Exhibit 10.50
AMENDED AND RESTATED CONSOLIDATED
MULTIPLE ADVANCE NON-REVOLVING NOTE
FOR VALUE RECEIVED, Bionutrics, Inc., a Nevada corporation
("Borrower"), hereby promises to pay to the order of Xxxxxxx XxXxxxxxx, as agent
("Agent"), for the ratable benefit of HealthSTAR Holdings, LLC ("Holdings"),
Ropart Investments, LLC, Xiagen Ltd., Xxxxxx X. Xxxx, Xxxxxxx XxXxxxxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx X. Xxxxxxx and any other party who signs this Note as a
lender (collectively, "Lenders"), at the office of Agent located at c/o
Inverness, 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 or at such other
place as Agent may designate, on January 2, 2002, or earlier as required herein
(the "Maturity Date"), the sum of Eight Hundred Forty Thousand Dollars
($840,000.00) or such lesser sum as from time to time shall be outstanding
hereunder, as reflected in the books and records of Agent, such sum to include
the Accreted Interest (defined below), and, to the extent applicable, shall pay
the Default Interest Rate specified below, in accordance with the following
terms and conditions:
1. BACKGROUND.
(a) Pursuant to the Amended and Restated Loan and Stock
Pledge Agreement of even date herewith executed by Xxxxxxxx, Lenders and Agent
(the "Loan Agreement"), Lenders have agreed at their discretion to make a
multiple advance loan to Borrower in an amount not to exceed Seven Hundred
Thousand Dollars ($700,000.00) (the "Loan") with Holdings commitment limited to
One Hundred Seventy-Five Thousand Dollars ($175,000) of the Loan amount.
(b) Pharmaceutical Marketing Brands, Inc. has assigned to
HealthSTAR Holdings LLC all of its right, title and interest in and to that
certain promissory note dated September 7, 2001 in the original principal amount
of $400,000 executed by Xxxxxxxx in favor of Pharmaceutical Marketing Brands,
Inc. pursuant to which $150,000 has been advanced as of the date hereof.
(c) This Amended and Restated Consolidated Multiple
Advance Non-Revolving Note (this "Note") consolidates the unpaid principal
balance of (i) that certain promissory note dated September 7, 2001 in the
original principal amount of Four Hundred thousand Dollars ($400,000) with
unpaid principal balance of One Hundred Fifty Thousand Dollars ($150,000)
executed by Borrower in favor of Pharmaceutical Marketing Brands, Inc. and (ii)
that certain multiple advance non-revolving note dated June 20, 2001 executed by
Xxxxxxxx in favor of Ropart Investments, LLC, Xiagen Ltd., Xxxxxx X. Xxxx,
Xxxxxxx XxXxxxxxx, Xxxx Xxxxxxxxxx, and Xxxxxxx X. Xxxxxxx with unpaid principal
balance of Four Hundred Thirty-Three Thousand Dollars ($433,000) (collectively,
the "Original Notes").
(d) This Amended and Restated Consolidated Multiple
Advance Non-Revolving Note (this "Note") replaces the Original Notes and this
Note shall fully supercede the provisions of the Original Notes but does not
constitute an accord and satisfaction, a novation or other extinguishments of
the obligations of Borrower under the Original Notes.
(e) This Note is executed pursuant to the Loan Agreement.
(f) Borrower's obligations under the Loan are secured by
the collateral described in the Loan Agreement and by that certain Amended and
Restated Security Agreement of even date herewith by and between Borrower,
Agent, and Lenders.
(g) The Loan Agreement contains additional terms relating
to the Loan.
2. CONTRACTED FOR RATE OF INTEREST. The contracted for rate of
interest of the indebtedness evidenced hereby, without limitation, shall consist
of the following:
(a) The Accreted Interest, which shall be equal to the
original issue discount between the date of issuance and the date of payment
based on the advances made under this Note from time to time outstanding such
that the Accreted Interest shall be equal to $140,000 if the full $700,000 is
advanced pursuant to the Loan;
(b) The Default Interest Rate (as hereinafter defined),
as from time to time in effect, calculated daily on the basis of actual days
elapsed over a 365-day year, applied to the principal balance from time to time
outstanding hereunder; and
(c) All Additional Sums (as hereinafter defined), if any.
Xxxxxxxx agrees to pay an effective contracted for rate of interest which is the
sum of the Accreted Interest referred to in subsection 2(a) above, plus any
additional rate of interest resulting from the application of the Default
Interest Rate referred to in subsection 2(b) above, and the Additional Sums, if
any, referred to in subsection 2(c) above.
3. DEFAULT INTEREST RATE. The Default Interest Rate shall be a
per annum rate equal to 25%. The principal balance outstanding hereunder from
time to time shall bear interest at the Default Interest Rate from the date of
the occurrence of an Event of Default (as hereinafter defined) until the earlier
of: (a) the date on which the principal balance outstanding hereunder, together
with all Accreted Interest and other amounts payable hereunder, are paid in
full; or (b) the date on which such Event of Default is timely cured in a manner
satisfactory to Agent. The Default Interest Rate shall be payable on the fifth
(5th) day of each month.
4. PRINCIPAL BALANCE. The principal balance outstanding hereunder
at any time shall be the total amount of advances made hereunder by Xxxxxxx less
the total amount of payments of principal hereon as reflected in the books and
records of Agent with respect to the indebtedness evidenced hereby.
5. AGGREGATE OF ADVANCES. Xxxxxxxx and Xxxxxxx contemplate a
series of discretionary advances from time to time hereunder, even if the
principal balance outstanding hereunder has previously been reduced to zero;
provided, however, such advances in the aggregate shall not exceed the principal
amount first set forth above. Lenders shall at their discretion make any advance
requested by Borrower in accordance with this Note as long as no Event of
Default exists on the date of such request. Such advances shall be on a
nonrevolving basis and any reduction in the principal balance outstanding
hereunder shall not entitle Borrower to any additional advance to the extent
such additional advance in the aggregate with all prior advances hereunder would
exceed the principal amount first set forth above.
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6. REQUESTS FOR ADVANCES AND DISBURSEMENT OF ADVANCES. When
Borrower desires an advance under the Loan, Borrower shall make a written
request to Agent for such an advance. Such request shall specify the amount of
the advance and the date of disbursement. Agent shall immediately communicate
Xxxxxxxx's request to each of the Lenders and Lenders shall at their discretion
make available to the Agent the appropriate amount of funds to satisfy the
disbursement request of Borrower. Agent shall remit the appropriate amounts to
Borrower on the date requested by Xxxxxxxx. Lenders except for Holdings shall
agree among themselves as to the amount to be advanced by each. Holdings shall
determine at its discretion when and if to advance the remaining Twenty-Five
Thousand Dollars ($25,000) it is committed to advance under the terms hereof.
7. PAYMENT. This Note shall be payable in full on the earlier of
(i) January 2, 2002; (ii) the funding of any loan or loans in cumulative amounts
in excess of one million dollars; or (iii) the issuance by the Borrower of any
common stock or preferred stock in cumulative amounts in excess of one million
dollars (iv) the consummation of any corporate transaction including, but not
limited to, the sale of any assets, or the sale of the assets or stock of its
subsidiary, InCon Technologies, Inc. for an amount equal to at least two million
dollars. Payments received by Agent with respect to the indebtedness evidenced
hereby shall be applied in such order and manner as Agent in his sole and
absolute discretion may elect. Payments hereunder shall be made at the address
for Agent first set forth above, or at such other address as Agent may specify
to Borrower in writing.
8. PREPAYMENTS. Payments may be made at any time, or from time to
time, in whole or in part, without penalty, together with all previously matured
Accreted Interest and other charges accrued to the date of prepayment.
Notwithstanding any prepayment hereof: (a) there will be no change in the due
date or amount of scheduled payments due hereunder unless Xxxxxxx unanimously
agree in writing to such change; and (b) Borrower's obligations hereunder shall
continue in effect and this Note shall remain outstanding, unless and until (i)
the principal balance outstanding hereunder, together with all Accreted Interest
and other amounts payable hereunder or in any of the Loan Documents, are paid in
full, and (ii) thereafter, upon Xxxxxxxx's request, Agent delivers to Borrower
the original executed copy of this Note marked "cancelled."
9. EVENTS OF DEFAULT; ACCELERATION. The occurrence of any one or
more of the following events shall constitute an "Event of Default" hereunder,
and upon such Event of Default, the entire principal balance outstanding
hereunder, together with all Accreted Interest and other amounts payable
hereunder, at the election of Agent, shall become immediately due and payable,
without any notice to Borrower:
(a) Nonpayment of principal, interest or any other
amounts when the same shall become due and payable hereunder;
(b) The failure of Borrower to comply with any provision
of this Note, the Loan Agreement or any of the other documents executed in
connection with the transaction contemplated by the Loan Agreement
(collectively, the "Loan Documents"); or
(c) The appointment of (or application for appointment
of) a receiver of Borrower or any other person or entity who is or may become
liable hereunder, or the involuntary filing against or voluntary filing by
Xxxxxxxx, or any other person or entity who is or may become
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liable hereunder, of a petition or application for relief under federal
bankruptcy law or any similar state or federal law, or the issuance of any writ
of garnishment, execution or attachment for service with respect to Borrower or
any person or entity who is or may become liable hereunder, or any property of
Borrower or property of any person or entity who is or may become liable
hereunder.
10. ADDITIONAL SUMS. All fees, charges, goods, things in action or
any other sums or things of value, other than the interest resulting from the
Accreted Interest and the Default Interest Rate, as applicable, paid or payable
by Borrower (collectively, the "Additional Sums"), whether pursuant to this
Note, the Loan Documents or any other document or instrument in any way
pertaining to this lending transaction, or otherwise with respect to this
lending transaction, that, under the laws of the State of Arizona, may be deemed
to be interest with respect to this lending transaction, for the purpose of any
laws of the State of Arizona that may limit the maximum amount of interest to be
charged with respect to this lending transaction, shall be payable by Borrower
as, and shall be deemed to be, additional interest, and for such purposes only,
the agreed upon and "contracted for rate of interest" of this lending
transaction shall be deemed to be increased by the rate of interest resulting
from the Additional Sums. Borrower understands and believes that this lending
transaction complies with the usury laws of the State of Arizona; however, if
any interest or other charges in connection with this lending transaction are
ever determined to exceed the maximum amount permitted by law, then Borrower
agrees that: (a) the amount of interest or charges payable pursuant to this
lending transaction shall be reduced to the maximum amount permitted by law; and
(b) any excess amount previously collected from Borrower in connection with this
lending transaction that exceeded the maximum amount permitted by law, will be
credited against the principal balance then outstanding hereunder. If the
outstanding principal balance hereunder has been paid in full, the excess amount
paid will be refunded to Borrower.
11. CONVERSION OF NOTE.
(a) CONVERSION PRICE. At any time prior to the close of
business on the business day immediately prior to the Maturity Date, this Note
is convertible in whole, but not in part, at the option of the Lenders, into
shares of the Borrower's common stock, par value $.001 per share (the "Common
Stock") at the rate of One Dollar and Zero Cents ($1.00) per share (the
"Conversion Price"), subject to adjustment as provided in Section 11(b) or 11(c)
hereof. Notwithstanding the foregoing, Borrower shall not be required to issue
fractional shares of Common Stock or other capital stock upon conversion of this
Note and, in lieu thereof, shall pay a cash adjustment based upon the then fair
market value of the Common Stock based on the average closing price on the OTC
Bulletin Board for the five trading days preceding the last business day
immediately prior to the date of conversion.
(b) ADJUSTMENT BASED UPON COMBINATION OF SHARES OR
RECAPITALIZATION. The Conversion Price shall be adjusted in the event that
Borrower shall at any time (i) pay a dividend or make a distribution on Common
Stock in shares of Common Stock, (ii) subdivide or reclassify its outstanding
Common Stock into a greater number of shares, or (iii) combine its outstanding
shares of Common Stock into a smaller number of shares. Upon the occurrence of
any of the foregoing events, the Conversion Price shall be adjusted so that the
Lenders, upon surrender of this Note for conversion, shall be entitled to
receive the number of shares of Common Stock or other capital stock of the
Borrower that the Lenders would have owned or have been entitled to receive
after the
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happening of any of the events described above had this Note been converted
immediately prior to the happening of such event.
(c) ADJUSTMENT BASED UPON MERGER OR CONSOLIDATION. In
case of any consolidation or merger to which the Borrower is a party (other than
a merger in which the Borrower is the entity surviving such merger and which
does not result in any reclassification of or change in the outstanding Common
Stock of the Borrower), or in case of any sale or conveyance to another person,
firm, or corporation of the property of Borrower as an entirety or substantially
as an entirety, the Lenders shall have the right to convert this Note into the
kind and amount of securities and property (including cash) receivable upon such
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock into which such Note might have been converted immediately prior
thereto.
(d) EXERCISE OF CONVERSION PRIVILEGE. The conversion
privilege provided for herein shall be exercisable by the Lenders by written
notice to the Borrower or its successor and the surrender of this Note in
exchange for the number of shares of Common Stock (or other securities and
property, including cash, in the event of an adjustment of the Conversion Price
pursuant to Section 11(b) or 11(c) hereof) into which this Note is convertible
based upon the Conversion Price, as adjusted. All conversion rights will expire
at the close of business on the business day immediately prior to the Maturity
Date.
12. WAIVERS. Except as set forth in this Note or the Loan
Documents, to the extent permitted by applicable law, Borrower, and each person
who is or may become liable hereunder, severally waive and agree not to assert:
(a) any homestead or exemption rights; (b) demand, diligence, grace, presentment
for payment, protest, notice of nonpayment, nonperformance, extension, dishonor,
maturity, protest and default; and (c) recourse to guaranty or suretyship
defenses (including, without limitation, the right to require Lenders to bring
an action on this Note). Lenders may, if they unanimously agree, extend the time
for payment of or renew this Note, release collateral as security for the
indebtedness evidenced hereby, or release any party from liability hereunder,
and any such extension, renewal, release or other indulgence shall not alter or
diminish the liability of Borrower or any other person or entity who is or may
become liable on this Note except to the extent expressly set forth in a writing
evidencing or constituting such extension, renewal, release or other indulgence.
13. COLLECTION COSTS AND EXPENSES. Borrower agrees to pay all
costs of collection, including, without limitation, attorneys' fees, whether or
not suit is filed, and all costs of suit and preparation for suit (whether at
trial or appellate level), in the event any payment of principal, interest or
other amount under the Loan is not paid when due, or in the event it becomes
necessary to protect the Pledged Collateral (as defined in the Loan Agreement),
or to exercise any other right or remedy under this Note, the Loan Agreement or
in the Loan Documents, or in the event Agent or Lenders are made parties to any
litigation because of the existence of this Note, the Loan Agreement or the
other Loan Documents or if at any time Lenders should incur any attorneys' fees
in any proceeding under any federal bankruptcy law (or any similar state or
federal law) in connection with this Note, the Loan Agreement or the other Loan
Documents. In the event of any court proceeding, attorneys' fees shall be set by
the court and not by the jury and shall be included in any judgment obtained by
Agent or Lenders, as applicable.
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14. NO WAIVER BY XXXXXXX. No delay or failure of Lenders in
exercising any right hereunder shall affect such right, nor shall any single or
partial exercise of any right preclude further exercise thereof.
15. GOVERNING LAW. This Note shall be governed by and construed
and interpreted in accordance with the laws of the State of Arizona,
notwithstanding any Arizona or other conflict-of-laws provision to the contrary.
16. JURISDICTION AND VENUE. Borrower, Agent, and Xxxxxxx hereby
expressly agree that in the event any actions or other legal proceedings are
initiated by or against Borrower, Agent or Lenders involving any alleged breach
or failure by any party to pay, perform or observe any sums, obligations or
covenants to be paid, performed or observed by it under this Note, the Loan
Agreement or the other Loan Documents, or involving any other claims or
allegations arising out of the transactions evidenced or contemplated by this
Note, the Loan Agreement or the other Loan Documents, regardless of whether such
actions or proceedings shall be for damages, specific performance or declaratory
relief or otherwise, such actions shall be brought in Maricopa County, Arizona,
or Middlesex County, New Jersey and Borrower, Agent, and Lenders hereby submit
to the jurisdiction of the State of Arizona or New Jersey for such purposes and
agree that the venue of such actions or proceedings shall properly lie in
Maricopa County, Arizona or Middlesex County, New Jersey
17. AMENDMENTS. No amendment, modification, change, waiver,
release or discharge hereof and hereunder shall be effective unless evidenced by
an instrument in writing and signed by the party against whom enforcement is
sought.
