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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
C U R R E N T R E P O R T
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
November 20, 1995
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Date of Report (Date of earliest event reported)
Family Restaurants, Inc.
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(Exact Name of Registrant As Specified In Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
33-14051 #33-0197361
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(Commission File Number) (IRS Employer Identification No.)
18831 Von Karman Avenue, Irvine, California 92715
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(Address of Principal Executive Offices) (Zip Code)
(714) 757-7900
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(Registrant's Telephone Number, Including Area Code)
NOT APPLICABLE
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(Former Name or Former Address, If Changed Since Last Report)
Exhibit Index located at Page 5
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Item 1. Changes in Control of Registrant.
On November 20, 1995, Apollo FRI Partners, L.P. ("Apollo") entered into
an Exchange Agreement with each of Foodmaker, Inc., a Delaware corporation
("Foodmaker"), and Green Equity Investors, L.P. ("Green"), pursuant to
which, among other things, (i) on December 20, 1995 Foodmaker transferred all
of the shares of the Company's Common Stock, par value $.01 per share (the
"Common Stock"), and a warrant to purchase additional shares of Common Stock,
owned by it to Apollo, (ii) on November 20, 1995 Green transferred 19,609
shares of the Company's Common Stock held by it to Apollo and (iii) the
Shareholders' Agreement, dated as of January 27, 1994, by and among Apollo,
Green and Foodmaker was terminated, as between themselves and the Company. In
connection with the foregoing, Jack W. Goodall, Jr., Charles W. Duddles and
Edward Gibbons, the three members of the Company's Board of Directors (the
"Board") appointed by Foodmaker, and Leonard I. Green and Jonathan D. Sokoloff,
the two members of the Board appointed by Green, resigned from the Board and
from each other position held with the Company or its subsidiaries. The
foregoing transactions were consummated after the lenders under the Company's
Revolving Credit Agreement, in connection with their consent to an amendment
thereto, required certain of the Company's shareholders to purchase a
participation in certain loans under such agreement. Apollo agreed to purchase
such participation and, in consideration therefor, Foodmaker and Green agreed
to transfer the shares of Common Stock as set forth above.
Prior to the consummation of the foregoing transactions, Apollo, Green
and Foodmaker, the Company's three largest shareholders, held approximately
39%, 18% and 39%, respectively, of the Company's Common Stock and, pursuant to
the terms of the Shareholders' Agreement, controlled the Company. Upon
consummation of the foregoing transactions, Apollo, Green and Foodmaker own
approximately 81%, 16% and 0% of the Common Stock, respectively. Consequently,
Apollo, through its ownership of the Common Stock, controls the Company.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not Applicable.
(b) Not Applicable.
(c) Exhibits.
See the Exhibit Index located at sequential page 5 of this Report.
3
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DATE: December 29, 1995 FAMILY RESTAURANTS, INC.
BY: /s/ ROBERT T. TREBING, JR.
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Robert T. Trebing, Jr.
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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10.1 Fifth Amendment to Revolving Credit Agreement, dated as of
October 31, 1995, among FRI-M Corporation, Family Restaurants,
Inc., the Subsidiary Guarantors named therein, and the banks
and institutions named therein.
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Exhibit 10.1
FIFTH AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO THE REVOLVING CREDIT AGREEMENT (the
"Fifth Amendment") is made as of October 31, 1995, among FRI-M Corporation, a
Delaware corporation (the "Borrower"), Family Restaurants, Inc., a Delaware
corporation ("FRI"), each of the Subsidiary Guarantors, each of the banks and
institutions identified on the signature pages hereof (each a "Bank" and,
collectively, the "Banks") and Credit Lyonnais New York Branch, as Agent,
Collateral Agent, Issuing Bank and Swing Line Bank.
