EXHIBIT 10.1(d)
THIRD AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This Third Amendment to Amended and Restated Loan Agreement ("Third
Amendment") is made and entered into as of the 21st day of November, 1997 by and
between Einstein/Noah Bagel Corp. (formerly known as Einstein Bros. Bagels,
Inc.), a Delaware corporation (the "Company"), and Boston Chicken, Inc., a
Delaware corporation ("Boston Chicken").
RECITALS
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A. The Company and Boston Chicken are parties to an Amended and Restated
Secured Loan Agreement dated as of May 17, 1996, as amended by the First
Amendment to Amended and Restated Loan Agreement dated as of July 19, 1996, and
the Second Amendment to Amended and Restated Loan Agreement dated as of
September 16, 1996 (the "Loan Agreement"), pursuant to which Boston Chicken has
agreed, among other things, to make the Company a Convertible Loan, which on
June 17, 1996 was converted by Boston Chicken into common stock of the Company,
and a $50,000,000 Nonconvertible Loan, upon the terms and subject to the
conditions set forth therein.
B. The parties now desire to modify the terms on which the principal
amount of the Nonconvertible Loan is required to be repaid, on the terms and
conditions set forth herein.
COVENANTS
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Based upon the above recitals, the parties agree as follows:
1.1 Amendment of Loan Agreement. Upon satisfaction by the Company of the
conditions set forth in Section 3.1 hereof, the Loan Agreement shall be amended
as of the date hereof as follows:
(i) Section 1.4(a) of the Loan Agreement is hereby amended by deleting the
figure "1/2 of 1%" and substituting the figure "1 1/2%" therefor.
(ii) Section 1.5 (a) of the Loan Agreement is hereby amended by
substituting therefor the following new Section 1.5(a):
"(a) If not earlier paid, or if not accelerated for payment, the
outstanding principal amount of the Loan shall, at the close of
business on the Draw Loan Termination Date, thereafter become an
amortized term Loan payable as follows: the principal
balance of the Loan shall be payable to Boston Chicken in
substantially equal period installments of principal (based on a
schedule amortizing such outstanding principal balance of the Loan at
the close of business on the Draw Loan Termination date in 130
substantially equal periodic installments of principal), plus accrued
but unpaid interest, on the first day of each of Boston Chicken's 13
consecutive four-week accounting periods used for accounting purposes
(each a "Retail Period"), commencing on the first day of the first
Retail Period commencing after the Installment Start Date and
continuing until the first day of the sixth Retail Period in Boston
Chicken's fiscal year 2003, when the entire remaining principal
balance of the Loan and all interest accrued thereon shall be due and
payable. For purposes of this Section, "Installment Start Date" shall
mean the date occurring 91 days after the date on which that certain
Amended and Restated Secured Credit Agreement dated as of November 21,
1997 (as the same may be amended, modified, extended or replaced, the
"Senior Credit Agreement") among certain lenders, General Electric
Capital Corporation, as Co-Agent, and Bank of America National Trust
and Savings Association, as Agent for such lenders, shall have
terminated and all principal, interest and fees thereunder shall have
been paid in full."
2.1 Effect of Amendment to Loan Agreement. From and after the effective
date hereof, reference in the Loan Agreement and all other documents executed
pursuant to the Loan Agreement (as each of the foregoing is amended hereby or
pursuant hereto) to (a) the Loan Agreement shall be deemed to be references to
the Loan Agreement as amended hereby and (b) the Note shall be deemed to be
references to the Amended and Restated Note in the form attached hereto as
Exhibit A, to be delivered hereunder (the "New Note").
3.1 Effective Date: Conditions. This Third Amendment shall not become
effective until:
(1) The Company shall have executed and delivered to Boston Chicken
this Amendment and the New Note.
(2) The Company shall have delivered to Boston Chicken a certificate
of the Company dated as of the effective date hereof in substantially the form
attached hereto as Exhibit B, which shall be signed by a duly authorized officer
of the Company; and
(3) The Company shall have delivered to Boston Chicken such other
documents and instruments as Boston Chicken may request in connection herewith.
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4.1 Representations. To induce Boston Chicken to enter into this Second
Amendment, the Company represents to Boston Chicken as of the date hereof that:
(1) The representations and warranties contained in Article IV of the
Loan Agreement are true and correct;
(2) No Default or Event of Default has occurred and is continuing; and
(3) This Third Amendment and the New Note have each been duly
authorized by all required action on the part of the Company, and each of this
Third Amendment and the New Note has been duly executed and delivered by the
Company and constitutes the legal, valid, and binding obligation of the Company
enforceable in accordance with its terms.
5.1 Definitions: Ratification. Any term used but not defined herein or
in the exhibits hereto shall have the meaning ascribed thereto in the Loan
Agreement. Except as expressly contemplated herein, the Loan Agreement and all
related certificates, and other documents, are hereby ratified and confirmed and
shall remain in full force and effect.
6.1 GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF COLORADO APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICTS OF LAW
PROVISIONS THEREOF.
