<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Act of 1934
Date of Report (Date of earliest event reported): February 24, 1999
BOSTON CHICKEN, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in this charter)
Delaware 0-22802 36-3904053
- --------------------------------------------------------------------------------
(State or other (Commission (IRS Employer
jurisdiction of File No.) Identification No.)
incorporation)
14123 Denver West Parkway, P.O. Box 4086, Golden, Colorado 80401-4086
- --------------------------------------------------------------------------------
(Address of principal executive offices)
(303) 278-9500
- --------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
Not applicable
- --------------------------------------------------------------------------------
(Former name or former address, if changes since last report)
<PAGE>
Item 5. Other Events.
The Company is party to a debtor-in-possession credit facility entered
into on October 5, 1998, providing for up to $70 million (the "DIP Facility"),
which was approved by the U.S. Bankruptcy Court for the District of Arizona in
Phoenix, the court having jurisdiction over the Company's reorganization under
Chapter 11 proceedings. The terms of the DIP Facility require the Company to
maintain minimum system-wide earnings before interest, taxes, depreciation,
amortization and certain lease payments, as defined ("EBITDAL") on a rolling
period basis, measured as of the end of each of the Company's four-week retail
periods. On February 24, 1999, the Bankruptcy Court approved an amendment to the
DIP Facility between the Company and the DIP Facility lenders that, among other
things, lowers the minimum EBITDAL measure for the Company's first through sixth
retail periods ending June 13, 1999 to reflect the Company's revised financial
projections. After that date, the minimum system-wide EBITDAL measures will
revert to measures based on those originally provided in the DIP Facility, as
adjusted for the revised performance measures in retail periods one through six.
In addition, interest payments on certain of the Company's senior secured credit
facilities are deferred through June 13, 1999; however, the amount of
availability under the DIP Facility will be reduced by the aggregate amount of
interest payments deferred. The amount of funds available per retail period
under the DIP Facility also was revised to reflect all of these changes.
There can be no assurance that the Company will be able to comply with
the covenants related to the DIP Facility or that there will be borrowing
availability under the DIP Facility at all times when necessary. If the Company
is unable to comply with the DIP Facility covenants, upon action of the
requisite number of DIP Facility lenders, all outstanding principal and interest
under the DIP Facility could be accelerated and become immediately due and
payable.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
The exhibits to this report are listed in the Exhibit Index set
forth elsewhere in this Report.
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated: February 26, 1999
BOSTON CHICKEN, INC.
By: /s/Lawrence E. White
--------------------------------
Lawrence E. White
Executive Vice President and
Chief Financial Officer
<PAGE>
BOSTON CHICKEN, INC.
EXHIBIT INDEX
-------------
10.1 Amendment No. 1 dated February 24, 1999 to Debtor-in-Possession Credit
Agreement dated as of October 5, 1998 among the Company and the other
borrowers named therein, General Electric Capital Corporation, as
Administrative Agent and a Lender, Bank of America National Trust and
Savings Association, as Collateral Agent and a Lender, and the Lenders
signatory thereto from time to time.
<PAGE>
===============================================================================
Exhibit 10.1
AMENDMENT NO. 1 TO
DEBTOR IN POSSESSION
CREDIT AGREEMENT
Dated as of February 24, 1999
by and 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
===============================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
RECITALS................................................................................................ 1
- ---------
AGREEMENT............................................................................................... 1
- ---------
1. Ratification and Incorporation of Existing DIP Credit Agreement and Other Loan Documents;
-----------------------------------------------------------------------------------------
Release............................................................................................ 1
-------
2. Waiver by Agent and Lenders........................................................................ 2
---------------------------
3. Amendment of Existing DIP Credit Agreement......................................................... 2
------------------------------------------
3.1. Section 1.1(a) (Revolving Credit Facility)................................................... 2
-----------------------------------------
3.2. Section 1.3(b) (Mandatory Prepayments; ENBC Stock Proceeds).................................. 3
----------------------------------------------------------
3.3. Section 1.12 (Access)........................................................................ 4
--------------------
3.4. Section 1.16 (Priority of Obligations and Collateral Agent's Liens; Cash Collateral)......... 4
-----------------------------------------------------------------------------------
3.5. Section 6.2 (Investments).................................................................... 4
------------------------
3.6. Section 6.16 (Leases; Capital Expenditures).................................................. 4
------------------------------------------
3.7. Section 6.17 (Prepetition Indebtedness)...................................................... 4
--------------------------------------
3.8. Section 8.1 (Events of Default).............................................................. 5
------------------------------
3.9. Annex A (Definitions; Rules of Construction)................................................. 5
-------------------------------------------
a. Deleted Definitions................................................................... 5
-------------------
b. Amended Definitions................................................................... 5
-------------------
c. New Definitions....................................................................... 6
---------------
3.10. Annex E (Financial Statements and Budget; Reporting)......................................... 7
---------------------------------------------------
3.11. Annex F (Financial Covenants)................................................................ 7
----------------------------
3.12. Annex H (Notice Addresses)................................................................... 7
-------------------------
3.13. Annex J (Availability Amounts)............................................................... 7
-----------------------------
4. Conditions Precedent To Obligations................................................................ 7
-----------------------------------
4.1. First Amendment and Related Materials; Satisfactory Legal Form............................... 7
--------------------------------------------------------------
4.2. Entry of First Amendment Approval Order...................................................... 7