W I T N E S S E T H
WHEREAS, the Borrower, FRI, the Subsidiary Guarantors, the
Banks, the Agent, the Collateral Agent, the Issuing Bank and the Swing Line
Bank have entered into the Revolving Credit Agreement, dated as of January 27,
1994, as amended by the First Amendment to the Revolving Credit Agreement,
dated as of April 15, 1994, by the Second Amendment to the Revolving Credit
Agreement, dated as of August 15, 1994, by the Third Amendment to the Revolving
Credit Agreement, dated as of March 24, 1995, and by the Fourth Amendment to
the Revolving Credit Agreement, dated as of August 1, 1995 (the "Credit
Agreement");
WHEREAS, Schedule A to this Fifth Amendment sets forth the
aggregate amount of all outstanding Loans (including the Dividend Loan), Swing
Line Advances and Syndicated Letters of Credit under the Credit Agreement as of
November 7, 1995;
WHEREAS, as of October 31, 1995, the Borrower is in default
under the Credit Agreement as a result of its failure to comply with certain of
the financial covenants contained therein and anticipates that it may continue
to be in default for the fiscal quarter ending December 1995 under Section 9.01
of the Credit Agreement, and as a result thereof, the Banks have no further
obligations to make Loans or participate in Swing Line Advances or Syndicated
Letters of Credit;
WHEREAS, the Borrower has requested that the Banks waive all
such existing and anticipated financial covenant Defaults and Events of Default
under the Credit Agreement through January 31, 1996 in order that it may make
additional borrowings under the Credit Agreement up to specified amounts
through January 31, 1996;
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WHEREAS, Section 2.07(g) of the Credit Agreement provides that
no Bank will be obligated to extend any Loans or participate in any Swing Line
Advances or Syndicated Letters of Credit so long as the total outstandings
under the Credit Agreement (exclusive of the Dividend Loan) exceed $125,100,000
on any day from August 26, 1995 to October 31, 1995 and that after October 31,
1995, no Bank will be obligated to extend any Loans or participate in any Swing
Line Advances or Syndicated Letters of Credit;
WHEREAS, the Borrower has requested an additional borrowing
facility, including through the issuance of Syndicated Letters of Credit, in an
aggregate amount of up to $8,000,000 and certain of the Banks are willing to
provide such facility and the remaining Banks are willing to permit additional
Loans to be made and Syndicated Letters of Credit to be issued by such Banks,
subject to the terms and conditions set forth herein; and
WHEREAS, the parties hereto desire to amend the Credit
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements contained herein and in the Credit Agreement, the
parties hereto agree that the Credit Agreement is hereby amended as set forth
herein:
1. Capitalized terms used herein which are not otherwise
defined herein but are defined in the Credit Agreement shall have the meanings
given to them in the Credit Agreement.
2. The parties hereto agree that failure by the Borrower to
meet certain of the financial covenants in subsections 8.03(a), (c), (d), (e),
(f) and (g) for any periods ending on or prior to January 31, 1996 shall not
constitute Defaults or Events of Default on or prior to January 31, 1996.
Notwithstanding such waiver, such Events of Default shall continue to exist for
purposes of Sections 8.02(f)(B)(III) and (E) of the Credit Agreement.
3. Section 1.01 of the Credit Agreement is hereby
amended to add the following definitions:
"Dividend Loan" shall mean the Loan of $14,625,000,
as reduced from time to time, made by Credit Lyonnais under the Credit
Agreement on August 1, 1995.
"Fifth Amendment" shall mean the Fifth Amendment to
Revolving Credit Agreement made as of
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October 31, 1995, among FRI-M Corporation, a Delaware corporation,
Family Restaurants, Inc., a Delaware corporation, each of the
Subsidiary Guarantors, each of the banks and institutions identified
on the signature pages thereof and Credit Lyonnais New York Branch, as
Agent, Collateral Agent, Issuing Bank and Swing Line Bank.
"Overline Facility" shall mean an $8,000,000
revolving credit facility made available to the Borrower by certain
Banks identified in Schedule B of the Fifth Amendment pursuant to
which such Banks may make additional Loans and issue additional
Syndicated Letters of Credit from time to time in an aggregate amount
up to $8,000,000, subject to reduction as provided in Sections 2.07(f)
and (g) hereof, in accordance with Articles II and III hereof, which
shall constitute Loans and Syndicated Letters of Credit under the
Credit Agreement for all purposes hereof; provided, that such
additional Loans and Syndicated Letters of Credit made under the
Overline Facility shall not be included in determining whether the
Borrower has exceeded the Total Commitment.
