Contract
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S
PROMULGATED UNDER THE SECURITIES ACT, PURSUANT TO REGISTRATION UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING
TRANSACTIONS INVOLVING THIS NOTE MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH
THE SECURITIES ACT. THIS
NOTE MUST BE SURRENDERED TO THE COMPANY OR ITS TRANSFER AGENT AS A CONDITION
PRECEDENT TO THE SALE, PLEDGE, HYPOTHECATION OR ANY OTHER TRANSFER OF ANY
INTEREST IN THIS NOTE.
ORGANIC
TO GO FOOD CORPORATION
| $3,000,000.00 |
November
__,
2008
|
Seattle,
Washington
FOR
VALUE
RECEIVED, Organic To Go Food Corporation, a Delaware corporation (the
“Company”)
promises to pay to X.Xxxxxx L.P., a limited partnership organized under the
laws
of the Bahamas (“Investor”),
or
its registered assigns, in lawful money of the United States of America the
principal sum of Three Million Dollars ($3,000,000.00) (the “Principal
Amount”),
together with interest from the date hereof on the Principal Amount at the
rate
of fifteen percent (15%) per annum, compounded yearly and accruing daily, on
or
prior to May __, 2009 (the “Maturity
Date”)
in
accordance with the terms hereof. This Note has been issued pursuant to the
Note
Purchase Agreement, dated as of November __, 2008 (as amended, modified or
supplemented, the “Note
Purchase Agreement”)
between the Company and the Investor and is secured by a lien on all the
tangible and intangible assets of the Company.
1. Prepayment.
The
entire Principal Amount and/or any interest hereon may be prepaid in whole
or in
part by the Company at any time. Any payments under this Promissory Note prior
to the Maturity Date shall be applied first to accrued interest and then to
principal.
2. Event
of Default.
If
an
Event of Default (as defined in the Note Purchase Agreement) shall occur, then
at the election of the Investor, upon a notice to the Company, the principal
balance of this Note plus accrued and unpaid interest at the rate of
25% per annum, compounded on an annual basis, shall become due and payable
immediately in cash.
3. Successors
and Assigns.
Subject
to the restrictions on transfer described in the Note Purchase Agreement, the
rights and obligations of the Company and Investor shall be binding upon and
benefit the successors, assigns, heirs, administrators and transferees of the
parties.
4. Waiver
and Amendment.
Any
provision of this Note may be amended, waived or modified upon the written
consent of the Company and the Investor.
5. Notices.
All
notices, requests, demands, consents, instructions or other communications
required or permitted hereunder shall in be in accordance with the notice
provisions set forth in the Note Purchase Agreement.
6. Usury.
In the
event any interest is paid on this Note which is deemed to be in excess of
the
then legal maximum rate, then that portion of the interest payment representing
an amount in excess of the then legal maximum rate shall be deemed a payment
of
principal and applied against the principal of this Note.
7. Waivers.
The
Company hereby waives notice of default, presentment or demand for payment,
protest or notice of nonpayment or dishonor and all other notices or demands
relative to this instrument.
8. Governing
Law.
This
Note and all actions arising out of or in connection with this Note shall be
governed by and construed in accordance with the laws of the State of
California, without regard to the conflicts of law provisions of the State
of
California, or of any other state.
9. Arbitration.
Any
dispute, controversy, or claim arising in relation to this Note, including
with
regard to its validity, invalidity, breach, enforcement or termination, shall
be
resolved by binding arbitration in London, England, in accordance with the
rules
of arbitration which are in force in the United Kingdom on the date when the
notice of arbitration is submitted. The arbitrability of such dispute, claim
or
controversy shall also be determined in such arbitration. Such arbitration
proceeding shall be conducted in the English language before one (1) arbitrator
agreed to by the parties. Both the foregoing agreement of the parties to
arbitrate any and all such disputes, claims and controversies, and the results,
determinations, findings, judgments and/or awards rendered through any such
arbitration shall be final and binding on the parties hereto and may be
specifically enforced by legal proceedings.
[Signature
Page Follows]
2
The
Company has caused this Note to be issued as of the date first written
above.
|
Organic
To Go Food Corporation
a
Delaware corporation
By:______________________________
Name:
Xxxxx Xxxxx
Title:
Chief Executive Officer
|
