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FOURTH AMENDMENT AND WAIVER
TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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This Fourth Amendment and Waiver to Amended and Restated Revolving
Credit Agreement (this "Fourth Amendment") is made and entered into as of March
25, 1999, by and among AU BON PAIN CO., INC., a Delaware corporation ("ABP"),
SAINT LOUIS BREAD COMPANY, INC., a Delaware corporation ("Saint Louis Bread"),
ABP MIDWEST MANUFACTURING CO., INC., a Delaware corporation ("ABP Midwest", and,
collectively with ABP and Saint Louis Bread, the "Borrowers"), and BANKBOSTON,
N.A., a national banking association, and USTRUST, a Massachusetts trust company
(collectively, the "Banks"), and BANKBOSTON, N.A. as agent for the Banks (in
such capacity, the "Agent"), amending certain provisions of the Amended and
Restated Revolving Credit Agreement dated as of February 13, 1998 (as amended by
the First Amendment to Amended and Restated Revolving Credit Agreement dated as
of June 30, 1998, the Second Amendment and Waiver to Amended and Restated
Revolving Credit Agreement dated as of October 14, 1998, the Third Amendment and
Waiver to Amended and Restated Revolving Credit Agreement dated as of January
20, 1999 and as further amended and in effect from time to time, the "Credit
Agreement") by and among the Borrowers, the Banks and the Agent. Terms not
otherwise defined herein which are defined in the Credit Agreement shall have
the same respective meanings herein as therein.
WHEREAS, the Borrowers, the Banks and the Agent have agreed to modify
certain terms and conditions of the Credit Agreement as specifically set forth
in this Fourth Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
s. 1. Amendment to s.1 of the Credit Agreement. Section 1 of the
Credit Agreement is hereby amended as follows:
(a) by deleting the definition of "Consolidated Net Income (or
Deficit)" in its entirety and hereby replacing it with the following definition:
Consolidated Net Income (or Deficit). For any specified period, the net
income (or deficit) (after taxes) of the Borrowers and their
Subsidiaries determined on a consolidated basis in accordance with
generally accepted accounting principles after eliminating all
extraordinary
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nonrecurring non-cash items of income, all extraordinary
nonrecurring non-cash items of expense up to an annual maximum of
$2,500,000, all inter-company items and, after eliminating, for
purposes of determining compliance with s.8.3 for any period and
compliance with s.8.4 for the Borrower's fiscal quarter ending
October 3, 1998, the Sale Charge in an amount not to exceed
$24,200,000.00 before taxes in addition to other non-cash charges
permitted to be eliminated hereunder.
s. 2. Representations and Warranties. Each of the Borrowers hereby
repeats, on and as of the date hereof, each of the representations and
warranties made in s.5 of the Credit Agreement as though such representations
and warranties refer specifically to such Borrower, except to the extent of
changes resulting from transactions contemplated or permitted by this Fourth
Amendment or the Credit Agreement and except to the extent that such
representations and warranties relate expressly to an earlier date; provided,
that all references therein to the Credit Agreement shall refer to such Credit
Agreement as amended hereby. No Default or Event of Default has occurred and is
continuing under the Credit Agreement after giving effect to this Fourth
Amendment.
s. 3. Effectiveness. The effectiveness of this Fourth Amendment shall
be subject to the satisfaction of the following conditions precedent:
s. 3.1 Loan Documents. This Fourth Amendment shall have been
duly executed and delivered to the Agent by each of the parties to the
Credit Agreement.
s. 3.2. No Default. No Default or Event of Default has
occurred and is continuing under the Credit Agreement immediately after
giving effect to this Fourth Amendment.
s. 4. Ratification, Etc. Except as expressly amended hereby, the
Credit Agreement and all documents, instruments and agreements related thereto,
including, but not limited to the Loan Documents, are hereby ratified and
confirmed in all respects and shall continue in full force and effect. The
Credit Agreement and this Fourth Amendment shall be read and construed as a
single agreement. All references in the Credit Agreement or any related
agreement or instrument to the Credit Agreement shall hereafter refer to the
Credit Agreement as amended hereby.
s. 5. No Waiver. Nothing contained herein shall constitute a waiver
of, impair or otherwise affect any Obligations, any other obligation of the
Borrowers or any rights of the Agent or the Banks consequent thereon.
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s. 6. Counterparts. This Fourth Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but which together
shall constitute one and the same instrument.
s. 7. Governing Law. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment as a document under seal as of the date first above written.
AU BON PAIN CO., INC.
By: /s/ Anthony J. Carroll
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Name: Anthony J. Carroll
Title: Chief Financial Officer
SAINT LOUIS BREAD COMPANY, INC.
By: /s/ Anthony J. Carroll
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Name: Anthony J. Carroll
Title: Chief Financial Officer
ABP MIDWEST MANUFACTURING CO., INC.
By: /s/ Anthony J. Carroll
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Name: Anthony J. Carroll
Title: Chief Financial Officer
BANKBOSTON, N.A.
individually and as Agent
By: /s/ Thomas P. Tansi
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Name: Thomas P. Tansi
Title: Vice President
USTRUST
By: /s/ P. Jeffrey Huth
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Name: P. Jeffrey Huth
Title: Vice President