f8k120408ex10i_celsius.htm


     

     

    
      Exhibit
10.1

      


      $1,000,000.00

      December
4,
2008

      Waco (city), Texas (state)

      


      


      PROMISSORY
NOTE

      (Revolving Line of
Credit)

      


      


                
FOR VALUE RECEIVED, CELSIUS,
INC., a Nevada corporation, authorized to do business in Florida as CELSIUS
PRODUCTS,
INC. (hereinafter the “Borrower”), promises to pay to the order of CD
FINANCIAL, LLC, a Florida limited liability company, its successors or
assigns (hereinafter the “Lender”) at  3299 N. W. 2nd Avenue, Boca
Raton, FL 33431 or such other place as Lender may from time to time designate in
writing, the principal sum of ONE MILLION AND NO/100THS DOLLARS ($1,000,000.00)
plus interest on the unpaid principal balance the variable rate equal to three
hundred (300) [3.00%] basis points over the one (1) month LIBOR Rate (the “Note
Rate”).

      


      The term LIBOR shall mean the London
Interbank Offered Rate as published in the “Money Rates” section of The Wall Street Journal on the
date of execution hereof, or if no such rate is published in The Wall Street Journal, then the
nearest comparable published rate, as determined by the
Lender.  Interest shall be calculated on the principal balance, which
from time to time is outstanding,  on the basis of a three hundred
sixty (360) day year, based on the actual number of days elapsed in each
month.  The rate of interest from time to time applicable to the
unpaid balance of the principal shall be calculated on a monthly basis, and
payments shall be made as follows:

      


      Commencing
on January 25,
2008 and continuing on 25th day of each
month hereafter, Borrower shall make monthly payments of interest only at the
Note Rate.  On December 24, 2009 (the
“Maturity Date”), all outstanding and unpaid principal, all accrued and unpaid
interest thereon and other charges or fees which are then due and owing from
Borrower to Lender shall be immediately due and payable.

      


      Thereafter,
annual extensions to the Maturity Date shall be available to the Borrower upon
Lender’s sole discretion,  provided: (i) no Event of Default (as such
term is defined herein and in the Loan Agreement) exists under the Loan and
there exists no fact or circumstance that with notice, the lapse of time or both
would constitute an Event of Default under the Loan, (ii) Borrower requests same
in writing at least thirty (30) days prior to the then-existing Maturity Date,
and (iii) in Lender’s sole determination, no material adverse change has
occurred in any Obligor or the collateral for the Loan.

      


      Subject
to the terms and conditions of this Note and the Loan and Secur­ity
Agreement, described below, Lender shall advance funds to Borrower pursuant to
the terms of such Loan and Security Agreement such that Borrower may borrow,
partially or wholly repay, and reborrow, on a revolving basis, up to a maximum
principal sum equal to the face amount of this Note at any one time
outstanding.

       

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

      
 

      Prior to the occurrence of an Event of
Default, all payments made hereunder shall be applied first to
interest due and payable hereunder, then to principal, then to all amounts due
hereunder other than interest and principal as more particularly described
hereinabove.  If an Event of Default has occurred and is continuing,
all payments made hereunder may be applied to the sums due hereunder or in the
Loan Documents executed and delivered in connection with this Note, in a manner
and order according to the sole discretion of Lender.

      


      If any payment required to be paid
pursuant to this Note is not paid in full within five (5) days after its
scheduled due date, Lender may assess a late charge in the amount of five
percent (5%) of the unpaid amount of the payment, or the maximum permitted by
applicable law, whichever is less.

      


      Failure to make any payment when due
shall cause the entire remaining unpaid balance of principal and interest to be
declared immediately due and payable at the option of the Lender without notice
or demand.  Additional events of default hereunder and the rights and
remedies of Lender upon the occurrence of such events of default are set forth
herein, in the Loan Agreement and related Loan Documents of even date herewith
executed and delivered by the Borrower in connection with this
Note.

      


      The Borrower and any endorser or
guarantor of this Note each hereby waives, to the fullest extent permitted by
law,  presentment for payment, demand, protest, notice of non-payment
or dishonor, notices of protest and all other demands and notices in connection
with the delivery, performance and enforcement of this Note and waive all
defenses that may be based on suretyship or impairment of collateral. This Note
shall bear interest at the rate of the maximum permitted by applicable law (the
"Default Rate"), after the Maturity Date hereof or following an Event of Default
hereunder until paid in full.  If for any reason the Borrower is
required to pay, or has paid, interest at a rate in excess of the maximum rate
permitted by applicable law, then the interest rate shall be deemed to be
reduced, automatically and immediately, to such maximum rate permitted, and
interest payable hereunder shall be computed and paid at the maximum rate and
the portion of all prior payments of interest in excess of the principal sum
shall be applied as partial prepayments, notwithstanding any provision hereof
prohibiting partial prepayments.

      


      In the event Lender shall employ
counsel to collect this obligation or to administer, protect or foreclose the
security given in connection herewith, the Borrower agrees to pay reasonable
attorney's fees for services of such counsel whether or not suit is brought plus
costs, including all court costs, incurred in connection herewith through
appellate proceedings.

