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EXHIBIT 10.35
LOAN MODIFICATION AND FORBEARANCE AGREEMENT
This Loan Modification and Forbearance Agreement (this "Agreement") is entered
into as of October 28, 1998, by and between Fresh Choice, Inc. ("Borrower") and
Silicon Valley Bank ("Bank").
1. DESCRIPTION OF EXISTING INDEBTEDNESS: Among other indebtedness which may be
owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among other
documents, a Loan and Security Agreement, dated December 20, 1995, as may be
amended from time to time, (the "Loan Agreement"). The Loan Agreement provided
for, among other things, a Committed Line in the original principal amount of
Five Million Dollars ($5,000,000.00),(the "Revolving Facility"). The Loan
Agreement has been modified pursuant to, among other documents, an Amendment to
Loan and Security Agreement dated May 27, 1998, pursuant to which, among other
things, the Committed Line was decreased to Three Million Eight Hundred Fifty
Thousand Dollars ($3,850,000.00) subject to a Cap Amount. Defined terms used but
not otherwise defined herein shall have the same meanings as in the Loan
Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness".
2. DESCRIPTION OF COLLATERAL Repayment of the Indebtedness is secured by
Collateral as described in the Loan Agreement and a Third Party Security
Agreement dated December 20, 1995 (the "Security Agreement"), executed by
Xxxxxxx Design Corporation ("Pledgor"). Additionally, repayment of the
Indebtedness is secured by a Leasehold Deed of Trust and Assignment of Leases
and Rents, dated January 25, 1996, recorded as Document Number 199602260709 in
the Official Records of Sacramento County, California, a Leasehold Deed of Trust
and Assignment of Leases and Rents, dated January 25, 1996, recorded as Document
Number 199602260710 in the Official Records of Sacramento County, California, a
Leasehold Deed of Trust and Assignment of Leases and Rents, dated January 25,
1996, recorded as Document Number 199600158091 in the Official Records of Sonoma
County, California, a Leasehold Deed of Trust and Assignment of Leases and
Rents, dated January 25, 1996, recorded as Document Number 13210795, on Page
0410 of Book P226 in the Official Records of Santa Xxxxx County, California, and
two (2) Deeds of Trust (with Security Agreement and Assignment of Rents and
Leases), each dated December 20, 1995.
Hereinafter, the above-described security documents and guaranties, together
with all other documents securing repayment of the Indebtedness shall be
referred to as the "Security Documents". Hereinafter, the Security Documents,
together with all other documents evidencing or securing the Indebtedness shall
be referred to as the "Existing Loan Documents".
3. FORBEARANCE. Bank agrees to forebear from exercising its remedies under the
Existing Loan Documents through the Maturity Date so long as Borrower is in
compliance with the provisions of this Agreement, notwithstanding Borrower's
existing default under the Loan Agreement as a result of Borrower's failure to
comply with Profitability covenant as of the period ended September 6, 1998 (the
"Existing Defaults").
By signing below, Borrower acknowledges that they are currently in default and
as a result of such default, Bank is entitled to exercise its remedies as
provided in the Existing Loan Documents and as provided under applicable law,
Nothing in this Agreement in any way shall constitute Bank's waiver of
Borrower's Existing Defaults.
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A breach by Borrower of any of the terms set forth in this Agreement or the
occurrence of any default (other than the Existing Defaults) under the Existing
Loan Documents shall result in immediate termination of Bank's forbearance,
whereupon Bank, at its option, without any notice to Borrower, may immediately
cease making any Advances and may immediately exercise any remedies available to
Bank under the Existing Loan Documents, this Agreement, and under applicable
law.
Borrower hereby renounces and waives all rights that are waivable under Article
9 of the Code of any jurisdiction in which any Collateral may now or hereafter
be located. Without limiting the generality of the foregoing, Borrower hereby
(i) renounces any right to receive notice of any disposition by Bank of the
Collateral pursuant to Section 9-504(3) of the Code upon termination of the
forbearance, whether such disposition is by public or private sale under the
Code or otherwise, and (ii) waives any rights relating to compulsory disposition
of the Collateral pursuant to Sections 9-504 and 9-505 of the Code.
