EX-10.1






LOAN AND SECURITY AGREEMENT




This LOAN AND SECURITY AGREEMENT is entered into as of December 27, 2011 by and
between Jones Soda Co. (USA) Inc., a Washington corporation (“Borrower”), and
Access Business Finance L.L.C. (“Lender”).



RECITALS




A. Borrower has requested that Lender provide financial accommodations to Borrower as more
fully set forth herein and in the Loan Documents.



B. The Obligations will be guaranteed by Guarantors.



NOW, THEREFORE, in consideration of the premises, and intending to be legally bound hereby,
the Parties hereby agree as follows:



AGREEMENT




1. Certain Definitions and Index to Definitions.



1.1. Accounting Terms. Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared in accordance with GAAP
consistently applied.



1.2. Definitions. All other terms contained in this Agreement, which are not specifically
defined herein, shall have the meanings provided in the UCC or the PPSA to the extent the same are
used herein. All references herein to the singular or plural shall also mean the plural or the
singular, respectively. As used herein, the following terms shall have the following meanings:



1.2.1. “Advances” — see Section 2.1.1 hereof.



1.2.2. “Agreement” — this Loan and Security Agreement, together with all exhibits and
schedules hereto, as the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated, or replaced.



1.2.3. “Allowable Amount” — the lesser of (i) the Borrowing Base less Availability Reserves
and (ii) the Maximum Amount.



1.2.4. “Audit Fee” – The current hourly rate per examiner, plus travel expenses.



1.2.5. “Availability Reserves” — as of any date of determination, such amounts as Lender may
from time to time establish and revise in good faith reducing the amount of Advances which would
otherwise be available to Borrower hereunder:




1.2.5.1. To reflect events, conditions, contingencies or risks which, as determined by
Lender in good faith, do or may affect either (i) the Collateral or any other property which
is security for the Obligations or its value, (ii) the assets, business or prospects of
Borrower or any Obligor, or (iii) the security interest and other rights of Lender in the
Collateral (including the enforceability, perfection and priority thereof);




1.2.5.2. To reflect Lender’s good faith belief that any collateral report or financial
information furnished by or on behalf of Borrower or any Obligor to Lender is or may have
been incomplete, inaccurate or misleading in any material respect; or




1.2.5.3. In respect of any state of facts that Lender determined in good faith
constitutes an Event of Default or may, with notice or passage of time or both, constitute
an Event of Default.



1.2.6. “Average Unused Portion of Maximum Amount” — the Maximum Amount less the average
Obligations that were outstanding during the immediately preceding month.



1.2.7. “Avoidance Claim” — any claim that any payment received by Lender from or for the
account of an Account Debtor is avoidable under the United States Bankruptcy Code, the BIA or any
other state or federal debtor relief statute under any applicable jurisdiction (collectively,
“Bankruptcy Law”).



	 	 	 	 	 
	 	1.2.8.	 	 	“Balance Subject to Interest” – The sum of the unpaid balances of:

	1.2.8.1.

1.2.8.2.

1.2.8.3.

1.2.9.

1.2.10.

1.2.11.

1.2.12.
	 	Advances;

Payments by Lender on account of Letters of Credit;

Other payments made by Lender arising hereunder for which Borrower is liable to Lender.

“Banking Day” – A day on which a commercial bank is open for business in the Chosen State.

“BIA” – Bankruptcy and Insolvency Act (Canada).

“Borrower” — see Preamble hereof.

“Borrowing Base” – the sum of:








1.2.12.1. (i) Seventy-Five percent (75%) of the Net Face Amount of Borrower’s
Eligible Accounts, plus the lesser of (1) N/A% of the Value of Eligible Inventory,
(2) N/A or (3) N/A of the Net Face Amount of Borrower’s Eligible Accounts.



1.2.13. “Borrowing Base Certificate” — a request for an Advance, in a form acceptable to
Lender.



1.2.14. “Business Day” — any day which is not a Saturday, Sunday, or other day on which
national banks are authorized or required to be closed.



1.2.15. “Canada Loan Agreement” – That certain Loan and Security Agreement dated as of
essentially even date herewith, between Lender and Jones Soda (Canada) Inc.



1.2.16. “Chosen Province” – British Columbia.



1.2.17. “Chosen State” — Washington.



1.2.18. “Claim” – a claim by an Account Debtor, of any defense, dispute, offset, counterclaim,
or rights of return or cancellation with respect to any Account.



1.2.19. “Clearance Days” — three (3) Business Days.



1.2.20. “Collateral”– All Borrower’s present and future Accounts, Chattel Paper, Goods
(including Inventory and Equipment), Instruments, Investment Property, Documents, and General
Intangibles, and the proceeds thereof.



1.2.21. “Collateral Management Fee” — .65% per month of Balance Subject to Interest.



1.2.22. “Contractual Termination Date” – The end of the Initial Term or any Renewal Term, as
the case may be.



1.2.23. “Credit Accommodation” — any advance or other extension of credit by Lender to or on
behalf of Borrower hereunder.



	 	 	 
	1.2.24.

1.2.25.

1.2.26.
	 	“Default Rate” – 10% per annum in excess of the Interest Rate.

“Default Waiver Fee” — $1,000.00.

“Delinquent Account” – see Section 1.2.29 (a).







1.2.27. “Early Termination Date” – the date on which this Agreement terminates at the request
of Borrower other than a Contractual Termination Date.



1.2.28. “Early Termination Fee” – the greater of the product of (x) the number of months (or
portions thereof) between the next Contractual Termination Date and the Early Termination Date and
(y) the greater of (1) the average monthly interest plus Collateral Management Fee for the
immediately preceding three months, or (2) the Minimum Monthly Income, but no less than
$15,000.00.



1.2.29. “Eligible Account”- an Account, excluding the following:




	 	(a)	 	Any Account which remains uncollected for more than 90 days from
invoice date (each a “Delinquent Account”);






	 	(b)	 	Finance Charges assessed by Borrower against past due Account
Debtors.






(c) Any Account due from an Account Debtor that is insolvent;




	 	(d)	 	Any Account due from an Account Debtor affiliated with Borrower in
any manner;






(e) Any Account which is not unconditionally due and owing;




	 	(f)	 	Any Account owing by an Account Debtor which does not have a place of
business in the United States or Canada or which is not payable in US or Canadian
dollars, other than an Account (i) covered by credit insurance in form and amount,
and by an insurer, satisfactory to Lender, or (ii) supported by a letter of credit
issued by a financial institution acceptable to Lender;






	 	(g)	 	Any Account due from an Account Debtor who is any national, federal,
state, provincial or municipal government, including, without limitation, any
instrumentality, division, agency, body or department thereof, except where the
Account Debtor is bound to make payment directly to Lender;






	 	(h)	 	Accounts commonly known as “bill and hold” or a similar arrangement;






	 	(i)	 	Accounts due from an Account Debtor as to which 10% percent
or more of the aggregate dollar amount of all outstanding Accounts owing from such
Account Debtor are Delinquent Accounts.






