Loan Agreement with Frost Bank for $241,932.71 due March 4, 2011
Exhibit
10.19
Loan
Agreement with Frost Bank for $241,932.71 due March 4, 2011
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Principal
$241,932.71
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Loan
Date
03-04-2008
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Maturity
03-04-2011
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Loan
No.
9002
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Call/Coll
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Account
▇▇▇▇▇▇▇
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Officer
792
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Intitials
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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: $241,932.71 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 Two Hundred
Forty-One Thousand Nine Hundred Thirty-two & 71/100 Dollars $241,932.71
together with interest on the unpaid principal balance from March 4, 2008, until
maturity.
PAYMENT, Subject to any
payment changes resulting from changes in the Index, Borrower will pay this loan
in 36 payments of $7,482.43 each payment. ▇▇▇▇▇▇▇▇’s first payment is due April
4. 2008, and all subsequent payments are due on the same day of each month after
that. ▇▇▇▇▇▇▇▇’s final payment will be due on March 4, 2011 and
will be for all principal and all accrued Interest not yet paid. Payments
Include principal and interest. Unless otherwise agreed or required by
applicable law, payments will be applied first to any unpaid collection costs:
then to any accrued unpaid Interest: then to principal and then to any late
charges. The annual interest rate for this Note is computed on a 365/360 basis;
that is by applying the ratio 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 lit 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
(A) 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. Whenever
Increases occur in the interest rate, Lender at its option, may do one or more
of the following: (A) increase Borrower’s payments to ensure Borrower’s loan
will payoff by its original final maturity date, (B) Increase Borrower’s
payments to cover accruing interest, (C) increase the number of Borrower’s
payments and (D) continue Borrower’s payments at the same amount and increase
Borrower’s final payment.
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 ell 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 under the payment schedule. Rather, early payments
will reduce the principal balance due and may result in ▇▇▇▇▇▇▇▇’s making fewer
payments. ▇▇▇▇▇▇▇▇ 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.
LATE CHARGE. If a payment is
11 days or more late, Borrower will be charged 5.000% of the unpaid portion of
the regularly scheduled payment or $250.00, whichever is less.
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: 9002
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PROMISSORY
NOTE
(Continued)
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Page
2
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receiver
for any party of ▇▇▇▇▇▇▇▇’s property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any proceeding
under any bankruptcy or insolvency laws by or against Borrower.
Creditor or Forfeiture
Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, sell-help, repossession or any
other method, by any creditor of Borrower or by any governmental agency against
all collateral securing the loan. This includes a garnishment of Any of
▇▇▇▇▇▇▇▇’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 ▇▇▇▇▇▇ 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 01. or liability under, any guaranty of the indebtedness
evidenced by this Note.
Change In Ownership. Any
change in ownership of twenty-five percent (25%) or more of the common stock of
Borrower.
Adverse Change. A material
adverse change occurs in Borrower’s financial condition. or ▇▇▇▇▇▇ believes the
prospect of payment or performance of this Note is impaired.
Insecurity. Lender In good
faith believes itself Insecure.
LENDER’S RIGHTS. Upon default,
▇▇▇▇▇▇ may declare the entire indebtedness. Including the 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, end 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 tiling, 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 a 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 connect/on 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. It there is a
lawsuit, and if 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
permit led by applicable law, ▇▇▇▇▇▇ 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 authorized Lender, to the extent permitted by
applicable law to charge or setoff all sums owing on the Indebtedness against
any and all such accounts.
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
low.
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 ▇▇▇▇▇▇▇▇’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
loan 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 to Lender and to furnish Lender upon request
with a detailed list, in form and substance satisfactory to Lender, of all
insurance then in effect.
FACSIMILE DOCUMENTS AND
SIGNATURES. For purposes of negotiating and finalizing this document, if
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 all 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 MATTER OF
THIS AGREEMENT. ANY SUCH ACTION SHALL BE TRIED BY THE JUDGE WITHOUT A
JURY,
PAYMENT ADJUSTMENT LANGUAGE.
The monthly payments of principal and interest on this Note have been calculated
on the basis 01 an amortization of the principal balance hereof over a period of
three (3) years from the date hereof at an Interest rate of 7.00% per annum. It
is intended by ▇▇▇▇▇▇ and Borrower that the monthly payments hereon shall always
be sufficient to pay all accrued interest and some principal on this Note,
Because of possible Index changes from time to time which may cause an Increase
or decrease in the interest rate on this Note, Lender Is given the option, in
its sale discretion, and notwithstanding the last sentence 01 the paragraph
entitled “VARIABLE INTEREST RATE” set forth above, to adjust the monthly payment
amount every year during the term hereof, beginning one (1) year from the date
hereof. The payment amount may be adjusted by Lender to en amount satisfactory,
in ▇▇▇▇▇▇’s sale discretion, to pay (i) all accrued, unpaid interest hereof;
(ii) the principal reduction required by Lender during the one 11 year period
following a payment adjustment and (iii) all interest anticipated to accrue on
the Note during the one (1) year period following a payment adjustment. Lender
may choose not to change the payments on this Note in any year throughout the
term hereof.
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
▇▇▇▇▇▇ 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
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Loan
No: 9002
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PROMISSORY
NOTE
(Continued)
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Page
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·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 (if 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 lull, 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 lull term of
the loan evidenced by this Note until payment in full so that the rate or amount
of interest on account of the lone evidenced hereby does not exceed the
applicable usury ceiling. Lender may delay or largo 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 end 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 OFA COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
LABWIRE,
INC.
By: //s//
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, President of LABWIRE, INC.