EXHIBIT 10.10
AMENDMENT NO. 4 TO REVOLVING CREDIT AGREEMENT
Dated as of November 15, 2001
This AMENDMENT NO. 4 TO REVOLVING CREDIT AGREEMENT, dated as of
November 15, 2001 (this "Amendment"), amends that certain Revolving Credit
Agreement, dated as of December 22, 1997 (as amended and in effect from time to
time, the "Credit Agreement"), by and among XXXXXXX FAMILY RESTAURANTS, L.P., a
Delaware limited partnership ("Perkins"), THE RESTAURANT COMPANY, a Delaware
corporation ("TRC"), XXXXXXX RESTAURANTS, INC., a Minnesota corporation
("PRI"), and XXXXXXX MANAGEMENT COMPANY, INC., a Delaware corporation ("PMC"),
and XXXXXXX FINANCE CORP., a Delaware corporation (together with TRC, PRI and
PMC, the "Original Guarantors"), FLEET NATIONAL BANK (f/k/a BankBoston, N.A.),
a national banking association and the other lending institutions listed on
Schedule 1 thereto (the "Banks"), FLEET NATIONAL BANK (f/k/a BankBoston, N.A.),
as agent and administrative agent for the Banks (the "Agent"), and BANK OF
AMERICA, N.A. (f/k/a Nationsbank, N.A.), as Syndication Agent (the "Syndication
Agent"). All capitalized terms used herein without definitions shall have the
meanings given such terms in the Credit Agreement.
WHEREAS, pursuant to the Joinder and Amendment No. 2, dated as of
December 20, 1999, by and among Perkins, the Original Guarantors, the Banks,
the Agent and the Syndication Agent, TRC joined the Credit Agreement and the
Loan Documents and agreed to become a Borrower under the Credit Agreement and
to comply with and be bound by all of the terms, conditions and covenants of
the Credit Agreement and Loan Documents applicable to it as a Borrower;
WHEREAS, as of the Merger Date, Perkins, PRI and PMC merged with and
into TRC such that TRC became the sole Borrower under the Credit Agreement (TRC
is hereinafter referred to as the "Borrower");
WHEREAS, pursuant to a Guaranty, dated as of December 20, 1999, by The
Restaurant Holding Corporation ("TRHC") in favor of the Agent and the Banks,
TRHC has guaranteed all of the Borrower's obligations to the Banks and the
Agent under or in respect of the Credit Agreement and the other Loan Documents
and became a Guarantor under the Credit Agreement;
WHEREAS, pursuant to a Guaranty, dated as of September 30, 2000, by
The Restaurant Company of Minnesota ("TRCM") in favor of the Agent and the
Banks, TRCM has guaranteed all of the Borrower's obligations to the Banks and
the Agent under or in respect of the Credit Agreement and the other Loan
Documents and became a Guarantor under the Credit Agreement;
WHEREAS, pursuant to a Guaranty, dated as of September 30, 2000, by
TRC Realty LLC ("Realty") in favor of the Agent and the Banks, Realty has
guaranteed all of the Borrower's obligations to the Banks and the Agent under
or in respect of the Credit Agreement and the other Loan Documents and became a
Guarantor under the Credit Agreement; and
WHEREAS, the parties hereto wish to amend the Credit Agreement as
provided more fully herein.
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NOW THEREFORE, in consideration of the mutual agreements contained in
the Credit Agreement and herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ss.1. AMENDMENTS TO CREDIT AGREEMENT.
