Exhibit 10.9
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eClickMD, Inc. THE COMMERCIAL NATIONAL BANK OF
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇ ▇ ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Date 12-3-2001
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Maturity Date 06-01-2002
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Loan Amount $360,000.00
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Renewal Of 48176(5)
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BORROWER'S NAME AND ADDRESS LENDER'S NAME AND ADDRESS
SSN: 82-0255758
"I" includes each borrower "You" means the lender, its
above, jointly and severally. successors and assigns.
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For value received, I promise to pay to you, or your order, at your address
listed above the PRINCIPAL sum of THREE HUNDRED AND SIXTY THOUSAND AND NO/100
Dollars $360,000.00
[X] SINGLE ADVANCE: I will received all of this principal sum on 12-03-2001. No
additional advances are contemplated under this note.
[ ] MULTIPLE ADVANCE: The principal sum shown above is the maximum amount of
principal I can borrow under this note. On ________________ I will receive
the amount of $_________________________ and future principal advances are
contemplated.
Conditions: The conditions for future advances are _________________________
____________________________________________________________________________
____________________________________________________________________________
[ ] OPEN END CREDIT: You and I agree that I may borrow up to the maximum
principal sum more than one time. This feature is subject to all other
conditions and expires on _______________________________.
[ ] CLOSED END CREDIT: You and I agree that I may borrow (subject to all
other conditional up to the maximum principal sum only one time.
INTEREST: I agree to pay interest on the outstanding principal balance from
12-03-2001 at the rate of 7.500% per year until 06-01-2002.
[X] VARIABLE RATE: This rate may change as stated below.
[ ] INDEX RATE: The future rate will be ------ the following index
rate:
[ ] CEILING RATE: The interest rate ceiling for this note is the ___________
ceiling rate announced by the Credit Commissioner from time to time.
[ ] FREQUENCY AND TIMING: The rate on this note may change as often as
DAILY.
A change in the interest rate will take effect ON THE SAME DAY.
[ ] LIMITATIONS: During the term of this loan, the applicable annual
interest rate will not be more than __.000% or less than __.000%. The
rate may not change more than _____% each ________________________.
EFFECT OF VARIABLE RATE: A change in the interest rate will have the
following effect on the payments.
[ ] The amount of each scheduled [ ] The amount of the final
payment will change. payment will change
ACCRUAL METHOD: Interest will be calculated on a ACTUAL/365 basis.
POST MATURITY RATE: I agree to pay interest on the unpaid balance of this note
owing after maturity, and until paid in full, as stated below:
[ ] on the same fixed or variable rate basis in effect before maturity has
indicated above.
[X] at a rate equal to TWO PERCENT ABOVE THE CURRENT RATE IN EFFECT ON THE
NOTE.
[X] LATE CHARGE: If a payment is made more than 10 days after it is due, I
agree to pay a late charge of 5.00% OF THE LATRE AMOUNT WITH A MAX 0F $100.
[ ] ADDITIONAL CHARGES: In addition to interest, I agree to pay the following
charges which [ ] are [ ] are not included in the principal amount
above: __________________.
PAYMENTS: I agree to pay this note as follows:
On Demand but if no demand is made then one payment of $373,315.07 on 06-01-2001
PURPOSE: The purpose of this loan is BUSINESS:
TO RENEW PURCHASE COMPUTER AND WORKING CAPITAL
ADDITIONAL TERMS:
SECURITY
SECURITY INTEREST: I give you a security interest in all of the Property
described below that I now own and that I may own in the future (including,
but not limited to, all parts, accessories, repairs, improvements, and
accessions to the Property), wherever the Property is or may be located, and
all proceeds and products from the Property.
[ ] INVENTORY: All inventory which I hold for ultimate sale or lease, or
which has been or will be supplied under contracts of service, or which
are raw materials, work in process, or materials used or consumed in the
business.
[ ] EQUIPMENT: All equipment including, but not limited to, all machinery,
vehicles, furniture, fixtures, manufacturing equipment farm machinery and
equipment, shop equipment, office and recordkeeping equipment, and parts
and tools. All equipment described in a list or schedule which I give to
you will also be included in the secured property, but such a list is not
necessary for a valid security interest in my equipment.
