FINOVA
TERM LOAN B NOTE
$865,979
AUGUST 14, 1998
FOR VALUE RECEIVED, USA Detergents, Inc., a Delaware corporation, Big Cloud
Powder Corporation, a Delaware corporation, Chicago Management Powder Corp., a
Delaware corporation and Chicago Contract Powder Corporation, an Illinois
corporation, (individually and collectively, the "BORROWER"), promises, jointly
and severally, to pay to the order of FINOVA CAPITAL CORPORATION, a Delaware
corporation ("PAYEE"), at its offices at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx, 00000, or at such other place or places as Payee may
from time to time designate in writing; the principal sum of EIGHT HUNDRED
SIXTY-FIVE THOUSAND NINE HUNDRED SEVENTY-NINE DOLLARS ($865,979), payable in
SIXTY (60) equal monthly installments of principal in the amount of FOURTEEN
THOUSAND FOUR HUNDRED THIRTY-TWO AND 98/100 DOLLARS ($14,432.98), on or before
the first day of each month hereafter commencing October 1, 1998; together with
payments of accrued interest on the principal balance from time to time
remaining unpaid, commencing on the first day of SEPTEMBER, 1998 and continuing
on the first day of each calendar month thereafter through and including
SEPTEMBER 1, 2003. If not sooner paid in full, the entire principal balance
outstanding under this Note, together with accrued interest thereon, shall be
due and payable on SEPTEMBER 1, 2003.
Notwithstanding anything herein to the contrary, in the event that certain Loan
and Security Agreement, of even date herewith (the "LOAN AGREEMENT"), by and
between Borrower, the Lenders (as defined below) and Payee, as contractual
representative ("AGENT"), for itself and certain other institutions from time
to time parties thereto as lenders (collectively, the "LENDERS") is terminated
by Borrower, by the Lenders or by any other person at any time for any reason
whatsoever, then the entire unpaid principal balance of this Note, together
with all accrued and unpaid interest hereon, shall become immediately due and
payable in full on the effective date of such termination, without presentment,
notice or demand of any kind. To the extent provided in the Loan Agreement, a
prepayment and/or termination fee may be due and payable upon prepayment or
termination of this Note. For administrative purposes, all payments due
hereunder will be paid directly to the Agent, unless Payee otherwise notifies
the Borrower.
To the extent provided in the Loan Agreement, additional principal payments may
be required under this Note, out of Borrower's Excess Cash Flow, as described
in the Schedule to the Loan Agreement.
This Note is issued pursuant to the Loan Agreement and is entitled to the
benefit and security of the Loan Agreement and all of the documents,
instruments and certificates issued and delivered in connection therewith. All
of the terms, covenants and conditions of the Loan Agreement and the other Loan
Documents are hereby made a part of this Note and are deemed incorporated
herein in full. This Note is secured by the Collateral described in the Loan
Agreement. In the event of any inconsistency between this Note and the Loan
Agreement, the Loan Agreement shall control. Capitalized terms which are not
defined herein shall have the meanings set forth in the Loan Agreement.
Interest shall be computed on the basis of a 360-day year for the actual number
of days elapsed and shall be paid on the daily outstanding balance of the Term
Loan B outstanding under the Loan Agreement; at the rate per annum which is TWO
(2%) PERCENTAGE POINTS in excess of the rate of interest per annum announced
publicly by Citibank, N.A. (or any successor thereto), from time to time, as
its "prime rate" ("PRIME RATE"), which may not be such institution's lowest
rate; provided, however, upon the occurrence and during the continuance of an
Event of Default (as defined in the Loan Agreement), interest shall accrue on
the outstanding principal balance of this Note at a default rate (the "DEFAULT
RATE") per annum which is TWO (2) percentage points in excess of the rate which
would otherwise be applicable thereto and shall be payable on demand. As of the
date of this Note, the Prime Rate is EIGHT AND ONE-HALF PERCENT (8 1/2%) per
annum. The applicable rate of interest assessed hereunder will be increased or
decreased from time to time hereafter in an amount equal to any increase or
decrease hereafter made in the Prime Rate. Each change in the Prime Rate shall
be effective hereunder on the first Business Day following the announcement of
such change.
It is the intent of the parties to comply with the usury law of the State of
Arizona (the "APPLICABLE USURY LAW"). Accordingly, it is agreed that
notwithstanding any provisions to the contrary in this Note, or in any of the
documents securing payment hereof or otherwise relating hereto, in no event
shall this Note or such documents require the payment or permit the collection
of interest in excess of the maximum contract rate permitted by the Applicable
Usury Law, as provided in Section 2.9 of the Loan Agreement.
