Replacement Revolving Line of Credit Promissory Note - Green Mountain Coffee Roasters Inc. and Fleet Bank - NH
REPLACEMENT REVOLVING LINE OF CREDIT PROMISSORY NOTE
$6,000,000.00 Manchester, NH June 9, 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 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
SIX MILLION DOLLARS ($6,000,000.00), 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 dated
February 19, 1997, and by Ninth 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,
plus the Applicable Base Rate Margin 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 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.
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 occurrence 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 Replacement Revolving Line of Credit Promissory Note of the
undersigned payable to the order of the Bank in the principal amount of Five
Million Dollars ($5,000,000.00) dated February 19, 1997 (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 9th day of June, 1997.
GREEN MOUNTAIN COFFEE ROASTERS, INC.
/s/ Kimberley S. Cameron 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 9th day of June, 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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Notary Public