ss.1.1. DEFINITIONS. Section 1.1 of the Credit Agreement is hereby
amended as follows:
(a) The definition of "Applicable Margin" set forth in ss.1.1 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Applicable Margin. For each period commencing on an
Adjustment Date through the date immediately preceding the next
Adjustment Date (each a "Rate Adjustment Period"), the Applicable
Margin with respect to Revolving Credit Loans, (for Base Rate Loans
and Eurodollar Rate Loans) and for the Letters of Credit shall be the
applicable percentage set forth below with respect to each such Loan
or Letter of Credit, as the case may be, corresponding to the
Borrower's Leverage Ratio, as determined at the end of the fiscal
quarter of the Borrower and its Subsidiaries ending immediately prior
to the applicable Rate Adjustment Period:
Eurodollar Rate Loans
Level Leverage Ratio Base Rate Loans and Letters of Credit
I < 2.75:1 0% 2.00%
II > 2.75:1 and <3.50:1 0.50% 2.50%
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III > 3.50:1 and <3.75:1 1.00% 3.00%
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IV > 3.75:1 1.50% 3.50%
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Notwithstanding the foregoing, if the Borrower fails to
deliver any Compliance Certificate pursuant to ss.9.4(d) hereof, then
for the period commencing on the first day of the month immediately
following the date such Compliance Certificate was due through the
date immediately preceding the Adjustment Date that occurs immediately
following the date on which such Compliance Certificate is delivered,
the Applicable Margin shall be that percentage corresponding to Level
IV in the table above."
(b) The definition of "Consolidated Funded Indebtedness" set
forth in ss.1.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Consolidated Funded Indebtedness. At any time, the sum of
(a) the aggregate amount of Indebtedness of the Borrower and its
Subsidiaries, on a consolidated basis, relating to the borrowing of
money or the obtaining of credit or in respect of Capitalized Leases
(including, without limitation, (i) the Discount Notes, (ii) the
accreted value of the accrued but unpaid interest on the Discount
Notes as of November 15, 2001 payable by the Borrower on May 15, 2003
in accordance with ss.6 of the Discount Notes), plus (b) without
duplication, all reimbursement obligations of such Persons in respect
of letters of credit outstanding, plus (c) without duplication, all
Indebtedness guaranteed by the Borrower or any of its Subsidiaries."
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(c) The definition of "Consolidated Net Income" set forth in
ss.1.1 of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
"Consolidated Net Income (or Deficit). The consolidated net
income (or deficit) of the Borrower and its Subsidiaries, after
deduction of all expenses, taxes, and other proper charges, but before
deduction of Tax Distributions, determined in accordance with
generally accepted accounting principles, after eliminating therefrom
any income attributable to the sale of assets by the Borrower or its
Subsidiaries outside of the ordinary course of business other than
income attributable to the sale of assets prior to October 7, 2001 (it
being understood that the provisions of this definition shall not
impair any restriction on asset sales contained herein or in any other
Loan Document)."
(d) The definition of "Consolidated Total Interest Expense" set
forth in ss.1.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Consolidated Total Interest Expense. For any period, the
remainder of (a) the aggregate amount of interest required to be paid
or accrued by the Borrower and its Subsidiaries during such period on
all Indebtedness of the Borrower and its Subsidiaries outstanding
during all or any part of such period, whether such interest was or is
required to be reflected as an item of expense or capitalized,
including payments consisting of interest in respect of Capitalized
Leases, and including commitment fees, agency fees, facility fees,
balance deficiency fees and similar fees and expenses in connection
with the borrowing of money, but excluding solely for purposes of
calculating compliance with ss.11.4 hereof for any test period which
includes any fiscal quarter ending on or prior to July 13, 2003, the
payment of the accreted value of the accrued but unpaid interest on
the Discount Notes as of November 15, 2001 payable by the Borrower on
May 15, 2003 in accordance with ss.6 of the Discount Notes, minus (b)
interest income of the Borrower and its Subsidiaries for such period,
in each case, determined on a consolidated basis for such Persons in
accordance with generally accepted accounting principles."