---------------------------------------
4.3. Amendment of Adequate Protection Orders...................................................... 7
---------------------------------------
5. Representations and Warranties..................................................................... 7
------------------------------
5.1. Corporate Power; Authorization; Enforceable Obligations...................................... 7
-------------------------------------------------------
5.2. Representations and Warranties in Existing DIP Credit Agreement.............................. 8
---------------------------------------------------------------
5.3. The Period 1-6 Budget........................................................................ 8
---------------------
5.4. Updated Schedules............................................................................ 8
-----------------
6. Miscellaneous...................................................................................... 8
-------------
6.1. Headings..................................................................................... 8
--------
6.2. Counterparts................................................................................. 8
------------
6.3. Interpretation............................................................................... 8
--------------
6.4. Complete Agreement........................................................................... 8
------------------
6.5. Governing Law................................................................................ 8
-------------
6.6. Effect....................................................................................... 8
------
6.7. Conflict of Terms............................................................................ 9
-----------------
6.8. No Novation.................................................................................. 9
-----------
</TABLE>
i
<PAGE>
INDEX OF ANNEXES, EXHIBITS AND SCHEDULES
----------------------------------------
ANNEXES
- -------
Annex D-1 - Schedule of Documents to First Amendment
Annex F - Financial Covenant (revised)
Annex H - Notice Addresses (revised)
Annex J - Availability Amounts (revised)
EXHIBITS
- --------
Exhibit A - Form of First Amendment Approval Order
SCHEDULES TO FIRST AMENDMENT
- ----------------------------
Schedule 3.4(b)-1 - Period 1-6 Budget
Schedule 5.1 - Certain Exceptions to Representations in Section 5.1(e)
UPDATED/REPLACEMENT/SUPPLEMENTAL SCHEDULES TO DIP CREDIT AGREEMENT
- ------------------------------------------------------------------
Schedule 3.2 - Executive Offices; Collateral Locations; FEIN
Schedule 3.11 - Tax Matters
Schedule 3.15 - Intellectual Property
Schedule 3.19 - Deposit and Disbursement Accounts
Schedule 6.17 - Certain Prepetition Indebtedness
ii
<PAGE>
AMENDMENT NO. 1 TO DEBTOR IN POSSESSION CREDIT AGREEMENT
--------------------------------------------------------
THIS AMENDMENT NO. 1 TO DEBTOR IN POSSESSION CREDIT AGREEMENT (the
"First Amendment") is entered into as of February 24, 1999, by and among (i)
- ----------------
BOSTON CHICKEN, INC., a Delaware corporation ("BCI") and the other Borrower
---
parties to the "Existing DIP Credit Agreement" referred to below (each,
individually a "Borrower" and collectively the "Borrowers"), (ii) each of the
-------- ---------
lenders listed on the signature pages hereof (each individually a "Lender" and
------
collectively "Lenders"), (iii) GENERAL ELECTRIC CAPITAL CORPORATION, a New York
-------
corporation (in its individual capacity, "GE Capital"), for itself as a Lender
----------
and as Administrative Agent for Lenders, and (iv) BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION (in its individual capacity, "BofA"), for itself as a
----
Lender and as Collateral Agent for Lenders (Administrative Agent and Collateral
Agent being referred to collectively as "Agents"), with reference to the
------
following facts, which shall be construed as part of this First Amendment:
RECITALS
--------
A. Agents, Lenders, and Borrowers are parties to a Debtor in Possession
Credit Agreement dated as of October 5, 1998 (the "Existing DIP Credit
-------------------
Agreement"; capitalized terms not otherwise defined in the Recitals or in the
preamble are as defined in the Existing DIP Credit Agreement as hereby amended).
B. Borrowers have requested that Agents and Lenders (1) amend the Minimum
System EBITDAL Covenant for Retail Periods 1-6 of 1999, and (2) consent to an
amendment of the Budget for such Retail Periods. Agents and Lenders are
willing, to the extent provided herein and subject to the terms and conditions
hereof, to agree to the foregoing requests of Borrowers.
C. In addition, Borrowers have moved, in the Chapter 11 Cases, for an order
extending the exclusivity periods under Sections 1121(b) and 1121(c)(3) of the
Bankruptcy Code. By their execution hereof (subject to satisfaction of the
conditions precedent hereto), Agents and Lenders hereby consent to (i) an
extension of the exclusivity period under Section 1121(b) of the Bankruptcy Code
to June 3, 1999, and (ii) an extension of the 180-day period under Section
1121(c)(3) of the Bankruptcy Code to August 2, 1999.
D. The rules of construction set forth in Annex A to the Existing DIP
-------
Credit Agreement shall govern this First Amendment. Unless otherwise indicated,
all references in this First Amendment to sections, subsections, schedules,
exhibits, annexes and attachments shall refer to the corresponding sections,
subsections, schedules, exhibits, annexes and attachments of or to the Existing
DIP Credit Agreement. All schedules, exhibits, annexes and attachments hereto,
or expressly identified in this First Amendment, are incorporated herein by
reference, and taken together, shall constitute but a single agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
1
<PAGE>
1. Ratification and Incorporation of Existing DIP Credit Agreement and Other
-------------------------------------------------------------------------
Loan Documents; Release. Except as expressly modified under this First
- -----------------------
Amendment, (a) each Borrower hereby acknowledges, confirms, and ratifies all of
the terms and conditions set forth in, and all of its respective obligations
under, the Existing DIP Credit Agreement and the other Loan Documents to which
it is a party, and (b) all of the terms and conditions set forth in the Existing
DIP Credit Agreement and the other Loan Documents are incorporated herein by
this reference as if set forth in full herein. Without limiting the generality
of the foregoing, each Borrower acknowledges and agrees that as of the Amendment
Closing Date, the aggregate outstanding principal amount of all Revolving Loans
was $49,055,024.66. Each Borrower represents that it has no offset, defense,
counterclaim, dispute or disagreement of any kind or nature whatsoever with
respect to the amount of the Revolving Loans or any other Obligations. Each
Borrower hereby releases and discharges Agents and Lenders, in their respective
capacities as such, together with their respective agents, attorneys, employees,
heirs, executors, administrators, officers, directors, successors and assigns,
from any and all claims, causes of action and remedies (whether under the
Bankruptcy Code or under other applicable law) arising out of, based upon or
related to the Obligations, the Collateral or the Loan Documents.
