EXHIBIT 10.67
AFC ENTERPRISES, INC.
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT, dated as of February 6, 2001 (this "Amendment") to
that certain AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 15, 1998,
as amended by the FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated
as of October 1, 1999 (the "First Amendment"), is entered into by and among AFC
ENTERPRISES, INC., a Delaware corporation ("Company"), XXXXXXX XXXXX CREDIT
PARTNERS L.P. ("GSCP"), as Lead Arranger (in such capacity, "Lead Arranger") and
as syndication agent (in such capacity, "Syndication Agent"), CANADIAN IMPERIAL
BANK OF COMMERCE, acting through its New York Agency ("CIBC"), as administrative
agent (in such capacity, "Administrative Agent"), THE FINANCIAL INSTITUTIONS
LISTED ON THE SIGNATURE PAGES THEREOF (each a "Lender" and collectively
"Lenders"), and THE SUBSIDIARY GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
(each a "Subsidiary Guarantor" and collectively the "Subsidiary Guarantors")
(the "Credit Agreement"; capitalized terms used herein without definition shall
have the meanings given those terms in the Credit Agreement).
RECITALS:
WHEREAS, Company desires to amend the Credit Agreement in order to (i)
waive the requirement that it use proceeds from its initial public offering to
prepay Loans, (ii) extend availability of Acquisition Loans, (iii) permit
Company to use the proceeds of Acquisition Loans for general corporate purposes,
including Consolidated Capital Expenditures and Permitted Joint Venture
Investments, (iv) allow certain additional Capital Expenditures, (v) permit
Company to repurchase additional Unsecured Subordinated Notes, subject to
certain limitations, and (vi) make certain other modifications; and
WHEREAS, in connection with the foregoing, Requisite Lenders have agreed to
amend the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Requisite Lenders, Lead
Arranger, Syndication Agent, Administrative Agent and the Subsidiary Guarantors
agree as follows:
Section 1. AMENDMENTS TO CREDIT AGREEMENT
1.1 Definitions: (i) Subsection 1.1 of the Credit Agreement is
hereby amended by deleting the definition of "Acquisition Facility Commitment",
"Acquisition Loans", "Acquisition Loan Notes", "Cash Equivalents", "Consolidated
Total Debt", "Notice of Borrowing", "Permitted Foreign Joint Venture
Investment", "Revolving Loan Commitment", "Revolving Loans", "Revolving Notes",
"Term Loan Commitment", "Term Loan Notes" and "Term Loans" in their entirety and
substituting the following therefor (both in Subsection 1.1 and as used in other
provisions of the Credit Agreement and the other Loan Documents):
"Acquisition Facility Commitment" means (i) with respect to the period
prior to the Effective Date, the commitment of a Lender to make Acquisition
Loans to the Company pursuant to subsection 2.1A(i) of the Existing Credit
Agreement, and (ii) thereafter, the commitments of Lenders to make
Acquisition Loans as set forth in subsection 2.1A(ii) or (vi) of this
Agreement and "Acquisition Facility Commitments" means such commitments of
all Lenders in the aggregate.
"Acquisition Loans" means (i) the Existing Acquisition Loans, (ii) the
Loans made by the Lenders to the Company pursuant to subsection 2.1A(ii),
and (iii) Additional Acquisition Loans, if any, made by Lenders pursuant to
subsection 2.1A(vi).
"Acquisition Loan Notes" means (i) the promissory notes of the Company
issued pursuant to subsection 2.1E of the Existing Credit Agreement and/or
2.1A(vi) of this Agreement and (ii) any promissory notes issued by the
Company pursuant to subsection 10.1B(i) in connection with assignments of
the Acquisition Facility Commitments or Acquisition Loans, in each case
substantially in the form of Exhibit IV-A annexed hereto, as they may be
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amended, restated, supplemented or otherwise modified from time to time.
"Cash Equivalents" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed
as to interest and principal by the United States Government or (b) issued
by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing
within one year after such date; (ii) marketable direct obligations issued
by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof, in each case
maturing within one year after such date and having, at the time of the
acquisition thereof, the highest rating obtainable from either Standard &
Poor's Ratings Group ("S&P") or Xxxxx'x Investors Service, Inc.
("Moody's"); (iii) commercial paper maturing no more than one year from the
date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moody's;
(iv) certificates of deposit or bankers' acceptances maturing within one
year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia or any foreign country that
(a) is at least "adequately capitalized" (as defined in the regulations of
its primary Federal banking regulator) and (b) has Tier 1 capital (as
defined in such regulations) of not less than $100,000,000 (a "Cash
Equivalent Bank"); (v) Eurodollar time deposits having a maturity of less
than one year purchased directly from any Lender or Cash Equivalent Bank;
(vi) shares of any money market mutual fund that (a) has at least 95% of
its assets invested continuously in the types of investments referred to in
clauses (i) through (v) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P or
Moody's; and (vii) shares of any tax exempt mutual fund that (a) has at
least 95% of its assets invested continuously in the types of investments
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referred to in clause (ii) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P or
Moody's.
"Consolidated Total Debt" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and
its Subsidiaries determined on a consolidated basis in accordance with
GAAP.
"Notice of Borrowing" means with respect to Loans to be made under
subsection 2.1A(ii), 2.1A(iii) , 2.1A(iv), 2.1A(v) or 2.1A(vi) a notice
substantially in the form of Exhibit I annexed hereto delivered by Company
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to Administrative Agent pursuant to subsection 2.1B with respect to a
proposed borrowing.
"Permitted Joint Venture Investment" means one or more Investments by
Company in Joint Ventures; provided that, (i) each such Joint Venture
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interest of Company shall be at least 10% of the total Joint Venture
interests of each such Joint Venture, (ii) the aggregate Investments by
Company in all such Joint Ventures shall not exceed initially $30,000,000,
provided that, beginning in fiscal year 2002, the limit on such aggregate
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Investments shall increase by $10,000,000 per annum and (iii) the
businesses of each such Joint Venture shall consist of the development and
operation of any business which may be conducted by the Company hereunder.
"Revolving Loan Commitment" means the commitment of a Lender to make
Revolving Loans to Company pursuant to subsection 2.1A(iv) or (vi), and
"Revolving Loan Commitments" means such commitments of all Lenders in the
aggregate.
"Revolving Loans" means (i) the Loans made by Lenders to Company
pursuant to subsection 2.1A(iii) of the Existing Credit Agreement and
outstanding after the Effective Date, (ii) any Loans made by Lenders to
Company pursuant to subsection 2.1A(iv) of this Agreement, and (iii)
Additional Revolving Loans, if any, made by Lenders pursuant to subsection
2.1A(vi).
"Revolving Notes" means (i) the promissory notes of Company issued
pursuant to the Existing Credit Agreement and/or 2.1A(vi) of this Agreement
and (ii) any promissory notes issued by Company pursuant to the last
sentence of subsection 10.1B(i) in connection with assignments of the
Revolving Loan Commitments and Revolving Loans of any Lenders, in each case
substantially in the form of Exhibit IV-C annexed hereto, as they may be
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amended, supplemented or otherwise modified from time to time.
"Term Loan Commitment" means the commitment of a Lender to make Term
Loans to the Company pursuant to subsection 2.1A(ii) of the Existing Credit
Agreement or 2.1A(vi) of this Agreement, and "Term Loan Commitments" means
such commitments of all Lenders in the aggregate.
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"Term Loan Notes" means (i) the promissory notes of the Company issued
pursuant to subsection 2.1E(b) of the Existing Credit Agreement on the
Closing Date and/or 2.1A(vi) of this Agreement and (ii) any promissory
notes issued by the Company pursuant to subsection 10.1B(i) in connection
with assignments of the Term Loan Commitments or Term Loans, in each case
substantially in the form of Exhibit IV-B annexed hereto, as they may be
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amended, restated, supplemented or otherwise modified from time to time.
"Term Loans" means (i) the Existing Term Loans and (ii) Additional
Term Loans, if any, made by Lenders pursuant to subsection 2.1A(vi).
(ii) Subsection 1.1 of the Credit Agreement is hereby further
amended by inserting each of the following definitions in the appropriate
alphabetical order:
"Additional Acquisition Loans" has the meaning assigned to that term
in subsection 2.1A.
"Additional Acquisition Facility Commitments" has the meaning assigned
to that term in subsection 2.1A.
"Additional Acquisition Lender" has the meaning assigned to that term
in subsection 2.1A.
