Exhibit 10.28
AMENDED AND RESTATED REVOLVING LINE OF CREDIT NOTE
$5,000,000.00 Hartford, Connecticut
November 1, 2001
FOR VALUE RECEIVED, the undersigned, VERMONT PURE HOLDINGS, LTD., (f/k/a VP
Merger Parent, Inc.), a Delaware corporation with an office located at Catamount
Xxxxxxxxxx Xxxx, Xxxxx 00, Xxxxxxxx, Xxxxxxx 00000 ("Holdings"), CRYSTAL ROCK
SPRING WATER COMPANY, a Connecticut corporation with an office at 0000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("Crystal Rock"), PLATINUM
ACQUISITION CORP., (f/k/a Vermont Pure Holdings, Ltd.), a Delaware corporation
with an office at Catamount Industrial Park, Xxxxx 00, Xxxxxxxx, Xxxxxxx 05060
("Platinum") and VERMONT PURE SPRINGS, INC., a Delaware corporation with an
office at Catamount Industrial Park, Xxxxx 00, Xxxxxxxx, Xxxxxxx 05060 ("VPS",
and collectively with Holdings, Crystal Rock and Platinum, the "Obligors"),
hereby jointly and severally promise to pay to the order of XXXXXXX BANK, a
federally chartered savings bank (the "Lender"), at its office at 000 Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 or at such other place as the holder hereof
may designate, the principal amount advanced hereunder and remaining unpaid, up
to a maximum amount of FIVE MILLION AND 00/100 DOLLARS ($5,000,000.00) (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 below. All payments
shall be made in lawful money of the United States in immediately available
funds.
1. Interest Rate: Each advance under this Note (each a "Loan Advance")
shall bear interest, at Obligors' option subject to and in accordance with the
terms of this Note, at a per annum rate equal to either (a) a fixed rate equal
to the LIBOR Rate (as determined for each Interest Period applicable thereto)
for available Interest Periods of one (1) month plus the Applicable Margin, or
(b) a variable rate equal to the Prime Rate. All computations of interest
hereunder shall be made on the basis of a three hundred sixty (360) day year and
the actual number of days elapsed.
2. Requests for Advances:
a. Except as set forth below in section 2. b. of this Note, whenever an
Obligor desires an advance, such Obligor shall notify Lender (which notice shall
be irrevocable) by telephone, facsimile or in writing, of the desired borrowing.
Such notice (the "Notice of Borrowing") shall specify the date of the proposed
borrowing, whether such borrowing is to bear interest initially as a LIBOR Rate
Loan or a Prime Rate Loan and the amount requested, which amount shall be in a
minimum amount of $100,000. Each Notice of Borrowing must be received by Lender
no later than 10:00 a.m., Hartford, Connecticut time (a) at least three (3)
Business Days' prior to the day such borrowing is requested if such borrowing is
to be a LIBOR Rate Loan or (b) on the day of such borrowing if such borrowing is
to be a Prime Rate Loan. Any Notice of Borrowing that is not in writing shall be
followed by a written confirmation by such Xxxxxxx, provided that if such
written confirmation differs in any respect from the action taken by Xxxxxx, the
records of Lender shall control, absent manifest error. Lender shall enter each
Loan Advance as a debit on a loan account maintained by Obligors with Lender
(the "Loan Account"). Lender may also record in the Loan Account, in accordance
with customary banking procedures, all fees, accrued and unpaid interest, late
fees, usual and customary bank charges for the maintenance and administration of
accounts maintained by Obligors and other fees and charges which are properly
chargeable to Obligors in connection with the Loan Advances and all payments,
subject to collection, made by Obligors on account of or to Lender.
b. In addition, Xxxxxx will automatically make advances without any
additional notice in order to honor checks drawn upon the Loan Account by any of
the Obligors up to an aggregate amount outstanding at any one time of $500,000.
All such advances shall be Prime Rate Loans and shall otherwise be subject to
all the terms and conditions of this Note and the Loan and Security Agreement.
c. Obligors may repay and reborrow advances that are made under this
Note, subject, however, to the prepayment terms contained below. Obligors shall
not have more than four (4) LIBOR Rate Loans outstanding at any one time.
Obligors' right to request advances under this Note shall terminate on the
Termination Date.
3. Conversion of Loans and Continuation of Interest Periods. Unless an
Obligor elects to convert any loan to a different type of loan by providing the
notice required below, any Prime Rate Loan shall be continued as such and any
LIBOR Rate Loan shall be continued as such for an Interest Period of one (1)
month upon the expiration of the then current Interest Period, provided that no
LIBOR Rate Loan may be continued as such, no new LIBOR Rate Loan may be selected
by Obligors and no Prime Rate Loan shall be converted to a LIBOR Rate Loan: (i)
at a time when any Event of Default (or event or condition which would
constitute an Event of Default but for the giving of notice or passage of time
or both) has occurred and is continuing and (ii) after the date that is one (1)
month prior to the Termination Date, in which event the Principal Amount shall
bear interest as a Prime Rate Loan. Any Obligor may elect from time to time to
convert (a) a LIBOR Rate Loan to a Prime Rate Loan and (b) a Prime Rate Loan to
a LIBOR Rate Loan as provided in this section. An Obligor shall exercise such
election by giving the Lender not less than three (3) Business Days prior
irrevocable written notice of such election; provided that any such conversion
of a LIBOR Rate Loan to a Prime Rate Loan shall only be made on the last
Business Day of the then current Interest Period with respect thereto.
4. Payments of Interest. Monthly payments of interest shall be due and
payable in arrears on the last day of each Interest Period with respect to LIBOR
Rate Loans and on the first day of each month with respect to Prime Rate Loans
until this Note is paid in full.
5. Payments of Principal. If not sooner paid, the aggregate outstanding
Principal Amount of this Note, together with all accrued and unpaid interest
thereon and any other fees or charges then due, shall be due and payable on the
Termination Date.
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6. Definitions. As used in this Note and not defined elsewhere in this
Note, the following terms shall have the following meanings:
a. "Applicable Margin" means:
i. 2.25% if the ratio of Senior Funded Debt to EBITDA is
greater than 3.0 to 1.0;
ii. 1.75% if the ratio of Senior Funded Debt to EBITDA is
greater than 2.5 to 1.0 and less than or equal to 3.0 to
1.0;
iii. 1.50% if the ratio of Senior Funded Debt to EBITDA is
greater than 2.0 to 1.0 and less than or equal to 2.5 to
1.0;
iv. 1.25% if the ratio of Senior Funded Debt to EBITDA is
greater than 1.5 to 1.0 and less than or equal to 2.0 to
1.0; and
v. 1.00% if the ratio of Senior Funded Debt to EBITDA is
less than or equal to 1.5 to 1.0; as that ratio is
calculated in accordance with the Loan and Security
Agreement. The Applicable Margin on the date of this Note is
1.75% and shall continue to be the Applicable Margin until a
new Applicable Margin is determined and is to go into effect
as hereinafter set forth. A new Applicable Margin shall be
determined 120 days after the end of each fiscal year of
Holdings, commencing with the fiscal year ending October 31,
2001, based upon the audited fiscal year end financial
statements for that fiscal year provided to Lender within 90
days after the end of that fiscal year as required in the
Loan and Security Agreement. Such Applicable Margin will
automatically go into effect for the Interest Period
commencing after the date of determination and shall
continue in effect until a new Applicable Margin is
determined and is to go into effect; provided, however, that
if the audited fiscal year end financial statements required
in the Loan and Security Agreement are not provided to
Lender within 120 days after the end of any fiscal year, the
Lender shall not be required to adjust the Applicable Margin
and the Applicable Margin to go into effect for the Interest
Period commencing after that 120th day shall be 2.25% until
a new Applicable Margin is determined and is to go into
effect unless otherwise agreed to by Lender.
b. "Business Day" means any day other than a Saturday, Sunday or day
which shall be in the State of Connecticut a legal holiday or day
on which commercial banks in Hartford, Connecticut are required
or authorized by law to close.
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c. "EBITDA" means EBITDA as defined in the Loan and Security
Agreement.
d. "Interest Period" means with respect to the Principal Amount
bearing interest at the LIBOR Rate, an available period of one
(1) month, provided that:
i. if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall end on the
immediately following Business Day; and
ii. any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business
Day of a calendar month.
e. "LIBOR Rate" means, with respect to any LIBOR Rate Loan for each
applicable Interest Period, the rate per annum determined by the
Lender to be equal to the quotient of (a) the London Interbank
Offered Rate for such LIBOR Rate Loan for such Interest Period,
divided by (b) one (1) minus the Reserve Percentage for such
Interest Period, expressed as follows:
LIBOR Rate = London Interbank Offered Rate
-----------------------------
1 - Reserve Percentage
f. "LIBOR Rate Loan" means that the Principal Amount bears interest
at a rate equal to the LIBOR Rate plus the Applicable Margin.
g. "Loan and Security Agreement" means the Loan and Security
Agreement dated October 5, 2000 by and among Obligors and Lender
relating to this Note, as amended or amended and restated from
time to time, including the Amended and Restated Loan and
Security Agreement dated as of November 1, 2001.
h. "London Interbank Offered Rate" means, with respect to any
applicable Interest Period, the 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 such Interest Period which
appears on the Telerate page 3750 as of 11:00 a.m. London time on
the day that is two London Banking Days preceding the first day
of such Interest Period; provided, however, if the rate described
above does not appear on the Telerate System on any applicable
interest determination date, the London Interbank Offered Rate
shall be the rate (rounded upwards as described above, if
necessary) for deposits in 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
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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. "Banking Day" shall mean,
in respect of any city, any date on which commercial banks are
open for business in that city. 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 such Interest Period
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 as selected by the Lender. 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 London Banking Days preceding the first day of
such Interest Period. In the event that Xxxxxx is unable to
obtain any such quotation as provided above, it will be deemed
that the LIBOR Rate pursuant to an Interest Period cannot be
determined.
i. "Prime Rate" means the variable per annum rate of interest so
designated from time to time by Lender as its prime rate. The
Prime Rate is a reference rate and does not necessarily represent
the lowest or best rate being charged to any customer.
j. "Prime Rate Loan" means that the Principal Amount bears interest
at a rate equal to Xxxxxx's Prime Rate. The interest rate on each
Prime Rate Loan shall change immediately, without notice or
demand of any kind to Obligors, each time that Xxxxxx's Prime
Rate changes so that the rate of interest on a Prime Rate Loan is
at all times equal to Xxxxxx's Prime Rate.
k. "Reserve Percentage" means 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. With respect to the LIBOR Rate, any change in the
interest rate because of a change in the Reserve Percentage shall
become effective, without notice or demand of any kind, on the
date on which such change in the Reserve Percentage becomes
effective.
l. "Senior Funded Debt" means Senior Funded Debt as defined in the
Loan and Security Agreement.
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m. "Termination Date" means October 5, 2002.
7. Illegality. Notwithstanding any other provisions hereof, if any
applicable law or governmental regulation, guideline, order or directive, or any
change therein or in the interpretation or application thereof by any
governmental authority charged with the interpretation or the administration
thereof (whether or not having the force of law) shall make it unlawful for the
Lender to make or maintain LIBOR Rate Loans as contemplated by this Note: (i)
the obligation of the Lender to continue LIBOR Rate Loans shall forthwith be
canceled, and (ii) such amounts then outstanding shall be automatically
converted, without notice, to Prime Rate Loans on the last day of the then
current Interest Period or within such earlier time as required by law. If any
such conversion of LIBOR Rate Loans is made on a day that is not the last
Business Day of the then current Interest Period applicable thereto, Obligors
shall pay the Lender such amount or amounts required pursuant to Section 12
below.
