EXECUTION COPY
AMENDMENT NO. 2
This Amendment No. 2 dated as of February 22, 2002 ("Agreement") is among
Xxxxxx'x Restaurants, Inc., a Delaware corporation (the "Borrower"), the lenders
from time to time party to the Credit Agreement described below ("Lenders"), and
Bank of America, N.A., as administrative agent for the Lenders ("Administrative
Agent").
INTRODUCTION
A. The Borrower, the Administrative Agent, and the Lenders are parties to
the First Amended and Restated Credit Agreement dated as of June 28, 2000, as
amended by Amendment No. 1 and Consent dated as of October 17, 2000 (as so
amended, "Credit Agreement").
B. The Borrower has requested that the Lenders agree to make certain
amendments to the Credit Agreement, that the Lenders extend the maturity of the
Credit Agreement, that certain Lenders increase their Commitments, that SunTrust
Bank ("SunTrust") be added as a Lender under the Credit Agreement, and that The
Fuji Bank, Limited and The Bank of Tokyo-Mitsubishi, Ltd., Houston Agency be
replaced as Lenders because they chose not to extend maturity.
C. Subject to the terms hereof, the Lenders agree to the amendments and
extension contained herein.
THEREFORE, the Borrower, the Administrative Agent, and the Lenders hereby
agree as follows:
Section 1. Definitions. Unless otherwise defined in this Agreement, terms
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used in this Agreement which are defined in the Credit Agreement shall have the
meanings assigned to such terms in the Credit Agreement.
Section 2. Amendments. The Credit Agreement is hereby amended as follows:
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(a) Upon the effectiveness of this Agreement, SunTrust shall be a Lender
with all rights, powers, and privileges attendant thereto. The Commitment of
each Lender shall be amended to be as indicated beside such Lender's name on the
attached Schedule 2.01, and Schedule 2.01 to the Credit Agreement shall be
replaced by the attached Schedule 2.01. Upon the effectiveness of this
Agreement, only the Lenders party to this Agreement shall be Lenders under the
Credit Agreement.
(b) The following definitions in Section 1.01 shall be amended to read in
their entirety as follows:
"Applicable Amount" means the following amounts per annum, based
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upon the Total Debt Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant
to Section 6.02(b):
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Pricing Total Debt Leverage Commitment Offshore Base Rate +
Level Ratio Fee Rate +
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1 #1.0:1 0.50% 2.00% 0.25%
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2 *1.0:1 but #1.5:1 0.50% 2.25% 0.50%
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3 *1.5:1 but #2.25:1 0.50% 2.50% 0.75%
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4 *2.25:1 0.50% 2.75% 1.00%
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;provided that, prior to the Notes Issuance Date, Pricing Level 4
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shall not apply, and the Applicable Amount for all Total Debt Leverage
Ratios greater than 1.5:1.0 shall be at Pricing Level 3.
The Applicable Amount shall be in effect from the date the most recent
Compliance Certificate is received by Administrative Agent to but
excluding the date the next Compliance Certificate is received;
provided, however, that if the Borrower fails to timely deliver the
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next Compliance Certificate, the Applicable Amount from the date such
Compliance Certificate was due to but excluding the date such
Compliance Certificate is received by Administrative Agent shall be
the highest pricing level in effect at such time, and, thereafter, the
pricing level indicated by such Compliance Certificate when received.
"Commitment" means, for each Lender, the obligation of such
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Lender to make Extensions of Credit in an aggregate principal amount
not exceeding the amount set forth opposite such Lender's name on
Schedule 2.01 at any one time outstanding, as such amount may be
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increased or reduced from time to time in accordance with this
Agreement (collectively, the "combined Commitments").
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"Maturity Date" means July 1, 2004, as it may be earlier
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terminated or extended in accordance with the terms hereof.
