SECURED PROMISSORY NOTE
Exhibit
10.1
Principal Amount:
$4,644,906.00
Effective date: February 1, 2018
FOR VALUE RECEIVED,
TRUE DRINKS, INC. (“TRUE DRINKS”), TRUE
DRINKS HOLDINGS, INC.
(“TRUE DRINKS HOLDINGS”) and XXXXXXX X. XXXXX
(“XXXXX”), collectively, the
“MAKERS”, acting jointly and severally, hereby promise
to pay to the order of NIAGARA BOTTLING, LLC (“PAYEE”),
pursuant to this Secured Promissory Note (“NOTE”), the
sum of Four Million Six Hundred Forty-Four Thousand Nine Hundred
Six and No Cents ($4,644,906.00) (the “PRINCIPAL
AMOUNT”), together with interest from the Effective Date at
the rate of five percent (5%) per year, accrued and compounded
annually on the unpaid Principal Amount. Payment of the Principal
Xxxxxx and all accrued interest shall be due no later than December
31, 2019 (“DUE DATE”).
Confidential Repayment Agreement/Relationship
of the Parties. True Drinks, Xxxxx, and the Payee
(collectively, the “Settling Parties”) entered into a
Confidential Repayment Agreement, dated April 5, 2018, wherein the
Settling Parties agreed to terminate that certain Bottling
Agreement, dated October 9, 2015, by and between True Drinks, a
wholly-owned subsidiary of True Drinks Holdings, and Payee (the
“Bottling Agreement”), and the Personal Guaranty, dated
October 9, 2015, by and between Xxxxx and Payee (the
“Personal Guaranty”) (the “Confidential Repayment
Agreement”). The Confidential Repayment Agreement also sets
forth payment obligations regarding the balance due under the
Bottling Agreement and Personal Guaranty. For the sake of
clarification, the obligations herein are in addition to those
identified in the Confidential Repayment Agreement, however, in the
event of a conflict between the terms of the Confidential Repayment
Agreement and this Note, this Note controls.
Terms of Repayment. The outstanding
Principal Amount of this Note, together with all accrued interest
hereunder (the “Outstanding Balance”) shall become due
and payable on the Due Date. Any Outstanding Balance of this Note
not fully paid within five (5) days following the Due Date shall be
subject to a late charge of one percent (1%) of the Outstanding
Balance. All cash payments made pursuant to this Note shall be made
in lawful money of the United States of America and delivered to
Xxxxx’s corporate address: 0000 X. Xxxxxxxxxxxx Xx., Xxxxxxx,
XX 00000.
Prepayment. This Note may be prepaid at
any time before the Due Date, in whole or in part, without premium
or penalty. If any Maker elects to make any prepayment before the
Due Date, the prepaid amount shall be first applied to any past due
amount, then to the Principal Amount and then unpaid
interest.
Change of Control. In the event of a
Change of Control Transaction or the execution of an agreement for
a Change of Control Transaction or before June 30, 2018, the
obligations under this Note will become the sole liability of Xxxxx
and any obligation of True Drinks under this Note will be
terminated. For purposes of this Note, a “Change of Control
Transaction” means (i) any merger, consolidation, statutory
share exchange or acquisition transaction involving True Drinks
Holdings or any material subsidiary of True Drinks Holdings,
including True Drinks; (ii) any sale of substantially all of the
assets of True Drinks Holdings or any material subsidiary
of
True
Drinks Holdings, including True Drinks; or (iii) any similar
transaction involving the issuance, cancellation or restructuring
of equity securities of True Drinks Holdings unless, following the
completion of such transaction, the then existing shareholders of
True Drinks Holdings own or control, directly or indirectly, at
least 50% of the voting power or liquidation rights of True Drinks
Holdings or the successor of such merger, consolidation or
statutory share exchange. In the event of a Change of Control
Transaction or the execution of an agreement to enter into a Change
of Control transaction, True Drinks Holdings shall provide the
Payee written notice of at least Fifteen (15) business days prior
to the effective date of any Change of Control Transaction, except
as may otherwise be prohibited by law.
Event of Default. This Note shall be
immediately due and payable upon the occurrence of any of the
following:
1.
Termination of the
Confidential Repayment Agreement;
2.
Breach of any
obligation under this Note by True Drinks, True Drinks Holdings, or
Xxxxx, or breach of any obligation under the Confidential Repayment
Agreement by either True Drinks or Xxxxx; or
3.
Upon the filing by
either True Drinks, True Drinks Holdings, or Xxxxx of any
assignment for the benefit of creditors, bankruptcy or other form
of insolvency, or by suffering an involuntary petition in
bankruptcy or receivership not vacated within thirty (30)
days.
Attorney’s Fees. The Makers agree
to reimburse Payee for all expenses (including reasonable
attorney’s fees) incurred by Xxxxx in connection with the
Note. Additionally, in the event this Note shall be in default and
placed for collection, Makers agree to pay any and all fees,
reasonable attorney fees, and costs associated with
collection.
The
undersigned and all other parties to this Note, whether as
endorsers, guarantors or sureties, agree to remain fully bound
until this Note is fully paid. All parties to this Note further
agree to remain bound, irrespective of any extension, modification,
waiver or other indulgence. No modification of this Note shall be
binding unless in writing, and any waiver on one occasion shall not
be deemed a waiver for any future occasion. The rights of any
holder hereof shall be cumulative and not necessarily successive.
This Note shall take effect as a sealed instrument and shall be
deemed to be a contract entered into under and pursuant to the laws
of the State of California and shall be in all respects governed,
construed, applied, and enforced in accordance with the laws of the
State of California.
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IN WITNESS WHEREOF, True Drinks
Inc., True Drinks Holdings, Inc.,
and Xxxxx agree to be bound as of the
Effective Date.
MAKERS:
PAYEE:
|
MAKERS:
/s/ Xxx
Xxxxx
True
Drinks, Inc., a Delaware
Corporation
By:
Xxx Xxxxx
Its:
Chief Executive Officer
/s/ Xxx
Xxxxx
True
Drinks Holdings, Inc., a Nevada
Corporation
By:
Xxx Xxxxx
Its:
Chief Executive Officer
__________________
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx X.
Xxxxx
An
Individual
|
PAYEE:
/s/ Xxxxxxxxx
Xxxxx
Niagara
Bottling, LLC
A
Delaware Limited Liability Company
By:
Xxxxxxxxx Xxxxx
Its:
Director of Legal Affairs
|
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