ss.1.2. COMMITMENT FEE. The Credit Agreement is hereby further
amended by deleting ss.2.2 in its entirety and substituting in lieu thereof the
following new ss.2.2:
"2.2. COMMITMENT FEE. The Borrower agrees to pay to the
Agent for the accounts of the Banks in accordance with their
respective Revolving Credit Commitment Percentages a commitment fee at
an annual rate equal to (a) if the Applicable Margin corresponds to
Level I, II or III in the table set forth in the definition of
"Applicable Margin", one-half of one percent (0.50%), and (b) if the
Applicable Margin corresponds to Level IV in the table set forth in
the definition of "Applicable Margin", three-quarters of one percent
(0.75%), in each case on the average daily amount during each calendar
quarter or portion thereof from the Closing Date to the Revolving
Credit Loan Maturity Date by which the Total Revolving Credit
Commitment exceeds the sum of (i) the Outstanding amount of Revolving
Credit Loans plus (ii) the Maximum Drawing Amount, plus (iii) all
Unpaid Reimbursement Obligations during such calendar quarter. The
commitment fee shall be payable quarterly in arrears on the last day
of each calendar quarter for the calendar quarter then ending,
commencing on March 31, 1998, with a final payment on the Revolving
Credit Loan Maturity Date or any earlier date on which the Revolving
Credit Commitments shall terminate."
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ss.1.3. FISCAL YEAR. The Credit Agreement is hereby further amended
by deleting ss.8.20 in its entirety and substituting in lieu thereof the
following new ss.8.20"
"8.20. FISCAL YEAR. The Borrower has a fiscal year
consisting of thirteen (13) 4-week accounting periods ending on the
last Sunday in December."
ss.1.4. FINANCIAL REPORTING. Section 9.4 of the Credit Agreement is
hereby amended by (i) deleting the text "and;" following clause (e) of such
ss.9.4, (ii) deleting the period following clause (f) of such ss.9.4, and (iii)
adding the following new clauses (g) and (h) to such ss.9.4:
"(g) as soon as practicable, but in any event not later
than forty-five (45) days after the end of each of the thirteen (13)
4-week accounting periods in each fiscal year of the Borrower, copies
of the unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such accounting period, and the related
consolidated statement of income and consolidated statement of cash
flow for the portion of the fiscal year then elapsed, all in
reasonable detail and prepared in accordance with generally accepted
accounting principles, together with a certification by the principal
financial or accounting officer of the Borrower that the information
contained in such financial statements fairly presents the financial
position of the Borrower and its Subsidiaries on the date thereof
(subject to year-end adjustments); and
(h) as soon as practicable, but in any event not later
than forty-five (45) days after the end of each of the thirteen (13)
4-week accounting periods in each fiscal year of the Borrower, a
franchisee accounts receivable aging report, in form and substance
satisfactory to the Agent."
ss.1.5. LEVERAGE RATIO. The Credit Agreement is hereby further
amended by deleting ss.11.1 of the Credit Agreement in its entirety and
substituting in lieu thereof the following new ss.11.1:
11.1. LEVERAGE RATIO. The Borrower will not permit the
Leverage Ratio, determined at the end of each fiscal quarter of the
Borrower ending during a Period set forth in the table below and
calculated on a Pro Forma Basis following a Permitted Acquisition, to
be greater than the Ratio set forth opposite such Period in such
table:
Period Ratio
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12/31/99 - 10/7/01 3.75:1
10/8/01 -- 4/21/02 4.50:1
4/22/02 - 7/14/02 4.40:1
7/15/02 -- 10/6/02 4.30:1
10/7/02 -- 12/29/02 4.20:1
12/30/02 -- 4/20/03 4.00:1
4/21/03 -- 12/28/03 3.75:1
12/29/03 -- 4/18/04 3.50:1
4/19/04 and thereafter 3.25:1
ss.1.6. CASH FLOW RATIO. The Credit Agreement is hereby further
amended by deleting ss.11.3 thereof and substituting in lieu thereof the
following new ss.11.3:
11.3. CASH FLOW RATIO. The Borrower will not permit the
