Exhibit 10.19
WAIVER AND THIRD AMENDMENT
TO LOAN AND SECURITY AGREEMENT
THIS WAIVER AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (the
"Amendment") is made and entered into the 25th day of August, 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, and was further amended on
November 15, 1996 pursuant to that certain Second Amendment to Loan and Security
Agreement, and which Loan Agreement currently provides for a term loan in the
original principal amount of Seven Million One Hundred Fifty Thousand Dollars
($7,150,000) 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 the Borrower's failure to make the initial principal payment on
the Term Loan and that Lender further amend the Loan Agreement (i) to defer
certain principal payments in respect of the Term Loan, (ii) to permit the
existence of certain unsecured indebtedness to one of the Borrower's
suppliers, and (ii) 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 Section 1.1 of the Loan Agreement is hereby amended by deleting
the definition of "Borrowing Base" contained therein, and substituting in lieu
thereof a new definition of "Borrowing Base", to read as follows:
"Borrowing Base" shall mean, in respect of Borrower, for the period
beginning on the Third Amendment Effective Date and ending on January 31,
1998, a fixed amount equal to One Million Four Hundred Thousand Dollars
($1,400,000), and thereafter, the sum of (a) up to eighty-five percent
(85%) of the net amount of Borrower's Eligible Accounts plus (b) up to
seventy percent (70%) of the value, calculated at the lower of cost or
market, with cost determined on an a first-in, first-out basis, of
Borrower's Eligible Finished Goods and Ingredients Inventory plus (c) up to
fifty percent (50%) of the value, calculated at the lower of cost or
market, with cost determined on a first-in, first-out basis, of Borrower's
other Eligible Inventory less (d) reserves for unpaid Inventory storage
costs and for costs, expenses and liabilities, if any, which Lender is
authorized to charge to Borrower's revolving loan account hereunder.
2.2 Section 1.1 of the Loan Agreement is hereby further amended by
deleting the definition of "Default Rate" contained therein, and substituting
in lieu thereof a new definition of "Default Rate", to read as follows:
"Default Rate" shall mean (a) with respect to any Loan (other than the
Additional Term Loan II) or portion thereof, an interest rate per annum
equal to two percent (2%) above the rate set forth for such Loan in Section
3.1(a) hereof, or (b) with respect to any portion of the Obligations other
than Loans, two percent (2%) above the rate set forth in Section 3.1(a)(iv)
hereof.
2.3 Section 1.1 of the Loan Agreement is hereby further amended by
deleting the first sentence contained in the definition of "Interest Period"
contained therein, and substituting in lieu thereof a new first sentence, to
read as follows:
"Interest Period" shall mean, in connection with any Eurodollar Loan,
the period beginning on the date such Eurodollar Loan is made, Continued
or Converted and continuing for one (1) month.
2.4 Section 1.1 of the Loan Agreement is hereby further amended by
deleting the definition of "Loans" contained therein, and substituting in lieu
thereof a new definition of "Loans", to read as follows:
"Loans" shall mean, collectively, the Revolving Credit Loans, the
Term Loans and the Additional Term Loan II, and "Loan" shall mean either
a Revolving Credit Loan, a Term Loan or the Additional Term Loan II.
2.5 Section 1.1 of the Loan Agreement is hereby further amended by
deleting the definition of "Notes" contained therein, and substituting in lieu
thereof a new definition of "Notes", to read as follows:
"Notes" shall mean, collectively, the Revolving Credit Note, the Term
Note, the Additional Term Note, and the Capitalized Interest Note, and
"Note" shall mean either the Revolving Credit Note, the Term Note, the
Additional Term Note or the Capitalized Interest
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Note.
2.6 Section 1.1 of the Loan Agreement is hereby further amended by
deleting the definition of "Term Loans" contained therein, and substituting in
lieu thereof a new definition of "Term Loans", to read as follows:
"Term Loans" shall mean, collectively, the loans made pursuant to
Section 2.2(a) hereof, and "Term Loan" shall mean any loan made pursuant
to Section 2.2(a) hereof. Term Loans may consist of either a Base Rate
Loan, a Eurodollar Loan or a combination thereof, each of which is a type
of Loan.
2.7 Section 1.1 of the Loan Agreement is hereby further amended by
adding thereto the following new definitions, in appropriate alphabetical
order:
"Additional Term Loan II" shall mean the loan made pursuant to
Section 2.2(c) hereof.
"Additional Term Loan II Repayment Date" shall mean August 25, 2002.
"Additional Term Note" shall have the meaning given to such term in
Section 2.2 hereof.
"Third Amendment Effective Date" shall mean the date on which all of
the conditions to the effectiveness of the waiver and amendments
contained in that certain Waiver and Third Amendment to Loan and Security
Agreement, dated as of August 25, 1997, between the Borrower and the
Lender, are met.
"Capitalized Interest Note" shall have the meaning given to such term
in Section 3.1(d) hereof.
