TWELFTH AMENDMENT TO FLEET BANK - NH
COMMERCIAL LOAN AGREEMENT AND LOAN DOCUMENTS
THIS TWELFTH AMENDMENT TO COMMERCIAL LOAN AGREEMENT AND LOAN DOCUMENTS
(the "Amendment") is made effective as of April 7, 2000, by and among FLEET BANK
- NH, a bank organized under the laws of the State of New Hampshire with an
address of Mail Stop XX XX 00000X, 0000 Xxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx
00000 (the "Bank"), GREEN MOUNTAIN COFFEE ROASTERS, INC. (f/k/a Green Mountain
Coffee, Inc.), a Vermont corporation with a principal place of business at 00
Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000 (the "Borrower"), and GREEN MOUNTAIN
COFFEE ROASTERS FRANCHISING CORPORATION, a Delaware corporation (the
"Subsidiary").
W I T N E S S E T H:
WHEREAS, the Bank, the Borrower, and the Subsidiary are parties to a
certain Fleet Bank - NH Seventh Amendment and First Restatement of Commercial
Loan Agreement dated April 12, 1996, as amended by Eighth Amendment to Fleet
Bank - NH Commercial Loan Agreement and Loan Documents dated February 19, 1997,
Ninth Amendment to Fleet Bank - NH Commercial Loan Agreement and Loan Documents
dated June 9, 1997, Tenth Amendment to Commercial Loan Agreement and Loan
Documents dated January 15, 1998, and Eleventh Amendment to Fleet Bank - NH
Commercial Loan Agreement and Loan Documents dated February 19, 1998 (as amended
to date, the "Loan Agreement") and certain Loan Documents of various dates (as
defined in the Loan Agreement and as amended through the date hereof),
including, but not limited to a certain Guaranty Agreement dated October 22,
1992, as amended to date, of the Subsidiary (the "Guaranty"), and certain
Security Agreements of the Borrower dated April 12, 1996 and of the Subsidiary
dated October 22, 1992, as amended to date (collectively, the "Security
Agreements");
WHEREAS, pursuant to the Loan Agreement, the Bank has extended to the
Borrower certain credit facilities including a revolving line of credit loan up
to the maximum principal amount of Nine Million Dollars ($9,000,000.00) (the
"Revolving Line of Credit Loan") and a revolving line of credit/ term loan in
the principal amount of Four Million Five Hundred Thousand Dollars
($4,500,000.00) (the "Revolving Line of Credit/ Term Loan"); and
WHEREAS, the Borrower has requested, and the Bank has agreed, to (a)
refinance the Revolving Line of Credit Loan and the Revolving Line of Credit/
Term Loan by consolidating said loans and replacing them with a revolving line
of credit in the maximum principal amount of up to Fifteen Million Dollars
($15,000,000.00), and (b) make certain other modifications and amendments to the
terms and conditions affecting all of the credit facilities provided under the
Loan Agreement and the Loan Documents. All capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Loan Agreement
and/or the Loan Documents, as the case may be.
NOW, THEREFORE, in consideration of the Bank increasing the Revolving
Line of Credit Loan as described above, and amending the Loan Agreement in other
respects as provided below, the Bank, the Borrower, and the Subsidiary hereby
agree to amend the Loan Agreement and the Loan Documents as follows:
I. AMENDMENT OF LOAN AGREEMENT.
A. INCREASE OF REVOLVING LINE OF CREDIT LOAN. References in the Loan
Agreement to the "Revolving Line of Credit/Term Loan" are deleted and Section I
of the Loan Agreement is amended to read in its entirety as follows:
I. REVOLVING LINE OF CREDIT LOAN. The Revolving Line of Credit Loan
first described above (the "Revolving Line of Credit Loan") made
available by the BANK to the BORROWER shall be upon and subject to the
terms and conditions set forth in the Note evidencing the Revolving
Line of Credit Loan, the other Loan Documents, and this Agreement.
A. MAXIMUM AVAILABLE AMOUNT. The aggregate maximum principal amount
available to the BORROWER under the Revolving Line of Credit Loan (the
"Maximum Available Amount") shall be FIFTEEN MILLION AND 00/100 DOLLARS
($15,000,000.00).
B. ADVANCES. The Revolving Line of Credit Loan shall be disbursed,
advanced, re-advanced, and repaid as provided in the Note evidencing
the Revolving Line of Credit Loan and this Agreement. The BORROWER may
request that advances and re-advances be made to the BORROWER (each
such advance or re-advance an "Advance") orally or in writing from time
to time in accordance with such procedures as BANK may reasonably
impose in an amount such that the aggregate amounts outstanding under
the Revolving Line of Credit Loan do not exceed the Maximum Available
Amount as determined under Paragraph A of this Section I above.
Notwithstanding any other provision of this Agreement, no Advance shall
be made by BANK to the BORROWER at any time an Event of Default (as
hereinafter defined) exists under this Agreement or the Loan Documents,
or any condition exists which, if not cured, would with the passage of
time or the giving of notice, or both, constitute such an Event of
Default. At the time of each Advance under the Revolving Line of Credit
Loan the BORROWER shall immediately become indebted to the BANK for the
amount thereof. Each such Advance may be credited by the BANK to any
deposit account of BORROWER with the BANK, or in such other reasonable
manner as may be designated in writing by the BANK to the BORROWER, and
shall constitute a binding obligation of the BORROWER to the BANK.
C. PAYMENT OF PRINCIPAL. The BORROWER shall make payments of principal
under the Revolving Line of Credit Loan from time to time in such
amounts as is required to maintain the outstanding principal thereunder
at or below the Maximum Available Amount as determined under Section I.
A. above. THE ENTIRE AMOUNT OF OUTSTANDING PRINCIPAL, ACCRUED INTEREST
AND OTHER CHARGES PAYABLE UNDER THE REVOLVING LINE OF CREDIT LOAN SHALL
BE DUE AND PAYABLE BY BORROWER IN FULL ON March 31, 2003 (the "Maturity
Date").
D. INTEREST RATE.
(i) ALTERNATIVE RATES. The principal balance outstanding from time to
time under the Revolving Line of Credit Loan, shall bear interest at
the following rates, at BORROWER's selection, subject to the conditions
and limitations provided for herein and in the Note evidencing such
Loan: (i) Revolving Variable Rate (defined below), (ii) Revolving LIBOR
Rate (defined below), or (iii) Revolving BAR Rate (defined below).
BORROWER shall select, and thereafter may change the selection of, the
applicable interest rate, from the alternatives provided herein, for
the Revolving Line of Credit Loan by notifying the BANK of its
selection (pursuant to procedures and forms required by the BANK): (i)
prior to each Advance, (ii) prior to the end of each Interest Period
applicable to a LIBOR or Fixed Interest Rate Advance or (iii) on any
Business Day on which BORROWER desires to convert an outstanding
Variable Rate Advance to a LIBOR or Fixed Interest Rate Advance. The
selection of an interest rate for the Revolving Line of Credit Loan
shall be limited to those rates specifically made available for such
Loan pursuant to this Agreement. Interest shall be calculated and
charged daily on the basis of actual days elapsed over a three hundred
sixty (360) day banking year. As used herein, a "Business Day" is any
Banking Day and, with respect to determining or selecting a Revolving
LIBOR Rate, any London Banking Day. If any day on which a payment is
due is not a Business Day, then the payment shall be due on the next
day following which is a Business Day, unless, with respect to a LIBOR
Advance, the effect would be to make the payment due in the next
calendar month, in which event such payment shall be due on the next
preceding day which is a Business Day. Further, if there is no
corresponding day for a payment in the given calendar month (i.e.,
there is no "February 30th"), the payment shall be due on the last
Business Day of the calendar month. The term "Banking Day" means in
respect of any city, any date on which commercial banks are open for
business in that city.
(ii) REVOLVING LIBOR RATE. If BORROWER elects to have any amounts
outstanding under the Revolving Line of Credit Loan bear interest at
the Revolving LIBOR Rate, such interest rate shall be for a period
measured from one (1) to twelve (12) months (each such period to be in
one (1) month increments but in no event beyond the Maturity Date)
("Interest Period") at a rate (the "Revolving LIBOR Rate") equal to the
LIBOR Rate (as hereinafter defined) plus the Applicable LIBOR Margin
(as set forth below in Section I. D (v)) per annum. BORROWER may only
elect the Revolving LIBOR Rate with respect to an outstanding principal
amount under the Revolving Line of Credit Loan of not less than Five
Hundred Thousand Dollars ($500,000.00). BORROWER shall notify BANK in
writing at least two (2) Banking Days in advance of the date upon which
the BORROWER desires an election to the Revolving LIBOR Rate to be
effective. BORROWER's notice to BANK as aforesaid shall specify the
outstanding amount under the Revolving Line of Credit Loan that
BORROWER desires to bear interest at the Revolving LIBOR Rate, the
period selected, and the date such election is to be effective (which
must be a Banking Day). Any amounts outstanding under the Revolving
Line of Credit Loan as to which BORROWER has elected the Revolving
LIBOR Rate shall hereinafter be referred to as a "LIBOR Advance". The
term "LIBOR rate" shall mean, with respect to any LIBOR Advance, the
interest rate per annum (rounded upward, if necessary, to the nearest
1/32 of one percent), as determined on the basis of the offered rates
for deposits in U.S. Dollars for a period of time comparable to the
Interest Period selected by Borrower for such LIBOR Advance which
appears on the Telerate page 3750 as of 11:00 a.m. London time on the
day that is two (2) London Banking Days preceding the first day of such
Interest Period. "London Banking Day" means any day on which dealings
in deposits in U.S. Dollars are transacted in the London interbank
market. If such rate does not appear on the Telerate System on any
applicable interest determination date, the LIBOR Rate shall be the
rate (rounded upward as described above, if necessary) for deposits in
U.S. Dollars for a period substantially equal to the Interest Period on
the Reuters Page "LIBO" (or such other page as may replace the LIBO
Page on that service for the purpose of displaying such rates), as of
11:00 a.m. (London time), on the day that is two (2) London Banking
Days prior to the beginning of such Interest Period. If both the
Telerate and Reuters system are unavailable, then the rate for that
date will be determined on the basis of the offered rates for deposits
in U.S. Dollars for a period of time comparable to the Interest Period
selected by Borrower for such LIBOR Advance which are offered by four
major banks in the London interbank market at approximately 11:00 a.m.
London time, on the day that is two (2) London Banking Days preceding
the first day of such Interest Period. The principal London office of
each of the four major London banks will be requested to provide a
quotation of its U.S. Dollar deposit offered rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic
mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that date will be determined on the basis of
the rates quoted for loans in U.S. Dollars to leading European banks
for a period of time comparable to such Interest Period offered by
major banks in New York City at approximately 11:00 a.m. New York City
time, on the day that is two (2) London Banking Days preceding the
first day of such LIBOR Advance. In the event that the Lender is unable
to obtain any such quotation as provided above, it will be deemed that
the LIBOR Rate for such Interest Period cannot be determined. In the
event that the Board of Governors of the Federal Reserve System shall
impose a Reserve Percentage (as defined below) with respect to LIBO
deposits of the Lender, then for any period during which such Reserve
Percentage shall apply, the LIBOR Rate shall be equal to the amount
determined above divided by an amount equal to 1 minus the Reserve
Percentage. "Reserve Percentage" shall mean the maximum aggregate
reserve requirement (including all basic, supplemental, marginal and
other reserves) which is imposed on member banks of the Federal Reserve
System against "Euro-currency Liabilities" as defined in Regulation D.
(iii) BANKER'S ACCEPTANCE RATE. If BORROWER elects from time to time to
have amounts outstanding under the Revolving Line of Credit Loan bear
interest at the Revolving BAR Rate, such interest rate shall be a fixed
rate for one or more periods of thirty (30), sixty (60), or ninety (90)
days each (each such period shall be an "Interest Period") equal to the
Banker's Acceptance Rate (as hereinafter defined) plus the Applicable
BAR Margin (as hereinafter defined) ("Revolving BAR Rate"), all upon
such terms and conditions as the BANK may establish for Banker's
Acceptance Rate borrowing. The "Banker's Acceptance Rate" shall be such
fixed rate of interest for such periods as is determined and
established by the BANK, and which may be changed by the BANK from time
to time, for Banker's Acceptance Rate borrowing, whether or not such
rate shall be otherwise published or BORROWER receives notice thereof.
BORROWER may only elect the Banker's Acceptance-based Rate with respect
to an outstanding principal amount under the Revolving Line of Credit
Loan of not less than One Million Dollars ($1,000,000.00) ("Fixed
Interest Rate Advance"). Notwithstanding the provisions of Section I.D.
herein, a Fixed Interest Rate Advance which has a maturity date beyond
the Maturity Date shall remain outstanding after the Maturity Date and
shall be repaid by the BORROWER pursuant to the terms for such Fixed
Interest Rate Advance. During any such period beyond the Maturity Date,
the Loan Documents, notwithstanding any provision therein to the
contrary, shall remain in full force and effect.
(iv) If BORROWER does not select the Revolving LIBOR Rate or the
Revolving BAR Rate for a particular Advance, the Advance shall bear
interest at the variable rate equal to the Bank's Base Rate plus the
Applicable Base Rate Margin (the "Revolving Variable Rate"). As used
herein, the Bank's "Base Rate" is the per annum rate of interest so
designated from time to time by Fleet National Bank as its prime rate.
The Base Rate is a reference rate and does not necessarily represent
the lowest or best rate being charged to any customer. Changes in the
Revolving Variable Rate shall be effective as of the opening of
business on each day that the Base Rate changes without prior notice to
BORROWER and whether or not the change is published by Fleet National
Bank or the BANK. Any portion of the Revolving Line of Credit Loan
which bears interest at the Revolving Variable Rate is referred to
herein as a "Variable Rate Advance."
(v) For purposes of this Section I. D., the terms "Applicable LIBOR
Margin," "Applicable BAR Margin," and "Applicable Base Rate Margin"
shall mean the margins determined by BANK on a quarterly basis as
provided below. The margins shall be determined by reference to the
ratio of BORROWER's Funded Debt to Cash Flow (each as described and
defined in Schedule B attached hereto) as reported on BORROWER's
quarterly financial covenant compliance certificate (as described on
Schedule B attached hereto) delivered to the BANK and as established by
BORROWER's Financial Statements (as defined and described on Schedule B
attached hereto) delivered to the BANK. The Applicable Base Rate
Margin, Applicable LIBOR Margin and Applicable BAR Margin for the
Revolving Line of Credit Loan are as follows:
If ratio of Funded Then the Applicable Then the Applicable Then the Applicable
Debt to Cash Flow is: Base Rate Margin is: LIBOR Margin is: BAR Margin is:
--------------------- -------------------- ------------------- -------------------
Greater or equal to 2.0:1 0% 2.0% 1.85%
Greater or equal to 1.5:1
but less than 2.0:1 0% 1.75% 1.60%
Greater or equal to 1.0:1
but less than 1.5:1 0% 1.50% 1.35%
Less than 1.0:1 0% 1.25% 1.10%
Within forty-five (45) days of the end of each fiscal quarter of
BORROWER, BORROWER shall (a) deliver to BANK its quarterly Financial
Statements for the fiscal quarter then ended (other than with respect
to the fourth fiscal quarter for which BORROWER shall deliver
management prepared financial statements for purposes hereof), (b)
deliver to BANK the quarterly financial covenant compliance certificate
of BORROWER, and (c) certify to BANK the then ratio of BORROWER's
Funded Debt to Cash Flow and the BORROWER's determination of the
Applicable Base Rate Margin, Applicable LIBOR Margin and Applicable BAR
Margin therefrom on such form and in such detail as the BANK may from
time to time specify. BORROWER shall also provide to the BANK such
other reasonable information as BANK may request of BORROWER to verify
its determination of the Applicable Base Rate Margin, Applicable LIBOR
Margin and Applicable BAR Margin. As of the tenth (10th) Banking Day
after the BORROWER's certification to the BANK of BORROWER's delivery
of all of the above-referenced items to the BANK, the BANK shall notify
BORROWER of its determination of the Applicable Base Rate Margin,
Applicable LIBOR Margin and Applicable BAR Margin. The Applicable Base
Rate Margin, Applicable LIBOR Margin and Applicable BAR Margin as so
determined by the BANK shall be effective as to all outstanding
advances under the Revolving Line of Credit Loan as of the tenth (10th)
Banking Day after the date of the BORROWER's delivery to the BANK of
the above-referenced items through the next date upon which the
determination of a new Applicable Margin becomes effective in
accordance with the above provisions.
E. PREPAYMENT PROVISIONS.
1. PREPAYMENT. Each Loan or any portion thereof may be prepaid in full
or in part at any time, upon fifteen (15) days' prior written notice to
the holder of the Note evidencing the Loan in the case of a LIBOR
Advance or Fixed Interest Advance, without premium or penalty with
respect to Variable Rate Advances, but with respect to LIBOR and Fixed
Interest Advances subject to the make-whole provision set forth below
and payment of a Yield Maintenance Fee determined as provided below.
Any partial prepayment of principal shall first be applied to any
installment of principal then due and then be applied to the principal
due in the reverse order of maturity, and no such partial prepayment
shall relieve BORROWER of the obligation to pay each subsequent
installment of principal when due.
2. CALCULATION OF YIELD MAINTENANCE FEE.
(i) The Yield Maintenance Fee shall be calculated separately for each
installment of principal due prior to the Maturity Date set forth in
the applicable Note, as well as the entire balance of principal due at
the Maturity Date, (in the case of the Revolving Line of Credit Loan,
the calculation shall be based on the remainder of the applicable
Interest Period) all in accordance with the following: The current
rate for United States Treasury securities (bills on a discounted basis
shall be converted to a bond equivalent) with a maturity date closest
to the last day of the current Interest Period, shall be subtracted
from the applicable Revolving LIBOR Rate or Revolving BAR Rate in
effect at the time of prepayment. If the result is zero or a negative
number, there shall be no yield maintenance fee. If the result is a
positive number, then the resulting percentage shall be multiplied by
the amount of the principal balance being prepaid. The resulting
amount shall be divided by 360 and multiplied by the number of days
remaining in the Interest Period during which the prepayment is made.
Said amount shall be reduced to present value calculated by using the
above referenced United States Treasury securities rate and the number
of days remaining in the current Interest Period. The resulting amount
shall be the yield maintenance fee due to Bank upon the prepayment of
the LIBOR or Fixed Interest Rate Advance.
(ii) Neither all nor any portion of the principal which bears interest
at the Revolving LIBOR Rate or Revolving BAR Rate may or shall be
prepaid prior to the last day of the applicable Interest Period, except
upon fifteen (15) days' prior written notice to BANK and the payment to
BANK of a Yield Maintenance Fee computed in accordance with clause (i)
above.
(iii) The Yield Maintenance Fee shall be payable in respect of all
prepayments of principal whether voluntary or involuntary including,
without limitation, prepayments made upon acceleration of the Loan, or
application of insurance or eminent domain proceeds.
(iv) Once written notice of intention to prepay is given, the Loan, or
the applicable portion thereof, shall become due and payable in full on
the date specified in the notice of prepayment and the failure to so
prepay the Loan on such date, together with any applicable Yield
Maintenance Fee, shall constitute an Event of Default.
3. MAKE WHOLE PROVISION. BORROWER shall pay to BANK, immediately upon
request and notwithstanding contrary provisions contained in any of the
Loan Documents, such amounts as shall, in the conclusive judgment of
BANK (in the absence of manifest error), compensate BANK for the loss,
cost or expense which it may reasonably incur as a result of (i) any
payment or prepayment, under any circumstances whatsoever, whether
voluntary or involuntary, of all or any portion of a LIBOR or Fixed
Interest Rate Advance on a date other than the last day of the
applicable Interest Period, (ii) the conversion, for any reason
whatsoever, whether voluntary or involuntary, of any LIBOR or Fixed
Interest Rate Advance to a Variable Rate Advance on a date other than
the last day of the applicable Interest Period, (iii) the failure of
all or a portion of an Advance which was to have borne interest at the
Revolving LIBOR Rate or Revolving BAR Rate pursuant to the request of
BORROWER to be made under the Loan Agreement (except as a result of a
failure by BANK to fulfill BANK's obligations to fund), or (iv) the
failure of BORROWER to borrow in accordance with any request submitted
by it for a LIBOR Advance. Such amounts payable by BORROWER shall be
equal to any administrative costs actually incurred, plus any amounts
required to compensate for any loss, cost or expense incurred by reason
of the liquidation or re-employment of deposits or other funds acquired
by BANK to fund or maintain a LIBOR or Fixed Interest Rate Advance
plus, in any event, but without duplication, a Yield Maintenance Fee.
F. PURPOSES. Amounts advanced and readvanced to Borrower under the
Revolving Line of Credit Loan shall only be used for BORROWER's ordinary
working capital requirements, planned repurchase of shares of stock in
an aggregate amount up to $6,250,000.00, and other general corporate
purposes.
B. PAYMENTS PROVISION. Section V of the Loan Agreement is amended to
read in its entirety as follows:
V. PAYMENTS. All payments made by the BORROWER of principal and interest
on the Loans, and other sums and charges payable under the Loan
Documents, shall be made to the BANK in accordance with the terms of the
respective Loan Documents in immediately available, lawful United States
of America currency at its office set forth above, or by the debiting by
the BANK of the demand deposit account(s) in the name of the BORROWER at
the BANK, or in such other reasonable manner as may be designated by the
BANK in writing to the BORROWER, and in any event shall be made in
immediately available funds. The BORROWER authorizes the BANK
automatically to debit the BORROWER's demand deposit account as
described above.
C. ELIMINATION OF BORROWING BASE PROVISIONS AND CERTIFICATE. Schedule
A to the Loan Agreement and Exhibit A-1 thereto shall be and hereby are
deleted in their entirety and replaced with SCHEDULE A attached hereto.
D. REVOLVING LINE OF CREDIT/TERM LOAN. The Loan Agreement shall be
and hereby is amended by deleting Section I-A of the Loan Agreement in
its entirety.
E. EQUIPMENT LINE OF CREDIT LOAN. The Loan Agreement shall be and
hereby is amended by deleting Section II of the Loan Agreement in its
entirety.
F. AMENDMENT OF FEES. Section I of Schedule B of the Loan Agreement
shall be and hereby is replaced with the following:
Revolving Line of Credit Commitment Fee: $7,500.00 payable at Closing
Unused Revolving Line of Credit Fee: 0.20% per annum of daily average
of unadvanced amounts under Revolving Line of Credit Loan (based upon
full availability of $15,000,000.00), determined and payable quarterly
in arrears.
Cash Management Fees: BANK's standard monthly fees as the same may be
adjusted from time to time for target balance management and additional
fees to be determined upon basis of scope of monthly services (e.g.
lockboxes, zero balance account, etc.).
G. AMENDMENT OF FINANCIAL COVENANTS. Effective as of the end of the
Borrower's first fiscal quarter of its 2000 fiscal year, the Financial Covenants
set forth in Section IV of Schedule B of the Loan Agreement shall be and hereby
are deleted in their entirety and replaced with the following:
IV. DESCRIPTION OF ADDITIONAL FINANCIAL AND OTHER COVENANTS:
A. BORROWER and the Subsidiary on a consolidated basis shall have a
ratio of Funded Debt (as hereinafter defined) to Cash Flow (as
hereinafter defined) as of the end of each fiscal quarter which does
not exceed 2.25:1. "Funded Debt" means all indebtedness of the BORROWER
and the Subsidiary other than ordinary trade accounts payable and
accrued liabilities, all as determined in accordance with generally
accepted accounting principles consistently applied ("GAAP") at the end
of each fiscal quarter from BORROWER's and the Subsidiary's
consolidated financial statements delivered to the BANK in accordance
with the covenants of the BORROWER herein above (the "Financial
Statements"). "Cash Flow" means the BORROWER's and Subsidiary's
consolidated earnings for the twelve (12) month period ending as of the
end of the reported fiscal quarter, before reduction for interest,
depreciation, and amortization expense, and after reduction or increase
for non-cash items, all as determined in accordance with GAAP from the
Financial Statements.
B. The BORROWER and the Subsidiary on a consolidated basis shall have a
minimum "Debt Service Coverage" (as hereinafter defined) of 2.5:1 as at
the end of each fiscal quarter. For purposes hereof, "Debt Service
Coverage" shall mean the ratio of Cash Flow for the twelve (12) month
period ending as of the end of the reported fiscal quarter to the
aggregate amount of interest and current maturities on Funded Debt
payable by BORROWER and the Subsidiary for such period, all as
determined in accordance with GAAP from the Financial Statements.
C. BORROWER and the Subsidiary shall have on a consolidated basis Net
Profits (as hereinafter defined) of at least One Million Dollars
($1,000,000.00) for the twelve (12) month period ending as of the end
of each fiscal quarter beginning with the third quarter of their 2000
fiscal year. "Net Profits" means net profits as determined in
accordance with GAAP from the Financial Statements.
D. BORROWER shall not make expenditures for capital assets or capital
improvements (as determined in accordance with GAAP) in any fiscal year
in excess of the sum of Five Million Five Hundred Thousand Dollars
($5,500,000.00) plus the amount of cash received in such fiscal year by
BORROWER from the sale of capital assets.
E. BORROWER shall report and certify to BANK its compliance with the
financial covenants hereinabove within forty-five (45) days after each
fiscal quarter end on such form or forms as may from time to time be
specified by the BANK.
H. MISCELLANEOUS PROVISIONS. The Loan Agreement shall be and hereby
is amended by deleting Article XIII in its entirety and inserting in place
thereof the following new Article XIII:
XIII. MISCELLANEOUS PROVISIONS.
A. ENTIRE AGREEMENT; WAIVERS. This Agreement, the Schedules hereto, and
the Loan Documents together constitute the entire agreement among the
Borrower and the Bank with respect to the subject matter hereof. No
covenant, term, condition or other provision of this Agreement or any
of the Loan Documents, nor any default in connection therewith, may be
waived except by an instrument in writing, signed by the Bank and
delivered to the Borrower. The Bank's failure to exercise or enforce
any of its rights, powers or privileges under this Agreement or the
Loan Documents shall not operate as a waiver thereof. In the event of
any conflict between the terms, covenants, conditions and restrictions
contained in the Loan Documents, the term, covenant, condition or
restriction which confers the greatest benefit upon the Bank shall
control. The determination as to which term, covenant, condition or
restriction is more beneficial shall be made by the Bank in its sole
discretion.
B. REMEDIES CUMULATIVE. All remedies provided under this Agreement
and the Loan Documents or afforded by law shall be cumulative and
available to the Bank until all of the Borrower's Obligations to the
Bank have been paid in full.
C. SURVIVAL OF COVENANTS. All covenants, agreements, representations
and warranties made in this Agreement and in the Loan Documents shall
be deemed to be material and to have been relied on by the Bank,
notwithstanding any investigation made by the Bank or in its behalf,
and shall survive the execution and delivery of this Agreement and the
Loan Documents. All such covenants, agreements, representations and
warranties shall bind and inure to the benefit of the Borrower's and
the Bank's successors and assigns, whether so expressed or not.
D. GOVERNING LAW; JURISDICTION. This Agreement and the Loan Documents
shall be construed and their provisions interpreted under and in
accordance with the laws of the State of New Hampshire. The Borrower,
to the extent it may legally do so, hereby consents to the jurisdiction
of the courts of the State of New Hampshire and the United States
District Court for the State of New Hampshire for the purpose of any
suit, action or other proceeding arising out of any of their
obligations hereunder or with respect to the transactions contemplated
hereby, and expressly waives any and all objections they may have to
venue in any such courts.
E. ASSURANCE OF EXECUTION AND DELIVERY OF ADDITIONAL INSTRUMENTS. The
Borrower agrees to execute and deliver, or to cause to be executed and
delivered, to the Bank all such further instruments, and to do or cause
to be done all such further acts and things, as the Bank may reasonably
request or as may be necessary or desirable to effect further the
purposes of this Agreement and the Loan Documents. Upon receipt of an
affidavit of an officer of Bank as to the loss, theft, destruction or
mutilation of any Note or any other of the Loan Documents which is not
of public record, and, in the case of any such mutilation, upon
surrender and cancellation of such Note or other of the Loan Documents,
Borrower will issue, in lieu thereof, a replacement Note or other of
the Loan Documents in the same principal amount thereof and otherwise
of like tenor.