Cash Flow Ratio, determined at the end of each fiscal quarter of the
Borrower ending during a Period listed in the table below
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and calculated on a Pro Forma Basis following a Permitted Acquisition,
to be less than the amount set forth opposite such Period in such
table:
Period Ratio
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Closing Date - 10/7/01 1.25:1
10/8/01 - 4/20/03 1.50:1
4/21/03 - 4/18/04 1.15:1
4/19/04 and thereafter 1.50:1
ss.1.7. INTEREST COVERAGE RATIO. The Credit Agreement is hereby
further amended by deleting ss.11.4 thereof and substituting in lieu thereof the
following new ss.11.4:
11.4. INTEREST COVERAGE RATIO. The Borrower will not
permit the Interest Coverage Ratio, determined at the end of each
fiscal quarter of the Borrower ending during a Period listed in the
table below and calculated on a Pro Forma Basis following a Permitted
Acquisition, to be less than the amount set forth opposite such Period
in such table:
Period Ratio
------ -----
12/31/99 - 12/30/01 2.50:1
12/31/01 - 12/29/02 2.25:1
12/30/02 - 12/28/03 2.50:1
12/29/03 and thereafter 2.75:1
ss.1.8. CAPITAL EXPENDITURES. The Credit Agreement is hereby further
amended by deleting ss.11.5 thereof and substituting in lieu thereof the
following new ss.11.5:
"11.5. CAPITAL EXPENDITURES. The Borrower will not make,
and will not permit any of its Subsidiaries to make, Capital
Expenditures during any fiscal year that exceed, in the aggregate, an
amount equal to the lesser of (a) Consolidated EBITDA for such fiscal
year minus Consolidated Total Interest Expense for such fiscal year
and (b) (i) for the fiscal year ending December 29, 2002, $16,000,000,
(ii) for the fiscal year ending December 28, 2003, $17,000,000, and
(iii) for the fiscal year ending December 26, 2004, $18,000,000.
Notwithstanding the foregoing and subject to the proviso set forth at
the end of this sentence, for purposes of determining compliance with
this ss.11.5 for any fiscal year, "Capital Expenditures" shall not
include Capital Expenditures made during such fiscal year with the
proceeds of any asset sale within one hundred eighty (180) days from
the date of such asset sale; provided that the aggregate amount of
Capital Expenditures so excluded shall not exceed (A) $10,000,000 for
the period from the Closing Date to the Revolving Credit Loan Maturity
Date and (B) $3,000,000 in any fiscal year."
ss.1.9. SCHEDULE 1. The Credit Agreement is hereby further amended by
deleting Schedule 1 attached thereto and substituting in lieu thereof the
Schedule 1 attached hereto.
ss.2. CONFIRMATORY WAIVER. (a) Subject to the satisfaction of the
conditions set forth in ss.7, the Agent and the Banks confirm that they will
have waived, by the consequent amendment to ss.11.4 of the Credit Agreement as
contemplated hereby, any Event of Default resulting from the Borrower's failure
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to comply with the covenant set forth in ss.11.4 of the Credit Agreement (as in
effect immediately prior to giving effect to this Amendment) for the fiscal
quarter ended October 7, 2001.
(b) The waiver referred to in ss.2(a) shall not extend to (i) any
failure of the Borrower to comply with ss.11.4 of the Credit Agreement after
giving effect to this Amendment and (ii) any other Default or Event of Default
not expressly referred to in ss.2(a).
ss.3. CONSENT. The Borrower has informed the Agent that (a)
semi-annual cash interest payments on the Discount Notes are not required to be
made pursuant to the terms of the Discount Indenture until May 15, 2003 and (b)
the Borrower intends to elect to make cash interest payments on the Discount
Notes on May 15, 2002 and November 15, 2002 (collectively, the "Interest
Payments"). Notwithstanding the limitations set forth in ss.10.12 of the Credit
Agreement which restrict the optional prepayment of Indebtedness, and subject
to the satisfaction of the conditions set forth in ss.7, the Agent, on behalf
of the Banks, hereby consents to each of the Interest Payments in accordance
with ss.10.12 of the Credit Agreement.
