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EXHIBIT 10.2
AMENDED AND RESTATED PROMISSORY NOTE
July 28, 2000 $450,000.00
FOR VALUE RECEIVED, the undersigned, Fresh America Corp. ("Maker"),
hereby promises to pay to Henry Beyer ("Payee") the principal amount of
$450,000.00, together with interest on the outstanding portion thereof for the
period such sums are unpaid, all in accordance with the provisions of this Note.
Payment of Principal and Interest.
---------------------------------
(a) The principal of and interest upon this Note shall be
due and payable as follows:
1. $30,000, on or before July 31, 2000;
2. Twenty-four (24) monthly payments of $11,250
due on the first day of each calendar month
commencing September 1, 2000 and continuing
thereafter until August 1, 2002;
3. $105,000, payable on January 1, 2002;
4. $45,000, payable on August 1, 2002; and
5. Interest will accrue on the unpaid principal
balance and will be paid or cancelled in
accordance with paragraph 3 hereinbelow.
Should any payment on this Note be due and payable on any day
other than a business day, the maturity thereof will be
extended to the next succeeding business day and interest will
be payable with respect to such extension.
(b) Subject to the preceding paragraph, interest
hereunder shall be computed on the basis of the
actual number of days elapsed based on a 365 or 366
day year, as the case may be, and will accrue at an
annual rate of ten percent (10%).
(c) Notwithstanding any provision to the contrary
contained in this Note, it is expressly agreed and
provided that the total liability of Maker hereunder
for payments in the nature of interest shall not
exceed the maximum lawful rate authorized under the
laws of the State of Texas or such greater rate as
may be authorized by other governmental authority
applicable to the indebtedness evidenced hereby (the
"Maximum Rate"), and, without limiting the foregoing,
in no event shall the rate of interest or default
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interest, or both of them, when aggregated with any
other sums in the nature of interest which Maker may
be obligated to pay hereunder exceed such Maximum
Rate. It is agreed that if the maximum contract rate
of interest allowed by law and applicable to this
Note is increased or decreased by statute or any
official action of the State of Texas or the United
States of America subsequent to the date hereof, the
new maximum contract rate of interest allowed by law
will be the Maximum Rate of interest applicable to
this Note from the effective date forward, unless
such application is precluded by applicable statute,
official action, or rule of law. If under any
circumstances whatsoever, interest in excess of the
Maximum Rate is paid to the holder of this Note by
Maker in connection with the indebtedness evidenced
by this Note, such excess shall be applied by the
holder to the unpaid principal balance of this Note
or be refunded to Maker, the manner of handling such
excess to be at the holder's election.
6. Voluntary Prepayments. Maker may voluntarily prepay all or any part
of the outstanding principal amount and all accrued interest on this Note at any
time and from time to time without premium or penalty. Any payments made to
Payee by Maker hereunder will be applied to principal in the inverse order of
maturities.
7. Payment of Interest. If every principal payment due hereunder is
paid within ten days of its respective due date, then all accrued and unpaid
interest on the principal amount hereof shall be cancelled, and this Note shall
be paid in full. If, however, any principal payment is not made within ten days
of its respective due date, the accrued interest provided for in paragraph 1
above will become due and payable on the earlier of July 1, 2002, or the date
that the Payee elects to declare the entire unpaid balance of principal and
accrued interest immediately due and payable under paragraph 11 below.
8. Waivers. Demand, presentment, protest and notice of nonpayment and
protest are hereby waived by Maker.
