Replacement Revolving Line of Credit Promissory Note - Green Mountain Coffee Roasters Inc. and Fleet Bank - NH
REPLACEMENT REVOLVING LINE OF CREDIT PROMISSORY NOTE
$5,000,000.00 Manchester, NH February 19, 1997
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 a principal place of
business at One Indian Head Plaza, Nashua, New Hampshire 03060
(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 FIVE MILLION DOLLARS
($5,000,000.00), 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 hereinbelow, 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 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.
Under the Revolving Line of Credit Loan evidenced by this Note
(the "Line of Credit"), the Bank agrees to lend to the Borrower,
and the Borrower may borrow, up to the lesser of (a) the maximum
principal sum provided for in this Note or (b) the Borrower's
Borrowing Base, all 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 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 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 shall make requests for advances under this Note
as provided in the Loan Agreement. The Borrower agrees that the
Bank may make all advances under this Note by direct deposit to
any demand account of the Borrower with the Bank or in such other
manner as may be provided in the Loan Agreement, 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. 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 Revolving LIBOR-based Rate to apply to
some or all of the outstanding principal hereunder in accordance
with, and subject to the limitations of, the Loan Agreement. The
Borrower further acknowledges and agrees that the interest rate
hereunder is subject to increase upon the occurrence of certain
events as provided in the Loan Agreement.
Pending an Event of Default as provided in the Loan Agreement
and herein below, the Bank shall extend the Line of Credit through
and until February 28, 1999 (the "Review Date"), and, if the Line
of Credit is renewed and extended by the Bank pursuant to the Loan
Agreement, through and until each anniversary of such date with
respect to which the Line of Credit is renewed and extended. The
Borrower shall (i) make payments of principal from time to time as
provided in the Loan Agreement and (ii) make payments of interest
monthly in arrears commencing thirty (30) days from the date
hereof (or on any day within 30 days of the date hereof agreed to
by the Borrower and the Bank to provide for a convenient payment
date) and continuing on the same date of each month thereafter
through and until the earlier of the acceleration of this Note
upon an Event of Default as provided herein below or the Review
Date or any anniversary thereof with respect to which the Line of
Credit is not renewed by the Bank, whereupon all principal,
accrued and unpaid interest, and any other charges provided for
hereunder, shall be due and payable in full. In the event that
the Line of Credit is renewed pursuant to the Loan Agreement as of
the Review Date or any anniversary thereof, this Note shall
thereafter continue to evidence amounts advanced and due under the
Line of Credit as renewed.
This Note is being executed and delivered in accordance with the
terms of the Loan Agreement and the documents defined therein as the
"Loan Documents". The payment and performance of the obligations
contained in the Loan Documents are secured by the collateral granted
to the Bank therein (the "Collateral") and the security granted to the
Bank in the Loan Documents.
At the option of the Bank, this Note shall become immediately due
and payable in full, without further demand or notice, if any payment
of interest or principal is not made when due hereunder or upon the
occurrance and during the continuance of any other Event of Default under
the terms hereof, under the Loan Agreement, or under any of the other Loan
Document.
The holder may impose upon the Borrower a delinquency charge
of five percent (5%) of the amount of 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 or maturity, 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 Borrower agrees that any other property upon or in which
the Borrower has granted or hereafter grants the holder a mortgage
or security interest, securing the payment and performance of any
other liability of the Borrower to the holder, shall also
constitute Collateral. As additional Collateral, the Borrower
grants (1) a security interest in, or pledges, assigns and
delivers to the holder, as appropriate, all deposits, credits and
other property now or hereafter due from the holder to the
Borrower; and (2) the right to set off and apply (and a security
interest in said right), from time to time hereafter and without
demand or notice of any nature, all, or any portion, of such
deposits, credits and other property, against the indebtedness
evidenced by this Note whether the other Collateral, if any, is
deemed adequate or not.
The Borrower, and every maker, endorser, or guarantor of this
Note, jointly and severally, agree to pay on demand all reasonable
out-of-pocket costs of collection hereof, including reasonable
attorneys' fees, whether or not any foreclosure or other 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, 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 Borrower to the holder in accordance with the provisions of
the Loan Documents.
The Borrower, and every maker, endorser, or guarantor of this
Note, hereby jointly waive, to the fullest extent permitted by
law, presentment, notice, protest and all other demands and
notices and assents (1) to any extension of the time of payment or
any other indulgence, (2) to any substitution, exchange or release
of Collateral, and (3) to the release of any other person
primarily or secondarily liable for the obligations evidenced
hereby.
This Note and the provisions hereof shall be binding upon the
Borrower and the Borrower'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.
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.
This Note is executed and delivered in replacement of, but not
in novation or discharge of, the Revolving Line of Credit
Promissory Note of the undersigned payable to the order of the
Bank in the principal amount of Three Million Dollars
($3,000,000.00) dated March 31, 1995 (the "Old Note"). All
references to the Old Note in the Loan Agreement or any other Loan
Document shall be deemed to refer to this Note.
Executed and delivered this 19th day of February, 1997.
GREEN MOUNTAIN COFFEE ROASTERS, INC.
/s/ Robert P. Stiller By: /s/ Robert D. Britt
---------------------- -----------------------------------------
Witness Robert D. Britt, Chief Financial Officer
STATE OF Vermont
COUNTY OF Washington
On this the 19th 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
----------------------------------
Notary Public