2. Waiver by Agent and Lenders. Subject to the satisfaction of each of the
---------------------------
conditions set forth in Section 4 of this First Amendment, Agents and Lenders
hereby waive any Event of Default that may otherwise have occurred as a result
of Borrowers' failure to comply with the Minimum System EBITDAL Covenant (as in
effect prior to the effectiveness of this First Amendment) for Retail Period 1
of 1999.
3. Amendment of Existing DIP Credit Agreement. The Existing DIP Credit
------------------------------------------
Agreement is hereby amended, as of the Amendment Closing Date, as follows (and
all section references in this Section 3 shall, unless the context otherwise
requires, be references to sections in the Existing DIP Credit Agreement):
3.1. Section 1.1(a) (Revolving Credit Facility). Delete clause (i) of
------------------------------------------
Section 1.1(a) and replace it with the following:
(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 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 Availability Reserve as of such time
----
less the aggregate amount of the L/C Obligations outstanding at
----
such time. In addition, (x) 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 and (y) the
Net Advance Amount for Retail Period 6 of 1999 shall not, as of
the last day of such Retail Period (i.e. June 13, 1999), exceed
$7,500,000 (the limitation provided for in this sentence shall be
referred to as the "Availability Limitation"). 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
2
<PAGE>
Representative to the representatives of Administrative Agent
specified in paragraph B of Annex H at the addresses specified
therein. Any such notice must be 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 Revolving Credit
Advance") shall be given in writing (by telecopy or overnight
courier) substantially in the form of Exhibit 1.1(a)(i), and
shall include the information required in such Exhibit and such
other information as may be required by Administrative Agent.
3.2. Section 1.3(b) (Mandatory Prepayments; ENBC Stock Proceeds). Delete
-----------------------------------------------------------
clauses (i)-(ii) of Section 1.3(b) and replace them with the following:
(i) As soon as practicable after receipt by any Borrower of:
(x) subject to Section 5.4(c), insurance proceeds,
(y) federal, state or local tax refunds net of any offsets
and adjustments for reasonably anticipated or disputed tax
liabilities or deficiencies which are not provided for in
the Budget (provided, that Borrowers shall have provided
Agents with written notice specifying the amount, and the
basis of calculating, any such offsets or adjustments), or
(z) subject to the proviso to this clause (i) and (with
respect to Subject Asset Sales) clause (b)(iii) below,
proceeds of any asset disposition (including condemnation
proceeds, proceeds from the rejection, assumption or
assignment of any lease, and any refunds of security or
other deposits received any time after the Closing Date
which refunds are in excess of $3,000 individually or in a
series of related transactions, but excluding proceeds of
any disposition of (1) assets in the ordinary course of
business (it being understood that any transaction involving
the rejection or assignment and assumption of leases or the
sale of equipment at closed stores is not a disposition of
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);
provided, that, for purposes of clause (z) above, Borrowers shall not
be deemed to have received any proceeds which are deposited in a
segregated cash collateral account pursuant to an Order of the
Bankruptcy Court until such funds are authorized to be disbursed
pursuant to an Order of the Bankruptcy Court or as agreed by
Administrative Agent. Any prepayment under this clause (i) 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 pay the Net Cash Proceeds
thereof as follows:
3
<PAGE>
(A) (x) 25% thereof plus (y) the lesser of (1) 25% thereof
and (2) the aggregate unpaid Deferred Adequate Protection
Payments of the 1996 Lenders, shall be paid to the Common
Collateral Agent in accordance with the 1996 Adequate
Protection Order; and
(B) the amount remaining after the payments described in
the preceding clause (A) shall be paid to Administrative
Agent and shall be applied as provided in Section 1.3(c).
3.3. Section 1.12 (Access). Insert the following sentence between the
---------------------
first and second sentences of Section 1.12:
Without limiting the foregoing, Borrowers hereby confirm that, in
accordance with the foregoing, they will provide Agents and
Agents' financial and other advisors with reasonable access to
Borrowers' marketing and other management personnel, and their
respective marketing plans and data, in connection with Agents'
and Lenders' review and analysis of Borrowers' strategic
marketing plans.
3.4. Section 1.16 (Priority of Obligations and Collateral Agent's Liens;
-------------------------------------------------------------------
Cash Collateral). Delete the proviso to Section 1.16(d).
----------------
3.5. Section 6.2 (Investments).
-------------------------
a. Delete the portion of Section 6.2(c) that precedes clause (i)
thereof and replace it with the following:
(c) Borrowers may make investments in an aggregate amount
at no time in excess of $5,000,000 in ...
b. Add the following proviso at the end of Section 6.2(c):
provided, that the $5,000,000 limitation specified above (x)
--------
may be exceeded by up to $5,000,000 for up to two consecutive
Business Days, (y) shall not include any amounts that,
pursuant to a Bankruptcy Court Order, are on deposit in a
segregated cash collateral account, and (z) shall not include
amounts of up to $300,000 that may be on deposit from time to
time in the account of Borrowers that is used to fund the
redemption of Borrowers' gift certificates (it being
understood that amounts in such account shall only be used for
such purpose).
3.6. Section 6.16 (Leases; Capital Expenditures). Add a new clause (c)
-------------------------------------------
to Section 6.16 as follows:
(c) Borrowers' advertising expenditures (on a Retail
Period by Retail Period basis and on a cumulative basis, in
each case beginning with Retail Period 2 of 1999), shall not
be reduced in any material respect from what is provided for
in the Budget without Agents' prior written consent.
