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-10.23 - EXHIBIT 10.23 - Artisanal Brands, Inc. | ex10_23.htm |
| EX-10.20 - EXHIBIT 10.20 - Artisanal Brands, Inc. | ex10_20.htm |
Exhibit
10.24
TERM
LOAN
SECURITY
AGREEMENT
THIS
SECURITY AGREEMENT (“Agreement”) is made as of the 10th day of July 2009 by
ARTISANAL CHEESE, LLC, a New York limited liability company with an address at
500 West 37th Street, 2nd Floor, New York, New York 10018
(“Borrower”), in favor of each of several Lenders signatory hereto (each such
Lender, a “Lender” and, collectively, the “Lenders”).
W I T N E
S S E T H :
This
Agreement is made pursuant to the Promissory Note of even date herewith executed
by the Company in favor of the Lenders (the “Promissory Note”) pursuant to which
the Company agrees to repay the Lenders that amount which each Lender has loaned
respectively to the Company thereunder including all principle and interest owed
by the Company through the date of the repayment thereof.
The
Company and each Lender hereby agrees as follows:
WHEREAS,
Borrower is indebted to the Lenders for certain payments under the Promissory
Note; and
WHEREAS,
it is a condition of the Promissory Note that Borrower execute and deliver this
Agreement to the Lenders to secure Borrower’s obligations
thereunder.
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1.
As used in this Agreement, the term “Collateral” means
all assets, accounts, goods, general intangibles, inventory, furniture,
fixtures, tools, equipment, materials, supplies, instruments, securities,
chattel paper, contract rights, general intangibles, credits, claims and other
property, rights and interests owned by Borrower, together with all additions
and accession thereto, all substitutions and replacements therefore, and all
proceeds and products thereof, whether now or hereafter existing or now owned or
hereafter acquired, wherever located, of every kind and
description.
2.
As used in this Agreement, the term “Liability” or
“Liabilities” means all present and future obligations of Borrower to the
Lenders, whether direct or indirect, joint or several, otherwise secured or
unsecured, primary or secondary, absolute or contingent, which are due or that
may become due under the Note.
3.
To secure the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of the
Liabilities, the Borrower hereby assigns, conveys, mortgages, pledges, transfers
and grants to the Lenders a security interest in and to all of the Collateral
subject to any prior properly perfected security interest.
4.
The Borrower represents that the Collateral and its books and records relating
to the Collateral are located at the address of Borrower set forth
above. The Borrower covenants and agrees that it will promptly notify
the Lenders in writing of any change of such location.
5.
Except for those properly perfected security interests previously disclosed to
Lenders, the Borrower represents, warrants and covenants that: (a) it
is the sole owner of the Collateral, free and clear of any liens, security
interests, charges or encumbrances; (b) it has the right to grant the security
interest created by this Agreement; (c) no financing statements, or other
instruments of similar effect, covering all or any part of the Collateral are on
file in any recording office; (d) it is a limited liability company, duly
organized, validly existing and in good standing in the place of its
organization, and the execution and delivery of this Agreement and the
Promissory Note have been duly authorized by all necessary corporate action; (e)
it is and will continue to be eligible to do business and is otherwise in good
standing in all jurisdictions where it owns property or transacts business,
except to the extent that the failure to be eligible or in good standing could
not, in the aggregate, reasonably be expected to have a material adverse effect;
(f) it is and will continue to be in compliance with all applicable laws,
statutes, rules and regulations, including without limitation, those concerning
the environment, employee pension and benefit plans and the payment of taxes,
assessments and other governmental charges, except to the extent that the
failure to comply could not, in the aggregate, reasonably be expected to have a
material adverse effect; and (g) neither this Agreement nor any other document
delivered by the Borrower to the Lenders contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements contained herein or therein not misleading in light of the
circumstances under which they were made as of the date made or deemed
made.
6.
The Borrower covenants and agrees that, until its
obligations under the Promissory Note have been paid or fulfilled in full: (a)
it will defend the Collateral against the claims and demands of all persons; (b)
it will not sell, lease, encumber, remove, conceal, grant or permit any security
interest in the Collateral, nor part with possession of any thereof, nor permit
the same to be used in violation of any law or ordinance; (c) it will maintain
the Collateral in good condition and repair at its sole expense; (d) it will pay
all taxes levied on the Collateral, and will make due and timely payment or
deposit of all federal, state and local taxes, assessments or contributions
required by law and will execute and deliver to the Lenders, on reasonable
demand, appropriate certificates attesting to such payment or deposit; (e) the
Collateral shall not become subject to any purchase money or superior lien or
security interest, except in favor of the Lenders or as otherwise provided in
Section 10 hereof; (f) it shall procure and maintain adequate insurance on the
tangible Collateral against the risks of fire, theft and such other risks; (g)
it will permit the Lenders, with or without notice, to inspect the Collateral
and to make extracts from the books and records of Borrower; (h) it will join
with the Lenders in doing whatever may be necessary under applicable law to
perfect the Lenders’ security interest; and (i) the Lenders may at any time and
from time to time to file in any Uniform Commercial Code jurisdiction any
initial financing statements, continuations and amendments thereto with respect
to the Collateral and the Liabilities.
