EXHIBIT 10.1
EXECUTION COPY
FIRST AMENDMENT AND CONSENT TO
AMENDED AND RESTATED FACILITIES AGREEMENT
THIS FIRST AMENDMENT AND CONSENT (this "AMENDMENT") dated as of July
15, 1998 is entered into by and among BOSTON CHICKEN, INC., a Delaware
corporation (the "COMPANY" or the "BORROWER"), BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION (as successor by merger to Bank of America Illinois) (in
its individual capacity, "BOFA"), as agent for the Lenders and the Issuing
Lender referred to below (in such capacity, together with its successors and
assigns, the "LOAN AGENT"), GENERAL ELECTRIC CAPITAL CORPORATION, for itself and
as agent for the 1996 Lease Lenders referred to below (in its individual
capacity, "GECC"; and in such dual capacity, together with its successors and
assigns, the "1996 LEASE AGENT"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION and GENERAL ELECTRIC CAPITAL CORPORATION, as Co-Agents for the
Liquidity Lenders (individually, a "CO-AGENT" and collectively, the "CO-AGENTS")
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as the initial
Common Collateral Agent.
W I T N E S S E T H:
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WHEREAS, the Company, the financial institutions from time to time
party thereto (the "ORIGINAL LENDERS"), Bankers Trust Company, as documentation
agent (in such capacity, together with its successors and assigns, the
"DOCUMENTATION AGENT"), and BofA, as letter of credit issuing bank (in such
capacity, the "ISSUING LENDER", and together with the Original Lenders, the
"REVOLVING LENDERS") and as Loan Agent entered into that certain Secured
Revolving Credit Agreement dated as of December 9, 1996, as amended by the First
Amendment and Consent thereto (the "FIRST CREDIT AMENDMENT") dated as of October
24, 1997 (the Secured Revolving Credit Agreement as so amended, the "ORIGINAL
CREDIT AGREEMENT");
WHEREAS, concurrently herewith, the Original Credit Agreement has been
further amended pursuant to the terms of that certain Second Amendment and
Consent thereto (the "SECOND CREDIT AMENDMENT") entered into among the Company,
the Loan Agent, the Documentation Agent, the Co-Agents, GECC, the Revolving
Lenders and the "Liquidity Lenders" (as defined in the Second Credit Amendment)
(the Original Credit Agreement as amended by the Second Credit Amendment, and as
further amended, supplemented, modified, restated, refinanced, refunded or
renewed from time to time, the "CREDIT AGREEMENT");
WHEREAS, the Company and the 1996 Lease Agent have entered into that
certain Master Lease Agreement No. 2, dated as of December 9, 1996 (the
"ORIGINAL 1996 LEASE AGREEMENT"), as amended by Amendment No. 1 thereto dated
February 28, 1997 and Amendment No. 2 thereto of even date herewith ("1996 LEASE
AMENDMENT NO. 2") (as further amended,
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supplemented, modified, restated, refinanced, refunded or renewed from time to
time, the "1996 MASTER LEASE AGREEMENT");
WHEREAS, subject to the terms of the 1996 Master Lease Agreement, GECC
has heretofore and may hereafter convey to certain financial institutions
(collectively with GECC, the "1996 LEASE LENDERS", and together with the
Revolving Lenders and Liquidity Lenders, the "SECURED CREDITORS") participation
interests in its rights, duties and obligations under the 1996 Master Lease
Agreement;
WHEREAS, concurrently with the execution and delivery of the Original
Credit Agreement and the Original 1996 Master Lease Agreement, the Company, the
Loan Agent, the 1996 Lease Agent and the Common Collateral Agent entered into
that certain Intercreditor Agreement dated as of December 9, 1996 (as amended,
supplemented, modified or restated from time to time, the "ORIGINAL
INTERCREDITOR AGREEMENT"), which sets forth certain agreements with respect to,
among other things, voting rights and collateral issues;
WHEREAS, concurrently with the execution and delivery of the First
Credit Amendment, the Company, the Loan Agent, the 1996 Lease Agent and the
Common Collateral Agent entered into that certain Amended and Restated
Facilities Agreement (the "RESTATED FACILITIES AGREEMENT") and that certain
Amended and Restated Intercreditor Agreement (the "RESTATED INTERCREDITOR
AGREEMENT"), each dated as of October 24, 1997;
WHEREAS, concurrently herewith, the Company, the Loan Agent, the 1996
Lease Agent, the Lenders, GECC in its capacity as the "Lead 1996 Lease Lender"
(as defined below), the "Other Creditors" and the "Cash Management Banks" (each
as defined in the Intercreditor Agreement referred to below) have entered into
that certain Second Amended and Restated Intercreditor Agreement, pursuant to
which the Restated Intercreditor Agreement has been amended and restated in its
entirety (as so amended and restated, and as the same may be further amended,
modified, supplemented and/or restated from time to time, the "INTERCREDITOR
AMENDMENT"), which sets forth certain agreements with respect to, among other
things, voting rights and collateral issues between the parties thereto;
WHEREAS, the Company hereby reaffirms the covenants, representations
and warranties made in the Restated Facilities Agreement, to the extent the same
are not affected hereby, and agrees that all such covenants, representations and
warranties shall be deemed to have been remade as of the effective date hereof;
WHEREAS, the Company has requested that the Loan Agent, the 1996 Lease
Agent and the Common Collateral Agent agree to certain modifications to the
Restated Facilities Agreement;
WHEREAS, the Company, the Loan Agent (on behalf of itself and the
Revolving Lenders and the Liquidity Lenders (the Revolving Lenders and Liquidity
Lenders being sometimes
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referred to herein as the "LENDERS")), the 1996 Lease Agent (on behalf of itself
and the 1996 Lease Lenders) and the Common Collateral Agent have agreed to enter
into this Amendment on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, and intending to be
legally bound hereby, the Company, the Loan Agent, the 1996 Lease Agent and the
Common Collateral Agent hereby agree as follows:
SECTION 1. AMENDMENT TO THE FACILITIES AGREEMENT. Effective as of the
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date hereof and subject to the satisfaction of the conditions precedent set
forth in Section 2 below, and in reliance on the representations and warranties
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set forth in Section 3 below, on and after the date hereof, the parties hereto
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agree that the Facilities Agreement is amended as follows:
1.1 THE PREAMBLE TO THE FACILITIES AGREEMENT IS DELETED IN ITS ENTIRETY
AND THE FOLLOWING SUBSTITUTED THEREFOR:
(a) THE FIRST PARAGRAPH OF THE PREAMBLE TO THE FACILITIES AGREEMENT
IS HEREBY DELETED IN ITS ENTIRETY AND REPLACED WITH THE FOLLOWING:
THIS AMENDED AND RESTATED FACILITIES AGREEMENT originally dated
as of October 24, 1997 and amended by the First Amendment and Consent
thereto (the "FIRST AMENDMENT") dated as of July 15, 1998 is among BOSTON
CHICKEN, INC., a Delaware corporation (the "COMPANY"), BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION (as successor by merger to Bank of
America Illinois)(in its individual capacity,"BOFA"), as agent for the
Lenders and the Issuing Lender referred to below (in such capacity,
together with its successors and assigns, the "LOAN AGENT"), GENERAL
ELECTRIC CAPITAL CORPORATION, for itself and as agent for the 1996 Lease
Lenders referred to below (in its individual capacity, "GECC"; and in such
dual capacity, together with its successors and assigns, the "1996 LEASE
AGENT"), BofA and GECC, as Co-Agents for the Liquidity Lenders
(individually a "CO-AGENT" and collectively, the "CO-AGENTS") and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as the initial Common
Collateral Agent.
(b) THE REMAINING PARAGRAPHS OF THE PREAMBLE TO THE FACILITIES
AGREEMENT ARE HEREBY DELETED IN THEIR ENTIRETY AND THE PREAMBLE TO THIS
AMENDMENT INCORPORATED THEREIN BY REFERENCE.
1.2 SECTION 1.1 OF THE FACILITIES AGREEMENT IS AMENDED AS FOLLOWS:
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(a) TO DELETE THE CURRENT DEFINITIONS FOR THE TERMS SET FORTH BELOW
IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
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"COLLATERAL ASSIGNMENT OF LEASE" means any Collateral Assignment
of Tenant's Rights in Lease in substantially the form of Exhibit A
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executed by the Company or any Restricted Subsidiary in favor of the
Common Collateral Agent for the benefit of each of the Creditor
Classes. Unless the context otherwise indicates, each reference to
"Collateral Assignment of Lease" shall be to the several Collateral
Assignments of Lease entered into for each of the various Creditor
Classes.
"COLLATERAL ASSIGNMENT OF LOAN" means a Collateral Assignment of
Loan Documentation in substantially the form of Exhibit B executed by
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the Company in favor of the Common Collateral Agent for the benefit of
each of the Creditor Classes. Unless the context otherwise indicates,
each reference to "Collateral Assignment of Loan" shall be to the
several Collateral Assignments of Loan entered into for each of the
various Creditor Classes.
"COMMON COLLATERAL AGENT" means the Loan Agent, on behalf of each
of the Creditor Classes; provided, that at such time as the Credit
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Agreement shall no longer be in effect, Common Collateral Agent shall
mean, for so long as the 1996 Master Lease is in effect, the 1996
Lease Agent.
"COMMON COLLATERAL DOCUMENTS" means, collectively, (i) the
Security Agreements, the Trademark Security Agreements, the Collateral
Assignments of Loan, the Mortgages, the Collateral Assignments of
Lease, the Landlords' Consents, the Pledge Agreements and all other
security agreements, mortgages, deeds of trust, patent and trademark
assignments, lease assignments, guarantees and other similar
agreements between the Company, any Guarantor or their respective
Subsidiaries and the Common Collateral Agent for the benefit of any of
the Creditor Classes now or hereafter delivered to the Common
Collateral Agent pursuant to or in connection with the transactions
contemplated hereby, and all financing statements (or comparable
documents now or hereafter filed in accordance with the Uniform
Commercial Code or comparable law) against the Company, any Guarantor
or their respective Subsidiaries, as debtor, in favor of the Common
Collateral Agent for the benefit of the Creditor Classes, as secured
party, and (ii) any amendments, supplements, modifications, renewals,
replacements, consolidations, substitutions and extensions of any of
the foregoing.
"CREDITORS" has the meaning assigned to that term in the
Intercreditor Agreement; provided, however, solely for purposes of
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the use of that term in the definition of Termination Date, in the
prefatory language to Articles II through V-A, and in Sections 2.4,
2.11, 3.7 through 3.9, 4.8, 4.15, 4.16 and 7.4, "CREDITORS" means,
collectively, the Loan Agent, the Revolving Lenders, the Liquidity
Lenders, the 1996 Lease Agent, the 1996 Lease Lenders and the Common
Collateral Agent; and "Creditor" means any of the foregoing Persons.
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"EVENT OF DEFAULT" has the meaning set forth in Section 6.1
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hereof; provided, that any requirement for the giving of notice, the
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lapse of time, or both, or any other condition, has been satisfied..
"FINANCIAL LEASE" means with respect to any Person at any date,
any Capital Lease of such Person and any operating lease of such
Person entered into outside of the ordinary course of business
(including, without limitation, the 1995 Master Lease but excluding
the 1996 Master Lease).
"FINANCIAL LEASE DEBT" means, as of any date, (1) with respect to
any Capital Lease under which the Company or any of its Restricted
Subsidiaries is the lessee, the principal amount thereof as of such
date as determined in accordance with GAAP, but specifically excluding
Capital Leases of Financed Subsidiaries existing on the date each
Financed Franchisee becomes a Financed Subsidiary; (2) with respect to
the 1995 Master Lease Agreement, the termination value (as defined
therein) as of such date; and (3) with respect to any other Financial
Lease under which the Company or any of its Restricted Subsidiaries is
the lessee, the present value (using a market rate of interest) as of
such date of all remaining rental payments of the Company or such
Restricted Subsidiary under such Financial Leases.
"GUARANTOR" means any Person which from time to time is a party
to a Guaranty, whether as an initial party thereto or by supplement
thereto.
"GUARANTY" means that certain Subsidiary Guaranty dated as of
July 15, 1998 and issued by each of the Restricted Subsidiaries as of
such date in favor of either the Loan Agent for the benefit of the
Revolving Lenders, Issuing Lenders , Liquidity Lenders or the 1996
Lease Agent for the benefit of the 1996 Lease Lenders, substantially
in the form of Exhibit C, in each case as amended from time to time by
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the addition through a Guaranty Supplement (in the form attached to
each such Guaranty) of each new Restricted Subsidiary as a party
thereto.
"INTERCREDITOR AGREEMENT" - See Recitals.
"LENDERS" or "LENDER" shall have the meaning assigned to such
term in the Recitals and shall include Bank of America National Trust
and Savings Association while acting in the capacity of a Lender,
unless otherwise expressly indicated herein.
"MORTGAGE" means a mortgage or deed of trust in substantially the
form of Exhibit E executed by the Company or a Restricted Subsidiary
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in favor of the Common Collateral Agent for the benefit of each of the
Creditor Classes. Unless the
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context otherwise indicates, each reference to a "Mortgage" or the
"Mortgages" shall be to the Mortgages entered into for each of the
various Creditor Classes.
"1996 LEASE DOCUMENTS" means the 1996 Master Lease Agreement, the
associated Subleases, the respective Guaranties, the Facilities
Agreement, the "Secured Promissory Note" and "Reborrowing Note" (as
both such terms are defined in the 1996 Master Lease Agreement) and
all other agreements, instruments and documents (including, without
limitation, mortgages, deeds of trust, chattel mortgages and security
agreements) delivered from time to time to the 1996 Lease Agent with
respect to the foregoing (as amended, supplemented, modified,
restated, refinanced, refunded or renewed from time to time in
accordance with the terms of the Intercreditor Agreement).
"PLEDGE AGREEMENT" means the pledge agreements in substantially
the form of Exhibit F executed by the Company and certain Restricted
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Subsidiaries in favor of the Common Collateral Agent for the benefit
of each of the Creditor Classes. Unless the context otherwise
indicates, each reference to the "Pledge Agreement" shall be to the
Pledge Agreements entered into for each of the various Creditor
Classes.
"SENIOR SECURED INDEBTEDNESS" means, at any time, the aggregate
principal amount of liquidity loans, revolving loans, supplemental
revolving loans and letter of credit obligations (including, without
limitation, the unreimbursed amount of any draws under the letters of
credit) then outstanding under the Credit Agreement, the aggregate
outstanding principal amount of the loans under the 1996 Master Lease
plus the aggregate amount of all Financial Lease Debt then
outstanding..
"SECURITY AGREEMENT" means any Security Agreement in
substantially the form of Exhibit G-1 with respect to the Company and
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Exhibit G-2 with respect to the Restricted Subsidiaries in favor of
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the Common Collateral Agent for the benefit of each of the Creditor
Classes. Unless the context otherwise indicates, each reference to a
"Security Agreement" or the "Security Agreements" shall be to the
Security Agreements entered into for each of the various Creditor
Classes.
"STORE REVENUE" means, for any Store, the weekly net revenue
(i.e. gross revenue net of all coupons, discounts and other amounts
deducted from gross revenues to obtain net revenue) for such Store
(whether such Store is operated by the Company or a Franchisee).
"TRADEMARK SECURITY AGREEMENT" means a Trademark Security
Agreement substantially in the form of Exhibit H executed by the
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Company or any Restricted Subsidiary in favor of the Common Collateral
Agent for the benefit of the Creditor Classes. Unless the context
otherwise indicates, each reference to a "Trademark
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Security Agreement" or the "Trademark Security Agreements" shall be to
the Trademark Security Agreements entered into for each of the various
Creditor Classes.
(b) TO ADD EACH OF THE FOLLOWING DEFINITIONS IN THE APPLICABLE
ALPHABETICAL LOCATION:
"AGENTS' EXPENSES" means all of the fees, costs and expenses of
the Common Collateral Agent, the Loan Agent or the 1996 Lease Agent
(including, without limitation, all "Attorney Costs" (as defined in
the Intercreditor Agreement), all amounts covered by the terms of
Section 7.5 (including, without limitation, for fees and expenses of
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Ernst & Young as financial advisors), all Indemnified Liabilities of
the type described in Section 7.11 and all other costs and expenses)
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(i) arising in connection with the preparation, execution, delivery,
modification, restatement, amendment, waiver, termination,
interpretation of this Agreement, the Intercreditor Agreement and each
other Credit Document or the enforcement (whether in the context of a
civil action, adversary proceeding, workout or otherwise) of any of
the provisions hereof or thereof or any of the Common Collateral
Agent's, Loan Agent's or 1996 Lease Agent's remedies with respect
thereto, or (ii) incurred or required to be advanced in connection
with the sale or other disposition or the custody, preservation or
protection of the Collateral pursuant to any Credit Document and the
exercise or enforcement of the Common Collateral Agent's, Loan
Agent's, or 1996 Lease Agent's rights under this Agreement, the other
Credit Documents, the 1996 Lease Documents and in and to the
Collateral.
"ASSET SALE" has the meaning set forth in Section 3.15(a)(i)
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hereof.
"ASSET SALE PREPAYMENT" has the meaning set forth in Section
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3.15(a)(i) hereof.
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"BUDGET" shall mean the Budget and related parameters attached as
Exhibit A to the Confidential Agreement as amended from time to time
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in accordance with the provisions of the Intercreditor Agreement.
"COLLATERAL" has the meaning given that term in the Intercreditor
Agreement.
"COLLECTION ACCOUNT" means each lock-box and blocked depository
account maintained by the Company and each of its Subsidiaries,
subject to a Collection Account Agreement, for the collection of daily
receipts from the Stores and other proceeds of Collateral.
"COLLECTION ACCOUNT AGREEMENT" means a written agreement
substantially in the form of Exhibit L attached hereto (with such
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changes as may be acceptable
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to the Common Collateral Agent) among the Company or its Subsidiaries,
the Common Collateral Agent, and, as applicable, each of the banks at
which the Company and its Subsidiaries maintains a Collection Account.
"COLLECTION ACCOUNT BLOCKAGE DATE" means the date, following the
occurrence of a Default (other than, during the Suspension Period, a
Suspended Default), on which (a) the Loan Agent and the Lease Agent,
(b) the Majority Liquidity Lenders or (c) the Majority Revolving
Lenders, the Majority 1996 Lease Lenders and the Required 1996 Lenders
(as each such term is defined in the Intercreditor Agreement), in the
sole discretion of any of the groups identified in clause (a), (b) or
(c), instruct(s) the Common Collateral Agent to instruct any financial
institution party to a Collection Account Agreement as described in
the applicable Collection Account Agreement to remit, during the
continuance of such Default, all amounts deposited in the relevant
Collection Account to the Common Collateral Agent or as the Common
Collateral Agent shall direct.
"CONFIDENTIAL AGREEMENT" shall mean that certain Confidential
Agreement dated as of the Restructuring Effective Date entered into
among the Company, the Loan Agent, the 1996 Lease Agent and the Common
Collateral Agent.
"CREDITOR CLASSES" means the following three groups of Creditors:
(1) the Liquidity Lenders, the Revolving Lenders, the Issuing Lender
and the 1996 Lease Lenders; (2) the Cash Management Banks; and (3) the
Other Creditors.
"ENBC SALE" has the meaning set forth in Section 3.15(b)(i)
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hereof.
"ENBC SALE PREPAYMENT" has the meaning set forth in Section
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3.15(b)(i) hereof.
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"EXCLUDED ASSET SALE" means any Asset Sale consummated pursuant
to the provisions of clauses (1),(2) or (4) of Section 4.7 hereof.
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"EXISTING 1996 REAL ESTATE COLLATERAL DOCUMENTS" has the meaning
set forth in Section 3.13 hereof.
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"FIXED FEE DISTRIBUTION AGREEMENT" shall mean that certain Fixed
Fee Distribution Agreement dated September 30, 1996 by and between
Marriott and the Company, as the same may be amended, modified,
supplemented, renewed, or restated from time to time in accordance
with the terms hereof.
"GENERAL EBITDAL COVENANT" has the meaning set forth in Section
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5A.1 hereof.
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"LEAD 1996 LEASE LENDER" has the meaning given that term in the
Credit Agreement.
"LIQUIDITY EBITDAL COVENANT" has the meaning set forth in Section
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5A.2 hereof.
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"LIQUIDITY PERCENTAGE" has the meaning given that term in the
Credit Agreement.
"LIQUIDITY PERIOD" has the meaning given that term in the
Intercreditor Agreement.
"MARRIOTT" shall mean Marriott Distribution Services, Inc.
"NET CASH PROCEEDS" shall mean, in the case of any Asset Sale or
any ENBC Sale, cash payments received (including any cash received by
way of deferred payment pursuant to a note receivable or otherwise,
but only as and when so received) by the Company or any of its
Restricted Subsidiaries from any Asset Sale or ENBC Sale less the
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amount of reasonable fees and commissions payable to persons other
than the Company or such Restricted Subsidiary, and other normal
expenses of sale, including reasonable costs and expenses related to
such sale or other disposition that are to be paid in cash.
"1996 LEASE AGENT" has the meaning set forth in the preamble.
All references in this Agreement to the "Lease Agent" shall mean and
be a reference to the 1996 Lease Agent.
"1996 LEASE LENDERS" has the meaning set forth in the preamble.
All references in this Agreement to the "Lease Participants" shall
mean and be a reference to the 1996 Lease Lenders. Notwithstanding
the foregoing, any Reborrowing Loan or other amount to be made by the
1996 Lease Lenders or any payment that is required to be made
hereunder or under the Intercreditor Agreement to the 1996 Lease
Lenders shall in either such case be made by or to the Lead 1996 Lease
Lender, and the Lead 1996 Lease Lender shall collect amounts from or
distribute amounts to the 1996 Lease Lenders in accordance with the
terms of the applicable participation agreements.
"1996 LENDER" has the meaning given that term in the
Intercreditor Agreement.
"PRO RATA 1996 SHARE" means with respect to any 1996 Lender, the
percentage obtained by dividing (A) the sum of the principal amount of
such 1996 Lender's Revolving Obligations and 1996 Lease Obligations at
such time by (B) the
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sum of the aggregate principal amount of the Revolving Obligations and
1996 Lease Obligations at such time.
"REBORROWING AVAILABILITY" means, as of any time of
determination, the aggregate Reborrowing Availability Amount minus the
aggregate amount of Reborrowing Loans outstanding as of such time.
"REBORROWING AVAILABILITY AMOUNT" has the meaning set forth in
Section 3.15(b)(iv)(A) hereof.
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"REBORROWING AVAILABILITY COMMENCEMENT DATE" has the meaning set
forth in Section 3.15(b)(iv)(B) hereof.
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"REBORROWING AVAILABILITY PERIOD" means the period from the
Reborrowing Availability Commencement Date through the Reborrowing
Availability Termination Date.
"REBORROWING AVAILABILITY TERMINATION DATE" means the first date
to occur of (i) the occurrence of an Event of Default (other than,
during the Suspension Period, a Suspended Default) and (ii) October
17, 1998.
"REBORROWING COMMITMENTS" means the Reborrowing Commitments -
Revolver and Reborrowing Commitments - 1996 Master Lease.
"REBORROWING COMMITMENTS - REVOLVER" means for each Revolving
Lender, as of any time of determination, its provisional commitment to
make Reborrowing Loans in an amount not to exceed its Pro Rata 1996
Share of Reborrowing Availability at such time.
"REBORROWING COMMITMENTS - 1996 MASTER LEASE" means for each 1996
Lease Lender, as of any time of determination, its provisional
commitment to make Reborrowing Loans in an amount not to exceed its
Pro Rata 1996 Share of Reborrowing Availability at such time.
"REBORROWING LOAN" has the meaning set forth in Section
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3.15(b)(iv)(D) hereof.
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"REBORROWING PERIOD" means the period commencing on the
Reborrowing Availability Commencement Date and ending on the first
date thereafter on which all of the Reborrowing Loans have been paid
in full and the Reborrowing Commitment has been terminated.
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"REBORROWING REQUEST" has the meaning set forth in Section
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3.15(b)(iv)(C) hereof.
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"RESTRUCTURING EFFECTIVE DATE" means the date on which all of
the conditions precedent to the effectiveness of the First Amendment
hereto shall have been satisfied or waived.
