MODIFICATION OF PROMISSORY NOTE ("Modification")
Exhibit
10.1
("Modification")
THAT,
____________________ ("Borrower"), a Florida limited liability company,
acting herein by and through Xxxxxxx X. Xxxxx, M.D. its duly authorized Member,
being legally obligated to pay that certain promissory note dated December 30,
2005, in the principal amount of _______ ("Note"), executed by Xxxxxxxx
and made payable to the order of AMEGY BANK NATIONAL ASSOCIATION ("Lender"),
said Note being secured by, inter alia, that certain (i) Commercial Security
Agreement dated December 30, 2005, executed by Xxxxxxxx in favor of Lender, (ii)
Business Loan Agreement (Asset Based) dated December 30, 2005, executed by
Xxxxxxxx and Xxxxxx, (iii) Commercial Guaranty dated December 30, 2005, executed
by Xxxxxxx X. Xxxxx, M.D. in favor of Xxxxxx, (iv) Commercial Guaranty dated
December 30, 2005, executed by Xxxx Xxxxxx, M.D. in favor of Xxxxxx, (v)
Commercial Guaranty dated December 30, 2005, executed by Xxxxxxx Xxxxxxxx
Xxxxxx, M.D. in favor of Xxxxxx and (vi) Commercial Guaranty dated December 30,
2005, executed by Xxxxxx Xxxxxxxxxxxx, M.D. in favor of Xxxxxx (collectively
called "Loan Documents").
WHEREAS,
Borrower desires to further renew, modify, extend or otherwise rearrange the
time or manner of payment of said Note as more particularly set forth herein;
and
WHEREAS,
Xxxxxx, the legal owner and holder of said Note and of the security interests
securing the same, in consideration of the premises and at the request of
Xxxxxxxx, has agreed to renew, modify, extend or otherwise rearrange the time or
manner of payment of said Note, all as hereinafter provided.
NOW,
THEREFORE, in consideration ofthe renewal, extension, modification and/or
rearrangement of the time or manner of payment of said Note as hereinafter set
forth, Borrower hereby renews said Note and indebtedness and promises to pay to
the order of Lender, in the City of Houston, Xxxxxx County, Texas, the principal
sum of $495,502.09 (being the outstanding unpaid principal balance of the Note
as of the Effective Date [hereinafter defined), together with interest on the
principal amount hereof from time to time outstanding from the Effective Date
through the Maturity Date (hereinafter defined) at a varying rate per annum
equal to the lesser of (i) the Prime Rate (hereinafter defined) ("Applicable
Rate") or (ii) the maximum lawful rate of interest permitted to be charged by
Lender to Borrower under the laws of the State of Texas or the United States of
America (whichever is higher) and further limited by the provisions of the Note
and as hereinafter set forth, which provisions control the calculation of
interest to be charged on the loan evidenced by the Note ("Maximum Rate"). The
term "Prime Rate" means the prime rate of interest on commercial loans, on a per
annum basis, announced or established by Lender, situated in Houston, Texas, or
its successors, from time to time. Each change in the Prime Rate shall become
effective, without notice to Borrower, on the date each such change in such
Prime Rate is announced or established by Lender. The Prime Rate is a reference
rate and may not be the lowest or the best rate actually charged to any
customer. Interest on the outstanding principal balance hereof shall be computed
on the actual number of days said principal is outstanding on the basis of a
360-day year unless such calculation would result in a usurious rate in which
case the interest shall be calculated on the basis of a 365-day or 366-day
(leap) year, as shall be applicable. In no event shall Chapter 346 of the Texas
Finance Code (which regulates certain revolving loan accounts and revolving
tri-party accounts) apply to this Note. To the extent that Chapter 303 of the
Texas Finance Code ("Finance Code") is applicable to the Note for the purposes
of determining the Maximum Rate, Lender elects to determine such applicable
legal rate pursuant to the indicated weekly ceiling, from time to time in
effect, as referred to and defined in Chapter 303 of the Finance Code, subject,
however, to the limitations on such applicable ceiling referred to and defined
in Finance Code and further subject to any right of Lender to change the method
of determining the Maximum Rate and to rely on other applicable laws, including,
without limitation, laws of the United States ofAmerica, for calculation of the
Maximum Rate if the application thereof results in a greater Maximum
Rate.
Xxxxxxxx
promises to pay the principal balance of the Note and all interest thereon, as
follows:
(i)
Interest, on the outstanding principal balance of the Note, as said outstanding
principal balance shall exist from time to time, shall he due and payable
monthly commencing March 28, 2008 and continuing monthly and regularly
thereafter on the 28th day of
each and every month; 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 the interest accrued and to the reduction of the principal, in such
order as Lender shall determine;
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(ii) A
principal payment in the amount of Ten Thousand and N
o /10 0 ($10,000.00) Dollars shall be due and payable on August 28, 2008
and September 28, 2008; and
(iii) The
entire amount hereof, principal and interest then remaining unpaid, shall be due
and payable in full on October 28, 2008 ("Maturity Date").
