EXHIBIT 4.1(a)
CONSENT, LIMITED WAIVER AND AMENDMENT NO. 1
TO REVOLVING CREDIT AGREEMENT
This CONSENT, LIMITED WAIVER AND AMENDMENT NO. 1 TO REVOLVING CREDIT
AGREEMENT (this "CONSENT AND AMENDMENT") is dated as of February 15, 2002, by
and among (a) FRIENDLY ICE CREAM CORPORATION, a Massachusetts corporation (the
"BORROWER"), (b) the undersigned Lenders and (c) FLEET NATIONAL BANK, as
administrative agent for the Lenders a party to the Revolving Credit Agreement
(as hereinafter defined) (in such capacity, the "ADMINISTRATIVE AGENT").
Capitalized terms used and not otherwise defined in this Consent and Amendment
shall have the meanings assigned to such terms in the Revolving Credit
Agreement.
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to that certain Revolving Credit Agreement, dated as of December 17,
2001 (as heretofore amended or otherwise amended, modified, or amended and
restated and in effect immediately prior to the date hereof, the "REVOLVING
CREDIT AGREEMENT"; the Revolving Credit Agreement as amended by this Consent and
Amendment, the "AMENDED REVOLVING CREDIT AGREEMENT");
WHEREAS, the Borrower has requested that the Lenders (i) amend
Schedule 1(e) of the Revolving Credit Agreement so as to remove Property I,
Property II and Property III (each as hereinafter defined) from such Schedule,
(ii) amend Schedule 1(d) of the Revolving Credit Agreement so as to include
Property I, Property II and Property III, (iii) consent to the release of any
security interest the Lenders may have in and to Property I, Property II and
Property III, and (iv) amend Section 8.19 of the Revolving Credit Agreement; and
WHEREAS, pursuant to the terms, subject to the conditions and in
reliance on the representations and warranties contained in this Amendment, the
undersigned Lenders and the Administrative Agent are prepared to (i) amend
Schedule 1(e) of the Revolving Credit Agreement so as to remove Property I,
Property II and Property III from such Schedule, (ii) amend Schedule 1(d) of the
Revolving Credit Agreement so as to include Property I, Property II and Property
III, and (iii) consent to the release of any security interest the Lenders may
have in and to Property I, Property II, and Property III and, (iv) amend Section
8.19 of the Revolving Credit Agreement as specifically set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained in this Consent and Amendment, the Borrower, the
Administrative Agent and the undersigned Lenders hereby agree as follows.
SECTION 1. AMENDMENT OF CREDIT AGREEMENT.
1.1. Schedule 1(e) of the Revolving Credit Agreement shall be amended
by deleting all references to (i) site number 278 located at 00-00 Xxxx Xxxxxx
in Xxxxxxxx, Massachusetts ("PROPERTY I"); (ii) site number 165 located at 000
Xxxxxxx Xxxxxx in Hadley, Massachusetts ("PROPERTY II"); and (iii) site number
1253 located at Xxxxx 0 xxx Xxxxxxxx Xxxxxx in Xxxxxxx City, Pennsylvania
("PROPERTY III").
1.2. Schedule 1(d) of the Revolving Credit Agreement shall be amended
by adding to such Schedule Property I, Property II and Property III.
1.3. Section 8.19 of the Revolving Credit Agreement shall be amended
by deleting the phrase "60 days subsequent to the Closing Date," in its
entirety. Notwithstanding the foregoing, the Borrower hereby acknowledges and
agrees that it shall use its best reasonable efforts to comply with the
requirements of such Section 8.19 to obtain the Mortgages in form and substance
satisfactory to the Administrative Agent as soon as practicable with respect to
all locations set forth on Schedule 8.19 of the Revolving Credit Agreement.
