FIRST AMENDMENT AGREEMENT
dated as of February 7, 1997
among
DAKA INTERNATIONAL, INC.
SUBSIDIARY GUARANTORS
THE BANKS SIGNATORY HERETO
and
THE CHASE MANHATTAN BANK
as Agent
FIRST AMENDMENT AGREEMENT
FIRST AMENDMENT AGREEMENT (this "Agreement") dated as of February 7,
1997 among DAKA INTERNATIONAL, INC., a corporation organized under the laws of
Delaware (the "Borrower"); each of the Subsidiaries of the Borrower which is a
signatory hereto (collectively the "Subsidiary Guarantors" and, together with
the Borrower, the "Obligors"); each of the banks which is a signatory hereto
(collectively the "Banks"); and THE CHASE MANHATTAN BANK, a bank organized under
the laws of New York, as agent for the Banks (in such capacity, together with
its successors in such capacity, the "Agent").
WHEREAS, the Borrower, the Subsidiary Guarantors, the Banks and the
Agent have entered into that certain Third Amended and Restated Credit Agreement
dated as of October 15, 1996 (as in effect prior to the effectiveness of this
Agreement, the "Existing Credit Agreement," and, as amended by this Agreement,
the "Amended Credit Agreement") pursuant to which the Banks have extended credit
to the Obligors evidenced by certain Promissory Notes dated October 15, 1996
issued by the Borrower and guarantied by the Subsidiary Guarantors;
WHEREAS, the Obligors hereby acknowledge that certain Defaults and
Events of Default have occurred under the Existing Credit Agreement;
WHEREAS, the Borrower, the Subsidiary Guarantors, the Banks and the
Agent have agreed to enter into this Agreement to provide for, among other
things, a decrease in the aggregate Commitments to $120,000,000, the
modification of certain covenants and definitions contained in the Existing
Credit Agreement and waivers of certain Defaults and Events of Default; and
WHEREAS, the Facility Documents, as amended and supplemented by this
Agreement (including, without limitation, this Agreement, the Amended Credit
Agreement and the Mortgages) and as each may be amended or supplemented from
time to time, are referred to herein as the "Amended Facility Documents".
NOW THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1. AMENDMENTS TO EXISTING AGREEMENTS.
Section 1.01. Amendments to Existing Credit Agreement. Each of the
Obligors and, subject to the satisfaction of the conditions set forth in Article
3, the Agent and the Banks hereby consents and agrees to the amendments to the
Existing Credit Agreement set forth below:
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(a) The definition of "Consolidated Net Income" in Section
1.01 of the Existing Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Consolidated Net Income" means, with respect to any fiscal
period, net income (or loss) for the Consolidated Entities for such
fiscal period (but in any event excluding the sum of (i) noncash
charges taken during such fiscal period in accordance with Statement of
Financial Accounting Standard No. 121 in connection with charges for
impairments to the carrying value of certain restaurant and foodservice
contract assets, write down of goodwill, reacquired franchise rights,
investments and other assets plus (ii) noncash charges relating to
accounting changes requiring the write-down of pre-opening restaurant
costs, to the extent that the sum of such noncash charges under clauses
(i) and (ii) for the period from June 30, 1996 does not exceed
$4,000,000), as determined on a consolidated basis in accordance with
GAAP.
(b) The definition of "Interest Coverage Ratio" in Section
1.01 of the Existing Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Interest Coverage Ratio" means, at any date of determination
thereof, the ratio of (a) the result of (i) Consolidated EBIT for the
most recently ended fiscal period, plus (ii) the aggregate amount of
depreciation and amortization expense, to the extent such aggregate
amount was deducted from Consolidated EBIT for such fiscal period,
minus (iii) the aggregate amount of Capital Expenditures of the
Consolidated Entities incurred during such fiscal period to (b)
Consolidated Interest Expense for such fiscal period.
