Bank of America
PROMISSORY NOTE
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Borrower: Integrated BioPharma, Inc Lender: Bank of America, N.A.
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PRINCIPAL AMOUNT: $4,500,000.00 Date of Note: August 6, 2003
PROMISE TO PAY. Integrated BloPharma, Inc. ("Borrower") promises to Pay to Bank
of America, N.A. ("lender"), or order, in lawful money of the United States of
America, the principal amount of Four Million Five Hundred Thousand & 00/100
Dollars ($4,500,000.00) or so much as may be outstanding, together with interest
on the unpaid outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding principal
plus all accrued unpaid interest on September 4, 2004. In addition. Borrower
will pay regular monthly payments of all accrued unpaid interest due as of each
payment date, beginning September 4. 2003 with all subsequent interest payments
to be due on the same day of each month after that. Unless otherwise agreed or
required by applicable law, payments will be applied first to accrued unpaid
Interest, then to principal, and any remaining amount to any unpaid collection
costs and late charges. The annual interest rate for this Note Is computed on a
365/360 basis; that is, by applying the ratio of the annual interest rate over a
year of 360 days, multiplied by the outstanding principal balance, multiplied by
the actual number of days the principal balance is outstanding. Borrower will
pay Lender at Lender's address shown above or at such other place as Lender may
designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an independent index which is the "Wall Street
Journal LIBOR Rate" which is a fluctuating rate of interest equal to the 1 month
London interbank offered rate as published in the "Money Rates" section of The
Wall Street Journal on the immediately preceding business day as adjusted from
time to time in lender's sole discretion for then applicable reserve
requirements, deposit insurance assessment rates and other regulatory costs (the
"Index"). The Index is not necessarily the lowest rate charged by lender on its
loans. If the Index becomes unavailable during the term of this loan, lender may
designate a substitute index after notice to Borrower. Lender will tell Borrower
the current Index rate upon Borrower's request. The interest rate change will
not occur more often than each date of such change in the Index. Borrower
understands that lender may make loans based on other rates as well. The
interest rate to be applied to the unpaid principal balance of this Note will be
at a rate of 1.250 percentage points, over the Index. NOTICE: Under no
circumstances will the effective rate of interest on this Note be more than the
maximum rate allowed by applicable law.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed
earlier than it is due. Early payments will not, unless agreed to by Lender in
writing, relieve Borrower of Borrower's obligation to continue to make payments
of accrued unpaid interest. Rather, early payments will reduce the principal
balance due. Borrower agrees not to send lender payments marked "paid in full",
"without recourse", or similar language. If Borrower sends such a payment,
Lender may accept it without losing any of lender's rights under this Note, and
Borrower will remain obligated to pay any further amount owed to Lender, All
written communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes "payment in full"
of the amount owed or that is tendered with other conditions or limitations or
as full satisfaction of a disputed amount must be mailed or delivered to: Bank
of America, N.A., NC1-014-13-04, P,O. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged
4.000% of the unpaid portion of the regularly scheduled payment.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the variable interest rate on this Note to 7.250 percentage points over
the Index, if and to the extent that the increase does not cause the interest
rate to exceed the maximum rate permitted by applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
Payment Defalult. Borrower fails to make any payment when due under
this Note.
Other Default. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Note or in
any of the related documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement
between Lender and Borrower.
Default In Favor of Third Parties. Borrower or any Grantor defaults
under any loan, extension of credit, security agreement, purchase or
sales agreement, or any other agreement, in favor of any other creditor
or person that may materially affect any of Borrower's property or
Borrower's ability to repay this Note or perform Borrower's obligations
under this Note or any of the related documents.
False Statement. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note
or the related documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false
or misleading at any time thereafter.
Insolvency. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the loan. This
includes a garnishment of any of Borrower's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply
if there is a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice of
the creditor or forfeiture proceeding and deposits with Lender monies
or a surety bond for the creditor or forfeiture proceeding, in an
amount determined by lender, in its sole discretion, as being an
adequate reserve or bond for the dispute.
Event Affecting Guarantor. Any of the preceding events occurs with
respect to any Guarantor of any of the indebtedness or any Guarantor
dies or becomes incompetent, or revokes or disputes the validity of, or
liability under, any guaranty of the indebtedness evidenced by this
Note.
Change In Ownership. Any change in ownership of twenty-five percent
(25%) or more of the common stock of Borrower.
Adverse Change. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of this Note is impaired.
Insecurity. Lender in good faith believes itself insecure.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, and then
Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Note if Borrower does not pay. Borrower will pay Lender the amount of these
costs and expenses, which includes, subject to any limits under applicable law,
Lender's reasonable attorneys' fees and Lender's legal expenses whether or not
there is a lawsuit, including reasonable attorneys' fees and legal expenses for
bankruptcy proceedings (including efforts to modify or vacate any automatic stay
or injunction), and appeals. If not prohibited by applicable law, Borrower also
will pay any court costs, in addition to all other sums provided by law.
JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any
action, proceeding, or counterclaim brought by either Lender or Borrower against
the other.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request
to submit to the jurisdiction of the courts of any County, State of Florida.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future
However, this does not include any ▇▇▇ or ▇▇▇▇▇ accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
debt against any and all such accounts.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under
this Note, as well as directions for payment from Borrower's accounts, may be
requested orally or in writing by Borrower or by an authorized person. Lender
may, but need not, require that all oral requests be confirmed in writing.
Borrower agrees to be liable for all sums either: (A) advanced in accordance
with the instructions of an authorized person or (B) credited to any of
Borrower's accounts with Lender. The unpaid principal balance owing on this Note
at any time may be evidenced by endorsements on this Note or by Lender's
internal records, including daily computer print-outs. Lender will have no
obligation to advance funds under this Note if: (A) Borrower or any guarantor is
in default under the terms of this Note or any agreement that Borrower or any
guarantor has with Lender, including any agreement made in connection with the
signing of this Note; (B) Borrower or any guarantor ceases doing business or is
insolvent; (C) any guarantor seeks, claims or otherwise attempts to limit,
modify or revoke such guarantor's guarantee of this Note or any other loan with
Lender; (D) Borrower has applied funds provided pursuant to this Note for
purposes other than those authorized by Lender; or (E) Lender In good faith
believes Itself insecure.
PRE BILLING. If the Borrower and Lender elect to use pre-billing calculation,
for each payment date (the "Due Date") the amount of each payment debit will be
determined as follows: On the 'Billing Date" Lender will prepare and mail to
Borrower an invoice of the amounts that will be due on that Due Date ("Billed
Amount"). (The "Billing Date" will be a date that is a specified number of
calendar days prior to the Due Date, which number of days will be mutually
agreed from time to time by Lender and Borrower.) The calculation of the Billed
Amount will be made on the assumption that no new extensions of credit or
payments will be made between the Billing Date and the Due Date, and that there
will be no changes in the applicable interest rate. On the Due Date Lender will
debit the Designated Account for the Billed Amount, regardless of the actual
amount due on that date ("Accrued Amount"). If the Due Date does not fall on a
Business Day, Lender shall debit the Designated Account on the first Business
Day following the Due Date. For purposes of this Agreement, "Business Day" means
a day other than Saturday, Sunday or other day on which commercial banks are
authorized to close or are in fact closed in the state where the Lender's
lending office is located. If the Billed Amount debited to the Designated
Account differs from the Accrued Amount, the difference will be treated as
follows: If the Billed Amount is 'less than the Accrued Amount, the Billed
Amount for the following Due Date will be increased by the amount of the
underpayment, Borrower will not be in default by reason of any such
underpayment. If the Billed Amount is more than the Accrued Amount, the Billed
Amount for the following Due Date will be decreased by the amount of the
overpayment. Regardless of any such difference, interest will continue to accrue
based on the actual amount of principal outstanding without compounding. Lender
will not pay interest on any overpayment.
AUTOMATIC PAYMENTS. Borrower hereby authorizes Lender automatically to deduct
from Borrower's account numbered the amount of any loan payment. If the funds in
the account are insufficient to cover any payment, Lender shall not be obligated
to advance funds to cover the payment. At any time and for any reason, Borrower
or Lender may voluntarily terminate Automatic Payments.
COUNTERPARTS. This Note may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
ASSIGNMENT. Lender may sell or offer to sell this Note, together with any and
all documents guaranteeing, securing or executed in connection with this Note,
to one or more assignees without notice to or consent of Borrower. Lender is
hereby authorized to share any information it has pertaining to the loan
evidenced by this Note, including without limitation credit information on the
undersigned, any of its principals, or any guarantors of this Note, to any such
assignee or prospective assignee,
ADDITIONAL DEFAULTS. Each of the following shall constitute an additional event
of default ("Event of Default") under this Note:
Event of Default Under Related Documents. A default or additional event of
default occurs under the terms of any promissory note, guaranty, pledge
agreement, security agreement or other agreement or instrument executed by
Borrower or any guarantor, pledgor, accommodation party or other obligor in
connection with or relating to this Note.
Judgment. The entry of a judgment against any Borrower or guarantor, pledgor,
accommodation party or other obligor which Lender deems to be of a material
nature, in Lender's sole discretion.
Revocation or Termination of Trust. If any Borrower, grantor, guarantor,
pledgor, accommodation party or other obligor on the indebtedness evidenced
hereby or any of the related documents is a trust or the trustee(s) of a trust,
such trust is revoked or otherwise terminated or all or a substantial part of
such trust's assets are distributed or otherwise disposed of, or in the case of
a revocable trust, the grantor of such trust dies.
Adverse Change of Obligor. A material adverse change occurs in the financial
condition of any guarantor, pledgor, accommodation party or other obligor, as
determined by Lender in its sale discretion.
Resignatlon/Withdrawal, The resignation or withdrawal of any partner or a
material owner of Borrower or any guarantor, pledgor, accommodation party or
other obligor, or any substantial change in the present executive or management
personnel of Borrower, any guarantor, pledgor, accommodation party or other
obligor as determined by Lender in its sole discretion.
Credltor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Borrower or by any governmental agency against
any assets of Borrower and/or any guarantor, pledgor, accommodation party or
other obligor. This includes a garnishment of: (1) any of Borrower's accounts,
including deposit accounts, with Lender and/or (2) any account, including
deposit accounts, with Lender of any guarantor, pledgor, accommodation party or
other obligor. However, this Event of Default shall not apply if there is a good
faith dispute by such Borrower and/or guarantor, pledgor, accommodation party or
other obligor as to the validity or reasonableness of the claim which is the
basis of the creditor or forfeiture proceeding and if such Borrower and/or
guarantor, pledgor, accommodation party or other obligor gives Lender written
notice of the creditor of forfeiture proceeding and deposits with Lender monies
or a surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve or
bond for the dispute.
ARBITRATION. (a) This paragraph concerns the resolution of any controversies or
claims between the parties, whether arising in contract, tort or by statute,
including but not limited to controversies or claims that arise out of or relate
to: (i) this agreement (including any renewals, extensions or modifications); or
(ii) any document related to this agreement (collectively a "Claim"). For the
purposes of this arbitration provision only, the term "parties" shall include
any parent corporation, subsidiary or affiliate of the Bank involved in the
servicing, management or administration of any obligation described or evidenced
by this agreement.
b) At the request of any party to this agreement, any Claim shall be resolved by
binding arbitration in accordance with the Federal Arbitration Act (Title 9, U.
