Exhibit 4.21
FRI-M CORPORATION
FIFTH AMENDMENT TO CREDIT AGREEMENT
This FIFTH AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is
dated as of December 9, 1997 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, and the Fourth Amendment
to Credit Agreement dated as of July 9, 1997 (as so amended, the "CREDIT
AGREEMENT"), and to 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 Borrower to make Asset Sales having a fair market value not
in excess of $20,000,000.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
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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 "$10,000,000" therein and substituting "$20,000,000"
therefor.
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 each of
Holdings and 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 each of Holdings and 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.
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
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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 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.
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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.
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
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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 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.
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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 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:_______________________________________
Title:____________________________________
FRI-M CORPORATION
By:_______________________________________
Title:____________________________________
FRI-FRD CORPORATION
By:_______________________________________
Title:____________________________________
CFC FRANCHISING COMPANY
By:_______________________________________
Title:____________________________________
FRI-J CORPORATION
By:_______________________________________
Title:____________________________________
JOJOS RESTAURANTS, INC.
By:_______________________________________
Title:____________________________________
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JOJOS CALIFORNIA FAMILY
RESTAURANTS, INC.
By:_______________________________________
Title:____________________________________
COCO'S RESTAURANTS, INC.
By:_______________________________________
Title:____________________________________
FRI-C CORPORATION
By:_______________________________________
Title:____________________________________
CARROWS RESTAURANTS, INC.
By:_______________________________________
Title:____________________________________
CARROWS CALIFORNIA FAMILY
RESTAURANTS, INC.
By:_______________________________________
Title:____________________________________
FRI-DHD CORPORATION
By:_______________________________________
Title:____________________________________
S-2
FAR WEST CONCEPTS, INC.
By:_______________________________________
Title:____________________________________
FRI-NA CORPORATION
By:_______________________________________
Title:____________________________________
LENDERS: CREDIT LYONNAIS NEW YORK BRANCH,
individually and as Administrative Agent
By:_______________________________________
Title:____________________________________
BANKERS TRUST COMPANY, individually and
as Co-Syndication Agent
By:_______________________________________
Title:____________________________________
THE CHASE MANHATTAN BANK (FORMERLY
KNOWN AS CHEMICAL BANK), individually and as
Co-Syndication Agent
By:_______________________________________
Title:____________________________________
CITICORP USA, INC., individually and as Co-
Syndication Agent
By:_______________________________________
Title:____________________________________
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