9. Events of Default. An "Event of Default" will exist hereunder if any
one or more of the following events occurs and is continuing:
(a) Maker fails to pay when due any of the payments set
forth in paragraph 1 (a) above within ten days after
the due date for the respective payment;
(b) Maker (i) applies for or consents to the appointment
of a receiver, trustee, custodian, intervenor or
liquidator of Maker or of all or a substantial part
of its assets, (ii) files a voluntary petition in
bankruptcy, admits in writing that it is unable to
pay its debts as they become due, (iii) makes a
general assignment for the benefit of creditors, (iv)
files a petition or answer
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seeking reorganization or an arrangement with
creditors or to take advantage of, or consents to, or
defaults in answering, a petition filed against it in
any bankruptcy, reorganization or insolvency
proceeding, or (vi) takes corporate action for the
purpose of effecting any of the foregoing;
(c) An involuntary petition or complaint is filed against
Maker seeking bankruptcy or reorganization or the
appointment of a receiver, custodian, trustee,
intervenor or liquidator of Maker, or of all or
substantially all of its assets, and such petition or
complaint is not dismissed within 30 days of the
filing thereof, or an order, order for relief,
judgment or decree is entered by any court of
competent jurisdiction or other competent authority
approving a petition or complaint seeking
reorganization of Maker or appointing a receiver,
custodian, trustee, intervenor or liquidator of
Maker, or of all or substantially all of its assets;
or
(d) Maker breaches its agreement to issue warrants for
90,000 shares of Maker's common stock within five
business days of the date hereof pursuant to that
certain Amendment to Stock Purchase Documents, dated
the date hereof, by and among Maker, Payee and the
other sellers party thereto, or Maker fails to issue
shares of its common stock to Payee upon proper
exercise of such warrant.
10. No Setoff for Purchase Agreement. Maker acknowledges that payment
under this Note may not be withheld, excused or setoff for any indemnification
or other claim that Maker may have against Payee for breaches of the Stock
Purchase Agreement, dated October 30, 1998, by and among Maker, Payee and the
other shareholders party thereto, or any other document executed in connection
therewith.
11. Remedies. Upon the occurrence of any Event of Default, the holder
hereof may, at its option, declare the entire unpaid balance of principal and
accrued interest on this Note to be immediately due and payable; provided that
upon the occurrence of any of the Events of Default pursuant to paragraph 9(b)
or 9(c) above, this Note will, without any action by Payee, immediately become
due and payable without demand for payment, presentment, protest, notice of
protest and non-payment, or other notice of default, notice of acceleration and
intention to accelerate or any other notice, all of which are expressly waived
by Maker.
12. Binding Effect. This Note will be binding on and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors, legal representatives and permitted assigns.
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13. Attorneys Fees. Upon the bringing of any legal action to enforce
the terms of this Note, the prevailing party will be entitled recovery of its
reasonable attorneys' fees and all costs incurred in addition to any other
relief that such party may be entitled to.
14. Amendment and Restatement. This Note is given in amendment,
restatement, renewal and extension of that certain Promissory Note, dated
November 1, 1998, in the original principal amount of $1,050,000 by Maker
payable to the order of Payee.
Executed as of the date first written above.
FRESH AMERICA CORP.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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AMENDED AND RESTATED PROMISSORY NOTE
July 28, 2000 $525,000.00
FOR VALUE RECEIVED, the undersigned, Fresh America Corp. ("Maker"),
hereby promises to pay to Sam Perricone, Sr. ("Payee") the principal amount of
$525,000.00, together with interest on the outstanding portion thereof for the
period such sums are unpaid, all in accordance with the provisions of this Note.
Payment of Principal and Interest.
(a) The principal of and interest upon this Note shall be
due and payable as follows:
1. $35,000, on or before July 31, 2000;
2. Twenty-four (24) monthly payments of $13,125
due on the first day of each calendar month
commencing September 1, 2000 and continuing
thereafter until August 1, 2002;
3. $122,500, payable on January 1, 2002;
4. $52,500, payable on August 1, 2002; and
5. Interest will accrue on the unpaid principal
balance and will be paid or cancelled in
accordance with paragraph 3 hereinbelow.
Should any payment on this Note be due and payable on any day
other than a business day, the maturity thereof will be
extended to the next succeeding business day and interest will
be payable with respect to such extension.
(b) Subject to the preceding paragraph, interest
hereunder shall be computed on the basis of the
actual number of days elapsed based on a 365 or 366
day year, as the case may be, and will accrue at an
annual rate of ten percent (10%).