It is
agreed that all past due principal and accrued interest shall bear interest from
five (5) days after the date it is due until paid at the Maximum
Rate.
It is
expressly provided and stipulated that, notwithstanding any other provision of
the Note to the contrary or in any other agreement entered into in connection
herewith or securing the indebtedness evidenced hereby, whether now existing or
hereafter arising and whether written or oral, it is agreed that the aggregate
of all interest and any other charges which, under applicable laws, are deemed
to constitute interest or adjudicated as constituting interest any contracted
for, chargeable or receivable under the Note or otherwise in connection with the
loan transaction evidenced, in part, by the Note, shall under no circumstances
ever exceed the Maximum Rate. In this connection, it is expressly stipulated and
agreed that it is the intent of Xxxxxxxx and Lender in the execution and
delivery of this Modification to contract in strict compliance with the state
and federal usury laws from time to time in effect and none of the terms of the
Note or the security instruments hereinafter described shall ever be construed
to create a contract to pay for the use, forbearance or detention of money,
interest at a rate in excess of the Maximum Rate. Borrower or any guarantors,
endorsers or other parties now or hereafter becoming liable for the payment of
the Note
shall never be liable for interest in excess of the Maximum Rate and the
provisions of this paragraph shall control over all other provisions of the
Note
or the security instruments which may be in apparent conflict therewith. In the
event the maturity of the Note is accelerated by reason of an election by the
holder of the Note resulting from a default thereunder or under any other
document executed as security therefor or agreement entered into in connection
therewith, or by voluntary prepayment by Borrower or otherwise, then earned
interest may never include more than the Maximum Rate computed from the dates of
each advance of the loan proceeds outstanding until payment. All sums paid or
agreed to be paid to the holder of the Note for the use, forbearance or
detention of the indebtedness of Borrower evidenced hereby shall, to the
greatest extent permitted by applicable law, be amortized, prorated, allocated
and spread throughout the full term of the Note until payment in full so that
the actual rate of interest on account of such indebtedness never exceeds the
Maximum Rate at any time during the term hereof. If from any circumstances any
holder of the Note
shall ever receive interest or any charges constituting interest or adjudicated
as constituting interest which would exceed the Maximum Rate, the amount, if
any, which would exceed the Maximum Rate shall be applied to the reduction of
the principal amount owing on the Note or an account of any other principal
indebtedness of Borrower to the holder of the Note and not to the payment of
interest or if such excessive interest exceeds the unpaid balance hereof and
such other indebtedness, the amount of such excessive interest that exceeds the
unpaid balance of principal hereof and such other indebtedness shall be refunded
to Borrower.
It is
agreed that time is of the essence of this Modification and it is
expressly provided that upon default in the punctual payment of the Note
or any part thereof, principal or interest, as the same shall become due and
payable, and such default continues for a period of five (5) days after written
notice to Borrower given in accordance with the provisions of this Modification,
or upon the occurrence of any default specified in any of the other Loan
Documents (hereinafter defined), and such default continues for a period often
(10) days after written notice to Borrower given in accordance with the
provisions of the Note, or if Borrower or any guarantor becomes insolvent or
commits an act of bankruptcy or makes an assignment for benefit of creditors or
authorizes the filing of or files a voluntary petition in bankruptcy or takes
advantage of or seeks any other relief under any bankruptcy, reorganization,
debtor's relief or insolvency law now or hereafter existing, or
in the event a receiver of any property of Borrower or any guarantor is
appointed and such appointment is not vacated within thirty (30) days after the
appointment thereof, or in the event involuntary bankruptcy proceedings are
filed against Borrower or any guarantor and the same is not discharged within
sixty (60) days after the date of the filing thereof, or in the event that any
writ of garnishment, writ of sequestration, writ of
attachment or other legal process in any manner applicable to or concerning any
property securing this indebtedness of (or debt by the holder hereof to)
Borrower or any guarantor is applied for or issued, or in the event of the
occurrence or non-occurrence of any event whatsoever which would permit the
holder of the Note to accelerate the maturity hereof under any instrument,
document or other writing now or hereafter securing or pertaining to the Note,
then, in any such event, the holder of the Note may, at its option, without
notice (or further notice, if notice of default has been previously given) or
demand declare the outstanding unpaid principal balance and accrued but unpaid
interest of the Note immediately due and payable, refuse to advance any
additional amounts under the Note, foreclose all liens securing the payment of
the Note, or any part thereof, offset against the Note any sum or sums owed by
the holder of the Note to Borrower, and pursue any and all other rights and
remedies available to the holder of the Note, including, but not limited to, any
such rights, remedies and recourses under the Loan Documents, at law or in
equity, all such rights and remedies being cumulative. Failure by the holder of
the Note to exercise any such option shall not constitute a waiver of the right
to exercise the same in the event of a subsequent default.
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If the
Note is not paid at maturity, howsoever such maturity may be brought about, and
is placed in the hands of any attorney for collection, or suit is filed hereon,
or proceedings are had in probate, bankruptcy, receivership or other legal
proceedings, then Xxxxxxxx agrees and promises to pay Xxxxxx's collection costs
and reasonable attorney's fees which shall be added to the principal of this
Note and shall bear interest at the Maximum Rate.
The Note
is secured by and the holder of the Note is entitled to the benefits of all
security agreements, collateral assignments, guaranty agreements and lien
instruments executed by Borrower (or by any other party or parties) in favor of
Xxxxxx, including those executed simultaneously herewith, those executed
heretofore and those hereafter executed and including specifically and without
limitation, inter alia, the Loan Documents.
Borrower
and each surety, endorser, guarantor or other party now or hereafter primarily
liable for the payment of any sums of money payable upon the Note, as well as
all heirs, representatives and successors of said parties, shall be directly and
primarily, jointly and severally liable for the payment of all indebtedness
hereunder. Except as specifically provided herein, all such persons or entities
expressly waive presentment and demand for payment, notice of default, notice of
intent to accelerate maturity, notice of acceleration of maturity, protest,
notice of protest, notice of dishonor and all other notices and demands for
which waiver is not prohibited by law, filing of suit and diligence in
collecting the Note or enforcing any of the security heretofore described and
agree to any substitution, exchange or release of any such security or the
release of any party liable hereon and further agree that it will not be
necessary for any holder hereof, in order to enforce payment of the Note, to
first institute suit or exhaust its remedies against any Borrower or others
liable hereof, or to enforce its rights against any security herefor, and
consent to any extension or postponement of time of payment of the Note or any
other indulgence with respect hereto, without notice thereof to any of them. The
undersigned hereby agrees that Xxxxxx shall not be obligated to advance any sums
hereunder in the event that any guarantor notifies Lender of termination of its
liability under the terms and conditions of its guaranty or
hereunder.
Borrower
hereby extends all security described hereinbefore until said indebtedness and
Note as so renewed and extended has been fully paid, and agrees that such
extension or rearrangement shall in no manner affect or impair said Note or the
security interests securing the same and that said security interests shall not
in any manner be waived or extinguished, the purpose of this instrument being
simply to extend or rearrange the time or manner of payment of said Note and
indebtedness and to carry forward all security interests securing the same,
which are acknowledged by Borrower to be valid and subsisting, and Xxxxxxxx
further agrees that all terms and provisions of said original Note and of the
instrument or instruments creating or fixing the liens and security interests
securing the same shall be and remain in full force and effect as therein
written, except as otherwise expressly provided herein.
TO THE
FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY FULLY RELEASES, REMISES,
ACQUITS AND FOREVER DISCHARGES LENDER, ITS OFFICERS, DIRECTORS, ATTORNEYS,
EMPLOYEES AND SHAREHOLDERS, FROM ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION,
SUITS, DISPUTES, CONTROVERSIES, DEBTS, OFFSET RIGHTS, DEFENSES TO PAYMENT,
LOSSES, DAMAGES AND DEMANDS OF WHATSOEVER NATURE (COLLECTIVELY CALLED "CLAIMS"),
KNOWN OR UNKNOWN, WHETHER IN CONTRACT OR IN TORT, AT LAW OR IN EQUITY, FOR MONEY
DAMAGES OR DUES,
RECOVERY OF PROPERTY OR SPECIFIC PERFORMANCE, OR ANY OTHER REDRESS OR RECOMPENSE
WHICH HAVE ACCRUED OR MAY EVER ACCRUE, MAY HAVE BEEN HAD, OR MAY BE NOW
POSSESSED OR MAY OR SHALL BE POSSESSED IN THE FUTURE BY OR ON BEHALF OF BORROWER
AGAINST XXXXXX, ITS OFFICERS, DIRECTORS, ATTORNEYS, EMPLOYEES AND SHAREHOLDERS,
BY REASON OF, ON ACCOUNT OF, OR ARISING FROM OR OUT OF THE NOTE, THE DOCUMENTS
EXECUTED IN CONNECTION WITH OR SECURING THE NOTE OR THE LOAN TRANSACTION
EVIDENCED BY THE NOTE AND ANY RENEWALS OR EXTENSIONS OR MODIFICATIONS OF THE
NOTE. XXXXXXXX HEREBY REPRESENTS AND WARRANTS UNTO LENDER THAT BORROWER IS THE
OWNER AND HOLDER OF EACH OF THE CLAIMS RELEASED HEREIN AND BORROWER IS FULLY
AUTHORIZED TO EXECUTE AND DELIVER THIS RELEASE WITHOUT THE NECESSITY OF
OBTAINING THE CONSENT OF ANY OTHER PARTY.
