Exhibit 10.30
ACQUISITION PROMISSORY NOTE
$__________________ ___________, 200__
Xxxxxxx Pharmaceuticals, Inc.
Xxxx Dermatologics, Inc.
000 Xxxxx 00 Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
(Hereinafter referred to individually and collectively, as "Borrower")
Wachovia Bank, National Association
000 Xxxxxx Xxxx
Xxxx Xxxxxxx, Xxx Xxxxxx 00000
(Hereinafter referred to as "Bank")
Borrower promises to pay to the order of Bank, in lawful money of the
United States of America, at its office indicated above or wherever else Bank
may specify, the sum of up to ________________________ and No/100 Dollars
($___________________) or such sum as may be outstanding from time to time,
with interest on the unpaid principal balance at the rate and on the terms
provided in this Promissory Note (including all renewals, extensions or
modifications hereof, this "Note").
INTEREST RATE DEFINITIONS.
PRIME RATE. "Prime Rate," for any day, is Bank's Prime Rate shall be that rate
announced by Bank from time to time as its prime rate and is one of several
interest rate bases used by Bank. Bank lends at rates both above and below
Bank's Prime Rate, and Borrower acknowledges that Bank's Prime Rate is not
represented or intended to be the lowest or most favorable, rate of interest
offered by Bank.
INTEREST RATE TO BE APPLIED. Interest Rate. Interest shall accrue on the
unpaid principal balance under this Note from the date hereof at [ADD PROVISIONS
REGARDING INTEREST RATE TO BE ESTABLISHED BY THE BANK AT TIME BANK MAKES ADVANCE
UNDER ACQUISITION LOAN, INCLUDING, TO THE EXTENT APPLICABLE, THOSE REGARDING
SWAP AGREEMENTS AND UNAVAILABILITY OF LIBOR BASED RATES.] ("Interest Rate").
Default Rate. In addition to all other rights contained in this Note, if a
Default occurs and as long as a Default continues, all outstanding Obligations
in Bank's discretion shall bear interest at the Prime Rate plus 3% ("Default
Rate"). The Default Rate shall also apply from acceleration until the
Obligations or any judgment thereon is paid in full, except as otherwise
required by law.
INTEREST COMPUTATION. (Actual/360). Interest shall be computed on the basis
of a 360-day year for the actual number of days in the interest period
("Actual/360 Computation"). The Actual/360 Computation determines the annual
effective interest yield by taking the stated (nominal) interest rate for a
year's period and then dividing said rate by 360 to determine the daily periodic
rate to be applied for each day in the interest period. Application of the
Actual/360 Computation produces an annualized effective interest rate exceeding
that of the nominal rate.
REPAYMENT TERMS. [Interest only with respect to this Note shall be due and
payable in consecutive monthly payments on the first Business Day of each month
commencing ____________________ and ending _____________________, at which
time all outstanding principal and accrued interest shall be due and payable.]
[Interest only with respect to this Note shall be due and payable in consecutive
monthly payments on the first Business Day of each month commencing
___________________ and ending ___________________________, thereafter
principal payments in the amount of $_____________________, plus accrued
interest thereon, shall be made on the first Business Day of each month
commencing on ________________________ and _________________________, at which
time all outstanding principal and accrued interest shall be due and payable.]
RESCISSION OF PAYMENTS. If any payment received by Bank under this Note or the
other Loan Documents is rescinded, avoided or for any reason returned by Bank
because of any adverse claim or threatened action, the returned payment shall
remain payable as an obligation of all Persons liable under this Note or the
other Loan Documents as though such payment had not been made.
LOAN AGREEMENT; LOAN DOCUMENTS; OBLIGATIONS. This Note is subject to the terms
and conditions of that certain Loan and Security Agreement between Bank and
Borrower dated as of the date hereof, as the same may be modified and amended
from time to time (the "Loan Agreement"). All capitalized terms not otherwise
defined herein shall have such meaning as assigned to them in the Loan
Agreement. The term "Obligations" used in this Note refers to any and all
indebtedness and other obligations under this Note, all other Indebtedness
as defined in the respective Loan Documents, and all obligations under any swap
agreements as defined in 11 U.S.C. 101 between Bank and Borrower whenever
executed.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
Bank a late charge equal to 3% of each payment past due for 10 or more days.
The Borrower acknowledges that the late charge imposed herein represents a
reasonable estimate of the expenses of Bank incurred because of such lateness.
Acceptance by Bank of any late payment without an accompanying late charge shall
not be deemed a waiver of Bank's right to collect such late charge or to collect
a late charge for any subsequent late payment received.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's
reasonable expenses incurred to enforce or collect any of the Obligations,
including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' fees and expenses, whether incurred without the commencement of
a suit, in any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. Regardless of any other provision of this Note or other Loan Documents,
if for any reason the effective interest should exceed the maximum lawful
interest, the effective interest shall be deemed reduced to, and shall be,
such maximum lawful interest, and (i) the amount which would be excessive
interest shall be deemed applied to the reduction of the principal balance of
this Note and not to the payment of interest, and (ii) if the loan evidenced
by this Note has been or is thereby paid in full, the excess shall be returned
to the party paying same, such application to the principal balance of this Note
or the refunding of excess to be a complete settlement and acquittance thereof.
BORROWER'S ACCOUNTS. Except as prohibited by law, Borrower grants Bank a
security interest in all of Borrower's existing or future deposit accounts with
Bank and any of its affiliates to secure the Obligations.
EVENTS OF DEFAULT. An "Event of Default" shall exist if any one or more of the
following events shall occur (individually, an "Event of Default," and
collectively, "Events of Default"): Nonpayment; Nonperformance. The failure
of timely payment or performance of the Obligations under this Note. Event of
Default Under Other Loan Documents. The occurrence of any Event of Default
under any of the other Loan Documents.
REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event of Default,
Bank may at any time thereafter, take the following actions: Bank Lien and
Set-off. Exercise its right of set-off or to foreclose its security interest
or lien against any deposit account of any nature or maturity of Borrower with
Bank without notice, except as specifically provided in the Loan Agreement.
Acceleration Upon Default. Accelerate the maturity of this Note and all other
Obligations, and all of the Obligations shall be immediately due and payable.
Cumulative. Exercise any rights and remedies as provided under this Note and
other Loan Documents, or as provided by law or equity.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note
and other Loan Documents shall be valid unless in writing and signed by an
officer of Bank. No waiver by Bank of any Event of Default shall operate as a
waiver of any other Event of Default or the same Event of Default on a future
occasion. Neither the failure nor any delay on the part of Bank in exercising
any right, power, or remedy under this Note and other Loan Documents shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
Each Borrower or any other Person liable under this Note waives presentment,
protest, notice of dishonor, demand for payment, notice of intention to
accelerate maturity, notice of acceleration of maturity, notice of sale and
all other notices of any kind, except as specifically provided in the Loan
Agreement. Further, each agrees that Bank may extend, modify or renew this Note
or make a novation of the loan evidenced by this Note for any period and
grant any releases, compromises or indulgences with respect to any collateral
securing this Note, or with respect to any Borrower or any Person liable under
this Note or other Loan Documents, all without notice to or consent of any
Borrower or any Person who may be liable under this Note or other Loan
Documents and without affecting the liability of Borrower or any Person who may
be liable under this Note or other Loan Documents.
MISCELLANEOUS PROVISIONS. Assignment. This Note and other Loan Documents shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. Bank's interests in and
rights under this Note and other Loan Documents are freely assignable, in
whole or in part, by Bank. Borrower shall not assign its rights and interest
hereunder without the prior written consent of Bank, and any attempt by
Xxxxxxxx to assign without Bank's prior written consent is null and void.
Any assignment shall not release Borrower from the Obligations. Applicable Law;
Conflict Between Documents. This Note and other Loan Documents shall be governed
by and construed under the laws of the state where Bank first shown above is
located as shown in the heading of this Note without regard to that state's
conflict of laws principles. Severability. If any provision of this Note or of
the other Loan Documents shall be prohibited or invalid under applicable law,
such provision shall be ineffective but only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Note or other such document. Plural; Captions. All
references in the Loan Documents to Borrower, Guarantor, Person, document or
other nouns of reference mean both the singular and plural form, as the case
may be. The captions contained in the Loan Documents are inserted for
convenience only and shall not affect the meaning or interpretation of the
Loan Documents. Binding Contract. Borrower by execution of and Bank by
acceptance of this Note agree that each party is bound to all terms and
provisions of this Note. Entirety. This Note and the other Loan Documents
delivered in connection herewith and therewith embody the entire agreement
between the parties and supersede all prior agreements and understandings
relating to the subject matter hereof and thereof. Posting of Payments. All
payments received during normal banking hours after 2:00 p.m. local time at
the office of Bank first shown above shall be deemed received at the opening
of the next banking day. Unless otherwise permitted by Bank, any repayments of
this Note, other than immediately available U.S. currency, will not be credited
to the outstanding loan balance until Bank receives collected funds. Joint
and Several Obligations. Each Borrower is jointly and severally obligated under
this Note. Fees and Taxes. Borrower shall promptly pay all documentary,
intangible recordation and/or similar taxes on this transaction whether
assessed at closing or arising from time to time, together with any interest
and/or penalties relating thereto. Business Purpose. Borrower represents that
the loan evidenced hereby is being obtained for business purposes.
IN WITNESS WHEREOF, Xxxxxxxx, as of the day and year first above written, has
caused this Note to be executed.
ATTEST: XXXXXXX PHARMACEUTICALS, INC.
Taxpayer Identification Number: 00-0000000
______________________________ By: ______________________________________
Name: X. XXXXX XXXXXXXXX Name: XXXXXX XXXXXXXX
Title: Chief Financial Officer Title: President
ATTEST: XXXX DERMATOLOGICS, INC.
Taxpayer Identification Number: 00-0000000
______________________________ By: ______________________________________
Name: X. XXXXX XXXXXXXXX Name: XXXXXX XXXXXXXX
Title: Chief Financial Officer Title: President
