PROMISSORY NOTE (Revolving)
Exhibit
10.3
(Revolving)
$2,000,000.00 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
AND
NO/100 DOLLARS ($2,000,000.00), or so much thereof as may be advanced and
outstanding hereunder, together with interest on the outstanding principal
balance from day to day remaining, 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) the Prime Rate (hereinafter defined) of Payee in effect from day
to day,
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
or the Maximum Rate, as the case may be; 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 shall 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. Accrued and unpaid interest on this Note shall be due and payable
in monthly installments commencing on March 20, 2007, with additional payments
of all accrued and unpaid interest due on the 20th day of each
calendar month thereafter until February 20, 2009 (“Maturity Date”), when all
outstanding principal hereunder plus all accrued and unpaid interest is
due and
payable in full.
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.
"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 Revolving Note provided for in the Agreement. Maker may prepay
the principal of this Note upon the terms and conditions specified in the
Agreement. Maker may borrow, repay, and reborrow hereunder upon the terms
and conditions specified in the Agreement. A Borrowing Base is provided in
the Agreement and the maximum amount outstanding under this Note shall
not
exceed the Borrowing Base. If the amount outstanding exceeds the Borrowing
Base, Maker shall make a principal payment in an amount sufficient to reduce
the
outstanding principal amount to the amount of the Borrowing Base as provided
in
the Agreement.
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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 non-principal 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.
MAKER:
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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