(c) Notwithstanding any provision to the contrary
contained in this Note, it is expressly agreed and
provided that the total liability of Maker hereunder
for payments in the nature of interest shall not
exceed the maximum lawful rate authorized under the
laws of the State of Texas or such greater rate as
may be authorized by other governmental authority
applicable to the indebtedness evidenced hereby (the
"Maximum Rate"), and, without limiting the foregoing,
in no event shall the rate of interest or default
interest, or both of them, when aggregated with any
other sums in the nature of interest which Maker may
be obligated to pay hereunder exceed
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such Maximum Rate. It is agreed that if the maximum
contract rate of interest allowed by law and
applicable to this Note is increased or decreased by
statute or any official action of the State of Texas
or the United States of America subsequent to the
date hereof, the new maximum contract rate of
interest allowed by law will be the Maximum Rate of
interest applicable to this Note from the effective
date forward, unless such application is precluded by
applicable statute, official action, or rule of law.
If under any circumstances whatsoever, interest in
excess of the Maximum Rate is paid to the holder of
this Note by Maker in connection with the
indebtedness evidenced by this Note, such excess
shall be applied by the holder to the unpaid
principal balance of this Note or be refunded to
Maker, the manner of handling such excess to be at
the holder's election.
6. Voluntary Prepayments. Maker may voluntarily prepay all or any part
of the outstanding principal amount and all accrued interest on this Note at any
time and from time to time without premium or penalty. Any payments made to
Payee by Maker hereunder will be applied to principal in the inverse order of
maturities.
7. Payment of Interest. If every principal payment due hereunder is
paid within ten days of its respective due date, then all accrued and unpaid
interest on the principal amount hereof shall be cancelled, and this Note shall
be paid in full. If, however, any principal payment is not made within ten days
of its respective due date, the accrued interest provided for in paragraph 1
above will become due and payable on the earlier of July 1, 2002, or the date
that the Payee elects to declare the entire unpaid balance of principal and
accrued interest immediately due and payable under paragraph 11 below.
8. Waivers. Demand, presentment, protest and notice of nonpayment and
protest are hereby waived by Maker.
9. Events of Default. An "Event of Default" will exist hereunder if any
one or more of the following events occurs and is continuing:
(a) Maker fails to pay when due any of the payments set
forth in paragraph 1 (a) above within ten days after
the due date for the respective payment;
(b) Maker (i) applies for or consents to the appointment
of a receiver, trustee, custodian, intervenor or
liquidator of Maker or of all or a substantial part
of its assets, (ii) files a voluntary petition in
bankruptcy, admits in writing that it is unable to
pay its debts as they become due, (iii) makes a
general assignment for the benefit of creditors, (iv)
files a petition or answer seeking reorganization or
an arrangement with creditors or to take advantage
of, or consents to, or defaults in answering, a
petition filed
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against it in any bankruptcy, reorganization or
insolvency proceeding, or (vi) takes corporate action
for the purpose of effecting any of the foregoing;
(c) An involuntary petition or complaint is filed against
Maker seeking bankruptcy or reorganization or the
appointment of a receiver, custodian, trustee,
intervenor or liquidator of Maker, or of all or
substantially all of its assets, and such petition or
complaint is not dismissed within 30 days of the
filing thereof, or an order, order for relief,
judgment or decree is entered by any court of
competent jurisdiction or other competent authority
approving a petition or complaint seeking
reorganization of Maker or appointing a receiver,
custodian, trustee, intervenor or liquidator of
Maker, or of all or substantially all of its assets;
or
(d) Maker breaches its agreement to issue warrants for
105,000 shares of Maker's common stock within five
business days of the date hereof pursuant to that
certain Amendment to Stock Purchase Documents, dated
the date hereof, by and among Maker, Payee and the
other sellers party thereto, or Maker fails to issue
shares of its common stock to Payee upon proper
exercise of such warrant.
10. No Setoff for Purchase Agreement. Maker acknowledges that payment
under this Note may not be withheld, excused or setoff for any indemnification
or other claim that Maker may have against Payee for breaches of the Stock
Purchase Agreement, dated October 30, 1998, by and among Maker, Payee and the
other shareholders party thereto, or any other document executed in connection
therewith.
