FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This AGREEMENT is made this 2nd day of January, 1999, by and
between VERMONT PURE HOLDINGS, LTD., a Delaware business corporation with its
chief executive offices at Xxxxx 00, Xxxxxxxxx Xxxxxxxxxx Xxxx. Xxxxxxxx, XX
00000, VERMONT PURE SPRINGS, INC., a Delaware business corporation with its
chief executive offices at Route 00, Xxxxxxxxx xxxxxxxxxx Xxxx, Xxxxxxxx, XX
00000 jointly and severally, the "Borrowers", and FIRST UNION NATIONAL Bank
successor by merger to CORESTATES Bank N.A., a national banking association with
offices at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 (The
"Bank"),
BACKGROUND
A. The Bank and the Borrowers are parties to a Loan and Security
Agreement dated April 8, 1998 (as the foregoing may be amended, modified
supplemented or restated from time to time, the "Loan Agreement"), pursuant to
Which the Bank has made available to the Borrowers credit facilities in the form
of a Working capital line of credit, and loans to facilitate the acquisition of
specified types of businesses and assets. Unless otherwise indicated, all
capitalized terms used in this Agreement shall have the meaning given to them in
the Loan Agreement.
B. The Borrowers have requested that the Bank increase by One
Million Dollars ($I,000,000) the maximum amount available under the Working
Capital Line of Credit, which the Bank has agreed to do subject to, and in
reliance upon, the terms, conditions, representations, warranties and other
matters set for& below.
AGGREEMENT
In consideration of the foregoing, and the covenants set forth
below, and intending to be legally bound, the Borrowers and Bank agree:
1. AMENDMENT TO LOAN AGREEMENT. Effective as of the date of
this Agreement, Sections 2.01, 2.02 and 2.05 are amended by deleting the number
"'Two Million
Dollars ($2,000,000) everywhere where number appears in those sections, and
inserting in its place the number Three Million Dollars
2. Representations and warranties In order to induce the
Bank to enter into this Agreement, the Borrowers represent and warrent to the
Bank that:
(a) The execution, delivery and performance of this Agreement
has been duly authorized by all necessary corporate or other required action
of the Borrowers and the Sureties,
and does not and will not violate on of law, or any agreement, trust or other
Indenture or instrument to which they are a by which their properties may be
bound, or any order or decree affecting them or their properties, so that this
Agreement will be a legal valid and binding obligation of the Borrowers
Sureties, enforceable in accordance with their terms.
(b) The financial state of the Borrowers prepared by
management as of October 31, 1998, and previously filed to the Bank were
prepared in accordance with GAAP, and present fairly the financial position of
the Borrowers as of that date and the results of their operations for the
period then ended. The Borrowers have no material or substantial contingent
obligations or liabilities, for taxes or otherwise, not otherwise disclosed or
reserved against in such financial statements. Since October 31, 1998, there
bas been no material adverse of operations of the Borrowers or the Sureties
from that set forth in such financial statements.
(e) All representations and warranties made to
the Bank in the Loan Agreement and the Loan Documents are true
and correct, with the same effect as though 'Made on and as of
the date of this Agreement, there has neither occurred, nor is
there continuing, any event of Default or potential Death.
(d) The Borrowers and the Sureties
acknowledge and confirm that the
loan Agreement and Loan Documents are valid and
binding obligations, enforceable in accordance with
the terms and conditions and that First Union
National Bank is ihe successor by merger to Core
States Bank N.A., and is entitled to all of the
benefits and other rights set forth in the Loan
Agreement and the Loan Documents.
3. Conditions Precedent. As
conditions precedent to the matters ,contemplated by this
Agreement (including the increased availability under the
working capital Line of Credit), the Borrowers shall cause
to be delivered to the Bank the following agreements,
documents, instruments or other evidence, all in a form and
content satisfactory to the Bank and
its counsel:
(a) This Agreement, duly executed
(b) An Allonge to the working Capital, increasing the original principal
amount of the Working Capital Note to $3,000,000
(c) Consent of the Securities to the matters contemplated by
this Agreement, as evidenced by their signature of this Agreement in the
place provided below.
(d) Such additional agreements, documents, instruments or
other matters as the Bank or its counsel may request or require under the terms
of the Loan Agreement, or otherwise.
4. MISCELLANEOUS,
(a) This Agreement shall be deemed a modification of the Loan
Agreement and the Loan Documents, to the extent it is
inconsistent with any of those agreements.
(b) This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the Borrowers and the
Bank, aud shall be construed and enforced in accordance with the laws in
effect in the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
VERMONT PURE HOLDINGS, LTD.
By:
Xxxxxxx Xxxxxx President
VERMONT PURE SPRINGS, INC.
By:
Xxxxxxx Xxxxxx President
VERMONT PURE SPRINGS, INC.
FIRST UNION NATIONAL
Bank successor by
merger to CORESTATES
Bank N.A.
BY
The undersigned, being identified in the above agreement as Sureties, do
execute this Agreement in the place provided below for the purpose of evidencing
their consent
in the above transactions, and confirming as in full force and effect (without
setoff, counterclaim, deduction or other claim of avoidance of my nature). their
unlimited LIABILITY AS TO sureties for the Indebtedness,
EXCELSIOR SPRINGS WATER
COMPANY, INC.
By:
Xxxxxxx X. Xxxxxx
President
A.M. FRIDAYS, INC.
By
Xxxxxxx X. Xxxxxx, President
XXXX XXX XXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NOTARY PUBLIC NO. 0ILY5071942
QUALIFIED IN WESTCHESTER COUNTY
MY COMMISSION EXPIRES JANUARY 21, 1999
ALLONGE TO COMMERCIAL PROMISSORY NOTE
Payor: VERMONT PURE HOLDINGS, LTD. and
VERMONT PURE SPRINGS, INC.
Payee: FIRST UNION NATIONAL BANK, as successor by merger to
CoreStates Bank,
N.A. (the "Bank')
Date of
NOTE: April 8, 1998
Original
Principal Amount $2,000,000
BACKGROUND
A.The Bank is the holder of a certain Commercial
Promissory Note executed on or about April 8, 1998, and executed
and delivered to the Bank by the Borrower in the original
principal amount of
$2,000,000 (the "Note").
B.The Borrower has requested that the Bank increase
the loan availability evidenced by the Note from $2,000,000 to
$3,000,000, as set forth in that certain First Amendment to Loan
and Security
Agreement dated the date hereof between the Borrowers and
the Bank (the "First Amendment").
X.Xx a condition to entering
into the First Amendment,
the Bank has required the
Borrowers to execute this
Allonge.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby,
the parties agree:
1.This Allonge shall be and remain attached to and
shall constitute an integral part of the Note.
2.Terms capitalized but not defined
in this Allonge shall have
the meanings ascribed to
them respectively in the
Note.
3.The dollar amount appearing at the top left xxxxx of the Note
and elsewhere in the Note,is amended and restated as follows:
Three Million Dollars
($3,000,000).
4.Allonge, and all documents comprising or
relating to this Allonge, shall be construed inaccordance
with the laws in effort in the Commonwealth of Pennsylvania.
5.This Allonge, and all documents referred to in,
comprising or relating to this Allonge (including,
without limitation. the First Amendment) constitute the
sole agreement
Of the parties with respect to their subject matter
and supersede all oral negotiations and prior writings
with respect to their subject matter.
6.Except as modified by this Allonge, all of The
terms and provisions of the Note are hereby ratified and
confirmed, including, without limitation, those
provisions authorizing the Bank to exercise a warrent of attorney
to confess judgment subject to the terms and conditions set
forth or referred to in the Note.
IN WITNESS WHEREOF, the Borrowers have caused
this Allonge to Commercial Promissory Note to be executed by its
duly authorized officer as of the
20th day of January, 1999.
VERMONT PURE HOLDINGS, LTD.
Xxxxxxx G, Xxxxxx, President
VERMONT PURE SPRINGS, INC.
By:
Xxxxxxx G, Fallon, President
STATE OF NEW YORK
COUNTY OF WESTCHESTER
On this 20th day of January, 1999,
before me, a notary public, the undersigned
officer, personally appeared Xxxxxxx X.
Xxxxxx, who acknowledged himself to be the
President of Vermont Pure Holdings, Ltd.,
Vermont Pure Springs, Inc., Excelsior
Springs Water Company, Inc. and A.M.
Fridays, Inc., a Pennsylvania corporation,
and that he as such officer, being authorized
to do so, executed the First Amendment to
Loan and Security Agreement and Allonge to
Commercial Promissory Note for the
purposes therein contained by singing the
name of the corporation by himself as such
officer.
IN WITNESS WHEREFOR, I have hereunto set my hand and
official seal.
Notary Public
My commission expires:
XXXX XXX XXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NOTARY PUBLIC NO. 0ILY5071942
QUALIFIED IN WESTCHESTER COUNTY
MY COMMISSION EXPIRES JANUARY 21, 1999
