CONTRACT OF SALE SECURITY AGREEMENT (LOC Form 5)

EXHIBIT 10.1

CONTRACT OF SALE
SECURITY AGREEMENT

(LOC Form 5)

This Contract of Sale and Security Agreement dated for purposes of reference June 25, 2006;is between the undersigned, Jones Soda (USA), Inc., hereinafter called “CLIENT”, and CAPCOFinancial Company — a division of Greater Bay Bank N.A. hereinafter called “CAPCO ”, agree asfollows:

    PURPOSE OF AGREEMENT:
1.   CLIENT desires to obtain short-term financing by selling, to CAPCO ALL Accountsreceivable. CAPCO agrees to Purchase CLIENT’s Accounts from time to time at a discount belowface value, utilizing an advance formula for the purchase of ALL Accounts based upon advancesagainst Acceptable/Eligible Accounts. It is clearly understood by both parties that ALLAccounts of CLIENT are to be sold to CAPCO.
    DEFINITIONS:
2.   “Account” means any right of payment for goods sold, or leased, and delivered, or servicesrendered, any specific transaction, or any right of payment.
3.   “Advance Formula” means the maximum amount available to CLIENT from CAPCO for the purchaseof All Accounts will not exceed 80% of Acceptable/Eligible Accounts.
4.   “Acceptable/Eligible Account” means an Account conforming to the Warranties and terms setforth herein that has not been outstanding for more than 90 DAYS from the date of invoice, hasbeen underwritten and approved by CAPCO, and has not been reduced from the original amountbilled by, credit memo, offset, adjustment of any kind, or partial payment subsequent toinvoice date.
4.1   “Acceptable Inventory” shall be defined as: Finished goods inventory reported to CAPCO in aformat acceptable to CAPCO in accordance with paragraph 12.1 below.
5.   “Customer” means CLIENT‘s Customer or the Account debtor.
6.   CLIENT” means the seller of All Accounts.
7.   “Collateral” means the intangible or tangible property given as security to CAPCO by CLIENTfor any obligations and liabilities of CLIENT to CAPCO under the Agreement.
8.   “Warrant” means to guarantee, as a material element of this Agreement.
9.   “Credit Problem” means Customer is unable to pay his debts because of problems orinsolvency.
10.   “Customer Dispute” means any claim by Customer against CLIENT, of any kind whatsoever, validor invalid, that reduces the amount collectible from Customer by CAPCO.
    CLIENT COVENANTS:
11.   CLIENT agrees to sell to CAPCO ALL Accounts Receivable, (Accounts)mechanic’s lien(s), and rights to payment under any stop notice(s), or bonded stop notice(s)securing payment of those Accounts created by CLIENT in the course of its business, existingas of the date of this agreement or thereafter created during the term of this agreement,subject to approval and verification by CAPCO. CAPCO is not obligated to advance funds for thepurchase of All Accounts from CLIENT. When CLIENT notifies CAPCO of it’s Accounts, CLIENTshall provide a copy of the original Assigned Account (Invoice) a copy of the bill of ladingcontract, purchase order, purchase order number, and/or any other requisite supportingdocumentation corresponding to said Accounts and appropriate to the business of CLIENT, asrequested by CAPCO.
12.   CLIENT shall prepare and give to CAPCO proper written assignments of Accounts, mechanic’slien(s) on forms provided by CAPCO. The execution of said assignments shall transfer to CAPCOall of CLIENT’s right, title and ownership to ALL Accounts. CLIENT or CAPCO by this agreementwill properly mark Accounts, as assigned and sold to CAPCO, and CAPCO is authorized to notifyCustomer of said sale and assignment.
12.1   CLIENT agrees to provide CAPCO with monthly certifications of the quantity and value (basedon the lower of cost or market applied on a first in first out basis) of Inventory in a formsatisfactory to CAPCO.
13.   CLIENT represents and Warrants to CAPCO that:

a. CLIENT is sole and absolute owner of any and all Accounts and mechanic’s liens and rights topayment under any stop notices, or bonded stop notices, sold and assigned hereunder, and CLIENThas full legal right to make said sale, assignment, and/or transfer.
b. All Accounts sold to CAPCO are an accurate statement of a bonafide sale, delivery andacceptance of merchandise, or performance of service by CLIENT to / for Account-debtor.Accounts are not contingent upon the fulfillment by CLIENT and each Account-debtor’s business isbelieved to be solvent. The terms for payment of said Accounts are Net 30 days or asexpressly set forth on the face of said sold and assigned Accounts, and the payment of saidAccounts are not contingent upon the fulfillment by CLIENT of any further performance of anynature whatsoever. CLIENT shall accept no returns and shall grant no allowances or credits toany sold and Assigned Account of any Account-debtor without the prior written approval ofCAPCO.
c. There are no known setoffs, Customer Disputes, adverse claims, defenses, and/or lienswhatsoever against the payment of Accounts, and Account’s mechanic’s liens have not beenpreviously assigned or encumbered by CLIENT in any manner whatsoever. CLIENT will, immediatelyupon sale of Accounts to CAPCO make proper entries on its books and records disclosing theabsolute sale of Accounts to CAPCO and CLIENT will post no payment unless it is reflected in apayment report from CAPCO.
d. CLIENT will promptly notify CAPCO in writing of any proposed change in CLIENT‘s place ofbusiness, name, legal entity, corporate structure, record-keeping location, and/or as to anyadditional place of business, or expiration of any special license(s), or transfer of assets, ortechnology, to a third party, or proposed change in ownership in excess of twenty five percent,(25%), of outstanding shares;
e. CLIENT does not own, control, manage, participate in management, or have any involvementand/or association whatsoever with the business of any Account-debtor related to any Accountssold and assigned hereunder;
f. There are no financing statements now on file in any public office governing, any Account,Inventory or work in process of CLIENT in which CLIENT is named in or has signed as the debtor,except the financing statement or statements filed or to be filed in respect to this Agreement,or those statements now on file that have been disclosed in writing by CLIENT to CAPCO. CLIENTwill not execute any financing statements pledging Accounts receivables, inventory or work inprocess, in favor of any other person or entity, excepting CAPCO, for the term of thisAgreement;
g. CLIENT‘s taxes are not delinquent nor has CLIENT been subject to a tax levy by anygovernmental entity nor are there now on file in any public office tax liens affecting CLIENTother than those delinquencies, levies and/or liens which have been disclosed by CLIENT toCAPCO;
h. All records, statements, books, or other documents shown to CAPCO by CLIENT at any time,either before, or after the signing of the Agreement are true and accurate;
i. CLIENT has served or caused to be served any and all preliminary 10-day notices required bylaw to perfect or enforce any mechanic’s lien for All Accounts to insure perfection of ownershipfor CAPCO and the information contained on those preliminary 10-day notices is true, correct,and properly recorded, to Seller’s knowledge and belief;
j. Waivers and releases for all labor, services, equipment, or material of CLIENT and otherswill be submitted on CAPCO’s form concurrent with Accounts.








