2
FIRST AMENDMENT
TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This First Amendment to Amended and Restated Revolving
Credit Agreement (this "Amendment") dated as of November 7, 1996
by and between Quality Dining, Inc., an Indiana corporation,
GAGHC, Inc., a Delaware corporation, and BF Holding, Inc., a
Delaware corporation, as Borrowers, the banks now or hereafter
parties to the hereinafter defined Agreement (the "Banks") and
Texas Commerce Bank National Association, in its capacity as
Agent for the Banks, amends and restates the Amended and Restated
Revolving Credit Agreement dated as of April 26, 1996 (said
Revolving Credit Agreement, as amended hereby and as it may from
time to time hereafter be amended, the "Agreement") by and
between Quality Dining, Inc., an Indiana corporation, and GAGHC,
Inc., a Delaware corporation, as Borrowers, the Banks and Texas
Commerce Bank National Association, in its capacity as Agent for
the Banks.
W I T N E S S E T H:
WHEREAS, , pursuant to the Agreement, the Banks have agreed
to make certain loans to the Borrowers, which loans are evidenced
by certain promissory notes dated April 26, 1996 in the aggregate
principal amount of $150,000,000 (the "Existing Notes");
WHEREAS, the Borrowers, the Banks and the Agent desire to
amend the Agreement in certain respects, including, among other
things, to add BF Holding, Inc., a Delaware corporation ("BFH")
as a Borrower under the Agreement; and
WHEREAS, in order to evidence the addition of BF Holding,
Inc. as a Borrower, the Borrowers, the Banks and the Agent will
enter into this Amendment and the Borrowers will deliver to each
of the Banks a First Amended and Restated Promissory Note dated
the date hereof in a principal amount equal to the amount of such
Bank's Commitment (individually, an "Amended Note" and
collectively, the "Amended Notes"), in replacement for the
Existing Notes.
NOW, THEREFORE, in consideration of the premises herein
contained, and for other good and valuable consideration the
receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to
such terms in the Agreement.
2. Amendments to Article I of Agreement.
2.1. The definition of "Board of Directors" in Article I of
the Agreement is hereby amended in its entirety to read as
follows:
"Board of Directors" shall mean the Board of Directors
of QDI, GAGHC, BFH or any Subsidiary Guarantor, as
applicable.
2.2. The definition of "Borrower" in Article I of the
Agreement is hereby amended in its entirety to read as follows:
"Borrower" shall mean each of QDI, GAGHC and BFH; and
"Borrowers" shall mean QDI, GAGHC and BFH together.
2.3. Article I of the Agreement is hereby amended by
inserting immediately following the definition of "Base Rate
Loan" a new definition of "BFH" to read as follows:
"BFH" shall mean BF Holding, Inc., a Delaware
corporation, and its successors and assigns, and any
surviving, resulting or transferee corporation.
2.4. Article I of the Agreement is hereby amended by
inserting immediately following the definition of "Federal Funds
Rate" a new definition of "FFP Guaranty" to read as follows:
"FFP Guaranty" shall mean the guaranty by QDI of the
obligations of one or more franchisees of Bruegger's
Corporation for the development of Bruegger's Bagel Bakeries
and related commissaries in respect of loans to such
franchisees pursuant to the Franchise Finance Program of
QDI, provided that the aggregate principal amount of such
loans at any time guaranteed by QDI shall not exceed
$35,000,000.