"Additional Commitments" has the meaning assigned to that term in
subsection 2.1A
"Additional Lenders" has the meaning assigned to that term in
subsection 2.1A
"Additional Loans" has the meaning assigned to that term in subsection
2.1A.
"Additional Revolving Lender" has the meaning assigned to that term in
subsection 2.1A.
"Additional Revolving Loan Commitments" has the meaning assigned to
that term in subsection 2.1A.
"Additional Term Loans" has the meaning assigned to that term in
subsection 2.1A.
"Additional Term Loan Commitments" has the meaning assigned to that
term in subsection 2.1A.
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"Additional Term Lender" has the meaning assigned to that term in
subsection 2.1A.
"Second Amendment" means the Second Amendment, dated as of February
6, 2001, to the Credit Agreement, by and among Company, the Lenders party
thereto, Administrative Agent, Lead Arranger and Syndication Agent and the
Subsidiary Guarantors party thereto.
"Second Amendment Closing Date" means the "Second Amendment Closing
Date", as such term is defined in Second Amendment.
(iii) Subsection 1.1 of the Credit Agreement is hereby further
amended by deleting clause (ii)(a) in the definition of "Consolidated
Excess Cash Flow" and substituting the following therefor:
"(a) voluntary, mandatory and scheduled repayments of
Consolidated Total Debt (excluding repayments of Revolving Loans and
Acquisition Loans, respectively, except to the extent the Revolving Loan
Commitments and Acquisition Facility Commitments, respectively, are
permanently reduced in connection with such repayments and mandatory
repayments of the Loans pursuant to subsection 2.4B(iii)),"
1.2 Existing Loans: Subsection 2.1A(i) of the Credit Agreement is
hereby amended by deleting the last sentence thereof and substituting the
following therefor:
"Voluntary prepayments of Acquisition Loans, and amounts repaid or
prepaid in respect of Revolving Loans, may be reborrowed to but excluding
June 30, 2002."
1.3 Acquisition Loans: (i) Subsection 2.1A(ii) (as it appears in the
First Amendment) of the Credit Agreement is hereby amended by deleting the first
reference to "the fourth anniversary of the Closing Date" contained therein and
substituting "but excluding June 30, 2002" therefor.
(ii) Subsection 2.1A(ii) of the Credit Agreement is hereby
further amended by deleting the last sentence and the second proviso in the
penultimate sentence thereof and substituting the following therefor:
"Each Lender's Acquisition Facility Commitment shall expire on
June 30, 2002 and all Acquisition Loans and all other amounts owed
hereunder with respect to the Acquisition Loans and the Acquisition
Facility Commitments shall be paid in full no later than that date.
Voluntary prepayments of Acquisition Loans may be reborrowed to but
excluding June 30, 2002."
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(iii) Subsection 2.1A(ii) of the Credit Agreement is hereby
further amended by deleting the reference to "aggregate amount" in each
instance contained therein and substituting "aggregate original amount"
therefor.
1.4 Tranche B Term Loans: Subsection 2.1A(iii) of the Credit Agreement
(as it appears in the First Amendment) is hereby amended by deleting the
reference to "aggregate amount" in each instance contained therein and
substituting "aggregate original amount" therefor.
