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EXHIBIT 10.46
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS AGREEMENT (this "Amendment") is dated as of September 30, 1999 by and
among JERRY'S FAMOUS DELI, INC. (the "Parent"); JFD, INC., a California
corporation, NATIONAL DELI CORPORATION, a Florida corporation, and JERRY'S
FAMOUS DELI L.A., INC., a California corporation (the "Subsidiaries" and,
together with the Parent, the "Borrowers"); BANKBOSTON, N.A., a national banking
association, as a "Lender" under the Credit Agreement referred to below
(together with its successors and assigns as Lenders, the "Lenders"); and
BANKBOSTON, N.A., a national banking association, as agent for the Lenders (the
"Agent").
RECITALS
A. The Borrowers, the Lenders and the Agent are parties to a Credit
Agreement dated as of September 11, 1998 (as the same may be amended, restated,
renewed, replaced, supplemented or otherwise modified from time to time, the
"Credit Agreement"). Capitalized terms used herein without definition have the
meanings assigned to them in the Credit Agreement.
B. The Borrowers have requested an amendment to the amortization schedule
for Term Loans and amendments to certain financial covenant levels.
C. The Agent and the Lenders are willing to agree to the same, subject to
the terms and conditions thereof.
NOW THEREFORE, for good and valuable consideration hereinafter set forth,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
A. AMENDMENTS TO CREDIT AGREEMENT.
1. SCHEDULED PAYMENTS OF TERM LOANS. Section 2.2(b) of the Credit
Agreement is revised to read in its entirety as follows:
"(b) Scheduled Repayments of Term Loans. The Borrowers shall pay
jointly and severally to the Agent for the account of the Lenders
principal of the Term Loans in 17 consecutive quarterly installments in
the amounts set forth below, payable on each Quarterly Date falling during
the periods set forth below, commencing on June 30, 1999:
Period Amount
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June 30, 1999 - September 30, 1999 $585,000
December 31, 1999 - June 30, 2003 $380,000
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All remaining principal, interest and other amounts payable in respect
of the Term Loans will, if not sooner paid, become due and payable on the
Term Loan Maturity Date."
2. LEVERAGE RATIO. Section 5.1 of the Credit Agreement is revised to read
in its entirety as follows:
"5.1 MAXIMUM LEVERAGE RATIO. The ratio of Consolidated Funded
Indebtedness at any time through June 30, 1999 to Consolidated EBITDA for
the most recently ended Reference Period to be greater than 3.25:1:00 and
the ratio of Consolidated Funded Indebtedness at any time on or after
September 30, 1999 to Consolidated EBITDA for the most recently ended
Reference Period to be greater than 2.50:1.00."
2. FIXED CHARGE COVERAGE. Section 5.2 of the Credit Agreement is revised
to read in its entirety as follows:
"5.2 MINIMUM FIXED CHARGES COVERAGE RATIO. The ratio of Consolidated
Cash Flow for any Reference Period ending on any Quarterly Date falling
during any period identified in the table below to Consolidated Financial
Obligations for such Reference Period to be less than the ratio specified
below opposite such period:
Minimum Fixed
Period Charges Coverage Ratio
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September 30, 1998 - June 30, 1999 1.50:1.00
September 30, 1999 and all Quarterly Dates thereafter 1.05:1.00"
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4. INTEREST COVERAGE. Section 5.3 of the Credit Agreement is revised to
read in its entirety as follows:
"5.3 MINIMUM INTEREST COVERAGE RATIO. The ratio of Consolidated EBITDA
for any Reference Period ending on any Quarterly Date falling during any
period identified in the table below to Consolidated Interest Expense for
such Reference Period to be less than the ratio specified below opposite
such period.