4. The following definitions of Section 1.01 of the
Credit Agreement are hereby amended and restated as follows:
"Commitment" of each Bank shall mean the amount set
forth opposite such Bank's name in Schedule B of the Fifth Amendment,
as such amount may be reduced from time to time pursuant to Sections
2.05, 2.07 and 12.08.
"Pro Rata Share" shall mean, with respect to any
Bank, (a) the proportion of such Bank's Commitment to the Total
Commitment or, (b) if the Total Commitment shall have been cancelled
or expired or there has been an acceleration under the Credit
Agreement, the proportion of such Bank's then outstanding Loans
(including the Dividend Loan and Loans outstanding under the Overline
Facility), Swing Line Advances and Syndicated Letters of Credit
(including Syndicated Letters of Credit outstanding under the Overline
Facility) to the aggregate amount of Loans (including the Dividend
Loan and Loans outstanding under the Overline Facility), Swing Line
Advances and Syndicated Letters of Credit (including Syndicated
Letters of Credit outstanding under the Overline Facility) then
outstanding.
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5. The definition of "Net Cash Proceeds" in Section 1.01
of the Credit Agreement is hereby amended by adding the following concluding
sentence:
"As used herein, the disposition of assets shall include (i)
any financing secured by any real property which generates new proceeds
for the Borrower, other than purchase money indebtedness, (ii) any
refinancing of indebtedness secured by assets which generates proceeds
for the Borrower in excess of the indebtedness being refinanced and
(iii) the disposition of foreign exchange, forward or other hedging
contracts which generate proceeds for the Borrower."
6. Section 2.01 of the Credit Agreement is hereby
amended to read in its entirety as follows:
"The Loans. Prior to the Termination Date, and subject to the
terms and conditions of this Agreement, and except as otherwise
provided in Section 2.07(f), upon the request of the Borrower, and
upon the satisfaction by the Borrower or the waiver by each of the
Banks of each of the conditions precedent contained in Article VII
applicable thereto, each of the Banks, severally and not jointly with
the other Banks, agrees to make one or more Loans to the Borrower from
time to time in an aggregate principal amount at any one time
outstanding not to exceed its Commitment; provided, however, that the
sum of (i) the aggregate outstanding Loans, plus (ii) the aggregate
outstanding Swing Line Advances, plus (iii) the aggregate Face Amount
of Syndicated Letters of Credit outstanding at any time may not exceed
the Total Commitment and further provided that although the Loans
include the Dividend Loan and Loans and Syndicated Letters of Credit
under the Overline Facility, for purposes of this Agreement, the term
Total Commitment and calculations to determine whether amounts have
exceeded the Total Commitment shall be exclusive of the Dividend Loan
and Loans and Syndicated Letters of Credit under the Overline
Facility. Certain Banks, as listed on Schedule B to the Fifth
Amendment, agree to provide the Overline Facility from the date of
execution of the Fifth Amendment through January 31, 1996. Except as
otherwise expressly provided herein and except that references to each
Bank applicable to Loans under the Overline Facility shall refer only
to the Banks identified in Schedule B to the Fifth Amendment, Loans
under the Overline Facility shall be subject to the same terms and
provisions as all other Loans."
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7. The second sentence of Section 2.02(a) is hereby
amended to read as follows:
"ABR Loans shall be in the minimum aggregate amount of $100,000 or in
integral multiples of $100,000 in excess thereof."