7.1 Counterparts. This Third Amendment may be executed in counterparts,
each of which shall be deemed an original, but each of which together shall
constitute but one and the same instrument.
8.1 Headings. The headings of the sections of this Third Amendment are
inserted for convenience only and shall not be deemed to constitute a part of
this Third Amendment.
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IN WITNESS WHEREOF, the parties have executed this Third Amendment to be
effective on the date provided herein.
BOSTON CHICKEN, INC. EINSTEIN/NOAH BAGEL CORP.
By: /s/ Xxxxxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
-------------------------- --------------------------
Vice President Senior Vice President
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Exhibit A
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RIGHTS OF THE HOLDER TO RECEIVE PAYMENT HEREUNDER ARE SUBJECT TO A SUBORDINATION
AGREEMENT DATED MAY 17, 1996 EXECUTED BY BOSTON CHICKEN, INC. IN FAVOR OF BANK
OF AMERICA ILLINOIS, AS AGENT FOR CERTAIN LENDERS
AMENDED AND RESTATED
NONCONVERTIBLE NOTE
$50,000,000 Golden, Colorado
November 21, 1997
FOR VALUE RECEIVED, Einstein/Noah Bagel Corp., a Delaware corporation (the
"Company"), promises to pay to the order of Boston Chicken, Inc., a Delaware
corporation ("Boston Chicken"), pursuant to the Loan Agreement (as hereinafter
defined) at such place as Boston Chicken may from time to time designate in
writing, in lawful money of the United States of America and in immediately
available funds, the principal sum of fifty million dollars ($50,000,000) and
any interest thereon, or, if less, the aggregate unpaid amount of the
Nonconvertible Loan (herein called the "Loan") made pursuant to Section 1.1 of
the Loan Agreement and any interest thereon.
This Nonconvertible Secured Note (the "Note") evidences the Loan made
under, and is referred to in and is executed and delivered pursuant to, an
Amended and Restated Loan Agreement of even date herewith between the Company
and Boston Chicken (the "Loan Agreement"), to which reference is hereby made for
a statement of the terms and conditions under which this Note may be repaid and
accelerated. This Note is issued in exchange and replacement for the
Nonconvertible Secured Note dated May 17, 1996 from the Company in favor of
Boston Chicken (the "Prior Note"). The indebtedness evidenced by the Prior Note
is continuing indebtedness, and nothing herein shall be deemed to constitute a
payment, settlement, or novation of the Prior Note, or the release of, or
otherwise adversely affect, any rights of Boston Chicken against the
undersigned, any guarantor, surety, or other party primarily or secondarily
liable for such indebtedness. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Loan Agreement.
Interest shall accrue daily on the aggregate outstanding principal balance
of the Loan for the period commencing on the date the Loan is made until the
Loan is paid in full, at a per annum rate equal to the rate designated and
announced by National Trust and Savings Association or its successor in interest
(the "Bank") from time to time as its "reference rate" in effect at its
principal office in Chicago, Illinois, plus 1 1/2%. The interest rate shall be
adjusted, from time to time, on the same day on which the Bank adjusts its
"reference rate." Interest on the outstanding principal amount of the Loan
shall be payable in arrears on the first day of each Retail Period during the
Interest Payment
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Period, as otherwise provided herein in connection with principal payments, and
at maturity (whether by acceleration or otherwise).
Interest shall be computed on the basis of a 360-day year and the actual
number of days elapsed.
Any principal payment due under this Note not paid when due, whether at
stated maturity, by notice of repayment, by acceleration or otherwise, shall, to
the extent permitted by applicable law, thereafter bear interest (compounded
monthly and payable upon demand) at a rate which is 2% per annum in excess of
the rate of interest otherwise payable under this Note in respect of such
principal amount until such unpaid amount has been paid in full (whether before
or after judgment).
Except as otherwise provided in the Loan Agreement, unless accelerated, the
outstanding principal amount of the Loan shall be payable to Boston Chicken in
substantially equal periodic installments of principal (based on a schedule
amortizing such outstanding principal balance of the Loan at the close of
business on the Draw Loan Termination Date in 130 substantially equal period
installments of principal), plus accrued but unpaid interest, on the first day
of each Boston Chicken's Retail Periods, commencing on the first day of the
first Retail Period commencing after the Installment Start Date and continuing
until the first day of the sixth Retail Period in Boston Chicken's fiscal year
2003, when the entire remaining principal balance of the Loan and all interest
accrued thereon shall be due and payable. For purposes of this Note,
"Installment Start Date" shall mean the date occurring 91 days after the date on
which that certain Amended and Restated Secured Credit Agreement dated as of
November 21, 1997 (as the same may be amended, modified, extended or replaced,
the "Senior Credit Agreement") among certain lenders, General Electric Capital
Corporation, as Co-Agent, and Bank of America National Trust and Savings
Association, as Agent for such lenders, shall have terminated and all principal,
interest and fees thereunder shall have been paid in full.
This Note may be prepaid, without premium or penalty, at any time. All
payments made hereunder shall be applied first to interest and then to
outstanding principal.
If payment hereunder becomes due and payable on a Saturday, Sunday, or
legal holiday, under the laws of the State of Colorado, the due date thereof
shall be extended to the next succeeding business day.
Demand, presentment, protest, diligence, notice of dishonor, and any other
formality are hereby expressly waived by the Company and any endorser or
guarantor.
Loan advances may be made from time to time by Boston Chicken to the
Company in the manner and on the terms and subject to the conditions set forth
in the Loan Agreement. Upon granting each loan advance, Boston Chicken shall
record the
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making and amount of such advance on its books in a separate loan account, and
shall also record in the loan account all payments made by the Company with
respect to the Loan. The aggregate amount of all Advances, less the amounts of
payment of principal made by the Company, shall be the principal amount
outstanding under this Note. The loan account shall be prima facie evidence of
the unpaid amount of principal outstanding under this Note; provided, however,
that failure to maintain such account or record any advances therein shall not
relieve the Company of its obligations to repay the outstanding principal amount
of the Loan, all accrued interest thereon, and any amount payable with respect
thereto in accordance with the terms of this Note.
The occurrence of a Default shall be a default under this Note. Upon any
default under this Note, the holder of this Note may declare this Note due and
payable in full and exercise such other rights and remedies as are available to
the holder under the Loan Agreement or applicable law.
If there is any default under this Note, and this Note is placed in the
hands of an attorney for collection, or is collected through any court,
including any bankruptcy court, the Company promises to pay to the order of the
holder hereof such holder's reasonable attorneys' fees and court costs incurred
in collecting or attempting to collect or securing or attempting to secure this
Note.
THIS NOTE HAS BEEN DELIVERED IN, AND SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF, THE STATE OF COLORADO APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS
THEREOF.
The holder of this Note may, with or without notice to any party, and
without affecting the obligations of any maker, surety, guarantor, endorser,
accommodation party, or any other party to this Note (i) extend the time for
payment of either principal or interest from time to time, (ii) release or
discharge any one or more parties liable on this Note, (iii) suspend the right
to enforce this Note with respect to any persons, (iv) change, exchange, or
release any property in which the holder has any interest securing this Note,
and (v) at any time it deems it necessary or proper, call for and, should it be
made available, accept, as additional security, the signature or signatures of
additional parties or a security interest in property of any kind or description
or both.
Any provision herein, or in the Loan Agreement, or any other document
executed or delivered in connection herewith or therewith, or in any other
agreement or commitment, whether written or oral, expressed or implied, to the
contrary notwithstanding, neither Boston Chicken nor any holder hereof shall in
any event be entitled to receive or collect, nor shall any amounts received
hereunder be credited, so that Boston Chicken or any holder hereof shall be
paid, as interest, a sum greater than the maximum amount permitted by applicable
law to be charged to the person primarily obligated to pay this Note at the time
in question. If any construction of this Note or the
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Loan Agreement, or any and all other papers, agreements or commitments, indicate
a different right given to Boston Chicken or any holder hereof to ask for,
demand, or receive any larger sum as interest, such is a mistake in calculation
or wording which this clause shall override and control, it being the intention
of the parties that this Note, the Loan Agreement, and all other documents
executed or delivered in connection herewith shall in all ways comply with
applicable law and proper adjustments shall automatically be made accordingly.
In the event that Boston Chicken or any holder hereof ever receives, collects,
or applies as interest, any sum in excess of the maximum amount permitted by
applicable law, if any, such excess amount shall be applied to the reduction of
the unpaid principal balance of this Note, and if this Note is paid in full, any
remaining excess shall be paid to the Company. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the maximum
amount permitted by applicable law, if any, the Company and any holder hereof
shall, to the maximum extent permitted under applicable law: (a) characterize
any non-principal payment as an expense or fee rather than as interest, and (b)
"spread" the total amount of interest throughout the entire term of this Note.
IN WITNESS WHEREOF, the Company has caused this Note to be executed in its
corporate name by the undersigned officer, thereunto duly authorized.
EINSTEIN/NOAH BAGEL CORP.
By: __________________________
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Exhibit B
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CERTIFICATES
The undersigned, being the Chief Financial Officer of Einstein/Noah Bagel
Corp., a Delaware corporation (the "Company"), hereby represents, warrants, and
certifies that (i) no Default or Event of Default has occurred under the Amended
and Restated Secured Loan Agreement dated as of May 17, 1996 between the Company
and Boston Chicken, Inc., a Delaware corporation, as amended (the "Loan
Agreement"), and (ii) all of the covenants, agreements, representations, and
warranties made by the Company therein and in any writing delivered pursuant to
the Loan Agreement are true and correct and complete and have been fully
complied with as of the date of this Certificate.
By: ________________________
Name: W. Xxxx Xxxxxxxx
Title: Chief Financial Officer
Dated: November 21, 1997
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