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EXHIBIT 10(a)
SECOND AMENDMENT AND WAIVER TO CREDIT AGREEMENT
THIS SECOND AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this "Second
Amendment") is made and entered into as of this 4th day of November, 1999 by and
among RARE HOSPITALITY INTERNATIONAL, INC., a corporation organized under the
laws of Georgia (the "Borrower"), , the Lenders who are or may become a party to
the Credit Agreement referred to below, FIRST UNION NATIONAL, as Administrative
Agent for the Lenders (the "Administrative Agent) and BANKBOSTON, N.A. and FLEET
NATIONAL BANK, as Co-Agents (collectively, the "Co-Agents").
Statement of Purpose
The Lenders agreed to extend certain extensions of credit to the
Borrower pursuant to the Amended and Restated Credit Agreement dated as of
August 26, 1998 by and among the Borrower, the Lenders, the Administrative Agent
and the Co-Agents (as amended by the First Amendment to Credit Agreement dated
as of December 31, 1999 and as further amended or supplemented from time to
time, the "Credit Agreement").
The parties now desire to amend the Credit Agreement in certain
respects and waive certain provisions of the Credit Agreement, all on the terms
and conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Effect of Amendments and Waivers. Except as expressly amended
hereby, the Credit Agreement and Loan Documents shall be and remain in full
force and effect. The waivers granted herein are specific and limited and shall
not constitute an amendment of the Credit Agreement or the Loan Documents or a
modification, acceptance or waiver of any other provision of or default under
the Credit Agreement, the Loan Documents or any other document or instrument
entered into in connection therewith or a future modification, acceptance or
waiver of the provisions set forth therein (except to the extent necessary to
give effect to the specific waivers and agreements set forth herein).
2. Capitalized Terms. All capitalized undefined terms used in
this Second Amendment shall have the meanings assigned thereto in the Credit
Agreement.
3. Modification of Credit Agreement. The Credit Agreement is
hereby amended as follows:
(a) The defined terms "Fixed Charges" and "Revolving Credit
Termination Date" set forth in Section 1.1 of the Credit Agreement are each
hereby deleted in their entirety and the following definition shall be
substituted in lieu thereof:
"'Fixed Charges' means, with respect to the Borrower and its
Subsidiaries as of the last day of any fiscal quarter, the sum of the
following: (a) Interest Expense calculated for the period of four (4)
fiscal quarters ending on such date, plus (b) Rental Expense calculated
for the period of four (4) fiscal quarters ending on such date, plus
(c) the difference (if positive) between (i) the average daily
aggregate Revolving Credit Loans outstanding during the calendar month
preceding such date minus (ii) the Aggregate Commitment, as reduced by
any mandatory reductions pursuant to Section 2.6(c), on the last day of
the fiscal quarter immediately following such date, all determined on a
Consolidated basis in accordance with GAAP."
"'Revolving Credit Termination Date' means the
earliest of the dates referred to in Section 2.7."
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(b) The defined terms "Term-Out Amount", "Term-Out Maturity Date",
and "Term-Out Period" set forth in Section 1.1 of the Credit Agreement are each
hereby deleted in their entirety.
(c) The following defined terms shall be inserted into Section 1.1
in the correct alphabetical order:
"'Conversion Date' shall have the meaning assigned thereto in
Section 2.6(c)."
"'Second Amendment' means the Second Amendment and Waiver to
the Credit Agreement dated as of November __, 1999 by and among the
Borrower, the Lenders and the Administrative Agent and the Co-Agents."
(d) Section 2.4(a) of the Credit Agreement is hereby deleted in
its entirety and the following Section 2.4(a) shall be substituted in lieu
thereof:
"(a) Repayment on Termination Date. The Borrower shall
repay the outstanding principal amount of (i) all Revolving Credit
Loans in full on the Revolving Credit Termination Date and (ii) all
Swingline Loans in accordance with Section 2.2(b), together, in each
case, with all accrued but unpaid interest thereon."
(e) Section 2.6 of the Credit Agreement is hereby deleted in its
entirety and the following Section 2.6 shall be substituted in lieu thereof:
"SECTION 2.6 Permanent Reduction of the Aggregate Commitment.
(a) Voluntary Reduction. The Borrower shall have the
right at any time and from time to time, upon at least five (5)
Business Days prior written notice to the Administrative Agent, to
permanently reduce, without premium or penalty, (i) the entire
Aggregate Commitment at any time or (ii) portions of the Aggregate
Commitment, from time to time, in an aggregate principal amount not
less than $3,000,000 or any whole multiple of $1,000,000 in excess
thereof.
(b) Mandatory Permanent Reduction. The Aggregate
Commitment shall be permanently reduced by the following amounts: (i)
100% of the Net Cash Proceeds received by the Borrower or any of its
Subsidiaries from any issuance of Funded Debt (other than Funded Debt
permitted pursuant to Section 10.1), (ii) 100% of the Net Cash Proceeds
received by the Borrower or any of its Subsidiaries in connection with
any sale of assets (including its equity ownership in any Person) not
permitted pursuant to Section 10.6 (a) through (e) unless, so long as
no Default or Event of Default has occurred and is continuing, such Net
Cash Proceeds are reinvested in similar assets (or otherwise in a
manner acceptable to the Administrative Agent, in its sole discretion)
within 270 days after receipt of such Net Cash Proceeds; provided, that
this clause (ii) shall not apply with respect to up to $10,000,000 of
the aggregate Net Cash Proceeds received by the Borrower and its
Subsidiaries prior to the Conversion Date and (iii) 100% of the Net
Cash Proceeds received by the Borrower or any of its Subsidiaries under
any policy of insurance of such Person or in connection with any
condemnation proceeding involving property of such Person, unless, so
long as no Default or Event of Default has occurred and is continuing,
such Net Cash Proceeds are utilized by the Borrower or such Subsidiary
within one hundred eighty (180) days of receipt of such Net Cash
Proceeds to replace or repair any of its assets damaged in connection
with the related claim or proceeding.
(c) Regular Quarterly Reductions. Commencing with the
last day of the fiscal quarter ending June 30, 2003 (the "Conversion
Date") and continuing through the Revolving Credit Termination Date,
the Aggregate Commitment shall be reduced on the last day of each
fiscal quarter in equal quarterly reduction amounts (the "Reduction
Amounts") equal to the
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amount required to reduce the Aggregate Commitment to $50,000,000 as of
September 30, 2004; provided, that each of the Reduction Amounts
remaining after any reduction pursuant to Section 2.6(b) shall be
adjusted on a pro rata basis in connection with such reduction.
(d) Repayments. Each permanent reduction permitted or
required pursuant to this Section 2.6 shall be accompanied by a payment
of principal sufficient to reduce the aggregate outstanding Extensions
of Credit of the Lenders after such reduction to the Aggregate
Commitment as so reduced and if the Aggregate Commitment as so reduced
is less than the aggregate amount of all outstanding Letters of Credit,
the Borrower shall be required to deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate
then undrawn and unexpired amount of such Letters of Credit. Any
reduction of the Aggregate Commitment to zero shall be accompanied by
payment of all outstanding Obligations (and furnishing of cash
collateral satisfactory to the Administrative Agent for all L/C
Obligations) and shall result in the termination of the Commitments and
Credit Facility. Such cash collateral shall be applied in accordance
with Section 11.2(b). If the reduction of the Aggregate Commitment
requires the repayment of any LIBOR Rate Loan, such repayment shall be
accompanied by any amount required to be paid pursuant to Section 4.9
hereof."
(f) Section 2.7 of the Credit Agreement is hereby deleted in its
entirety and the following Section 2.7 shall be substituted in lieu thereof:
SECTION 2.7 Termination of Credit Facility. The Credit
Facility shall terminate on the earliest of (a) September 30, 2004, (b)
the date of permanent reduction of the Aggregate Commitment in whole
pursuant to Section 2.6 and (c) the date of termination by the
Administrative Agent on behalf of the Lenders pursuant to Section
11.2(a).
(g) The initial clause of Section 2.8 of the Credit Agreement is
hereby deleted in its entirety and the following shall be substituted in lieu
thereof:
"SECTION 2.8 Increase in Aggregate Commitment. So long as no
Default or Event of Default shall have occurred and be continuing, at any time
prior to the Conversion Date,"
(h) Section 4.1(b)(iv) of the Credit Agreement is hereby deleted
in its entirety and the following Section 4.1(b)(iv) shall be substituted in
lieu thereof:
"(iv) no Interest Period shall extend beyond the Revolving
Credit Termination Date; and"
(i) Section 4.1(c)(ii) of the Credit Agreement is hereby deleted
in its entirety and the following Section 4.1(c)(ii) shall be substituted in
lieu thereof:
"(ii) upon the initial Adjustment Date and at all times
thereafter, be determined by reference to the Adjusted Leverage Ratio
in accordance with the following charts:
Adjusted
Leverage Applicable Margin Per Annum
Level Ratio Prior to April 1, 2003
----- ----- LIBOR Rate Base Rate
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1 Greater than or equal to 3.0 to 1.00 2.000% 0.750%
2 Less than 3.0 to 1.0 but greater than
or equal to 2.50 to 1.0 1.875% 0.625%
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3 Less than 2.5 to 1.0 but greater than
or equal to 2.0 to 1.0 1.750% 0.500%
4 Less than 2.0 to 1.0 but greater than
or equal to 1.50 to 1.0 1.625% 0.375%
5 Less than 1.50 to 1.0 but greater than
or equal to 1.0 to 1.0 1.500% 0.250%
6 Less than 1.0 to 1.0 1.250% 0.000%
Adjusted Applicable Margin Per Annum
Leverage Commencing with April 1, 2003
Level Ratio and thereafter
----- ----- LIBOR Rate Base Rate
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1 Greater than or equal to 3.0 to 1.00 2.500% 1.250%
2 Less than 3.0 to 1.0 but greater than
or equal to 2.50 to 1.0 2.375% 1.125%
3 Less than 2.5 to 1.0 but greater than
or equal to 2.0 to 1.0 2.250% 1.000%
4 Less than 2.0 to 1.0 but greater than
or equal to 1.50 to 1.0 2.125% 0.875%
5 Less than 1.50 to 1.0 but greater than
or equal to 1.0 to 1.0 2.000% 0.750%
6 Less than 1.0 to 1.0 1.750% 0.500%
Adjustments, if any, in the Applicable Margin shall be made by
the Administrative Agent on the tenth (10th) Business Day (the
"Adjustment Date") after receipt by the Administrative Agent of
financial statements for the Borrower and its Subsidiaries delivered
under Section 7.1(a) or (b), as applicable, and the accompanying
Officer's Compliance Certificate setting forth the Adjusted Leverage
Ratio of the Borrower and its Subsidiaries as of the most recent fiscal
quarter end. The Administrative Agent agrees to give the Borrower and
the Lenders notice of any adjustment in the Applicable Margin within
two (2) Business Days of such adjustment; provided, that the
Administrative Agent's failure to give such notice shall not result in
any liability to the Administrative Agent or in any way affect the
validity of any such adjustment. In the event the Borrower fails to
deliver such financial statements and certificate within the time
required by Sections 7.1(a) and 7.2 hereof, the Applicable Margin shall
be the highest Applicable Margin set forth above until the delivery of
such financial statements and certificate unless at such time the
outstanding principal balance of the Loans are bearing interest at the
"default rate" set forth in Section 4.1(d) below in which case the
Applicable Margin shall not be increased pursuant to this sentence."
(j) Section 9.4 of the Credit Agreement is hereby deleted in its
entirety and the following Section 9.4 shall be substituted in lieu thereof:
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SECTION 9.4 Capital Expenditures. Permit Capital Expenditures plus the
aggregate investments permitted by Sections 10.4(d) and (f) made by the
Borrower and its Subsidiaries after the Closing Date (excluding any
investment to the extent funded with the capital stock of the Borrower)
to be greater than the following amounts in the aggregate during the
following Fiscal Years:
Fiscal Year Capital Expenditures
----------- --------------------
1998 (including only the
portion thereof remaining
after the Closing Date) $ 35,000,000
1999 $ 75,000,000
2000 $ 90,000,000
2001 $100,000,000
2002 $ 80,000,000
2003 and thereafter $ 80,000,000
provided, that (a) investments in any single restaurant unit owned by a
Non-Controlled Joint Venture shall not exceed $1,500,000, (b)
investments in Non-Controlled Joint Ventures shall not exceed
$22,500,000 in the aggregate on any date of determination and (c) in no
event shall more than forty percent (40%) of aggregate Capital
Expenditures permitted in any Fiscal Year be used for Capital
Expenditures with respect to The Capital Grille and Bugaboo Creek Steak
House restaurants, on a combined basis. For the purposes of this
Section 9.4 "Non-Controlled Joint Venture" shall mean a joint venture
in which the Borrower and its Subsidiaries do not own more than fifty
percent (50%) of the outstanding capital stock or other ownership
interests having ordinary voting power to elect a majority of the board
of directors or other managers of such Person.
(k) Section 10.1(d) of the Credit Agreement is hereby amended by
deleting the number "$20,000,000" set forth therein and substituting therefore
the number "$40,000,000".
