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EXHIBIT (4.6)
MODIFICATION TO CREDIT AGREEMENT
This Modification to Credit Agreement (this "Modification") dated the
3rd day of March, 2000 (this "Modification"), is made by and between WALL
STREET DELI, INC., a Delaware corporation ("Borrower") and AMSOUTH BANK, an
Alabama banking corporation ("Lender").
RECITALS
A. Borrower and Lender have heretofore entered into that certain
Credit Agreement dated as of June 19, 1996, as amended by that certain Amended
and Restated Credit Agreement dated February 2, 1999, that certain Modification
to Credit Agreement dated October 25, 1999, that certain Modification to Credit
Agreement dated October 29, 1999, that certain Modification to Credit Agreement
dated November 30, 1999, and that certain Modification to Credit Agreement
dated January 27, 2000 (the "Credit Agreement") pursuant to which the Lender
agreed to make available to the Borrower a credit facility in the original
maximum principal amount of $4,000,000 as evidenced by that certain Master Note
from Borrower to Lender dated December 26, 1996, as amended by that certain
Amended and Restated Master Note dated February 1, 1999, and that certain Note
Modification Agreement dated October 25, 1999 (the "Note"). The Credit
Agreement and Note shall hereinafter collectively be referred to as the "Credit
Documents"). Capitalized terms used herein and not otherwise defined shall have
the meanings given to them in the Credit Documents.
B. Certain Events of Default have occurred under Section 6.1(d)
of the Credit Agreement in that the Borrower has defaulted in the performance
of the Tangible Net Worth Financial Covenant in Section 5.15(a) and the Debt
Service Coverage Ratio Financial Covenant in Section 5.15(c) of the Credit
Agreement.
C. Borrower has requested and Lender has agreed to extend the
Termination Date from February 29, 2000, to October 31, 2000, and to waive the
Events of Default enumerated in recital paragraph B above. As one of the
conditions of the waiver of the said Covenants, Lender requires the Borrower
modification of the Credit Agreement pursuant to the terms and conditions as
set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and other
good and valuable consideration, the Borrower and Lender agree as follows:
1. The Recitals herein are true and correct.
2. The Credit Agreement is hereby amended by deleting Section
1.2 (aj) in its entirety and inserting in lieu thereof the following:
(a) TERMINATION DATE means October 31, 2000, the
maturity date of the Obligations, as such date may be
extended from time to time pursuant to Section 2.5 or
accelerated pursuant to Section 6.2.
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3. The Credit Agreement is hereby amended by deleting 2.3 (a) in
its entirety and inserting in lieu thereof the following:
(a) The Note shall bear interest on the unpaid principal
balance of the amount advanced thereunder from the date
advanced until payment in full at the rate of two percentage
points (200 basis points) in excess of the Prime Rate per
annum. All such accrued and unpaid interest shall be payable
monthly on the first day of each month in each year,
commending March 1, 2000, and until payment in full. Interest
will be computed on an Annual/360 Day Basis. Any change in
the interest rate on the Note because of a change in the
Prime Rate shall take effect on the effective date of such
change in the Prime Rate as announced to the Lender without
notice to the Borrower and without any further action by the
Lender. Notwithstanding the foregoing, at such time as
Borrower has provided evidence satisfactory to Lender that
the Borrower has achieved and maintained a Current Ratio (as
hereinafter defined) of greater than 1.0 to 1.0 for a period
of at least one fiscal quarter, the interest rate in the Note
shall be decreased to a rate equal to one percentage point
(100 basis points) in excess of the Prime Rate per annum. In
the event that the Current Ratio falls below 1.0 to 1.0 for
any fiscal quarter after such a decrease in the interest
rate, the interest rate in the Note shall be increased to the
rate of two percentage points (200 basis points) in excess of
the Prime Rate per annum.
4. The Credit Agreement is hereby amended by deleting Section
5.15(a) in its entirety and inserting in lieu thereof the following:
(a) TANGIBLE NET WORTH. Not permit its tangible Net
Worth to be at any time less than $8,500,000, determined on a
quarterly basis.
5. The Credit Agreement is hereby amended by deleting Section
5.15(b) in its entirety and inserting in lieu thereof the following:
(b) CAPITAL EXPENDITURES. Not make in the aggregate in
any consecutive four fiscal quarters Capital Expenditures
that exceed $4,000,000.
6. The Credit Agreement is hereby amended by deleting Section
5.15(c) in its entirety and inserting in lieu thereof the following:
(c) DEBT SERVICE COVERAGE RATIO. Not permit its ratio of
Net Income Available for Debt Service for any four
consecutive fiscal quarters to (i) Interest Expense and
Operating Lease Payments for such period plus (ii) Principal
Maturities for the next succeeding four fiscal quarters
following the date of determination plus (iii) 20% of the
outstanding Obligations as of the date of determination to be
less than 2.0 to 1.0 at any time. Debt Service Coverage Ratio
shall be tested each fiscal quarter commencing July 1,2000.
7. The Credit Agreement is hereby amended by adding the
following as Section 5.15(o) thereto:
CURRENT RATIO. Maintain at all times a Current Ratio of at
least 0.65 to 1.0. As used herein, "Current Ratio" shall mean
the ratio of (a) Current Assets to (b) Current Liabilities.
Current Ratio shall be tested each fiscal quarter. As used
herein, "Current Assets" shall mean, at any date, the amount
which, in conformity with GAAP consistent with the 1999
presentation,
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would be set forth opposite the caption "total current
assets" (or any like caption) on Borrower's balance sheet. As
used herein "Current Liabilities" shall mean, at any date,
the amount which, in conformity with GAAP consistent with the
1999 presentation, would be set forth opposite the caption
"total current liabilities" (or any like caption) on
Borrowers balance sheet.
8. The Credit Agreement is hereby amended by adding the
following as Section 5.15(p) thereto:
EBITDA. Not permit EBITDA to be less than $1,600,000 for any
period of four consecutive fiscal quarters. EBITDA shall be tested each quarter
commencing July 1, 2000. As used herein, "EBITDA" shall mean Borrower's
earnings before interest, taxes, depreciation, amortization and non-cash
charges arising from SFAS 121 (Impairment of Long Term Assets).
9. The Credit Agreement is hereby amended by adding the
following as Section 5.15(q) thereto:
RATIO OF EBITDA TO DEBT. Maintain a ratio of EBITDA to total
Debt of Borrower of at least 0.25 to 1.0 at all times. The
ratio of EBITDA to Debt shall be tested each fiscal quarter
commencing July 1, 2000.
10. Borrower also agrees to pay the Lender a $6,000.00 renewal
and modification fee and to directly pay and reimburse the Lender for all
expenses, including the reasonable fees and expenses of legal counsel, incurred
by the Lender in connection with the preparation of the documentation to
evidence this Modification.
11. Borrower represents and warrants to the Lender that all
representations and warranties given by the Borrower to the Lender in Article
III of the Credit Agreement are true and correct as of the date hereof, except
to the extent affected by this Modification.
12. Except as herein modified, the Credit Agreement shall remain
in full force and effect, and the Credit Agreement as so modified, is hereby
ratified and affirmed in all respects. The Borrower confirms that it has no
offsets or defenses with respect to its obligations pursuant to the Credit
Agreement, as herein modified, and represents that this Modification has been
duly authorized, executed and delivered pursuant to all necessary action of the
Borrower.
13. This Modification shall inure to the benefit of and be
binding upon the parties hereto, and their respective successors and assignors.
14. This Modification may be executed in counterparts, each of
which shall be an original, but all of which when taken together shall
constitute one and the same instrument.
