Attached files
| file | filename |
|---|---|
| 10-Q - AMERICAN HOME FOOD PRODUCTS 10-Q 8-31-2009 - Artisanal Brands, Inc. | form10q.htm |
| EX-32.1 - EXHIBIT 32.1 - Artisanal Brands, Inc. | ex32_1.htm |
| EX-31.2 - EXHIBIT 31.2 - Artisanal Brands, Inc. | ex31_2.htm |
| EX-32.2 - EXHIBIT 32.2 - Artisanal Brands, Inc. | ex32_2.htm |
| EX-31.1 - EXHIBIT 31.1 - Artisanal Brands, Inc. | ex31_1.htm |
| EX-10.21 - EXHIBIT 10.21 - Artisanal Brands, Inc. | ex10_21.htm |
| EX-10.22 - EXHIBIT 10.22 - Artisanal Brands, Inc. | ex10_22.htm |
| EX-10.19 - EXHIBIT 10.19 - Artisanal Brands, Inc. | ex10_19.htm |
| EX-10.20 - EXHIBIT 10.20 - Artisanal Brands, Inc. | ex10_20.htm |
| EX-10.24 - EXHIBIT 10.24 - Artisanal Brands, Inc. | ex10_24.htm |
Exhibit
10.23
PROMISSORY
NOTE
|
$850,000.00
|
July
10, 2009
|
Artisanal
Cheese, LLC,
a New
York limited liability company
500 West
37th Street
2nd
Floor
New York,
New York 10018
(Hereinafter
referred to as “Borrower”)
Whereas,
Borrower has been authorized by its board of directors to secure a term loan
from one or more lenders (each a “Lender” and collectively “Lenders”) in a
collective amount not to exceed Eight Hundred Fifty Thousand Dollars
($850,000.00).
Whereas,
this Promissory Note is made pursuant to such Term Loan Agreements executed by
each of the Lenders of even date herewith (the “Term Loan Agreements”), the
collective amount which is represented by this Promissory Note (the “Promissory
Note”).
Now,
wherefore, Borrower promises to pay to the order of Lenders, in lawful money of
the United States of America, at their respective addresses indicated in their
respective Term Loan Agreements or wherever else Lenders may specify, the sums
owed to each Lender under the respective Term Loan Agreements (including all
renewals, extensions or modifications thereof).
SECURITY. As
security for the payment of the monies owing under this Promissory Note and the
Term Loan Agreements, the Borrower has delivered or has caused to be delivered
to the Lenders a security agreement (“Security Agreement”) dated the date
hereof. Lenders shall have a security interest in all assets of the
Borrower pursuant to the Security Agreement.
INTEREST
AND FEE(S) COMPUTATION. (Actual/365). Interest on the
principle amount of this Promissory Note shall be at a rate of nine percent (9%)
per annum. Interest and fees, if any, shall be computed on the basis
of a 365-day year for the actual number of days in the applicable
period. Interest shall be paid to Lenders on a monthly
basis.
ISSUANCE
OF PREFERRED SHARES. For every Ten Thousand Dollars
($10,000.00) loaned by any Lender, that Lender shall receive One
Thousand (1,000) shares of American Home Food Products’ Series A Redeemable
Convertible Preferred Shares.
PREPAYMENT. The
Promissory Note may be prepaid, in whole or in part, at any time.
REPAYMENT
TERMS. This Promissory Note shall be due and payable in full on
September 11, 2010.
APPLICATION
OF PAYMENTS. If a Default occurs, monies may be applied to the
obligations in any manner or order deemed appropriate by Lenders. If
any payment received by Lenders under this Promissory Note is rescinded, avoided
or for any reason returned by Lenders because of any adverse claim or threatened
action, the returned payment shall remain payable as an obligation of all
persons liable under this Promissory Note as though such payment had not been
made.
ATTORNEYS’
FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Lenders’
reasonable expenses incurred to enforce or collect any of the obligations under
this Promissory Note, including, without limitation, reasonable court,
arbitration, paralegals', attorneys' fees and expenses, whether incurred without
the commencement of a suit, in any trial, arbitration, or administrative
proceeding, or in any appellate or bankruptcy proceeding.
USURY. Regardless
of any other provision of this Promissory Note, if for any reason the effective
interest should exceed the maximum lawful interest, the effective interest shall
be deemed reduced to, and shall be, such maximum lawful interest, and (i) the
amount which would be excessive interest shall be deemed applied to the
reduction of the principal balance of this Promissory Note and not to the
payment of interest, and (ii) if the loan evidenced by this Promissory Note has
been or is thereby paid in full, the excess shall be returned to the party
paying same, such application to the principal balance of this Promissory Note
or the refunding of excess to be a complete settlement and acquittance
thereof.
DEFAULT. If
any of the following occurs, a default (“Default”) under this Promissory Note
shall exist: Nonpayment. The failure of Borrower to pay
any of the obligations under this Promissory Note within ten (10) calendar days
of when due. Nonperformance. The failure of timely
performance of the obligations hereunder or under the Security Agreement, other
than payment obligations, and such default shall continue unremedied for a
period of fifteen (15) calendar days after Borrower shall receive notice of such
default. False Warranty. A warranty or representation made
or deemed made in this Promissory Note or the Security Agreement, or furnished
to Lenders in connection with the loan evidenced by this Promissory Note, proves
materially false, or if of a continuing nature, becomes materially
false. Cessation; Bankruptcy. The dissolution of,
termination of existence of, loss of good standing status by, appointment of a
receiver for, assignment for the benefit of creditors of, lender workout
proceedings, or commencement of any bankruptcy or insolvency proceeding by or
against the Borrower, or any of their subsidiaries or
affiliates. Material Capital Structure or Business
Alteration. Without the prior written consent of Lenders, which shall
not be unreasonably withheld (i) a material alteration in the kind or type of
Borrower's business or that of Borrower's subsidiaries or affiliates; (ii) the
sale of all or substantially all or a material portion of the business or assets
of Borrower, or any of Borrower's subsidiaries or affiliates if such a sale is
outside the ordinary course of business of Borrower; (iii) the acquisition of
substantially all of the business or assets or more than 50% of the outstanding
stock, membership interests, or voting power of any other entity; (iv) should
Borrower, or any of Borrower's subsidiaries, enter into any merger or
consolidation or similar transaction; or (v) any change in the members of the
Borrower resulting in a change of a majority or more of the membership interests
or equity interests of Borrower.