8. Section 2.06 of the Credit Agreement is hereby
amended to read in its entirety as follows:
"Optional Prepayment. The Borrower shall have the right, on
not less than one Business Day's written notice to the Agent, to
prepay the Overline Facility (and all optional prepayments shall be
applied first to prepay the Overline Facility, except if any Loans
have been made or Syndicated Letters of Credit issued in connection
with the Remaining Available Commitment (as defined in Section
2.07(f)), in which case all optional prepayments shall be applied
first to prepay such Loans or to reduce such Syndicated Letters of
Credit in the manner provided in Section 2.07(d)(iii)(B) or (C)), and
after the Overline Facility (or Loans and Syndicated Letters of Credit
with respect to the Remaining Available Commitment, if applicable) has
been repaid, to prepay Loans bearing interest on the same basis and
having the same Interest Periods, if any, in whole or in part, without
premium or penalty, in the aggregate principal amount of $100,000 or
in integral multiples of $100,000 in excess thereof, in the case of
ABR Loans, or in the aggregate principal amount of $3,000,000 or in
integral multiples of $1,000,000 in excess thereof, in the case of
Eurodollar Loans (or, if the outstanding aggregate amount of such Loan
is less than $3,000,000 or $100,000, as the case may be, then all of
such lesser amount), together with accrued interest on the principal
being prepaid to the date of prepayment and, in the case of Eurodollar
Loans, the amounts required by Section 5.03. Subject to the terms and
conditions hereof, prepaid Loans may be reborrowed.
9. Section 2.07(d) of the Credit Agreement is hereby
amended by adding the following concluding sentence:
"The calculations under this Section 2.07(d) shall exclude items
outstanding under the Overline Facility and the Dividend Loan."
10. Sections 2.07(f) and (g) of the Credit Agreement are
hereby restated to read in their entirety as follows:
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"(f) Notwithstanding any contrary provision in this Section
2.07, for the period through January 31, 1996 any Net Cash Proceeds
received from the disposition of any individual asset or group of
related assets (other than sales of inventory in the ordinary course
of business) resulting in net proceeds to the Borrower of more than
$100,000 shall be applied promptly following receipt thereof (i)
first, to repay the outstanding Dividend Loan, (ii) second, with
respect to the first $5,000,000 of such proceeds after the Dividend
Loan is repaid, to permanently reduce the Total Commitment and the
Overline Facility on a pro rata basis, and (iii) third, with respect
to any further Net Cash Proceeds, one-half of such Net Cash Proceeds
to permanently reduce the Total Commitment and the Overline Facility
on a pro rata basis and the remaining one-half of such Net Cash
Proceeds, first to reduce outstanding Loans and to the extent there
are no outstanding Loans, to reduce outstanding Syndicated Letters of
Credit in the manner provided in Section 2.07(d)(iii)(B) or (C);
provided, however, that the amount of such Net Cash Proceeds applied
to reduce outstanding Loans and Syndicated Letters of Credit (the
"Remaining Available Commitment") may only be reborrowed if the
Overline Facility has been fully utilized; and (iv) if the aggregate
amount of such Net Cash Proceeds from the date hereof exceeds
$30,000,000, the Net Cash Proceeds in excess of $30,000,000 shall
thereafter be applied to permanently reduce the Total Commitment and
the Overline Facility on a pro rata basis. Notwithstanding any
contrary provision in this Section 2.07, after January 31, 1996 any
Net Cash Proceeds received from the disposition of any individual
asset or group of related assets (other than sales of inventory in the
ordinary course of business) resulting in net proceeds to the Borrower
of more than $100,000 shall be applied promptly following receipt
thereof (i) first, to repay the outstanding Dividend Loan and (ii)
second, to permanently reduce the Total Commitment and the Overline
Facility on a pro rata basis. Any notes or other securities received
in connection with any such disposition shall be pledged to the Banks
until such notes and securities are liquidated, at which time the Net
Cash Proceeds therefrom shall be applied as set forth in the two
preceding sentences. Promptly upon receipt of any such Net
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Cash Proceeds, notes or marketable securities, FRI or the Borrower
shall deliver to the Agent a certificate signed by the chief financial
officer of FRI or the Borrower, as the case may be, setting forth the
amount of the gross cash proceeds received and the items deducted
therefrom in reasonable detail in order to confirm the amount of such
Net Cash Proceeds and the amount of any notes or marketable securities
received.
(g) Notwithstanding any contrary provision in this Agreement,
the Total Commitment of the Banks, as listed in Schedule B of the
Fifth Amendment, is $125,082,007 (exclusive of the remaining balance
on the Dividend Loan and the Overline Facility), and no Bank will be
obligated to extend any Loans (other than Loans under the Overline
Facility) or participate in any Swing Line Advances or Syndicated
Letters of Credit (other than Syndicated Letters of Credit under the
Overline Facility) if the same would cause the total outstandings
under this Agreement (exclusive of the Dividend Loan and the Overline
Facility) to exceed $125,082,007, as such amount may be reduced from
time to time in accordance with the terms hereof, on any day after
October 31, 1995."