"SPECIFIED LIQUIDITY PERIOD" means the period from and after the
Restructuring Effective Date until the date on which (i) the Liquidity
Obligations have been paid in full and all Liquidity Commitments have
been terminated and (ii) the Reborrowing Loans have been paid in full
and the Reborrowing Commitments have been terminated.
"SUSPENDED DEFAULTS" has the meaning given that term in the
Intercreditor Agreement.
"SUSPENSION PERIOD" means the period from the Restructuring
Effective Date to the Suspension Termination Date.
"SUSPENSION TERMINATION DATE" means October 17, 1998, or such
earlier date after the Restructuring Effective Date on which any
Default other than a Suspended Default has occurred.
"TAX REFUND PREPAYMENT" has the meaning set forth in Section 3.15
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hereof.
"TERMINATION DATE" has the meaning given that term in the Credit
Agreement.
(c) TO DELETE THE DEFINED TERM "AGENCY AGREEMENT" THEREFROM; AND
(d) TO ADD THE FOLLOWING AT THE END THEREOF:
In the event that capitalized terms are used in this Agreement and not
defined in this Agreement, such terms shall have the meaning given to them
in the Intercreditor Agreement.
1.3 ARTICLE II OF THE FACILITIES AGREEMENT IS AMENDED AS FOLLOWS:
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(a) SECTION 2.4 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE THE
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TERMS THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
SECTION 2.4 Financial Statements. The Company's audited
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consolidated financial statements as of December 28, 1997 (the
"Audited Statements") and its unaudited consolidated financial
statements as of April 19, 1998, ("Unaudited
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Statements") have been furnished to each Creditor. The Audited
Statements have been prepared in conformity with GAAP and fairly
present the financial condition of the Company and its Subsidiaries as
of such dates and the results of operations for the periods then
ended. The Unaudited Statements have been prepared in a manner
consistent (except for changes in accounting policies permitted by
GAAP which have been or are contemporaneously disclosed in writing to
each Creditor) with the Audited Statements, except for the lack of
normal year-end accruals, reclassifications, and audit adjustments and
financial statement footnotes. Except as has been disclosed prior to
the Restructuring Effective Date in public filings made by the Company
with the Securities and Exchange Commission and except as set forth in
the Budget, since the date of the Unaudited Statements, there has been
no Material Adverse Change. No information, exhibit, or report
furnished by the Company to the Creditors in connection with the
negotiation of this Agreement (including, without limitation, any
amendment thereto), considered as a whole with all other information,
exhibits and reports furnished to the Creditors in connection with the
negotiation of this Agreement (including, without limitation, any
amendment thereto) at the time it was furnished (and as modified or
superseded by any information, exhibits and reports subsequently
furnished to the Creditors), contained any material misstatement of
fact or omitted to state a material fact necessary to make the
statements contained therein, in light of the circumstances in which
they were made, not materially misleading; provided, that except as
expressly provided below, the Company makes no representation,
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warranty, or guaranty as to (1) any projections furnished to the
Creditors (it being understood that such projections have been
prepared by management of the Company on the basis of assumptions
which such management believed were reasonable as of the date of such
projections in light of the historical financial performance of the
business of the Company and of current and reasonably foreseeable
business conditions) or (2) any information supplied by Franchisees or
contained in analyst reports or other reports prepared by third
parties or derived therefrom unless in the case of this clause (2) the
Company has actual knowledge at the time such information is delivered
to the Creditors that such information contains a material
misstatement of fact or omits to state a material fact necessary to
make the statements contained therein, in light of the circumstances
under which they were made, not materially misleading.
(b) SECTION 2.19 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE
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CLAUSE (d) THEREOF IN ITS ENTIRETY AND TO SUBSTITUTE THE FOLLOWING
THEREFOR:
(d) The Company and each of its Restricted Subsidiaries have
entered into documents which are effective to create the security
interests and Liens as follows::
(i) Liens to secure the Liquidity Obligations, 1996 Lease
Obligations and the Revolving Obligations by the 1996 Collateral;
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(ii) Liens to secure the Cash Management Obligations by the
1996 Collateral; and
(iii) Liens to secure the Supplemental Obligations by the
1996 Collateral,
and each of such documents secure the "Secured Obligations" purported
to be secured thereby.
1.5 ARTICLE III OF THE FACILITIES AGREEMENT IS HEREBY AMENDED AS FOLLOWS:
-----------
(a) SECTION 3.4 OF THE FACILITIES AGREEMENT IS AMENDED TO ADD THE
-----------
FOLLOWING IN THE PROVISO THERETO, IMMEDIATELY PRIOR TO THE PARENTHETICAL
CONTAINED THEREIN:
;provided, further, however, that the Net Cash Proceeds of any such
sale or other disposition shall be paid to the Common Collateral Agent
to the extent required pursuant to Section 3.15 below
------------
(b) SECTION 3.5 OF THE FACILITIES AGREEMENT IS AMENDED BY INSERTING
-----------
THE FOLLOWING AT THE END THEREOF:
The Company shall deliver to the Common Collateral Agent endorsements
(y) to all "All Risk" physical damage insurance policies on all of the
Company's and its Restricted Subsidiaries' tangible real and personal
property and assets and business interruption insurance policies
naming the Common Collateral Agent loss payee or, in the case of the
"Lease Assets" (as defined in the 1996 Master Lease), as additional
loss payee in addition to the 1996 Lease Agent, and (z) to all general
liability and other liability policies naming the Common Collateral
Agent on behalf of itself and the Creditors as additional insured. In
the event the Company or any of its Restricted Subsidiaries, at any
time or times hereafter shall fail to obtain or maintain any of the
policies or insurance required herein or to pay any premium in whole
or in part relating thereto, then the Common Collateral Agent or any
Creditor, without waiving or releasing any obligations or resulting
Default hereunder, may at any time or times thereafter (but shall be
under no obligation to do so) obtain and maintain such policies of
insurance and pay such premiums and take any other action with respect
thereto which the Common Collateral Agent or such Creditor deems
advisable. All sums so disbursed by the Common Collateral Agent or
any Creditor shall constitute part of the Secured Obligations, payable
as provided in this Agreement and the other Credit Documents.
(c) TO DELETE THE TERMS OF SECTION 3.8(4) OF THE FACILITIES AGREEMENT
--------------
IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
13
3.8(4) Compliance Certificate; Budget Reconciliation. Together
---------------------------------------------
with the financial statements furnished by the Company under the
preceding clauses (1), (2) and (3), a duly completed compliance
----------- ---- ---
certificate in the form of Exhibit I signed by the Chief Financial
---------
Officer, Chief Accounting Officer, Vice President - Finance or any
Senior Vice President of the Company (in his or her capacity as such,
and without personal liability therefor) and together with the
financial statements furnished by the Company under the preceding
clauses (1) and (2), a reconciliation report of actual to projected
----------- ---
experience on the Budget, in form and substance and containing such
supporting information as is reasonably acceptable to the Agents,
signed by the Chief Financial Officer, Chief Accounting Officer, Vice
President - Finance or any Senior Vice President of the Company (in
his or her capacity as such, and without personal liability therefor)
and ;
(d) TO DELETE THE TERMS OF SECTION 3.8(6) OF THE FACILITIES AGREEMENT
--------------
IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
(6) Updated Schedules. On the Restructuring Effective Date and
-----------------
as soon as reasonably available thereafter (but in any event within
forty-five (45) days after the end of each fiscal quarter of the
Company or if requested in writing by any Creditor within forty-five
(45) days after the end of each Retail Period), updated Schedules
---------
2.16, 2.17 (on which Schedule it shall identify whether such
----
Collateral is collateral securing the 1995 Master Lease (the "1995
COLLATERAL") or the "Collateral" (as such term is defined in the
Intercreditor Agreement)) and 2.18 hereto, which updated schedules
----
shall be deemed as of the date of delivery to amend and restate (a)
the previously delivered Schedules 2.16, 2.17 and 2.18 in their
-------------- ---- ----
entirety, (b) in the case of Schedule 2.16, Attachment I to each of
-------------
the Pledges Agreement in their entirety (provided, that the following
--------
items listed on Schedule 2.16 shall be deleted before such schedule
-------------
shall be deemed to be Attachment I to the Pledge Agreements: (A) the
equity interests designated with an asterisk ("*") on the initial
Schedule 2.16 attached hereto and (B) notes or other instruments
-------------
evidencing loans and advances permitted by clause (ii) of Section
----------- -------
4.8), (c) in the case of Schedule 2.17, Schedule I to each of the
-------------
Security Agreements in its entirety and (d) in the case of Schedule
--------
2.18, Schedule I to each of the Collateral Assignments of Loan in its
----
entirety;
(e) TO DELETE THE REFERENCE TO CLAUSE (4) OF SECTION 4.7 CONTAINED IN
-----------
SECTION 3.8(14) THEREFROM IN ITS ENTIRETY AND TO SUBSTITUTE A REFERENCE TO
---------------
CLAUSE (5) OF SECTION 4.7 THEREFOR.
-----------
(f) TO DELETE THE TERMS OF SECTION 3.8 (15) OF THE FACILITIES
----------------
AGREEMENT IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
14
(16) General information. Such other information respecting the
-------------------
condition or operations, financial or otherwise, of the Company or any
Subsidiary as any of the Loan Agent, the Lease Agent, the
Documentation Agent, the Common Collateral Agent or the Required
Creditors may from time to time reasonably request. Without limiting
the foregoing, the Company and its Subsidiaries shall cooperate with
the Agents and their financial advisors and provide access to
information sufficient so that such financial advisors can prepare a
reconciliation of the Company and its Subsidiaries' actual performance
to that projected in the short-term treasury (cash-flow) model
prepared by the Company and previously delivered to the Creditors (as
the same may be updated from time to time).
(g) TO INSERT THE FOLLOWING AFTER SECTION 3.8(14) OF THE FACILITIES
---------------
AGREEMENT:
(15) Weekly Store Revenue. As soon as available and in any
--------------------
event within five Business Days after the end of each calendar week,
a report of Store Revenue for all Stores operated by the Company, its
Restricted Subsidiaries and each Financed Franchisee, in form and
substance and containing such supporting information as is reasonably
acceptable to the Agents, signed by the Chief Financial Officer, Chief
Accounting Officer, Vice President - Finance or any Senior Vice
President of the Company (in his or her capacity as such, and without
personal liability therefor), including, without limitation, the
"flash" report of sales by week by unit in the most complete form as
previously delivered to each of the Agents; and
(h) TO DELETE THE TERMS OF SECTION 3.10 IN THEIR ENTIRETY AND TO
------------
SUBSTITUTE THE FOLLOWING THEREFOR:
SECTION 3.10 [Intentionally Blank.]
(i) TO AMEND SECTION 3.11 OF THE FACILITIES AGREEMENT BY AMENDING
------------
EACH REFERENCE THEREIN TO THE "PLEDGE AGREEMENT" TO BE A REFERENCE TO "EACH
OF THE PLEDGE AGREEMENTS" AND TO FURTHER AMEND SECTION 3.11 OF THE
------------
FACILITIES AGREEMENT BY DELETING CLAUSE (y) THEREOF IN ITS ENTIRETY AND TO
SUBSTITUTE THE FOLLOWING THEREFOR:
(y) is consistent with the terms of this Agreement and the other
Credit Documents.
(j) TO AMEND SECTION 3.13 OF THE FACILITIES AGREEMENT BY ADDING THE
------------
FOLLOWING AT THE END THEREOF:
In addition, as of the Restructuring Effective Date, the Company shall
and shall cause each of its Restricted Subsidiaries to:
15
(A) Enter into amendments and/or amendments and restatements, in
form and substance reasonably acceptable to the Agents and the
Liquidity Lenders, to each of the Mortgages and Collateral Assignments
of Lease previously delivered (the "EXISTING 1996 REAL ESTATE
COLLATERAL DOCUMENTS") to add the Liquidity Obligations to the
obligations secured thereby;
(B) Enter into additional Mortgages and Collateral Assignments
of Lease in form and substance substantially similar to the Existing
1996 Real Estate Collateral Documents, as amended, and covering the
same real estate interests together with the interests pledged to the
1996 Lease Agent (subject to the terms of the Intercreditor Agreement)
in order to secure:
(1) the Cash Management Obligations; and
(2) the Supplemental Obligations
together with such other documentation as shall be necessary in the
reasonable determination of the Common Collateral Agent to effect the
assignment of the rights, title and interest of the Company or such
Restricted Subsidiary, as the case may be, in and to such owned and
leased real property.
