FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT"), dated as
of December 31, 1999 is among SCHLOTZSKY'S, INC., a Texas corporation
("BORROWER"), each of the Lenders party to the Agreement referred to below,
and XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION, a national banking
association, as Agent for itself and the other Lenders (in such capacity,
together with its successors in such capacity the "AGENT") and as the Issuing
Bank.
RECITALS:
A. Borrower, Agent, Lenders and Issuing Bank have previously entered
into that certain Credit Agreement dated as of December 7, 1999 (the
"AGREEMENT").
B. Borrower, Agent, Lenders and Issuing Bank now desire to amend the
Agreement to amend certain financial covenants as hereinafter more
specifically provided.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS. All capitalized terms not otherwise defined herein,
shall have the same meanings as in the Agreement, as amended hereby.
ARTICLE II.
AMENDMENTS
2.1 AMENDMENT TO LEVERAGE RATIO COVENANT. Effective as of the date
hereof Section 10.2 of the Agreement is hereby amended to read in its
entirety as follows:
"Section 10.2 LEVERAGE RATIO. As of the last day of any Fiscal
Quarter, the Borrower will during the periods indicated maintain a
Leverage Ratio of not greater than (a) 4.00 to 1.00 from the date
hereof through and including December 31, 1999, (b) 3.50 to 1.00 from
January 1, 2000 through and including Xxxxx 00, 0000, (x) 3.00 to 1.00
from April 1, 2000 through and including Xxxxxxxxx 00, 0000, (x) 2.75
to 1.00 from October 1, 2000 through and including September 30, 2001,
and (e) 2.50 to 1.00 thereafter."
2.2 AMENDMENT TO CONSOLIDATED NET WORTH COVENANT. Effective as of
the date hereof Section 10.3 of the Agreement is hereby amended to read in
its entirety as follows:
"Section 10.3 CONSOLIDATED NET WORTH. As of December 31, 1999,
the Borrower will maintain Consolidated Net Worth in an amount not less
than Seventy-Four Million Five Hundred Thousand Dollars ($74,500,000),
and for the last day of each Fiscal Quarter thereafter, not less than
the sum of (i) the minimum Consolidated Net Worth required for the
prior Fiscal Quarter, plus (ii) 75% of Consolidated Net Income (not
less than zero (0) dollars [$0.00]) for the Fiscal Quarter then ended."
2.3 AMENDMENT TO FIXED CHARGE COVERAGE RATIO COVENANT. Effective as
of the date hereof Section 10.4 of the Agreement is hereby amended to read in
its entirety as follows:
"Section 10.4 FIXED CHARGE COVERAGE RATIO. As of the last day
of any Fiscal Quarter, the Borrower will during the periods indicated
maintain a Fixed Charge Coverage Ratio for the preceding four (4)
Fiscal Quarters then ended of not less than (a) 1.25 to 1.00 from the
date hereof through and including Xxxxx 00, 0000, (x) 1.35 to 1.0 from
April 1, 2000 through and including June 30, 2000, (c) 1.50 to 1.0 from
July 1, 2000 through and including September 30, 2000, and (d)
thereafter, 1.75 to 1.00."
ARTICLE III.
CONDITIONS PRECEDENT
3.1 CONDITION. The effectiveness of this Amendment is subject to the
satisfaction of the following conditions precedent:
(a) Agent shall have received all of the following, each dated
(unless otherwise indicated) the date of this Amendment, in form and
substance satisfactory to the Agent:
(i) This Amendment executed by all parties
hereto.
(ii) Resolutions of the Board of Directors of
Borrower certified by its secretary or assistant secretary
which authorizes the execution, delivery and performance by
Borrower of this Amendment and the other Loan Documents
executed in connection herewith.
(iii) A certificate of incumbency certified by the
secretary or the assistant secretary of Borrower certifying
the names of the officers thereof authorized to sign this
Amendment and the other Loan Documents together with specimen
signatures of such officers.
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(iv) Resolutions of the Board of Directors or
comparable authority of each of the Obligated Parties
certified by its secretary or assistant secretary which
authorize the execution, delivery and performance by each of
the Obligated Parties of this Amendment and the other Loan
Documents executed in connection herewith.
(v) A certificate of incumbency certified by the
secretary or the assistant secretary of each Obligated Party
certifying the names of the officers thereof authorized to
sign this Amendment and the other Loan Documents together with
specimen signatures of such officers.
(b) NO DEFAULT. No Default shall have occurred and be
continuing.
(c) REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties contained in Article VII of the Agreement, as amended
hereby and in the other Loan Documents shall be true and correct on and
as of the date of this Amendment with the same force and effect as if
such representations and warranties had been made on and as of such
date, except to the extent such representations and warranties speak to
a specific date.
(d) AMENDMENT FEE. Borrower shall have paid to the Agent for
the benefit of the Lenders an amendment fee in the amount of
$10,000.00.
ARTICLE IV.
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
4.1 RATIFICATIONS. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions
set forth in the Agreement and except as expressly modified and superseded by
this Amendment, the terms and provisions of the Agreement and the other Loan
Documents are ratified and confirmed and shall continue in full force and
effect. Borrower, Lenders, Issuing Bank and Agent agree that the Agreement as
amended hereby and the other Loan Documents shall continue to be legal,
valid, binding and enforceable in accordance with their respective terms.
4.2 REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to the Lenders, Agent and Issuing Bank that (i) the execution,
delivery and performance of this Amendment and any and all other Loan
Documents executed and/or delivered in connection herewith have been
authorized by all requisite corporate action on the part of Borrower and will
not violate the articles of incorporation or bylaws of Borrower, (ii) the
representations and warranties contained in the Agreement, as amended hereby,
and any other Loan Document are true and correct on and as of the date hereof
as though made on and as of the date hereof, except to the extent such
representations and warranties speak to a specific date, (iii) no Event of
Default has occurred and is continuing and no event or condition has occurred
that with the giving of notice or lapse of time or both would be an Event of
Default, and (iv) Borrower is in full compliance with all covenants and
agreements contained in the Agreement as amended hereby.
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ARTICLE V.
MISCELLANEOUS
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Amendment or any other Loan Document including
any Loan Document furnished in connection with this Amendment shall survive
the execution and delivery of this Amendment and the other Loan Documents,
and no investigation by the Lenders, Agent or Issuing Bank or any closing
shall affect the representations and warranties or the right of the Lenders
or Agent or Issuing Bank to rely upon them.
5.2 REFERENCE TO AGREEMENT. Each of the Loan Documents, including
the Agreement and any and all other agreements, documents, or instruments now
or hereafter executed and delivered pursuant to the terms hereof or pursuant
to the terms of the Agreement as amended hereby, are hereby amended so that
any reference in such Loan Documents to the Agreement shall mean a reference
to the Agreement as amended hereby.
5.3 SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
5.4 APPLICABLE LAW. This Amendment and all other Loan Documents
executed pursuant hereto shall be deemed to have been made and to be
performable in Xxxxxx, Xxxxxx County, Texas and shall be governed by and
construed in accordance with the laws of the State of Texas.
5.5 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall
inure to the benefit of the Lenders, Agent, Issuing Bank and Borrower and
their respective successors and assigns, except Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Lenders.
5.6 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the
same instrument.
5.7 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS AMONG THE PARTIES HERETO.
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Executed as of the date first written above.
BORROWER:
SCHLOTZSKY'S, INC.
By:
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Name:
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Title:
---------------------------
Address for Notices:
000 Xxxxxxxx Xx.
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Chief Financial Officer
AGENT, ISSUING BANK AND LENDER:
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
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Name: Xxxxx Xxxxx
Title: Vice President
Address for Notices:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxx
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OTHER LENDERS:
FROST NATIONAL BANK
By:
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Name:
----------------------------
Title:
---------------------------
Address for Notices:
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
TEXAS CAPITAL BANK,
NATIONAL ASSOCIATION
By:
------------------------------------
Name:
----------------------------
Title:
---------------------------
Address for Notices:
0000 XxXxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxx Xxxxxx
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OBLIGATED PARTIES CONSENT
Each of the undersigned Obligated Parties (i) consent and agree to
this Amendment; and (ii) agree that the Loan Documents to which it is a party
shall remain in full force and effect and shall continue to be the legal,
valid and binding obligation of such Obligated Party enforceable against it
in accordance with their respective terms.
OBLIGATED PARTIES:
RAD Acquisition Corp.
Schlotzsky's Real Estate, Inc.
Schlotzsky's Restaurants, Inc.
DFW Restaurant Transfer Corp.
Schlotzsky's Equipment Corporation
SREI Turnkey Development, L.L.C.
56th & 6th, Inc.
By:
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Name:
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Title:
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