11. Section 3.01(b) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"(b) Except as otherwise provided in Section 2.07(f), the
Syndicated Letters of Credit (A) shall have an aggregate face amount
not in excess of the Syndicated Letters of Credit Commitment, (B) may,
at the sole option of the Issuing Bank, be renewable if so requested
by the Borrower using the form for such request then in general use by
the Issuing Bank, and (C) shall have an expiration date no later than
the earlier of (i) 365 days after the date of issuance thereof and
(ii) the Termination Date. There shall not be outstanding at any one
time more than twenty separate Syndicated Letters of Credit. Except
as otherwise expressly provided herein and except that references to
each Bank applicable to Syndicated Letters of Credit under the
Overline Facility shall refer only to the Banks identified in Schedule
B to the Fifth Amendment, Syndicated Letters of Credit under the
Overline Facility shall be subject to the same terms and provisions as
all other Syndicated Letters of Credit. The aggregate value of all
Syndicated Letters of Credit, including the Syndicated Letters of
Credit
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under the Overline Facility, may not exceed the Syndicated Letters of
Credit Commitment.
12. The third sentence of Section 3.01(h) is hereby
amended to read as follows:
"On the day that Revolving Loans are to be made in order to pay such
Reimbursement Obligation, each Bank shall, subject to and in
accordance with the terms and conditions of this Agreement (including
satisfaction of the conditions set forth in Article VII hereof), make
a Loan, the proceeds of which shall be applied to such Reimbursement
Obligation; provided, however , that such Loan may be in amounts less
than the minimum aggregate principal amount or in amounts other than
in multiples of $100,000 in excess thereof as required by Section
2.02(a); and provided further that, with respect to such Loan, such
Bank shall be required to make available to the Issuing Bank under
Section 2.02(b) only an amount equal to the difference, if any,
between the amount of such Loan and the amount remitted through the
Agent to the Issuing Bank pursuant to Section 3.01(f).
13. Section 4.01 of the Credit Agreement is hereby
amended to read in its entirety as follows:
"Notwithstanding anything herein to the contrary, after October 31,
1995 all new Loans and all roll-over Loans shall bear interest as ABR
Loans and any contrary designation in a Loan Request or Conversion
Request shall have no effect."
14. Section 6.01(t) of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
"(t) Solvency. On the date of each Loan and Swing
Line Advance hereunder, and after the payment of all estimated legal,
investment banking, accounting and other fees related hereto, the
Borrower will be Solvent."
15. Section 7.03(c) of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
"(c) The Agent shall have received from the Borrower a
certificate signed by an authorized officer of the Borrower specifying
that the proceeds of such Loan, Swing Line Advance, Syndicated Letter
of Credit,
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or Overline Facility shall be used as working capital and to fund the
operations of the Borrower and its subsidiaries and detailing the use
of such proceeds."
16. The provisions of Section 8 of the Credit Agreement
are hereby waived with respect to the severance arrangements with Jack Goodall,
Jr. described in Schedule C of the Fifth Amendment, including the cancellation
of a loan in the approximate principal amount of $676,000 which was previously
made in connection with the purchase of FRI common stock.
17. Section 8.02(f)(A) is hereby amended and restated as
follows:
"(A) FRI, the Borrower and each Subsidiary may make loans and
advances (I) to officers and employees in connection with the purchase
of FRI common stock in accordance with the Acquisition Agreement in an
aggregate amount not to exceed $3,500,000, provided that such
purchases are consummated on or prior to October 31, 1995, (II) to
officers and employees in the ordinary course of business in an
aggregate principal amount at any one time outstanding not to exceed
$300,000, (III) to the Borrower and the Subsidiaries and (IV) to the
entities listed on Schedule 8.02(f)."