3.7. Section 6.17 (Prepetition Indebtedness). Delete clause (b) of
---------------------------------------
Section 6.17 and replace it with the following:
4
<PAGE>
(b) (i) adequate protection payments with respect to the
1995 Obligations and the 1996 Obligations to the extent
provided for in the Budget and authorized by an Adequate
Protection Order (provided, that such payments may not exceed
the amount of the monthly interest on the underlying
obligations at the non-default rate, and provided further
that in no event may any adequate protection payment be made
with respect to the 1995 Obligations unless, concurrently
therewith, the adequate protection payment for the
corresponding period is made with respect to the 1996
Obligations), (ii) any payment on account of the 1996
Obligations from the Net Cash Proceeds of the ENBC Stock that
is made pursuant to Section 1.3(b)(ii)(A), to the extent such
payment is authorized by the 1996 Adequate Protection Order,
and (iii) scheduled payments on account of the Prepetition
Indebtedness described in Schedule 6.17 hereto (which shall
not include the 1995 Obligations or the 1996 Obligations), to
the extent that such payments are provided for in the Budget;
3.8. Section 8.1 (Events of Default). In Section 8.1:
-------------------------------
a. Delete clause (d) and replace it with the following:
(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 (or such lesser
period as is provided in the relevant provision hereof or in
such other Loan Document, as the case may be).
b. Delete clause (l) and replace it with the following:
(l) (i) The Interim Order, Final Order or First Amendment
Order shall be reversed, modified or revoked, or (ii) an
appeal from the entry of the First Amendment Order shall be
timely filed and a stay pending appeal shall have been
granted, in either case under the foregoing clauses (i) or
(ii) without Requisite Lenders' written consent.
3.9. Annex A (Definitions; Rules of Construction). Annex A shall be amended
--------------------------------------------
as follows:
a. Deleted Definitions. Each of the following definitions shall be
--------------------
deleted from Annex A:
ENBC Proceeds Cash Collateral
---------------------------
ENBC Proceeds Cash Collateral Amount
------------------------------------
b. Amended Definitions. The definitions of each of the following terms
--------------------
in Annex A shall be deleted and replaced with the new definition
for such term provided below:
"Adequate Protection Orders" means the 1995 Adequate
--------------------------
Protection Order the 1996 Adequate Protection Order.
"Agreement" means the Debtor in Possession Credit Agreement
---------
to which this Annex A is attached or otherwise identified,
including all riders, annexes, schedules, and exhibits attached
or otherwise identified thereto, as amended by
5
<PAGE>
Amendment No. 1 to Debtor in Possession Credit Agreement dated as
of February 24, 1999, and all amendments restatements,
modifications and supplements thereto, and all appendices,
annexes, exhibits or schedules to any of the foregoing, and shall
refer to such Agreement as the same may be in effect at the time
such reference becomes operative; provided, that any reference to
--------
the Exhibits, Schedules and Annexes to the Agreement shall be
deemed a reference to the Exhibits, Schedules and Annexes as in
effect on the Closing Date or in a written amendment thereto.
"Budget" means (i) with respect to Retail Periods other than
------
Retail Periods 1-6 of 1999, the Budget attached hereto as Schedule
3.4(b), and (ii) with respect to Retail Periods 1-6 of 1999, the
"Period 1-6 Budget" attached to the First Amendment as Schedule
--------
3.4(b)-1, as they 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 subsequent 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).
c. New Definitions. Each of the following definitions shall be added to
---------------
Annex A:
-------
"Amendment Closing Date" means the Business Day on which all
----------------------
conditions precedent to the effectiveness of the First Amendment
have been satisfied or waived in writing by Requisite Lenders.
"Availability Reserve" means, as of any time of
--------------------
determination, an amount equal to the aggregate amount of the
Deferred Adequate Protection Payments as of such time (without
regard to whether any such deferred payments have subsequently
been made in whole or in part), as such amount may be reduced from
time to time with the written consent of Requisite Lenders.
"Deferred Adequate Protection Payment" means any monthly
------------------------------------
adequate protection payment provided for under the 1995 Adequate
Protection Order or the 1996 Adequate Protection Order (without
regard to any amendments thereto), which payment has been
deferred.
"First Amendment" means "Amendment No. 1 to Debtor in
---------------
Possession Credit Agreement" dated as February 24, 1999, and all
appendices, annexes, exhibits or schedules thereto.
"First Amendment Approval Order" means an order of the
------------------------------
Bankruptcy Court, substantially in the form of Exhibit A to the
---------
First Amendment, authorizing each Borrower to execute the First
Amendment and perform under the terms of the Agreement and the
other Loan Documents as amended by the First Amendment.
"Period 1-6 Budget" means the Budget attached to the First
Amendment as Schedule 3.4(b)-1.
-----------------
6
<PAGE>
"1995 Adequate Protection Order" means the "Agreed Final
------------------------------
Order Authorizing Use of Cash Collateral and Granting Certain
Adequate Protection Relief to the 1995 Lenders" entered on or about
November 4, 1998, as the same may be amended from time to time
pursuant to amendments in form and substance acceptable to Agents.
"1995 Lenders" shall be as defined in the 1995 Adequate
------------
Protection Order.
"1996 Adequate Protection Order" means the "Agreed Final
------------------------------
Order Authorizing Use of Cash Collateral and Granting Certain
Adequate Protection Relief to the 1996 Lenders" entered on or about
November 4, 1998, as the same may be amended from time to time
pursuant to amendments in form and substance acceptable to Agents.
"1996 Lenders" shall be as defined in the 1996 Adequate
------------
Protection Order.
3.10. Annex E (Financial Statements and Budget; Reporting). Delete the last
----------------------------------------------------
sentence of paragraph (g) of Annex E.
3.11. Annex F (Financial Covenants). Delete Annex F and replace it with
----------------------------
Annex F hereto.
