exv10w21






Exhibit 10.21




PROMISSORY NOTE




			
	U.S. $1,500,000.00
	 	August 9, 2010






     1. Parties.




          1.1 SWISHER INTERNATIONAL, INC., a Nevada corporation (the “Borrower”).




          1.2 ROYAL PALM MORTGAGE GROUP, LLC., a Florida limited liability company, its successors and
assigns (“Lender”).



     2. Borrower’s Promise to Pay. Borrower promises to pay to the order of Lender, in
lawful money of the United States of America, the sum of One Million Five Hundred Thousand and
No/100 Dollars ($1,500,000.00), with interest thereon at the rate and on the terms set forth in
this Promissory Note (including all renewals, extensions, or modifications hereof, the “Note”).



     3. Interest. Interest on the outstanding Principal balance shall be payable at the
short-term Applicable Federal Rate announced by the U.S. Treasury Department. Interest will begin
to accrue as of the date of this Note. The interest rate shall adjust on a monthly basis as the
short-term Applicable Federal Rate adjusts. Interest shall be calculated on the basis of the
actual number of days elapsed divided by 365.



     4. Payments and Maturity Date. The Borrower shall make payments under this Note in
the following amounts and at the following times:




          4.1 Internal Payments. Interest shall accrue on the outstanding Principal balance of
this Note and shall be payable as of the Maturity Date unless accelerated pursuant to the
provisions of this Note. If Borrower prepays this Note each prepayment shall also include payment
of all accrued interest through the prepayment date.




          4.2 Maturity Date. If not earlier paid the outstanding Principal plus all accrued
interest and any other amounts due under the terms of this Note shall be due and payable in full to
Lender on the earlier of (i) the effective time of the merger contemplated by the terms of that
certain Agreement and Plan of Merger among CoolBrands International, Inc. (“CoolBrands”),
CoolBrands International (Nevada), Inc., the Borrower and Steven R. Berrard dated as of August 17,
2010 (the “Merger Agreement”), or (ii) January 1, 2011.




               4.2.1 All payments made by Borrower under this Note will be recorded by Lender, and such
records shall be presumptive evidence as to the existence and amounts paid and outstanding.
Payments of Principal and interest by the Borrower shall be credited to the amount outstanding
under this Note upon the Business Day received by Lender in cash.




               4.2.2 For purposes hereof, “Business Day” means a day that is not a Saturday, a
Sunday, or a day on which national banks in the State of Florida are closed pursuant to
authorization or requirement of law.



 









 






               4.2.3 Should any payment become due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day, and, in the case of any
payment of Principal, interest shall be payable thereon at the Interest Rate specified in this Note
during such extension.



     5. Application of Payments. All payments under this Note shall first be applied to
charges, costs, and expenses incurred by Lender whether before or after an Event of Default and
Default Interest, then to interest and the remainder to Principal.



     6. Prepayment. This Note may be prepaid in whole or in part without premium or
penalty at any time and from time to time; provided that any prepayment shall be applied first to
accrued and unpaid interest, and then to Principal.



     7. Late Charge. A late charge of five percent (5%) of any payment required to be made
pursuant to the terms of this Note, shall be imposed on any payment which is not received within
ten (10) days of the date such payment is due. This late charge is not a penalty, but liquidated
damages to defray administrative and related expenses caused Lender due to such late payment. The
late charge shall be immediately due and payable, and shall be paid by Borrower to Lender without
notice or demand. This provision for a late charge is not, and shall not be deemed, to effect a
grace period and Lender shall be entitled to exercise all of the rights and remedies otherwise
provided herein upon an Event of Default. Acceptance by Lender of any late payment without payment
of the late charge shall not be deemed a waiver of Lender’s right to collect such late charge or to
collect a late charge for any subsequent late payment received.



     8. Place of Payment. Payment to Lender of Principal and all other payments due under
this Note shall be made at the location and in the manner designated by Lender from time to time.



     9. Event of Default.




          9.1 The following events shall constitute “Events of Default”:




               9.1.1 Borrower fails to make payment when due of any Principal, interest, or other amount due
under this Note, and any applicable grace or cure period has expired.




               9.1.2 Any representation or warranty made by Borrower in this Note, shall be false or
misleading in any material respect.




               9.1.3 Borrower fails to fully and promptly perform when due any agreement, covenant, term, or
condition binding on it contained in this Note.




               9.1.4 The liquidation or dissolution of Borrower, or the filing or commencement by Borrower of
a voluntary petition or other action seeking reorganization, arrangement, readjustment of its
debts, or any other relief under any law relating to bankruptcy, insolvency, reorganization or
relief of debtors; or the application by Borrower for, or the appointment, by consent or
acquiescence of, a receiver, trustee, custodian, or other similar official for Borrower or for all
or a substantial part of its property or assets; the making by
Borrower of an assignment for the benefit of creditors; or the inability of Borrower or the
admission by Borrower in writing of its inability to pay its debts as they mature.



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               9.1.5 The commencement without being vacated or dismissed within sixty (60) days of the filing
or appointment date: (a) of an involuntary petition or other action against Borrower seeking
reorganization, arrangement, readjustment of its debts, or any other relief under any law relating
to bankruptcy, insolvency, reorganization, or relief of debtors; or (b) the involuntary appointment
of a receiver, trustee, custodian, or other similar official for Borrower or for all or a
substantial part of Borrower’s property or assets.




               9.1.6 A Change of Control shall occur with respect to the Borrower. For purposes hereof, a
“Change of Control” means (i) a reorganization, merger, or consolidation of the Borrower where
those persons who were equity holders of the Borrower prior to such reorganization, merger or
consolidation do not immediately thereafter own directly or indirectly with their Affiliates more
than fifty percent (50%) of the combined voting power of the reorganized, merged or consolidated
entity; (ii) the sale of all or substantially all of the assets of the Borrower; or (iii) the
issuance and sale of newly issued equity securities of the Borrower or the sale or other transfer
of existing equity securities by the equity holders of the Borrower which will result in the
Borrower’s equity holders immediately prior to such transaction holding directly or indirectly with
their Affiliates less than fifty percent (50%) of the combined voting power of the surviving,
continuing or resulting entity. For purposes hereof “Affiliate” means, with respect to any person,
(i) any person directly or indirectly controlling, controlled by, or under common control with such
person; (ii) any person owning and controlling twenty-five percent (25%) or more of the outstanding
voting interest of such person; (iii) any officer, director, manager or trustee of such person; or
(iv) any person who is an officer, director, manager or trustee of any person described in clauses
(i) through (iii) of this paragraph. Notwithstanding the foregoing, Change of Control shall not
include the consummation of the transaction contemplated by the Merger Agreement or the
re-domestication of the Borrower or CoolBrands under the laws of Delaware or any other U. S.
jurisdiction.



Notwithstanding the foregoing, an Event of Default under Section 9.1.1 shall not be deemed to have
occurred if payment is received within ten (10) days of the date such payment is due provided that
no such grace period shall apply to any payment due as of the Maturity Date, and any Event of
Default under Sections 9.1.2 or 9.1.3 shall not be deemed to have occurred if the matter described
therein is cured within twenty (20) days after the giving of written notice of breach by Lender to
Borrower.




          9.2 Upon an Event of Default under this Note, the entire unpaid Principal balance of this Note
and all accrued and unpaid interest, shall be immediately due and payable without notice or demand.




          9.3 Upon an Event of Default under this Note, interest shall accrue on the unpaid Principal
balance then outstanding under this Note at the lesser of the rate of twelve percent (12%) per
annum or the maximum rate permitted by applicable law, from the date of default (the “Default
Rate”).



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          9.4 In addition to payment of the Default Rate, Lender shall be entitled to recover from the
Borrower all of Lender’s costs and expenses of collection, including Lender’s accountants’ and
attorneys’ (including paralegals, and similar persons’) fees, whether for services incurred in
collection, litigation, arbitration, bankruptcy proceedings, appeals, or otherwise, and all other
costs and expenses incurred in connection with such activities or proceedings, within five (5) days
of demand, with interest on such costs and expenses at the Default Rate.




          9.5 The Default Rate of interest shall be calculated on the basis of the actual number of days
elapsed based on a 365-day year and shall be based on the entire Principal outstanding as of the
default and accrued interest up to such date.




          9.6 Notwithstanding any other provision of this Note, neither the Default Rate, nor any other
charge in the nature of interest shall exceed the maximum interest rate permitted by applicable
law, rule, or regulation in effect from time to time; and it is the understanding and intention of
the parties that the Borrower does not intend or expect to pay, nor does Lender intend or expect to
charge, accept, or collect, any interest greater than the highest rate of interest which may be
charged under applicable law, rule, or regulation in effect from time to time.



     10. Borrowers Representations and Warranties. To induce Lender to make the loan
evidenced by this Note, Borrower represents and warrants to Lender as follows:




          10.1 Borrower is a corporation duly incorporated and organized, validly existing, and in good
standing under the laws of the state of its incorporation. Borrower has all requisite power to own
and operate its properties and to carry on its business as now being conducted. Borrower is duly
qualified as a foreign corporation to do business in every jurisdiction in which the nature of its
business or the ownership of its properties makes such qualification necessary and is in good
standing in such jurisdictions, except where the failure to be qualified will not have a material
adverse effect on Borrower.




          10.2 Borrower has the corporate power and authority and the legal right to execute and deliver
this Note and to perform its obligations hereunder and has taken all corporate action necessary to
authorize the execution, delivery, and performance of this Note and the transactions contemplated
thereby. The execution, delivery, and performance by Borrower of this Note will not contravene,
conflict with, result in the breach of, or constitute a violation of or default under: (i) the
articles of incorporation, governing documents, or bylaws of Borrower, (ii) to its knowledge any
applicable law, rule, regulation, judgment, order, writ, injunction, or decree of any court or
governmental authority, or (iii) any agreement or instrument to which Borrower is a party or by
which Borrower or its property may be bound or affected which would cause a material adverse effect
on Borrower. No consent, license, or authorization of, or filing with, or notice to, any person or
entity (including, without limitation, any governmental authority), is necessary or required in
connection with the execution, delivery, performance, validity, or enforceability of this Note.