(K) TO AMEND SECTION 3.14 OF THE FACILITIES AGREEMENT BY DELETING THE
------------
TERMS THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
SECTION 3.14 Further Assurances. Promptly upon request by
------------------
the Common Collateral Agent, the Loan Agent, the 1996 Lease Agent or
any of the Majority Liquidity Lenders, the Majority 1996 Lease
Lenders, the Majority Revolving Lenders, any Cash Management Bank or
any Other Creditor, as applicable, the Company shall (and shall cause
any of its Subsidiaries to) do, execute, acknowledge where necessary,
deliver, record, re-record, file, re-file, register and re-register,
any and all such further acts, deeds, conveyances, security
agreements, mortgages, assignments, estoppel certificates, financing
statements and continuations thereof, termination statements, notices
of assignment, transfers, certificates, assurances and other
instruments as the Common Collateral Agent or such Creditors, as the
case may be, may reasonably require from time to time in order (i) to
carry out more effectively the intent and purposes of this Agreement
or any other Common Collateral Document, (ii) to subject to the Liens
created by any of the Common Collateral Documents any of the
properties, rights or interests covered by any of the Common
Collateral Documents, and (iii) to perfect and maintain the validity,
effectiveness and priority of any of the Common Collateral Documents
and the Liens intended to be created thereby. Without in any way
limiting the foregoing, on or prior to the date that is 30 days
following the Restructuring Effective Date, the Company shall and
shall cause each of its
16
Restricted Subsidiaries to provide to the Common Collateral Agent all
legal descriptions which were not available for owned or leased
locations as of the Restructuring Effective Date sufficient to permit
the filing of UCC fixture filings for such locations.
(l) TO ADD THE FOLLOWING AFTER SECTION 3.14 OF THE FACILITIES
------------
AGREEMENT:
SECTION 3.15 Mandatory Prepayments.
---------------------
(a) Asset Sales and Tax Refunds.
---------------------------
(i) Asset Sale Prepayments. Upon the consummation by the
----------------------
Company or any Restricted Subsidiary of any transaction, whether
voluntary or involuntary (including, as a result of any condemnation
proceeding) involving the sale, lease, assignment, transfer, or other
disposition of any of its now owned or hereafter acquired assets
(including, without limitation, shares of stock and indebtedness of
Restricted Subsidiaries (but not including the sale, assignment,
transfer or other disposition of the shares of stock of ENBC),
receivables, real property, leasehold interests, franchise agreements,
trademarks, trade names, copyrights, licenses and other general
intangible interests) (an "ASSET SALE") (other than the Excluded Asset
Sales), except to the extent that the gross amount of the proceeds of
such Asset Sale, when combined with the gross amount of the proceeds
of all such Asset Sales during the period from the Restructuring
Effective Date to the date of such Asset Sale, do not exceed
$5,100,000, on the Business Day of the Company's or any of its
Restricted Subsidiaries' (i) receipt of any Net Cash Proceeds from any
such Asset Sale, or (ii) conversion to cash or cash equivalents of
non-cash proceeds (whether principal or interest and including
securities, release of escrow arrangements, success payments, earnouts
or lease payments) received from any Asset Sale, the Company shall
make a mandatory prepayment of the Secured Obligations in an amount
equal to one hundred percent (100%) of such Net Cash Proceeds or such
proceeds converted from non-cash to cash or cash equivalents (an
"ASSET SALE PREPAYMENT"). Notwithstanding anything herein to the
contrary, no Asset Sale Prepayment shall be required from the proceeds
of the sale, lease, assignment, transfer or other disposition of (y)
any of the 1995 Collateral or (z) any of the Sanwa Collateral
(although amounts received therefrom shall be included for purposes of
determining whether the Company has exceeded the $5,100,000 threshold
above). The Company shall make each such Asset Sale Prepayment to the
Common Collateral Agent for the benefit of the Creditors as their
interests appear and the Common Collateral Agent shall distribute the
proceeds thereof in accordance with the terms of clause (iii) below.
(ii) Tax Refund Prepayments. Upon the receipt by the Company or
----------------------
any Restricted Subsidiary of any payments from federal, state or local
tax refunds, the
17
Company shall make a mandatory prepayment of the Secured Obligations
in an amount equal to one hundred percent (100%) of such tax refund
payments (a "TAX REFUND PREPAYMENT"). The Company shall make each such
Tax Refund Prepayment to the Common Collateral Agent for the benefit
of the Creditors as their interests appear and the Common Collateral
Agent shall distribute the proceeds thereof in accordance with the
terms of clause (iii) below.
(iii) Application of Asset Sale and Tax Refund Prepayments.
----------------------------------------------------
Each Asset Sale Prepayment and each Tax Refund Prepayment shall be
allocated and applied to the Secured Obligations as follows:
FIRST: If such prepayment is made after the occurrence of
an Actionable Default, to the Common Collateral Agent in an
amount equal to the Agents' Expenses that are unpaid as of such
date, and to any of the Creditors that has theretofore advanced
or paid any such Agents' Expenses in an amount equal to the
amount thereof so advanced or paid by such Creditor prior to such
date;
SECOND: If such prepayment is made after the occurrence of
an Actionable Default, to the Liquidity Lenders for the payment
of the accrued and unpaid interest and fees with respect to the
Liquidity Obligations, pro rata in accordance with each Liquidity
Lender's Liquidity Percentage;
THIRD: To the Liquidity Lenders for the prepayment of the
outstanding principal balance of the Liquidity Obligations, pro
rata in accordance with each Liquidity Lender's Liquidity
Percentage and the Liquidity Commitments of such Liquidity Lender
shall be permanently reduced pro tanto;
--- -----
FOURTH: If such prepayment is made after the occurrence of
an Actionable Default, to the 1996 Lenders for the payment of the
accrued and unpaid interest and fees with respect to the
Revolving Obligations and 1996 Lease Obligations, pro rata in
accordance with each 1996 Lender's Pro Rata 1996 Share;
FIFTH: To the 1996 Lenders, for the payment of the
outstanding principal balance of the Revolving Obligations and
the 1996 Lease Obligations, pro rata in accordance with such 1996
Lender's Pro Rata 1996 Share, as a permanent reduction of the
Revolving Obligations and 1996 Lease Obligations so repaid; and
SIXTH: To the Common Collateral Agent for application
pursuant to clauses FIRST through FIFTH of Section 3.3(a) of the
--------------
Intercreditor
18
Agreement, as applied without regard to whether or not an
Actionable Default exists.
(iv) Miscellaneous Matters. In the event that a portion of the
---------------------
Revolving Obligations to be repaid pursuant to clause (iii) FOURTH
-------------------
above shall include contingent reimbursement obligations in respect of
Letters of Credit, the allocable amount with respect thereto shall be
deposited with the Common Collateral Agent as cash collateral in
respect of such letter of credit obligations. On each date on which a
payment is made to a beneficiary pursuant to a draw on a Letter of
Credit, the Common Collateral Agent shall distribute to the Issuing
Lender from the amounts held pursuant to this subsection (iv) for
---------------
application to the payment of the reimbursement obligation due to
Issuing Lender with respect to such draw an amount equal to the
product of (1) the total amount then held pursuant to this clause
------
(iv), and (2) a fraction, the numerator of which is the amount of such
draw and the denominator of which is the aggregate undrawn amount of
all outstanding Letters of Credit immediately prior to such draw. On
each date on which a reduction in the undrawn amount of any
outstanding Letter of Credit occurs other than on account of a payment
made to a beneficiary pursuant to a draw on such Letter of Credit, the
Agent shall distribute from the amounts held pursuant to this clause
------
(iv) an amount equal to the product of (1) the total amount then held
----
pursuant to this clause (iv) and (2) a fraction the numerator of which
-----------
is the amount of such reduction and the denominator of which is the
aggregate undrawn amount of all outstanding Letters of Credit
immediately prior to such reduction, which amount shall be distributed
as provided in clause (iii) above. At such time as no Letters of
------------
Credit are outstanding, any remaining amount held pursuant to this
clause (iv), after the distribution therefrom as provided above, shall
-----------
be distributed as provided in clause (iii) above. No amounts repaid
------------
under this Section 3.15(a) shall be permitted to be reborrowed.
---------------
(b) ENBC Prepayments.
----------------
(i) ENBC Sale Prepayments. Upon the consummation by the Company
---------------------
of any transaction involving the sale, assignment, transfer, or other
disposition of any of the capital stock of ENBC owned of record or
beneficially by the Company (an "ENBC SALE"), the Company shall make a
mandatory prepayment of the Secured Obligations in an amount equal to
one hundred percent (100%) of the Net Cash Proceeds from such ENBC
Sale or such proceeds converted from non-cash to cash or cash
equivalents (an "ENBC PREPAYMENT"). The Company shall make such
mandatory prepayment to the Common Collateral Agent for the benefit of
the Creditors as their interests appear and the Common Collateral
Agent shall distribute the proceeds thereof in accordance with the
terms of clause (ii) below.
-----------
(ii) Application of ENBC Prepayments. Each ENBC Prepayment
-------------------------------
shall be allocated and applied to the Secured Obligations as follows:
19
FIRST: If such ENBC Prepayment is made after the occurrence
of an Actionable Default, to the Common Collateral Agent in an
amount equal to the Agents' Expenses that are unpaid as of such
date, and to any of the Creditors that has theretofore advanced
or paid any such Agents' Expenses in an amount equal to the
amount thereof so advanced or paid by such Creditor prior to such
date;
SECOND: An amount equal to twenty-five percent (25%) of the
remaining Net Cash Proceeds from such ENBC Sale Prepayment to the
1996 Lenders for the payment of (a) first, if such ENBC
Prepayment is made after the occurrence of an Actionable Default,
the accrued and unpaid interest and fees with respect to the
Revolving Obligations and 1996 Lease Obligations, pro rata in
accordance with each 1996 Lender's Pro Rata 1996 Share; and (b)
second, the outstanding principal balance of the Revolving
Obligations and the 1996 Lease Obligations, pro rata in
accordance with each 1996 Lender's Pro Rata 1996 Share as a
permanent reduction of the Revolving Obligations and 1996 Lease
Obligations so repaid;
THIRD: An amount equal to the lesser of: (a) the
outstanding amount of the Liquidity Obligations (calculated to
include interest and fees only if such calculation is made after
the occurrence of an Actionable Default) and (b) the remaining
amount of the ENBC Prepayment after payment of the amounts under
clauses FIRST and SECOND above, to the Liquidity Lenders for the
payment of (a) first, if such ENBC Prepayment is made after the
occurrence of an Actionable Default, the accrued and unpaid
interest and fees with respect to the Liquidity Obligations, pro
rata in accordance with each Liquidity Lender's Liquidity
Percentage and (b) second, the outstanding principal balance of
the Liquidity Obligations, pro rata in accordance with each
Liquidity Lender's Liquidity Percentage and, upon such prepayment
of principal, the Liquidity Commitments of each Liquidity Lender
shall be permanently reduced pro tanto (subject to further
--- -----
reduction pursuant to clause FOURTH below);
FOURTH: An amount equal to the lesser of: (a) the sum of
the outstanding amount of the Revolving Obligations and the 1996
Lease Obligations (in each case calculated to include interest
and fees only if such calculation is made after the occurrence of
an Actionable Default) and (b) the remaining amount of the ENBC
Prepayment after payment of the amounts under clauses FIRST,
SECOND and THIRD above to the 1996 Lenders, for the payment of
(i) first, if the calculation above was made after the occurrence
of an Actionable Default, the accrued and unpaid interest and
fees with respect to the Revolving Obligations and 1996 Lease
Obligations pro rata in accordance with each 1996 Lender's Pro
Rata 1996 Share and
20
(ii) second, the outstanding principal balance of the Revolving
Obligations and 1996 Lease Obligations pro rata in accordance
with each 1996 Lender's Pro Rata 1996 Share; and
FIFTH: Any excess, to the Common Collateral Agent for
application pursuant to clauses FIRST through FIFTH of Section
-------
3.3(a) of the Intercreditor Agreement, as applied without regard
------
to whether or not an Actionable Default exists.
