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HomeMy WebLinkAbout2021-053-E Economic Dev-Boro Beverage Company loan amendment DocuSign Envelope ID: E51 FEDB4-DE67-4E2D-A34B-153D3BEADB7E Amendment to Loan and Security Agreement This Amendment to Loan and Security Agreement (the "Amendment") is made and entered into between BORO BEVERAGE COMPANY, LLC ("Borrower") and Orange County("Lender"). Recitals 1. Borrower and Lender entered into a Loan and Security Agreement dated February 25, 2019 (the "Loan Agreement"). 2. Borrower and Lender desire to modify and amend the Loan Agreement as provided herein. Amendment For good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, Lender and Borrower hereby agree and amend and modify the Loan Agreement as follows: 1. Definitions. Except as otherwise provided herein,terms defined in the Loan Agreement shall have the same meaning when used herein.Terms defined in the singular shall have the same meaning when used in the plural and vice versa. 2. Amendments.The Loan Documents are hereby modified and amended as follows: (a) Section 17 of the Loan Agreement is amended as follows: 17.2 Any communication under this Agreement shall be sufficiently given and deemed given when delivered by hand or on the date shown as the date of delivery on a United States Postal Service return receipt, if addressed as follows: 17.2.1 If to the County,addressed as follows: Orange County 131 W. Margaret Ln, Hillsborough, NC 27278 (b) Section 12.11 and 12.12 of the Loan Agreement are deleted: 3. References. Each reference in the Loan Documents to any of the Loan Documents shall be deemed to be a reference to such documents as modified hereby. 4. Borrower Covenants. Borrower covenants with Lender as follows: (a) Borrower shall execute, deliver, and provide to Lender such additional agreements, documents, and instruments as reasonably required by Lender to effectuate the intent of this Amendment. (b) Borrower hereby fully, finally, and forever releases and discharges Lender and its successors, assigns, directors, employees, agents, and representatives from any and all actions, causes of action, claims, debts, demands, liabilities, obligations, and suits of whatever kind or nature, in law or equity,that Borrower has or in the future may have,whether known or unknown, arising from or relating to the DocuSign Envelope ID: E51 FEDB4-DE67-4E2D-A34B-153D3BEADB7E Loan,the Loan Documents, or the actions or omissions of Lender in respect to the Loan or the Loan Documents arising from events, acts or omissions occurring prior to the date hereof. 5. Payment of Expenses and Attorneys' Fees. Borrower shall pay all reasonable expenses of Lender relating to the negotiation, drafting of documents, and documentation of this Amendment, including, without limitation, all reasonable attorneys'fees and legal expenses. Lender is authorized and directed to disburse a sufficient amount of the Loan proceeds to pay these expenses in full. 6. Agreement Remains in Full Force and Effect.The Loan Documents are ratified and affirmed by Borrower and shall remain in full force and effect as modified hereby. Any property rights or rights to or interests in property granted as security in the Loan Documents shall remain as security for the Loan and the obligations of Borrower in the Loan Documents. 7. Integrated Agreement; Amendment.This Amendment, together with the Loan Agreement and the Loan Documents, constitutes the entire agreement between Lender and Borrower concerning the subject matter hereof, and may not be altered or amended except by written agreement signed by Lender. All other prior and contemporaneous agreements, arrangements, and understandings between the parties hereto as to the subject matter hereof are, except as otherwise expressly provided herein, rescinded. This Amendment and the Loan Agreement shall be read and interpreted together as one agreement. Date: December 30, 2020. Lender: Orange County ��e�fdh} %Mt.Y'Sbl Name: Bonnie Hammersley Title: County Manager Borrower: BORO BEVERAGE COMPANY, LLC By: «fill �aYL.I9� EYtG�SbU. Name: Carly Erickson DocuSign Envelope ID: E51 FEDB4-DE67-4E2D-A34B-153D3BEADB7E Title: Managing Member DocuSign Envelope ID: E51 FEDB4-DE67-4E2D-A34B-153D3BEADB7E AMENDMENT TO PROMISSORY NOTE THIS AMENDMENT TO PROMISSORY NOTE (this "Agreement"), dated as of December 30, 2020, by and between BORO BEVERAGE COMPANY, LLC (the "Borrower"), and Orange County(together with its successors and assigns, "Lender"). WHEREAS, Borrower executed and delivered a Note dated as of February 25, 2019 for the benefit of Lender in the original principal amount of$25,000.00 (the "Note"); WHEREAS, Lender and Borrower are parties to that certain Loan and Security Agreement dated as of January 1, 2021, by and between Borrower and Lender, as amended by that Amendment to Loan and Security Agreement dated the date hereof between such parties (the "Loan Agreement"); WHEREAS, Lender and Borrower desire to amend the Note as set forth herein. NOW,THEREFORE, for other good and valuable consideration,the parties hereto hereby agree as follows: 1. All capitalized terms not otherwise defined herein shall have the respective meanings set forth in the Note and/or the Loan Agreement. 