EXHIBIT 10.84
AFC ENTERPRISES, INC.
SECOND AMENDMENT
TO CREDIT AGREEMENT
This SECOND AMENDMENT, dated as of May 30, 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 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 desires to enter into a transaction to sell its
interest in SCC (as defined herein);
WHEREAS, Borrower and the Lenders have agreed to amend the Credit
Agreement, 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 1.1 AMENDMENTS TO SECTION 1: DEFINITIONS.
A. Section 1.01 of the Credit Agreement is hereby
amended by adding the following definitions:
"Second Amendment " means the amendment to the Credit
Agreement dated as of May 30, 2003.
1
"Second Amendment Effective Date" means the date on or prior
to May 30, 2003 upon which all the conditions precedent set forth in Section 2
of the Second Amendment are satisfied.
"SCC" means Seattle Coffee Company, a Georgia corporation and
its subsidiaries.
"SCC Disposition" means the sale by the Borrower of 100% of
its holding in SCC, pursuant to that certain Stock Purchase Agreement, dated as
of April 15, 2003, between the Borrower and Starbucks Corporation, as may be
amended.
B. The definition of "Outside Reporting Date" is
deleted and replaced in its entirety by the following:
"Outside Reporting Date" means August 22, 2003.
1.2 AMENDMENTS TO SECTION 6: NEGATIVE COVENANTS
A. Section 6.03(a) is hereby amended by adding the
following proviso at the end thereof, after the phrase "State of Georgia":
";provided further that, notwithstanding anything to
the contrary herein, the Borrower shall be permitted to enter into and
consummate the SCC Disposition and SCC shall be released from any
further obligations in connection with this Agreement, so long as (y)
the gross proceeds from the SCC Disposition (subject to any working
capital, EBITDA and lease consent adjustments) are at least $70 million
and (z) the Net Proceeds thereof are applied as prepayments of Loans as
required pursuant to Section 2.10(c) of this Agreement."
B. The last sentence of each of Sections 6.10, 6.12,
6.13, 6.14 and 6.15 is hereby deleted in its entirety and the following sentence
is inserted in lieu thereof:
"Furthermore, notwithstanding anything to the contrary in this
Agreement, the parties hereto acknowledge that for the purposes of
measuring compliance with the covenant set forth above, with respect to
any measurement of compliance as at the end of the fourth fiscal
quarter 2002 and the first fiscal quarter 2003 (or the provision of
certificates pursuant to Section 5.01(c)), such compliance shall not be
measured until the earlier of (i) delivery of financial information
pursuant to Section 5.01(a), as applicable, and (ii) the Outside
Reporting Date."
1.3 AMENDMENT TO SECTION 4.02: EACH CREDIT EVENT
A. Section 4.02 is hereby amended by adding the
following subsection after subsection 4.02(c):
2
"(d) The parties understand and acknowledge that with respect to any of
the covenants set forth in Sections 6.10, 6.12, 6.13, 6.14 and 6.15,
notwithstanding the extensions to the Outside Reporting Date provided with
respect to the provision of certain financial information under Section 5.1 of
this Agreement, Borrower may continue to make Borrowings hereunder until the
earlier of (i) delivery of financial information pursuant to Section 5.01(a), as
applicable, and (ii) the Outside Reporting Date, unless, the Borrower has actual
knowledge that there has been a Default or Event of Default with respect to any
of such covenants (it being understood that Section 4.02(b) shall apply with
respect to any Default or Event of Default)."
1.4 AMENDMENT TO SECTION 5.01(B): FINANCIAL STATEMENTS
A. Section 5.01(b) is hereby amended by adding the
following proviso after at the end of this subsection:
; provided further that, notwithstanding anything to the
contrary herein, with respect to Borrower's first fiscal quarter of
2003, Borrower will furnish the information required above by the
Outside Reporting Date instead of within 45 days after the end of the
first fiscal quarter 2003.
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 and the Required Lenders and
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 Second 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 Second 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 Second 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 Second
Amendment Effective Date certifying that, (y) to the best knowledge of the
Borrower, it is in compliance with Sections 6.10, 6.12,
3
6.13, 6.14 and 6.15 of the Credit Agreement and that at no time has it been in
default of any such Section based upon the financial information available to
said Financial Officer on the Second 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. As of the Second 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.
F. Administrative Agent shall have received,
for distribution to all Lenders executing this Amendment by 12:00 noon Eastern
time on Friday, May 30, 2003 an amendment fee equal to 0.10% of such Lenders'
outstanding Loans and Commitments immediately prior to the Second Amendment
Effective Date.
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 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
4
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 Second 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 Second 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
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/ Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President & Treasurer
LENDERS:
JPMORGAN CHASE BANK, INDIVIDUALLY AS A
LENDER AND AS ADMINISTRATIVE AGENT,
By: /s/ X. X. Xxxxxxx
---------------------------------------
Name: X. X. Xxxxxxx
Title: Managing Director
S-1
IN WITNESS WHEREOF, the parties hereof have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the date first above written.
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
AFC HOLDINGS OF TEXAS, LLC
By: AFC Enterprises, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
SEATTLE COFFEE COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Secretary
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
SEATTLE'S BEST COFFEE LLC
By: Seattle Coffee Company
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Authorized Agent
TOREFAZIONE ITALIA, LLC
By: Seattle Coffee Company
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Authorized Agent
CINNABON INC.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President/Secretary
[Individual Lender Signature Pages Omitted]
S-2
