TERM NOTE
EXHIBIT 10.8
COPY
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$7,804,438 |
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Los Angeles, California |
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December 7, 2001 |
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, and May 31, 2002 the principal sum of TWENTY THOUSAND DOLLARS ($20,000), (ii) on April 30, 2002 the principal amount of THREE MILLION DOLLARS ($3,000,000) and (iii) on June 30, 2002 (the “Maturity Date”) the principal amount of FOUR MILLION SEVEN HUNDRED FOUR THOUSAND FOUR HUNDRED THIRTY-EIGHT DOLLARS ($4,704,438) 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%). 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, 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 is the Term Note referred to in the Amended and Restated Credit Agreement dated as of December 7, 2001 (the “Credit Agreement”), among the
Borrowers and the Lender, 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.
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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.
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XXXXXX, INC. |
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By: |
/s/ Xxxxxxx X. Xxxxxxxxx |
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Name: Xxxxxxx X. Xxxxxxxxx |
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Title: Chief Executive Officer |
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XXXXXX TECHNICAL SERVICES, INC. |
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By: |
/s/ Xxxxxx X. Xxxxxx |
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Name: Xxxxxx X. Xxxxxx |
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Title: Secretary and Treasurer |
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BOTANICALS INTERNATIONAL EXTRACTS, INC. |
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By: |
/s/ Xxxxxxx X. Xxxxxxxxx |
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Name: Xxxxxxx X. Xxxxxxxxx |
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Title: Chief Executive Officer |
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ZETAPHARM, INC. |
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By: |
/s/ Xxxxxx X. Xxxxxx |
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Name: Xxxxxx X. Xxxxxx |
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Title: Secretary and Treasurer |
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