"Non-Recourse Subsidiary" means any wholly owned Subsidiary of
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which the Administrative Agent has been notified and which (a) if it
has acquired assets from the Borrower or any of its other
Subsidiaries, it has acquired such assets only in compliance with this
Agreement, (b) is not a Subsidiary as of the Closing Date, (c) owns
only Property acquired by it after the Closing Date, (d) does not own
any capital stock, or any warrants, options, or other rights to
acquire capital stock of any Subsidiary, and (e) has no Indebtedness
or other obligations pursuant to which the lender or other beneficiary
of such obligations, directly or
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indirectly, has recourse to any asset of the Borrower or any of
its other Subsidiaries.
"Pro Rata Share" means, with respect to each Lender, either
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(a) the ratio (expressed as a percentage) of such Lender's
Commitment at such time to the combined Commitments at such time,
(b) if the Commitments have been terminated, the ratio (expressed
as a percentage) of such Lender's aggregate outstanding
Extensions of Credit at such time to the aggregate outstanding
Extensions of Credit of all the Lenders at such time, or (c) if
no Extensions of Credit are then outstanding and no Commitments
then in effect, the ratio (expressed as a percentage) of the
aggregate principal amount of such Bank's Extensions of Credit
when most recently outstanding to the aggregate principal amount
of all Extensions of Credit when most recently outstanding.
(c) The following definitions shall be added in alphabetical order to
Section 1.01:
"Headquarters Building" has the meaning specified in Section
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7.01(j).
"Notes Issuance Date" means the date upon which the Borrower
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issues, (i) pursuant to Section 7.01(i), convertible subordinated
notes or senior subordinated notes or (ii) Indebtedness of
Non-Recourse Subsidiaries, in either case which, when aggregated
with any prior issuances of such Indebtedness, have an aggregate
original principal amount of at least $15,000,000.
"Senior Debt Leverage Ratio" means, as of any date of its
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determination, the ratio of (a) Consolidated Funded Indebtedness,
minus Indebtedness of Non-Recourse Subsidiaries, up to a maximum
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of $35,000,000, minus Subordinated Indebtedness, each as of such
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date, to (b) Consolidated EBITDA minus the portion of
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Consolidated EBITDA which is attributable to any Non-Recourse
Subsidiary whose Indebtedness was subtracted in clause (a) above,
in each case for the period of the four fiscal quarters most
recently ended.
"Subordinated Indebtedness" means the Indebtedness of the
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Borrower or any of its Subsidiaries which is (a) permitted under
Section 7.01(i) or (b) incurred under subordination and other
terms at least as favorable to the Lenders and Administrative
Agent as those pursuant to which any Indebtedness permitted under
Section 7.01(i) is issued and approved in writing by the
Requisite Lenders and the Administrative Agent.
"Total Debt Leverage Ratio" means, as of any date of its
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determination, the ratio of (a) Consolidated Funded Indebtedness
as of
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such date to (b) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended.
(d) The definition of "Leverage Ratio" in Section 1.01 shall be
deleted.
