Exhibit 4.5
SECOND AMENDMENT
SECOND AMENDMENT, dated as of December 30, 1999 (this
"AMENDMENT"), to the Credit Agreement, dated as of November 19, 1997 (as
amended, supplemented or otherwise modified, the "CREDIT AGREEMENT"), among
FRIENDLY ICE CREAM CORPORATION, a Massachusetts corporation (the "BORROWER"),
the several banks and other financial institutions or entities parties thereto
(the "LENDERS"), and SOCIETE GENERALE, as administrative agent (in such
capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed
to make, and have made, extensions of credit to the Borrower; and
WHEREAS, the Borrower has requested, and upon this Amendment
becoming effective, the Lenders will have agreed, that Section 2.10(b) of the
Credit Agreement be amended in the manner provided for in this Amendment;
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
SECTION 2. AMENDMENT TO SECTION 2.10(b) OF THE CREDIT AGREEMENT.
Paragraph (b) of Section 2.10 of the Credit Agreement is hereby amended by
deleting said paragraph in its entirety and substituting in lieu thereof the
following paragraph:
"(b) Unless the Required Prepayment Lenders shall otherwise agree,
if on any date, the Borrower or any of its Subsidiaries shall receive
Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a
Reinvestment Notice shall be delivered in respect thereof, such Net
Cash Proceeds shall be applied on such date toward the prepayment of
the Term Loans and the reduction of the Revolving Credit Commitments as
set forth in Section 2.10(d); PROVIDED that, notwithstanding the
foregoing, (i) in the case of an Asset Sale, no such prepayment shall
be required until the earliest of (A) the date on which the aggregate
amount of Net Cash Proceeds received from such Asset Sale and all other
Asset Sales occurring during the same fiscal quarter of the Borrower
equals or exceeds $2,500,000, (B) the first occurrence thereafter of
the fifteenth day of January, April, July or October and (C) such
earlier date or dates as shall be requested by the Borrower, and (ii)
on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall
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be applied toward the prepayment of the Term Loans and the reduction of
the Revolving Credit Commitments as set forth in Section 2.10(d)."
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective as of the date set forth above (the "AMENDMENT EFFECTIVE DATE")
on the date on which (a) the Borrower and the Required Prepayment Lenders shall
have executed and delivered to the Administrative Agent this Amendment and (b)
each Guarantor shall have executed the Acknowledgment and Consent in the form
annexed hereto.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Loan Parties in the Loan Documents are true and correct
in all material respects on and as of the Amendment Effective Date, before and
after giving effect to the effectiveness of this Amendment, as if made on and as
of the Amendment Effective Date, except to the extent such representations and
warranties expressly relate to a specific earlier date, in which case such
representations and warranties were true and correct as of such earlier date.
SECTION 5. PAYMENT OF EXPENSES. The Borrower agrees to pay or
reimburse the Administrative Agent for all of its reasonable out-of-pocket costs
and expenses incurred in connection with this Amendment and any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.
SECTION 6. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. On and
after the Amendment Effective Date, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" 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 hereby. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Administrative Agent under any of
the Loan Documents. Except as expressly amended herein, all of the provisions of
the Credit Agreement and the other Loan Documents are and shall remain in full
force and effect in accordance with the terms thereof and are hereby in all
respects ratified and confirmed.
SECTION 7. COUNTERPARTS. This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Amendment by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Amendment signed by all
the parties shall be lodged with the Borrower and the Administrative Agent.
SECTION 8. GOVERNING LAW. This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
FRIENDLY ICE CREAM CORPORATION
By:
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Title:
SOCIETE GENERALE
By:
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Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
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Title:
FLEET BUSINESS CREDIT CORPORATION
By:
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Title:
BLACK DIAMOND INTERNATIONAL FUNDING, LTD.
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By:
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Title:
BLACK DIAMOND CLO, 1998-I LTD.
By:
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Title:
BANKBOSTON, N.A.
By:
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Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Title:
FIRST SOURCE FINANCIAL LLP
By: First Source Financial, Inc.,
its Agent/Manager
By:
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Title:
BANK OF AMERICA, N.A.
By:
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Title:
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.
as Collateral Manager
By:
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Title:
PAM CAPITAL FUNDING, L.P.
By: Highland Capital Management, L.P.
as Collateral Manager
By:
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Title:
SENIOR DEBT PORTFOLIO
By: First Source Financial, Inc.,
its Agent/Manager
By:
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Title:
FIRST UNION NATIONAL BANK
By:
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Title:
FOOTHILL INCOME TRUST, L.P.
By:
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Title:
ACKNOWLEDGMENT AND CONSENT
Each of the undersigned corporations as guarantors under the
Guarantee and Collateral Agreement, dated as of November 19, 1997, made by the
undersigned corporations in favor of the Administrative Agent, for the benefit
of the Lenders, hereby (a) consents to the transactions contemplated by this
Amendment and (b) acknowledges and agrees that the guarantees (and grants of
collateral security therefor) contained in such Guarantee and Collateral
Agreement are, and shall remain, in full force and effect after giving effect to
this Amendment and all prior modifications to the Credit Agreement.
FRIENDLY'S RESTAURANTS FRANCHISE, INC.
By:
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Title:
FRIENDLY'S INTERNATIONAL, INC.
By:
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Title: