EXHIBIT 3.2 TO FORM 10-QSB
NOTE
$800,000.00 September 21, 1993
FOR VALUE RECEIVED, Phymed, Inc., a Texas [sic] ("Borrower"), promises
to pay to the order of Xxxxxxx X. Xxxxxxx, ("Lender"), in accordance with the
terms of that certain Loan and Security Agreement dated as of September 21, 1993
between Borrower, Lender and Guarantor (as amended, supplemented or otherwise
modified in writing from time to time, the "Agreement"), the principal sum of
Eight Hundred Thousand Dollars ($800,000.00) or such lesser amount as shall be
outstanding on such date under the Loan made by Lender pursuant to the
Agreement, together with interest on the unpaid principal balance of the Loan
made by Lender pursuant to the Agreement at the rates per annum specified in the
Agreement, pursuant to the Schedule of Payments attached hereto and incorporated
herein as Exhibit "A". All sums hereunder are payable to Lender at his address
at c/o Xxxx Xxx Xxxxx, Esq., Xxxx, Xxxxx & Xxxxxx, X.X., 00000 Xxxxxxx Xxxx,
Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000, or at such other locations as Lender may
designate from time to time, in lawful currency of the United States of America
and in immediately available funds. All payments and prepayments made hereunder
shall be made without setoff, counterclaim or deduction of any kind. Capitalized
terms used herein, unless otherwise defined, shall have the meanings given to
such terms in the Agreement.
1. Loan Agreement. This Note evidences one Advance under the Loan
made by Lender to Borrower pursuant to the Agreement and has
been executed and delivered pursuant to, and is governed by,
the terms and provisions of the Agreement. This Note, and all
outstanding principal and accrued and unpaid interest
hereunder, may be declared due prior to the expressed maturity
date hereof as provided in the Agreement, reference to which
is hereby made for a complete statement of the terms thereof.
2. Principal and Interest. Principal prepayments and interest
payments shall be due and payable as provided in the
Agreement; provided, however, that the interest payable shall
not exceed the Highest Lawful Rate.
3. Waiver. Borrower, and each surety, endorser, guarantor and
other party now or hereafter liable for the payment of any
sums of money payable on this Note, hereby severally (a)
waive demand, presentment for payment, notice of nonpayment,
protest, notice of protest, notice of intent to accelerate,
notice of acceleration and all other notices, filing of suit
and diligence in collecting this Note or enforcing any other
security with respect to same, (b) agree to any
substitution, subordination, exchange or release of any such
security or the release of any parties primarily or
secondarily liable hereon, (c) agree that Lender shall not
be required first to institute suit or exhaust its remedies
hereon against Borrower, or others liable or to become
liable hereon or to enforce its rights against them or any
security with respect to same, (d) consent to any and all
renewals, extensions, indulgences, releases or changes,
regardless of the number of such renewals, extensions,
indulgences, releases or
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changes, without notice hereof, and (e) agree to the
application of any deposit balance with Lender as payment or
part payment hereon or as an offset hereto. No waiver by
Lender of any of its rights or remedies hereunder or under any
other document evidencing or securing this Note or otherwise
shall be considered a waiver of any other subsequent right or
remedy of Lender; no delay or omission in the exercise or
endorsement by Lender of any rights or remedies shall ever by
construed as a waiver of the same or any other right or remedy
of Lender; and no exercise or enforcement of any such right or
remedy shall ever be held to exhaust any right or remedy of
Lender.
4. Event of Default. Failure to pay this Note or any installment
of principal or payment of interest when due in accordance
with the terms of this Note or the Agreement or the occurrence
of any Event of Default shall, as provided in the Agreement,
mature this Note and the principal then remaining unpaid, with
interest then accrued, shall at once become due and payable.
5. Attorney's Fees and Cost of Collection. If this Note is not
paid at maturity and is placed in the hands of an attorney for
collection, or if it is collected through a bankruptcy or any
other court, then Lender shall be entitled to reasonable
attorneys' fees and other costs of collection.
6. Limitation on Interest. Xxxxxxxx acknowledges and agrees that
it is the intention of the parties hereto to conform
strictly to the usury Laws in force that apply to this
transaction. Accordingly, this Note is hereby limited so
that in no contingency, whether by reason of acceleration of
the maturity of the Loan or otherwise, shall the interest
(and all other sums that are deemed to be interest)
contracted for, charged or received by Xxxxxx with respect
to the Loan and the Note exceed the Highest Lawful Rate. If,
from any circumstance whatsoever, interest under the Loan
and/or the Note would otherwise be payable in excess of the
Highest Lawful Rate, and if from any circumstance Lender
shall ever receive anything of value deemed interest by
applicable Law in excess of the Highest Lawful Rate, then
Xxxxxx's receipt of such excess interest shall be deemed a
mistake and the same shall, so long as no Event of Default
shall be continuing, at the option of Borrower, either be
repaid to Borrower or credited to the unpaid principal;
provided, however, that if an Event of Default shall have
occurred and be continuing, and Lender shall receive excess
interest during such period, then Lender shall have the
option of either crediting such excess amount to principal
or refunding such excess amount for Borrower. If the Loan is
prepaid or the maturity of the Loan is accelerated by reason
of an election of Xxxxxx, then unearned interest, if any,
shall be canceled and, if theretofore paid, shall either be
refunded to Borrower or credited on the Loan, as Lender
elects. All interest paid or agreed to be paid to Lender
shall, to the extent allowed by applicable Law, be
amortized, prorated, allocated, and spread throughout the
full period until payment in full of principal (including
the period of any renewal or extension) so that the interest
for such full period shall not exceed the Highest Lawful
Rate.
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7. GOVERNING LAW/VENUE. THIS NOTE SHALL BE DEEMED A CONTRACT
AND INSTRUMENT MADE UNDER THE LAWS OF THE STATE OF TEXAS AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND THE LAWS OF
THE UNITED STATES OF AMERICA. BORROWER HEREBY IRREVOCABLY
SUBMITS ITSELF TO THE NON- EXCLUSIVE JURISDICTION OF THE
STATE AND FEDERAL COURTS OF THE STATE OF TEXAS AND AGREES
AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN
ANY LEGAL PROCEEDING RELATING TO THE LOAN DOCUMENTS OR THE
OBLIGATIONS BY ANY MEANS ALLOWED UNDER TEXAS OR FEDERAL LAW.
VENUE FOR ANY LEGAL PROCEEDING MAY BE DALLAS COUNTY, TEXAS;
PROVIDED, THAT LENDER MAY CHOOSE ANY VENUE IN ANY STATE
WHICH IT DEEMS APPROPRIATE IN THE EXERCISE OF ITS SOLE
DISCRETION.
8. WAIVER OF JURY TRIAL. XXXXXXXX AND LENDER EACH HEREBY WAIVE
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION,
CAUSE OF ACTION, SUIT OR PROCEEDINGS (a) ARISING UNDER THIS
NOTE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR (b) IN ANY
WAY CONNECTED WITH OR RELATED TO OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT
TO THIS AGREEMENT, OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR
THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE. XXXXXXXX AND XXXXXX XXXXXX
AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE
OF ACTION, SUIT OR PROCEEDING SHALL BE DECIDED BY A COURT
TRIAL, WITHOUT A JURY, AND THAT ANY PARTY MAY FILE AN
ORIGINAL COUNTERPART OR COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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BORROWER:
PHYMED, INC.,
A Texas corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
XXXXXX X. XXXXXX, PRESIDENT
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EXHIBIT "A"
LOAN PAYMENT SCHEDULE
PRINCIPAL AMOUNT 800,000.00
INTEREST RATE (ANNUALLY) 10.0000%
PMT. PAYMENT AMOUNT APPLIED TO: PRINCIPAL
NO. AMOUNT INTEREST PRINCIPAL BALANCE
ORIGINAL PRINCIPAL 800,000.00
1 12,500.00 6,666.67 5,833.33 794,166.67
2 12,500.00 6,618.06 5,881.94 788,284.73
3 12,500.00 6,569.04 5,930.96 782,353.77
4 12,500.00 6,519.61 5,980.39 776,373.38
5 12,500.00 6,469.78 6,030.22 770,343.16
6 12,500.00 6,419.53 6,080.47 764,262.69
7 12,500.00 6,368.86 6,131.14 758,131.55
8 12,500.00 6,317.76 6,182.24 751,949.31
9 12,500.00 6,266.24 6,233.76 745,715.55
10 12,500.00 6,214.30 6,285.70 739,429.85
11 12,500.00 6,161.92 6,338.08 733,091.77
12 12,500.00 6,109.10 6,390.90 726,700.87
13 12,500.00 6,055.84 6,444.16 720,256.71
14 12,500.00 6,002.14 6,497.86 713,758.85
15 12,500.00 5,947.99 6,552.01 707,206.84
16 12,500.00 5,893.39 6,606.61 700,600.23
17 12,500.00 5,838.34 6,661.66 693,938.57
18 12,500.00 5,782.82 6,717.18 687,221.39
19 12,500.00 5,726.84 6,773.16 680,448.23
20 12,500.00 5,670.40 6,829.60 673,618.63
21 12,500.00 5,613.49 6,886.51 666,732.12
22 12,500.00 5,498.24 7,001.76 652,556.10
23 12,500.00 5,498.24 7,001.76 652,786.46
24 12,500.00 5,439.89 7,060.11 645,726.35
25 12,500.00 5,381.05 7,118.95 638,607.40
26 12,500.00 5,321.73 7,178.27 631,429.13
27 12,500.00 5,261.91 7,238.09 624,191.04
28 12,500.00 5,201.59 7,298.41 616,892.63
29 12,500.00 5,140.77 7,359.23 609,533.40
30 12,500.00 5,079.45 7,420.55 602,112.85
31 12,500.00 5,017.61 7,482.39 594,630.46
32 12,500.00 4,955.25 7,544.75 587,085.71
33 12,500.00 4,892.38 7,607.62 579,478.09
34 12,500.00 4,828.98 7,671.02 571,807.07
35 12,500.00 4,765.06 7,734.94 564,072.13
36 12,500.00 4,700.60 7,799.40 556,272.73
37 25,000.00 4,635.61 20,364.39 535,908.34
38 25,000.00 4,465.90 20,534.10 515,374.24
39 25,000.00 4,294.79 20,705.21 494,669.03
40 25,000.00 4,122.24 20,877.76 473,791.27
41 25,000.00 3,948.26 21,051.74 452,739.53
42 25,000.00 3,772.83 21,227.17 431,512.36
43 25,000.00 3,595.94 21,404.06 410,108.30
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44 25,000.00 3,417.57 21,582.43 388,525.87
45 25,000.00 3,237.72 21,762.28 366,763.59
46 25,000.00 3,056.36 21,943.64 344,819.95
47 25,000.00 2,873.50 22,126.50 322,693.45
48 25,000.00 2,689.11 22,310.89 300,382.56
49 25,000.00 2,503.19 22,496.81 277,885.75
50 25,000.00 2,315.71 22,684.29 255,201.46
51 25,000.00 2,126.68 22,873.32 232.328.14
52 25,000.00 1,936.07 23,063.93 209,264.21
53 25,000.00 1,743.87 23,256.13 186,008.08
54 25,000.00 1,550.07 23,449.93 162,558.15
55 25,000.00 1,354.65 23,645.35 138,912.80
56 25,000.00 1,157.61 23,842.39 115,070.41
57 25,000.00 958.92 24,041.08 91,029.33
58 25,000.00 758.58 24,241.42 66,787.91
59 25,000.00 556.57 24,443.43 42,344.48
60 25,000.00 352.87 24,647.13 17,697.35
61 17,844.83 147.48 17,697.35
--------- ------ ---------
1,067,844.83 267,844.83 800,000.00
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