Exhibit 10(a)
EXECUTION COPY
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as of
the 4th day of February, 2004, by and among XXXXXX RESTAURANTS, INC. (the
"Borrower"), WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent and as
a Bank (the "Agent"), and the banks listed on the signature pages to this
Amendment (collectively referred to herein as the "Banks").
R E C I T A L S:
The Borrower, the Agent and the Banks have entered into a certain Credit
Agreement dated as of October 17, 2003 (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 Agent and the Banks amend the Credit
Agreement upon the terms and conditions hereinafter set forth.
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 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. Amendment. The Credit Agreement is hereby amended as set forth
in this Section 2.
SECTION 2.1 Amendment to Section 9.12. Section 9.12 is hereby amended and
restated in its entirety to read as follows:
SECTION 9.12. Governing Law. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT
OF LAWS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK.
SECTION 2.2 Amendment to Section 9.16. Section 9.16 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
SECTION 9.16 Jurisdiction, Etc.; Waiver of Jury Trial. (a) Each of the
parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, the Notes or the other Loan
Documents to which it is a party, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or,
to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement, the Notes or the other
Loan Documents to which it is a party in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement, the
Notes or the other Loan Documents to which it is a party in any New York
State or federal court. Each of the parties hereto irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
(c) Each of the Borrower, the Administrative Agent and the Banks
hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement, the Notes or the other Loan
Documents to which it is a party or the actions of the Administrative Agent
or any Bank in the negotiation, administration, performance or enforcement
thereof.
SECTION 3. Conditions to Effectiveness. The effectiveness of this Amendment
is subject to, and this Amendment shall become effective upon satisfaction of,
the following conditions:
(a) receipt by the Agent from each of the parties hereto of a duly
executed counterpart of this Amendment signed by the Borrower and the
Required Banks; and
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(b) the fact that the representations and warranties of the Borrower
contained in Article IV of the Credit Agreement and in 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 nor impair any rights, powers or
remedies under the Credit Agreement as hereby amended. The Banks and the 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 has occurred and is
continuing unwaived by the Banks on the date hereof.
(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 it in accordance with its terms, provided that such
enforceability is subject to general principles of equity.
(d) The execution and delivery of this Amendment and the performance
of the Borrower 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 articles of incorporation or bylaws of the Borrower, or
the provision of any statute, or any judgment, order or indenture,
instrument, agreement or undertaking, to which the Borrower is party or by
which the assets or properties of the Borrower 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.
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SECTION 7. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
4
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.
BORROWER:
XXXXXX RESTAURANTS, INC.
By:/s/ X.X. Xxxxx, III
-------------------------------
Name: Xxxxxxx X. Xxxxx, III
Title: Vice President & Treasurer
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Signature Page of
First Amendment to Credit Agreement
Page 1 of 10
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as a Bank
By:/s/ Xxxxx X. Xxxxxxx, III
-----------------------------
Name: Xxxxx X. Xxxxxxx, III
Title: Director
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Signature Page of
First Amendment to Credit Agreement
Page 2 of 10
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
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Signature Page of
First Amendment to Credit Agreement
Page 3 of 10
SUNTRUST BANK
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
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Signature Page of
First Amendment to Credit Agreement
Page 4 of 10
COMERICA BANK
By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
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Signature Page of
First Amendment to Credit Agreement
Page 5 of 10
FIFTH THIRD BANK
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
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Signature Page of
First Amendment to Credit Agreement
Page 6 of 10
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Alex Indichandy
-----------------------------
Name: Alex Indichandy
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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Signature Page of
First Amendment to Credit Agreement
Page 7 of 10
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
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Signature Page of
First Amendment to Credit Agreement
Page 8 of 10
CITIBANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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Signature Page of
First Amendment to Credit Agreement
Page 9 of 10
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Ottaro
------------------------------------
Name: Xxxxxxx X. Ottaro
Title: Director
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Signature Page of
First Amendment to Credit Agreement
Page 10 of 10
