THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.18
EXECUTION COPY
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of February 27, 2008, is by and among XXXXXX’X OF CHICAGO, INC., an Illinois corporation, (the “Borrower”), XXXXXX’X RESTAURANT GROUP, INC., a Delaware corporation (the “Parent”), those Subsidiaries of the Parent identified as a “Guarantor” on the signature pages hereto (together with the Parent, the “Guarantors”), and WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (as defined below) under the Credit Agreement (defined below) (in such capacity, the “Administrative Agent”).
W I T N E S S E T H
WHEREAS, the Borrower, the Guarantors, the lenders party thereto (the “Lenders”) and the Administrative Agent are parties to that certain Credit Agreement dated as of February 14, 2006, as previously amended, modified or supplemented by that certain First Amendment to Credit Agreement dated as of June 1, 2007 and by that certain Second Amendment to Credit Agreement dated as of October 9, 2007 (as amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement as amended hereby);
WHEREAS, the Credit Parties have requested that the Administrative Agent (on behalf of the Required Lenders) agree to amend certain provisions of the Credit Agreement as described herein; and
WHEREAS, the Administrative Agent (on behalf of the Required Lenders) has agreed to the amendments requested by the Credit Parties, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
1.1 Consolidated Fixed Charges. Clause (v) of the definition of “Consolidated Fixed Charges” in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(v) dividends, stock repurchases and other Restricted Payments (in each case, other than Parent Share Repurchases made pursuant to Section 6.10(d)(ii) and 6.10(g)) made in cash by the Parent and its Subsidiaries during such period, all as determined in accordance with GAAP.”
1.2 Consolidated Net Income. The following sentence is hereby added to the end of the definition of “Consolidated Net Income” in Section 1.1 of the Credit Agreement:
“For the avoidance of doubt, the $3,400,000 charge of the Credit Parties during the fiscal quarter of the Parent ended December 30, 2007 related to certain wage and hour claims disclosed to the Administrative Agent and the Lenders shall be deemed a “non-recurring item” for purposes of this definition and excluded from the calculation of Consolidated Net Income for such period.”
1.3 Parent Share Repurchases. A new defined term “Parent Share Repurchases” is hereby added to Section 1.1 of the Credit Agreement to read as follows:
““Parent Share Repurchases” shall mean the repurchase by the Parent of its Capital Stock from existing shareholders of the Parent (other than officers, directors and employees of the Parent or any Subsidiary).”
1.4 Maximum Consolidated Capital Expenditures. Section 5.9(c) of the Credit Agreement is hereby deleted in its entirety and replaced with the following:
“(c) Maximum Consolidated Capital Expenditures. The sum of (i) Consolidated Capital Expenditures made during each fiscal year of the Parent minus (ii) to the extent included in the calculation of Consolidated Capital Expenditures, the portion of any capital expenditures funded by an outside investor in connection with any joint venture or other transactions structure during such fiscal year, shall be less than or equal to the amounts set forth below:
| Fiscal Year Ending |
Amount | ||
| December 31, 2006 |
$ | 33,500,000 | |
| December 30, 2007 |
$ | 32,500,000 | |
| January 4, 2009 |
$ | 35,000,000 | |
| January 3, 2010 |
$ | 40,000,000 | |
| January 2, 2011 |
$ | 30,000,000 | |
| January 1, 2012 |
$ | 30,000,000 | |
plus the unused amount available for Consolidated Capital Expenditures under this Section 5.9(c) for the immediately preceding fiscal year (excluding any carry forward available from any prior fiscal year); provided, that with respect to any fiscal year, capital expenditures made during any such fiscal year shall be deemed to be made first with respect to the applicable limitation for such year and then with respect to any carry forward amount to the extent applicable.
1.5 Restricted Payments.
(a) A new clause (g) is hereby added to the end of Section 6.10 to read as follows:
“and (g) the Parent may make Parent Share Repurchases in an aggregate amount not to exceed $6,000,000 during the term of this Agreement; provided, that with respect to any fiscal year of the Parent, the Parent may not make any Parent Share Repurchases pursuant to this clause (g) during such fiscal year until the Credit Parties have completely exhausted the basket for Restricted Payments set forth in Section 6.10(d)(ii) (including any amounts available thereunder carried forward from previous fiscal years) for such fiscal year.”