(l) Section 10.7(d) of the Credit Agreement is hereby deleted in
its entirety and the following Section 10.7(d) shall be substituted in lieu
thereof:
"(d) the Borrower may purchase, redeem, retire or
otherwise acquire shares of its capital stock in an aggregate amount
not to exceed $10,000,000 for the period from and including the date of
the Second Amendment through and including the Revolving Credit
Termination Date (plus, up to $10,000,000 of the Net Cash Proceeds
received by the Borrower or any of its Subsidiaries prior to the
Conversion Date from any sale of assets permitted pursuant to Section
10.6(f) above); and"
4. Waivers of Credit Agreement. The Borrower and its Subsidiaries
intend to enter into a corporate restructuring (the "Corporate Restructuring")
pursuant to which, among other things, (a) certain assets will be transferred to
Bugaboo Creek Steakhouse, Inc. ("Bugaboo"), (b) the entities owning
substantially all of the operations of The Capital Grille restaurants will be
merged into The Capital Grille of Charlotte, Inc., which entity will change its
name to Capital Grille Holdings, Inc. ("Capital Grille Holdings"), (c) the
entities owning substantially all of the operations of Bugaboo Creek Steak House
restaurants will be merged into Bugaboo Creek of Newark, Inc., which entity will
change its name to Bugaboo Creek Holdings, Inc. ("Bugaboo Creek Holdings") (d)
the operations of Old Grist Mill and Hemenways restaurants will each be
consolidated into separate holding companies named Grist Mill Holdings, Inc.
("Grist Mill Holdings") and Xxxxxxxx Holdings, Inc. ("Xxxxxxxx Holdings"),
respectively, and (e) Bugaboo will enter into transactions with certain
Affiliates to manage the operations of restaurants they own. The Administrative
Agent and the Lenders hereby agree to waive the provisions of Sections 10.4,
10.5, 10.6 and 10.8 solely to permit the Corporate Restructuring; provided, that
(i) each of the Borrower and Bugaboo shall survive the Corporate Restructuring;
provided, that Bugaboo shall be permitted to change its name to Rare Hospitality
Management, Inc., (ii) each of Capital Grille Holdings, Bugaboo Creek Holdings,
Grist Mill Holdings and Xxxxxxxx Holdings shall be Wholly-Owned Subsidiaries of
Bugaboo, (iii) neither the Borrower nor Bugaboo shall make
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any sale or transfer of assets in connection with the Corporate Restructuring
except for a sale or transfer of assets to their respective Wholly-Owned
Subsidiaries, (iv) neither the Borrower nor Bugaboo shall make any investments
in connection with the Corporate Restructuring except investments in their
respective Wholly-Owned Subsidiaries and (v) the Borrower and Bugaboo shall
provide such documents reasonably requested by the Administrative Agent
reflecting the name change of Bugaboo to Rare Hospitality Management, Inc.,
including without limitation, new stock certificates and stock powers pledged
pursuant to the Pledge Agreement.
5. Representations and Warranties/No Default. By its execution
hereof, the Borrower hereby certifies that (giving effect to this Second
Amendment) each of the representations and warranties set forth in the Credit
Agreement and the other Loan Documents is true and correct in all material
respects as of the date hereof as if fully set forth herein, except to the
extent that such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date), and that as of
the date hereof no Default or Event of Default has occurred and is continuing.
6. Fees. The Borrower shall pay (a) to each of the Lenders party
to this Second Amendment an amendment fee in an amount equal to the product of
(i) .10% multiplied by (ii) the commitment of such Lender under the Credit
Agreement and (b) to the Administrative Agent, the fees set forth in a separate
fee letter of even date herewith.
7. Expenses. The Borrower shall pay all reasonable out-of-pocket
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Second Amendment, including without limitation,
the reasonable fees and disbursements of counsel for the Administrative Agent.
8. Governing Law. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of North Carolina.
9. Counterparts. This Second Amendment may be executed in
separate counterparts, each of which when executed and delivered is an original
but all of which taken together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the date and year first above written.
[CORPORATE SEAL] RARE HOSPITALITY INTERNATIONAL, INC.
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK,
as Administrative Agent, Lender, Swingline Lender
and Issuing Lender
By:
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Name:
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Title:
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BANKBOSTON, N.A., as Co-Agent and as Lender
By:
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Name:
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Title:
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FLEET NATIONAL BANK, as Co-Agent and as
Lender
By:
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Name:
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Title:
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SOUTHTRUST BANK, N.A., as Lender
By:
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Name:
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Title:
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THE FUJI BANK, LIMITED, as Lender
By:
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Name:
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Title:
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AMSOUTH BANK, as Lender
By:
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Name:
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Title:
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WACHOVIA BANK, N.A., as Lender
By:
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Name:
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Title:
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