18. Section 8.02(f)(E) of the Credit Agreement is hereby
amended and restated as follows:
"(E) So long as there is no Event of Default, FRI, the
Borrower and each Subsidiary may purchase, acquire, cancel or
otherwise retire for value shares of capital stock of FRI or the
Borrower, options on any such shares or related stock appreciation
rights or similar securities held by directors, officers, employees or
former directors, officers, employees or consultants (or their estates
or beneficiaries under their estates) that were issued pursuant to any
Stock Based Plan, upon death, disability, retirement, termination or
pursuant to the terms of such Stock Based Plan; provided, however,
that the consideration paid for such purchases, acquisitions,
cancellations or retirements shall not exceed $2.5 million in any
fiscal year."
19. Section 9.01(o) of the Credit Agreement is hereby
deleted and the text of Section 9.01 following Section 9.01(n) is hereby
amended and restated to read as follows:
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"then (i) upon the happening and during the continuance of any of the
foregoing Events of Default, the obligation of the Banks to make any
further Loans, the obligation of the Swing Line Bank and the other
Banks to make any further Swing Line Advances, the obligation of the
Issuing Bank to issue any further Syndicated Letters of Credit and the
obligation of the Banks to make any further Loans or to issue any
further Syndicated Letters of Credit under the Overline Facility shall
terminate upon declaration to that effect delivered by the Agent or
the Required Banks to the Borrower and (ii) upon the happening of any
of the foregoing Events of Default which shall be continuing, all
Notes (including Notes for Loans made under the Overline Facility),
Swing Line Advances and all Reimbursement Obligations (including
Reimbursement Obligations for Syndicated Letters of Credit issued
under the Overline Facility) shall become and be immediately due and
payable upon declaration to that effect delivered by the Agent or the
Required Banks to the Borrower; provided, that upon the happening of
any event specified in Section 9.01(g) or (h) which involves the
Borrower or any Significant Subsidiary, the Notes (including Notes for
Loans made under the Overline Facility), Swing Line Advances and the
Reimbursement Obligations (including Reimbursement Obligations for
Syndicated Letters of Credit issued under the Overline Facility) shall
become immediately due and payable and the obligations of the Banks to
make any further Loans, the obligation of the Swing Line Bank and the
other Banks to make any further Swing Line Advances, the obligation of
the Issuing Bank to issue any further Syndicated Letters of Credit
hereunder and the obligation of the Banks to make any further Loans or
to issue any further Syndicated Letters of Credit under the Overline
Facility shall terminate without declaration or other notice to the
Borrower. Except as otherwise provided herein, the Borrower expressly
waives any presentment, demand, protest or other notice of any kind."
20. Section 11.03 of the Credit Agreement is hereby
amended and restated to read as follows:
"All funds for the account of the Banks received by the Agent in
respect of payments made by the Borrower pursuant to, or from any
Person on account of, this Agreement or any other Credit Document
shall be distributed forthwith by the Agent among the Banks entitled
thereto, in like currency and funds as received, ratably in proportion
to their respective
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interests therein. Other than as provided for in Sections 2.06 and
2.07(f) of the Credit Agreement and other than payments relative to the
Dividend Loan, which shall be applied to Credit Lyonnais, payments
relative to the Loans outstanding under the Overline Facility, which
shall be applied to the Banks identified in Schedule B of the Fifth
Amendment on a pro rata basis, and Letter of Credit Fees with respect
to Syndicated Letters of Credit issued under the Overline Facility,
which shall be applied to the Banks identified in Schedule B of the
Fifth Amendment on a pro rata basis, in the event that any Bank shall
receive from the Borrower or any other source any payment of, on
account of, or for or under this Agreement or any other Credit Document
(whether received pursuant to the exercise of any right of set-off,
banker's lien, realization upon any security held for or appropriated
to such obligation or otherwise as permitted by law) other than in
proportion to its Pro Rata Share, then such Bank shall purchase from
each other Bank so much of its interest in obligations of the Borrower
as shall be necessary in order that each Bank shall share such payment
with each of the other Banks in proportion to each Bank's Pro Rata
Share; provided, that no Bank shall purchase any interest of any Bank
that does not, to the extent that it may lawfully do so, set-off
against the balance of any deposit accounts maintained with it the
obligations due to it under this Agreement; and provided, further, that
nothing herein contained shall obligate any Bank to apply any set-off
or banker's lien or collateral security permitted hereby first to the
obligations of the Borrower hereunder if the Borrower is obligated to
such Bank pursuant to other loans or notes, but any such application of
proceeds shall be in proportion to the total obligations of the
Borrower to such Bank. In the event that any purchasing Bank shall be
required to return any excess payment received by it, the purchase
shall be rescinded and the purchase price restored to the extent of
such return, but without interest."
