Replacement Revolving Line of Credit Promissory Note - Green Mountain Coffee Roasters Inc. and Fleet Bank - NH
REPLACEMENT REVOLVING LINE OF CREDIT PROMISSORY NOTE
$9,000,000.00 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
NINE MILLION DOLLARS ($9,000,000.00), 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, 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 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 for the Revolving Line of Credit 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 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 March 31, 2001
(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 Base Rate 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 Six
Million Dollars ($6,000,000.00) dated June 9, 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 20th day of February, 1998.
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
On this the 20th day of February, 1998, 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