(iii) Miscellaneous Matters. In the event that a portion of the
---------------------
Revolving Obligations to be repaid pursuant to clause (ii) above shall
-----------
include contingent reimbursement obligations in respect of Letters of
Credit, the allocable amount (the "L/C Amount") with respect thereto
shall be deposited with the Common Collateral Agent as cash collateral
in respect of such letter of credit obligations. On each date on
which a payment is made to a beneficiary pursuant to a draw on a
Letter of Credit, the Common Collateral Agent shall distribute to the
Issuing Lender from the amounts held pursuant to this subsection (iii)
----------------
for application to the payment of the reimbursement obligation due to
Issuing Lender with respect to such draw an amount equal to the
product of (1) the total amount then held pursuant to this clause
------
(iii), and (2) a fraction, the numerator of which is the amount of
-----
such draw and the denominator of which is the aggregate undrawn amount
of all outstanding Letters of Credit immediately prior to such draw.
On each date on which a reduction in the undrawn amount of any
outstanding Letter of Credit occurs other than on account of a
Reborrowing Loan or a payment made to a beneficiary pursuant to a draw
on such Letter of Credit, the Agent shall distribute from the amounts
held pursuant to this clause (iii) an amount equal to the product of
------------
(1) the total amount then held pursuant to this clause (iii) and (2) a
------------
fraction the numerator of which is the amount of such reduction and
the denominator of which is the aggregate undrawn amount of all
outstanding Letters of Credit immediately prior to such reduction,
which amount shall be distributed as provided in clause (ii). At such
-----------
time as no Letters of Credit are outstanding, any remaining amount
held pursuant to this clause (iii), after the distribution therefrom
------------
as provided above, shall be distributed as provided in clause (ii)
-----------
above. Notwithstanding anything herein to the contrary, the L/C
Amount shall be subject to reborrowing either (a) from the cash
collateral deposited with the Common Collateral Agent and/or (b) from
amounts distributed in payment of reimbursement obligations due with
respect to any Letter of Credit at the times, in the amounts and
otherwise on the same terms and conditions as though such amount had
been distributed to the Revolving Lenders pursuant to the terms of
clause FOURTH above.
(iv) Effect of ENBC Prepayments; Reborrowing Availability
----------------------------------------------------
Amount; Procedure for Reborrowing.
---------------------------------
21
(A) The "REBORROWING AVAILABILITY AMOUNT" shall initially be
zero ($0.00). Upon each payment pursuant to the preceding clause
------
(ii) FOURTH (each a "LEVEL 4 PAYMENT"), the Reborrowing
-----------
Availability Amount shall be increased by an amount equal to the
lesser of (x) the aggregate amount of the Liquidity Facility
Commitments, if any, that remain after the reduction thereof
pursuant to the preceding clause (ii) THIRD that corresponds to
-----------------
such Level 4 Payment and (y) the aggregate principal amount of
such Level 4 Payment. Concurrent with any increase in the
Reborrowing Availability Amount as provided in the preceding
sentence, the Liquidity Commitments of each Liquidity Lender
shall be permanently reduced pro tanto.
--- -----
(B) From and after the time at which the Reborrowing
Availability Amount is first increased from zero pursuant to the
preceding clause (iv)(A) (the date of the first such increase in
the Reborrowing Availability Amount, the "REBORROWING
AVAILABILITY COMMENCEMENT DATE"):
(1) each of the Revolving Lenders and the Lead 1996
Lease Lender shall be obligated, in accordance with the
terms hereof and of Section 2.7(4) of the Credit Agreement
--------------
and Section IIA of the 1996 Lease Agreement and subject to
-----------
the other terms and conditions contained herein and therein
and applicable thereto, to reloan its Pro Rata 1996 Share of
the Reborrowing Availability Amount; and
(2) No Liquidity Loans shall be made at any time at
which there are unused Reborrowing Commitments hereunder.
(C) Any authorized officer of the Company may request a
Reborrowing Loan on behalf of the Company during the Reborrowing
Availability Period by giving simultaneous written notice to the
Loan Agent and the 1996 Lease Agent in the form of Exhibit J
---------
attached hereto ("REBORROWING REQUEST") or such other form as
shall be acceptable to the Loan Agent and the 1996 Lease Agent.
Each Reborrowing Request shall constitute a deemed representation
and warranty by the Company that the conditions contained in each
of the Credit Documents to the making of such a Reborrowing Loan
have been satisfied. Each Reborrowing Request must be received by
the Loan Agent and the 1996 Lease Agent prior to 10:00 A.M.,
Chicago time, on the proposed date of such borrowing (which must
be a Business Day) and shall specify (i) the aggregate principal
amount of such borrowing, (ii) the amount of such borrowing to be
funded by the 1996 Lease Lenders and the amount of such borrowing
to be funded by the Revolving Lenders, allocated between the 1996
Lease Lenders and the Revolving Lenders in accordance with their
respective Pro Rata 1996 Shares, and (iii) the proposed date of
borrowing (which must be a Business Day).
22
(D) Subject to the terms and conditions set forth in this
Agreement, the Credit Agreement, the 1996 Master Lease and the
other Credit Documents, each of the Revolving Lenders and 1996
Master Lease Lenders, severally and for itself alone, from time
to time during the Reborrowing Availability Period agrees to make
loans to the Company on a revolving basis, at such times and in
an amount equal to its Pro Rata 1996 Share of the Reborrowing
Availability Amount (each, a "REBORROWING LOAN" and collectively,
the "REBORROWING LOANS"). It is expressly understood and agreed
that, notwithstanding anything to the contrary in any Credit
Document, all of the conditions for the making or repayment of
Reborrowing Loans that are specified in this Agreement or any of
the Credit Agreement, the 1996 Master Lease or the other Credit
Documents must be satisfied before any 1996 Lender has any
obligation to fund its respective share of the relevant
Reborrowing Loan.
(E) The aggregate amount requested from the 1996 Lenders in
connection with each Reborrowing Loan shall be in a principal
amount of $1,000,000 or an integral multiple thereof. All
Reborrowing Loans shall be pro rata among the 1996 Lease Lenders
and the Revolving Lenders in accordance with their respective Pro
Rata 1996 Share.
(F) Voluntary prepayments of the Reborrowing Loans shall be
governed by and subject to the terms of each of Section 2.7 of
-----------
the Credit Agreement and Section IIA of the 1996 Master Lease
-----------
Agreement.
(c) Mandatory Prepayments resulting from Budget Variance. In
----------------------------------------------------
addition to repayments under clauses (a) and (b) above, if at any time and
----------- ---
for any reason the amounts borrowed pursuant to the Liquidity Loans or the
Reborrowing Loans are not used for the purposes and within the parameters
established in the Budget, the Company shall immediately make a mandatory
prepayment of the applicable Secured Obligations in an amount equal to the
amount utilized other than in conformity with the Budget.
(d) Nothing in this Section 3.15 shall be construed to constitute the
------------
consent of any of the parties to this Agreement to any transaction
referred to in clauses (a) and (b) above which is prohibited by other terms
----------- ---
of this Agreement, the Credit Agreement or the 1996 Master Lease Agreement.
In addition, nothing in this Section 3.15 or anywhere else in the Agreement
------------
shall be construed to constitute the consent of Sanwa Business Credit
Corporation to any transaction referred to in clause (a) above with respect
----------
to the Sanwa Collateral which is prohibited by the terms of the documents,
instruments or agreements governing the Supplemental Obligations secured by
the Sanwa Collateral..
23
SECTION 3.16 Collection Account Arrangements. (a) All collections
--------------------------------
of receipts from each individual Store and other proceeds of Collateral
shall be deposited in a Collection Account which prior to the date that is
30 days after the Restructuring Effective Date is subject to a Collection
Account Agreement or pursuant to another similar arrangement for the
collection of such amounts established by the Company or any of its
Subsidiaries and the Common Collateral Agent and shall be transferred in
accordance with the provisions of the respective Collection Account
Agreements. Any of the foregoing collections received by the Company or
any of its Subsidiaries and not so deposited, shall be deemed to have been
received by the Company or such Subsidiary as the Common Collateral Agent's
trustee and, upon the Company's or such Subsidiary's receipt thereof, the
Company shall or shall cause such Subsidiary to immediately transfer all
such amounts into a Collection Account in their original form. Such
deposits shall be remitted to the Common Collateral Agent, the Company or
as the Common Collateral Agent may direct, all in accordance with the
provisions of the Collection Account Agreements. The Company hereby
represents and warrants that as of the Restructuring Effective Date,
Schedule 3.16(a) contains a true and accurate list of all bank accounts
----------------
maintained by the Company and each of its Subsidiaries.
(b) Following the Collection Account Blockage Date and during the
continuance of a Default (other than, during the Suspension Period, a
Suspended Default) giving rise thereto, all payments received by the Common
Collateral Agent and all proceeds of other Collateral received by the
Common Collateral Agent, whether through payment or otherwise, will be the
sole property of the Common Collateral Agent for the benefit of each of the
holders of Secured Obligations and will be deemed received by the
Collateral Agent for application to the Secured Obligations pursuant to the
terms of the Intercreditor Agreement.
(c) Notwithstanding the foregoing, the Company and its Subsidiaries
shall be permitted to maintain bank accounts with parties which are not
subject to Collection Account Agreements provided that (i) the balances in
such accounts are deposited not less frequently than once per week into one
of the Collection Accounts and (ii) the aggregate balance in all such
accounts shall not exceed $350,000 at any time.
1.6 ARTICLE IV OF THE FACILITIES AGREEMENT IS AMENDED AS FOLLOWS:
----------
(A) SECTION 4.1 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE
-----------
CLAUSES (10) AND (11) THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE
FOLLOWING THEREFOR:
(10) Liens arising (i) pursuant to the 1996 Lease Documents, (ii)
pursuant to the 1995 Lease Documents, (iii) in favor of the Common
Collateral Agent to secure the Liquidity Obligations, the Revolving
Obligations, the 1996 Lease Obligations, the Cash Management
Obligations and the Supplemental Obligations and (iv) on the Sanwa
Collateral to secure
24
the Supplemental Obligations owing to Sanwa Business Credit Corporation;
provided, that:
--------
(a) at no time shall the Financial Lease Debt arising from
the 1995 Lease Documents exceed in principal amount $59,670,000,
(b) at no time shall the obligations under the 1995 Lease
Documents be secured by any collateral other than the 1995 Lease
Collateral;
(c) at no time shall the Supplemental Obligations to Sanwa
Business Credit Corporation exceed in principal amount
$6,980,000; and
(d) each holder of the Debt secured by such Liens other than
the 1995 Lease Lenders and the 1996 Lease Lenders (other than the
Lead 1996 Lease Lenders) shall be a party to the Intercreditor
Agreement and each of the 1996 Lease Lenders and each other
participant in any of the Liquidity Obligations, the Revolving
Obligations, the 1996 Lease Obligations, the Cash Management
Obligations and the Supplemental Obligations shall acknowledge
and agree to be bound by the terms of the Intercreditor
Agreement;
(11) Other Liens incurred prior to the Restructuring Effective
Date and which are not of the type permitted by the foregoing clauses
-------
(1) through (10), provided, that the aggregate amount of Debt secured
--- ---- --------
by such Liens shall in no event exceed Ten Million Dollars
($10,000,000).
(B) SECTION 4.2 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE
-----------
CLAUSES (1), (6), (8), (9), (12) AND (13) THEREOF IN THEIR ENTIRETY AND TO
SUBSTITUTE THE FOLLOWING THEREFOR:
(1) Debt of the Company:
(a) under the Credit Documents, provided, that at no time
--------
shall (i) Debt consisting of Revolving Obligations arising from
the Credit Agreement exceed $57,115,000, (ii) Debt consisting of
Liquidity Obligations arising from the Credit Agreement exceed
$35,000,000, (iii) Debt arising from the 1996 Master Lease
Agreement exceed $166,125,000;
(b) arising out of the Cash Management Arrangements; and
(c) Financial Lease Debt arising from the 1995 Lease
Documents, provided at no time shall such Financial Lease Debt
--------
exceed in principal amount $59,670,000; ...