1.5 Increased Amounts: Subsection 2.1A(vi) of the Credit Agreement is
hereby deleted in its entirety and the following substituted therefor:
"(vi) Increased Amounts. Company may by written notice to Lead
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Arranger, Administrative Agent and Lenders elect to request that one or
more Lenders or other persons that are Eligible Assignees provide
additional Tranche B Term Loan Commitments ("Additional Tranche B Term Loan
Commitments"), additional Acquisition Facility Commitments ("Additional
Acquisition Facility Commitments"), additional Revolving Loan Commitments
("Additional Revolving Loan Commitments") or additional Term Loan
Commitments ("Additional Term Loan Commitments," together with Additional
Tranche B Term Loan Commitments, Additional Acquisition Facility
Commitments and Additional Revolving Loan Commitments, the "Additional
Commitments"), by an amount not in excess of $25,000,000 in the aggregate
and not less than $5,000,000 individually and integral multiples of
$5,000,000 in excess of that amount. Each such notice shall specify (A) the
date (each, an "Increased Amount Date") on which Company proposes that any
Additional Commitments shall be effective and that Tranche B Term Loans,
Acquisition Loans, Revolving Loans or Term Loans provided pursuant thereto
(in each case collectively, "Additional Tranche B Term Loans", "Additional
Acquisition Loans", "Additional Revolving Loans" or "Additional Term
Loans", together the "Additional Loans") shall be made, and (B) the
identity of each Lender or other Person that is an Eligible Assignee (in
each case, an "Additional Tranche B Term Lender", "Additional Acquisition
Lender", "Additional Revolving Lender" or "Additional Term Lender",
together the "Additional Lenders") to whom Company proposes any portion of
any such Additional Commitments be allocated and the amounts of such
allocations; provided (x) any Lender may decline, in its sole discretion,
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to provide any such Additional Commitments and (y) Lead Arranger shall be
given the first opportunity to (but shall not be obligated to) arrange any
such proposed Additional Commitments on terms and conditions to be agreed
between the Lead Arranger and Company. Such Additional Commitments shall
become effective and, if applicable, the related Additional Loans shall be
made as of such Increased Amount Date; provided (1) no Default or Event of
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Default shall exist on such Increased Amount Date before or after giving
effect to the making of any such Additional Loans, Company shall be in
compliance, on a Pro Forma Basis, with the requirements of subsection 7.6D
as of the last day of the fiscal quarter most recently ended; (2) both
before and after giving effect to the
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making of any such Additional Loans, each of the conditions set forth in
subsection 4.3 shall be satisfied; (3) each Additional Commitment and
Additional Loan shall be effected pursuant to one or more joinder
agreements, in each case in form and substance reasonably satisfactory to
Lead Arranger and Administrative Agent, and recorded in the Register; and
(4) Company shall deliver, or cause to be delivered, Tranche B Term Notes,
Acquisition Loan Notes, Revolving Notes or Term Loan Notes, as appropriate
for each of the Additional Lenders providing Additional Commitments,
together with any legal opinions or other documents reasonably requested by
Lead Arranger or Administrative Agent in connection with any such
transaction.
On each Increased Amount Date, subject to the satisfaction of the
foregoing terms and conditions, (i) each Additional Tranche B Term Lender
or Additional Term Lender shall make respectively an Additional Tranche B
Term Loan or Additional Term Loan, as the case may be, to Company in an
amount equal to its respective Additional Tranche B Term Loan Commitment or
Additional Term Loan Commitment, (ii) each Additional Tranche B Term Loan,
Additional Acquisition Loan, Additional Revolving Loan or Additional Term
Loan made hereunder shall be deemed a Tranche B Term Loan, Acquisition
Loan, Revolving Loan or Term Loan as appropriate, and (iii) each Additional
Tranche B Term Lender, Additional Acquisition Lender, Additional Revolving
Lender or Additional Term Lender shall become a Lender hereunder with
respect thereto. The Administrative Agent shall notify the Lenders
promptly upon receipt of Company's notice of each Increased Amount Date and
the related Additional Commitments and the terms thereof.
On any Increased Amount Date on which Additional Acquisition Facility
Commitments are effected, subject to the satisfaction of the foregoing
terms and conditions, each Lender of Acquisition Loans shall assign to each
of the Additional Acquisition Lenders, and each of the Additional
Acquisition Lenders shall purchase from each Lender of Acquisition Loans,
at the principal amount thereof (together with accrued interest), such
interests in the Acquisition Loans outstanding on such Increased Amount
Date as shall be necessary in order that, after giving effect to all such
assignments and purchases, such Acquisition Loans will be held by existing
Lenders of Acquisition Loans and Additional Acquisition Lenders ratably in
accordance with their Acquisition Loan Commitments after giving effect to
the addition of such Additional Acquisition Facility Commitments to the
Acquisition Loan Commitments.
On any Increased Amount Date on which Additional Revolving Loan
Commitments are effected, subject to the satisfaction of the foregoing
terms and conditions, each Lender of Revolving Loans shall assign to each
of the Additional Revolving Lenders, and each of the Additional Revolving
Lenders shall purchase from each Lender of Revolving Loans, at the
principal amount thereof (together with accrued interest), such interests
in the Revolving Loans outstanding on such Increased Amount Date as shall
be necessary in order that, after giving effect to all such assignments and
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purchases, such Revolving Loans will be held by existing Lenders of
Revolving Loans and Additional Revolving Lenders ratably in accordance with
their Revolving Loan Commitments after giving effect to the addition of
such Additional Revolving Loan Commitments to the Revolving Loan
Commitments."