21. The first sentence of Section 12.03 of the Credit
Agreement is hereby amended and restated to read as follows:
"FRI and the Borrower agree to pay (i) all reasonable out-of-pocket
expenses of the Agent and Collateral Agent (including the reasonable
fees and expenses of Sullivan & Cromwell and of Zalkin, Rodin &
Goodman, LLP, as counsel to the Agent and Collateral Agent) in
connection with the preparation of this Agreement and
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the other Credit Documents and any amendments or supplements hereto or
thereto and (ii) all reasonable out-of-pocket expenses incurred by the
Agent, the Collateral Agent, the Issuing Bank, the Swing Line Bank and
any Bank and without duplication, reasonable fees and disbursements of
two counsel representing the Agent, the Collateral Agent, the Issuing
Bank, the Swing Line Bank and the Banks in connection with the
administration and enforcement of any provisions of this Agreement,
the other Credit Documents or any amendment or supplement hereto or
thereto."
22. Notwithstanding any provision herein or in any Credit
Document to the contrary, the Banks which are not participating in the Overline
Facility or the Dividend Loan, as indicated on Schedule B hereto, (i) shall not
be responsible for any liabilities, obligations, losses, claims, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature arising solely out of the Dividend Loan or the Overline
Facility, or any action taken or omitted to be taken by any Bank in connection
therewith and (ii) shall not receive or have any interest in any reimbursements
relating to clause (i) above.
23. The Borrower and FRI represent and warrant that the
execution and delivery of this Fifth Amendment by each of the Borrower, FRI and
the Subsidiary Guarantors has been duly authorized by all necessary corporate
action and this Fifth Amendment is enforceable without any further approval,
authorization or consent.
24. THIS FIFTH AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA.
25. This Fifth Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts and
each such counterpart shall together constitute but one and the same
instrument. This Fifth Amendment shall become effective as of the date hereof
upon the delivery to the Agent of executed counterparts of this Fifth Amendment
from the Company and the Banks and the Agent shall so inform all of the parties
hereto.
26. The Credit Agreement, as amended hereby, shall be binding
upon the Borrower, FRI, the Subsidiary Guarantors, the Banks, the Agent, the
Collateral Agent, the Issuing Bank and the Swing Line Bank and their respective
successors and assigns, and shall inure to the benefit of the Company, FRI, the
Subsidiary Guarantors, the Banks, the
-12-
<PAGE> 13
Agent, the Collateral Agent, the Issuing Bank and the Swing Line Bank and their
respective successors and assigns.
27. Except as expressly provided in this Fifth Amendment, all
of the terms, covenants, conditions, restrictions and other provisions
contained in the Credit Agreement shall remain in full force and effect. The
Credit Agreement as amended by this Fifth Amendment, the materials delivered
pursuant hereto and the other Credit Documents constitute the entire agreement
and understanding among the parties hereto and supersede all prior agreements
and understandings among them relating to the subject matter hereof and
thereof.
-13-
<PAGE> 14
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written.
