EXHIBIT 10.21
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WAIVER AND FOURTH AMENDMENT
TO LOAN AND SECURITY AGREEMENT
THIS WAIVER AND FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (the
"Amendment") is made and entered into the 17th day of December, 1997 by and
between UNCLE B'S BAKERY, INC., an Iowa corporation ("Borrower"), and
CREDITANSTALT CORPORATE FINANCE, INC., a Delaware corporation ("Lender").
W I T N E S S E T H :
WHEREAS, Borrower and Lender are parties to a certain Loan and Security
Agreement, dated as of July 12, 1995 (the "Loan Agreement"), which Loan
Agreement was amended on October 28, 1996 pursuant to the Waiver and First
Amendment to the Loan and Security Agreement, was further amended on November
15, 1996 pursuant to that certain Second Amendment to Loan and Security
Agreement, and was further amended on August 25, 1997 pursuant to that certain
Waiver and Third Amendment to Loan Agreement, and which Loan Agreement currently
provides for term loans in the aggregate original principal amount of Seven
Million One Hundred Fifty Thousand Dollars ($7,900,000) and for a revolving
credit facility from Lender to Borrower in the aggregate principal amount of up
to One Million Five Hundred Thousand Dollars ($1,500,000) at any one time
outstanding; and
WHEREAS, Borrower has requested that Lender waive any Event of Default
arising out of (i) the Borrower's failure comply with the financial covenants
contained therein, (ii) the Borrower's failure to make interest payments as
required under the Loan Agreement on November 1, 1997 and December 1, 1997, and
(iii) certain other Events of Default more specifically identified herein, and
has further requested that Lender further amend the Loan Agreement, among other
things, to revise the financial covenants contained therein; and
WHEREAS, Lender has agreed to grant Borrower's request, subject to the terms and
conditions set forth herein;
NOW, THEREFORE, for and in consideration of the premises, the terms and
conditions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Loan Agreement, to
the extent defined therein.
2. AMENDMENTS.
2.1 The definition of "Borrowing Base" contained in Section
1.1 of the Loan Agreement is hereby amended by deleting the reference to
"January 31, 1998" contained therein,
and substituting in lieu thereof a reference to "December 31, 1998".
2.1 Sections 8.1 through 8.4 of the Loan Agreement are hereby
amended by deleting such Sections in their entirety and by substituting in lieu
thereof new Sections 8.1 through 8.4, to read as follows:
8.1 MINIMUM CASH FLOW. Borrower shall maintain as of the end
of each month during the applicable periods set forth below, a minimum
monthly Cash Flow of not less than the amount set forth opposite each
such applicable period:
APPLICABLE PERIOD AMOUNT
12/01/97 - 12/31/97 $60,000
01/01/98 - 01/31/98 $75,000
02/01/98 - 12/31/98 $125,000
8.3 [INTENTIONALLY DELETED].
8.2 [INTENTIONALLY DELETED].
8.4 [INTENTIONALLY DELETED].
3. WAIVER. Lender hereby waives any Event of Default under the Loan
Agreement prior to the date hereof arising solely out of (i) the Borrower's
failure to comply with the financial covenant set forth in Section 8.1 for the
period beginning on August 25, 1997 and ending on the Fourth Amendment Effective
Date, and the financial covenants set forth in Sections 8.2 and 8.4 of the Loan
Agreement for the fiscal quarter ending October 31, 1997, (ii) the Borrower's
failure to make payments of accrued interest on November 1, 1997 or December 1,
1997, (iii) the Borrower's failure to pay real property taxes totaling
approximately $24,500, which were due on September 1, 1997, and (iv) the
Borrower's execution and delivery of, and the filing of, that certain UCC-1
financing statement listing the Borrower as debtor, the State of Iowa,
Department of Economic Development as Borrower, filed with the Secretary of
State of Iowa on or about October 28, 1995.
4. EXPENSES. Borrower agrees to pay, immediately upon demand by Lender,
all costs, expenses, attorneys' fees, and other charges and expenses incurred by
Lender in connection with the negotiation, preparation, execution and delivery
of this Amendment.
5. DEFAULTS HEREUNDER. The breach of any representation, warranty or
covenant contained herein or in any document executed in connection herewith, or
the failure to observe or comply with any term or agreement contained herein or
in any document executed in conjunction herewith, shall constitute an Event of
Default under the Loan Documents and Lender shall be entitled to exercise all
rights and remedies it may have under the Loan Agreement, any of the other Loan
Documents and applicable law.
6. REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties made
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by Borrower under the Loan Agreement and the Loan Documents shall be true and
correct in all material respects as of the date hereof with the same force and
effect as if made on and as the date hereof, except as has been disclosed to the
Lender in writing and except for such changes in such representations and
warranties which do not constitute a Default or Event of Default, which do not,
individually or in the aggregate, have a Material Adverse Effect and which have,
to the extent required, been disclosed to the Bank pursuant to Section 6.2 of
the Loan Agreement or otherwise. Borrower further represents and warrants to
Lender on and as of the date of this Amendment, and after giving effect thereto,
no Default or Event of Default has occurred and is continuing.
7. NO MATERIAL ADVERSE CHANGE. Since October 31, 1997, and other than
as set forth on EXHIBIT A attached hereto, there has not occurred any material
adverse change in the assets, liabilities, business, operations or condition
(financial or otherwise) of the Borrower, or any event, condition, or state of
facts which would be expected to have a Material Adverse Effect subsequent to
the date hereof.