3.12. Annex H (Notice Addresses). Delete Annex H and replace it with
--------------------------
Annex H hereto.
3.13. Annex J (Availability Amounts). Delete Annex J and replace it with
------------------------------
Annex J hereto.
4. Conditions Precedent To Obligations. Notwithstanding any other provision of
-----------------------------------
this First Amendment, this First Amendment shall be of no force or effect, and
Agents and Lenders shall have no obligations hereunder or thereunder, until the
following conditions have been satisfied, in Requisite Lenders' sole discretion,
or waived in writing by Requisite Lenders:
4.1. First Amendment and Related Materials;Satisfactory Legal Form. Agents
-------------------------------------------------------------
and Lenders shall have received this First Amendment duly executed by
Borrowers (and other parties) party hereto and delivered to Agents and
Lenders, and all of the other documents, instruments, certificates,
opinions, agreements and other materials listed in the Schedule of
-----------
Documents attached as Annex D-1, each in form and substance
---------
satisfactory to Agents. All legal matters incident to the transactions
contemplated by this First Amendment shall be satisfactory to Agents
and their counsel.
4.2. Entry of First Amendment Approval Order. The Bankruptcy Court shall
---------------------------------------
have entered the First Amendment Approval Order.
4.3. Amendment of Adequate Protection Orders. The Adequate Protection
Orders shall have been amended, by orders entered by the Bankruptcy
Court in form and substance acceptable to Requisite Lenders (which
orders shall, among other things, provide for the deferral of the
adequate protection payments otherwise payable on March 1, April 1,
May 1 and June 1, 1999).
5. Representations and Warranties.
---------------------------
7
<PAGE>
5.1. Corporate Power; Authorization; Enforceable Obligations. The
-------------------------------------------------------
execution, delivery and performance by each Borrower of this First
Amendment: (a) is within such Borrower's corporate power; (b) has been
duly authorized by all necessary or proper corporate action; (c) is
not in contravention of any provision of such Borrower's certificate
of incorporation or by-laws; (d) will not violate any law or
regulation, or any order or decree of any court or governmental
instrumentality; (e) will not conflict with or result in the breach or
termination of, constitute a default under, or accelerate any
performance required by, any material indenture, mortgage, deed of
trust, lease, agreement or other instrument to which such Borrower is
a party or by which such Borrower or any of its property is bound,
except as disclosed on Schedule 5.1; (f) will not result in the
creation or imposition of any Lien upon any of the property of such
Borrower other than those in favor of Collateral Agent, for the
benefit of Collateral Agent, Administrative Agent and Lenders, all
pursuant to the Loan Documents; and (g) do not require the consent or
approval of any Governmental Authority or any other Person. This First
Amendment has been duly executed and delivered for the benefit of or
on behalf of each Borrower and constitutes a legal, valid and binding
obligation of each such Borrower, enforceable against it in accordance
with its terms.
5.2. Representations and Warranties in Existing DIP Credit Agreement. Each
---------------------------------------------------------------
Borrower hereby represents and warrants that the representations and
warranties of such Person contained in Section 3 of the Existing DIP
Credit Agreement, as amended hereby, are true and correct as of the
date hereof. For purposes hereof, as to any representation or warranty
which by its terms expressly applied only as of the Closing Date
(whether the phrase "as of the Closing Date," "as of the date hereof,"
"on the date hereof," or some other similar phrase was used), such
representation and warranty shall be deemed to have been made as of
the Amendment Closing Date.
5.3. The Period 1-6 Budget. The Period 1-6 Budget delivered on the date
---------------------
hereof and attached hereto as Schedule 3.4(b)-1 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 1 of Fiscal Year 1999 and ending on the last day of Retail
Period 6 of Fiscal Year 1999, on a Retail Period by Retail Period
basis. The Period 1-6 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 Amendment 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.
5.4. Updated Schedules. Attached hereto are updated Schedules, dated as
-----------------
of the Amendment Closing Date, which supplement or replace, as the
case may be (as indicated thereon), the Schedules that were prepared
or provided with the Existing DIP Credit Agreement.
6. Miscellaneous.
-------------
6.1. Headings. The various headings of this First Amendment are inserted
--------
for convenience of reference only and shall not affect the meaning or
interpretation of this First Amendment or any provisions hereof.
8
<PAGE>
6.2. Counterparts. This First Amendment may be executed by the parties
------------
hereto in several counterparts, each of which shall be deemed to be an
original and all of which together shall be deemed to be one and the
same instrument.
6.3. Interpretation. No provision of this First Amendment shall be
--------------
construed against or interpreted to the disadvantage of any party hereto
by any court or other governmental or judicial authority by reason of
such party's having or being deemed to have structured, drafted or
dictated such provision.
6.4. Complete Agreement. This First Amendment constitutes the complete
------------------
agreement between the parties with respect to the subject matter hereof,
and supersedes any prior written or oral agreements, writings,
communications or understandings of the parties with respect thereto
(including, without limitation, the Term Sheet for Discussion Purposes
Only having a draft date of February 1, 1999).
6.5. Governing Law. This First Amendment shall be governed by, and
-------------
construed and enforced in accordance with, the laws of the State of New
York applicable to contracts made and performed in such state, without
regard to the principles thereof regarding conflict of laws.
6.6. Effect. Upon the effectiveness of this First Amendment, each
------
reference in the Existing DIP Credit Agreement to "this Agreement,"
"hereunder," "hereof" or words of like import, shall mean and be a
reference to the Existing DIP Credit Agreement as amended hereby and
each reference in the other Loan Documents to the Credit Agreement,
"thereunder," "thereof," or words of like import shall mean and be a
reference to the Existing DIP Credit Agreement as amended hereby.
6.7. Conflict of Terms. In the event of any inconsistency between the
-----------------
provisions of this First Amendment and any provision of the Existing DIP
Credit Agreement, the terms and provisions of this First Amendment shall
govern and control.
6.8. No Novation. Except as specifically set forth in this First
-----------
Amendment, the execution, delivery and effectiveness of this First
Amendment shall not (i) limit, impair, constitute a waiver by, or
otherwise affect any right, power or remedy of, Agents or any Lender
under the Existing DIP Credit Agreement or any other Loan Document, (ii)
constitute a waiver of any provision in the Existing DIP Credit
Agreement or in any of the other Loan Documents, or (iii) alter, modify,
amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Existing DIP Credit Agreement
or in any of the other Loan Documents, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.1
to DIP Credit Agreement as of the day and year first above written.
"BORROWERS"
<TABLE>
<CAPTION>
<S> <C>
BOSTON CHICKEN, INC., BC REAL ESTATE INVESTMENTS, INC.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: /s/ Lawrence E. White By: /s/ Lawrence E. White
---------------------------- ----------------------------
Name: Lawrence E. White Name: Lawrence E. White
Title: Executive Vice President Title: Executive Vice President
BCI ACQUISITION SUB, L.L.C., PROGRESSIVE FOOD CONCEPTS, INC., Debtor and
Debtor and Debtor in Possession Debtor in Possession
By: Boston Chicken, Inc., Manager
By: /s/ Lawrence E. White
----------------------------
By: /s/ Lawrence E. White Name: Lawrence E. White
---------------------------- Title: Executive Vice President
Name: Lawrence E. White
Title: Executive Vice President
BCI MAYFAIR, INC., BCI R&A, INC.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: /s/ Lawrence E. White By: /s/ Lawrence E. White
---------------------------- ----------------------------
Name: Lawrence E. White Name: Lawrence E. White
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/ Lawrence E. White By: /s/ Lawrence E. White
---------------------------- ----------------------------
Name: Lawrence E. White Name: Lawrence E. White
Title: Executive Vice President
Title: Executive Vice President
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
BCI SOUTHWEST, INC., MID-ATLANTIC RESTAURANT SYSTEMS, INC.,
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: /s/ Lawrence E. White By: /s/ Lawrence E. White
- -------------------------------------------- ----------------------------------------------------
Name: Lawrence E. White Name: Lawrence E. White
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/ Lawrence E. White By: /s/ Lawrence E. White
- -------------------------------------------- ----------------------------------------------------
Name: Lawrence E. White Name: Lawrence E. White
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/ Lawrence E. White By: /s/ Lawrence E. White
- -------------------------------------------- ----------------------------------------------------
Name: Lawrence E. White Name: Lawrence E. White
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/ Lawrence E. White By: /s/ Lawrence E. White
- -------------------------------------------- ----------------------------------------------------
Name: Lawrence E. White Name: Lawrence E. White
Title: Executive Vice President Title: Executive Vice President
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
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/ Lawrence E. White By: /s/ Lawrence E. White
- -------------------------------------------- ----------------------------------------------------
Name: Lawrence E. White Name: Lawrence E. White
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/ Lawrence E. White By: /s/ Lawrence E. White
- -------------------------------------------- ----------------------------------------------------
Name: Lawrence E. White Name: Lawrence E. White
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 By: BCI West, Inc. as General Partner
Partner
By: /s/ Lawrence E. White By: /s/ Lawrence E. White
- -------------------------------------------- ----------------------------------------------------
Name: Lawrence E. White Name: Lawrence E. White
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/ Lawrence E. White
By: /s/ Lawrence E. White ----------------------------------------------------
- -------------------------------------------- Name: Lawrence E. White
Name: Lawrence E. White Title: Executive Vice President
Title: Executive Vice President
</TABLE>
<PAGE>
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Daniel P. Gioia
- -------------------------------------
Name: Daniel P. Gioia
Senior Risk Manager
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ Daniel P. Gioia
- -------------------------------------
Name: Daniel P. Gioia
Senior Risk Manager
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Collateral Agent and a Lender
By: /s/ David Johansen
________________________
Name: David Johansen
Title:
By: /s/ Lynn D. Simmons
________________________
Name: Lynn D. Simmons
Title: Vice President
<PAGE>
SANWA BUSINESS CREDIT CORPORATION,
as a Lender
By: /s/ Mark A. Holmes
- -----------------------------------
Name: Mark A. Holmes
Title: First Vice President
<PAGE>
LASALLE NATIONAL BANK,
as a Lender
By: /s/ David Shapiro
- -----------------------------------
Name: David Shapiro
Title: Vice President
<PAGE>
HOUR LLC,
as a Lender
By: Paloma Partners Company LLC, its Manager
By: /s/ Michael J. Brenner
- -----------------------------------
Name: Michael J. Brenner
Title: Vice President
<PAGE>
ANNEX F (Section 6.10)
------------
to
CREDIT AGREEMENT
----------------
(As amended by First Amendment dated February 24, 1999)
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:
a 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.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
Minimum System EBITDAL for
Rolling Period ending with: such Rolling Period
- ------------------------------------------------------------------------------------------------
<S> <C>
Retail Period 11 ending November 1, 1998 ($12,400,000)
- ------------------------------------------------------------------------------------------------
Retail Period 12 ending November 29, 1998 ($7,900,000)
- ------------------------------------------------------------------------------------------------
Retail Period 13 ending December 27, 1998 ($3,400,000)
- ------------------------------------------------------------------------------------------------
Retail Period 1 ending January 24, 1999 ($2,100,000)
- ------------------------------------------------------------------------------------------------
Retail Period 2 ending February 21, 1999 ($4,500,000)
- ------------------------------------------------------------------------------------------------
Retail Period 3 ending March 21, 1999 ($5,825,000)
- ------------------------------------------------------------------------------------------------
Retail Period 4 ending April 18, 1999 ($6,500,000)
- ------------------------------------------------------------------------------------------------
Retail Period 5 ending May 16, 1999 ($6,375,000)
- ------------------------------------------------------------------------------------------------
Retail Period 6 ending June 13, 1999 ($7,000,000)
- ------------------------------------------------------------------------------------------------
Retail Period 7 ending July 11, 1999 ($4,000,000)
- ------------------------------------------------------------------------------------------------
Retail Period 8 ending August 8, 1999 ($600,000)
- ------------------------------------------------------------------------------------------------
</TABLE>
F-1
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
Minimum System EBITDAL
Rolling Period ending with: for such Rolling Period
- --------------------------------------------------------------------------------------------
<S> <C>
Retail Period 9 ending September 5, 1999 $ 3,200,000
- --------------------------------------------------------------------------------------------
Retail Period 10 ending October 3, 1999 $ 7,200,000
- --------------------------------------------------------------------------------------------
Retail Period 11 ending October 31, 1999 $12,200,000
- --------------------------------------------------------------------------------------------
Retail Period 12 ending November 28, 1999 $16,600,000
- --------------------------------------------------------------------------------------------
Retail Period 13 ending December 26, 1999 and all $19,800,000
subsequent Retail Periods
- --------------------------------------------------------------------------------------------
</TABLE>
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.