1.6 Interest Periods: Subsection 2.2B(v) of the Credit Agreement is
hereby deleted in its entirety and the following substituted therefor:
"(v) no Interest Period with respect to any portion of the Loans
(excluding Tranche B Term Loans) shall extend beyond June 30, 2002 and no
Interest Period with respect to any portion of Tranche B Term Loans shall
extend beyond June 30, 2004;"
1.7 Amortization of Acquisition Loans: Subsection 2.4A(i) of the
Credit Agreement (as it appears in the First Amendment) is hereby deleted in its
entirety and subsections 2.4A(ii) and 2.4A(iii) are renumbered as 2.4A(i) and
2.4A(ii), respectively, throughout the Credit Agreement.
1.8 Amortization of Term Loans: Subsection 2.4A(i) (as amended hereby)
of the Credit Agreement is hereby amended by deleting the proviso thereto in its
entirety and substituting the following therefor:
"; provided that, with respect to Additional Term Loans, if any, such
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Loans shall be repaid on each of the dates set forth above occurring after
the Increased Amount Date, in an amount equal to a portion of such
Additional Term Loans, equal to the ratio of (y) the amount of the Existing
Term Loans being repaid on such date and (z) the total aggregate amount of
such Existing Term Loans outstanding on the applicable Increased Amount
Date; provided further that the scheduled installments of principal of the
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Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Term Loans in accordance with
subsection 2.4B(iv); and provided further that the Term Loans and all other
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amounts owed hereunder with respect to the Term Loans shall be paid in full
no later than June 30, 2002, and the final installment payable by Company
in respect of the Term Loans on such date shall be in an amount, if such
amount is different from that specified above, sufficient to repay all
amounts owing by Company under this Agreement with respect to the Term
Loans."
1.9 Mandatory Prepayments and Mandatory Reductions of Commitments:
Subsections 2.4B(iii)(a), (b), (d), (e) and (f) of the Credit Agreement are
hereby amended by (i) deleting references to "Tranche B Term Loans and, after
the third anniversary of the Closing Date, the Acquisition Loans" contained
therein and substituting "and Tranche B Term Loans" therefor and (ii) by
deleting all references to "and, prior to the third anniversary of the Closing
Date, the Acquisition Loans" therefrom.
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1.10 Prepayments Due to Issuance of Equity Securities: Subsection
2.4B(iii)(c) of the Credit Agreement is hereby deleted in its entirety and the
following substituted therefor:
"(c) Prepayments Due to Issuance of Equity Securities and Purchases
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of Unsecured Subordinated Notes. No later than the first Business Day
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following the date of receipt by Company or any of its Subsidiaries of the
Cash proceeds (net of underwriting discounts and commissions and other
reasonable costs associated therewith) from the issuance of any equity
Securities of such Person (including without limitation additional
issuances of Company Common Stock but excluding (x) issuances of Company
Common Stock to officers or employees of Company to the extent the proceeds
from such issuances do not exceed in the aggregate $5,000,000 during any
fiscal year and issuances of any Securities evidencing Indebtedness
permitted to be incurred pursuant to subsection 7.1, (y) issuance of
equity Securities to the extent the proceeds of which are used to fund
Permitted Acquisitions and (z) except as set forth below, the issuance of
Company Common Stock in an initial public offering), Company shall prepay
first the Term Loans and Tranche B Term Loans and, in the event of a
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prepayment pursuant to the immediately succeeding proviso, the Acquisition
Loans, on a pro rata basis to the full extent thereof (in accordance with
the respective outstanding principal amounts thereof), and second the
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Revolving Loans and, in the event of a prepayment other than pursuant to
the immediately succeeding proviso, the Acquisition Loans on a pro rata
basis to the full extent thereof (in accordance with the respective
outstanding principal amounts thereof) in an amount equal to the proceeds
of such issuance; provided, that on and after the date on which the
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Leverage Ratio (determined on a Pro Forma Basis giving effect to the
issuance and application of any equity Securities proceeds) is less than or
equal to 2.50:1.0, 50% of the amount of the proceeds otherwise required to
be utilized to prepay Loans pursuant to this subsection 2.4B(iii)(c) may be
applied to repurchase or prepay the Unsecured Subordinated Notes; provided
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further that, in the event that, on or after the Second Amendment Closing
Date, Company (x) uses proceeds derived from the issuance of Company
Common Stock in an initial public offering to repurchase Unsecured
Subordinated Notes or (y) repurchases incremental Unsecured Subordinated
Notes in an aggregate amount not to exceed $25,000,000, as permitted
pursuant to subsection 7.5, then Company shall prepay Loans as set forth
above in an amount equal to the aggregate purchase price paid with respect
to such repurchases. Any such mandatory prepayments shall be further
applied as specified in subsection 2.4B(iv)."
