PROMISSORY NOTE (Advance) $250,000.00 Dallas, Texas August 29, 2007
Exhibit
10.3
(Advance)
$250,000.00
Dallas,
Texas
August 29,
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 HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($250,000.00), 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) Interest
only shall be due and payable monthly as it accrues on the 20th day of each
and
every calendar month, commencing September 20, 2007 until September 20,
2008;
(b) Thereafter,
principal under this Note shall be due and payable in equal monthly payments
sufficient to fully amortize the outstanding principal balance hereof as of
August 29, 2008 over forty-eight (48) months, such payments commencing on
October 20, 2008, and continuing to be due and payable on the 20th day of each
calendar month thereafter, until August 29, 2012 (“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.
(c) 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.
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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 dated February 20, 2007 between Maker and
Payee, as the same has been and may hereafter 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 Advance 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.
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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
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
(Signatures
continue on the following page)
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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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