PROMISSORY
NOTE
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Date of
Issuance
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December 2,
2008
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FOR VALUE RECEIVED, Asianada,
Inc. , a Delaware corporation (the “Company”),
hereby promises to pay to the order of Grupo Grandioso, LLC, with
an address of 23679 Calabassas Road, Suite 773, Calabassas, CA
91302 (the “Holder”), the aggregate principal sum of
One Million Dollars ($1,000,000.00), together with interest thereon
from the date of this Note. Interest shall accrue on the unpaid
principal balance at a rate of six percent (6%) per annum, and
shall accrue on a daily basis from the date on which principal was
advanced. Interest shall be calculated on the basis of a three
hundred and sixty-five (365) day year.
This Note has been issued pursuant to that
certain Asset Purchase Agreement, dated as of December 2, 2008 (the
“Purchase Agreement”), by and among the Company, the
Holder and Jeffrey Schwartz, relating to the acquisition of certain
assets of the Holder, as set forth therein (the “ Purchased
Assets”). Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings ascribed to such
terms in the Purchase Agreement.
(a) Subject to the conditions set forth in Section
2 hereof, the outstanding principal balance of this Note shall be
payable in 36 equal installments of principal plus accrued interest
on the principal amount being paid, each in the amount of
$30,421.94 (each, a “Payment”), the first Payment of
which, if any, shall be made following the second calendar month
(February) of 2009, and any subsequent Payments, if any, shall be
made following each calendar month thereafter (each, a
“Payment Date”). The final Payment Date shall be
following the first calendar month (January) of 2012 (the
“Final Payment Date”).
(b)
Payments on this Note, if any,
shall be made by wire transfer of immediately available funds to an
account designated by the Holder or by check sent to the Holder as
the Holder may designate for such purpose from time to time by
written notice to the Company, in such coin or currency of the
United States of America as at the time of payment shall be legal
tender for the payment of public and private debts.
(c)
The Company shall have the right to
withhold and set off against any amount due under this Note, the
amount of any claim for indemnification or payment of damages to
which the Company may be entitled under the Purchase Agreement, as
provided in Section 9.2 thereof.
2.
Condition to
Payment .
(a)
Any Payments to be made to the
Holder in accordance with Section 1(a) hereof are contingent upon
there being Sufficient Cash Flow generated by the Company with
respect to the Purchased Assets during each monthly period until
the Final Payment Date (each, a “Calendar Month”) as
determined in accordance with this Section 2. For purposes of this
Note, “Sufficient Cash Flow” shall mean, with respect
to each Calendar Month, and with respect to the Purchased Assets,
an amount equal to the cash funds derived from operations of the
Purchased Assets, but less cash funds required to pay (i) current
operating expenses, (ii) current liabilities (other than any
payments due under this Note) and (iii) necessary capital
expenditures, while maintaining a working capital cash reserve of
no less than $50,000 at all times.
(b) Within 15
days of the end of the end of each Calendar Month, the Company
shall deliver to the Holder a worksheet (the “Cash Flow
Worksheet”) prepared by the Company (or its designee) and
signed by an executive officer of the Company (other than Jeffrey
Schwartz), setting forth the Company’s good faith
determination of Sufficient Cash Flow for such Calendar Month. The
Holder shall have the right, at the Holder’s expense, at
reasonable times and upon reasonable notice, within the time period
set forth below, to examine the books and records of the Company
relating to the Purchased Assets to determine whether the
calculation of Sufficient Cash Flow is being determined in
accordance with the provisions of this Note.
(c)
Upon receipt from the Company, the
Holder shall have five days to review the Cash Flow Worksheet (the
"Review Period"). If Holder disagrees with the Company's
computation of Sufficient Cash Flow for such period, Holder may, on
or prior to the last day of the Review Period, deliver a notice to
the Company (the "Notice of Objection"), which sets forth its
objections to the Company's calculation of Sufficient Cash Flow for
the applicable period. Any Notice of Objection shall specify those
items or amounts with which Holder disagrees, together with a
detailed written explanation of the reasons for disagreement with
each such item or amount, and shall set forth Holder’s
calculation of Sufficient Cash Flow for the applicable period based
on such objections. To the extent not set forth in the Notice of
Objection, Holder shall be deemed to have agreed with the Company's
calculation of all other items and amounts contained in the Cash
Flow Worksheet. Unless Holder delivers the Notice of Objection to
the Company within the Review Period, Holder shall be deemed to
have accepted the Company's calculation of Sufficient Cash Flow for
the applicable period and the Cash Flow Worksheet for the
applicable period shall be final, conclusive and binding. If Holder
delivers the Notice of Objection to Buyer within the Review Period,
the Company and Holder shall, during the 10 days following such
delivery or any mutually agreed extension thereof, use their
commercially reasonable efforts to reach agreement on the disputed
items and amounts in order to determine the amount of Sufficient
Cash Flow for the applicable period. If, at the end of such period
or any mutually agreed extension thereof, the Company and Holder
are unable to resolve their disagreements, they shall jointly
retain and refer their disagreements to an independent accounting
firm mutually acceptable to the Company and Holder (the
"Independent Expert"). The parties shall instruct the Independent
Expert promptly to review this Section 2 and to determine solely
with respect to the disputed items and amounts so submitted whether
and to what extent, if any, the amount of Sufficient Cash Flow set
forth in the Cash Flow Worksheet requires adjustment. The
Independent Exper
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