EXHIBIT 10.9
AMENDED AND RESTATED SECURED PROMISSORY NOTE
$815,000.00 July 13, 2001
FOR VALUE RECEIVED, the undersigned, GALAXY FOODS COMPANY, a Delaware
corporation ("Maker"), promises to pay to the order of FINOVA MEZZANINE CAPITAL,
INC., a Tennessee corporation ("Payee", Payee and any subsequent holder[s]
hereof are hereinafter referred to collectively as "Holder"), at the office of
Payee at FINOVA Mezzanine Capital, Inc., Suite 200, 500 Church Street,
Nashville, Tennessee 37219, or at such other place as Holder may designate to
Maker in writing from time to time, the principal sum of EIGHT HUNDRED FIFTEEN
THOUSAND NO/100 DOLLARS ($815,000.00), together with interest on the outstanding
principal balance hereof from the date hereof at the rate of thirteen and
one-half percent (13.5%) per annum (computed on the basis of a 360-day year).
Interest only on the outstanding principal balance hereof shall be due
and payable monthly, in arrears, with the first installment being payable on the
first (1st) day of January, 2001, and subsequent installments being payable on
the first (1st) day of each succeeding month thereafter until December 29, 2001
(the "Maturity Date") at which time the entire outstanding principal balance,
together with all accrued and unpaid interest, shall be immediately due and
payable in full. If all or any portion of any payment due is not actually
received by Holder on the date such payment is due, any portion of any payment
due is not actually received by Holder on the date such payment is due, Maker,
at Holder's option, shall pay a late charge equal to 5% of the delinquent amount
together with interest on such delinquent amount at the Default Rate (as
hereinafter defined) from the date such payment is due to, and including the
date that the payment in full thereof is actually received by the Holder.
The indebtedness evidenced hereby may be prepaid in whole or in part,
at any time and from time to time, without premium or penalty. Any such
prepayment shall be credited first of any accrued and unpaid interest and then
to the outstanding principal balance hereof.
Time is of the essence of this Note. It is hereby expressly agreed that
in the event that any Event of Default shall occur under and as defined in that
certain Loan Agreement dated September 30, 1999, as amended August 3, 2000,
between Maker and Payee (the "Loan Agreement"), which Event of Default is not
cured following the giving of any applicable notice and within any applicable
cure period set forth in the Loan Agreement, then, and in such event, the entire
outstanding principal balance of the indebtedness evidenced hereby, together
with any other sums advanced hereunder, under the Loan Agreement and/or under
any other instrument or document now or hereafter evidencing, securing or in any
way relating to the indebtedness evidenced hereby, together with all unpaid
interest accrued thereon, shall, at the option of Holder and without notice to
Maker, at once become due and payable and may be collected forthwith, regardless
of the stipulated date of maturity. Upon the occurrence of any Event of Default
as set forth herein, at the option of Holder and without notice to Maker, all
accrued and unpaid interest, if any, shall be added to the outstanding principal
balance hereof, and the entire outstanding principal balance, as so adjusted,
shall bear interest thereafter until paid at any annual rate (the "Default
Rate") equal to the lesser of (i) the rate that is five percentage points (5.0%)
in excess of the above-specified interest rate, or (ii) the
maximum rate of interest allowed to be charged under applicable law (the
"Maximum Rate"), regardless of whether or not there has been an acceleration of
the payment of principal as set forth herein. All such interest shall be paid at
the time of and as a condition precedent to the curing of any such Event of
Default.
In the event this Note is placed in the hands of an attorney for
collection, or if Holder incurs any costs incident to the collection of the
indebtedness evidenced hereby, Maker and any endorsers hereof agree to pay to
Holder an amount equal to all such costs, including without limitation all
reasonable attorneys' fees and all court costs.
Presentment for payment, demand, protest and notice of demand, protest
and nonpayment are hereby waived by Maker and all other parties hereto. No
failure to accelerate the indebtedness evidenced hereby by reason of an Event o
Default hereunder, acceptance of a past-due installment or other indulgences
granted from time to time, shall be construed as a novation of this Note or as a
waiver of such right of acceleration or of the right of Holder thereafter to
insist upon strict compliance with the terms of this Note or to prevent the
exercise of such right of acceleration or any other right granted hereunder or
by applicable law. No extension of the time for payment of the indebtedness
evidenced hereby or any installment due hereunder, made by agreement with any
person now or hereafter liable for payment of the indebtedness evidenced hereby,
shall operate to release, discharge, modify, change or affect the original
liability of Maker hereunder or that of any other person now or hereafter liable
for payment of the indebtedness evidenced hereby, either in whole or in part,
unless Holder agrees otherwise in writing. This Note may not be changed orally,
but only by an agreement in writing signed by the party against whom enforcement
of any waiver, change, modification or discharge is sought.
The indebtedness and other obligations evidenced by this Note are
further evidenced by (i) the Loan Agreement and (ii) certain other instruments
and documents, as may be required to protect and preserve the rights of Maker
and Payee, as more specifically described in the Loan Agreement.
All agreements herein made are expressly limited so that in no event
whatsoever, whether by reason of advancement of proceeds hereof, acceleration of
maturity of the unpaid balance hereof or otherwise, shall the amount paid or
agreed to be paid to Holder for the use of the money advanced or to be advanced
hereunder exceed the Maximum Rate. If, from any circumstances whatsoever, the
fulfillment of any provision of this Note or any other agreement or instrument
now or hereafter evidencing, securing or in any way relating to the indebtedness
evidenced hereby shall involve the payment of interest in excess of the Maximum
Rate, then, ipso facto, the obligation to pay interest hereunder shall be
reduced to the Maximum Rate; and if from any circumstance whatsoever, Holder
shall ever receive interest, the amount of which would exceed the amount
collectible at the Maximum Rate, such amount as would be excessive interest
shall be applied to the reduction of the principal balance remaining unpaid
hereunder and not to the payment of interest. This provision shall control every
other provision in any and all other agreements and instruments existing or
hereafter arising between Maker and Holder with respect to the indebtedness
evidenced hereby.
This Note is intended as a contract under and shall be construed and
enforceable in accordance with the laws of the State of Arizona.
Maker hereby irrevocably consents to the jurisdiction of all Arizona
state courts and/or any United States District Court sitting in Maricopa County,
Arizona, for the purpose of any litigation to which Lender may be a party and
which concerns this Note or the indebtedness evidenced hereby. It is further
agreed that venue for any such action shall lie exclusively with courts sitting
in Maricopa County, Arizona unless Holder agrees to the contrary in writing.
HOLDER AND MAKER HEREBY KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT
OF COUNSEL WAIVE TRIAL BY JURY IN ANY ACTIONS, PROCEEDINGS, CLAIMS OR
COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE AT LAW OR IN EQUITY,
ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE LOAN DOCUMENTS.
As used herein, the terms "Maker" and "Holder" shall be deemed to
include their respective successors, legal representatives and assigns, whether
by voluntary action of the parties or by operation of law.
This Note is executed, in part, in renewal, amendment, restatement and
modification of, but not in novation or discharge of, the existing obligations
and indebtedness of Maker to Payee as evidenced by that Secured Promissory Note
executed and delivered in favor of Payee by Maker on December 29, 2000.
MAKER:
GALAXY FOODS COMPANY,
A Delaware corporation
By: /s/ Angelo S. Morini
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Title: Chairman, President & CEO
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