2. From and after the date hereof,the Principal Amount of the Note shall be $25,000.00 3. All references to the Principal Amount contained in the Note shall be deemed to refer to the Principal Amount as amended by this Agreement, as the same may be further amended, restated, replaced, supplemented or otherwise modified from time to time. 4. Section INTEREST; PAYMENTS; PREPAYMENT is hereby amended in its entirety to read as follows: "Interest payable on this Note shall accrue at the annual rate of zero percent(0%) and shall accrue from the closing date. Borrower shall make its first payment on (February 1,2021) in the amount of the interest accruing from the date of the Promissory Note to(December 31,2019).The remaining sixty-eight (68) payments shall be as follows: Payments would be structured in two phases: $181.16 per month payment for the first 6-months (February 2021—July 2021) $385.69 per month payment for the remaining 62-months of the loan (August 2021—September 2026) Principal on the outstanding balance for the preceding month beginning(January, 2021) with the payments to be calculated by amortizing the loan so that it would be paid in full on (September 1, 2026). If not sooner paid, all unpaid principal and all accrued and unpaid interest on this Note shall be due and payable on (September 1,2026). DocuSign Envelope ID: E51 FEDB4-DE67-4E2D-A34B-153D3BEADB7E The Borrower may prepay the outstanding principal amount at its option at any time, in whole or in part,without penalty or premium. Each regular monthly payment and any prepayments shall be applied first to the payment of interest accrued to the payment date and then to principal." Section MANNER OF PAYMENT is hereby amended in its entirety to read as follows: All payments shall be made via Electronic Fund Transfer (EFT) payable to "Orange County." Any additional payments above the monthly payment amount collected through EFT, may be delivered or mailed to the County at its offices at 131 West Margaret Lane, Hillsborough, NC 27278.The County, however, by written notice to the Borrower under the Loan Agreement, may designate a different address for payments. All payments shall be made in legal tender of the United States of America. 5. Except as specifically modified and amended herein, all other terms, conditions and covenants contained in the Note shall remain in full force and effect. 6. All references in the Loan Documents to the "Note" shall mean the Note as hereby amended. 7. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. [SIGNATURE PAGES IMMEDIATELY FOLLOW] IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. BORROWER: BORO BEVERAGE COMPANY, LLC By: (,arl49fvi&sm �uaacas n zs c Name: Carly Erickson Title: Managing Member LENDER: Orange County By: �I�a �tlNwu lug Name: Bonnie Hammersley DocuSign Envelope ID: E51 FEDB4-DE67-4E2D-A34B-153D3BEADB7E Title: County Manager DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E CLOSING STATEMENT BUSINESS LOAN BY AND BETWEEN ORANGE COUNTY SMALL BUSINESS LOAN PROGRAM COMPANY and Boro Beverage Company, LLC (BORROWER) Gross Loan Amount $ 25,000.00 NET LOAN PROCEEDS TO BORROWER* $ 25.000.00 The Parties signing below hereby agree to the disbursement of loan funds as set forth on this Closing Statement. Orange County Small Business Loan Program Company By: 61a�& �q / DATE Title: Secretary-Treasurer Boro Beverage Company, LLC BY: 22 ,5 /101 DATE Title: President j 3 { III I I a I i i I I DocuSign Envelope ID: E51 FEDB4-DE67-4E2D-A34B-153D3BEADB7E DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E LOAN AND SECURITY AGREEMENT 9. Financial records after a default—At any time the Borrower is in default or a payment due under the Agreement is not made, the Borrower hereby authorizes the Company to make or cause to be made, at the Borrower's expense and in such manner and at such times as the Company require, (a) inspections and audits of any books, records, and papers in custody or control of the Borrower or others, relating to the Borrower's financial or business conditions, including the making of copies thereof and extracts thereof, and (b) inspections and appraisals of any Borrower assets. Should the Borrower fail to make any payment due under the Agreement, the Borrower will furnish to the Company for each one month period from the date of disbursement of the loan proceeds covered by this Agreement, and for a six month period thereafter, and semiannually thereafter (no later than 30 days following the expiration of any such period), and at such other times and in such form as the Company may prescribe, the financial and operating statement of the business. 10. Costs and expenses related to remedial action - The Borrower agrees that all costs and expenses (including reasonable attorneys' fees and expenses for legal services of every kind) of, or incidental to, the custody, care, management, sale or collection of, or realization upon, any of the Collateral, or in any way relating to the enforcement or protection of the Company's rights under this Agreement, shall be entitled to the benefits of this Agreement. The Company may at any time apply to the payment of all such costs and expenses all monies of the Borrower or other proceeds arising from the possession or disposition of all or any portion of the Collateral. 11. Other provisions regarding remedies — The Company may delay or refrain from exercising any past, present, or future right or remedy hereunder without waiving any such right or remedy. The Company shall have no obligation to proceed against real or personal property in preference to the other. PART FOUR— PROMISES BY THE BORROWER 12. The Borrower agrees that it will do the following: 12.1 Operate the Business in full compliance with applicable federal, state, and local laws, including, without limitation, federal laws relating to equal employment opportunity and occupational health and safety, the North Carolina State Building Code, and local building and land use regulations. 