11. Remedies. Upon the occurrence of any Event of Default, the holder
hereof may, at its option, declare the entire unpaid balance of principal and
accrued interest on this Note to be immediately due and payable; provided that
upon the occurrence of any of the Events of Default pursuant to paragraph 9(b)
or 9(c) above, this Note will, without any action by Payee, immediately become
due and payable without demand for payment, presentment, protest, notice of
protest and non-payment, or other notice of default, notice of acceleration and
intention to accelerate or any other notice, all of which are expressly waived
by Maker.
12. Binding Effect. This Note will be binding on and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors, legal representatives and permitted assigns.
13. Attorneys Fees. Upon the bringing of any legal action to enforce
the terms of this Note, the prevailing party will be entitled recovery of its
reasonable attorneys' fees and all costs incurred in addition to any other
relief that such party may be entitled to.
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14. Amendment and Restatement. This Note is given in amendment,
restatement, renewal and extension of that certain Promissory Note, dated
November 1, 1998, in the original principal amount of $1,225,000 by Maker
payable to the order of Payee.
Executed as of the date first written above.
FRESH AMERICA CORP.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
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AMENDED AND RESTATED PROMISSORY NOTE
July 28, 2000 $525,000.00
FOR VALUE RECEIVED, the undersigned, Fresh America Corp. ("Maker"), hereby
promises to pay to the Sam Perricone Children's Trust ("Payee") the principal
amount of $525,000.00, together with interest on the outstanding portion thereof
for the period such sums are unpaid, all in accordance with the provisions of
this Note.
Payment of Principal and Interest.
(a) The principal of and interest upon this Note shall be
due and payable as follows:
1. $35,000, on or before July 31, 2000;
2. Twenty-four (24) monthly payments of $13,125
due on the first day of each calendar month
commencing September 1, 2000 and continuing
thereafter until August 1, 2002;
3. $122,500, payable on January 1, 2002;
4. $52,500, payable on August 1, 2002; and
5. Interest will accrue on the unpaid principal
balance and will be paid or cancelled in
accordance with paragraph 3 hereinbelow.
Should any payment on this Note be due and payable on any day
other than a business day, the maturity thereof will be
extended to the next succeeding business day and interest will
be payable with respect to such extension.
(b) Subject to the preceding paragraph, interest
hereunder shall be computed on the basis of the
actual number of days elapsed based on a 365 or 366
day year, as the case may be, and will accrue at an
annual rate of ten percent (10%).
(c) Notwithstanding any provision to the contrary
contained in this Note, it is expressly agreed and
provided that the total liability of Maker hereunder
for payments in the nature of interest shall not
exceed the maximum lawful rate authorized under the
laws of the State of Texas or such greater rate as
may be authorized by other governmental authority
applicable to the indebtedness evidenced hereby (the
"Maximum Rate"), and, without limiting the foregoing,
in no event shall the rate of interest or default
interest, or both of them, when aggregated with any
other sums in the nature of interest which Maker may
be obligated to pay hereunder exceed such Maximum
Rate. It is agreed that if the maximum contract rate
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of interest allowed by law and applicable to this
Note is increased or decreased by statute or any
official action of the State of Texas or the United
States of America subsequent to the date hereof, the
new maximum contract rate of interest allowed by law
will be the Maximum Rate of interest applicable to
this Note from the effective date forward, unless
such application is precluded by applicable statute,
official action, or rule of law. If under any
circumstances whatsoever, interest in excess of the
Maximum Rate is paid to the holder of this Note by
Maker in connection with the indebtedness evidenced
by this Note, such excess shall be applied by the
holder to the unpaid principal balance of this Note
or be refunded to Maker, the manner of handling such
excess to be at the holder's election.
6. Voluntary Prepayments. Maker may voluntarily prepay all or any part
of the outstanding principal amount and all accrued interest on this Note at any
time and from time to time without premium or penalty. Any payments made to
Payee by Maker hereunder will be applied to principal in the inverse order of
maturities.