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All
notices, requests, demands and other communications required or permitted
hereunder shall be in writing and shall be sent by telecopier, hand delivery or
by registered or certified mail, return receipt requested, to the party entitled
to receive such notice or communication at the address reflected hereinbelow or
any such other address as such party shall request in a written notice made in
compliance herewith; such notice or communication will be deemed received
(regardless of whether actually received) on the earlier of the date actually
received, if sent by telecopier or hand delivery, or three (3) days after the
date mailed. All such notices or documents to be given to Borrower or Lender
shall be void and of no effect unless given in accordance with the provisions of
this paragraph.
THIS
MODIFICATION IS BEING EXECUTED AND DELIVERED AND IS INTENDED TO BE
PERFORMED IN
XXXXXX COUNTY, TEXAS. EXCEPT TO THE EXTENT THAT THE LAWS OF THE UNITED
STATES MAY APPLY TO THE TERMS HEREOF, THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS
SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OP THIS
MODIFICATION. XXXXXXXX AGREES THAT ANY DISPUTE INVOLVING THE NOTE, THIS
MODIFICATION OR ANY OF THE LOAN DOCUMENTS OR ANY OTHER INSTRUMENTS EXECUTED IN
CONNECTION WITH THE NOTE, SHALL BE BROUGHT ONLY IN THE DISTRICT COURTS OF XXXXX
COUNTY, TEXAS OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
TEXAS, HOUSTON DIVISION.
If any
provision of this Modification is held to be illegal, invalid or unenforceable
under present or future laws, such provision shall be fully severable and the
legality, validity and enforceability of the remaining provisions of this
Modification shall not be affected thereby, and this Modification shall be
liberally construed so as to carry out the intent of the parties to it. Each
waiver in this Modification is subject to the overriding and controlling rule
that it shall be effective only if and to the extent that it is not prohibited
by applicable law and applicable law neither provides for nor allows any
material sanctions to be imposed against Lender for having bargained for and
obtained it.
THIS LOAN
IS PAYABLE 1N FULL ON THE MATURITY DATE.
Any
check, draft, money order or other instrument given in payment of all or any
portion hereof may be accepted by Xxxxxx and handled in collection in the
customary manner, but the same shall not constitute payment hereunder or
diminish any rights of Lender except to the extent that actual cash proceeds of
such instrument are unconditionally received by Lender. Acceptance by Lender of
any payment in an amount less than the amount then due shall be deemed an
acceptance on account only.
Borrower
specially understands and agrees that to the extent that the terms and
provisions of the Note are inconsistent or in conflict with the terms and
provisions of this Modification, this Modification shall govern and
control.
Lender
reserves the right, exercisable in Xxxxxx's sole discretion and without notice
to Borrower or any other person, to sell participations, to assign its interest
or both, in all or any part of the Note or the debt evidenced by the
Note.
THIS
MODIFICATION AND ALL OTHER LOAN DOCUMENTS EXECUTED AND DELIVERED IN CONNECTION
XXXXXXXX TOGETHER CONSTITUTE A W KITTEN LOAN AGREEM ENT AND REPRESENT
THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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THE
UNDERSIGNED EXPRESSLY ACKNOWLEDGES, UNDERSTANDS AND AGREES THAT XXXXXX'S
DOCUMENT RETENTION POLICY INVOLVES THE IMAGING OF THIS MODIFICATION AND THE
DESTRUCTION OF THE PAPER ORIGINAL AND IN CONNECTION THEREW ITH B ORROW ER WAIVES
ANY RIGHT THAT IT MAY HAVE TO CLAIM THE IMAGED COPY OF THIS MODIFICATION IS NOT
AN ORIGINAL FOR ALL PURPOSES.
EXECUTED
February 28, 2008 ("Effective Date").
| LENDER: | |||
| Address for Notice: | AMEGY BANK NATIONAL ASSOCIATION | ||
| Five Post Oak Park | |||
|
0000
Xxxx Xxx Xxxxxxx
|
By:
|
/s/ Xxxxxx Xxxxxxxx | |
| Houston, Texas 77027 | Xxxxxx Xxxxxxxx | ||
| Telecopier No. (000) 000-0000 | Senior Vice President | ||
| BORROWER: | |||
| Address for Notice: | AXCESS DIAGNOSTICS BRADENTON, LLC | ||
| P. 0. Box 447 | |||
|
Venice,
Florida 34289-0447
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
| Telecopier No. (000) 000-0000 | Xxxxxxx X. Xxxxx | ||
| M.D., Member | |||
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