Exhibit 4.1
FIRST AMENDMENT AND CONSENT
TO
SECURED REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT AND CONSENT (this "Amendment") dated as of October 24,
1997, is entered into by and among BOSTON CHICKEN, INC., a Delaware corporation
(the "Borrower"), the lenders who are party to the Credit Agreement referred to
below (the "Lenders"), BANKERS TRUST COMPANY, as Documentation Agent (herein, in
such capacity, the "Documentation Agent"), and BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION (as successor by merger to Bank of America Illinois), as
Agent for the Lenders (herein, in such capacity, the "Agent").
W I T N E S E T H:
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WHEREAS, the Borrower, the Lenders, the Documentation Agent and the Agent
are parties to that certain Secured Revolving Credit Agreement dated as of
December 9, 1996 (the "Credit Agreement"; terms used but not otherwise defined
herein are used herein as defined in the Credit Agreement);
WHEREAS, the Borrower has entered into that certain Master Lease Agreement
No. 2, dated as of December 9, 1996 (as amended, the "1996 Master Lease
Agreement"), between the Borrower and General Electric Capital Corporation, for
itself and as agent for the Lease Participants referred to below (in its
individual capacity, "GECC"; and in such dual capacity the "Lease Agent");
WHEREAS, subject to the terms and conditions of the 1996 Master Lease
Agreement, GECC has heretofore and may hereafter convey to certain financial
institutions (collectively with GECC, the "Lease Participants") participating
interests in its rights, duties and obligations under the 1996 Master Lease
Agreement;
WHEREAS, concurrently with the execution and deliver of the Credit
Agreement and the 1996 Master Lease Agreement, the Borrower, the Agent and the
Lease Agent entered into that certain Facilities Agreement and that certain
Intercreditor Agreement,
each dated December 9, 1996 (respectively, the "Existing Facilities Agreement"
and the "Existing Intercreditor Agreement");
WHEREAS, the Borrower has requested that: (1) the Credit Agreement be
amended in certain respects; (2) the Existing Facilities Agreement be amended
and restated to read in its entirety as set forth in Attachment III hereto; and
(3) the Existing Intercreditor Agreement be amended and restated to read in its
entirety as set forth in Attachment IV hereto;
WHEREAS, subject to the terms and conditions set forth herein the Agent,
the Documentation Agent and the Lenders are willing to undertake certain
amendments to the Credit Agreement and to consent to the amendment and
restatement of the Existing Facilities Agreement and the Existing Intercreditor
Agreement.
NOW, THEREFORE, in consideration of the premises, and intending to be
legally bound hereby, the Borrower, the Agent, the Documentation Agent and the
Lenders hereby agree as follows:
SECTION 1. AMENDMENT.
Upon receipt of the documents to be delivered by the Borrower pursuant to
Section 3 below, and in reliance on the Borrower's warranties set forth in
Section 4 below, the Credit Agreement is hereby amended as follows:
1.1 The title page and the preamble to the Credit Agreement are hereby
amended by deleting each reference therein to "Bank of America Illinois" and in
its place substituting "Bank of America National Trust and Savings Bank."
1.2 The Credit Agreement is hereby amended by deleting each reference
therein to "BAI" and in its place substituting "BofA."
1.3 Section 1.1 of the Credit Agreement is hereby amended by deleting the
definition of "BAI."
1.4 Section 1.1 of the Credit Agreement is hereby further amended by
amending the definitions of "Head Office," "Loan Documents," "Mortgage," "Pledge
Agreement" and "Total Commitment Amount" to read in their entirety as follows:
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"Head Office" means the office of BofA at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"Loan Documents" means this Agreement, the Revolving Notes, the Facilities
Agreement, each Guaranty, the Mortgages, each LC Application and all other
agreements, instruments and documents delivered from time to time to the Agent
or the Issuing Lender with respect to this Agreement or with respect to any
liabilities arising in connection herewith, as the same may be amended,
supplemented, modified, restated or renewed from time to time.
