Exhibit 10(f)
AMENDMENT NO. 1 TO LOAN AGREEMENT,
GUARANTY AND SECURITY AGREEMENT
This AMENDMENT NO. 1 TO LOAN AGREEMENT, GUARANTY AND SECURITY
AGREEMENT, dated as of June 15, 2004 (this "Amendment"), amends (a) the Loan
Agreement (the "Loan Agreement"), dated as of February 10, 2004, among
Vitalstate, Inc., a New York corporation ("Vitalstate Parent"), Vitalstate
Canada Ltd., a Canadian corporation ("Vitalstate Canada Sub"), Vitalstate US,
Inc., a Florida corporation ("Vitalstate US Sub"), and Scepter Holdings, Inc., a
Canadian corporation ("Scepter"), (b) the Guaranty (the "Guaranty"), dated as of
February 10, 2004, made by Vitalstate Canada Sub and Vitalstate US Sub in favor
of Scepter, and (c) the Security Agreement (the "Security Agreement"), dated as
of February 10, 2004, among Vitalstate Parent, Vitalstate Canada Sub, Vitalstate
US Sub and Scepter.
WHEREAS, pursuant to the Loan Agreement, Scepter agreed make loans from
time to time to Vitalstate Parent in the aggregate principal amount of up to
US$2,00,000;
WHEREAS, the loans to be made pursuant to the Loan Agreement are
evidenced by Secured Promissory Notes (the "Notes") of Vitalstate Parent in the
form attached as Exhibit A to the Loan Agreement;
WHEREAS, pursuant to the Guaranty, Vitalstate Canada Sub and Vitalstate
US Sub guaranteed, on a joint and several basis, all of the obligations of
Vitalstate Parent pursuant to the Loan Agreement and the Notes;
WHEREAS, pursuant to the Security Agreement, each of Vitalstate Parent,
Vitalstate Canada Sub and Vitalstate US Sub granted Scepter a security interest
in certain specified property in order to secure, among other things, the
obligations of Vitalstate Parent pursuant to the Notes and the obligations of
Vitalstate Canada Sub and Vitalstate US Sub pursuant to the Guaranty;
WHEREAS, the parties hereto desire to amend the Loan Agreement to
provide that the maximum amount that Scepter shall be obligated to loan
thereunder shall be US$2,400,000 and, in connection therewith, to make certain
conforming changes to the Notes, the Guaranty and the Security Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties hereto agree as follows:
1. Amendment to Loan Agreement. In the first "WHEREAS" clause of the
Loan Agreement and in Section 1 of the Loan Agreement, the words "Two Million
U.S. Dollars ($2,000,000)" are hereby replaced with the words "Two Million Four
Hundred Thousand U.S. Dollars ($2,400,000)."
2. Amendment to Guaranty.
(a) In the first "WHEREAS" clause of the Guaranty, the words "Two
Million U.S. Dollars ($2,000,000)" are hereby replaced with the words "Two
Million Four Hundred Thousand U.S. Dollars ($2,400,000)."
(b) All references in the Guaranty to the Loan Agreement are deemed to
mean the Loan Agreement, as modified by Section 1 of this Amendment.
3. Amendment to Security Agreement. All references in the Security
Agreement to the Loan Agreement are deemed to mean the Loan Agreement, as
modified by Section 1 of this Amendment.
4. Amendment to Notes. The form of Note attached as Exhibit A to the
Loan Agreement is hereby as follows: The definition of the term "Loan Agreement"
in section 3 of the form of Note shall be deemed to mean the Loan Agreement, as
modified by Section 1 of this Amendment. All Notes issued on or after the date
hereof shall be deemed to contain such language, whether or not such language is
actually included in any such Note.
5. Reaffirmation or Representations and Warranties. Each of Vitalstate
Parent, Vitalstate Canada Sub and Vitalstate US Sub represents and warrant that
the representations and warranties set forth in Section 4 of the Loan Agreement
remain true and correct as of the date of this Amendment, as if made on the date
of this Amendment.
6. No Other Changes. Except as modified hereby, the Loan Agreement, any
outstanding Notes, the Guaranty and the Security Agreement shall remain in full
force and effect.
7. Fees and Expenses. Vitalstate Parent shall bear all reasonable legal
expenses of Scepter in connection with the negotiation, drafting and execution
of this Amendment and related documents (including an amendment to Scepter's
Schedule 13D with respect to its investment in Vitalstate Parent and fees and
expenses of Canadian counsel in amending or supplementing the Hypothecs (as such
term is defined in the Loan Agreement)).
8. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts made
and to be wholly performed therein.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
VITALSTATE, INC.
By: /s/ Xxxxx Xxxxx
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Name:
Title:
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VITALSTATE CANADA LTD.
By: /s/ Xxxxx Xxxxx
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Name:
Title:
VITALSTATE US, INC.
By: /s/ Xxxxx Xxxxx
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Name:
Title:
SCEPTER HOLDINGS INC.
By: /s/ Xxxxxxxxxxx Luck
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Name:
Title:
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