LOAN PURCHASE AGREEMENT
This Loan Purchase Agreement ("Agreement' is by and between MARCON
CAPITAL CORPORATION, a Connecticut corporation and Small Business Investment
Company licensed under the Small Business Investment Act of 1958, as amended
("Marcon") and VERMONT PURE HOLDINGS, LTD., a Delaware corporation with an
address of 00 Xxxx Xxx Xxx Xxxx, Xxxxx Xxxxxx, Xxx Xxxx 106043602 (-VP').
BACKGROUND
1. Marcon has extended financing to Amsource, UC (the "Borrower). in the
principal amount of Seven Hundred Thousand Dollars ($700,000.00) (the "Loan").
'Me Loan has taken the form of the purchase by Marcon of a convertible debenture
issued by the Borrower in the original principal amount of Six Hundred Fifty
Thousand Dollars ($650,000-00) (the 'Debenture), pursuant to a Debenture
Purchase Agreement dated as of December 29, 1998 by and among the Borrower,
Marcon, Pristine Mountain Springs of Vermont Inc. and certain individual
guarantors identified therein (the "Debenture Purchase Agreement"), an Option
Purchase Agreement by and between Marcon and the Borrower dated as of March 31,
1999 (the "Option Purchase Agreement), and a promissory note issued in
connection therewith dated as of March 31, 1999 (the "Option Note) dated as of
@h 31, 1999. The proceeds of the Loan were to be used by the Borrower for
,working capital and retirement of certain liabilities. Repayment of the Loan is
secured by various types of collateral.
2. VP has agreed to purchase the Loan from Marcon pursuant to this
Agreement. Unless otherwise defined herein, all capitalized terms shall have the
meanings provided them in the Debenture Purchase Agreement For purposes of this
Agreemen4 the term Loan Documents shall specifically include all agreements,
documents, certificates and instruments executed and delivered in connection
with the Option Purchase Agreement and the Option Note.
NOW, THEREFORE,
In consideration of the premises and the mutual covenants and agreements
herein set forth, and in reliance on the representations and warranties
contained herein, the parties hereby agree as follows:
SECTION 1. PURCHASE OF THE-INTEREST. At the Closing, as that term is
defined in Section 3 below, Marcon agrees to sell, transfer and convey all of
its right, title and interest in and to the Loan, free and clear from all liens,
claims and encumbrances whatsoever, to VP by execution and delivery of the
Assignment in the form annexed hereto as Schedule "A" (the "Assignment'). Marcon
agrees to execute and deliver such further documents and to take such other
actions as are necessary to confirm the sale of the Loan to VP.
SECTION 2. PURCHASE PRICE AND PAYMENT. At closing, VP shall execute and
deliver a convertible debenture in the principal amount of Nine Hundred Seventy
Five Thousand Dollars ($975,000.00) (the "VP Debenture'@ to Marcon as payment in
full for the Loan. Payment and performance of the VP Debenture shall be secured
by a first priority security interest in the Loan, as set forth in Section 4
below.
SECTION 3. !CLOSING. The closing of the transaction shall take place effective
as of September ' )O, 1999 at the offices of Gravel and Xxxx, 76 St. Xxxx
Street, 0xx Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, or at such other
time and place as may be mutually agreed upon by the parties. At the closing,
Marcon and VP shall execute and deliver all documents, agreements, instruments
and certificates as may
be necessary to consummate the transaction as described herein, including the
Assignment and the VP Debenture.
SECTION 4. SECURITY INTEREST. VP hereby grants to Marcon a first
priority security interest and lien in
the Loan and the Loan Documents to secure the payment and performance by VP of
its obligations under the VP Debenture, and this Agreement pursuant to and in
accordance with the provisions of the Uniform Commercial Code. VP agrees to
execute and deliver such UCC-1 financing statements, and other documents and
instrument as are necessary to perfect and confirm such security interest and
lien. Marcon shall be entitled to all rights and remedies of a secured party
under the Uniform Commercial Code. VP will not create, incur, assume, or suffer
to exis4 or permit any subsidiary to create, incur, assume or suffer
to exist, any lien, mortgage, pledge, encumbrance, security interest, attachment
or change of any kind upon the Loan without the prior written consent of Marcon.