12.2 Promptly perform all obligations of Borrower including the payment, when due, of all amounts owed to Company secured by this Agreement; 12.3 Protect and properly care for the Collateral, and allow no Collateral to be misused, wasted, or allowed to deteriorate except for normal wear and tear; 12.4 Use the Collateral principally within the State of North Carolina and Orange County, and not to affix the Collateral to real property unless it is classified as a fixture hereinabove the requisite information is supplied; 12.5 Insure all Collateral against theft, loss or destruction, by policies acceptable to Company and payable to both Borrower and the Company as their interests may appear; that all applicable licenses and permits be obtained; that the employer ID number be provided and a privilege license be obtained; and that both property and liability insurance on the building(s) and contents be procured and maintained by the Borrower. The Borrower shall provide and maintain hazard insurance (fire and extended coverage) in an amount acceptable to the Company covering all tangible Collateral. Mortgagee endorsement is to include this loan. 12.6 Pay promptly when due all ad valorem taxes and assessments upon the Collateral; Page 3 of 7 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E LOAN AND SECURITY AGREEMENT 12.7 Upon the Company's request, deposit with Company additional Collateral to Company's satisfaction; 12.8 That Collateral will not be changed, transferred, or otherwise disposed of or be subjected to any unpaid charge, unless the Company consents in advance in writing to such change, transfer, or charge. 12.9 Upon the Company's request, provide a list of buyer, commission merchants and selling agents to or through whom the Borrower intends to sell the products granted as Collateral; 12.10 Keep proper books of account in a manner satisfactory to the Company; 12.11 Submit an annual financial statement reviewed or compiled by an independent public accountant within sixty (60) days of the close of the Borrower's fiscal year for the Business; 12.12 Submit a copy of its annual tax return to the Company within one month of filing. The Borrower hereby authorizes all federal, state and municipal authorities to furnish reports of examinations, records, and other information relating to the condition and affairs of the business and any desired information from reports, returns, files, and records of such authorities upon request therefore by the company; 12.13 Keep and maintain books, records, and other documents relating directly to the receipt and disbursement of loan funds and the fulfillment of this Agreement. Each party agrees that any duly authorized representative of the Company shall at all reasonable times, have access to and the right to inspect, copy, audit and examine all of the books, records and other documents relating to the loan and fulfillment of this Agreement. 13. The Borrower agrees that it will not do any of the following without the Company's prior written consent: 13.1 Effect a change of ownership or control of the Business; 13.2 Consolidate or merge with any other company, unless the procedures for assignment and/or assumption are complied with; or 13.3 At any time the Borrower is in default, give any preferential treatment, make any advance, directly or indirectly controlling or affiliated with or controlled by the Borrower, or any other company, or to any officer, director, or employee of the Borrower, or of any such company; 13.4 For two years after the date of this Agreement, undertake additional debt financing without prior written consent of the Company, except that this provision shall not prohibit Borrower from (a) purchase money financing of ordinary and necessary equipment or (b) credit purchases of inventory. The Company's consent, when required under this provision, shall not be unreasonably withheld. 13.5 Permit or suffer to exist any other lien, security interest or encumbrance upon the Collateral, except for the existing security interest described in Exhibit D and the security interest created pursuant to this Agreement and any other agreements delivered by the Borrower pursuant to this Agreement. 13.6 Use the Collateral for any illegal purposes. 13.7 Assert a claim or defense held against the Company against any assignee of this Agreement Page 4 of 7 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E LOAN AND SECURITY AGREEMENT 14, The Borrower further represents to the Company and acknowledges that the following things are true: 14.1 No financing statement, other than those financing statement(s) on file with the North Carolina Secretary of State at the date of execution of this Agreement and described in Exhibit D (if applicable), covers the Collateral; there is no adverse lien or security interest in the Collateral; that Borrower has the right to transfer a security interest in the Collateral; and that the Borrower will defend the title to the Collateral and its proceeds against the claims of others 14.2 The Borrower's correct address appears below its signature to this Agreement 14.3 The Company may act as attorney for Borrower in adjusting' any insurance coverage and in endorsing any insurance draft and may retain for the satisfaction of the Borrower's obligation any insurance proceeds and/or unearned premium on such insurance. 14.4 All information supplied and statements made by or in support of the Borrower in its application for this credit are true and correct. 14.5 Any loss or destruction of the Collateral shall not release the Borrower from the payment and performance of its obligations under this Agreement. 14.6 The Borrower has only one place of business in North Carolina and that place of business is in Orange County. 14.7 If more than one Borrower executes this Agreement, their obligations under this Agreement shall be joint and several. PART FIVE-THE COMPANY'S POLICIES AND PROCEDURES 15. The Borrower has been given a copy of the Company's Policies and Procedures, and has been given an opportunity to review the policies and procedures and ask questions about them. The Borrower will not use the loan proceeds for any purpose that the Company's policies and procedures say is an improper use of the loan proceeds. 16. If at any time the Borrower has any questions about whether a particular use of the loan proceeds is permitted, or has any other questions about the policies and procedures or the terms of the loan documents (or wants to request any changes or any permission to vary the terms), Borrower will ask the Company for the desired information. The Borrower recognizes that it is the Borrower's responsibility to comply with the policies and procedures and the terms of the loan documents, and it is not the Company's responsibility to make sure the Borrower either understands the terms or complies with the terms. The Company may take action against the Borrower if the Borrower fails to comply with the policies and procedures and the terms of the loan documents. The Borrower is entitled to rely on a waiver by the Company of a requirement of the policies and procedures and the terms of the loan documents only if that waiver is in writing. PART SIX—OTHER AGREEMENTS BETWEEN THE PARTIES 17. Communication— 17.1 Any communication required or permitted by this Agreement must be in writing. 17.2 Any communication under this Agreement shall be sufficiently given and deemed given when delivered by hand or on the date shown as the date of delivery on a United States Postal Service return receipt, if addressed as follows: Page 5 of 7 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E LOAN AND SECURITY AGREEMENT 17.2.1 If to the Company, addressed as follows: Orange County Small Business Loan Program Company, 131 W. Margaret Lane, Suite 211, Hillsborough, NC 27278; or, 17.2.2 If to the Borrower, addressed to the address shown below the Borrower's signature to this Agreement. 17.3 Any addressee may designate additional or different addresses for communications by notice given under this Section to each of the others. 18. The Borrower shall not sell or assign any interest in this Agreement. 19. The parties intend to limit disclosure of confidential information and trade secrets to the fullest extent of the law. Any use of confidential information shall be for the benefit of the Borrower. Notwithstanding anything in the foregoing to the contrary, the Company may disclose confidential information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method. 20. The parties intend that North Carolina law shall govern this Agreement. If any provision of this Agreement shall be determined to be unenforceable, that shall not affect any other provision of this Agreement. If the date for making any payment or the last day for performance of any act or the exercising of any right shall not be a business day, such payment shall be made or act performed or right exercised on or before the next preceding business day. The parties agree that time is of the essence of this Agreement. 21. This Agreement, together with the documents referenced in this Agreement, constitutes the entire agreement between the Borrower and the Company with respect to its general subject matter. Only a writing signed on behalf of each party may amend this Agreement. 22. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. For purposes hereof, a facsimile copy of this Agreement, including the signature pages hereto, shall be deemed to be an original. Notwithstanding the foregoing, the parties shall deliver original execution copies of this Agreement to one another as soon as practicable following execution thereof. IN WITNESS WHEREOF, the parties have duly signed, sealed and delivered this Agreement in duplicate originals as of the day and year first above written. [SEAL] ORANGE COUNTY SMALL BUSINESS LOAN PROGRAM CnfifiPANY 2/25/19 By: S retary-Treasurer Date r ident Date Approved as to technical content: E14�&/25/19 Steve Brantley Date Economic Development Director 11q Page 6 of 7 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E LOAN AND SECURITY AGREEMENT Approved as to form and legal sufficiency: 2/25/19 Ja71WBrya�Oaff Attorney Date This in um s been pre-audited in the manner required by the Local Government Budget and Fiscal ntr It . e 2/25/19 6 D na dson, Chief Financial Officer Date Boro Beverage Company, LLC 400 W. Rosemary Street, Suite 1005 Chapel Hill, NC 27514 By: 2/ 2-,c) l) q Carly Erickson, Ma ing Member Date Exhibits: A— Form of Promissory Notes B — Description of Collateral C - Form of Personal Guaranty Certificate of Corporate Resolution and Authorization to Borrow Page 7 of 7 DocuSign Envelope ID: E51 FEDB4-DE67-4E2D-A34B-153D3BEADB7E DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E CERTIFICATE OF CORPORATE RESOLUTION AND AUTHORIZATION TO BORROW RESOLVED, that Boro Beverage Company, LLC, a North Carolina limited liability company (hereinafter the "Company"), having its executive offices in the Town of Chapel Hill, State of North Carolina, may negotiate and procure loans from the Orange County Small Business Loan Program Company (the hereinafter the "Lender") up to an amount not exceeding Twenty-five thousand dollars and 00/100 ($25,000.00) in the aggregate at any one time outstanding on such terms and conditions as said members hereinafter authorized deem proper. RESOLVED FURTHER, that the following members of this Company, Carly Erickson,the Managing Member of the Company, hereby authorized, empowered and directed to perform the following acts and deeds in the name of and on behalf of this Company: (a) To pledge collateral to secure and/or guarantee the indebtedness and obligations of Company and its members, pursuant to any one or more of the following: loan and security agreement, guaranty agreement or other security agreement (the "Documents") in favor of Lender as such officer deems advisable or appropriate to guarantee payment and secure performance of all obligations of Borrower to Lender; and (b) To give security for any liabilities of the Company to Lender, by pledge, mortgage, assignment, security interest, or other lien upon any real or personal property, tangible or intangible, of the Company, and to execute in such a form as may be required by the Lender all notes and other evidences of such loans, all instruments of pledge, assignments, security interest, or other lien, and all financing and other agreements with Lender relating to the terms and conditions upon which any such loans may be obtained and to the security to be furnished by this Company therefore and which shall become a binding