EXHIBIT 10.2
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DEBTOR IN POSSESSION CREDIT AGREEMENT
Dated as of October 5, 1998,
among
BOSTON CHICKEN, INC.
and the other Borrowers hereunder,
Debtors and Debtors in Possession,
as Borrowers,
THE LENDERS SIGNATORY HERETO
FROM TIME TO TIME,
as Lenders,
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent and a Lender,
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Collateral Agent and a Lender
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TABLE OF CONTENTS
PAGE
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1. AMOUNT AND TERMS OF CREDIT.................................................................................. 3
1.1 Credit Facilities.................................................................................... 3
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1.2 Letters of Credit.................................................................................... 4
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1.3 Prepayments.......................................................................................... 4
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1.4 Use of Proceeds...................................................................................... 5
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1.5 Interest and Margins................................................................................. 6
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1.6 Cash Management System............................................................................... 7
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1.7 Fees................................................................................................. 7
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1.8 Receipt of Payments.................................................................................. 7
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1.9 Application and Allocation of Payments............................................................... 7
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1.10 Loan Account and Accounting.......................................................................... 8
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1.11 Indemnity............................................................................................ 8
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1.12 Access............................................................................................... 8
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1.13 Taxes................................................................................................ 9
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1.14 Capital Adequacy; Increased Costs; Illegality........................................................ 9
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1.15 Single Revolving Loan................................................................................ 11
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1.16 Priority of Obligations and Collateral Agent's Liens; Cash Collateral................................ 11
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1.17 Appointment of Borrower Representative............................................................... 11
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2. CONDITIONS PRECEDENT........................................................................................ 12
2.1 Conditions to the Initial Revolving Credit Advance.................................................... 12
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2.2 Further Conditions.................................................................................... 12
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3. REPRESENTATIONS AND WARRANTIES.............................................................................. 13
3.1 Corporate or Other Existence; Compliance with Law..................................................... 13
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3.2 Executive Offices; Collateral Locations; FEIN......................................................... 14
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3.3 Corporate or Other Power, Authorization, Enforceable Obligations...................................... 14
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3.4 Financial Statements; Budget.......................................................................... 15
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3.5 Material Adverse Effect............................................................................... 15
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3.6 Ownership of Property; Liens.......................................................................... 15
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3.7 Labor Matters......................................................................................... 16
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3.8 Ventures, Subsidiaries and Affiliates; Outstanding Stock and Indebtedness............................. 17
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3.9 Government Regulation................................................................................. 17
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3.10 Margin Regulations.................................................................................... 17
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3.11 Taxes................................................................................................. 17
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3.12 ERISA................................................................................................. 18
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3.13 No Litigation......................................................................................... 18
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3.14 Brokers............................................................................................... 18
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3.15 Intellectual Property................................................................................. 18
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3.16 Full Disclosure....................................................................................... 18
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3.17 Environmental Matters................................................................................. 18
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3.18 Insurance............................................................................................. 19
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3.19 Deposit and Disbursement Accounts..................................................................... 19
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3.20 Trade Relations....................................................................................... 19
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3.21 Supply Agreements; Licenses and Permits............................................................... 20
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3.22 Schedules to Facilities Agreement................................................................... 20
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4. FINANCIAL STATEMENTS AND INFORMATION....................................................................... 20
4.1 Reports and Notices.................................................................................. 20
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4.2 Communication with Accountants....................................................................... 20
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5. AFFIRMATIVE COVENANTS...................................................................................... 20
5.1 Maintenance of Existence and Conduct of Business..................................................... 20
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5.2 Payment of Obligations............................................................................... 21
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5.3 Books and Records.................................................................................... 21
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5.4 Insurance; Damage to or Destruction of Collateral.................................................... 21
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5.5 Compliance with Laws................................................................................. 22
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5.6 Schedules; Supplemental Disclosure................................................................... 22
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5.7 Intellectual Property................................................................................ 22
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5.8 Environmental Matters................................................................................ 22
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5.9 Further Assurances................................................................................... 22
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5.10 Year 2000 Problems................................................................................... 22
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5.11 Post-Closing Delivery of Certain Schedules; Bankruptcy Schedules as Substitutes For Certain Schedules 23
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6. NEGATIVE COVENANTS......................................................................................... 23
6.1 Mergers, Subsidiaries, Etc........................................................................... 23
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6.2 Investments.......................................................................................... 23
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6.3 Indebtedness......................................................................................... 24
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6.4 Employee Loans and Affiliate Transactions............................................................ 24
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6.5 Capital Structure and Business....................................................................... 24
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6.6 Guaranteed Indebtedness.............................................................................. 24
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6.7 Liens................................................................................................ 24
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6.8 Sale of Stock and Assets............................................................................. 26
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6.9 ERISA................................................................................................ 26
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6.10 Financial Covenants.................................................................................. 26
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6.11 Hazardous Materials.................................................................................. 26
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6.12 Sale-Leasebacks...................................................................................... 26
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6.13 Cancellation of Indebtedness......................................................................... 26
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6.14 Restricted Payments.................................................................................. 26
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6.15 Change of Corporate Name or Location; Change of Fiscal Year.......................................... 26
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6.16 Leases; Capital Expenditures......................................................................... 27
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6.17 Prepetition Indebtedness............................................................................. 27
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7. TERM....................................................................................................... 27
7.1 Termination.......................................................................................... 27
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7.2 Survival of Obligations Upon Termination of Financing Arrangements................................... 27
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8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES..................................................................... 28
8.1 Events of Default.................................................................................... 28
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8.2 Remedies............................................................................................. 30
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8.3 Waivers by Borrowers................................................................................. 30
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9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT........................................................ 30
9.1 Assignment and Participations........................................................................ 30
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9.2 Appointment.......................................................................................... 32
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9.3 Reliance by Agents, Etc.............................................................................. 33
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9.4 Each Agent in its Individual Capacity................................................................ 33
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9.5 Lender Credit Decision............................................................................... 33
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9.6 Indemnification...................................................................................... 34
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9.7 Successor Agent...................................................................................... 34
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9.8 Setoff and Sharing of Payments....................................................................... 35
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9.9 Revolving Credit Advances; Payments; Non-Funding Lenders; Information................................ 35
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10. SUCCESSORS AND ASSIGNS..................................................................................... 37
11. MISCELLANEOUS.............................................................................................. 37
11.1 Complete Agreement; Modification of Agreement....................................................... 38
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11.2 Amendments and Waivers.............................................................................. 38
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11.3 Fees and Expenses................................................................................... 40
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11.4 No Waiver........................................................................................... 41
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11.5 Remedies............................................................................................ 41
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11.6 Severability........................................................................................ 41
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11.7 Conflict of Terms................................................................................... 41
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11.8 Confidentiality..................................................................................... 41
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11.9 GOVERNING LAW....................................................................................... 42
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11.10 Notices............................................................................................. 42
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11.11 Section Titles...................................................................................... 43
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11.12 Counterparts........................................................................................ 43
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11.13 WAIVER OF JURY TRIAL................................................................................ 43
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11.14 Press Releases...................................................................................... 43
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11.15 Advice of Counsel................................................................................... 43
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11.16 No Strict Construction.............................................................................. 43
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11.17 No Limitation on Objection Rights; Limited Scope of Consents........................................ 43
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INDEX OF APPENDICES
ANNEXES
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Annex A (Recitals) Definitions
Annex B (Section 1.2) Letters of Credit
Annex C (Section 1.6) Cash Management System
Annex D (Section 2.1(a)) Schedule of Documents
Annex E (Section 4.1(a)) Financial Statements and Budget -- Reporting
Annex F (Section 6.10) Financial Covenants
Annex G (Section 9.9(a)) Lenders' Wire Transfer Information
Annex H (Section 11.10) Notice Addresses
Annex I (Annex A ) Revolving Loan Commitments as of Closing Date
Annex J (Annex A) Availability Amounts for each Retail Period
Annex K (Recitals) Chapter 11 Case No. for each Borrower
EXHIBITS
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Exhibit 1.1(a)(i) Form of Notice of Revolving Credit Advance
Exhibit 1.1(a)(ii) Form of Revolving Note
Exhibit 1.3(a) Form of Notice of Voluntary Prepayment/Reduction
Exhibit 1.3(b) Form of Notice of Mandatory Prepayment
Exhibit 2.2(b) Form of Interim Order
Exhibit 9.1(a) Form of Assignment Agreement
Exhibit C-1 Form of Collection Account Agreement
Exhibit C-2 Form of Activation Notice
Exhibit E Form of Compliance Certificate
SCHEDULES
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Schedule 3.2 Executive Offices; Collateral Locations; FEIN
Schedule 3.4(a) Financial Statements
Schedule 3.4(b) Budget
Schedule 3.6 Real Estate and Leases
Schedule 3.7 Labor Matters
Schedule 3.8 Ventures and Affiliates; Stock
Schedule 3.11 Tax Matters
Schedule 3.15 Intellectual Property
Schedule 3.17 Hazardous Materials
Schedule 3.18 Insurance
Schedule 3.19 Deposit and Disbursement Accounts
Schedule 3.21 Supply Agreements; Licenses and Permits
Schedule 5.1 Trade Names
Schedule 6.2 Existing Investments
Schedule 6.3 Existing Indebtedness
Schedule 6.6 Existing Guaranteed Indebtedness
Schedule 6.7 Existing Liens
Schedule 6.16 Existing Operating and Capital Leases
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THIS DEBTOR IN POSSESSION CREDIT AGREEMENT ("Agreement") is entered
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into as of October 5, 1998, by and among the following:
(a) (i) Boston Chicken, Inc., a Delaware corporation ("BCI");
(ii) BC Real Estate Investments, Inc., a Delaware corporation;
(iii) BCI Acquisition Sub, L.L.C., a Delaware limited liability
company;
(iv) Progressive Food Concepts, Inc., a Delaware corporation;
(v) BCI Mayfair, Inc., a Delaware corporation;
(vi) BCI R&A, Inc., a Delaware corporation;
(vii) BCI Massachusetts, Inc., a Delaware corporation;
(viii) BCI West, Inc., a Delaware corporation;
(ix) BCI Southwest, Inc., a Delaware corporation;
(x) Buffalo P&L Food Services, Inc., a Delaware corporation; and
(xi) (1) Mid-Atlantic Restaurant Systems, Inc., a Delaware
corporation;
(2) Mayfair Partners, L.P., a Delaware limited liability
partnership;
(3) BC Great Lakes, L.L.C., a Delaware limited liability
company;
(4) BC New York, L.L.C., a Delaware limited liability company;
(5) BC GoldenGate, L.L.C., a Delaware limited liability
company;
(6) BC Superior, L.L.C., a Delaware limited liability
company;
(7) BC Heartland, L.L.C., a Delaware limited liability
company;
(8) BC Tri-States, L.L.C., a Delaware limited liability
company;
(9) Finest Foodservice, L.L.C., a Delaware limited liability
company;
(10) P & L Food Services, L.L.C., a Delaware limited liability
company;
(11) R&A Food Services, L.P., a Delaware limited liability
partnership;
(12) BC Boston, L.P., a Delaware limited liability
partnership;
(13) BCE West, L.P., a Delaware limited liability partnership;
and
(14) B.C.B.M. Southwest, L.P., a Delaware limited liability
partnership;
(the Persons identified in this CLAUSE (xi), the "Operating
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Subsidiaries"),
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as debtors and debtors in possession (each, a "Borrower," and collectively,
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"Borrowers");
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(b) GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation (in its
individual capacity, "GE Capital"), for itself as a Lender, and as
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Administrative Agent for Lenders;
(c) BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (in its
individual capacity, "BofA"), for itself as a Lender and as Collateral Agent for
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Lenders (Administrative Agent and Collateral Agent being referred to
collectively as "Agents"); and
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(d) the other Lenders signatory hereto from time to time.
RECITALS
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A. On October 5, 1998 (the "Petition Date"), each Borrower commenced a
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chapter 11 case (each, a "Chapter 11 Case," and collectively, the "Chapter 11
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Cases") by filing a voluntary petition for relief under chapter 11 of title 11
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of the United States Code, 11 U.S.C. (S)(S) 101 et seq. (the "Bankruptcy Code"),
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with the United States Bankruptcy Court for the District of Arizona (the
"Bankruptcy Court"). The Chapter 11 Case Number for each Borrower is set forth
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in ANNEX K. Each Borrower continues to operate its business and manage its
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properties as a debtor and debtor in possession pursuant to Sections 1107(a) and
1108 of the Bankruptcy Code.
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B. Borrowers have requested that Agents and Lenders provide a senior
secured superpriority revolving credit facility of up to $70,000,000.
C. Agents and Lenders are willing to make such postpetition loans and
other extensions of credit to Borrowers upon the terms and conditions set forth
herein.
D. Prior to the Petition Date, BCI entered into the following senior
secured financing facilities:
(i) that certain Master Lease Agreement dated as of September 27,
1995, as amended (the "1995 Master Lease Agreement"), between BCI, as
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lessee, and GE Capital, for itself and as agent for certain participants,
as lessor, with respect to which GE Capital has participated a portion of
its rights and interests to various financial institutions. Citizens Bank
of Rhode Island is currently acting as lessor and agent (in the stead of GE
Capital) under the 1995 Master Lease Agreement;
(ii) that certain Secured Revolving Credit Agreement dated as of
December 9, 1996, as amended by that certain First Amendment and Consent to
Secured Revolving Credit Agreement dated as of October 24, 1997, and that
certain Second Amendment and Consent to Secured Revolving Credit Agreement
dated as of July 15, 1998 (collectively, the "Existing Credit Agreement"),
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among BCI, the financial institutions named as lenders thereto as revolving
credit lenders and issuing lenders, the financial institutions named as
lenders thereto as "Liquidity Lenders," GE Capital as co-agent for the
Liquidity Lenders, and BofA as co-agent for the Liquidity Lenders and loan
agent for the Liquidity Lenders, revolving credit lenders and issuing
lenders. As of the Petition Date, the outstanding obligations owing with
respect to the "Liquidity Loan" under and as defined in the Existing Credit
Agreement was $35,037,179.60, consisting of principal of $35,000,000,
accrued but unpaid interest of $37,068.49, and fees and costs of $111.11
(such amount, together with per diem interest of $9,828.77 per day after
the Petition Date, the "Liquidity Loan Payoff Amount); and
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(iii) that certain Master Lease Agreement No. 2 dated as of December
9, 1996 (as amended by that certain Amendment No. 1 to Master Lease
Agreement No. 2 dated as of February 28, 1997, that certain Amendment No. 2
to Master Lease Agreement No. 2 dated as of March 18, 1997, and that
certain Amendment No. 2 to Master Lease Agreement No. 2 dated as of July
15, 1998 (collectively, the "1996 Master Lease Agreement"), between BCI, as
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"lessee" and GE Capital, for itself and as agent for certain participants,
as "lessor."
E. Capitalized terms used in this Agreement shall have the meanings
ascribed to them in ANNEX A and, for purposes of this Agreement and the other
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Loan Documents, the rules of construction set forth in ANNEX A shall govern.
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All exhibits, schedules, annexes and other attachments (collectively,
"Appendices") hereto, or expressly identified to this Agreement, are
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incorporated herein by reference and, taken together with this Agreement, shall
constitute but a single agreement. These Recitals shall be construed as part of
the Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMOUNT AND TERMS OF CREDIT
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1.1 Credit Facilities.
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(a) Revolving Credit Facility.
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(i) Subject to the terms and conditions hereof, each Lender
agrees to make available to Borrowers from time to time until the
Commitment Termination Date its Pro Rata Share of advances (each, a
"Revolving Credit Advance"). The Pro Rata Share of the Revolving Loan
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of any Lender shall not at any time exceed its separate Revolving Loan
Commitment. The obligations of each Lender hereunder shall be several
and not joint. The aggregate amount of Revolving Credit Advances
outstanding shall not exceed at any time the Maximum Amount less the
aggregate amount of the L/C Obligations outstanding at such time. In
addition, the Net Advance Amount as of any time of determination
during any Retail Period shall not exceed the Availability Amount
applicable to such Retail Period (the limitation provided for in this
sentence shall be referred to as the "Availability Limitation").
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Until the Commitment Termination Date and subject to the terms and
conditions hereof, Borrowers may from time to time borrow, repay and
reborrow under this SECTION 1.1(a). Each Revolving Credit Advance
shall be made on notice by Borrower Representative to the
representatives of Administrative Agent specified in PARAGRAPH B of
ANNEX H at the addresses specified therein. Any such notice must be
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given no later than 11:00 a.m. (New York time) on the Business Day of
the proposed Revolving Credit Advance. Each such notice (a "Notice of
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Revolving Credit Advance") shall be given in writing (by telecopy or
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overnight courier) substantially in the form of EXHIBIT 1.1(a)(i), and
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shall include the information required in such Exhibit and such other
information as may be required by Administrative Agent.
Notwithstanding anything to the contrary herein, in the event that, at
the time of a request for a proposed Revolving Credit Advance, the
ENBC Proceeds Cash Collateral Amount is greater than zero, the amount
of the requested Revolving Credit Advance shall be reduced by an
amount equal to the ENBC Proceeds Cash Collateral Amount.
(ii) Borrowers shall jointly execute and deliver to each Lender a
note to evidence the Revolving Loan Commitment of such Lender, which
note shall be (A) in the principal amount of the Revolving Loan
Commitment of such Lender, (B) dated the Closing Date, and (C)
substantially in the form of EXHIBIT 1.1(a)(ii) (each a "Revolving
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Note" and collectively the "Revolving Notes"). Each Revolving Note
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shall represent the joint and several obligation of each Borrower to
pay the amount of the applicable Lender's Revolving Loan Commitment
or, if less, such Lender's Pro Rata Share of the aggregate unpaid
principal amount of all Revolving Credit Advances made to Borrowers
together with interest thereon as prescribed in SECTION 1.5.
Notwithstanding any provision herein contained to the contrary, any
Lender may elect by written notice to Administrative Agent and
Borrower Representative (which election may be revoked by written
notice to Administrative Agent and Borrower Representative) to
dispense with the issuance of a Revolving Note to such Lender and may
rely on the Loan Account as evidence of the amount of Obligations from
time to time owing to it. The entire unpaid balance of the Revolving
Loan and all other noncontingent Obligations shall be immediately due
and payable in full in immediately available funds on the Commitment
Termination Date.
(b) Reliance on Notices. Administrative Agent shall be entitled to
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rely upon, and shall be fully protected in relying upon, any Notice of
Revolving Credit Advance or similar
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notice believed by Administrative Agent to be genuine. Administrative Agent
may assume that each Person executing and delivering any such notice was
duly authorized, unless the responsible individual acting thereon for
Administrative Agent has actual knowledge to the contrary.
1.2 Letters of Credit. Subject to and in accordance with the terms and
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conditions contained herein and in ANNEX B, Borrowers shall have the right to
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request, and Lenders agree to incur, or purchase participations in, L/C
Obligations in respect of Borrowers.
1.3 Prepayments.
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(a) Voluntary Prepayments. Borrowers may, at any time on at least two
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(2) Business Days' prior written notice in substantially the form of
EXHIBIT 1.3(a) (a "Notice of Voluntary Prepayment/Reduction") from Borrower
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Representative to Administrative Agent, (x) voluntarily prepay all or part
of the Revolving Loan and/or (y) permanently reduce (but not terminate) the
Revolving Loan Commitments; provided, that (i) any such prepayments or
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reductions shall be in a minimum amount of $1,000,000 and integral
multiples of $250,000 in excess of such amount and (ii) the Revolving Loan
Commitments shall not be reduced to an amount less than the amount of the
L/C Obligations. Borrowers may at any time on at least two (2) Business
Days' prior written notice from Borrower Representative to Administrative
Agent terminate the Revolving Loan Commitments; provided, that upon such
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termination the Revolving Loan and other Obligations shall be immediately
due and payable in full and Borrowers shall make arrangements, in
accordance with the terms and conditions of ANNEX B, for the satisfaction
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of any outstanding L/C Obligations. Any voluntary prepayment in full and
any such reduction or termination of the Revolving Loan Commitments must be
accompanied by payment of Agents' and each Lender's out-of-pocket expenses.
Upon any reduction or termination of the Revolving Loan Commitments as
provided above, Borrowers' right to request Revolving Credit Advances or
request that L/C Obligations be incurred on their behalf shall
simultaneously be permanently reduced or terminated, as the case may be;
provided, that, subject to compliance with CLAUSE (ii) above, a permanent
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reduction of the Revolving Loan Commitments shall not require a
corresponding reduction in the L/C Sublimit.
(b) Mandatory Prepayments; ENBC Stock Proceeds.
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(i) Immediately upon receipt by any Borrower of (x) subject to
SECTION 5.4(C), insurance proceeds, (y) federal, state or local tax
refunds, or (z) subject (with respect to Subject Asset Sales) to
CLAUSE (b)(iii) below, proceeds of any asset disposition (including
condemnation proceeds, but excluding proceeds of any disposition of
(1) assets in the ordinary course of business or (2) any ENBC Stock),
Borrowers shall pay to Administrative Agent an amount equal to (A)
100% of the amount received (in the case of CLAUSES (x) and (y) above)
and (B) the Net Cash Proceeds thereof (in the case of CLAUSE (z)
above). Any such prepayment shall be applied in accordance with
SECTION 1.3(c).
(ii) Immediately upon receipt by BCI of proceeds of any
disposition of the ENBC Stock, BCI shall (A) pay 25% of the Net Cash
Proceeds thereof to the Common Collateral Agent in accordance with the
Adequate Protection Order applicable to the 1996 Obligations, (B) pay
50% of the Net Cash Proceeds thereof to Administrative Agent, which
amount paid pursuant to this CLAUSE (B) shall be applied as provided
in SECTION 1.3(c) and (C) subject to SECTION 1.16(d), retain 25% of
the Net Cash Proceeds thereof as Cash Collateral (the "ENBC Proceeds
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Cash Collateral").
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(iii) With respect to any sale or other disposition by any
Borrower of assets no longer used or useful in the conduct of
Borrowers' business (any such sale, a "Subject Asset Sale"), the first
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$500,000 of Net Cash Proceeds from all such Subject Asset Sales by all
Borrowers during the period from and after the Closing Date may be
retained by Borrowers, and thereafter:
(A) as to any individual Subject Asset Sale (or related
series of sales) with respect to which the Net Cash Proceeds is
$50,000 or more, the Net Cash Proceeds thereof shall, immediately
upon receipt by any Borrower, be payable to Administrative Agent
pursuant to SECTION 1.3(b)(i); and
(B) 100% of the Net Cash Proceeds of all other Subject Asset
Sales that are received by Borrowers during any Fiscal Quarter,
as reflected in the reports delivered pursuant to PARAGRAPH
(d)(iii) of ANNEX E (or as otherwise determined in a manner that
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is acceptable to Administrative Agent), shall be payable to
Administrative Agent pursuant to SECTION 1.3(b)(i) within five
Business Days after delivery of the relevant Financial Statements
relating to such Fiscal Quarter.
As soon as practicable before any mandatory prepayment is made under this
SECTION 1.3(b) (or concurrently therewith if prior notice cannot be given),
Borrower Representative shall deliver to Administrative Agent a written
notice in substantially the form of EXHIBIT 1.3(b) (a "Notice of Mandatory
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Prepayment") with respect to such prepayment.
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(c) Application of Mandatory Prepayments; Reduction of Commitments.
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Any prepayments made by Borrowers pursuant to CLAUSE (b) above shall be
applied as follows: first, to the outstanding principal balance of
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Revolving Credit Advances until the same shall have been paid in full; and
second, to any L/C Obligations, to provide cash collateral therefor in the
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manner set forth in ANNEX B, until all such L/C Obligations have been fully
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cash collateralized in the manner set forth in ANNEX B. Upon the
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application of any prepayment pursuant to the preceding CLAUSE FIRST, the
Revolving Loan Commitments shall be permanently reduced in an amount equal
to the amount of such prepayment.
(d) No Consent to Prohibited Transactions. Nothing in this SECTION
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1.3 shall be construed to constitute Agents' or any Lender's consent to any
transaction that is not permitted by other provisions of this Agreement or
the other Loan Documents.
1.4 Use of Proceeds. Borrowers shall utilize the proceeds of the
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Revolving Credit Advances (i) to pay the Liquidity Loan Payoff Amount to the
Liquidity Lenders, (ii) for the payment of costs and expenses of the financing
transactions contemplated by this Agreement that are payable by Borrowers, (iii)
for working capital requirements and other corporate purposes permitted by the
terms of this Agreement, the other Loan Documents, the Bankruptcy Code and the
Bankruptcy Court (including the expenses (including professional fees and
expenses) arising in the Chapter 11 Cases as may be approved by the Bankruptcy
Court); provided, that no portion of the Revolving Loan shall be used, directly
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or indirectly: (a) to finance or make any Restricted Payment not permitted under
SECTION 6.14, or (b) to make any distribution under a plan of reorganization in
the Chapter 11 Cases.
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1.5 Interest and Margins.
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(a) Borrowers shall pay interest to Administrative Agent, for the
ratable benefit of Lenders, in accordance with the outstanding Revolving
Credit Advances being made by each Lender, in arrears on each applicable
Interest Payment Date, at the Index Rate plus 1.5% per annum, based on the
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aggregate Revolving Credit Advances outstanding from time to time.
(b) If any payment of any of the Obligations becomes due and payable
on a day other than a Business Day, the maturity thereof will be extended
to the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate
during such extension.
(c) All computations of Fees calculated on a per annum basis and
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interest shall be made by Administrative Agent on the basis of a 360-day
year, in each case for the actual number of days occurring in the period
for which such Fees or interest are payable. Each determination by
Administrative Agent of an interest rate and Fees hereunder shall be final,
binding and conclusive on Borrowers (absent manifest error).
(d) So long as an Event of Default shall have occurred and be
continuing, the interest rates applicable to the Revolving Credit Advances
and the L/C Fees shall be increased by two percentage points (2.00%) per
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annum above the rates of interest or the rate of such Fees otherwise
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applicable hereunder (the "Default Rate"), and all outstanding Obligations
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shall bear interest at the Default Rate applicable to such Obligations.
Interest and L/C Fees at the Default Rate shall accrue from the initial
date of such Event of Default until that Event of Default is cured or
waived and shall be payable upon demand.
(e) Notwithstanding anything to the contrary set forth in this SECTION
1.5, if a court of competent jurisdiction determines in a final order that
the rate of interest payable hereunder exceeds the highest rate of interest
permissible under law (the "Maximum Lawful Rate"), then so long as the
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Maximum Lawful Rate would be so exceeded, the rate of interest payable
hereunder shall be equal to the Maximum Lawful Rate; provided, that if at
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any time thereafter the rate of interest payable hereunder is less than the
Maximum Lawful Rate, Borrowers shall continue to pay interest hereunder at
the Maximum Lawful Rate until such time as the total interest received by
Administrative Agent, on behalf of Lenders, is equal to the total interest
that would have been received had the interest rate payable hereunder been
(but for the operation of this CLAUSE (E)) the interest rate payable since
the Closing Date as otherwise provided in this Agreement. Thereafter,
interest hereunder shall be paid at the rate(s) of interest and in the
manner provided in SECTIONS 1.5(A) through (D), unless and until the rate
of interest again exceeds the Maximum Lawful Rate, and at that time this
CLAUSE (E) shall again apply. In no event shall the total interest
received by any Lender pursuant to the terms hereof exceed the amount that
such Lender could lawfully have received had the interest due hereunder
been calculated for the full term hereof at the Maximum Lawful Rate. If
the Maximum Lawful Rate is calculated pursuant to this CLAUSE (E), such
interest shall be calculated at a daily rate equal to the Maximum Lawful
Rate divided by the number of days in the year in which such calculation is
made. If, notwithstanding the provisions of this CLAUSE (E), a court of
competent jurisdiction shall finally determine that a Lender has received
interest hereunder in excess of the Maximum Lawful Rate, Administrative
Agent shall, to the extent permitted by applicable law, promptly apply such
excess in the order specified in SECTION 1.9 and thereafter shall refund
any excess to Borrowers or as a court of competent jurisdiction may
otherwise order.
6
1.6 Cash Management System. On or prior to the Closing Date, Borrowers
----------------------
will establish and will maintain until the Termination Date the cash management
system described in ANNEX C (the "Cash Management System").
------- ----------------------
1.7 Fees.
----
(a) Borrowers shall pay to GE Capital, individually, the Fees
specified in the GE Capital Fee Letter, at the times specified for payment
therein.
(b) As additional compensation for the Lenders, Borrowers shall pay to
Administrative Agent, for the ratable benefit of such Lenders, in arrears,
on the first Business Day of each month prior to the Commitment Termination
Date and on the Commitment Termination Date, a fee for Borrowers' non-use
of available funds in an amount equal to (i) three-eighths of one percent
(0.375%) per annum (calculated on the basis of a 360-day year for actual
---------
days elapsed) multiplied by (ii)(A) the Maximum Amount (as it may be
-------------
reduced from time to time) minus (B) the average for the period of the
-----
daily closing balances of the Revolving Loan outstanding during the period
for which such fee is due.
(c) Borrowers shall pay to Administrative Agent, for the ratable
benefit of Lenders, the L/C Fee as provided in ANNEX B.
-------
1.8 Receipt of Payments. Borrowers shall make each payment under this
-------------------
Agreement not later than 1:00 p.m. (New York time) on the day when due in
immediately available funds in Dollars to the Control Account. For purposes of
computing interest and Fees as of any date, all payments shall be deemed
received on the Business Day of receipt of immediately available funds therefor
in the Control Account prior to 1:00 p.m. (New York time), and payments received
after 1:00 p.m. (New York time) on any Business Day shall be deemed to have been
received on the following Business Day.
1.9 Application and Allocation of Payments.
--------------------------------------
(a) So long as no Default or Event of Default shall have occurred and
be continuing: (i) voluntary prepayments shall be applied as determined by
Borrower Representative, subject to the provisions of SECTION 1.3(a); and
(ii) mandatory prepayments shall be applied as set forth in SECTION 1.3(c).
All payments and prepayments applied to the Revolving Loan shall be applied
ratably to the portion thereof held by each Lender as determined by its Pro
Rata Share. As to each other payment, and as to all payments made when a
Default or Event or Default shall have occurred and be continuing or
following the Commitment Termination Date, each Borrower hereby irrevocably
waives the right to direct the application of any and all payments received
from or on behalf of Borrowers, and each Borrower hereby irrevocably agrees
that Administrative Agent shall have the continuing exclusive right to
apply any and all such payments against the Obligations as Administrative
Agent may deem advisable notwithstanding any previous entry by
Administrative Agent in the Loan Account or any other books and records.
In the absence of a specific determination by Administrative Agent with
respect thereto, payments shall be applied to amounts then due and payable
in the following order: (A) to Fees and Agents' expenses reimbursable
hereunder; (B) to interest on the outstanding Revolving Credit Advances;
(C) to principal payments on the outstanding Revolving Credit Advances and
to provide cash collateral for L/C Obligations in the manner described in
ANNEX B; and (D) to all other Obligations including expenses of Lenders to
-------
the extent reimbursable under SECTION 11.3.
(b) Administrative Agent is authorized to, and at its sole election
may, charge to the Revolving Loan balance on behalf of Borrowers and cause
to be paid all Fees, expenses,
7
Charges, costs (including insurance premiums in accordance with SECTION
5.4(A)) and interest owing by Borrowers under this Agreement or any of the
other Loan Documents if and to the extent Borrowers fail to pay promptly
any such amounts as and when due. At Administrative Agent's option and to
the extent permitted by law, any charges so made shall constitute part of
the Revolving Loan hereunder.
1.10 Loan Account and Accounting. Administrative Agent shall maintain a
---------------------------
loan account (the "Loan Account") on its books to record: (a) all Revolving
------------
Credit Advances; (b) all payments made by Borrowers; and (c) all other debits
and credits as provided in this Agreement with respect to the Revolving Loan or
any other Obligations. All entries in the Loan Account shall be made in
accordance with Administrative Agent's customary accounting practices as in
effect from time to time. The balance in the Loan Account, as recorded on
Administrative Agent's most recent printout or other written statement, shall,
absent manifest error, be presumptive evidence of the amounts due and owing to
Agents and Lenders by Borrowers; provided, that any failure to so record or any
--------
error in so recording shall not limit or otherwise affect Borrowers' duty to pay
the Obligations. Administrative Agent shall render to Borrower Representative a
monthly accounting of transactions with respect to the Revolving Loan setting
forth the balance of the Loan Account for the immediately preceding month.
Unless Borrower Representative notifies Administrative Agent in writing of any
objection to any such accounting (specifically describing the basis for such
objection) within 90 days after the date thereof, each and every such accounting
shall be deemed final, binding and conclusive on Borrowers (absent manifest
error) in all respects as to all matters reflected therein. Only those items
expressly objected to in such notice shall be deemed to be disputed by
Borrowers.
1.11 Indemnity. Each Borrower shall jointly and severally indemnify and
---------
hold harmless each of Administrative Agent, Collateral Agent, Lenders and their
respective Affiliates, and each such Person's respective officers, directors,
employees, attorneys, agents and representatives (each, an "Indemnified
-----------
Person"), from and against any and all suits, actions, proceedings, claims,
damages, losses, liabilities and expenses (including reasonable attorneys' fees
and disbursements and other costs of investigation or defense, including those
incurred upon any appeal) that may be instituted or asserted against or incurred
by any such Indemnified Person as the result of credit having been extended,
suspended or terminated under this Agreement and the other Loan Documents and
the administration of such credit, and in connection with or arising out of the
transactions contemplated hereunder and thereunder and any actions or failures
to act in connection therewith, including any and all Environmental Liabilities
and legal costs and expenses arising out of or incurred in connection with
disputes between or among any parties to any of the Loan Documents
(collectively, "Indemnified Liabilities"); provided, that no Borrower shall be
----------------------- --------
liable for any indemnification to an Indemnified Person to the extent that any
such suit, action, proceeding, claim, damage, loss, liability or expense results
from such Indemnified Person's gross negligence or willful misconduct. NO
INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY LOAN
DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR
ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF
CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN DOCUMENT OR
AS A RESULT OF OR IN CONNECTION WITH ANY OTHER TRANSACTION CONTEMPLATED
HEREUNDER OR THEREUNDER.
1.12 Access. Each Borrower shall, during normal business hours, from time
------
to time upon one Business Day's prior notice as frequently as either Agent
determines to be appropriate: (a) provide such Agent and any of its officers,
employees and agents reasonable access to its properties, facilities,
8
advisors and employees (including officers) and to the Collateral; (b) permit
such Agent and any of its officers, employees and agents to inspect, audit and
make extracts from any Borrower's books and records; and (c) permit such Agent
and its officers, employees and agents to inspect, review, and evaluate the
Collateral of any Borrower. If a Default or Event of Default shall have occurred
and be continuing or if access is necessary to preserve or protect the
Collateral as reasonably determined by either Agent, each Borrower shall provide
such access to Agents and to each Lender at all times and without advance
notice. Each Agent will give Lenders at least ten days' prior written notice of
regularly scheduled audits, and representatives of other Lenders may accompany
either Agent's representatives on any audits at no charge to Borrowers.
1.13 Taxes.
-----
(a) Any and all payments by Borrowers hereunder or under the Revolving
Notes shall be made, in accordance with this SECTION 1.13, free and clear
of and without deduction for any and all present or future Taxes. If any
Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under the Revolving Notes, (i) the sum payable
shall be increased as much as shall be necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this SECTION 1.13) Administrative Agent, Collateral Agent or
Lenders, as applicable, receive an amount equal to the sum they would have
received had no such deductions been made, (ii) such Borrower shall make
such deductions, and (iii) such Borrower shall pay the full amount deducted
to the relevant taxing or other authority in accordance with applicable
law. Within 30 days after the date of any payment of Taxes, the applicable
Borrower shall furnish to Administrative Agent the original or a certified
copy of a receipt evidencing payment thereof.
(b) Each Borrower shall indemnify and, within ten days of demand
therefor, pay Administrative Agent, Collateral Agent and each Lender for
the full amount of Taxes (including any Taxes imposed by any jurisdiction
on amounts payable under this SECTION 1.13) paid by Administrative Agent,
Collateral Agent or such Lender, as the case may be, and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes were correctly or legally
asserted.
(c) Each Lender organized under the laws of a jurisdiction outside the
United States (a "Foreign Lender") as to which payments to be made under
--------------
this Agreement or under the Revolving Notes are exempt from United States
withholding tax under an applicable statute or tax treaty shall provide to
Borrower Representative and Administrative Agent a properly completed and
executed IRS Form 4224 or Form 1001 or other applicable form, certificate
or document prescribed by the IRS or the United States certifying as to
such Foreign Lender's entitlement to such exemption (a "Certificate of
--------------
Exemption"). Any foreign Person that seeks to become a Lender under this
---------
Agreement shall provide a Certificate of Exemption to Borrower
Representative and Administrative Agent prior to becoming a Lender
hereunder. No foreign Person may become a Lender hereunder if such Person
is unable to deliver a Certificate of Exemption.
9
1.14 Capital Adequacy; Increased Costs; Illegality.
---------------------------------------------
(a) If any Lender shall have determined after the Closing Date that
any law, treaty, governmental (or quasi-governmental) rule, regulation,
guideline or order regarding capital adequacy, reserve requirements or
similar requirements or compliance by any Lender with any request or
directive regarding capital adequacy, reserve requirements or similar
requirements (whether or not having the force of law), in each case from
any central bank or other Governmental Authority increases or would have
the effect of increasing the amount of capital, reserves or other funds
required to be maintained by such Lender and thereby reducing the rate of
return on such Lender's capital as a consequence of its obligations
hereunder, then Borrowers shall from time to time upon demand to Borrower
Representative by such Lender (with a copy of such demand to Administrative
Agent) pay to Administrative Agent, for the account of such Lender,
additional amounts sufficient to compensate such Lender for such reduction.
A certificate as to the amount of that reduction and showing the basis of
the computation thereof submitted by such Lender to Borrower Representative
and to Administrative Agent shall be final, binding and conclusive on
Borrowers (absent manifest error) for all purposes.
(b) If, due to either (i) the introduction of or any change in any law
or regulation (or any change in the interpretation thereof) after the
Closing Date or (ii) the compliance with any guideline adopted by or
request made by any central bank or other Governmental Authority (whether
or not having the force of law) after the Closing Date, there shall be any
increase in the cost to any Lender of agreeing to make or making, funding
or maintaining its outstanding Revolving Credit Advances, then Borrowers
shall, from time to time upon demand by such Lender (with a copy of such
demand to Administrative Agent), pay to Administrative Agent for the
account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to Borrower Representative and to Administrative
Agent by such Lender, shall be final, binding and conclusive on Borrowers
(absent manifest error) for all purposes. Each Lender agrees that, as
promptly as practicable after it becomes aware of any circumstances
referred to above that would result in any such increased cost, the
affected Lender shall, to the extent not inconsistent with such Lender's
internal policies of general application, use reasonable commercial efforts
to minimize costs and expenses incurred by it and payable to it by
Borrowers pursuant to this SECTION 1.14(b).
(c) (i) Within 30 days after receipt by Borrower Representative of
written notice and demand from any Lender (an "Affected Lender") for
---------------
payment of additional amounts or increased costs as provided in
SECTIONS 1.13(a), 1.14(a) or 1.14(b), Borrower Representative may, at
its option, notify Administrative Agent and such Affected Lender of
its intention to replace the Affected Lender. So long as no Default
or Event of Default shall have occurred and be continuing, Borrowers,
with the consent of Administrative Agent, may obtain, at Borrowers'
expense, a replacement lender ("Replacement Lender") for the Affected
------------------
Lender, which Replacement Lender must be reasonably satisfactory to
Administrative Agent (it being understood that any existing Lender
shall be deemed to be satisfactory to Administrative Agent). If
Borrowers obtain a Replacement Lender within 90 days following notice
of their intention to do so, the Affected Lender must sell and assign
its Revolving Loan and Revolving Loan Commitment to such Replacement
Lender for an amount equal to the principal balance of the outstanding
Revolving Credit Advances of the Affected Lender
10
and all accrued interest and Fees with respect thereto or otherwise
owing to such Lender through the date of such sale; provided, that
--------
Borrowers shall have reimbursed such Affected Lender for the
additional amounts or increased costs that it is entitled to receive
under this Agreement through the date of such sale and assignment.
(ii) Notwithstanding the foregoing, Borrowers shall not have the
right to obtain a Replacement Lender if the Affected Lender rescinds
its demand for increased costs or additional amounts within 15 days
following its receipt of Borrower Representative's notice of intention
to replace such Affected Lender. Furthermore, if Borrower
Representative gives a notice of intention to replace and does not so
replace such Affected Lender within 90 days thereafter, Borrowers'
rights under this SECTION 1.14(C) to replace the Affected Lender in
connection with the additional amounts or increased costs then claimed
by such Affected Lender shall terminate and Borrowers shall promptly
pay all increased costs or additional amounts demanded by such
Affected Lender pursuant to SECTIONS 1.13(a), 1.14(a) and 1.14(b).
1.15 Single Revolving Loan. The Revolving Loan and all of the other
---------------------
Obligations of Borrowers arising under this Agreement and the other Loan
Documents shall constitute one general obligation of Borrowers secured by all of
the Collateral.
1.16 Priority of Obligations and Collateral Agent's Liens; Cash Collateral.
---------------------------------------------------------------------
(a) The priority of Collateral Agent's Liens on the Collateral, for
the benefit of Agents and Lenders, shall be set forth in the Interim Order
and the Final Order.
(b) Subject to the Carve-Out, the Obligations shall have the highest
administrative priority under Section 364(c) of the Bankruptcy Code over
all other costs and expenses of the kinds specified in, or ordered pursuant
to, Sections 105, 326, 330, 331, 503(b), 506(c), 507(a), 507(b), 726 or any
other provision of the Bankruptcy Code and (subject to the Carve-Out) shall
at all times be senior to the rights of Borrowers, Borrowers' estate, and
any successor trustee or estate representative in the Chapter 11 Cases or
any subsequent proceedings or cases under the Bankruptcy Code.
(c) Collateral Agent's Liens on the Collateral, for the benefit of
Agents and Lenders, and the administrative claim under Section 364(c) of
the Bankruptcy Code afforded the Obligations shall be subject to (i) the
unpaid professional fees and expenses incurred in the Chapter 11 Cases by
Borrowers and the members of any statutory committee appointed pursuant to
Section 1102 of the Bankruptcy Code, in each case as and when allowed on a
final basis pursuant to Section 330 of the Bankruptcy Code, (ii) fees
payable to the United States Trustee pursuant to 28 U.S.C. (S) 1930(a)(6),
and (iii) fees and expenses (other than fees and expenses of professionals)
of a subsequent Chapter 7 trustee, in an aggregate amount with respect to
the preceding CLAUSES (i)-(iii) of no more than $3,500,000 (the "Carve-
-----
Out"); provided, that such fees and disbursements shall not (A) be paid
--------
from amounts on deposit in the Cash Collateral Account or (B) include any
fees or expenses arising after the conversion of any Chapter 11 Case to a
case under Chapter 7 of the Bankruptcy Code.
(d) Subject to SECTION 8.2(iii), Agents and Lenders consent to
Borrowers' use of the Cash Collateral of Collateral Agent, for the benefit
of Agents and Lenders, pursuant to this Agreement and the other Loan
Documents; provided, that the ENBC Proceeds Cash Collateral Amount may only
--------
be used in the manner in which Revolving Credit Advances are permitted to
be used pursuant to SECTION 1.4(iii).
11
1.17 Appointment of Borrower Representative. Each Borrower hereby
--------------------------------------
designates BCI as its representative and agent (in such capacity, "Borrower
--------
Representative") on its behalf for the purposes of (i) issuing Notices of
--------------
Revolving Credit Advance and any related documentation, (ii) giving instructions
with respect to the disbursement of the proceeds of the Revolving Credit
Advances, (iii) requesting Letters of Credit, (iv) giving and receiving all
other notices and consents hereunder or under any of the other Loan Documents
and (v) taking all other actions (including in respect of compliance with
covenants) on behalf of any Borrower under the Loan Documents. Borrower
Representative hereby accepts such appointment. Each Agent and each Lender may
regard any notice or other communication pursuant to any Loan Document from
Borrower Representative as a notice or communication from any or all Borrowers,
and may give any notice or communication required or permitted to be given to
any or all Borrowers hereunder to Borrower Representative on behalf of each
Borrower. Each Borrower agrees that each notice, election, representation and
warranty, covenant, agreement and undertaking made on its behalf by Borrower
Representative shall be deemed for all purposes to have been made by such
Borrower and shall be binding upon and enforceable against such Borrower to the
same extent as if the same had been made directly by such Borrower.
2. CONDITIONS PRECEDENT
2.1 Conditions to the Initial Revolving Credit Advance. No Lender shall
--------------------------------------------------
be obligated to make its initial Revolving Credit Advance hereunder or incur the
initial L/C Obligations (if any) hereunder, or to take, fulfill, or perform any
other action hereunder, until the following conditions have been satisfied or
provided for in a manner satisfactory to Administrative Agent, or waived in
writing by Administrative Agent:
(a) Credit Agreement; Loan Documents. This Agreement or counterparts
--------------------------------
hereof shall have been duly executed by and delivered to Borrowers, Agents
and Lenders, and each Agent shall have received such documents,
instruments, agreements and legal opinions as such Agent shall reasonably
request in connection with the transactions contemplated by this Agreement
and the other Loan Documents, including all those listed in the Schedule of
Documents, each in form and substance satisfactory to such Agent.
(b) Approvals. Administrative Agent shall have received (i)
---------
satisfactory evidence that each Borrower has obtained all required consents
and approvals of all Persons, including all requisite Governmental
Authorities, to the execution, delivery and performance of this Agreement
and the other Loan Documents and the consummation of the related
transactions; or (ii) an officer's certificate or a certificate of a
member, manager or partner, as applicable, in form and substance
satisfactory to Administrative Agent affirming that no such consents or
approvals are required; and
(c) Payment of Fees. Borrowers shall have paid the Fees required to be
---------------
paid on the Closing Date in the respective amounts specified in SECTION 1.7
(including the Fees specified in the GE Capital Fee Letter), and shall have
reimbursed Agents for all fees, costs and expenses of closing presented as
of the Closing Date.
2.2 Further Conditions to Each Revolving Credit Advance. Except as
---------------------------------------------------
otherwise expressly provided herein, no Lender shall be obligated to fund any
Revolving Credit Advance or incur any L/C Obligation, if, as of the date
thereof.
(a) any representation or warranty by any Borrower contained herein or
in any other Loan Document shall be untrue or incorrect in any material
respect as of such date, except to the extent that such representation or
warranty expressly relates to an earlier date and
12
except for changes therein expressly permitted or expressly contemplated by
this Agreement;
(b) (i) the Bankruptcy Court shall not have entered the Interim Order
following the expiration of the notice period required under Bankruptcy
Rule 4001, (ii) the Bankruptcy Court shall not have entered the Final Order
following the later of (A) the expiration of the notice period required
under Bankruptcy Rule 4001 and (B) the expiration of the Interim Order, or
(iii) the Interim Order or the Final Order, as the case may be, shall have
been vacated or reversed, or modified or amended without Administrative
Agent's (with respect to the Interim Order) or Requisite Lenders' (with
respect to the Final Order) consent, or an appeal of any such order shall
have been timely filed and, if such an appeal has been taken, a stay of
such order pending appeal shall be presently effective;
(c) (i) The Bankruptcy Court shall not have entered the Adequate
Protection Orders or any Adequate Protection Order shall cease to be
effective or binding on Borrowers, or (ii) Borrowers shall be in default of
their obligations under any Adequate Protection Order;
(d) except as occasioned by the commencement of the Chapter 11 Cases
and the actions, proceedings, investigations and other matters related
thereto, any event or circumstance having a Material Adverse Effect shall
have occurred since the Closing Date as reasonably determined by Requisite
Lenders;
(e) (i) any Event of Default shall have occurred and be continuing or
would result after giving effect to any Revolving Credit Advance (or the
incurrence of any L/C Obligations); or (ii) any Default shall have occurred
and be continuing or would result after giving effect to any Revolving
Credit Advance (or the incurrence of any L/C Obligations), and
Administrative Agent or Requisite Lenders shall have determined not to make
any Revolving Credit Advance or incur any L/C Obligation so long as such
Default is continuing;
(f) after giving effect to any Revolving Credit Advance (or the
incurrence of any L/C Obligations), (i) the outstanding principal amount of
the Revolving Loan would exceed either (A) the Maximum Amount or (B) the
amount then authorized by the Interim Order or the Final Order, as
applicable, or (ii) Borrowers would not be in compliance with the
Availability Limitation; or
(g) such Revolving Credit Advance or L/C Obligation is not being used
or incurred, as the case may be, consistent with the Budget or, after such
use or incurrence is taken into account, Borrowers will not be within the
limitations set forth in the Budget.
The request and acceptance by Borrower Representative of the proceeds of any
Revolving Credit Advance, or the incurrence of any L/C Obligations, as the case
may be, shall be deemed to constitute, as of the date of such request,
acceptance or incurrence, (i) a representation and warranty by Borrowers that
the conditions in this SECTION 2.2 have been satisfied and (ii) a reaffirmation
by Borrowers of the granting and continuance of Collateral Agent's Liens, on
behalf of Agents and Lenders, pursuant to the Collateral Documents.
3. REPRESENTATIONS AND WARRANTIES
To induce Lenders to make Revolving Credit Advances and to incur L/C
Obligations, Borrowers, jointly and severally, make the following
representations and warranties to Agents and each Lender with respect to all
Borrowers, each and all of which shall survive the execution and delivery of
this Agreement.
13
3.1 Corporate or Other Existence; Compliance with Law. Each Borrower:
-------------------------------------------------
(a) is a corporation, limited liability company or limited partnership
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, organization or formation, as applicable;
(b) is duly qualified to conduct business and is in good standing in
each other jurisdiction where its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified could not reasonably be expected to have a
Material Adverse Effect;
(c) subject to compliance with any applicable provisions of the
Bankruptcy Code, has the requisite corporate or other power and authority
and the legal right to own, pledge, mortgage or otherwise encumber and
operate its properties, to lease the property it operates under lease and
to conduct its business as now and proposed to be conducted;
(d) subject to specific representations regarding Environmental Laws,
has all material licenses, permits, consents or approvals from or by, and
has made all material filings with, and has given all material notices to,
all Governmental Authorities having jurisdiction, to the extent required
for such ownership, operation and conduct;
(e) is in compliance with its Organizational Documents; and
(f) subject to specific representations set forth herein regarding
ERISA, Environmental Laws, tax and other laws, is in compliance with all
applicable provisions of law, except where the failure to comply,
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
3.2 Executive Offices; Collateral Locations; FEIN. As of the Closing
---------------------------------------------
Date, the current location of each Borrower's chief executive office and the
warehouses and premises within which any Collateral is stored or located are set
forth in SCHEDULE 3.2. In addition, SCHEDULE 3.2 lists the federal employer
------------ ------------
identification number of each Borrower.
3.3 Corporate or Other Power, Authorization, Enforceable Obligations. The
----------------------------------------------------------------
execution, delivery and performance by each Borrower of the Loan Documents to
which it is a party and the creation of all Liens provided for therein:
(a) are within such Person's corporate or other power;
(b) have been duly authorized by all necessary or proper corporate and
shareholder, company and member, or partnership and partner, as applicable,
action;
(c) have been, or by the Closing Date will be, duly authorized by the
Bankruptcy Court;
(d) do not contravene any provision of such Person's Organizational
Documents.
(e) do not violate any law or regulation, or any order or decree of
any court or Governmental Authority;
(f) do not conflict with or result in the breach or termination of,
constitute a default under or accelerate or permit the acceleration of any
performance required by, any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which such Person is a party or by which
such Person or any of its property is bound (provided, that the foregoing
--------
shall not apply to any breach, default or related matter with respect to
which the Bankruptcy
14
Code prohibits any Borrower from complying or permits any Borrower not to
comply);
(g) do not result in the creation or imposition of any Lien upon any
of the property of such Person other than those in favor of Collateral
Agent, on behalf of Agents and Lenders, pursuant to the Loan Documents; and
(h) do not require the consent or approval of any Governmental
Authority or any other Person, except for the Bankruptcy Court and those
referred to in SECTION 2.1(B), all of which will have been duly obtained,
made or complied with prior to the Closing Date.
On or prior to the Closing Date, each of the Loan Documents shall have been duly
executed and delivered by each Borrower party thereto and, subject to the entry
of the Interim Order and the Final Order, as applicable, each such Loan Document
shall then constitute a legal, valid and binding obligation of such Borrower
enforceable against it in accordance with its terms.
3.4 Financial Statements; Budget. Except as disclosed in SCHEDULE 3.4(a),
---------------------------- ---------------
all Financial Statements concerning any Borrower that are referenced below have
been prepared in accordance with GAAP consistently applied throughout the
periods covered (except as disclosed therein and except, with respect to
unaudited Financial Statements, for the absence of footnotes and normal year-end
accruals, reclassifications and audit adjustments) and present fairly in all
material respects the financial position of the Persons covered thereby as at
the dates thereof and the results of their operations and cash flows for the
periods then ended.
(a) The following Financial Statements attached hereto as SCHEDULE
--------
3.4(a) have been delivered on or before the date hereof:
------
(i) The audited consolidated balance sheets at December 28, 1997,
and the related statements of income and cash flows of Borrowers for
the Fiscal Year then ended, certified by Xxxxxx Xxxxxxxx LLP.
(ii) The unaudited balance sheet(s) at September 6, 1998, and the
related statement(s) of income and cash flows of Borrowers for the
fiscal period then ended.
(b) Budget. The Budget delivered on the date hereof and attached
------
hereto as SCHEDULE 3.4(b) has been prepared by Borrowers in light of the
---------------
past operations of their businesses, and reflects projections for the
fiscal period beginning with Retail Period 8 of Fiscal Year 1998 and ending
on the last day of Fiscal Year 1999, on a Retail Period by Retail Period
basis. The Budget is based upon estimates and assumptions stated therein,
all of which Borrowers believe to be reasonable and fair in light of
current conditions and current facts known to Borrowers and, as of the
Closing Date, reflect Borrowers' good faith and reasonable estimates of the
future financial performance of Borrowers and of the other information
projected therein for the period set forth therein.
3.5 Material Adverse Effect. Between December 28, 1997, and the Closing
-----------------------
Date: (a) no Borrower has incurred any obligations, contingent or noncontingent
liabilities, liabilities for Charges, long-term leases or unusual forward or
long-term commitments that are not reflected in the Financial Statements
described in SECTION 3.4(a)(ii) or the Budget and that, alone or in the
aggregate, could reasonably be expected to have a Material Adverse Effect; (b)
no contract, lease or other agreement or instrument has been entered into by any
Borrower or has become binding upon any Borrower's assets that are not reflected
in the Financial Statements described in SECTION 3.4(a)(ii) or the Budget and to
Borrowers' knowledge no law or regulation applicable to any Borrower has been
adopted which has had or could reasonably be expected to have a Material Adverse
Effect; and (c) except for defaults
15
occasioned by the Chapter 11 Cases or occurring prior to the Petition Date, no
Borrower is in default and to the best of each Borrower's knowledge no third
party is in default under any material contract, lease or other agreement or
instrument to which such Borrower is a party that alone or in the aggregate
could reasonably be expected to have a Material Adverse Effect.
3.6 Ownership of Property; Liens. As of the Closing Date, the real estate
----------------------------
("Real Estate") listed in SCHEDULE 3.6 constitutes all of the real property
----------- ------------
owned, leased, subleased, or used by any Borrower. Each Borrower owns good and
marketable or indefeasible fee simple title to all of its owned Real Estate and
valid leasehold interests in all of its leased Real Estate, all as described in
SCHEDULE 3.6, and copies of all such leases or a summary of terms thereof
------------
satisfactory to Agents have been delivered to Agents. SCHEDULE 3.6 further
------------
describes any Real Estate with respect to which any Borrower is a lessor,
sublessor or assignor as of the Closing Date. Each Borrower also has good and
marketable title to, or valid leasehold interests in, all of its personal
property and assets. As of the Closing Date, none of the properties and assets
of any Borrower are subject to any Liens other than Permitted Encumbrances, and
there are no facts, circumstances or conditions known to any Borrower that may
result in any Liens (including Liens arising under Environmental Laws) other
than Permitted Encumbrances. Each Borrower has received all deeds, assignments,
waivers, consents, nondisturbance and attornment or similar agreements, bills of
sale and other documents, and has duly effected all recordings, filings and
other actions necessary to establish, protect and perfect such Borrower's right,
title and interest in and to all such Real Estate and other properties and
assets. SCHEDULE 3.6 also describes any purchase options, rights of first
------------
refusal or other similar contractual rights pertaining to any Real Estate. As
of the Closing Date, no portion of any Borrower's Real Estate has suffered any
material damage by fire or other casualty loss that has not heretofore been
repaired and restored in all material respects to its original condition or
otherwise remedied. As of the Closing Date, all material permits required to
have been issued or appropriate to enable the Real Estate to be lawfully
occupied and used for all of the purposes for which it is currently occupied and
used have been lawfully issued and are in full force and effect. The Liens
granted to Collateral Agent, on behalf of Agents and Lenders, pursuant to the
Collateral Documents will at all times be fully perfected Liens in and to the
Collateral described therein, subject, as to priority, only to Permitted Senior
Encumbrances.
3.7 Labor Matters. As of the Closing Date:
-------------
(a) no strikes or other material labor disputes against any Borrower
are pending or, to any Borrower's knowledge, threatened;
(b) hours worked by and payment made to employees of each Borrower
comply in all material respects with the Fair Labor Standards Act and each
other federal, state, local or foreign law applicable to such matters;
(c) all payments due from any Borrower for employee health and welfare
insurance have been paid or accrued as a liability on the books of such
Borrower;
(d) except as set forth in SCHEDULE 3.7, no Borrower is a party to or
------------
bound by any collective bargaining agreement, management agreement,
consulting agreement, employment agreement, bonus plan or agreement or
stock option, restricted stock, stock appreciation right or any similar
plan, agreement or arrangement (and true and complete copies of any
agreements described in SCHEDULE 3.7 have been delivered to Agents);
------------
(e) there is no organizing activity involving any Borrower pending or,
to any Borrower's knowledge, threatened by any labor union or group of
employees;
16
(f) there are no representation proceedings pending or, to any
Borrower's knowledge, threatened with the National Labor Relations Board,
and no labor organization or group of employees of any Borrower has made a
pending demand for recognition; and
(g) except as set forth in SCHEDULE 3.7, there are no material
------------
complaints or charges against any Borrower pending or, to the knowledge of
any Borrower, threatened to be filed with any Governmental Authority or
arbitrator based on, arising out of, in connection with, or otherwise
relating to the employment or termination of employment by any Borrower of
any individual.
