EXHIBIT 10(e)
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AGREEMENT TO CREDIT AGREEMENT (this "Amendment") is
made as of the 30th day of October, 1998, by and among PICCADILLY CAFETERIAS,
INC. (the "Borrower"), HIBERNIA NATIONAL BANK, as Co-Arranger, Administrative
Agent, Letter of Credit Issuer and a Bank, WACHOVIA BANK, N.A., as Co-Arranger,
Documentation Agent and as a Bank, SOUTH TRUST BANK, NATIONAL ASSOCIATION,
AMSOUTH BANK, BRANCH BANKING AND TRUST COMPANY, WHITNEY NATIONAL BANK, BANKONE
LOUISIANA, N.A., THE FUJI BANK, LIMITED, FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, and DEPOSIT GUARANTY NATIONAL BANK (collectively referred to
herein as the "Banks"), PICCADILLY RESTAURANTS, INC. and XXXXXXXX RESTAURANTS
INC. (collectively referred to here as the Guarantors).
R E C I T A L S:
The Borrower, the Administrative Agent, the Documentation Agent and
the Banks have entered into a certain Credit Agreement dated June 24, 1998, as
amended by a First Amendment to Credit Agreement dated July 31, 1998 (the
"Credit Agreement"). Capitalized terms used in this Amendment which are not
otherwise defined in this Agreement shall have the respective meanings assigned
to them in the Credit Agreement.
The Guarantors have executed a certain Guaranty Agreement dated
June 24, 1998 (the "Guaranty").
The Borrower and Guarantors have requested the Administrative
Agent, the Documentation Agent and the Banks to amend the Credit Agreement upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals and the mutual
promises contained herein and for the other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Administrative Agent, the Documentation Agent and the Banks, intending to be
legally bound hereby, agree as follows:
SECTION 1. RECITALS. The Recitals are incorporated herein by
reference and shall be deemed to be a part of this Amendment.
SECTION 2. AMENDMENTS. The Credit Agreement is hereby amended as
set forth in this SECTION 2.
SECTION 2.1. AMENDMENT TO SECTION 1.01. The following definitions
set forth in Section 1.01 are hereby amended and restated to read in their
entirety as follows:
"EBITDA" means for any period the sum of: (a) Consolidated Net Income,
plus (b) the amount deducted in determining the Consolidated Net Income for
such period for (I) taxes on income, (ii) Consolidated Interest Expense, (iii)
Depreciation and Amortization, (iv) all non-cash asset impairment charges, and
(v) all non-cash unit closing charges, all determined with respect to the
Borrower and its Consolidated Subsidiaries on a consolidated basis for such
period and in accordance with GAAP; provided, however, the calculation of
EBITDA made at the Fiscal Quarters ending (1) September 30, 1998, shall be
based upon the actual EBITDA determined with respect to the Borrower and its
Consolidated Subsidiaries (excluding Xxxxxxxx Restaurants Inc.) and an
annualized EBITDA for Xxxxxxxx Restaurants Inc. based upon the Fiscal Quarter
ending September 30, 1998; (2) December 31, 1998 shall be based upon the actual
EBITDA determined with respect to the Borrower and its Consolidated
Subsidiaries (excluding Xxxxxxxx Restaurants Inc.) and an annualized EBITDA for
Xxxxxxxx Restaurants Inc. based upon the Fiscal Quarters ending September 30,
1998 and December 31, 1998; and (3) March 31, 1999, shall be based upon the
actual EBITDA determined with respect to the Borrower and its Consolidated
Subsidiaries (excluding Xxxxxxxx Restaurants, Inc.) and an annualized EBITDA
for Xxxxxxxx Restaurants Inc. based upon the Fiscal Quarters ending September
30, 1998, December 31, 1998 and March 31, 1999. Beginning with the Fiscal
Quarter ending September 30, 1999, for purposes of determining the "Applicable
Margin" under Section 2.6 and the "Applicable Commitment Fee Rate" under
Section 2.7, items (iv) and (v) from above shall be removed from the above
definition of EBITDA.
"Income Available for Fixed Charges" means, for any period, the sum of
(a) EBITDA for such period, PLUS, (b) the amount deducted in determining EBITDA
for such period for expenses of the Borrower and its Consolidated Subsidiaries
with respect to common area maintenance charges, but expressly excluding any
and all prepayments under any leases or rental agreements).
2.02 AMENDMENT TO SECTION 5.25. Section 5.25 of the Credit
Agreement is hereby amended and restated to read as follows:
SECTION 5.25 EXISTING LETTERS OF CREDIT. The Borrower shall
cause the
Existing Letters of Credit to be terminated on or before November 30,
1998.
SECTION 3. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment and the obligations of the Banks hereunder are subject to the
following conditions, unless the Required Banks waive such conditions.
(a) receipt by the Administrative Agent from each of the
parties hereto of a duly executed counterpart of this Amendment signed by
such party; and
(b) the fact that the representations and warranties of the
Borrower and Guarantors contained in Section 5 of this Amendment shall be
true on and as of the date hereof.