obligation in accordance with its terms when signed by both parties; and (c) To modify, supplement or amend such agreements, guarantees, notes or other writings, any such terms or conditions thereof, and any such security; and (d) To pledge, assign, guarantee, mortgage, cosign, grant security interest in and otherwise transfer to Lender additional security and collateral for any and all debts and obligations of this Company whenever and however arising; and (e) To do and perform all other acts and things deemed by and such officer of agent necessary, convenient, or proper to carry out any of the contents of these resolutions; hereby ratifying, approving and confirming all that any such officers or agents have done or may do relating to the loan given by Lender. RESOLVED FURTHER that the foregoing resolution shall remain in full force and effect until written notice of their amendment or recession shall be received by Lender, and that .. receipt of such notice shall not affect any action taken by said Bank prior thereto; and 1 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E RESOLVED FURTHER that all transactions by any of the officers or employees of this Company on its behalf and in its name, with Lender prior to delivery to Lender of a certified copy of the foregoing resolutions are, in all respects, hereby ratified, confirmed, approved, and adopted, and I HEREBY CERTIFY that neither these resolutions nor any action to be taken pursuant hereto are or will be in contravention of any provision of the articles of organization, operating agreement, indenture, franchise agreement or other instrument, to which the Company is a party and that no consent of members is required to authorize this resolution, and that the actions authorized here by are not in contravention of any applicable law or statute. I HEREBY CERTIFY that this Resolution may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. For purposes hereof, a facsimile copy of this Resolution, including the signature pages hereto, shall be deemed to be an original. Notwithstanding the foregoing, the Managing Member shall deliver the original execution copy of this Resolution to Lender as soon as practicable following execution thereof. I HEREBY FURTHER CERTIFY that said resolution is still in full force and effect and has not been amended or revoked, and that the authorized members designated above have been duly elected or appointed to the offices set opposite their respective names, and that they continue to hold these offices at the present time, and that the signatures appearing hereon are the genuine, original signatures of each respectively: Executed as of February 25, 2019. Boro-Beverage Company, LLC Carly Erickson, MaaWing Member STATE OF NORTH CAROLINA COUNTY OF ORANGE I Yvonne M. Scarlett, Notary Public for Orange County, North Carolina, certify that Carly Erickson personally came before me this day and acknowledged that she is the Managing Member, Boro Beverage Company, LLC, a North Carolina Company, and that they are authorized to do so, executed the foregoing on behalf of the Company. Witness my hand an official seal,this the 5day of &W 2019. FU &U Offici I Signature of Notary Public YVONNE M.SCARLETT Notary Public, North Carolina RQrange County 9 ally?Oblmmission Expires My Commission Expires: A May 09,2020 2 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E EXHIBIT A - PROMISSORY NOTE Amount: Date: $ 25,000 February 25, 2019 FOR VALUE RECEIVED, Boro Beverage Company, LLC, a North Carolina limited liability company (hereafter the "Borrower") promises to pay to the order of the Orange County Small Business Loan Program Company (hereafter the "Company"), the principal sum stated above, together with interest on the unpaid principal balance from the date of this Note at the "Prime Rate," as defined below, plus 3.00% (300 basis points), on the dates and in the amounts described below. PAYMENTS; PREPAYMENT Borrower shall make its first payment on April 1, 2019 in the amount of the interest accruing from the date of the Promissory Note to February 28, 2019, plus the principal and interest for the first month beginning March 1, 2019. The remaining sixty-five (65) payments shall include principal plus interest on the outstanding balance for the preceding month. If not sooner paid, all unpaid principal and all accrued and unpaid interest on this Note shall be due and payable on September 1, 2024. The Borrower may prepay the outstanding principal amount at its option at any time, in whole or in part, without penalty or premium. Each regular monthly payment and any prepayments shall be applied first to the payment of interest accrued to the payment date and then to principal. The Borrower may prepay the outstanding principal amount at its option at any time, in whole or in part, without penalty or premium. Each regular monthly payment and any prepayments shall be applied first to the payment of interest accrued to the payment date and then to principal. MANNER OF PAYMENT All payments shall be made payable to "Orange County Small Business Loan Program Company," and shall either be delivered to the Company at its offices at 131 West Margaret Lane Suite 211, Hillsborough, NC 27278, or sent by mail in care of Orange County Economic Development Department, 131 West Margaret Lane Suite 211, Hillsborough, NC 27278. The Company, however, by written notice to the Borrower under the Loan Agreement, may designate a different address for payments. All payments shall be made in lawful money of the United States of America. CALCULATION OF INTEREST For the purposes of this Note, the "Prime Rate" means the highest interest rate listed as the U.S. "Prime Rate" in "Money Rates" section of The Wall Street Journal generally,availool!Qi in Orange County, North Carolina. Changes in such published rate shall be effective immediately to change the interest rate payable on this Note. If such rate ceases to be published, then the 1 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E EXHIBIT A - PROMISSORY NOTE Company in its reasonable discretion shall substitute another similar published interest rate index as the Prime Rate under this Note. Interest shall be calculated for the actual number of days elapsed. The Company shall keep a record of the Prime Rate as in effect from time to time. The Company's calculations of interest on this Note shall bind the Borrower in the absence of mathematical error. NOTE GIVEN UNDER LOAN AND SECURITY AGREEMENT; SECURED BY DEED OF TRUST This Note is issued pursuant to, and is governed by a Loan and Security Agreement dated February 25, 2019, between the Borrower and the Company (the "Loan Agreement"). Payments under this Note are further secured by a Uniform Commercial Code (UCC) Financing Statement of even date herewith made by the Borrower for the Company's benefit. DEFAULT Upon the occurrence of any Event of Default described in the Loan Agreement, the Company shall have all rights granted by the Loan Agreement. EXPENSES OF COLLECTION In the event of a default under any provision of this Note (and in addition to collecting all principal, interest and other amounts due on this Note) or the North Carolina UCC financing statement, securing this Note or any violation of the Loan Agreement, the Company may employ an attorney to enforce the Company's rights and remedies. The Borrower agrees to pay to the Company reasonable attorney's fees not exceeding a sum equal to fifteen per cent (15%) of the outstanding balance owing on the Note, plus all other reasonable expenses incurred by the Company in exercising any of the Company's rights and remedies upon default. COVENANTS All parties to this Note, including the maker and any sureties, endorsers or guarantors, hereby waive (to the extent permitted bylaw) protest, presentment, notice of dishonor and notice of acceleration of maturity and agree to continue to remain bound for the repayment of principal, interest and all other sums due under this Note, notwithstanding any change or changes by way of release, surrender, exchange, modification or substitution of any security for this Note or by way of any extensions of time for the payment of this Note; and all such parties waive (to the extent permitted by law) all and every kind of notice of such change or changes and agree that the same may be made without notice or consent of any of them. GOVERNING LAW The Borrower and the Company intend that North Carolina law shall govern all matters related to this Note. RIGHTS CUMULATIVE The rights and remedies of the Company as provided in this Note and `any ins'rumdnt securing this Note shall be cumulative and may be pursued singly, successively, or together against the property described in the UCC Financing Statement or any other funds, property or security held by the Company for payment or security, in the sole discretion of the Company. The failure to exercise any such right or remedy shall not be a waiver or release of such rights or remedies or the right to exercise any of them at another time. 2 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E EXHIBIT A - PROMISSORY NOTE AMENDMENT AND MODIFICATION No waiver by the Company of any of the terms and conditions of this Note shall be effective unless it is in writing and signed by the Company. No modification or amendment to this Note may be made except in writing, signed by the Borrower and the Company. COUNTERPARTS This Note may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. For purposes hereof, a facsimile copy of this Note, including the signature pages hereto, shall be deemed to be an original. Notwithstanding the foregoing, the parties shall deliver original execution copies of this Note to one another as soon as practicable following execution thereof. IN WITNESS WHEREOF, the Borrower has caused this Note to be signed, sealed and delivered by its duly authorized officers on the day and year first above written: BORROWER: Boro Beverage Company, LLC, a North Carolina limited liability company By: Carly Erickson, Manago Member STATE OF NORTH CAROLINA ORANGE COUNTY I Yvonne M. Scarlett , Notary Public for Orange County, North Carolina, certify that Carly Erickson personally came before me this day and acknowledged that she is the Managing Member of Boro Beverage Company, LLC, a North Carolina limited liability company, and that they as Managing Members, being authorized to do so, executed the foregoing on behalf of the company. Witness my,hand an official seal, this the day of &W4/2019. Offi fal Signature of Notary Public YVONNE M.SCARLETT I $ey_,Qu North Carolina My Commission Expires: /ay el,, a tangng o County My commission Expires May 09,2020 3 DocuSign Envelope ID: E51 FEDB4-DE67-4E2D-A34B-153D3BEADB7E DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E EXHIBIT B — DESCRIPTION OF COLLATERAL The "COLLATERAL" is all of the following: 1. All personal property acquired by Boro Beverage Company, LLC, with funds loaned by the COMPANY pursuant to this AGREEMENT, all personal property obtained in substitution or replacement therefore, and all personal property obtained in substitution or replacement for any portion of the Mortgaged Property and all proceeds of the foregoing (collectively, the "Purchased Equipment"). This Agreement is a purchase money security agreement with respect to the Purchased Equipment. The parties expect that the Purchased Equipment will include the following: 2. All goods including but not limited to furniture and general intangibles whether now owned or hereafter acquired and wherever located. Excluding fixtures 3. Equipment, including all Accessions thereto, and all manufactures warranties, parts and tools therefore. 4. Inventory, including all returned inventory. 5. Accounts, including contract rights and health-care-insurance receivables. 6. Vehicles, including all manufacturers warranties and parts therefore. 7. Franchise Agreements. 