25
(6) Debt which constitutes indebtedness for borrowed money owed
by a Financed Franchisee to a Person other than the Company
(including, without limitation, any funding by landlords of leasehold
improvements) which indebtedness is in existence on the date such
Financed Franchisee becomes a Financed Subsidiary, and any renewal,
extension or refinancing of such Debt, provided, that both before and
--------
after giving effect to such Financed Franchisee becoming a Financed
Subsidiary no Default or Event of Default (other than, during the
Suspension Period, a Suspended Default) shall exist or be continuing,
and provided further, that the outstanding principal amount of such
-------- -------
Debt shall at no time exceed the principal amount of such Debt
outstanding on the date such Financed Franchisee becomes a Financed
Subsidiary;
(8) Debt which constitutes Current Pay Subordinated Debt,
provided, that such Debt was incurred prior to the Restructuring
--------
Effective Date;
(9) Debt which constitutes Non-Current Pay Subordinated
Debt, provided that such Debt was incurred prior to the
--------
Restructuring Effective Date;...
(12) Debt incurred or assumed in connection with
Investments and other acquisitions permitted under this
Agreement, provided, that such Debt was incurred prior to the
--------
Restructuring Effective Date; and
(13) Unsecured Debt not of the type described in the
foregoing clauses (1) through (12) in an aggregate principal
----------- ----
amount not to exceed at any one time outstanding Twenty-Five
Million Dollars ($25,000,000), provided, that such Debt was
--------
incurred prior to the Restructuring Effective Date and not in
contemplation thereof.
(C) SECTION 4.4 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE THE
REFERENCES THEREIN TO "A MASTER LEASE" OR THE "THE MASTER LEASES" THEREFROM
AND TO SUBSTITUTE THE TERMS "THE 1995 MASTER LEASE" THEREFOR.
(D) SECTION 4.5 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE THE
TERMS THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
SECTION 4.5 Sale and Leaseback. Sell, transfer, or otherwise
------------------
dispose of, or permit any Restricted Subsidiary to sell, transfer, or
otherwise dispose of, any real or personal property or fixtures to any
Person and thereafter directly or indirectly lease back the same or similar
property.
26
(E) SECTION 4.6 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE THE
-----------
TERMS THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
SECTION 4.6 Dividends. Declare or pay any dividends; or
---------
purchase, redeem, retire, or otherwise acquire for value any of its
capital stock now or hereafter outstanding; or make any distribution
of assets to its stockholders as such whether in cash, assets, or
obligations of the Company; or allocate or otherwise set apart any sum
for the payment of any dividend or distribution on, or for the
purchase, redemption, or retirement of, any shares of its capital
stock; or make any other distribution by reduction of capital or
otherwise in respect of any shares of its capital stock; or permit any
of its Restricted Subsidiaries (unless failure to so permit would
constitute a breach of fiduciary duty) to purchase or otherwise
acquire for value any stock of the Company or another Restricted
Subsidiary, except that (1) the Company may declare and deliver
dividends and make distributions payable solely in (a) common capital
stock of the Company or (b) dividends on any Permitted Junior
Securities (as defined below) payable in Permitted Junior Securities
of the same type, (2) in connection with the purchase of minority
equity interests held by Persons in any Restricted Subsidiary of the
Company, the Company may issue its 10% Series A Exchangeable Preferred
(par value .01 per share) or other equity securities which are pari
passu or junior thereto; provided (x) the redemption date thereof
--------
shall not be earlier than the redemption date in the 10% Series A
Exchangeable Preferred as of the Restructuring Effective Date, (y) no
cash dividends shall be payable in respect thereof and (z) the terms
and conditions thereof shall not be adverse in any respect to the
interests of the Lenders (collectively, the "Permitted Junior
Securities") or (3) Guarantors may purchase or otherwise acquire for
value stock of the Company, provided, that any such Guarantor shall
--------
use such stock as consideration for or in connection with any
acquisition permitted pursuant to this Agreement.
(F) SECTION 4.7 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE THE
-----------
TERMS THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
SECTION 4.7 Sale of Assets. Provided the proceeds thereof
--------------
are paid in accordance with the provisions of Section 3.15(a), if
---------------
applicable, sell, lease, assign, transfer, or otherwise dispose of, or
permit any Restricted Subsidiary to sell, lease, assign, transfer, or
otherwise dispose of, any of its now owned or hereafter acquired
assets (including, without limitation, shares of stock and
indebtedness of Restricted Subsidiaries, receivables, real property,
leasehold interests, franchise agreements, trademarks, trade names,
copyrights, licenses and other general intangible interests), except:
(1) for assets disposed of in the ordinary course of
business;
27
(2) for the sale or other disposition of assets no longer
used or useful in the conduct of its business provided that the
aggregate amount of all such dispositions from and after the
Restructuring Effective Date shall not exceed $250,000;
(3) for (a) the sale, leasing or other disposition of real
property or the subleasing of leasehold interests entered into
prior to the Restructuring Effective Date (or, in the case of the
five properties for which de facto lease arrangements were
-- -----
entered into prior to the Restructuring Effective Date but for
which the formal leases are not entered into until after the
Restructuring Effective Date and the cash flow from which is
reflected in the Budget, entered into after the Restructuring
Effective Date) to an Unrestricted Subsidiary or a franchisee of
an Unrestricted Subsidiary for the operation of a retail bagel
outlet or (b) the leasing of real property or the subleasing of
leasehold interests to any other Person entered into prior to the
Restructuring Effective Date;
(4) that any Restricted Subsidiary may sell, lease, assign,
or otherwise transfer its assets (other than the Sanwa
Collateral) to the Company or any Guarantor; provided, adequate
--------
provision has been made, on or prior to the consummation of such
transaction for the continuation of the liens of the Common
Collateral Agent and (if applicable) the 1996 Lease Agent in the
assets so transferred pursuant to documentation reasonably
acceptable to the Common Collateral Agent and and (if
applicable) the 1996 Lease Agent provided further that in the
case of a transfer to a Guarantor which is a Special Purpose
Subsidiary, such assets are of a type permitted to be owned by a
Special Purpose Subsidiary pursuant to clause (3) of the
definition of "Special Purpose Subsidiary";
(5) that the Company or any Restricted Subsidiary may sell,
lease, assign or otherwise transfer to a Franchisee any real
property, leasehold interests or personal property associated
with the operation of Stores, provided that (i) such sale, lease,
--------
assignment or transfer is on commercially reasonable terms
negotiated at arms' length; (ii) after giving effect to such
sale, lease, assignment or transfer no Default or Event of
Default shall exist or be continuing (other than, during the
Suspension Period, a Suspended Default) and (iii) the Net
28
Cash Proceeds thereof are paid to the Common Collateral Agent
pursuant to Section 3.15;
------------
(6) that the Company may sell the capital stock of ENBC
which it owns (and the Common Collateral Agent shall promptly
release any Liens in favor of the Common Collateral Agent on such
capital stock); provided, that (a) such sale is on commercially
--------
reasonable terms negotiated at arms' length; (b) at least ninety
percent (90%) of the aggregate sales price is for cash; (c) any
non-cash proceeds received by the Company are pledged to the
Common Collateral Agent pursuant to the Pledge Agreement; and (d)
all Net Cash Proceeds received by the Company from such sale are
paid to the Common Collateral Agent pursuant to Section 3.15.
------------
(7) for any issuances or sales of the capital stock,
partnership units or other equity interests of any Restricted
Subsidiary or other Person permitted pursuant to Section 4.11;
------------
provided the Net Cash Proceeds thereof are paid to the Common
Collateral Agent as an Asset Sale Prepayment;
(8) for any sale, lease, assignment, transfer or other
disposition permitted or required by any Master Lease as such
agreement is constituted as of the Restructuring Effective Date
and without taking into account any subsequent amendment thereto
other than, in the case of the 1996 Master Lease, amendments
thereto that are not in contravention of the Intercreditor
Agreement;
(9) for any disposition of operating assets permitted by the
first proviso in Section 3.4; provided the Net Cash Proceeds
-----------
thereof are, subject to the second proviso of Section 3.4, paid
to the Common Collateral Agent as an Asset Sale Prepayment;
(10) for any transfer by the Company to a Guarantor of the
Company's conversion rights, options, first refusal rights or
preemptive rights provided in any Financed Franchisee Loan
Documents or otherwise, provided that such conversion rights or
--------
other rights are exercised by the Guarantor within 10 days after
such transfer and in connection therewith the Company shall be in
compliance with the provisions of Section 3.11; and
------------
(11) for other dispositions by the Company or any Restricted
Subsidiary not of the type described in the foregoing clauses (1)
-----------
29
through (10), provided, that the Net Cash Proceeds thereof are
-- --------
paid to the Common Collateral Agent as an Asset Sale Prepayment;
and in the case of any such sale, assignment, transfer or other
disposition of title, the Common Collateral Agent and (if applicable)
the 1996 Lease Agent shall promptly execute, at the Company's expense,
all documents reasonably necessary to release any Lien in favor of the
Common Collateral Agent or the 1996 Lease Agent, as the case may be,
on the disposed assets (but not the proceeds thereof).
(G) SECTION 4.8 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE THE
-----------
TERMS OF CLAUSES (1), (3), (5) AND (11) THEREOF IN THEIR ENTIRETY AND TO
----------- --- --- ----
SUBSTITUTE THE FOLLOWING THEREFOR:
(1) loans and advances made by the Company to (a) Financed
Franchisees and either (y) outstanding as of the Restructuring
Effective Date or (z) made after the Restructuring Effective Date
provided such loans and advances are made consistent with and within
the parameters set forth in the Budget; provided, that (i) the initial
--------
loans or advances to any Financed Franchisee are or have been made
pursuant to Financed Franchisee Loan Documents in which the Common
Collateral Agent for the benefit of the Creditors as their interests
appear shall have been granted a security interest pursuant to, and
which Financed Franchisee Loan Documents are subject to the terms of,
the Collateral Assignment of Loan, (ii) such loans or advances are
evidenced by promissory notes pledged to the Common Collateral Agent
for the benefit of the Creditors as their interests appear pursuant to
the Pledge Agreement, (iii) all such loans and advances to Financed
Franchisees shall be secured in the manner described in paragraph (3)
-------------
of Schedule 1.1.B, and (iv) all Liens in favor of the Company securing
--------------
such loans and advances are duly perfected; (b) Financed Subsidiaries;
provided, that (i) such loans and advances are made pursuant to
--------
Financed Subsidiary Loan Documents in which the Common Collateral
Agent for the benefit of the Creditors as their interests appear shall
have been granted a security interest pursuant to, and which Financed
Subsidiary Loan Documents are subject to the terms of, the Collateral
Assignment of Loan, (ii) such loans or advances are evidenced by
promissory notes pledged to the Common Collateral Agent for the
benefit of the Creditors as their interests appear pursuant to the
Pledge Agreement and (iii) all Liens in favor of the Company securing
such loans and advances are duly perfected prior to the initial loan
or advance thereunder; (c) Guarantors; provided, that such loans and
--------
advances are evidenced by promissory notes pledged to the Common
Collateral Agent for the benefit of the Creditors as their interests
appear pursuant to the Pledge Agreement; and (d) to the extent and
only to the extent a Sublease may be deemed to be
30
a loan or advance, to Franchisees or Financed Subsidiaries as lessees
under a Sublease; ...
(3) Investments in Unrestricted Subsidiaries made prior to the
Restructuring Effective Date;...
(5)(a) Investments in Progressive Food Concepts, Inc., a
Delaware corporation, made after the Restructuring Effective Date but
only to the extent committed to prior to (but not in contemplation of)
the Restructuring Effective Date and consistent with the Budget; and
(b) loans and advances by the Company or Progressive Food Concepts,
Inc. to Harry's Xxxxxx'x Market, Inc., a Georgia corporation, in a
maximum outstanding principal amount not to exceed at any time the
amount of loans and advances which are outstanding on, or for which
commitments have otherwise been made prior to (but not in
contemplation of) the Restructuring Effective Date and consistent with
the Budget, provided, that all such Investments (whether in the form
--------
of equity or Debt) are pledged to the Common Collateral Agent for the
benefit of the Creditors as their interests appear pursuant to the
Pledge Agreement;...
(11) loans and advances not of the type described in the
foregoing clauses (1) through (10) in the aggregate principal amount
not to exceed at any one time outstanding Six Million Dollars
($6,000,000), provided such loans and advances are pledged to the
Common Collateral Agent pursuant to the Pledge Agreement.