2.8 Section 1.3 of the Loan Agreement is hereby amended by adding to
the end of such Section the following new sentences, to read as follows:
For the purpose of determining compliance with the financial covenants
contained in Sections 8.1, 8.2, and 8.4, the Borrower shall exclude from
its calculation the impact, if any, of (a) accounting for any reduction
in earnings caused by the issuance to the Lender or any Affiliate of the
Lender after August 1, 1997 of any warrants to purchase capital stock of
the Borrower with an exercise price or prices below the market price for
such stock, determined in accordance with GAAP; (b) accounting for any
reduction in earnings caused by the reduction of the exercise price of
any warrants to purchase capital stock of the Borrower issued to the
Lender or any Affiliate of the Lender prior to August 1, 1997; (c) the
creation or amortization of any deferred financing charge asset resulting
from the transactions consummated in connection with the Third Amendment;
and (d) any consulting expenses incurred by the Borrower arising in
consulting services provided by Regent Pacific Management Corporation. In
addition, for the purpose of calculating the financial covenant
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set forth in Section 8.2, Interest Expense shall exclude any interest in
respect of the Additional Term Loan II.
2.9 Section 2.2 of the Loan Agreement is hereby amended by deleting
subsection (b) thereof in its entirety and by substituting therefor a new
subsections (b) and (c), to read as follows:
(b) The principal amount of the Term Loan shall be repayable in
sixteen (16) quarterly installments of principal, payable on each
Amortization Date, commencing August 1, 1998, with the first fifteen (15)
such installments each being in the amount of One Hundred Seventy Eight
Thousand Seven Hundred Fifty Dollars ($178,750) and the sixteenth (16th)
such installment being in an amount equal to the outstanding principal
balance thereof, payable on the Final Maturity Date.
(c) Subject to the terms and conditions hereof and provided there
exists no Default or Event of Default, the Lender agrees to make a loan
(the "Additional Term Loan II"), on or after the Third Amendment
Effective Date, to Borrower in an aggregate amount equal to Seven Hundred
Fifty Thousand Dollars ($750,000). The Additional Term Loan II (exclusive
of capitalized interest under Section 3.1(d)) shall be evidenced by a
promissory note, substantially in the form of Exhibit J attached hereto,
payable to the Lender in the amount of the Additional Term Loan II
(exclusive of any capitalized interest) (such promissory note, together
with any and all amendments, modifications and supplements thereto, and
any renewals, replacements or extensions thereof, in whole or in part,
the "Additional Term Note"). The Additional Term Loan II, once borrowed
and repaid, may not be reborrowed.
(d) The then-unpaid aggregate principal amount of the Additional Term
Loan II shall be repayable on the Additional Term Loan II Repayment Date.
2.10 Subsection 2.10(a) of the Loan Agreement is hereby amended by
deleting such subsection in its entirety, and substituting in lieu thereof a
new subsection 2.10(a), to read as follows:
(a) Subject to the other terms and conditions hereof, upon written
notice to the Lender in accordance with Section 2.11, Borrower may, at
its option, prepay the Term Loan and/or the Additional Term Loan II
and/or reduce either Commitment, in whole or in part, in integral
multiples of $100,000 on the date specified in such notice, by paying to
the Lender the amount of such prepayment, in the case of a prepayment of
the Term Loan and the Additional Term Loan II, and/or the accrued amount
of the Commitment Fee applicable to the amount of the Commitment
reduction, as the case may be.
2.11 Subsection 2.11(a) of the Loan Agreement is hereby amended by
deleting such subsection in its entirety, and substituting a new subsection
2.11(a) in lieu thereof, to read as follows:
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(a) All notices given by Borrower to the Lender hereunder of
terminations or reductions of the Commitments, or of borrowings,
Conversions, Continuations or prepayments of Loans hereunder or of
requests for the issuance of Letters of Credit shall either be oral, with
prompt written confirmation, which may be by telecopy; or in writing,
with such written confirmation or writing, in the case of a borrowing, to
be substantially in the form of Exhibit D attached hereto (a "Notice of
Borrowing"), and, in the case of a request for a Letter of Credit, to be
substantially in the form of Exhibit E attached hereto (a "Request for
Letter of Credit"); shall be irrevocable; shall be effective only if
received by Lender prior to 10:00 a.m. (prevailing Eastern time) on a
Business Day which is: (i) at least fifteen (15) days prior to such
termination or reduction of the Commitment; (ii) on the date such Loan is
to be made as, Converted to or Continued as a Base Rate Loan; (iii) at
least three (3) Business Days prior to the date such Loan is to be made
as, Converted to or Continued as a Eurodollar Loan; (iv) at least five
(5) days prior to any such prepayment, in the case of a prepayment of a
Eurodollar Loan; (v) not later than the date of any such prepayment, in
the case of a prepayment of any Loan other than a Eurodollar Loan; or
(vi) at least three (3) Business Days prior to the date such Letter of