Borrower hereby agrees that if it shall (i) file with any bankruptcy court of
competent jurisdiction or be the subject of any petition under the Bankruptcy
Code, (ii) file or be the subject of any petition seeking any liquidation, or
similar relief under any present or future federal or state act or law relating
to bankruptcy, insolvency, or other relief for debtors, (iii) seek, consent to,
or acquiesce in the appointment of any trustee, receiver, conservator or
liquidation, or (iv) be the subject of any order, judgment or decree entered by
any court of competent jurisdiction approving a petition filed against Borrower
for any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future federal or state act
or law relating to bankruptcy, insolvency, or relief for debtors, Bank shall
thereupon be entitled to relief from any automatic stay imposed by Section 362
of the Bankruptcy Code, or from any other stay or suspension of remedies imposed
in any other manner with respect to the exercise of the rights and remedies
otherwise available to Bank under the Loan Agreement.
Bank's agreement to forbear from enforcing its remedies under the Existing Loan
Documents notwithstanding Borrower's Existing Defaults (a) in no way shall be
deemed an agreement by Bank to waive Borrower's compliance with all other terms
of the Existing Loan Documents, as modified by this Agreement and (b) shall not
limit or impair Bank's right to demand strict performance of all other terms and
covenants as of any date.
4. DESCRIPTION OF CHANGE IN TERMS.
A. Modification(s) to Loan Agreement.
1. The following definitions under Section 1.1 are hereby
amended to read as follows:
2. "Maturity Date" is March 26, 1999.
3. "Committed Line" is One Million Six Hundred Thirty Three
Thousand Five Hundred Dollars ($1,633,500); provided, however, Advances are
limited to One Million Two Hundred Eighty Three Thousand Five Hundred Dollars
($1,283,500) (the "Cap Amount"). Notwithstanding the foregoing, the Committed
Line shall proportionately decrease on a monthly basis in accordance with the
principal payments made in accordance with Section 2.3 (e).
4. The first sentence of Section 2.1 entitled "Revolving
Advances" is hereby amended to read, in its entirety, as follows:
Subject to and upon the terms and conditions of this
Agreement, Bank agrees to makes Advances to Borrower in an aggregate amount not
to exceed Committed Line.
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5. Section 2.3 (a) entitled "Interest Rates, Payments and
Calculations" is hereby amended to read, in its entirety, as follows:
Except as set forth in Section 2.3 (b), an Advances shall
bear interest, on an average Daily Balance, at a rate equal to Four (4.00)
percentage points above the Prime Rate, effective as of the date hereof.
6. Sub-Section (b) of Section 6.3 entitled "Financial
Statements, Reports, Certificates" is hereby amended in part as follows:
(b) as soon as available, but no later than 100 days after
the last day of Borrower's fiscal year, audited consolidated financial
statements prepared under GAAP, consistently applied, together with an
unqualified opinion on the financial statements from an independent certified
public accounting firm acceptable to Bank.
7. Section 6.9 entitled "Tangible Net Worth" is hereby amended
to read, in its entirety, as follows:
6.9 Tangible Net Worth. Borrower shall maintain, as of the
last day of each monthly period, a minimum Tangible Net Worth of $23,500,000,
reducing to $20,000,000 for the month ending December 28, 1998 and thereafter.
8. Section 6.15 entitled "Profitability" is hereby amended to
read, in its entirety, as follows:
6.15 Profitability. Borrower shall achieve profitability on
a quarterly basis, except that Borrower may incur losses for its fiscal year
ending 1998 not to exceed $6,000,000 and for the quarter ending March 18, 1999,
not to exceed $175,000.
9. Section 6.13 entitled "EBITDA" is hereby deleted in its
entirety.
10. Section 6.16 entitled "Clean Up Period" is hereby deleted in
its entirety.
11. Section 2.1.2 entitled "Cash Management Services Sublimit"
is hereby deleted in its entirety.
12. The definition "Borrowing Base" as provided in Section 1.1
is hereby deleted in its entirety.
13. The following paragraph is hereby incorporated into Section
2.3 entitled "Interest Rates, Payments, and Calculations":
(e) In addition to the monthly interest payments, Borrower
shall pay principal payments to Bank as follows: $53,500 due on October 31,
1998; $75,000 due on November 30, 1998; $150,000 due on December 31, 1998;
$335,000 due on January 31, 1999; $335,000 due on February 28, 1999; and
$335,000 due on March 26, 1999 at which time all unpaid interest and principal
will be due and payable in full.
5. PAYMENT OF LOAN FEE. Borrower shall pay to Bank a fee in the amount of One
Thousand Five Hundred and 00/100 Dollars ($1,500.00) (the "Loan Fee") plus all
out-of-pocket expenses associated with this Agreement.
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6. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
7. NO DEFENSES OF BORROWER. Borrower (and each guarantor signing below) agrees
that, as of this date, it has no defenses against the obligations to pay any
amounts under the Indebtedness.
8. CONTINUING VALIDITY. Borrower (and each guarantor signing below)
understands and agrees that in modifying the existing Indebtedness, Bank is
relying upon Borrower's representations, warranties, and agreements, as set
forth in the Existing Loan Documents. Except as expressly modified pursuant to
this Agreement, the terms of the Existing Loan Documents remain unchanged and in
full force and effect. Bank's agreement to modifications to the existing
Indebtedness pursuant to this Agreement in no way shall obligate Bank to make
any future modifications to the Indebtedness. Nothing in this Agreement shall
constitute a satisfaction of the Indebtedness. It is the intention of Bank and
Borrower to retain as liable parties all makers and endorsers of Existing Loan
Documents, unless the party is expressly released by Bank in writing. No maker,
endorser, or guarantor will be released by virtue of this Agreement. The terms
of this Paragraph apply not only to this Agreement, but also to all subsequent
loan modification agreements.
9. GENERAL WAIVER. In consideration of Bank agreeing to forbear from
exercising remedies and entering into this Agreement, Borrower, releases and
forever discharges Bank from any claim, liability, obligation, action and cause
of action, whether known or unknown which any of them, or any predecessor of
them, now owns or holds by reason of any matter done, omitted or suffered to be
done, prior to the date of this Agreement. This release runs in favor of Bank,
its parent, affiliate and subsidiary corporations, participant banks (if any)
its present and former officers, employees, agents, affiliates, and successors
in interest. In furtherance of the release contained in this section, Borrower
waives such rights as might otherwise exist pursuant to California Civil Code
Section 1542, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Borrower further warrants, represents and agrees: (i) that it has executed this
Agreement and release with full knowledge of any rights it may have with respect
to Bank and the other parties released; (ii) that Borrower has received
independent legal advice with respect to the matters set forth above and the
rights and assertive rights arising out of said matters; and (iii) that Borrower
has not relied upon any statement of fact or omission to state a fact by Bank,
or by any one acting on behalf of Bank, with respect to the matters covered by
this Agreement and release, and underlying disputes between the parties, except
for those acts represented by Bank as set forth in this Agreement.
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10. INTEGRATION. . This Agreement, together with the Existing Loan Documents,
constitutes the entire agreement and understanding among the parties relating to
the subject matter hereof, and supersedes all prior and contemporaneous
proposals, negotiations, agreements, and understandings relating to the subject
matter. In entering into this Agreement, Borrower acknowledges that it is
relying on no statement, representation, warranty, covenant, or agreement of any
kind made by the Bank or any employee or agent of Bank, except for the
agreements of Bank set forth herein. No modification, rescission, waiver,
release, or amendment of any provision of this Agreement shall be made, except
by a written agreement signed by Bank and Borrower.
11. CONDITIONS. The effectiveness of this Agreement is conditioned upon receipt
of Loan Fee.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
first date above written.
BORROWER: BANK:
FRESH CHOICE, INC. SILICON VALLEY BANK
By: /S/ Xxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
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Name: Xxxxx X. Xxxxx Name: Xxxx Xxxxxxx
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Title: Vice President - CFO Title: Vice President
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The undersigned hereby consents to the modifications to the Indebtedness
pursuant to this Agreement, hereby ratifies all the provisions of the Security
Agreement and confirms that all provisions of that document are in full force
and effect.
PLEDGOR:
XXXXXXX DESIGN CORPORATION Date: 10/30/98
By: /S/ Xxxxx X. Xxxxx ---------------
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Name: Xxxxx X. Xxxxx
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Title: Vice President, Chief Financial Officer and Treasurer
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