SECTION 2. CONSENT. The Lenders hereby consent to the release, and
agree to instruct the Administrative Agent to so release any security interest,
lien or other claim the Lenders may have to or in each of Property I, Property
II and Property III, in each case promptly upon notice from the Borrower to the
Administrative Agent of the sale, disposition or other transfer thereof.
SECTION 3. LIMITED WAIVER. The Lenders hereby waive the post closing
requirements contained in paragraphs 5 and 6 of that certain letter from the
Borrower to the Administrative Agent, dated as of December 19, 2001, and
attached hereto as Exhibit A.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Administrative Agent and each Lender, on and as
of the date hereof, as follows:
(a) This Consent and Amendment has been duly executed and delivered
by the Borrower. The execution and delivery by the Borrower of this Consent and
Amendment and the performance by the Borrower of this Consent and Amendment and
the Revolving Credit Agreement have been duly authorized by proper corporate or
other proceedings by the Borrower, and this Consent and Amendment and the
Amended Revolving Credit Agreement constitute the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
the terms hereof and thereof, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and general principles of equity
and except to the extent that availability of the remedy of specific performance
or injunction relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
(b) No Default or Event of Default exists on the date hereof and
after giving effect to the amendment effected by SECTION 1 hereof, the consent
described in SECTION 2 hereof and the limited waiver described in SECTION 3
hereof.
SECTION 5. EFFECTIVENESS. This Consent and Amendment shall become
effective as of the date hereof only upon the Administrative Agent's receipt of
duly executed counterpart signature pages to this Consent and Amendment from
each of the Borrower and the Lenders.
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SECTION 6. APPLICABLE LAW. THIS CONSENT AND AMENDMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
SECTION 7. EXPENSES. The Borrower shall pay, in accordance with
Section 16.2 of the Revolving Credit Agreement, all reasonable out-of-pocket
costs and expenses incurred by the Administrative Agent in connection with the
preparation, negotiation, execution, delivery and enforcement of this Consent
and Amendment, including, but not limited to, the fees and disbursements of
Xxxxxxx XxXxxxxxx LLP.
SECTION 8. MISCELLANEOUS.
8.1. From and after the date hereof, this Consent and Amendment shall
be deemed a Loan Document for all purposes of the Revolving Credit Agreement and
the other Loan Documents and each reference to Loan Documents in the Revolving
Credit Agreement and the other Loan Documents shall be deemed to include this
Consent and Amendment. This Consent and Amendment may be executed in any number
of counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one agreement. Delivery of an executed
counterpart of a signature page by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Consent and Amendment.
8.2. Except as expressly provided herein, (a) this Consent and
Amendment shall not limit the rights of or otherwise adversely affect the
Lenders under the Revolving Credit Agreement or any other Loan Document, and (b)
the Lenders reserve the right to insist on strict compliance with the terms of
the Revolving Credit Agreement and the other Loan Documents, and the Borrower
expressly acknowledges such reservation of rights. The grant of the consent and
waiver herein will not, either alone or taken with other waivers of provisions
of the Revolving Credit Agreement or any other Loan Document or consents with
respect thereto, be deemed to create or be evidence of a course of conduct. Any
future or additional waiver of any provision of the Revolving Credit Agreement,
or of any other Loan Document to which the Lenders are a party or have
consented, or consent with respect thereto shall be effective only if set forth
in a writing separate and distinct from this Consent and Amendment and duly
executed by such parties as are required by Section 16.12 of the Revolving
Credit Agreement.
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IN WITNESS WHEREOF, each of the undersigned has caused this Consent
and Amendment to be executed and delivered as an agreement as of the date first
written above.
FRIENDLY ICE CREAM CORPORATION
By:
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Name:
Title:
FLEET NATIONAL BANK,
individually and as Administrative Agent
and as Lender
By:
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Name: Xxxx X. Xxx
Title: Vice President
CITIZENS BANK,
individually and as Lender
By:
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Name:
Title:
BANKNORTH, N.A.,
individually and as Lender
By:
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Name:
Title:
EXHIBIT A