S, Code) (the "Act"). The Act will apply even though this agreement provides
that it is governed by the law of a specified state,
(c) Arbitration proceedings will be determined in accordance with the Act, the
applicable rules and procedures for the arbitration of disputes of JAMS or any
successor thereof ("JAMS"), and the terms of this paragraph. In the event of any
inconsistency, the terms of this paragraph shall control.
(d) The arbitration shall be administered by JAMS and conducted, unless
otherwise required by law, in any U. S. state where real or tangible personal
property collateral for this credit is located or if there is no such
collateral, in the state specified in the governing law section of this
agreement. All Claims shall be determined by one arbitrator; however, if Claims
exceed $5,000,000, upon the request of any party, the Claims shall be decided by
three arbitrators. All arbitration hearings shall commence within 90 days of the
demand for arbitration and close within 90 days of commencement and the award of
the arbitrator(s) shall be issued within 30 days of the close of the hearing.
However, the arbitrator(s), upon a showing of good cause, may extend the
commencement of the hearing for up to an additional 60 days. The arbitrator(s)
shall provide a concise written statement of reasons for the award. The
arbitration award may be submitted to any court having jurisdiction to be
confirmed and enforced.
(e) The arbitrator(s) will have the authority to decide whether any Claim is
barred by the statute of limitations and, if so, to dismiss the arbitration on
that basis. For purposes of the application of the statute of limitations, the
service on JAMS under applicable JAMS rules of a notice of Claim is the
equivalent of the filing of a lawsuit. Any dispute concerning this arbitration
provision or whether a Claim is arbitratable shall be determined by the
arbitrator(s). The arbitrator(s) shall have the power to award legal fees
pursuant to the terms of this agreement.
(f) This paragraph does not limit the right of any party to: (i) exercise
self-help remedies, such as but not limited to, setoff; (ii) initiate judicial
or nonjudicial foreclosure against any real or personal property collateral;
(iii) exercise any judicial or power of sale rights, or (iv) act in a court of
law to obtain an interim remedy, such as but not limited to, injunctive relief,
writ of possession or appointment of a receiver, or additional or supplementary
remedies.
(g) The filing of a court action is not intended to constitute a waiver of the
right of any party, including the suing party, thereafter to require submittal
of the Claim to arbitration.
FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT:
(A) THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY
COMMITMENT LETTER, TERM SHEET OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS
RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM SHEET
OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO THE
CONTRARY, (C) THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS
DOCUMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
GOVERNING LAW. This Document will be governed by and interpreted in accordance
with federal law and the laws of the State of Florida.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and
upon Borrower's heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will
not affect the rest of the Note. Borrower does not agree or intend to pay, and
Lender does not agree or intend to contract for, charge, collect, take, reserve
or receive (collectively referred to herein as "charge or collect", any amount
in the nature of interest or in the nature of a fee for this loan, which would
in any way or event (including demand, prepayment, or acceleration) cause Lender
to charge or collect more for this loan than the maximum Lender would be
permitted to charge or collect by federal law or the law of the State of Florida
(as applicable). Any such excess interest or unauthorized fee shall, instead of
anything stated to the contrary, be applied first to reduce the principal
balance of this loan, and when the principal has been paid in full, be refunded
to Borrower. Lender may delay or forgo enforcing any of its rights or remedies
under this Note without losing them, Borrower and any other person who signs,
guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in the
terms of this Note, and unless otherwise expressly stated in writing, no party
who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan or release
any party or guarantor or collateral; or impair, fail to realize upon or perfect
Lender's security interest in the collateral; and take any other action deemed
necessary by Lender without the consent of or notice to anyone. All such
parties, also agree that Lender may modify this loan without the consent of or
notice to anyone other than the party with whom the modification Is made. The
obligations under this Note are joint and several.
PRIOR TO SIGNING THIS NOTE. BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE. INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE.
BORROWER:
INTEGRATED BIOPHARMA, INC.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇
E. ▇▇▇▇▇▇ ▇▇▇
Chairman of Integrated BioPharma, Inc.