BRIDGE NOTE
Exhibit
10.21
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$150,000.00
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July
10, 2009
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Artisanal
Cheese, LLC,
a New
York limited liability company
000 Xxxx
00xx
Xxxxxx
2nd
Floor
New York,
New York 10018
(Hereinafter
referred to as “Borrower”)
Whereas,
Xxxxxxxx is currently in the process of securing debt financing from a third
party. Until that financing has been obtained, the Xxxxxxx X.
XxXxxxxxx Family L.P., a New York limited partnership (“Lender”), has agreed to
provide to Borrower a bridge loan in the amount of One Hundred Fifty Thousand
Dollars ($150,000.00).
Whereas,
this Promissory Note is made pursuant to such Bridge Loan Agreement executed by
the Lender of even date herewith (the “Bridge Loan Agreement”), the amount of
which is represented by this Bridge Note (the “Bridge Note”).
Now,
wherefore, Xxxxxxxx promises to pay to the order of Lender, in lawful money of
the United States of America, at the address indicated in the Bridge Loan
Agreements or wherever else Lender may specify, the sum owed to Lender under the
Bridge Loan Agreement (including all renewals, extensions or modifications
thereof).
SECURITY. As security for the payment of the monies owing
under this Bridge Note and the Bridge Loan Agreement, the Borrower has delivered
or has caused to be delivered to the Lender a security agreement (“Security
Agreement”) dated the date hereof. Lender shall have a first priority
security interest in all assets of the Borrower pursuant to the Security
Agreement.
INTEREST
AND FEE(S) COMPUTATION. (Actual/365). Interest on the
principle amount of this Bridge Note shall be at a rate of nine percent (9%) per
annum. Interest and fees, if any, shall be computed on the basis of a
365-day year for the actual number of days in the applicable period.
ISSUANCE
OF PREFERRED SHARES. For every Fifty Thousand Dollars
($50,000.00) loaned by Xxxxxx, Lender shall receive Ten Thousand
(10,000) shares of American Home Food Products’ Series A Redeemable Convertible
Preferred Shares.
PREPAYMENT. The
Bridge Note may be prepaid, in whole or in part, at any time.
REPAYMENT
TERMS. This Bridge Note shall be due and payable in full at the
earlier of September 8, 2009, or the closing of a senior debt facility by a
third-party institutional lender.
APPLICATION
OF PAYMENTS. 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 under this Bridge Note 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 Bridge Note as though such payment
had not been made.
ATTORNEYS’
FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Lender’s
reasonable expenses incurred to enforce or collect any of the obligations under
this Bridge Note, including, without limitation, reasonable court, arbitration,
paralegals', attorneys' 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. Regardless
of any other provision of this Bridge Note, if for any reason the effective
interest should exceed the maximum lawful interest, the effective interest shall
be deemed reduced to, and shall be, such maximum lawful interest, and (i) the
amount which would be excessive interest shall be deemed applied to the
reduction of the principal balance of this Bridge Note and not to the payment of
interest, and (ii) if the loan evidenced by this Bridge Note has been or is
thereby paid in full, the excess shall be returned to the party paying same,
such application to the principal balance of this Bridge Note or the refunding
of excess to be a complete settlement and acquittance thereof.
DEFAULT. If
any of the following occurs, a default (“Default”) under
this Bridge Note shall exist: Nonpayment. The failure of
Borrower to pay any of the obligations under this Bridge Note within ten (10)
calendar days of when due. Nonperformance. The failure of
timely performance of the obligations hereunder or under the Security Agreement,
other than payment obligations, and such default shall continue unremedied for a
period of fifteen (15) calendar days after Borrower shall receive notice of such
default. False Warranty. A warranty or representation made
or deemed made in this Bridge Note or the Security Agreement, or furnished to
Lender in connection with the loan evidenced by this Bridge Note, proves
materially false, or if of a continuing nature, becomes materially
false. Cessation; Bankruptcy. The dissolution of,
termination of existence of, loss of good standing status by, appointment of a
receiver for, assignment for the benefit of creditors of, lender workout
proceedings, or commencement of any bankruptcy or insolvency proceeding by or
against the Borrower, or any of their subsidiaries or
affiliates. Material Capital Structure or Business
Alteration. Without the prior written consent of Lender, which shall
not be unreasonably withheld (i) a material alteration in the kind or type of
Borrower's business or that of Borrower's subsidiaries or affiliates; (ii) the
sale of all or substantially all or a material portion of the business or assets
of Borrower, or any of Borrower's subsidiaries or affiliates if such a sale is
outside the ordinary course of business of Borrower; (iii) the acquisition of
substantially all of the business or assets or more than 50% of the outstanding
stock, membership interests, or voting power of any other entity; (iv) should
Borrower, or any of Borrower's subsidiaries, enter into any merger or
consolidation or similar transaction; or (v) any change in the members of the
Borrower resulting in a change of a majority or more of the
membership interests or equity interests of Borrower.
