Exhibit 10.35(c)
THIRD AMENDMENT TO CREDIT AGREEMENT
AND
FIRST AMENDMENT TO PROMISSORY NOTE
This Third Amendment to Credit Agreement and First Amendment to Promissory
Note (this "Amendment") is entered into by between MAIN STREET AND MAIN
INCORPORATED ("Borrower") and IMPERIAL BANK ("Bank") as of this July 5, 2001 at
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RECITALS
This Modification is entered into upon the basis of the following facts and
understandings of the parties, which facts and understandings are acknowledged
by the parties to be true and accurate:
Bank and Borrower previously entered into a Credit Agreement dated April 2,
1999, which was subsequently modified pursuant to that certain First Amendment
and certain Second Amendment. The Credit Agreement and each amendment shall
collectively be referred to herein as the "Agreement.
Pursuant to the Agreement the Borrower executed Promissory Note in the
original principal amount of $5,000,000 in favor of Bank dated July 13, 2000
(the "Note")
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as set forth
below.
AGREEMENT
1. INCORPORATION BY REFERENCE. The Recitals and the documents referred to
therein are incorporated herein by this reference. Except as otherwise noted,
the terms not defined herein shall have the meaning set forth in the Agreement.
2. AMENDMENTS TO THE AGREEMENT. Subject to the satisfaction of the
conditions precedent as set forth in Section 3 hereof, the Agreement is hereby
amended as set forth below.
A. Section 1.01 (a) of the Agreement is amended by deleting the date
"July 15, 2001" therefrom and substituting the date "July 15, 2002"
therefore.
B. Section 1.02 of the Agreement is amended by deleting the term "one
half of one percent (.50%)" therefrom and substituting the term "one
quarter of one percent (.25%)" therefore.
C. Section 4.05 of the Agreement is amended by deleting the figure
"Twenty Seven Million Dollars ($27,000,000) therefrom and substituting the
term "Thirty Five Million Dollars ($35,000,000) therefore.
D. Section 4.06 of the Agreement is amended and restated in full to
read as follows:
"4.06 FIXED CHARGE COVERAGE RATIO. Maintain at all times a
consolidated Fixed Charge Coverage Ratio of not less than 1.35 to 1.00.
Fixed Charge Coverage Ratio shall mean the following on a consolidated
basis:
net income (after cash taxes paid), plus/minus non-cash expenses
paid/income, plus third party rent expense, plus interest expense
minus
Distributions and/or dividends, and or loan advances or other advances
to third parties
divided by
scheduled principal payments of long term debt and capital leases, plus
interest expense, plus rent expense. Long term debt shall mean those debts
or renewals or extensions thereof whose original terms exceed one (1) year.
Distributions and loan advances shall mean and refer to any and all
distributions and loan advances,
The Fixed Charge Coverage Ratio shall be computed on a rolling twelve (12)
month basis,
E. The following Section 4.18 is hereby added to the Agreement:
4.18 ADJUSTED SENIOR FUNDED DEBT TO EBITDA. Maintain at all times a
consolidated ratio of Adjusted Senior Funded Debt to EBITDA of not more
than 4.00 to 1.00.
Adjusted Senior Funded Debt shall mean:
Senior Funded Debt MINUS New Unit Adjustments
divided by
EBITDA
Senior Funded Debt shall mean:
All liabilities of whatever nature or duration consisting of
indebtedness for borrowed money or indebtedness (including obligations
under capital leases), plus letter of credit obligations.
New Unit shall mean a unit that has been in operation by Borrower for
less than 12 months.
New Unit Adjustments shall mean to the adjustment calculated as
follows:
[1-(the number of full months such New Unit has been in operations
divided by 12)] times total Senior Debt for such New Unit.
EBITDA shall mean on a consolidated basis the sum of consolidated net
income plus interest expense, plus accrued federal and state income taxes,
plus depreciation and amortization expense minus capital gains plus capital
losses.
F. section 5.02 of the Agreement is amended and restated in full to
read as follows:
5.02 Intentionally Left Bank.
G. Section 5.03 of the Agreement is amended and restated in full to
read as follows:
5.03 Intentionally Left Bank.
H. Section 5.04 is amended by adding the following after the term
Redfish America, L.L.C.:
"and Bamboo Club Inc. "Amendment to Note.
A. The Maturity of the Note is amended by deleting the date "July 15,
2001" therefrom and substituting the date "July 15, 2002" therefore.
B. The date "July 15, 2001" contained in the Section entitled
"Payment" is hereby deleted and the date "July 15, 2002" substituted
therefore.
4. LEGAL EFFECT. Except as specifically set forth in this Modification, al1
of the terms and conditions of the Agreement and Note remain in full force and
effect. The effectiveness of this Amendment is conditioned upon receipt by Bank
of this Amendment and any other documents which Bank may require to carry out
the terms hereof, including but not limited to the following:
(a) this Amendment, duly executed by Borrower;
(b) such other documents, and completion of such other matters, as Bank may
reasonably deem necessary or appropriate.
5. INTEGRATION. This is an integrated Modification and supersedes all prior
negotiations and agreements regarding the subject matter hereof. All amendments
hereto must be in writing and signed by the parties.
IN WITNESS WHEREOF, the parties have agreed as of the date first set forth
above.
MAIN STREET AND MAIN INCORPORATED IMPERIAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chief Executive Officer ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