3.8 Ventures, Subsidiaries and Affiliates; Outstanding Stock and
------------------------------------------------------------
Indebtedness. Except as set forth in SCHEDULE 3.8, no Borrower has any
------------ ------------
Subsidiaries or is engaged in any joint venture or partnership with any other
Person. All of the issued and outstanding Stock of each Borrower other than BCI
is owned of record and to the knowledge of Borrowers beneficially by each of the
Stockholders and in the amounts set forth in SCHEDULE 3.8. There are no
------------
outstanding rights to purchase, options, warrants or similar rights or
agreements pursuant to which any Borrower may be required to issue, sell,
repurchase or redeem any of its Stock or other equity securities or any Stock or
other equity securities of its Subsidiaries. All outstanding Indebtedness of
each Borrower as of the Closing Date is described in SECTION 6.3 (including
SCHEDULE 6.3).
------------
3.9 Government Regulation. No Borrower is an "investment company" or an
---------------------
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940. No Borrower is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, or any other federal or state
statute that restricts or limits its ability to incur Indebtedness or to perform
its obligations hereunder. The making of Revolving Credit Advances by Lenders
to Borrowers and the incurrence of the L/C Obligations on behalf of Borrowers
will not violate any provision of any such statute or any rule, regulation or
order issued by the Securities and Exchange Commission.
3.10 Margin Regulations. No Borrower is engaged, nor will it engage,
------------------
principally or as one of its important activities, in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin security" as
such terms are defined in Regulation U of the Federal Reserve Board as now and
from time to time hereafter in effect (such securities being referred to herein
as "Margin Stock"). Except for the ENBC Stock, no Borrower owns any Margin
------------
Stock, and none of the proceeds of the Revolving Credit Advances or other
extensions of credit under this Agreement will be used, directly or indirectly,
for the purpose of purchasing or carrying any Margin Stock, for the purpose of
reducing or retiring any Indebtedness that was originally incurred to purchase
or carry any Margin Stock or for any other purpose that might cause the
Revolving Loan or other extensions of credit under this Agreement to be
considered a "purpose credit" within the meaning of Regulations T, U or X of the
Federal Reserve Board. No Borrower will take or permit to be taken any action
that might cause any Loan Document to violate any regulation of the Federal
Reserve Board.
3.11 Taxes. All material tax returns, reports and statements, including
-----
information returns, required by any Governmental Authority to be filed by any
Borrower have been filed with the appropriate Governmental Authority and all
Charges have been paid prior to the date on which any fine, penalty, interest or
late charge may be added thereto for nonpayment thereof (or any such fine,
penalty, interest, late charge or loss has been paid), excluding Charges or
other amounts being contested in accordance with SECTION 5.2(b). Proper and
accurate (in all material respects) amounts have been withheld by each Borrower
from its respective employees for all periods in full and complete compliance
with all applicable federal, state, local and foreign laws and such withholdings
have been
17
timely paid to the respective Governmental Authorities. SCHEDULE 3.11
-------------
sets forth as of the Closing Date those taxable years for which any Borrower's
tax returns are currently being audited by the IRS or any other applicable
Governmental Authority, and any assessments or threatened assessments in
connection with such audit, or otherwise currently outstanding. Except as
described in SCHEDULE 3.11, no Borrower has executed or filed with the IRS or
-------------
any other Governmental Authority any agreement or other document extending, or
having the effect of extending, the period for assessment or collection of any
Charges. None of the Borrowers or their respective predecessors are liable for
any material Charges: (a) under any agreement (including any tax sharing
agreements); or (b) to each Borrower's knowledge, as a transferee. As of the
Closing Date, no Borrower has agreed or been requested to make any adjustment
under IRC Section 481(a), by reason of a change in accounting method or
otherwise, that would have a Material Adverse Effect.
3.12 ERISA. Each Borrower and each ERISA Affiliate is in compliance in all
-----
material respects with the applicable provisions of ERISA.
3.13 No Litigation. No action, claim, lawsuit, demand, investigation or
-------------
proceeding is now pending or, to the knowledge of any Borrower, threatened
against any Borrower before any Governmental Authority or before any arbitrator
or panel of arbitrators (collectively, "Litigation") that (a) challenges any
----------
Borrower's right or power to enter into or perform any of its obligations under
the Loan Documents to which it is a party, or the validity or enforceability of
any Loan Document or any action taken thereunder, or (b) has a reasonable risk
of being determined adversely to any Borrower and that, if so determined, could
have a Material Adverse Effect (it being agreed that the resolution of any such
matter on a basis that gives rise solely to junior unsecured claims in the
Chapter 11 Cases shall not be regarded as having a Material Adverse Effect).
3.14 Brokers. No broker or finder acting on behalf of any Person brought
-------
about the obtaining, making or closing of the Revolving Loan or the related
transactions, and no Borrower has any obligation to any Person in respect of any
finder's or brokerage fees in connection therewith.
3.15 Intellectual Property. As of the Closing Date, each Borrower owns or
---------------------
has rights to use all Intellectual Property necessary to continue to conduct its
business as now conducted by it or proposed to be conducted by it, and each
Patent, Trademark, Copyright and License is listed, together with application or
registration numbers, as applicable, in SCHEDULE 3.15. Each Borrower conducts
-------------
its business and affairs without material infringement of or interference with
any Intellectual Property of any other Person. Except as set forth in SCHEDULE
--------
3.15, no Borrower is aware of any infringement or claim of infringement by
----
others of any Intellectual Property of any Borrower.
3.16 Full Disclosure. No information contained in this Agreement, any of
---------------
the other Loan Documents, the Financial Statements or any other reports from
time to time delivered hereunder or any written statement furnished by or on
behalf of any Borrower to any Agent or any Lender pursuant to the terms of this
Agreement or any other Loan Document contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein not misleading in
light of the circumstances under which they were made.
3.17 Environmental Matters.
---------------------
(a) Except as set forth in SCHEDULE 3.17, as of the Closing Date:
-------------
(i) the Real Estate is free of contamination from any Hazardous
Material except for such contamination that would not adversely impact
the value or marketability of such Real Estate and that would not
result in Environmental Liabilities that could reasonably be expected
to have a Material Adverse Effect;
18
(ii) no Borrower has caused or suffered to occur any Release of
Hazardous Materials on, at, in, under, above, to, from or about any of
its Real Estate;
(iii) the Borrowers are and have been in compliance with all
Environmental Laws, except for such noncompliance that would not
result in Environmental Liabilities that could reasonably be expected
to have a Material Adverse Effect;
(iv) the Borrowers have obtained, and are in compliance with, all
Environmental Permits required by Environmental Laws for the
operations of their respective businesses as presently conducted or as
proposed to be conducted, except where the failure to so obtain or
comply with such Environmental Permits would not result in
Environmental Liabilities that could reasonably be expected to have a
Material Adverse Effect, and all such Environmental Permits are valid,
uncontested and in good standing;
(v) no Borrower is involved in operations or knows of any facts,
circumstances or conditions, including any Releases of Hazardous
Materials, that are likely to result in any Environmental Liabilities
of such Borrower that could reasonably be expected to have a Material
Adverse Effect, and no Borrower has permitted any current or former
tenant or occupant of the Real Estate to engage in any such
operations;
(vi) there is no Litigation arising under or related to any
Environmental Laws, Environmental Permits or Hazardous Material that
could reasonably be expected to have a Material Adverse Effect, or
seeks injunctive relief against, or that alleges criminal misconduct
by, any Borrower;
(vii) no notice has been received by any Borrower identifying it
as a "potentially responsible party" or requesting information under
CERCLA or analogous state statutes, and to the knowledge of any
Borrower, there are no facts, circumstances or conditions that may
result in any Borrower being identified as a "potentially responsible
party" under CERCLA or analogous state statutes; and
(viii) each Borrower has provided to Agents copies of all
existing environmental reports, reviews and audits and all written
information pertaining to actual or potential Environmental
Liabilities, in each case relating to such Borrower.
(b) Each Borrower hereby acknowledges and agrees that Agents (i) have
not now, and have not ever been, in control of any Real Estate of such
Borrower or any of such Borrower's affairs, and (ii) do not have the
capacity through the provisions of the Loan Documents or otherwise to
influence any Borrower's conduct with respect to the ownership, operation
or management of any of its Real Estate or compliance with Environmental
Laws or Environmental Permits.
3.18 Insurance. SCHEDULE 3.18 lists all insurance policies of any nature
--------- -------------
maintained, as of the Closing Date, for current occurrences by each Borrower, as
well as a summary of the terms of each such policy.
3.19 Deposit and Disbursement Accounts. SCHEDULE 3.19 lists all banks and
--------------------------------- -------------
other financial institutions at which any Borrower maintains deposit,
disbursement or other accounts as of the Closing Date, including Borrower
Accounts and Disbursement Accounts, and such Schedule correctly identifies the
name, address and telephone number of each depository, the name in which the
account is held, a
19
description of the purpose of the account, and the complete account number
therefor.
3.20 Trade Relations. As of the Closing Date, there exists no actual or,
---------------
to the knowledge of any Borrower, threatened termination or cancellation of, or
any material adverse modification or change in, the business relationship of any
Borrower with any supplier material to its operations, which termination,
cancellation or modification or change could reasonably be expected to have a
Material Adverse Effect.
3.21 Supply Agreements; Licenses and Permits. SCHEDULE 3.21 lists all of
--------------------------------------- -------------
the following agreements or documents to which any Borrower is a party or is
subject:
(a) supply agreements and purchase agreements involving transactions
in excess of $10,000,000 per annum; and
---------
(b) licenses and permits held by any Borrower, the absence of which
could be reasonably likely to have a Material Adverse Effect.
3.22 Schedules to Facilities Agreement. As of the Closing Date, the
---------------------------------
information contained in the following Schedules to the Facilities Agreement
continues to be substantially correct in all material respects: Schedule 2.6
(Litigation); Schedule 2.13 (Debt); Schedule 2.16 (Pledged Collateral); Schedule
2.17 (Owned and Leased Real Property); Schedule 2.18 (Subsidiary/Financed
Franchisee Loan Documents); and Schedule 3.15 (Bank Accounts).
4. FINANCIAL STATEMENTS AND INFORMATION
4.1 Reports and Notices. Each Borrower hereby agrees that, from and after
-------------------
the Closing Date and until the Termination Date, it shall deliver to Agents or
Lenders, as required, the Financial Statements, notices and other information at
the times, to the Persons and in the manner set forth in ANNEX E.
-------
4.2 Communication with Accountants. Each Borrower authorizes Agents and,
------------------------------
so long as a Default or Event of Default shall have occurred and be continuing,
each Lender, to communicate directly with its independent certified public
accountants, including Xxxxxx Xxxxxxxx LLP, and authorizes and shall request
those accountants and advisors to disclose and make available to Agents and each
Lender any and all Financial Statements and other supporting financial
documents, schedules and information relating to any Borrower (including copies
of any issued management letters) with respect to the business, financial
condition and other affairs of any Borrower.
5. AFFIRMATIVE COVENANTS
Each Borrower jointly and severally agrees as to all Borrowers that
from and after the date hereof and until the Termination Date:
5.1 Maintenance of Existence and Conduct of Business. Each Borrower
------------------------------------------------
shall:
(a) except as otherwise permitted by SECTION 6.1, preserve and
maintain its legal existence and good standing in the jurisdiction of its
organization or formation, and qualify and remain qualified as a foreign
entity in each jurisdiction in which the failure to so qualify would result
in a Material Adverse Effect.
(b) except for investments in ENBC permitted pursuant to SECTION 6.2,
continue to engage in the operation of Stores and/or in the franchising of
Stores to other Persons (and other matters and operations incidental to the
foregoing, including the holding of real estate or leasehold interests for
Store locations and the distribution of Store supplies or inventory items),
20
and no other line of business;
(c) maintain, keep, and preserve all of its material properties
(tangible and intangible) necessary or useful in the proper conduct of its
business in good working order and condition consistent with industry
practice, ordinary wear and tear excepted; provided, that Stores may be
--------
closed in the ordinary course of business or in accordance with plans
previously disclosed to Lenders and reflected in the Budget, in which event
Borrower Representative shall give prompt written notice to each Agent; and
(d) transact business only in such corporate and trade names as are
set forth in SCHEDULE 5.1.
------------
5.2 Payment of Obligations.
----------------------
(a) Except as nonpayment is permitted or payment is prohibited by the
Bankruptcy Code or the Bankruptcy Court, and subject to SECTION 5.2(B),
each Borrower shall pay and discharge or cause to be paid and discharged
promptly all Charges payable by it, including (i) Charges imposed upon it,
its income and profits, or any of its property (real, personal or mixed)
and all Charges with respect to tax, social security and unemployment
withholding with respect to its employees, and (ii) lawful claims for
labor, materials, supplies and services or otherwise, in each case before
any thereof shall become past due.
(b) Each Borrower may in good faith contest, by appropriate
proceedings, the validity or amount of any Charges or claims described in
SECTION 5.2(a).
5.3 Books and Records. Each Borrower shall keep adequate books and
-----------------
records with respect to its business activities in which proper entries,
reflecting all financial transactions, are made in accordance with GAAP and on a
basis consistent with the Financial Statements attached as SCHEDULE 3.4(a).
---------------
5.4 Insurance; Damage to or Destruction of Collateral.
-------------------------------------------------
(a) Borrowers shall, at their sole cost and expense, maintain the
policies of insurance described in SCHEDULE 3.18 as in effect on the date
-------------
hereof of otherwise in form and in amounts and with insurers acceptable to
Agents. If any Borrower at any time or times hereafter shall fail to
obtain or maintain any of the policies of insurance required above, or to
pay all premiums relating thereto, Administrative Agent may at any time or
times thereafter obtain and maintain such policies of insurance and pay
such premiums and take any other action with respect thereto that
Administrative Agent deems advisable (and if Administrative Agent does
obtain insurance, then upon the written request of Borrower Representative,
Administrative Agent shall provide Borrower Representative with a summary
description of the insurance so obtained). Administrative Agent shall have
no obligation to obtain insurance for any Borrower or pay any premiums
therefor. By doing so, Administrative Agent shall not be deemed to have
waived any Default or Event of Default arising from any Borrower's failure
to maintain such insurance or pay any premiums therefor. All sums so
disbursed, including attorneys' fees, court costs and other charges related
thereto, shall be payable on demand by Borrowers to Administrative Agent
and shall be additional Obligations hereunder secured by the Collateral.
(b) Each Borrower shall deliver to Agents, in form and substance
satisfactory to Agents, endorsements to (i) all "All Risk" and business
interruption insurance naming Collateral Agent, on behalf of Agents and
Lenders, as loss payee, and (ii) all general liability
21
and other liability policies naming Administrative Agent and Collateral
Agent, on behalf of Agents and Lenders, as additional insureds.
(c) As to any loss, damage, or destruction to the Collateral (each, a
"Casualty Event"), (i) if the value of the subject Collateral is in excess
--------------
of $500,000, Borrower Representative shall promptly notify both Agents of
such Casualty Event, and (ii) at the election of Borrowers (which election,
with respect to Casualty Events of the type described in the preceding
CLAUSE (i), shall be included in the notice required pursuant to such
clause), but only so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower who suffered such Casualty Event
may use the insurance proceeds thereof, if any, (or any part thereof), to
replace, repair, restore or rebuild the relevant Collateral with materials
and workmanship of substantially the same quality as existed before the
loss, damage or destruction (it being understood that, as to any insurance
proceeds with respect to which Borrowers do not make the foregoing
election, such proceeds shall be paid to Administrative Agent in accordance
with SECTION 1.3(b)(i) immediately upon receipt); provided, that if such
--------
Borrower has not completed or entered into binding agreements to complete
such replacement, restoration, repair or rebuilding within 180 days of such
Casualty Event, such insurance proceeds shall be paid to Administrative
Agent in accordance with SECTION 1.3(b)(i).
5.5 Compliance with Laws. Except as noncompliance is permitted or
--------------------
compliance is prohibited by the Bankruptcy Code or the Bankruptcy Court, each
Borrower shall comply with all federal, state, local and foreign laws and
regulations applicable to it, including those relating to ERISA and labor
matters and Environmental Laws and Environmental Permits, except to the extent
that the failure to comply, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
5.6 Schedules; Supplemental Disclosure. Each of the Schedules hereto
----------------------------------
shall be prepared on a Borrower by Borrower basis. From time to time as may be
necessary, or upon the request of Administrative Agent (which request will not
be made more frequently than once each year absent the occurrence and
continuance of a Default or an Event of Default), Borrowers shall supplement
each Schedule hereto, or any representation herein or in any other Loan
Document, with respect to any matter hereafter arising that, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such Schedule or as an exception to such representation or
that is necessary to correct any information in such Schedule or representation
that has been rendered inaccurate thereby (and, in the case of any supplements
to any Schedule, such Schedule shall be appropriately marked to show the changes
made therein); provided, that (a) no such supplement to any such Schedule or
--------
representation shall be or be deemed a waiver of any Default or Event of Default
resulting from the matters disclosed therein, except as consented to by
Administrative Agent and Requisite Lenders in writing, and (b) no supplement
shall be required as to representations and warranties that relate solely to the
Closing Date.
5.7 Intellectual Property. Each Borrower shall conduct its business and
---------------------
affairs without material infringement of or interference with any Intellectual
Property of any other Person.
5.8 Environmental Matters. Each Borrower shall use and operate all of its
---------------------
facilities and properties in material compliance with all Environmental Laws,
keep all necessary Environmental Permits in effect and remain in material
compliance therewith, handle all Hazardous Materials in material compliance with
all Environmental Laws, except to the extent the failure to comply with any of
the foregoing would not reasonably be expected to have a Material Adverse
Effect. Borrower Representative shall provide such information and
certifications which any Agent may reasonably
22
request from time to time to evidence compliance with this SECTION 5.8.
5.9 Further Assurances. Each Borrower executing this Agreement agrees
------------------
that it shall and shall cause each other Borrower to, at such Borrower's expense
and upon request of either Agent, duly execute and deliver, or cause to be duly
executed and delivered, to Agents such further instruments and do and cause to
be done such further acts as may be necessary or proper in the reasonable
opinion of either Agent to carry out more effectively the provisions and
purposes of this Agreement or any other Loan Document.
5.10 Year 2000 Problems. On or prior to January 1, 1999, Borrowers shall
------------------
have completed and delivered to Administrative Agent a Year 2000 Corrective
Plan. On or before December 1, 1999, Borrowers shall have eliminated all Year
2000 Problems, except where the failure to correct the same could not reasonably
be expected to have a Material Adverse Effect.
5.11 Post-Closing Delivery of Certain Schedules; Bankruptcy Schedules as
-------------------------------------------------------------------
Substitutes For Certain Schedules.
---------------------------------
(a) Notwithstanding anything to the contrary herein, Borrowers shall
not be required to deliver any of SCHEDULES 3.6, 3.7, 3.8, 3.11, 3.19, 6.2,
-----------------------------------------
6.3, 6.6, 6.7, AND 6.16 until fifteen days after the Closing Date (or such
-----------------------
longer period as may be approved by the Administrative Agent); and
(b) In lieu of delivering any particular Schedule specified in the
foregoing CLAUSE (a), Borrowers may (within the time specified in the
foregoing CLAUSE (a)) deliver to Administrative Agent in substitution
therefor any schedule or schedules filed by Borrowers in the Chapter 11
Cases which contain substantially the same information that would otherwise
be required to be set forth in the Schedule being replaced (and Borrowers
shall specifically identify which Schedule is being replaced thereby).
6. NEGATIVE COVENANTS
Each Borrower jointly and severally agrees as to all Borrowers that,
without the prior written consent of Requisite Lenders, from and after the date
hereof until the Termination Date:
6.1 Mergers, Subsidiaries, Etc. No Borrower shall directly or indirectly,
--------------------------
by operation of law or otherwise, form or acquire any Subsidiary, or merge or
consolidate with, or sell, assign, lease, liquidate, dissolve or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to any
Person, or acquire all or substantially all of the assets or the business of any
Person, except that any Borrower (other than BCI) may merge into or consolidate
with or transfer assets to any other Borrower.
6.2 Investments. Except as otherwise expressly permitted by SECTION 6.4
-----------
or 6.14, no Borrower shall make or permit to exist any investment in, or make,
accrue or permit to exist loans or advances of money to, any Person, through the
direct or indirect lending of money, holding of securities or otherwise, except,
so long as Borrowers comply with Section 345 of the Bankruptcy Code (or any
order of the Bankruptcy Court that provides other than in such Section 345):
(a) Borrowers may hold any investments, loans and advances made prior
to the Closing Date and described in SCHEDULE 3.8 or SCHEDULE 6.2;
------------ ------------
(b) Borrowers may make loans and advances to employees in the ordinary
course of business consistent with past practices, and may permit to exist
outstanding accounts receivable arising in the ordinary course of business;
23
(c) Borrowers may make investments in an aggregate amount at no time
in excess of $10,000,000 plus the ENBC Proceeds Cash Collateral Amount, in
----
(i) direct obligations of (or obligations fully guaranteed or insured by)
the United States or any agency thereof, (ii) certificates of deposit
issued by any commercial bank having capital and surplus in excess of One-
Hundred Million Dollars ($100,000,000), (iii) commercial paper and variable
and fixed rate notes issued by any commercial bank having capital and
surplus in excess of One Hundred Million Dollars ($100,000,000), or (iv)
commercial paper and variable rate notes issued by, or guaranteed by, any
industrial or financial company with a short term commercial paper rating
of at least A-2 or the equivalent thereof by Standard & Poor's Ratings
Group or at least P-2 or the equivalent thereof by Xxxxx'x Investors
Service, Inc., and in each case described in the foregoing CLAUSES (i)-
(iv), maturing within one year after the date of acquisition and held in
accounts maintained with any Lender;
(d) each Borrower may hold (i) stock, obligations, or securities
received in settlement of debts (created in the ordinary course of
business) owing to such Borrower, or in satisfaction of judgments or
pursuant to a plan of reorganization of any Person other than a Borrower,
or (ii) negotiable instruments held for deposit;
(e) any Borrower may make intercompany loans or advances to any other
Borrower; and
(f) BCI may make loans to Platinum to the extent contemplated by the
Budget;
6.3 Indebtedness. No Borrower shall create, incur, assume or permit to
------------
exist any Indebtedness, except for (without duplication):
(a) the Revolving Loan and the other Obligations;
(b) Indebtedness existing as of the Closing Date and described in
SCHEDULE 6.3, but no renewals, extensions, or refinancings thereof;
------------
(c) Indebtedness incurred in the ordinary course of business
consistent with past practices and with the Budget, including Indebtedness
which is secured by Liens of the type described in SECTION 6.7(h), in each
case to the extent approved by an order entered by the Bankruptcy Court;
and
(d) Indebtedness with respect to loans and advances permitted by
SECTION 6.2(e).
6.4 Employee Loans and Affiliate Transactions. No Borrower shall enter
-----------------------------------------
into any transaction, including, without limitation, the purchase, sale, or
exchange of property or the rendering of any service, with any other Borrower or
any Affiliate except (i) to the extent authorized by an order of the Bankruptcy
Court or (ii) pursuant to the reasonable requirements of such Borrower's
business and upon fair and reasonable terms not materially less favorable to
such Borrower than similar transactions entered into with a Person not a
Borrower or Affiliate (provided, that the foregoing shall not prohibit any
--------
transaction effected in accordance with the Subleases as in effect as of the
Closing Date).
6.5 Capital Structure and Business. No Borrower shall (other than
------------------------------
pursuant to a plan of reorganization) (a) make any change in its capital
structure as described in SCHEDULE 3.8, including the issuance of any shares of
------------
Stock, warrants or other securities convertible into Stock or any revision of
the terms of its outstanding Stock, (b) amend its Organizational Documents in a
manner that would adversely affect Agents or Lenders or such Borrower's duty or
ability to repay the Obligations, or (c) engage in any business other than the
businesses currently engaged in by it or businesses reasonably
24
related thereto.
6.6 Guaranteed Indebtedness. No Borrower shall create, incur, assume or
-----------------------
permit to exist any Guaranteed Indebtedness except:
(a) by endorsement of instruments or items of payment for deposit to
the general account of any Borrower; or
(b) Guaranteed Indebtedness existing as of the Closing Date and
described in SCHEDULE 6.6.
------------
6.7 Liens. No Borrower shall create, incur, assume or permit to exist any
-----
Lien on or with respect to any of its properties or assets (whether now owned or
hereafter acquired) except for Permitted Encumbrances. In addition, no Borrower
shall become a party to any agreement, note, indenture or instrument or take any
other action that would prohibit the creation of a Lien on any of its properties
or other assets in favor of Collateral Agent, on behalf of Agents and Lenders,
as additional collateral for the Obligations, except operating leases, Capital
Leases or Licenses that prohibit Liens upon the assets that are subject thereto.
The term "Permitted Encumbrances" shall mean Liens in existence on the date
----------------------
hereof and summarized on SCHEDULE 6.7 and the following:
------------
(a) Liens securing the Revolving Loan and Obligations;
(b) Liens for taxes or assessments or other Charges if not yet
delinquent or, if due and payable, if they are being contested in good
faith by appropriate proceedings and for which appropriate reserves are
maintained;
(c) Liens imposed by law, such as mechanics', materialmen's,
landlords', warehousemen's, and carriers' Liens, and other similar Liens,
securing obligations incurred in the ordinary course of business which are
not past due for more than thirty (30) days or which are being contested in
good faith by appropriate proceedings and for which appropriate reserves
have been established;
(d) pledges or deposits of money securing statutory obligations under
workers' compensation, unemployment insurance, social security, or similar
legislation (excluding liens under ERISA or under any Environmental Laws);
(e) Liens, deposits, or pledges to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money), leases
(permitted under the terms of this Agreement), public or statutory
obligations (other than ERISA or under any Environmental Laws), surety,
stay, appeal, indemnity, performance or other similar bonds, or other
similar obligations arising in the ordinary course of business;
(f) judgment and other similar Liens arising in connection with court
proceedings; provided, that the execution or other enforcement of such
--------
Liens is effectively stayed and the claims secured thereby are being
actively contested in good faith and by appropriate proceedings;
(g) easements, rights-of-way, restrictions, zoning and other similar
encumbrances which, in the aggregate, do not materially interfere with the
occupation, use, and enjoyment by any Borrower of the Real Estate
encumbered thereby in the normal course of its business or materially
impair the value of such Real Estate;
(h) purchase money Liens on any property owned or hereafter acquired
or the assumption of any Lien on property existing at the time of such
acquisition, or a Lien incurred
25
in connection with any conditional sale or other title retention agreement
or a Capital Lease, provided, that:
--------
(i) any property subject to any of the foregoing is acquired by
the relevant Borrower in the ordinary course of its respective
business and the Lien on any such property is created
contemporaneously with or prior to such acquisition;
(ii) the obligation secured by any Lien so created, assumed, or
existing shall not exceed ninety percent (90%) of the lesser of cost
or fair market value as of the time of acquisition of the property
covered thereby to such Borrower;
(iii) each such Lien shall attach only to the property so
acquired and fixed improvements thereon; and
(iv) the aggregate amount of all Indebtedness of all Borrowers
which is secured by such Liens and is incurred after the Closing Date
shall not exceed at any time outstanding in the aggregate Three
Million Dollars ($3,000,000); and
(i) replacement Liens granted pursuant to any Adequate Protection
Order.
6.8 Sale of Stock and Assets. No Borrower shall sell, transfer, convey,
------------------------
assign or otherwise dispose of any of its properties or other assets, including
the capital Stock of any of its Subsidiaries (whether in a public or a private
offering or otherwise), other than any such sale or other disposition of assets
(a) in the ordinary course of business, or (b)(i) which is approved by an order
of the Bankruptcy Court and (ii) with respect to which the cash proceeds are, to
the extent required pursuant to SECTION 1.3(b), paid to Administrative Agent;
provided (with respect to the foregoing CLAUSE (b) only), that the aggregate
--------
value of all assets so sold or otherwise disposed of after the Closing Date
(other than the ENBC Stock) shall at no time exceed 25% of the value of all
assets and property of Borrowers as determined as of the Closing Date (without
regard to the ENBC Stock).
6.9 ERISA. No Borrower shall, or shall cause or permit any ERISA
-----
Affiliate to, cause or permit to occur an event that could result in the
imposition of a Lien under Section 412 of the IRC or Section 302 or 4068 of
ERISA or cause or permit to occur an ERISA Event to the extent such ERISA Event
could reasonably be expected to have a Material Adverse Effect.
6.10 Financial Covenants. Borrowers shall not breach or fail to comply
-------------------
with the financial covenants set forth in ANNEX F (the "Financial Covenants").
------- -------------------
6.11 Hazardous Materials. No Borrower shall cause or permit a Release of
-------------------
any Hazardous Material on, at, in, under, above, to, from or about any of the
Real Estate where such Release would (a) violate in any respect, or form the
basis for any Environmental Liabilities under, any Environmental Laws or
Environmental Permits, or (b) otherwise adversely impact the value or
marketability of any of the Real Estate or any of the Collateral, other than
such violations or Environmental Liabilities that could not reasonably be
expected to have a Material Adverse Effect.
6.12 Sale-Leasebacks. No Borrower shall engage in any sale-leaseback,
---------------
synthetic lease or similar transaction involving any of its assets.