(H) SECTION 4.9 OF THE FACILITIES AGREEMENT IS AMENDED TO RENUMBER
-----------
CLAUSE (5) THEREOF AS CLAUSE (6) AND TO ADD THE FOLLOWING THERETO AS NEW
CLAUSE (5 ):
(5) guaranties executed by the Company or any of its
Subsidiaries to guaranty any Cash Management Obligations or
Supplemental Obligations or otherwise entered into in favor of any of
the Creditors on or prior to the Restructuring Effective Date and
which are described on Schedule 4.9 hereto; and
------------
(I) SECTION 4.12 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE
------------
CLAUSE (1) THEREOF IN ITS ENTIRETY AND TO SUBSTITUTE THE FOLLOWING
THEREFOR:
(1) the Company, any Guarantor, any Financed Subsidiary or any
Special Purpose Subsidiary may purchase, acquire or otherwise take
title to real property and to "Lease Asset" (as defined in the 1996
Master Lease) (a) in accordance with the terms and provisions of the
1996 Master Lease Agreement or (b) on which Stores are to be operated;
provided that such real property or Lease Asset are subject to a lien
in favor of either the Common
31
Collateral Agent or the 1996 Lease Agent, in either event, on behalf
of the Creditors as their interests appear;
(j) SECTION 4.13 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE
------------
CLAUSE (2) THEREOF IN ITS ENTIRETY AND TO SUBSTITUTE THE FOLLOWING
THEREFOR:
(2) Subordinated Debt and interest thereon may be converted into
equity of the Company.
(k) SECTION 4.14 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE
------------
CLAUSE (2) THEREOF IN ITS ENTIRETY AND TO SUBSTITUTE THE FOLLOWING
THEREFOR:
(2) permit the aggregate principal amount of Debt of all Financed
Franchisees which is owed to Persons other than the Company and which
is senior to any Debt of such Financed Franchisee owed to the Company
to exceed at any time $14,575,000.
(l) SECTION 4.15 OF THE FACILITIES AGREEMENT IS AMENDED TO ADD THE
------------
FOLLOWING AT THE END THEREOF:
During the Specified Liquidity Period, the Company shall not, and
shall not suffer or permit any Subsidiary to, use any portion of the
credit accommodations extended by the Creditors after the
Restructuring Effective Date, directly or indirectly, for any purpose
or in any amount not consistent with the Budget.
(m) ARTICLE IV OF THE FACILITIES AGREEMENT IS AMENDED TO ADD THE
FOLLOWING AT THE END THEREOF:
SECTION 4.16 Fixed Fee Distribution Agreement. During the
--------------------------------
Specified Liquidity Period, the Company shall not amend, modify or
supplement (or consent to any amendment, modification or supplement
of), the Fixed Fee Distribution Agreement where such amendment,
modification or supplement provides for the following or which has any
of the following effects:
(i) requires the Company, any Restricted Subsidiary, any
Financed Subsidiary, any Financed Franchisee, any Affiliate of
the Company, any Affiliate of any of the foregoing, or any other
party to whom the Fixed Fee Distribution Agreement applies to
make payment to Marriott or any other party for goods or services
within fewer than seven (7) days from the date of the provision
of such goods or services (five (5) days on each Friday for goods
delivered the prior weekend); or
32
(ii) amends or modifies any condition, covenant or default
therein or supplements such agreement with additional
conditions, covenants or defaults in a manner which is more
onerous or more restrictive to the Company, any Restricted
Subsidiary, any Financed Subsidiary, any Financed Franchisee, any
Affiliate of the Company, any Affiliate of any of the foregoing,
or any other party to whom the Fixed Fee Distribution Agreement
applies or which is otherwise materially adverse to the Company,
any Restricted Subsidiary, any Financed Subsidiary, any Financed
Franchisee, any Affiliate of the Company, any Affiliate of any of
the foregoing, or any other party to whom the Fixed Fee
Distribution Agreement applies and/or the Creditors.
1.7 ARTICLE V OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE THE LEAD-IN
LANGUAGE AT THE BEGINNING OF SECTION 5.3 IN ITS ENTIRETY AND TO SUBSTITUTE THE
-----------
FOLLOWING THEREFOR:
Maintain, for each fiscal quarter occurring during the respective
fiscal periods set forth below, average Store Revenues for all Stores
(whether operated by the Company or any of its Subsidiaries or
Franchisees), as determined as of the last day of each fiscal period,
of not less than the amount set forth below opposite such fiscal
period:
1.8 THE FACILITIES AGREEMENT IS AMENDED TO ADD THE FOLLOWING ARTICLE V-A
-----------
IMMEDIATELY PRECEDING ARTICLE VI.
----------
ARTICLE V-A
RESTRUCTURING COVENANTS
-----------------------
So long as any Debt of the Company or any Guarantor arising under any
of the Credit Documents shall remain unpaid or any Creditor shall have any
contractual obligation under any Credit Document to extend credit of any
nature to the Company, the Company will:
SECTION 5A.1 General EBITDAL. Maintain cumulative System EBITDAL,
---------------
tested for the period from April 20, 1998 to the end of each
accounting period set forth below, that is at least the amount set
forth below for the period ended with the accounting period set forth
below (the "GENERAL EBITDAL COVENANT"):
33
MEASUREMENT PERIOD: MINIMUM CUMULATIVE
FROM APRIL 20, 1998 TO THE END EBITDAL FOR SUCH
OF THE ACCOUNTING PERIOD SET MEASUREMENT PERIOD
FORTH BELOW
-------------------------------------------------
Accounting Period 6 ending ($4,400,000)
June 14, 1998
-------------------------------------------------
Accounting Period 7 ending July ($10,800,000)
12, 1998
-------------------------------------------------
Accounting Period 8 ending ($18,300,000)
August 9, 1998
-------------------------------------------------
Accounting Period 9 ending ($20,400,000)
September 8, 1998
-------------------------------------------------
Accounting Period 10 ending ($21,800,000)
October 4, 1998
-------------------------------------------------
Notwithstanding anything to the contrary contained in this Agreement
or the 1996 Master Lease Agreement, the Company shall, on and after
the Restructuring Effective Date, continue to calculate System
EBITDAL on a basis consistent with its calculations prior to the
Restructuring Effective Date.
SECTION 5A.2 Liquidity EBITDAL. Maintain during the Specified
-----------------
Liquidity Period cumulative System EBITDAL, tested for the period from
April 20, 1998 to the end of each accounting period set forth below,
that is at least the amount set forth below for the period ended with
the accounting period set forth below (the "LIQUIDITY EBITDAL
COVENANT"):
MEASUREMENT PERIOD: MINIMUM CUMULATIVE
FROM APRIL 20, 1998 TO THE END EBITDAL FOR SUCH
OF THE ACCOUNTING PERIOD SET MEASUREMENT PERIOD
FORTH BELOW
-------------------------------------------------
Accounting Period 6 ending ($4,000,000)
June 14, 1998
-------------------------------------------------
Accounting Period 7 ending July ($10,000,000)
12, 1998
-------------------------------------------------
34
MEASUREMENT PERIOD: MINIMUM CUMLATIVE
FROM APRIL 20, 1998 TO THE END EBITDAL FOR SUCH
OF THE ACCOUNTING PERIOD SET MEASUREMENT PERIOD
FORTH BELOW
Accounting Period 8 ending ($17,000,000)
August 9, 1998
Accounting Period 9 ending ($18,500,000)
September 8, 1998
Accounting Period 10 ending ($19,500,000)
October 4, 1998
------------------------------------------------------
Notwithstanding anything to the contrary contained in this Agreement
or the 1996 Master Lease Agreement, the Company shall, on and after
the Restructuring Effective Date, continue to calculate System
EBITDAL on a basis consistent with its calculations prior to the
Restructuring Effective Date.
SECTION 5A.3 Budget Variance. Not, and will not permit its
---------------
Restricted Subsidiaries, Financed Subsidiaries, and Financed
Franchisees, during the Specified Liquidity Period to permit actual
expenditures to vary from the Budget by more than the variance
parameters set forth therein.
1.9 ARTICLE VI OF THE FACILITIES AGREEMENT IS AMENDED AS FOLLOWS:
(A) TO DELETE THE TERMS OF SECTION 6.1 THEREOF IN THEIR ENTIRETY AND
-----------
TO SUBSTITUTE THE FOLLOWING THEREFOR:
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1 Events of Default. If any of the following events
("EVENTS OF DEFAULT") shall occur:
(1) Any representation or warranty made or deemed made
(pursuant to any Credit Document) by the Company or any
Subsidiary in this Agreement or any other Credit Document or
which is contained in any certificate, document, opinion, or
financial or other statement furnished at any time under or in
connection with any Credit Document shall prove, in light of the
circumstances under which it was made, to have been incorrect in
any material respect on or as of the date made or deemed made;
35
(2) The Company or any Subsidiary shall fail to perform or
observe any term, covenant or agreement contained in Sections
3.15(a), 3.15(b), 3.16, 4.3, 4.4, or 4.6 through 4.14 of this
Agreement applicable thereto;
(3) The Company or any Subsidiary shall fail to perform or
observe any term, covenant or agreement contained in Sections
4.1, 4.2, 4.5, in Article V or in Section 5A.1 of this Agreement
and such failure shall continue for four (4) Business Days after
the earlier of discovery, notification or final calculation
thereof applicable thereto;
(4) The Company or any Subsidiary shall fail to perform or
observe any other term, covenant, or agreement contained in any
Credit Document applicable thereto (other than those Sections
referenced in the foregoing clauses (2) and (3) and other than
those defaults arising under clause (14) below) on its part to be
performed or observed and such failure shall continue for fifteen
(15) Business Days following notice thereof from any of the Loan
Agent, the 1996 Lease Agent, the Required Liquidity Lenders
(during the Specified Liquidity Period) or the Required
Creditors;
(5) The Company or any Restricted Subsidiary shall (i) fail
to make any payment of principal, interest, premium, rents or
fees with respect to any indebtedness for borrowed money
(including, without limitation, the Liquidity Note, the Revolving
Notes and the 1996 Lease Obligations) or any Financial Lease Debt
of the Company or such Restricted Subsidiary in an amount (for
indebtedness other than under the Credit Documents) in excess of
$1,000,000, when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) and any
applicable grace periods shall have expired (and in the case of
indebtedness for borrowed money, other than the Revolving Notes,
the Liquidity Note or the 1996 Lease Obligations or Financial
Lease Debt, the amount which the Company or any Restricted
Subsidiary so fails to pay is in excess of $1,000,000), or (ii)
fail to perform or observe any term, covenant, or condition on
its part to be performed or observed under any agreement or
instrument relating to any indebtedness for borrowed money
(including, without limitation, the Revolving Notes, the
Liquidity Note and the 1996 Lease Obligations) or any Financial
Lease Debt of the Company or such Restricted Subsidiary in an
amount in excess of $1,000,000, when required to be performed or
observed, if the effect of such failure to perform or observe is
to accelerate, or to
36
permit the acceleration, after the giving of notice, of the
maturity of such indebtedness, unless such failure to perform or
observe shall be waived by the holder of such indebtedness or
Financial Lease Debt without any material payment or other
material accommodation on the part of the Company or such
Restricted Subsidiary; or any such indebtedness or Financial
Lease Debt shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof;
(6) The Company, any of its Significant Subsidiaries or any
aggregation of its Subsidiaries which together would constitute a
Significant Subsidiary (a) shall generally not, or shall be
unable to, or shall admit in writing its inability to pay its
debts as such debts become due; or (b) shall make an assignment
for the benefit of creditors, petition or apply to any tribunal
for the appointment of a custodian, receiver, or trustee for it
or a substantial part of its assets; or (c) shall commence any
proceeding under any bankruptcy, reorganization, arrangements,
readjustment of debt, dissolution, or liquidation law or statute
of any jurisdiction, whether now or hereafter in effect; or (d)
shall have any such petition or application filed or any such
proceeding commenced against it in which an order for relief is
entered or adjudication or appointment is made and which remains
undismissed for a period of sixty (60) days or more; or (e) by
any act or omission shall indicate its consent to, approval of,
or knowing acquiescence in any such petition, application, or
proceeding, or order for relief, or the appointment of a
custodian, receiver, or trustee for all or any substantial part
of its properties; or (f) shall suffer any such custodianship,
receivership, or trusteeship to continue undischarged for a
period of sixty (60) days or more;
(7) Any Financed Franchisee shall fail to pay when due
(whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) amounts which individually or
in the aggregate equal or exceed $2,000,000 owed to the Company
in connection with indebtedness for borrowed money (including any
interest or premium thereon) and any applicable grace period
shall have expired;
(8) One or more judgments, decrees, or orders for the
payment of money in excess of the greater of 3% of the
consolidated net worth of the Company and its Restricted
Subsidiaries at such time or of two million Dollars ($2,000,000)
in the aggregate shall be rendered against the Company or any of
its Subsidiaries, and such judgments, decrees, or orders shall
continue unsatisfied and in effect for a period of twenty (20)
37
consecutive days without being vacated, discharged, satisfied,
escrowed, stayed or bonded pending appeal;
(9) Any of the following events occur or exist with respect
to the Company or any ERISA Affiliate: (a) any Prohibited
Transaction involving any Plan; (b) any Reportable Event with
respect to any Plan; (c) the filing under Section 4041 of ERISA
of a notice of intent to terminate any Plan or the termination of
any Plan; (d) any event or circumstance that might reasonably
constitute grounds entitling the PBGC to institute proceedings
under Section 4042 of ERISA for the termination of, or for the
appointment of a trustee to administer, any Plan, or the
institution by the PBGC of any such proceedings; (e) complete or
partial withdrawal under Section 4201 or 4204 of ERISA from a
Multiemployer Plan or the reorganization, insolvency, or
termination of any Multiemployer Plan; and in each case above,
such event or condition, together with all other events or
conditions, if any, would be reasonably likely in the opinion of
either the Loan Agent or the Lease Agent to subject the Company
to any tax, penalty, or other liability to a Plan, a
Multiemployer Plan, the PBGC, or otherwise (or any combination
thereof) which in the aggregate exceed two million Dollars
($2,000,000) and such event or condition remains unsatisfied
after fifteen (15) Business Days from its initial occurrence or
results in a Lien (subject to Liens permitted under Section 4.1)
on Company's assets;
(10) Any Guaranty shall, at any time after its execution
and delivery and for any reason cease to be in full force and
effect or shall be declared null and void, or the validity or
enforceability thereof shall be contested by the respective
Guarantor, or the respective Guarantor shall deny it has any
further liability or obligation under or shall fail to perform
its material obligations under such Guaranty (subject to any
applicable grace periods set forth therein);
(11) With respect to any Common Collateral Document or 1996
Lease Document (to the extent it grants to the 1996 Lease Agent a
security interest or other Lien):
(a) any such Common Collateral Document or 1996 Lease
Document shall for any reason cease to be valid and binding
on or enforceable against the Company or any Subsidiary
party thereto or the Company or any Subsidiary shall so
state in writing or bring an action to limit its obligations
or liabilities thereunder; or
38
(b) such Common Collateral Document or 1996 Lease
Document shall for any reason (other than pursuant to the
terms thereto) cease to create a valid security interest in
the Collateral purported to be covered thereby or such
security interest shall for any reason cease to be a
perfected security interest having the priority as set forth
in the Credit Documents subject only to Permitted Liens
(other than as a result of a release).
