Revolving Line of Credit/Term Promissory Note - Green Mountain Coffee Roasters Inc. and Fleet Bank - NH
REVOLVING LINE OF CREDIT/TERM PROMISSORY NOTE
$4,500,000.00 U.S. Manchester, NH February 20, 1998
FOR VALUE RECEIVED, GREEN MOUNTAIN COFFEE ROASTERS, INC., a Vermont
corporation with a principal place of business at 33 Coffee Lane, Waterbury,
Vermont 05676 (the "Borrower"), promises to pay to the order of FLEET BANK - NH,
a bank organized under the laws of the State of New Hampshire with an address of
Mail Stop NHNA E02A, 1155 Elm Street, Manchester, New Hampshire 03101 (the
"Bank"), at such address, or such other place or places as the holder hereof may
designate in writing from time to time hereafter, the maximum principal sum of
FOUR MILLION FIVE HUNDRED THOUSAND DOLLARS ($4,500,000.00), or so much thereof
as may be advanced or readvanced by the Bank to the Borrower from time to time
hereafter (such amounts defined as the "Debit Balance" below), together with
interest as provided for herein below, in lawful money of the United States of
America.
The Borrower's "Debit Balance" shall mean the debit balance in an account
on the books of the Bank, maintained in the form of a ledger card, computer
records or otherwise in accordance with the Bank's customary practice and
appropriate accounting procedures wherein there shall be recorded the principal
amount of all advances and readvances made by the Bank to the Borrower, all
principal payments made by the Borrower to the Bank hereunder, and all other
appropriate debits and credits to principal. The Bank shall render to the
Borrower a statement of account with respect thereto on a monthly basis. The
statement shall be considered correct and be considered accepted by the
Borrower, and shall conclusively bind the Borrower, unless Borrower notifies the
Bank to the contrary within thirty (30) days after the date of Borrower's
receipt of the statement.
The Bank agrees to lend to the Borrower, and the Borrower may borrow and
reborrow from time to time, up to the maximum principal sum provided for in this
Note in accordance with and subject to the terms, conditions, and limitations of
this Note and the Seventh Amendment and First Restatement of Commercial Loan
Agreement dated April 12, 1996, as amended by Eighth Amendment to Commercial
Loan Agreement and Loan Documents dated February 19, 1997, by Ninth Amendment to
Commercial Loan Agreement and Loan Documents dated June 9, 1997, by Tenth
Amendment to Commercial Loan Agreement dated January 15, 1998, and by Eleventh
Amendment to Commercial Loan Agreement and Loan Documents of even date herewith,
entered into by and between the Borrower, its subsidiary, Green Mountain Coffee
Roaster Franchising Corporation, and the Bank, and as said agreement may be
further amended from time to time (collectively, as amended, the "Loan
Agreement"). The holder of this Note is entitled to all of the benefits and
rights, and is subject to all of the obligations, of the Bank under the Loan
Agreement. However, neither this reference to the Loan Agreement nor any
provision thereof shall impair the absolute and unconditional obligation of the
Borrower to pay the principal and interest of this Note as herein provided.
Terms not otherwise defined herein shall have the meanings ascribed to them in
the Loan Agreement.
The Borrower agrees that the Bank may deliver all advances under this Note
by direct deposit to any demand account of the Borrower with the Bank or in such
other reasonable manner as may be designated in writing by the Bank to the
Borrower, and that all such advances shall represent binding obligations of the
Borrower.
The Borrower acknowledges that this Note is to evidence the Borrower's
obligation to pay its Debit Balance, plus interest and any other applicable
charges as determined from time to time, and that it shall continue to do so
despite the occurrence of intervals when no Debit Balance exists because the
Borrower has paid the previously existing Debit Balance in full.
Interest shall be calculated and charged daily, based on the actual days
elapsed over a three hundred sixty (360) day banking year, on the unpaid
principal balance outstanding from time to time. Except as provided hereinbelow,
the unpaid principal balance outstanding hereunder from time to time shall bear
interest at a variable annual rate equal to the Bank's Base Rate, so called,
plus the Applicable Base Rate Margin for the Revolving Line of Credit/Term Loan
as determined under the Loan Agreement from time to time. The Base Rate shall be
the Base Rate of the Bank as established and changed by the Bank from time to
time whether or not such rate shall be otherwise published or Borrower is
provided with notice thereof. Each time the Base Rate changes, the interest rate
hereunder shall change contemporaneously with such change in the Base Rate
effective as of the opening of business on the date of change. The Borrower
acknowledges that the Base Rate is used for reference purposes only as an index
and is not necessarily the lowest interest rate charged by the Bank on
commercial loans. Notwithstanding the foregoing, the Borrower may elect from
time to time the a LIBOR-based variable rate of interest to apply to some or all
of the outstanding principal hereunder in accordance with, and subject to the
limitations of, the Loan Agreement.