6.13 Cancellation of Indebtedness. No Borrower shall cancel any claim or
----------------------------
debt owing to it, except (i) for reasonable consideration negotiated on an arm's
length basis and in the ordinary course of its business consistent with past
practices or (ii) pursuant to an order of the Bankruptcy Court.
6.14 Restricted Payments. No Borrower shall make any Restricted Payment,
-------------------
except (a) dividends and distributions by the Subsidiary of any Borrower paid to
such Borrower, and
26
(b) employee loans permitted under SECTIONS 6.2(b) or 6.4.
6.15 Change of Corporate Name or Location; Change of Fiscal Year. No
-----------------------------------------------------------
Borrower shall (a) change its corporate name or (b) change its chief executive
office, principal place of business, corporate offices or warehouses or
locations at which Collateral is held or stored, or the location of its records
concerning the Collateral, in each case without at least 30 days' prior written
notice to Agents and after Collateral Agent's written acknowledgment that any
reasonable action requested by Collateral Agent in connection therewith,
including to continue the perfection of any Liens in favor of Collateral Agent,
on behalf of Agents and Lenders, in any Collateral, has been completed or taken,
and provided that any such new location shall be in the continental United
States of America. No Borrower shall change its Fiscal Year.
6.16 Leases; Capital Expenditures.
----------------------------
(a) No Borrower shall create, incur, assume, or suffer to exist any
obligation as lessee for the rental or hire of any real or personal
property, except:
(i) operating leases of personal property and Capital Leases in
effect as of the Closing Date and described in SCHEDULE 6.16;
-------------
(ii) operating leases entered into after the Closing Date in the
ordinary course of business consistent with past practices and with
the Budget, and Capital Leases entered into after the Closing Date to
the extent permitted pursuant to SECTION 6.16(b);
(iii) leases of real property (A) identified in SCHEDULE 3.6, or
------------
(B) entered into in the ordinary course of business and consistent
with the Budget on which BCI or any Operating Subsidiary operates or
plans to operate a Store or which any Borrower uses or intends to use
for office space or similar purposes;
(iv) leases between any Borrowers in effect as of the Closing
Date or permitted pursuant to SECTION 6.4; and
(v) the 1995 Master Lease and the Subleases.
(b) From and after the Closing Date, Borrowers shall not make any
Capital Expenditures, including with respect to Capital Leases entered into
after the Closing Date, except to the extent provided in and consistent
with the Budget.
6.17 Prepetition Indebtedness. No Borrower shall make any payment in
------------------------
respect of, or repurchase, redeem, retire or defease any, Prepetition
Indebtedness except for:
(a) payment of the Liquidity Loan Payoff Amount as provided in SECTION
1.4;
(b) payments on account of Prepetition Indebtedness provided for in
the Budget and authorized by an order of the Bankruptcy Court (including
(i) "adequate protection" payments of monthly interest at the non-default
rate under the Existing Credit Agreement, the 1995 Master Lease Agreement,
the 1996 Master Lease Agreement,and (ii) the payment on account of the 1996
Obligations described in SECTION 1.3(b)(ii)(A), in each case pursuant to
the terms of the relevant Adequate Protection Order);
(c) payments on account of Indebtedness secured by a Permitted Senior
Encumbrance if the asset securing such Indebtedness has been sold or
otherwise disposed of in accordance with SECTION 6.8 and such payment has
been authorized by an order of the
27
Bankruptcy Court; and
(d) payments pursuant to a plan of reorganization.
7. TERM
7.1 Termination. The financing arrangements contemplated hereby shall be
-----------
in effect until the Commitment Termination Date, and the Revolving Loan and all
other Obligations shall be automatically due and payable in full on such date.
7.2 Survival of Obligations Upon Termination of Financing Arrangements.
------------------------------------------------------------------
Except as otherwise expressly provided in the Loan Documents, no termination or
cancellation (regardless of cause or procedure) of any financing arrangement
under this Agreement shall in any way affect or impair the obligations, duties
and liabilities of Borrowers or the rights of Agents and Lenders relating to any
unpaid portion of the Revolving Loan or any other Obligations, due or not due,
liquidated, contingent or unliquidated or any transaction or event occurring
prior to such termination, or any transaction or event, the performance of which
is required after the Commitment Termination Date. Except as otherwise
expressly provided herein or in any other Loan Document, all undertakings,
agreements, covenants, warranties and representations of or binding upon any
Borrower, and all rights of Agents and each Lender, all as contained in the Loan
Documents, shall not terminate or expire, but rather shall survive any such
termination or cancellation and shall continue in full force and effect until
the Termination Date; provided, that the provisions of SECTIONS 9 AND 11, the
--------
payment obligations under SECTIONS 1.13 and 1.14, and the indemnities contained
in the Loan Documents shall survive the Termination Date.
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
8.1 Events of Default. The occurrence of any one or more of the following
-----------------
events (regardless of the reason therefor) shall constitute an "Event of
--------
Default" hereunder:
(a) Borrowers (i) shall fail to make any payment of principal of, or
interest on, or Fees owing in respect of, the Revolving Loan or any of the
other Obligations when due and payable, or (ii) shall fail to pay or
reimburse Agents or Lenders for any expense reimbursable hereunder or under
any other Revolving Loan Document within ten days following demand for such
reimbursement or payment of expenses.
(b) Any Borrower shall fail or neglect to perform, keep or observe any
of the provisions of SECTIONS 1.3(b), 1.4, 1.6, 5.11, 6.1, 6.2, 6.4, 6.6,
6.8, 6.9, 6.10, 6.14, 6.16 OR 6.17, or any of the provisions set forth in
ANNEXES C or F, respectively.
--------- -
(c) Any Borrower shall fail or neglect to perform, keep or observe any
of the provisions of SECTIONS 4, 6.3, 6.7, 6.12, or any provisions set
forth in ANNEX E, and the same shall remain unremedied (if capable of being
-------
remedied) for four (4) Business Days after notice thereof from any Agent or
Lender.
(d) Any Borrower shall fail or neglect to perform, keep or observe any
other provision of this Agreement or of any of the other Loan Documents
(other than any provision embodied in or covered by any other clause of
this SECTION 8.1) and the same shall remain unremedied for fifteen Business
Days after notice thereof from any Agent or Lender.
(e) Any representation or warranty herein or in any Loan Document or
in any written statement, report, financial statement or certificate made
or delivered to any Agent or any Lender by any Borrower is untrue or
incorrect in any material respect as of the date when
28
made or deemed made.
(f) The Bankruptcy Court shall have entered an order approving any
motion of Borrowers (or any of them) in the Chapter 11 Cases:
(i) to obtain working or other capital financing from any Person
other than Agents and Lenders under Section 364(c) or 364(d) of the
Bankruptcy Code (other than as expressly permitted hereunder or with
respect to a financing used, in whole or in part, to repay in full the
Obligations);
(ii) to use Cash Collateral of Agents and Lenders under Section
363(c) of the Bankruptcy Code without Agent and Lenders' prior written
consent; or
(iii) to recover from any portions of the Collateral any costs
or expenses of preserving or disposing of such Collateral under
Section 506(c) of the Bankruptcy Code.
(g) The allowance of any claim or claims under Section 506(c) of the
Bankruptcy Code against or with respect to any Collateral.
(h) The occurrence of any postpetition judgments, liabilities or
events that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
(i) The entry by the Bankruptcy Court of an order authorizing the
appointment of an interim or permanent trustee in any Chapter 11 Case or
the appointment of an examiner in any Chapter 11 Case with expanded powers
to operate or manage the financial affairs, business, or reorganization of
Borrower.
(j) Any Chapter 11 Case shall be dismissed or converted from one under
Chapter 11 to one under Chapter 7 of the Bankruptcy Code.
(k) The entry of an order by the Bankruptcy Court granting relief from
or modifying the automatic stay of Section 362 of the Bankruptcy Code (i)
to allow any creditor (other than Agents and Lenders with respect to the
Obligations) to execute upon or enforce a Lien on any Collateral (any such
Collateral, the "Subject Collateral") at any time at which the aggregate
------------------
value of all Subject Collateral during the period from and after the
Closing Date is equal to or greater than $5,000,000, or (ii) with respect
to any Lien of or the granting of any Lien on any Collateral to any state
or local environmental or regulatory agency or authority that could
reasonably be expected to have a Material Adverse Effect.
(l) The Interim Order or the Final Order shall be modified or revoked
without Agents' prior written consent.
(m) There shall commence any suit or action against any Agent or any
Lender by or on behalf of (i) any Borrower, (ii) the Environmental
Protection Agency, (iii) any state environmental protection or health and
safety agency, or (iv) any official committee in the Chapter 11 Case, in
each case that asserts a claim or seeks a legal or equitable remedy that
would have the effect of subordinating the claim or Lien of Collateral
Agent and, if such suit or action is commenced by any Person other than any
Borrower or any Subsidiary, officer, or employee of any Borrower, such suit
or action shall not have been dismissed or stayed within 30 days after
service thereof on the relevant Agent or such Lender, as applicable, and,
if stayed, such stay shall have been lifted.
29
(n) Any material provision of any Loan Document shall for any reason
cease to be valid, binding and enforceable in accordance with its terms (or
any Borrower shall challenge the enforceability of any Loan Document or
shall assert in writing, or engage in any action or inaction based on any
such assertion, that any provision of any of the Loan Documents has ceased
to be or otherwise is not valid, binding and enforceable in accordance with
its terms), or any material Lien created under any Loan Document shall
cease to be a valid and perfected first priority Lien (except as otherwise
permitted herein or therein) in any of the Collateral purported to be
covered thereby.
(o) Any Change of Control shall occur.
8.2 Remedies.
--------
If any Event of Default shall have occurred and be continuing, then
Administrative Agent may (and at the written request of the Requisite Lenders
shall), upon written notice to Borrower Representative: (i) terminate the
Revolving Loan facility with respect to further Revolving Credit Advances or the
incurrence of further L/C Obligations, (ii) declare all or any portion of the
Obligations, including all or any portion of any Revolving Loan, to be forthwith
due and payable, and require that the L/C Obligations be cash collateralized as
provided in ANNEX B, (iii) revoke Borrowers' rights to use Cash Collateral in
-------
which any Agent or Lender has an interest; and (iv) five Business Days after
receipt by Borrower Representative, the United States Trustee and counsel for
any official committee of creditors in the Chapter 11 Cases of written notice
from Administrative Agent, exercise, or cause Collateral Agent to exercise, any
rights and remedies under the Loan Documents or at law or in equity. Pursuant
to the Interim Order and the Final Order, the automatic stay of Section 362 of
the Bankruptcy Code shall be modified and vacated to permit Agents and Lenders
to exercise their remedies under this Agreement and the other Loan Documents,
without further application or motion to, or order from, the Bankruptcy Court.
Upon the occurrence of an Event of Default and the exercise by any Agent or
Lender of its rights and remedies under this Agreement and the other Loan
Documents pursuant to CLAUSE (IV) above, Borrowers shall assist the relevant
Agent or Lender in effecting a sale or other disposition of the Collateral upon
such terms as are designed to maximize the proceeds obtainable from such sale or
other disposition.
8.3 Waivers by Borrowers. Except as otherwise provided for in this
--------------------
Agreement or by applicable law, each Borrower waives: (a) presentment, demand
and protest and notice of presentment, dishonor, notice of intent to accelerate,
notice of acceleration, protest, default, nonpayment, maturity, release,
compromise, settlement, extension or renewal of any or all commercial paper,
accounts, contract rights, documents, instruments, chattel paper and guaranties
at any time held by any Agent on which any Borrower may in any way be liable,
and hereby ratifies and confirms whatever either Agent may do in this regard;
(b) all rights to notice and a hearing prior to any Agent's taking possession or
control of, or any Agent's replevy, attachment or levy upon, the Collateral or
any bond or security that might be required by any court prior to allowing such
Agent to exercise any of its remedies; and (c) the benefit of all valuation,
appraisal, marshaling and exemption laws.
30
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT
9.1 Assignment and Participations.
-----------------------------
(a) Borrowers consent to any Lender's assignment of, or sale of
participations in, at any time or times, the Loan Documents, the Revolving
Loan of such Lender, L/C Obligations or its Revolving Loan Commitment or of
any portion thereof or interest therein, including any Lender's rights,
title, interests, remedies, powers or duties thereunder, whether evidenced
by a writing or not. Any assignment by a Lender shall: (i) require the
consent of Administrative Agent and Borrower Representative (which consent
of Borrower Representative shall not be unreasonably withheld or delayed)
and the execution of an assignment agreement (an "Assignment Agreement")
--------------------
substantially in the form attached hereto as EXHIBIT 9.1(a) and otherwise
--------------
in form and substance satisfactory to, and acknowledged by, Administrative
Agent; provided, that no such consent of Borrower Representative shall be
--------
required if, at the time of such assignment, a Default or Event of Default
has occurred and is continuing; (ii) be conditioned on such assignee Lender
representing to the assigning Lender and Administrative Agent that it is
purchasing the applicable Revolving Loan to be assigned to it for its own
account, for investment purposes and not with a view to the distribution
thereof; (iii) if a partial assignment, be in a minimum amount of
$4,000,000 or an integral multiple of $1,000,000 in excess thereof and,
after giving effect to any such partial assignment, the assigning Lender
shall have retained a Revolving Loan Commitment (or, after the Commitment
Termination Date, a Revolving Credit Loan) in an amount at least equal to
$4,000,000; and (iv) include a payment (allocated between the assignor and
the assignee as they may agree) to Administrative Agent of an assignment
fee of $3,500. In the case of an assignment by a Lender under this SECTION
9.1, the assignee shall have, to the extent of such assignment, the same
rights, benefits and obligations of all other Lenders hereunder. The
assigning Lender shall be relieved of its obligations hereunder with
respect to its Revolving Loan Commitment or assigned portion thereof from
and after the date of such assignment. Each Borrower hereby acknowledges
and agrees that any assignment shall give rise to a direct obligation of
Borrower to the assignee and that the assignee shall be a "Lender." In all
instances, each Lender's liability to make Revolving Credit Advances
hereunder shall be several and not joint and shall be limited to such
Lender's Pro Rata Share of the Revolving Loan Commitments. In the event
Administrative Agent or any Lender assigns or otherwise transfers all or
any part of the Obligations, Administrative Agent or any such Lender shall
so notify Borrowers and Borrowers shall, upon the request of Administrative
Agent or such Lender, execute new Revolving Notes, if any, in exchange for
the Revolving Notes being assigned. Notwithstanding the foregoing
provisions of this SECTION 9.1(a), any Lender may at any time pledge the
Obligations held by it and such Lender's rights under this Agreement and
the other Loan Documents to a Federal Reserve Bank in accordance with
Regulation A or U.S. Treasury Regulation 31 CFR (S) 203.14, and any Lender
that is an investment fund may assign the Obligations held by it and such
Lender's rights under this Agreement and the other Loan Documents to
another investment fund managed by the same investment advisor; provided,
--------
that no such pledge to a Federal Reserve Bank and no such assignment to
another investment fund shall release such Lender from such Lender's
obligations hereunder or under any other Loan Document.
(b) Any participation by a Lender of all or any part of its Revolving
Loan Commitment shall be made with the understanding that all amounts
payable by Borrowers hereunder shall be determined as if that Lender had
not sold such participation, and that the
31
holder of any such participation shall not be entitled to require such
Lender to take or omit to take any action hereunder except actions directly
affecting (i) any reduction in the principal amount of, or interest rate or
Fees payable with respect to, any Revolving Loan in which such holder
participates, (ii) any extension of the final maturity date of any
Revolving Loan in which such holder participates, and (iii) any release of
all or substantially all of the Collateral (other than in accordance with
the terms of this Agreement, the Collateral Documents or the other Loan
Documents). Solely for purposes of SECTIONS 1.11, 1.13, 1.14 and 9.8, each
Borrower acknowledges and agrees that a participation shall give rise to a
direct obligation of Borrowers to the participant and the participant shall
be considered to be a "Lender." Except as set forth in the preceding
sentence no Borrower shall have any obligation or duty to any participant.
Neither any Agent nor any Lender (other than the Lender selling a
participation) shall have any duty to any participant and may continue to
deal solely with the Lender selling a participation as if no such sale had
occurred.
(c) Except as expressly provided in this SECTION 9.1, no Lender shall,
as between Borrowers and that Lender, or Agents and that Lender, be
relieved of any of its obligations hereunder as a result of any sale,
assignment, transfer or negotiation of, or granting of participation in,
all or any part of the Revolving Loan, the Revolving Notes or other
Obligations owed to such Lender.
(d) Each Borrower shall assist any Lender permitted to sell
assignments or participations under this SECTION 9.1 as reasonably required
to enable the assigning or selling Lender to effect any such assignment or
participation, including the execution and delivery of any and all
agreements, notes and other documents and instruments as shall be requested
and the preparation of informational materials for, and the participation
of management in meetings with, potential assignees or participants. Each
Borrower shall certify the correctness, completeness and accuracy of all
descriptions of Borrowers and their respective affairs contained in any
selling materials provided by it and all other information provided by it
and included in such materials, except that the Budget shall only be
certified by Borrowers as having been prepared by Borrowers in compliance
with the representations contained in SECTION 3.4(b).
(e) A Lender may furnish any information concerning Borrowers in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants). Each Lender shall
obtain from any prospective or actual assignees or participants
confidentiality covenants substantially equivalent to those contained in
SECTION 11.8.
9.2 Appointment.
-----------
(a) GE Capital is hereby appointed to act on behalf of all Lenders as
Administrative Agent under this Agreement and the other Loan Documents.
BofA is hereby appointed to act on behalf of all Lenders as Collateral
Agent under this Agreement and the other Loan Documents. The provisions of
this SECTION 9.2 are solely for the benefit of Agents and Lenders and
neither any Borrower nor any other Person shall have any rights as a third
party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement and the other Loan Documents,
each of the Agents shall act solely as an agent of Lenders and does not
assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for any Borrower or any other
Person. The Administrative Agent and the Collateral Agent, in their
capacities as such, shall have no duties
32
or responsibilities except for those expressly set forth in this Agreement
and the other Loan Documents. The duties of each Agent shall be mechanical
and administrative in nature, and neither the Administrative Agent nor the
Collateral Agent shall have, or be deemed to have, by reason of this
Agreement, any other Loan Document or otherwise a fiduciary relationship in
respect of any Lender.
(b) If any Agent shall request instructions from Requisite Lenders or
all affected Lenders with respect to any act or action (including failure
to act) in connection with this Agreement or any other Loan Document, then
such Agent shall be entitled to refrain from such act or taking such action
unless and until such Agent shall have received instructions from Requisite
Lenders or all affected Lenders, as the case may be, and such Agent shall
not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, any Agent shall be fully justified in failing or
refusing to take any action hereunder or under any other Loan Document (i)
if such action would, in the opinion of such Agent, be contrary to law or
the terms of this Agreement or any other Loan Document, (ii) if such action
would, in the opinion of such Agent, expose such Agent to any material
liabilities or to any Environmental Liabilities or (iii) if such Agent
shall not first be indemnified to its satisfaction against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against such Agent as a
result of such Agent acting or refraining from acting hereunder or under
any other Loan Document in accordance with the instructions of Requisite
Lenders or all affected Lenders, as applicable.
9.3 Reliance by Agents, Etc. Neither any Agent nor any Affiliate of any
------------------------
Agent nor any of their respective officers, directors, employees, agents or
representatives shall be liable for any action taken or omitted to be taken by
it or them under or in connection with this Agreement or any other Loan
Document, except for damages caused by its or their own gross negligence or
willful misconduct. Without limiting the generality of the foregoing, each
Agent:
(a) may treat the payee of any Revolving Note as the holder thereof
until such Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form satisfactory to such Agent;
(b) may consult with legal counsel, independent public accountants and
other experts selected by it and shall not be liable for any action taken
or omitted to be taken by it in good faith in accordance with the advice of
such counsel, accountants or experts;
(c) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
made in or in connection with this Agreement or the other Loan Documents;
(d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of
this Agreement or the other Loan Documents on the part of any Borrower or
to inspect the Collateral (including the books and records) of any
Borrower;
(e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; and
(f) shall incur no liability under or in respect of this Agreement or
the other Loan Documents by acting upon any notice, consent, certificate or
other instrument or writing
33
(which may be by telecopy, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
9.4 Each Agent in its Individual Capacity. With respect to its respective
-------------------------------------
Revolving Loan Commitment hereunder, each Agent, in its individual capacity,
shall have the same rights and powers under this Agreement and the other Loan
Documents as any other Lender and may exercise the same as though it were not an
Agent hereunder; and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include each agent in its individual capacity. Each Agent,
in its individual capacity, and its Affiliates may lend money to, invest in, and
generally engage in any kind of business with, any Borrower, any of Borrowers'
Affiliates and any Person who may do business with or own securities of any
Borrower or any such Affiliate, all as if it were not an Agent hereunder and
without any duty to account therefor to Lenders. Each Agent, in its individual
capacity, and its Affiliates may accept fees and other consideration from any
Borrower for services in connection with this Agreement or otherwise without
having to account for the same to Lenders.
9.5 Lender Credit Decision. Each Lender acknowledges that it has,
----------------------
independently and without reliance upon any Agent or any other Lender and based
on the Financial Statements referred to in SECTION 3.4(a) and such other
documents and information as it has deemed appropriate, made its own credit and
financial analysis of the Borrowers and its own decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement. Each
Lender acknowledges the potential conflict of interest of each other Lender as a
result of Lenders holding disproportionate interests in the Revolving Loan and
in Prepetition Indebtedness, and expressly consents to, and waives any claim
based upon, such conflict of interest.
9.6 Indemnification. Lenders agree to indemnify each Agent (to the extent
---------------
not reimbursed by Borrowers and without limiting the obligations of Borrowers
hereunder), ratably according to their respective Pro Rata Shares, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted to be taken by such Agent in connection
therewith; provided, that no Lender shall be liable for any portion of such
--------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. Without limiting the foregoing, each Lender agrees to
reimburse each Agent promptly upon demand for its ratable share of any out-of-
pocket expenses (including counsel fees) incurred by such Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement and each other Loan Document, to the extent that such Agent is
not reimbursed for such expenses by Borrowers.
9.7 Successor Agent. Any Agent may resign at any time by giving not less
---------------
than 30 days' prior written notice thereof to Lenders and Borrower
Representative. Upon the resignation of any Agent, the Requisite Lenders shall
have the right to appoint a successor to such Agent. If a successor to such
Agent shall not have been so appointed by the Requisite Lenders or shall not
have accepted such appointment within 30 days after such resigning Agent's
giving notice of resignation, then such resigning Agent may, on behalf of
Lenders, appoint a successor to such Agent, which shall be a Lender if a Lender
is willing to accept such appointment, or otherwise shall be a commercial bank
or financial institution or a subsidiary of a commercial bank or financial
institution if such commercial
34
bank or financial institution is organized under the laws of the United States
of America or of any State thereof and has a combined capital and surplus of at
least $250,000,000. If no successor to such Agent has been appointed pursuant to
the foregoing within 30 days after the date such notice of resignation was given
by such resigning Agent, such resignation shall become effective and the
Requisite Lenders shall thereafter perform all the duties of such Agent
hereunder until such time, if any, as the Requisite Lenders appoint a successor
to such Agent as provided above. Any successor Agent appointed by Requisite
Lenders hereunder shall be subject to the approval of Borrower Representative,
which approval shall not be unreasonably withheld or delayed; provided, that
--------
such approval shall not be required if (i) the Successor Agent is already an
Agent hereunder or (ii) a Default or an Event of Default shall have occurred and
be continuing. Upon the acceptance of any appointment as an Agent hereunder by a
successor Agent, such successor Agent shall succeed to and become vested with
all the rights, powers, privileges and duties of the resigning Agent. Upon the
earlier of the acceptance of any appointment as an Agent hereunder by a
successor Agent or the effective date of a resigning Agent's resignation, a
resigning Agent shall be discharged from its duties and obligations under this
Agreement and the other Loan Documents, except that any indemnity rights or
other rights in favor of such resigning Agent shall continue. After any
resigning Agent's resignation hereunder, the provisions of this SECTION 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was acting as an Agent under this Agreement and the other Loan Documents.
9.8 Setoff and Sharing of Payments. In addition to any rights now or
------------------------------
hereafter granted under applicable law and not by way of limitation of any such
rights, but subject to Section 9.9(f), upon the occurrence and during the
continuance of any Event of Default, each Lender and each holder of any
Revolving Note is hereby authorized at any time or from time to time, without
notice to any Borrower or to any other Person, any such notice being hereby
expressly waived, to offset and to appropriate and to apply any and all balances
held by it at any of its offices for the account of any Borrower (regardless of
whether such balances are then due to such Borrower) and any other properties or
assets at any time held or owing by that Lender or that holder to or for the
credit or for the account of Borrowers against and on account of any of the
Obligations that are not paid when due. Any Lender or holder of any Revolving
Note exercising a right to offset or otherwise receiving any payment on account
of the Obligations in excess of its Pro Rata Share thereof shall purchase for
cash (and the other Lenders or holders shall sell) such participations in each
such other Lender's or holder's Pro Rata Share of the Obligations as would be
necessary to cause such Lender to share the amount so offset or otherwise
received with each other Lender or holder in accordance with their respective
Pro Rata Shares. Each Borrower agrees, to the fullest extent permitted by law,
that (a) any Lender or holder may exercise its right to offset with respect to
amounts in excess of its Pro Rata Share of the Obligations and may sell
participations in such amounts so offset to other Lenders and holders and (b)
any Lender or holders so purchasing a participation in the Revolving Loan made
or other Obligations held by other Lenders or holders may exercise all rights of
setoff, bankers' lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender or holder were a direct holder of the
Revolving Loan and the other Obligations in the amount of such participation.
Notwithstanding the foregoing, if all or any portion of the setoff amount or
payment otherwise received is thereafter recovered from the Lender that has
exercised the right of setoff, the purchase of participations by that Lender
shall be rescinded and the purchase price restored without interest.
35
9.9 Revolving Credit Advances; Payments; Non-Funding Lenders; Information;
----------------------------------------------------------------------
Actions in Concert.
------------------
(a) Revolving Credit Advances; Payments.
-----------------------------------
(i) Administrative Agent shall notify Lenders promptly after
receipt of a Notice of Revolving Credit Advance and in any event prior
to 1:00 p.m. (New York time) on the date such Notice of Revolving
Credit Advance is received, by telecopy, telephone or other similar
form of transmission. Each Lender shall make the amount of such
Lender's Pro Rata Share of such Revolving Credit Advance available to
Administrative Agent in same day funds by wire transfer to
Administrative Agent's account as set forth in ANNEX G not later than
-------
2:00 p.m. (New York time) on the requested funding date. Not later
than 2:00 p.m. (New York time) on the requested funding date, subject
to the satisfaction of the applicable conditions precedent set forth
in SECTION 2.2, the Administrative Agent shall make the proceeds of
such wire transfers available to Borrower by causing an amount of
immediately available funds equal to the principal amount of such wire
transfer proceeds received by it to be credited to the Disbursement
Account; provided, that Administrative Agent may, in its sole
--------
discretion, fund the requested Revolving Credit Advance before receipt
of such wire transfers. All payments by each Lender shall be made
without setoff, counterclaim or deduction of any kind.
(ii) Promptly upon Administrative Agent's receipt of payments
under this Agreement, Administrative Agent shall advise each Lender by
telephone or telecopy of the amount of such Lender's Pro Rata Share of
principal, interest and/or Fees that are included in such payment. As
to each Lender, provided that such Lender has funded all payments and
Revolving Credit Advances required to be made by it and purchased all
participations required to be purchased by it under this Agreement and
the other Loan Documents as of date, Administrative Agent shall pay to
such Lender such Pro Rata Share of principal, interest and/or Fees, as
the case may be. To the extent that any Lender (a "Non-Funding
-----------
Lender") has failed to fund all such payments and Revolving Credit
------
Advances or failed to fund the purchase of all such participations,
Administrative Agent shall be entitled to set off the funding short-
fall against that Non-Funding Lender's Pro Rata Share of any payments
received from Borrowers. All payments to any Lender hereunder shall
be made by wire transfer to such Lender's account (as specified by
such Lender in ANNEX G or the applicable Assignment Agreement).
-------
36
(b) Availability of Lender's Pro Rata Share. Administrative Agent may
---------------------------------------
assume that each Lender will make its Pro Rata Share of each Revolving
Credit Advance available to Administrative Agent on each funding date. If
such Pro Rata Share is not, in fact, paid to Administrative Agent by such
Lender when due, Administrative Agent will be entitled to recover such
amount on demand from such Lender without setoff, counterclaim or deduction
of any kind. If any Lender fails to pay the amount of its Pro Rata Share
forthwith upon Administrative Agent's demand, Administrative Agent shall
promptly notify Borrower Representative, and Borrowers shall immediately
repay such amount to Administrative Agent. Nothing in this SECTION 9.9(b)
or elsewhere in this Agreement or the other Loan Documents shall be deemed
to require Administrative Agent to advance funds on behalf of any Lender or
to relieve any Lender from its obligation to fulfill its Revolving Loan
Commitment hereunder or to prejudice any rights that Borrowers may have
against any Lender as a result of any default by such Lender hereunder. To
the extent that Administrative Agent advances funds to any Borrower on
behalf of any Lender and is not reimbursed therefor on the same Business
Day as such Revolving Credit Advance is made, Administrative Agent shall be
entitled to retain for its account all interest accrued on such Revolving
Credit Advance until reimbursed by the applicable Lender.
(c) Return of Payments.
------------------
(i) If Administrative Agent pays an amount to a Lender under
this Agreement in the belief or expectation that a related payment has
been or will be received by Administrative Agent from Borrowers and
such related payment is not received by Administrative Agent, then
Administrative Agent will be entitled to recover such amount from such
Lender on demand without setoff, counterclaim or deduction of any
kind.
(ii) If Administrative Agent determines at any time that any
amount received by Administrative Agent under this Agreement must be
returned to any Borrower or paid to any other Person pursuant to any
insolvency law or otherwise, then, notwithstanding any other term or
condition of this Agreement or any other Loan Document, Administrative
Agent will not be required to distribute any portion thereof to any
Lender. In addition, each Lender will repay to Administrative Agent
on demand any portion of such amount that Administrative Agent has
distributed to such Lender, together with interest at such rate, if
any, as Administrative Agent is required to pay to any Borrower or
such other Person without setoff, counterclaim or deduction of any
kind.
(d) Non-Funding Lenders. The failure of any Non-Funding Lender to
-------------------
make any Revolving Credit Advance or any payment required by it hereunder,
shall not relieve any other Lender (each such other Lender, an "Other
-----
Lender") of its obligations to make such Revolving Credit Advance on such
------
date, but neither any Other Lender nor Administrative Agent shall be
responsible for the failure of any Non-Funding Lender to make an Revolving
Credit Advance. Notwithstanding anything set forth herein to the contrary,
a Non-Funding Lender shall not have any voting or consent rights under or
with respect to any Loan Document or constitute a "Lender" (or be included
in the calculation of "Requisite Lenders" hereunder) for any voting or
consent rights under or with respect to any Loan Document.
(e) Dissemination of Information. Administrative Agent shall use
----------------------------
reasonable efforts to provide Lenders with any notice of Default or Event
of Default received by
37
Administrative Agent from, or delivered by Administrative Agent to, any
Borrower, with notice of any Event of Default of which Administrative Agent
has actually become aware and with notice of any action taken by Agents
following any Event of Default; provided, that each Agent shall not be
--------
liable to any Lender for any failure to do so, except to the extent that
such failure is attributable to such Agent's gross negligence or willful
misconduct. Except for notices, reports and other documents delivered to
the Administrative Agent (which the Administrative Agent hereby agrees to
provide to each Lender) pursuant to ANNEX E, the Administrative Agent shall
-------
not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of Borrowers
which may come into its possession.
(f) Actions in Concert. Notwithstanding anything in this Agreement to
------------------
the contrary, each Lender hereby agrees with each other Lender that no
Lender shall take any action to protect or enforce its rights arising out
of this Agreement or the Revolving Notes (including exercising any rights
of setoff) without first obtaining the prior written consent of Requisite
Lenders, it being the intent of Lenders that any such action to protect or
enforce rights under this Agreement and the Revolving Notes shall be taken
in concert and at the direction of (i) Administrative Agent and Collateral
Agent or (ii) Requisite Lenders.
10. SUCCESSORS AND ASSIGNS
This Agreement and the other Loan Documents shall be binding on and shall
inure to the benefit of each Borrower, Agents, Lenders and their respective
successors and assigns (including, in the case of any Borrower, a debtor-in-
possession on behalf of such Borrower), except as otherwise provided herein or
therein. No Borrower may assign, transfer, hypothecate or otherwise convey its
rights, benefits, obligations or duties hereunder or under any of the other Loan
Documents without the prior express written consent of Agents and Lenders. Any
such purported assignment, transfer, hypothecation or other conveyance by any
Borrower without the prior express written consent of Agents and Lenders shall
be void. The terms and provisions of this Agreement are for the purpose of
defining the relative rights and obligations of each Borrower, Agents and
Lenders with respect to the transactions contemplated hereby and no Person shall
be a third party beneficiary of any of the terms and provisions of this
Agreement or any of the other Loan Documents.
11. MISCELLANEOUS
11.1 Complete Agreement; Modification of Agreement. The Loan Documents
---------------------------------------------
constitute the complete agreement between the parties with respect to the
subject matter thereof and may not be modified, altered or amended except as set
forth in SECTION 11.2. Any letter of interest, commitment letter, or fee letter
(other than the GE Capital Fee Letter),including, without limitation, the
Proposal Letter dated September 18, 1998, between any Borrower and any Agent or
Lender or any of their respective Affiliates, predating this Agreement and
relating to a financing of substantially similar form, purpose or effect
including, without limitation the Proposed Letter dated September 18, 1998 shall
be superseded by this Agreement.
11.2 Amendments and Waivers.
----------------------
(a) Except for actions expressly permitted to be taken by
Administrative Agent, Collateral Agent, or Agents jointly, no amendment,
modification, termination or waiver of any provision of this Agreement or
any other Loan Document, or any consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in
writing and signed by Administrative Agent and Borrowers, and by Requisite
Lenders or all Lenders, as
38
applicable. Except as set forth in CLAUSES (b) and (c) below, all such
amendments, modifications, terminations or waivers requiring the consent of
any Lenders shall require the written consent of Requisite Lenders.
(b) No amendment, modification, termination or waiver of or consent
with respect to any provision of this Agreement that (i) amends the Budget,
ANNEX J, or the definition of "Availability Limitation" or (ii) waives
-------
compliance with the conditions precedent set forth in SECTIONS 2.1 OR 2.2
to the making of any Revolving Loan or the incurrence of any L/C
Obligations shall be effective unless the same shall be in writing and
signed by Requisite Lenders and Borrowers. Notwithstanding anything
contained in this Agreement to the contrary, no waiver or consent with
respect to any Default (if in connection therewith Administrative Agent or
Requisite Lenders, as the case may be, have exercised its or their right to
suspend the making or incurrence of further Revolving Credit Advances or
L/C Obligations pursuant to SECTION 8.2(a)) or any Event of Default shall
be effective for purposes of the conditions precedent to the making of
Revolving Loan or the incurrence of L/C Obligations set forth in SECTIONS
2.1 OR 2.2 unless the same shall be in writing and signed by Requisite
Lenders and Borrowers.
(c) No amendment, modification, termination or waiver shall, unless in
writing and signed by each Lender:
(i) increase the principal amount of any Lender's Revolving
Loan Commitment;
(ii) reduce the principal of, rate of interest on or Fees
payable with respect to any Revolving Loan or L/C Obligations of any
Lender;
provided, that Requisite Lenders shall be permitted to change the
--------
amount, timing or rate of the Default Rate;
(iii) extend the final maturity date for, or reduce the amount
of, any payment or prepayment of principal of or interest on or any
fee related to any Revolving Loan of any Lender;
(iv) waive, forgive, defer, extend or postpone any payment of
interest or Fees as to any Lender;
(v) except as otherwise permitted herein or in the other Loan
Documents, release, subordinate any Lien on any portion of, or permit
any Borrower to sell or otherwise dispose of any Collateral;
(vi) change the percentage of the Revolving Loan Commitments or
of the aggregate unpaid principal amount of the Revolving Loan that
shall be required for Lenders or any of them to take any action
hereunder;
(vii) subject any Lender to any additional obligations; and
(viii) amend or waive this SECTION 11.2 or the definitions of
the term "Requisite Lenders" insofar as such definition affects the
substance of this SECTION 11.2.
No amendment, modification, termination or waiver that would modify
any requirement under this Agreement that any particular action be taken by
all Lenders or Requisite Lenders shall be effective without the consent of
each Lender. Furthermore, no amendment, modification, termination or
waiver affecting the rights or duties of Administrative
39
Agent or Collateral Agent under this Agreement or any other Loan Document
shall be effective unless in writing and signed by Administrative Agent or
Collateral Agent, as the case may be, in addition to Lenders required
hereinabove to take such action. Each amendment, modification, termination
or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given. No amendment, modification,
termination or waiver shall be required for Administrative Agent or
Collateral Agent to take additional Collateral pursuant to any Loan
Document.
No amendment, modification, termination or waiver of any provision of
any Revolving Note shall be effective without the written concurrence of
the holder of that Revolving Note. No notice to or demand on any Borrower
in any case shall entitle such Borrower or any other Borrower to any other
or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in
accordance with this SECTION 11.2 shall be binding upon each holder of the
Revolving Notes at the time outstanding and each future holder of the
Revolving Notes.
(d) If, in connection with any proposed amendment, modification,
waiver or termination (a "Proposed Change"):
---------------
(i) requiring the consent of all Lenders, the consent of
Requisite Lenders is obtained, but the consent of other Lenders whose
consent is required is not obtained; or
(ii) requiring the consent of Requisite Lenders, the consent of
Lenders holding 51% or more of the aggregate Revolving Loan
Commitments is obtained, but the consent of Requisite Lenders is not
obtained, (any such Lender whose consent is not obtained as described
in the clauses (I) and (II) being referred to as a "Non-Consenting
--------------
Lender"),
------
then, so long as Administrative Agent is not a Non-Consenting Lender, at
Borrower Representative's request, either Administrative Agent or a Person
acceptable to Administrative Agent shall have the right with Administrative
Agent's consent and in Administrative Agent's sole discretion (but shall
have no obligation) to purchase from such Non-Consenting Lender, and such
Non-Consenting Lender agree that it shall, upon Administrative Agent's
request, sell and assign to Administrative Agent or such Person, all of the
Revolving Loan Commitments of such Non-Consenting Lender (or, after the
Commitment Termination Date, the Revolving Loan of such Non-Consenting
Lender) for an amount equal to the principal balance of the Revolving Loan
held by such Non-Consenting Lender and all accrued interest and Fees with
respect thereto through the date of sale, such purchase and sale to be
consummated pursuant to an executed Assignment Agreement.
(e) Upon indefeasible payment in full in cash and performance of all
of the Obligations (other than indemnification Obligations under SECTION
1.11 and L/C Obligations which have been fully cash collateralized in the
manner set forth in ANNEX B), termination of the Revolving Loan Commitments
-------
and a release of all claims against Administrative Agent, Collateral Agent,
and Lenders, and so long as no suits, actions, proceedings or claims are
pending or threatened against any Indemnified Person asserting any damages,
losses or liabilities that are Indemnified Liabilities, Administrative
Agent and Collateral Agent (as appropriate) shall deliver to Borrowers
termination statements, mortgage releases and other documents necessary or
appropriate to evidence the termination of the Liens securing payment of
the Obligations.
40
11.3 Fees and Expenses. Borrowers shall reimburse each Agent for all out-
-----------------
of-pocket expenses incurred in connection with the negotiation and preparation
of the Loan Documents and the obtaining of approval of the Loan Documents by the
Bankruptcy Court (including the reasonable fees and expenses of all of their
respective special loan counsel, advisors, consultants and auditors retained in
connection with the Loan Documents and advice in connection therewith).
Borrowers shall reimburse each Agent for all reasonable fees, costs and
expenses, including the reasonable fees, costs and expenses of counsel or other
advisors (including environmental and management consultants and appraisers) for
advice, assistance, or other representation in connection with:
(a) any amendment, modification or waiver of, consent with respect to,
or termination of, any of the Loan Documents or related transactions or
advice in connection with the administration of the Revolving Loan made
pursuant hereto or its rights hereunder or thereunder;
(b) monitoring the Chapter 11 Cases and any subsequent chapter 7 case;
(c) any litigation, contest, dispute, suit, proceeding or action
(whether instituted by any Agent, any Borrower or any other Person, and
whether as a party, witness or otherwise) in any way relating to the
Collateral, any of the Loan Documents or any other agreement to be executed
or delivered in connection herewith or therewith;
(d) any attempt to enforce any remedies of any Agent against any or
all Borrowers or any other Person that may be obligated to such Agent by
virtue of any of the Loan Documents;
(e) efforts to (i) monitor the Revolving Loan or any of the other
Obligations, (ii) evaluate, observe or assess any of the Borrowers or their
respective affairs, and (iii) verify, protect, evaluate, assess, appraise,
collect, sell, liquidate or otherwise dispose of any of the Collateral;
including in all cases all attorneys' and other professional and service
providers' reasonable fees arising from such services, including those in
connection with any appellate proceedings, and all expenses, costs, charges and
other reasonable fees incurred by such counsel and others in connection with or
relating to any of the events or actions described in this SECTION 11.3, all of
which shall be payable, on demand, by Borrowers to the relevant Agent. Without
limiting the generality of the foregoing, such expenses, costs, charges and fees
may include: reasonable fees, costs and expenses of accountants, environmental
advisors, appraisers, investment bankers, management and other consultants and
paralegals; court costs and expenses; photocopying and duplication expenses;
court reporter fees, costs and expenses; long distance telephone charges; air
express charges; telegram or telecopy charges; secretarial overtime charges; and
expenses for travel, lodging and food paid or incurred in connection with the
performance of such legal or other advisory services.
11.4 No Waiver. The failure of any Agent or Lender, at any time or times,
---------
to require strict performance by Borrowers of any provision of this Agreement or
any other Loan Document shall not waive, affect or diminish any right of such
Agent or Lender thereafter to demand strict compliance and performance herewith
or therewith. Any suspension or waiver of an Event of Default shall not
suspend, waive or affect any other Event of Default whether the same is prior or
subsequent thereto and whether the same or of a different type. Subject to the
provisions of SECTION 11.2, none of the undertakings, agreements, warranties,
covenants and representations of any Borrower contained in this Agreement or any
of the other Loan Documents and no Default or Event of Default by any Borrower
shall be deemed to have been suspended or waived by any Agent or Lender, unless
such waiver or
41
suspension is by an instrument in writing signed by an officer of or other
authorized employee of Administrative Agent and the applicable required Lenders
and directed to Borrower Representative specifying such suspension or waiver.
11.5 Remedies. Agents' and Lenders' rights and remedies under this
--------
Agreement shall be cumulative and nonexclusive of any other rights and remedies
that any Agent or Lender may have under any other agreement, including the other
Loan Documents, by operation of law or otherwise. Recourse to the Collateral
shall not be required.
11.6 Severability. Wherever possible, each provision of this Agreement and
------------
the other Loan Documents shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement
or any other Loan Document shall be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Agreement or such other Loan Document.
11.7 Conflict of Terms. Except as otherwise provided in this Agreement or
-----------------
any of the other Loan Documents by specific reference to the applicable
provisions of this Agreement, if any provision contained in this Agreement is in
conflict with, or inconsistent with, any provision in any of the other Loan
Documents, the provision contained in this Agreement shall govern and control.
11.8 Confidentiality. Each Agent and Lender agree to use commercially
---------------
reasonable efforts (equivalent to the efforts such Agent or Lender applies to
maintain the confidentiality of its own confidential information) to maintain as
confidential all confidential information provided to them by the Borrowers and
designated as confidential for a period of one year following receipt thereof,
except that each Agent and Lender may disclose such information: (a) to Persons
employed or engaged by such Agent or Lender in evaluating, approving,
structuring or administering the Revolving Loan and the Revolving Loan
Commitments; (b) to any bona fide assignee or participant or potential assignee
---------
or participant that has agreed to comply with the covenant contained in this
SECTION 11.8 (and any such bona fide assignee or participant or potential
---------
assignee or participant may disclose such information to Persons employed or
engaged by them as described in CLAUSE (a) above); (c) as (i) required or
requested by any Governmental Authority or reasonably believed by such Agent or
Lender to be compelled by any court decree, subpoena or legal or administrative
order or process or (ii) on the advice of such Agent's or Lender's counsel, is
required by law, provided, that in each of the circumstances described in this
--------
CLAUSE (C), such Agent or Lender, as the case may be, shall (to the extent
practicable) notify Borrower Representative in advance regarding such
disclosure; (e) to the extent necessary in connection with the exercise of any
right or remedy under the Loan Documents or in connection with any Litigation to
which such Agent or Lender is a party; or (f) that ceases to be confidential
through no fault of such Agent or Lender.
11.9 GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE
-------------
LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, THE LOAN DOCUMENTS AND THE OBLIGATIONS SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE (WITHOUT
REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. EACH BORROWER HEREBY CONSENTS TO PERSONAL
JURISDICTION, WAIVES ANY OBJECTION AS TO JURISDICTION OR VENUE, AND AGREES NOT
TO ASSERT ANY DEFENSE BASED ON LACK OF
42
JURISDICTION OR VENUE, IN THE BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA.
SERVICE OF PROCESS ON ANY BORROWER, AGENT OR ANY LENDER IN ANY ACTION ARISING
OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS SHALL BE EFFECTIVE IF SENT TO
SUCH PARTY BY CERTIFIED OR REGISTERED MAIL AT ITS ADDRESS (OR BORROWER
REPRESENTATIVE'S ADDRESS WITH RESPECT TO ALL BORROWERS) LISTED IN ANNEX H.
-------
NOTHING HEREIN SHALL PRECLUDE OTHER LEGAL ACTION IN ANY OTHER JURISDICTION.
11.10 Notices. Except as otherwise provided herein, whenever it is
-------
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered:
(a) upon the earlier of actual receipt and three Business Days after
deposit in the United States Mail, registered or certified mail, return
receipt requested, with proper postage prepaid;
(b) upon transmission, when sent by telecopy or other similar
facsimile transmission (with such telecopy or facsimile promptly confirmed
by delivery of a copy by personal delivery or United States Mail as
otherwise provided in this SECTION 11.10);
(c) one Business Day after deposit with a reputable overnight courier
with all charges prepaid; or
(d) when delivered, if hand-delivered by messenger,
all of which shall be addressed to the party to be notified and sent to the
address or facsimile number indicated in ANNEX H or to such other address (or
-------
facsimile number) as may be substituted by notice given as herein provided.
The giving of any notice required hereunder may be waived in writing by the
party entitled to receive such notice. Failure or delay in delivering copies of
any notice, demand, request, consent, approval, declaration or other
communication to any Person (other than Borrower Representative or Agents)
designated in ANNEX H to receive copies shall in no way adversely affect the
-------
effectiveness of such notice, demand, request, consent, approval, declaration or
other communication.
11.11 Section Titles. The Section titles and Table of Contents contained
--------------
in this Agreement are and shall be without substantive meaning or content of any
kind whatsoever and are not a part of the agreement between the parties hereto.
11.12 Counterparts. This Agreement may be executed in any number of
------------
separate counterparts, each of which shall collectively and separately
constitute one agreement.
43
11.13 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
--------------------
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG AGENT, LENDERS AND ANY BORROWER ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
OR THE TRANSACTIONS RELATED THERETO.
11.14 Press Releases. Each Borrower executing this Agreement agrees that
--------------
neither it nor its Affiliates will in the future issue any press releases or
other public disclosure using the name of GE Capital or BofA or their respective
affiliates or referring to this Agreement or the other Loan Documents without
prior notice to GE Capital and BofA and without the prior written consent of GE
Capital and BofA unless (and only to the extent that) such Borrower is required
to do so under law and then, in any event, such Borrower will, to the extent
practicable, consult with GE Capital and BofA before issuing such press release
or other public disclosure. Each Borrower consents to the publication by
Administrative Agent, Collateral Agent or any Lender of a tombstone or similar
advertising material relating to the financing transactions contemplated by this
Agreement. Such Agent or Lender shall provide a draft of any such tombstone or
similar advertising material to Borrower Representative for review and comment
prior to the publication thereof. Agents reserve the right to provide to
industry trade organizations information necessary and customary for inclusion
in league table measurements.
11.15 Advice of Counsel. Each of the parties represents to each other
-----------------
party hereto that it has discussed this Agreement and, specifically, the
provisions of SECTIONS 11.9 and 11.13, with its counsel.
11.16 No Strict Construction. The parties hereto have participated
----------------------
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement 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 Agreement.
11.17 No Limitation on Objection Rights; Limited Scope of Consents. With
------------------------------------------------------------
respect to any provision hereof that prohibits Borrowers from taking a
particular action without having first obtained an order of the Bankruptcy Court
authorizing or approving such action, nothing herein shall be deemed to be a
consent by Agents or Lenders to the entry of any such order, it being understood
that Agents and Lenders expressly reserve the right to oppose any motion or
application that may be brought by any Borrower or any other Person in the
Chapter 11 Cases seeking any such order and to file an appeal with respect to
any such order that may be entered. In addition, nothing contained herein, and
no consent, waiver or agreement of any Agent or Lender hereunder or under any
other Loan Document, shall be deemed to be a consent, agreement or waiver of
such Person in any capacity other than its capacity as an Agent or Lender, as
the case may be, hereunder (including in its capacity as a lender or an agent
with respect to any Prepetition Indebtedness).
44
THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK
45
IN WITNESS WHEREOF, this Debtor in Possession Credit Agreement has
been duly executed as of the date first written above.
"BORROWERS"
BOSTON CHICKEN, INC., BC REAL ESTATE INVESTMENTS, INC.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
________________________________ ___________________________________
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
BCI ACQUISITION SUB, L.L.C., PROGRESSIVE FOOD CONCEPTS, INC.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: Boston Chicken, Inc., Manager
By: /s/ Xxxxxxxx X. Xxxxx
___________________________________
Name: Xxxxxxxx X. Xxxxx
By: /s/ Xxxxxxxx X. Xxxxx Title: Executive Vice President
________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President
BCI MAYFAIR, INC., BCI R&A, INC.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
________________________________ ___________________________________
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
BCI MASSACHUSETTS, INC., BCI WEST, INC.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
___________________________________ ___________________________________
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
BCI SOUTHWEST, INC., MID-ATLANTIC RESTAURANT SYSTEMS, INC.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
___________________________________ ___________________________________
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
MAYFAIR PARTNERS, L.P., BC GREAT LAKES, L.L.C.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: BCI Mayfair, Inc., as General Partner By: Boston Chicken, Inc., Manager
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
___________________________________ ___________________________________
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
BC NEW YORK, L.L.C., BC GOLDENGATE, L.L.C.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: Boston Chicken, Inc., Manager By: Boston Chicken, Inc., Manager
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
___________________________________ ___________________________________
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
BC SUPERIOR, L.L.C., BC HEARTLAND, L.L.C.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: Boston Chicken, Inc., Manager By: Boston Chicken, Inc., Manager
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
___________________________________ ___________________________________
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
BC TRI-STATES, L.L.C., FINEST FOODSERVICE, L.L.C.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: Boston Chicken, Inc., Manager By: Boston Chicken, Inc., Manager
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
___________________________________ ___________________________________
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
P & L FOOD SERVICES, L.L.C., R&A FOOD SERVICES, L.P.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: Boston Chicken, Inc., Manager By: BCI R&A, Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
___________________________________ ___________________________________
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
BC BOSTON, L.P., BCE WEST, L.P.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: BCI Massachusetts, Inc., as General Partner By: BCI West, Inc. as General Partner
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
___________________________________ ___________________________________
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
B.C.B.M. SOUTHWEST, L.P., BUFFALO P&L FOOD SERVICES, INC.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: BCI Southwest, Inc., as General Partner By: /s/ Xxxxxxxx X. Xxxxx
___________________________________
Name: Xxxxxxxx X. Xxxxx
By: /s/ Xxxxxxxx X. Xxxxx Title: Executive Vice President
___________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Name: Xxxxxx X. Xxxxx
Senior Risk Manager
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Name: Xxxxxx X. Xxxxx
Senior Risk Manager
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Collateral Agent
By: /s/ Xxxxx Xxxxxxxx
________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
________________________________
Name: Xxxx X. Xxxxxxx
Title: Vice President
SANWA BUSINESS CREDIT CORPORATION,
as a Lender
By: /s/ Xxxxxx Xxxx
________________________________
Name: Xxxxxx Xxxx
_____________________________
Title: Account Manager
_____________________________
LASALLE NATIONAL BANK,
as a Lender
By: /s/ Xxxxxx X. XxXxxxx
________________________________
Name: Xxxxxx X. XxXxxxx
______________________________
Title: Vice President
_____________________________
HOUR LLC,
as a Lender
By: Sunrise Partners L.L.C., its Manager
By: Xxxx General Partner Corp., its Manager
By: /s/ Xxxxxxx X. Xxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxx
_____________________________
Title: Vice President
_____________________________
ANNEX A (RECITALS)
--------
TO
CREDIT AGREEMENT
----------------
DEFINITIONS
-----------
Capitalized terms used in the Loan Documents shall have (unless otherwise
provided elsewhere in the Loan Documents) the following respective meanings, and
all references in the following definitions to the preamble, Recitals, Sections,
Exhibits, Schedules or Annexes shall refer to the preamble, Recitals, Sections,
Exhibits, Schedules or Annexes of the Agreement:
"Adequate Protection Orders" means each order entered by the Bankruptcy
--------------------------
Court with respect to the provision of adequate protection pursuant to the
Bankruptcy Code to the holders of the 1995 Obligations, the holders of the 1996
Obligations, and the "Cash Management Banks" and the "Other Creditors" (as both
such terms are defined in the Intercreditor Agreement), which orders shall be in
form and substance acceptable to Agents (it being understood that the Adequate
Protection Orders may provide for the payment of current interest at the
contract rate on the 1996 Obligations and the 1995 Obligations to the extent
consistent with the Budget).
"Administrative Agent" means GE Capital or its successor appointed pursuant
--------------------
to SECTION 9.7.
"Affiliate" means, with respect to any Borrower, any Person other than a
---------
Financed Franchisee:
(a) that directly or indirectly controls, is controlled by, or is
under common control with, such Borrower;
(b) that directly or indirectly owns or holds, whether
beneficially or as a trustee, guardian or other fiduciary, at the time of
determination, outstanding shares representing ten percent (10%) or more of
any class of capital stock, partnership units or other equity interests of
such Borrower (including, on a fully diluted basis, any options, warrants
and other rights to acquire capital stock, partnership units or other
equity interests that are exercisable at the time of determination, but
excluding any options, warrants and other rights to acquire capital stock,
partnership units or other equity interests that are not then exercisable);
(c) ten percent (10%) or more of the capital stock, partnership
units or other equity interests of which (calculated in accordance with the
foregoing CLAUSE (b)) is directly or indirectly beneficially owned or held
by such Borrower;
(d) that is an officer, director, member, manager, joint venturer
or partner of such Borrower; or
(e) who is an immediate family member, spouse or lineal
descendant of individuals who are Affiliates of such Borrower;
provided, that the term "Affiliate," as it relates to Borrowers, shall
--------
specifically exclude Agents and each Lender. For purposes of this definition
only, the term control means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract, or
otherwise.
"Agent" means either Administrative Agent or Collateral Agent; "Agents"
----- ------
means, collectively, Administrative Agent and Collateral Agent.
"Agreement" means the Debtor in Possession Credit Agreement by and among
---------
Borrowers, GE Capital, as Administrative Agent and a Lender, BofA, as Collateral
Agent and a Lender, and the other Lenders from time to time party thereto, as
the same may be amended, supplemented, restated or
A-1
otherwise modified from time to time in accordance with the terms thereof.
"Appendices" - See the RECITALS.
----------
"Assignment Agreement" - See SECTION 9.1(a).
--------------------
"Availability Amount" - See ANNEX J.
------------------- -------
"Availability Limitation" - See SECTION 1.1(a)(i).
-----------------------
"Bankruptcy Code" - See the RECITALS.
---------------
"Bankruptcy Court" - See the RECITALS.
----------------
"Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedure, as the
----------------
same may from time to time be in effect and applicable to the Chapter 11 Cases.
"BCI" - See the PREAMBLE.
---
"BofA" - See the PREAMBLE.
----
"Borrower" and "Borrowers" - See the PREAMBLE.
-------- ---------
"Borrower Accounts" - See ANNEX C.
----------------- -------
"Borrower Representative" - See SECTION 1.17.
-----------------------
"Budget" means the Budget attached hereto as SCHEDULE 3.4(b), as it may be
------ ----------------
amended from time to time in accordance with the terms hereof (and including the
revised Budget required to be delivered pursuant to paragraph (f)(ii) of ANNEX
----------------- -----
E). With respect to any amended Budget hereunder, Borrowers shall be deemed to
have made the representations set forth in the last sentence of SECTION 3.4(B)
(provided, that such representations shall be as of the date of delivery of the
---------
relevant amended Budget, not as of the Closing Date).
"Business Day" means any day that is not a Saturday, a Sunday or a day on
------------
which banks are required or permitted to be closed in the States of Colorado,
Illinois or New York.
"Capital Expenditures" means, with respect to any Person, all expenditures
--------------------
(by the expenditure of cash or the incurrence of Indebtedness) by such Person
during any measuring period for any fixed assets or improvements or for
replacements, substitutions or additions thereto that have a useful life of more
than one year and that are required to be capitalized under GAAP, including with
respect to Capital Leases.
"Capital Lease" means, with respect to any Person, any lease of any
-------------
property (whether real, personal or mixed) by such Person as lessee that, in
accordance with GAAP, would be required to be classified and accounted for as a
capital lease on a balance sheet of such Person.
"Capital Lease Obligation" means, with respect to any Capital Lease of any
------------------------
Person, the amount of the obligation of the lessee thereunder that, in
accordance with GAAP, would appear on a balance sheet of such lessee in respect
of such Capital Lease.
"Carve-Out" - See SECTION 1.16(c).
---------
"Cash Collateral" means "cash collateral" as that phrase is defined in
---------------
Section 363(a) of the Bankruptcy Code.
"Cash Collateral Account" - See ANNEX B.
----------------------- -------
"Cash Equivalents" - See ANNEX B.
---------------- -------
"Cash Management System" - See SECTION 1.6.
----------------------
A-2
"Casualty Event" - See SECTION 5.4(c).
--------------
"Change of Control" means the termination of services of Xxxxxxx Xxxxxxx as
-----------------
Chief Executive Officer or President of BCI or of Xxxxxxxx Xxxxx as Chief
Financial Officer or Executive Vice President of BCI.
"Chapter 11 Case" and "Chapter 11 Cases" - See the RECITALS.
--------------- ----------------
"Charges" means all federal, state, county, city, municipal, local, foreign
-------
or other governmental taxes (including taxes owed to the PBGC at the time due
and payable), levies, assessments, charges, liens, claims or encumbrances upon
or relating to (a) the Collateral, (b) the Obligations, (c) the employees,
payroll, income or gross receipts of any Borrower, (d) any Borrower's ownership
or use of any properties or other assets, or (e) any other aspect of any
Borrower's business.
"Closing Date" means October 5, 1998.
------------
"Code" means the Uniform Commercial Code as the same may, from time to
----
time, be enacted and in effect in the State of New York; provided, that in the
--------
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of, or remedies with respect to, Collateral
Agent's Lien for the benefit of Agents and Lenders on any Collateral is governed
by the Uniform Commercial Code as enacted and in effect in a jurisdiction other
than the State of New York, the term "Code" means the Uniform Commercial Code as
enacted and in effect in such other jurisdiction solely for purposes of the
provisions thereof relating to such attachment, perfection, priority or remedies
and for purposes of definitions related to such provisions.
"Collateral" means the property covered by the Security Agreement and the
----------
other Collateral Documents and any other property, real or personal, tangible or
intangible, now existing or hereafter acquired, that may at any time be or
become subject to a Lien in favor of Collateral Agent, on behalf of Agents and
Lenders, to secure the Obligations.
"Collateral Agent" means BofA or its successor appointed pursuant to
----------------
SECTION 9.7.
"Collateral Documents" means the Security Agreement, the Patent, Trademark
--------------------
and Copyright Security Agreement and all similar agreements entered into
guaranteeing payment of, or granting a Lien upon property as security for
payment of, the Obligations, including the Interim Order and the Final Order.
"Collection Account Agreement" means (i) any Existing Collection Account
----------------------------
Agreement that has been amended pursuant to a Collection Account Agreement
Amendment, and (ii) any Collection Account Agreement substantially in the form
of EXHIBIT C-1 (with such changes as may be acceptable to the Collateral Agent)
-----------
among one or more Borrowers, Collateral Agent, and any bank at which such
Borrower or Borrowers maintains a Borrower Account.
"Combined Overhead" - See ANNEX F.
----------------- --------
"Commitment Termination Date" means the earliest of:
---------------------------
(a) April 4, 2000;
(b) the date of termination of Lenders' obligations to make
Revolving Credit Advances and to incur L/C Obligations or permit existing
Revolving Credit Advances to remain outstanding pursuant to SECTION
8.2(ii);
(c) the date of indefeasible prepayment in full by Borrowers of
the Revolving Credit Advances, the cancellation and return (or stand-by
guarantee) of all Letters of Credit or the cash collateralization of all
L/C Obligations pursuant to ANNEX B, and the permanent reduction of the
-------
Revolving Loan Commitments to zero dollars ($0), in each case in accordance
with the
A-3
provisions of SECTION 1.3(a);
(d) the date that is five days after the Petition Date if the
Interim Order has not been entered by the Bankruptcy Court by such date;
(e) the date that is 25 days after the Petition Date if the Final
Order has not been entered by the Bankruptcy Court by such date, unless the
Interim Order has been extended with Administrative Agent's written consent
to a date acceptable to Administrative Agent;
(f) the date the Interim Order expires, unless the Final Order
shall have been entered and become effective by such date; and
(g) the date a plan of reorganization in the Chapter 11 Cases
becomes effective.
"Common Collateral Agent" - See the Facilities Agreement.
-----------------------
"Compliance Certificate" - See ANNEX E.
---------------------- -------
"Control Account" means the following account of GE Capital (or such other
---------------
account as may be designated in writing by Administrative Agent as the "Control
Account"): account number 000-00-000, in the name of General Electric Capital
Corporation at Bankers Trust Company in New York, New York, ABA No. 021 001 033,
reference Boston Chicken-X. XxXxxxxxx.
"Copyright License" means any and all rights now owned or hereafter
-----------------
acquired by any Person under any written agreement granting any right to use any
Copyright or Copyright registration.
"Copyrights" means all of the following now owned or existing or hereafter
----------
adopted or acquired by any Person: (a) all copyrights and general intangibles of
like nature (whether registered or unregistered), all registrations and
recordings thereof, and all applications in connection therewith, including all
registrations, recordings and applications in the United States Copyright Office
or in any similar office or agency of the United States, any state or territory
thereof, or any other country or any political subdivision thereof; and (b) all
reissues, extensions or renewals thereof.
"Default" means any event that, with the passage of time or notice or both,
-------
would, unless cured or waived, become an Event of Default.
"Default Rate" - See SECTION 1.5(d).
------------
"Disbursement Account" - See Annex C.
-------------------- -------
"Dollars" or "$" means lawful currency of the United States of America.
------- -
"ENBC" means Einstein/Noah Bagel Corp., a Delaware corporation.
----
"ENBC Proceeds Cash Collateral" - See SECTION 1.3(b)(ii).
-----------------------------
"ENBC Proceeds Cash Collateral Amount" means, as of any date of
------------------------------------
determination, the aggregate amount of ENBC Proceeds Cash Collateral received by
BCI pursuant to SECTION 1.3(b)(ii)(C) as of such time minus any portion thereof
-----
that has been used as of such time in accordance with SECTION 1.16(d).
"ENBC Stock" means the Stock of ENBC owned of record or beneficially by BCI
----------
as of the Closing Date (and described in SCHEDULE 3.8).
------------
"Environmental Laws" means all applicable federal, state, local and foreign
------------------
laws, statutes, ordinances, codes, rules, standards and regulations, now or
hereafter in effect, and any applicable judicial or administrative
interpretation thereof, including any applicable judicial or administrative
order, consent decree, order or judgment, imposing liability or standards of
conduct for or relating to the regulation and protection of human health,
safety, the environment and natural resources (including
A-4
ambient air, surface water, groundwater, wetlands, land surface or subsurface
strata, wildlife, aquatic species and vegetation). "Environmental Laws" include
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. (S)(S) 9601 et seq.) ("CERCLA"); the Hazardous Materials
------- ------
Transportation Authorization Act of 1994 (49 U.S.C. (S)(S) 5101 et seq.); the
-------
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. (S)(S) 136 et
--
seq.); the Solid Waste Disposal Act (42 U.S.C. (S)(S) 6901 et seq.);
---- ------
the Toxic Substance Control Act (15 U.S.C. (S)(S) 2601 et seq.); the Clean Air
-------
Act (42 U.S.C. (S)(S) 7401 et seq.); the Federal Water Pollution Control Act (33
-------
U.S.C. (S)(S) 1251 et seq.); the Occupational Safety and Health Act (29 U.S.C.
------
(S)(S) 651 et seq.); and the Safe Drinking Water Act (42 U.S.C. (S)(S) 300(f) et
------ --
seq.), and any and all regulations promulgated thereunder, and all analogous
----
state, local and foreign counterparts or equivalents and any transfer of
ownership notification or approval statutes.
"Environmental Liabilities" means, with respect to any Person, all
-------------------------
liabilities, obligations, responsibilities, response, remedial and removal
costs, investigation and feasibility study costs, capital costs, operation and
maintenance costs, losses, damages, punitive damages, property damages, natural
resource damages, consequential damages, treble damages, costs and expenses
(including all fees, disbursements and expenses of counsel, experts and
consultants), fines, penalties, sanctions and interest incurred as a result of
or related to any claim, suit, action, investigation, proceeding or demand by
any Person, whether based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute or common law, including any arising under
or related to any Environmental Laws, Environmental Permits, or in connection
with any Release or threatened Release or presence of a Hazardous Material
whether on, at, in, under, from or about or in the vicinity of any real or
personal property.
"Environmental Permits" means all permits, licenses, authorizations,
---------------------
certificates, approvals or registrations required by any Governmental Authority
under any Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, and any
-----
regulations promulgated thereunder.
"ERISA Affiliate" means, with respect to any Borrower, any trade or
---------------
business (whether or not incorporated) that, together with such Borrower, are
treated as a single employer within the meaning of Sections 414(b), (c), (m) or
(o) of the IRC.
"ERISA Event" means, with respect to any Borrower or any ERISA Affiliate,
-----------
(a) any event described in Section 4043(c) of ERISA with respect to a Title IV
Plan; (b) the withdrawal of any Borrower or ERISA Affiliate from a Title IV Plan
subject to Section 4063 of ERISA during a plan year in which it was a
"substantial employer," as defined in Section 4001(a)(2) of ERISA; (c) the
complete or partial withdrawal of any Borrower or any ERISA Affiliate from any
Multiemployer Plan; (d) the filing of a notice of intent to terminate a Title IV
Plan or the treatment of a plan amendment as a termination under Section 4041 of
ERISA; (e) the institution of proceedings to terminate a Title IV Plan or
Multiemployer Plan by the PBGC; (f) the failure by any Borrower or ERISA
Affiliate to make when due required contributions to a Multiemployer Plan or
Title IV Plan unless such failure is cured within 30 days; (g) any other event
or condition that might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or for the imposition of
liability under Section 4069 or 4212(c) of ERISA; (h) the termination of a
Multiemployer Plan under Section 4041A of ERISA or the reorganization or
insolvency of a Multiemployer Plan under Section 4241 of ERISA; (i) the loss of
a Qualified Plan's qualification or tax exempt status; or (j) the termination of
a Plan described in Section 4064 of ERISA.
"Event of Default" - See SECTION 8.1.
----------------
A-5
"Existing Collection Account Agreement" means any "Collection Account
-------------------------------------
Agreement" (under and as defined in the Facilities Agreement) that is in effect
as of the Closing Date.
"Existing Credit Agreement" - See the RECITALS.
-------------------------
"Facilities Agreement" means the Amended and Restated Facilities Agreement
--------------------
dated as of October 24, 1997, as amended by the First Amendment and Consent to
Amended and Restated Facilities Agreement dated as of July 15, 1998.
"Fair Labor Standards Act" means the provisions of the Fair Labor Standards
------------------------
Act, 29 U.S.C. (S)(S) 201 et seq.
-------
"Federal Funds Rate" means, for any day, a floating rate equal to the
------------------
weighted average of the rates on overnight federal funds transactions among
members of the Federal Reserve System, as determined by Administrative Agent in
its sole discretion, which determination shall be final, binding and conclusive
(absent manifest error).
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
---------------------
System.
"Fees" means any and all fees payable to any Agent or any Lender pursuant
----
to the Agreement or any of the other Loan Documents.
"Final Order" means the order of the Bankruptcy Court entered in the
-----------
Chapter 11 Cases after a final hearing pursuant to Section 364 of the Bankruptcy
Code and Bankruptcy Rule 4001, satisfactory in form and substance to Agents, and
from which no appeal has been timely filed, or if timely filed, no stay pending
appeal shall have been granted, together with all extensions, modifications and
amendments thereto, authorizing each Borrower to obtain credit, incur
indebtedness, and grant Liens under the Agreement and the other Loan Documents
and providing for the superpriority of Agents' and Lenders' claims, all as set
forth in such order.
"Financed Franchisee" means (i) BC Northwest, L.P., a Delaware limited
-------------------
partnership, (ii) Boston West, L.L.C., a Delaware limited liability company, and
(iii) Platinum; provided, that any such Person shall no longer be a "Financed
--------
Franchisee" if it becomes a Subsidiary of any Borrower.
"Financial Covenants" - See SECTION 6.10.
-------------------
"Financial Statements" means the consolidated income statements, statements
--------------------
of cash flows and balance sheets of Borrowers delivered in accordance with
SECTION 3.4(a) and ANNEX E.
-------
"Fiscal Quarter" means any of the quarterly accounting periods of
--------------
Borrowers.
"Fiscal Year" means any of the annual accounting periods of Borrower ending
-----------
on the last Sunday of any calendar year.
"GAAP" means generally accepted accounting principles in the United States
----
of America, consistently applied, as such term is further defined in ANNEX F.
-------
"GE Capital" means General Electric Capital Corporation, a New York
----------
corporation.
"GE Capital Fee Letter" means that certain letter dated as of September 18,
---------------------
1998, between GE Capital and BCI with respect to certain Fees to be paid from
time to time by Borrowers to GE Capital.
"General Intangibles" means all "general intangibles," as such term is
-------------------
defined in the Code, now owned or hereafter acquired by any Person, including
all right, title and interest that such Person may now or hereafter have in or
under any contracts, Licenses, Copyrights, Trademarks and Patents and all
applications therefor and reissues, extensions or renewals thereof, interests in
partnerships, joint ventures and other business associations, permits,
inventions (whether or not patented or
A-6
patentable), knowledge, know-how, software, data bases, data, skill, expertise,
experience, processes, models, drawings, materials and records, Goodwill
(including the goodwill associated with any Trademark or Trademark License), all
rights and claims in or under insurance policies (including insurance for fire,
damage, loss and casualty, whether covering personal property, real property,
tangible rights or intangible rights, all liability, life, key man and business
interruption insurance, and all unearned premiums), uncertificated and
certificated securities, choses in action, deposit, checking and other bank
accounts, rights to receive tax refunds and other payments, rights to receive
dividends, distributions, cash, instruments and other property in respect of or
in exchange for pledged shares or other equity interests, rights of
indemnification, all books and records, correspondence, credit files, invoices
and other papers, including all tapes, cards, computer runs and other papers and
documents in the possession or under the control of such Person or any computer
bureau or service company from time to time acting for such Person.
"Goodwill" means all goodwill, trade secrets, proprietary or confidential
--------
information, technical information, procedures, formulae, quality control
standards, designs, operating and training manuals, customer lists, distribution
agreements and General Intangibles now or hereafter owned or acquired by any
Person.
"Governmental Authority" means any nation or government, any state or other
----------------------
political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranteed Indebtedness" means, as to any Person, any obligation of such
-----------------------
Person guaranteeing any indebtedness, lease, dividend, or other obligation
("primary obligation") of any other Person (the "primary obligor") in any
-------------------- ---------------
manner, including any obligation or arrangement of such Person to
(a) purchase or repurchase any such primary obligation,
(b) advance or supply funds (i) for the purchase or payment of
any such primary obligation or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet condition of the primary obligor,
(c) purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation, or
(d) indemnify the owner of such primary obligation against loss
in respect thereof.
The amount of any Guaranteed Indebtedness at any time shall be deemed to be an
amount equal to the lesser at such time of (x) the stated or determinable amount
of the primary obligation in respect of which such Guaranteed Indebtedness is
incurred and (y) the maximum amount for which such Person may be liable pursuant
to the terms of the instrument embodying such Guaranteed Indebtedness or, if not
stated or determinable, the maximum reasonably anticipated liability (assuming
full performance) in respect thereof.
"Hazardous Material" means any substance, material or waste that is
------------------
regulated by, or forms the basis of liability now or hereafter under, any
Environmental Laws, including any material or substance that is (a) defined as a
"solid waste," "hazardous waste," "hazardous material," "hazardous substance,"
"extremely hazardous waste," "restricted hazardous waste," "pollutant,"
"contaminant," "hazardous constituent," "special waste," "toxic substance" or
other similar term or phrase under any Environmental Laws, (b) petroleum or any
fraction or by-product thereof, asbestos, polychlorinated biphenyls (PCB's), or
any radioactive substance.
A-7
"Indebtedness" means, with respect to any Person, without duplication,
------------
(a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property payment for which is deferred six
months or more, but excluding obligations to trade creditors incurred in
the ordinary course of business that are not overdue by more than six
months unless being contested in good faith,
(b) all Capital Lease Obligations and the present value of future
rental payments under all synthetic leases,
(c) all reimbursement and other obligations with respect to
letters of credit, bankers' acceptances and surety bonds, whether or not
matured,
(d) all obligations evidenced by notes, bonds, debentures or
similar instruments,
(e) all indebtedness created or arising under any conditional
sale or other title retention agreement with respect to property acquired
by such Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or
sale of such property),
(f) all obligations of such Person under any foreign exchange
contract, currency swap agreement, interest rate swap, cap or collar
agreement or other similar agreement or arrangement designed to alter the
risks of that Person arising from fluctuations in currency values or
interest rates, in each case whether contingent or matured,
(g) all Indebtedness referred to above secured by (or for which
the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property or other assets
(including accounts and contract rights) owned by such Person (in all cases
in an amount equal to the value of the property or assets so pledged), even
though such Person has not assumed or become liable for the payment of such
Indebtedness, and
(h) the Obligations, if any, with respect to which such Person is
liable.
"Indemnified Liabilities" - See SECTION 1.11.
-----------------------
"Index Rate" means, for any day, a floating rate equal to the higher of (a)
----------
the rate publicly quoted from time to time by The Wall Street Journal as the
-----------------------
"base rate on corporate loans posted by at least 75% of the nation's largest
banks" (or, if The Wall Street Journal ceases quoting a base rate of the type
-----------------------
described, the highest per annum rate of interest published by the Federal
Reserve Board in Federal Reserve statistical release H.15 (519) entitled
"Selected Interest Rates" as the Bank prime loan rate or its equivalent), and
(b) the Federal Funds Rate plus 50 basis points per annum. Each change in any
---------
interest rate provided for in the Agreement based upon the Index Rate shall take
effect at the time of such change in the Index Rate.
"Intellectual Property" means any and all Licenses, Patents, Copyrights,
---------------------
Trademarks and the Goodwill associated with any of the foregoing.
"Intercreditor Agreement" means the Second Amended and Restated
-----------------------
Intercreditor Agreement dated as of July 15, 1998 as in effect on the Closing
Date.
"Interest Payment Date" means the first Business Day of each month to occur
---------------------
while the Revolving Loan is outstanding; provided, that, in addition to the
--------
foregoing, each of (x) the date upon which all of the Revolving Loan Commitments
have been terminated and the Revolving Loan has been paid in full and (y) the
Commitment Termination Date shall be deemed to be an "Interest Payment Date"
---------------------
with respect to any interest that has then accrued under the Agreement.
"Interim Order" means the interim order of the Bankruptcy Court entered in
-------------
the Chapter 11
A-8
Cases after an interim hearing (assuming satisfaction of the standards
prescribed in Section 364 of the Bankruptcy Code and Bankruptcy Rule 4001 and
other applicable law), together with all extensions, modifications and
amendments thereto, satisfactory in form and substance to Agents, authorizing,
on an interim basis, each Borrower to execute and perform under the terms of the
Agreement and the other Loan Documents, substantially in the form of EXHIBIT
-------
2.2(b).
------
"IRC" means the Internal Revenue Code of 1986 and any regulations
---
promulgated thereunder.
"IRS" means the Internal Revenue Service.
---
"L/C Cash Collateral Amount" means, with respect to any Letter of Credit as
--------------------------
of the time at which Borrowers are required to provide cash collateral therefor,
the sum of (i) the maximum amount then available to be drawn under such Letter
of Credit plus (ii) Administrative Agent's reasonable estimate of the amount of
----
fees and expenses of the type described in PARAGRAPH (D) of ANNEX B that may be
-------
payable thereafter with respect to such Letter of Credit.
"L/C Fees" - See ANNEX B.
-------- -------
"L/C Issuer" - See ANNEX B.
---------- -------
"L/C Issuing Lender" - See ANNEX B.
------------------ -------
"L/C Obligations" means all outstanding obligations incurred by
---------------
Administrative Agent and Lenders at the request of Borrower Representative,
whether direct or indirect, contingent or otherwise, due or not due, in
connection with the issuance of a reimbursement agreement or guaranty by
Administrative Agent or purchase of a participation as set forth in ANNEX B with
-------
respect to any Letter of Credit. The amount of such L/C Obligations shall equal
the maximum amount that may be payable by Administrative Agent or Lenders
thereupon or pursuant thereto.
"L/C Sublimit" - See ANNEX B.
------------ -------
"Letters of Credit" means commercial or standby letters of credit issued
-----------------
for the account of any Borrower by any L/C Issuer, and bankers' acceptances
issued by any Borrower, for which Administrative Agent and Lenders have incurred
L/C Obligations.
"Lender"; "Lenders" means each of GE Capital, BofA, the other Lenders named
------ -------
on the signature pages of the Agreement and, if any such Lender shall decide to
assign all or any portion of the Obligations, any assignee of such Lender.
"License" means any Copyright License, Patent License, Trademark License or
-------
other license of rights or interests now held or hereafter acquired by any
Person.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
----
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the Code or
comparable law of any jurisdiction).
"Liquidity Lenders" - See the RECITALS.
-----------------
"Liquidity Loan Payoff Amount" - See the RECITALS.
----------------------------
"Litigation" - See SECTION 3.13.
----------
"Loan Account" - See SECTION 1.10.
------------
A-9
"Loan Documents" means the Agreement, the Revolving Notes, the Collateral
--------------
Documents, and all other agreements, instruments, documents and certificates
identified in the Schedule of Documents executed and delivered to, or in favor
of, any Agent or any Lender and including all other pledges, powers of attorney,
consents, assignments, contracts, notices, and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any Borrower, or any
employee of any Borrower and delivered to any Agent or any Lender in connection
with the Agreement or the transactions contemplated thereby. Any reference in
the Agreement or any other Loan Document to a Loan Document shall include all
appendices, exhibits or schedules thereto, and all amendments, restatements,
supplements or other modifications thereto, and shall refer to such Agreement or
Loan Document as the same may be in effect at any and all times such reference
becomes operative.
"Margin Stock" - See SECTION 3.10.
------------
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, operations, prospects or financial or other condition of
Borrowers considered as a whole, (b) Borrowers' ability to pay the Revolving
Loan or any of the other Obligations in accordance with the terms of the
Agreement, (c) the Collateral or Collateral Agent's Liens, on behalf of Agents
and Lenders, on the Collateral or the priority of such Liens, or (d) any Agent's
or Lender's rights and remedies under the Agreement and the other Loan
Documents; provided, that none of (i) the commencement of the Chapter 11 Cases,
--------
or (ii) the commencement of a proceeding under any bankruptcy or similar law of
any jurisdiction by or against, or the liquidation of some or all of the assets
of, any Financed Franchisee (or any adverse changes resulting therefrom), shall
constitute a Material Adverse Effect.
"Maximum Amount" means, at the time any determination thereof is to be
--------------
made, the amount at such time equal to the Revolving Loan Commitments of all
Lenders.
"Maximum Lawful Rate" - See SECTION 1.5(e).
-------------------
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
------------------
4001(a)(3) of ERISA, and to which any Borrower or ERISA Affiliate is making, is
obligated to make, or has made or been obligated to make, contributions on
behalf of participants who are or were employed by any of them.
"Net Advance Amount" means, as of any time of determination during any
------------------
Retail Period, the greater of (i) zero and (ii)(A) the aggregate amount of all
Revolving Credit Advances that have been made to Borrowers during such Retail
Period (including any such Revolving Credit Advances made pursuant to PARAGRAPH
(b)(i) of ANNEX B), other than that portion of the initial Revolving Credit
-------
Advance used to pay the Liquidity Loan Payoff Amount, minus (B) the aggregate
-----
amount of all voluntary payments (but expressly excluding any mandatory
payments) that have been applied to the outstanding principal balance of the
Revolving Credit Advances during such Retail Period.
"Net Cash Proceeds" means, in the case of any sale of assets, 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 any Borrower
from such sale, less (i) the amount of reasonable and customary fees and
----
commissions payable to non-Affiliates of Borrowers, (ii) any other normal
expenses of sale, including reasonable costs and expenses related to such sale
or other disposition that are to be paid in cash, and (iii) amounts payable to
holders of senior Liens (to the extent such Liens constitute Permitted Senior
Encumbrances hereunder and such payments are approved by the Bankruptcy Court),
if any.
"1995 Master Lease Agreement" - See the RECITALS.
---------------------------
"1995 Obligations" means the obligation of BCI to pay "Rent" (under and as
----------------
defined in the
A-10
1995 Master Lease Agreement).
"1996 Master Lease Agreement" - See the RECITALS.
---------------------------
"1996 Obligations" means, collectively, (i) the "Obligations" under and as
----------------
defined in the Existing Credit Agreement, and (ii) the "Lease Obligations" under
and as defined in the 1996 Master Lease Agreement.
"Non-Funding Lender" - See SECTION 9.9(a)(ii).
------------------
"Notice of Mandatory Prepayment" - See SECTION 1.3(b).
------------------------------
"Notice of Revolving Credit Advance" - See SECTION 1.1(a).
----------------------------------
"Notice of Voluntary Prepayment/Reduction" - See SECTION 1.3(a).
----------------------------------------
"Obligations" means all loans, advances, debts, liabilities and obligations
-----------
for the performance of covenants, tasks or duties or for payment of monetary
amounts (whether or not such performance is then required or contingent, or such
amounts are liquidated or determinable) owing by any Borrower to any Agent or
any Lender, and all covenants and duties regarding such amounts, of any kind or
nature, present or future, whether or not evidenced by any note, agreement or
other instrument, arising under the Agreement or any of the other Loan
Documents. This term includes all principal, interest, Fees, Charges, expenses,
attorneys' fees and any other sum chargeable to any Borrower under the Agreement
or any of the other Loan Documents.
"Operating Subsidiaries" - See CLAUSE (a)(xi) of the PREAMBLE; provided
----------------------
that "Operating Subsidiaries shall also include any other Subsidiaries that may
from time to time operate Stores.
"Organizational Documents" means, with respect to any Person, the
------------------------
certificate or articles of incorporation and bylaws, the certificate of
partnership and partnership agreement, the articles of organization and
operating agreement, or other equivalent organizational documents, as
applicable, together with any document setting forth the designation, amount or
rights, limitations and preferences of any of such Person's Stock.
"Patent, Trademark and Copyright Security Agreement" means the Patent,
--------------------------------------------------
Trademark and Copyright Security Agreement made in favor of Collateral Agent, on
behalf of Agents and Lenders, by each Borrower.
"Patent License" means rights under any written agreement now owned or
--------------
hereafter acquired by any Person granting any right with respect to any
invention on which a Patent is in existence.
"Patents" means all of the following in which any Person now holds or
-------
hereafter acquires any interest: (a) all letters patent of the United States or
of any other country, all registrations and recordings thereof, and all
applications for letters patent of the United States or any other country,
including registrations, recordings and applications in the United States Patent
and Trademark Office or in any similar office or agency of the United States,
any State or Territory thereof, or any other country, and (b) all reissues,
continuations, continuations-in-part or extensions thereof.
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"Pension Plan" means a Plan described in Section 3(2) of ERISA.
------------
"Permitted Encumbrances" - See SECTION 6.7.
----------------------
"Permitted Senior Encumbrances" means (i) the Liens that secure the 1995
-----------------------------
Obligations as of the Closing Date and any replacement Liens that are provided
for in the Adequate Protection Order applicable to the 1995 Obligations and (ii)
all other Permitted Encumbrances which are prior to the Liens securing the
Revolving Loan and Obligations as a matter of law.
A-11
"Person" means any individual, sole proprietorship, partnership, joint
------
venture, trust, unincorporated organization, association, corporation, limited
liability company, institution, public benefit corporation, other entity or
government (whether federal, state, county, city, municipal, local, foreign, or
otherwise, including any instrumentality, division, agency, body or department
thereof).
"Petition Date" See the RECITALS.
-------------
"Plan" means, at any time, an "employee benefit plan," as defined in
----
Section 3(3) of ERISA, that any Borrower or any ERISA Affiliate maintains,
contributes to or has an obligation to contribute to on behalf of participants
who are or were employed by any Borrower.
"Platinum" means Platinum Rotisserie, L.L.C., a Delaware limited liability
--------
company.
"Prepetition Indebtedness" means all Indebtedness of any Borrower incurred
------------------------
or assumed prior to the Petition Date.
"Proceeds" means "proceeds," as such term is defined in the Code, including
--------
(a) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to any Person from time to time with respect to any of the Collateral,
(b) any and all payments (in any form whatsoever) made or due and payable to any
Person from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
Governmental Authority (or any Person acting under color of governmental
authority), (c) any claim of any Person against third parties (i) for past,
present or future infringement of any Patent or Patent License, or (ii) for
past, present or future infringement or dilution of any Copyright, Copyright
License, Trademark or Trademark License, or for injury to the Goodwill
associated with any Trademark or Trademark License, (d) any recoveries by any
Person against third parties with respect to any litigation or dispute
concerning any of the Collateral, and (e) any and all other amounts from time to
time paid or payable under or in connection with any of the Collateral, upon
disposition or otherwise.
"Pro Rata Share" means, with respect to all matters relating to any Lender,
--------------
(a) with respect to the Revolving Loan, the percentage obtained by dividing (i)
its Revolving Loan Commitment, by (ii) the aggregate Revolving Loan Commitments,
and (b) with respect to the Revolving Loan on and after the Commitment
Termination Date, the percentage obtained by dividing (i) the aggregate
outstanding principal balance of the Revolving Loan held by that Lender, by (ii)
the outstanding principal balance of the Revolving Loan held by all Lenders.
"Qualified Plan" means a Pension Plan that is intended to be tax-qualified
--------------
under Section 401(a) of the IRC.
"Real Estate" - See SECTION 3.6.
-----------
"Release" means any release, threatened release, spill, emission, leaking,
-------
pumping, pouring, emitting, emptying, escape, injection, deposit, disposal,
discharge, dispersal, dumping, leaching or migration of Hazardous Material in
the indoor or outdoor environment, including the movement of Hazardous Material
through or in the air, soil, surface water, ground water or property.
