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FRI-M CORPORATION
SIXTH AMENDMENT TO CREDIT AGREEMENT
This SIXTH AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated as
of December 23, 1998 and entered into by and among FRD ACQUISITION CO., a
Delaware corporation ("HOLDINGS"), FRI-M CORPORATION, a Delaware corporation
("COMPANY"), the other Credit Support Parties (as defined in Section 4 hereof),
THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each
individually referred to herein as a "LENDER" and collectively as "LENDERS"),
BANKERS TRUST COMPANY, THE CHASE MANHATTAN BANK (formerly known as CHEMICAL
BANK) and CITICORP USA, INC., as co-syndication agents for Lenders (in such
capacity, each individually referred to herein as a "CO-SYNDICATION AGENT" and
collectively as "CO-SYNDICATION AGENTS"), and CREDIT LYONNAIS NEW YORK BRANCH,
as administrative agent for Lenders (in such capacity, "ADMINISTRATIVE AGENT"),
and is made with reference to that certain Credit Agreement dated as of May 23,
1996, by and among Holdings, Company, Lenders, Co-Syndication Agents and
Administrative Agent, as amended by the First Amendment to Credit Agreement,
Guaranties and Certain Collateral Documents dated as of July 1, 1996, the Second
Amendment to Credit Agreement, Guaranties and Certain Collateral Documents dated
as of November 19, 1996, the Third Amendment to Credit Agreement dated as of
March 7, 1997, the Consent dated as of March 7, 1997, the Fourth Amendment to
Credit Agreement dated as of July 9, 1997, and the Fifth Amendment to Credit
Agreement dated December 9, 1997 (as so amended, the "CREDIT AGREEMENT"), and to
the other Loan Documents. Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Loan Parties and Lenders desire to amend the Credit Agreement
to permit Company and its Subsidiaries to make Asset Sales having a fair market
value not in excess of $30,000,000.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO THE CREDIT AGREEMENT
1.1 AMENDMENT TO SECTION 7.7: RESTRICTION ON FUNDAMENTAL CHANGES;
ASSET SALES AND ACQUISITIONS
Subsection 7.7(vi) of the Credit Agreement is hereby amended by
deleting the reference to "$20,000,000" contained therein and substituting
"$30,000,000" therefor.
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SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the prior
or concurrent satisfaction of all of the following conditions precedent (the
date of satisfaction of such conditions being referred to herein as the
"AMENDMENT EFFECTIVE DATE"):
A. On or before the Amendment Effective Date, Company shall deliver to
Lenders (or to Administrative Agent for Lenders) the following, each, unless
otherwise noted, dated the Amendment Effective Date:
1. Resolutions of its Board of Directors of Company approving
and authorizing the execution, delivery, and performance of this
Amendment, certified as of the Amendment Effective Date by its
corporate secretary or an assistant secretary as being in full force
and effect without modification or amendment;
2. Signature and incumbency certificates of the officers of
Company certified by its corporate secretary or assistant secretary;
and
3. Counterparts of this Amendment executed by Requisite
Lenders and each of the other parties hereto.
B. On or before the Amendment Effective Date, all corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
Company hereby agrees that Company shall deliver to Lenders (or to
Administrative Agent for Lenders) on or before January 15, 1999 (i) resolutions
of the Board of Directors of Holdings approving and authorizing (retroactively
or otherwise) the execution, delivery and performance of this Amendment,
certified on or before January 15, 1999 by its corporate secretary or an
assistant secretary as being in full force and effect without modification or
amendment, and (ii) signature and incumbency certificates of Holdings dated on
or before January 15, 1999 certified by its corporate secretary or assistant
secretary.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, each of Holdings, Company
and each other Loan Party party hereto represents and warrants to each Lender
that the following statements are true, correct and complete:
A. CORPORATE POWER AND AUTHORITY. Each Loan Party party hereto has all
requisite corporate power and authority to enter into this Amendment and to
carry out the
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transactions contemplated hereby and each of Holdings, Company and each other
Loan Party party hereto has all requisite corporate power and authority to carry
out the transactions contemplated by, and perform its obligations under, the
Credit Agreement as further amended by this Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Holdings, Company and each of
the other Loan Parties party hereto, as the case may be.
C. NO CONFLICT. The execution and delivery by each Loan Party party
hereto of this Amendment and the performance by such Loan Party of this
Amendment and the performance by Holdings and Company of the Amended Agreement
do not and will not (i) violate any provision of any law or any governmental
rule or regulation applicable to Holdings or any of its Subsidiaries, the
Certificate or Articles of Incorporation or Bylaws of Holdings or any of its
Subsidiaries or any order, judgment or decree of any court or other agency of
government binding on Holdings or any of its Subsidiaries, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under the Holdings Note Indenture or the Holdings Note or any other
Contractual Obligation of Holdings or any of its Subsidiaries, (iii) result in
or require the creation or imposition of any Lien upon any of the properties or
assets of Holdings or any of its Subsidiaries (other than any Liens created
under any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Holdings or any of its
Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by each Loan Party
party hereto of this Amendment and the performance by such Loan Party of this
Amendment and the performance by Holdings and Company of the Amended Agreement
do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
E. BINDING OBLIGATION. This Amendment has been duly executed and
delivered by each Loan Party party hereto and this Amendment and the Amended
Agreement are the legally valid and binding obligations of such Loan Party,
enforceable against such Loan Party in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement and the Amended Credit Agreement are and will be true, correct
and complete in all material respects on and as of the 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.