[ ] FARM PRODUCTS: All farm products including, but not limited to:
(a) all poultry and livestock and their young, along with their products,
produce and replacements;
(b) all crops, annual or perennial; and all products of the crops; and
(c) all feed, seed, fertilizer, medicines, and other supplies used or
produced in my farming operations.
[ ] ACCOUNTS, INSTRUMENTS, DOCUMENTS, CHATTEL PAPER AND OTHER RIGHTS TO
PAYMENT: All rights I have now and that I may have in the future to the
payment of money including, but not limited to:
(a) payment for goods and other property sold or leased or for services
rendered, whether or not I have earned such payment by performance;
and
(b) rights to payment arising out of all present and future debt
instruments, chattel paper and loans and obligations receivable. The
above include my rights and interests (including all liens and
security interests) which I may have by law or agreement against any
account debtor or obligor of mine.
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UNIVERSAL NOTE AND SECURITY AGREEMENT
(page 1 of 3)
[ ] GENERAL INTANGIBLES: All general intangibles including, but not limited to,
tax refunds, applications for patents, patents, copyrights, trademarks,
trade secrets, good will, trade names, customer lists, permits and
franchises, and the right to use my name.
[ ] GOVERNMENT PAYMENTS AND PROGRAMS: All payments, accounts, general
intangibles, or other benefits (including, but not limited to, payments in
kind, deficiency payments, letters of entitlement, warehouse receipts,
storage payments, emergency assistance payments, diversion payments, and
conservation reserve payments) in which I now have and in the future may
have any rights or interest and which arise under or as a result of any
preexisting, current or future Federal or state government program
(including, but not limited to, all programs administered by the Commodity
Credit Corporation and the ASCS).
[X] THE SECURED PROPERTY INCLUDES, BUT IS NOT LIMITED BY, THE FOLLOWING:
CNB CD # XXXXX IN THE NAME OF ▇▇▇▇▇▇ ▇. ▇▇▇▇ IN THE ORIGINAL AMOUNT OF
$204,735.25 MATURING ON 5/2/02; CNB CD # XXXXX IN THE NAME OF ▇▇▇▇▇▇ ▇. ▇▇▇▇
IN THE ORIGINAL AMOUNT OF $87,935.90 MATURING ON 5/2/02 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ACCT
#xxxxxx IN THE NAME OF ANDY AND ▇▇▇▇▇ ▇▇▇▇▇ IN THE AMOUNT OF $_________00 AS
OF 11-30-01
If this agreement covers timber to be cut, minerals (including oil and gas),
fixtures or crops growing or to be grown, the description of the real estate
is:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[ ] If checked, file this agreement on the real estate records. Record owner
(if not me) ____________________________________________________________________
________________________________________________________________________________
The Property will be used for a [X] personal [ ] business [ ] agricultural
[ ] purpose.
____________________________
ADDITIONAL TERMS OF THE SECURITY AGREEMENT
GENERALLY - The agreement secures this note and any other debt I have with you,
now or later. However, it will not secure other debts if you fail with respect
to such other debts, to make any required disclosure about this security
agreement or if you fail to give any required notice of the right of rescission.
If property described in this agreement is located in another state, this
agreement may also, in some circumstances, be governed by the law of the state
in which the Property is located.
OWNERSHIP AND DUTIES TOWARD PROPERTY - I represent that I own all of the
Property, or to the extent this is a purchase money security interest I will
acquire ownership of the Property with the proceeds of the loan. I will defend
it against any other claim. Your claim to the Property is ahead of the claims of
any other creditor. I agree to do whatever you require to protect your security
interest and to keep your claim in the Property ahead of the claims of other
creditors. I will not do anything to harm your position.
I will keep books, records and accounts about the Property and my business
in general. I will let you examine these records at any reasonable time. I will
prepare any report or accounting you request which deals with the Property.
I will keep the Property in my possession and will keep it in good repair
and use it only for the purpose(s) described on page 3 of this agreement. I will
not change this specified use without your express written permission. I
represent that I am the original owner of the Property and, if I am not, that I
have provided you with a list of prior owners of the Property.
I will keep the Property at my address listed on page 1 of this agreement,
unless we agree I may keep it at another location. If the Property is to be used
in another state, I will give you a list of those states. I will not try to sell
the Property unless it is inventory or I receive your written permission to do
so. If I sell the Property I will have the payment made payable to the order of
you and me.