"Reporting Officer" means any of the following officers of BCI: Chief
-----------------
Financial Officer, Treasurer, Controller, and any Executive Vice President.
"Requisite Lenders" means (a) Lenders (i) having more than sixty-six and
-----------------
two-thirds percent (66 2/3%) of the Revolving Loan Commitments of all Lenders
and (ii) constituting at least fifty percent (50%) in number of Lenders
(provided, that if one or more Lenders are Affiliates of one another, such
---------
Lenders shall constitute a single Lender for purposes of this CLAUSE (a)(ii), or
(b) if the Revolving Loan Commitments have been terminated, Lenders (i) having
more than sixty-six and two-thirds percent (66 2/3%) of the aggregate
outstanding amount of the Revolving Loan and (ii) constituting at least fifty
A-12
percent (50%) in number of Lenders (provided, that if one or more Lenders are
--------
Affiliates of one another, such Lenders shall constitute a single Lender for
purposes of this CLAUSE (b)(ii).
"Restricted Payment" means, with respect to any Person:
------------------
(a) the declaration or payment of any dividend or the incurrence
of any liability to make any other payment or distribution of cash or other
property or assets in respect of such Person's Stock;
(b) any payment on account of the purchase, redemption,
defeasance, sinking fund or other retirement of such Person's Stock or any
other payment or distribution made in respect thereof, either directly or
indirectly;
(c) any payment or prepayment of principal of, premium, if any,
or interest, fees or other charges on or with respect to, and any
redemption, purchase, retirement, defeasance, sinking fund or similar
payment and any claim for rescission with respect to, any subordinated debt
of such Person;
(d) any payment made
to redeem, purchase, repurchase or retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire Stock of such
Person now or hereafter outstanding;
(e) any payment of a claim for the rescission of the purchase or
sale of, or for material damages arising from the purchase or sale of, any
shares of such Person's Stock or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim
for damages or rescission;
(f) any payment, loan, contribution, or other transfer of funds
or other property to any Stockholder of such Person other than payment of
compensation in the ordinary course (including employee retention bonuses
provided for in the Budget) to stockholders who are employees of such
Person; and
(g) any payment of management fees (or other fees of a similar
nature) by such Person to any Person other than a Borrower.
"Retail Period" means any of the thirteen consecutive four-week periods
-------------
used by BCI for accounting purposes that begin on or about the Monday after the
last Sunday in December of each year and end on the last Sunday in December of
the next year.
"Revolving Credit Advance" - See SECTION 1.1(a)(i).
------------------------
"Revolving Loan" means, at any time, (a) the aggregate amount of Revolving
--------------
Credit Advances outstanding to Borrowers plus (b) the aggregate L/C Obligations
----
incurred on behalf of Borrowers. Unless the context otherwise requires,
references to the outstanding principal balance of the Revolving Loan shall
include the outstanding balance of L/C Obligations.
"Revolving Loan Commitment" means (a) as to any Lender, the aggregate
-------------------------
commitment of such Lender to make Revolving Credit Advances or incur L/C
Obligations as set forth on ANNEX I or in the most recent Assignment Agreement
-------
executed by such Lender and (b) as to all Lenders, the aggregate commitment of
all Lenders to make Revolving Credit Advances or incur L/C Obligations, which
aggregate commitment shall be Seventy Million Dollars ($70,000,000) on the
Closing Date, as such amount may be adjusted, if at all, from time to time in
accordance with the Agreement.
"Revolving Note" - See SECTION 1.1(a)(ii).
--------------
"Schedule of Documents" means the schedule, including all appendices,
---------------------
exhibits or schedules thereto, listing certain documents and information to be
delivered in connection with the Agreement,
A-13
the other Loan Documents and the transactions contemplated thereunder,
substantially in the form attached hereto as ANNEX D.
-------
"Securities Act" means the provisions of the Securities Act of 1933, 15
--------------
U.S.C. Sections 77a et seq.
-------
"Securities Exchange Act" means the provisions of the Securities Exchange
-----------------------
Act of 1934, 15 U.S.C. Sections 78a et seq.
-------
"Security Agreement" means the Pledge and Security Agreement of even date
------------------
herewith entered into by and among Collateral Agent, on behalf of Agents and
Lenders, and each Borrower.
"Stock" means all shares, options, warrants, general or limited partnership
-----
interests, membership interests, or other equivalents (regardless of how
designated) of or in a corporation, partnership, limited liability company, or
equivalent entity whether voting or nonvoting, including common stock, preferred
stock or any other "equity security" (as such term is defined in Rule 3a11-1 of
the General Rules and Regulations promulgated by the Securities and Exchange
Commission under the Securities Exchange Act).
"Stockholder" means, with respect to any Person, each holder of Stock of
-----------
such Person.
"Store" means a retail food service outlet operating under the tradename of
-----
"Boston Market" or "Boston Xxxxxx."
"Store EBITDAL" - See ANNEX F.
------------- --------
"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 BCI, an Operating Subsidiary or a Financed Franchisee).
"Subject Asset Sale" - See SECTION 1.3(b)(iii).
------------------
"Sublease" means any "Sublease" under and as defined in the 1995 Master
--------
Lease or the 1996 Master Lease.
"Subsidiary" means, with respect to any Person, (a) any corporation of
----------
which an aggregate of more than 50% of the outstanding Stock having ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether, at the time, Stock of any other class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time, directly or indirectly, owned
legally or beneficially by such Person or one or more Subsidiaries of such
Person, or with respect to which any such Person has the right to vote or
designate the vote of 50% or more of such Stock whether by proxy, agreement,
operation of law or otherwise, and (b) any partnership or limited liability
company in which such Person or one or more Subsidiaries of such Person shall
have an interest (whether in the form of voting or participation in profits or
capital contribution) of more than 50% or of which any such Person is a general
partner or may exercise the powers of a general partner.
"System EBITDAL" - See ANNEX F.
-------------- --------
"Taxes" means taxes, levies, imposts, deductions, Charges or withholdings,
-----
and all liabilities with respect thereto, excluding taxes imposed on or measured
by the net income of any Agent or Lender by the jurisdictions under the laws of
which such Agent or Lender is organized or by any political subdivision thereof.
"Termination Date" means the date on which (a) the Revolving Loan has been
----------------
indefeasibly repaid in full, (b) all other Obligations under the Agreement and
the other Loan Documents have been completely discharged, (c) L/C Obligations
have been terminated, replaced, guaranteed or cash
A-14
collateralized in accordance with ANNEX B, and (d) Borrowers shall not have any
-------
further right to borrow any monies under the Agreement.
"Third Party Interactives" means all Persons with whom any Borrower
------------------------
exchanges data electronically in the ordinary course of business, including
customers, suppliers, third-party vendors, subcontractors, processors-
converters, shippers and warehousemen.
"Title IV Plan" means a Pension Plan (other than a Multiemployer Plan) that
-------------
is covered by Title IV of ERISA and that any Borrower or ERISA Affiliate
maintains, contributes to or has an obligation to contribute to on behalf of
participants who are or were employed by any of them.
"Trademark License" means rights under any written agreement now owned or
-----------------
hereafter acquired by any Person granting any right to use any Trademark.
"Trademarks" means all of the following now owned or existing or hereafter
----------
adopted or acquired by any Person: (a) all trademarks, trade names, corporate
names, business names, trade styles, service marks, logos, other source or
business identifiers, prints and labels on which any of the foregoing have
appeared or appear, designs and general intangibles of like nature (whether
registered or unregistered), all registrations and recordings thereof, and all
applications in connection therewith, including registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any state or territory thereof, or any
other country or any political subdivision thereof; (b) all reissues, extensions
or renewals thereof; and (c) all goodwill associated with or symbolized by any
of the foregoing.
"Unfunded Pension Liability" means, at any time, the aggregate amount, if
--------------------------
any, of the sum of (a) the amount by which the present value of all accrued
benefits under each Title IV Plan exceeds the fair market value of all assets of
such Title IV Plan allocable to such benefits in accordance with Title IV of
ERISA, all determined as of the most recent valuation date for each such Title
IV Plan using the actuarial assumptions for funding purposes in effect under
such Title IV Plan, and (b) for a period of five years following a transaction
that might reasonably be expected to be covered by Section 4069 of ERISA, the
liabilities (whether or not accrued) that could be avoided by any Borrower or
any ERISA Affiliate as a result of such transaction.
"Welfare Plan" means a Plan described in Section 3(1) of ERISA.
------------
"Year 2000 Corrective Plan" means, with respect to each Borrower, a
-------------------------
comprehensive plan to eliminate all of its Year 2000 Problems at or before the
end of Fiscal Year 1999, including (a) computer code enhancements or revisions,
(b) upgrades or replacements of Year 2000 Date-Sensitive Systems/Components, (c)
test and validation procedures, (d) an implementation time line and budget, and
(e) designation of specific employees who will be responsible for planning,
coordinating and implementing each phase or subpart of the Year 2000 Corrective
Plan.
"Year 2000 Date-Sensitive System/Component" means, as to any Person, any
-----------------------------------------
system software, network software, applications software, data base, computer
file, embedded microchip, firmware or hardware that accepts, creates,
manipulates, sorts, sequences, calculates, compares or outputs calendar-related
data accurately; such systems and components shall include mainframe computers,
file server/client systems, computer workstations, routers, hubs, other network-
related hardware, and other computer-related software, firmware or hardware and
information processing and delivery systems of any kind and telecommunications
systems and other communications processors, security systems, alarms, elevators
and HVAC systems.
"Year 2000 Problems" means, with respect to each Borrower, limitations on
------------------
the capacity or readiness of any such Borrower's Year 2000 Date-Sensitive
Systems/Components to accurately accept, create, manipulate, sort, sequence,
calculate, compare or output calendar date information with respect
A-15
to calendar year 1999 or any subsequent calendar year beginning on or after
January 1, 2000 (including leap year computations), including exchanges of
information among Year 2000 Date-Sensitive Systems/Components of the Borrower
and exchanges of information among the Borrower and Year 2000 Date-Sensitive
Systems/Components of Third Party Interactives and functionality of peripheral
interfaces, firmware and embedded microchips.
Rules of construction with respect to accounting terms used in the
Agreement or any of the other Loan Documents shall be as set forth in ANNEX F.
-------
All other undefined terms contained in any of the Loan Documents shall, unless
the context indicates otherwise, have the meanings provided for by the Code as
in effect in the State of New York to the extent the same are used or defined
therein. Unless otherwise specified, references in the Agreement or any of the
Appendices to a section, subsection or clause refer to such section, subsection
or clause as contained in the Agreement. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to the Agreement as a whole,
including all Annexes, Exhibits and Schedules, as the same may from time to time
be amended, restated, modified or supplemented, and not to any particular
section, subsection or clause contained in the Agreement or any such Annex,
Exhibit or Schedule.
Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, feminine and neuter genders. The words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation"; the
word "or" is not exclusive; references to Persons include their respective
successors and assigns (to the extent and only to the extent permitted by the
Loan Documents) or, in the case of governmental Persons, Persons succeeding to
the relevant functions of such Persons; and all references to statutes and
related regulations shall include any amendments of the same and any successor
statutes and regulations. Whenever any provision in any Loan Document refers to
the knowledge (or an analogous phrase) of any Borrower, such words are intended
to signify that such Borrower has actual knowledge or awareness of a particular
fact or circumstance or that such Borrower.
A-16
ANNEX B (SECTION 1.2)
-----------
TO
CREDIT AGREEMENT
----------------
LETTERS OF CREDIT
-----------------
(a) Issuance. Subject to the terms and conditions of the Agreement,
--------
Administrative Agent and Lenders agree to incur, from time to time prior to the
Commitment Termination Date, upon the request of Borrower Representative on
behalf of the applicable Borrower and for such Borrower's account, L/C
Obligations by causing Letters of Credit to be issued (by a bank or other
legally authorized Person selected by or acceptable to Administrative Agent in
its sole discretion (each, an "L/C Issuer")) for such Borrower's account and
----------
guaranteed by Administrative Agent; provided, that, with respect to any Letter
--------
of Credit as to which the L/C Issuer is a Lender (an "L/C Issuing Lender"), such
------------------
Letter of Credit shall not be guaranteed by Administrative Agent but rather each
Lender shall, subject to the terms and conditions hereinafter set forth,
purchase (or be deemed to have purchased) risk participations in such Letter of
Credit as provided in PARAGRAPH (b)(ii) below. The aggregate amount of all L/C
Obligations shall not at any time exceed the lesser of (i) Ten Million Dollars
($10,000,000), as such amount may be reduced from time to time pursuant to
SECTION 1.3 (the "L/C Sublimit"), and (ii) the Maximum Amount less the aggregate
------------
outstanding principal balance of the Revolving Credit Advances (provided, that,
--------
at the time of, and after taking into account, the incurrence of any L/C
Obligations, Borrowers shall be in compliance with the Availability Limitation.
No such Letter of Credit shall have an expiry date that is more than one year
following the date of issuance thereof, and neither Administrative Agent nor
Lenders shall be under any obligation to incur L/C Obligations in respect of, or
purchase risk participations in, any Letter of Credit having an expiry date that
is later than the Commitment Termination Date.
(b) Revolving Credit Advances Automatic; Participations.
----------------------------------------------------
(i) In the event that Administrative Agent or any L/C Issuing Lender
shall make any payment on or pursuant to any L/C Obligation, such payment
shall then be deemed automatically to constitute a Revolving Credit Advance
to the applicable Borrower under SECTION 1.1(a) regardless of whether a
Default or Event of Default shall have occurred and be continuing and
notwithstanding any Borrower's failure to satisfy the conditions precedent
set forth in SECTION 2, and each Lender shall be obligated to pay its Pro
Rata Share thereof in accordance with the Agreement. The failure of any
Lender to make available to Administrative Agent its Pro Rata Share of any
such Revolving Credit Advance or payment by Administrative Agent or L/C
Issuing Lender, as the case may be, under or in respect of a Letter of
Credit shall not relieve any other Lender of its obligation hereunder to
make available to Administrative Agent its Pro Rata Share thereof, but no
Lender shall be responsible for the failure of any other Lender to make
available such other Lender's Pro Rata Share of any such payment.
(ii) As to any Letter of Credit issued by an L/C Issuing Lender,
immediately upon issuance of any such Letter of Credit, each Lender shall
be deemed to have irrevocably and unconditionally purchased from such L/C
Issuing Lender an undivided interest and participation in such Lender's Pro
Rata Share (based on the Revolving Loan Commitments) of the L/C Obligations
with respect to such Letter of Credit on the date of such issuance.
(iii) If it shall be illegal or unlawful for any reason for Borrower
to incur Revolving Credit Advances as contemplated by PARAGRAPH (b)(i)
above with respect to any Letters of
B-1
Credit, then immediately and without further action whatsoever, each Lender
shall be deemed to have irrevocably and unconditionally purchased from
Administrative Agent an undivided interest and participation equal to such
Lender's Pro Rata Share (based on the Revolving Loan Commitments) of the
L/C Obligations in respect of all Letters of Credit then outstanding (other
than Letters of Credit that are subject to the immediately preceding CLAUSE
(ii)).
(iv) Each Lender shall fund its participation in all payments or
disbursements made under the Letters of Credit in the same manner as
provided in the Agreement with respect to Revolving Credit Advances.
(c) Cash Collateral.
---------------
(i) If Borrowers are required to provide cash collateral for any L/C
Obligations pursuant to the Agreement prior to the Commitment Termination
Date, Borrowers will pay to Collateral Agent, for the ratable benefit of
Agents and Lenders, cash or cash equivalents acceptable to Collateral Agent
("Cash Equivalents") in an amount equal to the L/C Cash Collateral Amount
----------------
for each applicable Letter of Credit. Such funds or Cash Equivalents shall
be held by Collateral Agent in a cash collateral account (the "Cash
----
Collateral Account") maintained at a bank or financial institution
------------------
acceptable to Collateral Agent. The Cash Collateral Account shall be in the
name of the applicable Borrower and shall be pledged to, and subject to the
control of, Collateral Agent, for the ratable benefit of Agents and
Lenders, in a manner satisfactory to Collateral Agent. Each Borrower hereby
pledges and grants to Collateral Agent, on behalf of Agents and Lenders, a
security interest in all such funds and Cash Equivalents held in the Cash
Collateral Account from time to time and all proceeds thereof as security
for the payment of all amounts due in respect of the L/C Obligations and
other Obligations, whether or not then due. The Agreement, including this
ANNEX B, shall constitute a security agreement under applicable law.
-------
(ii) If any L/C Obligations, whether or not then due and payable,
shall for any reason be outstanding on the Commitment Termination Date,
Borrowers shall either (A) provide cash collateral therefor in the manner
described above, (B) cause all such Letters of Credit and guaranties
thereof to be canceled and returned, or (C) deliver a stand-by letter (or
letters) of credit in guarantee of such L/C Obligations, which stand-by
letter (or letters) of credit shall be of like tenor and duration (plus 30
additional days) as, and in an amount equal to, the L/C Cash Collateral
Amount for Letters of Credit to which such outstanding L/C Obligations
relate and shall be issued by a Person, and shall be subject to such terms
and conditions, as are be satisfactory to Collateral Agent in its sole
discretion.
(iii) From time to time after funds are deposited in the Cash
Collateral Account by any Borrower, whether before or after the Commitment
Termination Date, Administrative Agent may request that some or all of such
funds be turned over to it by Collateral Agent, and Administrative Agent
may apply any such funds so turned over to it to the payment of any
amounts, and in such order as Administrative Agent may elect, as shall be
or shall become due and payable by such Borrower to Lenders with respect to
such L/C Obligations of such Borrower and, upon the satisfaction in full of
all L/C Obligations of such Borrower, to any other Obligations of any
Borrower then due and payable.
(iv) Neither Borrower nor any Person claiming on behalf of or through
any Borrower shall have any right to withdraw any of the funds or Cash
Equivalents held in the Cash Collateral Account, except that upon the
termination of all L/C Obligations and the payment of all amounts payable
by Borrowers to Agents and Lenders in respect thereof, any funds remaining
in the Cash Collateral Account shall be applied to other Obligations then
due
B-2
and owing and upon payment in full of such Obligations, any remaining
amount shall be paid to Borrowers or as otherwise required by law.
(d) Fees and Expenses. Borrowers agrees to pay (i) to Administrative
-----------------
Agent, for the ratable benefit of Lenders, as compensation to such Lenders for
L/C Obligations incurred hereunder, (A) all costs and expenses incurred by
Administrative Agent, Collateral Agent or any Lender on account of such L/C
Obligations, and (B) for each month during which any L/C Obligation shall remain
outstanding, a Fee (the "L/C Fee") in an amount equal to two percent (2.0%) per
------- ---
annum multiplied by the maximum amount available from time to time to be drawn
-----
under the applicable Letters of Credit, which Fee shall be paid to
Administrative Agent, for the benefit of Agents and Lenders, in arrears, on the
first day of each month and on the Commitment Termination Date, and (ii) to any
L/C Issuer, on demand, such routine and customary fees (including all per annum
fees), charges and expenses of such L/C Issuer in respect of the issuance,
negotiation, acceptance, amendment, transfer and payment of each Letter of
Credit issued by it or otherwise payable pursuant to the application and related
documentation under which such Letter of Credit is issued.
(e) Request for Incurrence of L/C Obligations. Borrower Representative
-----------------------------------------
shall give Administrative Agent at least one Business Days' prior written notice
requesting the incurrence of any L/C Obligation, specifying the date such L/C
Obligation is to be incurred, identifying the beneficiary and the Borrower to
which such L/C Obligation relates and describing the nature of the transactions
proposed to be supported thereby. The notice shall be accompanied by the form
of the Letter of Credit (which shall have been accepted by the L/C Issuer) to be
guaranteed and, to the extent not previously delivered to Administrative Agent,
copies of all agreements between Borrower and the L/C Issuer pertaining to the
issuance of Letters of Credit. Notwithstanding anything contained herein to the
contrary, Letter of Credit applications by Borrower Representative and approvals
by Administrative Agent and the L/C Issuer may be made and transmitted pursuant
to electronic codes and security measures mutually agreed upon and established
by and among Borrower Representative, Administrative Agent and the L/C Issuer.
(f) Obligation Absolute. The obligation of Borrowers to reimburse
-------------------
Administrative Agent and Lenders for payments made with respect to any L/C
Obligation shall be absolute, unconditional and irrevocable, without necessity
of presentment, demand, protest or other formalities, and the obligations of
each Lender to make payments to Administrative Agent with respect to Letters of
Credit shall be unconditional and irrevocable. Such obligations of Borrowers
and Lenders shall be paid strictly in accordance with the terms hereof under all
circumstances, including the following:
(i) any lack of validity or enforceability of any Letter of Credit
or the Agreement or the other Loan Documents or any other agreement;
(ii) the existence of any claim, setoff, defense or other right that
any Borrower or any of their respective Affiliates or any Lender may at any
time have against a beneficiary or any transferee of any Letter of Credit
(or any Persons or entities for whom any such transferee may be acting),
Administrative Agent, any Lender, or any other Person, whether in
connection with the Agreement, the Letter of Credit, the transactions
contemplated herein or therein or any unrelated transaction (including any
underlying transaction between any Borrower or any of their respective
Affiliates and the beneficiary for which the Letter of Credit was
procured);
(iii) any draft, demand, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
B-3
(iv) payment by Administrative Agent (except as otherwise expressly
provided in PARAGRAPH (g)(ii)(C) below) or any L/C Issuer under any Letter
of Credit or guaranty thereof against presentation of a demand, draft or
certificate or other document that does not comply with the terms of such
Letter of Credit or such guaranty;
(v) any other circumstance or event whatsoever that is similar to
any of the foregoing; or
(vi) the fact that a Default or an Event of Default shall have
occurred and be continuing.
(g) Indemnification; Nature of Lenders' Duties.
------------------------------------------
(i) In addition to amounts payable as elsewhere provided in the
Agreement, Borrowers hereby agree to pay and to protect, indemnify, and
save harmless Administrative Agent and each Lender from and against any and
all claims, demands, liabilities, damages, losses, costs, charges and
expenses (including attorneys' fees and allocated costs of internal
counsel) that Administrative Agent or any Lender may incur or be subject to
as a consequence, direct or indirect, of (A) the issuance of any Letter of
Credit or guaranty thereof, or (B) the failure of Administrative Agent or
any Lender seeking indemnification or of any L/C Issuer to honor a demand
for payment under any Letter of Credit or guaranty thereof as a result of
any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or Governmental Authority, in each case
------- --------
other than to the extent it results from the gross negligence or willful
misconduct of Administrative Agent or such Lender (as finally determined by
a court of competent jurisdiction).
(ii) As between Administrative Agent and any Lender and Borrowers,
Borrowers assume all risks of the acts and omissions of, or misuse of any
Letter of Credit by, beneficiaries of any Letter of Credit. In furtherance
and not in limitation of the foregoing, to the fullest extent permitted by
law, neither Administrative Agent nor any Lender shall be responsible for:
(A) the form, validity, sufficiency, accuracy, genuineness or legal effect
of any document issued by any party in connection with the application for
and issuance of any Letter of Credit, even if it should in fact prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (B) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
that may prove to be invalid or ineffective for any reason; (C) failure of
the beneficiary of any Letter of Credit to comply fully with conditions
required in order to demand payment under such Letter of Credit; provided,
--------
that in the case of any payment by Administrative Agent under any Letter of
Credit or guaranty thereof, Administrative Agent shall be liable to the
extent such payment was made as a result of its gross negligence or willful
misconduct (as finally determined by a court of competent jurisdiction) in
determining that the demand for payment under such Letter of Credit or
guaranty thereof complies on its face with any applicable requirements for
a demand for payment under such Letter of Credit or guaranty thereof; (D)
errors, omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex or otherwise, whether or not
they may be in cipher; (E) errors in interpretation of technical terms; (F)
any loss or delay in the transmission or otherwise of any document required
in order to make a payment under any Letter of Credit or guaranty thereof
or of the proceeds thereof; (G) the credit of the proceeds of any drawing
under any Letter of Credit or guaranty thereof; and (H) any consequences
arising from causes beyond the control of Administrative Agent or any
Lender. None of the above shall affect, impair, or prevent the vesting of
any of Administrative Agent's or any Lender's rights or powers hereunder or
under the Agreement.
B-4
(iii) Nothing contained herein shall be deemed to limit or to expand
any waivers, covenants or indemnities made by Borrowers in favor of any L/C
Issuer in any letter of credit application, reimbursement agreement or
similar document, instrument or agreement between or among Borrowers and
such L/C Issuer.
B-5
ANNEX C (SECTION 1.6)
-----------
TO
CREDIT AGREEMENT
----------------
CASH MANAGEMENT SYSTEM
----------------------
Each Borrower shall maintain the cash management system described
below:
1. Each Borrower shall deposit or cause to be deposited promptly, and
in any event no later than the first Business Day after the date of receipt
thereof, all cash, checks, drafts or other similar items of payment relating to
or constituting Store receipts or payments made in respect of any and all
Collateral into one or more bank accounts in such Borrower's name (each, a
"Borrower Account" and collectively, the "Borrower Accounts") at a bank
---------------- ------------------
identified in SCHEDULE 3.19 as a bank at which such Borrower Accounts are
-------------
maintained (each, a "Relationship Bank").
-----------------
2. Borrower Representative shall designate one of its Borrower
Accounts as its disbursement account (the "Disbursement Account") into which
--------------------
Administrative Agent shall, from time to time, deposit proceeds of Revolving
Credit Advances made to Borrowers pursuant to SECTION 1.1 for use by Borrowers
solely in accordance with the provisions of SECTION 1.4.
3. a. On or before the thirtieth day after the Closing Date (or such
later date as Administrative Agent and Collateral Agent shall consent
to in writing), with respect to all Borrower Accounts that are not
subject to Existing Collection Account Agreements (but subject to
PARAGRAPH 3(c) below), the applicable Borrower and Relationship Bank
shall have executed and delivered to Collateral Agent a Collection
Account Agreement.
b. So long as no Default or Event of Default shall have occurred
and be continuing, Borrowers may amend SCHEDULE 3.19 to add or
-------------
replace a Borrower Account or to designate a different Disbursement
Account; provided, that (i) Collateral Agent shall have consented in
--------
writing in advance to the opening of such account with the relevant
bank and (ii) prior to the time of the opening of any Borrower
Account, the applicable Borrower and such bank shall have executed and
delivered to Collateral Agent a Collection Account Agreement.
c. Notwithstanding the foregoing, Borrowers shall be permitted to
maintain bank accounts with banks that are not subject to Collection
Account Agreements so long as (i) the balances in such bank accounts
are deposited not less frequently than once per week into one of the
Borrower Accounts and (ii) the aggregate balance in all such bank
accounts shall not exceed $350,000 at any time.
4. During the period (the "Activation Period") commencing one Business
-----------------
Day after a Relationship Bank's receipt of an Activation Notice (as defined
below) from BofA, acting either in its capacity as (a) Collateral Agent (i) for
the benefit and at the joint request of Agents or (ii) for the benefit and at
the request of Requisite Lenders, or (b) Common Collateral Agent for the benefit
and at the request of Agents or Requisite Lenders, as applicable, and ending
upon the earlier of the termination of the applicable Collection Account
Agreement pursuant to its terms and the date on which BofA, acting in any of the
capacities described in this PARAGRAPH 4, notifies the relevant Relationship
Bank in writing that such Activation Period
C-1
has ended, the relevant Relationship Bank shall forward immediately all amounts
in each Borrower Account at such Relationship Bank to (1) with respect to
Borrower Accounts subject to an Existing Collection Account Agreement, the bank
account of BofA designated therein (the "Loan Agent Account") and (2) with
------------------
respect to all other Borrower Accounts subject to a Collection Account
Agreement, the Control Account, and shall commence the process of daily sweeps
from such Borrower Accounts into the Loan Agent Account or Control Account, as
applicable (and the relevant Borrower shall not, and shall not cause or permit
any Affiliate thereof to, accumulate or maintain cash in any of such Borrower's
Borrower Accounts). "Activation Notice" means a written notice to a Relationship
-----------------
Bank that may be given at any time at which an Event of Default shall have
occurred and be continuing, which, with respect to all Borrower Accounts subject
to an Existing Collection Account Agreement, shall be in the form annexed to
such Existing Collection Account Agreement, and with respect to all other
Borrower Accounts, shall be in the form of EXHIBIT C-2. All payments
-----------
received by Administrative Agent or Collateral Agent at any time during the
Activation Period and all proceeds of other Collateral received by the
Administrative Agent or Collateral Agent, whether through payment or otherwise,
will be the sole property of the Administrative Agent or Collateral Agent, as
the case may be, for the ratable benefit of Agents and Lenders, and will be
deemed received by the Administrative Agent or Collateral Agent, as the case may
be, for application to the Obligations pursuant to the terms of the Agreement.
5. The Borrower Accounts and Disbursement Accounts shall be cash
collateral accounts, with all cash, checks and other similar items of payment in
such accounts securing payment of the Revolving Loan and all other Obligations,
and in which each Borrower shall have granted a Lien to Collateral Agent, for
the ratable benefit of Agents and Lenders, pursuant to the Security Agreement.
6. All amounts deposited in the Control Account shall be deemed
received by Administrative Agent in accordance with SECTION 1.8 and shall be
applied (and allocated) by Administrative Agent in accordance with SECTION 1.9.
