Contract
AGREEMENT
AND AMENDMENT NO. 3 TO CREDIT AGREEMENT
THIS
AGREEMENT AND AMENDMENT NO. 3 TO CREDIT AGREEMENT (this “Amendment”) is made
as of June 28, 2009, by and between MEXICAN RESTAURANTS, INC., a Texas
corporation (the “Borrower”), and XXXXX
FARGO BANK, N.A., a national banking association (the “Lender”).
WHEREAS,
the Borrower and the Lender are parties to a certain Credit Agreement, dated as
of June 29, 2007, as amended (the “Credit Agreement”);
terms used herein and not otherwise defined are used herein as defined in the
Credit Agreement; and
WHEREAS,
the Borrower has requested that the Lender amend Sections 1.1, 4.2 and 7.1(c) of
the Credit Agreement;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Amendments to Credit
Agreement.
1.1 The
defined term “Maturity Date” set forth in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
“Maturity
Date. June 29, 2012.”
1.2 The
Applicable Margin table set forth in the definition of “Applicable Margin” in
Section 1.1 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
|
Applicable
Margin
|
|||||
|
Pricing
Level
|
Total
Leverage
Ratio
|
Commitment
Fee
|
LIBOR
Loans
|
Base
Rate Loans
|
Letter
of Credit Fee
|
|
I
|
>
1.5:1.0
|
0.50%
|
3.00%
|
1.00%
|
3.00%
|
|
II
|
<
1.5:1.0
|
0.50%
|
2.75%
|
0.75%
|
2.75%
|
1.3 Section
4.2 of the Credit Agreement is hereby amended to (i) delete “and” at the end of
Section 4.2(e); (ii) replace “.” at the end of Section 4.2(f) with “; and”; and
(iii) add the following subsection (g) at the end thereof:
“(g) solely
as a condition to any requested Revolving Credit Loan or Letter of Credit to be
used to fund Growth Capital Expenditures, after giving effect to all requested
Revolving Credit Loans and Letters of Credit on a pro forma basis as of the end
of the most recently completed Measurement Period, the Total Leverage Ratio
shall not exceed (i) 1.75:1.00 during the period from the Closing Date through
the end of the second Fiscal Quarter of Fiscal Year 2009, and (ii) 1.25:1.00
during the third Fiscal Quarter of the Fiscal Year 2009 and all fiscal periods
thereafter.”
1.4 Section
7.1(c) of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“(c)
Reserved.”
2. Conditions to
Effectiveness. The amendments to the Credit Agreement
contemplated hereby shall become effective as of the date first written above,
provided that
(i) the Lender shall have received from the Borrower a counterpart of this
Amendment duly executed by the Borrower and (ii) the Borrower shall have paid
the attorneys’ fees of the Lender incurred in connection with this
Amendment.
3. Representations.
The
Borrower represents and warrants to the Lender, as follows:
(a) upon
giving effect to this Amendment, no Default has occurred and is continuing as of
the date hereof;
(b) the
representations and warranties contained in Section V of the Credit Agreement
are true and correct in all material respects on and as of the date hereof
(except to the extent that such representations and warranties expressly relate
to an earlier date); and
(c) the
resolutions referred to in Section 4.1 of the Credit Agreement remain in full
force and effect on and as of the date hereof.
6. General. The
foregoing amendments to the Credit Agreement are limited as provided herein and
do not extend to any other provisions of the Credit Agreement not specified
herein or to any other matter. The Credit Agreement is ratified and
confirmed and shall continue in full force and effect as amended
hereby. This Amendment may be executed in any number of counterparts
with the same effect as if the signatures hereto and thereto were upon the same
instrument.
[Signature
page follows.]
IN
WITNESS WHEREOF, THIS AGREEMENT AND AMENDMENT NO. 3 TO CREDIT AGREEMENT has been
executed as a sealed instrument as of the date first written above.
MEXICAN RESTAURANTS,
INC.
By: /s/
Xxxxxx X. Xxxxxxx
Name: Xxxxxx X.
Xxxxxxx
Title:
Chief Financial Officer
XXXXX FARGO BANK,
N.A
By: /s/
Xxxx Xxxxxxxxx
Name: Xxxx
Xxxxxxxxx
Title:
Vice President
