EXHIBIT 10.17
REVOLVING PROMISSORY NOTE
(FLOATING RATE)
(this "Note")
THIS NOTE IS SUBJECT TO A CREDIT AGREEMENT
THIS IS A RENEWAL, EXTENSION, MODIFICATION
OR DEFERRAL OF NOTE
004-1638147-000001
NAME(S) AND ADDRESS(ES) OF B0RROWER(S)
MEDICAL INNOVATIONS INC., MEDICAL INNOVATIONS INC OF NEW JERSEY
MEDICAL INNOVATIONS (TEXAS), INC., THE GREAT EASTERN NURSING CORP.,
NURSES PRN OF VIRGINIA INC., MEDICAL INNOVATIONS OF VIRGINIA INC.,
PHYSICIAN'S VISITING NURSE SERVICE, INC.
NURSING INNOVATIONS, INC.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-
▇.▇. $ 600,000.00 (THE "DATE")
MARCH 15, 1996
ACCOUNT NUMBER/NOTE NUMBER TRANSACTION CODE TELLER OFFICER
004-1638147-000001 R VRL GKW
FOR VALUE RECEIVED, the "Borrower," (jointly and severally if more than
one), promises to pay to the order of
TEXAS COMMERCE BANK NATIONAL ASSOCIATION ("Bank") on or before APRIL 15,
1997, at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other
location as Bank may designate, in immediately available funds,
***SIX HUNDRED THOUSAND AND NO/100***
UNITED STATES DOLLARS (U.S. $600,000.00) (the "Maximum Amount of Note") or the
aggregate unpaid amount of all advances hereunder, whichever is less. Borrower
will also pay interest on the unpaid principal balance outstanding from time to
time at a rate per annum equal to the lesser of (i) the sum of the Prime Rate
(as hereinafter defined) from time to time in effect plus ZERO percent (0.000%),
(the "STATED RATE") or (ii) the maximum nonusurious rate of interest from time
to time permitted by applicable law, (the "HIGHEST LAWFUL RATE"). If the Stated
Rate at any time exceeds the Highest Lawful Rate, the actual rate of interest to
accrue on the unpaid principal amount of this Note will be limited to the
Highest Lawful Rate, but any subsequent reductions in the Stated Rate due to
reductions in the Prime Rate will not reduce the interest rate payable upon the
unpaid principal amount of this Note below the Highest Lawful Rate unto the
total amount of interest accrued on this Note equals the amount of interest
which would have accrued if the Stated Rate had at all times been in effect.
"PRIME RATE" means the rate determined from time to time by Bank as its
prime rate. The Prime Rate shall change automatically from time to time without
notice to Borrower or any other person. THE PRIME RATE IS A REFERENCE RATE AND
MAY NOT BE BANK'S LOWEST RATE.
If Texas law determines the Highest Lawful Rate, Bank has elected the
"indicated" (weekly) ceiling as defined in the Texas Credit Code or any
successor statute. Bank may from time to time, as to current and future
balances, elect and implement any other ceiling under such Code and/or revise
the index, formula or provisions of law used to compute the rate on this
open-end account by notice to Borrower, if and to the extent permitted by, and
in the manner provided in such Code.
Each advance must be at least
N/A
UNITED STATES DOLLARS (U.S.$ N/A ) unless the amount available for
borrowing under this Note is less.
Accrued and unpaid interest is due and payable MONTHLY, beginning on
APRIL 15, 1996, and continuing on the 15TH day of each MONTH thereafter and at
maturity when all unpaid principal and accrued and unpaid interest is finally
due and payable.
Interest will be computed on the basis of the actual number of days
elapsed and a year comprised of: [ ] 365 (or 366 as the case may be) days [X]
360 days, unless such calculation would result in a usurious interest rate, in
which case such interest will be calculated on the basis of a 365 or 366 day
year, as the case may be.
All past-due principal and interest on this Note will, at Bank's option,
bear interest at the Highest Lawful Rate, or if applicable law does not provide
for a maximum nonusurious rate of interest, at a rate per annum equal to 18%.
In addition to all principal and accrued interest on this Note, Borrower
agrees to pay: (a) all reasonable costs and expenses incurred by Bank and all
owners and holders of this Note in collecting this Note through probate,
reorganization, bankruptcy or any other proceeding; and (b) reasonable
attorney's fees if and when this Note is placed in the hands of an attorney for
collection.
Borrower and Bank intend to conform strictly to applicable usury laws,
Therefore, the total amount of interest (as defined under applicable law)
contracted for, charged or collected under this Note will never exceed the
Highest Lawful Rate. If Bank contracts for, charges or receives any excess
interest, it will be deemed a mistake. Bank will automatically reform the
contract or charge to conform to applicable law, and if excess interest has been
received, Bank will either refund the excess to Borrower or credit the excess on
the unpaid principal amount of this Note. All amounts constituting interest will
be spread throughout the full term of this Note in determining whether interest
exceeds lawful amounts.
The unpaid principal balance of this Note at any time will be the total
amounts advanced by Bank, less the amount of all payments or prepayments of
principal. Absent manifest error, the records of Bank will be conclusive as to
amounts owed. Subject to the terms and conditions of this Note and the Loan
Documents, Borrower may use all or any part of the credit provided for herein at
any time before the maturity of this Note and may borrow, repay and reborrow.
There is no limitation on the number of advances made so long as the total
unpaid principal amount at any time outstanding does not exceed the Maximum
Amount of Note.
Borrower may at any time pay the full amount or any part of this Note
without the payment of any premium or fee. Any partial prepayment will be in the
amount of U.S.$ N/A (U.S.$ N/A ), or an integral multiple
thereof. All payments may, at Bank's sole option, be applied to accrued
interest, to principal, or to both.
"LOAN DOCUMENT" means this Note and any document or instrument
evidencing, securing, guaranteeing or given in connection with this Note.
"OBLIGATIONS" means all principal, interest and other amounts which are or
become owing under this Note or any other Loan Document. "OBLIGOR" means
Borrower and any guarantor, surety, co-signer, general partner or other person
who may now or hereafter be obligated to pay all or any part of the Obligations.
Where appropriate the neuter gender includes the feminine and the masculine and
the singular number includes the plural number.
Each of the following events or conditions is an "EVENT OF DEFAULT:" (1)
any Obligor fails to pay any of the Obligations when due; (2) any warranty,
representation or statement now or hereafter contained in or made in connection
with any Loan Document was false or misleading in any respect when made; (3) any
Obligor violates any covenant, condition or agreement contained in any Loan
Document; (4) any Obligor fails or refuses to submit financial information
requested by Bank or to permit Bank to inspect its books and records on request;
(5) any event of default occurs under any other Loan Document; (6) any
individual Obligor dies, or any Obligor that is an entity dissolves; (7) a
receiver, conservator or similar official is appointed for any Obligor or any
Obligor's assets; (8) any petition is filed by or against any Obligor under any
bankruptcy, insolvency or similar law; (9) any Obligor makes an assignment for
the benefit of creditors; (10) a final judgment is entered against any Obligor
and remains unsatisfied for 30 days after entry, or any property of any Obligor
is attached, garnished or otherwise made subject to legal process; (11) any
material adverse change occurs in the business, assets, affairs or financial
condition of any Obligor; and (12) Borrower is in default of any other
obligation to or any other agreement with Bank.
If any Event of Default occurs, then Bank may do any or all of the
following: (i) cease making advances hereunder; (ii) declare the Obligations to
be immediately due and payable, without notice of acceleration or of intention
to accelerate, presentment and demand or protest or notice of any kind, all of
which are hereby expressly waived; (iii) set off, in any order, against the
Obligations any debt owing by Bank to any Obligor, including, but not limited
to, any deposit account, which right is hereby granted by each Obligor to Bank;
and (iv) exercise any and all other rights under the Loan Document, at law, in
equity or otherwise.
No waiver of any default is a waiver of any other default. Bank's delay
in exercising any right or power under any Loan Document is not a waiver of such
right or power.
Each Obligor severally waives notice, demand, presentment for payment,
notice of nonpayment, notice of intent to accelerate, notice of acceleration
protest, notice of protest, and the filing of suit and diligence in collecting
this Note and all other demands and notices, and consents and agrees that its
liabilities and obligations will not be released or discharged by any or all of
the following, whether with or without notice to it or any other Obligor, and
whether before or after the stated maturity hereof: (i) extensions of the time
of payment; (ii) renewals; (iii) acceptances of partial payments; (iv) releases
or substitutions of any collateral or any Obligor, and (v) failure, if any, to
perfect or maintain perfection of any security interest in any collateral. Each
Obligor agrees that acceptance of any partial payment will not constitute a
waiver and that waiver of any default will not constitute waiver of any prior or
subsequent default.
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Borrower represents and agrees that: all advances evidenced by this Note
are and will be for business, commercial, investment or other similar purpose
and not primarily for personal, family, or household use as such terms are used
in Chapter One of the Texas Credit Code.