8. CONDITIONS PRECEDENT. This Amendment shall not become effective
unless and until (the date of such effectiveness being the "Fourth Amendment
Effective Date"):
(i) the Lender shall have received the following documents, each duly
executed and delivered to Lender, and each to be satisfactory in form and
substance to Lender and its counsel:
(a) the Amendment;
(b) the Over Advances Agreement, of even date herewith, between the
Borrower and the Lender (the "Over Advances Agreement");
(c) the Over Advances Note (as defined in the Over Advances
Agreement);
(d) the Over Advances Capitalized Interest Note (as defined in the
Over Advances Agreement);
(e) a certificate signed by the president and chief financial officer
of Borrower, stating that, giving effect to this Amendment, the
representations and warranties set forth in ARTICLE 5 of the Loan
Agreement are true and correct in all material respects on the
date hereof, Borrower is on the date hereof in compliance with
all the terms and conditions set forth in the Loan Agreement, as
amended hereby, and the Loan Documents on its part to be observed
or performed, and on the date hereof, after giving effect to this
Amendment, no Default or Event of Default has occurred or is
continuing;
(f) a certificate of the Secretary of Borrower certifying that
attached thereto is a true and correct copy of the resolutions
adopted by its Board of Directors, authorizing the execution,
delivery and performance of the Amendment, the Over Advances
Agreement and the other documents contemplated hereby;
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(g) the written opinion of Xxxxxx & Xxxxxxx LLP, counsel to Borrower,
in form and substance satisfactory to Lender;
(h) the Written Direction to Trustee to Waive Default, executed by
Creditanstalt Municipal Leasing Company ("CMLC") and acknowledged
by Norwest Bank Iowa, National Association, as Trustee (the
"Trustee"), pursuant to which CMLC shall direct the Trustee to
waive certain events of default thereunder and to cause the City
of Xxxxxxxxx, Iowa, as issuer of the Bonds, to amend the Bond
Loan Agreement to reflect the amendments to the financial
covenants contained in the Loan Agreement contained therein;
(i) such other documents, instruments and agreements with respect to
the transactions contemplated by this Amendment, in each case in
such form and containing such additional terms and conditions as
may be reasonably satisfactory to Lender, and containing, without
limitation, representations and warranties which are customary
and usual in such documents.
9. REFERENCES IN LOAN DOCUMENTS. All references in the Loan Agreement
and the other Loan Documents to the Loan Agreement shall hereafter be deemed to
be references to the Loan Agreement as amended hereby and as the same may
hereafter be amended from time to time.
10. NO CLAIMS, OFFSET. Borrower hereby represents, warrants,
acknowledges and agrees to and with Lender that (a) Borrower does not hold or
claim any right of action, claim, cause of action or damages, either at law or
in equity, against Lender which arises from, may arise from, allegedly arise
from, are based upon or are related in any manner whatsoever to the Loan
Agreement and the Loan Documents or which are based upon acts or omissions of
Lender in connection therewith and (b) the Obligations are absolutely owed to
Lender, without offset, deduction or counterclaim.
11. NO NOVATION. The terms of this Amendment are not intended to and do
not serve to effect a novation as to the Loan Agreement. The parties hereto
expressly do not intend to extinguish any debt or security interest created
pursuant to the Loan Agreement. Instead, it is the express intention of the
parties hereto to affirm the Loan Agreement and the security created thereby.
12. LIMITATION OF AMENDMENT. Except as expressly set forth herein, this
Amendment shall not be deemed to waive, amend or modify any term or condition of
the Loan Agreement or any of the other Loan Documents, each of which is hereby
ratified and reaffirmed, and which shall remain in full force and effect, nor to
serve as a consent to any matter prohibited by the terms and conditions thereof.
13. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and any party hereto may execute any counterpart, each of which,
when executed and delivered, will be deemed to be an original and all of which,
taken together, will be deemed to be but one and the same agreement. Any
signature page to this Amendment may be witnessed by a telecopy or
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other facsimile of any original signature page or any counterpart hereof may be
appended to any other counterpart hereof to form a completely executed
counterpart hereof.
14. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.
15. SECTION REFERENCES. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto evidenced hereby.
16. GOVERNING LAW. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
"BORROWER"
UNCLE B'S BAKERY, INC.
By: /s/ Xxxxxxx X. Xxxx, Xx.
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Xxxxxxx X. Xxxx, Xx.
President
Attest: /s/ Wm. Xxxxxx XxXxxxxxx, Xx.
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Wm. Xxxxxx XxXxxxxxx, Xx.
Secretary
"LENDER"
CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Executive Vice President
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Senior Associate
EXHIBIT A
TO WAIVER AND FOURTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
Lender has been provided with a copy of the Situation Analysis Report,
dated November 1997, prepared by The Scotland Group, Inc. with respect to
Borrower. Due to the factors described in that report, including the termination
of the contract with Heinz Bakery Products, the termination of the agreement
with Xxxx Baking for distribution of Millspring bagels, manufacturing
inefficiencies relating to Borrower's plant expansion project coupled with
Borrower's overhead structure, Borrower has experienced liquidity difficulties.
This liquidity situation has resulted in a variety of material adverse effects
on Borrower, some of which have been manifested after October 31, 1997,
including the items described in the letter from Borrower's counsel to Lender's
counsel dated December 15, 1997 and the mechanic's lien filed on December 12,
1997 by Xxxxxx Machinery Co., Inc. against Borrower, a copy of which has been
provided to Lender's counsel.