Credit is to be issued. Each such notice to reduce the Commitment or to
prepay the Loans shall specify the amount of the Commitment to be reduced
or of the Loans to be prepaid and the date of such reduction or
prepayment. Each such notice of borrowing, Conversion or Continuation
shall specify: (1) the amount of such borrowing, Conversion or
Continuation; (2) that the amount of the Loan to be made, Converted or
Continued, when aggregated with all other Loans to be outstanding
following the funding, Conversion or Continuation of such Loan, does not
exceed the Borrowing Base; (3) whether such Loan will be made, Converted
or Continued as a Eurodollar Loan or as a Base Rate Loan; and (4) the
date such Loan is to be made, Converted or Continued (which shall be a
Business Day and, if such Loan is to Convert or Continue a Eurodollar
Loan then outstanding, shall not be prior to the last day of the then
current Interest Period for such outstanding Loan). Each request for a
borrowing, Conversion or Continuation of a Loan, for the issuance of a
Letter of Credit or for any other financial accommodation by Borrower
pursuant to this Agreement or the other Loan Documents shall constitute
(x) an automatic warranty and representation by Borrower to Lender that
there does not then exist a Default or Event of Default or any event or
condition which, with the making of such Loan or the issuance of such
Letter of Credit, would constitute a Default or Event of Default and (y)
an affirmation that as of the date of such request all of the
representations and warranties of Borrower contained in this Agreement
and the other Loan Documents are true and correct in all material
respects, both before and after giving effect to the making of such Loan
or the issuance of such Letter of Credit. If on the last day of the
Interest Period of any Eurodollar Loan hereunder, Lender has not received
a timely notice hereunder to Convert, Continue or prepay such Loan,
Borrower shall be deemed to have submitted a notice to Convert such Loan
to a Base Rate Loan. All notices required to be sent to Lender pursuant
to this Section 2.11(a) shall be sent to Lender at Two Xxxxxxxxx Xxxxx,
Xxxxxx Xxxxx, Xxxxxxxxx Xxxxxxxxxxx 00000, Attn. Xxxxxx X'Xxxx, Facsimile
No. (000) 000-0000 or Attn: Xxxxxx X. Xxxxxxxx, Facsimile No: (770) 390-
1851, in addition to the "Address for Notices" specified below Lender's
name on the signature pages hereto.
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2.12 Subsection 3.1(a) of the Loan Agreement is hereby amended by
redesignating clause (iii) of such subsection as clause (iv), and inserting a
new clause (iii) in such subsection to read as follows:
(iii) the outstanding principal amount of the Additional Term Loan II
shall bear interest at a fixed amount equal to three percent (3%) per
annum.
2.13 Subsection 3.1(b) of the Loan Agreement is hereby amended by
adding thereto the parenthetical "(other than the Additional Term Loan II)"
immediately following the phrase "the applicable interest payable on the
Loans" contained in such subsection.
2.14 Subsection 3.1(c) of the Loan Agreement is hereby amended by
deleting clause (i) contained therein and substituting in lieu thereof a new
clause (i), to read as follows:
(i) in the case of Base Rate Loans, monthly on the first day of each
month for the previous month or portion thereof;
2.15 Subsection 3.1(c) of the Loan Agreement is hereby further
amended by redesignating clauses (iii), (iv) and (v) contained therein as
clauses (iv), (v) and (vi), respectively, and by adding thereto a new clause
(iii), to read as follows:
(iii) in the case of the Additional Term Loan II, as provided in
subsection (d) below,
2.16 Section 3.1 of the Loan Agreement is hereby further amended by
adding thereto a new subsection (d), to read as follows:
(d) On the first day of each month, unless the Borrower shall pay all
accrued interest on the Additional Term Loan II as of such date, such
accrued interest shall be capitalized. Capitalized interest under this
subsection (d) shall itself be evidenced by a promissory note,
substantially in the form of Exhibit I attached hereto, payable to the
Lender in the amount of such capitalized interest (together with any and
all amendments, modifications and supplements thereto, and any renewals,
replacements or extensions thereof, in whole or in part, the "Capitalized
Interest Note"). For all purposes under this Agreement, capitalized
interest shall be treated as additional principal of the Additional Term
Loan II, and shall itself bear interest at the interest rate then in
effect for the Additional Term Loan II, and shall be repaid on the
Additional Term Loan II Repayment Date.
2.17 Section 3.2 of the Loan Agreement is hereby amended by deleting
such section in its entirety, and substituting in lieu thereof a new
Section 3.2, to read as follows:
3.2 INTEREST PERIOD. The Interest Period for any Eurodollar Loan
shall commence on the date such Loan is made, Converted or Continued as
specified in the notice delivered pursuant to Section 2.11 hereof
applicable thereto and shall continue for a
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period of one (1) month.
2.18 Subsection 3.8(b) of the Loan Agreement is hereby amended by
adding thereto the parenthetical "(other than the Additional Term Loan II)"
immediately following the phrase "as a consequence of its making or
maintaining any Loan" contained in such subsection.