Borrower represents and agrees that each of the following statements is
true unless the box preceding that statement is checked and initialed by
Borrower and Bank: (i): [ ] ____________ ____________ No advances will be used
primarily for agricultural purposes as such term is used in the Texas Credit
Code. (ii) [ ] ____________ ____________ No advances will be used for the
purpose of purchasing or carrying any margin stock as that term is defined in
Regulation U of the Board of Governors of the Federal Reserve System (the
"Board"). Notwithstanding anything contained herein or in any other Loan
Document, if this is a consumer credit obligation (as defined or described in 12
C.F.R. 227, Regulation AA, promulgated by the Board), the security for this
credit obligation will not extend to any non-possessory security interest in
household goods (as defined in Regulation AA) other than a purchase money
security Interest, and no waiver of any notice contained herein or therein will
extend to any waiver of notice prohibited by Regulation AA.
Chapter 15 of the Texas Credit Code shall not apply to this Note or to
any advance evidenced by this Note.
This Note is governed by Texas law. If any provision of this Note is
illegal or unenforceable, that illegality or unenforceability will not affect
the remaining provisions of this Note. BORROWER(S) AND BANK AGREE THAT THIS NOTE
WILL BE PERFORMED IN THE COUNTY IN WHICH BANK'S PRINCIPAL OFFICE IS LOCATED IN
TEXAS, AND THAT SUCH COUNTY IS PROPER VENUE FOR ANY ACTION OR PROCEEDING BROUGHT
BY BORROWER(S) OR BANK, WHETHER IN CONTRACT, TORT, OR OTHERWISE. ANY ACTION OR
PROCEEDING AGAINST BORROWER(S) MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN
SUCH COUNTY TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW. TO THE EXTENT
PERMITTED BY APPLICABLE LAW BORROWER(S) HEREBY IRREVOCABLY (A) SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (B) WAIVES ANY OBJECTION IT MAY
NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. BORROWER(S)
AGREES THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED ABOVE. BANK MAY SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW AND MAY BRING ANY ACTION OR
PROCEEDING AGAINST BORROWER(S) OR WITH RESPECT TO ANY OF ITS PROPERTY IN COURTS
IN OTHER PROPER JURISDICTIONS OR VENUES.
For purposes of this Note, any assignee or subsequent holder of this
Note will be considered the "Bank," and each successor to Borrower will be
considered the "Borrower."
Each Borrower and cosigner represents that if it is not a natural
person, it is duly organized and validly existing and in good standing under the
laws of the state of its incorporation or organization; has full power to own
its properties and to carry on its business as now conducted; is duly qualified
to do business and is in good standing in each jurisdiction in which the nature
of the business conducted by it makes such qualification desirable; and has not
commenced any dissolution proceedings. Each Borrower and cosigner that is
subject to the Texas Revised Partnership Act ("TRPA") agrees that Bank is not
required to comply with Section 3.05(d) of the TRPA and agrees that Bank may
proceed directly against one or more partners or their property without first
seeking satisfaction from partnership property. Each Borrower and cosigner
represents that if it conducts business under an assumed business or
professional name it has properly filed Assumed Name Certificate(s) in the
office(s) required by Chapter 36 of the Texas Business and Commerce Code. Each
of the persons signing below as Borrower or cosigner represents that he/she has
full requisite power and authority to execute and deliver this Note to Bank on
behalf of the party for whom he/she signs and to bind such party to the terms
and conditions of this Note and that this Note is enforceable against such
party.
NO COURSE OF DEALING BETWEEN BORROWER AND BANK, NO COURSE OF
PERFORMANCE, NO TRADE PRACTICES, AND NO EXTRINSIC EVIDENCE OF ANY NATURE MAY BE
USED TO CONTRADICT OR MODIFY ANY TERM OF THIS NOTE OR ANY OTHER LOAN DOCUMENT.
THIS NOTE AND THE OTHER WRITTEN 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.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, Borrower has executed this Note effective as of the Date.
Signature(s) of BORROWER(S):
MEDICAL INNOVATIONS INC, MEDICAL INNOVATIONS INC OF NEW JERSEY, PHYSICIAN'S
VISITING NURSE SERVICE, INC.