b 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 13 in 1998, the period
from July 13, 1998 through the last day of such Retail Period, and (ii) for each
subsequent Retail Period, the period from the beginning of Retail Period 1 of
1999 through 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.
F-2
<PAGE>
"System EBITDAL" means, with respect to any specified period, the Store
--------------
EBITDAL for such period minus the Combined Overhead for such period.
-----
c 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, 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
<PAGE>
ANNEX H (Section 11.10)
-------------
to
CREDIT AGREEMENT
----------------
(As amended by First Amendment dated February 24, 1999)
NOTICE ADDRESSES
----------------
<TABLE>
<S> <C>
(A) If to Administrative Agent or GE Capital (B) If to Administrative Agent (SOLELY FOR
(OTHER THAN FOR PURPOSES OF SENDING NOTICES PURPOSES OF SENDING NOTICES OF REVOLVING
OF REVOLVING CREDIT ADVANCES, NOTICES OF CREDIT ADVANCES, NOTICES OF VOLUNTARY
VOLUNTARY PREPAYMENT/REDUCTION, AND NOTICES PREPAYMENT/REDUCTION, AND NOTICES OF
OF MANDATORY PREPAYMENT), at MANDATORY PREPAYMENT), at::
GE Capital Structured Finance, Inc. General Electric Capital Corporation
777 Long Ridge Road 201 High Ridge Road
Building B, 1st Floor Stamford, CT 06927
Stamford, Connecticut 06927 Attn: Dean Melanokos, Portfolio Analyst
Attn: Daniel P. Gioia Facsimile: 203/316-7817
Facsimile: 203/703-1777 Telephone: 203/316-7661
Telephone: 203/357-6245
and
and
General Electric Capital Corporation
David Huet, Esq. 777 Long Ridge Road
GE Capital Structured Finance, Inc. Bldg. B, 1st Floor
777 Long Ridge Road Stamford, CT 06927
Building B, 1st Floor Attn: Sandy DeRaffele, Transaction Coordinator
Stamford, Connecticut 06927 Facsimile: 203/316-7989
Facsimile: 203/703-1777 Telephone: 203/357-3529
Telephone: 203/357-3159
(C) If to Collateral Agent, at
with a copy to:
Bank of America National Trust and Savings
Murphy Sheneman Julian & Rogers Association
2049 Century Park East, Suite 2100 231 South LaSalle Street
Los Angeles, CA 90067 Chicago, Illinois 60697
Attn: N. Dwight Cary and Jean B. LeBlanc Attention: David A. Johanson
Facsimile: 310/788-3777 Facsimile:(312) 974-9102
Telephone: 310/788-3700 Telephone:(312) 828-7933
and
Lynn D. Simmons
Facsimile:(312) 987-0234
Telephone:(312) 828-8647
</TABLE>
H-1
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
(D) If to Borrowers or any of them, to
Borrower Representative at
Boston Chicken, Inc.
14123 Denver West Parkway
P.O. Box 4086
Golden, Colorado 80401-4086
Attention: Lawrence White, Chief Financial
Officer
Facsimile: (303) 216-5550
Telephone: (303) 216-5640
With copies to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1500 Nationsbank Plaza
300 Convent Street, Suite 1500
San Antonio, Texas 78205
Attention: Patrick Ryan, Esq.
Facsimile: 210/224-2035
Telephone: 210/281-7000
(E) If to any Lenders other than Agents, to
Sanwa Business Credit Corporation LaSalle National Bank
One South Wacker Drive 135 S. LaSalle Street, Suite 2140
Chicago, Illinois 60606 Chicago, Illinois 60603
Attn: Mark Holmes Attn: David Shapiro
Facsimile: (312) 782-6486 Facsimile: (312) 904-8169
Telephone: (312) 853-1365 Telephone: (312) 904-2645
Hour L.L.C.