(12) Any Change of Control;
(13) Any Material Adverse Change; or
(14) Any of the following shall occur at any time during the
Specified Liquidity Period:
(a) Marriott, any party entitled to take such
action pursuant to the Fixed Fee Distribution
Agreement, or any party providing the types of goods or
services that were being provided pursuant to the Fixed
Fee Distribution Agreement as of the Restructuring
Effective Date shall either (i) require the Company,
any Subsidiary, any Financed Subsidiary, any Financed
Franchisee, any Affiliate of the Company, any Affiliate
of any of the foregoing, or any other party to whom the
Fixed Fee Distribution Agreement applies to make
payment to Marriott or any other party for goods or
services within less than seven (7) days from the date
of the provision of such goods or services (five (5)
days on each Friday for goods delivered the prior
weekend), or (ii) declare a default, event of default,
breach, or take any enforcement or similar action
pursuant to the Fixed Fee Distribution Agreement or any
other agreement (whether or not written) pursuant to
which goods or services are being provided and such
requirement under clause (i) or declaration under
clause (ii) continues for five (5) Business Days from
the date of its initial occurrence provided it is
--------
expressly understood and agreed that during such five-
Business Day period the Borrower shall not make
payments or otherwise reduce the outstanding principal
balance of the accounts payable to Marriott other than
as a result of ordinary
39
course fluctuations in the daily distribution
requirements of the Company and its Subsidiaries; or
(b) The Company or any Subsidiary shall fail to
perform or observe any term, covenant or agreement
contained in Section 3.15(c), the last sentence of
---------------
Section 4.15, Section 4.16, Section 5A.2, Section 5A.3,
------------ ------------ ------------ ------------
Section 6.1(14) or Section 2(c) of the Confidential
--------------- ------------
Agreement.
(B) TO ADD THE FOLLOWING THERETO IMMEDIATELY AFTER SECTION 6.2:
-----------
SECTION 6.3 Suspension Period Forbearance. During the
-----------------------------
Suspension Period, the Common Collateral Agent, the Revolving Lenders,
Liquidity Lenders and Issuing Lenders, acting herein through the Loan
Agent and the 1996 Lease Lenders, acting herein through the 1996 Lease
Agent, agree to refrain from exercising the enforcement rights
afforded to such parties under the Credit Agreement, 1996 Lease
Agreement, Intercreditor Agreement or the other Credit Documents and
applicable law in each case which arise upon the occurrence of a
Suspended Default (it being understood that for all purposes hereof
and under the other Credit Documents, any Suspended Default that shall
have occurred or shall occur during the Suspension Period, shall be
deemed, during such Suspension Period, not to be a "Default"),
provided that such Creditors shall retain their rights that exist
prior to the occurrence of a Suspended Default with respect to the
disposition by any of the Company or any of its Subsidiaries of any
collateral securing the Secured Obligations. On the Suspension
Termination Date, each such Suspended Default, shall be deemed to have
occurred and be continuing from and after the original date on which
such Suspended Default shall have actually occurred and such Creditors
shall have full right, power and authority to exercise the enforcement
rights afforded to such Creditors upon the occurrence of a Default
under the Credit Documents and applicable law.
1.10 ARTICLE VII OF THE FACILITIES AGREEMENT IS AMENDED TO ADD THE
FOLLOWING AT THE END THEREOF:
7.13 Press Releases. The Company shall not and shall not permit
--------------
any of its Affiliates to issue any press release or other public
disclosure with respect to this Agreement, the other Credit Documents
or the transactions which are the subject matter thereof which
mentions or uses the name of any of the Lenders or 1996 Lease Lenders
(in their individual capacities or in any of their various
representative capacities) or any of their respective Affiliates
without the prior written approval of such Lender. The Company shall
not and shall not permit any of its Affiliates to issue in the future
any press releases or other public disclosure using the name of any of
the Lenders or 1996 Lease Lenders (in their
40
individual capacities or in any of their various representative
capacities) or any of their respective Affiliates or referring to this
Agreement or the other Credit Documents without the prior written
consent of such Lender or 1996 Lease Lender unless the Company or such
Affiliate is required to do so under law and then, in any event, the
Company or such Affiliate will consult with the applicable Lender,
1996 Lease Lender, Lenders, 1996 Lease Lenders before issuing such
press release or other public disclosure.
7.14. No Duties Imposed Upon Co-Agents. None of the Persons
--------------------------------
identified in this Agreement as a "Co-Agent" shall have any right,
power, obligation, liability, responsibility or duty under this
Agreement or any of the other Credit Documents in such capacity.
Without limiting the foregoing, none of the Persons identified in this
Agreement as a "Co-Agent" shall have or be deemed to have any
fiduciary duty to or fiduciary relationship with any Lender. Each of
the Lenders acknowledges that it has not relied, and will not rely, on
any of the Persons so identified in deciding to enter into this
Agreement, the Second Credit Agreement Amendment or the Intercreditor
Agreement or in taking or not taking action hereunder or thereunder.
1.11 THE FACILITIES AGREEMENT IS FURTHER AMENDED TO DELETE THE SCHEDULES
AND EXHIBITS THERETO IN THEIR ENTIRETY AND TO SUBSTITUTE THE ATTACHED SCHEDULE
AND EXHIBITS THEREFOR.
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall not
---------------------------
become effective unless on or before July 16, 1998 each of the following shall
have occurred:
(a) this Amendment shall have been executed by the Company, the Loan
Agent and the 1996 Lease Agent;
(b) each of the conditions set forth in Section 3 of the Second Credit
---------
Amendment and Section 3 of the 1996 Lease Amendment No. 2 shall have been
---------
satisfied;
(c) the Company shall have paid all fees required to be paid to the
Agents (whether for their own accounts or the accounts of the Creditors set
forth therein) pursuant to the terms of the Confidential Agreement on or
prior to the effectiveness hereof;
(d) the Company shall have reimbursed the Agents for all fees and
expenses of counsel, financial advisors and other professionals;
41
(e) the Agents shall have received the other documents, instruments
and agreements set forth on the List of Closing Documents (Restructuring)
and the List of Closing Documents (Rollup) attached as Exhibit K hereto,
---------
in each case in form and substance acceptable to the Agents and duly
executed by the parties thereto; and
(f) the Agents shall have received such other approvals, opinions or
documents as the Agents or any Creditor may reasonably request.
SECTION 3. REPRESENTATIONS AND WARRANTIES. To induce the Agents to
------------------------------
enter into this Amendment, the Company represents and warrants to each such
party as of the date hereof that:
(a) This Amendment and the Facilities Agreement as previously executed and
as amended hereby, constitute legal, valid and binding obligations of the
Company and are enforceable against the Company in accordance with their terms.
(b) Upon the effectiveness of this Amendment, the Company hereby reaffirms
all covenants, representations and warranties made in the Facilities Agreement
and the other Loan Documents and 1996 Lease Documents to the extent the same are
not amended or waived hereby or pursuant to the Second Credit Agreement
Amendment or the 1996 Lease Amendment No. 2, as the case may be, agrees that all
such covenants, representations and warranties shall be deemed to have been
remade as of the effective date of this Amendment.
(c) No Default or Event of Default, other than the Suspended Defaults,
has occurred under the Facilities Agreement, the Credit Agreement or the 1996
Master Lease.
SECTION 4. REFERENCE TO THE EFFECT ON THE FACILITIES AGREEMENT.
---------------------------------------------------
(a) Upon the effectiveness of Section 1 hereof, on and after the date
---------
hereof, each reference in the Facilities Agreement and the other Credit
Documents to "this Facilities Agreement," "hereunder," "hereof," "herein,"
"thereunder," "thereof," "therein" or words of like import shall mean and be a
reference to the Facilities Agreement as amended hereby.
(b) Except as specifically modified or waived above, the Facilities
Agreement and all other documents, instruments and agreements executed and/or
delivered in connection therewith, shall remain in full force and effect, and
are hereby ratified and confirmed.
SECTION 5. GOVERNING LAW. This Amendment shall be governed by and
-------------
construed in accordance with the internal laws of the State of New York.
42
SECTION 6. HEADINGS. Section headings in this Amendment are
--------
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
SECTION 7. COUNTERPARTS. This Amendment may be executed by one or
------------
more of the parties to the Amendment on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. Facsimile transmission of the signature of any party
hereto sent to either the Loan Agent or its counsel shall be effective as an
original signature provided each party agrees to promptly submit original
signature pages hereto in sufficient quantity for each of the parties hereto.
SECTION 8. NO STRICT CONSTRUCTION. The parties hereto have
----------------------
participated jointly in the negotiation and drafting of this Amendment, the
Facilities Agreement and the other Credit Documents. In the event an ambiguity
or question of intent or interpretation arises, this Amendment and the
Facilities Agreement as hereby amended and the other Credit Documents shall be
construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Amendment, the Facilities Agreement or any
of the other Credit Documents.
[Remainder of this Page Intentionally Blank.]
43
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above
BOSTON CHICKEN, INC.
By:_____________________________________
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Loan Agent and Common Collateral
Agent
By:_____________________________________
Title:____________________________________
GENERAL ELECTRIC CAPITAL CORPORATION, as the 1996
Lease Agent
By:_____________________________________
Title:____________________________________
