check or preauthorized charge is later dishonored or returned to Bank unpaid due to insufficient
funds, Xxxxxxxx agrees to pay Bank an additional NSF check charge equal to $25.00.
LINE OF CREDIT: This Note evidences a line of credit under
the terms of which the Borrower may borrow, repay and reborrow hereunder, and advances hereunder shall be subject to that certain Loan Agreement dated
February 21, 2018, between Bank and Borrower, the terms and conditions of which, as the same may be amended from time to time, are incorporated herein by reference and are a part of the terms and conditions of this Note.
Advances may be made by Bank upon the written, telephonic or facsimile request of Borrower, and Bank is authorized to rely conclusively upon such
requests when received from a person purporting to be Borrower or Borrower’s authorized officer or representative. Borrower covenants and agrees to furnish to Bank written confirmation of any non-written request for an advance within five (5)
days of the resulting loan or advance, but any such loan or advance shall be deemed to be made under and entitled to the benefits of this Note irrespective of any failure by Borrower to furnish such written confirmation.
The unpaid principal balance of this Note at any time shall be the total amounts loaned or advanced hereunder by Bank, less the amount of payments or
prepayments of principal made hereon by or for the account of Borrower. It is contemplated that by reason of prepayments there may be times when no indebtedness is owing hereunder; but notwithstanding such occurrences, this Note and any
agreements and instruments securing the same shall remain valid and shall be in full force and effect as to loans or advances made pursuant to and under the terms of this Note subsequent to each occurrence. In the event that the unpaid principal
amount hereof at any time, for any reason, exceeds the maximum amount hereinabove specified, Borrower promises and agrees to pay the excess principal amount promptly upon demand; such excess principal amount shall in all respects be deemed to be
included among the loans or advances made pursuant to the other terms of this Note, shall bear interest at the rate or rates stated herein, and shall be fully secured by all collateral.
BALANCE OWING: The amount from time to time outstanding under
this Note and each payment on this Note shall be evidenced by entries in Bank’s internal records, which shall be conclusive evidence absent manifest error of (a) the amount of principal and interest owing on this Note from time to time; (b) the
amount of each advance made to Borrower under this Note; and (c) the amount of each principal and/or interest payment received by Bank on this Note. The failure of Bank to make an accurate entry of advances and payments shall not limit or
otherwise affect the obligation of Borrower to repay funds actually advanced by Bank hereunder. Any loan or advance shall be conclusively presumed to have been made under the terms of this Note to or for the benefit of Borrower when made in
accordance with such requests and directions, or when made pursuant to the terms of any written agreement executed in connection herewith between Borrower and Bank, or when said advances are deposited to the credit of the account of Borrower with
Bank regardless of the fact that persons other than those authorized hereunder may have authority to draw against such account, or when applied as a payment of principal and/or interest to another obligation of Borrower to Bank.
OBLIGORS: Any or each party to this Note (including each maker
and endorser) and any or each surety and guarantor of this Note bound under separate instrument or agreement are hereinafter referred to jointly and severally as “Obligor.”
SECURITY AND SET-OFF: In order to secure the repayment of the indebtedness evidenced by this Note, including, without
limitation, future advances, interest, attorneys’ fees, expenses of collection and costs, as well as the payment and performance of any and all other liabilities or obligations of any Borrower to Bank, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter arising, and including, but not limited to, all agreements with respect to any swap, forward, future, or derivative transaction or option or similar agreement involving, or settled by
reference to, one or more interest rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value (collectively, the “Obligations”), Borrower hereby pledges to Bank, and grants to Bank a continuing lien and security interest in and a right of set-off and compensation against, all property
of Borrower, including any such property Borrower holds jointly with someone else, that is now or hereafter on deposit with, in the possession of, under the control of or held by Bank or any financial institution affiliate of the Bank, including,
without limitation, all cash, deposit accounts, funds on deposit, stocks, bonds, treasury obligations and other securities, investment property, financial assets, securities accounts, notes, documents, instruments, certificates of deposit, items,
chattel paper, and other property (except IRA, pension, other tax-deferred retirement accounts and any accounts or property held in a trust or fiduciary capacity for which setoff would be prohibited by law), together with all property added to or
substituted for any of the foregoing, and all interest, dividends, income, fruits, accessions and proceeds of any of the foregoing. The terms "chattel paper," "deposit accounts," "documents," "items," "instruments," "investment property,"
“securities accounts,” “financial assets” and "proceeds" shall have the meaning provided in the Louisiana Uniform Commercial Code. Each Obligor releases Bank from any obligation with respect to the collateral including any obligation to collect
any proceeds of or preserve any of Obligor’s rights, including, without limitation, rights against prior parties, in any collateral in which Bank possesses a security interest. Any responsibility of Bank with respect to any
collateral in which Bank possesses a security interest, whether arising contractually or as a matter of law, is hereby expressly waived.
