FOURTH AMENDMENT
FOURTH AMENDMENT dated as of November 1, 1996 (this "Amendment"), with
respect to the Credit Agreement dated as of December 28, 1992 (the "Loan
Agreement"), among XXXXXXXX'X RESTAURANTS, INC., a Delaware corporation (the
"Borrower"), the financial institutions listed on Schedule A to the Loan
Agreement, which on the date of this Agreement consist solely of Caisse
Nationale de Credit Agricole (the "Banks"), and CAISSE NATIONALE DE CREDIT
AGRICOLE, NEW YORK BRANCH, as Agent, (the "Agent"), as such Loan Agreement has
been amended by that certain First Amendment and Consent dated as of December
14, 1993, that certain Second Amendment and Consent dated as of March 25, 1996
and that certain Third Amendment dated as of June 24, 1996 by and among the
Borrower, the Banks and the Agent.
The Borrower has requested that the Banks and the Agent amend a
covenant of the Loan Agreement, and the Banks and the Agent have agreed to amend
the Loan Agreement, all upon the terms and conditions set forth in this
Amendment.
It is therefore agreed, effective as of the Effective Date (as
hereinafter defined), as follows:
1. Capitalized terms used herein without definition have the meanings
specified in the Loan Agreement.
2. The Loan Agreement is hereby amended as follows:
(a) Section 7.12 of the Loan Agreement is hereby amended by adding the
following sentence to the end of such Section (which was added by the Third
Amendment) to read in its:
"Notwithstanding the terms of this Section 7.12, the minimum Fixed Charge
Coverage Ratio (i) for the second fiscal quarter of fiscal year 1996 shall not
be less than 1.6:1 and (ii) for the third fiscal quarter of fiscal year 1996
shall not be less than 1.8:1.
(b) As material inducement for the Banks and the Agent to enter into this
Amendment, the Borrower hereby agrees to pay to the Agent on behalf of the
Banks amendment fees of (i) $25,000 on the Effective Date and (ii) an
additional $25,000 on December 31, 1996, but such additional fee will not
be payable if the Termination Date has occurred on or before such date.
3. The Borrower hereby represents and warrants to the Banks and the Agent
that:
(a) it has full corporate power and authority to execute, deliver and perform
this Amendment;
(b) the execution, delivery and performance by the Borrower of this Amendment
have been duly authorized by the Borrower by all requisite corporate action
and will not (i) violate any provision of law, any order, rule or
regulation of any court or other governmental agency, authority or
regulatory body or other person, or The Certificate of Incorporation or
Bylaws of the Borrower, (ii) violate any provision of any material
indenture, agreement, mortgage, contract or other instrument to which the
Borrower is a party or by which any of its property, assets or revenues are
bound, or be in conflict with, result in a breach of or constitute (with or
without notice of lapse of time or both) a default under, any such material
indenture, agreement, mortgage, contract or other instrument, or (iii)
result in the creation or imposition of any Lien of any nature whatsoever
upon any of the property, assets or revenues of the Borrower;
(c) this Amendment constitutes the legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium or other similar laws affecting creditor's rights generally and
that enforceability may be subject to general principles of equity;
(d) no registration with or consent or approval of, or other action by
stockholders or any Federal, state or other governmental agency, authority
or regulatory body or other person is required in connection with the
execution, delivery and performance of this Amendment;
(e) each Credit Party is now in compliance with all the terms, provisions and
covenants set forth in each of the Loan Documents on its part to be
observed or performed;
(f) no Default or Event of Default has occurred and is continuing;
(g) upon the effectiveness of the amendments contained in this Amendment, (i)
each Credit Party will be in compliance with all the terms, provisions and
covenants set forth in each of the Loan Documents on its part to be
observed or performed and (ii) no Default or Event of Default will have
occurred and be continuing;
(h) all of the representations and warranties contained in the Loan Agreement
are true and correct in all material respects as of the date hereof as if
made on and as of the date hereof; and
(i) the parties to the consent attached hereto as Exhibit A include all the
Borrower's existing Subsidiaries.
