AMENDED AND RESTATED
VARIABLE RATE INSTALLMENT NOTE
AMOUNT $4,000,000.00
NOTE DATE OCTOBER 14, 1997
MATURITY DATE OCTOBER 1, 2002
(AS AMENDED AND RESTATED ON APRIL 20, 2000)
(U.S.) TAX IDENTIFICATION 39-1679918
For Value Received, the undersigned promise(s) to pay to the order of Comerica
Bank California ("Bank"), at any office of the Bank in the State of California,
Four Million Dollars and No Cents ($4,000,000.00) (U.S.) in installments in the
amounts set forth in the next succeeding sentence, plus interest on the unpaid
balance from the date of this Note at a per annum rate equal to the Bank's base
rate from time to time in effect from time to time, plus one-half of a
percentage point (0.500%) per annum until maturity, whether by acceleration or
otherwise, or until Default, as later defined, and after that at a default rate
equal to the rate of interest otherwise prevailing under this Note plus 3% per
annum. (but in no event in excess of the maximum rate permitted by law).
Payments of principal on the Note shall be made in monthly payments as follows:
(i) $41,667.00 beginning on November 1, 1997 and on the first day of each
calendar month thereafter until October 1, 1998; (ii) $50,000.00 beginning on
November 1, 1998 and on the first day of each calendar month thereafter until
October 1, 1999; (iii) $58,333.00 beginning on November 1, 1999 and on the first
day of each calendar month thereafter until October 1, 2000; (iv) $66,667.00
beginning on November 1, 2000 and on the first day of each calendar month
thereafter until October 1, 2001; and (v) $116,666 beginning on November 1, 2001
and on the first day of each calendar month thereafter until September 1, 2002
(each of the payment dates described in clauses (i) through (v), a "Payment
Date"); and (vi) a final payment of all remaining principal on October 1, 2002,
or such earlier Payment Date as all of the principal on the Note shall have been
paid in full (the "Maturity Date") . Each such payment of principal on the Note
shall be accompanied by a payment of accrued interest thereon, and all accrued
but unpaid interest, fees and costs shall be due on the Maturity Date. Interest
shall be calculated for the actual number of days the principal is outstanding
on the basis of a 360 day year if this Note evidences a business or commercial
loan or a 365 day year if a consumer loan. The Bank's "base rate" is that annual
rate of interest so designated by the Bank and which is changed by the Bank from
time to time. Interest rate changes will be effective for interest computation
purposes as and when the Bank's base rate changes. If the frequency of principal
and interest installments is not otherwise specified, installments of principal
and interest due under this Note shall be payable monthly on the first day of
each month.
In addition to the payments of principal set forth above, the undersigned agrees
to make additional mandatory prepayments of principal as follows:
(a) within five business days of a full or partial repayment of the
indebtedness of the undersigned to ERLY Industries, Inc., 100 percent of the
amount by which the reduction of the outstanding balance of such indebtedness by
virtue of such full or partial repayment exceeds the amount of the consideration
paid to ERLY Industries, Inc. in connection with such full or partial repayment;
and
(b) within five business days of any sale or other transfer of any
assets of the undersigned, 100 percent of the proceeds thereof, net of
reasonable transaction costs of such transaction provided, however, that the
foregoing shall not be deemed a waiver by the Bank the requirement that the
undersigned obtain the prior written consent of the Bank in connection with any
such sale; and
(c) within five business days of any sale of equity securities of the
undersigned, 100 percent of the proceeds of such sale net of reasonable costs of
such transaction.
The additional mandatory principal prepayments described in subparagraphs (a),
(b) and (c) of the preceding paragraph are referred to as Mandatory Principal
Prepayments. Each Mandatory Principal Prepayment shall be applied to the payment
of principal last coming due, and accordingly shall not reduce the amount of any
scheduled prior payment of principal due on this Note.
If this Note or any installment under this Note shall become payable on a day
other than a day on which the Bank is open for business, this payment may be
extended to the next succeeding business day and interest shall be payable at
the rate specified in this Note during this extension. Any payments of principal
in excess of the installment payments required under this Note need not be
accepted by the Bank (except as required under applicable law), but if accepted
shall apply to the installments last falling due. A late installment charge
equal to 5% of each late installment may be charged on any installment payment
not received by the Bank within 10 calendar days after the installment due date,
but acceptance of payment of this charge shall not waive any default under this
Note.
This Note and any other indebtedness and liabilities of any kind of the
undersigned (or any of them) to the Bank, and any and all modifications,
renewals or extensions of it, whether joint or several, contingent or absolute,
now existing or later arising, and however evidenced (collectively
"Indebtedness") are secured by and the Bank is granted a security interest in
all items deposited in any account of any of the undersigned with the Bank and
by all proceeds of these items (cash or otherwise), all account balances of any
of the undersigned from time to time with the Bank, by all property of any of
the undersigned from time to time in the possession of the Bank and by any other
collateral, rights and properties described in each and every deed of trust,
mortgage, security agreement, pledge, assignment and other agreement which has
been, or will at any time(s) later be, executed by any (or all) of the
undersigned to or for the benefit of the Bank, specifically including that
certain Revolving Credit Loan and Security Agreement (Accounts and Inventory)
between the undersigned and the Bank of even date herewith (collectively
"Collateral"). Notwithstanding the above, (i) to the extent that any portion of
the Indebtedness is a consumer loan, that portion shall not be secured by any
deed of trust or mortgage on or other security interest in any of the
undersigned's principal dwelling or in any of the undersigned's real property
which is not a purchase money security interest as to that portion, unless
expressly provided to the contrary in another place, or (ii) if the undersigned
(or any of them) has (have) given or give(s) Bank a deed of trust or mortgage
covering real property, that deed of trust or mortgage shall not secure this
Note or any other indebtedness of the undersigned (or any of them), unless
expressly provided to the contrary in another place.
If the undersigned (or any of them) or any guarantor under a guaranty of all or
part of the Indebtedness ("guarantor") (a) fail(s) to pay this Note or any of
the Indebtedness when due, by maturity, acceleration or otherwise, or fail(s) to
pay any Indebtedness owing on a demand basis upon demand; or (b) fail(s) to
comply with any of the terms or provisions of any agreement between the
undersigned (or any of them) or any guarantor and the Bank; or (c) become(s)
insolvent or the subject of a voluntary or involuntary proceeding in bankruptcy,
or a reorganization, arrangement or creditor composition proceeding, (if a
business entity) cease(s) doing business as a going concern, (if a natural
person) die(s) or become(s) incompetent, (if a partnership) dissolve(s) or any
general partner of it dies, becomes incompetent or becomes the subject of a
bankruptcy proceeding or (if a corporation or a limited liability company) is
the subject of a dissolution, merger or consolidation: or (d) if any warranty or
representation made by any of the undersigned or any guarantor in connection
with this Note or any of the Indebtedness shall' be discovered to be untrue or
incomplete; or (e) if there is any termination, notice of termination, or breach
of any guaranty, pledge, collateral assignment or subordination agreement
relating to all or any part of the Indebtedness; or (f) if there is any failure
by any of the undersigned or any guarantor to pay when due any of its
indebtedness (other than to the Bank) or in the observance or performance of any
term, covenant or condition in any document evidencing, securing or relating to
such indebtedness; or (g) if the Bank deems itself insecure, believing that the
prospect of payment of this Note or any of the Indebtedness is impaired or shall
fear deterioration, removal or waste of any of the Collateral; or (h) if there
is filed or issued a levy or writ of attachment or garnishment or other like
judicial process upon the undersigned (or any of them) or any guarantor or any
of the Collateral, including without limit, any accounts of the undersigned (or
any of them) or any guarantor with the
Bank, then the Bank, upon the occurrence of any of these events (each a
"Default"), may at its option and without prior notice to the undersigned (or
any of them), declare any or all of the Indebtedness to be immediately due and
payable (notwithstanding any provisions contained in the evidence thereof to the
contrary), sell or liquidate all or any portion of the Collateral, set off
against the Indebtedness any amounts owing by the Bank to the undersigned (or
any of them), charge interest at the default rate provided in the document
evidencing the relevant Indebtedness and exercise any one or more of the rights
and remedies granted to the Bank by any agreement with the undersigned (or any
of them) or given to it under applicable law. In addition, if this Note is
secured by a deed of trust or mortgage covering real property, then the trustor
or mortgagor shall not mortgage or pledge the mortgaged premises as security for
any other indebtedness or obligations. This Note, together with all other
indebtedness secured by said deed of trust or mortgage, shall become due and
payable immediately, without notice, at the option of the Bank, (a) if said
trustor or mortgagor shall mortgage or pledge the mortgaged premises for any
other indebtedness or obligations or shall convey, assign or transfer the
mortgaged premises by deed, installment sale contact or other instrument, or (b)
if the title to the mortgaged premises shall become vested in any other person
or party in any manner whatsoever, or (c) if there is any disposition (through
one or more transactions) of legal or beneficial title to a controlling interest
of said trustor or mortgagor. All payments under this Note shall be in
immediately available United States funds, without setoff or counterclaim.
