MEXICAN RESTAURANTS, INC.
Exhibit
10.1
MEXICAN
RESTAURANTS, INC.
0000
Xxxxxxxxx
Xxxxxxx,
Xxxxx 00000-0000
Dated:
March 29,
0000
Xxxx
xx
Xxxxxxx, N.A.
(successor
by merger to Fleet National Bank)
000
Xxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
|
Re:
|
Amendment
No. 3 to Amended and Restated Revolving
Credit
|
and
Term
Loan Agreement
Ladies
and Gentlemen:
We
refer
to the Amended and Restated Revolving Credit and Term Loan Agreement (as
amended, the “Loan Agreement”), dated as of January 7, 2004, between Mexican
Restaurants, Inc. (the “Borrower”) and Bank of America, N.A. (successor by
merger to Fleet National Bank) (the “Lender”). All of the words and expressions
used in this letter of agreement (this “Amendment No. 3”) which are not defined
herein, but which are defined in the Loan Agreement, shall have the same
meanings herein as specified therefor in the Loan Agreement.
We
have
requested that you make certain amendments to the Loan Agreement and you have
advised us that you are prepared and would be pleased to make the amendments
requested by us, but only on the condition that we join with you in this letter
of agreement.
Accordingly,
in consideration of the premises and the promises, mutual covenants and
agreements contained in this Amendment No. 3, and fully intending to be legally
bound by this Amendment No. 3, we hereby agree with you as
follows:
ARTICLE
I
AMENDMENTS
TO LOAN AGREEMENT
Effective
as of December 31, 2006 (herein the “Modification Date”), the Loan Agreement is
amended as follows:
(a) Each
reference in any Loan Document to the Loan Agreement shall be deemed to include
this Amendment No. 3, and this Amendment No. 3 shall be deemed to be a Loan
Document for all purposes under the Loan Agreement.
(b) Section
1.18 of the Loan Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
“1.18
“Consolidated
Cash Flow”
means,
in relation to the Borrower Affiliated Group on a Consolidated basis for any
period, Consolidated EBITDAR for such period minus
(a) cash
Taxes paid during such period, minus
(b)
Consolidated Maintenance Capital Expenditures during such period, and
plus (c)
the
aggregate amount of any Restricted Payments made pursuant to Section 5.9 in
connection with vest
options purchased
directly
from the Company's former Chief Executive Officer, Xxxx Xxxxxxxx, in the fourth
quarter of fiscal year 2006.
(c) The
definition of “Revolving Credit Maturity Date” contained in Section 1.65 of the
Loan Agreement, and the fifth paragraph of the Revolving Credit Note, are each
amended: (i) by deleting the reference therein to the date “January 7, 2009”;
and (ii) by inserting in its place the following: “December 31,
2011”.
(d) Section
1.66 of the Loan Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
“1.66 “Revolving
Credit Maximum Amount”
means
Seven Million Five Hundred Thousand Dollars ($7,500,000.00).”
(e) Section
1.68 of the Loan Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
“1.68
“Revolving
Loan Commitment” means,
subject to the limitations set forth in this Agreement, Seven Million Five
Hundred Thousand Dollars ($7,500,000.00).”
(f) Notwithstanding
anything to the contrary contained in the Loan Agreement or any other Loan
Document (including, without limitation, Section 2.2 of the Loan Agreement
and the Term Note), the Term Loan and the Term Loan Commitment are each hereby
terminated and all amounts advanced under the Term Loan are hereby deemed to
be
advances under the Revolving Loan.
(g) The
table
set forth in Section 2.6 of the Loan Agreement is amended to read in its
entirety as follows:
|
Table
1
Applicable
Interest Rate Margins
|
|||
|
Level
|
Rent
Adjusted Leverage
|
Applicable
Prime Rate Margin
|
Applicable
LIBOR Margin
|
|
I
|
x<4.25x
|
0.00%
|
2.00%
|
|
II
|
4.25x<x<4.50x
|
0.50%
|
2.50%
|
|
III
|
x>4.50x
|
1.00%
|
3.00%
|
(h) Clause
(iii) of Section 5.9 of the Loan Agreement is amended: (i) by deleting the
reference to “$2,000,000” contained therein; and (ii) by inserting in its place
the following: “$2,700,000”.
(i) Section
5.16 of the Loan Agreement is deleted in its entirety and the following is
substituted in lieu hereof:
“5.16 Financial
Covenants.
5.16(a) Maximum
Rent Adjusted Consolidated Leverage Ratio. The
Borrower shall not permit the ratio of (a) Consolidated Funded Indebtedness
plus
an
amount equal to rental expense (including all, if any, percentage rent and
other
monetary obligations under each real property Lease to which any member of
the
Borrower Affiliated Group is a party) multiplied by 8 to (b) Consolidated
EBITDAR to exceed 4.75 to 1.00 as of the last day of each fiscal quarter (as
determined at the end of each such fiscal quarter for the four consecutive
fiscal quarters then ending).
5.16(b) Minimum
Consolidated Cash Flow Coverage.
The
Borrower shall not permit the ratio of (a) Consolidated Cash Flow to (b)
Consolidated Financial Obligations plus
rental
expense (including all, if any, percentage rent and other monetary obligations
under each real property Lease to which any member of the Borrower Affiliated
Group is a party) to be less than 1.25 to 1.0 as at the end of any fiscal
quarter (as determined at the end of each such fiscal quarter for the four
consecutive fiscal quarters then ending).
5.16(c) Maximum
Consolidated Capital Expenditures.
The
Borrower shall not permit the amount of Consolidated Capital Expenditures in
any
period to exceed the amount specified opposite such period in the table set
forth below; provided,
however,
that
with respect to the maximum amounts reflected in the table set forth below,
in
any given fiscal year up to 25% of the unused portion of such amount may be
carried over to the next fiscal year.
|
Period
|
Maximum
Amount
|
|
Fiscal
Year 2006
|
$
6,000,000
|
|
Fiscal
Year 2007
|
$
5,600,000
|
|
Fiscal
Year 2008
|
$
7,000,000
|
|
Fiscal
Year 2009
|
$
8,750,000
|
|
Fiscal
Year 2010
|
$10,500,000
|
|
Fiscal
Year 2011
|
$12,500,000”
|
(j) The
Amended and Restated Revolving Credit Note is amended: (i) by deleting
references to “$5,000,000.00” and “FIVE MILLION and 00/100 Dollars
($5,000,000.00)”, as applicable; (ii) by inserting in its place the following:
“$7,500,000.00” and “SEVEN MILLION FIVE HUNDRED THOUSAND and 00/100 Dollars
($7,500,000.00)”, respectively; and (iii) by extending the maturity date thereof
to December 31, 2011.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
The
Borrower hereby represents and warrants to the Lender as follows:
(a) Representations
in Loan Documents.
Each of
the representations and warranties made by or on behalf of the Borrower or
any
other member of the Borrower Affiliated Group to you in any of the Loan
Documents, as amended by this Amendment No. 3, was true and correct when made,
was true and correct on and as of the Modification Date and is true and correct
on and as of the date hereof (except to the extent that such representations
and
warranties relate expressly to an earlier date) with the same full force and
effect as if each of such representations and warranties had been made by the
Borrower or such other member of the Borrower Affiliated Group on the date
hereof and in this Amendment No. 3.
(b) Defaults.
No
Default or Event of Default exists on the date hereof.
(c) Binding
Effect of Documents.
This
Amendment No. 3 has been duly executed and delivered to you by the Borrower
and
is in full force and effect as of the date hereof, and the agreements and
obligations of the Borrower contained herein constitute the legal, valid and
binding obligations of the Borrower, enforceable against the Borrower in
accordance with its terms.
ARTICLE
III
PROVISIONS
OF GENERAL APPLICATION
(a) No
Other Changes.
Except
as otherwise expressly provided by this Amendment No. 3, all of the terms,
conditions and provisions of the Loan Agreement and the other Loan Documents
remain unaltered. The Loan Agreement and this Amendment No. 3 shall be read
and
construed as one agreement. The making of the amendments in this Amendment
No. 3
does not imply any obligation or agreement by the Lender to make any other
amendment, waiver, modification or consent as to any matter on any subsequent
occasion.
(b) Governing
Law.
This
Amendment No. 3 is intended to take effect as a sealed instrument and shall
be deemed to be a contract under the laws of the Commonwealth of Massachusetts.
This Amendment No. 3 and the rights and obligations of each of the parties
hereto are contracts under the laws of the Commonwealth of Massachusetts and
shall for all purposes be construed in accordance with and governed by the
laws
of such Commonwealth (without regard to conflicts of law rules).
(c) Binding
Effect; Assignment.
This
Amendment No. 3 shall be binding upon and inure to the benefit of each of the
parties hereto and their respective successors and assigns.
(d) Counterparts.
This
Amendment No. 3 may be executed in any number of counterparts, but all such
counterparts shall together constitute but one and the same agreement. In making
proof of this Amendment No. 3, it shall not be necessary to produce or account
for more than one counterpart hereof signed by each of the parties
hereto.
(e) Conflict
with Other Agreements.
If any
of the terms of this Amendment No. 3 shall conflict in any respect with any
of the terms of any of the Loan Documents, the terms of this Amendment No.
3
shall be controlling.
(f) Conditions
Precedent.
The
obligation of the Lender to make the foregoing amendments to the Loan Agreement
is subject to (i) the Lender having received an executed original counterpart
of
this Amendment No. 3, duly executed and delivered by the Borrower, and (ii)
the
Lender having signed this Amendment No. 3.
If
you
are in agreement with the foregoing, please sign below and deliver a signed
counterpart hereof to the undersigned, whereupon this Amendment No. 3, as so
accepted by you, shall become a binding agreement among you and the
undersigned.
Very
truly
yours,
MEXICAN
RESTAURANTS,
INC.
By:_____________________
Name:
Title:
On
behalf of, and in
his capacity as
Vice
President of,
the Borrower and each
other
member of the
Borrower Affiliated Group
ACCEPTED
AND AGREED:
BANK
OF
AMERICA, N.A.
(successor
by merger to Fleet National Bank)
By:________________________
Name:
Title:
