TERM NOTE
$486,770 Los Angeles, California
August 31, 2002
FOR VALUE RECEIVED, the undersigned, XXXXXX, INC., a Delaware corporation,
XXXXXX TECHNICAL SERVICES, INC., a Delaware Corporation, BOTANICALS
INTERNATIONAL EXTRACTS, INC., a Delaware corporation, ZETAPHARM, INC., a New
York corporation, (collectively, the "Borrowers"), hereby jointly and severally,
unconditionally promise to pay to the order of Xxxxx Fargo Bank, National
Association (the "Lender"), at c/x Xxxxx Fargo HSBC Trade Bank, N.A., 000 Xxxxx
Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, or at such other place
as the holder of this Note may direct, (i) on each of December 31, 2001, January
31, 2002, February 28, 2002, March 31, 2002, April 30, 2002, May 31, 2002, June
30, 2002, and July 31, 2002, the principal sum of TWENTY THOUSAND DOLLARS
($20,000); and (ii) on September 10, 2002 (the "Maturity Date") the principal
amount of FOUR HUNDRED EIGHTY SIX THOUSAND SEVEN HUNDRED SEVENTY DOLLARS
($486,770) or such other amount as represents the aggregate unpaid principal
amount of the Term Loan made by the Lender pursuant to the Credit Agreement, in
each case in lawful money of the United States of America and in immediately
available funds. The Borrowers further agree, jointly and severally, to pay
interest on the unpaid principal amount outstanding hereunder from time to time
from the date hereof in like money at such office at at a rate per annum equal
to the Prime Rate plus a margin of three percent (3%) through the period ending
August 31, 2002 and a rate per annum equal to the Prime Rate plus a margin of
five percent (5%) for the period beginning September 1, 2002. Interest shall
accrue hereunder from the date of each advance until the date of payment, shall
be calculated on the basis of a year of three hundred sixty (360) days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). In the event of any repayment or prepayment of any
Loan, accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment.
If any principal of or interest on any Loan or any fee or other amount
payable by the Borrowers hereunder or under the Credit Agreement is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to two percent (2%) plus the rate provided above in this Note.
This Note amends, restates and replaces the Term Note previously issued by
Borrower and referred to in the Amended and Restated Credit Agreement by and
between
the Borrower and the Lender dated as of June 25, 2002, as amended (the "Credit
Agreement"), is secured as provided therein and in the Security Documents and is
subject to optional and mandatory prepayment as set forth in the Credit
Agreement.
Upon the occurrence of any one or more of the Events of Default specified
in the Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Terms defined in the Credit Agreement are used herein with their defined
meanings unless otherwise defined herein. This Note shall be governed by, and
construed and interpreted in accordance with, the laws of the State of
California.
The holder of this Note is authorized from time to time to debit any
accounts maintained by any Borrower with such holder for any and all amounts
payable by the Borrowers hereunder.
This Note may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract.
IN WITNESS WHEREOF, the parties hereto have caused this Term Note to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXXX TECHNICAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Secretary and Treasurer
BOTANICALS INTERNATIONAL EXTRACTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
ZETAPHARM, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Secretary and Treasurer