Notwithstanding anything contained in this paragraph to the contrary, Bank shall
refrain from exercising its rights and remedies and Default shall thereafter not
be deemed to have occurred by reason of the occurrence of any of the events set
forth in clause (c) (as it relates to a person or entity other than a natural
person) or clause (h) of this paragraph if, within ten (10) days from the date
thereof, the same is released, discharged dismissed, bonded against or
satisfied; provided, however, if the event is the institution of insolvency,
bankruptcy or similar proceedings against Borrower, Bank shall not be obligated
to make advances to Borrower during such cure period.
If this Note is signed by two or more parties (whether by all as makers or by
one or more as an accommodation party or otherwise), the obligations, and
undertakings under this Note shall be that of all and any two or more jointly
and also of each severally. This Note shall bind the undersigned, and the
undersigned's respective heirs, personal representatives, successors and
assigns.
The undersigned waive(s) presentment, demand, protest, notice of dishonor,
notice of demand or intent to demand, notice of acceleration or intent to
accelerate, and all other notices and agree(s) that no extension or indulgence
to the undersigned (or any of them) or release, substitution or nonenforcement
of any security, or release or substitution of any of the undersigned, any
guarantor or any other party, whether with or without notice, shall affect the
obligations of any of the undersigned. The undersigned waive(s) all defenses or
right to discharge available under Section 3-605 of the California Uniform
Commercial Code and waive(s) all other suretyship defenses or right to
discharge. The undersigned agree(s) that the Bank has the right to sell, assign,
or grant participations, or any interest, in any or all of the Indebtedness, and
that, in connection with this right, but without limiting its ability to make
other disclosures to the full extent allowable, the Bank may disclose all
documents and information which the Bank now or later has relating to the
undersigned or the Indebtedness. The undersigned agree(s) that the Bank may
provide information relating to this Note or to the undersigned to the Bank's
parent, affiliates, subsidiaries and service providers.
The undersigned agree(s) to reimburse the holder or owner of this Note for any
and all costs and expenses (including without limit, court costs, legal expenses
and reasonable attorney fees, whether inside or outside counsel is used, whether
or not suit is instituted and, if suit is instituted, whether at the trial court
level, appellate level, in a bankruptcy, probate or administrative proceeding or
otherwise) incurred in collecting or attempting to collect this Note or incurred
in any other matter or proceeding relating to this Note.
The undersigned acknowledge(s) and agree(s) that there are no contrary
agreements, oral or written, establishing a term of this Note and agree(s) that
the terms and conditions of this Note may not be amended, waived or modified
except in a writing signed by an officer of the Bank expressly stating that the
writing constitutes an amendment, waiver or modification of the terms of this
Note. As used in this Note, the word "undersigned" means, individually and
collectively, each maker, accommodation party, endorser and other party signing
this Note in a similar capacity. If any provision of this Note is unenforceable
in whole or part for any reason, the remaining provisions shall continue to be
effective. THIS NOTE IS MADE IN THE STATE OF CALIFORNIA AND SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
THE MAXIMUM INTEREST RATE SHALL NOT EXCEED THE HIGHEST APPLICABLE USURY CEILING.
THE UNDERSIGNED AND THE BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO TRIAL BY JURY
IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS NOTE OR THE INDEBTEDNESS.
For Corporations, Partnerships, Trusts, or Estates
HANSEN BEVERAGE COMPANY
OBLIGOR NAME TYPED/PRINTED
By: \s\ Rodney C. Sacks Its: Chairman
SIGNATURE OF TITLE
2380 Railroad St Ste 101
STREET ADDRESS
Corona,
CITY
CA 92880-5471
STATE ZIP CODE
For Bank Use Only CCR#
Loan Officer Initials Loan Group Name Obligor(s) Name
Loan Officer I.D. No. Loan Group No. Obligor # Note # Amount