Exhibit 10.18
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "Amendment") is made
and entered into the 15/th /day of November, 1996 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 :
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WHEREAS, Borrower and Lender are parties to a certain Loan and Security
Agreement, dated as of July 12, 1995 (the "Loan Agreement"), which currently
provides for a term loan in the original principal amount of Six Million Nine
Hundred Thousand Dollars ($6,900,000) and for a revolving credit facility from
Lender to Borrower in the aggregate principal amount of up to One Million Five
Hundred Thousand Dollars ($1,500,000) at any one time outstanding;
WHEREAS, the Loan Agreement was amended October 28, 1996 pursuant to the
Waiver and First Amendment to the Loan and Security Agreement;
WHEREAS, Borrower has requested that Lender make an additional loan under
the Loan Agreement in the principal amount of Two Hundred Fifty Thousand Dollars
($250,000), thereby increasing the aggregate principal amount outstanding under
the term facility; 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 "Base Lending Rate" in its entirety and substituting in lieu
thereof a new definition of "Base Lending Rate" to read as follows:
"Base Lending Rate" shall mean an interest rate per annum,
fluctuating daily, equal to the higher of (a) a rate announced by
Creditanstalt-Bankverin from time to time at its principal office in
Greenwich, Connecticut, as its prime date for domestic (United States)
commercial loans in effect on such date; (b) the Federal Funds Rate in
effect on such date plus one-half percent (1/2%). The Base Lending
Rate is not necessarily intended to be the lowest rate of interest
charge by Creditanstalt-Bankverin in connections with extension of
credit. Each change in
the Base Lending Rate shall result in the corresponding change in the
interest rates hereunder with respect to a Base Rate Loan and such
change shall be effective on the effective date of such change in the
Base Lending Rate.
2.2 Section 1.1 of the Loan Agreement is hereby further amended by
deleting the definition of "Business Day" in its entirety and substituting in
lieu thereof a new definition of "Business Day" to read as follows:
"Business Day" shall mean a day on which Banks are not required
or authorized to close in Greenwich, Connecticut and, if such day
relates to a borrowing of, a payment or prepayment of principal or
interest on a Continuation or Conversion of or into, or an Interest
Period for a Eurodollar Loan or a notice by Borrower with respect to
any such borrowing, payment, prepayment, Continuation, Conversion or
Interest Period, which is also a day on which dealings by and between
banks in U.S. dollar deposits are carried out in the interbanks
Eurodollar market.
2.3 Section 1.1 of the Loan Agreement is hereby further amended by
deleting the definition of "Creditanstalt-Bankverein" in its entirety and
substituting in lieu thereof a new definition of "Creditanstalt-Bankverein" to
read as follows:
"Creditanstalt-Bankverin" shall mean Creditanstalt-Bankverin, an
Austrian Banking Corporation, having offices at 0 Xxxxxxxxx Xxxxx,
0/xx/ Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, and its successors and
assigns.
2.4 Section 1.1 of the Loan Agreement is hereby further amended by
deleting the definition of "Federal Funds Rate" in its entirety and substituting
in lieu thereof a new definition of "Federal Funds Rate" to read as follows:
"Federal Funds Rate" shall mean, for any day, the overnight Federal Funds
Rate in Greenwich, Connecticut, as published for such day (or, if such day is
not a Connecticut Business Day, for the next proceeding Business Day) in the
Federal Reserve Statistical Release H.15(519) or any successor publication, or
if such rate is not so published for any day which is a Connecticut Business
Day, the average of the quotations for such day on over night Federal Funds
transactions in Connecticut received by the Lender from three Federal Funds
Brokers of recognized standing collected by the Lender.