	 	(j)	 	That portion of Accounts due from an Account Debtor which is in
excess of 10% percent of Borrower’s aggregate dollar amount of all
outstanding Accounts Receivable;






	 	(k)	 	Accounts for which Borrower is or may become indebted to the Account
Debtor;






	 	(l)	 	Accounts which are not free of all liens, encumbrances, charges,
rights and interest of any kind, except in favor of Lender;






	 	(m)	 	Accounts which are supported or represented by a promissory note,
post-dated check or letter of credit unless Lender holds a first priority
perfected security interest therein;






	 	(n)	 	That portion of Accounts due from an Account Debtor which is in
excess of any credit limit set by Lender for such Account Debtor;






	 	(o)	 	Accounts that are payable in other than US or Canadian dollars;






	 	(p)	 	Accounts that represent progress payments or other advance billings
that are due prior to the completion of performance by Borrower of the subject
contract for goods or services;






	 	(q)	 	Accounts that are unsuitable as collateral, as determined by Lender
in the exercise of its reasonable sole discretion.





	 	 	 	 	 
	 	1.2.30.	 	 	“Eligible Inventory” – Finished goods and raw materials Inventory of Borrower which is:

	1.2.30.1.

1.2.30.2.

1.2.30.3.

1.2.30.4.

1.2.31.
	 	Subject to Lender’s first priority, perfected security interest;

Of good and merchantable quality free from defects;

Not owned by Borrower for more than 180 days; and

Otherwise acceptable to Lender in its reasonable sole discretion.

“Event of Default” — see Section 12 hereof.







1.2.32. “Exposed Payments” – Payments received by Lender from an Account Debtor that has
become subject to a bankruptcy proceeding, to the extent such payments cleared said Account
Debtor’s deposit account within ninety days of the commencement of said bankruptcy case.



1.2.33. “GAAP” — means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and pronouncements of the Financial Accounting Standards Board (or any successor
authority) that are applicable as of the date of determination.



1.2.34. “Guarantors” — all entities now or hereafter guaranteeing the Obligations.



1.2.35. “Initial Term” — one (1) year from the date hereof.



1.2.36. “Interest Rate” – 2.00% percent per annum in excess of the Prime Rate, but no
less than 5.25%. Any change in the Interest Rate shall be effective as of the date of any
change in the Prime Rate.



1.2.37. “Key Employees” —  William Meissner and Carrie Traner.



1.2.38. “Lender” – See Preamble.



1.2.39. “Loan Documents” — this Agreement, together with any documents, instruments and
agreements, executed and/or delivered in connection herewith, including the Warrant, as the same
now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.



1.2.40. “Loan Fee” — 1% of the Maximum Amount at the time this fee accrues.



1.2.41. “Maximum Amount” — $2,000,000.00 less the Balance Subject to Interest under the
Canada Loan Agreement.



1.2.42. “Minimum Monthly Income” — $5,000.00.



1.2.43. “Minimum Tangible Net Worth” — N/A.



1.2.44. “Misdirected Payment” – any payment on an Account, which has been received by Borrower
and not delivered in kind by Borrower to Lender within three (3) Business Days of receipt thereof.



1.2.45. “Misdirected Payment Fee” — the greater of (i) $1,000.00 or (ii) 15% of the amount of
any Misdirected Payment.



1.2.46. “Monetary Collateral” — cash, checks or other proceeds of Collateral in tangible form.



1.2.47. “Net Face Amount” — with respect to an Account, the gross face amount of such Account
less all trade discounts or other deductions and claims to which the Account Debtor is
contractually entitled.



1.2.48. “Obligated Party” — any entity obligated with respect to any Collateral.



1.2.49. “Obligations” — all present and future obligations owing by Borrower to Lender whether
arising hereunder or otherwise, and whether arising before, during or after the commencement of any
Bankruptcy Case in which Borrower is a Debtor.



1.2.50. “Parent” – Jones Soda Co., a Washington corporation, the common stock of which is
traded on the NASDAQ stock exchange under the symbol JSDA.



1.2.51. “PPSA” – the Personal Property Security Act (British Columbia) and the regulations and
ministerial orders thereunder, as from time to time in effect, provided, however, if attachment,
perfection or priority of Lender’s security interests in the Collateral are governed by the
personal and movable property security laws of any jurisdiction other than British Columbia, PPSA
shall mean those personal property security laws in such other jurisdiction (including the Civil
Code of Quebec where the Borrower owns any personal or movable property in the Province of Quebec)
for the purposes of the provisions hereof relating to such attachment, perfection or priority and
for the definitions related to such provisions.



1.2.52. “Prime Rate” — The prime rate as reflected in the Wall Street Journal from time to
time. If the prime rate is reflected as a range, then the Prime Rate as used herein shall be the
highest amount in said range.



1.2.53. “Receiver” — a receiver, receiver-manager and receiver and manager.



1.2.54. “Renewal Term” — one year.



1.2.55. “Special Credit Accommodation” – A Credit Accommodation in excess of the Allowable
Amount, made at the request of Borrower.



1.2.56. “Special Credit Accommodation Surcharge” – The greater of 2% percent of the amount of
any Special Credit Accommodation or $500.00.



1.2.57. “Standard Fee Schedule” — the schedule of Lender’s standard fees for services.



1.2.58. “Subordinating Creditor” – any creditor of the Borrower which has executed a
Subordination Agreement.



1.2.59. “Subordination Agreement” — a subordination agreement in form and substance acceptable
to Lender whereby Subordinating Creditor subordinates, in favor of Lender, obligations owed to it
by Borrower.



1.2.60. “Termination Date” — the earlier of (i) the Contractual Termination Date or (ii) the
date on which Lender elects to terminate this Agreement pursuant to the terms herein.



1.2.61. “UCC” — The Uniform Commercial Code in effect in the Chosen State at the date on which
a determination thereunder is to be made.



1.2.62. “Unused Line Fee” — waived.



1.2.63. “Value of Eligible Inventory” — As determined by Lender in good faith, the lower of
(a) cost, computed on a first-in-first-out basis in accordance with GAAP, or (b) market value.



1.2.64. “Warrant” – A warrant issued to Lender, in form and substance acceptable to Lender, in
its sole discretion, to purchase shares of the common stock of Parent equal in value to $50,000,
with an exercise price equal to the average closing price of the Parent’s stock listed on the
NASDAQ exchange during the twenty (20) consecutive days following the earlier of: (i) of the date
of the initial Advance hereunder and (ii) the date of the initial Advance under the Canada Loan
Agreement.