2.5. Article I of the Agreement is hereby amended by
inserting immediately following the definition of "Fixed Charges"
a new definition of "FOPP Investments" to read as follows:
"FOPP Investments" shall mean Investments by BFH in the form
of (i) senior secured convertible loans (the "Convertible Loans")
to entities ("Operating Partners") that will acquire and develop
Bruegger's Bagel Bakeries under agreements with Bruegger's
Corporation or its affiliates, which in each case (A) is in a
principal amount not to exceed 400% of the cash equity investment
in such Operating Partner, (B) bears interest at a rate equal to
1% above the Base Rate, payable monthly, (C) is convertible into
equity interests in the Operating Partner at a conversion price
per unit up to 125% of the price per unit paid by Bakery Capital
Company, L.L.C. and management of the Operating Partner, and
(D) is secured by substantially all of the assets of the
Operating Partner and the equity interests in the Operating
Partner (other than those held by Bakery Capital Company,
L.L.C.), pursuant to and in accordance with the terms of the
Financed Operating Partner Program of Bruegger's Corporation,
(ii) equity interests in Operating Partners acquired by BFH
pursuant to the conversion of Convertible Loans and/or the
exercise of options issued in connection with the Convertible
Loans, in each case at purchase price per unit up to 125% of the
price per unit paid by Bakery Capital Company, L.L.C. and
management of the Operating Partner, (iii) the purchase by
Bruegger's Corporation or QDI of equity interests in an Operating
Partner from Bakery Capital Company, L.L.C., in the event of the
failure of such Operating Partner to redeem such equity interest
pursuant to the operating agreement of such Operating Partner ,
at a purchase price not to exceed seven and one-half times
operating store level cash flow of the Operating Partner, before
general and administrative expenses and certain other adjustments
as specified in such operating agreement and/or (iv) loans to or
equity investments in one or more Operating Partners, other than
any such Investment described in clauses (i) through (iii) above,
provided that the aggregate amount (in the form of cash and other
consideration) paid by BFH in respect of Investments pursuant to
this clause (iv) shall not exceed $50,000,000.
2.6. Article I of the Agreement is hereby amended by
amending the definition of "Permitted Investments" by renumbering
clause (viii) as clause (x) and by inserting after clause (vii) a
new clause (viii) and a new clause (ix) to read as follows:
(viii) loans to Bagel Acquisition Corp. in an aggregate
principal amount outstanding at any time not to exceed
$15,000,000, provided that for a period of not exceeding 180
consecutive calendar days the aggregate principal amount
outstanding of such loans to Bagel Acquisition Corp. may
exceed $15,000,000 so long as the aggregate principal amount
outstanding of such loans does not at any time exceed
$50,000,000; (ix) a loan to Mohold Inc. in the principal
amount of $4,500,000
3. Amendments to Article V of Agreement.
3.1. Section 5.12 is hereby amended by renumbering clause
(ii) as clause (iii) and inserting after "GAGHC" in the second
line thereof a new subsection (ii) to read as follows: ", (ii)
BFH".
4. Amendments to Article VI of Agreement.
4.1. Section 6.1 of the Agreement is hereby amended in its
entirety and replaced with the following language:
6.1. Consolidated Tangible Net Worth. QDI shall
maintain as of the last day of each fiscal quarter a
Consolidated Tangible Net Worth in an amount not less than
$70,000,000, plus (i) for each of the fiscal quarters of QDI
, commencing with the fiscal quarter ended October 27, 1996,
(x) 50% of Consolidated Net Income of QDI for each fiscal
quarter in which Consolidated Net Income is positive, and
(y) zero, for each fiscal quarter in which Consolidated Net
Income of QDI is zero or negative, plus (ii) the proceeds
(net of all reasonable and appropriate commissions, fees and
expenses) paid to or received by QDI in connection with the
sale or other disposition of any shares of the stock of or
other equity interests in QDI.
4.2. Section 6.5 of the Agreement is hereby amended by
deleting "and" at the end of clause (f), by renumbering clause
(g) as clause (h), by replacing the reference to "clauses (a)-
(f)" in the new clause (h) with a reference to "clauses (a)-(g)",
and by inserting a new clause (g) to read as follows:
(g) FFP Guaranties in an aggregate principal amount at
any time outstanding not to exceed $35,000,000; and
4.3. Section 6.7 of the Agreement is hereby amended by
inserting at the end of clause (b) after "or other equity
interests therein", the following words: "(except for any such
purchases, redemptions, retirements or other acquisitions payable
solely in shares of common stock of QDI)".
4.4. Section 6.11 of the Agreement is hereby amended (i) by
inserting in the parenthetical appearing in the third and fourth
lines of subsection (b) of said section after the word "GAGHC"
the following words: "or BFH" and (ii) by replacing in the last
sentence of said section the word "GAGHC" with the following
words: "each of GAGHC and BFH".
4.5. Section 6.12 of the Agreement is hereby amended by
inserting "(i)" before "Permitted Investments" in said section
and by inserting after "Permitted Investments" the following
words: "and (ii) any FOPP Investment, provided that immediately
after the consummation of the FOPP Investment and after giving
effect thereto, no condition or event shall exist which
constitutes a Default or an Event of Default.
5. Amendment to Annex I and Annex II to Agreement.
5.1. Annex I and Annex II to the Agreement are each hereby
deleted in their entirety and replaced with Annex I and Annex II,
respectively, to this Amendment.
