FIRST AMENDMENT TO LOAN AGREEMENT
NEW YORK BAGEL ENTERPRISES, INC.
THIS FIRST AMENDMENT TO LOAN AGREEMENT is made and entered into effective as
of August 24, 1998, by NEW YORK BAGEL ENTERPRISES, INC., a Kansas
corporation, and LOTS A'BAGELS, INC., a Kansas corporation (together with
their respective successors and assigns, "BORROWER"), and NationsBank, N.A., a
national banking association (together with its successors and assigns,
"BANK"), and amends and is a part of that certain Loan Agreement executed by
Borrower and Bank on September 5, 1997.
WHEREAS, Borrower has requested that Bank amend and supplement the terms and
conditions of its Loan to Borrower and to consolidate all existing notes of
Borrower in favor of Bank; and
WHEREAS, Bank is willing to undertake such an amendment and consolidation in
consideration of Borrower's agreement to additionally perform the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the benefits to be derived
therefrom and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. NEW LOAN TERMS.
Section 1.1. CONSOLIDATION OF LOAN. With the exception of a single existing
note in the principal amount of $250,000.00 ("REVOLVER"), representing
Borrower's current revolving line of credit with Bank, the Notes shall be and
are hereby consolidated into one Note to be evidenced by that certain
promissory note of even date herewith executed by Borrower in favor of Bank
in the total principal amount of $1,655,444.57 ("TERM NOTE").
Section 1.2. REVISED COMMITMENT AMOUNT. Notwithstanding anything in the Loan
Agreement to the contrary, Bank's total commitment to make loans to Borrower
(including the Term Note and the Revolver) shall at no time exceed TWO
MILLION FIVE HUNDRED THOUSAND AND NO/100 ($2,500,000.00) in the aggregate.
The maturity
Section 1.3. MATURITY DATE. The Maturity Date, as that term is defined in the
Loan Agreement shall be and is hereby revised to September 1, 1999.
Section 1.4. YEAR 2000 COMPLIANCE. Borrower will (i) initiate a review and
assessment of all areas within its and each of its subsidiaries' businesses
and operations (including those affected by suppliers and vendors) that could
be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Borrower or any of its subsidiaries
[or its suppliers and vendors] may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any
date after December 31, 1999); (ii) develop a plan and time line for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented the plan in accordance with that timetable. Without having made
any investigation of Borrower's vendors or suppliers, Borrower reasonably
believes that all computer applications
that are material to its or any of its subsidiaries' business operations will
on a timely basis be able to perform properly date-sensitive functions for
all dates before and after January 1, 2000 (that is be "Year 2000 Compliant"),
except to the extent that a failure to do so could not reasonably be expected
to have a Material Adverse Effect. Borrower shall make written inquiry of its
material suppliers and vendors during November 1998.
ARTICLE 2. RATIFICATION AND AFFIRMATION OF LOAN AGREEMENT.
Section 2.1 RATIFICATION OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. Borrower hereby ratifies and confirms that all representations
and warranties in the Loan Documents are and remain true and correct as of
the date hereof and Borrower is and remains bound by the terms of the Loan
Documents.
Section 2.2 NO SETOFFS, COUNTERCLAIMS, ETC. As of the date hereof, Borrower
hereby acknowledges and agrees that Borrower has no right of claim,
counterclaim, offset, defense or other cause of action, direct, indirect,
contingent, liquidated or unliquidated, against Bank, and that no Default or
Event of Default has occurred and is continuing.
Section 2.3 NO OTHER MODIFICATION. Except as expressly amended by this
Amendment, the remaining terms of the Loan Agreement shall remain unaffected
and in full force and effect.
ARTICLE 3. GENERAL PROVISIONS.
Section 3.1 BINDING EFFECT. This Amendment shall be binding upon, and shall
inure to the benefit of the parties' respective representatives, successors
and assigns.
Section 3.2 CONFORMING PROVISIONS. Any and all of the terms and provisions
of the Loan Documents are hereby amended and modified wherever necessary, and
even though not specifically addressed herein, so as to conform to the
amendments and modifications set forth in this Amendment.
THIS AMENDMENT, TOGETHER WITH THE RESTATED NOTE, LOAN AGREEMENT AND THE
OTHER LOAN DOCUMENTS, ARE THE FINAL EXPRESSION OF THE AGREEMENT BETWEEN BANK
AND BORROWER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR OR
CONTEMPORANEOUS ORAL AGREEMENT BETWEEN US. BANK _____________ AND BORROWER
_______/_______ HEREBY ACKNOWLEDGE AND AFFIRM THAT NO SUCH UNWRITTEN, ORAL
AGREEMENTS EXIST. EACH PARTY HERETO ACKNOWLEDGES THAT SUFFICIENT SPACE HAS
BEEN PROVIDED HEREIN FOR THE PLACEMENT OF NONSTANDARD TERMS.
FIRST AMENDMENT TO LOAN AGREEMENT
NationsBank, N.A./New York Bagel
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IN WITNESS WHEREOF, Borrower has executed this First Amendment to Loan
Agreement as of the date and year first written above.
Borrower: NEW YORK BAGEL ENTERPRISES, INC.
By: Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx, Chairman & Chief
Executive Officer
STATE OF KANSAS )
) SS.
COUNTY OF SEDGWICK )
This instrument was acknowledged before me on August 27, 1998, by Xxxxxx X.
Xxxxxx, Chairman & Chief Executive Officer of New York Bagel Enterprises, Inc.
Xxxxx Xxxxxx By: Xxxxx Xxxxxx
Notary Public --------------------------------------------
State of Kansas Signature of notarial officer
My Appointment Expires: August 26, 2000
LOTS A'BAGELS, INC.
By: Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx, President
STATE OF KANSAS )
) SS.
COUNTY OF SEDGWICK )
This instrument was acknowledged before me on August 27, 1998, by Xxxxxx X.
Xxxxxx, as President of Lots A'Bagels, Inc.
Xxxxx Xxxxxx By: Xxxxx Xxxxxx
Notary Public --------------------------------------------
State of Kansas Signature of notarial officer
My Appointment Expires: August 26, 2000
FIRST AMENDMENT TO LOAN AGREEMENT
NationsBank, N.A./New York Bagel
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Bank: NationsBank, N.A.
By: X. Xxxxxxx Xxxxxxxx
------------------------------------------
X. Xxxxxxx Xxxxxxxx, Senior Vice President
STATE OF KANSAS )
) SS.
COUNTY OF SEDGWICK )
This instrument was acknowledged before me on August 27, 1998, by X. Xxxxxxx
Xxxxxxxx as Senior Vice President of NationsBank, N.A.
Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Notary Public ---------------------------------------------
State of Kansas Signature of notarial officer
My Appointment Expires: June 5, 2000
FIRST AMENDMENT TO LOAN AGREEMENT
NationsBank, N.A./New York Bagel
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