2. Credit Facilities.



2.1. Advances. Subject to the terms and conditions of this Agreement, from the date on which
this Agreement becomes effective until the Termination Date:



2.1.1. Lender, shall, from time to time, at the request of Borrower, make advances
(“Advances”) to Borrower, less any Availability Reserves, so long as, before and after such
Advance, the Obligations do not exceed the Allowable Amount.



2.1.2. Lender may, in its discretion, from time to time reduce the Borrowing Base to the
extent that Lender determines in good faith that:




2.1.2.1. The dilution with respect to the Accounts for any period (based on the ratio
of (a) the aggregate amount of reductions in Accounts other than as a result of payments in
cash to (b) the aggregate amount of total sales) has increased in any material respect or
may be reasonably anticipated to increase in any material respect above historical levels;




2.1.2.2. The general creditworthiness of Account Debtors has declined; or




2.1.2.3. The number of days of the turnover of the Inventory for any period has changed
in any material respect, or (a) the liquidation value of the Eligible Inventory, or any
category thereof, has decreased, or (b) the nature and quality of the Inventory has
deteriorated.



2.2. Special Credit Accommodations.



2.2.1. Lender may, in its discretion, from time to time make a Special Credit Accommodation
available to Borrower.



2.2.2. Each Special Credit Accommodation shall be payable on demand.



2.3. General Provisions.



2.3.1. Borrowing Base Certificate. Each request from Borrower for a Credit Accommodation
shall be accompanied by a Borrowing Base Certificate, completed and signed by Borrower.



2.3.2. Crediting Borrower’s Account. All Credit Accommodations by Lender may be made by
deposits or transfers to any demand deposit account of Borrower.



2.3.3. Authorization for Credit Accommodations. Subject to the terms and conditions of this
Agreement, Lender is authorized to make Credit Accommodations:




2.3.3.1. Upon telephonic, facsimile or other instructions received from anyone
purporting to be an officer, employee or representative of Borrower; or




2.3.3.2. At the sole discretion of Lender, and notwithstanding any other provision in
this Agreement, if necessary to meet any Obligations, including but not limited to any
interest not paid when due.



2.4. Limitations on Credit Accommodations. Notwithstanding anything to the contrary contained
herein, Lender shall not be obligated to make a Credit Accommodation if, before or as a result
thereof, the Obligations shall exceed the Allowable Amount.



3. Payments by Borrower.



3.1. In General.



3.1.1. Place of Payments. All payments hereunder shall be made by Borrower to Lender at
Lender’s address set forth herein or at such other place as Lender may designate in writing.



3.1.2. ACH Debits. In order to satisfy any of the Obligations, Lender is hereby authorized by
Borrower to initiate electronic debit entries through the ACH or other electronic payment system to
any account maintained by Borrower. At the Lender’s request, Borrower shall execute and deliver to
Lender an authorization agreement for ACH debits.



3.2. Interest and Fees.




3.2.1. Interest.




3.2.1.1. Basic Interest. Subject to Section 3.2.1.3 hereof, interest on the Balance
Subject to Interest shall be payable monthly, in arrears, shall be computed at the Interest
Rate, and shall be due on the first (1st) day of each month following the accrual thereof.
Lender is authorized to debit Borrower’s loan account on the first Business Day of each
month for interest accrued hereunder during the preceding month.




3.2.1.2. Minimum Monthly Income. Any amount by which the sum of interest and
Collateral Management Fee earned hereunder and under the Canada Loan Agreement in any month
is less than the Minimum Monthly Income, shall be paid on the first day of the following
month.




3.2.1.3. Default Interest. Immediately upon the occurrence of an Event of Default,
interest shall be charged at the greater of: (i) interest on the Balance Subject to Interest
computed at the Default Rate; (ii) the monthly average of all interest and fees paid by
Borrower to Lender hereunder for the preceding one-hundred eighty (180) days (or portion
thereof if Obligations have not been outstanding for at least one-hundred eighty (180)
days); or (iii) the Minimum Monthly Income for each applicable Month or portion thereof.
Lender’s failure to assess interest at the Default Rate as provided hereunder shall not be
deemed a waiver by Lender to charge such Default Rate.




3.2.1.4. Calculation of Interest. All interest charged hereunder shall be computed on
the basis of a three hundred sixty (360) day year (the “deemed year”) for the actual number
of days elapsed. Such rate of interest shall be expressed as a yearly rate for the purposes
of the Interest Act (Canada) by multiplying such rate of interest by the actual number of
days in the calendar year of calculation, whether 365 or 366, as the case may be, and
dividing it by the number of days in the deemed year.




Notwithstanding anything herein to the contrary, in the event that any provision herein
would oblige Borrower to make any payment of interest or other amount payable to Lender
hereunder in an amount or calculated at a rate which would be prohibited by law or would
result in a receipt by Lender of interest at a criminal or prohibited rate (as such terms
are construed under the Criminal Code (Canada) or any other applicable law), notwithstanding
such provision, such amount or rate shall be deemed to have been adjusted nunc pro tunc to
the maximum amount or rate of interest, as the case may be, as would not be so prohibited by
law or so result in a receipt by the Lender of interest at a criminal or prohibited rate




3.2.1.5. Application of Collections. Lender shall, for the purpose of the computation
of interest due hereunder, add the Clearance Days to any payments, which is acknowledged by
the parties to constitute an integral aspect of the pricing of Lender’s facility to
Borrower, and shall apply irrespective of the characterization of whether receipts are owned
by Borrower or Lender. Should any check or item of payment not be honored when presented
for payment, then Borrower shall be deemed not to have made such payment, and interest shall
be recalculated accordingly.



3.2.2. Fees.




3.2.2.1. Audit Fee. Borrower shall immediately pay to Lender an Audit Fee, in addition
to Lender’s related out-of-pocket expenses, in connection with each audit Lender performs or
causes to be performed hereunder.




3.2.2.2. Collateral Management Fee. Borrower shall pay the Collateral Management Fee
to Lender monthly, in arrears, on the first (1st) day of each month following the accrual
thereof.




3.2.2.3. Default Waiver Fee. Borrower shall pay the Default Waiver Fee to Lender,
immediately upon the waiver by Lender of any Event of Default hereunder, so long as the
waiver was done at the Borrower’s request.




3.2.2.4. Early Termination Fee.




	 	3.2.2.4.1.	 	Borrower shall immediately pay to Lender the Early Termination Fee if
Borrower terminates this Agreement, becomes the debtor in a case filed under
Bankruptcy Law or any similar state proceeding, or repays the Obligations
(whether by acceleration or otherwise, except if such repayment is due to
termination of this Agreement by Lender) prior to the end of the Contractual
Termination Date.






3.2.2.5. Loan Fee. Borrower shall pay the Loan Fee to Lender on the date hereof, and
on each subsequent one-year anniversary of the date hereof, until the later of (i)
termination of this Agreement, and (ii) full payment of all Obligations.