SECTION 5. REPRESENTATIONS AND WARRANTIES,
(a) Marcon hereby represents and warrants that it
has good and marketable title to the Loan, free and clear from
any lien, claim or encumbrance whatsoever.
(b) Marcon hereby represents and warrants that the
agreements, documents, certificates, and
instruments 'set forth in Schedule 'B' attached constitute all
material agreements, documents, certificates, and instruments
with respect to the Loan, the Debenture Purchase Agreement, and
the Loan Documents, and that Marcon has not entered into any
agreement to modify the terms and conditions of the Debenture,
the Debenture Purchase Agreement or any Loan Document except as
set forth on Schedule "B" attached.
(C) Marcon hereby represents and wan-ants that it
has provided an acceleration notice with
respect to the Loan, as set forth in its letter dated July 28,
1999, and that neither the Borrower nor any Guarantor, nor any
of their representatives has made any written assertion that
Marcon has breached any of its obligations under the Debenture,
the Purchase Agreement, or any Loan Document. Marcon further
represents and warrant that on September 10, 1999, the Borrower
reaffirmed its intention to retire the Loan in full and has
represented to Marcon that it is actively seeking financing
sufficient to do so, and that the Borro,6ver has made no
payments to Marcon since the date of the acceleration notice.
(d) Marcon hereby represents and warrants that an
Event of Default has occurred and is continuing under the
Debenture Purchase Agreement.
(e) Marcon hereby represents and wan-ants that, as
of September 30, 1999, its claims against
the Borrower are as set forth on Schedule 'C" attached, and
include the following:
(I) principal and interest under the
Debenture, including default interest, which as of
September 30, 1999 total S724,110.04.
(I I) principal and interest under the Optio
Note, which as of September 30 1999 total $53,519.43.
(iii) any residual value of the option rights retaine
by Marcon under the Option Purchase Agreement.
(iv) any late fees, prepayment premiums, or
forbearance fees due from the Borrower under the
Debenture or the Debenture Purchase Agreement which as of
September 30, 1999 total $80,900.1 1.
(v) any consulting and monitoring- fees to be paid
by the Borrower to Marcon, pursuant to the
Debenture Purchase Agreement or the Monitoring Agreement
executed and delivered in connection therewith which, as of
September 30, 1999 total $9,500.00.
(vi) any reimbursements of Marcon's out-of-pocket
expenses, including but not limited to legal fees and
expenses, due from the Borrower under the Debenture Purchase
Agreement which as of September 30, 1999 total $36,949.75.
(f) VP hereby represents and warrants in favor of Marcon as
follows:
(I) VP has the corporate power and authority to
execute, deliver and perform this Agreement, to issue
the VP Debenture, and to and to issue, sell and deliver shares of
its Common Stock issuable upon conversion of the VP Debenture
(the 'Conversion Shares).
(ii) 'ne Conversion Shares have been duly reserved
for issuance upon conversion of the VP Debenture,
and, when so issued, will be duly authorized, validly issued,
full paid and nonassessable shares of Common Stock with no
personal liability attaching to the ownership thereof and will be
free and clear of all liens, charges, restrictions, claims and
encumbrances imposed by or through VP.
(g) Except as set forth above in this Section 5, and in
Section 19 below, neither Marcon nor VP has made to
the other any warranty or representation, expressed or implied, with
respect to the loan transaction, the Loan, the Debenture, the Debenture
Purchase Agreement, the adequacy of security, the existing, or future
solvency or financial worth of the Borrower, the ability of the Borrower
to repay the Loan, the Debenture, or any other document or instrument
received by it in connection with the Loan. It is acknowledged by the
parties hereto that the Loan carries a high degree of risk, and that it
is possible that the Borrower may default on its obligations under the
Loan, which may result in a bankruptcy case and/or foreclosure action
and/or a deterioration of the collateral for the Loan. It may not be
possible to collect the full principal loan balance and/or accrued
interest, and/or other amounts due with respect to the Loan. All
information, data- projections and other materials heretofore supplied
to or by VP has been extrapolated from material supplied by the Borrower
or due diligence. VP acknowledges and agrees that Marcon has not and
makes no representation or warranty as to the nature and quality of such
information. VP acknowledges and agrees that it has had an opportunity
to make and have made such investigations as it has deemed necessary
under the circumstances.
