Unassociated Document


    FIRST
BLUSH, INC.

     

    LOAN
AGREEMENT

    


    THIS LOAN AGREEMENT (tile “Agreement”) is
made as of the 18th day of
November, 2008 (the “Effective Date”) by
and among FIRST BLUSH, INC.,
a Delaware corporation (tile “Company”), and ROSE HILL GARDENS, LLC (the
“Lender”).

    


    RECITAL

     

    WHEREAS, to provide the
Company with additional resources to conduct its business, the Lender is willing
to loan to the Company up to an aggregate amount of one million dollars
($1,000,000.00), subject to the conditions specified herein.

     

    AGREEMENT

     

    NOW, THEREFORE, in consideration of
the foregoing, and the representations, warranties, covenants and conditions set
forth below, the Company the Lender, intending to be legally bound, hereby agree
as follows:

    


    1.           AMOUNT
AND TERMS OF THE LOAN(S)

     

    
      	
               
      

            	
              1.1

            	
              The
      Loan(s).

            


    

     

    (a)           Subject
to the terms of this Agreement. the Lender agrees to lend to the Company up to
the amount set forth opposite the Lender's name on SCHEDULE 1 hereto (the “Total Loan
Amount” or
“Loan”) against
the issuance and delivery by the Company of a senior secured promissory note or
notes for such amount, in substantially the form attached hereto as EXHIBIT A (each, a “Note” and collectively, the “Notes”).

     

    (b)           If
the Company has not previously borrowed the full Loan Amount committed by a
Lender as set forth on SCHEDULE
1 hereto, at any time prior to the first (1st) anniversary
of the date hereof, the Company may borrow up to the balance of the Loan Amount
committed by the Lender (the “Remaining Loan
Amount”) as
indicated on the Schedule of Purchases attached thereto as SCHEDULE 2 by delivering
notice (in accordance with Section 5.5) to the Lender, which notice shall
include the amount requested (up to but not exceeding the Remaining Loan
Amount). Following receipt of such notice (as determined in accordance with
Section 5.5), if Lender and Company agree, in writing, to the amount to be
funded (the “Agreed
Loan
Amount”), Lender shall fund the amount
requested by the Company (up to an aggregate of' the Remaining
Loan Amount) within three (3) business days of reaching agreement on the Agreed
Loan Amount, and the Company shall issue a Note in respect of such additional
Loan in accordance with the terms hereof. Schedule 2 hereto shall be
appropriately amended in accordance with Section 2.2 below to reflect the
additional Loan being made.

    


    
      	
              2.

            	
              CONDITIONS
      OF LOAN(S)

            


    

     

    
      
        
        

      

      
        1.

        
          

        

      

      
        
        

      

    

     

    2.1           Conditions Precedent to Initial Loan.
The obligation of Lender to provide the initial loan amount is subject to
the condition precedent that Lender shall have received, in form and substance
satisfactory to Lender, the following:

    


    (a)           this
Agreement;

    


    (b)           UCC
National Form Financing Statement;

    


    (c)           the
Security Agreement as defined in Section 5.1; and

    


    (d)           such
other documents, and completion of such other matters, as Lender may reasonably
deem necessary or appropriate.

     

    2.2           Conditions Precedent to all Loans.
The obligation of Lender to provide each subsequent loan amount after the
initial loan amount, is Further subject to the following
conditions:

     

    (a)           the
Company and the Lender shall have agreed upon the Agreed Loan Amount, in
writing; and

     

    (b)           no
Event of Default shall have occurred and be continuing, or would exist after
issuing such Note. The issuance of each Note shall be deemed to be a
representation and warranty by Borrower on the date of such loan as to the
accuracy of the facts referred to in this Section 2.2.

     

    This
Agreement, including without limitation, the Schedule of Loans and
Schedule 1 hereto, may be amended by the Company without the consent of the
Lender to reflect the issuance of additional Notes in the event the Company
borrows additional funds pursuant to Section 1.1(b) and this Section 2.2. Any
Notes sold pursuant to Section 1.1(b) or this Section 2.2 shall be deemed to be
“Notes” for
all purposes under this Agreement.

    


    
      	
              3.

            	
              REPRESENTATIONS,
      WARRANTIES AND COVENANTS OF THE
COMPANY

            


    

     

    The
Company hereby represents and warrants to each Lender as follows:

     

    3.1           Organization, Good Standing and
Qualification. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Company has the requisite corporate power to own and operate its properties and
assets and to carry on its business as now conducted and as proposed to be
conducted. The Company is duly qualified and is authorized to do business and is
in good standing as a foreign corporation in all jurisdictions in which the
nature of its activities and of its properties (both owned and leased) makes
such qualification necessary, except for those jurisdictions in which failure
to do so would not have a material adverse effect on the Company or its
business.

