Loan Agreement with Frost Bank for $300,000 due February 13, 2010
Exhibit
10.18
Loan Agreement
with Frost Bank for $300,000 due February 13, 2010
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Principal
$300,000.00
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Loan
Date
03-04-2008
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Maturity
02-13-2010
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Loan
No.
9001
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Call:/Coll
500
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Account
▇▇▇▇▇▇▇
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Officer
792
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Initials
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References
in the boxes above are for ▇▇▇▇▇▇’s use only and do not limit the applicability
of this document to any particular loan or item.
Any Item
above containing “***” has been omitted due to text length
limitations.
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Borrower:
LABWIRE,
INC, (TIN: ▇▇-▇▇▇▇▇▇▇)
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Lender:
THE FROST NATIONAL BANK
BELLAIRE
FINANCIAL CENTER
P.O.
BOX 1600
SAN
ANTONIO, TX 78298
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Principal
Amount: $300,000.00 Date of Note: March 4. 2008 PROMISE TO PAY. LABWIRE, INC.
(“Borrower”) promises to pay to THE FROST NATIONAL BANK (“Lender”). or order, in
lawful money of the United States of America the principal amount of Three
Hundred Thousand & 00/100 Dollars ($300,000.00) or so much as may be
outstanding, together with interest on the unpaid outstanding principal balance
of each advance. Interest shall be calculated from the date of each advance
until repayment of each advance or maturity whichever occurs first.
CHOICE OF USURY CEILING AND INTEREST
RATE. The Interest rate on this Note has been implemented under the
“Weekly Ceiling” as referred to In Sections 303,002 and 303.003 of the Texas
Finance Code. The terms, including the rate, or index, formula, or provision of
law used to compute the rate on the Note, will be subject to revision as to
current and future balances from time to time by notice from Lender In
compliance with Section 303.103 of the Texas Finance Code.
PAYMENT. Borrower will pay
this loan in one payment of all outstanding principal plus all accrued unpaid
Interest on February 13, 2010. In addition, Borrower will pay regular monthly
payments of all accrued unpaid Interest due as of each payment date, beginning
March 13, 2008, with all subsequent interest payments to be due on the same day
of each month after that. Unless otherwise agreed or required by applicable law,
payments will be applied first to any unpaid collection costs; then to any
accrued unpaid interest; and then to principal. The annual interest rate for
this Note Is computed on Q 365/360 basis; that is, by applying the rate of the
annual 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, unless such calculation would result in a usurious rate in which
case interest shall be calculated on a per diem basis of a year of 365 or 366
days, as the case may be. Borrower will pay Lender at ▇▇▇▇▇▇’s address shown
above or at such other place as lender may designate in writing.
VARIABLE INTEREST RATE. The
interest rate on this Note Is subject to change from time to time based on
changes in an index which is ▇▇▇▇▇▇’s Prime Rate (the “Index”), This is the rate
Lender charges, or would charge, on 90-day unsecured loans to the most
creditworthy corporate customers. This rate may or may not be the lowest rate
available from Lender at any given time. Lender will tell Borrower the current
Index rate upon Borrower’s request, the interest rate change will not occur more
often than each day. Borrower understands that Lender may make loans based on
other rates as well. The interest rate to be applied prior to maturity to the
unpaid principal balance during this Note will be at a rate of 1.000 percentage
point over the Index. NOTICE: Under no circumstances will the interest rate on
this Note be more than the maximum rate allowed by applicable law. For purposes
of this Note, the “maximum rate allowed by applicable law· means the greater of
(AI the maximum rate of interest permitted under federal or other law applicable
to the indebtedness evidenced by this Note, or (B) the “Weekly Ceiling” as
referred to In Sections 303.002 and 303.003 of the Texas Finance
Code.
PREPAYMENT. Borrower may pay
without penalty all or a portion of the amount owed earlier than it is due.
Prepayment in full shall consist of payment of the remaining unpaid principal
balance together with all accrued and unpaid interest and all other amounts,
costs and expenses for which Borrower is responsible under this Note or any
other agreement with Lender pertaining to this loan, and in no event will
Borrower ever be required to pay any unearned interest. Early payments will not,
unless agreed to by ▇▇▇▇▇▇ in writing, relieve ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇’s obligation
to continue to make payments of accrued unpaid interest. Rather, early payments
will reduce the principal balance due. ▇▇▇▇▇▇▇▇ agrees not to send Lender
payments marked “paid in full”, “without recourse”, or similar language. If
Borrower sends such a payment, ▇▇▇▇▇▇ may accept it without losing any of
▇▇▇▇▇▇’s rights under this Note, and Borrower will remain obligated to pay any
further amount owed to Lender. All written communications concerning disputed
amounts, including any check or other payment instrument that indicates that the
payment constitutes “payment In full” of the amount owed or that is tendered
with other conditions or limitations or as full satisfaction of a disputed
amount must be mailed or delivered to: THE FROST NATIONAL BANK, P.O. BOX 1600
SAN ANTONIO, TX 78296.