7.
Each Lender agrees that any security interests in the
Collateral granted pursuant to this Agreement in favor of such other Lenders
shall have equal priority as those granted in favor of the other
Lenders. Accordingly, Lenders agrees to cooperate in good faith with
the other Lenders to jointly file any Uniform Commercial Code initial financing
statements, continuations and amendments with respect to the Collateral and the
Liabilities.
8.
The following shall be an Event of Default under this Agreement: (a) a breach by
Borrower of any term, covenant, obligation or warranty arising under this
Agreement; (b) any statement made in or pursuant to this Agreement or the
Promissory Note shall prove to be untrue in any material respect, and such
untruth is not attributable to the Lenders; or (c) any default shall occur under
the Promissory Note.
9.
Upon the occurrence of any Event of Default, all Liabilities of the
Borrower shall immediately be due and payable and the Lenders may: (a) proceed,
with or without judicial process, to take possession of all or any part of the
Collateral; (b) assign, transfer and deliver at any time any portion of the
Collateral; (c) upon proper notice, elect to retain the Collateral in partial
satisfaction of Liabilities; (d) set off against any money due from the
respective Lenders, if any; and (e) pursue any remedy available to it by law or
equity, including without limitation, all rights and remedies granted to a
secured party under the Uniform Commercial Code in effect in the State of New
York and/or under any other agreement between the Borrower and the Lenders
unless otherwise stated therein. The Borrower agrees that upon
receipt of notice from the Lenders demanding possession of the Collateral, the
Borrower will do everything necessary to assemble the Collateral and make it
available to the Lenders at a location designated by the Lenders within five (5)
days of the date of the Lenders’ request. Any sale of the Collateral
may be public or private. Any sale or other disposition of the
Collateral may, at the option of the Lenders, be for cash, for credit, for
future delivery, in bulk or in parcels and with or without having the Collateral
present at the sale or disposition. The Lenders may be the purchaser
at any public sale. In the event of a sale or other disposition of
the Collateral, the Lenders shall apply all proceeds first to all costs and
expenses of disposition, including attorneys' fees, and then to the
Liabilities. Any required notification of a sale or other disposition
of the Collateral or of any action by the Lenders will be sufficient and
reasonable if given personally or received from overnight courier service not
less than seven (7) days prior to the day on which the action is to be
taken.
If the
Collateral is or includes equipment or inventory the Borrower shall (a) keep
accurate books and records with respect to the Collateral, including without
limitation, maintenance records and current stock, cost and sales records
accurately itemizing the types and quantities, and (b) upon request, deliver to
the Lenders all evidence of ownership including certificates of title with the
Lenders' interest appropriately noted on the certificate.
10. The
Lenders shall not be deemed to waive, by any act, delay, omission or otherwise,
any of their rights or remedies hereunder unless such waiver is in writing and
signed by the Lenders and then only to the extent specifically set forth
therein. A waiver in one event shall not be continuing or a bar to or
waiver of such right or remedy on a subsequent event. Any rights and
remedies provided for in this Agreement may be exercised singly or
concurrently.
11. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and assigns.
12. The
Borrower waives presentment for payment, demand, notice of nonpayment, notice of
protest, and protest of all commercial paper at any time held by the Lenders on
which the Borrower is in any way liable. The Borrower consents to any
and all extensions of time, renewals, waivers, or modifications that may be
granted by the Lenders with respect to the payment or other provisions of any
such commercial paper, and to the release of any Collateral, with or without
substitution, and to the release of any party against which the Borrower has a
right of recourse. The liability of the Borrower shall not be
affected by the loss, theft, damage, destruction or seizure of the
Collateral.
13. This
Agreement shall be governed by and construed under the laws of the State of New
York without regard to conflict of laws principles. Borrower
irrevocably agrees that any suit regarding this Note shall be brought in the
state or federal courts located in New York, New York and Borrower submits to
such jurisdiction.
14. BORROWER
AND THE LENDERS ACKNOWLEDGE AND AGREE THAT (i) ANY SUIT, ACTION OR PROCEEDING,
WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR INSTITUTED BY THE LENDERS OR BORROWER
OR ANY SUCCESSOR OR ASSIGN OF THE LENDERS OR BORROWER, ON OR WITH RESPECT TO
THIS AGREEMENT 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 AGREEMENT AND THE LENDERS WOULD NOT EXTEND CREDIT TO BORROWER IF
THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS
AGREEMENT.
15. This
Agreement may be executed in two or more counterparts, each of which taken
together shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
[Intentionally
blank, signature page follows]
IN
WITNESS WHEREOF, this Agreement has been executed and delivered by the
undersigned as of the date and year first above written.
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BORROWER:
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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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LENDER:
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By:
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Name:
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