REVOLVING CREDIT NOTE
$8,700,000 Los Angeles, California
November 30, 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/o Wells Fargo 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, on December 31, 2002 (the "Maturity Date") in
lawful money of the United States of America and in immediately available funds,
the principal amount of (a) EIGHT MILLION SEVEN HUNDRED THOUSAND DOLLARS
($8,700,000), or (b) such other amount as represents the aggregate unpaid
principal amount of all Revolving Loans made by the Lender pursuant to the
Credit Agreement (referred to below). 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 a rate
per annum equal to the Prime Rate plus a margin of four percent (4%). 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). Interest shall be payable in arrears on the last
day of each calendar month and on the Maturity Date. In the event of any
repayment or prepayment of any Loan, other than a prepayment prior to the
Maturity Date, 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 (i) in the case of overdue principal of any Loan, two percent
(2%) plus the rate otherwise applicable to such Loan as provided above in this
Note, or (ii) in the case of any other amount, the rate that would apply under
(i) of this paragraph if such amount constituted overdue principal.
The holder of this Note is authorized to record on Schedule 1 annexed
hereto or on a continuation thereof the date, Type and amount of each Revolving
Loan made pursuant to the Credit Agreement, the date and amount of each payment
or repayment of principal
thereof; provided, however, that the failure to make any such recordation shall
not affect the obligations of the Borrowers in respect of such Revolving Loans.
This Note amends, restates and replaces the Revolving Credit Note
previously issued by Borrowers and referred to in the Amended and Restated
Credit Agreement by and between the Borrowers and the Lender dated as of
December 7, 2001, 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.
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.
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.
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 Revolving Credit
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
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXXX TECHNICAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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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
SCHEDULE 1
TO REVOLVING CREDIT NOTE
LOANS AND PAYMENTS OF REVOLVING LOAN
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Unpaid
Amount of Principal
Loans Balance of
Date Amount of Loans Notation
Principal Repaid Made By
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