Attached files
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| EX-10.1 - AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT, DATED NOVEMBER 3, 2017 - Life On Earth, Inc. | ex10-1.htm |
| 8-K - CURRENT REPORT - Life On Earth, Inc. | hisp8k.htm |
Exhibit 10.2
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES
LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR UNLESS THE COMPANY SHALL HAVE RECEIVED AN
OPINION OF COUNSEL THAT THE REGISTRATION OF SUCH SECURITIES UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED.
Secured Promissory Note
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U.S. $175,000
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Issuance Date: November 3, 2017
Maturity Date: May 3, 2019
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FOR VALUE RECEIVED, HISPANICA
INTERNATIONAL DELIGHTS OF AMERICA, INC., a Delaware corporation
(the “Company”), hereby promises to pay
to the order of Shircoo, Inc., a California corporation, or any
permitted holder of this Secured Promissory Note (the
“Payee”), at
the principal office of the Payee set forth herein, or at such
other place as the Payee may designate in writing to the Company,
theprincipal sum of One Hundred Seventy-Five Thousand Dollars
($175,000), with interest onthe unpaid principal balance hereof at
a rate equal to seven percent (7%) per annum commencing on the date
hereof, in such coin or currency of the United States of America as
at thetime shall be legal tender forthe payment of public and
private debts and in immediately available funds, as provided in
this Senior Promissory Note (this “Note”). This Note is issued
pursuant to the terms of the Note Purchase Agreement, by and
between the Company and Payee, dated as of the date hereof
(“Purchase
Agreement”).
1.
Principal and Interest
Payments.
(a) The Company shall
repay in cash the entire principal balance then outstanding under
this Note together with all accrued but unpaid interest thereon on
March 21, 2018 (the “Maturity Date”).
(b) Interest on the
outstanding principal balance of this Note shall accrue at a rate
of seven percent (7%) per annum commencing on the “Issuance
Date” of this Note (as indicated above), which interest shall
be computed on the basis of the actual number of days elapsed and a
year of three hundred and sixty-five (365) days. All accrued and
unpaid interest dueunder this Note shall be payable monthly
beginning thirty (30) days from the Issuance Date in cash.
Furthermore, upon the occurrence of an Event of Default (as defined
below), or following the Maturity Date the Company will pay
interest to the Payee on the then outstanding principal balance of
the Note from such date until this Note is paid in full at therate
of seven percent (7%) perannum, with interest payable
monthly.
(c) At the
Company’s sole option, the Company may prepay all or a
portion of the outstanding principal amount of this Note and/or all
or a portion of the accrued and unpaid interest hereon in cash at
any time prior to the Maturity Date, in the case of the outstanding
principal amount, or prior to the date due, in the case of accrued
but unpaid interest, without penalty or premium. Any payments made
under this Note shall be applied first to the accrued and unpaid
interest, if any, and theremainder to the unpaid principal
amount.
2. Non-Business Days. Whenever any
payment to be made shall be due on a Saturday, Sunday or a public
holiday under thelaws of the State of NewYork, such payment may be
due on the next succeeding business day and such next succeeding
day shall be included in the calculation of theamount of accrued
interest payable on such date.
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3. Representations and Warranties of the
Company. The Company represents and warrants to the Payee as
follows:
(a) The Company has
been dulyincorporated and validly exists and is in good standing
under the laws of the State of Delaware, with full corporate power
and authority to own, lease and operate its properties and to
conduct its business as currently conducted.
(b) This Note has been
duly authorized, validly executed and delivered on behalf of the
Company and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
subject to limitations on enforcement by general principles of
equity and by bankruptcy or other laws affecting the enforcement of
creditors’ rights generally.
(c) The execution,
delivery and performance of this Note will not: (i) conflict with
or result in a material breach of or a default under any of the
terms or provisions of, (A) the Company’s Certificate of
Incorporation or by-laws, or (B) any material provision of any
indenture, mortgage, deed of trust or other material agreement
orinstrument to which the Company is a party or by which it or any
of its material properties or assets is bound; (ii) result in a
violation of any material provision of any law, statute, rule,
regulation, or any existing applicable decree, judgment or order by
any court, Federal or state regulatory body, administrative agency,
or other governmental body having jurisdiction over the Company, or
any of its material properties or assets; or
(iii)
result in the creation or imposition of anymaterial lien or
encumbrance upon any material property or assets of the Company
pursuant to the terms of any agreement or instrument to which the
Company is a party or may be bound or to which the Company or any
of its property is subject.
(d) No consent,
approval or authorization of or designation, declaration or filing
with anygovernmental authority on the part of the Company is
required in connection with the valid execution and delivery of
this Note.
