EXHIBIT 10(u)
FIRST AMENDMENT TO LOAN AGREEMENT
This First Amendment to Loan Agreement ("First Amendment") is dated
January 20, 2004, to be effective as of May 12, 2003, by and among X.
XXXXXXXXX'X CORPORATION, X. XXXXXXXXX'X RESTAURANTS, INC., both Tennessee
corporations (collectively referred to as the "Borrower"), and BANK OF AMERICA,
N.A., a national banking association ("Lender").
W I T N E S S E T H
WHEREAS, Borrower and Lender entered into that certain Loan Agreement
dated May 12, 2003 (the "Loan Agreement"); and
WHEREAS, Borrower and Lender have agreed to modify certain provisions
of the Loan Agreement as set forth herein.
NOW, THEREFORE, as an inducement to cause Lender to extend credit to
Borrower, and for other valuable consideration, the receipt and sufficiency of
which are acknowledged, it is agreed as follows:
1. Capitalized terms not defined herein shall have the meaning
contained in the Loan Agreement.
2. Section 1(ll) of the Loan Agreement is hereby deleted in its
entirety and in lieu thereof shall read as follows:
"(ll) "Revolving Committed Amount" means the lesser of (i)
$5,000,000.00; (ii) 80% of the appraised value of the Collateral; or
(iii) such lesser amount as the Revolving Committed Amount may be
reduced as set forth herein."
3. The first paragraph of Section 2 of the Loan Agreement is hereby
deleted in its entirety and in lieu there of shall read as follows:
"2. Revolving Loan. Lender agrees to make a revolving line of
Credit loan to the Borrower for the Revolving Committed Amount, at any
time, and from time to time during the period from the date hereof to,
but not including, the Revolving Loan Maturity Date (the "Revolving
Loan"). Borrower may borrow, repay and reborrow the Revolving Loan at
any time, up to a maximum aggregate amount outstanding at any one time
equal to the Revolving Committed Amount, provided that Borrower is not
in default under any provision of this Agreement or the Loan Documents,
and provided that the borrowings hereunder do not exceed the limitation
on borrowings by Borrower set forth in Section 2(g) below."
4. Section 17(b) of the Loan Agreement is hereby deleted in its
entirety and in lieu thereof shall read as follows:
"(b) Reporting Requirements. Borrower covenants to furnish
Lender, within ninety (90) days of the close of the preceding fiscal
year, X. Xxxxxxxxx'x Corporation and subsidiaries' annual audited
consolidated financial statement, annual budget and cash flow
projections for the upcoming year and a covenant calculation report
together with an officer's certificate executed by the chief financial
officer of Borrower certifying compliance with the financial covenants
set forth herein and further stating that, to the best of his
knowledge, information and belief, no Default exists hereunder as of
the date of the certification. Each audit must be performed by Ernst &
Young, or another certified public accountant reasonably acceptable to
Lender, at Borrower's expense. In addition, Borrower covenants to
furnish to Lender, on or before the forty-fifth (45th) day following
the end of the first three fiscal quarters of Borrower's fiscal year,
unaudited consolidated income statements, cash flow statements, balance
sheets and a covenant calculation report together with an officer's
certificate executed by the chief financial officer of Borrower
certifying compliance with the financial covenants set forth herein and
further stating that, to the best of his knowledge, information and
belief, no Default exists hereunder as of the date of the
certification. Borrower also covenants to furnish to Lender, upon
demand, copies of Borrower's tax returns and additional financial
information in form and substance acceptable to Lender."
5. As amended hereby, the Loan Agreement remains in full effect, and
all agreements among the parties with respect to the subject hereof are
represented fully in this First Amendment and the other written documents among
the parties. The provisions of the Loan Agreement regarding the arbitration of
disputes and other general matters also govern this First Amendment. The
validity, construction and enforcement hereof shall be determined according to
the substantive laws of the State of Tennessee.
IN WITNESS WHEREOF, the parties have executed this First Amendment to
be effective the day and year first above written.
BANK OF AMERICA, X.X. X. XXXXXXXXX'X CORPORATION
By: Xxxxxx X. Xxxxxxxxx, Xx. By: R. Xxxxxxx Xxxxx
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Title: Senior Vice President Title: Vice President and Chief Financial
--------------------- Officer
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X. XXXXXXXXX'X RESTAURANTS, INC.
By: R. Xxxxxxx Xxxxx
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Title: Vice President
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