     

    3.2           Corporate Power. The Company
will have at the Closing Date all requisite corporate power to execute and
deliver this Agreement, to issue each Note (collectively, the “Loan
Documents”) and
to carry out and perform its obligations under the terms of this Agreement and
under the terms of each Note. The Company's Board of Directors has approved the
Loan Documents based upon a reasonable belief that the Loan is appropriate for
the Company after reasonable inquiry concerning the Company's financing
objectives and financial situation.

     

    
      
        
        

      

      
        2.

        
          

        

      

      
        
        

      

    

     

    3.3           Authorization. All corporate
action on the part of the Company, its directors and its stockholders necessary
for the authorization, execution, delivery and performance of this Agreement by
the Company and the performance of the Company's obligations hereunder,
including the issuance and delivery of the Notes has been taken. This Agreement
and the Notes, when executed and delivered by the Company, shall constitute
valid and binding obligations of the Company enforceable in accordance with
their terms, subject to laws of general application relating to bankruptcy,
insolvency, the relief of debtors and, with respect to rights to indemnity,
subject to federal and state securities laws.

     

    3.4           Governmental Consents. All
consents, approvals, orders, or authorizations of, or registrations,
qualifications, designations, declarations, or filings with, any governmental
authority, required on the part of the Company in connection with the valid
execution and delivery of this Agreement, the offer, sale or issuance of
the Notes or the consummation of any other transaction contemplated hereby shall
have been obtained and will be effective at the Closing.

     

    3.5           Compliance with Laws. To its
knowledge, the Company is not in violation of any applicable statute, rule,
regulation, order or restriction of any domestic or foreign government or any
instrumentality or agency thereof in respect of the conduct of its business or
the ownership of its properties, which violation of which would materially and
adversely affect the business, assets, liabilities, financial condition,
operations or prospects of the Company.

     

    3.6           Compliance with Other Instruments.
The Company is not in violation or default of any term of its certificate
of incorporation or bylaws, or of any provision of any mortgage, indenture or
contract to which it is a party and by which it is bound or of any judgment,
decree, order or writ, other than such violation(s) that would not have a
material adverse effect on the Company. The execution, delivery and
performance of this Agreement and the Notes, and the consummation of the
transactions contemplated hereby or thereby will not result in any such
violation or be in conflict with, or constitute, with or without the passage of
time and giving of notice, either a default under any such provision,
instrument, judgment, decree, order or writ or an event that results in the
creation of any lien, charge or encumbrance upon any assets of the Company or
the suspension, revocation, impairment, forfeiture, or nonrenewal of any
material permit, license, authorization or approval applicable to the Company,
its business or operations or any of its assets or properties. Without limiting
the foregoing, the Company has obtained all waivers reasonably necessary with
respect to any preemptive rights, rights of first refusal or similar rights,
including any notice or offering periods provided for as part of any such
rights, in order for the Company to consummate the transactions contemplated
hereunder without any third party obtaining any rights to cause the Company to
offer or issue any securities of the Company as a result of the consummation of
the transactions contemplated hereunder.

     

    3.7           Use of Proceeds. The Company
shall use the proceeds of the Loan solely for working capital purposes, and
shall not in any event be used for (a) the repayment of indebtedness for
borrowed money, redemption or repurchase of securities (other than the
repurchase of shares from employees pursuant to the Company's stock option
plan), (b) dividends or payments to employees other than regular salaries,
relocation expenses and reimbursements for costs incurred on behalf of the
Company in the ordinary course of business, or (c) any personal, family or
household purpose.

    


    
      
        
        

      

      
        3.

        
          

        

      

      
        
        

      

       

    

    
      	
              4.

            	
              CREATION
      OF SECURITY INTEREST

            


    

    


    4.1           Grant of Security Interest. To
secure payment of obligations under the Notes, the Company grants to the Lender
a first position perpetual security interest in all of the Company's property,
now existing or hereafter arising, including without limitation, all accounts,
inventory, equipment, intellectual property, general intangibles, deposit
accounts, financial assets, securities, instruments, and all proceeds thereof as
provided in that certain Security Agreement by and between the Company and the
Lender, of even date herewith (the “Security
Agreement”). The Company will not dispose of or
encumber any interest in the Collateral (as defined in the Security Agreement)
without the written consent of the Lender, in each instance. The Company
authorizes the Lender to file such financing statements and take such other
action as the Lender deems appropriate in order to perfect this security
interest.

