Exhibit 10.30
PROMISSORY NOTE
$155,975.00
October 15, 0000
Xxxxxx Xxxxxxxx, Inc.
000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxxx 00000
("Borrower")
Nexcomm International Beverage, LLC
00 Xxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Close
("Lender")
RECITAL. Borrower is the former subsidiary of Maxmillian Partners, LLC,
("Maxmillian"), the original borrower of Lender under a certain Secured
Convertible Note and Agreement and a related Security Agreement dated April 8,
2003 (the "Original Debt"), the obligations pursuant to which were guarantied by
Borrower in accordance with a certain Guaranty, also dated April 8, 2003. As of
the date hereof, Maxmillian has entered into one or more agreements with Gourmet
Group, Inc., a public company trading under the symbol "XXXX.XX" (the "Holding
Company"), for the exchange in a private transaction (the "Exchange") of
substantially all of the outstanding equity securities of Borrower for shares of
the restricted common stock, $.001 par value, of the Holding Company (the
"Exchange Shares"). Maxmillian anticipates that immediately following the
Exchange it will complete a liquidating distribution of substantially all of its
assets to its members, which assets will be constituted either wholly or in
principal part of the Exchange Shares. As Maxmillian in such event will not have
available funds from which to satisfy the obligations under the Secured
Convertible Note and Agreement and the related Security Agreement dated April 8,
2003, each of the Holding Company, Maxmillian, the Borrower and Lender have
agreed that for the purpose of permitting the Exchange to be completed, the
Original Debt will be assumed by Borrower upon the terms and conditions herein,
it being the intention of all of such parties, that as of the completion of such
assumption, Maxmillian's obligations relating to the Original Debt, including
without limitation, the security interests granted pursuant to the Security
Agreement, shall be released in full by Lender, and all of such obligations, as
modified by the terms and conditions set forth herein, shall be assumed by
Borrower (the "Obligations").
BORROWING. Borrower promises to pay to the order of Lender, in lawful money of
the United States of America, at its office indicated above or wherever else
Lender may specify, the sum of One Hundred Fifty-Five Thousand Nine Hundred
Seventy-Five and No/100 ($155,975.00) Dollars or such sum as may be advanced and
outstanding from time to time, with interest on the unpaid principal balance at
the rate and on the terms provided in this Promissory Note (including all
renewals, extensions or modifications hereof, the "Note").
SECURITY. Borrower has granted Lender a security interest in the collateral
described in that Security Agreement of even date herewith.
INTEREST RATE. Interest shall accrue on the unpaid principal balance of this
Note from the date hereof at the rate of 10% per annum, ("Rate").
DEFAULT RATE. In addition to all other rights contained in this Note, if a
Default (as defined herein) occurs and as long as a Default continues, all
outstanding Obligations shall bear interest at the Rate plus 2% ("Default
Rate"). The Default Rate shall also apply from acceleration until the
Obligations or any judgment thereon is paid in full.
REPAYMENT TERMS. This Note shall be due and payable in full with any and all
interest accrued thereon together with any and all accrued interest, and any
other charges due hereunder on or before May 1, 2005 (the "Maturity Date").
INTERCREDITOR ARRANGEMENT. Notwithstanding the provisions herein otherwise
providing for payment on or before the Maturity Date, Lender acknowledges and
affirms herein Lender's covenants with respect to the Original Debt as set forth
in a certain Intercreditor Agreement, dated December 15, 2003, by and between
Lender, Borrower, and Maxmillian and Platinum Funding Corp., a factor lender of
Borrower ("Platinum'), and pursuant to which Lender agreed, among other things,
to subordinate its interests in the security interest granted by Borrower in
respect of the Original Debt of Maxmillian, in exchange for Platinum's and
Borrower's agreement to make payment of the Original Debt against Borrower's
obligations as Guarantor in accordance with the formula set forth in said
Intercreditor Agreement. For so long as Borrower shall continue its factor
arrangement with Platinum, and provided that Platinum shall affirm its
obligations to Lender following the date hereof pursuant to the terms of the
Intercreditor Agreement, then notwithstanding the assumption of the Original
Debt of Maxmillian by Borrower, or the provision for Maturity herein, Lender
shall undertake each off its obligations under the Intercreditor Agreement in
the same manner as if the Original Debt had been that of Borrower. In the event
the factor arrangement with Platinum shall be terminated, however, then the
Maturity Date shall (i) remain applicable to the extent such termination occurs
prior to the stated Maturity Date, and (ii) in the event such termination occurs
after the stated Maturity Date, but before the Obligations have been fully
satisfied either pursuant to the terms of the Intercreditor Agreement or
otherwise, the Maturity Date shall be deemed to be extended to that date which
is the fifth (5th) business day following the effective date of said
termination.
