1
EXHIBIT 10.1
SECOND AMENDMENT TO
LOAN AGREEMENT
BY AND BETWEEN
FITNESSAGE INCORPORATED
AND
NATURAL ALTERNATIVES INTERNATIONAL, INC.
2
SECOND AMENDMENT
TO
LOAN AGREEMENT
This Second Amendment to Loan Agreement ("Second Amendment") effective
this 10th day of November, 2000 amends that certain Loan Agreement dated
November 11, 1999 (the "Initial Loan Agreement"), by and between FitnessAge
Incorporated, a Nevada corporation ("Corporation") and Natural Alternatives
International, Inc. a Delaware corporation ("Lender") as amended by that certain
First Amendment to Loan Agreement and Security Agreement ("First Amendment")
between the Corporation and the Lender dated December 6, 1999 (the Initial Loan
Agreement as amended by the First Amendment and this Second Amendment is
hereinafter referred to as the "Loan Agreement"). Unless otherwise defined in
this Second Amendment, capitalized terms used herein shall have the meanings
given them in the Initial Loan Agreement or the First Amendment, as the case may
be.
SECTION 1. NEW NOTE
Section 1 of the Initial Loan Agreement is deleted in its entirety. The
parties hereto agree that the indebtedness due and owing by the Corporation to
Lender pursuant to the Loan Agreement as of the date hereof equals $855,778.40
(the "Consolidated Loan"). The Consolidated Loan shall be evidenced by the
Consolidated Convertible Secured Promissory Note dated as of November 10, 2000
from the Corporation to the Lender in the form of Exhibit "A" attached hereto
and incorporated herein by this reference (the "New Note"). The principal amount
of the New Note shall consist of the sum of (i) the Loan of $750,000 made by
Lender to the Corporation pursuant to the Initial Loan Agreement as amended by
the First Amendment; plus (ii) accrued and unpaid interest on the Notes as of
November 10, 2000 in the amount of $90,778.40; plus (iii) $15,000 in
reimbursement for certain legal fees of Lender pursuant to Section 5 of this
Second Amendment. Upon execution and delivery of the New Note, the Lender shall
cancel the Notes and deliver the cancelled Notes to the Corporation. From and
after the date hereof, each reference in Sections 4 through 13 of the Initial
Loan Agreement to the Loan shall be deemed a reference to the New Loan and each
reference in Sections 4 through 13 of the Initial Loan Agreement to the Note or
the Notes shall be deemed a reference to the New Note.
SECTION 2. ADDITIONAL SECURITY
In addition to the security interest granted pursuant to the Security
Agreement in the property therein defined, and as further security for the
performance and payment of all obligations and indebtedness of the Corporation
to the Lender now or hereafter existing, the parties shall execute and deliver
(i) the Software License Agreement hereto as Exhibit "B" and incorporated herein
by this reference (the "New License Agreement"); (ii) the Software Escrow
Agreement as defined in the New License Agreement; and (iii) the Security
Agreement attached hereto as Exhibit "C" and incorporated herein by this
reference (the "New Security Agreement") pursuant to which the Corporation shall
grant to Lender a security interest in and to the New License Agreement and the
Software Escrow Agreement. From and after the date hereof, each reference in
Sections 4 through 13 of the Initial Loan Agreement to the Security Agreement
shall be deemed to include a reference also to the New Security Agreement and
each reference in Sections 4 through 13 of the Initial Loan
1
3
Agreement to the Collateral shall be deemed to include a reference also to the
New License Agreement and the Software Escrow Agreement.
SECTION 3. THE BORROWING
Section 3 of the Initial Loan Agreement is deleted in its entirety.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation represents and warrants to the Lender as follows:
(a) Except as otherwise disclosed on Schedule 4(a) hereto, each
of the representations and warranties contained in Section 4 of the Initial Loan
Agreement is true and correct as of the date hereof.
(b) Except as otherwise disclosed on Schedule 4(b) hereto, as of
the date hereof there exists no Event of Default or condition which, with the
passage of time, will become an Event of Default.