(e) Article II is amended to add the following Section 2.13 to the
end of Article II:
2.13. Increase of Commitments. If no Default or Event of Default
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then exists, the Borrower shall have the right, without the
consent of the Lenders, to increase the combined Commitments by
adding to this Agreement one or more lenders who are Eligible
Assignees (who shall, upon completion of the requirements stated
in this Section 2.13 constitute Lenders hereunder), or by
allowing one or more Lenders to increase their Commitments
hereunder, provided that (a) the sum of the current Commitments
plus such added Commitments plus any increases in current
Commitments shall not be greater than $220,000,000, (b) no
Lender's Commitment shall be increased without the consent of
such Lender, (c) no Person shall be added to this Agreement
without its consent, and (d) on the effective date of any such
increase or addition, either there shall be no Committed Loans
outstanding or there shall have been arrangements satisfactory to
the Administrative Agent made to prepay all outstanding Committed
Loans, together with accrued interest thereon and any amounts
payable pursuant to Section 3.05. Any prepayment made by the
Borrower in accordance with the preceding subparagraph (d) of
this Section 2.13 may be made with the proceeds of Loans made by
all the Lenders in connection with an increase in the Commitments
pursuant to this Section 2.13. There shall be no fee paid to any
Lender not increasing its Commitment in connection with an
increase in the combined Commitments under this Section 2.13. The
Borrower shall give the Administrative Agent five Business Days'
notice of the Borrower's intention to increase any Commitment or
add a new lender pursuant to this Section 2.13. Such notice shall
specify each new lender, if any, the changes in amounts of
Commitments that will result, the date on which such addition or
change is to occur (which shall be a Business Day), and such
other information as is reasonably requested by the
Administrative Agent. Each new lender agreeing to be added to
this Agreement, and each Lender agreeing to increase its
Commitment, shall execute and deliver to the Administrative Agent
a New Lender Agreement in substantially the form of Exhibit H-1
or a Commitment Increase Agreement in substantially the form of
Exhibit H-2, pursuant to which it becomes a party hereto or
increases its Commitment, as the case may be. In addition, an
authorized officer of the Borrower shall execute and deliver a
Committed Loan Note in the principal amount of the Commitment of
each new lender, or a replacement Committed Loan Note in the
principal amount of the increased Commitment of each Lender
agreeing to increase its Commitment, as the case may be. Each
such Committed Loan Note shall be dated the effective date of the
pertinent New Lender Agreement or
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Commitment Increase Agreement, as the case may be, shall be
properly completed, and shall otherwise be in substantially the
form of Exhibit C. Upon execution and delivery to the
Administrative Agent of the Committed Loan Note and execution by
the Administrative Agent of the relevant New Lender Agreement or
Commitment Increase Agreement, as the case may be, such new
lender shall constitute a "Lender" hereunder with a Commitment as
specified therein, or such Lender's Commitment shall increase as
specified therein, as the case may be, and the Administrative
Agent shall notify the Lenders of such addition or increase.
(f) Section 6.13 is amended to insert the following after the words
"Within 30 days after the creation of any new Subsidiary":
, other than a Non-Recourse Subsidiary that owns the Headquarters
Building and any Non-Recourse Subsidiary that has Indebtedness
the Liens securing which are permitted under Section 7.02(j),
(g) Section 7.01(c) is amended to add the words "and 7.02(j)" after
the words Section 7.02(d)".
(h) Section 7.01(d) is amended to add the words "and 7.02(j)" after
the words Section 7.02(d)".
(i) Section 7.01 is amended to add the following subsections after
the existing subsection 7.01(h), and the existing subsection 7.01(i) shall be
renamed subsection 7.01(k):
(i) Unsecured Indebtedness in the form of convertible
subordinated notes or senior subordinated notes (i) in an
aggregate original principal amount that does not exceed
$135,000,000 and (ii) which are issued pursuant to terms and
conditions (A) if issued in a registered or 144A offering,
customary for similar securities issued in a registered or 144A
offering, as reasonably determined and approved in writing by the
Administrative Agent, or (B) if not issued in a registered or
144A offering, on terms reasonably acceptable to and approved in
writing by the Requisite Lenders;
(j) Indebtedness of a Non-Recourse Subsidiary (i) which does
not exceed $20,000,000 in the aggregate at any time and (ii)
which shall be used solely to finance or refinance the purchase
of the Borrower's headquarters building at 0000 Xxxx Xxxx Xxxxx,
Xxxxxxx, Xxxxx (the "Headquarters Building"); and
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(j) Section 7.02(d) is amended to add the following language at the
end of such section, immediately preceding the final semicolon:
, less the amount of Indebtedness secured by Liens permitted
under Section 7.02(j)
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(k) Section 7.02 is amended to add the following subsections after
the existing subsection 7.02(g):
(h) Liens granted by a Non-Recourse Subsidiary securing the
Indebtedness described in Section 7.01(j) so long as such Liens (i)
secure only the Indebtedness described in Section 7.01(j) and (ii)
extend only to the Headquarters Building, the office leases, real
estate, fixtures, appurtenances, and building equipment related to
the Headquarters Building, and other customary mortgage financing
collateral related to the Headquarters Building and related real
estate;
(i) Liens granted by the Borrower or one of its Subsidiaries
securing the Indebtedness described in Section 7.01(j) so long as
such Liens (i) secure only the Indebtedness described in Section
7.01(j) and (ii) extend only to the equity interests of the
Non-Recourse Subsidiary which owns the Headquarters Building and
the proceeds thereof; and
(j) Liens securing Indebtedness assumed or incurred in
connection with an Acquisition permitted under Section 7.11 so long
as
(i) such Liens and Indebtedness comply with the
limitations described in Sections 7.01(c) and 7.02(d)
(iv) and
(ii) either (A) such Liens extend only to specific
fixed assets acquired in connection with such Acquisition
and proceeds thereof and do not secure Indebtedness other
than purchase-money debt, capital leases, or term debt, or
(B) such Indebtedness is Indebtedness only of a Non-Recourse
Subsidiary and any such Liens granted by a party other than
such Non-Recourse Subsidiary extend only to the equity
interests in such Non-Recourse Subsidiary.