FRI-M CORPORATION
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
FAMILY RESTAURANTS, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Senior Vice President,
Chief Financial Officer
FRI-FRD CORPORATION
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
FRI-DHD CORPORATION
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
FRI-NA CORPORATION
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
<PAGE> 15
FRI-J CORPORATION
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
FRI-MRD CORPORATION
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
FRI-C CORPORATION
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
CHI-CHI'S, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
CCMR OF CUMBERLAND, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Authorized Signatory
CCMR OF GREENBELT, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: President
<PAGE> 16
CCMR OF MARYLAND, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: President
CCMR OF TIMONIUM, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: President
CHI-CHI'S OF SOUTH CAROLINA, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: President
CHI-CHI'S OF WEST VIRGINIA, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: President
COCO'S RESTAURANTS, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
FAR WEST CONCEPTS, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
<PAGE> 17
jojos RESTAURANTS, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
jojos CALIFORNIA FAMILY
RESTAURANTS INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
EL TORITO RESTAURANTS, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
CARROWS RESTAURANTS, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
CARROWS CALIFORNIA FAMILY
RESTAURANTS, INC.
By: /s/ R.T. Trebing, Jr.
------------------------------
Name: R.T. Trebing, Jr.
Title: Vice President
<PAGE> 18
CREDIT LYONNAIS NEW YORK BRANCH
as Agent for the Banks
By: /s/ Frederick Haddad
------------------------------
Name: Frederick Haddad
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH
as Collateral Agent for the Banks
By: /s/ Frederick Haddad
------------------------------
Name: Frederick Haddad
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH
Signing as a Bank, as the Issuing
Bank and as the Swing Line Bank
By: /s/ Frederick Haddad
------------------------------
Name: Frederick Haddad
Title: Senior Vice President
UNITED STATES NATIONAL BANK OF
OREGON
By: /s/ Roger Lundeen
------------------------------
Name: Roger Lundeen
Title: Vice President, Special
Assets Group
THE MITSUBISHI TRUST AND BANKING
CORPORATION, Los Angeles Agency
By: /s/ Hiroaki Koseki
------------------------------
Name: Hiroaki Koseki
Title: Chief Manager and
Senior Vice President
<PAGE> 19
PEARL STREET L.P.
By: /s/ Robert O'Shea
------------------------------
Name: Robert O'Shea
Title: Vice President
<PAGE> 20
Schedule A
Outstandings as of November 7, 1995
under Revolving Credit Agreement
<TABLE>
<S> <C>
Letters of Credit $ 38,120,071
LIBOR Loans 59,000,000
Base Rate Loans* 27,800,000
Swing-Line Loans --
Dividend Loan 6,164,182
------------
Total* $124,920,071
============
</TABLE>
- --------------------
* Excluding the Dividend Loan.
<PAGE> 21
Schedule B
<TABLE>
<CAPTION>
Overline
Commitment Facility Dividend Loan
---------- -------- -------------
<S> <C> <C> <C>
Availability Amount $125,082,007 $8,000,000 $6,164,183
$ Amounts:
Credit Lyonnais $ 91,740,000 $8,000,000 $6,164,183
Mitsubishi Trust $ 12,492,007 $ 0 $ 0
US Bank of Oregon $ 12,510,000 $ 0 $ 0
Pearl Street L.P. $ 8,340,000 $ 0 $ 0
Percentage Shares:
Credit Lyonnais 73.33% 100.00% 100.00%
Mitsubishi Trust 9.99% 0.00% 0.00%
US Bank of Oregon 10.00% 0.00% 0.00%
Pearl Street L.P. 6.67% 0.00% 0.00%
</TABLE>
<PAGE> 22
Schedule C
Summary of severance arrangement with Jack W. Goodall.
1. All stock options held by Jack W. Goodall, Jr. ("Goodall")
under the Company's 1994 Incentive Stock Option Plan will be cancelled;
2. Secured promissory notes in an aggregate principal amount of
approximately $676,000 made by Goodall to and in favor of the Company in
connection with Goodall's purchase of the Company's Common Stock (the "Common
Stock"), including any interest otherwise due thereunder, will be cancelled;
3. Goodall will waive the right arising under the terms of
certain agreements to require the Company to purchase the shares of Common
Stock owned by Goodall, and the Company will waive its right to require Goodall
to sell such shares to the Company;
4. Goodall will grant the Company an option to purchase one-half
of the shares of Common Stock held by Goodall; and
5. Goodall, in his individual capacity, will release, subject to
certain exceptions, the Company and certain other persons from any and all
claims, damages or actions of any nature, known or unknown, that he ever had or
may have, from the beginning of time up to the date of such agreement.