          10.3 The execution and delivery of this Note to Lender constitutes the legal, valid, and
binding obligation of Borrower and is enforceable against Borrower in accordance with its terms.



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     11. Waivers. Except as may be specifically provided in this Note to the contrary, the
Borrower and any endorsers, sureties, guarantors, and all others who are, or may become, liable for
payment of this Note (jointly and severally, the “Obligors”) jointly and severally (a)
consent to all extensions of time, all renewals, postponements of the time of the payment of this
Note, or other modifications of this Note made from time to time before or after the Maturity Date,
(b) agree to any substitution, exchange, addition, or release of any security securing the payment
of this Note or the addition or release of any party or person primarily or secondarily liable on
this Note, (c) agree that Lender shall not be required first to institute any suit, or to exhaust
its remedies, against the undersigned or any other person or party to become liable under this Note
or against the security in order to enforce the payment of this Note, and (d) agree that,
notwithstanding the occurrence of any of the foregoing (except by the express written release by
Lender of any such person), the undersigned shall be and remain, directly and primarily, liable for
all sums due under this Note.



     12. Governing Law and Venue. This Note shall be governed by and construed in
accordance with the laws of the State of Florida without regard to conflicts of laws principles.
Any suit based on this Note shall be brought in the state or federal courts sitting in Broward
County, Florida, and Borrower and Lender by its acceptance of this Note knowingly and voluntarily
waive any claim or defense that such forum is not convenient or proper. Borrower and Lender by its
acceptance of this Note hereby agree that such court shall have in personam jurisdiction over it
and consents to service of process in any manner authorized by Florida law.



     13. Waiver of Trial by Jury. Borrower, and Lender by its acceptance of this Note,
hereby knowingly, voluntarily and intentionally waive the right it may have to a trial by jury in
respect of any litigation based on this Note or rising out of, under or in connection with this
Note, or any course of conduct, course of dealing, statements (whether verbal or written) or
actions of either party.



     14. Invalidity. Any provision of this Note which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction only, be ineffective only to the extent of such
prohibition or unenforceability, without invalidating the remaining provisions of this Note or
affecting the validity or enforceability of such provision in any other jurisdiction. In the event
that any law invalidating such a provision may be waived, it is hereby waived by the Borrower to
the fullest extent permitted by law and this Note shall be deemed to be a valid and binding
obligation enforceable against the Borrower in accordance with its terms.



     15. Remedies. The rights of Lender arising under this Note, and the rights allowed or
permitted Lender by law or equity, shall be separate, distinct, and cumulative, and the selection
of one remedy shall not preclude the selection of another or other remedies. Without limiting the
generality of the foregoing, Borrower agrees to pay or reimburse Lender for, and indemnify and hold
Lender harmless from and against liability for, any and all documentary stamp taxes, non-recurring
intangible taxes, or other taxes, together with any interest, penalties or other liabilities in
connection with such failure to pay documentary stamp taxes, and any other taxes, that Lender now
or hereafter incurs with respect to this Note. The agreements contained in this section shall
survive repayment of all amounts payable hereunder or pursuant hereto, now or in the future.



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     16. Indemnification. The Borrower agrees to indemnify, save and hold harmless the
Lender, its affiliates, designees, and successors and assigns, and their respective directors,
officers, agents, attorneys and employees (collectively the “Indemnitees”) from and against
any and all claims, demands, actions or causes of action that are asserted against any Indemnitee
by any person relating directly or indirectly to a claim, demand, action or cause of action arising
under this Note, and this indemnity obligation includes any and all liabilities, losses, costs or
expenses (including legal fees) that any Indemnitee suffers or incurs as a result of the assertion
of any claim, demand, action, cause of action or proceeding, or as a result of the preparation of
any defense in connection with any claim, demand, action, cause of action or proceeding, provided
that no Indemnitee shall be entitled to indemnification for any loss caused by its own gross
negligence or willful misconduct. This provision shall survive the repayment of all amounts payable
hereunder or pursuant hereto, now or in the future.



     17. Miscellaneous Provisions. Time shall be of the essence as to the Borrower’s
obligations under this Note. The captions of sections of this Note are for convenient reference
only, and shall not affect the construction or interpretation of any of the terms and provisions
set forth in this Note. This Note may not be amended, extended, renewed, or modified, and no
waiver of any provision of this Note shall be effective, except by an instrument in writing
executed by Lender. Any waiver of any provision of this Note shall be in writing and effective
only in the specific instance and for the specific purpose for which given.



     This Note is executed and delivered by the Borrower through its duly authorized representative
as of the date set forth on the first page of this Note.



	 	 	 	 	 
	 	SWISHER INTERNATIONAL, INC., a Nevada corporation

 	 
	 	By:  	/s/
Steven R. Berrard
 	 
	 	Name:  	Steven R. Berrard 	 
	 	Title:  	CEO 	 
	 	 	  	[Corporate Seal] 	 
	 




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