SECTION 5. LEGAL FEES OF LENDER
The Corporation agrees to reimburse Lender in the amount of $15,000 for
fees and disbursements of legal counsel to Lender in connection with the
execution and delivery of this Second Amendment and the agreements contemplated
hereby.
All remaining terms of the Initial Loan Agreement and the First
Amendment remain in full force and effect.
Corporation: Lender:
FitnessAge Incorporated Natural Alternatives International, Inc.
a Nevada corporation a Delaware corporation
By: By:
---------------------------------- -----------------------------------------
Brian L. Harcourt Peter C. Wulff
Vice Chairman Chief Financial Officer and Treasurer
2
4
EXHIBIT "A"
NEITHER THIS PROMISSORY NOTE NOR THE COMMON SHARES INTO WHICH IT IS CONVERTIBLE
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAW. THE CORPORATION WILL NOT TRANSFER THIS PROMISSORY NOTE OR THE UNDERLYING
COMMON SHARES UNLESS: (i) THERE IS AN EFFECTIVE REGISTRATION COVERING SUCH
PROMISSORY NOTE OR SUCH COMMON SHARES, AS THE CASE MAY BE, UNDER THE SECURITIES
ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS, OR (ii) IT FIRST RECEIVES A
LETTER FROM AN ATTORNEY, ACCEPTABLE TO THE BOARD OF DIRECTORS OR ITS AGENTS,
STATING THAT IN THE OPINION OF THE ATTORNEY THE PROPOSED TRANSFER IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND UNDER ALL APPLICABLE STATE
SECURITIES LAWS.
FITNESSAGE INCORPORATED
CONSOLIDATED CONVERTIBLE SECURED PROMISSORY NOTE
NOVEMBER 10, 2000
FOR VALUE RECEIVED, FitnessAge Incorporated, a Nevada corporation
("Company"), promises to pay to the order of Natural Alternatives International,
Inc., a Delaware corporation, or any subsequent holder of this Consolidated
Convertible Secured Promissory Note (the "Note") (hereinafter collectively
referred to as the "Holder") payable at the Holder's offices at 1185 Linda Vista
Drive, San Marcos, California 92069, or such other place as may be designated in
writing by notice to the Company from the Holder, the sum of $855,778.40 ( the
"Principal") with interest thereon during the period that any portion of the
Principal remains unpaid and outstanding at the rate of Twelve Percent (12%) per
annum, compounded monthly. The Company and Holder agree and acknowledge that
this Note consolidates the indebtedness (principal and accrued interest) of the
Company to Holder owing and unpaid as of the date hereof and evidenced by (i)
that certain Convertible Secured Promissory Note dated November 11, 1999 from
the Company to Holder in the original principal amount of $400,000, and (ii)
that certain Convertible Secured Promissory Note dated December 6, 1999 from the
Company to Holder in the original principal amount of $350,000 (such two
promissory notes being hereafter to as the "Prior Notes). In addition to such
indebtedness evidenced by the Prior Notes, the Principal includes $15,000
otherwise owing by the Company to the Holder.
This Note is given pursuant to the Loan Agreement dated November 11,1999
between the Company and the Holder as amended by a First Amendment to Loan
Agreement and Security Agreement dated December 6, 1999 and a Second Amendment
to Loan Agreement dated November 10, 2000 (such loan agreement as so amended
being hereinafter referred to the "Loan Agreement").The terms of the Loan
Agreement are incorporated herein by this reference as if fully set forth
including, without limitation, the remedies available to Holder in the event of
any default in payment on this Note.
The Principal, together with all accrued and unpaid interest, shall be
paid as follows: (i) $150,000 payable on February 1, 2001; (ii) $150,000 payable
on March 30, 2001; (iii) $225,000 payable on June 30, 2001; and (iv) payment of
all remaining principal plus accrued and unpaid
3
5
interest on September 15, 2001. Payments made pursuant to this Note shall be
applied first to accrued interest and thereafter to principal.
1. WAIVER
The Company and any and each other person or entity liable for the
payment or collection of this Note expressly waives demand and presentment for
payment, notice of nonpayment, protest, notice of protest, notice of dishonor,
bringing of suit and diligence in taking any action to collect amounts called
for under this Note and in the handling of property at any time existing as
security in connection with this Note, and shall be directly and primarily
liable for the payment of all sums owing and to be owing on this Note,
regardless of and without any notice, diligence, act or omission as or with
respect to the collection of any amount called for under this Note or in
connection with any right, lien, interest or property at any and all times had
or existing as security for any amount called for under this Note.
2. COSTS OF COLLECTION
The Company agrees to pay all reasonable costs, including reasonable
attorneys' fees, incurred by the Holder in collecting or enforcing payment of
this Note in accordance with its terms.
3. NO SUBORDINATION
(a) This Note shall, to the extent and in the manner hereinafter set
forth be subject in all cases to the provisions of any subordination agreement
between the holder(s) of other indebtedness of the Company and the Holder, and
otherwise shall be of first priority and shall not at any time be subordinated
or subject in right of payment to the prior payment of any other indebtedness of
the Company, whether now existing or hereafter created.
(b) No payment on account of principal, premium, if any, or interest on
any other indebtedness of the Company shall be made if, at the time of such
payment or immediately after giving effect thereto: (i) there shall exist a
default in the payment of principal, premium, if any, or interest with respect
to this Note, or (ii) there shall have occurred an event of default with respect
to any other indebtedness, or in the instrument under which the same is
outstanding, permitting the holders thereof to accelerate the maturity of such
other indebtedness, and such event of default shall not have been cured or
waived or shall not have ceased to exist.
(c) Upon: (i) any acceleration of the principal amount due on this Note;
or (ii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal, premium, if any, and interest
due or to become due upon this Note shall first be paid in full, or payment
thereof provided for in money or money's worth, before any other creditor of the
Company shall be entitled to retain any assets so paid or distributed in respect
to such other debt (for principal, premium, if any, or interest); and upon any
such dissolution or winding up or liquidation or reorganization or any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the holder of any other indebtedness
would be entitled, except for these provisions, shall be paid by the Company or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
person making
4
6
such payment or distribution, or by such other creditor if received by it,
directly to the Holder(s) of this Note or their representatives, to the extent
necessary to pay this Note in full.
4. VOLUNTARY CONVERSION
(a) The Holder shall have the right, at the Holder's option exercisable
at any time to convert this Note into such number of fully paid and
nonassessable shares of Common Stock (subject to adjustment as set forth below)
as shall be obtained by dividing the principal amount outstanding hereunder,
plus any accrued but unpaid interest, by the Conversion Price (as hereinafter
defined). The Conversion Price shall be $0.75 per share.
(b) The Conversion Price shall be adjusted from time to time as follows:
(i) In case the Company shall hereafter (A) subdivide its
outstanding shares of Common Stock into a greater number of shares; (B)
combine its outstanding shares of Common Stock into a smaller number of
shares; or (C) issue by reclassification of its Common Stock any shares
of capital stock of the Company, the Conversion Price in effect
immediately prior to such action shall be adjusted so the Holder shall
be entitled to receive the number of shares of Common Stock or other
capital stock of the Company which it would have owned immediately
following such action had this Note been converted immediately prior
thereto. An adjustment made pursuant to this subsection (i) shall become
retroactively effective as of immediately after the record date in the
case of a dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision,
combination or reclassification. If, as a result of an adjustment made
pursuant to this subsection (i), the Holder shall become entitled to
receive shares of two or more classes or series of capital stock, the
Board of Directors of the Company, in good faith (whose determination
shall be conclusive and shall be described in a notice given to the
Holder) shall determine for accounting purposes the allocation of the
adjusted Conversion Price between or among shares of such classes of
capital stock or shares of Common Stock and other capital stock.
(ii) In case the Company shall hereafter issue options, rights
or warrants to holders of its outstanding shares of Common Stock
generally entitling them (for a period expiring within 45 days after the
record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the Conversion Price on the
record date mentioned below, the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of issuance of
such options, rights or warrants by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding on the date of
issuance of such options, rights or warrants plus the number of shares
which the aggregate offering price of the total number of shares of
Common Stock offered pursuant to such options, rights or warrants would
purchase at such current Conversion Price per share of Common Stock, and
of which the denominator shall be the number of shares of Common Stock
outstanding on the date of issuance of such options, rights or warrants,
plus the number of additional shares of Common Stock offered for
subscription or purchase pursuant to such options, rights or warrants.
Such adjustment shall become retroactively effective as of immediately
after the record date for the determination of stockholders entitled to
receive such options, rights or warrants.
5
7
(iii) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least
1% of such price; provided, however, that any adjustments which by
reason of this subsection (iii) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations shall be made to the nearest cent or to the nearest 1/100th
of a share, as the case may be.
(iv) In the event that at any time as a result of an adjustment
made pursuant to subsection (i) above, the Holder shall become entitled
to receive any shares of the Company other than shares of Common Stock,
thereafter the Conversion Price of such other shares so receivable upon
conversion of this Note shall be subject to readjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provision with respect to Common Stock contained in this Note.
(v) No adjustment in the Conversion Price need be made under
subsection (ii), if the Company issues or distributes to the Holder the
shares, rights, options, or warrants referred to in such subsection that
the Holder would have been entitled to receive had the Note been
converted prior to the happening of such event or the record date with
respect thereto.
(c) If at any time the Company shall be recapitalized by reclassifying
its outstanding Common Stock into shares with a par value, if the Company or a
successor corporation shall consolidate or merge with or convey all or
substantially all of its or of any successor corporation's property and assets
to any other corporation or corporations, or if the Company or a successor
corporation shall distribute Common Stock or other assets pursuant to, without
limitation, any spin-off, split-off or other distribution of assets, the Holder
shall thereafter have the right to receive upon the basis and on the terms and
conditions specified in this Note in lieu of the Common Stock theretofore
issuable upon the conversion of this Note, such shares, securities or assets as
may be issued or payable with respect to, or in exchange for, the number of
shares of Common Stock theretofore issuable upon the conversion of this Note had
such conversion taken place immediately prior to such recapitalization,
consolidation, merger, conveyance or distribution.
(d) If at any time the Company shall dissolve, liquidate or wind up its
affairs, the Holder may thereafter receive upon conversion hereof in lieu of
each share of Common Stock that it would have been entitled to receive the same
kind and amount of any securities or assets as may be issuable, distributable or
payable upon any such dissolution, liquidation or winding up with respect to
each share of Common Stock.
(e) In the event (i) the Company shall issue any shares of Common Stock,
options or rights to subscribe for shares of Common Stock, or any securities
convertible into or exchangeable for shares of Common Stock, (ii) the Company
shall take a record of the holders of its Common Stock for the purpose of
entitling them to receive a dividend payable otherwise than in cash or any other
distribution in respect to the Common Stock pursuant to, without limitation, any
spin-off, split-off or distribution of the Company's assets, or (iii) the
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to subscribe for or purchase any shares of any class or to
receive any other rights; or (iv) of any reclassification or other
reorganization or recapitalization of the shares which the Company is authorized
to issue,
6
8
consolidation or merger of the Company with or into another corporation, or
conveyance of all of substantially all of the assets of the Company; then, and
in such event, the Company shall send to the Holder, at least 30 days prior
thereto, a notice stating the date or expected date on which such event is to
take place. Such notice shall specify the date or expected date if any is to be
fixed, as of which holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reclassification, reorganization, consolidation or merger, as the case may
be.
(f) The Company will at all times reserve and keep available out of its
authorized shares, solely for issuance upon the conversion of this Note, such
number of shares of Common Stock as from time to time shall be issuable upon the
conversion of this Note.
