#### **Exhibit10.52**

 

##### **PROMISSORY NOTE**

 

 
| **Borrower:** |   | **Fresh Choice, Inc.**    | **Lender:** | **Mid-Peninsula Bank**        |
|---------------|--------|---------------------------|-------------|-------------------------------|
|          |   | **485 Cochrane Circle**   |        | **420 Cowper Street**         |
|          |   | **Morgan Hill, CA 95037** |        | **Palo Alto, CA  94301** |
|          |   |                      |        |                          |
|          |
| **Principal Amount:   $2,000,000.00** |   | **Initial Rate:  6.00%** |   | **Date of Note:   October 5, 2001** |
|--------------------------------------------|--------|-------------------------------|--------|------------------------------------------|
|                                       |   |                          |   |                                     |

**PROMISE TO PAY.** Fresh Choice, Inc. ("Borrower"),promises to pay to Mid-Peninsula Bank, a California corporation("Lender"), or order, in lawful money of the United States ofAmerica, the principal amount of Two Million Dollars ($2,000,000.00) or so muchas may be outstanding, together with interest on the unpaid outstandingprincipal balance of each advance. Interest shall be calculated from the date of each advance untilrepayment of each advance.  This Note isthe Note as defined in the Revolving Loan Agreement, dated as of October 5,2001, between Borrower and Lender (“Loan Agreement”).  Capitalized terms used but not defined herein are defined in suchRevolving Loan Agreement.

** **

**PAYMENT:  Borrower will pay this loan in one paymentof all outstanding principal plus all accrued unpaid interest on October 5,2002.  In addition, Borrower will payregular monthly payments of accrued unpaid interest beginning November 1, 2001,and all subsequent interest payments are due on****the same dayof each month after that**. The annual interest rate for this Note is computed on a 365/360 basis;that is, by applying the ratio of the annual interest rate over a year of 360days, multiplied by the outstanding principal balance, multiplied by the actualnumber of days the principal balance is outstanding.  Borrower will pay Lender at Lender’s address shown above or atsuch other place as Lender may designate in writing.  Unless otherwise agreed or required by applicable law, paymentswill be applied first to accrued unpaid interest, then to principal, and anyremaining amount to any unpaid collection costs and late charges.

** **

**VARIABLEINTEREST RATE.**  Theinterest rate on this Note is subject to change from time to time based onchanges in an independent index which is the "Prime Rate" aspublished in the Western Edition of the Wall Street Journal (the"Index"). The Index is not necessarily the lowest rate charged byLender on its loans. If the Index becomes unavailable during the term of thisloan, Lender may designate a substitute index after notice to Borrower. Lenderwill tell Borrower the current Index rate upon Borrower's request. Borrowerunderstands that Lender may make loans based on other rates as well. Theinterest rate change will not occur more often than once each day. **The Indexcurrently is 5.5%. The Interest rate to be applied to the unpaid principalbalance of this Note will be at a rate of 0.500 percentage points over theIndex, resulting in an initial rate of 6.00%.**  NOTICE: Under no circumstances will theinterest rate on this Note be more than the maximum rate allowed by applicablelaw, if any.

** **

**PREPAYMENT.**  Borrower agrees that all loan fees and otherprepaid finance charges are earned fully as of the date of the loan and willnot be subject to refund upon early payment (whether voluntary or as a resultof default), except as otherwise required by law. Except for the foregoing,Borrower may pay without penalty all or a portion of the amount owed earlierthan it is due.

** **

**LATECHARGE. **If a paymentis 10 days or more late, Borrower will be charged 5.000% of the unpaid portionof the regularly scheduled payment.

** **

**DEFAULT.**  Borrower will be in default (“Event ofDefault”) if any of the following happens: (a) Borrower fails to make any paymentwhen due, and such failure continues uncured for five days (b) An Event ofDefault occurs under the Loan Agreement.

**LENDER'SRIGHTS.**  Upon theoccurrence of an Event of Default, Lender may, so long as such Event of Defaulthas not been waived, declare the entire unpaid principal balance on this Noteand all accrued unpaid interest immediately due, without notice, and thenBorrower will pay that amount. Upon Borrower's failure to pay all amountsdeclared due pursuant to this section, including failure to pay upon finalmaturity, Lender, at its option, may also, if permitted under applicable law,increase the variable interest rate on this Note to 2.500 percentage pointsover the Index. Borrower shall also pay all attorneys fees and expenses asrequired under the terms of the Loan Agreement. This Note has been delivered toLender and accepted by Lender in the State of California. If there is alawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction ofthe state or federal courts located in Santa Clara County or San FranciscoCounty in the State of California. This Note shall be governed by and construedin accordance with the laws of the State of California.

** **

**COLLATERAL.**This Note is secured by the collateral as described in thatcertain Pledge Agreement dated October 5, 2001.

** **

**LINEOF CREDIT.**  This Noteevidences a revolving line of credit. Advances under this Note, as well as directions for payment fromBorrower's accounts, may be requested orally or in writing by Borrower or by anauthorized person.  Lender may, but neednot, require that all oral requests be confirmed in writing. Allcommunications, instructions, or directions by telephone or otherwise to Lenderare to be directed to Lender's office shown above.  The following party or parties are authorized to request advancesunder the line of credit until Lender receives from Borrower at Lender'saddress shown above written notice of revocation of their authority: **David E.Pertl, Sr. Vice President and CFO; and Everett F. Jefferson, CEO and Director**.  Borrower agrees to be liable for all sumseither: (a) advanced in accordance with the instructions of an authorizedperson or (b) credited to any of Borrower's accounts with Lender. The unpaidprincipal balance owing on this Note at any time may be evidenced byendorsements on this Note or by Lender's internal records, including dailycomputer print-outs. Lender will have no obligation to advance funds under thisNote while an Event of Default exists under the terms of this Note or the LoanAgreement.

** **

**GENERALPROVISIONS.**  Lendermay delay or forgo enforcing any of its rights or remedies under this Notewithout losing them. Borrower and any other person who signs, guarantees orendorses this Note, to the extent allowed by law, waive any applicable statuteof limitations, presentment, demand for payment, protest and notice ofdishonor. Upon any change in the terms of this Note, and unless otherwiseexpressly stated in writing, no party who signs this Note, whether as maker,guarantor, accommodation maker or endorser, shall be released from liability.All such parties agree that Lender may renew or extend (repeatedly and for anylength of time) this loan, or release any party or guarantor or collateral; orimpair, fail to realize upon or perfect Lender's security interest in thecollateral; and take any other action deemed necessary by Lender without theconsent of or notice to anyone.

** **

**REVOLVINGLOAN AGREEMENT.**In addition to the terms and conditionscontained in this Note it is to be

further subject to the terms and conditions containedin the Loan Agreement.

 

PRIOR TO SIGNING THIS NOTE, BORROWER READ ANDUNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTERESTRATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGESRECEIPT OF A COMPLETED COPY OF THE NOTE.

 

BORROWER:

 

**FRESH CHOICE, INC., a**

## **Delaware corporation**

 

 
| By: /S/ David E.  Pertl               |
|---------------------------------------|
| Name: David E. Pertl                  |
| Title: Senior Vice  President and CFO |