SECTION 4. NO OTHER AMENDMENT. Except for the amendments set
forth above, the text of the Credit Agreement shall remain unchanged and in
full force and effect. This Amendment is not intended to effect, nor shall it
be construed as a novation. The Credit Agreement and this Amendment shall be
construed together as a single agreement. Nothing herein contained shall
waive, annul, vary or affect any provision, condition, covenant or agreement
contained in the Credit Agreement, except as herein amended, nor affect nor
impair any rights, powers or remedies under the Credit Agreement as hereby
amended. The Banks, the Documentation Agent and the Administrative Agent do
hereby reserve all of their rights and remedies against all parties who may be
or may hereafter become secondarily liable for the repayment of the Notes. The
Borrower promises and agrees to perform all of the requirements, conditions,
agreements and obligations under the terms of the Credit Agreement, as
heretofore and hereby amended, the Credit Agreement, as amended, being hereby
ratified and affirmed. The Borrower hereby expressly agrees that the Credit
Agreement, as amended, is in full force and effect.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Borrower and
Guarantors hereby represent and warrant to each of the Banks as follows:
(a) No Default or Event of Default, nor any act, event, condition
or circumstance which with the passage of time or the giving of notice, or
both, would constitute an Event of Default, under the Credit Agreement or any
other Loan Document has occurred and is continuing unwaived by the Banks on the
date hereof.
(b) The Borrower and Guarantors have the power and authority to
enter into this Amendment and to do all acts and things as are required or
contemplated hereunder, or thereunder, to be done, observed and performed by
it.
(c) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrower and Guarantors and
constitutes a legal, valid and binding obligation of the Borrower and each
Guarantor enforceable against it in accordance with its terms, provided that
such enforceability is subject to general principles of equity.
(d) The execution and delivery of this Amendment and the
performance of the Borrower and Guarantors hereunder do not and will not
require the consent or approval of any regulatory authority or governmental
authority or agency having jurisdiction over the Borrower or any Guarantor, nor
be in contravention of or in conflict with the articles of incorporation or
bylaws of the Borrower or any Guarantor, or the provision of any statute, or
any judgment, order or indenture, instrument, agreement or undertaking, to
which the Borrower or any Guarantor is party or by which the assets or
properties of the Borrower and Guarantors are or may become bound.
SECTION 6. COUNTERPARTS. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an original and all
of which, taken together, shall constitute one and the same agreement.
SECTION 7. GOVERNING LAW. This Amendment shall be considered in
accordance with and governed by any applicable federal laws of the United
States of America and in the absence of applicable federal laws of the United
States of America, the laws of the State of Georgia.
SECTION 8. CONSENT BY GUARANTORS. The Guarantors consent to the
foregoing amendments. The Guarantors promise and agree to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Guaranty, said Guaranty being hereby ratified and affirmed. The Guarantors
hereby expressly agree that the Guaranty is in full force and effect.
SECTION 9. EFFECTIVE DATE. This Amendment shall be effective as
of September 30, 1998.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered,
or have caused their respective duly authorized officers or representatives to
execute and deliver, this Amendment as of the day and year first above written.
BORROWER:
PICCADILLY CAFETERIAS, INC.
By: /S/ XXXXXX X. XXXXXXX
Title: PRESIDENT AND CEO
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HIBERNIA NATIONAL BANK,
As Co-Arranger, Administrative Agent,
Letter of Credit Issuer and a Bank
By: /S/ XXXXX X. RACK
Title: SENIOR VICE PRESIDENT
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WACHOVIA BANK, N.A.,
As Documentation Agent, Co-Arranger and as
a Bank
By: /S/ X.X. XXXXXX
Title: SENIOR VICE PRESIDENT/GROUP EXECUTIVE
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SOUTHTRUST BANK, NATIONAL ASSOCIATION,
as a Bank
By: /S/ XXX XXXXXXX
Title: VICE PRESIDENT
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AMSOUTH BANK,
as a Bank
By: /S/ X. X. XXXXXXXX
Title: VICE PRESIDENT
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BRANCH BANKING AND TRUST COMPANY,
as a Bank
By: /S/ XXXXXXXX XXXXXXXX
Title: SENIOR VICE PRESIDENT
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WHITNEY NATIONAL BANK,
as a Bank
By: /S/ XXXXXXX XXXXX
Title: ASSISTANT VICE PRESIDENT
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BANKONE LOUISIANA, N.A.,
as a Bank
By: /S/ XXXX XXXXX
Title: SENIOR VICE PRESIDENT
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THE FUJI BANK, LIMITED,
as a Bank
By: /S/ XXXXXXX XXXXXXX
Title: VICE PRESIDENT AND MANAGER
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FIRST TENNESSEE BANK NATIONAL ASSOCIATION,
as a Bank
By: /S/ XXXXXXXX XXXXX
Title: VICE PRESIDENT
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Guarantor:
PICCADILLY RESTAURANTS, INC.
By: /S/ XXXXXX X. XXXXXXX
Title: PRESIDENT
ATTEST:
/S/ X.X. XXXXXXX
Secretary
[CORPORATE SEAL]
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Guarantor:
XXXXXXXX RESTAURANTS INC.
By: /S/ XXXXXX X. XXXXXXX
Title: PRESIDENT
ATTEST:
/S/ X.X. XXXXXXX
Secretary
[CORPORATE SEAL]
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