EVALUATIONS: Borrower represents and warrants that the
indebtedness evidenced by this Note was contracted for by Xxxxxxxx at Borrower’s request based upon Xxxxxxxx’s own independent determination of need. Borrower and each other Obligor understand and agree that any appraisals or evaluations made
by or for the Bank of the financial condition of any person or the value of any property were made solely for the Bank’s benefit and Bank in no way has represented or warranted the financial condition of any person or the value of any property
in making or obtaining said appraisals or evaluations or in extending credit to Borrower or any other Obligor. Borrower and each other Obligor understand and agree that they have no right to rely on Bank’s appraisals or evaluations in assuming
this debt and executing this instrument and that their obligation to pay the debt represented by this Note is independent of any such appraisals or evaluations.
RENEWAL: If an earlier note of Borrower to Bank is renewed at
the time of execution hereof, then this Note constitutes an extension, but not a novation, of the amount of the unpaid and continuing indebtedness, and all rights held by Bank under the earlier note shall continue in full force and effect.
FINANCIAL INFORMATION: Borrower shall, and shall cause each
other Obligor to, promptly provide to Bank true and correct current financial statements and such other information regarding the financial condition, business and properties of each Obligor as Bank may request from time to time, all in form,
substance and detail satisfactory to the Bank. The financial statements shall include, among other things, detailed information regarding (i) any entities, such as corporations, partnerships, or limited liability companies of which the Obligor
is the majority owner and (ii) any entities of which the Obligor is not the majority owner, but for which Obligor is directly or contingently liable on debts or obligations of any kind incurred by those entities. All financial statements or
records submitted to Bank via electronic means, including, without limitation by facsimile, open internet communications or other telephonic or electronic methods, including, without limitation, documents in Tagged Image Format Files (“TIFF”)
or Portable Document Format (“PDF”) shall be treated as originals, fully binding and with full legal force and effect and the parties waive any rights they may have to object to such treatment. The Bank may rely on all such records in good
faith as complete and accurate records produced or maintained by or on behalf of the party submitting such records.
DEFAULT: If any of the following events shall occur (each
such event being referred to herein as an “Event of Default”): (a) the non-payment of any principal or interest on this Note or any other Obligation on the date when
due; (b) the death, dissolution, liquidation or insolvency of any Obligor; (c) the filing by or against any Obligor of a proceeding under the U.S. Bankruptcy Code; (d) the application for appointment of a receiver for, the making of a general
assignment for the benefit of creditors of, or the filing of any proceeding seeking any other relief afforded debtors or affecting rights of creditors generally under the laws of any jurisdiction by or against any Obligor; (e) the default by
any Obligor in the payment or performance of (i) any obligation under this Note or under any deed of trust, mortgage, security agreement or any other document securing payment of this Note, or (ii) any obligation under any other note or under
any other agreement of any Obligor with or in favor of Bank; (f) any judgment, garnishment, seizure, tax lien or levy against any assets of any Obligor; (g) any material adverse change in the financial condition of any Obligor, or any material
discrepancy between the financial statements submitted by any Obligor and the actual financial condition of any Obligor; (h) any statement, warranty, or representation made by any Obligor to Bank proves to be untrue in any material respect; (i)
any default by any Obligor in the payment or performance of any material liabilities, indebtedness or obligations to any other creditor; (j) any merger, consolidation or change in any Obligor’s type or form of organizational structure without
the prior written consent of Bank; or (k) any discontinuance or termination of any guaranty of all or any portion of this Note by any Obligor or any attempt by any Obligor to do so; then, at the option of Bank, the full amount of this Note and
all other obligations and liabilities, direct or contingent, of any Obligor to Bank shall be immediately due and payable without notice or demand.
