Exhibit 10.30
Artiside Investments, L.P. Subordinated Promissory Note
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR ANY STATE SECURITIES LAWS. THIS NOTE HAS BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE,
AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE
TRANSFERRED, WHETHER OR NOT FOR CONSIDERATION, WITHOUT (A) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED WITH RESPECT TO THE
PROPOSED DISPOSITION THEREOF AND THAT SUCH DISPOSITION WILL NOT CAUSE
THE LOSS OF THE EXEMPTION UPON WHICH THE COMPANY RELIED IN ISSUING
THIS NOTE TO THE ORIGINAL PURCHASER.
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS OF THE SUBORDINATION
AGREEMENT, DATED AS OF AUGUST 8, 2005, BY AND AMONG TRINITY SPRINGS,
INC., DRAUPNIR, LLC, AND ARISTIDE INVESTMENTS, L.P., TO WHICH
REFERENCE IS MADE FOR THE TERMS THEREOF AND FOR LIMITATIONS ON
ENFORCEMENT OF THE PROVISIONS HEREOF AND OF RETENTION OF PAYMENTS
RECEIVED HEREUNDER.
SUBORDINATED PROMISSORY NOTE
$250,000 Issue Date: August 8, 2005
Maturity Date: December 8, 2005
FOR VALUE RECEIVED, the undersigned, Trinity Springs, Inc., a Delaware
corporation (the "Maker"), hereby promises to pay to the order of
Aristide Investments, L.P., a California limited partnership (together
with its successors and assigns, the "Holder"), the principal sum of
two hundred fifty thousand dollars ($250,000), together with interest
at the rate of seven percent (7.0%) per annum on the unpaid principal
balance hereof, payable in monthly installments of interest of
$1,458.33 on the eighth day of each month commencing September 8, 2005
and ending December 8, 2005. The entire amount of indebtedness
hereunder then outstanding, including principal and accrued interest,
shall become due and payable on December 8, 2005. Interest shall be
computed on the basis of a 360 day year.
The Maker reserves the right to prepay all or any portion of this
Subordinated Promissory Note at any time and from time to time without
premium or penalty of any kind by paying, in addition to the principal
amount of such prepayment, the interest accrued hereon to the date of
such prepayment.
If any one of the following events (each, an "Event of Default") shall
occur and be continuing for the applicable period of time specified
herein for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of
law or otherwise): (i) there should be a default in the payment of
interest or principal due hereunder and such default shall continue
for five (5) days after the mailing of written notice of such default
to the Maker at the Maker's last known address, (ii) the Maker or any
other person liable hereon should make an assignment for the benefit
of creditors, (iii) attachment or garnishment proceedings are
commenced against the Maker or any other person liable hereon, (iv) a
receiver, trustee or liquidator is appointed over or execution levied
upon any property of the Maker, (v) proceedings are instituted by or
against the Maker or any other person liable hereon under any
bankruptcy, insolvency, reorganization, receivership or other law
relating to the relief of debtors from time to time in effect,
including without limitation the United States Bankruptcy Code, as
amended, or (vi) the Maker liquidates or dissolves; then, and in each
such Event of Default, the Holder may, at its option, without notice
or demand, declare the remaining unpaid principal balance of this
Subordinated Promissory Note and all accrued interest thereon
immediately due and payable in full.
Any amount hereunder which is not paid when due, whether at stated
maturity, by acceleration or otherwise, shall bear interest from the
date when due until paid at the lesser of (i) the foregoing rate per
annum plus 2 percentage points or (ii) the maximum rate permitted by
law, said interest to be compounded annually and computed on the basis
of a 360 day year.
All payments made hereunder shall be made in lawful currency of the
United States of America in immediately available. All payments made
hereunder, whether a scheduled installment, prepayment, or payment as
a result of acceleration, shall be allocated first to any expenses of
collection, next to accrued but unpaid interest and then to
installments of principal remaining outstanding hereunder first to
principal amounts overdue then to principal amounts currently due and
then to installments of principal due in the future in the inverse
order of their maturity.
The Maker agrees to pay all reasonable costs of collection, including
attorneys' fees, paid or incurred by the Holder in enforcing this
Subordinated Promissory Note or the rights and remedies herein
provided.
The indebtedness evidenced hereby is subordinated and subject to the
limitations as set forth in that certain Subordination Agreement dated
as of August 8, 2005, which is attached hereto as Exhibit A and
incorporated herein by reference, (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the
"Subordination Agreement"), by and among Holder and Maker for the
benefit of LaSalle Bank National Association, Gold Bank and all other
lenders (the "Senior Lenders") under that certain Amended and Restated
Loan Agreement, dated as of September 30, 2004, as amended by the
Revised First Amendment to Amended and Restated Loan and Security
Agreement, dated as of April 14, 2005, as amended by the Revised
Second Amendment to Amended and Restated Loan and Security Agreement,
dated May 23, 2005 (collectively, the "Senior Loan Agreement"), by and
between AMCON Distributing Company ("AMCON") and its subsidiaries, The
Beverage Group, Inc., Chamberlin Natural Foods, Inc., Hawaiian Natural
Water Company, Inc., Health Food Associates, Inc., and Trinity
Springs, Inc. ("Trinity") with the Senior Lenders.
The Holder may sell, assign, pledge or otherwise transfer all or any
portion of its interest in this Subordinated Promissory Note at any
time or from time to time without prior notice to or consent of and
without releasing any party liable or becoming liable hereon.
By executing this Subordinated Promissory Note on behalf of the Maker,
the undersigned officer of the Maker, in his personal and individual
capacity, represents to the Holder that such officer is duly
authorized and empowered to execute and deliver this Subordinated
Promissory Note on behalf of the Maker and that this Subordinated
Promissory Note constitutes the legal and binding obligation of the
Maker, enforceable against the Maker in accordance with its terms.
This Subordinated Promissory Note shall be governed by and construed
and enforced in accordance with the laws of the State of Illinois.
IN WITNESS WHEREOF, the undersigned has duly caused this Subordinated
Promissory Note to be executed and delivered at the place specified
above and as of the date first written above.
TRINITY SPRINGS, INC.
By: /s/ William R. Hoppner
Name: William R. Hoppner
Title: Chairman of the Board