Term Note
Exhibit 10.14
$4,000,000.00
| Due: September 1, 2019 | Date: September 2, 2015 |
Promise to Pay. On or before September 1, 2019 (the “Maturity Date”), for value received Medical Transcription Billing, Corp., a Delaware corporation (the “Borrower”) promises to pay to Opus Bank, a California commercial bank, and its successors and assigns, whose address is 00000 XxxXxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx 92612 (the “Bank”) or order, in lawful money of the United States of America, the sum of Four Million and 00/100 Dollars ($4,000,000.00), or such lesser amount as shall remain outstanding at such time, plus interest at the Note Rate (as defined below), and at the rate of 5.00% per annum above the Note Rate, at the Bank's option, upon the occurrence and during the continuance of any Event of Default, whether or not the Bank elects to accelerate the maturity of this Term Note, from the date such increased rate is imposed by the Bank.
Interest shall be calculated on the basis of a year of 360 days and the actual number of days elapsed; that is by applying the ratio of the interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. All interest payable under this Term Note is computed using this method which results in a higher effective interest rate than the numeric interest rate stated herein.
In no event shall the interest rate exceed the maximum rate allowed by law. Any interest payment that would for any reason be unlawful under applicable law shall be applied to principal.
The Borrower will make monthly interest-only payments on October 1, 2015 and continuing monthly thereafter (on the first day of each month) until and including September 1, 2016. Thereafter, beginning October 1, 2016, and continuing until the earlier of (a) the date on which all principal and interest has been paid in full; or (b) the Maturity Date, the Borrower will make a monthly principal payment of One Hundred Eleven Thousand One Hundred Eleven and 11/100 Dollars ($111,111.11) plus a payment for all accrued and unpaid interest on the first Business Day of each month. The entire balance of unpaid principal plus accrued interest will be due and payable immediately upon the Maturity Date.
The Borrower will make all payments, without setoff, deduction, or counterclaim, to the Bank at the Bank's address above or at such other place as the Bank may designate in writing. Payments shall be allocated among principal, interest and fees at the discretion of the Bank unless otherwise agreed or required by applicable law. Acceptance by the Bank of any payment that is less than the payment due at that time shall not constitute a waiver of the Bank's right to receive payment in full at that time or any other time.
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Authorization for Direct Payments (ACH Debits). To effectuate any scheduled payments due under this Term Note or under any other Loan Documents, the Borrower hereby authorizes the Bank to initiate debit entries to the Designated Deposit Account and to debit the same to such account. This authorization to initiate debit entries shall remain in full force and effect until payment in full of the Liabilities under the Credit Agreement. Borrower represents that the Borrower is and will be the owner of all funds in the Designated Deposit Account. Borrower acknowledges: (1) that such debit entries may cause an overdraft of such account which may result in the Bank’s refusal to honor items drawn on such account until adequate deposits are made to such account; (2) that the Bank is under no duty or obligation to initiate any debit entry for any purpose; and (3) that if a debit is not made because the above-referenced account does not have a sufficient available balance, or otherwise, the payment may be late or past due.
Late Fee. In addition to interest and principal as set forth herein, Borrower shall pay to Bank a late charge equal to the greater of (i) five percent (5.00%) of the total payment due, or (ii) $10.00 per late charge, in the event any such amount is not paid within one (1) day after the date when due. The Borrower shall pay the late payment charge upon demand by the Bank or, if billed, within the time specified.
Definitions. As used in this Term Note, “Credit Agreement” means the Credit Agreement of even date herewith between the Borrower and the Bank. Capitalized terms not specifically defined herein shall have the meanings ascribed to them in the Credit Agreement. “Note Rate” means a fluctuating rate per annum equal to the higher of (a) the rate of interest in effect for such day as publicly announced from time to time by the Wall Street Journal as its “prime rate” (or the average prime rate if a high and a low prime rate are therein reported) plus 1.75%, or (b) 5.00%.
Credit Agreement. This Term Note is issued pursuant to the terms of the Credit Agreement and evidences the Borrower’s obligation to repay the Term Loan made thereunder. The aggregate principal amount of debt evidenced by this Term Note is the amount reflected from time to time in the records of the Bank.
Bank's Right of Setoff. Borrower grants to the Bank a security interest in the deposits in the Designated Deposit Account, and the Bank is authorized to setoff and apply, all Deposits, Securities and Other Property, and Bank Debt against any and all Liabilities as and when due hereunder. This right of setoff may be exercised at any time and from time to time after the occurrence and during the continuance of any Event of Default, without prior notice to or demand on the Borrower and regardless of whether any Liabilities are contingent, unmatured or unliquidated. In this paragraph: (a) the term “Deposits” means any and all accounts and deposits of the Borrower (whether general, special, time, demand, provisional or final) at any time held by the Bank (including all Deposits held jointly with another, but excluding any IRA or Xxxxx Deposits, or any trust Deposits in which a security interest would be prohibited by law); (b) the term “Securities and Other Property” means any and all securities and other personal property of the Borrower in the custody, possession or control of the Bank or its Subsidiaries and Affiliates (other than Property held by the Bank in a fiduciary capacity); and (c) the term “Bank Debt” means all indebtedness at any time owing by the Bank, to or for the credit or account of the Borrower and any claim of the Borrower (whether individual, joint and several or otherwise) against the Bank now or hereafter existing.