You may demand immediate payment of the debt(s) if the debtor is not a
natural person and without your written consent; (1) a beneficial interest in
the debtor is sold or transferred, or (2) there is a change in either the
identity or number of members of a partnership, or (3) there is a change in
ownership of more than 25 percent of the voting stock of a corporation.
I will pay all taxes and charges on the Property as they become due. You
have the right of reasonable access in order to inspect the Property. I will
immediately inform you of any loss or damage to the Property.
If I fail to perform any of my duties under this security agreement, or any
mortgage, deed of trust, lien or other security interest, you may without notice
to me perform the duties or cause them to be performed. Your right to perform
for me shall not create an obligation to perform and your failure to perform
will not preclude you from exercising any of your other rights under the law of
this security agreement.
PURCHASE MONEY SECURITY INTEREST - For the sole purpose of determining the
extent of a purchase money security interest arising under this security
agreement: (a) payments on any nonpurchase money loan also secured by this
agreement will not be deemed to apply to the Purchase Money Loan, and (b)
payments on the Purchase Money Loan will be deemed to apply first to the
nonpurchase money portion of the loan, if any, and then to the purchase money
obligations in the order in which the items of collateral were acquired or if
acquired at the same time, in the order selected by you. No security interest
will be terminated by application of this formula. "Purchase Money Loan" means
any loan the proceeds of which, in whole or in part, are used to acquire any
collateral securing the loan and all extensions, renewals, consolidations and
refinancing of such loan.
PAYMENTS BY LENDER - You are authorized to pay, on my behalf, charges I am or
may become obligated to pay to preserve or protect the secured property (such as
property insurance premiums). You may treat those payments as advances and add
them to the unpaid principal under the note secured by this agreement or you may
demand immediate payment of the amount advanced.
INSURANCE - I agree to buy insurance on the Property against the risks and for
the amounts you require and to furnish you continuing proof of coverage. I will
have the insurance company name you as loss payee on any such policy. You may
require added security if you agree that insurance proceeds may be used to
repair or replace the Property. I will buy insurance from a firm licensed to do
business in the state where you are located. The firm will be reasonably
acceptable to you. The insurance will last until the Property is released from
this agreement. If I fail to buy or maintain the insurance (or fail to name you
as loss payee) you may purchase it yourself.
WARRANTIES AND REPRESENTATIONS - If this agreement includes accounts, I will not
settle any account for less than its full value without your written permission.
I will collect all accounts until you tell me otherwise. I will keep the
proceeds from all the accounts and any goods which are returned to me or which I
take back in trust for you, I will not mix them with any other property of mine.
I will deliver them to you at your request. If you ask me to pay you the full
price on any returned items or items retaken by myself, I will do so.
If this agreement covers inventory, I will not dispose of it except in my
ordinary course of business at the fair market value for the Property, or at a
minimum price established between you and me.
If this agreement covers farm products I will provide you, at your request,
a written list of the buyers, commission merchants or selling agents to or
through whom I may sell my farm products. In addition to those parties named on
this written list, I authorize you to notify at your sole discretion any
additional parties regarding your security interest in my farm products. I
remain subject to all applicable penalties for selling my farm products in
violation of my agreement with you and the Food Security Act. In this paragraph
the terms farm products, buyers, commission merchants and selling agents have
the meanings given to them in the Federal Food Security Act of 1985.
DEFAULT - I will be in default on this security agreement if I am in default on
any note this agreement secures of if I fail to keep any promise contained in
the terms of this agreement. Default shall also exist if any loan proceeds are
used for a purpose that will contribute to excessive erosion of highly erodible
land or to the conversion of wetlands to produce an agricultural commodity, as
further explained in 7 CFR Part 1940, Subpart G, Exhibit M.
REMEDIES - If I default, you have all of the rights and remedies provided in the
note and under the Uniform Commercial Code. You may require me to make the
secured property available to you at a place which is reasonably convenient. You
may take possession of the secured property and sell it as provided by law. The
proceeds will be applied first to your expenses and then to the debt. I agree
that 10 days written notice sent to my last known address by first class mail
will be reasonable notice under the Uniform Commercial Code. My current address
is on page 1. I agree to inform you in writing of any change of my address.
FILING - A carbon, photographic or other reproduction of this security agreement
or the financing statement covering the Property described in this agreement may
be used as a financing statement where allowed by law. Where permitted by law,
you may file a financing statement which does not contain my signature, covering
the Property secured by this agreement.
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Any person who signs within this box does so to give you a security interest in
the Property described on page 1 and this page. This person does not promise to
pay the note. "I" as used in this security agreement will include the borrower
and any person who signs within this box.
Date
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Signed
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(page 2 of 3)
[COPY]
ADDITIONAL TERMS OF THE NOTE
DEFINITIONS - As used on pages 1 and 2, "[X]" means the terms that apply to this
loan. "I," "me" or "my" means each Borrower who signs this note and each other
person or legal entity (including guarantors, endorsers, and sureties) who
agrees to pay this note (together referred to as "us"). "You" or "your" means
the Lender and its successors and assigns.
APPLICABLE LAW - The law of the state of Texas will govern this agreement. Any
term of this agreement which is contrary to applicable law will not be
effective, unless the law permits you and me to agree to such a variation. If
any provision of this agreement cannot be enforced according to its terms, this
fact will not affect the enforceability of the remainder of this agreement. No
modification of this agreement may be made without your express written consent.
Time is of the essence in this agreement.
PAYMENTS - Each payment I make on this note will first reduce the amount I owe
you for charges which are neither interest nor principal. The remainder of each
payment will then reduce accrued and unpaid interest, and then unpaid principal.
If you and I agree to a different application of payments, we will describe our
agreement on this note. I may prepay a part of, or the entire balance of this
loan without penalty, unless we specify to the contrary on this note. Any
partial prepayment will not excuse or reduce any later scheduled payment until
this note is paid in full (unless, when I make the prepayment, you and I agree
in writing to the contrary).
INTEREST - Interest accrues on the principal remaining unpaid from time to time,
until paid in full. If I receive the principal in more than one advance, each
advance will start to earn interest only when I receive the advance. The
interest rate in effect on this note at any given time will apply to the entire
principal sum outstanding at that time. Notwithstanding anything to the
contrary, I do not agree to pay and you do not intend to charge any rate of
interest that is higher than the maximum rate of interest you could charge under
applicable law for the extension of credit that is agreed to in this note
(either before or after maturity). If any notice of interest accrual is sent and
is in error, we mutually agree to correct it, and if you actually collect more
interest than allowed by law and this agreement, you agree to refund it to me.
INDEX RATE - The index will serve only as a device for setting the interest rate
on this note. You do not guarantee by selecting this index, or the margin, that
the interest rate on this note will be the same rate you charge on any other
loans or class of loans you make to me or other borrowers.
POST MATURITY RATE - For purposes of deciding when the "Post Maturity Rate"
(shown on page 1) applies, the term "maturity" means the date of the last
scheduled payment indicated on page 1 of this note or the date you accelerate
payment on the note, whichever is earlier.
SINGLE ADVANCE LOANS - If this is a single advance loan, you and I expect that
you will make only one advance of principal. However, you may add other amounts
to the principal if you make any payments described in the "PAYMENTS BY LENDER"
paragraph on page 2.
MULTIPLE ADVANCE LOANS - If this is a multiple advance loan, you and I expect
that you will make more than one advance of principal. If this is closed end
credit, repaying a part of the principal will not entitle me to additional
credit.
SET-OFF - I agree that you may set off any amount due and payable under this
note against any right I have to receive money from you.
"Right to receive money from you" means:
(1) any deposit account balance I have with you,
(2) any money owed to me on an item presented to you or in your possession
for collection or exchange, and
(3) any repurchase agreement or other nondeposit obligation.
"Any amount due and payable under this note" means the total amount of which
you are entitled to demand payment under the terms of this note at the time you
set off. This total includes any balance the due date for which you properly
accelerate under this note.
If my right to receive money from you is also owned by someone who has not
agreed to pay this note, your right of set-off will apply to my interest in the
obligation and to any other amounts I could withdraw on my sole request or
endorsement. Your right of set-off does not apply to an account or other
obligation where my rights are only as a representative. It also does not apply
to any Individual Retirement Account or other tax-deferred retirement account.