8. General intangibles, including Payment Intangibles, copyrights, trademarks, patents, trade names, tax refunds, company records (paper and electronic), right under equipment leases, warranties software licenses. 9. To the Extent not listed above as original collateral, all proceeds (cash and non-cash) and products of the foregoing. NOTICE-Pursuant to an Agreement between debtor and secured party, debtor has agreed not to further encumber the collateral described herein. The further encumbrance of which may constitute interference with secured party's right by such encumbrance. CC(initial) 1 1 i I S Page 1 of 1 DocuSign Envelope ID: E51 FEDB4-DE67-4E2D-A34B-153D3BEADB7E DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E EXHIBIT C - FORM OF PERSONAL GUARANTY IN CONSIDERATION of the Loan made by Orange County Small Business Loan Company (referred to below as the "Company") to Boro Beverage Company, LLC, a North Carolina limited liability company (hereinafter referred to as "Borrower"), the undersigned (hereinafter referred to as "Guarantor"), each absolutely and unconditionally, guarantees to the Company the punctual payment in full of the principal, interest and other sums due under that certain promissory note from Borrower to Company dated February 25, 2019, (hereinafter referred to as "Note") which obligations, indebtedness and liability set forth therein are hereinafter referred to as "indebtedness." The Guarantor expressly waives the following: notice of the incurring of indebtedness by the Borrower; the acceptance of this Guaranty by the Company; presentment and demand for payment, protest, notice of protest and notice of dishonor or nonpayment of any instrument evidencing indebtedness of the Borrower; any right to require suit against the Borrower or any other party before enforcing this Guaranty; and any right of subrogation to the Company's rights against the Borrower until the Borrower's indebtedness is paid in full. The Guarantor hereby consents and agrees that renewals and extensions of time of payment, surrender, release, exchange, substitution, dealing with or taking of additional collateral security, taking or release of other guarantees, abstaining from taking advantage of or realizing upon any collateral security by the Company to the Borrower or any other party, may be made, granted, and effected by the Company without notice to each Guarantor and without in any manner affecting his or her liability hereunder. In the event that a petition in bankruptcy or reorganization of the Borrower under the bankruptcy laws or for the appointment of a receiver for the Borrower or any of its property is filed by or against the Borrower, or if the Borrower shall make an assignment for the benefit of creditors or shall become insolvent, all indebtedness of the Borrower pursuant to the Note shall, for the purpose of this Guaranty, be deemed at the Company's election to have become immediately due and payable. Any notice to Guarantor by the Company at any time shall not imply that such notice or any further or similar notice was or is required. The Guarantor further agrees to pay the Company any and all costs, expenses and reasonable attorneys' fees paid or incurred by the Company in collecting or endeavoring to collect the indebtedness of the Borrower or enforcing or endeavoring to enforce this Guaranty. This Guaranty shall be binding upon each Guarantor and his or her heirs, executors, administrators and assigns, jointly and severally, and shall inure to the benefit of the Company and its successors and assigns. Page 1 of 2 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E EXHIBIT C - FORM OF PERSONAL GUARANTY This Guaranty may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. For purposes hereof, a facsimile copy of this Guaranty, including the signature pages hereto, shall be deemed to be an original. Notwithstanding the foregoing, the parties shall deliver original execution copies of this Guaranty to one another as soon as practicable following execution thereof. IN WITNESS WHEREOF, this Guaranty has been executed and delivered to the Company by each undersigned Guarantor this February 25, 2019. /71 C--') S Am 1, Hess Carly Erickson Page 2 of 2 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E LOAN AND SECURITY AGREEMENT THIS Loan and Security Agreement (the "Agreement") is dated as of February 25, 2019 and is by and between Boro Beverage Company, LLC, a North Carolina limited liability company (the "Borrower") and the Orange County Small Business Loan Program Company, a North Carolina nonprofit corporation (the "Company") The Borrower has applied for a loan from the Company, and the Company has agreed to make the loan. This Agreement sets out the terms of the loan, including the terms for payments and the security for the loan. NOW, THEREFORE, in consideration of the mutual promises set out in this Agreement, the parties agree as follows: PART ONE—AGREEMENT TO MAKE AND REPAY.THE LOAN 1. The Company will loan to the Borrower the sum of [$25,000.00] (the "Loan"). The Company is making this loan by giving,the Borrower a check for the full amount of the loan, reduced by the Company's loan fee of[$250]. 2. The Borrower will repay the loan. The Borrower's obligation to repay the Loan will be represented by a promissory note (the "Note) in substantially the form of Exhibit A, which the Borrower will execute and deliver to the Company in exchange for the Loan proceeds. The Note will set out the terms of repayment, including payment dates and interest rates. 3. The Borrower will use the Loan for the purposes of its business (the "Business") as described in its application to the Company for this Loan. PART TWO -SECURITY FOR THE LOAN 4. To secure its obligations to the Company under the Note and this Loan Agreement, Borrower grants to the Company a security interest in the "Collateral" as described in Exhibit B. This Agreement is intended as, and constitutes, a security agreement within the meaning of the North Carolina Uniform Commercial Code (UCC) Financing Statement, with respect to the Collateral. The Borrower will execute and deliver to the Company UCC Financing Statements and such other documents as the Company may reasonably deem appropriate to secure the benefits of this Agreement. 