Cono Italiano, Inc. Standby Commitment Agreement
November
9, 2009
00 Xxxx
Xxxxxx
Xxxxxxx,
XX 00000
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Attention:
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Xx.
Xxxx X. Xxxxxxxx, Chief Financial Officer, Treasurer and
Director
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Dear Xx.
Xxxxxxxx:
The undersigned, Lara Mac Inc.,
(referred to herein as the “Lender”) intending to be legally bound, hereby
irrevocably agrees, that such Lender shall provide Cono Italiano, Inc., a
Delaware corporation (the “Company”) with such funds as the Company’s Board of
Directors shall deem to be sufficient to maintain the Company’s ordinary course
of business operations (the “Commitment Amount”) pursuant to the terms and
conditions set forth herein (this “Agreement”). The Commitment Amount may be
drawn by the Company, at its sole discretion (as determined by the action of the
Board of Directors of the Company) at any time prior to December 31, 2010 in
accordance with the Company’s business plan in effect as of the date hereof;
provided, however, that the Commitment Amount shall be reduced by the aggregate
cash proceeds received by the Company after the date hereof derived from the
issuance of any equity securities and gross revenues.
Any and all draws against the
Commitment Amount shall be made on terms set forth in the form of Note attached
hereto as Annex A, with interest upon such Note as of the date of the draw set
at prime rate plus two
percent (2%) (the “Interest Rate”). Prime rate shall be determined on
the date of issuance of each Note by reference to the published prime rate in
the Wall Street Journal as of such date. The Company shall notify the Lender in
writing not less than ten (10) business days prior to the date each advance upon
the Commitment Amount is requested to be drawn upon. The Company shall notify
the Lender in writing within two business days of the receipt of any funds that
would reduce the Commitment Amount; provided that the Commitment Amount shall
automatically be reduced whether or not the Company provides such
notice.
The Notes shall mature and become
repayable thirty (30) calendar days’ after demand of a Lender at any time
following the earlier of (i) December 31, 2010 or (ii) the date upon which the
Company is in receipt of revenues or proceeds from the sales of equity
securities, provided that in the case of this clause (ii) the repayment upon
such Note shall only be due and payable only to the extent of actual revenues
and/or proceeds of equity securities received by the Company. A separate Note
shall be issued to the Lender in the respective amount of each loan to the
Company under this Agreement. The Company shall give the Lender customary
representations and warranties regarding the good standing of the Company and
status of progress in respect of the Company business plan upon delivery to the
Lender of each request for draw upon the Commitment Amount, and the Company
shall provide certifications and covenants regarding use of proceeds of each
such draw, which in all cases shall be in customary forms reasonably requested
by the Lender as determined by reference to similar lenders making similar loans
to similar companies. The Lender shall not be required to make any loans to the
Company in respect of the Commitment Amount if the Company is unable to make
such representations, warranties, certifications or covenants, or if the Company
is in breach of any prior representations, warranties, certifications or
covenants.
All notices, demands and other
communications relating to this Agreement to be given or otherwise to be made to
any party to this Agreement shall be deemed to be sufficient or contained in a
written instrument if sent by messenger, telecopied, faxed, sent via e-mail or
mailed by registered or certified mail, or by a recognized national or
international courier service, postage or charges prepaid, return receipt
requested, to the addresses set forth on the signature page hereto (or to such
other address, as may be specified by the Parties hereto from time to time),
provided, however, any notice sent in electronic format shall not be deemed
effective unless and until written or electronic acknowledgment of receipt is
given by the receiving party to the transmitting party.
This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
parties hereto. Subject to applicable securities laws, the Lender may assign any
of its rights under this Agreement, but no such assignment shall relieve any
Lender from its obligations hereunder. The Company may not assign any of its
rights under this Agreement, except to a successor-in-interest to the Company,
without the written consent of the Lender.
No failure or delay on the part of
Company or the Lender in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such rights, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. Any amendment, supplement or
modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, or any consent to any departure by the Company or
the Lender from the terms of this Agreement shall be effective only if it is
made or given in writing and signed by all of the parties hereto.
This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New Jersey,
without regard to the principles of conflicts of law thereof. This Agreement
together with the form of Note are intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein.
If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
2
Each of the parties shall execute such
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same Agreement. Signatures on this Agreement delivered electronically by
e-mail, scan, fax or telecopier shall be considered delivery of original
signatures for purposes of effectiveness of this Agreement to the same and full
extent as an original thereof.
[Signature
Page Follows]
3
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed and delivered by their respective
officers hereunto duly authorized on the date first written above.
THE
COMPANY:
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By:
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/s/ Xxxx X. Xxxxxxxx
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Name:
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Xxxx
X. Xxxxxxxx
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Title:
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Chief
Financial Officer, Treasurer and Director
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Address
for Notices:
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00
Xxxx Xxxxxx
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Xxxxxxx,
XX 00000
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THE
LENDER:
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LARA
MAC INC.
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By:
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/s/ Xxxxxxxx Xxxxx
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Name:
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Xxxxxxxx
Xxxxx
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Title:
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Chief
Executive Officer
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Address
for Notices:
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00
Xxxx Xxxxxx
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Xxxxxxx,
XX 00000
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4
Annex
A
FORM
OF PROMISSORY NOTE
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U.S.
$
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Dated:
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1.
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FOR
VALUE RECEIVED, Cono
Italiano, Inc., a Delaware corporation
(the “Borrower”), hereby promises to
pay to the order of ________________________ (“Lender”), at such time, place
and in such manner as Lender may specify in writing, the principal amount
of _______________________________ US dollars (US
$ )
(the “Principal”) pursuant to the terms
and conditions specified herein (this “Note”). The
Borrower shall pay interest on the outstanding principal of this Note at
the annual rate of prime rate as published in the Wall Street Journal as
of the date hereof plus 2%, such sum and resulting interest being ____% (_______ percent)
per annum, as calculated based on a year of 365 days and actual days
elapsed (the “Interest”).
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2.
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The
Borrower hereby promises to pay to the order of the Lender the Principal
and all Interest due thereon within thirty calendar (30) days upon
delivery to the Borrower of written demand by the Lender (the “Due
Date”), at such place and in such manner as Lender may specify in
writing, provided, however, demand for repayment shall not be made by the
Lender until the earlier of (i) December 31, 2010 or (ii) the date upon
which the Borrower is in receipt of revenues from sales of products or
services or sales of equity
securities.
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3.
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Any
and all fees, costs, expenses and disbursements charged by financial
institutions with respect to wire transfer or other transmittal charges
incurred in connection with delivery of the Principal from the Lender to
the Borrower shall be deemed to have been received by the Borrower from
the Lender and all such amounts shall be included in the calculation of
Principal hereunder.
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4.
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This
Note shall not be transferable by Borrower and the Borrower may not
assign, transfer or sell all or a portion of its rights and interests to
and under this Note to any persons and any such purported transfer shall
be void ab initio. The Lender may transfer and assign this Note
at its sole discretion.
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5.
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The
failure at any time of the Lender to exercise any of its options or any
other rights hereunder shall not constitute a waiver thereof, nor shall it
be a bar to the exercise of any of its options or rights at a later
date. All rights and remedies of the Lender shall be cumulative
and may be pursued singly, successively or together, at the option of the
Lender. The acceptance by the Lender of any partial payment
shall not constitute a waiver of any default or of any of the Lender's
rights under this Note. No waiver of any of its rights
hereunder, and no modification or amendment of this Note, shall be deemed
to be made by the Lender unless the same shall be in writing, duly signed
on behalf of the Lender; and each such waiver shall apply only with
respect to the specific instance involved, and shall in no way impair the
rights of the Lender in any other respect at any other
time.
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Promissory
Note
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6.
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Any
term or condition of this Note may be waived at any time by the party that
is entitled to the benefit thereof, but no such waiver shall be effective
unless set forth in a written instrument duly executed by or on behalf of
the party waiving such term or
condition.
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7.
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The
Borrower represents and warrants that this Note is the valid and binding
obligation of the Borrower, fully enforceable in accordance with its
terms. The execution and delivery by the Borrower of this Note,
the performance by the Borrower of its obligations hereunder and the
consummation of the transactions contemplated hereby and thereby does not
and will not: (a) conflict with or result in a violation or breach of any
of the terms, conditions or provisions of the Borrower’s charter
instruments; (b) conflict with or result in a violation or breach of any
term or provision of any law or order applicable to the Borrower or any of
its assets and properties; or (c) (i) conflict with or result in a
violation or breach of, or (ii) result in or give to any person any rights
or create any additional or increased liability of the Borrower under or
create or impose any lien upon, the Borrower or any of its assets and
properties under, any contract or permit to which the Borrower is a party
or by which its assets and properties are
bound.
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8.
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If
any provision of this Note is held to be illegal, invalid or unenforceable
under any present or future Law, and if the rights or obligations of any
party hereto under this Note will not be materially and adversely affected
thereby, (i) such provision will be fully severable; (ii) this Note will
be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof; (iii) the remaining
provisions of this Note will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance here from; and (iv) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of
this Note a legal, valid and enforceable provision as similar in terms to
such illegal, invalid or unenforceable provision as may be
possible.
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9.
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Any
notice, authorization, request or demand required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given
two days after it is sent by an internationally recognized delivery
service to the address of record of the Lender or the Borrower,
respectively. Any party may change its address for such
communications by giving notice thereof to the other parties in conformity
with this Section.
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10.
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Any
controversy or claim arising out of or relating to this Agreement, or the
breach thereof, shall be settled exclusively by binding arbitration in New
York, New York pursuant to the rules of an arbitral forum mutually agreed
upon by the parties hereto. In the event that an arbitral forum
is not agreed upon after delivery of notice by the initiating party, such
arbitration and forty-five days after confirmed receipt of such notice by
the other party, then any court having competent jurisdiction over the
Company shall have full power and authority to appoint an arbitrator in
New York, New York, who shall be a solicitor with not less than ten years
corporate law experience. The fees and costs of such
arbitration shall be paid by the non-prevailing party. If
reference to law is required for any reason, this Note shall be deemed to
be governed by and construed under the laws of the State of New
Jersey.
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A-2
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Promissory
Note
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11.
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A
default shall exist on this Note if any of the following occurs and is
continuing: (i) Failure to pay Principal and any accrued
Interest on the Note on or before the Due Date; (ii) Failure by the
Borrower to perform or observe any other covenant or agreement of the
Borrower contained in this Note; (iii) A custodian, receiver, liquidator
or trustee of the Borrower, or any other person acting under actual or
purported force of law takes ownership, possession or title to Borrower
property; (iv) any of the property of the Borrower is sequestered by court
order; (v) a petition or other proceeding, voluntary or otherwise is filed
by or against the Borrower under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of indebtedness, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in effect;
or (vi) the Borrower makes an assignment for the benefit of its creditors,
or generally fails to pay its obligations as they become due, or consents
to the appointment of or taking possession by a custodian, receiver,
liquidator or trustee of the Borrower or all or any part of its
property. Upon any such default, the Borrower shall immediately
notify the Lender, and upon notice to the Borrower, the Lender may declare
the Principal of the Note, plus accrued Interest, to be immediately due
and payable, upon which such Principal and accrued Interest shall become
due and payable immediately. Interest upon default shall
thereafter accrue at the rate of fifteen percent (15%) per annum,
calculated based on a year of 365 days and actual days elapsed from the
date of such default.
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12.
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The
Borrower, any endorser, or guarantor hereof or in the future (individually
an “Obligor”
and collectively “Obligors”)
and each of them jointly and severally: (a) waive presentment,
demand, protest, notice of demand, notice of intent to accelerate, notice
of acceleration of maturity, notice of protest, notice of nonpayment,
notice of dishonor, and any other notice required to be given under the
law to any Obligor in connection with the delivery, acceptance,
performance, default or enforcement of this Note, any endorsement or
guaranty of this Note, any pledge, security, guaranty or other documents
executed in connection with this Note; (b) consent to all delays,
extensions, renewals or other modifications of this Note, or waivers of
any term hereof or thereof, or release or discharge by the Lender of any
of Obligors, or release, substitution or exchange of any security for the
payment hereof, or the failure to act on the part of the Lender or any
indulgence shown by the Lender (without notice to or further assent from
any of Obligors), and agree that no such action, failure to act or failure
to exercise any right or remedy by the Lender shall in any way affect or
impair the Obligations (as hereinafter defined) of any Obligors or be
construed as a waiver by the Lender of, or otherwise affect, any of the
Lender's rights under this Note, under any endorsement or guaranty of this
Note; (c) if the Borrower fails to fulfill its obligations hereunder when
due, agrees to pay, on demand, all costs and expenses of enforcement of
collection of this Note or of any endorsement or guaranty hereof and/or
the enforcement of the Lender's rights with respect to, or the
administration, supervision, preservation, protection of, or realization
upon, any property securing payment hereof, including, without limitation,
all attorney's fees, costs, expenses and disbursements, including, without
further limitation, any and all fees related to any legal proceeding,
suit, mediation arbitration, out of court payment agreement, trial,
appeal, bankruptcy proceedings or any other actions of any nature
whatsoever required on the part of Lender or Lender’s representatives to
enforce this Note and the rights hereunder; and (d) waive the right
to interpose any defense, set-off or counterclaim of any nature or
description.
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A-3
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Promissory
Note
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13.
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The
Borrower will not, by amendment of its Certificate of Incorporation or
through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by
the Borrower, but will at all times in good faith assist in the carrying
out of all the provisions of this Agreement and in the taking of all such
action as may be necessary or appropriate in order to protect the rights
of the Lender of this Note against impairment. This Note shall
be enforceable against all successors and assigns of
Borrower. Borrower hereby covenants that all of its
subsidiaries and affiliates shall jointly and severally perform this
Agreement to the same and full extent on behalf of Borrower if Borrower is
unable to perform.
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14.
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This
Note and all matters related hereto shall be governed, construed and
enforced under the laws of the State of New Jersey, without regard to
conflict of law principles of any jurisdiction to the
contrary.
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15.
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This
Note supersedes all prior discussions and agreements between the parties
with respect to the subject matter hereof and thereof and contains the
sole and entire agreement between the parties hereto with respect to the
subject matter hereof.
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16.
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If
the Lender loses this Note, the Borrower shall issue an identical
replacement note to the Lender upon the Lender's delivery to the Borrower
of a customary agreement to indemnify the Borrower reasonably satisfactory
to the Borrower for any losses resulting from issuance of the replacement
note.
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17.
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The
terms and conditions of this Note shall inure to the benefit of and be
binding upon the respective successors and assigns of the
parties. Nothing in this Note, express or implied, is intended
to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities
under or by reason of this Note, except as expressly provided in this
Note.
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IN
WITNESS WHEREOF, the Borrower has caused this Note to be dated, executed and
issued on its behalf, by its duly appointed and authorized officer, as of the
____ day of ________, 20____.
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By:
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Name:
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Title:
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A-4