     

    4.2           Liabilities Unconditional. The
Company is and shall remain absolutely and unconditionally liable for the
performance of its obligations under the Loan Documents, including without
limitation any deficiency by reason of the failure of the Collateral to satisfy
all amounts due to the Lender under any Loan Document.

    


    
      	
              5.

            	
              MISCELLANEOUS

            


    

     

    5.1           Binding Agreement. The terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties. Nothing in this
Agreement, expressed or implied, is intended to confer upon any third party any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.

     

    5.2           Governing Law. This Agreement
shall be governed by and construed under the laws of the State of California as
applied to agreements among California residents, made and to be performed
entirely within the State of California, without giving effect to conflicts of
laws principles.

     

    5.3           Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.

     

    5.4           Titles and Subtitles. The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.

     

    5.5           Notices. All notices required
or permitted hereunder shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party to be notified, (b) when sent by
confirmed telex, electronic mail or facsimile if sent during normal business
hours of the recipient, if not, then on the next business day, (c) five (5) days
after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the Company at the
address set forth on the signature page hereto, and to Lender at the address set
forth on the Schedule of Lenders attached hereto or at such other address(es) as
the Company or Lender may designate by ten (10) days advance written notice to
the other parties hereto.

    


    
      
        
        

      

      
        4.

        
          

        

      

      
        
        

      

    

     

    5.6           Modification; Waiver. Except
as permitted pursuant to Section 2.2, no modification or waiver of any provision
of this Agreement or consent to departure therefrom shall be effective unless in
writing and approved by the Company and the Lender. Any provision of the Notes
may be amended or waived by the written consent of the Company and the
Lender.

    


    5.7            Expenses. The Company and the
Lender shall each bear its respective expenses and legal fees incurred with
respect to this Agreement and the transactions contemplated herein.

    


     

    5.8           Waiver of Conflicts. Each
party to this Agreement acknowledges that Cooley Godward Kronish LLP (“Cooley
Godward”), outside general counsel to the
Company, has in the past performed and is or may now or in the future represent
one or more Lenders or their affiliates in matters unrelated to the transactions
contemplated by this Agreement (the “Bridge
Financing”), including representation of such
Lenders or their affiliates in matters of a similar nature to the Bridge
Financing. The applicable rules of professional conduct require that Cooley
Godward inform the parties hereunder of this representation and obtain their
consent. Cooley Godward has served as outside general counsel to the Company and
has negotiated the terms of the Bridge Financing solely on behalf of the
Company. The Company and each Lender hereby (a) acknowledge that they have had
an opportunity to ask for and have obtained information relevant to such
representation, including disclosure of the reasonably foreseeable adverse
consequences of such representation; (b) acknowledge that with respect to the
Bridge Financing, Cooley Godward has represented solely the Company, and not any
Lender or any stockholder, director or employee of the Company or any Lender;
and (c) gives its informed consent to Cooley Godward's representation of the
Company in the Bridge Financing.

     

    5.9           Delays or Omissions. It is
agreed that no delay or omission to exercise any right, power or remedy accruing
to each Lender, upon any breach or default of the Company under this Agreement
or any Note shall impair any such right, power or remedy, nor shall it be
construed to be a waiver of any such breach or default, or any acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. It is further agreed that
any waiver, permit, consent or approval of any kind or character by Lender of
any breach or default under this Agreement, or any waiver by any Lender of any
provisions or conditions of this Agreement must be in writing and shall be
effective only to the extent specifically set forth in writing and that all
remedies, either under this Agreement, or by law or otherwise afforded to the
Lender, shall be cumulative and not alternative.

     

    5.10           Entire Agreement. This
Agreement and the Exhibits hereto constitute the full and entire understanding
and agreement between the parties with regard to the subjects hereof and no
party shall be liable or bound to any other party in any manner by any
representations, warranties, covenants and agreements except as specifically set
forth herein.

     

    
      
        
        

      

      
        5.

        
          

        

      

      
        
        

      

    

     

    [REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]

     

    
      
        
        

      

      
        6.

        
          

        

      

      
        
        

      

    

    
 

    IN WITNESS WHEREOF, the
parties have executed this LOAN
AGREEMENT as of the Effective Date.

    


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    IN WITNESS WHEREOF, the
parties have executed this LOAN
AGREEMENT as of the Effective Date.