Date: 3-18-96
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
BY: ▇▇▇▇ ▇. ▇▇▇▇▇▇ TITLE: PRESIDENT BY: ▇▇▇▇ ▇. ▇▇▇▇▇▇ TITLE: PRESIDENT BY: ▇▇▇▇ ▇. ▇▇▇▇▇▇ TITLE: PRESIDENT
______________________________________________________________________________________ Date: ______________________________
MEDICAL INNOVATIONS (TEXAS), INC, THE GREAT EASTERN NURSING CORP, NURSING
INNOVATIONS, INC.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
BY: ▇▇▇▇ ▇. ▇▇▇▇▇▇ TITLE: PRESIDENT BY: ▇▇▇▇ ▇. ▇▇▇▇▇▇ TITLE: PRESIDENT BY: ▇▇▇▇ ▇. ▇▇▇▇▇▇ TITLE: PRESIDENT
______________________________________________________________________________________ Date: ______________________________
NURSES PRN OF VIRGINIA INC, MEDICAL INNOVATIONS OF VIRGINIA INC
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
BY: ▇▇▇▇ ▇. ▇▇▇▇▇▇ TITLE: PRESIDENT BY: ▇▇▇▇ ▇. ▇▇▇▇▇▇ TITLE: PRESIDENT Date: ______________________________
______________________________________________________________________________________ Date: ______________________________
The undersigned hereby cosigns this Note:
Signature of COSIGNER: _________________________________________________________
Address of Cosigner: ___________________________________________________________
(Bank's signature is provided as its acknowledgement of the above as the final
written agreement between the parties and as its agreement with each Borrower
subject to TRPA that Bank is not required to comply with Section 3.05(d) of
TRPA.)
BANK: TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP
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OFFICER'S/SECRETARY'S CERTIFICATION
(this "Certificate")
The undersigned acknowledges that this Certificate is being delivered to
TEXAS COMMERCE BANK NATIONAL ASSOCIATION (the "Bank") and that the Bank may rely
on the statements and certifications set forth herein until such time as Bank
receives a notice from MEDICAL INNOVATIONS, INC. OF NEW JERSEY, a corporation/
association ("Company") of a change in this Certificate and such notice is
accompanied by an Officer's/Secretary's Certificate replacing this one.
The undersigned hereby certifies that he/she is the duly elected and authorized
_______________ of Company and in such capacity the undersigned is generally
familiar with the books, records and organization of Company and in such
capacity certifies that:
1. ARTICLES
(Check "A" or "B" as applicable: "A" must be checked if new loan
relationship or if Articles have been modified or revised since the
last Certificate delivered to the Bank, and Articles attached as
Exhibit "A").
[X] A. A true and correct copy of the Articles of
Incorporation/Association of Company is attached hereto as Exhibit
"A" and such are in full force and effect as of the date hereof.
[ ] B. There have been no changes or amendments to the Articles of
Incorporation/Association dated or previously provided to the Bank
on or about _____________________________________________, in
connection with a prior loan(s) to and/or guaranty and/or pledge of
assets of Company and such are still in full force and effect as of
the date hereof.
2. RESOLUTIONS
(Check "A" or "B" as applicable: "A" must be checked if new loan
relationship or Resolutions have been changed and in that case
Resolutions must be attached as Exhibit "B").
[X] A. A true and correct copy of Resolutions of the Board of Directors
of the Company are attached hereto as Exhibit "B"; such resolutions
have not been modified or rescinded and are in full force and
effect as of the date hereof.
[ ] B. The certified Resolutions previously certified to the Bank
dated ______________________________ in connection with a prior
loan(s) to and/or guaranty and/or pledge of assets of Company are
still in full force and effect as of the date hereof.
3. BYLAWS (Complete this Section only if Bylaws are requested by the
Bank, [ ] Yes [ ] No)
(Check "A" or "B" as applicable. "A" must be checked and Exhibit
"C" attached, if a new loan relationship or if Bylaws have
changed.)
[ ] A. A true and correct copy of the Bylaws of Company are
attached hereto as Exhibit "C" and such are in full force and
effect as of the date hereof.
[ ] B. There have been no changes or amendments to the Bylaws of
Company dated or previously provided to the Bank on or about
_____________________________________________ in connection with a
prior loan(s) to and/or guaranty and/or pledge of assets of Company
and such are still in full force and effect as of the date hereof.
4. Company is duly organized and validly existing under the laws of
the state/country of its incorporation/organization.
5. If Company conducts business under an assumed business or
professional name it has properly filed Assumed Name Certificate(s)
in the offices required by Chapter 36 of the Texas Business and
Commerce Code.
6. Company is qualified to do business in the state of Texas and is in
good standing in such states wherein its property and assets are
located and it is required to qualify.
IN WITNESS WHEREOF the undersigned has subscribed his/her name and
affixed the seal (if so required) of this Company this 18th day of
March, 1996.
▇▇▇▇ ▇. ▇▇▇▇▇▇
Signature of Officer
Title: President
Typed/
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Seal
If no seal check [ ] No Seal
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0780150 004-1638147-000001