1.11 Application of Prepayments: Subsection 2.4B(iv)(b) of the Credit
Agreement is hereby amended by deleting subclause (ii) contained therein and
substituting the following therefor:
"(ii) in amount equal to that portion of the Waivable Mandatory
Prepayment otherwise payable to those Lenders that have elected to exercise
such option, to prepay the Term Loans on a pro rata basis (in accordance
with the outstanding principal amounts
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thereof) to the full extent thereof (which prepayments shall be applied to
the scheduled installments of the Term Loans in accordance with subsection
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2.4A(i)). Notwithstanding anything to the contrary set forth in this
subsection 2.4B(iv)(b), any Waivable Mandatory Prepayments resulting from
purchases of Unsecured Subordinated Debt pursuant to subsection
2.4B(iii)(c) shall be applied to Acquisition Loans (and Acquisition
Facility Commitments shall be permanently reduced to the same extent) and
Term Loans on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof)."
1.12 Use of Proceeds: Subsection 2.5A of the Credit Agreement is
hereby deleted in its entirety and the following substituted therefor:
"A. Acquisition Loans. The proceeds of the Acquisition Loans shall
be applied by Company (i) to finance Permitted Acquisitions (which may
include the simultaneous repayment of debt assumed in connection with
Permitted Acquisitions) and to pay related costs and expenses and (ii) for
working capital and/or general corporate purposes (including, without
limitation, for purposes of making Capital Expenditures to the extent
permitted under Subsection 7.8 and for purposes of making Permitted Joint
Venture Investments to the extent permitted under Subsection 7.3(xi))."
1.13 Conditions to All Loans: Subsection 4.3B(vi) of the Credit
Agreement is hereby amended by deleting the first parenthetical clause contained
therein and substituting the following parenthetical clause thereof:
"(or, in the case of any Additional Loans, prior to the Increased
Amount Date)"
1.14 Restricted Junior Payments: Subsection 7.5 of the Credit
Agreement is hereby deleted in its entirety and the following substituted
therefor:
"7.5 Restricted Junior Payments.
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Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Junior Payment; provided that Company may (i) make regularly
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scheduled payments of principal and interest in respect of the Unsecured
Subordinated Notes in accordance with the terms of, and only to the extent
required by, and subject to the subordination provisions contained in, the
Unsecured Subordinated Note Indenture, as the Unsecured Subordinated Note
Indenture may be amended from time to time to the extent permitted under
subsection 7.15 and repurchases or redemptions of Unsecured Subordinated
Notes with the proceeds of equity Securities (including Company's initial
public offering) as contemplated by subsection 2.4B(iii)(c), (ii)
repurchase or make redemptions of additional Unsecured Subordinated Notes,
so long as no Potential Event of Default or Event of Default shall have
occurred and be continuing, in addition to an initial amount not exceeding
$25,000,000 (such repurchases having been made prior to the Second
Amendment Closing Date), in an incremental amount not to exceed $25,000,000
in the
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aggregate, provided that (a) the Leverage Ratio is less than or equal to
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2.0:1.0 (on a Pro Forma Basis giving effect to the payments to be made
hereby) and (b) simultaneously with any such repurchase or redemption of
Unsecured Subordinated Notes, Term Loans, Tranche B Term Loans, Revolving
Loans and Acquisition Loans under the Agreement shall be prepaid to the
same extent on a pro rata basis in accordance with the provisions of
subsection 2.4B(iii)(c), (iii) make, so long as no Potential Event of
Default or Event of Default shall have occurred and be continuing, payments
to purchase Company Common Stock or options, warrants or rights to purchase
or acquire Company Common Stock to officers or employees or former officers
or employees (or their estates or estate beneficiaries) upon death,
disability, retirement or termination of employment from Company or its
Subsidiaries not to exceed $1,500,000 during any fiscal year, plus the
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amount of any Cash proceeds received by Company from the sale of Company
Common Stock to officers or employees of Company or its Subsidiaries within
such fiscal year and (iv) other Restricted Junior Payments described in
Schedule 7.5."
