EXHIBIT 10.26
THIS AMENDED AND RESTATED SUBORDINATED PROMISSORY NOTE IS SUBORDINATED IN RIGHT
OF PAYMENT AS SET FORTH HEREIN TO THE OBLIGATIONS OF MAKER TO UNION BANK OF
CALIFORNIA, N.A. ("BANK") UNDER (AND AS DEFINED IN) THAT CERTAIN AMENDED AND
RESTATED TERM LOAN AGREEMENT, DATED AS OF JUNE 29, 2001, BY AND BETWEEN MAKER
AND BANK, AS AMENDED (COLLECTIVELY, THE "BANK LOAN AGREEMENT"),
AMENDED AND RESTATED
SUBORDINATED PROMISSORY NOTE
$11,426.818.73 June 30,2001
San Diego, California
FOR VALUE RECEIVED, SVI Solutions, Inc., a Delaware
corporation ("Maker") (predecessor by merger to SVI Holdings, Inc., a Nevada
corporation), promises to pay to the order of Softline Limited, a South African
corporation ("Holder") the principal sum of eleven million, four hundred
twenty-six thousand, eight hundred eighteen dollars and seventy-three cents
($11,426,818.73), with interest on such principal sum from the date of this Note
until paid at the rate of fourteen percent (14%) per annum, payable as more
fully oat forth below:
1. PAYMENTS. Subject to the full and final payment of all Obligations
of Maker to Bank under (ad as defined in) the Bank Loan Agreement (the "Bank
Obligations") referred to in the legend appearing at the top of this Note, all
unpaid principal and accrued interest under this Note shall become due and
payable an May 1, 2003, unless the Bank Loan Agreement is not extended in which
event, such amount shall become due and payable on November 1, 2002. Holder may
extend the term of this Note in its sole and absolute discretion. So long as any
of the Bank Obligations remain unpaid, Maker shall not pay and Holder shall not
collect or receive payment upon any of the obligations owed by Maker to Holder
hereunder, including without limitation, any principal, interest, costs, charges
or other liabilities or obligations, provided that nothing herein shall prevent
the conversion, from time to time, of amounts owing under this Note into common
equity of the Maker. For greater certainty, upon the full and final indefeasible
payment of all of the Bank Obligations, this Note shall cease to be subordinated
thereto.
2. MANNER OF PAYMENTS. All payments by Maker under this Note shall be
(a) made in lawful money of the United States of America without set-off,
deduction or counterclaim of any kind whatsoever, except as expressly provided
in this Note, (b) credited first to amounts for late charges, if any, second to
amounts for Holder's costs of enforcing this Note, if any, third to any accrued
interest under this Note and finally to the principal balance under this Note,
and (c) deemed paid by Maker upon their actual receipt by Holder. Interest for
any period less than one year shall be calculated on the basis of 1/360th of one
year's interest multiplied by the number of days during such period.
3. COMMERCIAL PURPOSES. Maker acknowledges that the loan evidenced by
this Note is obtained for business or commercial purposes and that the proceeds
of such loan will not be used primarily for personal, family, household or
agricultural purposes.
-1-
4. NOTE WAIVERS. Maker waives presentment, demand, protest, notice of
demand and dishonor.
5. PREPAYMENT WITHOUT PENALTY. Following the full and final payment by
Maker of all of Its Obligations to Bank under (and as defined in) the Bank Loan
Agreement referred to above, this Note may be prepaid in whole or in part at any
time without penalty.
6. GOVERNING LAW. This Note shall be governed by and must be construed
in accordance with the laws of the State of California.
7. FURTHER ASSURANCES. Maker shall execute all instruments and
documents and take all actions as may be reasonably requited to effectuate this
Note.
8. VENUE AND JURISDICTION. All actions and proceedings arising in
connection with this Agreement must be tried and litigated exclusively in the
State and Federal courts located in the County of San Diego, State of
California, which courts are acknowledged to have personal jurisdiction over
each of the parties to this Note for the purpose of adjudicating all matters
arising out of or related to this Note and are further acknowledged to be the
proper venue for adjudication of such disputes. Each party authorizes and
accepts service of process sufficient for personal jurisdiction in any action
against it as contemplated by this paragraph by registered or certified mail,
return receipt requested, postage prepaid, to its address for the giving of
notices set forth in this Agreement.
9. TIME OF ESSENCE. Time and strict and punctual performance are of the
essence with respect to each provision of this Note. Notwithstanding the
foregoing, Maker shall not be deemed in default for failure to pay when due any
principal, interest or other amounts due under this Note unless and until five
days have elapsed from the date Holder gives written notice of such failure and
Maker has failed to make such payment within such five-day period.
10. ATTORNEY'S FEES. In the event any litigation, arbitration,
mediation, or other proceeding ("Proceeding") is initiated by any party(ies)
against any other party(ies) to enforce, interpret or otherwise obtain judicial
or quasi-judicial relief in connection with this Note, the prevailing party(ies)
in such Proceeding shall be entitled in recover from the unsuccessful party(ies)
all costs, expenses, actual attorney's and expert witness fees, relating to or
arising out of (a) such Proceeding (whether or not such Proceeding proceeds to
judgment), and (b) any post-judgment or post-award proceeding including without
limitation one to enforce any judgment or award resulting from any such
Proceeding. Any such judgment or award shall contain a specific provision for
the recovery of all such subsequently incurred costs, expenses, and actual
attorney's fees.
11. PRIOR UNDERSTANDINGS. This Note contains the entire agreement
between the parties to this Note with respect to the subject matter of this
Note, is intended as a final expression of such parties' agreement with respect
to such terms as arc included in this Note, is intended as a complete and
exclusive statement of the terms of such Note, and supersedes all negotiations,
stipulations, understandings, agreements, representations and warranties, if
any, with respect to such subject matter, which precede or accompany the
execution of this Note.
-2-
12. MODIFICATION. This Note may be modified only by a contract in
writing executed by Maker and Holder.
13. HEADINGS. The headings of the Paragraphs of this Note have been
included only for convenience, and shall not be deemed in any manner to modify
or limit any of the provisions of this Note, or be used in any manner in the
interpretation of this Note.
14. WAIVER. Any waiver of a default under this Note must be in writing
and shall not be a waiver of any other default concerning the same or any other
provision of this Note. No delay or omission in the exercise of any right or
remedy shall impair such right or remedy or be construed as a waiver. A consent
to or approval of any act shall not be deemed to waive or render unnecessary
consent to or approval of any other or subsequent act.
15. EXECUTION OF NOTE. This Note may be executed in any number of
counterparts and any party hereto may execute any counterpart, each of which,
when executed and delivered will be deemed to be an original and all of which
counterparts, when taken together will be deemed to be one and the same
instrument. Execution of any such counterpart may be evidenced by a telecopier
transmission of the signature of such party. The execution of this Note by any
party hereto will not become effective until counterparts hereof have been
executed by all the parties hereto.
16. REPLACEMENT OF PRIOR NOTE. This Note amends, restates, replaces and
supercedes that certain Promissory Note, dated October ___, 2000, in the
original principal amount of $10,000,000, executed by Maker to the order of
Holder (the "Prior Note") which Prior Note upon Maker's execution and delivery
of this Note to Holder shall be null, void and of no further legal force or
effect.
Maker: SVI SOLUTIONS, INC., a Delaware
corporation
By: /s/ X.X. X'Xxxxx
------------------------------
(Print Name) X.X. X'Xxxxx
---------------------
Title: Chief Financial Officer
--------------------------
SOFTLINE LIMITED, a South African
corporation
By: /s/ Xxxxxx Xxxxx
------------------------------
(Print Name) Xxxxxx Xxxxx
---------------------
Title: Chief Operating Officer
---------------------------
-3-
