Xxxxx 00, 0000
XXXXXX Restaurants, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Xx.
Re: Fourth Amendment to Amended and Restated Credit Agreement
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Ladies and Gentlemen:
Reference is made to that certain $40,000,000 Amended and
Restated Credit Agreement dated as of December 19, 1997 (as
amended, the "Agreement"), among VICORP Restaurants, Inc. (the
"Borrower"), the financial institutions named therein as lenders
(the "Lenders"), and Bank of America, N.A., as Agent for the
Lenders (the "Agent"). Unless otherwise indicated, all
capitalized terms herein are used as defined in the Agreement.
Whereas, the Borrower has requested various modifications to
the Agreement; and
Whereas, the Lenders are willing to make such modifications,
subject to the terms and conditions set forth herein;
Now, therefore and for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
Borrower, the Agent and the Lenders agree as follows:
1. Commitment Fee. The definition of "Applicable
Commitment Fee" in Section 1.01 of the Agreement is hereby
amended to read in its entirety as follows:
"Applicable Commitment Fee" means, on any day, the
commitment fee percentage based on the ratio of Adjusted
Debt to Adjusted Consolidated EBITDAR, calculated as set
forth in the definition of "Applicable Margin", as follows:
Applicable
Ratio of Adjusted Debt to Commitment
Adjusted Consolidated EBITDAR Fee
Percentage
-------------------------------- ----------
Less than 2.00 to 1.00 0.225%
Greater than or equal to 2.00 to 0.250%
1.00, but less than 2.75 to 1.00
Greater than or equal to 2.75 to 0.350%
1.00, but less than 3.25 to 1.00
Greater than or equal to 3.25 to 0.400%
1.00
2. Applicable Margin. The definition of "Applicable Margin" in
Section 1.01 of the Agreement is hereby amended to read in its
entirety as follows:
"Applicable Margin" means, on any day, the interest margin
over the Eurodollar Rate, based on a ratio of Adjusted Debt to
Adjusted Consolidated EBITDAR, as follows:
Applicable
Margin for
Ratio of Adjusted Debt to Eurodollar
Adjusted Consolidated EBITDAR Rate
Advances
-------------------------------- ----------
Less than 2.00 to 1.00 0.75%
Greater than or equal to 2.00 to 1.00%
1.00, but less than 2.75 to 1.00
Greater than or equal to 2.75 to 1.25%
1.00, but less than 3.25 to 1.00
Greater than or equal to 3.25 to 1.50%
1.00
For purposes of determining the Applicable Margin, the ratio
shall be calculated quarterly as of the last day of the fiscal
quarter for which the most recent quarterly financial statements
have been delivered pursuant to Section 7.01(b), and shall apply
to all Advances made on or after the date such financial
statements are delivered, until recalculated in accordance with
this paragraph. If Borrower fails to furnish Agent any such
financial statements (or the related compliance certificate) when
required pursuant to Section 7.02(b), then the highest applicable
margin identified above shall apply to all subsequent Advances
until Borrower furnishes the required financial statements and
compliance certificate.
3. Maturity Date. The definition of "Maturity Date" in
Section 1.01 of the Agreement is hereby amended to read in its
entirety as follows:
"Maturity Date" means February 28, 2003.
4. Rate Adjustment Periods. Section 3.06(d) of the
Agreement and the definitions of "Rate Adjustment Period" and
"Required Rate Adjustment Level" in Section 1.01 of the Agreement
are hereby deleted.
