FRI-M CORPORATION
FOURTH AMENDMENT
TO CREDIT AGREEMENT AND LIMITED WAIVER
This FOURTH AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER (this
"Amendment") is dated as of July 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, and the Consent dated as of March 7, 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 (i) amend the Credit Agreement
in connection with the reorganization and restructuring of FCI and Flagstar and
(ii) make certain other amendments as set forth below; and
WHEREAS, Company has requested that Lenders waive Company's compliance with
clause (ii) of subsection 8.15(iv) of the Credit Agreement (prior to it being
amended by Section 1 hereof) and Lenders are willing, subject to the terms and
conditions set forth herein, to waive under certain limited circumstances
Company's compliance with clause (ii) of subsection 8.15(iv) of the Credit
Agreement.
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. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Provisions Relating to Defined Terms
A. Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definitions, which shall be inserted in proper
alphabetical order:
"'Form S-4' means FCI's Form S-4 Amendment No. 3 to Registration Statement,
Registration No. 333-23875, as filed with the Securities and Exchange Commission
on June 2, 1997, and the Prospectus contained therein dated as of June 5, 1997.
'Reorganization Plan' means the Debtors' Joint Plan of Reorganization for
FCI and Flagstar, substantially in the form contained in the Form S-4, filed
with the United States Bankruptcy Court for the District of South Carolina or
such other Bankruptcy Court as FCI and Flagstar shall select, including all
exhibits and schedules annexed thereto or referred therein.
'Reorganization Plan Effective Date' means the date on which the
Reorganization Plan becomes effective (after having been confirmed by the
applicable bankruptcy court) in accordance with its terms.
'Reorganized Flagstar' means Flagstar Corporation, a Delaware corporation,
as successor by merger of Flagstar into FCI, with FCI surviving, which survivor
is immediately renamed as 'Flagstar Corporation' or such other name as shall be
determined by the Board of Directors of FCI.
'Reorganized Flagstar Credit Agreement' means that certain credit agreement
which becomes effective as of the Reorganization Plan Effective Date among
Flagstar and the lenders party thereto, and any agreements related thereto, as
such credit agreement or such related agreement may be amended from time to time
after the Reorganization Plan Effective Date to the extent permitted under
subsection 8.15.
'Reorganized Flagstar Indenture' means that certain indenture dated as of
the Reorganization Plan Effective Date between Flagstar and the trustee party
thereto relating to Flagstar's senior notes described in the Form S-4 and issued
pursuant to the Reorganization Plan, and any notes and agreements related
thereto, as such indenture, notes and agreements may be amended from time to
time after the Reorganization Plan Effective Date to the extent permitted under
subsection 8.15."
B. Subsection 1.1 of the Credit Agreement is hereby further amended by (1)
inserting immediately after the end of clause (iii) in the definition of
"Material Flagstar Agreements" the phrase "(iv) the Reorganized Flagstar Credit
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Agreement, (v) the Reorganized Flagstar Indenture," and (2) renumbering clauses
(iv), (v) and (vi) therein as clauses (vi), (vii) and (viii), respectively.
1.2 Amendments to Section 5: Representatives and Warranties
Subsection 5.8 of the Credit Agreement is hereby amended by adding at the
end thereof the following:
"E. The agreements described in clauses (iv), (v), (vi) and (vii) of
the definition of Material Flagstar Agreements are the only Material
Flagstar Agreements in effect on the Reorganization Plan Effective Date
(after giving effect to the Reorganization Plan). Company has delivered to
Lenders complete and correct copies of each such agreement and of all
exhibits and schedules thereto. Each of Holdings, Company and Company's
Subsidiaries is, and has been designated as, an 'Unrestricted Subsidiary'
under, and as defined in, the Reorganized Flagstar Credit Agreement and the
Reorganized Flagstar Indenture and the Board of Directors of Reorganized
Flagstar has made such designation, if required. As of the Reorganization
Plan Effective Date (after giving effect to the Reorganization Plan), each
of the Flagstar Credit Agreement, the Flagstar Indenture and the FCI
Intercompany Note has been terminated and are of no force and effect.
Neither the Reorganized Flagstar Credit Agreement nor the Reorganized
Flagstar Indenture has provisions applicable to Holdings, Company or any of
Company's Subsidiaries or provisions relating to 'Unrestricted
Subsidiaries' (as defined therein) applicable to Holdings, Company or any
of Company's Subsidiaries, in each case which are more adverse to, or more
restrictive with respect to, Holdings, Company or any of Company's
Subsidiaries in any material respect than the corresponding provisions
contained in the Flagstar Credit Agreement as in effect on the Closing Date
(in the case of the Reorganized Flagstar Credit Agreement) or either of the
Flagstar Indentures described in clauses (i) and (iv) of the definition
thereof as in effect on the Closing Date (in the case of the Reorganized
Flagstar Indenture). The execution, delivery or performance of the
Reorganized Flagstar Credit Agreement, the Reorganized Flagstar Indenture
and any other agreement entered into by Reorganized Flagstar pursuant to or
in connection with the Reorganization Plan and the consummation of the
transactions contemplated thereby and the consummation of the
Reorganization Plan, do not and will not conflict with, result in a breach
of or constitute (with due notice or lapse of time or both) a default under
any of the Loan Documents, the Holdings Note Indenture or any other
Contractual Obligations of any Loan Party.
1.3 Amendments to Section 8: Events of Default
A. Subsection 8.11 of the Credit Agreement is hereby amended by deleting
clauses (i), (ii), (iii) and (iv) therein in their entirety and substituting the
following therefor:
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"(i) Any Person or any two or more Persons acting in concert (other
than KKR, GTO, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc., Magten Asset Management
Corporation and ▇▇▇▇▇ Capital Management, Inc. and their respective
Affiliates) shall have acquired (x) beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Exchange Act), directly or indirectly, of Securities of Reorganized
Flagstar (or other Securities convertible into such Securities)
representing 35% or more of all Voting Stock of Reorganized Flagstar, or
(y) by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their
acquisition of, the power to exercise, directly or indirectly, a
controlling influence over the management or policies of Reorganized
Flagstar or (ii) Holdings shall cease at any time to be a direct
wholly-owned Subsidiary of Reorganized Flagstar"
B. Subsection 8.11 of the Credit Agreement is hereby further amended by
renumbering clauses (v), (vi) and (vii) therein as clauses (iii), (iv) and (v)
respectively.
C. Subsection 8.15 of the Credit Agreement is hereby amended by deleting
the first paragraph of such subsection 8.15 in its entirety and substituting the
following therefor:
"8.15 Matters Relating to Material Flagstar Agreements.
At any time after the Closing Date, (i) any of Holdings, Company or
any of Company's Subsidiaries shall fail at any time to be an 'Unrestricted
Subsidiary' under, and as defined in, the Reorganized Flagstar Credit
Agreement, the Reorganized Flagstar Indentures and any other Material
Flagstar Agreement executed and delivered after the Closing Date; or (ii)
Reorganized Flagstar or any Affiliate of Reorganized Flagstar shall enter
into a new Material Flagstar Agreement (a) which has provisions applicable
to Holdings, Company or any of Company's Subsidiaries or provisions
relating to 'Unrestricted Subsidiaries' (as defined therein) applicable to
Holdings, Company or any of Company's Subsidiaries, in each case which are
more adverse to, or more restrictive with respect to, Holdings, Company or
any of Company's Subsidiaries in any material respect then the
corresponding provisions contained in the Flagstar Credit Agreement or any
Flagstar Indenture as in effect on the Closing Date or (b) under which any
of Holdings, Company or any of Company's Subsidiaries is not designated as
an 'Unrestricted Subsidiary' (as defined therein); or (iii) Reorganized
Flagstar, or any Affiliate of Reorganized Flagstar that is a party to the
Reorganized Flagstar Credit Agreement, the Reorganized Flagstar Indenture
or any other Material Flagstar Agreement in effect on the Closing Date or
that is entered into after the Closing Date shall agree to any material
amendment to, or otherwise change any material rights relating to, any
provisions thereof applicable to Holdings, Company or any of Company's
Subsidiaries or any
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provisions thereof relating to 'Unrestricted Subsidiaries' (as defined
therein) applicable to Holdings, Company or any of Company's Subsidiaries,
if the effect of any such amendment or change, together with all other
amendments and changes made, is more adverse to, or more restrictive with
respect to, Holdings, Company or any of Company's Subsidiaries or to
Lenders in any material respect; or (iv) Reorganized Flagstar or any other
Affiliate of Reorganized Flagstar shall breach or default under any
Material Flagstar Agreement relating to Indebtedness or Contingent
Obligations in an individual principal amount of $10,000,000 or more or
with an aggregate principal amount of $10,000,000 or more, (x) if such
breach or default results from the failure to pay principal at final
maturity or (y) if the effect of such breach or default is to cause that
Indebtedness or Contingent Obligation to become or be declared due and
payable prior to its maturity or the stated maturity of any underlying
obligation, as the case may be (upon the giving or receiving of notice,
lapse of time, both or otherwise); or (v) the Reorganization Plan shall be
unwound, reversed or otherwise rescinded in whole or in part for any
reason:"
