Exhibit 10.57
AMENDMENT AND WAIVER
This AMENDMENT AND WAIVER, dated as of March 22, 2001 (this "Amendment and
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Waiver"), is by and among AmeriKing, Inc. ("Holdings"), National Restaurant
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Enterprises, Inc. (the "Borrower"), Fleet National Bank (f/k/a BankBoston, N.A.)
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and certain lending institutions party thereto (collectively, the "Banks") and
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Fleet National Bank (f/k/a BankBoston, N.A.), as agent for the Banks (the
"Agent"). Capitalized terms used herein unless otherwise defined herein shall
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have the respective meanings set forth in the Credit Agreement referenced below.
WHEREAS, Holdings, the Borrower, the Banks and the Agent are parties to
that certain Fourth Amended and Restated Revolving Credit Agreement, dated as of
December 24, 1998 (as amended and in effect from time to time, the "Credit
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Agreement"); and
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WHEREAS, Holdings and the Borrower have requested that the Banks waive
certain Events of Default under the Credit Agreement, and the Agent and the
Banks have agreed, on the terms and subject to the conditions set forth herein,
to waive such Events of Default, and Holdings, the Borrower, and the Banks have
agreed in connection therewith, to make certain amendments to the Credit
Agreement;
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Holdings, the Borrower, the Banks and the Agent hereby agree as
follows:
(S)1. Amendment of Credit Agreement. The Credit Agreement is hereby
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amended as follows:
(a) The definition of "Interest Payment Date" in Section 1.1 of the
Credit Agreement is hereby amended by deleting the text "quarter" from clause
(a) of such definition and replacing it with the text "month".
(b) Section 2.1 of the Credit Agreement is hereby amended by inserting
at the end of the first sentence thereof, the following new phrase "and during
the period from March 22, 2001 through May 15, 2001 shall not exceed $74,608,000
in the aggregate."
(c) The first sentence of Section 2.6 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"The Borrower shall give to the Agent written notice in the form of Exhibit
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B hereto (or telephonic notice confirmed in a writing in the form of
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Exhibit B hereto) of each Revolving Credit Loan requested hereunder (a
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"Loan Request") no later than 1:00 p.m. (Boston time) (a) one (1) Business
Day prior to the proposed Drawdown Date of any Base Rate
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Loan and (b) three (3) Eurodollar Business Days prior to the proposed
Drawdown Date of any Eurodollar Rate Loan, provided, however, the Borrower
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shall not request any Eurodollar Rate Loans with an Interest Period of more
than one month until the date which is the earlier to occur of (i) sixty
(60) Business Days following the Closing Date and (ii) the date on which
the Revolving Credit Loans hereunder have been syndicated to the
satisfaction of the Agent and the Borrower shall not request, and the Banks
shall not be obligated to provide, any Eurodollar Rate Loans from and after
March 22, 2001.
(d) Section 2.7.1 of the Credit Agreement is hereby amended by inserting
the following new clause (g) in the first sentence thereof: "and (g) no
Revolving Credit Loan may be converted to a Eurodollar Rate Loan at any time
from and after March 22, 2001."
(e) Section 2.7.2 of the Credit Agreement is hereby amended by inserting
the following phrase at the end of the first sentence thereof "and provided
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further, that no Eurodollar Rate Loan may be continued as such at any time from
and after March 22, 2001."
(f) Section 8.12 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"The Borrower will use the proceeds of the Revolving Credit Loans (a) to
convert existing Indebtedness to the Banks under the Original Credit
Agreement to Revolving Credit Loans or Letters of Credit, as the case may
be, hereunder and (b) for general corporate and working capital purposes.
The Borrower will obtain Letters of Credit solely for general corporate and
working capital purposes."
(g) Section 9.5.1 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"Neither Holdings nor the Borrower will, and neither will permit any of its
Subsidiaries to, become a party to any merger or consolidation, or agree to
or effect any asset acquisition or stock acquisition (other than the
acquisition of assets in the ordinary course of business consistent with
past practices) except (a) the merger or consolidation of one or more of
the Subsidiaries of Holdings (other than the Borrower) or the Borrower with
and into its parent provided, that the survivor of such merger may not be
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an Unrestricted Subsidiary and (b) the merger or consolidation of two or
more Subsidiaries of Holdings (other than the Borrower) or the Borrower,
provided that the survivor of such merger may not be an Unrestricted
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Subsidiary unless the merger involves only Unrestricted Subsidiaries."
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(S)2. Limited Waiver. Holdings and the Borrower have informed the Agent
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and the Banks that Holdings and the Borrower have failed to comply with the
financial covenants set forth in (S)(S)10.1, 10.2 and 10.3 of the Credit
Agreement for the fiscal quarter ended December 25, 2000 (each a "Specified
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Default", and collectively the "Specified Defaults"), and have requested that
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the Agent and the Banks waive such non-compliance. Upon the Effective Date (as
defined below), the Agent and the Banks hereby waive each of the Specified
Defaults solely for the fiscal quarter ended December 25, 2000. Nothing
contained in this (S)2 shall be construed to imply a willingness on the part of
the Agent or the Banks to grant any similar or other future waivers of any
Default or Event of Default (other than the Specified Defaults) or of any of the
terms and conditions of the Credit Agreement or the other Loan Documents.
(S)3. Representations and Warranties. Each of Holdings and the Borrower
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represents and warrants to the Banks and the Agent that (a) after giving effect
to the waivers contained herein, (i) Holdings and the Borrower have complied
with the provisions of the Credit Agreement, (ii) no Default or Event of Default
has occurred and is continuing, and (iii) the representations and warranties of
Holdings and the Borrower contained in the Credit Agreement were true and
correct in all material respects when made, and except to the extent of changes
resulting from transactions contemplated or permitted by the Credit Agreement
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse and to the extent such representations and
warranties relate expressly to an earlier date, such representations and
warranties also are correct at and as of the date hereof.
(b) Authority, Etc. The execution and delivery by each of Holdings and
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the Borrower of this Amendment and Waiver and the performance by each of
Holdings and the Borrower of all of its agreements and obligations under this
Amendment and Waiver, the Credit Agreement and the other Loan Documents (i) are
within the corporate authority of such Person, (ii) have been duly authorized by
all necessary corporate proceedings, (iii) do not conflict with or result in any
breach or contravention of any provision of law, statute, rule or regulation to
which Holdings or the Borrower is subject or any judgment, order, writ,
injunction, license or permit applicable to Holdings or the Borrower, and (iv)
do not conflict with any provision of the corporate charter or by-laws of, or
any agreement or other instrument binding upon, Holdings or the Borrower.
(c) Enforceability of Obligations. This Amendment and Waiver, the Credit
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Agreement as amended hereby and the other Loan Documents constitute the legal,
valid and binding obligations of Holdings and the Borrower, enforceable against
Holdings and the Borrower in accordance with their respective terms.
(S)4. Affirmation. Each of Holdings and the Borrower hereby affirms its
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absolute and unconditional promise to pay to each Bank and the Agent the
Revolving Credit Loans, the Reimbursement Obligations and all other amounts due
under the Revolving Credit Notes, the Letters of Credit, the Credit Agreement
as
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amended hereby, and the other Loan Documents, at the times and in the amounts
provided for therein. Each of Holdings and the Borrower confirms and agrees that
the obligations of Holdings and the Borrower to the Banks and the Agent under
the Credit Agreement as amended hereby are secured by and entitled to the
benefits of the Security Documents.
(S)5. Conditions to Effectiveness. This Amendment and Waiver shall become
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effective as of March 22, 2001 (the "Effective Date"), subject to satisfaction
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of each of the following conditions precedent:
(a) receipt by the Agent of a counterpart signature to this Amendment
and Waiver, duly executed and delivered by each of Holdings, the Borrower, the
Majority Banks and the Agent; and
(b) receipt by the Agent for the pro rata account of each of the Banks
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executing this Amendment and Waiver by 5:00 p.m. on March 22, 2001, a non-
refundable waiver fee in the amount of one-tenth of one-percent (0.10%) of the
aggregate outstanding amount of the Loans as of the Effective Date.
(S)6. Additional Covenants. (a) The Borrower hereby covenants and agrees
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that within forty-five (45) days of the Effective Date, the Borrower will take
all necessary action to provide the Agent, for the benefit of the Banks and the
Agent, with: (i) a fully executed mortgage or deed of trust over any real estate
owned by the Borrower or any of its Restricted Subsidiaries and (ii) a fully
executed leasehold mortgage or leasehold deed of trust over any real estate
ground leased by the Borrower or any of its Restricted Subsidiaries, as to which
the Agent has requested the Borrower to grant such mortgages, deeds of trust,
leasehold mortgages or leasehold deeds of trust (collectively, the "Real Estate
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Documents"), each in form and substance satisfactory to the Agent, to the extent
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that such real property which does not currently secure the Obligations of
Holdings and the Borrower. The Borrower further agrees that in connection with
delivering the Real Estate Documents to the Agent, the Borrower shall also
deliver to the Agent such title insurance policies, Surveys, Surveyor
Certificates, environmental reports, evidences of insurance with the Agent named
as loss payee and additional insured, legal opinions and other documents and
certificates with respect to such real estate as may be reasonably requested by
the Agent. In addition, the Borrower agrees that, following the taking of such
actions with respect to such real estate, the Agent shall have for the benefit
of the Banks and the Agent a valid and enforceable first priority mortgage or
deed of trust over such real estate, free and clear of all defects and
encumbrances except for Permitted Liens.