SECTION 6. COVENANTS.
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(a) VP covenants and agrees to utilize all commercially
reasonable efforts to maintain the listing of the shares
of its common stock into which the VP Debenture is convertible (the
"Common Stock") on the American Stock Exchange, the New York Stock
Exchange, the National Association of Securities Dealers Automatic
Quotation System, or another nationally recognized stock exchange
reasonably satisfactory to Marcon.
(b) VP shall at all times reserve and keep available out of
its authorized but unissued shares of Common Stock,
for the purpose of effecting the conversion of the VP Debenture, such
number of its duly authorized shares of Common Stock as shall be
sufficient to effect the conversion of the VP Debenture. If at any time
the number of authorized but unissued shares of Common Stock shall not
be sufficient to effect the conversion of the VP Debenture, VP will
forthwith take such corporate action as may be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares
as shall be sufficient for such
purposes.
SECTION 7. REGISTRATION AND SALE RIGHTS.
(A) OPPORTUNITY REGISTER AND SELL. If at any time VP
determines to register any shares of its Common Stock
by filing a registration statement in compliance with the Securities
Act, Marcon will be given 60 days prior notice thereof and will be
afforded the opportunity to include in the same registration and to sell
as part of any related offering of such shares, a percentage of the
shares issuable upon conversion of the Debenture equal to the highest
percentage of shares owned by any then current shareholder (or holder of
rights to acquire or convert into shams) which such shareholder had the
right to include in such registration and sale, subject to usual and
customary cutbacks and limitations which may be imposed by VP and its
underwaters; provided, however, that in any case Marcon shall be
permitted to register and sell at least the same percentage of shares
(including in such calculation all rights to acquire shares or to
convert into shares) that are actually registered and sold by any other
shareholder. Such right shall apply to each registration and sale of
shares effected by VP for as long as the Debenture is outstanding (other
than those effected pursuant to a Registration Statement filed on Form
S-4, or on Form S-8).
(B) INDEMNIFICATION. No shares to be issued on conversion o
Debentures shall be included in any registration unless Marcon furnishes
to VP and the underwriter or selling agent all reasonable information
requested by them and agree to indemnify VP and the underwriter or
selling agent against liability arising out of information furnished by
Marcon for inclusion in the registration statement (at which time Marcon
will receive a similar cross indemnification from VP and the
underwriter).
(C) NO REQUIREMENT TO FILE OR PROSECUTE REGISTRATION. VP
shall not be required at any time to file a registration statement or to
prosecute a filing to effectiveness, may determine not to file even
though notice has been given pursuant to Section 6(a) or may withdraw a
registration after it has been filed.
(D) RULE 144 INFORMATION. VP will make timely all filings
required under the Securities Exchange Act of 1934 so as to enable the
holders of shares into which the Debentures may be or may have been
converted to sell such shares under Securities and Exchange
Commission Rule 144 to the extent that the benefits of that rule
are otherwise available to them.
(E) UNDERWRITER'S COMMISSIONS. If shares into whic
the Debenture is convertible are included in any underwriting
hereunder, Marcon shall pay its pro rata share of the
underwriter's commissions or discounts, but shall not be
responsible for legal fees, printing costs and other fees and
expenses except to the extent the same demonstrably increase by
reason of inclusion of such shares in the underwriting.
(F) TERMINATION OF REGISTRATION AND SALE RIGHTS.
The registration and sale rights provided for in this
Section 7 shall expire and terminate on September 30, 2009.
SECTION 8. EVENTS OF DEFAULT Each of the
Following events shall constitute an 'Event of Default,
hereunder
(a) VP shall default in making any payment of
principal or interest when the same shall become due
under the VP Debenture or any of the Loan Documents, and which
default shall continue for ten (10) days after the due date
therefor.
(b) VP shall fail to comply with any term, covenant
or agreement of this Agreement, which default
shall continue for ten (10) days from the date of notice from Marcon.
(C) Any Event of Default or other default under, or
a failure to comply with any term or provision of the VP
Debenture.
(d) Commencement of proceedings under any bankruptc
or insolvency law by or against VP or an
inability of VP to pay its obligations when due.
(e) Commencement of any levy or sale upon or
execution or other proceedings of any nature against VP,
including a foreclosure of a subordinate lien on the assets of
the Loan whereby VP shall or may be deprived of title or right
of possession to either property or any part thereof.
(f) The dissolution or termination of existence of VP.
SECTION 9. REMEDIES UPON DEFAULT. If an Event of Default shall occur,
Marcon may declare the entire indebtedness evidenced by the VP Debenture and to
be immediately due and payable, without presentment, protest, demand or notice
of any kind, all of which, are hereby expressly waived by VP and may pursue any
and all remedies provided for hereunder and in the VP Debenture or at law or in
equity, including, without limitation, the following:
(a) Exercise all rights of a secured party under th
Uniform Commercial Code, or otherwise, with respect to the Loan;
(b) If in the event of the sale or other dispositio
of the Loan, the proceeds thereof are insufficient to pay all
amounts to which Marcon is legally entitled, VP shall be liable
for the deficiency and the reasonable fees of any attorneys
employed by Marcon to collect such deficiency. VP agrees that if
any notification of intended disposition of any of the Loan
is required by law, such notification shall be deemed reasonably
and properly given if deposited in the mails first class postage
prepaid, addressed as provided in this Agreement at least ten
(10) days before such intended disposition;
(C) Set off and apply against any indebtedness or
liability of VP to Marcon any indebtedness owing- from VP to
Marcon at any time and from time to time either before or after
maturity and without demand upon or notice to anyone; and
No remedy conferred upon or reserved to Marcon herein is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and- shall be in addition to any other remedy given
hereunder or in the VP Debenture or now or hereafter existing at law or in
equity or by statute and the exercise of any remedy or remedies shall not be an
election of the remedies. The remedies and rights of Marcon may be exercised
concurrently, alone or in any combination. The foregoing recitation of the
rights and remedies available to Marcon is not intended to constitute an express
or implied guarantee or warranty as to the repayment of any amounts due from the
Borrower, or any guarantors of the Borrower's obligations under the Debenture,
the Debenture Purchase Agreement, or the Loan Documents.
Section 10. Cooperation. VP agrees to cooperate with Marcon in
effectuating the purposes hereof notwithstanding any unanticipated inability of
VP to pay the VP Debenture or otherwise perform the obligations of this
Agreement or the VP Debenture. Marcon agrees to cooperate with VP in confirming
VP's right, title and interest in the Loan, by taking such further actions and
executing and delivering such further agreements, DOCUMENTS, CERTIFICATES AND
INSTRUMENTS AS MAY BE REASONABLY NECESSARY TO DO SO. MARCON FURTHER AGREES to
assist VP in providing supplemental information and otherwise in collecting
amounts due under the Loan, provided that Marcon shall be entitled to reasonable
compensation for its efforts in this regard, in an amount to be mutually a-
.,xxxx upon, and to reimbursement of all of its costs and expenses which it
incurs in doing so.
SECTION I 1. NOTICES. Any notice or other communication to be given
hereunder shall be in writing and shall be mailed or telescoped to such party at
the address or number set forth below:
If to VP: Vermont Pure Holdings, Ltd. 00 Xxxx Xx
Xxx Xxxx Xxxxx Xxxxxx, Xxx Xxxx-
00000-0000 Attn: President
with a copy to:Xxxxxxx X. Xxxxx, Esq. Xxxxxxx, Marks
& Gillies 00 X Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000 Telephone No.: (000) 000-0000 Telecopier No.:
(000) 000-0000
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If to Marcon: Marcon Capital Corporation 0000 Xxxxxx
Xxxxxx Xxxxx 000 Xxxxxxxxx0
XX 00000 Telephone No.: (203) 337@ Telecopier No.: (000) 0000000
with a copy to: Xxxxx X. Xxxx, Esq.
