EXHIBIT 10.27
SECURED PROMISSORY NOTE
$34,095.50 Los Angeles, California
October 2, 2001
FOR VALUE RECEIVED, the undersigned, Donald D. Breen ("Borrower"),
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promises to pay to FRESH ENTERPRISES, INC., a California corporation
("Company"), or its order, the principal amount of THIRTY FOUR THOUSAND
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NINETY-FIVE DOLLARS AND FIFTY CENTS ($34,095.50), with interest from the date
hereof on the unpaid principal balance under this Note at the rate of six
percent (6%) per annum, as calculated on the basis of a 360-day year and the
actual number of days elapsed. The principal amount of this Note shall be due
and payable on the earlier to occur of the following dates (the "Maturity
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Date"): (1) November 24, 2003; (2) the date on which the indebtedness under this
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Note is accelerated as provided for under this Note or the Pledge Agreement (as
defined below); (3) the 180th day following the date of Borrower's termination
of employment with Company by reason of (i) termination by Company without just
cause; (ii) termination by mutual consent of Borrower and Company; or (iii)
termination due to Borrower's death or disability; or (4) the 90th day following
the date of Borrower's termination of employment with Company for any reason not
specified in subsection (3) above. Interest under this Note shall be due and
payable annually in arrears, with the first such payment due October 2, 2002. On
the Maturity Date the entire remaining unpaid principal balance of this Note,
together with any and all accrued and unpaid interest and any and all costs and
expenses provided for under this Note and the Pledge Agreement, shall be due and
payable.
All payments under this Note shall be made to Company or its order, in
lawful money of the United States of America and in immediately available funds
and delivered to Company by wire transfer to Company's account as set forth in
written instructions delivered by Company to Borrower prior to the Maturity Date
or at the offices of Company at its then principal place of business or at such
other place as Company or any holder hereof shall designate in writing for such
purpose from time to time. If a payment under this Note otherwise would become
due and payable on a Saturday, Sunday or legal holiday, the due date thereof
shall be extended to the next day which is not a Saturday, Sunday or legal
holiday, and interest shall be payable thereon during such extension. All
amounts due under this Note and the Pledge Agreement shall be payable without
defense, set off or counterclaim.
Each payment under this Note shall applied in the following order: (i)
to the payment of costs and expenses provided for under this Note or the Pledge
Agreement, (ii) to the payment of accrued and unpaid interest; and (iii) to the
payment of outstanding principal. Company and each holder hereof shall have the
continuing and exclusive right to apply or reverse and reapply any and all
payments under this Note.
This Note may be prepaid in whole or in part at any time, without
penalty except that interest shall be paid to the date of payment on the
principal amount prepaid. This Note shall not be assignable by either of Company
or Borrower without the written consent of the other.
Upon the occurrence of a default under this Note or the Pledge
Agreement, including, without limitation, failure to make any principal or
interest payment by the stated maturity (whether by acceleration, notice of
prepayment or otherwise) for such payment, interest shall
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thereafter accrue on the entire unpaid principal balance under this Note,
including, without limitation, any delinquent interest which has been added to
the principal amount due under this Note pursuant to the terms hereof. In
addition, upon the occurrence of a default under this Note or the Pledge
Agreement, the holder of this Note may, at its option, without notice to or
demand upon Borrower or any other party, declare immediately due and payable the
entire principal balance hereof together with all accrued and unpaid interest
thereon, plus any other amounts then owing pursuant to this Note or the Pledge
Agreement, whereupon the same shall be immediately due and payable. On each
anniversary of the date of any default under this Note and while such default is
continuing, all interest which has become payable and is then delinquent shall,
without curing the default under this Note by reason of such delinquency, be
added to the principal amount due under this Note, and shall thereafter bear
interest at the same rate as is applicable to principal, with interest on
overdue interest to bear interest, in each case to the fullest extent permitted
by applicable law, both before and after default, maturity, foreclosure,
judgment and the filing of any petition in a bankruptcy proceeding. In no event
shall interest be charged under this Note which would violate any applicable
law.
This Note is secured under that certain Repayment and Stock Pledge
Agreement, dated the date hereof, between Borrower and Company (as amended from
time to time, the "Pledge Agreement"). Reference is hereby made to the Pledge
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Agreement for a description of the nature and extent of the security for this
Note and the rights with respect to such security of the holder of this Note.
Nothing herein shall be deemed to limit the rights of the Company under this
Note or the Pledge Agreement, all of which rights and remedies are cumulative.
No waiver or modification of any of the terms of this Note shall be
valid or binding unless set forth in a writing specifically referring to this
Note and signed by a duly authorized officer of Company or any holder of this
Note, and then only to the extent specifically set forth therein.
If any default occurs in any payment due under this Note, Borrower and
all guarantors and endorsers hereof, and their successors and assigns, promise
to pay all costs and expenses, including attorneys' fees, incurred by each
holder hereof in collecting or attempting to collect the indebtedness under this
Note, whether or not any action or proceeding is commenced. None of the
provisions hereof and none of the holder's rights or remedies under this Note on
account of any past or future defaults shall be deemed to have been waived by
the holder's acceptance of any past due installments or by any indulgence
granted by the holder to Borrower.
Borrower and all guarantors and endorsers hereof, and their successors
and assigns, hereby waive presentment, demand, diligence, protest and notice of
every kind (except such notices as may be required under the Pledge Agreement),
and agree that, subject to the limitations set forth in the Pledge Agreement,
they shall remain liable for amounts due under this Note notwithstanding any
extension of time or change in the terms of payment of this Note granted by any
holder hereof, any change, alteration or release of any property now or
hereafter securing the payment hereof or any delay or failure by the holder
hereof to exercise any rights under this Note or the Pledge Agreement. Borrower
and all guarantors and endorsers hereof, and their successors and assigns,
hereby waive the right to plead any and all statutes of limitation as a defense
to a demand under this Note to the fullest extent permitted by law.
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This Note shall inure to the benefit of Company, its successors and
assigns and shall bind the heirs, executors, administrators, successors and
assigns of Borrower. Each reference herein to powers or rights of Company shall
also be deemed a reference to the same power or right of such assignees, to the
extent of the interest assigned to them.
In the event that any one or more provisions of this Note shall be held
to be illegal, invalid or otherwise unenforceable, the same shall not affect any
other provision of this Note and the remaining provisions of this Note shall
remain in full force and effect.
This Note shall be governed by and construed in accordance with the
laws of the State of California, without giving effect to the principles thereof
relating to conflicts of law; provided, that Company and each holder hereof
reserves any and all rights it may have under federal law, including without
limitation those relating to the charging of interest.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed
the day and year first above written.
/s/ Donald D. Breen
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Donald D. Breen
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