Accrued interest only on the outstanding Debit Balance hereunder shall be
payable monthly in arrears commencing February 28, 1998 and continuing on the
last day of each month thereafter through and including September 30, 1999 (the
"Conversion Date") and thereafter shall be payable monthly as provided herein
below. Through the Conversion Date, the Borrower shall only be obligated to make
payments of principal hereunder such that the outstanding Debit Balance does not
exceed the maximum amount available to the Borrower under the Revolving Line of
Credit/Term Loan evidenced hereby as provided in the Loan Agreement. On the
Conversion Date, all accrued and unpaid interest on the Debit Balance hereunder
shall be paid and the entire outstanding Debit Balance hereunder shall be
converted to a term loan in accordance with the provisions of the Loan
Agreement. The entire Debit Balance hereunder so converted shall be repaid in
equal monthly payments of principal, each in the amount of Seventy-five Thousand
Dollars ($75,000.00), together with a monthly payment of accrued and unpaid
interest, such payments to commence on October 31, 1999 and to continue on the
last day of each month thereafter through and including February 28, 2003. On
March 31, 2003, all remaining outstanding principal and accrued and unpaid
interest shall be due and payable in full. The Debit Balance converted to a term
loan hereunder, and the Borrower's obligation to repay the same, shall continue
to be evidenced by this Note after the Conversion Date.
The Borrower may prepay this Note in whole or in part at any time without
premium or penalty; provided, however, that such prepayment shall be subject to
the terms and conditions of the Loan Agreement and the charges provided
thereunder payable by Borrower to Bank. In the event that any such prepayment
shall be made by the Borrower, the amount thereof shall be applied first to
accrued interest and thereafter to principal.
At the option of the Bank, this Note shall become immediately due and
payable in full, without further demand or notice, if any installment of
principal or interest is not paid when due hereunder or upon the occurrence of
any other Event of Default under the terms hereof, under the Loan Agreement, or
under any other Loan Document.
The holder may impose upon the Borrower a delinquency charge of five
percent (5%) of the amount of the principal and/or interest not paid on or
before the tenth (10th) day after such installment is due. The entire principal
balance hereof, together with accrued interest, shall after an Event of Default
or maturity, whether by demand, acceleration or otherwise, bear interest at the
Base Rate plus an additional five percent (5%) per annum.
The Borrower grants to Bank the right to set off and apply, upon an Event
of Default and without demand or notice of any nature, all, or any portion, of
deposits, credits and other property now or hereafter due from the holder to the
Borrower, against the indebtedness evidenced by this Note.
The Borrower agrees to pay on demand all reasonable out-of-pocket costs of
collection hereof, including reasonable attorneys' fees, whether or not any
action is instituted by the holder in its discretion.
No delay or omission on the part of the holder in exercising any right,
privilege or remedy shall impair such right, privilege or remedy or be construed
as a waiver thereof or of any other right, privilege or remedy. No waiver of any
right, privilege or remedy or any amendment to this Note shall be effective
unless made in writing and signed by the holder. Under no circumstances shall an
effective waiver of any right, privilege or remedy on any one occasion
constitute or be construed as a bar to the exercise of or a waiver of such
right, privilege or remedy on any future occasion.
The acceptance by the holder hereof of any payment after any default
hereunder shall not operate to extend the time of payment of any amount then
remaining unpaid hereunder or constitute a waiver of any rights of the holder
hereof under this Note.
All rights and remedies of the holder, whether granted herein or otherwise,
shall be cumulative and may be exercised singularly or concurrently.
The Borrower hereby waives, to the fullest extent permitted by law,
presentment, notice, and protest. Borrower assents to any extension of the time
of payment or any other indulgence.
This Note and the provisions, hereof shall be binding upon the Borrower and
the Borrower's successors and assigns and shall inure to the benefit of and
shall bind the holder, the holder's heirs, administrators, executors,
successors, legal representatives and assigns.
The word "holder" as used herein shall mean the payee or endorsee of this
Note who is in possession of it, or the bearer, if this Note is at the time
payable to the bearer.
This Note may not be amended, changed or modified in any respect except by
a written document which has been executed by each party. This Note constitutes
a New Hampshire contract to be governed by the laws of such state and to be paid
and performed therein.
The provisions of this Note are expressly subject to the condition that in
no event shall the amount paid or agreed to be paid to the holder hereunder and
deemed interest under applicable law exceed the maximum rate of interest on the
unpaid principal balance hereunder allowed by applicable law, if any, (the
"Maximum Allowable Rate"), which shall mean the law in effect on the date
hereof, except that if there is a change in such law which results in a higher
Maximum Allowable Rate being applicable to this Note, then this Note shall be
governed by such amended law from and after its effective date. In the event
that fulfillment of any provisions of this Note results in the interest rate
hereunder being in excess of the Maximum Allowable Rate, the obligation to be
fulfilled shall automatically be reduced to eliminate such excess. If
notwithstanding the foregoing, the holder receives an amount which under
applicable law would cause the interest rate hereunder to exceed the Maximum
Allowable Rate, the portion thereof which would be excessive shall automatically
be applied to and deemed a prepayment of the unpaid principal balance hereunder
and not a payment of interest.
Executed and delivered this 20th day of February, 1998.
BORROWER:
GREEN MOUNTAIN COFFEE ROASTERS, INC.
/s/ Betty Omansky By: /s/ Robert D. Britt
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Witness Robert D. Britt, Chief Financial Officer
STATE OF Vermont
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COUNTY OF Washington
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On this the 20th day of February, 1997, before me, the undersigned notary or
justice, personally appeared Robert D. Britt, who acknowledged himself to be the
Chief Financial Officer of Green Mountain Coffee Roasters, Inc., a corporation,
and that he, as such authorized officer, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by himself as such authorized officer.
/s/ Betty Omansky
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Justice of the Peace/Notary Public