5. Schedule of Capital Expenditures. Section 7.01(b)(ii)
of the Agreement is hereby amended by adding the following
language at the end of such Section:
", together with a Schedule of Consolidated Capital
Expenditures for such fiscal year satisfactory to Agent,
detailing the breakdown between (A) maintenance capital
expenditures in connection with the replacement or
restoration of assets used in calculating the minimum fixed
charge coverage ratio under Section 7.03(d), and (B) non-
maintenance capital expenditures for Permitted Asset
Acquisitions and other expenditures; provided that the
Schedule of Consolidated Capital Expenditures for fiscal
year 1999 shall not be due until May 31, 2000;"
6. Use of Proceeds. Section 7.01(j) of the Agreement is
hereby amended to read in its entirety as follows:
(j) Use of Proceeds. The Borrower will use the
proceeds of the Advances only to repay its obligations under
the NationsBank Agreement, for working capital, capital
expenditures and other general corporate purposes (including
the purchase of shares of the Borrower's capital stock
pursuant to the Tender Offer or as otherwise permitted under
this Agreement), and for Permitted Asset Acquisitions.
7. Restricted Payments. Section 7.02(c) of the Agreement
is hereby amended by adding the following to the end of the last
sentence of such Section:
", or if, immediately after giving effect to such proposed
action, the ratio of Adjusted Debt to Adjusted Consolidated
EBITDAR would exceed 3.25 to 1.00."
8. Dispositions of Assets.
(a) Section 7.02(h)(i) of the Agreement is hereby
amended by adding the phrase underlined below, so that such
subsection shall read in its entirety as follows:
"(i) Sell, lease, assign, transfer or otherwise
dispose of any real property (or enter into an
agreement to do any of the foregoing), or permit any of
its subsidiaries to sell, lease, assign, transfer or
otherwise dispose of any real property (or enter into
an agreement to do any of the foregoing), except for
the properties described on Schedule 7.02(h) (listing
properties held for sale as of December 19, 1997) and
up to six additional non-operating properties in any
fiscal year, without the prior written consent of all
of the Lenders; or"
(b) Section 7.02(h) of the Agreement is hereby further
amended by adding the following to the end of such Section:
"The foregoing limitations on dispositions of assets
shall not be deemed to restrict the sale and leaseback
by Borrower of the 12 properties developed or acquired
in 1998 and 1999 which are listed on Schedule 7.02(h)-A
and new properties developed or acquired in 2000 and
thereafter."
(c) The Agreement is hereby further amended by adding
a new Schedule 7.02(h)-A (listing new properties developed
in 1998, 1999 and 2000 which are eligible for sale-leaseback
transactions) in the form attached to this Amendment.
9. Restrictions on Operating Leases. Section 7.02(j) of
the Agreement is hereby amended by replacing "$20,000,000" with
"$25,000,000."
10. Loans, Advances, Investments. The final clause of
Section 7.02(k) of the Agreement is hereby amended to read in its
entirety as follows:
"and (xi) repurchases of the Borrower's capital stock
pursuant to the Tender Offer or as otherwise permitted under
this Agreement."
11. Minimum Consolidated Tangible Net Worth. Section
7.03(b) of the Agreement is hereby deleted in its entirety and
replaced with "[Reserved]."
12. Minimum Fixed Charge Coverage Ratio. Section 7.03(d)
of the Agreement is hereby amended to read in its entirety as
follows:
(d) Minimum Fixed Charge Coverage Ratio. Commencing
with the Borrower's fiscal year 2000, maintain a ratio of
(i) Adjusted Consolidated EBITDAR minus cash income tax
payments and minus maintenance capital expenditures made by
the Borrower and its subsidiaries in connection with the
replacement or restoration of assets to (ii) the sum of
Consolidated Fixed Charges plus the cash value of any
dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on
account of any shares of capital stock of the Borrower made
by the Borrower or any of its subsidiaries, determined in
each case as of the last day of each fiscal quarter, of at
least 1.25 to 1. For the first, second and third fiscal
quarters of the Borrower's fiscal year 2000, such ratio
shall be calculated for the quarter, two quarters, or three
quarters of fiscal year 2000 ending on such date.
Thereafter, such ratio shall be calculated for the four
quarters ending on such date.
