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Exhibit 10.1
AMENDMENT NO. 1
TO REVOLVING CREDIT AGREEMENT
This Amendment No. 1 (this "Amendment"), dated as of March 27, 1998, amends
that certain Revolving Credit Agreement (as amended, the "Credit Agreement"),
dated as of December 22, 1997, by and among Xxxxxxx Family Restaurants, L.P., a
Delaware limited partnership (the "Borrower"), The Restaurant Company, a
Delaware corporation ("TRC"), Xxxxxxx Restaurants, Inc., a Minnesota corporation
("PRI"), Xxxxxxx Management Company, Inc., a Delaware corporation ("PMC") and
Xxxxxxx Finance Corp., a Delaware corporation (together with TRC, PRI and PMC,
the "Guarantors"), BankBoston, N.A. ("BKB"), a national banking association, and
the other lending institutions listed on Schedule 1 thereto (the "Banks"), BKB,
as agent and administrative agent (the "Agent"), and NationsBank, N.A., as
Syndication Agent. Capitalized terms used and not defined in this Amendment
shall have the meanings ascribed thereto in the Credit Agreement.
WHEREAS, the Borrower and the Guarantors have requested that the Banks and
the Agent agree to amend certain of the terms of the Credit Agreement;
WHEREAS, the Banks and the Agent have agreed to amend certain of the terms
of the Credit Agreement upon the conditions set forth herein; and
NOW, THEREFORE, in consideration of the foregoing premises, the parties
hereby agree as follows:
SS.1. AMENDMENTS TO CREDIT AGREEMENT.
SS.1.1 APPLICABLE MARGIN. The definition of "Applicable Margin" set forth
in Section 1.1 of the Credit Agreement is hereby amended by deleting the table
set forth in such definition and substituting in lieu thereof the following
table:
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BASE RATE EURODOLLAR RATE LOANS
LEVEL LEVERAGE RATIO LOANS AND LETTERS OF CREDIT
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I < 2.75:1 0% 1.50%
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II > 2.75:1 and <3.50:1 0.50% 2.00%
-
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III > 3.50:1 1.00% 2.50%
-
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SS.1.2 SECURITY OF BORROWER. Section 7.1 of the Credit Agreement is hereby
amended by deleting the proviso commencing in the seventh line thereof and
substituting in lieu thereof the following new text:
"provided that the Borrower shall not be required to grant a mortgage or
deed of trust with respect to any fee-owned or leased Real Estate located
in Florida, whether presently owned or leased or hereafter acquired or
leased."
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SS.1.3 ADDITIONAL MORTGAGED PROPERTY. Section 9.13 of the Credit Agreement
is hereby amended by deleting paragraph (c) thereto and substituting in lieu
thereof the following new paragraph (c):
(c) Notwithstanding the provisions of this Section 9.13, the parties
hereto agree that the Borrower shall not be required to deliver to the
Agent mortgages or deeds of trust with respect to any owned or leased Real
Estate located in Florida, whether presently owned or leased or hereafter
acquired or leased.
SS.1.4 RESTRICTIONS ON INDEBTEDNESS.
(a) Section 10.1(e) of the Credit Agreement is hereby amended by deleting
the amount "$10,000,000" set forth therein and substituting in lieu thereof the
amount "$15,000,000".
(b) Section 10.1(j) of the Credit Agreement is hereby amended by deleting
the amount "$10,000,000" set forth therein and substituting in lieu thereof the
amount "$15,000,000".
(c) Section 10.1(m) of the Credit Agreement is hereby amended by deleting
the amount "$10,000,000" set forth therein and substituting in lieu thereof the
amount "$15,000,000".
SS.1.5 DISTRIBUTIONS. The Credit Agreement is hereby amended by deleting
Section 10.4 thereto in its entirety and substituting in lieu thereof the
following new Section 10.4:
10.4 DISTRIBUTIONS. The Borrower will not, and will not permit any of
its Subsidiaries to, make any Distributions, other than:
(i) if no Default or Event of Default then exists, and none would
result from the making of any such Distributions, Subsidiaries of the
Borrower may make Distributions to the Borrower and pro rata to each
other holder of such Subsidiary's Equity Interests, if any;
(ii) the Borrower may make Distributions to each holder of its
Equity Interests in an aggregate amount in any one fiscal year not to
exceed an amount sufficient to pay such holder's estimated federal,
state and local income taxes on such holder's respective share of the
taxable income of the Borrower for such fiscal year and for any prior
fiscal year that is the subject of an adjustment as a result of an
audit by tax authorities;
(iii) if no Default or Event of Default then exists or would
result from the making of any such Distribution and if no "Default" or
"Event of Default" under, and as defined in, the Senior Indenture,
then exists or would result under the Senior Indebtedness from the
making of such Distribution, the Borrower may
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make Distributions in an aggregate amount for all such Distributions
made after the Closing Date not to exceed 50% of positive Consolidated
Net Income of the Borrower and its Subsidiaries after Tax
Distributions for the period (taken as one accounting period) from the
beginning of the first fiscal quarter of the Borrower commencing after
the Closing Date (the "Measurement Date") to the end of the Borrower's
most recently ended fiscal quarter for which internal financial
statements are available at the time of such Distribution; and
(iv) if no Default or Event of Default then exists or would
result from the making of any such Distribution, the Borrower may make
additional Distributions in an aggregate amount for all such
Distributions made after the Closing Date not to exceed $5,000,000.