POST MATURITY RATE. The Post
Maturity Rate on this Note is the lesser of (A) the maximum rate allowed by law
or (B) 18.000% per annum. Borrower will pay interest on all sums due after final
maturity whether by acceleration or otherwise, at that rate.
DEFAULT. Each of the following
shall constitute an event of default (“Event of Default”) under this
Note:
Payment Default. Borrower
fails to make any payment when due under this Note.
Other Defaults. Borrower fails
to comply with or to perform any other term, obligation, covenant or condition
contained in this Note or in any of the related documents or to comply with or
to perform any term, obligation, covenant or condition contained in any other
agreement between Lender and Borrower.
Default in Favor of Third
Parties. Borrower or any Grantor defaults under any loan, extension of
credit, security agreement purchase or sales agreement, or any other agreement,
in favor of any other creditor or person that may materially affect any of
Borrower’s property or Borrower’s ability to repay this Note or perform
Borrower’s obligations under this Note or any of the related
documents.
False Statements. Any
warranty, representation or statement made or furnished to Lender by Borrower or
on Borrower’s behalf under this Note or the related documents is false or
misleading in any material respect, either now or at the time made or furnished
or becomes false or misleading at any time thereafter.
Insolvency. The dissolution or
termination of ▇▇▇▇▇▇▇▇’s existence as a going business the Insolvency of
Borrower, the appointment at a
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Loan
No: 9001
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PROMISSORY
NOTE
(Continued)
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Page
2
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Creditor
or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Borrower of’ by any governmental agency against
any collateral securing the loan. This includes a garnishment of any of
Borrower’s accounts, including deposit accounts, with Lender. However, this
Event of Default shall not apply if there is a good faith dispute by ▇▇▇▇▇▇▇▇ as
to the validity or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding and If Borrower gives Lender written notice of
the creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount determined
by lender, in its sale discretion, as being an adequate reserve or bond for the
dispute.
Events Affecting Guarantor.
Any of the preceding events occurs with respect to any Guarantor of any of the
indebtedness or any Guarantor dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any guaranty of the Indebtedness
evidenced by this Note.
Change In Ownership. Any
change in ownership of twenty-five percent (25%) of more of the common stock of
Borrower.
Adverse Change. A materiel
adverse change occurs in Borrower’s financial condition, or ▇▇▇▇▇▇ believes the
prospect of payment or performance at this Note Is impaired.
Insecurity. Lender in good
faith believes itself insecure.
LENDER’S RIGHTS. Upon default,
▇▇▇▇▇▇ may declare the entire indebtedness, including tile unpaid principal
balance under this Note, all accrued unpaid Interest, and all other amounts,
costs and expenses for which Borrower is responsible under this Note or any
other agreement with Lender pertaining to this loan, immediately due, without
notice, and then Borrower will pay that amount.
ATTORNEYS’ FEES: EXPENSES.
▇▇▇▇▇▇ may hire an attorney to help collect this Note if Borrower does not pay,
and Borrower will pay ▇▇▇▇▇▇’s reasonable attorneys’ fees. Borrower also will
pay Lender all other amounts Lender actually Incurs as court costs, lawful fees
for filing, recording, releasing to any public office any instrument securing
this Note; the reasonable cost actually expended for repossessing, storing,
preparing for sale, and selling any security; and fees for noting e lien on or
transferring a certificate of title to any motor vehicle offered as security for
this Note, or premiums or identifiable charges received in connection with the
sale of authorized insurance.
GOVERNING LAW. This Note will
be governed by federal law applicable to Lender and, to the extent not preempted
by federal law, the laws of the State of Texas without regard to its conflicts
of law provisions. This Note has been accepted by ▇▇▇▇▇▇ in the State of
Texas.
CHOICE OF VENUE. If there is a
lawsuit, and lf the transaction evidenced by this Note occurred in BEXAR County,
▇▇▇▇▇▇▇▇ agrees upon ▇▇▇▇▇▇’s request to submit to the jurisdiction of the
courts of BEXAR County, State of Texas.