2.19 Section 3.11 of the Loan Agreement is hereby amended by deleting
the phrase "either of the Notes" contained in the second sentence of such
Section, and substituting in lieu thereof the phrase "any of the Notes".
2.20 Section 5.14 of the Loan Agreement is hereby amended by adding
to the beginning thereof the phrase "Except as set forth on Schedule 5.14,".
2.21 Section 5.22 of the Loan Agreement is hereby amended by adding
to the beginning thereof the phrase "Except as set forth on Schedule 5.22,".
2.22 Sections 8.1 through 8.5 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 8.5, to read as follows:
8.1 TANGIBLE NET WORTH. Borrower shall maintain as of the end of
each month during the applicable periods set forth below, a Tangible Net
Worth of not less than the amount set forth opposite each such applicable
period:
Applicable Period Amount
----------------- ------
08/01/97 - 10/31/97 $ 150,000
11/01/97 - 01/31/98 $ 200,000
02/01/98 - 04/30/98 $ 400,000
05/01/98 - 07/31/98 $ 650,000
08/01/98 - 10/31/98 $ 850,000
11/01/98 - 01/31/99 $1,050,000
02/01/99 - 04/30/99 $1,250,000
05/01/99 - 07/31/99 $1,450,000
08/01/99 - 10/31/99 $1,650,000
11/01/99 - 01/31/00 $1,850,000
02/01/00 - 04/30/00 $2,050,000
05/01/00 - 07/31/00 $2,250,000
08/01/00 - 10/31/00 $2,450,000
11/01/00 - 01/31/01 $2,650,000
02/01/01 - 04/30/01 $2,850,000
05/01/01 - 07/31/01 $3,050,000
08/01/01 - 10/31/01 $3,250,000
11/01/01 - 01/31/02 $3,450,000
All time thereafter $3,650,000
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8.2 INTEREST COVERAGE RATIO. Borrower shall maintain, as of the end
of each fiscal quarter of Borrower during the applicable periods set forth
below, an Interest Coverage Ratio of not less than the ratio set forth
below opposite each such applicable period, calculated for the fiscal
quarter then ending:
Applicable Period Ratio
----------------- -----
08/01/97 - 01/31/98 1.30:1.0
02/01/98 - 04/30/98 2.00:1.0
At all times thereafter 2.50:1.0
8.3 [INTENTIONALLY DELETED]
8.4 INDEBTEDNESS/CASH FLOW RATIO. Borrower shall maintain as of the
end of each fiscal quarter of Borrower during the applicable periods set
forth below a ratio of Indebtedness to Cash Flow with Cash Flow calculated
as follows: (a) in the case of the fiscal quarter ending October 31, 1997,
calculated for such fiscal quarter and then multiplied by four (4); (b) in
the case of the fiscal quarter ending January 31, 1998, calculated for the
two fiscal quarter period then ending and then multiplied by two (2); (c)
in the case of the fiscal quarter ending April 30, 1998, calculated for the
three fiscal quarter period then ending and then multiplied by four-thirds
(4/3); and (d) in the case of each subsequent fiscal quarter, for the four
fiscal quarter period then ending of not greater than the ratio set forth
below opposite the applicable period during which such quarter occurs:
Applicable Period Ratio
----------------- -----
08/01/97 - 10/31/97 8.00:1.0
11/01/97 - 01/31/98 6.50:1.0
02/01/98 - 04/30/98 5.25:1.0
05/01/98 - 01/31/99 4.75:1.0
At all times thereafter 4.50:1.0
8.5 CAPITAL EXPENDITURES. Make any Capital Expenditure at any time
(a) during the Fiscal Year ending on July 31, 1998 if the aggregate amount
of such Capital Expenditures during such Fiscal Year would exceed $800,000;
and (b) during any subsequent Fiscal Year, if the aggregate amount of such
Capital Expenditures during such Fiscal Year would exceed $500,000.
2.23 Schedules 1.1, 5.18 and 7.2 to the Loan Agreement are hereby
amended by deleting such schedules in their entirety and by substituting in
lieu thereof new Schedules 1.1, 5.18 and 7.2, in the forms of Exhibits X-0,
X-0, and A-3 attached hereto.
2.24 The Loan Agreement is hereby further amended by adding thereto
new Schedules 5.14 and 5.22, in the forms of Exhibits F-1 and F-2 attached
hereto.
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2.25 The Loan Agreement is hereby further amended by adding thereto
new Exhibits I and J, in the forms of Exhibits B and C attached hereto.
2.26 The Loan Agreement is hereby further amended by deleting Exhibit
D attached thereto, and substituting in lieu thereof a new Exhibit D, in the
form of Exhibit G attached hereto.