(l) Section 7.12 is amended to read in its entirety as follows:
7.12. Capital Expenditures. Make, or become legally obligated to
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make, any capital expenditure (excluding Acquisitions permitted
under Section 7.11), except capital expenditures in any fiscal
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year of the Borrower not exceeding the sum of (a) (i) in fiscal
year 2001, $75,000,000 and (ii) in fiscal years thereafter,
$85,000,000 and (b) the amount, up to $10,000,000, of unused
capital expenditure allowance for the immediately preceding fiscal
year.
(m) Section 7.14(c) is amended to read in its entirety as follows:
(c) Total Debt Leverage Ratio. Permit the Total Debt
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Leverage Ratio (i) at any time prior to the Notes Issuance Date to
be greater than 2.25 to 1.0 or (ii) at any time on or after the
Notes Issuance Date to be greater than 3.0 to 1.0.
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(n) Section 7.14 is amended to add the following subsection (e) to the
end of Section 7.14:
(e) Senior Debt Leverage Ratio. Permit the Senior Debt
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Leverage Ratio at any time on or after the Notes Issuance Date to
be greater than 2.0 to 1.0.
(o) Exhibit B to the Credit Agreement (Compliance Certificate) shall be
amended (i) to change all references to and calculations of "Leverage Ratio" in
Exhibit B to references to and calculations of the "Total Debt Leverage Ratio"
and (ii) to insert the following at the end of Schedule 2 to Exhibit B:
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V. Section 7.14(e) - Senior Debt Leverage Ratio
(calculate only after Notes Issuance Date)
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A. Consolidated Funded Indebtedness at $__________
Statement Date
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B. Lesser of (1) Indebtedness of Non-Recourse $__________
Subsidiaries and (2) $35,000,000
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C. Subordinated Indebtedness at Statement Date $__________
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D. Consolidated EBITDA $__________
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E. Portion of Consolidated EBITDA attributable to $__________
Non-Recourse Subsidiaries whose Indebtedness
is listed in Line B above
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F. Senior Debt Leverage Ratio = $__________
(A - B - C))(D - E):
Maximum Permitted: 2.0 to 1.0
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G. Compliance? (Is F # 2.0?) __________
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(p) The attached Exhibits H-1 and H-2 shall be added as Exhibits H-1
and H-2 to the Credit Agreement and included in the table of contents of
Exhibits to the Credit Agreement.
Section 3. Representations and Warranties of the Borrower. The
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Borrower represents and warrants to the Administrative Agent and the Lenders
that:
(a) the representations and warranties set forth in the Credit
Agreement and in the other Loan Documents are true and correct in all material
respects as of the date of this Agreement;
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(b) (i) the execution, delivery and performance of this Agreement are
within the corporate power and authority of the Borrower and have been duly
authorized by appropriate proceedings and (ii) this Agreement constitutes a
legal, valid, and binding obligation of the Borrower, enforceable in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the rights of creditors
generally and general principles of equity; and
(c) as of the effectiveness of this Agreement, no Default or Event of
Default has occurred and is continuing.
Section 4. Representations and Warranties of Administrative Agent and
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Lenders. The Administrative Agent and the Lenders (a) make no representation or
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warranty and assume no responsibility with respect to any statements,
warranties, or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency,
or value of the Credit Agreement, the Loan Documents, or any other instrument or
document furnished pursuant thereto, and (b) make no representation or warranty
and assume no responsibility with respect to the financial condition of the
Borrower or any other Person or the performance or observance by such Persons of
any of their obligations under the Loan Documents, or any other instrument or
document furnished pursuant thereto
Section 5. Representations, Warranties, Covenants, and Agreements of
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SunTrust. SunTrust (a) confirms that it has received a copy of the Credit
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Agreement and the other Loan Documents, together with copies of the financial
statements referred to in the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Agreement and become a Lender party to the Credit
Agreement; (b)agrees that it will, independently and without reliance upon the
Administrative Agent or any Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents; (c) appoints
or authorizes the Administrative Agent to take such action on its behalf and to
exercise such powers under the Loan Documents as are delegated by the terms
thereof, together with such powers as are reasonably incidental thereto; (d)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender; (e) specifies as its lending office (and address
for notices) the office set forth beneath its name on the signature pages
hereof; and (f) attaches a completed administrative questionnaire hereto
Section 6. Effectiveness. This Agreement shall become effective as of
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the date of this Agreement, and the Credit Agreement shall be amended as
provided in this Agreement, upon the occurrence of the following conditions
precedent:
(a) the Borrower shall have delivered duly and validly executed
originals of this Agreement to the Administrative Agent, and the Administrative
Agent and all the Lenders listed on the attached Schedule 2.01 shall have
executed and delivered this Agreement;
(b) the Borrower shall have delivered to the Administrative Agent duly
and validly executed original Committed Loan Notes payable to the order of each
Lender whose Commitment is increased by this Amendment, in the amounts of such
increased Commitments;
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(c) the representations and warranties in this Agreement shall be true
and correct in all material respects;
(d) the Administrative Agent shall have received a duly executed
reaffirmation of each Guaranty by a Subsidiary of the Borrower in form and
substance satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received a favorable
opinion of counsel for the Borrower in form and substance acceptable to the
Administrative Agent; and
(f) the Borrower shall have paid to the Administrative Agent and to
each Lender the fees and expenses payable to them pursuant to the letters dated
December 21, 2001 and February 11, 2002 from Bank of America, N.A. and Banc of
America Securities LLC, each accepted and agreed to by the Borrower, and under
any other agreement between the Borrower and the Administrative Agent.
Section 7. Effect on Loan Documents.
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(a) Except as amended herein, the Credit Agreement and the Loan
Documents remain in full force and effect as originally executed. Nothing herein
shall act as a waiver of any of the Administrative Agent's or Lenders' rights
under the Loan Documents, as amended, including the waiver of any Default or
Event of Default, however denominated.
(b) This Agreement is a Loan Document for the purposes of the
provisions of the other Loan Documents. Without limiting the foregoing, any
breach of representations, warranties, and covenants under this Agreement may be
a Default or Event of Default under other Loan Documents.
Section 8. Choice of Law. This Agreement shall be governed by and
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construed and enforced in accordance with the laws of the State of Texas.
Section 9. Counterparts. This Agreement may be signed in any number
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of counterparts, each of which shall be an original.
[The remainder of this page has been left blank intentionally.]
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EXECUTED to be effective as of the date first above written.
XXXXXX'X RESTAURANTS, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
BANK OF AMERICA, N.A., as
Administrative Agent
By:_________________________________
Name:
Title:
LENDERS:
BANK OF AMERICA, N.A.
By:_________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:_________________________________
Name:_______________________________
Title:______________________________
