EXHIBIT 10.23
OVER ADVANCE AGREEMENT
THIS OVER ADVANCE AGREEMENT ("Agreement") is made as of the 17th day of
December, 1997, by and among UNCLE B'S BAKERY, INC., an Iowa corporation (the
"Borrower"), and CREDITANSTALT CORPORATE FINANCE, INC. (the "Lender").
W I T N E S S E T H:
WHEREAS, Borrower and the Lender are party to that certain Loan and
Security Agreement dated as of July 12, 1995, as amended (as amended, the "Loan
Agreement") pursuant to which the Lender made available to Borrower a revolving
credit facility permitting advances (each a "Revolving Credit Loan") of up to
One Million Five Hundred Thousand Dollars ($1,500,000) at any one time
outstanding and term loans having an aggregate outstanding principal balance, as
of the date hereof, of Seven Million Nine Hundred Thousand Dollars ($7,900,000);
WHEREAS, under the terms of the Loan Agreement, the Borrower is not
entitled to request or to receive any Revolving Credit Loans if either (a) there
then exists a Default or Event of Default (as defined in the Loan Agreement) or
(b) giving effect to such Revolving Credit Loan, the aggregate principal amount
of Revolving Credit Loans outstanding would exceed the Borrowing Base (as
defined in the Loan Agreement); and
WHEREAS, there currently exists one or more Events of Default under the
Loan Agreement and the aggregate principal amount of the Revolving Credit Loans
currently outstanding is equal to or in excess of the Borrowing Base and,
accordingly, Borrower has no right to request or receive any Revolving Credit
Loans under the Loan Agreement; and
WHEREAS, Borrower has requested that the Lender waive such Events of
Default and make additional loans to the Borrower (each such Loan being
hereinafter referred to as an "Over Advance") notwithstanding that the aggregate
principal amount of outstanding Revolving Credit Loans is in excess of the
Borrowing Base; and
WHEREAS, the Lender is willing to consider making such Over Advances,
in its sole discretion, subject to the terms and conditions contained herein;
NOW THEREFORE, to induce the Lender to make such Over Advances, in
consideration of the mutual covenants herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. RECITALS; DEFINED TERMS. The foregoing recitals are confirmed by the
parties as true and correct and are incorporated herein by reference. The
recitals are substantive and a contractual part of this Agreement. Capitalized
terms used herein without being defined shall have the meanings ascribed to such
terms in the Loan Agreement.
2. OVER ADVANCES. Borrower may request Over Advances from time to time
in accordance with the terms of Section 2.3 of the Loan Agreement up to an
aggregate cumulative amount of One Million Three Hundred Thousand Dollars
($1,300,000) (exclusive of capitalized
interest), provided that any such request shall also include a description of
how the Borrower will use the proceeds of such Over Advance. Borrower
acknowledges and agrees that (a) Over Advances will be made only in the Lender's
sole discretion and without any obligation of any kind or nature on the Lender's
part to make any requested Over Advance; (b) any and all Over Advances made by
the Lender shall be repayable on December 16, 1999 (the "Over Advance Maturity
Date") or, if earlier, upon the occurrence of a Change of Control or upon the
occurrence of a sale or transfer of all, or a substantial portion of, the
Borrower's assets; (c) the Over Advances shall bear interest as set forth in
paragraph 3 below; and (d) any and all Over Advances shall constitute Revolving
Credit Loans under the Loan Agreement (regardless of whether the sum of the
aggregate principal amount of the Revolving Credit Loans and the Over Advances
exceeds the Commitment), shall be included in the Obligations and shall be
secured by the Collateral. Although the Over Advances shall constitute Revolving
Credit Loans, the Over Advances, once borrowed and repaid, may not be
reborrowed, unless the Lender, in its sole discretion, agrees otherwise. Over
Advances shall be evidenced by a promissory note, in the form of Exhibit A
attached hereto, payable to the Lender in the amount of such Over Advances
(together with any and all amendments, modifications and supplements thereto,
and any renewals, replacements or extensions thereof, in whole or in part, the
"Over Advance Note").