RIGHT OF SETOFF. To the extent
permitted by applicable law, Lender reserves a right of setoff in all Borrower’s
accounts with Lender (whether checking, savings, or some other account). This
includes all accounts Borrower holds jointly with someone else and all accounts
Borrower may open in the future. However, this does not include any IRA or ▇▇▇▇▇
accounts, or any trust accounts for which setoff would be prohibited by law.
Borrower authorizes ▇▇▇▇▇▇, to the extent permitted by applicable law, to charge
or setoff all sums owing on the indebtedness against any and all such
accounts.
LINE OF CREDIT. This Note
evidences a revolving line of credit. Advances under this Note, as well as
directions for payment from ▇▇▇▇▇▇▇▇’s accounts, may be requested orally or in
writing by Borrower or by an authorized person. Lender may, but need not,
require that all requests be confirmed in writing. ▇▇▇▇▇▇▇▇ agrees to be liable
for all sums either: (A) advanced in accordance with the instructions of an
authorized person or (B) credited to any of ▇▇▇▇▇▇▇▇’s accounts with ▇▇▇▇▇▇. The
unpaid principal balance owing on this Note at any time may be evidenced by
endorsements on this Note or by ▇▇▇▇▇▇’s internal records, including daily
computer print-outs. Lender will have no obligation to advance funds under this
Note if: (A) Borrower or any guarantor is in default under the terms of this
Note or any agreement that Borrower or any guarantor has with lender, including
any agreement made in connection with the signing of this Note; (B) Borrower or
any guarantor ceases doing business or is Insolvent; (C) any guarantor seeks,
claims or otherwise attempts to limit, modify or revoke such guarantor’s
guarantee of this Note or any other loan with Lender; (D) Borrower has applied
funds provided pursuant to this Note for purposes other than these authorized by
Lender; or (E) Lender In good faith believes itself insecure. This revolving
line of credit shall not be subject to Ch. 346 of the Texas Finance
Code.
RENEWAL AND EXTENSION. This
Note is given in renewal and extension and not in novation of the following
described indebtedness: The promissory note from Borrower to Lender dated
February 13, 2007 in the original principal amount of $300,000.00.
DISHONORED CHECK CHARGE. In
the event a check offered in full or partial payment on this loan is returned
unpaid, ▇▇▇▇▇▇ may charge a fee for the purpose of defraying the expense
incident to handling such returned check, and ▇▇▇▇▇▇▇▇ agrees to pay such fee.
The fee shall not exceed the maximum amount permitted under applicable
law.
OTHER CREDITS AFFECTING AVAILABILITY.
Any other credits made available to Borrower by ▇▇▇▇▇▇, such as other
loans or letters of credit. may be advanced to Borrower and/or issued under this
line of credit commitment, and any such advances or issuances shall, in addition
to the outstanding advances on this Note, reduce the outstanding availability on
the Line of Credit.
ADVANCES BY TELEPHONE. Subject
to other provisions regarding advances contained in this Note, ▇▇▇▇▇▇▇▇ can
request advances on this Note by telephone to be applied to Borrower’s
designated deposit account. ▇▇▇▇▇▇▇▇ agrees that ▇▇▇▇▇▇ does not accept
responsibility for the authenticity of telephone instructions and that ▇▇▇▇▇▇
will not be liable for any loss, expense, or cost arising out of any telephone
request, including any fraudulent or unauthorized telephone request, when acing
upon such instructions believed to be genuine.
OVERDRAFT. Borrower may
designate one or more deposit accounts with Lender tor overdraft protection. If
the balance in a designated deposit account is at any time insufficient to pay
any check drawn on such account, subject to other provisions regarding advances
contained in this Note, Lender will make an advance (in increments of $50,000)
sufficient to pay such check and credit said amount advanced to such deposit
account, provided that the sum of such advance plus the outstanding advances on
this Note do not exceed the principal amount of this Note. Advances will not be
made from this Note to lend automated teller machine/point of sale transactions
to a deposit account. If a designated deposit account is a joint account any
person authorized to withdraw funds therefrom may do so under the provisions of
the Note [which is expressly authorized by you) and ell charges made pursuant to
the Note shall be fully binding on Borrower.
FINANCIAL INFORMATION.