3.2.2.6. Misdirected Payment Fee. Borrower shall pay the Misdirected Payment Fee to
Lender, immediately on its accrual, on the amount of any Misdirected Payment.




3.2.2.7. Special Credit Accommodation Surcharge. Borrower shall pay the Special Credit
Accommodation Surcharge to Lender immediately when incurred, in addition to all other
interest, fees and other charges payable on such Credit Accommodation.




3.2.2.8. Standard Fees. Borrower shall pay to Lender fees for such services as Lender
customarily charges, as set forth in Lender’s Standard Fee Schedule, a copy of which will be
provided to Borrower on demand. Lender shall have the right to change all or any of such
fees upon ten days notice to Borrower.




3.2.2.9. Unused Line Fee. Borrower shall pay the Unused Line Fee to Lender monthly, in
arrears on the first (1st) day of each month following the accrual thereof.



4. Grant of Security Interest. To secure the performance of the Obligations, Borrower
grants to the Lender a security interest in the Collateral, and all proceeds and products thereof.



5. Authorization to File Financing Statements.



5.1. The Borrower irrevocably authorizes the Lender to file in any applicable jurisdiction
pursuant to the UCC, PPSA or other applicable laws, any financing statements and amendments thereto
that:



5.1.1. Indicate the Collateral as all assets of the Borrower or words of similar effect,
regardless of whether any particular asset comprised in the Collateral falls within the scope of
the PPSA or Article 9 of the UCC, or as being of an equal or lesser scope or with greater detail;



5.1.2. Contain any other information required by the PPSA or part 5 of Article 9 of the UCC
for the sufficiency or filing office acceptance of any financing statement or amendment, including
(i) whether the Borrower is an organization, the type of organization, and any organization
identification number issued to the Borrower and, (ii) in the case of a financing statement filed
as a fixture filing or indicating Collateral to be as-extracted collateral or timber to be cut, a
sufficient description of real property to which the Collateral relates;



5.1.3. Contain a notification that the Borrower has granted a negative pledge to the Lender,
and that any subsequent lien may be tortuously interfering with Lender’s rights;



5.1.4. Advises third parties that any notification of Borrower’s Account Debtors will
interfere with Lender’s collection rights;



5.2. The Borrower agrees to furnish any of the foregoing information to the Lender promptly
upon request;



5.3. The Borrower ratifies its authorization for the Lender to have filed any like initial
financing statements or amendments thereto if filed prior to the date hereof; and



5.4. The Lender may add any supplemental language to any such financing statement as Lender
may determine to be necessary or helpful in acquiring or preserving rights against third parties.



6. Collection and Administration of Accounts.



6.1. Borrower shall direct its customers to send the proceeds of Accounts to an address or
deposit account as directed by Lender.



6.2. In the event Borrower receives proceeds of Collateral in the form of a wire transfer or
other intangible funds transfer mechanism, Borrower shall immediately pay such proceeds to Lender.



6.3. Lender’s Powers. Borrower hereby authorizes Lender, at Borrower’s sole expense, to
exercise at any time in Lender’s discretion all or any of the following powers, which powers are
irrevocable until all of the Obligations have been paid in full:



6.3.1. Receive, take, endorse, assign, deliver, accept and deposit, in the name of Lender or
Borrower, any and all cash, checks, commercial paper, drafts, remittances and other instruments and
documents relating to the Collateral or the proceeds thereof;



6.3.2. Pay any sums necessary to discharge any lien or encumbrance that is senior to Lender’s
security interest in the Collateral, which sums shall be included as Obligations hereunder.



6.3.3. Send requests (which may identify the sender by a pseudonym) for verification of any
Accounts directly to the Account Debtor or any bailee of the Collateral.



6.3.4. Lender may notify Borrower’s customers that that the underlying Account has been
assigned to Lender and that payment thereof is to be made to the order of Lender and sent directly
to Lender. The notification may be in the form of Exhibit A.



6.4. Release. Borrower hereby releases and exculpates Lender, its officers, employees,
agents, designees, attorneys, and accountants from any liability arising from any acts under this
Agreement or in furtherance thereof, whether of omission or commission, and whether based upon any
error of judgment or mistake of law or fact, except for gross negligence or willful misconduct. In
no event shall Lender have any liability to Borrower for lost profits or other special or
consequential damages.



7. Representations and Warranties by Borrower.



7.1. All Accounts listed on any report provided by Borrower to Lender will be unless otherwise
noted on such report:



7.1.1. Bona fide existing obligations created by the sale and delivery of goods or the
rendition of services in the ordinary course of Borrower’s business;



7.1.2. Unconditionally owed and will be paid without the assertion of any Claim; and



7.1.3. Not sales to any entity that is affiliated with Borrower or in any way not an “arms
length” transaction.



7.2. There are no actions or proceedings pending by or against Borrower before any court or
administrative agency and Borrower does not have knowledge or belief of any pending, threatened, or
imminent litigation, governmental investigations, or claims, complaints, actions, or prosecutions
involving Borrower or any Guarantor of the Obligations, except for ongoing collection matters in
which Borrower is the plaintiff.



7.3. All financial statements relating to Borrower that have been delivered by Borrower to
Lender have been prepared in accordance with GAAP and fairly present Borrower’s financial condition
as of the date thereof and Borrower’s results of operations for the period then ended. There has
not been a material adverse change in the financial condition of Borrower since the date of the
latest financial statements submitted to Lender on or before the date hereof.



8. Conditions Precedent to Advances.



8.1. Condition Precedent to Initial Advance. Subject to the other terms and conditions
contained herein, Lender’s obligation to make an initial Advance to Borrower is subject to the
satisfaction of, or waiver of, immediately prior to or concurrently with the making of such initial
advance, Borrower’s delivery of the Warrant, duly executed by Parent.



8.2. Conditions Precedent to All Advances. Subject to the other terms and conditions contained
herein, Lender’s obligation to make any Credit Accommodation available to Borrower is subject to
the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such
Credit Accommodation, the following conditions precedent:



8.2.1. Representations and Warranties. The representations and warranties contained in the
Loan Documents shall be true and correct in all respects on and as of the date of such Credit
Accommodation.



8.2.2. No Event of Default. No Event of Default or event that with the giving of notice or
passage of time would constitute an Event of Default shall have occurred and be continuing on the
date of such Credit Accommodation.



8.2.3. Payment of All Fees. Borrower shall have paid to Lender all accrued and unpaid fees
and other amounts due and payable hereunder and pursuant to the terms hereof.



8.2.4. Lender’s Priority Interest. Lender shall have a first priority security interest in
the Collateral, except as set forth in Exhibit B.