13. Conditions. This letter shall not be effective if a
material adverse change has occurred and until each of the
following items have occurred or been delivered to the Agent:
(a) this letter signed by the Borrower and each
Lender;
(b) satisfactory review by the Lenders of the
Borrower's 1999 audited financial statements, current long-
range plan and such other information as the Lenders may
reasonably request;
(c) payment by the Borrower to the Agent for the
benefit of the Lenders, in accordance with their respective
Pro Rata Shares, of an amendment fee in the amount of
$18,000;
(d) payment by the Borrower to the Agent of all other
amounts due under theexisting Fee Letter between the
Borrower and the Agent; and
(e) such other documents, if any, as the Agent may
reasonably request.
14. No Waiver of Defaults. Except as expressly set forth
above, the Borrower agrees that this letter does not constitute a
waiver of, or a consent to, any present or future violation of or
noncompliance with any provision of any Loan Document, or a
waiver of the Agent's and the Lenders' right to insist upon
future compliance with each term, covenant, condition and
provision of the Loan Documents, and the Loan Documents shall
continue to be binding upon, and inure to the benefit of, the
Borrower, the Agent and the Lenders and their respective
successors and assigns.
15. Representations and Warranties. The Borrower
represents and warrants to the Agent and the Lenders that (a) the
execution and delivery of this letter have been authorized by all
requisite corporate action on its part and will not violate its
organizational documents, (b) the representations and warranties
in each Loan Document to which it is a party are true and correct
in all material respects on and as of the date hereof as though
made on and as of the date hereof (except to the extent that (i)
such representations and warranties speak to a specific date or
(ii) the facts on which such representations and warranties are
based have been changed by transactions contemplated by the Loan
Documents or this letter), and (c) it is in full compliance with
all covenants and agreements contained in each Loan Document to
which it is a party.
16. Loan Document; Effect. This letter is a Loan Document,
and, therefore, this letter is subject to the applicable
provisions of Article IX of the Agreement, all of which
applicable provisions are incorporated herein by reference the
same as if set forth herein verbatim. Except as affected by this
letter, the Loan Documents are unchanged and continue in full
force and effect. The Borrower agrees that all Loan Documents to
which it is a party remain in full force and effect and continue
to evidence its legal, valid, and binding obligations enforceable
in accordance with their terms (as the same are affected by this
letter). The Borrower hereby releases the Agent and the Lenders
from any liability for actions or failures to act in connection
with the Loan Documents prior to the date hereof. This letter
shall be binding upon and inure to the benefit of each of the
undersigned and their respective successors and permitted
assigns.
17. Multiple Counterparts. This letter may be executed in
more than one counterpart, 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.
18. Fees and Expenses. The Borrower agrees to pay the
reasonable fees and expenses of counsel to the Agent rendered in
connection with the preparation, negotiation and execution of
this letter.
19. Final Agreement. THE LOAN DOCUMENTS, AS AMENDED
HEREBY, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL
AGREEMENTS BETWEEN THE PARTIES.
If you are in agreement with the foregoing, please so
indicate by executing the enclosed counterparts of this letter in
the spaces provided below and returning them to the Agent to the
attention of the officer named below.
Very truly yours,
BANK OF AMERICA, X.X. X.X. BANK NATIONAL ASSOCIATION
By:/s/ Xxxxxxx X. Xxxxxxxxx By:/s/ Xxxxxx X. Xxxxxxx
------------------------ ---------------------
Xxxxxxx X. Xxxxxxxxx, Xx. Xxxxxx X. Xxxxxxx
Managing Director Vice President
AGREED AND ACCEPTED:
VICORP RESTAURANTS, INC.
By:/s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
Treasurer
SCHEDULE 7.02(h)-A
PROPERTIES DEVELOPED OR ACQUIRED IN 1998 AND 1999
WHICH ARE ELIGIBLE FOR SALE-LEASEBACK TRANSACTIONS
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Village Inn Restaurants
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Bakers Square Restaurants
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