      


      Borrower may prepay this Note in whole
or in part at any time during the term of this Note.

      


      This Note is secured by the
following  security documents of even date herewith which shall be
incorporated by reference herein:

      


      
        	
                 
      

              	
                (i)

              	
                Loan
      and Security Agreement between Borrower, Celsius, Inc., a Nevada
      corporation, and Celsius Products, Inc., a Nevada corporation authorized
      to do business in the State of Florida (jointly and severally “Celsius”),
      and Lender;

              
	 	(ii)	
                UCC-1
      Financing Statements delivered by Celsius as debtor, to Lender, as secured
      party to be filed in the Public Records of Palm Beach County,
      Florida,  with the Florida Secured Transactions Registry, and
      with the State of Nevada.

              
	 	(iii)	

                Guaranty
      Agreement given by Celsius Holdings, Inc., a Nevada corporation (the
      “Guarantor”); 

              


      

      and any and all other
related Loan Documents thereto from Borrower and Guarantor.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      
 

      
        If suit
is instituted to enforce the terms of this Note, the Courts of the State of
Florida and the Federal Courts located in the State of Florida shall have
non-exclusive personal jurisdiction over the Borrower, and the venue of the
suit, at the option of Lender, may be laid in Palm Beach County, Florida. The
Borrower agrees not to claim that Florida is an inconvenient place for
trial.

      

      


      This Note shall be construed and
enforced in accordance with the substantive laws of the State of
Florida.

      


      The Borrower hereby agrees and consents
that, in addition to any methods of service of process provided for under
applicable law, all service of process in any such suit, action or proceeding in
any state or federal court sitting in the State of Florida may be made by
certified or registered mail, return receipt requested, directed to the Borrower
at the following address: 140 N.E. 4th Avenue,
Suite C, Delray Beach, Florida 33483.

      


      All capitalized terms used in this Note
not defined herein are as defined in the Loan Documents.

      


                    
THE BORROWER HEREBY EXPRESSLY AND IRREVOCAVBLY WAIVES  ANY CLAIM OR
DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE, FORUM NON CONVENIENS OR ANY SIMILAR
BASIS.  THE BORROWER SHALL NOT BE ENTITLED IN ANY SUCH ACTION OR
PROCEEDING TO ASSERT ANY DEFENSE GIVEN OR ALLOWED UNDER THE LAWS OF ANY STATE
OTHER THAN  THE LAWS OF THE STATE OF FLORIDA UNLESS SUCH DEFENSE IS
ALSO GIVEN OR ALLOWED BY THE LAWS OF THE STATE OF FLORIDA.  NOTHING IN
THIS NOTE SHALL AFFECT OR IMPAIR IN ANY MANNER OR TO THE EXTENT THE RIGHT OF
LENDER TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER IN
ANY JURISDICTION OR TO SERVE PROCESS IN ANY MATTER PERMITTED BY
LAW.

      


      If this Note is mutilated, lost, stolen
or destroyed, then upon surrender thereof (if mutilated) or receipt of evidence
and indemnity (if lost, stolen or destroyed) the Borrower shall execute and
deliver a new note of like tenor, which shall show all payments which have been
made on account of the principal hereof.

      


      BORROWER AND LENDER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHT THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT TO ANY LITIGATION (INCLUDING BUT NOT LIMITED TO) ANY CLAIMS,
CROSS-CLAIMS OR THIRD PARTY CLAIMS ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS NOTE, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREIN.
BORROWER ALSO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE
EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO ANY SPECIAL INCIDENTIAL OR
CONSEQUENTIAL DAMAGES. BORROWER ACKNOWLEDGES THAT THE LENDER HAS BEEN INDUCED TO
ENTER INTO THIS LOAN, INCLUDING THIS NOTE, BY, INTER ALIA, THE PROVISIONS OF
THIS PARAGRAPH.

      


       

      [balance
of this page left intentionally blank]

      


      


      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

      


      
        BORROWER:

      

      


      CELSIUS,
INC., a Nevada corporation, authorized to do business in the State
of

      Florida
as CELSIUS PRODUCTS, INC.

      


      
        By:           
/s/ Janice
Haley                        
 

        Name:     
Janice
Haley                               
                                                      

        As
its:   
 Vice
President                             
                                                     


                            

                                
(Corporate Seal)

        


        Address:  140
N.E. 4th Avenue,
Suite C

             Delray
Beach, Florida 33483

        


        STATE
OF       Texas                
)

                                                  ss:

        COUNTY
OF   McCleanne       )



      The foregoing instrument was
acknowledged before me this Dec 4th, 2008, by
Janice Haley as
Vice President
of CELSIUS, INC., a Nevada corporation, authorized to do business in Florida as
CELSIUS PRODUCTS, INC. He is personally known to me or has  produced a
Florida
driver’s license as identification.

      


      /s/ Saul Nava
Jr.                                 


      Notary
Public, State of Texas

      My
Commission Expires:
11-6-2010         {Seal}

       

       

      4