Gravel & Xxxx
00 Xx. Xxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxxx, XX 00000 Telephone No.: (802)
658-0220 Telecopier No.: (000) 000-0000
or to such. other person, address or number as the party entitled to such notice
or communication shall have specified by notice to the other party given in
accordance with the provisions of this Section. Any such notice or other
communication shall be deemed given: (I) if mailed, when deposited in the mail,
property addressed and with postage prepaid; or (ii) if sent by telecopy, when
transmitted.
SECTION 12. COST OF SUIT OR ENFORCEMENT, If any Participant resorts to
suit or other legal proceedings to enforce any right or remedy hereunder, the
non-prevailing party agrees to pay the prevailing party's costs of suit and
enforcement, including reasonable attorneys' fees.
SECTION 13. GOVERning Law. This Agreement shall be construed in accordance
with and governed by laws of the State of Connecticut, excepting- its principles
of the law of conflict of la%vs.
SECTION 14- COUNTERPART. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
SECTION 15. SUCCESSOR AND ASSIGNS. This Agreement shall be binding. upon
and inure to the benefit of the parties, their respective successors, le-al
representatives, and assigns. VP may not encumber, pledge or sell or assign the
Loan (in fee, as collateral or otherwise), except to an entity owned or
controlled by it, without the prior written consent of Marcon.
Section 16. Arbitration
(a) Subject to the provisions of Section 16(b)
below, the parties agree that any dispute under
this Agreement shall be resolved by final and binding
arbitration in Burlington, Vermont under the then-existing and
applicable Rules of the American Arbitration Association (the
"Rules'). Notwithstanding any contrary provisions of the Rules,
the parties reserve,,the right to designate an arbitrator by
written agreement prior to the inception of any such
proceeding-. Without intending to limit the power or authority
of the arbitrator(s) in any such proceeding, the parties hereby
consent and agree that such arbitrator(s) shall be vested with
the full power and authority to order such equitable relief as
die arbitrator(s) may deem proper- The parties consent to the
jurisdiction of any court of competent jurisdiction for all
purposes with respect to such arbitration, including enforcement
of this Agreement to arbitrate and the entry of a judgment on
any arbitration award, and further consent that any process,
notice or motion may be served either personally or by certified
mail, return receipt requested, provided a reasonable time for
appearance is allowed. The prevailing
7 -
7
party in any such arbitration proceeding shall be entitled to an
award of reasonable attorneys' fees, as determined by the
arbitrator(s). The fees and expenses of the arbitrator(s) shall
be done equally by the parties. The parties shall use all
reasonable efforts to ensure that the arbitration is completed
as promptly as reasonably possible, and IN ANY EVENT within not
more than ninety (90) days after either party's request for
arbitration hereunder.
(b) Notwithstanding the provisions of Section 16(a)
above, either of the parties may, at its
option, bring an action in any court of competent jurisdiction '
with respect to exigent facts and circumstances which may
warrant immediate injunctive or other equitable relief. Upon the
completion of the adjudication of any request for immediate
injunctive or other equitable relief any @er proceedings in
respect thereof shall be referred for arbitration in ACCORDANCE
WITH Section 16(a) above.
SECTION 17. GENDER, Whenever the context so requires, the singular and
plural shall be interpreted TO INCLUDE THE OTHER, AND THE neutral and male
genders shall be interpreted to reflect the applicable genders.
SECTION 18. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding BETWEEN THE PARTIES AND SUPERSEDES ALL prior agreements and
understandings relating to the subject matter hereof.
SECTION 19. AUTHORIZATION. Each of the parties warrants and represents that
it is duly authorized to execute this Agreement and comply with its obligations
hereunder.
ACKNOWLEDGMENT OE ARBITRATION. THIS AGREEMENT CONTAINS AN AGREEMENT TO
ARBITRATE. AFTER SIGNING THIS DOCUMENT, I UNDERSTAND THAT I WILL NOT BE
ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS
COVERED BY THE ARBITRATION AGREEMENT, UNLESS IT INVOLVES A QUESTION OF
CONSTITUTIONAL OR CIVIL RIGHTS. INSTEAD, I AGREE TO SUBMIT ANY SUCH
DISPUTE TO AN IMPARTIAL ARBITRATOR.
IN WITNESS WHEREOF, each of the parties have executed this Agreement by
their duly authorized agents, as of the 30th day of September, 1999.
IN PRESENCE OF: VERMONT PURE HOLDINGS, LTD.
By:
Witness Duly Authorized Agent
Marcon CAPITAL CORPORATION
Witness Xxxx X. Xxxxxxx
Vice President and Duly Authorized Agent
STATE OF VERMONT
Ss:
COUNTY OF XXXXXXXXXX )
At Burlington, in said County and State, this ___ day of October 1999
personally appearing the Duty Authorized Agent of VERMONT PURE HOLDINGS, LTD,
and he acknowledged this instrument, by him signed, to be his free act and deed
and the free act and deed of VERMONT PURE HOLDINGS, LTD.
Before me,
Notary Public
Notary commission issued in
My commission expires:
STATE OF VERMONT
Ss:
COUNTY OF XXXXXXXXXX
At Burlington, in said County and State, this ___ day of ___, 1999
personally appeared ____ and Duly Authorized Agent of MARCON CAPITAL
CORPORATION, and he acknowledged this instrument, by him signed, to be his free
act and deed and the free act and deed of MARCON CAPITAL CORPORATION.
Before me,.
Notary
Notary commission issued in County
My commission expires:
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SCHEDULE "A"
ASSIGNMENT OF LOAN
KNOW ALL PERSONS BY THESE PRESENTS, that MARCON CAPITAL CORPORATION, a
Connecticut corporation with a business address at 0000 Xxxxxx Xxx., Xxxxx 0 0
1, Bridgeport Connecticut 066 10 (the Sellee inconsideration of Ten and More
Dollars paid to its full satisfaction by (the 'Buyee), does hereby sell, grant,
assign, convey and transfer to VERMONT PURER HOLDINGS, LTD. with an address of
00 Xxxx Xxx Xxx Xxxx, Xxxxx Xxxxxx, -Xxx Xxxx- 00000-0000 all. of its right,
tile and interest in and to a certain loan transaction with Amsource, LLC (the
"Borrower") effected as of December 29, 1998 (the "Loan), together with its
right, title and interest in and to all various documents, agreements,
certificate rights, and instruments and executed or to be executed in connection
with the Loan, all as more completely set forth Schedule "A-1" attached hereto
(the "Loan Documents).
TO HAVE AND TO HOLD the same unto the Buyer and its heirs, successors
and assigns forever.
IN WITNESS WHEREOF, the Scller has executed this Assignment of Loan as of the
'30th day of September, 1999.
IN PRESENCE OF: MARCON CAPITAL CORPORATION
By:
Duly Authorized Agent
STATE OF
COUNTY OF Ss.
At Burlington in said County and State, this
1st day of October, 1999, personally
APPEARED Duly Authorized Agent of MARCON CAPITAL
CORPORATION,
to me known, and he acknowledged this instrument, by him
signed, to be her free act and deed and die free
act and deed of MARCON CAPITAL CORPORATION.
Before me,
Notary Public
Notary commission issued in
My commission expires:
SCHEDULE "B"
AMSOURCE LOAN DOCUMENTS
1. Debenture Purchase Agreement by and among Marcon, the
Borrower, Pristine Mountain Springs
of Vermont, Inc. ("PMSV"), Lincoln Xxxxxxxxx, Xxxxxx Xxxxxx and
Barton Lord dated as of December 29, 1998.
2. Debenture made by the ]Borrower and payable to the order
of Marcon in the original principal
amount of $650,000 dated December 29, 1998.