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G. ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Company is a party to certain Collateral Documents, in each case as
amended through the Amendment Effective Date, pursuant to which Company has
created Liens in favor of Administrative Agent on certain Collateral to secure
the Obligations. Each of the other Loan Parties party hereto is a party to
certain Collateral Documents, the Subsidiary Guaranty or the Holdings Guaranty,
in each case as amended through the Amendment Effective Date, pursuant to which
each such Loan Party has (i) guarantied the Obligations and (ii) created Liens
in favor of Administrative Agent on certain Collateral to secure the obligations
of such Loan Party under the Subsidiary Guaranty or the Holdings Guaranty, as
the case may be. The Loan Parties party hereto are collectively referred to
herein as the "CREDIT SUPPORT PARTIES", and the Collateral Documents, the
Subsidiary Guaranty and the Holdings Guaranty are collectively referred to
herein as the "CREDIT SUPPORT DOCUMENTS".
Each Credit Support Party hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement, the Collateral Documents and
Guaranties and this Amendment and consents to the further amendment of the
Credit Agreement effected pursuant to this Amendment. Each Credit Support Party
hereby confirms that each Credit Support Document to which it is a party or
otherwise bound and all Collateral encumbered thereby will continue to guaranty
or secure, as the case may be, to the fullest extent possible the payment and
performance of all "Obligations," "Guarantied Obligations" and "Secured
Obligations," as the case may be (in each case as such terms are defined in the
applicable Credit Support Document), including without limitation the payment
and performance of all such "Obligations," "Guarantied Obligations" or "Secured
Obligations," as the case may be, in respect of the Obligations of Company now
or hereafter existing under or in respect of the Amended Agreement and the Notes
defined therein.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support 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 Credit Support Party
represents and warrants that all representations and warranties contained in the
Amended Agreement and the other Credit Support Documents to which it is a party
or otherwise bound are true, correct and complete in all material respects on
and as of the 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.
Each Credit Support Party (other than Holdings and Company)
acknowledges and agrees that (i) notwithstanding the conditions to effectiveness
set forth in this
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Amendment, such Credit Support 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 Credit Support Party to any future amendments to the Credit
Agreement.
SECTION 5. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import 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 Amended Agreement.
(ii) 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.
(iii) 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 Agent or any Lender under, the Credit Agreement or any of
the other Loan Documents.
B. FEES AND EXPENSES. Company acknowledges that all reasonable costs,
fees and expenses as described in subsection 11.2 of the Credit Agreement
incurred by Administrative Agent and its counsel with respect to this Amendment
and the documents and transactions contemplated hereby shall be for the account
of Company.
C. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. APPLICABLE LAW. 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 INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate 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;
signature pages may be detached
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from multiple separate counterparts and attached to a single counterpart so that
all signature pages are physically attached to the same document. This Amendment
(other than the provisions of Section 1, which shall become effective upon the
satisfaction of each of the conditions set forth in Section 2 hereof) shall
become effective upon the execution of a counterpart hereof by Requisite Lenders
and each of the other parties hereto and receipt by Company and Administrative
Agent of written or telephonic notification of such execution and authorization
of delivery thereof.
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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.
FRD ACQUISITION CO.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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FRI-M CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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FRI-FRD CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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CFC FRANCHISING COMPANY
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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FRI-J CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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JOJOS RESTAURANTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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JOJOS CALIFORNIA FAMILY RESTAURANTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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COCO'S RESTAURANTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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FRI-C CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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CARROWS RESTAURANTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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CARROWS CALIFORNIA FAMILY RESTAURANTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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FRI-DHD CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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FAR WEST CONCEPTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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FRI-NA CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Title: Xxxxxxx X. Xxxxx, Vice President and
Treasurer
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LENDERS: CREDIT LYONNAIS NEW YORK BRANCH,
individually and as Administrative Agent
By: /s/ Xxxxxx X. Xxx
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Title: SVP
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BANKERS TRUST COMPANY, individually and as
Co-Syndication Agent
By: /s/ Xxxx Xx Xxxxx
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Title: Assistant Vice President
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THE CHASE MANHATTAN BANK (FORMERLY KNOWN
AS CHEMICAL BANK), individually and as Co-
Syndication Agent
By: /s/ Xxxxxxxx Xxxxxxx, Xx.
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Title: Vice President
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CITICORP USA, INC., individually and as Co-
Syndication Agent
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President
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