Exhibit 10.16
TERM B LOAN NOTE
U.S. $9,713,750.00 October 29, 2003
FOR VALUE RECEIVED, the undersigned, EASY GARDENER PRODUCTS, LTD., a Texas
limited partnership (the "Borrower"), hereby promises to pay to CAPITALSOURCE
FINANCE LLC, a Delaware limited liability company (the "Lender"), the aggregate
principal amount at any time outstanding of the Term B Loan made by Lender to
Borrower pursuant to the Loan Agreement, which amount shall not exceed Nine
Million Seven Hundred Thirteen Thousand Seven Hundred-Fifty Dollars
($9,713,750.00), in lawful money of the United States of America in immediately
available funds, with interest thereon, and all other Obligations related
thereto under and pursuant to the Term Loan and Security Agreement dated as of
the date hereof among Borrower, the other Credit Parties, Lender (in its
capacity as a Lender and as administrative, payment and collateral agent for the
Lenders), and other Lenders party thereto from time to time (as it may be
amended, supplemented or otherwise modified from time to time, the "Loan
Agreement"), all at the times and in the manner set forth in the Loan Agreement.
Capitalized terms used but not defined herein shall have the meanings given them
in the Loan Agreement.
1. Interest and Payments.
(a) Borrower promises to pay interest on the outstanding principal
amount of this Term B Loan Note from the date of funding of the Term B Loan
until such principal amount is indefeasibly paid in full in cash. Interest on
the outstanding principal amount of this Term B Loan Note shall be due and
payable monthly in arrears on the first calendar day of each calendar month,
commencing with the month of November, 2003, at an annual rate equal to the
greater of (i) the Prime Rate plus eight and three-quarter percent (8.75%) and
(ii) thirteen percent (13%), calculated on the basis of a 360-day year and for
the actual number of calendar days elapsed in each interest calculation period.
(b) Payments of interest on the Term B Loan and other Obligations
related to the Term B Loan shall be made only by wire transfer on the date when
due, without offset or counterclaim, in U.S. dollars, in immediately available
funds as required in the Loan Agreement. Notwithstanding and without limiting or
being limited by any other provision of this Term B Loan Note or any other Loan
Document, any payments or prepayments received under this Term B Loan Note shall
be credited and applied in such manner and order as described in the Loan
Agreement.
2. Maturity and Principal Payments. Unless earlier due and payable in
accordance with the Loan Agreement or accelerated under the Loan Documents, this
Term B Loan Note and the Term B Loan shall mature, and all amounts outstanding
hereunder and all other Obligations under the Loan Documents relating to the
Term B Loan, shall become due and payable in full on the Maturity Date. Borrower
shall make payments on the principal amount of the Term B Loan outstanding
hereunder as required pursuant to the Loan Agreement.
3. Default Rate. Notwithstanding any other provision of this Term B Loan
Note, the late fee, if any, and default rates set forth in the Loan Agreement
shall apply to this Term B Loan Note.
4. Loan Agreement. This Term B Loan Note is referred to in, made pursuant
to, and entitled to the benefits of, the Loan Agreement. The Loan Agreement,
among other things, (i) provides for the making of the Term B Loan by Xxxxxx to
Borrower in the aggregate maximum dollar amount first mentioned above, (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events upon the terms and conditions therein specified, and
(iii) contains provisions defining an Event of Default and the rights and
remedies of the parties thereto. This Term B Loan Note is a secured note,
entitled to the benefits of and security interests granted in, among other
things, the Loan Agreement and the other Loan Documents.
5. Prepayments. This Term B Loan Note may be prepaid in whole or in part
only as permitted in the Loan Agreement and shall be prepaid, in each case as
provided or required in the Loan Agreement. No payment or prepayment of any
amount shall entitle any Person to be subrogated to the rights of Lender
hereunder or under the Loan Documents unless and until the Obligations have been
performed in full and indefeasibly paid in full in cash and the Loan Agreement
has been terminated.
6. Payments Due on a Day other than a Business Day. If any payment to be
made on or under this Term B Loan Note is stated to be due or becomes due and
payable on a day other than a Business Day, the due date thereof shall be
extended to, and such payment shall be made on, the next succeeding Business
Day, and such extension of time in such case shall be included in the
computation of payment of any interest (at the interest rate then in effect
during such extension) and/or fees, as the case may be.
7. Waivers. Borrower hereby agrees that the provisions of the Loan
Agreement relating to waivers and rights and remedies shall apply to this Term B
Loan Note.
8. Lawful Limits. In no contingency or event whatsoever, whether by reason
of acceleration or otherwise, shall the interest and other charges paid or
agreed to be paid by Borrower for the use, forbearance or detention of money
hereunder exceed the maximum rate permissible under applicable law which a court
of competent jurisdiction shall, in a final determination, deem applicable
hereto. If, due to any circumstance whatsoever, fulfillment of any provision
hereof, at the time performance of such provision shall be due, shall exceed any
such limit, then, the obligation to be so fulfilled shall be reduced to such
lawful limit, and any interest or any other charges of any kind received which
might be deemed to be interest under applicable law in excess of the maximum
lawful rate shall be applied in accordance with the Loan Agreement.
9. Governing Law. This Term B Loan Note shall be governed by and construed
in accordance with the internal laws of the State of Maryland without giving
effect to its choice of laws provisions.
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This Term B Loan Note is executed as of the date first written above.
EASY GARDENER PRODUCTS, LTD.,
a Texas limited partnership
By: E G Product Management, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Manager
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EASY GARDENER PRODUCTS, LTD.
TERM B LOAN NOTE
Signature page