REMEDIES: Bank shall have the remedies of a secured party under
the Louisiana Uniform Commercial Code. In addition to any and all other remedies which may be available to it, all of which shall be cumulative and may be pursued singly, successively or together against any Obligor and/or any security given at
any time to secure the payment hereof, all at the sole discretion of Bank. Failure on the part of Bank to exercise any right described herein or in such other documents shall not constitute a waiver of such right or preclude Bank’s subsequent
exercise thereof. If any notice of sale or other intended disposition of the collateral is required by law to be given, Borrower hereby agrees that a notice sent in compliance with applicable law or if applicable law does not define the required
notice period then at least ten (10) days prior to such action shall constitute reasonable notice to Borrower. If the proceeds of any collateral securing this Note disposed of by Bank are insufficient to pay this Note in full, Obligor shall
remain fully obligated for any deficiency.
For purposes of executory process, Obligor hereby acknowledges the debt created by this Note, confesses judgment in favor of Bank for the full amount of
the debt evidenced by this Note, and consents to enforcement by executory process. To the extent permitted by law, Obligor hereby expressly waives (a) the benefit of appraisement provided for in Art. 2723 of the Louisiana Code of Civil Procedure
and (b) all other rights to notices, demands, appraisements and delays provided by the Louisiana Code of Civil Procedure or any other applicable laws.
FEES AND EXPENSES: Obligor agrees to pay on demand all
charges, fees, costs and/or taxes levied or assessed against Bank in connection with this Note or any collateral securing this Note, together with all reasonable attorneys and paralegals’ fees and expenses, and all other costs and expenses
incurred by Bank in connection with the preparation, enforcement (including, without limitation, in bankruptcy, probate or administration proceeding or otherwise), workout, restructuring or collection of this Note, whether or not suit is filed,
including such fees incurred in bankruptcy proceedings, at state and/or federal trial and appellate court levels, together with all other costs and expenses that may be incurred by Bank in connection with the enforcement of this Note or the
preservation or enforcement of any of Bank’s rights or interests with respect to any collateral securing this Note.
WAIVER: The Borrower waive(s), on behalf of itself and each Obligor, presentment, demand, protest, notice of dishonor, notice of demand or intent to demand, notice of acceleration or intent to accelerate, and all other notices, and agree(s)
that no extension or indulgence to the undersigned (or any of them) or release, substitution or nonenforcement of any security, or release or substitution of any of the undersigned, any guarantor or any other party, whether with or without
notice, shall affect the obligations of any of the undersigned. The undersigned waive(s) all defenses or right to discharge available under applicable law and waive(s) all other suretyship defenses or right to discharge and waives any
right to receive notice of interest rate changes.
Each Obligor also agrees Bank may, one or more times, in its sole discretion, without releasing or affecting any of its rights and without notice to or
the consent of such Obligor, take any one or more of the following actions: (a) release, renew, extend or modify the obligations of Borrower or any other Obligor; (b) release, exchange, modify, or surrender in whole or in part Bank’s rights with
respect to any collateral for this Note; (c) with the consent of Xxxxxxxx, modify or alter the term, interest rate or due date of any payment of this Note; (d) grant any postponements, compromises, indulgences, waivers, surrenders or discharges
or modify the terms of its agreements with Borrower or any other Obligor; (e) change its manner of doing business with Borrower or any other Obligor or person; or (f) impute payments or proceeds of any collateral furnished by any Obligor, in
whole or in part to any costs, interest, or principal due on this Note, or to any other obligation of any Obligor to Bank, or in the event of a third party claim thereto retain the payments or proceeds as collateral for this Note without applying
same toward payment of this Note, and each Obligor hereby expressly waives any claims or defenses arising from any such actions.