4. This Amendment shall become effective on the date (the "Effective Date") of
the receipt by the Agent of the amendment fee referred to in Section
2(b)(i) above and the following documents, in each case in form and
substance satisfactory to the Agent and its legal counsel:
(a) counterparts of this Amendment, duly executed by each of the Borrower and
the Required Banks; and
(b) certified copies of resolutions of the Board of Directors of the Borrower
approving the execution, delivery and performance of this Amendment and the
documents contemplated hereby; and
(c) a consent in the form of Exhibit A hereto shall have been executed and
delivered by each other Credit Party.
5. The Borrower agrees to pay all reasonable out-of-pockets costs and expenses
incurred by the Agent in connection with the preparation of this Amendment
including, without limitation, the reasonable fees and disbursements of
legal counsel for the Agent.
6. This Amendment shall be construed in accordance with and shall be governed
by the laws of the State of New York applicable to agreements made and to
be performed in New York and shall be construed without regard to any
presumption or any other rule requiring construction against the party
causing the agreement to be drafted.
7. If any provision of this Amendment is invalid or unenforceable, the balance
of this Amendment shall remain in effect.
8. This Amendment may be executed in two or more counterparts, each of which
shall constitute an original, but all of which, when taken together, shall
constitute but one instrument, and shall become effective as of the
Effective Date when copies hereof, when taken together, bear the signature
of each of the parties hereto.
9. Except as amended hereby, the Loan Agreement and each of the other Loan
Documents shall continue in full force and effect on the date of execution
and delivery of this Amendment. As used in the Loan Agreement, all
references to the terms "Loan Agreement" "this Agreement," "hereof,"
"hereby," or the like shall mean the Loan Agreement, as amended by this
Amendment, unless the context otherwise specifically requires.
IN WITNESS WHEREOF, the Borrower, the Banks and the Agent have caused
this Amendment to be duly executed, all as of the day and year first above
written.
XXXXXXXX'X RESTAURANTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: First Vice President
CAISSE NATIONALE DE CREDIT
AGRICOLE, NEW YORK BRANCH,
as Agent
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: First Vice President
CONSENT
Reference is made to that Credit Agreement dated as of December 28,
1992 (the "Loan Agreement") among Xxxxxxx/Xxxxxxxx, Inc., now known as
Xxxxxxxx'x Restaurants, Inc. (the "Borrower"), the Banks referred to therein
(the "Banks") and Caisse Nationale de Credit Agricole, New York Branch, as agent
(the "Agent"), as such Loan Agreement has been amended by that certain First
Amendment and Consent dated as of December 14, 1993, that certain Second
Amendment and Consent dated as of March 25, 1996 and that certain Third
Amendment and Consent dated as of June 24, 1996 by and among the Borrower, the
Banks and the Agent. Each of the undersigned, collectively with the Borrower
constituting all of the Credit Parties, hereby (a) acknowledges receipt of and
consents to the execution, delivery and performance of the Fourth Amendment
dated as of November 1, 1996 (the "Fourth Amendment") among the Borrower, the
Banks and the Agent, (b) ratifies and affirms each of the Loan Documents and (c)
acknowledges and agrees that each of the Loan Documents remains in full force
and effect and constitutes its valid and binding obligation, which obligation
shall not be impaired or affected in any way by the execution, delivery or
performance of the Fourth Amendment, except to incorporate modifications
effected by the Fourth. Capitalized terms used herein will have the meanings
specified in the Loan Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Consent to be duly
executed this November 1, 1996.
XXXXXXXX'X RESTAURANTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
DARRYL'S OF KISSIMMEE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
DARRYL'S OF OVERLAND PARK, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
DARRYL'S OF ST. LOUIS COUNTY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
G/R TEXAS ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
S&H BEVERAGE CO., INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXXX'X/BERGEN COUNTY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXXX'X OF CALIFORNIA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXXX'X OF FARMINGDALE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXXX'X OF INDIANAPOLIS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXXX'X/MARYLAND, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXXX'X/MILWAUKEE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXXX'X/SAN FRANCISCO, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
RED STEER, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
RESTAURANT SUPPLY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXX XXXXXX'X/KANSAS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