F. WAIVERS AND ASSENTS. The Borrower and any guarantors or endorsers of
the Borrower's Obligations to the Bank, hereby waive, to the fullest
extent permitted by law, all rights to marshaling of assets and all
rights to demand, notice, protest, notice of acceptance of this
Agreement and the Loan Documents, notice of Loans made, credit
extended, Collateral received or delivered or other action taken in
reliance hereon and all other demands and notices of any description
with respect both to the Loan Documents and the Collateral.
G. NO DUTY OF THE BANK WITH RESPECT TO THE COLLATERAL. The Bank shall
have no duty as to the collection or protection of Collateral or any
income thereon, nor as to the preservation of rights against prior
parties, nor as to the preservation of any rights pertaining thereto,
beyond the safe custody thereof.
H. ELECTION OF THE BANK. The Bank may exercise its rights with
respect to Collateral without resorting or regard to other collateral
or sources of reimbursement for the Obligations of Borrower to the
Bank.
I. ASSIGNMENT AND PLEDGE. Bank shall have the unrestricted right at any
time or from time to time, and without Borrower's or any guarantor's
consent, to assign all or any portion of its right and obligations
under this Agreement and the Loan Documents to one or more banks or
other financial institutions (each, an "Assignee"), and Borrower and
each guarantor agrees that it shall execute, or cause to be executed,
such documents, including without limitation, amendments to this
Agreement and to any Loan Documents as Bank shall deem necessary to
effect the foregoing (provided that the substantive terms of this
Agreement and Loan Documents are not changed). In addition, at the
request of Bank and any such Assignee, Borrower shall issue one or more
new promissory notes, as applicable, to any such Assignee and, if Bank
has retained any of its rights and obligations hereunder following such
assignment, to Bank, which new promissory notes shall be issued in
replacement of, but not in discharge of, the liability evidenced by the
promissory note held by Bank prior to such assignment and shall reflect
the amount of the respective commitments and loans held by such
Assignee and Bank after giving effect to such assignment. Upon the
execution and delivery of appropriate assignment documentation,
amendments and any other documentation required by Bank in connection
with such assignment, and the payment by Assignee of the purchase price
agreed to by Bank and such Assignee, such Assignee shall be a party to
this Agreement and shall have all of the rights and obligations of Bank
hereunder (and under any and all other guaranties, documents,
instruments and agreements executed in connection herewith) to the
extent that such rights and obligations have been assigned by Bank
pursuant to the assignment documentation between Bank and such
Assignee, and Bank shall be released (provided that the Assignee has
capital of not less than that of the Bank) from its obligations
hereunder and thereunder to a corresponding extent. This Agreement and
the Loan Documents shall be binding upon and inure to the benefit of
the Bank and the Borrower, their successors, assigns, heirs and
personal representatives; provided, however, the rights and obligations
of the Borrower are not assignable, delegable or transferable without
the consent of the Bank. Bank may at any time pledge all or any portion
of its rights under this Agreement and the Loan Documents, including,
but not limited to, any portion of any Note to any of the twelve (12)
Federal Reserve Banks organized under Section 4 of the Federal Reserve
Act, 12 U.S.C. Section 341. No such pledge or enforcement thereof shall
release Bank from its obligations under any of the Loan Documents.
J. PARTICIPATIONS. Bank shall have the unrestricted right at any time
and from time to time, and without the consent of or notice to
Borrower, to grant to one or more banks or other financial institutions
(each, a "Participant") participating interests in Bank's obligations
to lend under this Agreement, the Loan Documents, and/or any or all of
the Loans held by Bank hereunder. In the event of any such grant by
Bank of a participating interest to a Participant, whether or not upon
notice to Borrower, Bank shall remain responsible for the performance
of its obligations hereunder and Borrower shall continue to deal solely
and directly with Bank in connection with Bank's rights and obligations
hereunder. Bank may furnish any information concerning Borrower in its
possession from time to time to prospective Assignees and Participants,
provided that Bank shall require any such prospective Assignees or
participant to agree in writing to maintain the confidentiality of such
information.
K. EXPENSES: PROCEEDS OF COLLATERAL. The Borrower covenants and agrees
that they shall pay to the Bank, on demand, any and all reasonable
out-of-pocket expenses, including reasonable attorneys' fees, court
costs, sheriffs' fees, and other expenses incurred or paid by the Bank
in protecting and enforcing its rights under this Agreement, the Loan
Documents, and the other Obligations, including the costs of
preparation of this Agreement and the Loan Documents, and any
amendments, modifications, consents, or waivers in respect thereof, and
all filing, auditing, accounting, and appraisal fees. After deducting
all of said expenses and the reasonable expenses of retaking, holding,
preparing for sale, selling and the like, the residue of any proceeds
of collections or sale of Collateral shall be applied to the payment of
principal of or interest on Obligations of the Borrower to the Bank in
such order or preference as the Bank may determine, and any excess
shall be returned to the Borrower (subject to the provisions of the
Uniform Commercial Code) and the Borrower shall remain liable for any
deficiency.
L. THE BANK'S RIGHT OF OFFSET. Borrower hereby grants to Bank, a lien,
security interest and right of setoff as security for all Obligations
to Bank, whether now existing or hereafter arising, upon and against
all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of Bank or any entity under
the control of Fleet Boston Corporation and its successors and assigns,
or in transit to any of them. At any time, without demand or notice,
Bank may set off the same or any part thereof and apply to same to any
liability or obligation of Borrower and even though unmatured and
regardless of the adequacy of any other Collateral securing the Loan.
ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES
WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN, PRIOR TO
EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS
OR OTHER PROPERTY OF THE BORROWER OR ANY GUARANTOR, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
M. NOTICES. All notices, requests, demands and other communications
provided for hereunder shall be in writing and shall be either mailed
by certified mail, return receipt requested, or delivered by overnight
courier service, to the applicable party at the addresses set forth in
this Agreement.
N. SAVINGS CLAUSE. Any provision of this Agreement or any of the Loan
Documents which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
O. TERM OF THIS AGREEMENT. This Agreement shall remain in full force
and effect until all of the Obligations have been paid in full, all of
the terms, conditions and covenants under the Loan Documents have been
performed, and all commitments of the Bank to advance funds under any
of the Loans have terminated.
P. INTEREST RATE PROVISIONS. All agreements between Borrower, any
guarantor, and Bank are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration of
maturity of the Obligations or otherwise, shall the amount paid or
agreed to be paid to Bank for the use or the forbearance of the
Obligations exceed the maximum permissible under applicable law. As
used herein, the term "applicable law" shall mean the law in effect as
of the date hereof provided, however that in the event there is a
change in the law which results in a higher permissible rate of
interest, then this Agreement and each of the Loan Documents shall be
governed by such new law as of its effective date. In this regard, it
is expressly agreed that it is the intent of Borrower and Bank in the
execution, delivery and acceptance of each Note to contract in strict
compliance with the laws of the State of New Hampshire from time to
time in effect. If, under or from any circumstances whatsoever,
fulfillment of any provision of this Agreement or of any of the Loan
Documents at the time of performance of such provision shall be due,
shall involve transcending the limit of such validity prescribed by
applicable law, then the obligation to be fulfilled shall automatically
be reduced to the limits of such validity, and if under or from
circumstances whatsoever Bank should ever receive as interest an amount
which would exceed the highest lawful rate, such amount which would be
excessive interest shall be applied to the reduction of the principal
balance of the Obligations and not to the payment of interest. This
provision shall control every other provision of all agreements between
Borrower and Bank.
Q. WAIVER OF JURY TRIAL. BORROWER AND BANK MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OF ANY OTHER LOAN DOCUMENT EXECUTED IN
CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR BANK TO MAKE THE LOAN.
I. COMMITMENT FEE. For and in consideration of the Bank entering into
this Amendment, the Borrower shall pay the Bank a commitment fee in the amount
of $7,500.00 on the date of execution hereof, which fee is shown on Schedule B
to the Loan Agreement (as amended hereby) as the Revolving Line of Credit
Commitment Fee.
II. REPLACEMENT REVOLVING LINE OF CREDIT PROMISSORY NOTE. The Borrower
shall execute and deliver to Bank a replacement Revolving Line of Credit Loan
promissory note in form and substance satisfactory to the Bank to reflect the
increase of the maximum principal amount under the Revolving Line of Credit
Loan.
III. AMENDMENT OF SECURITY AGREEMENTS. The Revolving Line of Credit
Loan, as increased hereby, shall be secured in accordance with the terms,
conditions, and priorities under the Loan Agreement and Loan Documents for the
Revolving Line of Credit Loan prior to increase hereunder. The Security
Agreements of each of the Borrower and the Subsidiary included among the Loan
Documents shall be and hereby are amended by including the Revolving Line of
Credit Loan, as increased hereby, as Secured Obligations under each of the
Security Agreements secured by the security interests in the Collateral granted
to the Bank by the Borrower and the Subsidiary thereunder in replacement of the
prior Revolving Line of Credit Loan and the Revolving Line of Credit/Term Loan.
IV. AMENDMENT OF SUBSIDIARY'S GUARANTY AGREEMENT.
The Guaranty shall be and hereby is amended such that the Revolving
Line of Credit Loan, as increased hereby, shall be included as a Guaranteed
Obligations thereunder.
V. REPRESENTATIONS AND WARRANTIES.
Except as set forth in Schedule I hereto, and except to the extent
affected by the amendments hereunder or by previous amendments, or otherwise
consented to or acknowledged by the Bank in writing, each of the Borrower and
the Subsidiary, jointly and severally, confirm, reassert, and restate all of the
representations and warranties under the Loan Agreement and the Loan Documents
as of the date hereof.
VI. AFFIRMATIVE COVENANTS.
Except as set forth in Schedule II hereto and except to the extent
affected by the amendments hereunder or by previous amendments, or otherwise
consented to or acknowledged by the Bank in writing, each of the Borrower and
the Subsidiary, jointly and severally, hereby confirm, reassert, and restate
their respective affirmative covenants as set forth in the Loan Agreement and
Loan Documents as of the date hereof.
VII. AFFIRMATION OF NEGATIVE COVENANTS.
Except as set forth on Schedule III hereto and except to the extent
affected by the amendments hereunder or by previous amendments, or otherwise
consented to or acknowledged by the Bank in writing, each of the Borrower and
the Subsidiary, jointly and severally, hereby confirm, reassert, and restate
their respective negative covenants as set forth in the Loan Agreement and the
Loan Documents as of the date hereof.
VIII. FURTHER REPRESENTATION AND WARRANTY.
Each of the Borrower and the Subsidiary represent and warrant to the
Bank that no consent, authorization or approval is required of any third party,
including, but not limited to, the Vermont Economic Development Authority and
the United States Small Business Administration, for any of the Borrower or the
Subsidiary to enter into this Agreement and to consummate the transactions
contemplated hereunder.
IX. NO FURTHER EFFECT.
Except as specifically amended hereby, the terms and conditions of the
Loan Agreement and the Loan Documents as set forth therein and as amended
through the date hereof shall remain in full force and effect.
IN WITNESS WHEREOF, the Bank, the Borrower and the Subsidiary have
executed this agreement effective as of the date and year first above written.
FLEET BANK-NH
_______________________ By:__________________________________
Witness Xxxxxxx X. Xxxxxxx, Vice President
GREEN MOUNTAIN COFFEE ROASTERS, INC.
_______________________ By:________________________________________
Witness Xxxxxx X. Xxxxx, Chief Financial Officer
GREEN MOUNTAIN COFFEE ROASTERS
FRANCHISING CORPORATION
_______________________ By:________________________________________
Witness Xxxxxx X. Xxxxx, Chief Financial Officer
STATE OF _____________________
COUNTY OF ____________________
On this, the __ day of April, 2000, before me, the undersigned officer,
personally appeared Xxxxxxx X. Xxxxxxx, who acknowledged himself to be a Vice
President of Fleet Bank - NH, a bank and that he, as such Vice President, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained on behalf of said bank.
Before me,
__________________________________
Justice of the Peace/Notary Public
STATE OF ____________________
COUNTY OF ___________________
On this, the __ day of April, 2000, before me, the undersigned officer,
personally appeared Xxxxxx X. Xxxxx, who acknowledged himself to be the Chief
Financial Officer of Green Mountain Coffee Roasters, Inc., a corporation and
that he, as such officer, being authorized so to do, executed the foregoing
instrument for the purposes therein contained on behalf of said corporation.
Before me,
__________________________________
Justice of the Peace/Notary Public
STATE OF ____________________
COUNTY OF ___________________
On this, the __ day of April, 2000, before me, the undersigned officer,
personally appeared Xxxxxx X. Xxxxx, who acknowledged himself to be the Chief
Financial Officer of Green Mountain Coffee Roasters Franchising Corporation, a
corporation and that he, as such officer, being authorized so to do, executed
the foregoing instrument for the purposes therein contained on behalf of said
corporation.
Before me,
__________________________________
Justice of the Peace/Notary Public
TWELFTH AMENDMENT TO FLEET BANK - NH
COMMERCIAL LOAN AGREEMENT AND LOAN DOCUMENTS
Schedule I
None
TWELFTH AMENDMENT TO FLEET BANK - NH
COMMERCIAL LOAN AGREEMENT AND LOAN DOCUMENTS
Schedule II
None
TWELFTH AMENDMENT TO FLEET BANK - NH
COMMERCIAL LOAN AGREEMENT AND LOAN DOCUMENTS
Schedule III
Notwithstanding Section X. D. of the Loan Agreement, Borrower may redeem
certain of its outstanding capital stock for an aggregate amount up to
$6,250,000.00 with those amounts advanced under the Revolving Line of Credit
Loan.
FLEET BANK - NH
COMMERCIAL LOAN AGREEMENT
SCHEDULE A
CASH MANAGEMENT PROVISIONS
ADDITIONAL TERMS AND CONDITIONS FOR MANAGEMENT OF REVOLVING LINE OF CREDIT
LOANS.
BORROWER shall from time to time inform the BANK of the target balance
which BORROWER desires to maintain in its Demand Deposit Account, which shall in
no event be less than any minimum balance (if any) required under this
Agreement. To maintain the desired target balance in BORROWER's Demand Deposit
Account, BORROWER hereby instructs, authorizes, and directs BANK to charge
BORROWER's Demand Deposit Account to make payments to reduce the debit balance
of BORROWER's Loan Account and to make payment of BORROWER's other obligations
to the BANK, and to make advances under the Revolving Line of Credit Loan
increasing the debit balance in BORROWER's Loan Account and credit the same to
BORROWER's Demand Deposit Account. Notwithstanding the foregoing, BORROWER's
obligations to pay each Loan are the general obligations of the BORROWER and
shall not be deemed to be obligations to be satisfied solely from funds in the
Demand Deposit Account or by advances under the Revolving Line of Credit Loan.
BORROWER acknowledges and agrees that the target balance is only a desired goal
based upon estimates and that the BANK shall have no responsibility for
variances from the target balance as long as all charges, advances and credits
are made in good faith. All credits against BORROWER's indebtedness indicated in
the Loan Account shall be conditional upon final payment to the BANK of the
items giving rise to such credits. The amount of any item credited against
BORROWER's Loan Account which is not paid or which is charged back against the
BANK for any reason may be charged as a debit to the Loan Account or may be
charged back against the Demand Deposit Account of BORROWER, and shall be an
obligation of the BORROWER to the BANK in each instance whether or not the item
so charged back or not paid is returned. Any item received in payment towards
BORROWER's outstanding indebtedness reflected in the Loan Account which requires
clearance or payment shall be considered to be applied immediately for purposes
of determining the maximum available amount under BORROWER's Revolving Line of
Credit under Section I. A. of this Agreement, but shall not be considered to
have been credited to the Loan Account until two (2) business days after receipt
by the BANK of such item for purposes of interest accruing on the outstanding
indebtedness indicated by the Loan Account. Notwithstanding any other provision
hereof, no advances shall be made by BANK to BORROWER's Demand Deposit Account
at any time an Event of Default exists under this Agreement or the Loan
Documents, or any condition exists which, if not cured, would with the passage
of time or the giving of notice, or both, constitute such an Event of Default.
Except in the case of BANK's gross negligence, willful misconduct, or failure to
act in good faith, BANK shall not be liable for any act done or omitted by it in
good faith, or for any mistake in fact or law, or for anything it may do or
refrain from doing in connection with or as required by this Section of Schedule
A. In addition, BORROWER will reimburse and indemnify BANK for any damages,
losses, liabilities, claims, costs, or expenses, of any kind whatsoever and
however caused, including, but not limited to, reasonable attorneys' fees, paid,
suffered or incurred by BANK as a result of any third party claim against BANK
arising out of or in connection with BANK's performance of the services
contemplated by this Section of Schedule A to be provided by BANK, except to the
extent the same results from the gross negligence, willful misconduct, or
failure to act in good faith by BANK.