REMEDIES
UPON DEFAULT. If a Default occurs under this Bridge Note or the
Security Agreement, Lender may at any time thereafter take the following
actions: Acceleration Upon Default. Accelerate the
maturity of this Bridge Note and all obligations hereunder, and all of the
obligations hereunder shall be immediately due and
payable. Cumulative. Exercise any rights and remedies as
provided under the Bridge Note or the Security Agreement, or as provided by law
or equity.
WAIVERS
AND AMENDMENTS. No waivers, amendments or modifications of this
Bridge Note shall be valid as against Lender unless in writing and signed by
Xxxxxx. 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 Bridge Note or the Security
Agreement 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
and any person liable under this Bridge 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, Xxxxxxxx agrees that Lender may extend, modify or
renew this Bridge Note or make a novation of the loan evidenced by this Bridge
Note for any period and grant any releases, compromises or indulgences with
respect to any collateral securing this Bridge Note, all without notice to or
consent of each Borrower or each person who may be liable under this Bridge Note
and without affecting the liability of Borrower or any person who may be liable
under this Bridge Note.
NOTICE. All
notices, consents, waivers and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given when (a) delivered by
hand (with written confirmation of receipt), (b) sent by facsimile (with written
confirmation of receipt), provided that a copy is mailed by registered mail,
return receipt requested, or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in each
case to the appropriate addresses and facsimile numbers set forth below (or to
such other addresses and facsimile numbers as a party may designate by notice to
the other parties):
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If
to Borrower, to:
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Artisanal
Cheese, LLC
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000 Xxxx
00xx
Xxxxxx
New York,
New York 10708
Attn:
Xxxxxx X. Xxxx, Esq.
Telephone
No.: (000)-000-0000
Email:
xxxxx@xxxxxxxxxxxxxxx.xxx
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If
to Lender, to:
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Xxxxxxx
X. XxXxxxxxx Family L.P.
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c/o KSIX
Partners LLC
00 Xxxxx
Xxx. Xxx 00
Lynbrook,
NY 11563
Telephone
No.:
Email:
MISCELLANEOUS
PROVISIONS. Assignment. This Bridge Note shall inure to
the benefit of and be binding upon the parties and their respective heirs, legal
representatives, successors and assigns. This Bridge Note may be
freely assigned or pledged by Xxxxxx. Borrower shall not assign its
rights and interest hereunder without the prior written consent of Xxxxxx, and
any attempt by Borrower to assign without Xxxxxx’s prior written consent is null
and void. Any assignment shall not release Borrower from its
obligations hereunder. Applicable Law; Conflict Between
Documents. This Bridge Note shall be governed by and construed under
the laws of the State of New York without regard to conflict of laws
principles. If the terms of this Bridge Note should conflict with the
terms of the Security Agreement, the terms of this Bridge Note shall
control. Jurisdiction and Venue. Borrower irrevocably
agrees that any suit regarding this Bridge Note shall be brought in the state or
federal courts located in New York, New York and Borrower submits to such
jurisdiction. Severability. If any provision of this
Bridge Note 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 Bridge Note or other such document. Plural;
Captions. All references in this Bridge Note to Borrower, person,
document or other nouns of reference mean both the singular and plural form, as
the case may be, and the term “person” shall mean any individual, person or
entity. The captions contained in this Bridge Note are inserted for
convenience only and shall not affect the meaning or interpretation of the
Bridge Note. Binding Contract. Borrower by execution of
and Xxxxxx by acceptance of this Bridge Note agree that each party is bound to
all terms and provisions of this Bridge Note. Fees and
Taxes. Borrower shall promptly pay all documentary, intangible
recordation and/or similar taxes on this transaction whether assessed at closing
or arising from time to time.
WAIVER OF
JURY TRIAL. XXXXXXXX AND XXXXXX ACKNOWLEDGE AND AGREE THAT (i) ANY
SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR INSTITUTED
BY XXXXXX OR BORROWER OR ANY SUCCESSOR OR ASSIGN OF LENDER OR BORROWER, ON OR
WITH RESPECT TO THIS BRIDGE NOTE 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 BRIDGE NOTE AND LENDER WOULD NOT EXTEND CREDIT TO
BORROWER IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS BRIDGE
NOTE.
IN
WITNESS WHEREOF, Xxxxxxxx, on the day and year first above written, has caused
this Bridge Note to be executed.
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ARTISANAL
CHEESE, LLC
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By:
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Name: Xxxxxx
X. Xxxx
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Title:
President
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