EXHIBIT 10.15
AMENDMENT NO. 3 TO LOAN AGREEMENT,
GUARANTY, SECURITY AGREEMENT AND NOTES
This AMENDMENT NO. 3 TO LOAN AGREEMENT, GUARANTY AND SECURITY AGREEMENT,
dated as of __________, 200_ (this "Amendment No. 3"), 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"), amends
(a) the Loan Agreement, dated as of February 10, 2004, among
VitalstateParent, Vitalstate Canada Sub, Vitalstate US Sub and Scepter, as
amended by Amendment No. 1 to Loan Agreement, Guaranty and Security Agreement,
dated as of June 5, 2004 ("Amendment No. 1") and Amendment No. 2 to Loan
Agreement Guaranty, Security Agreement and Notes, dated as of October 21, 2004
("Amendment No. 2"), among Vitalstate Parent, Vitalstate Canada Sub, Vitalstate
US Sub and Scepter (as amended to date, the "Loan Agreement");
(b) the Guaranty, dated as of February 10, 2004, made by Vitalstate Canada
Sub and Vitalstate US Sub in favor of Scepter, as amended by Amendment No. 1 and
by Amendment No. 2 (as amended to date, the "Guaranty");
(c) the Security Agreement, dated as of February 10, 2004, among
Vitalstate Parent, Vitalstate Canada Sub, Vitalstate US Sub and Scepter, as
amended by Amendment No 1 and Amendment No. 2 (as amended to date, the "Security
Agreement"); and
(d) the Secured Promissory Notes that have been previously issued by
Vitalstate Parent to Scepter pursuant to the Loan Agreement, as amended by
Amendment No. 2 (as amended to date, the "Notes") .
W I T N E S S E T H:
- - - - - - - - - -
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$3,400,000; such loans are evidenced by the Notes;
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, each of Vitalstate Parent, Vitalstate Canada Sub and Vitalstate
US Sub have entered into, or anticipate entering into, an Intellectual Property
Security Agreement (collectively, the "Intellectual Property Security
Agreement") with Scepter pursuant to which each such entity has granted or shall
grant to Scepter a security interest in the intellectual property described
therein in order to secure, among other things, its obligations pursuant to the
Loan Agreement, and, in the case of Vitalstate Canada and Vitalstate US Sub, its
obligations 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$6,400,000 (such notes to be no later than December 31, 2005 (or, if
earlier, upon the demand of the holder of the Notes)) and, in connection
therewith, to make certain conforming changes to 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 and in
Section 1 of the Loan Agreement, the words "Three Million Four Hundred Thousand
U.S. Dollars ($3,400,000)" are hereby replaced with the words "Six Million Four
Hundred Thousand U.S. Dollars ($6,400,000)."
2. Amendment to Guaranty.
(a) In the first "WHEREAS" clause of the Guaranty, the words "Three
Million Four Hundred Thousand U.S. Dollars ($3,400,000)" are hereby replaced
with the words "Six Million Four Hundred Thousand U.S. Dollars ($6,400,000)."
(b) All references in the Guaranty to the Loan Agreement are deemed to
mean the Loan Agreement, as modified to date.
3. Amendment to Security Agreement. All references in the Security
Agreement to the Loan Agreement are deemed to mean the Loan Agreement, as
modified to date.
4. Amendment to Form of Notes. The form of Note attached as Exhibit A to
the Loan Agreement, as such Note has previously been amended by Amendment No. 1,
is hereby amended as follows, and all Notes issued on or after the date hereof
shall be deemed to contain such amendments, whether or not such changed language
is actually included in the Notes:
(a) The definition of the term "Loan Agreement" in section 3 shall be
deemed to mean the Loan Agreement, as modified to date.
5. Representations and Warranties.
(a) Each of Vitalstate Parent, Vitalstate Canada Sub and Vitalstate US Sub
represents and warrants 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 No. 3, as if made on the date of this Amendment No. 3.
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(b) Scepter represents and warrants that it has not transferred any Notes
previously executed and delivered by Vitalstate Parent to it to any other person
or entity.
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. The Intellectual Property Security Agreement is not being
amended by this Amendment No. 3.
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 No. 3 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 No. 3 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 3
as of the date first above written.
VITALSTATE, INC.
By:______________________________
Name:
Title:
VITALSTATE CANADA LTD.
By::______________________________
Name:
Title:
VITALSTATE US, INC.
By::______________________________
Name:
Title:
SCEPTER HOLDINGS INC.
By: ______________________________
Name:
Title:
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