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 make the initial scheduled payment of the Term Loan on August 1,
1997, as required under Section 2.2(b) of the Loan Agreement; provided,
however, that the foregoing waiver is a waiver solely as to the timing of the
initial principal installment of the Term Loan, and shall not be deemed a
waiver of the Borrower's obligation to repay the entire amount of the Term
Loan in accordance with the Loan Agreement, as amended by through and
including the effective date of this Amendment; (ii) the Borrower's failure to
repay immediately the Revolving Loans, to the extent that the outstanding
principal balance thereof exceeded the Borrowing Base; (iii) the Borrower's
failure to comply with the financial covenant set forth in Section 8.1 for the
period beginning on May 1, 1997 and ending on the Third 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 July 31, 1997; and (iv) the
Borrower's failure to comply with the provisions of Section 7.1, to the extent
that any such failure to comply arose out of the existence of the mechanics
lien described on Schedule 1.1 attached hereto as Exhibit A-1.
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. In addition, Borrower agrees to pay all of the
expenses of Regent Pacific Management Corporation relating to consulting
services provided by such Person, and to indemnify and reimburse the Lender to
the extent that the Lender pays any such expenses.
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 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 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.
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7. NO MATERIAL ADVERSE CHANGE. Since June 30, 1997, and other than as set
forth on Exhibit D 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:
(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 Replacement Term Note, in the form of Exhibit E attached
hereto;
(c) the Additional Term Note, in the form of Exhibit C attached
hereto;
(d) the Capitalized Interest Note, in the form of Exhibit B
attached hereto
(e) a certificate signed by the executive vice 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 Replacement Term Note, the Additional Term Note, the
Capitalized Interest Note and the other documents
contemplated hereby;
(g) the written opinion of Xxxxxx & Xxxxxxx LLP, counsel to
Borrower, in the 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
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contained herein;
(i) a disbursement direction letter; and
(j) 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.
(ii) the Borrower shall have reached a written settlement with North
Dakota Mill concerning the dispute with such Person involving approximately
$1,320,000 in accounts payable allegedly owing by the Borrower to such Person,
on terms and conditions in form and substance satisfactory to the Lender; and
(iii) the Borrower shall have used the proceeds, in part, to pay (a)
accrued interest on the Loans (other than Eurodollar Loans) as of July 31,
1997, and (b) the fees and expenses of the Lender in connection with the
preparation, negotiation and documentation of this Amendment and the
consummation of the transactions contemplated hereby or otherwise in
connection herewith.
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,
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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 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.
12
IN WITNESS WHEREOF, the parties hereto have executed this Amendment under
seal as of the date first written above.
"BORROWER"
UNCLE B'S BAKERY, INC.
By: /s/ Xxxxxxx X. Xxxx, Xx.
----------------------------------
Xxxxxxx X. Xxxx, Xx.
President
Attest: /s/ Wm. Xxxxxx XxXxxxxxx, Xx.
------------------------------
Wm. Xxxxxx XxXxxxxxx, Xx.
Secretary
"LENDER"
CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/ W. Xxxxx Xxxxx
---------------------------------
W. Xxxxx Xxxxx
Vice President
By: /s/ Xxxxx Xxxx
----------------------------------
Xxxxx Xxxx
Vice President
Exhibit A-1
SCHEDULE 1.1
PERMITTED LIENS
D&S Sheetmetal, Inc. filed a mechanics lien against the Realty on July 31,
1997 in the sum of $59,859.51, plus interest and costs. The Company intends to
work out a payment schedule with this creditor and to make payment against
such debt with the proceeds of Additional Term Loan II.
SCHEDULE 5.18
Summary of Patents and Trademarks
Brand Names and Products Products Covered Status
Processes Currently by Trademark
Marketed
------------------------------------------------------------------------------
Uncle B's(R) bagels Class 30 bakery Filed 11/4/91.
goods Reg. # 1,699,292.
Expires 11/4/01.
Uncle B's(R) and bagels Class 30 bakery Filed 10/27/95.
design goods Reg. # 2,029,901.
Expires 1/14/07.
[LOGO]
Bagel Packaging bagels Process patent Filed 9/4/90.
Composition Serial # 08/396,090.
Application pending.
Millspring(TM) bagels Class 30 bakery Filed 6/28/94.
goods Serial # 74/543,342
Application pending.
Zip Strip(TM) bagels Class 30 bakery Filed 10/6/95.
goods Serial #75/002,340.
Application pending.
Bagel to Go(TM) bagels Class 30 bakery Application process
goods progress.
------------------------------------------------------------------------------
SCHEDULE 7.2
Indebtedness
1) As of August 15, 1997, the Company accounts payable outstanding over 90
days is approximately $876,000.
2) The Company has entered into a letter agreement dated August 21, 1997
with North Dakota Mill ("NDM") whereby NDM gives the Company a $225,000 credit
toward its account payable with NDM, in exchange for a release from liability
for claims relating to performance of flour previously provided by NDM. The
balance of the account payable ($1,096,187.27) is converted into a long-term
note at 0% interest for 78 weeks and at prime plus 1.5% after 78 weeks on a
repayment schedule of $7,000 per week, and the note is due in 113 weeks from
the date of signing. The Company also agrees to purchase flour from NDM for 26
months as long as price and quality remain competitive.
