EXHIBIT 8
PROMISSORY NOTE
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$300,000.00 Los Angeles, California
December 31,1998
FOR VALUE RECEIVED, the undersigned, VITAFORT INTERNATIONAL CORPORATION, a
Delaware corporation (the "Borrower"), hereby promises to pay to DOMINION
CAPITAL FUND, LTD. (the "Lender") the principal amount of $300,000.00, as
provided herein, together with interest at the rate hereinafter set forth,
payable on or before October 20, 1999.
Interest on the principal balance of this Note from time to time outstanding
and unpaid shall be computed on the basis of a 360-day year for the actual
number of days elapsed at a simple interest rate per annum equal to eight
percent (8%) commencing on January 20, 1999.
Principal and all accrued interest, at the rate of eight percent (8%) per
annum, shall be payable without the necessity for demand or notice on October
20, 1999. Except as otherwise permitted hereunder, all payments of principal
and interest shall be paid by wire transfer per the written instructions of
Xxxxxx. As further consideration for this loan, Xxxxxxxx agrees to issue to
Lender a Warrant to purchase 30,000 shares of the Borrower's common stock, par
value $0.01 per share, exercisable at $.40 per share for a period of five (5)
years ("Warrant A"), which shares of common stock underlying the Warrant are
subject to a Registration Rights Agreement between the Borrower and Lender of
even date herewith.
Borrower will also place in escrow with Xxxxxx X. XxXxxxx, Esq., pursuant to
an escrow agreement of even date herewith, a second warrant to purchase 30,000
shares of Common Stock at an exercise price of $.25 per share ("Warrant B"). On
or before October 20, 1999 re-payment of the Note may be made by Borrower at its
option, in part or in full, in cash or common stock of the Borrower, free of
restrictions, restrictive legends or stop transfer instructions. In any event,
if any part or all of this Note remains unpaid on October 20, 1999 then Borrower
may pay this Note together with interest in cash or in free trading common stock
at Borrower's sole option. If paid in common stock the Borrower shall be
permitted to deliver the required shares in up to three monthly installments
(October, November and December) based on the previous five day average closing
bid price of Borrower's common stock prior to delivery of each installment.
Xxxxxxxx agrees to issue shares of free trading common stock in increments of no
more than 4.99% of Borrower's issued and outstanding common stock. As
consideration for Lender taking such payment in common stock at the five day
average and over up to a three month period, rather than cash, the exercise
price of Warrant B shall be reduced in accordance with the
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terms thereof from $.25 to $.01, which reduction shall only be made after Lender
has received the common stock as repayment. If the Borrower pays this Note in
part in common stock of the Borrower and in part in cash, then in such event the
Warrant exercise price shall be reduced proportionately. If the principal amount
of this Note, plus accrued interest, is repaid in full in cash then Warrant B
shall be canceled.
In the event Borrower is unable to pay back the Note with interest on
October 20, 1999, then in such event Terra Healthy Living shall have a right of
first refusal to buy out the balance of this Note. This right of first refusal
shall be available for Terra Healthy Living up to 5:00 p.m. EST on October 20,
1999, but this right shall expire after that date. In the event that Terra
Healthy Living timely buys this Note then Warrant B shall be transferred from
escrow and Borrower shall then immediately reduce the exercise price of Warrant
B to $.01.
Borrower hereby waives presentment, protest, notice of protest and notice
of dishonor of this Note. The non-exercise by the Lender of any rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any other subsequent instance.
Nothing contained herein shall be deemed to establish or require the
payment of a rate of interest in excess of the maximum rate permitted by
applicable law. In the event that the rate of interest required to be paid
hereunder exceeds the maximum rate permitted by such law, such rate shall
automatically be reduced to the maximum rate permitted by such law.
The Borrower and any endorsers hereof, for themselves and their respective
representatives, successors and assigns (except as specifically provided in this
Note) expressly (a) waive presentment, demand, protest, notice of dishonor,
notice of non-payment, notice of maturity, notice of protest, diligence in
collection, and the benefit of any applicable exemptions, including, but not
limited to, exemptions claimed under insolvency laws, and (b) consent that the
Lender may release or surrender, exchange or substitute any property or other
collateral or security now held or which may hereafter be held as security for
the payment of this Promissory Note, or may release any guarantor, or may extend
the time for payment or otherwise modify the terms of payment of any part or the
whole of the debt evidenced hereby.
AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that from
the date hereof until payment and performance in full of the obligations
hereunder, unless Xxxxxx otherwise consents in writing:
(a) Use of Proceeds. The proceeds disbursed under the Note shall be used
solely for general corporate purposes.
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(b) Borrower represents and warrants that there are no actions, suits,
investigations or proceedings pending or threatened against or affecting the
validity or enforceability of this Note and there are no outstanding orders or
judgments of any court or governmental authority or awards of any arbitrator or
arbitration board against the Borrower.
DEFAULT. If any of the following events occur (a "default") the entire principal
balance plus accrued interest shall be due and payable, and the Borrower shall
be liable for reasonable attorneys fees, costs and expenses:
(a) Borrower fails to pay when due any principal or interest under this
Note;
(b) Borrower fails to observe or perform any covenant or agreement set
forth in this Note;
(c) Xxxxxxxx makes a general assignment for the benefit of its creditors,
files a petition in bankruptcy, for an arrangement with its creditors or for
reorganization under any federal or state bankruptcy or other insolvency law;
(d) Borrower files or becomes the subject of a petition, which is not
dismissed or stayed within 90 days, in bankruptcy or for the appointment of a
receiver, custodian, trustee or liquidator of the party or of all or
substantially all of its assets under any federal or state bankruptcy or other
insolvency law;
(e) Borrower is voluntarily or involuntarily terminated or dissolved;
(f) Borrower or any accommodation maker, endorser or guarantor enters into
any merger or consolidation, or sale, lease, liquidation or other disposition of
all or substantially all of its assets; or
(g) Any judgment is entered against Borrower or any attachment upon or
garnishment of any property of Borrower is issued in an amount in excess of
$250,000.
LITIGATION.
(a) Forum Selection and Consent to Jurisdiction. Any litigation based on
or arising out of, under, or in connection with, this Promissory Note shall be
brought and maintained exclusively in the courts of New York. The parties
hereby expressly and irrevocably submit to the jurisdiction of the state and
federal courts of New York for the purpose of any such litigation as set forth
above and irrevocably agree to be bound by any final judgment rendered thereby
in connection with such litigation. The Borrower further irrevocably consents
to the service of process by registered mail, postage prepaid, or by personal
service within or without New York. The Borrower hereby expressly and
irrevocably
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waives, to the fullest extent permitted by law, any objection which it may have
or hereafter may have to the laying of venue of any such litigation brought in
any such court referred to above and any claim that any such litigation has been
brought in any inconvenient forum. To the extent that the Borrower has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) with respect to itself or its
property, the Borrower hereby irrevocably waives such immunity in respect of its
obligations under this agreement and the other loan documents.
(b) Waiver of Jury Trial. The Lender and the Borrower hereby knowingly,
voluntarily and intentionally waive any rights they may have to a trial by jury
in respect of any litigation based hereon, or arising out of, under, or in
connection with, this agreement, or any course of conduct, course of dealing,
statements (whether oral or written) or actions of the Lender or the Borrower.
The Borrower acknowledges and agrees that it has received full and sufficient
consideration for this provision and that this provision is a material
inducement for the Lender entering into this agreement.
MISCELLANEOUS.
(a) All pronouns and any variations thereof used herein shall be deemed to
refer to the masculine, feminine, impersonal, singular or plural, as the
identity of the person or persons may require.
(b) Neither this Promissory Note nor any provision hereof shall be waived,
modified, changed, discharged, terminated, revoked or canceled, except by an
instrument in writing signed by the party effecting the same against whom any
change, discharge or termination is sought.
(c) Notices required or permitted to be given hereunder shall be in writing
and shall be deemed to be sufficiently given when personally delivered or sent
by registered mail, return receipt requested, addressed: (i) if to the
Borrower, Xxxx Xxxxxxx, CEO at Vitafort International Corporation, 0000 Xxxxxx
xx xxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000 and (ii) if to Lender C/O Xxxxxx
X. XxXxxxx, Esq. 00 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxx, XX 00000.
(d) This Promissory Note shall be enforced, governed and construed in all
respects in accordance with the laws of Delaware, as such laws are applied by
Delaware courts to agreements entered into, and to be performed in, Delaware by
and between residents of Delaware, and shall be binding upon the Borrower, the
Borrower 's successors and assigns and shall inure to the benefit of the Lender,
its successors and assigns. If any provision of this Promissory Note is invalid
or unenforceable under any applicable statue or rule of law, then such
provisions shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
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law. Any provision hereof that may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.
(e) This Note shall not be assigned by the Lender without the express
written permission of the Borrower.
THE BORROWER ACKNOWLEDGES THAT THE TRANSACTIONS IN CONNECTION WITH WHICH
THIS NOTE WAS EXECUTED AND DELIVERED AND WHICH ARE CONTEMPLATED BY THE TERMS OF
THE AGREEMENT ARE, IN ALL CASES, COMMERCIAL TRANSACTIONS; AND THE BORROWER
HEREBY EXPRESSLY WAIVES ANY AND ALL CONSTITUTIONAL RIGHTS IT MAY HAVE AS NOW
CONSTITUTED OR HEREAFTER AMENDED, WITH REGARD TO NOTICE, ANY JUDICIAL PROCESS
AND ANY AND ALL OTHER RIGHTS IT MAY HAVE, AND THE LENDER MAY INVOKE ANY
PREJUDGMENT REMEDY AVAILABLE TO IT OR ITS SUCCESSORS OR ASSIGNS.
VITAFORT INTERNATIONAL CORPORATION
By /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx its CEO
duly authorized
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