EXHIBIT 10.13
AMENDED AND RESTATED TERM NOTE
$___________ Hartford, Connecticut
December __, 2004
FOR VALUE RECEIVED, the undersigned, VERMONT PURE HOLDINGS, LTD., a
Delaware corporation with an office located at 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000 ("HOLDINGS") and CRYSTAL ROCK LLC, a Delaware
limited liability company with an office at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 ("CRYSTAL ROCK" and collectively with Holdings, the
"OBLIGORS"), hereby jointly and severally promise to pay to the order of
________________, a _____________ (individually, together with its successors
and assigns, the "LENDER"), at its office at _____________, __________,
____________ ______ or at such other place as the holder hereof may designate,
the principal amount of ____________ MILLION ______________ AND 00/100 DOLLARS
($____________) (the "PRINCIPAL AMOUNT") in lawful money of the United States,
together with interest on the Principal Amount, beginning on the date hereof,
before and after maturity or judgment, at a per annum rate determined as
provided in that certain Amended and Restated Loan and Security Agreement dated
as of the __ day of December, 2004, as the same may be amended from time to time
(as so amended from time to time the "LOAN AND SECURITY AGREEMENT"), by and
among the Obligors, each of the lenders, including the Lender, which is a
signatory thereto (collectively, the "LENDERS") and Xxxxxxx Bank, National
Association, as agent (in such capacity, together with its successors and
assigns in such capacity, the "AGENT"). All payments shall be made in lawful
money of the United States in immediately available funds. All capitalized terms
not defined herein shall have the meanings assigned to such terms in the Loan
and Security Agreement.
1. Interest Rate. The interest rate hereunder shall be as set forth in the
Loan and Security Agreement.
2. Payments of Interest. Payments of interest hereunder shall be as set
forth in the Loan and Security Agreement.
3. Payments of Principal. Payments of principal hereunder shall be as set
forth in the Loan and Security Agreement.
4. Prepayments. Prepayments of principal hereunder shall be as set forth
in the Loan and Security Agreement.
5. Costs and Expenses. The Obligors shall pay all taxes levied or assessed
on this Note or the debt evidenced hereby against the Lender, together with all
costs, expenses and attorneys' and other professional fees incurred in any
action to collect and/or enforce this Note or to enforce the
Loan and Security Agreement or any other agreement relating to this Note or the
Loan and Security Agreement or any other agreement or in any litigation or
controversy arising from or connected with the Loan and Security Agreement or
any other agreement, or this Note.
6. Increased Costs. In the event that applicable law, treaty or regulation
or directive from any government, governmental agency or regulatory authority,
or any change therein or in the interpretation or application thereof, or
compliance by the Lender with any request or directive (whether or not having
the force of law) from any central bank or government, governmental agency or
regulatory authority, shall:
a. subject the Lender to any tax of any kind whatsoever (except taxes
on the overall net income of the Lender) with respect to the Loan
and Security Agreement, this Note or any of the loans made by it, or
change the basis of taxation of payments to the Lender in respect
thereof (except for changes in the rate of tax on the overall net
income of the Lender);
b. impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirements against assets held by,
deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of
funds by, any office of the Lender, including (without limitation)
pursuant to Regulations of the Board of Governors of the Federal
Reserve System; or
c. in the opinion of the Lender, cause this Note, any loan made under
this Note or under the Loan and Security Agreement to be included in
any calculations used in the computation of regulatory capital
standards; or
d. impose on the Lender any other condition;
and the result of any of the foregoing is to increase the cost to the Lender, by
an amount that the Lender deems to be material, of making, converting into,
continuing and/or maintaining the loans made pursuant to this Note and the Loan
and Security Agreement or to reduce the amount of any payment (whether of
principal, interest or otherwise) in respect of any of such loans, then, in any
case, the Obligors shall promptly pay the Lender, upon its demand, such
additional amounts necessary to compensate the Lender for such additional costs
or such reduction in payment, as the case may be (collectively the "Additional
Costs"). The Lender shall certify the amount of such Additional Costs to the
Obligors, and such certification, absent manifest error, shall be deemed
conclusive. In determining such amount, the Lender shall use any reasonable
averaging and attribution methods.
7. Indemnity. The Obligors agree to indemnify the Lender and to hold the
Lender harmless from any loss (including any of the additional costs referred to
above and any lost profits)
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or expense that it may sustain or incur as a consequence of (i) a default by any
Obligor in the payment of the principal of or interest due on this Note, or (ii)
the making of a prepayment of the Principal Amount bearing interest based upon
the LIBOR Rate on a day which is not the last day of the then current Interest
Period applicable thereto, including, but not limited to, in each case any such
loss or expense arising from the reemployment of funds obtained by it or from
fees, interest or other amounts payable to terminate the deposits from which
such funds were obtained. The Agent shall prepare a certificate as to any
additional amounts payable to it pursuant to this Section, which certificate
shall be submitted by the Lender to the Obligors and shall, absent manifest
error, be deemed conclusive.
8. Lawful Interest. All agreements between Obligors and Lender are hereby
expressly limited so that in no event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to Lender for the use or the
forbearance of the indebtedness evidenced hereby 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 Note 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 Obligors and Lender
in the execution, delivery and acceptance of this Note to contract in strict
compliance with the laws of the State of Connecticut from time to time in
effect. If, under or from any circumstances whatsoever, fulfillment of any
provision hereof 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
any circumstances whatsoever Lender 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 evidenced
hereby and not to the payment of interest. This provision shall control every
other provision of all agreements between Obligors and Lender.