▇▇▇▇▇▇▇▇ agrees to promptly furnish and cause any other person who signs,
guarantees or endorses this Note or any other document executed in connection
with this Note, to furnish such financial information and statements, including
financial statements in a format acceptable to Lender, lists of assets and
liabilities, agings of receivables and payables, inventory schedules, budgets,
forecasts, tax returns, and other reports with respect to Borrower’s or such
person’s financial condition and business operations as ▇▇▇▇▇▇ may request from
time to time. This provision shall not alter the Obligation to deliver’ to
Lender any other financial statements or reports pursuant to the terms of any
other ▇▇▇▇ documents executed in connection with this Note.
INSURANCE. ▇▇▇▇▇▇▇▇ agrees to
maintain Insurance of such types, including public liability Insurance, and in
such amounts as, are satisfactory
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Loan
No: 9001
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PROMISSORY
NOTE
(Continued)
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Page
3
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to Lender
and to furnish Lender upon request with a detailed list, in form and substance
satisfactory to Lender, of all insurance then in elect.
FACSIMILE DOCUMENTS AND SIGNATURES.
For purposes of negotiating and finalizing this document, it this
document is transmitted by facsimile machine (“fax”), it shall be treated for
all purposes as an original document. Additionally, the signature of any party
on this document transmitted by way of a fax machine shall be considered for ell
purposes as an original signature. Any such faxed document shall be considered
to have the same binding legal effect as an original document. Upon request of
▇▇▇▇▇▇, any faxed document shall be re-executed by each signatory party in an
original form.
WAIVER OF
RIGHT TO TRIAL BY JURY. THE UNDERSIGNED HEREBY WAIVES TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT TO ENFORCE THIS AGREEMENT, TO COLLECT
DAMAGES FOR THE BREACH OF THIS AGREEMENT, OR WHICH IN ANY OTHER WAY ARISE OUT
OF, ARE CONNECTED TO OR ARE RELATED TO THIS AGREEMENT OR THE SUBJECT MANNER OF
THIS AGREEMENT. ANY SUCH ACTION SHALL BE TRIED BY THE JUDGE WITHOUTA
JURY.
SUCCESSOR INTERESTS. The terms
of this Note shall be binding upon ▇▇▇▇▇▇▇▇ and upon ▇▇▇▇▇▇▇▇’s heirs, personal
representatives, successors and assigns, and shall insure to the benefit of
Lender and its successors and assigns.
GENERAL PROVISIONS. If any
part of this Note cannot be enforced, this fact will not affect the rest of the
Note. Borrower does not agree or intend to pay, and ▇▇▇▇▇▇ does not agree or
intend to contract for, charge, collect, take, reserve or receive (collectively
referred to herein as “charge or collect”) any amount in the nature of interest
or in the nature of a fee for this loan, which would in any way or event
(including demand, prepayment, or acceleration cause Lender to charge or collect
more for this loan than the maximum Lender would be permitted to charge or
collect by federal law or the law of the State of Texas (as applicable). Any
such excess Interest or unauthorized fee shall, instead of anything stated to
the contrary, be applied first to reduce the principal balance of this loan, and
when the principal has been paid in full, be refunded to Borrower. The right to
accelerate maturity of sums due under this Note does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and Lender does not intend to charge or collect any unearned
interest in the event of acceleration. All sums paid or agreed to be paid to
Lender for the use, forbearance or detention of sums due hereunder shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of the loan evidenced by this Note until payment in
full so that the rate or amount of interest on account of the loan evidenced
hereby does not exceed the applicable usury ceiling. Lender may delay or forgo
enforcing any of its rights or remedies under this Note without losing them.
Borrower and any other person who signs, guarantees or endorses this Note, to
the extent allowed by law, waive presentment, demand for payment, notice of
dishonor, notice of intent to accelerate the maturity of this Note, and notice
of acceleration of the maturity of this Note. Upon any change in the terms of
this Note, and unless otherwise expressly stated in writing, no party who signs
this Note, whether as maker, guarantor, accommodation maker or endorser, shall
be released from liability. All such parties agree that Lender may renew or
extend (repeatedly and for any length of time) this loan or release any party or
guarantor or collateral; or impair, fail to realize upon or perfect ▇▇▇▇▇▇’s
security interest in the collateral without the consent of or notice to anyone.
All such parties also agree that ▇▇▇▇▇▇ may modify this loan without the consent
of or notice to anyone other than the party with whom the modification is made.
The obligations under this Note are joint and several.
PRIOR TO
SIGNING THIS NOTE, ▇▇▇▇▇▇▇▇ READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE,
INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. ▇▇▇▇▇▇▇▇ AGREES TO THE TERMS OF
THE NOTE.
BORROWER
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
LABWIRE,
INC.
By: //s//
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, President of LABWIRE, INC.