9. Authorization to Lender.



9.1. The Borrower irrevocably authorizes Lender to take any and all appropriate action and to
execute any and all documents and instruments, in the name of Borrower, that may be necessary or
desirable to accomplish the purposes of this Agreement including the filing on behalf of Borrower
with such governmental authorities as are appropriate such documents (including, without
limitation, applications, certificates, and tax returns) as may be required for purposes of having
Borrower qualified to transact business in a particular state, province or other geographic
location.



9.2. Borrower authorizes Lender to accept, endorse and deposit on behalf of Borrower any
checks tendered by an account debtor “in full payment” of its obligation to Borrower. Borrower
shall not assert against Lender any claim arising therefrom, irrespective of whether such action by
Lender effects an accord and satisfaction of Borrower’s claims, under §3-311 of the Uniform
Commercial Code, or otherwise.



10. Affirmative Covenants. Until full payment of the Obligations and termination of
this Agreement, Borrower shall:



10.1. At such times as Lender may request and in the manner specified by Lender, deliver to
Lender original invoices, copies of invoices, agreements, proof of rendition of services and
delivery of goods and other documents evidencing or relating to the transactions which gave rise to
any of the Collateral, together with customer statements, schedules describing the Collateral and
confirmatory assignments to Lender thereof, in form and substance satisfactory to Lender, and duly
executed by Borrower.



10.2. Immediately advise Lender, in writing, of the assertion of any Claim by an Account
Debtor.



10.3. Financial Statements, Reports and Certifications. Furnish to Lender, in form and
substance satisfactory to Lender:



10.3.1. Annual Financial Statements. As soon as possible after the end of each fiscal year of
Borrower, and in any event within ninety (90) days thereafter:




10.3.1.1. A complete copy of Borrower’s financial statements, including but not limited
to (a) the management letter, if any, (b) the balance sheet as of the close of the fiscal
year, and (c) the income statement for such year, together with a statement of cash flows,
audited by a firm of independent certified public accountants of recognized standing
and acceptable to Lender, or if permitted by Lender in writing, by Borrower; and




10.3.1.2. A statement certified by the chief financial officer of Borrower that
Borrower is in compliance with all the terms, conditions, covenants and warranties of this
Agreement.



10.3.2. Other Financial Statements. No later than thirty (30) days after the close of
each month (an “Accounting Period”):




10.3.2.1. Borrower’s balance sheet as of the close of such Accounting Period and its
income statement for that portion of the then current fiscal year through the end of such
Accounting Period certified by Borrower’s chief financial officer as fairly representing its
financial condition and results of operations in accordance with US GAAP;




10.3.2.2. Borrower’s accounts receivable and accounts payable agings as of the end of
such Accounting Period, as well as its month end inventory report, and an accounts
receivable collection report in a form satisfactory to Lender, certified by Borrower’s chief
financial officer as being complete and correct in all material respects;



10.3.3. Tax Returns. Copies of each of Borrower’s:




10.3.3.1. Federal income tax returns, and any amendments thereto, within ten (10) days
of the filing thereof with the Internal Revenue Service; and




10.3.3.2. Federal payroll tax returns within ten (10) days of filing, together with
proof, satisfactory to Lender, which all taxes have been paid.



10.3.4. A listing of all Borrower’s Inventory, based upon a physical count taken by Borrower
every N/A months and whenever requested by Lender.



10.4. Inspections.



10.4.1. During usual business hours, permit Lender, without notice to Borrower, to
periodically:




10.4.1.1. Have access to all premises where Collateral is located for the purposes of
inspecting (and removing, if after the occurrence of an Event of Default) any of the
Collateral, and




10.4.1.2. To inspect, audit, make copies of, and make extracts from Borrower’s records
as Lender may request.



10.4.2. Without expense to Lender, Lender may use any of Borrower’s personnel, equipment,
including computer equipment, programs, printed output and computer readable media, supplies and
premises for the collection of accounts and realization on other Collateral as Lender, in its sole
discretion, deems appropriate.



10.5. Indemnification. Indemnify and save Lender harmless from any and all liability with
respect to any stamp or other taxes (other than transfer or income taxes) which may be determined
to be payable in connection with the execution of the Loan Documents or any action of Lender with
respect to the Collateral, including, without limitation, the transfer of the Collateral to
Lender’s name or that of Lender’s nominee or any purchaser at a foreclosure sale.



10.6. Enforcement of Judgments. Reimburse Lender for all costs and expenses, including legal
fees, which Lender incurs in enforcing any judgment rendered in connection with this Agreement.
This provision is severable from all other provisions hereof and shall survive, and not be deemed
merged into, such judgment.



10.7. Taxes and Expenses Regarding Borrower’s Assets.



10.7.1. Make timely payment or deposit of all taxes, assessments or contributions required of
Borrower. If Borrower fails to make any such payment or deposit or furnish proof of such payment
immediately upon Lender’s request, Lender may, in its sole discretion and without notice to
Borrower:




10.7.1.1. Make payment of the same or any part thereof; or




10.7.1.2. Set up such reserves against the Obligations as Lender deems necessary to
satisfy the liability therefore, or both.



10.7.2. Lender may conclusively rely on statements of the amount owing or other official
statements issued by the appropriate governmental agency. Any payment made by Lender shall
constitute neither:




10.7.2.1. An agreement by Lender to make similar payments in the future; nor




10.7.2.2. A waiver by Lender of any default under the Loan Documents. Lender need not
inquire into, nor contest the validity of, any expense, tax, security interest, encumbrance
or lien, and the receipt of the usual official notice requiring the payment thereof shall be
conclusive evidence that the same was validly due and owing.



10.8. Change in Name. Give Lender written notice immediately upon forming an intention to
change its name, jurisdiction of formation or form of business organization.



10.9. Maintenance of Insurance.



10.9.1. The Borrower will maintain with financially sound and reputable insurers insurance
with respect to its properties and business against such casualties and contingencies as shall be
in accordance with general practices of businesses engaged in similar activities in similar
geographic areas. Such insurance shall be in such minimum amounts that the Borrower will not be
deemed a co-insurer under applicable insurance laws, regulations, and policies and otherwise shall
be in such amounts, contain such terms, be in such forms and be for such periods as may be
reasonably satisfactory to the Lender. In addition, all such insurance shall be payable to the
Lender under a Lender Loss Payable Endorsement. Without limiting the foregoing, the Borrower will:




10.9.1.1. Keep all of its physical property insured with casualty or physical hazard
insurance on an “all risks” basis, with broad form flood and earthquake coverage and
electronic data processing coverage, with a full replacement cost endorsement and an “agreed
amount” clause in an amount equal to 100% of the full replacement cost of such property;




10.9.1.2. Maintain all such workers’ compensation or similar insurance as may be
required by law;




10.9.1.3. Maintain, in amounts and with deductibles equal to those generally maintained
by businesses engaged in similar activities in similar geographic areas, general public
liability insurance against claims of bodily injury, death, or property damage occurring,
on, in or about the properties of the Borrower; business interruption insurance; and product
liability insurance.



10.9.2. In the event that Borrower fails to maintain such insurance, Lender may obtain such
insurance at Borrower’s expense, and, after an Event of Default, to adjust or settle any claim or
other matter under or arising pursuant to such insurance or to amend or cancel such insurance.



10.10. Notwithstanding that Borrower has agreed to pay the Misdirected Payment Fee, Borrower
shall pay to Lender on the next banking day following the date of receipt by Borrower the amount of
any proceeds of Accounts received by Borrower.



10.11. Access to Electronic Information. Borrower hereby permits Lender at any time
to access electronically information concerning any accounts maintained by Borrower with any bank
or other financial institution so long as such access is in furtherance of, or to monitor
compliance with, the terms of this Agreement, and Borrower shall provide Lender with all necessary
access codes, passwords and the like to carry out the provisions hereof.



11. Negative Covenants. Borrower will not:



11.1. Modify Account Obligations. After an Event of Default, (i) grant any extension of time
for payment of any Accounts, (ii) compromise or settle any Accounts for less than the full amount
thereof, (iii) release in whole or in part any Account Debtor; or (iv) grant any credits,
discounts, allowances, deductions, return authorizations, or the like with respect to any Accounts.



11.2. Negative Pledge. Hereafter grant any lien upon the Collateral except in favor of
Lender.



11.3. Mergers, etc. Enter into any acquisition, merger, consolidation, reorganization, or
recapitalization, or reclassify its capital stock, or liquidate, wind up, or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, assign, lease, transfer, or otherwise
dispose of, in one transaction or a series of transactions, all or any substantial part of its
business, property, or assets, whether now owned or hereafter acquired, or acquire by purchase or
otherwise all or substantially all of the properties, assets, stock, or other evidence of
beneficial ownership of any entity.



11.4. Transfer of Assets. Enter into any transaction not in the ordinary and usual course of
Borrower’s business, including the sale, lease, or other disposition of, moving, relocation, or
transfer, whether by sale or otherwise, of any of Borrower’s assets (other than sales of Inventory
to buyers in the ordinary course of Borrower’s business as currently conducted).



11.5. Change of Name. Change Borrower’s name, Federal Employer Identification Number,
business structure, or identity, or add any new fictitious name.



11.6. Suspension of Business. Suspend or go out of a substantial portion of its business.



11.7. Financial Covenant. Permit its tangible net worth at any time to be less than the
Minimum Tangible Net Worth;



12. Events of Default. Each of the following events or conditions shall constitute an
“Event of Default”:



	 	 	 
	12.1.

12.2.

12.3.

12.4.
	 	Borrower defaults in the performance of any payment obligation due hereunder;

Borrower is in default with respect to any present or future agreement with Lender;

Parent defaults in performance of any obligation under the Warrant;

The Obligations at any time exceed the Allowable Amount;







12.5. Borrower or any Guarantor fails to pay any indebtedness for borrowed funds when due or
fails to perform or observe any term, covenant, or condition of any agreement relating to any such
indebtedness, if the effect of such failure to perform or observe is the acceleration of the
maturity of such indebtedness, whether or not such failure is waived by the obligee of such
indebtedness; or any such indebtedness is declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), prior to the stated maturity thereof.



12.6. An order for relief is entered against any Obligor by any court; or any Obligor does not
generally pay its debts as they become due (within the meaning of 11 U.S.C. 303(h) as at any time
amended, or any successor statute thereto); or any Obligor makes an assignment for the benefit of
creditors; or any Obligor applies for or consents to the appointment of a custodian, receiver,
trustee, or similar officer for it or for all or any substantial part of its assets, or such
custodian, receiver, trustee, or similar officer is appointed without the application or consent of
any Obligor; or any Obligor institutes (by petition, application, answer, consent, or otherwise)
any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt,
dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction;
or any such proceeding shall be instituted (by petition, application, or otherwise) against any
Obligor; or any judgment, writ, warrant of attachment, execution, or similar process shall be
issued or levied against a substantial portion of the property of any Obligor;



12.7. An adverse change occurs with respect to the financial condition or operations of
Borrower which results in a material impairment of the prospect of repayment of the Obligations;



12.8. A sale, hypothecation or other disposition is made of twenty (20%) percent or more of
the beneficial interest in any class of voting stock of Borrower;



12.9. Any Guarantor defaults in the performance of its obligations to Lender or shall notify
Lender of its intention to rescind, modify, terminate or revoke its guaranty or it shall cease to
be in full force and effect for any reason whatever;



12.10. Any Subordinating Creditor fails to perform or observe any of such Subordinating
Creditor’s obligations under any Subordination Agreement, or notifies Lender of the Subordinating
Creditor’s intention to rescind, modify, terminate or revoke the Subordination Agreement with
respect to future transactions, or the Subordination Agreement ceases to be in full force and
effect for any reason whatsoever;



12.11. Any of the Key Employees fails to devote one hundred (100%) percent of their efforts in
furtherance of the business affairs of Borrower for any one month, or ceases to be employed by
Borrower in the capacity that such employee held as of the date of this Agreement and in either
case is not replaced with an employee reasonably acceptable to Lender;



12.12. Any provision of this Agreement or any of the Loan Documents ceases, for any reason, to
be valid and binding on Borrower.



13. Remedies.



13.1. Upon the occurrence of any Event of Default all Obligations shall accrue interest at the
Default Rate and Lender may:



13.1.1. Declare this Agreement and all of Lender’s obligations hereunder terminated;



13.1.2. Declare all Obligations to be immediately due and payable, without presentment,
demand, protest, or notice of any kind, all of which are hereby expressly waived by Borrower;



13.1.3. Take or bring, in the name of Lender or Borrower, all steps, actions, suits or
proceedings deemed by Lender necessary or desirable to effect collection of or other realization
upon any Collateral;



13.1.4. Change the address for delivery of Borrower’s mail to Lender and to receive and open
mail addressed to Borrower;



13.1.5. Extend the time of payment of, compromise, or settle for cash, credit, return of
merchandise, any and all Monetary Collateral and discharge or release any Obligated Party without
affecting any of the Obligations; and/or



13.1.6. Appoint by instrument in writing a Receiver or Receivers of the Collateral or any part
thereof;



13.1.7. Execute, file and serve, in its own name or in the name of Borrower, mechanics or
statutory liens or similar notices, or claims under any payment or performance bond for the benefit
of Borrower.