2.5 Section 1.1 of the Loan Agreement is hereby further amended by
deleting the definition of "Quoted Rate" in its entirety and substituting in
lieu thereof a new definition of "Quoted Rate" to read as follows:
"Quoted Rate" shall mean, when used with respect to an Interest
Period for a Eurodollar Loan, the quotient of (i) the offered rate
quoted by Creditanstalt-Bankverin in the interbank in the Eurodollar
market in Greenwich, Connecticut or
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London, England on or about 11:00 a.m. (prevailing Eastern or London
time, as the case may be) two Business Days prior to such Interest
Period for U.S. dollar deposits in an aggregate amount comparable to
the principal amount of the Eurodollar Loan to which the Quoted Rate
is to be applicable and for a period comparable to such Interest
Period, divided by (ii) one minus the Reserved Percentage. For
purposes of this definition, (a) "Reserved Percentage" shall mean with
respect to any Interest Period, the percentage which is in effect on
the first day of such Interest Period under Regulation D as the
maximum reserved requirement from member banks of the Federal Reserve
System in Greenwich, Connecticut with deposits comparable an amount to
those of Creditanstalt-Bankverin against Eurocurrency Liabilities (b)
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D, as in effect from time to time. The Quoted Rate for the
applicable period shall be adjusted automatically on as of the
effective date of any change in the applicable Reserved Percentage.
2.6 Section 1.1 of the Loan Agreement is hereby further amended by
inserting the following new definitions in their correct alphabetical order:
"Additional Term Loan" shall have the meaning given such term in
Section 2.2 hereof.
"Original Term Loan" shall have the meaning given such term in
Section 2.2 hereof.
2.7 Section 2.2 of the Loan Agreement is hereby further amended by
deleting Section 2.2 thereof in its entirety and by substituting therefor a new
Section 2.2 to read as follows:
2.2 TERM LOAN.
(a) The Lender made Term Loans (the "Original Term Loan")
to Borrower in the principal amount of Six Million Nine Hundred
Thousand Dollars ($6,900,000), the outstanding principal balance of
which is $6,900,000 as of the date hereof. Subject to the terms and
conditions hereof and provided there exists no Default or Event of
Default, Lender agrees to make an additional Term Loan (the
"Additional Term Loan") to Borrower in an amount equal to Two Hundred
Fifty Thousand Dollars ($250,000), which Additional Term Loan shall be
(i) disbursed on the date hereof (ii) consolidated with the Original
Term Loan, (the Original Term Loan and the Additional Term Loan, as so
consolidated, being hereinafter referred to as the "Term Loan") in a
principal amount of Seven Million One Hundred and Fifty Thousand
Dollars ($7,150,000). The Term Loan shall be evidenced by a promissory
note, substantially in the form of Exhibit A attached hereto, payable
to Lender in the principal amount of $7,150,000 (together with any and
all amendments, modifications and supplements thereto, and any
renewals, replacements or extensions thereof, in whole or in part, the
"Term Note").
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(b) The principal amount of the Term Loan shall be
repayable in twenty (20) quarterly installments of principal, payable
on each Amortization Date, commencing August 1, 1997, with the first
nineteen (19) such installment each being in the amount of to One
Hundred Seventy Eight Thousand Seven Hundred Fifty Dollars ($178,750)
and the twentieth (20/th/) such installment being in an amount equal
to the outstanding principal balance thereof, payable on the Final
Maturity Date.
2.8 Section 2.3 of the Loan Agreement is hereby amended by deleting
such section in its entirety and substituting the following new Section 2.3 in
lieu thereof:
2.3 BORROWING PROCEDURES. Borrower shall give the Lender notice
of each request for loan hereinunder in accordance with Section 2.11.
The Lender shall, subject to the terms and conditions of this
Agreement, not later than 2:00 p.m. (prevailing Eastern time) on the
Business Day specified for such borrowing, make such amount available
to Borrower in same day funds at the principal office of
Creditanstalt-Bankverin or at such other place in the continental
United States as Lender shall designate.