(b) The following sentence is hereby added to the end of Section 6.10 to read as follows:
“Notwithstanding the foregoing, the Parent shall not be permitted to make Parent Share Repurchases, whether pursuant to clause 6.10(d)(ii), 6.10(g) or otherwise, in excess of $10,000,000 during the term of this Agreement.”
ARTICLE II
CONDITIONS TO EFFECTIVENESS
2.1 Closing Conditions.
This Amendment shall become effective as of the date hereof (the “Third Amendment Effective Date”) upon satisfaction of the following conditions (in form and substance reasonably acceptable to the Administrative Agent):
(a) Executed Amendment. The Administrative Agent shall have received a copy of this Amendment duly executed by each of the Credit Parties and the Administrative Agent, on behalf of the Required Lenders.
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(b) Executed Consents. The Administrative Agent shall have received executed consents, substantially in the form of Exhibit A attached hereto, from each of the Required Lenders authorizing the Administrative Agent to enter into this Amendment on their behalf.
(c) Amendment Fees. The Administrative Agent shall have received an amendment fee for the ratable benefit of each of the Lenders (including, without limitation, Wachovia Bank, National Association) that have returned executed consents to this Amendment no later than 5:00 p.m. (Eastern Time) on February 25, 2008, as directed by the Administrative Agent, in an amount equal to 0.125% multiplied by the aggregate Commitments of such Lenders as of the date hereof.
(d) Other. The Administrative Agent shall have received such other documents, agreements or information which it may reasonably request relating to the Credit Parties and the transactions contemplated by this Amendment and any other matters relevant hereto or thereto, all in form and substance satisfactory to the Administrative Agent in its sole good faith discretion.
ARTICLE III
MISCELLANEOUS
3.1 Amended Terms. All references to the Credit Agreement in each of the Credit Documents shall hereafter mean the Credit Agreement as amended by this Amendment. Except as specifically amended hereby or otherwise agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms.
3.2 Representations and Warranties of Credit Parties. Each of the Credit Parties represents and warrants as follows:
(a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such Person and constitutes such Person’s valid and legally binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority or third party is required in connection with the execution, delivery or performance by such Person of this Amendment.
(d) The representations and warranties set forth in Article III of the Credit Agreement are (i) with respect to representations and warranties that contain a materiality qualification, true and correct as of the date hereof (except for those which expressly relate to an earlier date) and (ii) with respect to representations and warranties that do not contain a materiality qualification, true and correct in all material respects as of the date hereof (except for those which expressly relate to an earlier date).
(e) Before and after giving effect to this Amendment, (1) no Default or Event of Default exists; and (2) the Credit Parties are in compliance with all financial covenants set forth in Section 5.9 of the Credit Agreement.
(f) The Security Documents continue to create a valid security interest in, and Lien upon, the Collateral, in favor of the Administrative Agent, for the benefit of the Lenders, which security interests and Liens are perfected in accordance with the terms of the Security Documents and prior to all Liens other than Permitted Liens.
(g) The execution, delivery and performance of this Amendment by the Credit Parties will not violate any Requirement of Law or contractual obligation of any Credit Party in any respect that could reasonably be expected to have a Material Adverse Effect.
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3.3 Acknowledgment of Guarantors. The Guarantors acknowledge and consent to all of the terms and conditions of this Amendment and agree that this Amendment and all documents executed in connection herewith do not operate to reduce or discharge the Guarantors’ obligations under the Credit Documents.
3.4 Credit Document. This Amendment shall constitute a Credit Document under the terms of the Credit Agreement.
3.5 Entirety. This Amendment and the other Credit Documents embody the entire agreement between the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.
3.6 Counterparts; Telecopy. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart to this Amendment by telecopy shall be effective as an original and shall constitute a representation that an original will be delivered.
3.7 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
3.8 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. The jurisdiction, services of process and waiver of jury trial provisions set forth in Sections 9.14 and 9.17 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.
3.9 Fees. The Borrower agrees to pay all reasonable out-of-pocket, due diligence expenses and other related expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including, without limitation, the reasonable fees, disbursements and other charges of Xxxxx & Xxx Xxxxx PLLC.
3.10 Further Assurances. The Credit Parties agree to promptly take such action, upon the request of the Administrative Agent, as is necessary to carry out the intent of this Amendment.
3.11 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF the Borrower, the Guarantors, and the Administrative Agent (on behalf of itself and the Lenders) have caused this Amendment to be duly executed on the date first above written.
| BORROWER: | XXXXXX’X OF CHICAGO, INC., an Illinois corporation | |||
| By: | /S/ XXXXXX X. XXXXXXX | |||
| Name: | Xxxxxx X. XxXxxxx | |||
| Title: | Sr. Vice President/CFO | |||
| PARENT: | XXXXXX’X RESTAURANT GROUP, INC., a Delaware corporation | |||
| By: | /S/ XXXXXX X. XXXXXXX | |||
| Name: | Xxxxxx X. XxXxxxx | |||
| Title: | Sr. Vice President/CFO | |||
| GUARANTORS: |
PORTERHOUSE, INC., a Delaware corporation | |
| XXXXXX’X OF CHICAGO/ATLANTA, INC., an Illinois corporation | ||
| XXXXXX’X OF CHICAGO/BUCKHEAD, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/CHICAGO, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/CINCINNATI, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/XXXXXXX, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/CLEVELAND, INC., an Illinois corporation | ||
| XXXXXX’X OF CHICAGO/COLUMBUS INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/DALLAS, INC., an Illinois corporation | ||
| XXXXXX’X OF CHICAGO/DENVER, INC., an Illinois corporation | ||
| XXXXXX’X OF CHICAGO/DETROIT, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/FIFTH AVENUE, INC., a Delaware corporation | ||
THIRD AMENDMENT TO CREDIT AGREEMENT
| XXXXXX’X OF CHICAGO/FLAMINGO ROAD CORP., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/HOUSTON, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/MINNEAPOLIS, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/NASHVILLE, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/PALM DESERT, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/PHILADELPHIA, INC., an Illinois corporation | ||
| XXXXXX’X OF CHICAGO/PHOENIX, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/PITTSBURGH, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/PITTSBURGH LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/PORTLAND, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/PUERTO RICO, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/ROSEMONT, INC., an Illinois corporation | ||
| XXXXXX’X OF CHICAGO/SACRAMENTO, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/SAN ANTONIO, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/SAN DIEGO, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/SAN FRANCISCO, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/SANTA XXX, INC., a Delaware corporation | ||
THIRD AMENDMENT TO CREDIT AGREEMENT
| XXXXXX’X OF CHICAGO/SCOTTSDALE, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/SEATTLE, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/VIRGINIA, INC., an Illinois corporation | ||
| XXXXXX’X OF CHICAGO/WASHINGTON D.C. INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/WASHINGTON SQUARE, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/XXXXXXXXX, INC., an Illinois corporation | ||
| PORTERHOUSE OF LOS ANGELES, INC., a Delaware corporation | ||
| MOCGC CORP., a Virginia corporation | ||
| XXXXXX’X OF CHICAGO HOLDING, INC., a Delaware corporation | ||
| XXXXX XXXXXX’X OF CHICAGO/XXXXXXXX LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO MARYLAND HOLDING, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/BALTIMORE LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/BETHESDA LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/ANAHEIM LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/ATLANTIC CITY, LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO FLORIDA HOLDING, INC., a Delaware corporation | ||
| XXXXXX’X OF CHICAGO/BOCA RATON, LLC, a Delaware limited liability company | ||
THIRD AMENDMENT TO CREDIT AGREEMENT
| XXXXXX’X OF CHICAGO/CORAL GABLES, LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/MIAMI LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/NORTH MIAMI BEACH LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/ORLANDO LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/PALM BEACH LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/BOSTON LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/CHARLOTTE LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/CRYSTAL CITY LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/DENVER CRESCENT TOWN CENTER, LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/FORT LAUDERDALE, LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/GREAT NECK LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/HACKENSACK LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/HARTFORD LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/HONOLULU LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/INDIANAPOLIS LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/JACKSONVILLE LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/KANSAS CITY LLC, a Delaware limited liability company | ||
THIRD AMENDMENT TO CREDIT AGREEMENT
| XXXXXX’X OF CHICAGO/KING OF PRUSSIA LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/LOUISVILLE LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/NEW ORLEANS LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/NORTHBROOK, LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/XXXXXXXX, LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/RESTON LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/RICHMOND LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/SCHAUMBURG LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/SOUTHPARK, LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/STAMFORD LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/XXXX, LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/XXXXXX PLACE, LLC, a Delaware limited liability company | ||
| XXXXXX’X OF CHICAGO/WHITE PLAINS LLC, a Delaware limited liability company | ||
| ITALIAN RESTAURANTS HOLDING CORP., a Delaware corporation | ||
| XXXXXXXXX’X RESTAURANTS, INC., a Delaware corporation | ||
| XXXXXXXXX’X OF CIRCLE CENTRE, INC., a Delaware corporation | ||
| XXXXXXXXX’X/KING OF PRUSSIA, INC., a Delaware corporation | ||
| XXXXXXXXX’X OF LAS VEGAS, INC., a Delaware corporation | ||
THIRD AMENDMENT TO CREDIT AGREEMENT
| XXXXXXXXX’X AT VILLAGE SQUARE, INC., a Delaware corporation | ||||
| By: | /S/ XXXXXX X. XXXXXXX | |||
| Name: | Xxxxxx X. XxXxxxx | |||
| Title: | Sr. Vice President/CFO | |||
| XXXXX XXXXXX’X OF CHICAGO/BURBANK LLC, a Delaware limited liability company | ||||
| By: | /S/ XXXXXX X. XXXXXXX | |||
| Name: | Xxxxxx X. XxXxxxx | |||
| Title: | Sr. Vice President/CFO | |||
| HOUSTON STEAKHOUSE, INC., | ||||
| a Texas corporation | ||||
| CHICAGO STEAKHOUSE, INC., | ||||
| a Texas corporation | ||||
| SAN ANTONIO STEAKHOUSE, INC., | ||||
| a Texas corporation | ||||
| By: | /S/ XXXXXX X. XXXXXXX | |||
| Name: | Xxxxxx X. XxXxxxx | |||
| Title: | Sr. Vice President/CFO | |||
THIRD AMENDMENT TO CREDIT AGREEMENT
| ADMINISTRATIVE AGENT: | WACHOVIA BANK, | |||||
| NATIONAL ASSOCIATION, | ||||||
| as Administrative Agent | ||||||
| and on behalf of the Required Lenders | ||||||
| By: | /S/ XXXXX X. XXXXXXXX | |||||
| Name: | Xxxxx X. Xxxxxxxx | |||||
| Title: | Managing Director | |||||
EXHIBIT A
LENDER CONSENT
This Lender Consent is given pursuant to the Credit Agreement, dated as of February 14, 2006 (as previously amended and modified, the “Credit Agreement”; and as further amended by the Amendment (as hereinafter defined), the “Amended Credit Agreement”), by and among XXXXXX’X OF CHICAGO, INC., an Illinois corporation, (the “Borrower”), XXXXXX’X RESTAURANT GROUP, INC., a Delaware corporation (the “Parent”), those Subsidiaries of the Parent identified as a “Guarantor” on the signature pages hereto (together with the Parent, the “Guarantors”), the lenders and other financial institutions from time to time party thereto (the “Lenders”) and WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent on behalf of the Lenders (in such capacity, the “Administrative Agent”). Capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement unless otherwise defined herein.
The undersigned hereby approves the Third Amendment to Credit Agreement (the “Amendment”), dated as of February 27, 2008, by and among the Borrower, the Guarantors party thereto and the Administrative Agent and hereby authorizes the Administrative Agent to execute and deliver the Amendment on its behalf and, by its execution below, the undersigned agrees to be bound by the terms and conditions of the Amendment and the Amended Credit Agreement.
Delivery of this Lender Consent by telecopy shall be effective as an original.
A duly authorized officer of the undersigned has executed this Lender Consent as of the day of February, 2008.
| , | ||
| as a Lender |
| By: | ||
| Name: | ||
| Title: |