1.4 Omnibus Amendments to the Credit Agreement.
A. The Credit Agreement is hereby amended by deleting each reference to
"FCI, Flagstar" or "Flagstar, FCI" and substituting "Reorganized Flagstar"
therefor: (1) in clause (vi) in the definition of "Material Flagstar Agreements"
in subsection 1.1 of the Credit Agreement; and (2) in subsection 6.13 of the
Credit Agreement.
B. The Credit Agreement is hereby further amended by deleting each
reference to "Flagstar" and substituting "Reorganized Flagstar" therefor in the
following definitions in subsection 1.1 of the Credit Agreement: (1) clause (vi)
in the definition of "Material Flagstar Agreements"; (2) "Permitted Franchise
Agreement"; (3) "Permitted Management Fee"; and (4) "Restricted Junior Payment".
C. The Credit Agreement is hereby further amended by deleting the reference
to "FCI" and substituting "Reorganized Flagstar" therefor (1) in subsection 6.3B
of the Credit Agreement; and (2) in clause (iii)(b) of subsection 7.5 of the
Credit Agreement.
Section 2. LIMITED WAIVER
2.1 Waiver of Certain Event of Default.
Subject to the terms and conditions set forth herein and in reliance on the
representations and warranties of Company and the other Loan Parties contained
herein, Lenders hereby waive compliance with the provisions of clause (ii) of
subsection 8.15(iv) of the Credit Agreement to the extent, and only to the
extent,
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necessary to permit FCI and Flagstar to file a voluntary bankruptcy petition
under Chapter 11 of the Bankruptcy Code (the "Petition") on or before July 31,
1997 with the United States Bankruptcy Court for the District of South Carolina
or such other United States bankruptcy court as FCI and Flagstar shall select
(the "Bankruptcy Court") in connection with the filing of the Debtors' Joint
Plan of Reorganization for FCI and Flagstar (such plan of reorganization,
together with all exhibits and schedules annexed thereto or referred therein,
being referred to herein as the "Reorganization Plan"), substantially in the
form contained in FCI's Form S-4 Amendment No. 3 to Registration Statement,
Registration No. 333-23875, as filed with the Securities and Exchange Commission
on June 2, 1997, and the Prospectus contained therein dated as of June 5, 1997
(the "Form S-4"); provided that:
(i) prior to the filing of the Petition, the Reorganization Plan shall
have been accepted either by (x) all of the Classes of Claims or Interests
that are Impaired (as each such term is defined in the Form S-4) in
accordance with the requirements set forth in Chapter 11 of the Bankruptcy
Code or (y) sufficient Classes of Claims or Interests that are Impaired (as
each such term is defined in the Form S-4) for a confirmation of the
Reorganization Plan pursuant to the "cramdown" provisions set forth in
Section 1129(b) of the Bankruptcy Code;
(ii) not more than thirty (30) Business Days after the filing of the
Petition, FCI and Flagstar shall file the Reorganization Plan with the
Bankruptcy Court;
(iii) the Reorganization Plan (x) prior to its filing in accordance
with the immediately preceding clause (ii) of this proviso shall not
deviate from the form contained in the Form S-4 in any material respect
adverse to Holdings, Company or Lenders and (y) after its filing but prior
to it becoming effective in accordance with its terms shall not be modified
in any material respect adverse to Holdings, Company or Lenders;
(iv) the Bankruptcy Court shall enter an Order of Confirmation
confirming the Reorganization Plan within one hundred twenty (120) days
after the filing of the Petition;
(v) the Reorganization Plan shall become effective in accordance with
its terms not more than one hundred eighty (180) days after the filing of
the Petition; and
(vi) the Bankruptcy Court shall not (x) enter any order disapproving
any material portion of the Reorganization Plan which would be adverse to
Holdings, Company or Lenders, (y) appoint a trustee under Chapter 11 of the
Bankruptcy Code or convert such voluntary bankruptcy into a bankruptcy
under Chapter 7 of the Bankruptcy Code during such one hundred
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twenty (120) day period, or (z) terminate at any time FCI's and Flagstar's
exclusivity period.