13.2. BORROWER WAIVES ANY REQUIREMENT THAT LENDER INFORM BORROWER BY AFFIRMATIVE ACT OR
OTHERWISE OF ANY ACCELERATION OF BORROWER’S OBLIGATIONS HEREUNDER. FURTHER, LENDER’S FAILURE TO
CHARGE OR ACCRUE INTEREST OR FEES AT ANY “DEFAULT” OR “PAST DUE” RATE SHALL NOT BE DEEMED A WAIVER
BY LENDER OF ITS CLAIM THERETO.



14. Standards for Exercising Remedies. To the extent that applicable law imposes
duties on the Lender to exercise remedies in a commercially reasonable manner, the Borrower
acknowledges and agrees that it is not commercially unreasonable for the Lender:



14.1. To not incur expenses to prepare Collateral for disposition or otherwise to complete raw
material or work in process into finished goods or other finished products for disposition;



14.2. To fail to obtain third party consents for access to Collateral to be disposed of, or to
obtain or, if not required by other law, to fail to obtain governmental or third party consents for
the collection or disposition of Collateral to be collected or disposed of;



14.3. To fail to exercise collection remedies against Account Debtors or other persons
obligated on Collateral or to remove liens or encumbrances on or any adverse claims against
Collateral;



14.4. To exercise collection remedies against Account Debtors and other persons obligated on
Collateral directly or through the use of collection agencies and other collection specialists;



14.5. To advertise dispositions of Collateral through publications or media of general
circulation, whether or not the Collateral is of a specialized nature;



14.6. To hire one or more professional auctioneers to assist in the disposition of Collateral,
whether or not the collateral is of a specialized nature;



14.7. To dispose of Collateral by using Internet sites that provide for the auction of assets
of the types included in the Collateral or that have the reasonable capability of doing so, or that
match buyers and sellers of assets;



14.8. To dispose of assets in wholesale rather than retail markets;



14.9. To disclaim all disposition warranties; or



14.10. To purchase insurance or credit enhancements to insure the Lender against risks of
loss, collection or disposition of Collateral or to provide to the Lender a guaranteed return from
the collection or disposition of Collateral.



14.11. Borrower acknowledges that the purpose of this Section 14 is to provide non-exhaustive
indications of what actions or omissions by the Lender would not be commercially unreasonable in
the Lender’s exercise of remedies against the Collateral and that other actions or omissions by the
Lender shall not be deemed commercially unreasonable solely on account of not being indicated in
this Section. Without limitation upon the foregoing, nothing contained herein shall be construed
to grant any rights to the Borrower or to impose any duties on the Lender that would not have been
granted or imposed by this Agreement or by applicable law in the absence of this Section 14.



15. Proceeds and Expenses of Dispositions. Borrower shall pay to the Lender on demand
any and all expenses, including reasonable legal fees and disbursements, incurred or paid by the
Lender in protecting, preserving, or enforcing the Lender’s rights under or in respect of any of
the Obligations or any of the Collateral. After deducting all of said expenses, the residue of any
proceeds of collection or sale of the Obligations or Collateral shall, to the extent actually
received in cash, be applied to the payment of the Obligations in such order or preference as the
Lender may determine, notwithstanding contrary instructions received by Lender from the Borrower or
any other third party.



16. Legal Fees and Expenses. Borrower agrees to reimburse Lender on demand for:



16.1. The actual amount of all costs and expenses, including legal fees, which Lender has
incurred or may incur in:



16.1.1. Negotiating, preparing, or administering this Agreement, the Loan Documents, and any
other documents prepared in connection herewith;



16.1.2. Any way arising out of this Agreement or the Loan Documents;



16.1.3. Protecting, preserving or enforcing any lien, security interest or other right granted
by Borrower to Lender or arising under applicable law, whether or not suit is brought, including
but not limited to the defense of any Avoidance Claims;



16.2. The actual costs, including photocopying (which, if performed by Lender’s employees,
shall be at the rate of $.10/page), travel, and legal fees and expenses incurred in complying with
any subpoena or other legal process attendant to any litigation in which Borrower is a party; or



16.3. The actual amount of all costs and expenses, including legal fees, which Lender may
incur in enforcing this Agreement and any documents prepared in connection herewith, or in
connection with any insolvency proceeding commenced by or against Borrower, including those (i)
arising out the automatic stay, (ii) seeking dismissal or conversion of the bankruptcy proceeding
or (iii) opposing confirmation of Borrower’s plan thereunder.



17. Termination.



17.1. This Agreement shall become effective upon the execution and delivery hereof by Borrower
and Lender and shall continue in full force and effect until the end of the Initial Term.



17.2. This Agreement shall be automatically extended for successive Renewal Terms unless (i)
Borrower has given Lender at least thirty days’ prior written notice, or (ii) Lender has given
Borrower at least thirty days’ prior written notice, of their respective intention to have this
Agreement terminate at the end of a Contractual Termination Date.



17.3. Upon the Termination Date, the unpaid balance of the Obligations shall be due and
payable without demand or notice.



17.4. Exposed Payments.



17.4.1. Upon termination of this Agreement, Borrower shall pay to Lender (or Lender may
retain), to hold in a non-segregated non-interest bearing account the amount of all Exposed
Payments (the “Preference Reserve”).



17.4.2. Lender may charge the Preference Reserve with the amount of any Exposed Payments which
Lender pays to the bankruptcy estate of the Account Debtor which made the Exposed Payment, on
account of a claim asserted under Section 547 of the Bankruptcy Code.



17.4.3. Lender shall refund to Borrower from time to time that balance of the Preference
Reserve for which a claim under Section 547 of the Bankruptcy Code can no longer be asserted due to
the passage of the statute of limitations, settlement with the bankruptcy estate of the Account
Debtor or otherwise.



18. Revocation of Borrower’s Right to Sell Inventory Free and Clear of Lender’s Security
Interest.



Lender may, upon the occurrence of an Event of Default, revoke Borrower’s right to sell
Inventory free and clear of Lender’s security interest therein.



19. Account Stated.



Lender shall render to Borrower a statement setting forth the transactions arising hereunder.
Each statement shall be considered correct and binding upon Borrower, absent manifest error, as an
account stated, except to the extent that Lender receives, within thirty (30) days after the
mailing of such statement, written notice from Borrower of any specific exceptions by Borrower to
that statement.



20. Retention of Records.



Lender shall retain any documents, schedules, invoices or other papers delivered by Borrower
only for such period as Lender, at its sole discretion, may determine necessary, after which time
Lender may destroy such records without notice to or consent from Borrower.



21. Notices to Third Parties.



Lender shall have the right at any time to give any Guarantor or Subordinating Creditor notice
of any fact or event relating to this Agreement, as Lender may deem necessary or desirable in
Lender’s sole discretion, including, without limitation, Borrower’s financial condition. Borrower
shall provide to each Guarantor and Subordinating Creditor a copy of each notice, statement or
report required to be given to Lender hereunder.



22. Information to Participants.



Lender may furnish any financial or other information concerning Borrower, or any of its
subsidiaries, heretofore or hereafter provided by Borrower to Lender, pursuant to this Agreement or
otherwise, to any prospective or actual purchaser of any participation or other interest in any
loans made by Lender to Borrower (whether under this Agreement or otherwise), or to any prospective
purchaser of any securities issued or to be issued by Lender.



23. Entire Agreement. No promises of any kind have been made by Lender or any third
party to induce Borrower to execute this Agreement. No course of dealing, course of performance or
trade usage, and no parole evidence of any nature, shall be used to supplement or modify any terms
of this Agreement.



24. Notice.



24.1. All notices required to be given to any party other than Lender shall be deemed given
upon the first to occur of (i) five days after deposit thereof in a receptacle under the control of
the applicable national postal service with first class postage prepaid, (ii) transmittal by
electronic means to a receiver under the control of such party; or (iii) actual receipt by such
party or an employee or agent of such party. All notices to Lender shall be deemed given upon
actual receipt by a responsible officer of Lender.



24.2. The addresses of the parties are as set forth below or as may otherwise be specified
from time to time in a writing sent by one party to the other in accordance with the provisions
hereof:



BORROWER




	 	 	 
	Address:

Attention:

Telephone:

Fax Number:

	 	1000 1st Avenue S., Suite 100

Seattle, WA 98134

William Meissner

(206) 624-3557

(206) 624-6857






LENDER




	 	 	 
	Address:

Attention:

Telephone:

Fax Number:

	 	14205 S.E. 36th Street, Suite 350

Bellevue, WA 98006

Douglas L. McDonald

(425)747-9090

(425)747-1404






24.3. Counterparts. This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if all signatures were upon the same
instrument. Delivery of an executed counterpart of the signature page to this Agreement by
facsimile shall be effective as delivery of a manually executed counterpart of this Agreement, and
any party delivering such an executed counterpart of the signature page to this Agreement by
facsimile to any other party shall thereafter also promptly deliver a manually executed counterpart
of this Agreement to such other party, provided that the failure to deliver such manually executed
counterpart shall not affect the validity, enforceability, or binding effect of this Agreement.



25. Amendment and Waiver. Only a writing signed by all parties hereto may amend this
Agreement. No failure or delay in exercising any right hereunder shall impair any such right that
Lender may have, nor shall any waiver by Lender hereunder be deemed a waiver of any default or
breach subsequently occurring. Lender’s rights and remedies herein are cumulative and not exclusive
of each other or of any rights or remedies that Lender would otherwise have.



26. Governing Law. This Agreement and all transactions contemplated hereunder and/or
evidenced hereby shall be governed by, construed under, and enforced in accordance with the
internal laws of the Chosen State.



27. Venue. Any suit, action or proceeding arising hereunder, or the interpretation,
performance or breach hereof, shall, if Lender so elects, be instituted in any court sitting in the
Chosen State, in the city in which Lender’s chief executive office is located, or if none, any
court sitting in the Chosen State (the “Acceptable Forums”). Borrower agrees that the Acceptable
Forums are convenient to it, and submits to the jurisdiction of the Acceptable Forums and waives
any and all objections to jurisdiction or venue. Should such proceeding be initiated in any other
forum, Borrower waives any right to oppose any motion or application made by Lender to transfer
such proceeding to an Acceptable Forum.



28. Judgment Currency. If, for purpose of obtaining or enforcing judgment against any
party in any court in any jurisdiction, it becomes necessary to convert into a particular currency
(the “Judgment Currency”) an amount due to Lender in another currency (the “Indebtedness Currency”)
under this agreement, the conversion will be made at the rate of exchange prevailing on the
business day immediately preceding the date on which judgment is given.



If, as a result of a change in the rate of exchange between the date of judgment and the date
of actual payment, the conversion of the Judgment Currency into Indebtedness Currency dollars
results in Lender receiving less than the full amount of Indebtedness Currency dollars payable to
Lender, Borrower agrees to pay Lender any additional amount (and in any event not a lesser amount)
as may be necessary to ensure that the amount received is not less than the full amount of
Indebtedness Currency dollars payable by Borrower on the date of judgment. Any additional amount
due under this section will be due as a separate debt, gives rise to a separate cause of action,
and will not be affected by judgment obtained for any other sums due under this Agreement.



29. Jury Trial Waiver. IN RECOGNITION OF THE HIGHER COSTS AND DELAY WHICH MAY RESULT
FROM A JURY TRIAL, THE PARTIES HERETO WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (A) ARISING HEREUNDER, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH
PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; AND EACH PARTY HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.



30. Service Of Process. Borrower agrees that Lender may effect service of process
upon Borrower by regular mail at the address set forth in this Agreement, or at the option of
Lender if Borrower is a Registered Organization, by service upon Borrower’s agent for the service
of process.



31. Assignment. Lender may assign its rights and delegate its duties hereunder. Upon
such assignment, Borrower shall be deemed to have attorned to such assignee and shall owe the same
obligations to such assignee and shall accept performance hereunder by such assignee as if such
assignee were Lender.



IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first above
written.



	 	 	 	 	 
	BORROWER:	 	Jones Soda Co. (USA) Inc.

	 	 	By:

	 	/s/ William R. Meissner
	 	 	 

	 	 
	 	 	Name:

	 	William Meissner
	 	 	
 
	 	 
	 	 	Title:

	 	CEO
	 	 	 

	 	 
	LENDER:	 	Access Business Finance L.L.C.

	 	 	By:

	 	/s/ Thomas E. Cleveland
	 	 	 

	 	 
	 	 	Name:

	 	Thomas E. Cleveland
	 	 	
 
	 	 
	 	 	Title:

	 	Manager
	 	 	 

	 	 






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EXHIBIT A

[Form of Notification Letter]

[Letterhead of Lender]

Date:




[Name and address of Account Debtor]




	 	 	 	Re:Jones Soda Co. (USA) Inc.(the “Client”)	 





Ladies and Gentlemen:



We are pleased to advise that, to enable the Client to better service its customers, the
Client has assigned its present and future accounts to us.



To the extent that you are now indebted or may in the future become indebted to the Client on
an account or a general intangible, payment thereof is to be made payable to us and not to the
Client or any other entity. Payment in any other way will not discharge this obligation.



The payments should be mailed to us at the following address:



Access Business Finance L.L.C.



P.O. Box 85018




Bellevue, WA 98015-8518



This letter may only be revoked by a writing signed by one of our officers.



To assist us in applying payments please fax a copy of this letter to us indicating your
Federal Tax I.D. Number in this space: .



Thank you.




Very truly yours,



Access Business Finance L.L.C.



By:

Title:




Authorized



Jones Soda Co. (USA) Inc.



By:

Name:

Title:




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EXHIBIT B

[Exceptions to Lender’s first priority interest]





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