Exhibit 4.5(b)
AMENDMENT NO. 1 TO
FACILITIES AGREEMENT
THIS AMENDMENT NO. 1 TO FACILITIES AGREEMENT (this "Agreement") is
made as of the 28th day of February, 1997, among BOSTON CHICKEN, INC. (the
"Company"), BANK OF AMERICA ILLINOIS, as agent for the Lenders and the Issuing
Lender (in such capacity, together with its successors and assigns, the "Loan
Agent"), and GENERAL ELECTRIC CAPITAL CORPORATION, for itself and as agent for
the Lease Participants (in its individual capacity, together with its successors
and assigns, the "Lease Agent").
The parties have heretofore executed that certain Facilities Agreement
dated as of December 9, 1996 (the "Facilities Agreement"), and desire to amend
the Facilities Agreement as hereinafter set forth. Capitalized terms used
herein without definition shall have the meaning given such terms in the
Facilities Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Facilities Agreement is hereby amended as follows:
a. In the definition of "Permitted Changes" in Section 1.1, in
clause (iii) thereof the phrase "or any Guarantor" is inserted after the phrase
"a failure of the Company".
b. In Section 3.7, the following provisions are added between the
word "accountants" and the immediately following ".":
", and to take samples from the air, water, soil or building materials
at, on or under any property of the Company or any Subsidiary, which is
mortgaged, hypothecated or pledged as Collateral (as such term is defined
in the Intercreditor Agreement); provided, that upon the occurrence and
during the continuance of a Default, any Creditor may exercise the
foregoing rights set forth in this Section at any time and at the expense
of the Company."
c. In Subsection (7) of Section 3.8, the phrase "or any Guarantor"
is inserted between the phrases "ability of the Company" and "to perform".
d. In Subsection (2) of Section 3.10, the phrase "due within 10" is
deleted and is replaced with the phrase "made promptly, but in no event later
than 5".
e. In Subsection (2) of Section 4.3, the phrase "which is not a
Guarantor" is inserted between the phrases "Restricted Subsidiary" and "may be
dissolved".
f. In Subsection (2) of Section 4.8, the following provisions are
inserted between the phrase "Financed Subsidiaries or Guarantor" and the first
";" that appears in such Subsection:
"unless in the case of a Guarantor which is a Special Purpose
Subsidiary, such capital stock, partnership units or equity interests are
not of a type permitted pursuant to the definition of "Special Purpose
Subsidiary"
g. In Subsection (6) of Section 6.1: (i) in the phrase "Company or
any", "or" is changed to "," and (ii) the phrase "or any aggregation of its
Subsidiaries which together would constitute a Significant Subsidiary" is
inserted between the phrases "its Significant Subsidiaries" and "(a) shall
generally not".
h. In the first sentence of Section 7.10: (i) the phrase ", other
Creditors" is inserted between the phrases "Lease Agent" and "and the officers";
(ii) in the phrase "Loan Agent and the Lease Agent", "and" is changed to ",";
and (iii) the phrase "and other Creditors" is inserted between the phrase "Lease
Agent" and ", (collectively, the "Indemnitees")".
2. The parties hereto acknowledge and agree that the provisions of the
Facilities Agreement (as amended hereby) are in no way intended to diminish any
rights of the Lease Agent or Lease Participants under the 1996 Master Lease
Agreement or diminish any obligations of the Lessee under the 1996 Master Lease
Agreement. In the event of any inconsistencies between the provisions of the
Facilities Agreement (as amended hereby) and the 1996 Master Lease Agreement in
connection with any such rights or obligations with respect to the Lease Assets
(as such term is defined in the 1996 Master Lease Agreement), the provisions of
the 1996 Master Lease Agreement shall control with respect to the parties
thereto. The parties hereto acknowledge and agree that the provisions of the
Facilities Agreement (as amended hereby) are in no way intended to diminish any
rights of the Loan Agent or Lenders under the Credit Agreement or diminish any
obligations of the Borrower under the Credit Agreement. In the event of any
inconsistencies between the provisions of the Facilities Agreement (as amended
hereby) and the Credit Agreement in connection with any such rights or
obligations with respect to the Collateral (as such term is defined in the
Credit Agreement), the provisions of the Credit Agreement shall control with
respect to the parties thereto.
3. Except as expressly set forth herein, the Facilities Agreement remains
unmodified and in full force and effect.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH
STATE) INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
5. This Amendment may be executed in any number of counterparts, each of
which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to Facilities Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
BOSTON CHICKEN, INC.
By: /s/ Xxxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxxx Xxxxxxx
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Title: Vice President
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BANK OF AMERICA ILLINOIS,
as Loan Agent
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION, as Lease Agent
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Transaction and Syndication Senior Manager
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