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1.15 Capital Expenditures: (i) Subsection 7.8 of the Credit Agreement
is hereby amended by adding a further proviso at the conclusion of 7.8A thereof
as follows:
"; provided still further that notwithstanding anything to the
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contrary set forth in this subsection 7.8A, the Maximum Consolidated
Capital Expenditures Amount permitted to be incurred in fiscal year 2001
shall not in any event exceed $45,000,000."
(ii) Subsection 7.8 of the Credit Agreement is hereby further amended
by deleting subsection 7.8B in its entirety and the following substituted
therefor:
"B. In addition to the foregoing, Company may make Consolidated
Capital Expenditures (i) in connection with Permitted Acquisitions, (ii)
with the proceeds of Specified Asset Sales and (iii) after the Second
Amendment Closing Date, solely for the purpose of reimaging its stores and
restaurants in an amount not to exceed $65,000,000, in the aggregate, and
such Consolidated Capital Expenditures made pursuant to this subsection
7.8B shall not be included for the purposes of calculating the Maximum
Consolidated Capital Expenditures set forth in subsection 7.8A."
Section 2. CONDITIONS PRECEDENT
2.1 The effectiveness of the amendments and other provisions set
forth at Sections 1 and 2 hereof, are subject to the satisfaction of the
following conditions on or before the date hereof (the "Second Amendment Closing
Date"):
(a) Administrative Agent shall have received sufficient copies
of this Amendment, originally executed and delivered by the Requisite
Lenders.
(b) Administrative Agent and its counsel shall have received
originally executed copies of the favorable written opinions of Xxxxx
Xxxxxxx Xxxxxx Xxxxxxx &
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Xxxxxxxxx, PC, counsel for Company and Subsidiary Guarantors, as to such
matters as Lead Arranger or Administrative Agent may reasonably request,
and otherwise in form and substance reasonably satisfactory to Lead
Arranger and Administrative Agent, dated as of the Second Amendment Closing
Date.
(c) As of the Second Amendment Closing Date, the representations
and warranties contained in the Credit Agreement and in the other Loan
Documents shall be true, correct and complete in all material respects on
and as of the Second Amendment Closing 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.
(d) As of the Second Amendment Closing Date, no event shall have
occurred and be continuing or would result from the consummation of the
borrowing contemplated by such Funding Notice that would constitute an
Event of Default or a Potential Event of Default.
(e) As of the Second Amendment Closing Date, Company shall have
paid to Administrative Agent, for distribution to each Lender executing and
delivering this Agreement, a non-refundable amendment fee in an amount
equal to (i) the aggregate amount of such Lender's Acquisition Loan
Exposure, Revolving Loan Exposure, Term Loan Exposure and Tranche B Term
Loan Exposure (prior to giving effect to the transactions contemplated
hereby) times (ii) 0.125%.
(f) Company shall have consummated the issuance of Company
Common Stock in an initial public offering.
2.2 Upon the occurrence of the Second Amendment Closing Date, the
Credit Agreement thereto shall be amended as set forth in Sections 1 and 2
hereof and all references in any other Loan Document to the Credit Agreement
shall be a reference to the Credit Agreement as amended pursuant to Sections 1
and 2 hereof. Notwithstanding anything herein or in any other Loan Document to
the contrary, each other Loan Document, including, without limitation, Company
Pledge Agreement, the Company Security Agreement, the Subsidiary Pledge
Agreements and the Subsidiary Security Agreements, shall continue in full force
and effect and, to the extent covered thereby, continue to secure the
Obligations.