3. Guaranty of PMSV dated as of December 29, 1998.
4. Guaranty of Xxxxxx Xxxxxx dated as of December 29, 1998.
5. Guaranty of Barton Lord dated December 29, 1998.
6. Guaranty of Xxxxxxx -Xxxxxxxxx dated December 29, 1998.
7. Security Agreement by and between the Borrower and Marco
and all UCC- I financing statements FILED in any jurisdiction to
secure the security interest created thereby,
8. Mortgage Deed made by PMSV in favor of Marcon dated as o
December 29, 1998 with respect to certain real property located on Route
100 in Stockbridge, Vermont more completely described therein, together
with any title insurance and certificates of title issued or obtained by
Marcon in connection therewith.
9. Mortgage Deed made by the Borrower in favor of Marcon
dated December 29, 1998 with respect to certain real property located on
Maple Avenue in Claremont, New Hampshire and more completely described
therein, together with any title insurance and certificates of title
issued or
obtained by Marcon in connection therewith.
10. Member Subordination Agreement by and between Xxxxxx
Xxxxxx and Xxxxxx dated as of December 29, 1998.
11. Member Subordination Agreement by and between Lincoln
Xxxxxxxxx and @con dated as of December 29, 1998.
12. Member Subordination Agreement by and between Xxxxxx Xxx
and Marcon dated December 29, 1998.
13. Legal opinion of Salmon and Nostrand dated as of December 29, 1998.
14. Legal opinion of Xxxxxx X. Xxxxxxx, Xx. dated as of
December 31, 1998.
15. Collateral Assignment of Spring Water Licensed Supply Agreement.
16. Legal opinion of Xxxxxxx and Xxxx dated as of April 27, 1999.
17. Life Insurance Assignments dated March 12, 1999.
18. Option Purchase Agreement dated March 31, 1999.
19. Promissory Note dated March 31, 1999.
20. Forbearance and Standstill Agreement dated March 31, 1999.
21. Pledge and Security Agreement by Xxxxxx Xxxxxx, Baron
Lord and Lincoln Xxxxxxxxx dated December 29, 1998.
22. Employment Agreement of Barton Lord.
23. Employment Agreement of Lincoln Xxxxxxxxx.
24. Monitoring Agreement dated December 29, 19998.
25. Debenture Draw Requests.
26. Amended and Restated Water Supply Agreement dated March 31, 1999.
27. Membership Interest Purchase Option dated December 29,1998.
28. Affidavit of Borrower dated December 29, 1998.
29. Pristine Mountain Springs of Vermont, Inc- Security
Agreement dated December 29, 1998 together with all UCC-1 Financing
Statements.
SCHEDULE "C"
BORROWER: AMSOURCE, LLC
PAYOFF DATE: 9/30/99
PRINCIPAL BALANCE: $700,000.00
ACCRUED INTEREST BALANCE:
Debenture (through 9130/99): $74,110.04
Note (through 9120/99) S3,519.43
LATE PAYMENT FEES: 45-900 11
PREPAYMENT PENALTY: 32,500.00
FORBEARANCE FEES: 2,500.00
OTHER ADVANCES AND REIMBURSEMENTS:
-Monitoring & Consulting $9,500.00
Audit Fee (incl. Travel) $3,08.24
FedEx charges & Wire Fees $104.50
Travel expenses .$4,151.46 17,594.20
LEGAL FEES:
AMOUNT DUE $904,979433
PER DIEM: $389.58
ASSIGNMENT OF LOAN
KNOW ALL PERSONS By THESE PRESENTS, that MARCON CAPITAL
CORPORATION, a Connecticut corporation with a business address at 0000 Xxxxxx
Xxx., Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (the "Seller), in consideration
of Ten and More Dollars paid to its full satisfaction by (the "Buyer), does
hereby sell, grant assign, convey and transfer to VERMONT PURE HOLDINGS LTD with
an address of 00 Xxxx Xxx Xxx Xxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000-0000 all of its
right, tile and interest in and to a certain loan transaction with AMSOURCE, LLC
(the "Borrower") effected as of December 29, 1998 (the 'Loan"), together with
its right, title and interest in and to all various documents, agreements,
certificate rights, and instruments and executed or to be executed in connection
with the Loan, all as more completely set forth Schedule 'A-1" attached hereto
(the "Loan Documents').
TO HAVE AND TO HOLD the same unto the Buyer and its heirs, successors
and assigns forever.
IN WITNESS WHEREOF, the Seller has executed this Assignment of Loan as
of the 30th day of September, 1999.
IN PRESENCE OF: MARCON CAPITAL CORPORATION
Witness Duly Authorized Agent
STATE OF VERMONT
COUNTY OF SS.
At in said County and State, this l day of October, 1999,
personally appeared Authorized Agent of MARCON CAPITAL
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CORPORATION, to me known, and he acknowledged this instrument, by him signed, to
be her free act and deed and the free act and deed of MACON CAPITAL CORPORATION.
Before me,
Notary Public
Notary commission issued in County
My commission expires:
SCHEDULE "A-1"
AMSOURCE LOAN DOCUMENTS
1. Debenture Purchase Agreement by and among Marcon the
Borrower, Pristine Mountain Springs of
Vermont, Inc. ("PMSV"), Lincoln Xxxxxxxxx, Xxxxxx Xxxxxx and
Barton Lord dated as of December 29, 1998.
2. Debenture made by the Borrower and payable to the order
of Marcon in the original principal .-amount of
$650,000 dated December 29, 1998.
3. Guaranty of PMSV dated as of December 29, 1998,
4. Guaranty of Xxxxxx Xxxxxx dated as of December 29, 1998.
S. Guaranty of Barton Lord dated December 29, 1998.
6. Guaranty of Lincoln Craihead dated December 29, 1998.
7. Security Agreement by and between the Borrower and Marco
and all UCC- I financing statements filed in any jurisdiction to secure
the security interest created thereby.
8. Mortgage Deed made by PMSV in favor of Marcon dated as o
December 29, 1998 with respect to certain real property located on Route
100 in Stockbridge, Vermont. more completely described therein, together
with any title insurance and certificates of title issued or obtained by
Marcon in connection therewith.
9. Mortgage Deed made by the Borrower in favor of Marcon
dated December 29, 1998 with respect to certain real property located
on Maple Avenue in Claremont, New Hampshire and more completely
described therein, together with any title insurance and certificates
of title issued or obtained by Marcon in connection therewith.
10. Member Subordination Agreement b and between Xxxxxx
Xxxxxx and Xxxxxx dated as of December 29, 1998.
11. Member Subordination Agreement by and between Lincoln
Xxxxxxxxx and Marcon dated as of December 29, 1998.
12. Member Subordination Agreement by and between Xxxxxx Xxx
and Marcon dated December 29, 1998.
13. Legal opinion of Salmon and Nostrand dated as of December
29, 1998.
14. Legal opinion of Xxxxxx X. Xxxxxxx, Xx. dated as of
December 31, 1998.
15. Collateral Assignment of Spring Water Licensed Supply
Agreement.
16. Legal opinion of Xxxxxxx and Xxxx dated as of April 27, 1999.
17. Life Insurance Assignments dated March 12, 1999.
18. Option Purchase Agreement Dated March 31, 1999.
19. Promissory Note Dated March 31, 1999.
20. Forbearance and Standstill Agreement Dated March 31, 1999.
21. Collateral Assignment of Spring Water License and Supply
Agreement Dated April 13, 1999.
Employment Agreement of Barton Lord.
23. Employment Agreement of Lincoln Xxxxxxxxx.
24. Monitoring Agreement dated December 29, 19998.
25. Debenture Draw Requests.
26. Amended and Restated Water Supply Agreement dated March 31, 1999.
27. Membership Interest Purchase Option dated December 29, 1998.
28. Affidavit of Borrower dated December 29, 1998.
29. Pristine Mountain Springs of Vermont, Inc. Security
Agreement dated December 29, 1998 together with all UCC-1 Financing
Statements.