8. Basis for Determining LIBOR Inadequate or Unfair. In the event that the
Lender shall have determined (which determination, absent manifest error, shall
be conclusive and binding upon Obligors) that (i) by reason of circumstances
affecting the Interbank LIBOR market, adequate and reasonable means do not exist
for determining the LIBOR Rate, or (ii) Dollar deposits in the relevant amount
and for the relevant maturity are no longer available to the Lender in the
Interbank LIBOR market, or (iii) the continuation of LIBOR Rate Loans has been
made impractical or unlawful by the occurrence of a contingency that materially
and adversely affects the Interbank LIBOR market, or (iv) the LIBOR Rate will
not adequately and fairly reflect the cost to the Lender of maintaining LIBOR
Rate Loans, or (v) the LIBOR Rate shall no longer represent the effective cost
to the Lender of U.S. Dollar deposits in the relevant market for deposits in
which it regularly participates, the Lender shall give the Obligors notice of
such determination as soon as practicable. If such notice is given all LIBOR
Rate Loans shall be automatically converted, without notice, to Prime Rate Loans
effective on the last Business Day of the then current Interest Period
applicable thereto. Until such notice has been withdrawn, the LIBOR Rate shall
not be continued.
9. 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.
10. 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);
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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 Bank 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 (the "Loans")
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.
11. Capital Adequacy Protection. If, after the date hereof, the Lender
shall have determined that the adoption of any applicable law, governmental
rule, regulation or order regarding capital adequacy of banks or bank holding
companies, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Lender with any request or directive regarding capital adequacy (whether
or not having the force of law and whether or not failure to comply therewith
would be unlawful, so long as the Lender believes in good faith that such has
the force of law or that the failure to so comply would be unlawful) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on any of the Lender's capital as a consequence of
the Lender's obligations hereunder to a level below that which the Lender could
have achieved but for such adoption, change or compliance (taking into
consideration the Lender's policies with respect to capital adequacy immediately
before such adoption, change or compliance and assuming that the Lender's
capital was fully utilized prior to such adoption, change or compliance) by an
amount deemed by the Lender in its judgment to be material, then, promptly upon
demand, the Obligors shall immediately pay to the Lender, from time to time as
specified by the Lender, such additional amounts as shall be sufficient to
compensate the Lender for such reduced return, together with interest on each
such amount from the date of such specification by the Lender until payment in
full thereof at the highest rate of interest (other than the default rate of
interest) due on the Loans. A certificate of the Lender setting forth the amount
to be paid to the Lender shall, in the absence of manifest error, be deemed
conclusive. In determining such amount, the Lender shall use any reasonable
averaging and attribution methods.
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12. 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) 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 Lender shall prepare a certificate as to any additional amounts payable to
it pursuant to this Section 12, which certificate shall be submitted by the
Lender to the Obligors and shall, absent manifest error, be deemed conclusive.
13. 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 (as defined in the Loan and
Security Agreement) 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.
14. Due Date; Late Charge. If this Note or any payment hereunder becomes
due on a day which is not a Business Day, the due date of this Note or payment
shall be extended to the next succeeding Business Day and such extension of time
shall be included in computing interest and fees in connection with such
payment. Without limiting the Lender's rights and remedies with respect to the
Event of Default that will have occurred, if the entire amount of any required
principal and/or interest payment is not paid in full within fifteen (15) days
after the same is due, Obligors shall pay to the Lender a late fee equal to the
greater of five percent (5%) of the required payment or fifteen dollars
($15.00).
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15. Prepayments.
a. Except as set forth in the following sentence, Obligors may
prepay the Principal Amount, or any portion thereof, only upon at
least three (3) Business Days prior written notice to Lender
(which notice shall be irrevocable and shall state the amount to
be prepaid). Any checks payable to the order of any of the
Obligors which are properly deposited with Lender in the Loan
Account shall, upon becoming immediately available funds, be
automatically applied as a prepayment of any outstanding Prime
Rate Loan made pursuant to Section 2.b. of this Note without the
requirement of any notice. In the event there is no Prime Rate
Loan made pursuant to Section 2.b. of this Note outstanding at
such time, such amount shall be deposited in the Loan Account and
invested in accordance with any applicable cash management
agreement among Obligors and Lender.
