EXHIBIT 10.5
ACQUISITION LOAN NOTE
Amount $ April 5, 2005
FOR VALUE RECEIVED, the undersigned Vermont Pure Holdings, Ltd., a
Delaware corporation ("Holdings"), and Crystal Rock LLC, a Delaware limited
liability company ("Crystal Rock" and together with Holdings collectively, the
"Borrowers"), hereby jointly and severally promise to pay to the order of
_____________ (the "Lender") at the Administrative Agent's Office (as such term
is defined in the Credit Agreement referred to below):
(a) prior to or on the Acquisition Loan Maturity Date the principal
amount of ________________ or, if less, the aggregate unpaid principal
amount of the Acquisition Loans advanced by the Lender to the Borrowers
pursuant to the Credit Agreement dated of even date herewith (as amended
and in effect from time to time, the "Credit Agreement") by and among the
Borrowers, the Administrative Agent, the Lender and the other parties
thereto;
(b) the principal outstanding hereunder from time to time at the
times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time
outstanding from the date hereof through and including the Acquisition
Loan Maturity Date at the rates and terms and in all cases in accordance
with the terms of the Credit Agreement.
This Note evidences borrowings under and has been issued by the Borrowers
in accordance with the terms of the Credit Agreement. The Lender and any holder
hereof is entitled to the benefits of the Credit Agreement, the Security
Documents and the other Loan Documents, and may enforce the agreements of the
Borrowers contained therein, and any holder hereof may exercise the respective
remedies provided for thereby or otherwise available in respect thereof, all in
accordance with the respective terms thereof. All capitalized terms used in this
Note and not otherwise defined herein shall have the same meanings herein as in
the Credit Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Acquisition Loan or at
the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Acquisition Loan or (as the case may be) the receipt of such payment. The
outstanding amount of any Acquisition Loan set forth on the grid attached to
this Note, or the continuation of such grid, or any other similar record,
including computer records, maintained by the Lender with respect to such
Acquisition Loan shall be prima facie evidence of the principal amount thereof
owing and unpaid to the Lender, but the failure to record, or any error in so
recording, any such amount on any such grid, continuation or other record shall
not limit or otherwise affect the obligation of the Borrowers hereunder or under
the Credit Agreement to make payments of principal of and interest on this Note
when due.
The Borrowers have the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
-2-
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon may
become or be declared due and payable in the manner and with the effect provided
in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any future occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, 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 to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AND THE LENDER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS AND THE
LENDER BY MAIL AT THE ADDRESS SPECIFIED IN Section 18.6 OF THE CREDIT AGREEMENT.
EACH OF THE BORROWERS AND THE LENDER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH
SUIT IS BROUGHT IN AN INCONVENIENT COURT.
EACH OF THE BORROWERS HEREBY REPRESENTS, COVENANTS AND AGREES THAT THE
PROCEEDS OF THE ACQUISITION LOANS SHALL BE USED FOR GENERAL COMMERCIAL PURPOSES
AND THAT THIS NOTE IS PART OF A "COMMERCIAL TRANSACTION" AS DEFINED BY THE
STATUTES OF THE STATE OF CONNECTICUT. EACH OF THE BORROWERS HEREBY WAIVES ALL
RIGHTS TO NOTICE AND PRIOR COURT HEARING OR COURT ORDER UNDER CONNECTICUT
GENERAL STATUTES SECTIONS 52-278A ET. SEQ. AS AMENDED OR UNDER ANY OTHER STATE
OR FEDERAL LAW WITH RESPECT TO ANY AND ALL PREJUDGMENT REMEDIES THE
ADMINISTRATIVE AGENT OR THE LENDER MAY EMPLOY TO ENFORCE THEIR RIGHTS AND
REMEDIES HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS. MORE SPECIFICALLY, EACH
OF THE BORROWERS ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT'S ATTORNEY AND/OR
THE LENDER'S ATTORNEY MAY, PURSUANT TO CONNECTICUT GENERAL STATUES, SECTION
52-278F, ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT SECURING A COURT ORDER.
EACH OF THE BORROWERS ACKNOWLEDGES AND RESERVES ITS RIGHT TO NOTICE AND A
HEARING SUBSEQUENT TO THE ISSUANCE OF A WRIT FOR PREJUDGMENT REMEDY AS AFORESAID
AND THE LENDER ACKNOWLEDGES THE BORROWERS' RIGHT TO SAID HEARING SUBSEQUENT TO
THE ISSUANCE OF SAID WRIT. EACH OF THE BORROWERS FURTHER WAIVES ITS RIGHTS TO
REQUEST THAT THE ADMINISTRATIVE AGENT OR THE LENDER POST A BOND, WITH OR WITHOUT
SURETY, TO PROTECT BORROWERS AGAINST DAMAGES THAT MAY BE CAUSED BY ANY
PREJUDGMENT REMEDY SOUGHT OR OBTAINED BY THE ADMINISTRATIVE AGENT OR THE LENDER.
IN WITNESS WHEREOF, each of the undersigned has caused this Note to be
signed by its duly authorized officer as of the day and year first above
written.
VERMONT PURE HOLDINGS, LTD.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Its Chief Executive Officer
CRYSTAL ROCK LLC
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Its Manager
Xxxxxx Xxxxxx of Balance of
of Acquisition Principal Paid Principal Notation
Date Loan or Prepaid Unpaid Made By:
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