COMMERCIAL USE: Borrower warrants and represents to Bank and
all other holders of this Note that all loans evidenced by this Note are and will be for business, commercial, or other similar purpose and not primarily for personal, family, or household purposes.
SALE/ASSIGNMENT: The Borrower acknowledge(s) that the Bank has
the right to sell, assign, transfer, negotiate, or grant participations in all or any part of this Note and any related obligations, including, without limit, this Note, without notice to the undersigned and that the Bank may disclose any
documents and information which the Bank now has or later acquires relating to the undersigned or to any collateral or to any Obligor or this Note in connection with such sale, assignment, transfer, negotiation, or grant. The Borrower agree(s)
that the Bank may provide information relating to this Note or relating to the undersigned to the Bank's parent, affiliates, subsidiaries and service providers.
GOVERNING LAW, JURISDICTION AND VENUE: THIS NOTE IS MADE AND DELIVERED
IN THE STATE OF LOUISIANA AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS THEREOF WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. BORROWER AND EACH
OTHER OBLIGOR PARTY TO THIS NOTE HEREBY IRREVOCABLY SUBMITS AND CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT IN LOUISIANA LOCATED IN THE SAME JUDICIAL DISTRICT AS THE OFFICE OF BANK SPECIFIED IN THE
FIRST PARAGRAPH OF THIS NOTE AND AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING DIRECTLY, INDIRECTLY OR OTHERWISE IN CONNECTION WITH, OUT OF, RELATED TO OR FROM THIS NOTE SHALL BE LITIGATED ONLY IN ONE OF THE FOREGOING DESCRIBED COURTS.
BORROWER AND EACH OTHER OBLIGOR PARTY TO THIS NOTE, FOR THEMSELVES, AND THEIR RESPECTIVE HEIRS, SUCCESSORS AND ITS ASSIGNS, AND FOR ANY PERSON CLAIMING UNDER OR THROUGH ANY OF THEM, XXXXXX KNOWINGLY AND VOLUNTARILY WAIVES ANY AND ALL RIGHTS TO
HAVE THE JURISDICTION AND VENUE OF ANY LITIGATION ARISING DIRECTLY, INDIRECTLY OR OTHERWISE IN CONNECTION WITH, OUT OF, RELATED TO OR FROM THIS NOTE IN ANY OTHER COURT, AND HEREBY KNOWINGLY AND VOLUNTARILY WAIVES ANY AND ALL RIGHTS TO REMOVE
THIS ACTION TO, OR TO TRANSFER, DISMISS, OR CHANGE VENUE TO, ANY OTHER COURT. BORROWER AND EACH OTHER OBLIGOR PARTY TO THIS NOTE FURTHER ACKNOWLEDGES AND AGREES THAT NEITHER BANK NOR ANY PERSON ACTING ON BEHALF OF BANK HAS IN ANY WAY AGREED
WITH OR REPRESENTED TO BORROWER OR SUCH OBLIGOR THAT THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN WAIVED OR WILL NOT BE FULLY ENFORCED BY BANK.
WAIVER OF JURY TRIAL. BORROWER KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHTS BORROWER MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BASED ON, ARISING OUT OF, OR IN ANY WAY RELATED TO: THIS NOTE; THE OBLIGATIONS; ANY NOTES, LOAN AGREEMENTS, OR ANY OTHER LOAN DOCUMENT OR AGREEMENT
EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH ANY OF THE OBLIGATIONS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THIS JURY WAIVER ALSO APPLIES TO ANY CLAIM, COUNTERCLAIM, CAUSE OF ACTION OR DEMAND ARISING FROM OR RELATED TO (I) ANY COURSE OF CONDUCT, COURSE OF DEALING, OR RELATIONSHIP OF BORROWER, ANY OBLIGOR, OR ANY OTHER PERSON WITH BANK OR ANY EMPLOYEE, OFFICER, DIRECTOR OR ASSIGNEE OF BANK IN CONNECTION WITH THE OBLIGATIONS; OR (II) ANY STATEMENT (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PERSON BY OR ON BEHALF OF BANK TO BORROWER, ANY OBLIGOR, OR ANY OTHER PERSON IN CONNECTION WITH THE
OBLIGATIONS, REGARDLESS OF WHETHER SUCH CAUSE OF ACTION ARISES BY CONTRACT, TORT OR OTHERWISE. BORROWER HEREBY ACKNOWLEDGES THAT THIS WAIVER OF JURY
TRIAL IS A MATERIAL INDUCEMENT TO THE BANK IN EXTENDING CREDIT TO THE BORROWER, THAT THE BANK WOULD NOT HAVE EXTENDED SUCH CREDIT WITHOUT THIS JURY TRIAL WAIVER, AND THAT XXXXXXXX HAS BEEN REPRESENTED BY AN ATTORNEY OR HAS HAD AN OPPORTUNITY
TO CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS JURY TRIAL WAIVER AND UNDERSTANDS THE LEGAL EFFECT OF THIS WAIVER. BORROWER FURTHER CERTIFIES THAT NO PERSON HAS REPRESENTED TO IT, EXPRESSLY OR OTHERWISE, THAT BANK OR ANY OTHER PERSON
WOULD NOT, IN THE EVENT OF A LEGAL PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER.
MISCELLANEOUS: The provisions of this Note may not be waived or
modified except in writing, signed by Bank. Failure of Bank to exercise rights, remedies or options Bank may have upon the happening of one or more of the events giving rise to such rights, remedies or options shall not constitute a waiver of
the right to exercise the same or any other right, remedy or option at any subsequent time in respect to the same or any other event. The acceptance by Bank 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 rights, remedies or options granted herein to Bank at that time or at any subsequent time or nullify any prior exercise of any such right,
remedy or option without the express written acknowledgment of the Bank.
If any provision of this Note shall be held to be legally invalid or unenforceable by any court of competent jurisdiction, all remaining provisions of
this Note shall remain in full force and effect.
The term Bank as used herein shall include transferees, successors, and assigns of Bank, and all rights of Bank hereunder shall inure to the benefit of
its transferees, successors, and assigns. All obligations of Obligor shall bind Xxxxxxx’s heirs, legal representatives, successors, and assigns.
The descriptive headings of the several sections of this Note are inserted for convenience only and shall not in any way affect the meaning or
construction hereof.
Bank may, at its option and in its sole discretion, maintain and rely upon a photocopy, electronic copy or other reproduction of this Note, and Xxxxxxxx
and each other Obligor, for themselves and their respective heirs, successors, and assigns, and any person claiming by or through any of them, hereby waive any and all objections to, and claims or defenses based upon, the failure of Bank to
produce the original hereof for any purpose whatsoever.
This Note embodies the final, entire agreement of Borrower and Bank with respect to the subject matter hereof. No course of dealing, course of
performance, usage of trade or evidence of any prior, contemporaneous or subsequent oral agreements or discussions or other extrinsic evidence of any nature shall be used to contradict, vary, supplement or modify any term of this note. There are
no oral agreements between the parties.
THIS NOTE AND ALL OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT OF BORROWER AND BANK AND SUPERSEDES 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 ANY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR A SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF BORROWER AND BANK. THERE ARE NO ORAL AGREEMENTS BETWEEN THE BORROWER AND BANK.
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BORROWER:
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INTERNAL USE ONLY
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Viemed, Inc.
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By:
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/s/ Xxxxx Xxxx
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Name:
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Xxxxx Xxxx
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Title:
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Chief Executive Officer
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Sleep Management, L.L.C.
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By:
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/s/ Xxxxx Xxxx
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Name:
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Xxxxx Xxxx
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Title:
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General Manager
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Home Sleep Delivered, L.L.C.
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By:
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/s/ Xxxxx Xxxx
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Name:
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Xxxxx Xxxx
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Title:
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General Manager
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