You will not be liable for the dishonor of any check when the dishonor
occurs because you set off this debt against any of the accounts. I agree to
hold you harmless from any such claims arising as a result of your exercise of
your right to set-off.
DEFAULT - I will be in default on this loan and any agreement securing this loan
if any one or more of the following occurs:
(1) I fail to perform any obligation which I have undertaken in this note or
any agreement securing this note; or
(2) you, in good faith, believe that the prospect of payment on the prospect
of my performance of any other obligations under this note or any
agreement securing this note is impaired.
REMEDIES - If I am in default on this note, you have, but are not limited to,
the following remedies:
(1) You may demand immediate payment of my debt under this note (principal,
accrued unpaid interest and other accrued charges).
(2) You may set off this debt against any right I have to the payment of
money from you, subject to the terms of the "SET-OFF" paragraph herein.
(3) You may demand security, additional security, or additional parties to
be obligated to pay this note as a condition for not using any other
remedy.
(4) You may refuse to make advances to me or allow purchases on credit by
me.
(5) You may use any remedy you have under state or federal law.
(6) You may make use of any remedy given to you in any agreement securing
this note.
By selecting any one or more of these remedies you do not give up your right
to use later any other remedy. By waiving your right to declare an event to be a
default, you do not waive your right to consider later the event a default if it
continues or happens again.
COLLECTION COSTS AND ATTORNEY'S FEES - I agree to pay all costs of collection,
replevin or any other or similar type of cost if I am in default. In addition,
if you hire an attorney to collect this note, I also agree to pay any fee you
incur with such attorney plus court costs (except where prohibited by law). To
the extent permitted by the United States Bankruptcy Code, I also agree to pay
the reasonable attorney's fees and costs you incur to collect this debt as
awarded by any court exercising jurisdiction under the Bankruptcy Code.
WAIVER - I give up my rights to require you to do certain things. I will not
require you to:
(1) demand payment of amounts due (presentment);
(2) obtain official certification of nonpayment (protest);
(3) give notice that amounts due have not been paid (notice of dishonor);
(4) give notice of intent to accelerate; or
(5) give notice of acceleration.
I waive any defenses I have based on suretyship or impairment of collateral.
OBLIGATIONS INDEPENDENT - I understand that I must pay this note even if someone
else has also agreed to pay it (by, for example, signing this form or a separate
guarantee or endorsement). You may ▇▇▇ me alone, or anyone else who is obligated
on this note, or any number of us together, to collect this note. You may
without notice release any party to this agreement without releasing any other
party. If you give up any of your rights, with or without notice, it will not
affect my duty to pay this note. Any extension of new credit to any of us, or
renewal of this note by all or less than all of us will not release me from my
duty to pay it. (Of course, you are entitled to only one payment in full.) I
agree that you may at your option extend this note or the debt represented by
this note, or any portion of the note or debt, from time to time without limit
to notice and for any term without affecting my liability for payment of the
note. I will not assign my obligation under this agreement without your prior
written approval.
CREDIT INFORMATION - I agree and authorize you to obtain credit information
about me from time to time (for example, by requesting a credit report) and to
report to others your credit experience with me (such as a credit reporting
agency). I agree to provide you, upon request, any financial statement or
information you may deem necessary. I warrant that the financial statements and
information I provide to you are or will be accurate, correct and complete.
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THIS WRITTEN LOAN AGREEMENT REPRESENTS 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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SIGNATURES: I AGREE TO THE TERMS OF THIS NOTE AND SECURITY AGREEMENT (INCLUDING
THOSE ON PAGES 1 AND 2). I have received a copy of this note and security
agreement on today's date.
EClickMD, Inc
BY: BY:
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▇▇▇ ▇▇▇▇, CEO/Individually ▇▇▇▇ ▇▇▇▇▇, DIRECTOR/Individually
BY: BY:
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▇▇▇▇▇▇▇ ▇▇▇▇, Individually ▇▇▇▇▇ ▇▇▇▇▇, Individually
SIGNATURE FOR LENDER
X
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W ▇▇▇▇ ▇▇▇▇▇ CRL
(page 1 of 3)
[COPY]
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