ss.4. AUTHORIZATION TO FILE FINANCING STATEMENTS. The Borrower and
each of the Guarantors hereby irrevocably authorizes the Agent at any time and
from time to time to file in any Uniform Commercial Code jurisdiction any
initial financing statements and amendments thereto that (a) indicate the
Collateral as described in the Security Documents and (b) contain any other
information required by part 5 of Article 9 of the Uniform Commercial Code of
the State for the sufficiency or filing office acceptance of any financing
statement or amendment, including (i) whether such Person is an organization,
the type of organization and any organizational identification number issued to
such Person and (ii) in the case of a financing statement filed as a fixture
filing or indicating Collateral as as-extracted collateral or timber to be cut,
a sufficient description of real property to which the Collateral relates. The
Borrower and each of the Guarantors agrees to furnish any such information to
the Agent promptly upon request. The Borrower and each of the Guarantors also
ratifies its authorization for the Agent to have filed in any Uniform
Commercial Code jurisdiction any like initial financing statements or
amendments thereto if filed prior to the date hereof.
ss.5. 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, (i) were true and
correct in all material respects when made, and (ii) 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 corporate authority of the Borrower and each of the Guarantors, (ii) have
been duly authorized by all necessary 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 any corporate
charter or by-laws of, or any agreement or other instrument binding upon, the
Borrower or any Guarantor.
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(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. 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.6. 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.7. CONDITIONS TO EFFECTIVENESS. This Amendment shall be
effective as of the date hereof upon the satisfaction of each of the following
conditions precedent:
(a) The Agent shall have received an original counterpart
signature to this Amendment, duly executed and delivered by the Borrower, the
Guarantors, the Banks and the Agent; and
(b) The Borrower shall have paid to the Agent, for the pro rata
account of each Bank that executes and delivers a copy of this Amendment to the
Agent on or prior to 5:00 p.m. (EDT) on November 14, 2001, a non-refundable
amendment fee in an amount equal to twenty-five hundredths of one percent
(0.25%) on such Bank's Revolving Credit Commitment (after giving effect to this
Amendment).
ss.8. 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. Nothing contained in this
Amendment (i) shall be construed to imply a willingness on the part of the
Banks or the Agent to grant any similar or other future amendment of any of the
terms and conditions of the Credit Agreement or the other Loan Documents and
(ii) shall in any way prejudice, impair or effect any rights or remedies of the
Banks and the Agent under the Credit Agreement or the other Loan Documents.
(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.
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(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).
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
an agreement under seal of the date first written above.
THE RESTAURANT COMPANY
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE RESTAURANT HOLDING
CORPORATION, as Guarantor
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XXXXXXX FINANCE CORP., as Guarantor
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE RESTAURANT COMPANY OF
MINNESOTA, as Guarantor
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
TRC REALTY LLC, as Guarantor
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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FLEET NATIONAL BANK (f/k/a BankBoston,
N.A.), individually and as Agent
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BANK OF AMERICA, N.A. (f/k/a
Nationsbank, N.A.), individually and as
Syndication Agent
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
AMSOUTH BANK (f/k/a First American
National Bank)
By:
----------------------------------------
Name:
-----------------------------------
Title:
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SUNTRUST BANK
By:
----------------------------------------
Name:
-----------------------------------
Title:
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SCHEDULE 1
REVOLVING CREDIT REVOLVING CREDIT
BANK COMMITMENT COMMITMENT PERCENTAGE
---- ---------------- ---------------------
FLEET NATIONAL BANK $14,400,000 36%
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxxx Xxxxx
BANK OF AMERICA, N.A. $13,600,000 34%
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attn: Xxxxxxx Xxxxxxxxx
SUNTRUST BANK $7,200,000 18%
000 Xxxxxx Xxx., Xxxxx
Xxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxxxx Xxxxxxxx
AMSOUTH BANK $4,800,000 12%
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attn: Xxxxxxxxx X. Xxxxxx
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TOTAL $40,000,000 100%