4. Events of Default. The
occurrence of any of the following events shallbe an
“Event of
Default” under this Note:
(a) the Company shall
fail to make the payment of any principal amount outstanding for a
period of five (5) business days after thedate such payment shall
become due and payable hereunder; or
(b) the Company shall
fail to make thepayment of any accrued and unpaid interest fora
period of five (5)business days after the date such interest shall
become due and payable hereunder; or
(c)
any material breach by the Company of any representations or
warranties made by theCompany herein or any covenant or agreement
of the Company contained herein; or
(d) the holder of any
indebtedness of the Company shall accelerate any payment of any
amount or amounts of principal or interest on any such indebtedness
(the “Indebtedness”) (other than with
respect to this Note and notes of like tenor) prior to its stated
maturity or payment date, the aggregate principal amount of which
Indebtedness is in excess of $500,000, whether such Indebtedness
now exists orshall hereinafter be created, and such accelerated
payment entitles theholder thereof to immediate payment of such
Indebtedness which is due and owingand such indebtedness has not
been discharged in full or such acceleration hasnot been stayed,
rescinded or annulled within fifteen (15) business days of such
acceleration; or
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(e) A judgment or
judgments for the payment of money shall be rendered against the
Company for an amount in excess of $500,000 in the aggregate (net
of any applicable insurance coverage) for all such judgments that
shall remain unpaid for a period of sixty (60) consecutive days or
more after its entry or issueor that shall not be discharged,
released, dismissed, stayed or bonded (due to an appeal or
otherwise) within the sixty (60) consecutive day period after its
entry or issue; or
(f) the Company shall
(i)apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its property or assets,
(ii) make a general assignment forthe benefit of its creditors,
(iii) commence a voluntary case under the Federal Bankruptcy Code,
as amended (the “Bankruptcy
Code”) or under the comparable laws of any
jurisdiction (foreign or domestic), (iv) file a petition seeking to
take advantage of any bankruptcy, insolvency, moratorium,
reorganization or other similar law affecting the enforcement of
creditors’ rights generally, or (v) acquiesce in writing to
any petition filed against it in an involuntary case under
theBankruptcy Code or under thecomparable laws of any jurisdiction
(foreign or domestic); or
(g) a proceeding or
case shall be commenced in respect of the Company without its
application or consent, in any court of competent jurisdiction,
seeking (i) the liquidation, reorganization, moratorium,
dissolution, winding up,or composition or readjustment of its
debts, (ii) the appointment of atrustee, receiver, custodian,
liquidator or the like of it or of all or any substantial part of
its assets or (iii) similar relief in respect of it under any law
providing forthe relief of debtors, and such proceeding or case
described in clause (i), (ii) or (iii) shall continue undismissed,
or unstayed and in effect, fora period of forty-five (45)
consecutive days or any order for relief shall be entered in an
involuntary case under theBankruptcy Code or under thecomparable
laws of any jurisdiction (foreign or domestic) against the Company
or any of its subsidiaries and shall continue undismissed, or
unstayed and in effect for a period of forty-five (45) consecutive
days.
5. Remedies Upon an Event of
Default. If an Event of Default shall have occurred and
shall be continuing, the Payee of this Note may at any time at its
option, (a)declare, by providing the Company with notless than five
(5) days prior written notice, theentire unpaid principal balance
of this Note together with all interest accrued and unpaid hereon,
due and payable, and upon the Company’s receipt of such
notice, the same shall be accelerated and so due and payable;
provided, however, that
upon the occurrence of an Event of Default described in (i)
Sections 4(f) and (g), without presentment, demand, protest, or
notice, all of which are hereby expressly unconditionally and
irrevocably waived by the Company, the outstanding principal
balance and accrued and unpaid interest hereunder shallbe
immediately due and payable, and (ii) Sections 4(a) through (e),
the Payee may exercise or otherwise enforce any one or more of the
Payee’s rights, powers, privileges, remedies and interests
under this Note or applicable law. No course of delay on the part
of the Payee shall operate as a waiver thereof or otherwise
prejudice theright of the Payee. No remedy conferred hereby shall
be exclusive of any other remedy referred to herein or now or
hereafter available at law, in equity, by statute or otherwise.
Notwithstanding anything to the contrary contained in this Note,
Payee agrees that itsrights and remedies hereunder are limited to
receipt ofcash in the amounts described herein.
6. Replacement. Upon receipt of a
duly executed and notarized written statement from the Payee with
respect to the loss, theft or destruction of this Note (or any
replacement hereof), and without requiring an indemnity bondor
other security, or, in the case of a mutilation of this Note, upon
surrender and cancellation of such Note, the Company shall issue a
new Note, of like tenor andamount, in lieu of such lost, stolen,
destroyed or mutilated Note.
7. Parties in Interest;
Transferability. This Note shall be binding upon the Company
and its successors and assigns and the terms hereof shallinure to
the benefit of the Payee and its successors and permitted assigns.
This Note may notbe transferred or sold, pledged, hypothecated or
otherwise granted as security by the Payee without theprior written
consent of the Company, which consent will not be unreasonably
withheld.
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8. Amendments. ThisNote may not be
modified or amended in any manner except in writing executed by the
Company and the Payee.
9. Notices. Any notice, demand,
request, waiver or other communication required or permitted to be
given hereunder shall be in writing and shall be effective (a)upon
hand delivery by telecopy or facsimile at theaddress or number
designated in the Purchase Agreement.
10.
Governing Law. This Note shall
be governed by and construed in accordance with theinternal laws of
the State of New York, without giving effect to the choice of law
provisions. This Note shall not be interpreted or construed with
any presumption against the party causing this Note to be
drafted.
11. Headings. Article and section
headings in this Note are included herein for purposes of
convenience of reference only and shall not constitute a part of
thisNote for any other purpose.
12. Remedies, Characterizations, Other
Obligations, Breaches and Injunctive Relief. The remedies provided
in this Note shall be cumulative and in addition to all other
remedies available under this Note, at lawor in equity (including,
without limitation, a decree of specific performance and/or other
injunctive relief), no remedy contained herein shall be deemed a
waiver of compliance with the provisions giving rise to such remedy
and nothing herein shall limit a Payee’s right to pursue
actual damages for any failure by theCompany to comply with
theterms of this Note. The Company acknowledges that a breach by it
of itsobligations hereunder will cause irreparable and material
harm to the Payee and that theremedy at law for any such breach may
be inadequate. Therefore, theCompany agrees that, in the event of
any such breach or threatened breach, the Payee shall be entitled,
in addition to all other available rights and remedies, at lawor in
equity, to seek and obtain such equitable relief, including butnot
limited to an injunction restraining any such breach or threatened
breach, without the necessity of showing economic lossand without
any bond or other security being required.
13. Failure or Delay Not Waiver. No
failure or delay on the part of the Payee in the exercise of any
power, right or privilege hereunder shall operate as awaiver
thereof, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege.
14. Enforcement Expenses. The
Company agrees to pay all reasonable costs and expenses of
enforcement of this Note, including, without limitation, reasonable
attorneys’ fees and expenses.
15. Binding Effect. Theobligations
of the Company and thePayee set forth herein shall be binding upon
the successors and permitted assigns of each such
party.
16. Compliance with Securities
Laws. The Payee acknowledges and agrees that this Note is
being, and will be, acquired solely for the Payee’s own
account and not as a nominee for any other party, and for
investment purposes only and notwith a view to theresale or
distribution of any part thereof, and that thePayee shall not
offer, sell or otherwise dispose of this Noteother than in
compliance with applicable federal and state laws. ThePayee
understands that this Note is a “restricted security”
under applicable federal and state securities laws and that such
security has notbeen, and will not be, registered under the
Securities Act of 1933, as amended (the “Securities Act”). The Payee
represents and warrants to the Company that the Payee is an
“accredited investor” as such term is defined in Rule
501 of Regulation D promulgated under the Securities Act. This Note
and any Note issued in substitution or replacement therefore shall
be stamped or imprinted with a legend in substantially the
following form:
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“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THESECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY SHALL HAVE
RECEIVED AN OPINION OF COUNSEL THAT THE REGISTRATION OF SUCH
SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF
APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.”
17. Severability. Theprovisions of
this Note are severable, and if any provision shall be held invalid
or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall notin any manner affect such
provision in any other jurisdiction or any other provision of this
Note in any jurisdiction.
18. Consent to Jurisdiction. Each
of theCompany and the Payee (i)hereby irrevocably submits to
thejurisdiction of the United States District Court sitting in the
Southern District of New York and thecourts of the State of New
York located in New York county for the purposes of any suit,
action or proceeding arising out of or relating to this Note and
(ii) hereby waives, and agrees notto assert in any such suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction of such court, that thesuit, action or
proceeding is brought in an inconvenient forum or that the venue
ofthe suit, action or proceeding isimproper. Each of the Company
and the Payee consents to process being served in any such
suit,action or proceeding by mailing a copy thereof to such party
at theaddress set forth in the Purchase Agreement and agrees that
such service shall constitute good and sufficient service of
process and notice thereof. Nothing inthis Section 18 shall affect
or limit any right to serve process in any other manner permitted
by applicable law.
19. Waivers. Except as otherwise
specifically provided herein, theCompany hereby waives presentment,
demand, notice of nonpayment, protest and all other demands and
notices in connection with the delivery, acceptance, performance
and enforcement of this Note, and does hereby consent to any number
of renewals or extensions of thetime for payment hereof and agrees
that any such renewals or extensions may be made without notice and
without affecting itsliability herein, AND DOES HEREBY WAIVE TRIAL
BY JURY. No delay or omission on the part of the Payee in
exercising its rights under this Note, or course of conduct
relating hereto, shall operate as a waiver of such rights or any
other right of the Payee, nor shall any waiver by the Payee of any
such right or rights on any one occasion be deemed a waiver of the
same right or rights on any future occasion.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company has
executed and delivered this Note as of the date first written
above.
Hispanica
International Delights of America, Inc.
By:
/s/
Fernando Oswaldo Leonzo
Name: Fernando Oswaldo Leonzo
Title: Chief
Executive Officer