Exhibit 10(b)
[Execution copy]
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as of
the 26th day of July, 2002, by and among XXXXXX RESTAURANTS, INC., a Florida
corporation (the "Borrower"), the BANKS listed on the signature pages hereof
(collectively referred to herein as the "Banks") and WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent and as a Bank.
R E C I T A L S:
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The Borrower, the Administrative Agent and the Banks have entered into a
certain Credit Agreement dated as of October 29, 1999 (the "Credit Agreement").
Capitalized terms used in this Amendment which are not otherwise defined in this
Amendment shall have the respective meanings assigned to them in the Credit
Agreement.
The Borrower has requested that the Administrative Agent and the Banks
amend the Credit Agreement to permit Borrowings without the Borrower making the
representations and warranties contained in Sections 4.08, 4.12(b) and 4.15 of
the Credit Agreement, provided that (i) the Borrower fully satisfies all of the
remaining conditions precedent set forth in Section 3.02 of the Credit
Agreement, (ii) the principal amount of all outstanding Loans under the Credit
Agreement shall bear interest at the Default Rate until the Borrower is able to
certify compliance with subsections (b) and (c) of Section 3.02 of the Credit
Agreement, including making the representations and warranties contained in
Sections 4.08, 4.12(b) and 4.15, and (iii) to make other such changes as the
parties hereunder deem appropriate.
NOW, THEREFORE, in consideration of the Recitals and the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Administrative
Agent and the Banks, intending to be legally bound hereby, agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by reference
and shall be deemed to be a part of this Amendment.
SECTION 2. Amendments. The Credit Agreement is hereby amended as set
forth in this Section 2.
SECTION 2.1. Amendment to Section 2.06. Section 2.06 of the Credit
Agreement is hereby amended by adding a sentence at the end of subsection (g) to
read as follows:
In the event that the Borrower makes a request for a Syndicated Borrowing
without making the representations and warranties contained in Sections 4.08,
4.12(b) and 4.15 as provided in the last sentence of Section 3.02, the principal
amount of all Loans made hereunder shall thereafter bear interest at the Default
Rate until such time as the Borrower is able to certify compliance with
subsections (b) and (c) of Section 3.02 of the Credit Agreement, including
making the representations and warranties contained in Sections 4.08, 4.12(b)
and 4.15.
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SECTION 2.2. Amendment to subsection (c) of Section 3.02. Section 3.02 of
the Credit Agreement is hereby amended by deleting subsection (c) in its
entirety and inserting in place thereof the following:
(c) the fact that the representations and warranties of the Borrower
contained in Article IV of this Agreement shall be true on and as of
the date of such Borrowing; provided that the representations and
warranties set forth in Sections 4.08, 4.12(b) and 4.15 need not be
true and correct as a condition to any Borrowing; and
SECTION 2.3. Amendment to the Last Sentence of Section 3.02. The last
sentence of Section 3.02 of the Credit Agreement is hereby amended by adding a
proviso to the end of the sentence to read as follows:
; provided, further, that such a Borrowing shall not be deemed to be such a
representation and warranty to the effect set forth in Sections 4.08,
4.12(b) and 4.15 unless the Borrower provides the Administrative Agent
written notice that it is making such representations and warranties in
connection with such Borrowing.
SECTION 3. Conditions to Effectiveness. The effectiveness of this
Amendment and the obligations of the Banks hereunder are subject to the
following conditions, unless the Banks waive such conditions:
(a) receipt by the Administrative Agent from each of the Borrower and the
Required Banks of either (i) a duly executed counterpart of this Amendment
signed by such party or (ii) a facsimile transmission stating that such party
has duly executed a counterpart of this Amendment and sent such counterpart to
the Administrative Agent; and
(b) the fact that the representations and warranties of the Borrower
contained in Article IV of the Credit Agreement and Section 5 of this Amendment
shall be true on and as of the date hereof.
SECTION 4. No Other Amendment. Except for the amendments set forth
above, the text of the Credit Agreement shall remain unchanged and in full force
and effect. This Amendment is not intended to effect, nor shall it be construed
as, a novation. The Credit Agreement and this Amendment shall be construed
together as a single agreement. Nothing herein contained shall waive, annul,
vary or affect any provision, condition, covenant or agreement contained in the
Credit Agreement, except as herein amended, nor affect or impair any rights,
powers or remedies under the Credit Agreement as hereby amended. The Banks and
the Administrative Agent do hereby reserve all of their rights and remedies
against all parties who may be or may hereafter become secondarily liable for
the repayment of the Notes. The Borrower promises and agrees to perform all of
the requirements, conditions, agreements and obligations under the terms of the
Credit Agreement, as heretofore and hereby amended, the Credit Agreement, as
amended, being hereby ratified and affirmed. The Borrower hereby expressly
agrees that the Credit Agreement, as amended, is in full force and effect.
SECTION 5. Representations and Warranties. The Borrower hereby represents
and warrants to each of the Banks as follows:
(a) No Default under the Credit Agreement or any other Loan Document has
occurred and is continuing on the date hereof.
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(b) The Borrower has the power and authority to enter into this Amendment
and to do all acts and things as are required or contemplated hereunder to be
done, observed and performed by it.
(c) This Amendment has been duly authorized, validly executed and delivered
by one or more authorized officers of the Borrower and constitutes a legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, provided that such enforceability is subject to
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors
rights generally, and general principles of equity.
(d) The execution and delivery of this Amendment and the Borrower's
performance hereunder do not and will not require the consent or approval of any
regulatory authority or governmental authority or agency having jurisdiction
over the Borrower, nor be in contravention of or in conflict with the
certificate of incorporation or bylaws of the Borrower, or the provision of any
statute, or any judgment, order, indenture, instrument, agreement or
undertaking, to which the Borrower is party or by which the Borrower's assets or
properties are or may become bound.
SECTION 6. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 7. Governing Law. This Amendment shall be construed in accordance
with and governed by the law of the State of Georgia.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered, or have
caused their respective duly authorized officers or representatives to execute
and deliver, this Amendment as of the day and year first above written.
XXXXXX RESTAURANTS, INC.
By: /s/ Xxxxxxxx Xxxx, Xx.
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Title: EVP, Chief Financial Officer
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
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XXXXXXXX XXXX, XXXXXXX XXXXXXX, N.A. as
Syndication Agent and as a Bank
By: /s/ Xxxxx X. Xxxxx
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Title: Director
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BANK OF AMERICA, N.A., as Co-Agent
and as a Bank
By: /s/ Chitt Swamidasan
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Title: Principal
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FLEET NATIONAL BANK
By:/s/ Xxxx X. Xxx
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Title: Vice President
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XXXXX FARGO BANK, N.A.
By:/s/ Xxxxxxx X. Daily
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Title: Vice President
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COMERICA BANK
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Title: Vice President
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