"Mortgage" means a mortgage or deed of trust substantially in the form of
Exhibit E attached hereto with respect to any parcel of real property referenced
on Schedule IV hereto and designated with an "*" executed by BCRE in favor of
the Agent (i) in the case of a Mortgage covering either Tranche A Collateral or
Tranche C Collateral, for the benefit of itself and the Lenders, and (ii) in the
case of a Mortgage covering Tranche B Collateral, for the benefit of itself and
the Creditors generally.
"Pledge Agreement" has the meaning specified in the Facilities Agreement.
"Total Commitment Amount" means the sum of all Lenders' Commitments, it
being understood that on October 24, 1997, the Total Commitment Amount is
$85,000,000; provided, that in no event shall the "Total Commitment Amount"
exceed $150,000,000.
1.5 Section 1.1 of the Credit Agreement is hereby further amended by adding
the following definition in its appropriate alphabetical order:
"BofA" means Bank of America National Trust and Savings Association.
1.6 Sections 7.2 and 7.3 to the Credit Agreement are deleted in their
entirety and in their respective places is substituted the following:
"[Reserved]"
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1.7 Clause (7) of Section 8.1 to the Credit Agreement is deleted in its
entirety.
1.8 Schedule I to the Credit Agreement as amended to read in its entirety
as set forth on Attachment I hereto.
1.9 Schedule II to the Credit Agreement is amended to read in its entirety
as set forth on Attachment II hereto.
1.10 Exhibit F to the Credit Agreement is deleted in its entirety.
1.11 Exhibit I to the Credit Agreement is amended to read in its entirety
as set forth on Attachment III hereto.
1.12 Exhibit J to the Credit Agreement is amended to read in its entirety
as set forth on Attachment IV hereto.
SECTION 2. CONSENT.
Upon receipt of the documents to be delivered by the Borrower pursuant to
Section 3 below, and in reliance on the Borrower's warranties set forth in
Section 4 below, the Lenders hereby consent to the amendment and restatement of
the Existing Facilities Agreement and the Existing Intercreditor Agreement to
read in their entireties as set forth on Attachments III and IV hereto,
respectively.
SECTION 3. CERTAIN DOCUMENTS.
Concurrently herewith the Borrower has delivered the following to BofA in
its capacity as Agent and as Common Collateral Agent (as such term is defined in
the Facilities Agreement), each duly executed and appropriately dated and in
form and substance satisfactory to the Agent and the Common Collateral Agent.
(1) This Amendment. This Amendment duly executed by the Borrower, the
Lenders, the Agent, the Documentation Agent and the Issuing Lender;
(2) Facilities Agreement. The Amended and Restated Facilities Agreement in
the form of Attachment III hereto duly executed by the Borrower, the Agent,
the Lease Agent and the Common Collateral Agent;
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(3) Intercreditor Agreement. The Amended and Restated Intercreditor
Agreement in the form of Attachment IV hereto duly executed by the
Borrower, the Agent, the Lease Agent and the Common Collateral Agent;
(4) Guaranty. A Guaranty duly executed by each Restricted Subsidiary of
the Borrower, or in the event such Restricted Subsidiary has heretofore
executed and delivered a Guaranty, then a re-affirmation of its existing
Guaranty;
(5) Security Agreement. A Security Agreement (as such term is defined in
the Facilities Agreement) duly executed by the Borrower and each Restricted
Subsidiary, together with all schedules thereto;
(6) Collateral Assignment of Loan. A Collateral Assignment of Loan (as
such term is defined in the Facilities Agreement) covering each set of
Financed Franchisee Loan Documents and each set of Financed Subsidiary Loan
Documents set forth on Schedule 2.18 of the Facilities Agreement, duly
executed by the Borrower;
(7) Trademark Security Agreement. A Trademark Security Agreement (as such
term is defined in the Facilities Agreement) duly executed by the Borrower
and Progressive Food Concepts, Inc., together with all schedules thereto;
(8) Pledge Agreement. The Pledge Agreement, duly executed by the Borrower
and each Restricted Subsidiary which is reflected on Schedule 2.16 to the
Facilities Agreement as owning equity interests or holding promissory notes,
together with (a) the promissory notes and certificates (including blank
