EX-10.84 SECOND AMENDMENT TO CREDIT FACILITY

EX-10.84 13 g87807exv10w84.txt EX-10.84 SECOND AMENDMENT TO CREDIT FACILITY 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, J.P.MORGAN 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/ Gary A. Hunt --------------------------------------- Name: Gary A. Hunt Title: Vice President & Treasurer LENDERS: JPMORGAN CHASE BANK, INDIVIDUALLY AS A LENDER AND AS ADMINISTRATIVE AGENT, By: /s/ L. E. Osborne --------------------------------------- Name: L. E. Osborne 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/ Allan J. Tanenbaum --------------------------------------- Name: Allan J. Tanenbaum Title: Secretary AFC OF LOUISIANA, LLC By: AFC Enterprises, Inc., Sole Member By: /s/ Allan J. Tanenbaum --------------------------------------- Name: Allan J. Tanenbaum Title: Secretary CHURCH'S TEXAS HOLDINGS, LLC By: AFC Enterprises, Inc., General Partner By: /s/ Allan J. Tanenbaum --------------------------------------- Name: Allan J. Tanenbaum Title: Vice President AFC HOLDINGS OF TEXAS, LLC By: AFC Enterprises, Inc. By: /s/ Allan J. Tanenbaum --------------------------------------- Name: Allan J. Tanenbaum Title: Vice President SEATTLE COFFEE COMPANY By: /s/ Allan J. Tanenbaum --------------------------------------- Name: Allan J. Tanenbaum Title: Secretary CINNABON INTERNATIONAL, INC. By: /s/ Allan J. Tanenbaum --------------------------------------- Name: Allan J. Tanenbaum Title: Senior Vice President/Secretary CT RESTAURANTS, L.P. By: Church's Texas Holdings, LLC By: AFC Enterprises, Inc. By: /s/ Allan J. Tanenbaum --------------------------------------- Name: Allan J. Tanenbaum Title: Vice President SEATTLE'S BEST COFFEE LLC By: Seattle Coffee Company By: /s/ Allan J. Tanenbaum --------------------------------------- Name: Allan J. Tanenbaum Title: Authorized Agent TOREFAZIONE ITALIA, LLC By: Seattle Coffee Company By: /s/ Allan J. Tanenbaum --------------------------------------- Name: Allan J. Tanenbaum Title: Authorized Agent CINNABON INC. By: /s/ Allan J. Tanenbaum --------------------------------------- Name: Allan J. Tanenbaum Title: Senior Vice President/Secretary [Individual Lender Signature Pages Omitted] S-2