EXHIBIT 10.90
AFC ENTERPRISES, INC.
SIXTH AMENDMENT
TO CREDIT AGREEMENT
This SIXTH AMENDMENT, dated as of March 26, 2004 (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, the Third
Amendment to the Credit Agreement, dated July 14, 2003, the Fourth Amendment to
the Credit Agreement dated August 22, 2003, and the Fifth Amendment to the
Credit Agreement, dated October 30, 2003, each of the First Amendment, the
Second Amendment, the Third Amendment, the Fourth Amendment and the Fifth
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 fiscal year 2003
financial reports, 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:
"Sixth Amendment" means the amendment to the Credit Agreement dated as
of March 26, 2004.
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"Sixth Amendment Effective Date" means the date on or prior to March
26, 2004 upon which all the conditions precedent set forth in Section 2 of the
Sixth Amendment are satisfied.
1.2 AMENDMENTS TO SECTION 5: AFFIRMATIVE COVENANTS
A. Section 5.01(a) is hereby amended by adding the following
sentence at the end of such Section:
"Notwithstanding anything to the contrary set forth in the foregoing,
such annual financial information and statements with respect to fiscal year
2003 shall be furnished no later than April 12, 2004."
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 Sixth 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 Sixth 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 Sixth 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. As of the Sixth 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.
E. Administrative Agent shall have received, for distribution to
all Lenders executing this Amendment by 3:00 p.m. Eastern time on Thursday,
March 25, 2004 an amendment fee equal to 0.08% of such Lenders' outstanding
Loans and Commitments immediately prior to the Sixth Amendment Effective Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES
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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 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 Sixth 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
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(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 Sixth 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 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
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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.]
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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.
BORROWER: AFC ENTERPRISES, INC.,
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
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
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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
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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 Lenders Signature Pages Omitted]
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