6. Amendment to Exhibit A to Agreement.
6.1. Exhibit A to the Agreement is hereby deleted in its
entirety and replaced with Exhibit A to this Amendment.
7. Amendment to Exhibit B to Agreement.
7.1. Exhibit B to the Agreement is hereby deleted in its
entirety and replaced with Exhibit B to this Amendment.
8. Amendment to Exhibit E to Agreement.
8.1. The form of Assignment Agreement attached as Exhibit E
to the Agreement is hereby amended by inserting after "GAGHC,
Inc., a Delaware corporation" in the first paragraph thereof, the
following words: "and BF Holding, Inc., a Delaware corporation".
9. Representations and Warranties of the Company. In order to
induce the Banks and the Agent to enter into this Amendment, each
of the Borrowers represents and warrants that:
9.1. The execution and delivery by such Borrower of this
Amendment and the Amended Notes have been duly authorized by
proper corporate proceedings and this Amendment, the Amended
Notes and the Agreement, as previously amended and as amended
hereby, constitute the legal, valid and binding obligations of
such Borrower, enforceable against such Borrower in accordance
with their respective terms.
9.2. Neither the execution and delivery by such Borrower of
this Amendment or the Amended Notes nor compliance with the
provisions hereof or thereof will violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award
binding on such Borrower or the articles of incorporation or by-
laws of such Borrower or the provisions of any indenture,
instrument or agreement to which such Borrower is a party or is
subject, or by which it or its property is bound, or conflict
with or constitute a default thereunder.
9.3. Such Borrower has not received any notice to the effect
that its operations are not in material compliance with any of
the requirements of applicable federal, state and local
environmental, health and safety statutes and regulations or the
subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any
toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action might have a material adverse
effect on the business, properties, condition (financial or
otherwise) or results of operations of such Borrower.
9.4. The representations and warranties set forth in Article
IV of the Agreement, as amended hereby, are true and correct on
the date hereof and after giving effect hereto, except that the
representations and warranties set forth in Section 4.5 as to
financial statements of QDI shall be deemed a reference to the
audited and unaudited financial statements of QDI, as the case
may be, most recently delivered to the Banks pursuant to Section
5.1.
9.5. No Default or Event of Default and no Material Adverse
Occurrence has occurred and is continuing.
10. Effective Date. This Amendment shall become effective as of
the date first above written upon receipt by the Agent of each of
the following items:
(a) Counterparts of this Amendment duly executed by each of
the Borrowers and each of the Banks;
(b) Duly executed Amended Notes, payable to the order of
each of the Banks, substantially in the form of Exhibit
A hereto, appropriately completed;
(c) Reaffirmation of Subsidiary Guaranty, duly executed and
delivered by each of the Wholly-Owned Subsidiaries of
the Borrower (other than GAGHC and BFH);
(d) Certificate of the Secretary or an Assistant Secretary
of each of QDI and GAGHC, certifying that (i) there has
been no amendment to the articles of incorporation or
by-laws of such Borrower since April 26, 1996 and (ii)
attached is a true and correct copy of the resolutions
of such Borrower's Board of Directors authorizing the
execution and delivery of this Amendment and the
Amended Notes and any other documents or instruments
executed and delivered in connection herewith and the
performance of all the terms and provisions hereof;
(e) Articles of Incorporation and all amendments thereto of
BFH, certified as of a recent date by the Secretary of
State of the state of its incorporation;
(f) Good standing certificates of BFH, certified as of a
recent date by the Secretary of State of the state of
its incorporation and the Secretaries of the State of
each other state in which BFH is qualified to do
business;
(g) Certificate of the Secretary of BFH, certifying that
(i) there have been no changes to its Articles of
Incorporation since the date of the certification by
the Secretary of State, (ii) a correct and complete
copy of its Bylaws, with all amendments thereto, is
attached to the certificate and (iii) a correct and
complete copy of the resolutions of its Board of
Directors authorizing BFH to become a Borrower under
the Agreement and the execution, delivery and
performance of this Amendment and the Amended Notes and
any other documents or instruments executed and
delivered in connection herewith and the performance of
all terms and provisions herewith and therewith are
attached to the certificate, and such resolutions have
not been subsequently modified or repealed, and
(iv) there are no proceedings pending or contemplated
as to the merger, consolidation, liquidation or
dissolution of such entity.