18. PROVISIONS SEVERABLE. The provisions of this Note are
independent of and severable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
Further, if a court of competent jurisdiction determines that any provision of
this Note is invalid or unenforceable as written, the court may interpret,
construe, rewrite or revise such provision, to the fullest extent allowed by
law, so as to make it valid and enforceable consistent with the intent of the
parties.
19. BINDING NATURE. The provisions of this Note shall be binding
upon Xxxxxxxx and the heirs, personal representatives, successors and assigns of
Xxxxxxxx, and shall inure to the benefit of Lenders and any subsequent holder of
all or any portion of this Note, and their respective successors and assigns.
20. NOTICE. Any notice or other communication with respect to this
Note shall: (a) be in writing; (b) be effective on the day of hand-delivery
thereof to the party to whom directed, one day following the day of deposit
thereof with delivery charges prepaid with a national overnight delivery
service, or two days following the day of deposit thereof with postage prepaid
with the United States Postal Service, by regular first class, certified or
registered mail; (c) if directed to Agent, be addressed to Agent at the address
of Agent first set forth above or to such other address as Agent shall have
specified by like notice; (d) if directed to Xxxxxxxx, be addressed to Borrower
at the address for Borrower set forth below Borrower's name, or to such other
address as Borrower shall
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have specified by like notice; and (e) if directed to one of Lenders, be
addressed to Lender at the address for that Lender set forth below Lender's
name, or to such other address as Lender shall have specified by like notice.
21. SECTION HEADINGS. The section headings set forth in this Note
are for convenience only and shall not have substantive meaning hereunder or be
deemed part of this Note.
22. CONSTRUCTION. This Note shall be construed as a whole in
accordance with its fair meaning and without regard to or taking into account
any presumption or other rule of law requiring construction against the party
preparing this Note.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Note as of the 26th day
of October, 2001.
"BORROWER"
BIONUTRICS, INC., a Nevada corporation
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: President
Address of Borrower:
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
"AGENT"
Xxxxxxx XxXxxxxxx
/s/ Xxxxxxx XxXxxxxxx
------------------------------------------
Address of Agent:
c/o Inverness
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
ACKNOWLEDGEMENT OF LENDERS
The Lenders hereby agree to be bound by the terms of this Note.
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"LENDERS"
HEALTHSTAR HOLDINGS LLC, as a Lender
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: Managing Member
------------------------------------
Address of HealthSTAR Holdings LLC:
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxxxx XxXxxxxxx, as a Lender
/s/ Xxxxxxx XxXxxxxxx
------------------------------------------
Address of Xxxxxxx XxXxxxxxx:
c/o Inverness
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xiagen Ltd., as a Lender
By: /s/ Xxxxxxx XxXxxxxxx
---------------------------------------
Name: Xxxxxxx XxXxxxxxx
-------------------------------------
Title: Chairman
------------------------------------
Address of Xiagen Ltd.:
c/o Inverness
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Ropart Investments, LLC, as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Managing Member
------------------------------------
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Address of Ropart Investments LLC:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxxxx X. Xxxxxxxxxx, as a Lender
/s/ Xxxxxxxxx X. Xxxxxxxxxx
------------------------------------------
Address of Xxxxxxxxx X. Xxxxxxxxxx:
P.O. Box 4710
Cave Creek, AZ 85327
Xxxxxx X. Xxxx, as a Lender
/s/ Xxxxxx X. Xxxx
------------------------------------------
Address of Xxxxxx X. Xxxx:
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx, as a Lender
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Address of Xxxxxxx X. Xxxxxxx
000 Xxxxx Xxx.
Sea Grit, NJ 07650
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, as a Lender
------------------
------------------------------------------
Address
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