NOTE
$5,000,000 Chicago, Illinois
February 25, 1998
FOR VALUE RECEIVED, the undersigned, Food For Health Co., Inc., an Arizona
corporation ("FFH"), promises to pay to the order of LASALLE NATIONAL BANK
(the "Bank"), at the main office of the Bank, the principal sum of Five
Million Dollars ($5,000,000) plus the aggregate unpaid principal amount of all
advances made by Bank to FFH pursuant to and in accordance with Paragraph 2 of
the Loan Agreement (as hereinafter defined) in excess of such amount, or, if
less, the aggregate unpaid principal amount of all advances made by Bank to
FFH pursuant to and in accordance with Paragraph 2 of the Loan Agreement. FFH
further promises to pay interest on the outstanding principal amount hereof on
the dates and at the rates provided in the Loan Agreement from the date hereof
until payment in full hereof.
This Note is referred to in and was delivered pursuant to that certain
Loan and Security Agreement, as it may be amended from time to time, together
with all exhibits thereto, dated as of February 25, 1998, by and between Bank
and FFH (the "Loan Agreement"). All terms which are capitalized and used
herein (which are not otherwise defined herein) shall have the meaning
ascribed to such terms in the Loan Agreement.
The outstanding principal balance of FFH's liabilities to the Bank under
this Note shall be payable pursuant to the terms of the Loan Agreement.
FFH hereby authorizes the Bank to charge any account of FFH for all sums
due hereunder. If payment hereunder becomes due and payable on a Saturday,
Sunday or legal holiday under the laws of the United States or the State of
Illinois, the due date thereof shall be extended to the next succeeding
business day, and interest shall be payable thereon at the rate specified
during such extension. Credit shall be given for payments made in the manner
and at the times provided in the Loan Agreement. It is the intent of the
parties that the rate of interest and other charges to FFH under this Note
shall be lawful; therefore, if for any reason the interest or other charges
payable hereunder are found by a court of competent jurisdiction, in a final
determination, to exceed the limit which Bank may lawfully charge FFH, then
the obligation to pay interest or other charges shall automatically be reduced
to such limit and, if any amount in excess of such limit shall have been paid,
then such amount shall be refunded to FFH.
The principal and all accrued interest hereunder may be prepaid by FFH, in
part or in full, at any time.
FFH waives the benefit of any law that would otherwise restrict or limit
Bank in the exercise of its right, which is hereby acknowledged, to set-off
against the Liabilities, without notice and at any time hereafter, any
indebtedness matured or unmatured owing from Bank to FFH. FFH waives every
defense, counterclaim or setoff which FFH may now have or hereafter may have
to any action by Bank in enforcing this Note and/or any of the other
Liabilities, or in enforcing Bank's rights in the Collateral and ratifies and
confirms whatever Bank may do pursuant to the terms hereof and of the Loan
Agreement and with respect to the Collateral and agrees that Bank shall not be
liable for any error in judgment or mistakes of fact or law.
This Note shall inure to the benefit of the Bank and its successors and
assigns and shall be binding upon FFH and its successors and permitted
assigns. As used herein, the term "Bank" shall mean and include the
successors and assigns of the identified payee and the holder or holders of
this Note from time to time.
FFH, any other party liable with respect to the Liabilities and any and
all endorsers and accommodation parties, waive any and all presentment,
demand, notice of dishonor, protest, and all other notices and demands in
connection with the enforcement of Bank's rights hereunder.
The loan evidenced hereby has been made at Chicago, Illinois. THIS NOTE
SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS
AS TO INTERPRETATION, ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT, AND IN ALL
OTHER RESPECTS, INCLUDING WITHOUT LIMITATION, THE LEGALITY OF THE INTEREST
RATE AND OTHER CHARGES, and shall be binding upon FFH and FFH's 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 this Note shall be prohibited by or be invalid under such law,
such provision shall be severable, and be ineffective to the extent of such
prohibition or invalidity, without invalidating the remaining provisions of
this Note.
The Bank shall not by any act of omission or commission be deemed to waive
any of its rights or remedies hereunder unless such waiver be in writing and
signed by the Bank, and then only to the extent specifically set forth herein.
A waiver of any one event shall not be construed as continuing or as a bar to
or waiver of such right or remedy on a subsequent event.
To induce the Bank to make the loan evidenced by this Note, FFH (i)
irrevocably agrees that, subject to Bank's sole and absolute election, all
actions arising directly or indirectly as a result or in consequence of this
Note or any other agreement with the Bank, or the Collateral, shall be
instituted and litigated only in courts having situs in the City of Chicago,
Illinois; (ii) hereby consents to the exclusive jurisdiction and venue of any
State or Federal Court located and having its situs in said city; and (iii)
waives any objection based on forum non-conveniens. IN ADDITION, BANK AND FFH
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING WHICH PERTAINS DIRECTLY
OR INDIRECTLY TO THIS NOTE, THE LIABILITIES, THE COLLATERAL, ANY ALLEGED
TORTUOUS CONDUCT BY FFH OR BANK OR WHICH IN ANY WAY, DIRECTLY OR INDIRECTLY,
ARISES OUT OF OR RELATES TO THE RELATIONSHIP BETWEEN FFH AND BANK. In
addition, FFH agrees that all service of process shall be made as provided in
the Loan Agreement.
IN WITNESS WHEREOF, FFH has executed this Note on the date above set
forth.
Food For Health Co., Inc.
By: Jerry Fleming
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Title: President