EXHIBIT 10.86
AFC ENTERPRISES, INC.
FOURTH AMENDMENT
TO CREDIT AGREEMENT
This FOURTH AMENDMENT, dated as of August 22, 2003 (this "AMENDMENT"),
to the Credit Agreement, dated as of May 23, 2002, (the "CREDIT AGREEMENT")
among AFC ENTERPRISES, INC., a Minnesota corporation (the "BORROWER"), the
LENDERS party thereto, JPMORGAN CHASE BANK ("JPMCB"), as Administrative Agent,
X.X.XXXXXX SECURITIES INC., as Joint Bookrunner and Co-Lead Arranger, CREDIT
SUISSE FIRST BOSTON as Joint Bookrunner and Co-Lead Arranger, CREDIT LYONNAIS
NEW YORK BRANCH as Co-Documentation Agent, FLEET NATIONAL BANK, INC., as
Co-Documentation Agent and SUNTRUST BANK as Co-Documentation Agent, as amended
by the First Amendment to the Credit Agreement, dated March 31, 2003, and the
Second Amendment to the Credit Agreement, dated May 30, 2003, and the Third
Amendment to the Credit Agreement, dated July 14, 2003, each of the First
Amendment, the Second Amendment and the Third Amendment being among the
Borrower, JPMorgan Chase Bank and the Lenders party thereto, each in their
stated capacities. Capitalized terms used herein not otherwise defined herein or
otherwise amended hereby shall have the meanings ascribed thereto in the Credit
Agreement.
RECITALS:
WHEREAS, Borrower and the Lenders have agreed to amend the Credit
Agreement to revise the provision relating to delivery of financial reports and
other matters, in each case subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS
A. Section 1.01 of the Credit Agreement is hereby
amended by adding the following definitions:
"Fourth Amendment" means the amendment to the Credit Agreement
dated as of August 22, 2003.
1
"Fourth Amendment Effective Date" means the date on or prior
to August 22, 2003 upon which all the conditions precedent set forth in Section
2 of the Fourth Amendment are satisfied.
B. The definition of "Outside Reporting Date" is
deleted and replaced in its entirety by the following:
"Outside Reporting Date" means (i) with respect to the
delivery of the financial information and statements for fiscal year 2002,
October 31, 2003, (ii) with respect to the delivery of the financial information
and statements for the first fiscal quarter 2003, second fiscal quarter 2003 and
third fiscal quarter 2003, December 1, 2003.
1.2 AMENDMENTS TO SECTION 2: THE CREDITS
A. Section 2.10(f) is hereby amended by inserting the
following sentence at the end thereof:
"Notwithstanding anything to the contrary set forth herein, on
the Fourth Amendment Effective Date the Borrower shall deposit $32,000,000 (the
"Escrow Amount") into the Breakage Cost Collateral Account. The Escrow Amount
shall be held in the Breakage Cost Collateral Account and shall be released to
the Borrower upon delivery of all financial information and statements specified
in the definition of Outside Reporting Date by the dates provided for therein,
so long as (i) such financial information and statements do not, to the
satisfaction of the Administrative Agent, disclose or provide evidence of any
Default and (ii) no other Default shall exist and be continuing. In the event
that the Borrower does not satisfy each of the above mentioned escrow conditions
by the dates required, the Borrower must pay 100% of the net cash proceeds of
the SCC Disposition (the "Prepayment Amount") to the prepayment of Loans in the
order specified in paragraph (e) of this Section. The Administrative Agent shall
apply from the Escrow Account an amount which, when added to the net cash
proceeds of the SCC Disposition already applied to the prepayment of Loans
pursuant to the Third Amendment (the "Applied Proceeds"), will equal the
Prepayment Amount. To the extent that the Escrow Amount when added to the
Applied Proceeds is (y) in excess of the Prepayment Amount, the Administrative
Agent shall promptly release the balance thereof to the Borrower and (z) less
than the Prepayment Amount, the Borrower shall promptly make an additional
prepayment of Loans to the Administrative Agent in an amount equal to such
deficiency so that in either event, 100% of the Prepayment Amount is applied to
the prepayment of Loans."
B. Section 2.13 is hereby amended by adding the
following subsection after subsection 2.13(e):
"(f) Notwithstanding the provisions of Section 2.13(a) and
Section 2.13(b) set forth above or anything provided for in the definition of
"Applicable Rate", from the Fourth Amendment Effective Date until the later of
the provision of the financial information and statements required pursuant to
Section 5.01(b), with respect to each of the second fiscal quarter 2003, third
fiscal quarter 2003 and fourth fiscal quarter 2003, and the occurrence of an
improvement in the Borrower's credit ratings issued by S&P and Xxxxx'x to at
least BB- and
2
Ba3, the Applicable Rate shall be (i) with respect to Revolving Loans and
Tranche A Term Loans, 1.75% for ABR Loans and 2.75% for Eurodollar Loans and
(ii) with respect to Tranche B Term Loans, 2.25% for ABR Loans and 3.00% for
Eurodollar Loans; thereafter, the Applicable Rate shall be calculated as
provided for in this definition."
1.3 AMENDMENTS TO SECTION 5: AFFIRMATIVE COVENANTS
Section 5.01(b) is hereby amended by inserting the following
sentence at the end thereof:
"(provided, however, that with respect to first fiscal quarter
2003 and second fiscal quarter 2003, such financial information and statements
shall be furnished on or before the Outside Reporting Date)"
1.4 AMENDMENTS TO SECTION 6: NEGATIVE COVENANTS
Section 6.06(a) is hereby amended by deleting clause (y) in
its entirety and replacing it with the following:
"(y) since the Third Amendment Effective Date there shall have
been no adverse change that remains in effect in the Borrower's credit ratings
issued by S&P and Xxxxx'x"
SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS
2.1 The effectiveness of the amendments set forth at
Section 1 hereof are subject to the satisfaction, or waiver, of the following
conditions on or before the date hereof:
A. The Borrower, the Required Lenders and the
Subsidiary Loan Parties shall have indicated their consent to this Amendment by
the execution and delivery of the applicable signature pages to the
Administrative Agent.
B. As of the Fourth Amendment Effective Date,
after giving effect to this Amendment, the representations and warranties
contained herein and in the other Loan Documents shall be true, correct and
complete in all material respects on and as of the Fourth Amendment Effective
Date to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier date.
C. As of the Fourth Amendment Effective Date,
after giving effect to this Amendment, no event shall have occurred and be
continuing that would constitute an Event of Default or a Default.
D. The Administrative Agent shall have received
a certificate signed by a Financial Officer of the Borrower and dated the Fourth
Amendment Effective Date certifying that, (y) to the best knowledge of the
Borrower, it is in compliance with Sections 6.10, 6.12, 6.13, 6.14 and 6.15 of
the Credit Agreement and that at no time has it been in default of any such
3
Section based upon the financial information available to said Financial Officer
on the Fourth Amendment Effective Date and (z) no event shall have occurred and
be continuing that would constitute an Event of Default or a Default (other than
as contemplated by the foregoing clause (y) with respect to Sections 6.10, 6.12,
6.13, 6.14 and 6.15 of the Credit Agreement).
E. The Administrative Agent shall have received
a favorable written opinion of (i) Xxxxx Xxxxxxx Xxxxxx Xxxxxxx & Small, P.C.
(Delaware and Georgia), counsel for the Loan Parties, (ii) Xxxxxx & Whitney LLP
(Minnesota), (iii) Xxxxxx & Xxxxxxx LLP (Washington), (iv) Xxxxxxx XxXxxxxxx
(New York) and (v) Xxxxxxxxxx Xxxxxxx Xxxxxx & Xxxxxxxxxx L.L.P. (Texas); each
in form and substance satisfactory to the Administrative Agent.
F. As of the Fourth Amendment Effective Date,
the Borrower shall have paid all fees and other amounts due and payable,
including, to the extent invoiced, reimbursement or other payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower under
any Loan Document.
G. Administrative Agent shall have received,
for distribution to all Lenders executing this Amendment by 12:00 noon Eastern
time on Thursday, August 21, 2003 an amendment fee equal to 0.20% of such
Lenders' outstanding Loans and Commitments immediately prior to the Fourth
Amendment Effective Date.
H. On the Fourth Amendment Effective Date, the
Borrower shall have deposited the Escrow Amount into the Breakage Cost
Collateral Account in accordance with Section 2.10(f) of the Credit Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce Required Lenders to enter into this
Amendment, each applicable Loan Party represents and warrants to each Lender, as
of the date hereof and upon giving effect to this Amendment, that the
representations and warranties contained in each of the Loan Documents are true,
correct and complete in all material respects on and as of the date hereof to
the same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true, correct and
complete in all material respects on and as of such earlier date.
SECTION 4. ACKNOWLEDGMENT AND CONSENT
4.1 Each of Subsidiary Loan Parties of Borrower has (i)
guarantied the Obligations and (ii) created Liens in favor of Lenders on certain
Collateral to secure such obligations.
4.2 Each Subsidiary Loan Party hereby acknowledges that
it has reviewed the terms and provisions of the Credit Agreement and this
Amendment and consents to the amendment of the Credit Agreement effected
pursuant to this Amendment. Each Subsidiary Loan Party hereby confirms that each
Security Document to which it is a party or otherwise
4
bound and all Collateral encumbered thereby will continue to guarantee or
secure, as the case may be, to the fullest extent possible in accordance with
the Security Documents, the payment and performance of all Obligations under the
Credit Agreement and the Obligations (as such term is defined in the Security
Documents) under the Security Documents, as the case may be, including without
limitation the payment and performance of all such Obligations under the Credit
Agreement and the Obligations under the Security Documents in respect of the
Obligations of Borrower now or hereafter existing under or in respect of the
Credit Agreement, as amended hereby, and grants to the Collateral Agent a
continuing lien on and security interest in and to all Collateral as collateral
security for the prompt payment and performance in full when due of the
Obligations under the Credit Agreement and the Obligations under the Security
Documents (whether at stated maturity, by acceleration or otherwise).
4.3 Each Subsidiary Loan Party acknowledges and agrees
that any of the Security Documents to which it is a party or otherwise bound
shall continue in full force and effect and that all of its obligations
thereunder shall be valid and enforceable and shall not be impaired or limited
by the execution or effectiveness of this Amendment. Each Subsidiary Loan Party
represents and warrants that all representations and warranties contained in the
Credit Agreement, as amended hereby, and the Security Documents to which it is a
party or otherwise bound are true, correct and complete in all material respects
on and as of the Fourth Amendment Effective Date to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true,
correct and complete in all material respects on and as of such earlier date.
4.4 Each Subsidiary Loan Party acknowledges and agrees
that (i) notwithstanding the conditions to effectiveness set forth in this
Amendment, such Subsidiary Loan Party is not required by the terms of the Credit
Agreement or any other Loan Document to consent to the amendments to the Credit
Agreement effected pursuant to this Amendment and (ii) nothing in the Credit
Agreement, this Amendment or any other Loan Document shall be deemed to require
the consent of such Subsidiary Loan Party to any future amendments to the Credit
Agreement.
SECTION 5. MISCELLANEOUS
5.1 This Amendment shall be binding upon the parties
hereto and the Lenders and their respective successors and assigns and shall
inure to the benefit of the parties hereto and the successors and assigns of
Lenders. No Loan Party's rights or obligations hereunder or any interest therein
may be assigned or delegated by any Loan Party without the prior written consent
of all Lenders.
5.2 In case any provision in or obligation hereunder
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
5.3 On and after the Fourth Amendment Effective Date,
each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import
5
referring to the Credit Agreement, and each reference in the other Loan
Documents to the "Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement as amended by this Amendment.
5.4 Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
5.5 The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy of any
Agent or Lender under, the Credit Agreement or any of the other Loan Documents.
5.6 Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
5.7 THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5.8 This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. As set forth herein, this Amendment shall become effective upon
the execution of a counterpart hereof by each of the parties hereto and receipt
by Borrower and Administrative Agent of written or telephonic notification of
such execution and authorization of delivery thereof.
[The remainder of this page is intentionally left blank.]
6
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWER: AFC ENTERPRISES, INC.,
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name:
Title: Sr. Vice President Legal
Affairs, General Counsel &
Secretary
SUBSIDIARY LOAN PARTIES: AFC PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Secretary
AFC OF LOUISIANA, LLC
By: AFC Enterprises, Inc., Sole Member
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Secretary
CHURCH'S TEXAS HOLDINGS, LLC
By: AFC Enterprises, Inc., General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
S-1
AFC HOLDINGS OF TEXAS, LLC
By: AFC Enterprises, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
CINNABON INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President/Secretary
CT RESTAURANTS, L.P.
By: Church's Texas Holdings, LLC
By: AFC Enterprises, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
CINNABON INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President/Secretary
S-2
LENDERS: JPMORGAN CHASE BANK, INDIVIDUALLY AS A
LENDER AND AS ADMINISTRATIVE AGENT,
By: /s/ H. Xxxxx Xxxxx
---------------------------------------
Name: H. Xxxxx Xxxxx
Title: Vice President
[Individual Lender Signature Pages Omitted]
S-3