5. To further secure the Borrower's obligations to the Company under the Note and this Loan Agreement, Carly Erickson shall execute a personal guaranty in substantially the form of Exhibit C. PART THREE - EVENTS OF DEFAULT 6. Events of Default — The happening of any of the following events shall constitute a default under this Agreement (these are the "Events of Default"): 6.1 The Borrower fails to pay when due any amounts payable under the Note; 6.2 The Borrower breaches or fails to perform or observe any term, condition or covenant of this Agreement or the Note on its part to be observed or performed; 6.3 The Borrower moves its principal place of business outside Orange County; Page 1 of 7 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E LOAN AND SECURITY AGREEMENT 6.4 The Borrower sells all or substantially all of the assets of the Business; 6.5 Any warranty, representation or statement made by the Borrower in this Agreement or otherwise to the Company in connection with this Loan is found to be incorrect or misleading in any material respect; 6.6 The Company believes in good faith that the prospect of the Borrower's payment or performance is impaired; 6.7 The Borrower seeks an order of relief under Federal Bankruptcy laws; 6.8 The Borrower becomes insolvent; or 6.9 A federal or state tax lien is filed against the assets of the Borrower. 7. Remedies on Default— Upon the continuation of any Event of Default, the Company may, without any further demand or notice, exercise any one or more of the following remedies: 7.1 Declare the unpaid balance of the Note immediately due and payable; 7.2 Proceed by appropriate court action to enforce the Borrower's performance of the applicable covenants of this Agreement or to recover for the breach thereof; 7.3 Pursue collection under the guaranties; 7.4 Pursue enforcement of the lien of the UCC Financing Statement; and 7.5 Avail itself of all other rights and remedies available at law and in equity. 8. Further Remedies — In addition to the remedies described in paragraph 7, during the continuation of an Event of Default the Company may avail itself of all the rights and remedies of a secured party under the UCC, and at its option may: 8.1 Enter upon Borrower's premises to take possession of the Collateral or to render it unusable, or require Borrower to assemble the Collateral at any place designated by Company reasonably convenient to the parties; 8.2 Give notice to the Borrower before taking any action pursuant to the UCC Financing Statement by mailing such notice to the Borrower's address as shown in this Agreement, at least ten (10) days before the proposed action. 8.3 Use the proceeds of the disposition of any Collateral to pay and discharge the Borrower's obligations as set forth in this Agreement and in the Note; and 8.4 Without other notice (except as set forth below or in the other documents executed and delivered pursuant to or in connection with the making of the loan contemplated by this Agreement) or demand whatsoever to the Borrower, all of which are hereby waived (to the extent permitted by law), and without advertisement, sell at public or private sale or otherwise realize upon, the whole, or from time to time, any part of the collateral, or any interest which the Borrower may have therein. 8.5 If any automobile is part of the Collateral, the Borrower agrees that a sale by the Company of such vehicle at a price based upon a recognized automobile quotation, publication or a sale at a recognized automobile wholesale auction shall be deemed "commercially reasonable." Page 2 of 7 DocuSign Envelope ID: E51FEDB4-DE67-4E2D-A34B-153D3BEADB7E ORANGE COUNTY-DEPARTMENT USE ONLY Party/Vendor Name:BORO BEVERAGE COMPANY,LLC Party/Vendor Contact Person: Carly Erickson Contact Phone: Party/Vendor Address: 400 W. Rosemary St., Suite 1005 City Chapel Hill State: NC Zip: 27516 Department: Economic Development Amount: n/a Purpose: Amendment to Orange County Loan & Security Agreement and PROMISSORY NOTE Code(s):48100001-450072 Vendor# (N/A if new vendor) Vendor is a BOCC consultant? Yes❑No® Contract Type:(Check one)New❑ Renewal❑ Amendment ® Effective Date 12/29/20 Approved by Board Yes❑No® Agenda Date:N/A This agreement is approved as to technical form and content and I as Department Director affirmatively state work on this project has not been initiated prior to execution of the agreement: Department Director's Signature Date: Agreements for emergency services or repair are not subject to the above affirmation. If services related to this agreement have already begun or been completed please briefly describe the nature of the emergency condition that was addressed: Information Technologies (Applicable only to hardware/software purchases or related services)This agreement has been reviewed and is approved as to information technology content and specifications: Office of the Chief Information Officer Date: Risk Management This agreement is approved for sufficiency of insurance standards, specifications,and requirements: Office of the Risk Management Officer Date: Financial Services This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act: 1/5/2021 Office of the Chief Financial Officer [ e� t Date: Legal Services This agreement is approved as to legal form and sufficiency: caignee �� 4: 1/5/2021 Office of the County Attorney �e . Date: Clerk to the Board Received for record retention: All Docusign contracts must be copied to the Clerk upon completion: occlerkdocs@orangecountync.gov The following signature block is for hard copies only and is not required for Docusign contracts: Office of the Clerk to the Board Date: Revised 07/20