The Borrower shall not permit any of its Subsidiaries to enter into or
become bound by any agreement or instrument which limits or restricts the
ability of such Subsidiary to make Distributions to the Borrower.
SS.1.6 MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS. Section 10.5(c) of
the Credit Agreement is hereby amended by deleting the amount "$10,000,000" set
forth therein and substituting in lieu thereof the amount "$15,000,000".
SS.2. REPRESENTATIONS AND WARRANTIES. The Borrower and each of the
Guarantors jointly and severally represent and warrant to the Banks and the
Agent as follows:
(a) Representations and Warranties in Credit Agreement. The representations
and warranties of the Borrower and the Guarantors contained in the Credit
Agreement, each as amended by this Amendment, (a) were true and correct in all
material respects when made, and (b) except to the extent such representations
and warranties by their terms are made solely as of a prior date, continue to be
true and correct in all material respects on the date hereof.
(b) Authority, Etc. The execution and delivery by the Borrower and the each
of the Guarantors of this Amendment and the performance by the Borrower and each
of the Guarantors of all of their agreements and obligations under this
Amendment and the Credit Agreement as amended hereby (i) are within the
partnership or corporate authority of each of the Borrower and each of the
Guarantors, (ii) have been duly authorized by all necessary partnership or
corporate proceedings by the Borrower and each of the Guarantors, (iii) do not
conflict with or result in any breach or contravention of any provision of law,
statute, rule or regulation to which the Borrower or any of the Guarantors is
subject or any judgment, order, writ, injunction, license or permit applicable
to the Borrower or any of the Guarantors, and (iv) do not conflict with any
provision of the Partnership Documents or any corporate charter or by-laws of,
or any agreement or other instrument binding upon, the Borrower or any
Guarantor.
(c) Enforceability of Obligations. This Amendment, and the Credit Agreement
as amended hereby, constitute the legal, valid and binding obligations of the
Borrower and each of the Guarantors enforceable against each such Person in
accordance with their respective terms.
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Immediately prior to and immediately after and after giving effect to this
Amendment, no Default or Event of Default exists under the Credit Agreement or
any other Loan Document.
SS.3. AFFIRMATION OF BORROWER AND THE GUARANTORS.
(a) The Borrower hereby affirms its absolute and unconditional promise to
pay to each Bank and the Agent the Obligations due under the Notes, the Credit
Agreement as amended hereby, and the other Loan Documents, at the times and in
the amounts provided for therein. The Borrower confirms and agrees that (i) the
Obligations of the Borrower to the Banks and the Agent under the Credit
Agreement as amended hereby are secured by and entitled to the benefits of the
Security Documents and (ii) all references to the term "Credit Agreement" in the
Security Documents shall hereafter refer to the Credit Agreement as amended
hereby.
(b) Each of the Guarantors hereby acknowledges that it has read and is
aware of the provisions of this Amendment. Each of the Guarantors hereby
reaffirms its absolute and unconditional guaranty of the Borrower's payment and
performance of the Obligations to the Banks and the Agent under the Credit
Agreement, as amended hereby. Each of the Guarantors hereby confirms and agrees
that the Guaranty shall hereafter constitute a guaranty of the Obligations under
the Credit Agreement as amended hereby.
SS.4. CONDITIONS TO EFFECTIVENESS. This Amendment shall be effective as of
the date hereof upon the Agent's receipt of an original counterpart signature to
this Amendment, duly executed and delivered by the Borrower, the Guarantors, the
Banks and the Agent.
SS.5. MISCELLANEOUS PROVISIONS. (a) Except as otherwise expressly provided
by this Amendment, all of the terms, conditions and provisions of the Credit
Agreement shall remain the same. It is declared and agreed by each of the
parties hereto that the Credit Agreement, as amended hereby, shall continue in
full force and effect, and that this Amendment and the Credit Agreement shall be
read and construed as one instrument.
(b) THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT UNDER SEAL
AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS.
(c) This Amendment may be executed in any number of counterparts, but all
such counterparts shall together constitute but one instrument. In making proof
of this Amendment it shall not be necessary to produce or account for more than
one counterpart signed by each party hereto by and against which enforcement
hereof is sought.
(d) Headings or captions used in this Amendment are for convenience of
reference only and shall not define or limit the provisions hereof.
(e) The Borrower hereby agrees to pay to the Agent, on demand by the Agent,
all reasonable out-of-pocket costs and expenses incurred or sustained by the
Agent in connection with the preparation of this Amendment (including reasonable
legal fees and expenses).
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment under
seal as of the date first set forth above.
XXXXXXX FAMILY RESTAURANTS, L.P.
By: Xxxxxxx Management Company, Inc.,
its General Partner
By:
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Name:
Title:
THE RESTAURANT COMPANY, as
Guarantor
By:
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Name:
Title:
XXXXXXX RESTAURANTS, INC., as
Guarantor
By:
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Name:
Title:
XXXXXXX MANAGEMENT COMPANY, INC.,
as Guarantor
By:
-----------------------------------
Name:
Title:
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XXXXXXX FINANCE CORP., as Guarantor
By:
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Name:
Title:
BANKBOSTON, N.A., individually and as
Agent
By:
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Name:
Title:
NATIONSBANK, N.A., individually and as
Syndication Agent
By:
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Name:
Title:
BANK OF AMERICA, FSB
By:
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Name:
Title:
FIRST AMERICAN NATIONAL BANK
By:
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Name:
Title:
SANWA BUSINESS CREDIT
CORPORATION
By:
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Name:
Title:
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XXXXXXX BANK, N.A.
By:
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Name:
Title:
