PROMISSORY NOTE
Exhibit
10.2
(Term)
$2,200,000.00
Dallas,
Texas
February 20, 2007
FOR VALUE RECEIVED, each of the undersigned XXXXXXXXX’X PHARMACY, INC., a Texas
corporation, ALVIN MEDICINE MAN, LP, a Texas limited partnership,
ANGLETON
MEDICINE MAN, LP, a Texas limited partnership, SANTA FE MEDICINE
MAN, LP, a
Texas limited partnership (herein called "Maker," whether one or
more), hereby
jointly and severally promises to pay to the order of AMEGY BANK
NATIONAL
ASSOCIATION, a national banking association ("Payee"), at its offices
at 0000
Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000, in lawful
money of the United States of America, the principal sum of TWO MILLION
TWO
HUNDRED THOUSAND AND NO/100 DOLLARS ($2,200,000.00), or so much thereof
as may
be advanced and outstanding hereunder, together with interest on
the outstanding
principal balance from day to day remaining as herein specified,
in monthly
payments as follows:
(a) Principal under this Note shall be
due and payable in monthly payments of $45,833.33 each, commencing
on March 20,
2007, and continuing to be due and payable on the 20th day of each
calendar month thereafter, until February 20, 2011 (“Maturity Date”) when the
entire amount hereof, principal and interest then remaining unpaid,
shall be
then due and payable. Interest, computed on the unpaid principal balance
hereof, shall be due and payable monthly as it accrues, on the same
dates as,
but in addition to, said payments of principal; interest being calculated
on the
unpaid principal each day principal is outstanding and all payments
made
credited to any collection costs and late charges, to the discharge
of interest
accrued and to the reduction of principal, in such order as Payee
shall
determine.
(b) If a payment is made 10 days or
more late, Maker will be charged, in addition to interest, a delinquency
charge
of 5% of the unpaid portion of the regularly scheduled payment. Maker
agrees with Payee that the charges set forth herein are reasonable
compensation
to Payee for the handling of such late payments.
The outstanding principal balance hereof shall bear interest prior
to maturity
at a varying rate per annum which shall from day to day be equal
to the lesser
of (a) the Maximum Rate (hereinafter defined), or (b) a rate equal
to the Prime
Rate (hereinafter defined) of Payee in effect from day to day plus
one quarter
of one percent (0.25%), each such change in the rate of interest
charged
hereunder to become effective, without notice to Maker, on the effective
date of
each change in the Prime Rate; provided, however, if at any time
the rate of
interest specified in clause (b) preceding shall exceed the Maximum
Rate,
thereby causing the interest rate hereon to be limited to the Maximum
Rate, then
any subsequent reduction in the Prime Rate will not reduce the rate
of interest
hereon below the Maximum Rate until the total amount of interest
accrued hereon
equals the amount of interest which would have accrued hereon if
the rate
specified in clause (b) preceding had at all times been in effect. All
past due principal and interest shall bear interest at the Default
Rate
(hereinafter defined).
Interest on the indebtedness evidenced by this Note shall be computed
on the
basis of a year of 360 days and the actual number of days elapsed
(including the
first day but excluding the last day) unless such calculation would
result in a
usurious rate, in which case interest shall be calculated on the
basis of a year
of 365 or 366 days, as the case may be.
As used in this Note, the following terms shall have the respective
meanings
indicated below:
"Agreement" means, that certain Loan Agreement of even date herewith
between Maker and Payee, as the same may be amended or modified from
time to
time.
"Default
Rate" means the Maximum Rate or, if no Maximum Rate exists, the sum
of the
Prime Rate in effect from day to day plus three percent (3.0%).
"Maximum
Rate" means the maximum rate of nonusurious interest permitted from
day to
day by applicable law, including the Texas Finance Code, as supplemented
by the
Texas Credit Title, but otherwise without limitation, that rate based
upon the
"Weekly Ceiling" and calculated after taking into account any and
all relevant
fees, payments, and other charges in respect of this Note which are
deemed to be
interest under applicable law.
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"Prime Rate" means, at any time, the rate of interest per annum then
most
recently established by Payee as its Prime Rate. The Prime Rate is not
necessarily the lowest rate charged by Payee on its loans.
This Note is
the Term Note provided for in the Agreement.
Maker shall have the right to prepay, at any time and from time to
time without
premium or penalty, the entire unpaid principal balance of this Note
or any
portion thereof, any such partial prepayments to be applied in inverse
order of
maturity to the last maturing installment(s) of principal.
Notwithstanding anything to the contrary contained herein, no provisions
of this
Note shall require the payment or permit the collection of interest
in excess of
the Maximum Rate. If any excess of interest in such respect is herein
provided for, or shall be adjudicated to be so provided, in this
Note or
otherwise in connection with this loan transaction, the provisions
of this
paragraph shall govern and prevail, and neither Maker nor the sureties,
guarantors, successors or assigns of Maker shall be obligated to
pay the excess
amount of such interest, or any other excess sum paid for the use,
forbearance
or detention of sums loaned pursuant hereto. If for any reason interest in
excess of the Maximum Rate shall be deemed charged, required or permitted
by any
court of competent jurisdiction, any such excess shall be applied
as a payment
and reduction of the principal of indebtedness evidenced by this
Note; and, if
the principal amount hereof has been paid in full, any remaining
excess shall
forthwith be paid to Maker. In determining whether or not the interest
paid or payable exceeds the Maximum Rate, Maker and Payee shall,
to the extent
permitted by applicable law, (i) characterize any nonprincipal payment
as an
expense, fee, or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate,
allocate, and
spread in equal or unequal parts the total amount of interest throughout
the
entire contemplated term of the indebtedness evidenced by this Note
so that the
interest for the entire term does not exceed the Maximum Rate.
This Note is secured by all security agreements, assignments and
other writings
of every kind and nature heretofore, now or hereafter executed by
Maker or any
other person to secure any indebtedness of Maker which is now or
hereafter owing
to any holder of this Note, whether or not any of such writings describe,
cover,
pertain or affect any property, rights or interests which are similar
or
dissimilar to any of the following described property, rights or
interests, and
whether or not such writings were originally executed or delivered
to of for the
benefit of any holder of this Note or executed or delivered to or
for the
benefit of any other person and acquired by purchase or otherwise
by any holder
of this Note, and whether or not any such lien or security interest
or other
interest was created by any then owner of any interest in or to any
of the
property, rights or interests which are described in or covered by
any such
writing or to which any such writing may pertain or affect. Maker further
hereby agrees and consents to all of the terms, provisions, agreements,
covenants and warranties set forth or contained in all of the security
agreements, assignments and other writings now or hereafter securing
or
pertaining to the loan evidenced by this Note and agrees that all
of the
writings now or hereafter securing or pertaining to the loan evidenced
by this
Note (and all terms, provisions, agreements, covenants and warranties
contained
in such writings) shall be binding in all respects on Maker of this
Note
(whether or not Maker has executed such writings) and on the heirs,
successors,
legal representatives and assigns of Maker.
Upon the occurrence of any Event of Default, as such term is defined
in the
Agreement, the holder hereof may, at its option, declare the entire
unpaid
principal of and accrued interest on this Note immediately due and
payable
without notice, demand or presentment, all of which are hereby waived,
and upon
such declaration, the same shall become and shall be immediately
due and
payable, and the holder hereof shall have the right to foreclose
or otherwise
enforce all liens or security interests securing payment hereof,
or any part
hereof, and offset against this Note any sum or sums owed by the
holder hereof
to Maker. Failure of the holder hereof to exercise this option shall not
constitute a waiver of the right to exercise the same upon the occurrence
of a
subsequent Event of Default. During the continuance of an Event of
Default, this Note shall bear interest at the Default Rate.
If the holder hereof expends any effort in any attempt to enforce
payment of all
or any part or installment of any sum due the holder hereunder, or
if this Note
is placed in the hands of an attorney for collection, or if it is
collected
through any legal proceedings, Maker agrees to pay all reasonable
collection
costs, expenses and fees incurred by the holder, including reasonable
attorneys'
fees.
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 Dallas 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 or federal court in Dallas 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. Nothing herein shall affect the right of
Payee to bring any action or proceeding against Maker or any other
party liable
hereunder or with respect to any collateral in any state or federal
court in any
other Jurisdiction. Any action or proceeding by Maker or any other party
liable hereunder against Xxxxx shall be brought only in a court located
in
Dallas County, Texas.
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Maker and each surety, guarantor, endorser, and other party ever
liable for
payment of any sums of money payable on this Note jointly and severally
waive
notice, presentment, demand for payment, protest, notice of protest
and
non-payment or dishonor, notice of acceleration, notice of intent
to accelerate,
notice of intent to demand, diligence in collecting, grace, and all
other
formalities of any kind, and consent to all extensions without notice
for any
period or periods of time and partial payments, before or after maturity,
and
any impairment of any collateral securing this Note, all without
prejudice to
the holder. The holder shall similarly have the right to deal in any way,
at any time, with one or more of the foregoing parties without notice
to any
other party, and to grant any such party any extensions of time for
payment of
any of said indebtedness, or to release or substitute part or all
of the
collateral securing this Note, or to grant any other indulgences
or forbearances
whatsoever, without notice to any other party and without in any
way affecting
the personal liability of any party hereunder.
Maker hereby
authorizes the holder hereof to record in the records of holder hereof
all
advances made to Maker hereunder and all payments made on account
of the
principal thereof, which records shall be prima facie evidence as
to the
outstanding principal amount of this Note; provided, however, any
failure by the
holder hereof to make any recordation shall not limit or otherwise
affect the
obligations of Maker under the Agreement or this Note.
(Remainder
of page intentionally left blank; signature page
follows)
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BORROWER:
XXXXXXXXX’X
PHARMACY, INC.,
a
Texas corporation
By:
/s/ Xxxxx X. Xxxx
Name:
Xxxxx X. Xxxx
Title:
President and Chief Executive Officer
ALVIN
MEDICINE MAN, LP,
a
Texas limited partnership
By:
Alvin Medicine Man GP, LLC,
a Texas limited liability company,
its General Partner
By: /s/ Xxxxx X.
Xxxx
Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
ANGLETON
MEDICINE MAN, LP,
a
Texas limited partnership
By:
Angleton Medicine Man GP, LLC,
a Texas limited liability company,
its General Partner
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
SANTA
FE MEDICINE MAN, LP,
a
Texas limited partnership
By:
Santa Fe Medicine Man GP, LLC,
a Texas limited liability company,
its General Partner
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: President and Chief Executive
Officer
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