b. If any prepayment occurs on a day other than the last day of the
Interest Period, Obligors shall pay to Lender, upon request of
Lender, such amount or amounts as shall be sufficient (in the
reasonable opinion of Lender) to compensate it for any loss,
cost, or expense incurred as a result of: (i) any payment on a
date other than the last day of the Interest Period; and (ii) any
failure by any Obligor to make a prepayment on the date for
payment specified in any Obligor's written notice.
c. If by reason of an Event of Default, Lender elects to declare the
Note to be immediately due and payable, then any prepayment
premiums and other amounts which would have been due if a
prepayment been made at that time shall become due and payable in
the same manner as though the Obligors had exercised such right
of prepayment. In the event of any prepayments, the Obligors
shall pay all accrued interest on the Principal Amount being paid
to the date of the prepayment and, in the case of prepayments in
full, all fees, charges, costs, expenses and other amounts then
due hereunder.
d. Any partial prepayment shall be applied against principal
payments in the inverse order of maturity and shall not reduce
the monthly payments of principal due hereunder.
16. 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. 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
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 or notice or any kind, all of
which are hereby expressly waived by the Obligors. Failure to exercise such
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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 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 of any Event of
Default, without in any way affecting the Lender's other rights and remedies, or
after maturity or judgment, the interest rate applicable to the outstanding
principal balance of this Note shall, at the option of Lender, change without
notice to a floating per annum rate equal to four percentage points (4.0%) above
the otherwise applicable rate and Obligors' right to select pricing options
shall cease.
17. Lien and Right of Setoff. Each Obligor hereby grants to Lender,
Manufacturers and Traders Trust Company and any other Participant (as defined in
the Loan and Security Agreement), a lien, security interest and right of setoff
as security for all liabilities and obligations to Lender, Manufacturers and
Traders Trust Company or any other Participant, 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, Manufacturers and Traders Trust Company or any other Participant or any
entity under common control with such party, or in transit to any of them. At
any time, without demand or notice, Lender, Manufacturers and Traders Trust
Company or any other Participant 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 (as defined in the Loan and Security Agreement) has occurred, set off
the same or any part thereof and apply the same to any liability or obligation
of any Obligor even though unmatured and regardless of the adequacy of any other
collateral securing the Loan. ANY AND ALL RIGHTS TO REQUIRE LENDER,
MANUFACTURERS AND TRADERS TRUST COMPANY OR ANY OTHER PARTICIPANT 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 ANY OBLIGOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED. The Obligors acknowledge that Manufacturers and Traders
Trust Company is purchasing a participation interest in the Loans and the
provisions of this paragraph are for the benefit of Manufacturers and Traders
Trust Company, and as an inducement to Manufacturers and Traders Trust Company
to purchase such participation interest.
18. 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.
19. Governing Law. This Note shall be governed by the laws of the State of
Connecticut.
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20. 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, Obligors will issue, in
lieu thereof, a replacement Note or other Loan Document in the same principal
amount thereof and otherwise of like tenor.
21. 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.
22. Amendment and Restatement. This Note amends and restates that certain
Revolving Line of Credit Note dated October 5, 2000 (the "Original Revolving
Line of Credit Note") and is executed in substitution for, and not in
satisfaction of, the Original Revolving Line of Credit Note.
23. 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.
24. 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 1st day of November, 2001.
VERMONT PURE HOLDINGS, LTD.
(f/k/a VP Merger Parent, Inc.)
By________________________
Name: Xxxxx X. Xxxxx
Title: President
CRYSTAL ROCK SPRING WATER COMPANY
By:____________________________
Name: Xxxxx X. Xxxxx
Title: President
PLATINUM ACQUISITION CORP.
(f/k/a Vermont Pure Holdings, Ltd.)
By:____________________________
Name: Xxxxx X. Xxxxx
Title: President
VERMONT PURE SPRINGS, INC.
By:____________________________
Name: Xxxxx X. Xxxxx
Title: President
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