EXHIBIT B
TO WAIVER AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
DATED AS OF AUGUST 25, 1997
FORM OF CAPITALIZED INTEREST NOTE
GREENWICH, CONNECTICUT
AS OF AUGUST_____, 1997
FOR VALUE RECEIVED, the undersigned UNCLE B'S BAKERY, INC., an Iowa
corporation (hereinafter referred to as "Maker"), promises to pay to the order
of CREDITANSTALT CORPORATE FINANCE, INC. (hereinafter to as the "Holder"), at
Holder's office located at Two Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000,
or at such other place as Holder may from time to time designate in writing,
the aggregate outstanding amount of all capitalized interest owing to the
Holder in respect of the Additional Term Loan II, as such term is defined in
the Loan Agreement referred to below, payable on the Additional Term Loan II
Repayment Date, as defined in the Loan Agreement.
Interest on capitalized interest from time to time outstanding hereunder
shall accrue at the rates and shall be payable in the manner set forth in the
Loan Agreement referred to below. In no contingency or event whatsoever shall
the interest rate charged pursuant to the terms of this Note exceed the
highest rate permissible under any law which a court of competent jurisdiction
shall, in a final determination, deem applicable hereto. In the event that
such a court determines that Holder has received interest hereunder in excess
of the highest applicable rate, Holder shall promptly refund such excess
interest to Maker.
This Note is subject to all of the terms and conditions of the Loan
Agreement, including, but not limited to, those relating to prepayments
hereon, and those relating to the acceleration of the indebtedness represented
hereby upon the occurrence of an Event of Default (as such term is defined in
the Loan Agreement). Payment of this Note is secured by the "Collateral", the
"Realty" and any "Additional Realty" (as such terms are defined in the Loan
Agreement). All prepayments under this Note shall be applied to the principal
installments hereof in the inverse order of their maturities.
In the event that all or any portion of the indebtedness evidenced hereby
shall be collected by or through an attorney-at-law, Holder shall be entitled
to collect from Maker all costs of collection, including reasonable attorneys'
fees.
Maker hereby waives presentment, demand for payment, protest and notice of
protest, notice of dishonor and all other notices in connection with this
Note. This Note shall be payable without right of setoff, any defense or want
or failure of consideration, nonperformance of any condition precedent,
nondelivery or delivery for a special purpose or any other defense of any
nature whatsoever.
THIS NOTE, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER,
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). MAKER HEREBY (A)
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW
YORK CITY FOR THE PURPOSE OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS NOTE AND (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE REGARDING
THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE HOLDER TO BRING
PROCEEDINGS AGAINST MAKER IN THE COURTS OF ANY OTHER JURISDICTION WITHIN THE
UNITED STATES OF AMERICA OR IN WHICH ANY COLLATERAL IS LOCATED.
MAKER HEREBY KNOWINGLY, INTELLIGENTLY AND INTENTIONALLY WAIVES ANY AND
ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING
BASED ON OR ARISING OUT OF, UNDER, IN CONNECTION WITH, OR RELATING TO THIS NOTE,
THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF MAKER OR HOLDER.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE HOLDER TO MAKE THE LOANS
EVIDENCED BY THIS NOTE TO MAKER.
2
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by
its duly authorized officer as of the day and year first written above.
UNCLE B'S BAKERY, INC., an Iowa
corporation
By:
-------------------------------
Title:
----------------------------
Attest:
---------------------------
Title:
----------------------------
3
EXHIBIT C
TO WAIVER AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
DATED AS OF AUGUST 25, 1997
FORM OF ADDITIONAL TERM NOTE
$750,000 GREENWICH, CONNECTICUT
AS OF AUGUST_____, 1997
FOR VALUE RECEIVED, the undersigned UNCLE B'S BAKERY, INC., an Iowa
corporation (hereinafter referred to as "Maker"), promises to pay to the order
of CREDITANSTALT CORPORATE FINANCE, INC. (hereinafter to as the "Holder"), at
Holder's office located at Two Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000,
or at such other place as Holder may from time to time designate in writing,
the principal sum of Seven Hundred Fifty Thousand United States Dollars (U.S.
$750,000), payable on the Additional Term Loan II Repayment Date.
Interest on the principal balance from time to time outstanding hereunder
shall accrue at the rates and shall be payable in the manner set forth in the
Loan Agreement referred to below. In no contingency or event whatsoever shall
the interest rate charged pursuant to the terms of this Note exceed the
highest rate permissible under any law which a court of competent jurisdiction
shall, in a final determination, deem applicable hereto. In the event that
such a court determines that Holder has received interest hereunder in excess
of the highest applicable rate, Holder shall promptly refund such excess
interest to Maker.