undated stock powers covering such certificates) subject thereto, and (b) if
any interests pledged pursuant to the Pledge Agreement are uncertificated
securities, confirmation and evidence satisfactory to the Common Collateral
Agent that the security interest in such uncertificated securities has been
transferred to and perfected by the Common Collateral Agent for the benefit of
the Creditors in accordance with the Uniform Commercial Code, as in effect in
the relevant jurisdiction;
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(9) UCC Financing Statements. Such financing statements (UCC-1's) duly
executed by the Borrower and each Restricted Subsidiary as the Common
Collateral Agent deems necessary or advisable to perfect in accordance with
applicable law the Liens of the Common Collateral Agent for the benefit of the
Creditors arising under the Security Agreement, the Collateral Assignment of
Loan and the Pledge Agreement;
(10) Certificate of the Borrower. A certificate or certificates of the
Secretary or Assistant Secretary of the Borrower certifying: (a) a copy of the
Certificate of Incorporation of the Borrower, as theretofore amended; (b) a
copy of the bylaws of the Borrower, as theretofore amended; (c) copies of all
corporate action taken by the Borrower, including resolutions of its board of
directors, authorizing the execution, delivery, and performance of this
Amendment by the Borrower and each other instrument and document to be
delivered by the Borrower pursuant to this Amendment; and (d) the names and
true signatures of the officers of the Borrower authorized to sign this
Amendment and the other instruments and documents to be delivered by the
Borrower under this Amendment;
(11) Certified Charter and Good Standing. A certificate of the due
incorporation, legal existence and good standing of the Borrower in its state
of incorporation, issued by the appropriate authorities of such jurisdiction,
and certificates of Borrower's good standing and due qualification to do
business, issued by appropriate officials in any states in which the failure
to so qualify would result in a Material Adverse Change;
(12) Certificate. A certificate or certificates of the Secretary or
Assistant Secretary of each Restricted Subsidiary certifying: (a) a copy of
the organizational documents of such Restricted Subsidiary, as theretofore
amended; (b) copies of all corporate action taken by such Restricted
Subsidiary, authorizing the execution, delivery and performance by such
Restricted Subsidiary of each document to be delivered by such Restricted
Subsidiary pursuant to this Amendment; and (c) the names and true signatures
of the
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officers of such Restricted Subsidiary authorized to sign the documents to be
delivered by such Restricted Subsidiary under this Amendment;
(13) Certified Charter and Good Standing. A certificate of the due
organization, legal existence and good standing of each Restricted Subsidiary
in its state of organization, issued by the appropriate authorities of such
jurisdiction, and certificates of such Restricted Subsidiary's good standing
and due qualification to do business, issued by appropriate officials in any
states in which the failure to so qualify would result in a Material Adverse
Change;
(14) Opinion of counsel for the Borrower. Opinions of (i) Holme ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, special counsel for the Borrower and each Restricted Subsidiary,
(ii) ▇▇▇▇ ▇. ▇▇▇▇, Esq., general counsel to the Borrower and each Restricted
Subsidiary (other than Progressive Food Concepts, Inc.), and (iii) ▇▇▇▇▇▇▇
▇▇▇▇▇▇, Esq., general counsel to Progressive Food Concepts, Inc., in
substantially the form of Attachments V, VI and VII attached hereto,
respectively, and as to such other matters as the Agent, the Common Collateral
Agent and their counsel may reasonably request;
(15) Insurance. Evidence that the Common Collateral Agent has been named as
loss payee under all policies of casualty insurance, and as additional insured
under all policies of liability insurance, required by any Common Collateral
Document (as such term is defined in the Facilities Agreement);
(16) Conversion Moratorium Waivers. Evidence satisfactory to the Common
Collateral Agent that the conversion moratorium set forth in the Financed
Franchise Loan Documents has been waived or otherwise expired by its terms
with respect to not less than eight of the existing Financed Franchisees.