In no event shall any amount be so applied unless and until such amount shall
have been credited in immediately available funds to the Control Account.
7. Each Borrower shall and shall cause its Affiliates, officers,
employees, agents, directors or other Persons acting for or in concert with such
Borrower (each a "Related Person") to (a) hold in trust for Collateral Agent,
--------------
for the benefit of Agents and Lenders, all checks, cash and other items of
payment received by such Borrower or any such Related Person, and (b) upon
receipt by such Borrower or any such Related Person of any checks, cash or other
items of payment, immediately deposit the same into a Borrower Account of such
Borrower (subject to PARAGRAPH 3(C) above). Each Borrower shall deposit all
proceeds of the sale or other disposition of any Collateral directly into a
Borrower Account or (in the case of any Borrower other than BCI) of the Borrower
that is such Borrower's corporate parent.
C-2
ANNEX D (SECTION 2.1(a))
-------------
TO
CREDIT AGREEMENT
----------------
SCHEDULE OF DOCUMENTS
---------------------
[See attached]
---
D-1
ANNEX E (SECTION 4.1(a))
-------------
TO
CREDIT AGREEMENT
----------------
FINANCIAL STATEMENTS AND BUDGET; REPORTING
------------------------------------------
Borrowers shall deliver or cause to be delivered to Agents the following:
(a) Retail Period Financial Statements. As soon as available and in any
----------------------------------
event within 20 days after the end of each Retail Period of BCI (or in the case
of the last Retail Period of each Fiscal Quarter of BCI, within 45 days after
the end of such Retail Period), financial information regarding Borrowers
certified by a Reporting Officer of BCI (in his or her capacity as such, without
personal liability therefor) and consisting of: (i) consolidated balance sheets
of Borrowers as at the end of such Retail Period, (ii) consolidated statements
of operations of Borrowers for the period commencing at the end of the previous
Fiscal Year and ending with the end of such Retail Period and for the period
commencing at the end of the previous Retail Period and ending with the end of
such Retail Period, and (iii) consolidated statements of cash flows of Borrowers
for the portion of the Fiscal Year ended with the last day of such Retail Period
and for the period commencing at the end of the previous Retail Period and
ending with the end of such Retail Period, all in reasonable detail and, for
statements of operations, stating in comparative form the respective budget
figures for the corresponding period, and a report of sales by Retail Period by
unit in form reasonably acceptable to Administrative Agent.
(b) Quarterly Financial Statements. As soon as available and in any event
------------------------------
within 45 days after the end of each of the first three Fiscal Quarters of each
Fiscal Year of BCI, (i) consolidated balance sheets of Borrowers as at the end
of such Fiscal Quarter, (ii) consolidated statements of operations of Borrowers
for the period commencing at the end of the previous Fiscal Year and ending with
the end of such Fiscal Quarter, (iii) consolidated statements of cash flows of
Borrowers for the portion of the Fiscal Year ended with the last day of such
Fiscal Quarter, and (iv) combined statements of operations of Borrowers, all in
reasonable detail and stating in comparative form the respective consolidated or
combined figures for the corresponding date and period in the previous Fiscal
Year and, in the case of the consolidated statements, certified by a Reporting
Officer (in his or her capacity as such, without personal liability therefor) as
being prepared consistent with BCI's audited annual financial statements
(subject (a) to year-end adjustments and changes in accounting policies
permitted by GAAP which have been disclosed in writing to Agents, and (b) to
adjustments necessary to factor out the consolidated results of operations and
financial position of ENBC from such Financial Statements).
(c) Annual Audited Financial. Within 90 days after the end of each Fiscal
------------------------
Year, audited Financial Statements for Borrowers on a consolidated basis,
consisting of balance sheets and statements of income and retained earnings and
cash flows, setting forth in comparative form in each case the figures for the
previous Fiscal Year, which Financial Statements shall be prepared in accordance
with GAAP and certified without qualification (except for qualifications as may
be reasonably acceptable to Requisite Lenders, it being agreed that a "going
concern" qualification shall be acceptable) by an independent certified public
accounting firm of national standing or otherwise acceptable to Agents and, in
the case of the consolidated statements, certified by a Reporting Officer (in
his or her capacity as such, without personal liability therefor) as being
prepared consistent with BCI's audited annual financial statements (subject to
adjustments necessary to factor out the consolidated results of operations and
financial position of ENBC from such Financial Statements). Such Financial
Statements shall be accompanied by (i) a statement prepared in reasonable detail
showing the calculations used in determining compliance with the Financial
Covenants, (ii) a report from such accounting firm to the
E-1
effect that, in connection with their audit examination, nothing has come to
their attention to cause them to believe that a Default or Event of Default has
occurred (or specifying those Defaults and Events of Default that they became
aware of), it being understood that such audit examination extended only to
accounting matters and that no special investigation was made with respect to
the existence of Defaults or Events of Default, (iii) a letter addressed to
Administrative Agent, on behalf of itself, Collateral Agent and Lenders, in form
and substance reasonably satisfactory to Administrative Agent and subject to
standard qualifications adopted by nationally recognized accounting firms,
signed by such accounting firm acknowledging that Agents and Lenders are
entitled to rely upon such accounting firm's certification of such audited
Financial Statements, (iv) the annual letters to such accountants in connection
with their audit examination detailing contingent liabilities and material
litigation matters, and (v) the certification of the Chief Executive Officer or
Chief Financial Officer of BCI (in his or her capacity as such, without personal
liability therefor) that all such Financial Statements present fairly in
accordance with GAAP the financial position, results of operations and
statements of cash flows of Borrowers on a consolidated basis, as at the end of
such Fiscal Year and for the period then ended, and that there was no Default or
Event of Default in existence as of such time or, if a Default or Event of
Default shall have occurred and be continuing, describing the nature thereof and
all efforts undertaken to cure such Default or Event of Default.
(d) Compliance Certificate; Budget Reconciliation; Subject Asset Sales.
------------------------------------------------------------------
The Financial Statements furnished by Borrowers:
i) pursuant to the preceding CLAUSES (a)-(c) shall be accompanied by
a duly completed compliance certificate in the form of EXHIBIT E (a
---------
"Compliance Certificate") signed by a Reporting Officer (in his or her
----------------------
capacity as such, and without personal liability therefor);
ii) pursuant to the preceding CLAUSES (a) or (b) shall be accompanied
by 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 Agents, signed by a Reporting Officer (in his or
her capacity as such, and without personal liability therefor); and
iii) pursuant to the preceding CLAUSES (b) or (c) shall be accompanied
by a report setting forth in reasonable detail the Net Cash Proceeds of all
Subject Asset Sales during the Fiscal Quarter that is the subject of the
relevant Financial Statements (or during the fourth Fiscal Quarter of the
relevant Fiscal Year if the relevant Financial Statements are the annual
statements), and calculating the amount, if any, payable to Administrative
Agent pursuant to SECTION 1.3(b)(iii) (net of the $500,000 basket provided
for in the introductory provision of SECTION 1.3(b)(iii) (to the extent
received during the relevant Fiscal Quarter) and any amounts paid pursuant
to SECTION 1.3(b)(iii)(A)), in form and substance and containing such
supporting information as is reasonably acceptable to Agents, signed by a
Reporting Officer (in his or her capacity as such, and without personal
liability therefor).
(e) Management Letters. Within five Business Days after receipt thereof
------------------
by any Borrower, copies of all management letters, exception reports or similar
letters or reports received by such Borrower from its independent certified
public accountants.
(f) Operating Plan; Updated Budget.
------------------------------
(i) As soon as available, but not later than 30 days after the end of
each Fiscal Year, an annual operating plan for Borrowers, approved by the
Board of Directors of BCI, for the following year, which will (A) include a
statement of all of the material assumptions on which such plan is based,
(B) include monthly balance sheets and a monthly budget for the following
Fiscal Year and (C) integrate sales, gross profits, operating expenses,
operating profit, and cash flow projections, all prepared on the same basis
and in similar detail as that on
E-2
which operating results are reported (and in the case of cash flow
projections, representing management's good faith estimates of future
financial performance based on historical performance), and including plans
for personnel, Capital Expenditures and facilities.
(ii) No later than 60 days before the end of Fiscal Year 1999,
Borrowers shall deliver to Agents a revised Budget which reflects
projections (on a Retail Period by Retail Period basis) for all subsequent
Retail Periods already covered by the Budget and for Retail Periods 1-4 of
Fiscal Year 2000.
(g) Weekly Store Revenue; Other Weekly Reporting. 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 BCI, the Operating
Subsidiaries and each Financed Franchisee (to the extent provided to BCI) on a
region by region basis, in form and substance and containing such supporting
information as is reasonably acceptable to the Agents (which report may be
delivered by electronic mail), signed or otherwise acknowledged by a Reporting
Office (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.
If, during the relevant week for which the foregoing reports are to be
delivered, the ENBC Proceeds Cash Collateral Amount was greater than zero,
Borrower Representative shall include with such reports (or deliver concurrently
therewith) an accounting and reconciliation of the ENBC Proceeds Cash Collateral
Amount for such week; and
(h) Default Notices. As soon as practicable, and in any event within three
---------------
Business Days after an executive officer of any Borrower has actual knowledge of
the existence of any Default, Event of Default or other event that has had a
Material Adverse Effect, telephonic or telecopied notice specifying the nature
of such Default or Event of Default or other event, including the anticipated
effect thereof and the action which is proposed to be taken by Borrower with
respect thereto, which notice, if given telephonically, shall be promptly
confirmed in writing on the next Business Day.
(i) SEC Filings and Press Releases. Promptly upon their becoming
------------------------------
available, copies of: (i) all Financial Statements, reports, notices and proxy
statements made publicly available by any Borrower to its security holders; (ii)
all regular and periodic reports and all registration statements and
prospectuses, if any, filed by any Borrower with any securities exchange or with
the Securities and Exchange Commission or any governmental or private regulatory
authority; and (iii) all press releases and other statements made available by
any Borrower to the public concerning material adverse changes or developments
in the business of any such Person.
(j) The Chapter 11 Cases. As soon as practicable, copies of all pleadings,
--------------------
motions, applications, judicial information, financial information and other
documents filed by or on behalf of any Borrower with the Bankruptcy Court or the
United States Trustee in any Chapter 11 Case, or distributed by or on behalf of
any Borrower to any official committee appointed in any Chapter 11 Case (except
to the extent any such information is subject to a confidentiality agreement
between such Borrower and any such committee).
(k) Supplemental Schedules. Any supplemental disclosures required by
----------------------
SECTION 5.6.
(l) Litigation. Promptly upon learning thereof, notice of any Litigation
----------
commenced or threatened against any Borrower or Subsidiary thereof which, in any
one case or in the aggregate, are material to Borrowers taken as a whole, or
adversely affect the ability of any Borrower to perform its obligations under
the Loan Documents.
(m) Insurance Notices. Promptly upon learning thereof, disclosure of
-----------------
losses or casualties required by SECTION 5.4.
E-3
(n) ERISA reports. Promptly after the filing or receiving thereof, copies
-------------
of all substantive reports, including annual reports, with respect to each Plan
for which any Borrower is the plan sponsor and material notices which any
Borrower files with or receives from the PBGC or the U.S. Department of Labor
under ERISA; and as soon as possible and in any event within 30 days after any
Borrower knows or has reason to know that the PBGC or any Borrower has
instituted or will institute proceedings under Title IV of ERISA to terminate
any Plan, a certificate of a Reporting Officer (in his or her capacity as such
and with no personal liability therefor) setting forth details as to such Plan
termination and the action such Borrower proposes to take with respect thereto.
(o) Lease Amendments. As soon as practicable, but no later than thirty
----------------
days of the adoption thereof, copies of all material amendments to real estate
leases.
(p) Financed Franchisee Financials. As soon as available and in any event
------------------------------
within forty-five (45) days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of each Financed Franchisee, and as soon as
available and in any event within ninety (90) days after the end of each Fiscal
Year of each Financed Franchisee, (i) balance sheets of each such Financed
Franchisee as at the end of such Fiscal Quarter or Fiscal Year, statements of
operations of each such Financed Franchisee for the period commencing at the end
of the previous Fiscal Year and ending with the end of such Fiscal Quarter or
Fiscal Year, and statements of cash flows of each such Financed Franchisee for
the portion of the Fiscal Year ended with the last day of such Fiscal Quarter or
Fiscal Year, all in reasonable detail and stating in comparative form the
respective figures for the corresponding date and period in the previous Fiscal
Year (provided, that Borrowers shall only be obligated to deliver the foregoing
--------
financial statements to the extent actually received by Borrowers, it being
understood that Borrowers will use commercially reasonable efforts to obtain
such financial statements from the Financed Franchisees), and (ii) with respect
to Platinum, (A) so long as BCI is providing accounting services for Platinum, a
certificate in favor of Administrative Agent and Lenders of a Reporting Officer
(in his or her capacity as such, without personal liability therefor) that such
financial statements are, to the best of such officer's knowledge, prepared in
accordance with GAAP, or (B) otherwise, a certificate in favor of Administrative
Agent and Lenders by the chief executive officer, the chief financial officer or
treasurer of Platinum as accurate, subject to changes resulting from normal,
recurring year-end adjustments (provided, that Borrowers shall only be obligated
--------
to deliver the certificate described in this CLAUSE (B) to the extent actually
received by Borrowers, it being understood that Borrowers will use commercially
reasonable efforts to obtain such certificate from the Financed Franchisees).
(q) Other Borrower Documents. To any Agent or Lender, such other financial
------------------------
and other information respecting any Borrower's business or financial condition
as such Agent or Lender shall, from time to time, reasonably request. Without
limiting the foregoing, BCI shall cooperate with Agents and their financial
advisors and provide access to information sufficient so that such financial
advisors can prepare a reconciliation of Borrowers' actual performance to that
projected in the short-term treasury (cash-flow) model prepared by BCI and
previously delivered to Agents (as the same may be updated from time to time).
E-4
ANNEX F (SECTION 6.10)
------------
TO
CREDIT AGREEMENT
----------------
FINANCIAL COVENANTS
-------------------
Borrowers shall not breach or fail to comply with any of the following
financial covenants, each of which shall be calculated in accordance with GAAP
consistently applied:
1. Minimum System EBITDAL. Borrowers shall maintain System EBITDAL
----------------------
during each "Rolling Period" (as defined below), as measured as of the last day
of such Rolling Period, that is at least the amount set forth for such Rolling
Period in the table below.
------------------------------------------------------------------------------------
MINIMUM SYSTEM EBITDAL FOR SUCH
ROLLING PERIOD ENDING WITH: ROLLING PERIOD
------------------------------------------------------------------------------------
Retail Period 11 ending ($12,400,000)
November 1, 1998
------------------------------------------------------------------------------------
Retail Period 12 ending November ($7,900,000)
29, 1998
------------------------------------------------------------------------------------
Retail Period 13 ending December ($3,400,000)
27, 1998
------------------------------------------------------------------------------------
Retail Period 1 ending January 24, ($500,000)
1999
------------------------------------------------------------------------------------
Retail Period 2 ending $3,900,000
February 21, 1999
------------------------------------------------------------------------------------
Retail Period 3 ending March 21, $7,700,000
1999
------------------------------------------------------------------------------------
Retail Period 4 ending April 18, $11,500,000
1999
------------------------------------------------------------------------------------
Retail Period 5 ending May 16, $15,500,000
1999
------------------------------------------------------------------------------------
Retail Period 6 ending June 13, $19,000,000
1999
------------------------------------------------------------------------------------
Retail Period 7 ending July 11, $21,500,000
1999
------------------------------------------------------------------------------------
Retail Period 8 ending August 8, $30,100,000
1999
------------------------------------------------------------------------------------
Retail Period 9 ending $31,300,000
September 5, 1999
F-1
------------------------------------------------------------------------------------
MINIMUM SYSTEM EBITDAL FOR SUCH
ROLLING PERIOD ENDING WITH: ROLLING PERIOD
------------------------------------------------------------------------------------
Retail Period 10 ending October 3, $40,200,000
1999
------------------------------------------------------------------------------------
Retail Period 11 ending October $44,500,000
31, 1999
------------------------------------------------------------------------------------
Retail Period 12 ending November $45,000,000
28, 1999 and all subsequent Retail
Periods
------------------------------------------------------------------------------------
Borrowers shall, on and after the Closing Date, continue to calculate System
EBITDAL on a basis consistent with their calculations prior to the Closing Date.
2. Definitions. As used in the Agreement, the following terms shall have
-----------
the following meanings:
"Combined Overhead" means, with respect to any specified period, the sum of
-----------------
field operating overhead plus field development overhead plus support center
---- ----
overhead (exclusive of transaction costs, severance costs, Store closing costs
and one-time non-recurring charges), in each case of BCI, the Operating
Subsidiaries, Platinum, and (with respect to Retail Periods 8-10 of Fiscal Year
1998 only) the Financed Franchisees other than Platinum, in each case for such
period, minus fees paid to BCI by ENBC in connection with the performance by BCI
-----
of accounting, administrative, financing, real estate, computer and
communication services during such period.
"Rolling Period" means (i) for each Retail Period commencing with Retail
--------------
Period 11 in 1998 through and including Retail Period 7 in 1999, the period from
July 13, 1998 through the last day of such Retail Period, and (ii) for each
subsequent Retail Period, the period of thirteen consecutive Retail Periods that
ends on the last day of such Retail Period.
"Store EBITDAL" means, with respect to any specified period, (1) the
-------------
combined net revenue (i.e. gross revenue net of taxes, customer coupons and
----
discounts) generated by all Stores operated by BCI, the Operating Subsidiaries,
Platinum, and (with respect to Retail Periods 8-10 of Fiscal Year 1998 only) the
Financed Franchisees other than Platinum, minus (2) (a) food and paper costs
-----
plus (b) Store employee wages, salaries and benefit payments plus (c) other
---- ----
Store operating and occupancy costs plus (d) the amount of required media
----
contributions at the Store level, in each case, of BCI, the Operating
Subsidiaries, Platinum, and (with respect to Retail Periods 8-10 of Fiscal Year
1998 only) the Financed Franchisees other than Platinum, in each case for such
period.
"System EBITDAL" means, with respect to any specified period, the Store
--------------
EBITDAL for such period minus the Combined Overhead for such period.
-----
3. Miscellaneous. Unless otherwise specifically provided herein, any
-------------
accounting term used in the Agreement shall have the meaning customarily given
such term in accordance with GAAP, and all financial computations hereunder
shall be computed in accordance with GAAP consistently applied. That certain
items or computations are explicitly modified by the phrase "in accordance with
GAAP" shall in no way be construed to limit the foregoing. If any "Accounting
Change" (as defined below) occurs and such change result in a change in the
calculation of the Financial Covenants, standards or terms used in the Agreement
or any other Loan Document, then Borrower Representative,
F-2
Administrative Agent and Lenders agree to enter into negotiations in order to
amend such provisions of the Agreement so as to equitably reflect such
Accounting Change with the desired result that the criteria for evaluating
Borrowers' financial condition shall be the same after such Accounting Changes
as if such Accounting Changes had not been made; provided, that the agreement of
--------
Requisite Lenders to any required amendments of such provisions shall be
sufficient to bind all Lenders. "Accounting Change" means changes in accounting
-----------------
principles permitted under GAAP and concurred in by Borrower's certified public
accountants. If Borrowers and Requisite Lenders agree upon the required
amendments, then after appropriate amendments have been executed and the
underlying Accounting Change with respect thereto has been implemented, any
reference to GAAP contained in the Agreement or in any other Loan Document
shall, only to the extent of such Accounting Change, refer to GAAP consistently
applied after giving effect to the implementation of such Accounting Change. If
Administrative Agent, Borrower and Requisite Lenders cannot agree upon the
required amendments within 30 days following the date of implementation of any
Accounting Change, then all Financial Statements delivered and all calculations
of Financial Covenants and other standards and terms in accordance with the
Agreement and the other Loan Documents shall be prepared, delivered and made
without regard to the underlying Accounting Change.
F-3
ANNEX G (SECTION 1.1(d))
--------------
TO
CREDIT AGREEMENT
----------------
LENDERS' WIRE TRANSFER INFORMATION
----------------------------------
GE Capital: Bank of America:
----------- ----------------
General Electric Capital Corporation: Bank of America
------------------------------------- Chicago, IL
Account No. 0394286455
General Electric Capital Corporation ABA #000-000-000
c/o Bankers Trust Company Attn: Xxxxxxx Xxxxx
One Bankers Trust Plaza Reference: Commercial Loan-Boston
Xxx Xxxx, XX 00000 Chicken/DAP loan unit #33243
Account No. 000-00-000,
ABA No. 021 001 033
Reference: Boston Chicken-X. XxXxxxxxx.
Sanwa Business Credit Corporation: LaSalle National Bank:
---------------------------------- ----------------------
Sanwa Business Credit Corporation LaSalle National Bank
X/X Xxxxxx Xxxxx & Xxxxxxx Xxxxxxx, XX
111 X. Xxxxxx ABA # 000000000
Xxxxxxx, XX 00000 Account: Commercial Loan Clearing
SBCC ACCT # 000-000-0 For further credit to: Boston Chicken
ABA # 000-000-000 Notify: Xxxxxxxx Xxxxxxxx
Attn: Xxxxxxxx Xxxxxxxx (000) 000-0000
Hour L.L.C.:
------------
Chase Manhattan Bank
New York, NY
ABA #000-000-000
Acct Name: HOUR L.L.C.
Acct #: 066-210674
G-1
ANNEX H (SECTION 11.10)
-------------
TO
CREDIT AGREEMENT
----------------
NOTICE ADDRESSES
----------------
(A) If to Administrative Agent or GE (B) If to Administrative Agent (SOLELY
Capital (OTHER THAN FOR FOR PURPOSES OF SENDING NOTICES OF
PURPOSES OF SENDING REVOLVING CREDIT ADVANCES,
NOTICES OF REVOLVING NOTICES OF VOLUNTARY PREPAYMENT/REDUCTION,
CREDIT ADVANCES, NOTICES AND NOTICES OF MANDATORY PREPAYMENT), at:
OF VOLUNTARY
PREPAYMENT/REDUCTION, AND
NOTICES OF MANDATORY
PREPAYMENT), at
General Electric Capital Corporation
GE Capital Structured Finance, Inc. 000 Xxxx Xxxxx Xxxx
000 Xxxx Xxxxx Xxxx Xxxxxxxx, XX 00000
Building B, 1st Floor Attn: Xxxx Melanokos, Portfolio Analyst
Xxxxxxxx, Xxxxxxxxxxx 00000 Facsimile: 203/316-7817
Attn: Xxxxxx X. Xxxxx Telephone: 203/000-0000
Facsimile: 203/000-0000
Telephone: 203/000-0000 and
and General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxx Xxxx, Esq. Bldg. B, 1st Floor
GE Capital Structured Finance, Inc. Xxxxxxxx, XX 00000
000 Xxxx Xxxxx Xxxx Attn: Xxxxx XxXxxxxxx, Transaction Coordinator
Building B, 1st Floor Facsimile: 203/316-7989
Xxxxxxxx, Xxxxxxxxxxx 00000 Telephone: 203/000-0000
Facsimile: 203/000-0000
Telephone: 203/000-0000 (C) If to Collateral Agent, at
with a copy to: Bank of America National Trust and Savings Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx Xxxxxxx, Xxxxxxxx 00000
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000 Xxxxxxxxx: Xxxxx X. Xxxxxxxx
Xxx Xxxxxxx, XX 00000 Facsimile:(000) 000-0000
Attn: N. Xxxxxx Xxxx and Xxxx X. XxXxxxx Telephone:(000) 000-0000
Facsimile: 310/788-3777 and
Telephone: 310/000-0000 Xxxx X. Xxxxxxx
Facsimile:(000) 000-0000
Telephone:(000) 000-0000
H-1
(D) If to Borrowers or any of them, to
Borrower Representative at
Boston Chicken, Inc.
14123 Denver Xxxx Xxxxxxx
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxx, Chief Financial
Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With copies to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxxxxxx Xxxxx
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxx, Esq.
Facsimile: 210/000-0000
Telephone: 210/000-0000
(E) If to any Lenders other than Agents, to
Sanwa Business Credit Corporation LaSalle National Bank
One South Xxxxxx Drive 000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxx Attn: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Hour L.L.C.
0 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
H-2
ANNEX I (ANNEX A - "COMMITMENTS")
-------
TO
CREDIT AGREEMENT
----------------
COMMITMENTS AS OF THE CLOSING DATE
----------------------------------
---------------------------------------------------------------------------------
REVOLVING LOAN COMMITMENT
LENDER AMOUNT
---------------------------------------------------------------------------------
GE Capital $42,000,000
---------------------------------------------------------------------------------
Bank of America NT&SA $10,000,000
---------------------------------------------------------------------------------
Sanwa Business Credit Corporation $ 8,000,000
---------------------------------------------------------------------------------
LaSalle National Bank $ 5,000,000
---------------------------------------------------------------------------------
Hour L.L.C. $ 5,000,000
---------------------------------------------------------------------------------
I-1
ANNEX J
TO CREDIT AGREEMENT
-------------------
AVAILABILITY AMOUNTS
--------------------
As used in the Agreement, "Availability Amount" means, with respect to any
-------------------
Retail Period, the amount shown for such Retail Period in the following table:
-----------------------------------------------------------------
RETAIL PERIOD AVAILABILITY AMOUNT
-----------------------------------------------------------------
No. 11, 1998 $6,900,000
-----------------------------------------------------------------
No. 12, 1998 $3,000,000
-----------------------------------------------------------------
No. 13, 1998 $8,100,000
-----------------------------------------------------------------
No. 1, 1999 $3,000,000
-----------------------------------------------------------------
No. 2, 1999 $6,700,000
-----------------------------------------------------------------
No. 3, 1999 $4,800,000
-----------------------------------------------------------------
No. 4, 1999 $3,000,000
-----------------------------------------------------------------
No. 5, 1999 $5,300,000
-----------------------------------------------------------------
No. 6, 1999 $3,000,000
-----------------------------------------------------------------
No. 7, 1999 $5,300,000
-----------------------------------------------------------------
No. 8, 1999 $4,600,000
-----------------------------------------------------------------
No. 9, 1999 $8,500,000
-----------------------------------------------------------------
No. 10, 1999 $10,300,000
-----------------------------------------------------------------
No. 11, 1999 $3,200,000
-----------------------------------------------------------------
No. 12, 1999 $6,100,000
-----------------------------------------------------------------
No. 13, 1999 $4,800,000
-----------------------------------------------------------------
Nos.1-3, 2000 to be determined based on
amended Budget delivered
pursuant to PARAGRAPH (f)(II)
of ANNEX E
-----------------------------------------------------------------
J-1
ANNEX K
TO
CREDIT AGREEMENT
----------------
CHAPTER 11 CASE NUMBERS
-----------------------
---------------------------------------------------------------------------------------
BORROWER CHAPTER 11 CASE NUMBER
---------------------------------------------------------------------------------------
Boston Chicken, Inc. 98-12548-PHX-CGC
---------------------------------------------------------------------------------------
BC Real Estate Investments, Inc. 98-12564-PHX-CGC
---------------------------------------------------------------------------------------
BCI Acquisition Sub, L.L.C. 98-12569-PHX-CGC
---------------------------------------------------------------------------------------
Progressive Food Concepts, Inc. 98-12566-PHX-CGC
---------------------------------------------------------------------------------------
BCI Mayfair, Inc. 98-12565-PHX-CGC
---------------------------------------------------------------------------------------
BCI R&A, Inc. 98-12567-PHX-CGC
---------------------------------------------------------------------------------------
BCI Massachusetts, Inc. 98-12562-PHX-CGC
---------------------------------------------------------------------------------------
BCI West, Inc. 98-12568-PHX-CGC
---------------------------------------------------------------------------------------
BCI Southwest, Inc. 98-12563-PHX-CGC
---------------------------------------------------------------------------------------
Buffalo P&L Food Services, Inc. 98-12570-PHX-CGC
---------------------------------------------------------------------------------------
Mid-Atlantic Restaurant Systems, Inc. 98-12561-PHX-CGC
---------------------------------------------------------------------------------------
Mayfair Partners, L.P. 98-12549-PHX-CGC
---------------------------------------------------------------------------------------
BC Great Lakes, L.L.C. 98-12550-PHX-CGC
---------------------------------------------------------------------------------------
BC New York, L.L.C. 98-12558-PHX-CGC
---------------------------------------------------------------------------------------
BC GoldenGate, L.L.C. 98-12551-PHX-CGC
---------------------------------------------------------------------------------------
BC Superior, L.L.C. 98-12554-PHX-CGC
---------------------------------------------------------------------------------------
BC Heartland, L.L.C. 98-12555-PHX-CGC
---------------------------------------------------------------------------------------
BC Tri-States, L.L.C. 98-12556-PHX-CGC
---------------------------------------------------------------------------------------
Finest Foodservice, L.L.C. 98-12557-PHX-CGC
---------------------------------------------------------------------------------------
P & L Food Services, L.L.C. 98-12560-PHX-CGC
---------------------------------------------------------------------------------------
R&A Food Services, L.P. 98-12559-PHX-CGC
---------------------------------------------------------------------------------------
BC Boston, L.P. 98-12553-PHX-CGC
---------------------------------------------------------------------------------------
BCE West, L.P. 98-12547-PHX-CGC
---------------------------------------------------------------------------------------
B.C.B.M. Southwest, L.P. 98-12552-PHX-CGC
---------------------------------------------------------------------------------------
K-1