3. (a) INTEREST. The average daily outstanding principal amount of the
Over Advances shall bear interest at a fixed rate of interest per annum equal to
twelve percent (12%), calculated daily on the basis of a 360 day year and actual
days elapsed. Of this,. interest accruing at a rate of three percent (3%) per
annum shall be payable as set forth in paragraph (b) below ("Non-Capitalized
Interest"), and interest accruing at a rate of nine percent (9%) per annum shall
be payable as set forth in paragraph (c) below ("Capitalized Interest").
(b) Non-Capitalized Interest shall be payable in arrears on the first
day of each month, for the preceding month.
(c) On the first day of each month, unless the Lender shall have
otherwise received payment of such accrued interest, Capitalized Interest shall
be paid by the deemed making of an advance from the Lender in an amount equal to
such accrued interest. All such deemed advances under this subsection (c) shall
be evidenced by a promissory note, substantially in the form of Exhibit B
attached hereto, payable to the Lender in the aggregate amount of all such
deemed advances (together with any and all amendments, modifications and
supplements thereto, and any renewals, replacements or extensions thereof, in
whole or in part, the "Over Advance Capitalized Interest Note"). The Lender
shall record each such deemed advance in its books and records, such records to
be prima facie evidence of amounts advances hereunder; PROVIDED, HOWEVER, that
the failure of the Borrower to so record such deemed advances shall in no way
affect the obligation of the Borrower to repay such deemed advances. For all
purposes under this Agreement, such deemed advances shall be treated as
additional principal of the Over Advances, and shall bear interest at the rate
then in effect for the Over Advances, and shall be repaid on the Over Advance
Maturity Date, or, if earlier, on such earlier date as the Over Advances may
become due and payable.
4. CONFIRMATION OF LOAN AGREEMENT TERMS. Except as set forth herein to the
contrary, all terms and conditions contained in the Loan Agreement applicable to
Revolving Credit Loans, which are hereby incorporated by reference in this
Agreement, shall apply to the
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Over Advances. Such terms and conditions include, among other things and without
limitation, the availability of acceleration of the Over Advances, and certain
other remedies, upon the occurrence and during the continuation of an Event of
Default.
5. REPRESENTATIONS AND WARRANTIES. In order to further induce the
Lender to execute this Agreement and to make Over Advances, Borrower hereby
warrants and represents to the Lender that:
(a) Borrower has the power and authority to enter into this
Agreement and to perform all of its obligations hereunder and the
execution and delivery of this Agreement have been duly authorized by
all necessary action (corporate or otherwise) on the part of Borrower;
(b) The execution and delivery of this Agreement and
performance thereof by Borrower does not and will not violate the
Articles of Incorporation, By-laws or other organizational documents of
Borrower and does not and will not violate or conflict with any law,
order, writ, injunction, or decree of any court, administrative agency
or other governmental authority applicable to Borrower or its
properties;
(c) This Agreement constitutes the valid and binding
obligation of Borrower, enforceable against Borrower in accordance with
its terms;
(d) no action or proceeding, including without limitation, a
voluntary or involuntary petition for bankruptcy under any chapter of
the Federal Bankruptcy Code, has been instituted or threatened by or
against Borrower or any Guarantor;
(e) all information provided by Borrower to the Lender prior
to the date hereof, including, without limitation, all financial
statements, balance sheets, and cash flow statements, was, at the date
of delivery, and is, as of the date hereof, true and correct in all
respects. Borrower recognizes and acknowledges that the Lender is
entering into this Agreement based in part on the information provided
to the Lender by Borrower and that the truth or correctness of that
information is a material inducement to the Lender in entering into
this Agreement. During the term of this Agreement, Borrower agrees to
advise the Lender promptly in writing of all new information, facts, or
occurrences which would in any way materially supplement, contradict,
or affect any information previously furnished to the Lender.
6. LIMITATION OF AGREEMENT. Except as expressly set forth herein, this
Agreement shall not be deemed to waive, amend or modify any term or condition of
the Loan Agreement or any 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, nor to
waive any existing Default or Event of Default thereunder. In addition, nothing
contained herein shall limit, impair or affect the right of the Lender to
exercise any of its rights and remedies arising with respect to such existing
Defaults and Events of Default, all of which may be exercised at any time and
from time to time in the Lender's sole discretion.
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7. NO CLAIMS; OFFSET. Borrower hereby represents, warrants,
acknowledges and agrees to and with the 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 the 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
the Lender in connection therewith, including without limitation, usury claims
or claims arising in tort or in contract by Borrower and that arise out of any
one or more circumstances or events that occurred prior to the date of this
Agreement; (b) excepted as expressly set forth in this Agreement, there has been
no mutual departure from the terms and conditions of the Loan Agreement and the
Loan Documents; and (c) the Obligations are absolutely owed to the Lender,
without offset, deduction or counterclaim.
8. WAIVERS. Borrower hereby waives (a) any and all rights to other
notice of payment default or any other default, protest and notice of protest,
dishonor, diligence in collecting and bringing of suit against any party, and
any other similar notice whatsoever regarding the Obligations; (b) any claims
that any notices previously given are insufficient for any reason; and (c) any
and all claims now or hereafter arising from or related to any delay by the
Lender in exercising any rights or remedies under the Loan Documents, including,
without limitation, any delay in foreclosing on the Collateral or the Realty or
any other collateral securing the Obligations.
9. CONDITIONS PRECEDENT. As a condition precedent to the making of Over
Advances by the Lender pursuant to this Agreement, the Lender shall have
received the following agreements, documents and instruments, each duly executed
and delivered by Borrower in favor of the Lender, and each in form and substance
satisfactory to the Lender:
(a) the Waiver and Fourth Amendment to Loan and Security
Agreement, of even date herewith, between the Borrower and the Lender
(the "Fourth Amendment");
(b) the Over Advance Note, dated the date hereof and executed
by the Borrower in favor of the Lender;
(c) the Over Advance Capitalized Interest Note, dated the date
hereof and executed by the Borrower in favor of the Lender;
(d) a Certificate of No Default and Related Matters, dated as
of the date hereof and executed by an officer of the Borrower;
(e) A certificate of the Secretary of Borrower (i) attaching
thereto a complete copy of Resolutions adopted by the Board of
Directors of Borrower authorizing the execution, delivery and
performance of this Agreement, the Fourth Amendment, and the other
instruments, documents or agreements to be executed pursuant thereto or
in connection herewith or therewith, and such other and further
documents as are reasonably requested by the Lender to protect its
security interest in the Collateral, (ii) certifying as to the
Borrower's By-Laws and Articles of Incorporation, and (iii) certifying
as to the incumbency and genuineness of the signatures of the officers
of Borrower executing this
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Agreement, the Fourth Amendment, and any other instruments, documents
or agreements executed in connection herewith or therewith; and
(f) an Opinion of Counsel of Xxxxxx & Xxxxxxx LLP as to this
Agreement, the Fourth Amendment, and the documents, agreements and
instruments to be executed in connection therewith; and
(g) All such further, instruments, documents or agreements as
the Lender shall request in connection with this Agreement.
10. MISCELLANEOUS.
(a) This Agreement may be executed in a number of identical
counterparts which, taken together, shall constitute collectively one
(1) agreement; but in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart
executed by the party to be charged.
(b) Any future waiver, alteration, amendment or modification
of any of the provisions of this Agreement shall not be valid or
enforceable unless in writing and signed by all parties, it being
expressly agreed that neither the Loan Agreement, the Loan Documents,
nor this Agreement can be modified orally, by course of dealing or by
implied agreement. Moreover, any delay by the Lender in enforcing its
rights after an Event of Default shall not be a release or waiver of
the Event of Default and shall not be relied upon by the Borrower as a
release or waiver of the Event of Default.
(c) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, their heirs, executors,
administrators, successors, legal representatives and assigns.
(d) The headings of paragraphs in this Agreement are for
convenience of reference only and shall not in any way affect the
interpretation or construction of this Agreement.
(e) The warranties and representations of the parties to this
Agreement shall survive the execution and delivery of this Agreement.
11. FINAL AGREEMENT. THIS AGREEMENT, TOGETHER WITH THE AGREEMENTS,
DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH AND THE LOAN AGREEMENT
AND THE LOAN DOCUMENTS AS IN EFFECT AS OF THE DATE HEREOF, REPRESENTS THE FINAL
AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR ORAL OR WRITTEN, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENT AMONG THE PARTIES.