This Note is subject to all of the terms and conditions of the Loan
Agreement, including, but not limited to, those relating to prepayments
hereon, and those relating to the acceleration of the indebtedness represented
hereby upon the occurrence of an Event of Default (as such term is defined in
the Loan Agreement) or the reduction of the Term Loan Commitment. Payment of
this Note is secured by the "Collateral", the "Realty" and any "Additional
Realty" (as such terms are defined in the Loan Agreement). All prepayments
under this Note shall be applied to the principal installments hereof in the
inverse order of their maturities.
In the event that all or any portion of the indebtedness evidenced hereby
shall be collected by or through an attorney-at-law, Holder shall be entitled
to collect from Maker all costs of collection, including reasonable attorneys'
fees.
Maker hereby waives presentment, demand for payment, protest and notice of
protest, notice of dishonor and all other notices in connection with this
Note. This Note shall be payable without right of setoff, any defense or want
or failure of consideration, nonperformance of any condition precedent,
nondelivery or delivery for a special purpose or any other defense of any
nature whatsoever.
THIS NOTE, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, 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). MAKER HEREBY (A)
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING
IN NEW
YORK CITY FOR THE PURPOSE OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS NOTE AND (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE REGARDING THE LAYING OF THE
VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NOTHING
HEREIN SHALL LIMIT THE RIGHT OF THE HOLDER TO BRING PROCEEDINGS AGAINST MAKER IN
THE COURTS OF ANY OTHER JURISDICTION WITHIN THE UNITED STATES OF AMERICA OR IN
WHICH ANY COLLATERAL IS LOCATED.
MAKER HEREBY KNOWINGLY, INTELLIGENTLY AND INTENTIONALLY WAIVES ANY AND ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING BASED
ON OR ARISING OUT OF, UNDER, IN CONNECTION WITH, OR RELATING TO THIS NOTE, THE
TRANSACTIONS CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF MAKER OR HOLDER. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE HOLDER TO MAKE THE LOANS EVIDENCED
BY THIS NOTE TO MAKER.
2
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by
its duly authorized officer as of the day and year first written above.
UNCLE B'S BAKERY, INC., an Iowa
corporation
By:
-------------------------------
Title:
----------------------------
Attest:
---------------------------
Title:
----------------------------
3
EXHIBIT D
TO WAIVER AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
DATED AS OF AUGUST 25, 1997
MATERIAL ADVERSE CHANGES
None.
EXHIBIT E
TO WAIVER AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
DATED AS OF AUGUST 25, 1997
FORM OF TERM NOTE
$7,150,000 GREENWICH, CONNECTICUT
AS OF AUGUST_____, 1997
FOR VALUE RECEIVED, the undersigned UNCLE B'S BAKERY, INC., an Iowa
corporation (hereinafter referred to as "Maker"), promises to pay to the order
of CREDITANSTALT CORPORATE FINANCE, INC. (hereinafter to as the "Holder"), at
Holder's office located at Two Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000,
or at such other place as Holder may from time to time designate in writing,
the principal sum of Seven Million Xxx Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxx
Dollars (U.S. $7,150,000), payable in sixteen (16) quarterly installments of
principal, payable on each Amortization Date, as defined in the Loan Agreement
referred to below, commencing August 1, 1998 with the first fifteen (15) such
installments each being in an amount of One Hundred Seventy Eight Thousand
Seven Hundred and Fifty Dollars ($178,750) and the sixteenth (16th) and final
installment being an amount equal to the then-outstanding unpaid aggregate
principal amount of the Term Loan, payable on the Final Maturity Date.
Interest on the principal balance from time to time outstanding hereunder
shall accrue at the rates and shall be payable in the manner set forth in the
Loan Agreement referred to below. In no contingency or event whatsoever shall
the interest rate charged pursuant to the terms of this Note exceed the
highest rate permissible under any law which a court of competent jurisdiction
shall, in a final determination, deem applicable hereto. In the event that
such a court determines that Holder has received interest hereunder in excess
of the highest applicable rate, Holder shall promptly refund such excess
interest to Maker.
This Note is a replacement note for that certain Term Note dated as of
November 15, 1996 in the principal amount of Seven Million One Hundred Fifty
Thousand Dollars ($7,150,000) executed by Maker in favor of Holder, which was,
in part, a replacement note for that certain Term Note dated July 12, 1995 in
the principal amount of Six Million Nine Hundred Thousand Dollars ($6,900,000)
executed by Maker in favor of Holder and is the Term Note referred to in that
certain Loan and Security Agreement dated July 12, 1995, by and between Maker
and Holder (as the same has been, and as the same may be further amended,
restated, supplemented or otherwise modified from time to time, the "Loan
Agreement"). This Note is subject to all of the terms and conditions of the
Loan Agreement, including, but not limited to, those relating to prepayments
hereon, and those relating to the acceleration of the indebtedness represented
hereby upon the occurrence of an Event of Default (as such term is defined in
the Loan Agreement) or the reduction of the Term Loan Commitment. Payment of
this Note is secured by the "Collateral", the "Realty" and any "Additional
Realty" (as such terms are defined in the Loan Agreement). All prepayments
under this Note shall be applied to the principal installments hereof in the
inverse order of their maturities.
In the event that all or any portion of the indebtedness evidenced hereby
shall be collected by or through an attorney-at-law, Holder shall be entitled
to collect from Maker all costs of collection, including reasonable attorneys'
fees.
Maker hereby waives presentment, demand for payment, protest and notice of
protest, notice of dishonor and all other notices in connection with this
Note. This Note shall be payable without right of setoff, any defense or want
or failure of consideration, nonperformance of any condition precedent,
nondelivery or delivery for a special purpose or any other defense of any
nature whatsoever.
THIS NOTE, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, 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). MAKER HEREBY (A)
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING
IN NEW YORK CITY FOR THE PURPOSE OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS NOTE AND (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE REGARDING
THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE HOLDER TO BRING
PROCEEDINGS AGAINST MAKER IN THE COURTS OF ANY OTHER JURISDICTION WITHIN THE
UNITED STATES OF AMERICA OR IN WHICH ANY COLLATERAL IS LOCATED.
MAKER HEREBY KNOWINGLY, INTELLIGENTLY AND INTENTIONALLY WAIVES ANY AND ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING BASED
ON OR ARISING OUT OF, UNDER, IN CONNECTION WITH, OR RELATING TO THIS NOTE, THE
TRANSACTIONS CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF MAKER OR HOLDER. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE HOLDER TO MAKE THE LOANS EVIDENCED
BY THIS NOTE TO MAKER.
2
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by
its duly authorized officer as of the day and year first written above.
UNCLE B'S BAKERY, INC., an Iowa
corporation
By:
-------------------------------
Title:
----------------------------
Attest:
---------------------------
Title:
----------------------------
3
SCHEDULE 5.14
DEFAULTS
The Company has been in violation of certain of the financial covenants
contained in Appendix A to the Loan Agreement between the City of Xxxxxxxxx,
Iowa and the Company, relating to the Bonds (the "Bond Loan Agreement"). In
addition, defaults under Section 6.1(f), (g) and (h) of the Bond Loan
Agreement have occurred due to Events of Default under the Loan Agreement, and
defaults under Section 6.1(a) of the Bond Loan Agreement have occurred due to
failure of timely make a payment on the Bonds in July 1997 (which payment has
subsequently been made). The Bondholder has instructed the Bond Trustee to
waive these defaults and to enter into an amendment to the Bond documents
consistent with this Amendment.
Exhibit F-2
SCHEDULE 5.22
Trade Relations
As disclosed in Section 7.2 the Company anticipates entering into a
definitive agreement with a trade supplier to repay the amounts owed over a 26
month period.
As disclosed in Schedule 1.1 a mechanics lien has been filed in the
amount of approximately $59,860 plus cost and Interest. Company anticipates
this will be satisfied with an agreed upon payment schedule and payment from
loan proceeds.
EXHIBIT G
TO WAIVER AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
DATED AS OF AUGUST 25, 1997
EXHIBIT D
Notice of Borrowing
Creditanstalt Corporate Finance, Inc.
Two Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Re: Loan and Security Agreement dated as of July 15, 1997 (the "Loan
Agreement") among Uncle B's Bakery, Inc. (the "Borrower") and
Creditanstalt Corporate Finance, Inc. ("Lender")
Gentlemen:
The undersigned, UNCLE B'S BAKERY, INC., hereby gives you notice,
irrevocably, pursuant to Section 2.11 of the Loan Agreement, that the
undersigned hereby requests a [Loan] [Conversion] [Continuation] under the
Loan Agreement and in connection therewith, sets forth the information
relating to such [Loan] [Conversion] [Continuation] as required by Section
2.11 of the Loan Agreement. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Loan Agreement.
Borrower hereby irrevocably requests for the following Loan:
1. Amount of [Loan] [Conversion]
[Continuation] $
----------------
2. Borrowing Base:
a. Availability before Loan $
----------------
b. Availability after Loan $
----------------
3. Type of [Loan] [Conversion]
[Continuation] (check one): ___ Base Rate Loan
___ Eurodollar Loan
4. Date of [Loan] [Conversion]
[Continuation] __________, 19____
The undersigned hereby certifies to the Lender as follows:
(a) The representations and warranties set forth in Article 5 of the Loan
Agreement, the terms of which are incorporated herein by reference, are true and
correct in all material respects on and as of the date hereof except for such
changes in such representations and warranties which do not constitute a Default
or Event of Default under the Loan Agreement, which are not, individually or in
the aggregate, materially adverse to the assets, liabilities, financial
condition or results of operations of Borrower or any of its Subsidiaries and
which, to the extent required, have been disclosed to the Lender pursuant to
Section 6.2 of the Loan Agreement or otherwise; and
(b) On the date hereof, and after giving effect to the Loan requested
hereby, when aggregated with all of the other Loans currently outstanding, no
Default or Event of Default has occurred or is continuing.
Very truly yours,
UNCLE B'S BAKERY, INC.
By:
------------------------------
Title:
2