(h) Incumbency Certificate, certified by the Secretary of
each of the Borrowers;
(i) Certificates of the Secretary or an Assistant Secretary
of each Guarantor certifying that (i) there has been no
amendment to the articles of incorporation or by-laws
of such Guarantor since April 26, 1996 and (ii)
attached is a true and correct copy of resolutions of
such Guarantor's Board of Directors authorizing the
execution and delivery of the Reaffirmation of
Subsidiary Guaranty;
(j) Incumbency Certificate of each Guarantor certified by
the Secretary of such Guarantor;
(k) Closing certificate executed by the president, senior
vice president, chief financial officer or treasurer of
QDI, certifying that the representations and warranties
contained in the Agreement and each other Loan Document
are true and accurate in all material respects and that
no Default or Event of Default has occurred and is
continuing;
(l) Written opinion of counsel to each of the Borrowers and
the Guarantors, in form and substance satisfactory to
the Agent;
(m) Payment by the Borrowers of all costs and expenses of
the Agent's special counsel (including without
limitation legal fees and expenses) incurred in
connection with preparation and execution of this
Amendment and incident to all proceedings in connection
with transactions contemplated hereby and documents
relating to this Amendment, the Amended Notes and the
Agreement; and
(n) Such other documents and instruments as the Agent shall
reasonably request.
11. Assumption by BFH. By executing this Amendment, BFH agrees
to be bound by all of the terms of and to undertake all of the
obligations of a "Borrower" under the Agreement and the Amended
Notes and agrees and confirms that it shall hereafter be a party
to the Agreement and obligor on the Amended Notes and all
references to a "Borrower" or the "Borrowers" in the Agreement
and the Amended Notes shall include BFH. BFH hereby ratifies and
confirms all previous action taken by or directions given by QDI
and/or GAGHC under the Agreement.
12. Ratification. The Agreement, as amended hereby, shall
remain in full force and effect and is hereby ratified, approved
and confirmed in all respects.
13. References to Borrowers. From and after the effective date,
all references to "a Borrower", "each Borrower", "either
Borrower", "each of the Borrowers" or "the Borrowers, or either
of them" or words of like import shall be deemed to be a
reference to each of QDI, GAGHC and BFH or any of them, as the
context requires.
14. References to Agreement. From and after the effective date
hereof, (i) each reference in the Agreement to "this Agreement,"
"hereof," or "hereunder" or words of like import, and all
references to the Agreement in any and all agreements,
instruments, documents, notes, certificates and other writings of
every kind and nature shall be deemed to mean the Agreement, as
modified and amended by this Amendment, and (ii) each reference
in the Agreement to "a Note" or "the Notes" and all references to
the Notes in any and all agreements, instruments, documents,
notes, certificates and other writings of every kind and nature
shall be deemed to be a reference to an Amended Note or the
Amended Notes, as the context requires.
15. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
16. Execution in Counterparts. This Amendment may be executed
in one or more counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
[The rest of this page is intentionally left blank.]
IN WITNESS WHEREOF, the Borrowers, the Banks and the Agent
have executed this Amendment as of the date first above written.
QUALITY DINING, INC.
By:
John C. Firth
Senior Vice President
GAGHC, INC.
By:
David M. Findlay
Vice President
BF HOLDING, INC.
By:
Patrick J. Barry
President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, in its individual
capacity and
as Agent for the Banks
By:
Name:
Title:
NBD BANK, N.A.
By:
Name:
Title:
THE NORTHERN TRUST COMPANY
By:
Name:
Title:
KEY BANK NATIONAL ASSOCIATION
(Formerly, Society National Bank)
By:
Name:
Title:
LASALLE NATIONAL BANK
By:
Name:
Title:
NATIONSBANK, N.A. (SOUTH)
By:
Name:
Title:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
Name:
Title:
ANNEX I
ANNEX II
EXHIBIT A
[Form of Note]
AMENDED AND RESTATED PROMISSORY NOTE
$__________ __________, 199_
Chicago, Illinois
FOR VALUE RECEIVED, QUALITY DINING, INC., an Indiana
corporation ("QDI") GAGHC, INC., a Delaware corporation
("GAGHC"), and BF HOLDING, INC., a Delaware corporation
(collectively together with their successors and assigns, the
"Borrowers"), hereby promise, jointly and severally, to pay to
____________________ (the "Holder"), the principal sum of
__________ DOLLARS ($__________) or such lesser amount as shall
equal the aggregate unpaid principal amount of the Advances (as
defined in the hereinafter defined Credit Agreement) made by the
Holder to the Borrowers, or any of them, under the Credit
Agreement on the Termination Date (as defined in the Credit
Agreement) and to pay interest on the unpaid principal amount of
each Advance, for the period commencing on the date of such
Advance until such Advance shall be paid in full, at the rates
per annum and on the dates provided in the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America and in immediately available funds
to the Agent (as defined in the Credit Agreement) to such
domestic account as the Agent may designate. The date, amount
and type of each Advance made by the Holder to the Borrowers, or
any of them, and each payment made on account of the principal
thereof, shall be recorded by the Holder on its books and, prior
to any transfer of this Note, endorsed by the Holder on the
schedule attached hereto or any continuation thereof; provided
that the Holder's failure to make any such recordation or
notation shall not affect the Obligations of the Borrowers
hereunder or under the Credit Agreement.
This Note is one of the Notes referred to in the Amended and
Restated Revolving Credit Agreement (as amended by the First
Amendment to Amended and Restated Revolving Credit Agreement
dated as of ____________, 1996 and as it may hereafter be amended
from time to time, the "Credit Agreement") dated as of April 26,
1996 by and between the Borrowers, the banks party thereto (the
"Banks") and Texas Commerce Bank National Association, as agent
(the "Agent"), which amends and restates the Revolving Credit
Agreement dated as of April 26, 1996 by and between the
Borrowers, the banks party thereto and Texas Commerce Bank
National Association, as agent (the "Original Credit Agreement").
This Note amends and restates and is issued in substitution for a
Promissory Note dated April 26, 1996 (the "Original Note") issued
by QDI and GAGHC pursuant to the Credit Agreement and evidences
Advances made thereunder. This Note does not constitute a
novation of the obligations under the Original Note. Capitalized
terms used in this Note have the respective meanings assigned to
them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of the Advances evidenced by this Note upon the
occurrence of certain events and for prepayments of Advances upon
the terms and conditions specified therein.
This Note is secured by a Subsidiary Guaranty issued by
certain Wholly-Owned Subsidiaries of Quality Dining, Inc. in
favor of the Agent for the benefit of the Banks and may now or
hereafter be secured by one or more other guaranties, instruments
or agreements of the Borrower or any other Person.
The Borrowers hereby waive demand, presentment, protest and
notice of nonpayment and protest.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
QUALITY DINING, INC.
By:
_______________________________________
[Name]
[Title]
GAGHC, INC.,
By:
[Name]
[Title]
BF HOLDING, INC.
By:
[Name]
[Title]
Schedule to Promissory Note
Date
Date of Amount Type Principal of
Advance of Advance of Advance Advance Repaid
EXHIBIT B
NOTICE OF BORROWING
TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as Agent
712 Main Street
Houston, Texas 77002-8059
Attention: ____________________
, 19__
(Date of Notice)
Ladies and Gentlemen:
The undersigned, [Quality Dining, Inc., an Indiana
corporation] [GAGHC, Inc., a Delaware corporation][BF Holding,
Inc., a Delaware corporation], refers to the Amended and Restated
Revolving Credit Agreement, dated as of April 26, 1996, (said
Amended and Restated Revolving Credit Agreement, as amended,
modified or supplemented from time to time being the "Agreement")
by and between Quality Dining, Inc., GAGHC, Inc. and BF Holding,
Inc., as borrowers, the banks party thereto and Texas Commerce
Bank National Association, as agent. The terms used herein shall
have the meanings ascribed thereto in the Agreement. Pursuant to
the terms of the Agreement the undersigned hereby requests an
Advance under the Agreement, and in that connection sets forth
below the information relating to such Advance (the "Proposed
Advance"):
(i) The borrowing date (which shall be a Business Day) of
the Proposed Advance is __________, 19__.
(ii) The aggregate amount of the Proposed Advance is
$ .
(iii) The Proposed Advance is to be made as the following
type(s) of Loan:
(A) $ Base Rate Loan; or
(B) $ LIBOR Base Loan.
(iv) If the Proposed Advance is to be made as a LIBOR Base
Loan, the Interest Period applicable thereto is months.
The undersigned confirms that the conditions precedent set
forth in Article III of the Agreement are satisfied as of the
date hereof.
[QUALITY DINING, INC.]
[GAGHC, INC.]
[BF HOLDING, INC.]
By:
______________________________________
Its:
________________________________