APPLICATION OF PAYMENTS. Monies received by Lender from any source for
application toward payment of the Obligations shall be applied to both principal
and accrued interest. If a Default occurs, monies may be applied to the
Obligations in any manner or order deemed appropriate by Lender. If any payment
received by Lender in respect of this Note or any other document is rescinded,
avoided or for any reason returned by Lender because of any adverse claim or
threatened action, the returned payment shall remain payable as an obligation of
all persons liable under this Note or other such documents as though such
payment had not been made.
PREPAYMENT. This Note may be prepaid at any time in whole or in part without any
prepayment fee or penalty.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
Lender a late charge equal to 3% of each payment past due for 10 or more days.
Acceptance by Lender of any late payment without an accompanying late charge
shall not be deemed a waiver of Lender's right to collect such late charge or to
collect a late charge for any subsequent late payment received.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Lender's
reasonable expenses incurred to enforce or collect any of the Obligations
including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' 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. If at any time the effective interest rate under this Note would, but for
this paragraph, exceed the maximum lawful rate, the effective interest rate
under this Note shall be the maximum lawful rate, and any amount received by
Lender in excess of such rate shall be applied to principal and then to fees and
expenses, or, if no such amounts are owing, returned to Borrower.
DEFAULT. If any of the following occurs, a default ("Default") under this Note
shall exist: Nonpayment; Nonperformance. The failure of timely payment or
performance of the Obligations or Default under this Note or the Security
Agreement. Nonpayment. The failure of timely payment of the Obligations under
this Note or the Security Agreement, or the failure of Platinum to comply with
its obligations under the Intercreditor Agreement. Nonperformance. The failure
of timely performance of the Obligations or Default under this Note or the
Security Agreement beyond fifteen (15) days from the date Borrower has actual or
constructive knowledge of such failure or Default, other than with respect to
payment. False Warranty. A warranty or representation made or deemed made in
this Note or the Security Agreement or any related document delivered or
furnished to Lender in connection with the loan evidenced by this Note proves
materially false, or if of a continuing nature, becomes materially false.
Material Capital Structure or Business Alteration. Without prior written consent
of Lender, (i) the sale of substantially all of the business or assets of
Borrower, or the transfer of more than 50% of the outstanding stock or voting
power of or in any such entity in a single transaction or a series of
transactions.
REMEDIES UPON DEFAULT. If a Default occurs under this Note, Lender may at any
time thereafter, take the following actions (in each case subject to Lender's
obligations under the Intercreditor Agreement: Lender Lien. Foreclose its
security interest or lien against Borrower's assets without notice. Acceleration
Upon Default. Accelerate the maturity of this Note and, at Lender's option, any
or all other Obligations, whereupon this Note and the accelerated Obligations
shall be immediately due and payable. Cumulative. Exercise any rights and
remedies as provided under the Note and other documents in respect of this Note,
or as provided by law or equity.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Lender such
information as Lender may reasonably request from time to time, including
without limitation, financial statements and information pertaining to
Borrower's financial condition. Such information shall be true, complete, and
accurate.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note,
the Security Agreement or other related documents shall be valid unless in
writing and signed by an officer of Lender. No waiver by 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 Lender in exercising
any right, power, or remedy under this Note and other such documents 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 or any person liable under this 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 Lender may extend, modify or
renew this Note or make a novation of the loan evidenced by this Note for any
period, and grant any releases, compromises or indulgences with respect to any
collateral securing this Note, all without notice to or consent of Borrower and
without affecting the liability of Borrower.