(17) Amendment Fee. An amendment fee payable to each Lender executing this
Amendment in the amount heretofore agreed upon by the Borrower, the Agent and
the Lenders; and
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(18) Miscellaneous. Such other approvals, opinions or documents as the
Agent or the Common Collateral Agent may reasonably request.
SECTION 4. WARRANTIES.
To induce the Agent, the Documentation Agent and the Lenders to enter into
this Amendment, the Borrower warrants to the Agent, the Documentation Agent and
the Lenders as of the date hereof that:
(a) The representations and warranties contained in the Credit Agreement
and Loan Documents are true and correct in all material respects on and as of
the date hereof (except to the extent such representations and warranties
expressly refer to an earlier date); and
(b) No Default or Event of Default has occurred and is continuing.
SECTION 5 GENERAL.
(a) As hereby modified, the Credit Agreement shall remain in full force
and effect and is hereby ratified, approved and confirmed in all respects.
(b) The Borrower affirms its obligations under Section 10.6 of the Credit
Agreement and Section 7.5 of the Facilities Agreement and agrees to pay on
demand all reasonable costs and expenses of the Agent and the Common
Collateral Agent in connection with the preparation, execution, delivery and
filing of this Amendment and all instruments and documents delivered in
connection herewith.
(c) This Amendment shall be binding upon and shall inure to the benefit of
the Borrower, the Lenders, the Agent, the Documentation Agent, and respective
successors and assigns of the Lenders, the Documentation Agent and the Agent.
(d) This Amendment may be executed in any number of counterparts and by
the different parties on separate counterparts, and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Amendment.
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* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above
BOSTON CHICKEN, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Title: Vice-President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
Title: Vice President
--------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Issuing
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Title: Managing Director
--------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, in its
individual corporate capacity as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Title: Managing Director
-------------------
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BANKERS TRUST COMPANY, as Documentation Agent and
in its individual corporate capacity as a Lender
By:
-----------------------------
Title:
--------------------------
BANK BUMIPUTRA
By: /s/ Mohd. ▇▇▇▇▇ ▇▇▇ Abdullah
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Title: Assistant General Manager,
Credit Treasury
--------------------------
BANCO POPULAR DE PUERTO RICO
By: /s/ ▇▇▇▇▇▇ ▇▇▇
-----------------------------
Title: Vice President
--------------------------
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Vice President
--------------------------
LASALLE NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title: Assistant Vice President
--------------------------
THE MITSUBISHI TRUST AND BANKING
CORPORATION, Chicago Branch
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title: Chief Manager
---------------------------
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SAKURA BANK
By: /s/ Ofuso Sato
------------------------------
Title: Senior Vice President &
Assistant General Manager
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ATTACHMENT I
SCHEDULE I
Commitments ((S) 1.1)
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Commitment A $23,227,100
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Commitment B $58,074,500
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Commitment C $ 3,698,400
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ATTACHMENT II
SCHEDULE II
Percentages ((S)1.1)
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Lender Commitment Percentage
------ ---------- ----------
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Bank of America Illinois $19,318,181.81 22.727272727%
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Bankers Trust Company $15,454,545.46 18.181818182%
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Bank Bumiputra $ 7,727,272.73 9.090909091%
Malaysia Berhad, New York Branch
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Banco Popular De Puerto Rico $ 3,863,636.36 4.545454545%
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▇▇▇▇▇▇ Trust and Savings Bank $ 7,727,272.73 9.090909091%
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LaSalle National Bank $11,590,909.09 13.636363636%
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Mitsubishi Trust $11,590,909.09 13.636363636%
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Sakura Bank $ 7,727,272.73 9.090909091%
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TOTAL $ 85,000,000 100.000000000%
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