(c) The definition of "Letter of Credit Availability" in
Section 1.01 of the Existing Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"Letter of Credit Availability" means, at any date of
determination thereof, the amount by which (a) $5,000,000 exceeds (b)
the aggregate amount of the Letter of Credit Obligations at such date
(including all Letter of Credit Obligations under Letters of Credit not
then issued as to which a request has been made under Section 3.02),
subject to the limitations contained in Section 5.05 of that certain
First Amendment Agreement dated as of February 7, 1997 among the
Obligors, the Banks and the Agent.
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(d) The definition of "Termination Date" in Section 1.01 of
the Existing Credit Agreement is hereby amended to substitute "January 2, 1998"
in place of "October 1, 1997".
(e) The first two sentences of Section 2.01(a) of the Existing
Credit Agreement are hereby amended and restated in their entirety to read as
follows:
Subject to the terms and conditions of this Agreement, each of
the Banks severally agrees to make loans (the "Loans") to the Borrower
from time to time from and including the date hereof to and including
the Termination Date, up to but not exceeding in the aggregate
principal amount at any one time outstanding, the amount of its Loan
Commitment. The aggregate Loan Commitments shall be reduced by (i)
$5,000,000 on May 31, 1997, (ii) $10,000,000 on June 30, 1997, (iii)
$500,000 on each of July 31, 1997, August 31, 1997 and September 30,
1997, (iv) $1,000,000 on October 31, 1997, (v) $2,500,000 on November
30, 1997 and (vi) $5,000,000 on December 31, 1997, each such reduction
to be apportioned ratably among the Banks in accordance with their Pro
Rata Shares.
(f) Section 8.15 of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as follows:
Section 8.15. Capital Expenditures. Make or commit to make any
Capital Expenditure if the aggregate amount of the Capital Expenditures
of the Consolidated Entities incurred (a) during each fiscal quarter of
the Borrower would exceed (i) if such fiscal quarter ends on March 29,
1997, $8,000,000, (ii) if such fiscal quarter ends on June 28, 1997,
$8,000,000, (iii) if such fiscal quarter ends on September 27, 1997,
$3,500,000 or (iv) if such fiscal quarter ends on December 31, 1997,
$2,800,000; provided that any amount permitted in a fiscal quarter that
is not expended in such fiscal quarter may be carried over and expended
in subsequent fiscal quarters in addition to the amount permitted in
each such subsequent fiscal quarter; and (b) during the fiscal period
from December 29, 1996 through the end of each fiscal quarter of the
Borrower would exceed (i) if such fiscal quarter ends on June 28, 1997,
$15,500,000, (ii) if such fiscal quarter ends on September 27, 1997,
$18,100,000 or (iii) if such fiscal quarter ends on December 31, 1997,
$20,000,000.
(g) Section 8.16 of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as follows:
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Section 8.16. Rental Expense. Create, incur, assume or suffer to exist
any obligation as lessee for the rental or hire of any Property, except:
(a) leases existing on February 7, 1997 and any extensions or
renewals thereof;
(b) leases of "Fuddruckers" restaurants located in
Superstition Springs, Arizona, Thornton, Colorado and Layton, Utah under the
FFCA Sale-Leaseback Transaction; and
(c) leases of "Champps" restaurants located in Schaumburg,
Illinois, San Antonio, Texas and Detroit, Michigan under the AEI Sale- Leaseback
Transaction and leases of equipment located therein and equipment located in
"Champps" restaurants located in Fort Lauderdale, Florida and Columbus, Ohio
from Carlton Financial;
(d) leases by Daka, Inc. relating to the operation of its food
service business entered into in the ordinary course of business; and
(e) leases of miscellaneous personal Property, provided that
the aggregate amount of rentals relating to such leases does not exceed $100,000
in any fiscal year of the Borrower.
(h) Article 8 of the Existing Credit Agreement is hereby
amended to add new Section 8.18 to read as follows:
"Section 8.18. New Construction. Enter into any construction contract
after February 7, 1997 without the prior written consent of the Required Banks."
(i) Article 9 of the Existing Credit Agreement is hereby
amended and restated to read as follows:
ARTICLE 9. FINANCIAL COVENANTS.
So long as any Obligation shall remain unpaid, any Letter of
Credit shall remain outstanding or any Bank shall have any Commitment
under this Agreement, each of the Obligors jointly and severally
covenants that:
Section 9.01. Net Income. As determined as of the end of each fiscal
quarter of the Borrower, Consolidated Net Income (a) for such
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fiscal quarter shall be not less than (i) if such fiscal quarter ends
on March 29, 1997, ($1,250,000), (ii) if such fiscal quarter ends on
June 28, 1997, ($1,600,000), (iii) if such fiscal quarter ends on
September 27, 1997, ($3,000,000) or (iv) if such fiscal quarter ends on
December 31, 1997, $0 and (b) irregardless of whether the Borrower is
in compliance with clause (a), for the fiscal period from December 29,
1996 through the end of such fiscal quarter shall be not less than
($3,800,000).
Section 9.02. Leverage Ratio. As determined as of the end of each fiscal
month of the Borrower, the Leverage Ratio shall be not greater than (a) if such
month is January, February, March, April or May, 2.60 to 1.00, (b) if such month
is June, July, August, September, October or November, 2.50 to 1.00 or (c) if
such month is December, 2.25 to 1.00.
Section 9.03. Minimum Tangible Net Worth. At all times, Consolidated
Tangible Net Worth shall not be less than (a) if such time is on or after
January 25, 1997 and before April 26, 1997, $54,500,000, (b) if such time is on
or after April 26, 1997 and before July 26, 1997, $53,000,000 or (c) if such
time is on or after July 26, 1997, $52,000,000.
Section 9.04. Fixed Charge Coverage Ratio. As determined as of the end
of each fiscal quarter of the Borrower, the Fixed Charge Coverage Ratio for such
fiscal quarter shall be not less than (a) if such fiscal quarter ends on March
29, 1997, .80 to 1.00, (b) if such fiscal quarter ends on June 28, 1997, .70 to
1.00, (c) if such fiscal quarter ends on September 27, 1997, .50 to 1.00 or (d)
if such fiscal quarter ends on December 31, 1997, .90 to 1.00.
Section 9.05. Interest Coverage Ratio. As determined as of the end of
each fiscal quarter of the Borrower, the Interest Coverage Ratio (a) for such
fiscal quarter shall be not less than (i) if such fiscal quarter ends on March
29, 1997, (.30) to 1.00, (ii) if such fiscal quarter ends on June 28, 1997,
(.34) to 1.00, (iii) if such fiscal quarter ends on September 27, 1997, .19 to
1.00 or (iv) if such fiscal quarter ends on December 31, 1997, 2.33 to 1.00 and
(b) for the fiscal period from December 29, 1996 through the end of such fiscal
quarter shall be not less than (i) if such fiscal quarter ends on March 29,
1997, (.30) to 1.00, (ii) if such fiscal quarter ends on June 28, 1997, (.24) to
1.00, (iii) if such fiscal quarter ends on September 27, 1997, (.09) to 1.00 or
(iv) if such fiscal quarter ends on December 31, 1997, .57 to 1.00.
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(j) Schedules I-IV of the Existing Credit Agreement are hereby
amended and restated as set forth in Schedules I-IV hereto.
Section 1.02. Amendments to Security Agreement. Each of the Obligors
and, subject to the satisfaction of the conditions set forth in Article 3, the
Agent and the Banks hereby consents and agrees that Schedule A to the Security
Agreement is hereby amended and restated as set forth in Schedule V hereto.
Section 1.03. Amendments to Pledge Agreement. Each of the Obligors and,
subject to the satisfaction of the conditions set forth in Article 3, the Agent
and the Banks hereby consents and agrees that Schedule A to the Pledge Agreement
is hereby amended and restated as set forth in Schedule VI hereto.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES.
Each of the Obligors hereby represents and warrants that as of the
Effective Date:
Section 2.01. Existing Representations and Warranties. Each of the
representations and warranties contained in Article 6 of the Existing Credit
Agreement, in Article 3 of the Security Agreement, in Article 3 of the Trademark
Security Agreement and in Article 3 of the Pledge Agreement are true and
correct.
Section 2.02. No Defaults. Except for the Defaults and Events of
Default specifically waived under Article 4, no event has occurred and no
condition exists which would constitute a Default or an Event of Default under
the Facility Documents, and no event has occurred and no condition exists which
would constitute a Default or an Event of Default under the Amended Facility
Documents.
Section 2.03. Corporate Power and Authority; No Conflicts. The
execution, delivery and performance by each of the Obligors of the Amended
Facility Documents to which it is a party have been duly authorized by all
necessary corporate, partnership or limited liability company action and do not
and will not: (a) require any consent or approval of its stockholders, partners
or members; (b) contravene its organizational documents; (c) violate any
provision of, or require any filing (other than the filing of the financing
statements contemplated by the Security Agreement and the filing of the
Mortgages and the Trademark Security Agreement), registration, consent or
approval under, any law, rule, regulation (including, without limitation,
Regulation U), order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to any Consolidated Entity; (d) result
in a breach of or constitute a default or require any consent under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which any
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Consolidated Entity is a party or by which it or its properties may be bound or
affected if such breach, default or failure to obtain consent could reasonably
be expected to have a Material Adverse Effect; (e) result in, or require, the
creation or imposition of any Lien (other than as created under the Security
Documents), upon or with respect to any of the properties now owned or hereafter
acquired by any Consolidated Entity; or (f) cause any Consolidated Entity to be
in default under any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or any such indenture, agreement,
lease or instrument if such default could reasonably be expected to have a
Material Adverse Effect.
Section 2.04. Legally Enforceable Agreements. Each Amended Facility
Document to which any Obligor is a party has been duly executed and delivered by
such Obligor. Each Amended Facility Document to which any Obligor is a party is
a legal, valid and binding obligation of such Obligor enforceable against such
Obligor in accordance with its terms, except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency and other similar laws
affecting creditors' rights generally.
Section 2.05. Financial Statements. The consolidated balance sheet of
the Consolidated Entities as at June 29, 1996, and the related consolidated and
consolidating (by business segment) income statements and consolidated
statements of cash flows and changes in stockholders' equity of the Consolidated
Entities for the fiscal year then ended, and the accompanying footnotes,
together with the unqualified opinion on the consolidated statements of Deloitte
& Touche, independent certified public accountants, and the interim draft
consolidated balance sheet of the Consolidated Entities as at December 28, 1996,
and the related draft consolidated and consolidating (by business segment)
income statements and consolidated statements of cash flows and changes in
stockholders' equity of the Consolidated Entities for the six months then ended,
copies of which have been furnished to each of the Banks, are complete and
correct and fairly present the financial condition of the Consolidated Entities
at such dates and the results of the operations of the Consolidated Entities for
the periods covered by such statements, all in accordance with GAAP consistently
applied. There are no liabilities of any Consolidated Entity, fixed or
contingent, which are material but are not reflected in the financial statements
or in the notes thereto and which would be required to be recorded in such
financial statements or notes in accordance with GAAP, other than liabilities
arising in the ordinary course of business since December 28, 1996. No
information, exhibit or report furnished by any Consolidated Entity to the Banks
in connection with the negotiation of this Agreement contained any material
misstatement of fact or omitted to state a material fact or any fact necessary
to make the statements contained therein not materially misleading. Since
December 28, 1996, there has been no change which could reasonably be expected
to have a Material Adverse Effect.
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ARTICLE 3. CONDITIONS PRECEDENT.
The effectiveness of this Agreement is subject to the condition
precedent that the Agent shall have received on or before February 7, 1997 (the
"Effective Date") each of the following, in form and substance satisfactory to
the Agent and its counsel:
(a) counterparts of this Agreement executed by each of the
Borrower, the Subsidiary Guarantors, the Banks and the Agent;
(b) sufficient mortgages and leasehold mortgages executed by
Fuddruckers, Inc. or Champps Entertainment, Inc. (the "Mortgages") covering all
of the unencumbered real Property owned by each of the Obligors listed on
Schedule VII hereto but in any event excluding the "Champps" restaurant located
in Denver, Colorado (collectively, the "Mortgaged Properties");
(c) evidence that all actions necessary or appropriate (or, in
any event, as may be requested by the Agent) to create, perfect or protect the
Liens created or purported to be created by the Security Agreement, the
Trademark Security Agreement and the Pledge Agreement have been taken;
(d) certificates of the Secretary or Assistant Secretary of
each of the Obligors, dated the Effective Date, (i) attesting to all corporate
action taken by such Obligor, including resolutions of its Board of Directors
authorizing the execution, delivery and performance of each of the Amended
Facility Documents to which it is a party and each other document to be
delivered pursuant to this Agreement, (ii) certifying the names and true
signatures of the officers of such Obligor authorized to sign the Amended
Facility Documents to which it is a party and the other documents to be
delivered by such Obligor under this Agreement and (iii) verifying that the
organizational documents of such Obligor (other than those of the New Subsidiary
Guarantors which shall be delivered within 30 days of the Effective Date)
attached thereto are true, correct and complete as of the date thereof;
(e) a certificate of a duly authorized officer of each of the
Obligors, dated the Effective Date, stating that the representations and
warranties in Article 2 are true and correct on such date as though made on and
as of such date and that no event has occurred and is continuing which
constitutes a Default or Event of Default;
(f) favorable opinions of (i) Xxxxxxx, Procter & Xxxx, outside
counsel for the Obligors, (ii) Wolin, Fuller, Xxxxxx & Xxxxxx L.L.P., special
Texas counsel to the Obigors, and (iii) Xxxxxxxxxx & Xxxxx, P.A., special
Minnesota counsel to the Obligors,
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each dated the Effective Date, in substantially the form of Exhibit A and as to
such other matters as the Agent or any Bank may reasonably request; and
(g) evidence that the fees and expenses incurred as of the
Effective Date under Section 6.04 shall have been paid in full.
ARTICLE 4. CERTAIN WAIVERS.
Subject to the satisfaction of the conditions set forth in Article 3
hereof, each of the Agent and the Banks hereby waives the following Defaults or
Events of Default arising from noncompliance by the Borrower (a) with Section
8.15(b) for the fiscal quarter of the Borrower ending on December 28, 1996, (b)
with Section 8.16 for the fiscal quarter of the Borrower ending on December 28,
1996, (c) with Section 9.01 for the fiscal quarter of the Borrower ending on
December 28, 1996, (d) with Section 9.02 for the fiscal months of the Borrower
ending on October 25, 1996, November 23, 1996, December 28, 1996 and January 25,
1997, (e) with Section 9.03 for any time prior to the Effective Date, (f) with
Section 9.04 for the fiscal quarter of the Borrower ending on December 28, 1996
and (g) with Section 9.05 for the fiscal quarter of the Borrower ending on
December 28, 1996. Except for the foregoing waivers, the terms of this Agreement
shall not operate as a waiver by the Agent or any Bank or otherwise prejudice
the rights, remedies or powers of the Agent or any Bank under the Amended Credit
Agreement, the other Amended Facility Documents or applicable law. Except as
expressly provided herein: (x) no terms and provisions of the Facility Documents
are modified or changed by this Agreement; and (y) the terms and provisions of
the Facility Documents shall continue in full force and effect.
ARTICLE 5. CERTAIN COVENANTS.
Section 5.01. Controlled Disbursement System. Each Obligor (other than
Atlantic Restaurant Ventures, Inc.) hereby agrees to maintain its
"concentration" accounts at The First National Bank of Chicago, unless the Agent
shall have notified such Obligor on or after July 1, 1997 to transfer such
"concentration" accounts to The Chase Manhattan Bank, whereupon such
"concentration" accounts shall be transferred within 30 days of such
notification to, and thereafter maintained at, The Chase Manhattan Bank. Each
Obligor (including Atlantic Restaurant Ventures, Inc.) hereby agrees to take all
necessary actions to establish within 60 days, and agrees to establish within 90
days, of the Effective Date and thereafter maintain a disbursement system
pursuant to which each Obligor deposits all cash receipts into an operating
account subject to such disbursement system which receipts are then
automatically transferred no less often then weekly to the "concentration"
accounts of such Obligor or, in the case of Atlantic Restaurant Ventures, Inc.,
of Fuddruckers, Inc. Upon such automatic transfer, the cash held in the
"concentration" accounts of each Obligor in excess of outstanding checks drawn
on such accounts projected to
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be cashed prior to the next automatic transfer shall be utilized to prepay the
Loans, subject to the Borrower's right to reborrow in accordance with the terms
of the Amended Credit Agreement. Upon implementation, the Borrower shall cause
The First National Bank of Chicago to agree not to discontinue or modify such
disbursement system without the prior written consent of the Agent or, if The
First National Bank of Chicago shall refuse to so agree, shall immediately take
action to transfer, and in any event within 30 days shall transfer, the
"concentration" accounts to The Chase Manhattan Bank.
Section 5.02. Additional Reporting Requirements. In addition to the
reports required to be delivered under Section 7.08 of the Amended Credit
Agreement, the Borrower hereby agrees to provide (a) within 5 days after the end
of each week, a report listing each "Fuddruckers" and "Champps" restaurant as of
the end of such week, sales for each such restaurant for such week, comparable
results to the corresponding week in the prior fiscal year for each such
restaurant and comparison to the projected results for such week; (b) within 30
days after the end of each month, a report listing each "Fuddruckers" and
"Champps" restaurant as of the end of such month, sales, expense and margin
information for each such restaurant for such month, comparable results to the
corresponding month in the prior fiscal year for each such restaurant and
comparison to the projected results for such month; (c) within 5 days of the end
of such week, a listing of the aggregate amount of accounts payable of the
Consolidated Entities to Alliant Foodservice as of the end of such week; (d)
simultaneously with the delivery of the financial statements referred to in
Section 7.08(g), a summary aged trial balance from the invoice date of the
accounts payable of the Consolidated Entities to Alliant Foodservice and the
average aged trial balance from the due date of all other accounts payable of
the Consolidated Entities; (e) promptly after the receipt thereof, copies of all
correspondence, reports, analyses and other documentation relating to any
proposed recapitalization, reorganization, sale, merger, refinancing or capital
raising activities of any Consolidated Entity; and (f) a calculation of the
"Fixed Charge Coverage Ratio" for each "Fuddruckers" restaurant subject to the
FFCA Sale-Leaseback Transaction and any requested "buy-downs" pursuant thereto.
All reports delivered under Section 7.08 of the Amended Credit Agreement or
hereunder shall be in form and substance satisfactory to the Banks.
Section 5.03. Certain Real Estate Issues. Each of the Agent and the
Banks hereby agrees that the Mortgages on the "Fuddruckers" restaurants located
in Superstition Springs, Arizona, Thornton, Colorado and Layton, Utah (the "SL
Mortgaged Properties") will not be recorded until October 1, 1997 and will only
be recorded to the extent any of such restaurants have not then been sold and
leased back under the FFCA Sale-Leaseback Transaction. The Borrower hereby
agrees to use reasonable and good faith efforts to seek financing with respect
to the Mortgaged Properties (other than the SL Mortgaged Properties), 100% of
the proceeds (net of
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taxes and transaction costs) of which shall be utilized to prepay the Loans and
permanently reduce the Loan Commitments (which reductions shall be in excess of
the reductions required under Section 2.01 of the Amended Credit Agreement). The
Banks may (a) engage an environmental consultant to prepare an environmental
site assessment report with respect to each of the Mortgaged Properties and (b)
engage an appraiser to perform an independent appraisal as to each of the
Mortgaged Properties, in each case, upon a Default or Event of Default, at the
cost of the Borrower.
Section 5.04. Consultant. The Borrower hereby agrees to the continued
engagement of Xxxxxxx & Marsal, Inc. to examine the financial condition,
operation, properties, business and prospects of the Consolidated Entities for
the benefit of the Banks at the cost of the Borrower.
Section 5.05. Letter of Credit Availability. The Borrower hereby agrees
to use reasonable and good faith efforts to reduce the face amount of the
Letters of Credit required to be posted to secure obligations in connection with
insurance programs, whereupon any such reduction shall be utilized to
permanently reduce the Letter of Credit Commitments and the Letter of Credit
Availability.
ARTICLE 6. MISCELLANEOUS.
Section 6.01. Defined Terms. The terms used herein and not defined
herein shall have the meanings assigned to such terms in the Amended Credit
Agreement.
Section 6.02. Reaffirmation. Each of the Obligors acknowledges that the
Liens granted to the Agent under the Security Documents in and to the Collateral
secures all of the Obligations, including, without limitation, all liabilities
and obligations under the Loans as herein modified and decreased. All references
to "Secured Obligations" in any Facility Document shall be deemed to include all
liabilities and obligations under the Loans as herein modified and decreased.
Each of the Obligors further acknowledges and reaffirms all of its other
respective obligations and duties under the Amended Facility Documents to which
it is a party.
Section 6.03. Amendments and Waivers. Any provision of this Agreement
may be amended or modified only by an instrument in writing signed by the
Borrower, the Agent and the Required Banks, or by the Borrower and the Agent
acting with the consent of the Required Banks and any provision of this
Agreement may be waived by the Required Banks or by the Agent acting with the
consent of the Required Banks; except any provision the subject matter of which
the consent of all of the Banks would be necessary under the Facility Documents
shall require the consent of all of the Banks prior to the amendment or waiver
thereof.
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Section 6.04. Expenses. The Borrower shall reimburse the Agent on
demand for all reasonable costs, expenses and charges (including, without
limitation, reasonable fees and charges of legal counsel to the Agent and of
Xxxxxxx & Marsal, Inc. and all recording fees, charges and taxes incurred upon
the recordation of the Mortgages) in connection with the preparation of, and any
amendment, supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any other Amended Facility Document and any other
documents prepared in connection herewith or therewith. The Borrower shall also
pay to the Agent for the account of the Banks an amendment fee equal to $75,000
to be split among the Banks in accordance with their Pro Rata Shares.
Section 6.05. Notices. Unless the party to be notified otherwise
notifies the other party in writing as provided in this Section, and except as
otherwise provided in this Agreement, notices shall be given to the Agent by
telephone, confirmed by telex, telecopy or other writing, and to the Banks and
to the Obligors by ordinary mail or telecopier addressed to such party at its
address on the signature page of this Agreement. Notices shall be effective: (a)
if given by mail, 72 hours after deposit in the mails with first class postage
prepaid, addressed as aforesaid; and (b) if given by telecopier, when the
telecopy is transmitted to the telecopier number as aforesaid; provided that
notices to the Agent and the Banks shall be effective upon receipt.
Section 6.06. Headings; Parentheticals. The headings and captions
hereunder are for convenience only and shall not affect the interpretation or
construction of this Agreement. All numbers contained herein enclosed by
parentheticals are deemed to reflect losses or the negative of such numbers.
Section 6.07. Severability. The provisions of this Agreement are
intended to be severable. If for any reason any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting the validity
or enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
Section 6.08. Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing any such
counterpart.
Section 6.09. Integration. The Amended Facility Documents set forth the
entire agreement among the parties hereto relating to the transactions
contemplated thereby and supersede any prior oral or written statements or
agreements with respect to such transactions.
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SECTION 6.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF
MASSACHUSETTS.
Section 6.11. New Subsidiary Guarantors. Each of Hospitality Supply,
Inc., a Massachusetts corporation, and Fuddruckers Europe, Inc., a Texas
corporation (collectively, the "New Subsidiary Guarantors") unconditionally and
irrevocably accepts, adheres to, and becomes a party to and bound as a
"Subsidiary Guarantor" under the Existing Credit Agreement and the other
Facility Documents, as fully as if such New Subsidiary Guarantor had been a
signatory to the Existing Credit Agreement and the other Facility Documents as a
"Subsidiary Guarantor". In confirmation (but without limitation) of the
foregoing, each of the New Subsidiary Guarantors hereby unconditionally (a)
agrees to make prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on all Obligations
and (b) grants, bargains, conveys, assigns, transfers, mortgages, hypothecates,
pledges, confirms and grants a continuing security interest to the Agent in and
to the Collateral.