REMEDIES
UPON DEFAULT. If a Default occurs under this Promissory Note or the
Security Agreement, Lenders may at any time thereafter take the following
actions: Acceleration Upon Default. Accelerate the
maturity of this Promissory Note and all obligations hereunder, and all of the
obligations hereunder shall be immediately due and
payable. Cumulative. Exercise any rights and remedies as
provided under the Promissory Note or the Security Agreement, or as provided by
law or equity.
WAIVERS
AND AMENDMENTS. No waivers, amendments or modifications of this
Promissory Note shall be valid as against any Lender unless in writing and
signed by Lender. No waiver by any Lender of any Default shall
operate as a waiver of any other Default or the same Default on a future
occasion. Neither the failure nor any delay on the part of any Lender
in exercising any right, power, or remedy under this Promissory Note or the
Security Agreement shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
Borrower
and any person liable under this Promissory Note waives presentment, protest,
notice of dishonor, demand for payment, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of sale and all other
notices of any kind. Further, Borrower agrees that Lenders may
extend, modify or renew this Promissory Note or make a novation of the loan
evidenced by this Promissory Note for any period and grant any releases,
compromises or indulgences with respect to any collateral securing this
Promissory Note, all without notice to or consent of each Borrower or each
person who may be liable under this Promissory Note and without affecting the
liability of Borrower or any person who may be liable under this Promissory
Note.
NOTICE. All
notices, consents, waivers and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given when (a) delivered by
hand (with written confirmation of receipt), (b) sent by facsimile (with written
confirmation of receipt), provided that a copy is mailed by registered mail,
return receipt requested, or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in each
case to the appropriate addresses and facsimile numbers set forth below (or to
such other addresses and facsimile numbers as a party may designate by notice to
the other parties):
|
|
If
to Borrower, to:
|
Artisanal
Cheese, LLC
|
500 West
37th
Street
New York,
New York 10708
Attn:
Daniel W. Dowe, Esq.
Telephone
No.: (212)-871-3150
Email:
ddowe@artisanalcheese.com
MISCELLANEOUS
PROVISIONS. Assignment. This Promissory Note shall inure
to the benefit of and be binding upon the parties and their respective heirs,
legal representatives, successors and assigns. This Promissory Note
may be freely assigned or pledged by Lender. Borrower shall not
assign its rights and interest hereunder without the prior written consent of
Lender, and any attempt by Borrower to assign without Lender’s prior written
consent is null and void. Any assignment shall not release Borrower
from its obligations hereunder. Applicable Law; Conflict Between
Documents. This Promissory Note shall be governed by and construed
under the laws of the State of New York without regard to conflict of laws
principles. If the terms of this Promissory Note should conflict with
the terms of the Security Agreement, the terms of this Promissory Note shall
control. Jurisdiction and Venue. Borrower irrevocably
agrees that any suit regarding this Promissory Note shall be brought in the
state or federal courts located in New York, New York and Borrower submits to
such jurisdiction. Severability. If any provision of this
Promissory Note shall be prohibited or invalid under applicable law, such
provision shall be ineffective but only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Promissory Note or other such
document. Plural; Captions. All references in this
Promissory Note to Borrower, person, document or other nouns of reference mean
both the singular and plural form, as the case may be, and the term “person”
shall mean any individual, person or entity. The captions contained
in this Promissory Note are inserted for convenience only and shall not affect
the meaning or interpretation of the Promissory Note. Binding
Contract. Borrower by execution of and Lenders by acceptance of this
Promissory Note agree that each party is bound to all terms and provisions of
this Promissory Note. Fees and Taxes. Borrower shall
promptly pay all documentary, intangible recordation and/or similar taxes on
this transaction whether assessed at closing or arising from time to
time.
WAIVER OF
JURY TRIAL. BORROWER AND LENDERS ACKNOWLEDGE AND AGREE THAT (i) ANY
SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR INSTITUTED
BY LENDERS OR BORROWER OR ANY SUCCESSOR OR ASSIGN OF LENDERS OR BORROWER, ON OR
WITH RESPECT TO THIS PROMISSORY NOTE OR ANY OTHER DOCUMENT OR THE DEALINGS OF
THE PARTIES WITH RESPECT HERETO, OR THERETO, SHALL BE TRIED ONLY BY A COURT AND
NOT BY A JURY AND EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY; (ii) EACH WAIVES
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; AND (iii) THIS SECTION IS
A SPECIFIC AND MATERIAL ASPECT OF THIS PROMISSORY NOTE AND LENDER WOULD NOT
EXTEND CREDIT TO BORROWER IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A
PART OF THIS PROMISSORY NOTE.
IN
WITNESS WHEREOF, Borrower, on the day and year first above written, has caused
this Promissory Note to be executed.
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ARTISANAL
CHEESE, LLC
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By:
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Name: Daniel
W. Dowe
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Title:
President
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