2 American Lane
Greenwich, Connecticut 06836
Attn: Mark May
Facsimile: (203) 861-4839
Telephone: (203) 861-4855
</TABLE>
H-2
<PAGE>
ANNEX J
to CREDIT AGREEMENT
-------------------
(As amended by First Amendment dated February 24, 1999)
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
- -------------------------------------------------------------------------------
Retail Period 11 ending $6,900,000
November 1, 1998
- -------------------------------------------------------------------------------
Retail Period 12 ending November $3,000,000
29, 1998
- -------------------------------------------------------------------------------
Retail Period 13 ending December 27, $8,100,000
1998
- -------------------------------------------------------------------------------
Retail Period 1 ending January 24, $3,000,000
1999
- -------------------------------------------------------------------------------
Retail Period 2 ending $6,700,000
February 21, 1999
- -------------------------------------------------------------------------------
Retail Period 3 ending March 21, $5,800,000
1999
- -------------------------------------------------------------------------------
Retail Period 4 ending April 18, $3,500,000
1999
- -------------------------------------------------------------------------------
Retail Period 5 ending May 16, $5,200,000
1999
- -------------------------------------------------------------------------------
Retail Period 6 ending June 13, $9,500,000*
1999
- -------------------------------------------------------------------------------
Retail Period 7 ending July 11, $4,600,000
1999
- -------------------------------------------------------------------------------
Retail Period 8 ending August 8, $4,300,000
1999
- -------------------------------------------------------------------------------
Retail Period 9 ending $7,300,000
September 5, 1999
- -------------------
*/ Subject to clause (y) of Section 1.1(a)(i), which provides that the Net
Advance Amount for this Retail Period be no more than $7,500,000 as of June 13,
1999.
J-3
<PAGE>
- -------------------------------------------------------------------------------
Retail Period Availability Amount
- -------------------------------------------------------------------------------
Retail Period 10 ending October 3, $9,600,000
1999
- -------------------------------------------------------------------------------
Retail Period 11 ending October $4,100,000
31, 1999
- -------------------------------------------------------------------------------
Retail Period 12 ending November $3,000,000
28, 1999
- -------------------------------------------------------------------------------
Retail Period 13 ending December $4,300,000
26, 1999
- -------------------------------------------------------------------------------
Retail Periods 1-3, 2000 to be determined based on
amended Budget delivered
pursuant to paragraph (f)(ii)
of Annex E
-------
- -------------------------------------------------------------------------------
J-4 EXECUTION COPY
AMENDMENT NO.1 TO
DEBTOR IN POSSESSION CREDIT AGREEMENT
<PAGE>
ANNEX D-1
to
AMENDMENT NO. 1 TO
DEBTOR IN POSSESSION CREDIT AGREEMENT
-------------------------------------
SCHEDULE OF DOCUMENTS
---------------------
Amendment No. 1 to Debtor In Possession Credit Agreement
among
Boston Chicken, Inc.
and
the Other Borrowers Thereunder,
Debtors and Debtors in Possession,
as Borrowers,
the Lenders Signatory Thereto 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
February 24, 1999 (the "Amendment Closing Date")
----------------------
================================================================================
This Schedule of Documents ("Schedule") lists the documents to be
--------
delivered in connection with "Amendment No. 1 to Debtor In Possession Credit
Agreement" dated as of the Amendment Closing Date (the "First Amendment") by and
---------------
among Boston Chicken, Inc., a Delaware corporation ("BCI"), and the other
---
Borrowers thereunder, the lenders signatory thereto from time to time
(collectively, "Lenders"), General Electric Capital Corporation, a New York
-------
corporation ("GE Capital"), as administrative agent (in such capacity,
----------
"Administrative Agent") for Lenders, and Bank of America National Trust and
- ---------------------
Savings Association ("BofA"), as collateral agent (in such capacity, "Collateral
---- ----------
Agent") for Lenders. All capitalized terms used but not otherwise defined
- -----
herein shall have the meanings assigned to them in Annex A to the Debtor in
-------
Possession Credit Agreement dated as of October 5, 1998, as amended by the First
Amendment.
Unless otherwise stated, five copies of each document to be executed
by any party shall be executed and delivered on the Amendment Closing Date.
Unless otherwise stated, each such document shall be dated as of the Amendment
Closing Date.
<PAGE>
1. Transaction Documents to be Delivered On or Before the Amendment
----------------------------------------------------------------
Closing Date.
------------
1.1 The Period 1-6 Budget.
1.2 Amendment No. 1 to Debtor in Possession Credit Agreement,
executed by each Borrower, Lenders, Administrative Agent and
Collateral Agent, and all Annexes, Schedules and Exhibits
thereto, including:
Annex D-1-Schedule of Documents
---------
Annex F -Financial Covenants (Revised for Retail Periods 1-13,
-------
1999)
Annex H-Notice Addresses (revised)
-------
Annex J -Availability Amounts for each Retail Period (Revised as
-------
of Retail Period 2, 1999)
Exhibit A-Form of First Amendment Order
---------
Schedule 3.4(b)-1-Period 1-6 Budget
-----------------
Schedule 5.1-Certain Exceptions to Representations Contained in
------------
Section 5.1(e) of First Amendment
UPDATED/REPLACEMENT/SUPPLEMENTAL SCHEDULES TO DIP CREDIT
--------------------------------------------------------
AGREEMENT
---------
Schedule 3.2-Executive Offices; Collateral Locations; FEIN
-------------
Schedule 3.11-Tax Matters
--------------
Schedule 3.15-Intellectual Property
--------------
Schedule 3.19-Deposit and Disbursement Accounts
--------------
Schedule 6.17-Certain Prepetition Indebtedness
-------------
1.3 Interim and Proposed Final Order Approving Amendment No. 1 to
Debtor in Possession Credit Agreement Pursuant to 11 U.S.C.
(S)(S) 364 entered by the Bankruptcy Court.
1.4 Amendment to 1996 Adequate Protection Order entered by the
Bankruptcy Court.
1.5 Amendment to 1995 Adequate Protection Order entered by the
Bankruptcy Court.
2. Other Documents to be Delivered On or Before the Amendment Closing
------------------------------------------------------------------
Date.
----
2.1 Engagement Letter for BT Alex. Brown
2.2 Order authorizing Borrowers' retention of BT Alex. Brown
2.3 Engagement Letter for Houlihan Lokey
2.4 Order authorizing Unsecured Creditors Committee's retention of
Houlihan Lokey
2