Section 6.12. Release. Each of the Obligors hereby releases and forever
discharges the Agent and each of the Banks and their respective successors,
assigns, affiliates, directors, employees and agents from all causes of action,
covenants, agreements, damages, claims and demands whatsoever, in law or in
equity, which such Obligor ever had or now has in any way relating to or arising
out of the Existing Credit Agreement, any other Facility Document or any other
document contemplated by or referred to herein or the transactions contemplated
hereby or thereby or the enforcement of any of the terms thereof.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
DAKA INTERNATIONAL, INC.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
FUDDRUCKERS, INC.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
DAKA, INC.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
CASUAL DINING VENTURES, INC.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
ATLANTIC RESTAURANT VENTURES,
INC.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT AGREEMENT]
FRENCH QUARTER COFFEE COMPANY
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
AMERICANA DINING CORP.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
CHAMPPS ENTERTAINMENT OF
EDISON, INC.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
CHAMPPS ENTERTAINMENT OF
TEXAS, INC.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT AGREEMENT]
CHAMPPS AMERICANA, INC.
(Formerly known as Champps
Entertainment of Wayzata, Inc.)
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
CHAMPPS ENTERTAINMENT, INC.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
SPECIALTY CONCEPTS, INC.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
THE GREAT BAGEL AND COFFEE
COMPANY
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
HOSPITALITY SUPPLY, INC.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT AGREEMENT]
FUDDRUCKERS EUROPE, INC.
By/s/Xxxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title:Sr. Vice President
Address for Notices:
One Corporate Place
00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No.:(000)000-0000
[SIGNATURE PAGE TO FIRST AMENDMENT AGREEMENT]
AGENT:
THE CHASE MANHATTAN BANK
By /s/Xxxxxxx X. Xxxxxxxx
--------------------------
Name:Xxxxxxx X. Xxxxxxxx
Title:Vice President
Address for Notices:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
[SIGNATURE PAGE TO FIRST AMENDMENT AGREEMENT]
BANKS:
THE CHASE MANHATTAN BANK
By /s/Xxxxxxx X. Xxxxxxxx
--------------------------
Name:Xxxxxxx X. Xxxxxxxx
Title:Vice President
Lending Office and Address for
Notices:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
[SIGNATURE PAGE TO FIRST AMENDMENT AGREEMENT]
BANKS:
FLEET NATIONAL BANK
By /s/Xxxxxx X. X'Xxxxx
-------------------------------
Name:Xxxxxx X. X'Xxxxx
Title:Vice President
Lending Office and Address for
Notices:
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X'Xxxxx
[SIGNATURE PAGE TO FIRST AMENDMENT AGREEMENT]
BANKS:
MELLON BANK, N.A.
By /s/Xxxx X. Xxxx
-----------------------------------
Name:Xxxx X. Xxxx
Title:Vice President
Lending Office and Address for
Notices:
Xxx Xxxxxx Xxxx Xxxxxx
Xxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxx
[SIGNATURE PAGE TO FIRST AMENDMENT AGREEMENT]
BANKS:
THE FIRST NATIONAL BANK OF
BOSTON
By /s/Xxxxxxx X. Xxxxxxx
-------------------------------
Name:Xxxxxxx X. Xxxxxxx
Title:Vice President
Lending Office and Address for
Notices:
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
[SIGNATURE PAGE TO FIRST AMENDMENT AGREEMENT]
SCHEDULE I
Commitments
Loan Commitments
The Chase Manhattan Bank $57,500,000.00
Fleet National Bank $19,166,666.67
Mellon Bank, N.A. $19,166,666.67
The First National Bank of Boston $19,166,666.66
---------------
Total Loan Commitments $115,000,000.00
Standby Letter of Credit Commitments
The Chase Manhattan Bank $2,500,000.00
Fleet National Bank $833,333.33
Mellon Bank, N.A. $833,333.33
The First National Bank of Boston $833,333.34
-------------
Total Letter of Credit Commitments $5,000,000.00