14.   CLIENT and CAPCO agree that CAPCO will have FULL RECOURSE against CLIENT and CLIENTshall be liable to repay to CAPCO any amount paid by CAPCO to CLIENT in consideration for thesale, transfer, and assignment of Accounts.
15.   All Accounts shall be the sole property of CAPCO, but if for any reason a payment owing onsaid Accounts shall be paid to CLIENT; CLIENT shall promptly notify CAPCO of such payment,shall hold any check, draft or money so received in trust and for the benefit ofCAPCO, and shall pay over such check or draft in-kind, or money, to CAPCO promptly andwithout delay. All of CLIENT’s invoices shall bear the address of a Lock Box acceptableto CAPCO; as the “REMIT TO” address, and CLIENT agrees that ALL remittances forpayment on ALL Accounts shall be made to the Lock Box or other repositoryauthorized in writing by CAPCO.
16.   CLIENT will furnish CAPCO periodic statements, accounts receivable agings, journals, bankrecords, and other information as requested by CAPCO from time to time.
17.   CLIENT will not pledge the credit of CAPCO to any other person or business for any purposewhatsoever.
18.   CLIENT is properly licensed and authorized to operate the business of Jones Soda (USA),Inc., under the trade name of Jones Soda Co., and CLIENT‘S trade name has been properly filedand published as required by the laws of the State of Washington.
19.   CLIENT‘s business is solvent.
20.   CLIENT will not sell Accounts, or pledge Accounts to any party, except to CAPCO for theperiod of this Agreement unless specific Accounts are subordinated and released by CAPCO inwriting.
21.   CLIENT will not transfer, pledge, or give a security interest of the Assets sold orCollateral granted to CAPCO to any other party.
22.   CLIENT will not change, or modify the terms of the original sold and assigned Account withCustomer unless CAPCO first consents to such change in writing. CAPCO agrees to provide aprompt response to CLIENT request for modification or change with respect to an AssignedAccount. For example, CLIENT may not extend credit to a Customer beyond Net 30 days orthe time set forth on the face of the sold and Assigned Account without prior written consentfrom CAPCO.
23.   NOTICE OF DISPUTE: CLIENT must immediately notify CAPCO of Customer Disputes greaterthan $400.00 in total for any one Customer.
24.   POWER OF ATTORNEY: In order to carry out this Agreement and avoid unnecessary notificationof Customers. CLIENT irrevocably appoints CAPCO, or any person designated by CAPCO, as itsspecial attorney in fact, or agent, with power to:

a. strike out CLIENT‘s address on all Accounts mailed to Customers and put on CAPCO’s address.
b. receive, direct and forward, open, and dispose of all mail addressed to CLIENT, or toCLIENT‘s fictitious trade name via CAPCO‘s address.
c. endorse the name of CLIENT, or CLIENT‘S fictitious trade name on any checks or otherevidences of payment that may come into the possession of CAPCO on Accounts purchased by CAPCOand on any other documents relating to any of the Accounts or to assigned Collateral.
d. in CLIENT‘S name, or otherwise, demand, sue for, collect, and give release for any and allmonies due, or to become due on Accounts sold and assigned hereunder.
e. do any and all things necessary and proper to carry out the purpose intended by thisAgreement.
f. execute any documents necessary to perfect or to continue any Security Interest and withoutfurther authorization from CLIENT file a carbon, photograph, facsimile, or other reproduction ofany financing statement for use as a financing statement.
The authority granted CAPCO shall remain in full force and effect until all Accounts are paid infull and any indebtedness of CLIENT to CAPCO is discharged.





    CAPCO COVENANTS:
25.   CAPCO reserves the sum of ($5,000,000.00) Five Million and 00/100 for the purchase of ALL ofCLIENT‘s Accounts. These funds are available daily at CLIENT‘s option, subject to restrictionas governed by the Advance Formula. Daily availability will be communicated to CLIENT viaCAPCO‘S Availability / Advance Request.
26.   This Agreement shall have an initial term ending with the first full (12) Twelve calendarmonths and unless terminated by either party giving not less than thirty (30) days priorwritten notice.
27.   STATEMENT OF Acceptable/Eligible Accounts: CAPCO shall identify in writing allAcceptable/Eligible Accounts and provide to CLIENT, upon request, a written statement thereof(Weekly Aging Report).
    ACCOUNTING & FEES:
28.   Funds advanced by CAPCO to CLIENT are subject to daily fee of Greater Bay Bank N.A. PrimeRate + 0.500% /360 (equivalent to a monthly discount fee of Greater Bay Bank N.A. Prime Rate +0.500% /12) percent calculated on the daily balance (as reported on the CLIENTLiability Detail Report) owing to CAPCO. This period will usually be 1 calendar day exceptfor weekends and or weeks where holidays or other non-operating days prevent the fee frombeing taken on a daily basis.
29.   CAPCO will provide to the CLIENT daily, via fax, an advance and availability request. Thisreport must be acknowledged and returned, via fax, to CAPCO no later than 11:30AM if a depositor wire transfer is to be made the same date as the request form was issued to the CLIENT byCAPCO.
30.   PAYMENT PROCESSING: All payments received by CAPCO will be applied to CLIENT‘s OutstandingBalance daily following a 1 (One) business day hold to allow for the application of collectedfunds.
31.   DISPUTED ACCOUNT: CLIENT will immediately notify CAPCO of any Account subject to a CustomerDispute (See Paragraph 10 for definition) of any kind whatsoever and said Account shall beremoved as an Acceptable/Eligible Account.
32.   INVOICING ERRORS: Mistaken, incorrect and/or erroneous invoicing, submitted by CLIENT toCAPCO may at CAPCO’s discretion be deemed a Customer Disputed sold and Assigned Account andshall be removed as an Acceptable/Eligible Account.
    COLLATERAL:
33.   As Collateral for the payment of any indebtedness now owing, or in the future owing, byCLIENT to CAPCO, CLIENT hereby grants to CAPCO a security interest in the following property:

a. See Exhibit A attached.

34.   CLIENT will maintain such insurance covering CLIENT‘S business and/or the property ofCLIENT‘s Customers as is customary for businesses similar to the business of CLIENT.
35.   CLIENT shall complete any and all documents required to provide CAPCO a perfected securityinterest/lien in the Collateral pledged to CAPCO.
    DEFAULT:
36.   Any one or more of the following shall constitute an event of default:

a. If CLIENT shall fail to pay any amount of indebtedness to CAPCO when owing;
b. If CLIENT shall be in breach of any term, provision, Warranty, or representation under thisAgreement, or any other agreement related hereto;
c. If bankruptcy or insolvency proceedings shall be instituted by or against CLIENT.
d. If the Collateral shall be attached, levied upon, seized in any legal proceeding, and notreleased within 5 working days thereof;
e. If CLIENT shall cease doing business and there shall exist any indebtedness or commitments byCLIENT to CAPCO;
f. Any Accounts, documents, statements, or other writings submitted by CLIENT to CAPCO provefalse or inaccurate in any material respect;
g. If CLIENT has contributed to, or aggravated Account debtor’s problem, insolvency, and/or saidAccount debtor’s ability and/or willingness to pay any Accounts;
h. If any unpaid judgment or tax lien exists against CLIENT;
i. If CAPCO with reasonable cause and in good faith determines that it’s purchased asset orcollateral is impaired for any reason whatsoever;
j. Terminating prior to end of initial term;
k. Any change in CLIENT‘S place of business, name, legal entity, corporate structure,record-keeping location, and/or as to any additional place of business, or expiration of anyspecial license(s), or transfer of assets, or technology, to a third party, or proposed changein ownership in excess of twenty five percent, (25%), of outstanding shares.









    REMEDIES AFTER DEFAULT:
37.   In the event of any default CAPCO may do any one or more of the following:

a. Declare any indebtedness secured hereby immediately due and payable;
b.
c. Notify any and all Customers and take possession of the Accounts and Collateral and collectany receivables or funds paid to CLIENT all without judicial process;
d. Require CLIENT to assemble the Collateral and the records pertaining to receivables or otherassets pledged as collateral, and make them available to CAPCO, at a place designated by CAPCO;
e. Enter the premises of CLIENT and take possession of the Collateral and of the recordspertaining to the receivables and any other Collateral;
f. Grant extensions, compromise claims, and settle receivables for less than face value, allwithout prior notice to CLIENT;
g. Use, in connection with any assembly or disposition of the Collateral, any trademark, tradename, trade style, copyright, patent right or technical process used or utilized by CLIENT;
h. Return any surplus realized to CLIENT after deduction of reasonable expenses, attorney’sfees, attorney’s fees on appeal, collection costs, independent third party auditors, incurred byCAPCO in resolving said default;
i. Hold CLIENT liable for any deficiency.
j. Establish a reserve from the collection of Accounts to meet reasonable legal expensesassociated with a future defense resulting from an action brought against CAPCO by CLIENT,CLIENT’s customer, or other third party, as a result of an action of default.
k. Injunction against CLIENT taking any action with regard to the Accounts or Collateral.
l. CAPCO is authorized by CLIENT to receive, direct, and forward, open, and dispose of all mailaddressed to CLIENT at any address used by CLIENT to receive mail.










