Term Promissory Note - Green Mountain Coffee Roasters Inc. and Fleet Bank - NH
TERM PROMISSORY NOTE
$1,500,000.00 Manchester, NH April 12, 1996
FOR VALUE RECEIVED, the undersigned, GREEN MOUNTAIN COFFEE
ROASTERS, INC., a Vermont corporation organized under the laws
of the State of Vermont with a principal place of business at
33 Coffee Lane, Waterbury, Vermont 05676 (the "Borrower"),
hereby 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 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 principal sum of ONE MILLION
FIVE HUNDRED THOUSAND DOLLARS ($1,500,000.00), or so much
thereof as has been advanced by Bank to Borrower, together with
interest as hereinafter provided, in lawful money of the United
States of America.
This Note shall have a term of five (5) years from the date
hereof. Commencing on April 30, 1996, and continuing on the
last day of each month thereafter, the Borrower shall make
sixty (60) consecutive monthly payments of principal, each such
monthly installment to be in an amount sufficient to fully
amortize the then outstanding principal amount hereunder in equal
monthly installments over the remaining term of this Note;
together with monthly payments of accrued and unpaid interest
on the outstanding principal balance at the rate provided
hereinbelow. All remaining outstanding principal and accrued
and unpaid interest shall be due and payable in full on March
30, 2001.
Except as provided hereinbelow, the outstanding principal
balance of this Note shall bear interest at a variable rate
equal to the Bank's Base Rate, so called, plus one-quarter of
one percent (0.25%) per annum. 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. Each time the Base Rate changes, the interest rate
hereunder shall change contemporaneously with such change in
the Base Rate. Interest shall be calculated and charged daily
on the basis of actual days elapsed over a three hundred sixty
(360) day banking year. In accordance with and subject to the
limitations of the Loan Agreement (as defined below), the
Borrower may elect to have the entire outstanding principal
balance, or any portion thereof (in increments of not less than
$50,000), of this Note bear interest at the Term LIBOR-based
Rate. The Borrower further acknowledges and agrees that the
interest rate hereunder is subject to increase and decrease
upon the occurrence of certain events as provided in the Loan
Agreement (as hereinafter defined).
This Note is issued under and subject to the terms, conditions,
and limitations of the Seventh Amendment and First Restatement
of Commercial Loan Agreement of even date herewith, entered
into by and between the Borrower 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 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 undersigned to pay the
principal and interest on this Note as herein provided. Any
capitalized term used in this Note which is not otherwise
expressly defined herein shall have the meaning ascribed
thereto in the Loan Agreement.
Upon the occurrence and during the continuance of an Event of
Default specified in the Loan Agreement, or if any monthly
installment of principal or interest under this Note is not
paid when due, or within the applicable grace period, if any,
the principal hereof and all interest accrued and accruing
hereon may be declared to be forthwith due and payable.
The holder may impose upon the undersigned a delinquency charge
of five percent (5%) of the amount of any installment of
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 the
occurrence and during the continuance of an Event of Default
under the Loan Agreement and after maturity hereof, whether by
demand, acceleration or otherwise, bear interest at the then
contract rate of this Note plus an additional five percent (5%)
per annum.
The undersigned agrees to pay on demand all reasonable out-of
pocket costs of collection hereof, including court costs,
service fees, and reasonable attorneys' fees, whether or not
any foreclosure or other action is instituted by the holder in
its discretion.
The word "holder", as used in this Note, 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.
The indebtedness evidenced by this Note is secured by the Loan
Documents as defined in the Loan Agreement.
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, and the holder shall have, in
addition to all other rights and remedies, the rights and
remedies of a secured party under the Uniform Commercial Code
of New Hampshire. The holder shall have no duty as to the
collection or protection of the Collateral or of any income
thereon, or as to the preservation of any rights pertaining
thereto beyond the safe custody thereof.
Surrender of this Note, upon payment or otherwise, shall not
affect the right of the holder to retain the Collateral as
security for the payment and performance of any other liability
of the undersigned to the holder in accordance with the
provisions of the Loan Documents.
Every maker, endorser, or guarantor of this Note, or the
obligations represented by this Note, waives all
presentment, protest and demand, demand for payment, notice of
dishonor and protest and all other demands and notices in
connection with the delivery, acceptance, performance, default
or enforcement of this Note, and assents to any extension or
postponement of the time of payment or any other indulgence, to
any substitution, exchange or release of Collateral, and/or to
the addition or release of any other party or person primarily
or secondarily liable.
This Note and the provisions hereof shall be binding upon the
undersigned and the undersigned's heirs, administrators,
executors, successors, legal representatives and assigns and
shall inure to the benefit of the holder, the holder's heirs,
administrators, executors, successors, legal representatives
and assigns.
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 12th day of April, 1996.
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
COUNTY OF Washington, SS.
On this the 12th day of April, 1996, 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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Notary Public