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Reinstatement. The Borrower agrees that to the extent any payment or transfer is received by the Bank in connection with the Liabilities evidenced by this Term Note, and all or any part of the payment or transfer is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be transferred or repaid by the Bank or transferred or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (any of those payments or transfers is hereinafter referred to as a “Preferential Payment”), then this Term Note shall continue to be effective or shall be reinstated, as the case may be, even if all those Liabilities have been paid in full and whether or not the Bank is in possession of this Term Note, or whether the Term Note has been marked paid, released or canceled, or returned to the Borrower and, to the extent of the payment, repayment or other transfer by the Bank, the Liabilities or part intended to be satisfied by the Preferential Payment shall be revived and continued in full force and effect as if the Preferential Payment had not been made.
Governing Law and Venue. This Term Note shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to its laws of conflicts). The Borrower agrees that any legal action or proceeding with respect to any of its obligations under this Term Note may be brought by the Bank in any state or federal court (for the Northern District of California) located in the State of California, as the Bank in its sole discretion may elect. By the execution and delivery of this Term Note, the Borrower submits to and accepts, for itself and in respect of its property, generally and unconditionally, the non-exclusive jurisdiction of those courts. The Borrower waives any claim that the State of California is not a convenient forum or the proper venue for any such suit, action or proceeding.
Usury. The Bank does not intend to charge, collect or receive any interest that would exceed the maximum rate allowed by law. If the effect of any applicable law is to render usurious any amount called for under this Term Note or the other Loan Documents, or if any amount is charged or received with respect to this Term Note, or if any prepayment by the Borrower results in the payment of any interest in excess of that permitted by law, then all excess amounts collected by the Bank shall be credited on the principal balance of this Term Note (or, if this Term Note and all other indebtedness arising under or pursuant to the other Loan Documents shall have been paid in full, refunded to the Borrower), and the provisions of this Term Note and the other Loan Documents shall immediately be deemed reformed and the amounts thereafter collectable reduced, without the necessity of the execution of any new document, so as to comply with the then applicable law. All sums paid, or agreed to be paid, by the Borrower for the use, forbearance, or detention of money under this Term Note or the other Loan Documents shall, to the maximum extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full term of such indebtedness until payment in full so that the rate or amount of interest on account of such indebtedness does not exceed the usury ceiling from time to time in effect and applicable to such indebtedness for so long as such indebtedness is outstanding.
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Miscellaneous. This Term Note binds the Borrower and its successors, and benefits the Bank, its successors and assigns. Any reference to the Bank includes any holder of this Term Note. Section headings are for convenience of reference only and do not affect the interpretation of this Term Note. Any notices and demands under or related to this Term Note shall be delivered in accordance with Section 9.1 of the Credit Agreement. This Term Note and the Other Loan Documents embody the entire agreement between Borrower and the Bank regarding the terms of the loan evidenced by this Term Note and supersede all oral statements and prior writings relating to that loan. No delay on the part of the Bank in the exercise of any right or remedy waives that right or remedy. No single or partial exercise by the Bank of any right or remedy precludes any other future exercise of it or the exercise of any other right or remedy. No waiver or indulgence by the Bank of any default is effective unless it is in writing and signed by the Bank, nor shall a waiver on one occasion bar or waive that right on any future occasion. The rights of the Bank under this Term Note and the other Loan Documents are in addition to other rights (including without limitation, other rights of setoff) the Bank may have contractually, by law, in equity or otherwise, all of which are cumulative and hereby retained by the Bank. If any provision of this Term Note cannot be enforced, the remaining portions of this Term Note shall continue in effect. The Borrower agrees that the Bank may provide any information or knowledge the Bank may have about the Borrower or about any matter relating to this Term Note or the Loan Documents to the Bank’s Subsidiaries or Affiliates or their successors, or to any one or more purchasers or potential purchasers of this Term Note or the Loan Documents. The Borrower agrees that the Bank may at any time sell, assign or transfer one or more interests or participations in all or any part of its rights and obligations in this Term Note to one or more purchasers whether or not related to the Bank.
WAIVER OF SPECIAL DAMAGES. THE BORROWER WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR RECOVER FROM THE BANK IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
JURY WAIVER. AS MORE FULLY SET FORTH IN SECTION 12 OF THE CREDIT AGREEMENT, THE BORROWER AND THE BANK (BY ITS ACCEPTANCE HEREOF) HEREBY INCORPORATE BY REFERENCE THE PROVISIONS OF SECTION 12 OF THE CREDIT AGREEMENT THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO PROVIDE THE FINANCING EVIDENCED BY THIS TERM NOTE.
Signature Appears on Following Page
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THIS TERM NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
Medical Transcription Billing, Corp., a Delaware corporation, as the Borrower | |
| By:/s/ Xxxxxx Xxx | |
| Name: Xxxxxx Xxx | |
| Title: CEO | |
| Date Signed: 9/2/2015 |