    GENERAL:
38.   After termination CLIENT remains fully responsible to CAPCO for any indebtedness existing,or which may yet arise in connection with Accounts that remain unpaid.
39.   If during the term hereof CLIENT fails to make any payment required, CAPCO may at itsdiscretion pay the same and charge CLIENT therefore.
40.   CLIENT will not, under any circumstances, or in any manner whatsoever, interfere with any ofCAPCO‘s rights under this Agreement.
41.   TAX COMPLIANCE: CLIENT will furnish CAPCO upon request satisfactory proof of payment and/orcompliance with all Federal, State, and/or Local tax requirements.
42.   NOTICE OF LEVY: CLIENT will promptly notify CAPCO of any attachment or any other legalprocess levied against CLIENT.
43.   LEGAL FEES: The losing party will pay any and all legal expenses and reasonable attorney’sfees, paralegal fees; staff overtime expense, travel costs, costs on appeal, or otherreasonable collection costs, that the prevailing party may incur as a result of either CLIENTor CAPCO enforcing this Agreement one against the other.
44.   HOLD HARMLESS: CLIENT shall hold CAPCO harmless against any liability, damages, loss,attorneys’ fees and costs of any type due to any action by a Customer arising from CAPCO‘Scollecting or attempting to collect any Accounts so long as these collections are performed ina commercially reasonable manner and in compliance with all applicable laws, rules andregulations. CLIENT maintains the primary responsibility for collections efforts, untilthe occurrence of an event of default.
45.   BINDING ON FUTURE PARTIES: This Agreement inures to the benefit of and is binding upon theheirs, executors, administrators, successors and assigns of the parties thereto.
46.   CUMULATIVE RIGHTS: All rights, remedies and powers granted to CAPCO in this Agreement, orin any note, or other agreement given by CLIENT to CAPCO, are cumulative and may be exercisedsingularly or concurrently with such other rights as CAPCO may have. These rights may beexercised from time to time as to all or any part of the pledged Collateral as CAPCO in itsdiscretion may determine.
47.   WRITTEN WAIVER: CAPCO may not waive its rights and remedies unless the waiver is in writingand signed by CAPCO. A waiver by CAPCO of a right, or remedy under this Agreement on oneoccasion is not a waiver of the right, or remedy on any subsequent occasion.
48.   WASHINGTON LAW: This Agreement shall be governed by and construed in accordance with thelaws of the State of Washington. CLIENT hereby consents to the exclusive jurisdiction of theState of Washington in any dispute arising hereunder or related hereto. Venue for any actionsshall be in King Co. Washington.
49.   INVALID PROVISIONS: If any provision of this Agreement shall be declared illegal orcontrary to law, it is agreed that such provision shall be disregarded and this Agreementshall continue in force as though such provision had not been incorporated herein.
50.   ENTIRE AGREEMENT: This instrument contains the entire Agreement between the parties. Anyaddendum or modification hereto will be signed by both parties and attached hereto.
51.   EFFECTIVE: This Agreement becomes effective when it is accepted and executed by theauthorized officers of CAPCO
52.   Execution of this document may contain multiple signature pages; each shall beconsidered, when combined, as one signed and executed document.
    Executed the 27th day of June, 2006 at Seattle, Washington.
    Jones Soda (USA), Inc.
    By: /s/ Peter van Stolk
    Title: President & CEO
    By: /s/ Hassan N. Natha
    Title: Chief Financial Officer & Secretary
CAPCO Financial Company — a division of Greater Bay Bank N.A.
    Accepted this 27th day of June, 2006, at Bellevue, Washington
    By: /s/ Bruce Tretzen
    Title: Assistant Vice President

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CONTRACT OF SALE
SECURITY AGREEMENT
Jones Soda (USA), Inc.
EXHIBIT “A”


    All Accounts, contract rights, chattel paper, documents, instruments and general intangiblesnow owned or hereafter acquired and proceeds, thereof:

All right, title, and interest in inventory, raw materials, work in progress and finished

goods now owned or hereafter acquired and products and proceeds thereof:

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AMENDMENT #1
TO CAPCO SECURITY AGREEMENT
June 25, 2006

DEFINITIONS:
Paragraph 3 as follows:
3. “Advance Formula” means the maximum amount available to Client from CAPCO for the purchase ofAll Accounts will not exceed 80.00% of acceptable/eligible accounts.

Is replaced by:

3. “Advance Formula” means the maximum amount available to Client from CAPCO for the purchase ofAll Accounts will not exceed 80.00% of acceptable/eligible accounts PLUS up to 50% againstacceptable inventory not to exceed 110% of acceptable/eligible accounts.

CLIENT COVENANTS:

Paragraph 20 as follows:

CLIENT will not sell Accounts, or pledge Accounts to any party, except to CAPCO for the period ofthis Agreement unless specific Accounts are subordinated and released by CAPCO in writing.

Is replaced by:

CLIENT will not sell Accounts, or pledge Accounts to any party, except to CAPCO for the period ofthis Agreement unless specific Accounts are subordinated and released by CAPCO in writing. CAPCOagrees not to resell CLIENT’s accounts except in the event of a default by CLIENT.

Paragraph 23 as follows:

23.   NOTICE OF DISPUTE: CLIENT must immediately notify CAPCO of Customer Disputes greaterthan $400.00 in total for any one Customer.

Is replaced by:

23. NOTICE OF DISPUTE: CLIENT must immediately notify CAPCO of Customer Disputes greaterthan $2500.00 in total for any one Customer.

ACCOUNTING & FEES:
Paragraph 30 as follows:

PAYMENT PROCESSING: All payments received by CAPCO will be applied to CLIENT‘s Outstanding Balancedaily following a 1 (One) business day hold to allow for the application of collected funds.

Is replaced by:

PAYMENT PROCESSING: All payments received by CAPCO will be applied to CLIENT‘s Outstanding Balancedaily following a 1 (One) business day hold to allow for the application of collected funds. Fundsreceived via wire transfer will be applied the day after receipt.

In the event CLIENT has fully paid all amounts due CAPCO under this agreement including but notlimited to fees, expenses and advances, CAPCO agrees to promptly remit any funds collected inexcess of the amounts due to CAPCO to CLIENT at CLIENT’s request.

At CLIENTS request (and subject to payment of all amounts fees due to CAPCO) CAPCO agrees topromptly terminate the agreement and re convey all right title and interest in the Accounts toCLIENT. In the event CLIENT notifies CAPCO of its intention to terminate the agreement and CAPCOhas been fully paid all amounts due CAPCO, said notice of termination shall not be considered anevent of default.

DEFAULT:
Paragraph 36k as follows:

k. Any change in CLIENT‘S place of business, name, legal entity, corporate structure,record-keeping location, and/or as to any additional place of business, or expiration of anyspecial license(s), or transfer of assets, or technology, to a third party, or proposed change inownership in excess of twenty five percent, (25%), of outstanding shares.

Is replaced by:

k. Any change in CLIENT‘S place of business, name, legal entity, corporate structure,record-keeping location, and/or as to any additional place of business, or expiration of anyspecial license(s), or transfer of assets, or technology, to a third party, or change in ownershipin excess of twenty five percent, (25%), of outstanding shares. CLIENT will not be deemed to be indefault, if CLIENT pays to CAPCO all amounts due, concurrent with any ownership change in excess oftwenty-five percent (25%) of outstanding shares.

This amendment is effective and applicable to invoices purchased after
June 27, 2006. All other terms, covenants and conditions will remain in effect and unchanged.

    Jones Soda (USA), Inc.
    By: /s/ Hassan N. Natha
    Title: Chief Financial Officer & Secretary
CAPCO Financial Company — a division of Greater Bay Bank N.A.
    By: /s/ Bruce Tretzen
    Title: Assistant Vice President

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