Minimum Interest
Period Coverage Ratio
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September 30, 1998 - March 31, 2000 3.75:1.00
June 30, 2000 - September 30, 2000 4.25:1.00
December 31, 2000 and all Quarterly Dates thereafter 4.50:1.00"
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5. APPLICABLE MARGIN. Notwithstanding Section 2.3(c) of the Credit
Agreement, the Applicable Margin from the date of this Agreement until the next
Interest Adjustment Date (beginning with the financial statements for the fiscal
quarter ending December 31, 1999) for Revolving Loans, Term Loans and the
Commitment Fees shall be based upon the Level IV Applicable Margins set forth in
Section 2.3(c) (subject to a higher default rate during the existence of any
Event of Default as set forth in Section 2.3(d)).
B. NO FURTHER AMENDMENTS. Except as amended hereby and as previously
amended in writing, the Credit Agreement and all other Loan Documents shall
remain unchanged and in full force and effect.
C. CONFIRMATION OF SECURITY. All Security Documents heretofore executed
by the Borrowers and each of them shall remain in full force and effect and, by
the Borrowers' signature hereto, such Security Documents are hereby ratified and
affirmed in all respects.
D. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. The Borrowers hereby
jointly and severally represent and warrant to, and agrees with, the Agent and
the Lenders that:
1. The execution and delivery of, and performance by the Borrowers of
their respective obligations under, this Amendment have been duly authorized by
all requisite corporate and member action and will not violate any provision of
law, any order, judgment or decree of any court or other agency of government,
including without limitation the certificate of formation, operating agreement
of any Borrower that is a limited liability company, the charter documents or
by-laws of any corporate Borrower, or any material indenture, agreement or other
instrument to which any Borrower is a party, or by which any Borrower is bound,
or be in conflict with, result in a breach of, or constitute (with due notice or
lapse of time or both) a default under, or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of any Borrower pursuant to, any such indenture, agreement
or instrument.
2. The Borrowers have delivered to the Agent true and complete copies of
all such corporate, membership and other resolutions as were necessary to
authorize the execution, delivery and performance of this Amendment by the
Borrowers, each certified by the appropriate secretary or other officer. This
Amendment constitutes the valid and binding obligation of the Borrowers,
enforceable against them in accordance with it terms, subject, however to
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the rights and remedies of creditors generally or the application of principles
of equity, whether in any action in law or proceeding in equity, and subject to
the availability of the remedy of specific performance or of any other equitable
remedy or relief to enforce any right under any such agreement.
3. The Borrowers are not required to obtain any consent, approval or
authorization from, or to file any declaration or statement with, any
governmental instrumentality or other agency or any other person or entity in
connection with or as a condition to the execution, delivery or performance of
this Amendment.
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4. As of the date hereof and after giving effect to this Amendment, no
Default has occurred and is continuing.
E. MISCELLANEOUS.
1. As provided in the Credit Agreement and Security Documents, the
Borrowers jointly and severally agree to reimburse the Agent upon demand for
all reasonable fees and disbursements of counsel to the Agent incurred in
connection with the preparation of this Amendment.
2. This Amendment shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
3. This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate
counterparts hereof, all of which counterparts together constitute one and the
same agreement.
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IN WITNESS WHEREOF, the Agent, the Lenders and the Borrowers have caused
this Amendment to be duly executed as a sealed instrument by their duly
authorized representatives, all as of the day and year first above written.
AGENT: LENDER:
BANKBOSTON, N.A., as Agent BANKBOSTON, N.A.
By: [SIGNATURE ILLEGIBLE] By: [SIGNATURE ILLEGIBLE]
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Title: Title:
BORROWERS:
JERRY'S FAMOUS DELI, INC. NATIONAL DELI CORPORATION
By: [SIGNATURE ILLEGIBLE] By: [SIGNATURE ILLEGIBLE]
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Title: Title:
JFD, INC. JERRY'S FAMOUS DELI L.A., INC.
By: [SIGNATURE ILLEGIBLE] By: [SIGNATURE ILLEGIBLE]
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Title: Title:
