SECURED PROMISSORY NOTE
Exhibit
10.2
Principal Amount:
$18,480,619.50
FOR
VALUE RECEIVED, TRUE DRINKS, INC. (“TRUE DRINKS”) and
TRUE DRINKS HOLDINGS, INC. (“TRUE DRINKS HOLDINGS”)
(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 Eighteen
Million Four Hundred Eighty Thousand Six Hundred Nineteen Dollars
and Fifty Cents ($18,480,619.50) (the “PRINCIPAL
AMOUNT”), together with interest from the Effective Date at
the rate of eight percent (8%) per year, compounded monthly 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, Xxxxxxx X. Xxxxx, and 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, Inc.,
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 Xxxxx (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.
Effective Date. This Note shall be of no
force or effect unless and until either or both of the Makers files
for bankruptcy protection under any Chapter of the U.S. Bankruptcy
Code (a “Bankruptcy Filing”). In the event of a
Bankruptcy Filing, the Note shall immediately come into full force
and effect. In the event that this Note is effectuated, the amount
due hereunder shall be reduced by all amounts previously paid to
Niagara pursuant to the Confidential Repayment Agreement. This Note
shall be voided if there is a Change of Control Transaction and
either of the Makers or the surviving entity is thereafter deemed
solvent. The Note shall, in all instances, expire on December 31,
2019.
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.
Terms of Repayment. In the event of a
Bankruptcy Filing, the outstanding Principal Amount of this Note,
less all amounts previously paid to Niagara pursuant to the
Confidential Repayment Agreement, 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 of the Due Date,
shall be subject to a late charge of one percent (1%) of said
payment or balance. All payments made pursuant to this Note shall
be made in lawful money of the United States of America and
delivered to Payee’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 either Maker elects to make any prepayment before
the Due Date, the prepaid amount shall be first applied to any past
due amount, then unpaid interest, and then to the Principal
Amount.
Event of Default. This Note shall be
immediately due and payable upon the occurrence of any of the
following:
1.
True Drinks’
termination of the Confidential Repayment Agreement;
or
2.
Any Maker’s
breach of any obligation under this Note or True Drinks’
breach of any obligation under the Confidential Repayment
Agreement.
Attorney’s Fees. 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.
Makers hereby waive any notices which they might otherwise be
entitled to under the law, including any demand for payment of the
Note. 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. and True
Drinks Holdings,
Inc., agree to be bound as of the
Effective Date.
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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
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PAYEE:
/s/ Xxxxxxxxx
Xxxxx
Niagara
Bottling, LLC
A
Delaware Limited Liability Company
By:
Xxxxxxxxx Xxxxx
Its:
Director of Legal Affairs
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