2.2 Limitation of Waiver.
Without limiting the generality of the provisions of subsection 11.6 of the
Credit Agreement, the waiver set forth above shall be limited precisely as
written and relates solely to the noncompliance by Company with the provisions
of clause (ii) subsection 8.15(iv) of the Credit Agreement in the manner and to
the extent described above, and nothing in this Amendment shall be deemed to:
(a) constitute a waiver of compliance by Company with respect to (i)
clause (ii) of subsection 8.15(iv) of the Credit Agreement in any other
instance or (ii) any other term, provision or condition of the Credit
Agreement or any other instrument or agreement referred to therein (whether
relating to the filing of the Petition in connection with the filing of the
Reorganization Plan or otherwise); or
(b) prejudice any right or remedy that Administrative Agent or any
Lender may now have (except to the extent such right or remedy was based
upon existing defaults that will not exist after giving effect to this
Waiver) or may have in the future under or in connection with the Credit
Agreement or any other instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions and conditions
of the Credit Agreement and the other Loan Documents shall remain in full force
and effect and in all other respects are hereby ratified and confirmed.
Section 3. CONDITIONS TO EFFECTIVENESS
3.1 Effectiveness of Section 1.
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
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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, Company shall have delivered
to Administrative Agent an Officer's Certificate of Company certifying as to
(and attaching thereto) each of the following, each of which shall be in form
and substance satisfactory to Administrative Agent:
1. Copies of the Reorganized Flagstar Credit Agreement and the
Reorganized Flagstar Indenture, together with any schedules and exhibits
thereto, which shall contain provisions, in form and substance satisfactory
to Agent, designating Holdings and each of its Subsidiaries as an
"Unrestricted Subsidiary" under the Reorganized Flagstar Credit Agreement
and the Reorganized Flagstar Indenture; and
2. Copy of the Order of Confirmation confirming the Reorganization
Plan, which Reorganization Plan terminates the Flagstar Credit Agreement,
the Flagstar Indentures and the FCI Intercompany Note.
C. On or before the Amendment Effective Date, the reorganization of FCI and
Flagstar, including without limitation the merger of Flagstar into FCI, shall
have taken place and the Reorganization Plan shall have become effective
substantially in accordance with the description of the Reorganization Plan set
forth in the Form S-4 and the Reorganization Plan Effective Date shall have
occurred, and Company shall deliver to Agent an Officers' Certificate to such
effect.
D. 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.
3.2 Effectiveness of Section 2.
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Section 2 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 "Waiver
Effective Date"):
A. On or before the Waiver Effective Date, Company shall deliver to Lenders
(or to Administrative Agent for Lenders) the following, each, unless otherwise
noted, dated the Waiver Effective Date:
1. Signature and incumbency certificates of the officers of each of
Holdings and Company certified by its corporate secretary or assistant
secretary; and
2. Counterparts of this Amendment executed by Requisite Lenders and
each of the other parties hereto.
B. On or before the Waiver 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 4. 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 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.
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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 and the consummation of the Reorganization Plan and the
transactions contemplated thereby 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.
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 (including the
representations and warranties set forth in Section 1.2 of this Amendment)
are and will be true, correct and complete in all material respects on and
as of the Waiver Effective Date (with respect to the Credit Agreement only)
and the Amendment Effective Date (with respect to the Credit Agreement and
Amended Credit Agreement) 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.
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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 5. 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 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
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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 6. 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.
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.
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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 3.1 hereof and other than the provisions of Section 2, which shall
become effective upon the satisfaction of the conditions set forth in Section
3.2 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: _________________________
S-1
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: _________________________
S-3