MISCELLANEOUS PROVISIONS. Assignment. This Note, the Security Agreement and any
other related document shall inure to the benefit of and be binding upon the
parties and their respective heirs, legal representatives, successors and
assigns. Lender's interests in and rights under this Note, Security Agreement
and any other related documents are freely assignable, in whole or in part, by
Lender. In addition, nothing in this Note or any of the other of said documents
shall prohibit Lender from pledging or assigning this Note or any of the other
documents or any interest therein to any party. 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 the Obligations.
Applicable Law; Conflict Between Documents. This Note and, unless otherwise
provided in any other document, such other such documents, shall be governed by
and construed under the laws of the state named in Lender's address shown above
without regard to that state's conflict of laws principles. If the terms of this
Note should conflict with the terms of any other document or any commitment that
survives closing, the terms of this Note shall control. Borrower's Assets.
Except as prohibited by law, Borrower grants Lender a security interest in all
of Borrower's assets. Jurisdiction. Borrower irrevocably agrees to non-
exclusive personal jurisdiction in the state named in Lender's address shown
above. Severability. If any provision of this Note or of said other documents
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
Note or other such documents. Notices. Any notices to Borrower shall be
sufficiently given, if in writing and mailed or delivered to the Borrower's
address shown above or such other address as provided hereunder, and to Lender,
if in writing and mailed or delivered to Lender's office address shown above or
such other address as Lender may specify in writing from time to time. In the
event that Borrower changes Borrower's address at any time prior to the date the
Obligations are satisfied in full, Borrower agrees to promptly give written
notice of said change of address by registered or certified mail, return receipt
requested, all charges prepaid.
CONNECTICUT PREJUDGMENT REMEDY WAIVER. BORROWER ACKNOWLEDGES THAT THE
TRANSACTIONS REPRESENTED BY THIS NOTE ARE COMMERCIAL TRANSACTIONS AND HEREBY
VOLUNTARILY AND KNOWINGLY WAIVES ANY RIGHTS TO NOTICE OF AND HEARING ON
PREJUDGMENT REMEDIES UNDER CHAPTER 903A OF THE CONNECTICUT GENERAL STATUTES OR
OTHER STATUTES AFFECTING PREJUDGMENT REMEDIES, AND AUTHORIZES THE BANK'S
ATTORNEY TO ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT COURT ORDER, PROVIDED
THE COMPLAINT SHALL SET FORTH A COPY OF THIS WAIVER.
WAIVER OF TRIAL BY JURY. THE BORRROWER (BY ACCEPTANCE OF THIS AGREEMENT) HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION
HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
WRITTEN OR VERBAL) OR ANY ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION,
ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE LENDER
RELATING TO THE ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS,
AND AGREES THAT IT WILL NOT SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS
PROHIBITED BY LAW. THE UNDERSIGNED HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM
OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO ACTUAL DAMAGES. THE
UNDERSIGNED CERTIFIES THAT NO AGENT OR ATTORNEY OF THE LENDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE LENDER WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL
INDUCEMENT FOR THE LENDER TO ACCEPT THIS AGREEMENT AND MAKE THE LOAN. THE
UNDERSIGNED ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY, VOLUNTARILY,
WITHOUT DURESS AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF
THIS WAIVER WITH ITS ATTORNEYS.
IN WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be executed under seal.
PLACE OF EXECUTION AND DELIVERY. Borrower hereby certifies that this Note was
executed in the State of Connecticut and delivered to Lender in the State of
Connecticut.
DRINKS AMERICAS, INC.
By: /s/_______________________(SEAL)
, duly authorized
