PROMISORRY NOTE
$40,000.00 Philadelphia, Pennsylvania
October 1, 1999
FOR VALUE RECEIVED, Xxxxxx's Microbatch Ice Creams, L.L.C., a Delaware
limited liability Company (the "Maker"), with an address at 0000 Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxxxx, XX 00000, hereby promises to pay to Xxxxxx Xxxxx, with
an address at _______________ ____________________________ (or such other
address as the Holder hereunder may provide by notice to Maker from time to
time) or any other lawful holder of this Note (Xxxxxxx Xxxxx or any other such
holder hereafter referred to as the "Holder"), the principal sum of Forty
Thousand Dollars ($40,000.00), together with interest on the principal amount
outstanding from the date hereof until payment in full.
The principal amount of this Note together with all interest then accrued
but unpaid shall be due and payable on the Due Date, as defined in the next
sentence. The Due Date shall be October 1, 1999.
Interest on the outstanding principal balance hereof shall accrue at a rate
equal to TEN PERCENT (10%) per annum, simple interest, until all principal and
other amounts due hereunder have been paid in full.
Interest shall be payable in monthly installments in arrears on the FIRST
(1st) day of every month beginning November 1, 1999, until the principal amount
hereof has been paid in full. All accrued and unpaid interest hereunder shall be
due and payable in full on the Due Date. If any installment of interest is not
paid by the end of the fifth calendar day after the date when due in accordance
with this paragraph, a late charge equal to five percent (5%) of the delinquent
payment shall be added to principal and shall be payable together with the
delinquent installment.
All interest shall be calculated on the basis of a 360-day year, and 30-day
months, counting the actual number of days elapsed from the beginning of the
period.
The principal of this Note may be prepaid in whole at any time without
premium or penalty.
All principal and interest payments hereunder are payable in lawful money
of the United States of America to the Holder at the address first shown above,
or at such other address as may be directed by Xxxxxx, in immediately available
funds.
The Maker hereby waives presentment, demand, dishonor, protest, notice of
protest, diligence and any other notice or action otherwise required to be given
or taken under the
law in connection with the delivery, acceptance, performance, default,
enforcement or collection of this Note, and expressly agrees that this Note, or
any payment hereunder, may be extended, modified or subordinated (by forbearance
or otherwise) from time to time, without in any way affecting the liability of
the Maker.
In the event that (a) the Maker shall fail to pay, within five (5) calendar
days after the date when due, any payment of principal or interest due
hereunder, or (b) if the Maker shall (i) make a general assignment for the
benefit of creditors; (ii) be adjudicated a bankrupt or insolvent; (iii) file a
voluntary petition in bankruptcy; (iv) take advantage of any bankruptcy or
insolvency law or statute of the United States of America or any state or
jurisdiction thereof now or hereafter in effect; (v) have a petition or
proceeding filed against the Maker under any bankruptcy or insolvency law or
statute of the United States of America or any state or jurisdiction thereof,
which petition or proceeding is not dismissed within ninety (90) days from the
date of commencement thereof; or (vi) have a receiver, trustee, custodian,
conservator or other person appointed by any court to take charge of the Maker's
affairs, assets or business and such appointment is not vacated or discharged
within ninety (90) days thereafter; then, and upon the happening of any such
event, the Holder, at Holder's option, by written notice to the Maker, may
declare the entire indebtedness evidenced by this Note immediately due and
payable, whereupon the same shall forthwith mature and become immediately due
and payable without presentment, demand, protest or further notice.
In the event that Maker shall fail to pay when due any principal or
interest payment, and the Holder shall exercise or endeavor to exercise any of
its remedies hereunder, the Maker shall pay all reasonable costs and expenses
incurred in connection therewith, including, without limitation, reasonable
attorneys' fees, and the Holder may take judgment for all such amounts in
addition to all other sums due hereunder.
No consent or waiver by the Holder with respect to any action or failure to
act by Maker which, without such consent or waiver, would constitute a breach of
any provision of this Note shall be valid and binding unless in writing and
signed by the Holder. No such consent or waiver given by Holder on any one
occasion shall be construed to constitute a consent or waiver by Holder on any
subsequent occasion. No forbearance in the exercise of any right or remedy of
Holder shall be construed as a waiver of such right or remedy.
All agreements between the Maker and the Holder are expressly limited to
provide that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to the Holder for the use,
forbearance or detention of the indebtedness evidenced hereby exceed the maximum
amount which the Holder is permitted to receive under applicable law. If, from
any circumstances whatsoever, fulfillment of any provision hereof, at the time
performance of such provision shall be due, shall involve transcending the limit
of validity prescribed by law, then, without the necessity of any action by
Holder or Maker, the obligation to be fulfilled shall automatically be reduced
to the limit of such validity, and if from any circumstance the Holder should
ever receive as interest an amount which would exceed the highest lawful rate,
such amount which would be excessive interest shall be applied to the reduction
of the principal balance hereof, and not to the payment of interest. As used
herein, the term "applicable law"
2
shall mean the law in effect as of the date hereof, provided, however, that
in the event there is a change in the law which results in a higher permissible
rate of interest, then this Note shall be governed by such new law as of its
effective date. This provision shall control every other provision of all
agreements between the Maker and the Holder.
This Note shall be governed by and construed in accordance with the laws of
the Commonwealth of Pennsylvania, except to the extent that such laws are
superseded by Federal enactments.
If any covenant or other provision of the Note is invalid, illegal, or
incapable of being enforced by reason of any rule of law or public policy, all
other covenants and provisions of the Note shall nevertheless remain in full
force and effect, and no covenant or provision shall be deemed dependent upon
any other covenant or provision.
This Note is transferable by the Holder upon at least five (5) days prior
written notice to Maker.
IN WITNESS WHEREOF, the Maker, by its duly authorized officer, has executed
this Note under seal as of the date first above written.
WITNESS: XXXXXX'S MICROBATCH ICE CREAMS, L.L.C.
BY:
--------------------------- -----------------------------------
Xxxxxx X. Xxxxx, Vice-President
3
PROMISORRY NOTE
$5,000.00 Philadelphia, Pennsylvania
October 1, 1999
FOR VALUE RECEIVED, Xxxxxx's Microbatch Ice Creams, L.L.C., a Delaware
limited liability Company (the "Maker"), with an address at 0000 Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxxxx, XX 00000, hereby promises to pay to Xxxxxxx Xxxxx, with
an address at _______________ ____________________________ (or such other
address as the Holder hereunder may provide by notice to Maker from time to
time) or any other lawful holder of this Note (Xxxxxx Xxxxx or any other such
holder hereafter referred to as the "Holder"), the principal sum of Five
Thousand Dollars ($5,000.00), together with interest on the principal amount
outstanding from the date hereof until payment in full.
The principal amount of this Note together with all interest then accrued
but unpaid shall be due and payable on the Due Date, as defined in the next
sentence. The Due Date shall be October 1, 1999.
Interest on the outstanding principal balance hereof shall accrue at a rate
equal to TEN PERCENT (10%) per annum, simple interest, until all principal and
other amounts due hereunder have been paid in full.
Interest shall be payable in monthly installments in arrears on the FIRST
(1st) day of every month beginning November 1, 1999, until the principal amount
hereof has been paid in full. All accrued and unpaid interest hereunder shall be
due and payable in full on the Due Date. If any installment of interest is not
paid by the end of the fifth calendar day after the date when due in accordance
with this paragraph, a late charge equal to five percent (5%) of the delinquent
payment shall be added to principal and shall be payable together with the
delinquent installment.
All interest shall be calculated on the basis of a 360-day year, and 30-day
months, counting the actual number of days elapsed from the beginning of the
period.
The principal of this Note may be prepaid in whole at any time without
premium or penalty.
All principal and interest payments hereunder are payable in lawful money
of the United States of America to the Holder at the address first shown above,
or at such other address as may be directed by Xxxxxx, in immediately available
funds.
4
The Maker hereby waives presentment, demand, dishonor, protest, notice of
protest, diligence and any other notice or action otherwise required to be given
or taken under the law in connection with the delivery, acceptance, performance,
default, enforcement or collection of this Note, and expressly agrees that this
Note, or any payment hereunder, may be extended, modified or subordinated (by
forbearance or otherwise) from time to time, without in any way affecting the
liability of the Maker.
In the event that (a) the Maker shall fail to pay, within five (5) calendar
days after the date when due, any payment of principal or interest due
hereunder, or (b) if the Maker shall (i) make a general assignment for the
benefit of creditors; (ii) be adjudicated a bankrupt or insolvent; (iii) file a
voluntary petition in bankruptcy; (iv) take advantage of any bankruptcy or
insolvency law or statute of the United States of America or any state or
jurisdiction thereof now or hereafter in effect; (v) have a petition or
proceeding filed against the Maker under any bankruptcy or insolvency law or
statute of the United States of America or any state or jurisdiction thereof,
which petition or proceeding is not dismissed within ninety (90) days from the
date of commencement thereof; or (vi) have a receiver, trustee, custodian,
conservator or other person appointed by any court to take charge of the Maker's
affairs, assets or business and such appointment is not vacated or discharged
within ninety (90) days thereafter; then, and upon the happening of any such
event, the Holder, at Holder's option, by written notice to the Maker, may
declare the entire indebtedness evidenced by this Note immediately due and
payable, whereupon the same shall forthwith mature and become immediately due
and payable without presentment, demand, protest or further notice.
In the event that Maker shall fail to pay when due any principal or
interest payment, and the Holder shall exercise or endeavor to exercise any of
its remedies hereunder, the Maker shall pay all reasonable costs and expenses
incurred in connection therewith, including, without limitation, reasonable
attorneys' fees, and the Holder may take judgment for all such amounts in
addition to all other sums due hereunder.
No consent or waiver by the Holder with respect to any action or failure to
act by Maker which, without such consent or waiver, would constitute a breach of
any provision of this Note shall be valid and binding unless in writing and
signed by the Holder. No such consent or waiver given by Holder on any one
occasion shall be construed to constitute a consent or waiver by Holder on any
subsequent occasion. No forbearance in the exercise of any right or remedy of
Holder shall be construed as a waiver of such right or remedy.
All agreements between the Maker and the Holder are expressly limited to
provide that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to the Holder for the use,
forbearance or detention of the indebtedness evidenced hereby exceed the maximum
amount which the Holder is permitted to receive under applicable law. If, from
any circumstances whatsoever, fulfillment of any provision hereof, at the time
performance of such provision shall be due, shall involve transcending the limit
of validity prescribed by law, then, without the necessity of any action by
Holder or Maker, the obligation to be fulfilled shall automatically be reduced
to the limit of such validity, and if from any circumstance the Holder should
ever receive as interest an amount which would exceed the highest lawful rate,
such
5
amount which would be excessive interest shall be applied to the reduction
of the principal balance hereof, and not to the payment of interest. As used
herein, the term "applicable law" shall mean the law in effect as of the date
hereof, provided, however, that in the event there is a change in the law which
results in a higher permissible rate of interest, then this Note shall be
governed by such new law as of its effective date. This provision shall control
every other provision of all agreements between the Maker and the Holder.
This Note shall be governed by and construed in accordance with the laws of
the Commonwealth of Pennsylvania, except to the extent that such laws are
superseded by Federal enactments.
If any covenant or other provision of the Note is invalid, illegal, or
incapable of being enforced by reason of any rule of law or public policy, all
other covenants and provisions of the Note shall nevertheless remain in full
force and effect, and no covenant or provision shall be deemed dependent upon
any other covenant or provision.
This Note is transferable by the Holder upon at least five (5) days prior
written notice to Maker.
IN WITNESS WHEREOF, the Maker, by its duly authorized officer, has executed
this Note under seal as of the date first above written.
WITNESS: XXXXXX'S MICROBATCH ICE CREAMS, L.L.C.
BY:
--------------------------- -----------------------------------
Xxxxxx X. Xxxxx, Vice-President
6