7. Payment of Interest. If every principal payment due hereunder is
paid within ten days of its respective due date, then all accrued and unpaid
interest on the principal amount hereof shall be cancelled, and this Note shall
be paid in full. If, however, any principal payment is not made within ten days
of its respective due date, the accrued interest provided for in paragraph 1
above will become due and payable on the earlier of July 1, 2002, or the date
that the Payee elects to declare the entire unpaid balance of principal and
accrued interest immediately due and payable under paragraph 11 below.
8. Waivers. Demand, presentment, protest and notice of nonpayment and
protest are hereby waived by Maker.
9. Events of Default. An "Event of Default" will exist hereunder if any
one or more of the following events occurs and is continuing:
(a) Maker fails to pay when due any of the payments set
forth in paragraph 1 (a) above within ten days after
the due date for the respective payment;
(b) Maker (i) applies for or consents to the appointment
of a receiver, trustee, custodian, intervenor or
liquidator of Maker or of all or a substantial part
of its assets, (ii) files a voluntary petition in
bankruptcy, admits in writing that it is unable to
pay its debts as they become due, (iii) makes a
general assignment for the benefit of creditors, (iv)
files a petition or answer seeking reorganization or
an arrangement with creditors or to take advantage
of, or consents to, or defaults in answering, a
petition filed against it in any bankruptcy,
reorganization or insolvency proceeding, or
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(vi) takes corporate action for the purpose of
effecting any of the foregoing;
(c) An involuntary petition or complaint is filed against
Maker seeking bankruptcy or reorganization or the
appointment of a receiver, custodian, trustee,
intervenor or liquidator of Maker, or of all or
substantially all of its assets, and such petition or
complaint is not dismissed within 30 days of the
filing thereof, or an order, order for relief,
judgment or decree is entered by any court of
competent jurisdiction or other competent authority
approving a petition or complaint seeking
reorganization of Maker or appointing a receiver,
custodian, trustee, intervenor or liquidator of
Maker, or of all or substantially all of its assets;
or
(d) Maker breaches its agreement to issue warrants for
105,000 shares of Maker's common stock within five
business days of the date hereof pursuant to that
certain Amendment to Stock Purchase Documents, dated
the date hereof, by and among Maker, Payee and the
other sellers party thereto, or Maker fails to issue
shares of its common stock to Payee upon proper
exercise of such warrant.
10. No Setoff for Purchase Agreement. Maker acknowledges that payment
under this Note may not be withheld, excused or setoff for any indemnification
or other claim that Maker may have against Payee for breaches of the Stock
Purchase Agreement, dated October 30, 1998, by and among Maker, Payee and the
other shareholders party thereto, or any other document executed in connection
therewith.
11. Remedies. Upon the occurrence of any Event of Default, the holder
hereof may, at its option, declare the entire unpaid balance of principal and
accrued interest on this Note to be immediately due and payable; provided that
upon the occurrence of any of the Events of Default pursuant to paragraph 9(b)
or 9(c) above, this Note will, without any action by Payee, immediately become
due and payable without demand for payment, presentment, protest, notice of
protest and non-payment, or other notice of default, notice of acceleration and
intention to accelerate or any other notice, all of which are expressly waived
by Maker.
12. Binding Effect. This Note will be binding on and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors, legal representatives and permitted assigns.
13. Attorneys Fees. Upon the bringing of any legal action to enforce
the terms of this Note, the prevailing party will be entitled recovery of its
reasonable attorneys' fees and all costs incurred in addition to any other
relief that such party may be entitled to.
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14. Amendment and Restatement. This Note is given in amendment,
restatement, renewal and extension of that certain Promissory Note, dated
November 1, 1998, in the original principal amount of $1,225,000 by Maker
payable to the order of Payee.
Executed as of the date first written above.
FRESH AMERICA CORP.
By:
--------------------------------------------
Name:
-------------------------------------------
Title:
-----------------------------------------
12