(g) In order to exercise the conversion privilege, the Holder shall
deliver this Note to the Company accompanied by a written request for conversion
executed by the Holder. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the day on which such conversion
request and Note shall have been received by the Company, and at such time the
rights of the Holder to receive principal and interest shall cease, and the
Holder shall be treated for all purposes as the record holder of such Common
Stock at such time. As promptly as practicable after the receipt of such
conversion request and this Note, the Company shall cause to be issued and
delivered to the Holder a certificate or certificates for the number of shares
of Common Stock issuable upon conversion of this Note. Such certificate or
certificates shall bear such legends required, in the opinion of counsel for the
Company, under applicable securities law.
(h) It is specifically agreed that this Note may be converted in part
only by the Holder and upon such conversion in part, the Company will deliver to
the Holder another Note in this form for the proportionate part of this Note not
converted.
(i) No fractional shares of Common Stock will be issued in connection
with any conversion under this Note, but in lieu of such fractional shares, the
Company shall make a cash refund therefor equal in amount to the product of the
applicable fraction multiplied by the Conversion Price then in effect.
(j) The Holder and all holders of shares of Common Stock issued upon
conversion of this Note ("Conversion Shares") are entitled to certain rights to
registration of such Conversion Shares by the Company under an Investor Rights
Agreement. Reference is made to the Investor Rights Agreement for a more
complete statement of the registration rights of the Holder and the holders of
Conversion Shares. Copies of the Investor Rights Agreement are on file at the
office of the Company.
5. OPTIONAL PREPAYMENT
This Note is pre-payable at any time upon thirty (30) days written
notice, in whole or in part, by the Company without penalty provided, however,
that upon notice of prepayment by the Company, Natural Alternatives
International, Inc. or Holder shall have 30 days after the receipt of notice
herein, to exercise their conversion privileges as set forth herein, including
under the heading "Voluntary Conversion." Prepayments shall be applied first to
accrued but unpaid interest and then to principal.
7
9
6. AMENDMENT
This Note may not be amended in any respect except by a written
agreement executed by the person to be charged with the amendment.
7. SECURITY
This Note is secured by (i) all of the rights title and interest of the
Corporation in Custom Nutrition, LLC, a Delaware limited liability company,
including without limitation any interest of the Company as a Manager, Member or
creditor of Custom Nutrition, LLC and the Company's allocable share of all gross
revenue received by Custom Nutrition, LLC from Bally Total Fitness Holding
Corporation or its affiliates as set forth in the Loan Agreement between the
parties hereto, dated November 11, 1999, and shall include the proceeds,
products and accessories of any kind to any thereof, pursuant to and with the
priorities referenced in the Security Agreement executed by the Company as of
the November 11, 1999; and (ii) a Security Agreement dated as of November 10,
2000, granting to Holder a security interest in a license for the use of certain
intellectual property of the Company as more specifically described therein.
8. APPLICABLE LAW
This Note shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware. It is the intention of the Company and
Holder to conform strictly to the usury laws now in force in any the state whose
laws may apply to this transaction. Accordingly, notwithstanding anything to the
contrary in this Note or in any instrument securing the same, it is agreed that
if a court of competent jurisdiction applies the laws of any state other than
Delaware in construing this Note or the enforcement thereof, then in that event
the aggregate of all charges that constitute interest under the laws of that
state that are contracted for, chargeable or receivable under this Note or any
other such instrument shall under no circumstances exceed the maximum amount of
interest permitted by laws of that state, and any excess, whether occasioned by
acceleration of maturity of this Note or otherwise, shall be deemed a mistake in
calculation and canceled automatically and, if theretofore paid, shall be either
refunded to the Company or credited on the principal amount of this Note, at the
election of the Holder.
DATED: November 10, 2000 FitnessAge Incorporated,
a Nevada corporation
By:
---------------------------------
Brian L. Harcourt, Vice Chairman
8
10
EXHIBIT "B"
NEW LICENSE AGREEMENT
9
11
EXHIBIT "C"
NEW SECURITY AGREEMENT
10