FINOVA
TERM LOAN C NOTE
$6,283,333
FEBRUARY 25, 1999
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 SIX MILLION TWO HUNDRED
EIGHTY-THREE THOUSAND THREE HUNDRED THIRTY-THREE AND 00/100 DOLLARS
($6,283,333), payable in equal monthly installments of principal in the amount
of FIFTY TWO THOUSAND THREE HUNDRED SIXTY-ONE AND 00/100 DOLLARS ($52,361);
together with accrued interest on the principal balance unpaid from time to
time, commencing on MARCH 1, 1999 and continuing on the first day of each
calendar month thereafter through and including SEPTEMBER 1, 2003. In addition,
Borrower shall make additional monthly principal payments in the amount of
TWENTY SEVEN THOUSAND EIGHTY-THREE DOLLARS ($27,083) on or before the first day
of each month, commencing MARCH 1, 1999 and continuing through JANUARY 1, 2001
(unless all Obligations in connection with this Note are paid in full prior to
that date). 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
Amended and Restated 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 prepayments
may be required under this Note, out of the "Escrow Amount," as such term is
defined in Paragraph 3 of the "Additional Provisions" Section of the Schedule.
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, including,
without limitation, the "Real Estate" (as that term is defined in the Mortgages.
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 C outstanding under the Loan Agreement at the rate per annum which is ONE
(1) percentage point 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 SEVEN AND THREE-QUARTERS (7.75%) 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.
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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.
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.
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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.
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 C 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