Section 3. ACKNOWLEDGMENT AND CONSENT
3.1 Each Subsidiary Guarantor hereby acknowledges that it has
reviewed the terms and provisions of this Amendment and consents to the
amendment of the Credit Agreement effected pursuant to this Amendment. Each
Subsidiary Guarantor hereby confirms that each Loan Document to which it is a
party or otherwise bound and all Collateral encumbered
12
thereby will continue to guaranty or secure, as the case may be, to the fullest
extent possible, the payment and performance of all Obligations.
3.2 Each Subsidiary Guarantor acknowledges and agrees that each of
the Loan 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.
Section 4. MISCELLANEOUS
4.1 This Amendment shall be binding upon the parties hereto 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.
4.2 In case any provision in or obligation hereunder or any Note
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.
4.3 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.
4.4 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.
4.5 To facilitate reference to the provisions of the Credit
Agreement, as amended by this Amendment, each Lender executing this Amendment
hereby authorizes Administrative Agent, on its behalf, at the election of Lead
Arranger to enter into a conformed and restated Credit Agreement, as amended by
this Amendment and the First Amendment; provided that any such conformed and
--------
restated Credit Agreement shall be distributed to each Lender.
4.6 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.
[The remainder of this page is intentionally left blank.]
13
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.
COMPANY: AFC ENTERPRISES, INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
SUBSIDIARY GUARANTORS: CINNABON INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
CINNABON, INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
AFC PROPERTIES, INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
SEATTLE COFFEE COMPANY
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
S-1
SEATTLES BEST COFFEE, LLC
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
TORREFAZIONE ITALIA, LLC
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
AFC FRANCHISE ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
S-2
SYNDICATION AGENT, XXXXXXX XXXXX CREDIT PARTNERS L.P.
LEAD ARRANGER AND
A LENDER:
By: illegible
-----------------------------------
Authorized Signatory
S-3
SYNDICATION AGENT, XXXXXXX SACHS CREDIT PARTNERS L.P.
LEAD ARRANGER AND
A LENDER: By: /s/ ILLEGIBLE
--------------------------------
Authorized Signatory
S-3
ADMINISTRATIVE AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxxxxxx Xxxx
------------------------
Name: Xxxxxxxxx Xxxx
Title: Executive Director
CIBC World Markets Corp. As Agent
S-4
CIBC INC.
By: /s/ Xxxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxxx Xxxx
Title: Executive Director
CIBC World Markets Corp. As Agent
FIRST DOMINION FUNDING I
By: /s/ Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
/s/ Xxxx X. XxXxxxxx
-------------------------------------------
Xxxx X. XxXxxxxx
Authorized Signatory
FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
As Attorney in fact
/s/ Xxxx X. XxXxxxxx
-------------------------------------------
Xxxx X. XxXxxxxx
Authorized Signatory
CREDIT LYONNAIS, NEW YORK BRANCH
By: /s/ [ILLEGIBLE] Zagstin
----------------------------
Name: [ILLEGIBLE] Zagstin
Title: Managing Director
FIRST DOMINION FUNDING II
By: /s/ Xxxxx X. Xxxxxx
---------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. XxxXxxxxxx
---------------------------
Name: Xxxxxx X. XxxXxxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Duly Authorized Signatory
HIBERNIA NATIONAL BANK
By: /s/ Xxxxxx Xxxxx
--------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
KZH ING-1 LLC
By: /s/ Xxxxxxxx Xxxx
---------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH ING-3 LLC
By: /s/ Xxxxxxxx Xxxx
---------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH RIVERSIDE LLC
By: /s/ Xxxxxxxx Xxxx
---------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx CFA
Title: Vice President
SWISS LIFE US RAINBOW LIMITED
By: ING Capital Advisors LLC,
as Investment Manager
By: /s/ Xxxx X. Xxxxxx CFA
-----------------------------
Name: Xxxx X. Xxxxxx CFA
Title: Vice President
SOUTHTRUST BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: XX
XXXXX XXX & XXXXXXX CLO I LTD.
By: Xxxxx Xxx & Farnham Incorporated,
as Portfolio Manager
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President &
Portfolio Manager
XXX XXXXXX SENIOR
FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Inc.
By: /s/ Illegible
-----------------------------------
Name:
Title:
BANK OF SCOTLAND
By: /s/ Xxxxxx Xxxxxx
----------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