(b) The Borrower hereby covenants and agrees to provide the Agent, no
later than March 30, 2001, with updated Perfection Certificates for the Borrower
and each Restricted Subsidiary, and to take all actions that are necessary and
advisable to perfect and protect the Agent's security interest in the Borrower's
and Restricted Subsidiaries' assets, including, without limitation, execution
and delivery of any additional UCC filings, other collateral
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filings, delivery of documents and instruments and other actions reasonably
requested by the Agent.
(S)7. No Present Claims. Each of Holdings and the Borrower acknowledges
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and agrees that (i) it has no claim or cause of action against the Agent or the
Banks (or any of the Agent or the Banks' directors, officers, employees or
agents), (ii) it has no offset right, counterclaim or defense of any kind
against any of its obligations, indebtedness or liabilities to the Agent or the
Banks, and (iii) the Agent and the Banks have heretofore properly performed and
satisfied in a timely manner all of their obligations to Holdings and the
Borrower. The Agent and the Banks wish (and each of Holdings and the Borrower
hereby agrees) to eliminate any possibility that any past conditions, acts,
omissions, events, circumstances or matters would impair or otherwise adversely
affect any of the Agent's or Banks' rights, interests, contracts, collateral
security or remedies. Therefore, each of Holdings and the Borrower hereby
unconditionally releases, waives and forever discharges (A) any and all
liabilities, obligations, duties, promises or indebtedness of any kind of the
Agent and the Banks to Holdings and the Borrower, except the obligations to be
performed by the Agent or the Banks for Holdings and the Borrower as expressly
stated in this Amendment and Waiver, the Credit Agreement and the other Loan
Documents, and (B) all claims, offsets, causes of action, suits or defenses of
any kind whatsoever (if any), whether known or unknown, which Holdings and/or
the Borrower might otherwise have against the Agent or the Banks or any of their
directors, officers, employees or agents, in either case (A) or (B), on account
of any condition, act, omission, event, contract, liability, obligation,
indebtedness, claim, cause of action, defense, circumstance or matter of any
kind whatsoever which existed, arose or occurred at any time prior to the date
hereof or which could thereafter arise as the result of the execution of (or the
satisfaction of any condition precedent or subsequent to) this Amendment and
Waiver, the Credit Agreement or any of the other Loan Documents.
(S)8. Miscellaneous. (a) Except as otherwise expressly provided by this
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Amendment and Waiver, all of the terms, conditions and provisions of the Credit
Agreement shall remain the same. It is declared and agreed by each of the
parties hereto that the Credit Agreement and the other Loan Documents, as
amended hereby, shall continue in full force and effect, and that this Amendment
and Waiver and the Credit Agreement or, as the case may be, such other Loan
Document shall be read and construed as one instrument.
(b) THIS AMENDMENT AND WAIVER IS INTENDED TO TAKE EFFECT AS AN AGREEMENT
UNDER SEAL AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
(c) This Amendment and Waiver may be executed in any number of
counterparts, but all such counterparts shall together constitute but one
instrument. In making proof of this Amendment and Waiver it shall not be
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necessary to produce or account for more than one counterpart signed by each
party hereto by and against which enforcement hereof is sought.
(d) Headings or captions used in this Amendment and Waiver are for
convenience of reference only and shall not define or limit the provisions
hereof.
(e) Holdings and the Borrower hereby agree to pay to the Agent, on demand
by the Agent, all reasonable out-of-pocket costs and expenses incurred or
sustained by the Agent in connection with the preparation of this Amendment and
Waiver (including reasonable legal fees).
(f) This Amendment and Waiver shall constitute one of the Loan Documents
referred to in the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment and
Waiver as an agreement under seal as of the date first written above.
NATIONAL RESTAURANT ENTERPRISES, INC.
By:_________________________________________
Name:
Title:
AMERIKING, INC.
By:_________________________________________
Name:
Title:
FLEET NATIONAL BANK (F/K/A BANKBOSTON, N.A.),
individually and as Agent
By:_________________________________________
Name:
Title:
PARIBAS
By:_________________________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:_________________________________________
Name:
Title:
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DEUTSCHE FINANCIAL
SERVICES CORPORATION
By:__________________________________________
Name:
Title:
XXXXXX FINANCIAL, INC.
By:__________________________________________
Name:
Title:
LASALLE NATIONAL BANK
By:__________________________________________
Name:
Title:
SANWA BUSINESS CREDIT CORPORATION
By:__________________________________________
Name:
Title:
BANK OF AMERICA
By:__________________________________________
Name:
Title:
SUNTRUST BANK
By:__________________________________________
Name:
Title:
