EIGHTH AMENDMENT TO FLEET BANK - NH
COMMERCIAL LOAN AGREEMENT AND LOAN DOCUMENTS
THIS EIGHTH AMENDMENT TO COMMERCIAL LOAN AGREEMENT AND LOAN
DOCUMENTS (the "Amendment") is made effective February 19, 1997,
by and among FLEET BANK - NH, a bank organized under the laws of
the State of New Hampshire with an address of Mail Stop XXXX
X00X, 0000 Xxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx 00000 (the
"Bank"), GREEN MOUNTAIN COFFEE ROASTERS, INC. (f/k/a Green
Mountain Coffee, Inc.), a Vermont corporation with a principal
place of business at 00 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000
(the "Borrower"), and GREEN MOUNTAIN COFFEE ROASTERS FRANCHISING
CORPORATION, a Delaware corporation (the "Subsidiary".
W I T N E S S E T H:
WHEREAS, the Bank, the Borrower, and the Subsidiary are
parties to a certain Fleet Bank - NH Seventh Amendment and First
Restatement of Commercial Loan Agreement dated April 12, 1996
(the "Loan Agreement") and certain Loan Documents of various
dates (as defined in the Loan Agreement and as amended through
the date hereof), including, but not limited to a certain
Guaranty Agreement dated October 22, 1992, as amended to date, of
the Subsidiary (the "Guaranty"), and certain Security Agreements
of the Borrower dated April 12, 1996 and of the Subsidiary dated
October 22, 1992, as amended to date (collectively, the "Security
Agreements");
WHEREAS, pursuant to the Loan Agreement, the Bank has
extended to the Borrower certain credit facilities including a
revolving line of credit loan up to the maximum principal amount
of Three Million Dollars ($3,000,000.00) (the "Revolving Line of
Credit Loan"); and
WHEREAS, the Borrower has requested, and the Bank has agreed,
to increase the maximum principal amount available under the
Revolving Line of Credit Loan from Three Million Dollars
($3,000,000.00) to Five Million Dollars ($5,000,000.00), and, in
connection therewith, to make certain amendments to the terms and
conditions affecting all of the credit facilities provided under
the Loan Agreement and the Loan Documents. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to
them in the Loan Agreement and/or the Loan Documents, as the case
may be.
NOW, THEREFORE, in consideration of the Bank increasing the
Revolving Line of Credit Loan as described above and amending the
Loan Agreement in other respects as provided below, the Bank, the
Borrower, and the Subsidiary hereby agree to amend the Loan
Agreement and the Loan Documents as follows:
I. AMENDMENT OF LOAN AGREEMENT.
A. Increase of Revolving Line of Credit. The maximum
available amount to the Borrower under the Revolving Line of
Credit Loan as set forth in Section I. A. of the Loan Agreement
shall be and hereby is increased from Three Million Dollars
($3,000,000.00) to Five Million Dollars ($5,000,000.00), subject
to and limited by the provisions regarding availability under
clause (2) of Section I. A. of the Loan Agreement, and the terms
and conditions of the Revolving Line of Credit Loan promissory
note. The Borrower shall execute and deliver to Bank a
replacement Revolving Line of Credit Loan promissory note in form
and substance satisfactory to the Bank to reflect the increase of
the maximum principal amount thereunder.
B. Amendment of Review Date for Revolving Line of Credit
Loan. The Review Date as set forth in Section C of Article I of
the Loan Agreement with respect to the Revolving Line of Credit
Loan shall be and hereby is changed to February 28, 1999.
C. Amendment of Fees. The Unused Revolving Line of Credit
Commitment Fee set forth in Section I of Schedule B of the Loan
Agreement shall be and hereby are replaced with the following:
"Annual Revolving Line of Credit Facility Fee: $3,000.00
per annum, payable in quarterly installments of $750.00 on
January 1st, April 1, July 1st, and October 1st."
D. Amendment of Financial Covenants. The Financial
Covenants of the Borrower set forth in Section IV of Schedule B
of the Loan Agreement shall be and hereby are replaced with the
following:
"IV. Description of Additional Financial and other
Covenants:
A. BORROWER and the Subsidiary shall have a
Tangible Capital Base (as hereinafter defined) on a
consolidated basis equal to at least Eight Million Five
Hundred Thousand Dollars ($8,500,000.00) as of the last
day of the first quarter of BORROWER's 1997 fiscal year
and at all times thereafter. "Tangible Capital Base"
means total shareholders' equity , plus Permitted
Subordinated Debt (as hereinafter defined), plus
deferred tax liabilities, and less intangible assets
(unamortized product development costs, goodwill, and
unamortized debt issuance costs), all as determined from
BORROWER's and the Subsidiary' financial statements
delivered to the BANK in accordance with the covenants
of the BORROWER hereinabove (the "Financial
Statements").
B. BORROWER and the Subsidiary on a consolidated
basis shall have a ratio of Senior Debt (as hereinafter
defined) to Tangible Capital Base of not greater than
1.15:1 as of the last day of the first quarter of
BORROWER's 1997 fiscal year and at all times thereafter.
"Senior Debt" means all indebtedness with the exception
of indebtedness of the BORROWER or the Subsidiary that
is subordinated to the BANK on terms of subordination
acceptable to the BANK ("Permitted Subordinated Debt"),
all as determined from the Financial Statements.
C. BORROWER and the Subsidiary shall maintain on a
consolidated basis Available Cash (as hereinafter
defined) of at least One Million Dollars ($1,000,000.00)
at all times. "Available Cash" means the sum of (a)
cash balances in investment and depository accounts and
(b) the amount equal to the then Borrowing Base as
determined in accordance with Section I. A. of the Loan
Agreement less the then outstanding principal balance of
advanced funds under the Revolving Line of Credit Loan.
In the event that the BORROWER and the Subsidiary at any
time fail to maintain Available Cash in the amount
required above, such failure shall not constitute an
Event of Default under the Loan Agreement and the Loan
Documents but the interest rate applicable to each of
the Loans shall, at the option of the BANK, be
immediately increased by one-quarter of one percent
(0.25%) per annum. Such increased rates shall remain
in effect until such time as the BORROWER certifies in
writing to the BANK that it is in compliance with the
financial covenant hereunder and under Paragraph D
below. Upon BANK's receipt of such certification the
interest rates under each of the Loans shall immediately
and automatically be reduced to the rates stated in the
Loan Documents for such Loans.
D. BORROWER and the Subsidiary shall have on a
consolidated basis Net Profit (as hereinafter defined)
for each fiscal quarter, other than the second quarter
of fiscal year 1997, of at least One Thousand Dollars
($1,000.00). "Net Profit" means net profits as
determined in accordance with generally accepted
accounting principles from BORROWER's Financial
Statements. In the event that the BORROWER and the
Subsidiary at any time fail to achieve Net Profits in
the amount required above for any quarter, such failure
shall not constitute an Event of Default under the Loan
Agreement and the Loan Documents but the interest rate
applicable to each of the Loans shall, at the BANK's
option, be immediately increased by one quarter of one
percent (0.25%) per annum. Such increased rates shall
remain in effect until such time as the BORROWER
certifies in writing to the BANK that it is in
compliance with the financial covenants hereunder and
under Paragraph C above. Upon BANK's receipt of such
certification the interest rates under each of the Loans
shall immediately and automatically be reduced to the
rates stated in the Loan Documents for such Loans.
E. BORROWER shall not make expenditures for capital
assets or capital improvements (as determined in
accordance with generally accepted accounting
principals) in any fiscal year in excess of Five Million
Dollars ($5,000,000.00).
F. BORROWER shall report and certify to BANK its
compliance with the financial covenants hereinabove
within forty-five (45) days after each fiscal quarter
end on such form or forms as may from time to time be
specified by the BANK."
E. Commitment Fee. For and in consideration of the Bank
entering into this Amendment, the Borrower shall pay the Bank a
commitment fee in the amount of $2,000.00 on the date of
execution hereof.
II. AMENDMENT OF SECURITY AGREEMENTS. The Revolving Line of
Credit Loan, as increased hereby, is and shall be secured in
accordance with the terms, conditions, and priorities under the
Loan Agreement and Loan Documents for the Revolving Line of
Credit Loan prior to increase hereunder. The Security Agreements
of each of the Borrower and the Subsidiary included among the
Loan Documents shall be and hereby are amended by including the
Revolving Line of Credit Loan, as increased hereby, as Secured
Obligations under each of the Security Agreements secured by the
security interests in the Collateral granted to the Bank by the
Borrower and the Subsidiary thereunder.
III. AMENDMENT OF SUBSIDIARY'S GUARANTY AGREEMENT.
The Guaranty shall be and hereby is amended such that the
Revolving Line of Credit Loan, as increased hereby shall be
included as a Guaranteed Obligations thereunder.