9. Events of Default. The Obligors agree that the occurrence of an Event
of Default under the Loan and Security Agreement shall constitute an Event of
Default under this Note. This Note is one of the Term Notes referred to in, and
is entitled to the benefits of, the Loan and Security Agreement. Reference is
hereby made to the Loan and Security Agreement for the other terms and
conditions relating to the Loan evidenced by this Note which are incorporated in
this Note by reference. Upon the occurrence and during the continuance of any
Event of Default, the Lender, at its option, may declare all amounts outstanding
hereunder, together with accrued interest thereon and all applicable late
charges, other amounts due under this Note and all other liabilities and
obligations of the Obligors to the Lender to be immediately due and payable,
whereupon the same shall become immediately due and payable; all of the
foregoing without demand, presentment, protest, notice of dishonor or other
notice of any kind, all of which are hereby expressly waived by the Obligors.
Failure to exercise such option shall not constitute a waiver of the right to
exercise the same in the event of any subsequent default. Notwithstanding the
foregoing, upon the occurrence of an Event of Default relating to the bankruptcy
or insolvency of any Obligor or any guarantor, all amounts
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outstanding hereunder, together with accrued interest thereon and all applicable
late charges, other amounts due under this Note and all other liabilities and
obligations of the Obligors to the Lender shall be immediately due and payable.
Upon the occurrence and during the continuance of any Event of Default, without
in any way affecting the Agent's or Xxxxxx's other rights and remedies, or after
maturity or judgment, the interest rate applicable to the outstanding principal
balance of this Note shall be as set forth in the Loan and Security Agreement.
The Lender shall endeavor to give the Obligors prompt notice of the acceleration
of the unpaid balance owed under this Note but failure to give such notice shall
not affect any action taken by Lender and Lender shall not incur any liability
for any failure to deliver such notice.
10. Lien and Right of Setoff. Each Obligor hereby grants to Lender a lien,
security interest and right of setoff as security for all liabilities and
obligations to Lender or any other lender under the Loan and Security Agreement,
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 Lender or any entity under common control with Lender,
or in transit to any of them. At any time, without demand or notice, Lender may,
if an event which constitutes or which with notice or lapse of time, or both,
would constitute an Event of Default under this Note, the Loan and Security
Agreement or any of the other Loan Documents has occurred and is continuing, set
off the same or any part thereof and apply the same to any liability or
obligation of any Obligor to Lender or any other lender under the Loan and
Security Agreement even though unmatured and regardless of the adequacy of any
other collateral securing the Loans. ANY AND ALL RIGHTS TO REQUIRE LENDER TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH
SECURES THE LOANS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY OBLIGOR, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
11. No Waiver. Failure by the Lender to insist upon the strict performance
by Obligors of any terms and provisions herein shall not be deemed to be a
waiver of any terms and provisions herein, and the Lender shall retain the right
thereafter to insist upon strict performance by the Obligors of any and all
terms and provisions of this Note or any agreement securing the repayment of
this Note.
12. Governing Law. This Note shall be governed by the laws of the State of
Connecticut.
13. Replacement Note. Upon receipt of an affidavit of an officer of Lender
as to the loss, theft, destruction or mutilation of this Note or any other Loan
Document which is not of public record, and, in the case of any such mutilation,
upon cancellation of this Note or other Loan Document, or in the case of any
such loss, theft or destruction, upon an agreement by the holder thereof to
indemnify Obligors for losses in connection therewith, Obligors will issue, in
lieu thereof, a replacement Note or other Loan Document in the same principal
amount thereof and otherwise of like tenor.
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14. Joint and Several Liability. All obligations, covenants and agreements
of the Obligors pursuant to this Note or any of the other Loan Documents shall
be the joint and several obligations, covenants and agreements of each of the
Obligors.
15. Agency Agreement. The provisions of this Note and all payments made
under this Note shall be subject to the terms of the Agency Agreement.
16. Amended and Restated Note. This Note is issued in replacement of and
amends, restates and supercedes in its entirety that certain Term Note dated
March 5, 2003 of Holdings, Crystal Rock Spring Water Company, which has merged
with and into Holdings, and Vermont Pure Springs, Inc., which has merged with
and into Holdings, payable to the order of the Lender in the original principal
amount of $____________ (the "Existing Note"); provided however that such
amendment, restatement, and replacement of the Existing Note shall in no way be
construed as a novation of the indebtedness of the Obligors under the Existing
Note.
17. Prejudgment Remedy and Other Waivers. EACH OBLIGOR ACKNOWLEDGES THAT
THE LOAN EVIDENCED BY THIS NOTE IS A COMMERCIAL TRANSACTION AND WAIVES ITS RIGHT
TO NOTICE AND HEARING UNDER CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES, OR
AS OTHERWISE ALLOWED BY ANY STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT
REMEDY WHICH LENDER MAY DESIRE TO USE, AND FURTHER, WAIVES DILIGENCE, DEMAND,
PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT, PROTEST AND NOTICE OF PROTEST,
AND NOTICE OF ANY RENEWALS OR EXTENSIONS OF THIS NOTE, ALL SURETYSHIP DEFENSES
AND ALL RIGHTS UNDER ANY STATUTE OF LIMITATION. EACH OBLIGOR ACKNOWLEDGES THAT
IT MAKES THIS WAIVER KNOWINGLY, VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
18. Jury Waiver. EACH OBLIGOR AND XXXXXX 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 NOTE OR
ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE 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 LENDER TO ACCEPT THIS NOTE AND MAKE THE LOAN. EACH OBLIGOR ACKNOWLEDGES THAT
IT MAKES THIS WAIVER KNOWINGLY, VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
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IN WITNESS WHEREOF, the Obligors have caused this Note to be duly executed
as of the ___ day of December, 2004.
VERMONT PURE HOLDINGS, LTD.
By________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
CRYSTAL ROCK LLC
By:____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Manager
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