    


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    SCHEDULE
1

     

    COMMITTED
LOAN AMOUNT

    


    
      
        
          
            	
                    NAME
      AND ADDRESS

                  	 	
                    COMMITTED

                    LOAN
      AMOUNT

                  	 
	 	 	 	 	 
	
                    Rose
      Hill Gardens, LLC

                  	 	$	1,000,000	 


          

        

      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     SCHEDULE
2

     

    SCHEDULE
OF LOANS

     

    INITIAL
CLOSING (SEPTEMBER ___, 2008):

    


    
      
        
          
            	
                    NAME
      AND ADDRESS

                  	 	
                    LOAN
      AMOUNT

                  	 
	 	 	 	 	 
	
                    Rose
      Hill Gardens, LLC

                  	 	$	[            
      ]	 


          

        

      

    

     

    
 

    SECOND
CLOSING (_______ ___, 200_):

    


    
      
        
          
            	
                    NAME
      AND ADDRESS

                  	 	
                    LOAN
      AMOUNT

                  	 
	 	 	 	 	 
	
                    Rose
      Hill Gardens, LLC

                  	 	$	[            
      ]	 


          

        

      

    

    


    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
A

     

    FORM
OF SENIOR SECURED PROMISSORY NOTE

     

    
      
        
        

      

      
        A-2

        
          

        

      

      
        
        

      

    

    


    BILL
OF SALE

     

    This BILL OF
SALE (this
“Bill of Sale”) is
made and entered into as of December 31, 2008 from Rose Hill
Gardens, LLC, a California limited liability company (“Seller”) to First Blush, Inc., a Delaware
corporation (“Purchaser”).

    


    RECITALS

    


    WHEREAS, Seller desires to sell to Purchaser all raw
materials, finished goods and all other assets and reimburse
certain payables related to the business of the Purchaser (collectively the
“Assets”) set forth on
EXHIBIT A hereto for an aggregate
purchase price of $828,697.90 (the “Purchase
Price”); and

    


    WHEREAS, by this instrument
Seller is vesting in Purchaser all right, title and interest in, to and under
the Assets.

    


    AGREEMENT

     

    1.           Sale and Assignment of
Purchased Assets. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller hereby sells, assigns,
transfers, conveys and delivers to Purchaser all right, title and interest in,
to and under all of the Assets.

    


     

    2.           Purchase Price.
Purchaser shall make payment for the Purchase Price of the Assets to Seller
promptly by drawing upon the Seller Secured Debt Facility provided by the Seller
or by payment in Cash.

    


     

    3.           As-Is Transaction.
The Seller makes no warranties, express or implied, regarding the condition,
merchantability or fitness for a particular purpose of the Equipment. Buyer
takes the Equipment on an "as is" basis with all faults.

    


     

    4.           Further Assurances.
Seller and Purchaser each agree to cooperate fully with the other party and to
execute and/or cause to be delivered to Purchaser such other assignments,
transfers, conveyances and other instruments and documents and to give such
further written assurances as may be reasonably requested by any other party to
evidence, vest, perfect, confirm, document and carry out the sale of the Assets
and Purchaser's ownership of all right, title and interest contemplated
hereby.

    


     

    5.           Governing Law. The
internal laws of the State of California, irrespective of its choice of law
principles, will govern the validity of this Bill of Sale, the construction of
its terms, and the interpretation and enforcement of the rights and duties of
the parties hereto.

    


    7.           Counterparts. This
Bill of Sale may be executed in any number of counterparts, each of which is an
original and all of which taken together constitute one instrument.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, Seller and Purchaser have executed this Bill of Sale on the
date first written above.

    


    


    


    ROSE
HILL GARDENS, LLC

    By:
______________________________

    Name:
Victoria Briggs

    Title:
Managing Member

    


    FIRST
BLUSH, INC.

    


    By:
________________________________

    


    Name:
Daniel Ginsberg

    Title:
President

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
A

     

    ASSETS

     

    


    
      
        
          	
                  Concentrate/Contracts

                	 	$	387,508.15	 
	
                  Trays

                	 	$	6,537.60	 
	
                  Bottles

                	 	$	27,000.00	 
	
                  Finished
      Juice/Tea

                	 	$	163,488.00	 
	
                  Payables

                	 	$	184,316.02	 
	
                  Cumulative
      Loss 07-08 Owed to RHG

                	 	$	52,328.91	 
	
                  AR
      at 12/31/08 Owed RHG

                	 	$	7,519.22