IV. REPRESENTATIONS AND WARRANTIES.
Except as set forth in Schedule I hereto, and except to the
extent affected by the amendments hereunder or by previous
amendments, or otherwise consented to or acknowledged by the Bank
in writing, each of the Borrower and the Subsidiary, jointly and
severally, confirm, reassert, and restate all of the
representations and warranties under the Loan Agreement and the
Loan Documents as of the date hereof.
V. AFFIRMATIVE COVENANTS.
Except as set forth in Schedule II hereto and except to the
extent affected by the amendments hereunder or by previous
amendments, or otherwise consented to or acknowledged by the Bank
in writing, each of the Borrower and the Subsidiary, jointly and
severally, hereby confirm, reassert, and restate their respective
affirmative covenants as set forth in the Loan Agreement and Loan
Documents as of the date hereof.
VI. AFFIRMATION OF NEGATIVE COVENANTS.
Except as set forth on Schedule III hereto and except to the
extent affected by the amendments hereunder or by previous
amendments, or otherwise consented to or acknowledged by the Bank
in writing, each of the Borrower and the Subsidiary, jointly and
severally, hereby confirm, reassert, and restate their respective
negative covenants as set forth in the Loan Agreement and the
Loan Documents as of the date hereof.
VII. FURTHER REPRESENTATION AND WARRANTY.
Each of the Borrower and the Subsidiary represent and
warrant to the Bank that no consent, authorization or approval is
required of any third party, including, but not limited to, the
Vermont Economic Development Authority and the United States
Small Business Administration, for any of the Borrower or the
Subsidiary to enter into this Agreement and to consummate the
transactions contemplated hereunder.
VIII. NO FURTHER EFFECT.
Except as specifically amended hereby, the terms and
conditions of the Loan Agreement and the Loan Documents as set
forth therein and as amended through the date hereof shall remain
in full force and effect.
IN WITNESS WHEREOF, the Bank, the Borrower and the Subsidiary
have executed this agreement effective as of the date and year first
above written.
FLEET BANK-NH
/s/ Xxxxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------- ---------------------------------
Witness Xxxxx X. Xxxxxxxxx, Vice President
GREEN MOUNTAIN COFFEE ROASTERS, INC.
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------- ----------------------------------------
Witness Xxxxxx X. Xxxxx, Chief Financial Officer
GREEN MOUNTAIN COFFEE ROASTERS
FRANCHISING CORPORATION
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------- ----------------------------------------
Witness Xxxxxx X. Xxxxx, Chief Financial Officer
XXXXX XX Xxx Xxxxxxxxx
XXXXXX XX Xxxxxxxxxxxx
Xx this, the 19th day of February, 1997, before me, the
undersigned officer, personally appeared Xxxxx X. Xxxxxxxxx, who
acknowledged himself to be a Vice President of Fleet Bank - NH, a
bank and that he, as such Vice President, being authorized so to
do, executed the foregoing instrument for the purposes therein
contained on behalf of said bank.
Before me,
/s/ Xxxxxxxxx X. Xxxxxxxxxx
----------------------------------
Justice of the Peace
STATE OF Vermont
COUNTY OF Washington
On this, the 19th day of February, 1997, before me, the
undersigned officer, personally appeared Xxxxxx X. Xxxxx, who
acknowledged himself to be the Chief Financial Officer of Green
Mountain Coffee Roasters, Inc., a corporation and that he, as
such officer, being authorized so to do, executed the foregoing
instrument for the purposes therein contained on behalf of said
corporation.
Before me,
/s/ Xxxxx Xxxxxxx
----------------------------------
Notary Public
STATE OF Vermont
COUNTY OF Washington
On this, the 19th day of February, 1997, before me, the
undersigned officer, personally appeared Xxxxxx X. Xxxxx, who
acknowledged himself to be the Chief Financial Officer of Green
Mountain Coffee Roasters Franchising Corporation, a corporation
and that he, as such officer, being authorized so to do, executed
the foregoing instrument for the purposes therein contained on
behalf of said corporation.
Before me,
/s/ Xxxxx Xxxxxxx
-------------------------------
Notary Public
EIGHTH AMENDMENT TO FLEET BANK - NH
COMMERCIAL LOAN AGREEMENT AND LOAN DOCUMENTS
Schedule I
None
EIGHTH AMENDMENT TO FLEET BANK - NH
COMMERCIAL LOAN AGREEMENT AND LOAN DOCUMENTS
Schedule II
None
EIGHTH AMENDMENT TO FLEET BANK - NH
COMMERCIAL LOAN AGREEMENT AND LOAN DOCUMENTS
Schedule III
None