2.9 Section 2.9(a) of the Loan Agreement is hereby amended by
deleting such section in its entirety and substituting the following new Section
2.9(a) in lieu thereof:
(a) Each payment by the Borrower to Lender pursuant to this
Agreement or the Notes shall be made prior to 1:00 p.m. (prevailing
Eastern time) on the date due and shall be made without set-off-or
counterclaim to the account of the Lender maintained with
Creditanstalt-Bankverin in Greenwich, Connecticut or at such other
place or places as Lender may designate from time to time in writing
to Borrower. Each such payment shall be in lawful currency of the
United States of America in immediately available funds.
2.10 Section 2.11 of the Loan Agreement is hereby amended by deleting
the reference to "New York" time contained in the seventh and eighth line
thereof and replacing it with a reference to "prevailing Eastern" time.
2.11 The Loan Agreement is hereby further amended by deleting Exhibit
C, the Form of Term Note, attached thereto and substituting a new Exhibit C
thereto in the form of Exhibit A attached hereto and incorporated herein by
reference.
2.12 The Loan Agreement is hereby further amended by deleting
Schedule 5.5 of the Loan Agreement in its entirety and substituting a new
Schedule 5.5 in the form of Schedule 5.5 attached hereto and incorporated by
reference.
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3. 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.
4. 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.
5. 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.
6. NO MATERIAL ADVERSE CHANGE. Since September 30, 1996, 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.
7. CONDITIONS PRECEDENT. This Amendment shall not become effective
unless and until 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 A attached hereto;
(c) a certificate signed by the president and chief financial officer of
Borrower, stating that, giving effect to this Amendment, the
representations and warranties set forth in Article 5 of the Loan
Agreement are true and correct in all material respects on the date
hereof, Borrower is on the date hereof in compliance with all the
terms and conditions set forth in the Loan Agreement, as amended
hereby, and the Loan Documents on its part to be observed, performed,
and on the date hereof, after giving effect to this Amendment, no
Default or Event of Default has occurred or is continuing;
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(d) 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 and the other
documents contemplated hereby;
(e) the written opinion of Xxxxxx & Xxxxxxx, L.L.P., counsel to Borrower,
in the form and substance satisfactory to Lender;
(f) 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.
8. 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.
9. 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.
10. 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.
11. 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.
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12. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and any party hereto may execute any counterpart, each of which,
when executed and delivered, will be deemed to be an original and all of which,
taken together, will be deemed to be but one and the same agreement. Any
signature page to this Amendment may be witnessed by a telecopy or 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.
13. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.
14. 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.
15. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment under
seal as of the date first written above.
"BORROWER"
UNCLE B' BAKERY, INC.
By: /s/ Xxxxxxx X. Xxxx, Xx.
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Xxxxxxx X. Xxxx, Xx.
President
Attest: /s/ Wm. Xxxxxx XxXxxxxxx, Xx.
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Wm. Xxxxxx XxXxxxxxx, Xx.
Secretary
[Signatures Continued On Next Page]
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[Signatures Continued From Previous Page]
"LENDER"
CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Executive Vice President
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
Senior Associate
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EXHIBIT A
TO SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
DATED AS OF NOVEMBER 15, 1996
FORM OF TERM NOTE
$7,150,000 GREENWICH, CONNECTICUT
AS OF _____________, 1996
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 twenty (20) quarterly installments of principal,
payable on each Amortization Date, as defined in the Loan Agreement referred to
below, commencing August 1, 1997 with the first nineteen (19) such installments
each being in an amount of One Hundred Seventy Eight Thousand Seven Hundred and
Fifty Dollars ($178,750) and the twentieth (20/th/) 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, in part, a replacement note for that certain Promissory
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 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.
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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.
UNCLE B'S BAKERY, INC., an Iowa
corporation
/s/ Xxxxxxx X. Xxxx, Xx.
By: Xxxxxxx X. Xxxx, Xx.
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Title: President
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Attest: /s/ Wm. Xxxxxx XxXxxxxxx, Xx.
Wm. Xxxxxx XxXxxxxxx, Xx.
---------------------------------
Title: Secretary
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