15. The Borrower irrevocably (a) acknowledges that this
Modification will be accepted by the Lender and performed by the Borrower in
the State of Alabama; (b) submits to the jurisdiction of each state or federal
court sitting in Jefferson County, Alabama (collectively, the "Courts") over
any suit, action or proceeding arising out of or relating to this Modification
or any of the other Credit Documents (an "Action"); (c) waives, to the fullest
extent permitted bylaw, any objection or defense that the Borrower may now or
hereafter have based on improper venue, lack of personal jurisdiction,
inconvenience of forum or any similar matter in any Action brought in any of
the Courts; (d) agrees that final judgment in any Action brought in any
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of the Courts shall be conclusive and binding upon the Borrower and may be
enforced in any other court to the jurisdiction of which the Borrower is
subject, by a suit upon such judgment; (e) consents to the service of process
on the Borrower in any Action by the mailing of a copy thereof by registered or
certified mail, postage prepaid, to the Borrower at the Borrower's address
designated in or pursuant to Section 7.1; (f) agrees that service in accordance
with Section 7.14(e) of the Credit Amendment shall in every respect be
effective and binding on the Borrower to the same extent as though served on
the Borrower in person by a person duly authorized to serve such process; and
(g) AGREES THAT THE PROVISIONS OF THIS PARAGRAPH, EVEN IF FOUND NOT TO BE
STRICTLY ENFORCEABLE BY ANY COURT, SHALL CONSTITUTE "FAIR WARNING" TO THE
BORROWER THAT THE EXECUTION OF THIS MODIFICATION MAY SUBJECT THE BORROWER TO
THE JURISDICTION OF EACH STATE OR FEDERAL COURT SITTING IN JEFFERSON COUNTY,
ALABAMA WITH RESPECT TO ANY ACTIONS, AND THAT IT IS FORESEEABLE BY THE BORROWER
THAT THE BORROWER MAY BE SUBJECTED TO THE JURISDICTION OF SUCH COURTS AND MAY
BE SUED IN THE STATE OF ALABAMA IN ANY ACTIONS. Nothing in this Paragraph shall
limit or restrict the Lender's right to serve process or bring ACTIONS in
courts otherwise than as herein provided.
16. The exercise by the Lender of any option given to it under
the Credit Agreement shall not constitute a waiver of the right to exercise any
other option. No failure or delay on the part of the Lender in exercising any
right, power or remedy under the Credit Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any further exercise thereof or the exercise of any other
right, power or remedy.
17. This Modification shall inure to the benefit of and be
binding upon the parties hereto and their respective successor and assigns.
18. Inapplicability or unenforceability of any provisions of this
Modification shall not limit or impair the operation or the validity of any
other provision of this Modification.
IN WITNESS WHEREOF, the parties have caused this Modification to be
duly executed under seal as of the day and year first above written.
BORROWER:
WALL STREET DELI, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Printed Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
[Affix corporate seal]
Attest: /s/ Xxxxxx X. Xxxxxxxx
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Printed Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
[Affix corporate seal]
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STATE OF ALABAMA)
COUNTY OF JEFFERSON )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that Xxxxxxx X. Xxxxxxx whose name as CEO of Wall Street
Deli, Inc., a Delaware corporation, is signed to the foregoing instrument, and
who is known to me, acknowledged before me on this day that, being informed of
the contents of the instrument. s/he, as such officer and with full authority,
executed the same voluntarily on the day the same bears date.
Given under my hand and official seal, this 3rd day of March, 2000.
/s/ Xxxxxx X. Xxxxxxxx
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Notary Public
My commission expires: Notary Public State of
Alabama at Large My Commission Expires: Feb 4,
2004 bonded thru Notary Public Underwriters
LENDER:
AMSOUTH BANK, an Alabama banking corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Printed Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
STATE OF ALABAMA)
COUNTY OF JEFFERSON )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that Xxxxxxx X. Xxxxxxxx , whose name as Vice President
of AmSouth Bank, an Alabama banking corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that.
being informed of the contents of the instrument, s/he, as such officer and
with full authority, executed the same voluntarily On the day the same bears
date.
Given under my hand and official seal, this 8 day of March, 2000.
/s/ Xxxxxxxx Xxxxx
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Notary Public
My commission expires: 4/13/2003
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