EXHIBIT 10.39
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS NOTE MAY NOT
BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE
TRANSFERRED,
WHETHER OR NOT FOR CONSIDERATION, (A) WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT, AND ANY APPLICABLE STATE
SECURITIES LAWS, OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS
THEREUNDER, AND (B) EXCEPT AS OTHERWISE PERMITTED BY THE TERMS OF
THIS
NOTE.
SECURED PROMISSORY NOTE
$5,000,000
September 30, 2007
1. PRINCIPAL AMOUNT.
For value received,
TRINITY SPRINGS, INC.,
formerly known as TSL Acquisition Corp. (hereinafter referred to
as
"Maker"), unconditionally promises to pay to the order of
CRYSTAL
PARADISE HOLDINGS, INC., an Idaho corporation, also known as
Trinity
Springs, Ltd. ("CPH") at c/o Hawley Troxell Ennis & Hawley
LLP,
Attention: Thomas Chandler, 877 W. Main St., Suite 1000, Boise,
ID
83702, or to such other place and in such other manner as CPH may
from
time to time designate, the principal sum of the principal sum of
FIVE
MILLION AND NO/100 DOLLARS ($5,000,000.00).
2. INTEREST.
Interest shall accrue
on the unpaid principal amount
hereof from the date hereof at the rate of five percent (5%)
per
annum, compounded annually.
3. POST MATURITY
INTEREST; COMPUTATION OF INTEREST. Any amount of
principal and/or interest hereof which is not paid when due,
whether
at stated maturity, by acceleration or otherwise, shall bear
interest
from the date when due until said principal and/or interest amount
is
paid in full, payable on demand, at an interest rate which is
one
percent (1%) per annum in excess of the rate of interest
otherwise
payable under this Note. Interest shall be computed on the
basis of a
year of 365 days or the actual number of days elapsed. No provision
of this Note shall require the payment or permit the collection
of
interest in excess of the maximum permitted by law. If any excess of
interest in such respect is herein or in such other instrument
provided for, or shall be adjudicated to be so provided for herein
or
in such other instrument, Maker shall not be obligated to pay
such
interest in excess of the maximum amount permitted by law and
the
right to demand the payment of any such excess shall be and hereby
is
waived. This provision
shall control any other provision of this Note
or such other instrument. If any such excess interest shall
have been
paid by Make it shall automatically be treated as a permitted
additional prepayment of principal.
4. PAYMENTS.
The principal sum and
accrued interest thereon shall be
due and payable in full on the fifth anniversary of the date of
this
Note. Payments shall
be credited first to interest and then to
principal.
5. PREPAYMENT.
All of any portion of
the indebtedness evidenced
hereby may be prepaid at any time without premium or penalty.
6. SETTLEMENT
AGREEMENT. This Note
is being executed pursuant to
that certain Mutual Release and Settlement Agreement of even
date
herewith (the "Settlement Agreement"), by and among Maker, CPH,
and
AMCON Distributing Co. ("AMCON"), pursuant to which Maker, CPH,
and
AMCON have agreed to settle certain outstanding claims, terminate
the
Asset Purchase Agreement, cancel the 3-Year Note and 10-Year Note
in
exchange for the issuance of this Note and the option to
acquire
substantially all of the assets of Maker, and certain other actions
as
further outlined therein. Capitalized terms used but not
otherwise
defined herein shall have the meaning set forth in the
Settlement
Agreement.
7. SECURITY.
Maker's obligations
under this Note shall be secured by
(i) certain of the Assets pur