Borrower warrants and represents to Payee that Borrower will use the loans and
advances represented by this Note solely for business purposes, and consistent
with all applicable laws and statutes.
The occurrence of any Event of Default set forth in Section 7.1 of the Loan
Agreement shall constitute an "EVENT OF DEFAULT" under this Note.
-2-
Upon the occurrence of any Event of Default hereunder, (a) the entire unpaid
amount of all of the Obligations may, in accordance with Section 7.1 of the
Loan Agreement, become immediately due and payable without demand, notice or
legal process of any kind; (b) Payee and Agent may, at their option, without
demand, notice or legal process of any kind, exercise any and all rights and
remedies granted to them, respectively, by the Loan Agreement, the Loan
Documents or by any other agreement now or hereafter existing between Lenders
and/or the Agent and Borrower or between Lenders and/or the Agent and any
guarantor of part or all of Borrower's Obligations; and (c) Agent may at its
option exercise from time to time any other rights and remedies available to it
under the Uniform Commercial Code or other law of the State of Arizona.
The remedies of Agent and Xxxxx as provided herein and in the Loan Agreement
shall be cumulative and concurrent, and may be pursued singularly,
successively, or together, at the sole discretion of the Agent or the Lenders
as provided in the Loan Agreement. No act of omission or commission of Agent or
the Lenders, including specifically any delay or failure to exercise any right,
remedy or recourse, shall be deemed to be a waiver or release of the same, such
waiver or release to be effected only through a written document executed by
Agent or Lenders, as applicable, and then only to the extent specifically
recited therein. A waiver or release with reference to any one event shall not
be construed as continuing, as a bar to, or as a waiver or release of, any
subsequent right, remedy or recourse as to a subsequent event.
Xxxxxxxx waives presentment, demand and protest, notice of protest, notice of
presentment and all other notices and demands in connection with the
enforcement of Agent's and Xxxxx's rights hereunder, except as specifically
provided and called for by this Note, and hereby consents to, and waives notice
of, the release, addition, or substitution, with or without consideration, of
any collateral or of any person liable for payment of this Note. Any delay or
failure of Payee or Agent to exercise any right available hereunder or
otherwise shall not be construed as a waiver of the right to exercise the same
or as a waiver of any other right at any other time.
Xxxxxxxx hereby agrees to pay all costs of collection, foreclosure fees,
attorneys' fees and expert witness fees incurred by the holder of this Note,
whether or not suit is filed hereon, and all of the fees, costs and expenses
provided in the Loan Agreement.
Payee may at any time transfer this Note in accordance with the Loan Agreement,
and Xxxxx's rights in any or all Collateral securing this Note, and Payee
thereafter shall be relieved from all liability with respect to such Collateral
arising after the date of such transfer.
-3-
This Note shall be binding upon Borrower and its legal representatives,
successors and assigns. Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of the Note shall be prohibited by, or be invalid under
such law, such provision shall be severable, and shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remaining
provisions of this Note.
THIS NOTE SHALL BE INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT
THE CONFLICT OF LAWS RULES) OF THE STATE OF ARIZONA GOVERNING CONTRACTS TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE. BORROWER HEREBY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF
MARICOPA IN THE STATE OF ARIZONA OR, AT THE SOLE OPTION OF PAYEE, IN ANY OTHER
COURT IN WHICH PAYEE SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH
HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. BORROWER WAIVES
ANY OBJECTION OF FORUM NONCONVENIENS AND VENUE. BORROWER FURTHER WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY MESSENGER, CERTIFIED MAIL OR REGISTERED MAIL
DIRECTED TO BORROWER AT THE ADDRESS SET FORTH BELOW AND SERVICE SO MADE SHALL
BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR UPON THE DATE
THAT THE SAME SHALL HAVE BEEN POSTED TO BORROWER'S ADDRESS. BORROWER FURTHER
WAIVES ANY RIGHT IT MAY OTHERWISE HAVE TO COLLATERALLY ATTACK ANY JUDGMENT
ENTERED AGAINST IT. EACH OF PAYEE AND BORROWER IRREVOCABLY WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS NOTE.
[SIGNATURE PAGE FOLLOWS]
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TERM LOAN B NOTE SIGNATURE PAGE
FINOVA
BORROWER:
USA DETERGENTS, INC.,
a Delaware corporation,
BIG CLOUD POWDER CORPORATION,
a Delaware corporation;
CHICAGO MANAGEMENT POWDER CORP.,
a Delaware corporation; and
CHICAGO CONTRACT POWDER CORPORATION,
an Illinois corporation.
By: /s/ Xxx Xxxx
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Xxx Xxxx, as the President and Chief Executive Officer of, and
intending to legally bind, each of the above corporations