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12. GOVERNING LAW; JURISDICTION. THIS AGREEMENT, 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. THE BORROWER 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
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT;
(B) AGREES THAT SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK SHALL APPLY TO THIS AGREEMENT; AND (C) IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT 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 LENDER TO BRING PROCEEDINGS AGAINST
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
13. WAIVER OF JURY TRIAL. AFTER REVIEWING THIS PROVISION SPECIFICALLY
WITH ITS RESPECTIVE COUNSEL, BORROWER AND THE LENDER EACH 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 AGREEMENT, THE TRANSACTIONS CONTEMPLATED
HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN), OR ACTIONS OF BORROWER OR THE LENDER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDER TO ENTER INTO THIS AGREEMENT WITH BORROWER.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.
UNCLE B'S BAKERY, INC.
By: /s/ Xxxxxxx X. Xxxx, Xx.
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Attest: /s/ Wm. Xxxxxx XxXxxxxxx, Xx.
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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
FORM OF
OVER ADVANCE NOTE
$1,300,000.00 GREENWICH, CONNECTICUT
DECEMBER __, 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 referred to as the
"Holder"), at the office of Creditanstalt Corporate Finance, Inc. 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 XXX XXXXXXX
XXXXX XXXXXXX XXXXXXXX XXX 00/000 Xxxxxx Xxxxxx Dollars (U.S. $1,300,000) or, if
less, the aggregate outstanding principal amount of Over Advances, as such term
is defined in the Over Advance Agreement referred to hereinbelow, made or issued
by Holder to Maker, in lawful money of the United States, payable in full on the
Over Advance 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 that certain Over Advance Agreement dated as of December ___, 1997 (as the
same has been, and as the same may be further amended, restated, supplemented or
otherwise modified from time to time, the "Over Advance Agreement"; capitalized
terms contained herein and not otherwise defined herein shall have the
respective meanings given to such terms in the Loan Agreement) by and among
Maker and Holder. 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.
The date and amount of each Over Advance made by the Holder to the
Maker of this Note under the Over Advance Agreement, and each payment of
principal thereof, shall be recorded by Holder on its books and, prior to any
transfer of this Note, endorsed by Holder on the Schedule attached hereto or on
any continuation thereof.
This Note is the "Over Advance Note" referred to in the Over Advance
Agreement, and is subject to all of the terms and conditions of the Over Advance
Agreement, and that certain Loan and Security Agreement dated as of July 12,
1995 between the Maker and the Holder, as amended (as so amended, and as further
amended, the "Loan Agreement"), including, but not limited to, those related to
the acceleration of the indebtedness represented hereby upon the occurrence of
an Event of Default. Payment of this Note is secured by the Collateral, the
Realty and the Additional Realty.
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 of 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 PURPOSES 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 AND ANY CLAIM THAT 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.
AFTER REVIEWING THIS PROVISION SPECIFICALLY WITH ITS COUNSEL, 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.
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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.
"MAKER"
UNCLE B'S BAKERY, INC.
By:
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Title:
Attest:
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Title:
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Schedule to
Over Advance Note
Dated as of December ___, 1997
PRINCIPAL PRINCIPAL
AMOUNT OF INTEREST AMOUNT OF OUTSTANDING
DATE OVER ADVANCES RATE PAYMENT BALANCE
---- ------------- -------- --------- -----------
EXHIBIT B
FORM OF OVER ADVANCE
CAPITALIZED INTEREST NOTE
GREENWICH, CONNECTICUT
AS OF DECEMBER ___, 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 advances deemed made to the Holder in
respect of Capitalized Interest, as such term is defined in the Over Advance
Agreement referred to below, payable on the Over Advance Maturity Date, as
defined in the Over Advance 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 Over Advance Agreement. 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 (i) the Over
Advance Agreement dated as December __, 1997, between Holder and Maker (as
amended from time to time, the "Over Advance Agreement"), and (ii) the Loan and
Security Agreement dated as of July 12, 1995, between Holder and Maker (as
amended from time to time, 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).
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.
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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.
"MAKER"
UNCLE B'S BAKERY, INC.
By:
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Title:
Attest:
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Title:
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