EXHIBIT 99.3
AMENDMENT NO. 14 TO SECOND AMENDED AND RESTATED REVOLVING
CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT NO. 14 (this "Amendment"), executed, delivered, and dated
as of March 13, 2002, by and among XXXXXX'X RESTAURANT GROUP, INC., a Delaware
corporation (formerly known as Quantum Restaurant Group, Inc.) having its
principal place of business at Xxxxx 000, 0000 Xxx Xxxx Xxxx Xxxx, Xxx Xxxx
Park, New York 11042 (referred to below and in the Credit Agreement, as defined
below, as "Quantum"), PEASANT HOLDING CORP., a Delaware corporation having its
principal place of business at Xxxxx 000, 0000 Xxx Xxxx Xxxx Xxxx, Xxx Xxxx
Park, New York 11042 ("Peasant Holding"), XXXXXX'X OF CHICAGO, INC., an Illinois
corporation with its principal place of business at 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 ("Morton's") (Quantum, Peasant Holding and Morton's are
referred to herein collectively as the "Borrowers", and each, individually, as a
"Borrower"), FLEET NATIONAL BANK (formerly known as BankBoston, N.A.), as Agent
and Administrative Agent (the "Agent") for the Lenders (as defined in the Credit
Agreement referred to below), FLEET NATIONAL BANK (formerly known as BankBoston,
N.A. and referred to sometimes in the Credit Agreement, as defined below, as
"Fleet" or "FNBB") in its individual capacity as a Lender ("Fleet"), COMERICA
BANK-CALIFORNIA, successor by merger to Imperial Bank, JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank), FIRST UNION NATIONAL BANK and
LASALLE BANK NATIONAL ASSOCIATION, as Lenders, and FIRST UNION NATIONAL BANK, as
documentation agent (the "Documentation Agent") for the Lenders, amends the
Second Amended and Restated Revolving Credit and Term Loan Agreement dated as of
June 19, 1995, as the same is amended, modified, or supplemented from time to
time (the "Credit Agreement"), by and among the Borrowers, the Administrative
Agent, the Documentation Agent and the Lenders. Capitalized terms used but not
defined herein shall have the meanings set forth in the Credit Agreement.
WHEREAS, the Borrowers have requested that the Lenders agree to amend
certain provisions of the Credit Agreement; and
WHEREAS, the Agent and the Lenders, subject to the terms and provisions
hereof, have agreed to do so;
NOW THEREFORE, the parties hereto hereby agree as follows:
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SS.1. AMENDMENTS TO THE CREDIT AGREEMENT. Subject to the satisfaction of
the conditions precedent set forth in ss.3 hereof, the Credit Agreement is
hereby amended as follows:
SS.1.1. NEW DEFINITIONS. Section 1 of the Credit Agreement is hereby
amended by adding the following new definitions to Section 1 in the appropriate
place in the alphabetical sequence:
"APPLICABLE COMMITMENT FEE PERCENTAGE. Seess.4.5."
"COMERICA. Comerica Bank-California, successor by merger to Imperial
Bank."
"FOURTEENTH AMENDMENT DATE. The effective date of Amendment No. 14
to the Credit Agreement."
"LASALLE. LaSalle Bank National Association, in its capacity as a
Lender."
"PRICING TIER. The particular Applicable Margin or Applicable Term
Margin, as applicable, set forth opposite the specified pricing tier in
the tables set forth inss.2.4(b) orss.2.6(e)(B), as applicable."
"QUARTER END DATE. Seess.4.5."
SS.1.2. CHANGES IN CERTAIN DEFINITIONS. Section 1 of the Credit Agreement
is hereby further amended as follows:
(a) The definition of "Chase" in Section 1 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"CHASE. JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank), in its capacity as a Lender."
(b) The definition of "Commitment Percentages" in Section 1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"COMMITMENT PERCENTAGES. With respect to each Lender, the percentage
set forth beside its name below (subject to adjustment upon any
assignments permitted by ss.17 hereof):
Lender Percentage
------ ----------
Fleet 36.49279%
First Union 25.44529%
Comerica 10.17812%
Chase 13.99491%
LaSalle 13.88889%"
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(c) The definition of "Revolving Credit Commitment" in Section 1 of the
Credit Agreement is hereby amended by replacing the last sentence thereof with
the following sentence:
"The aggregate Revolving Credit Commitment on the Fourteenth Amendment
Date after giving affect to all permitted increases pursuant to ss.17A is
Sixty-Five Million Five Hundred Thousand Dollars ($65,500,000)."
(d) The definition of "Revolving Credit Commitment Amount" in Section 1 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"REVOLVING CREDIT COMMITMENT AMOUNT. Sixty-Five Million Five Hundred
Thousand Dollars ($65,500,000) (which amount is inclusive of all permitted
increases pursuant to ss.17A), as the same may be reduced by the amount of
any reductions effected pursuant to the terms of this Agreement; PROVIDED
that unless prior to any date set forth in the table below, the Majority
Lenders agree in writing that the Revolving Credit Commitment Amount then
in effect shall remain unchanged or be reduced by a lesser amount, the
Revolving Credit Commitment Amount in effect immediately prior to each
such date shall be reduced on such date (to the extent necessary) to the
amount set forth opposite such date and shall thereafter be such amount as
the same may be further reduced pursuant to the terms of this Agreement:
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Revolving Credit Commitment Revolving Credit Commitment
Reduction Date Amount following reduction
----------------------------------------------------------------------------
June 30, 2003 $60,500,000
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December 31, 2003 $55,500,000
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June 30, 2004 $50,500,000
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December 31, 2004 $45,500,000
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June 30, 2005 $40,500,000"
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(e) The definition of "Term Loan Percentage" in Section 1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"TERM LOAN PERCENTAGE. With respect to each Lender, the percentage
set forth beside its name below (subject to adjustment upon any
assignments permitted by ss.17 hereof):
Lender Percentage
------ ----------
Fleet 26.11111%
First Union 33.33333%
Comerica 13.33333%
Chase 13.33333%
LaSalle 13.88889%"
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SS.1.3. REVOLVING CREDIT LOANS. Section 2.1(a) of the Credit Agreement is
hereby amended in its entirety to read as follows:
"ss.2.1. REVOLVING CREDIT LOANS; LIMITATIONS ; PURPOSES.
(a) COMMITMENT TO LEND. Subject to the terms and conditions set
forth in this Agreement, the Lenders in accordance with their respective
Commitment Percentages as in effect on the Closing Date, will on the
Closing Date severally convert $8,450,000 of the revolving credit loans
outstanding and owed to FNBB under the Original Credit Agreement to
Revolving Credit Loans owed to the several Lenders hereunder. Upon the
terms and subject to the conditions set forth in this Agreement, the
Lenders, in accordance with their respective Commitment Percentages,
hereby severally agree to lend to the Borrowers on a joint and several
basis, and the Borrowers may borrow and reborrow from time to time between
the Closing Date and the Final Maturity Date upon notice to the Agent
given in accordance with ss.2.2 hereof, such amounts as are requested by
the Borrowers (the "Revolving Credit Loans") for the purposes described in
ss.9.3 hereof, PROVIDED, HOWEVER, that the aggregate principal amount of
all Outstanding Revolving Credit Loans (after giving effect to the amounts
requested) PLUS the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not at any time exceed the Revolving
Credit Commitment Amount in effect at such time; and PROVIDED, FURTHER,
that prior to June 30, 2003 if the Cash Flow Leverage Ratio as reflected
in the then most recent Compliance Certificate delivered pursuant to
ss.9.4(d) and as adjusted on a PRO FORMA basis to give effect to any
Revolving Credit Loans and/or Letters of Credit then being requested is
greater than 4.25 to 1.00, the aggregate principal amount of all
Outstanding Revolving Credit Loans (after giving effect to the amounts
requested) PLUS the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not exceed $60,000,000. Each request for a
Revolving Credit Loan hereunder shall constitute a representation by the
Borrower so requesting such Revolving Credit Loan that the applicable
conditions set forth in ss.7 (in the case of any Revolving Credit Loan
made on the Closing Date) and ss.8 hereof have been satisfied on the date
of such request and shall be accompanied by a compliance certificate
signed by the chief financial officer of Quantum certifying that on the
basis of the information set forth in the then most recent Compliance
Certificate delivered pursuant to ss.9.4(d) after adjustment on a PRO
FORMA basis to give effect to any Revolving Credit Loans and/or Letters of
Credit then being requested, no Event of Default would have occurred under
ss.ss.10.2, 10.3, 10.5(b), 10.6 and 10.7 as of the end of the most recent
Reference Period if the Revolving Credit Loans and/or Letters of Credit
then being requested had been outstanding at such time.
Each Revolving Credit Loan by a Lender to a Borrower shall be in a
principal amount equal to such Lender's Commitment Percentage of the
aggregate principal amount of Revolving Credit Loans requested on each
occasion. Notwithstanding any other provision of this Agreement, the
principal amount of Revolving Credit Loans outstanding from each Lender to
the Borrowers shall not at any time exceed in the aggregate an amount
equal to such Lender's Commitment Percentage of the
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Revolving Credit Commitment Amount MINUS the sum of the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations."
SS.1.4. INTEREST ON REVOLVING CREDIT LOAN.
(a) The table in Section 2.4(b) of the Credit Agreement is hereby amended
in its entirety to appear as follows:
APPLICABLE
CASH FLOW APPLICABLE BASE RATE EURODOLLAR RATE
PRICING TIER LEVERAGE RATIO MARGIN (P.A.) MARGIN (P.A.)
----------------------------------------------------------------------------------------------
1 Less than 2.25 to 1 1.25% 2.75%
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2 Greater than or equal to 2:25 to 1 1.75% 3.25%
but less than 2.50 to 1
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3 Greater than or equal to 2.50 to 1 2.25% 3.75%
but less than 3.00 to 1
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4 Greater than or equal to 3:00 to 1 2.75% 4.25%
but less than 4.00 to 1
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5 Greater than or equal to 4.0 to 1 3.00% 4.50%
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(b) Section 2.4(c)(i) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(i) unless the Majority Lenders agree in writing that the
Applicable Margin shall be determined without giving effect to this
ss.2.4(c)(i) in which case this ss.2.4(c)(i) shall be of no force and
effect, the Applicable Margin shall be determined by reference to Pricing
Tier 5 subject to adjustment pursuant to ss.2.4(c)(iv) (notwithstanding
the actual Cash Flow Leverage Ratio) until the date which is nine months
following the Fourteenth Amendment Date. Thereafter, subject to adjustment
pursuant to ss.2.4(c)(iv), the Applicable Margin shall be determined on
each Adjustment Date as provided in ss.2.4(b); PROVIDED that
notwithstanding the definition of Adjustment Date in Section 1 hereof, for
purposes of this ss.2.4(c)(i), the initial Adjustment Date after the
Fourteenth Amendment Date shall occur on the first Business Day following
the date which is nine months after the Fourteenth Amendment Date and the
Applicable Margin on such date shall be determined on the basis of the
calculation of the Cash Flow Leverage Ratio for the fiscal period of four
consecutive Fiscal Quarters then most recently ended and each Adjustment
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Date subsequent to such initial Adjustment Date shall be the next date
determined as provided in the definition of Adjustment Date in Section 1
hereof;" (c) Section 2.4(c) of the Credit Agreement is hereby further
amended by inserting the following subclause (iv) at the end thereof:
"(iv) at all times during which the aggregate principal amount of
all Outstanding Revolving Credit Loans PLUS the sum of the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations exceeds $55,000,000, the
Applicable Margin in each Pricing Tier and for each Type of Revolving
Credit Loan shall be deemed to be increased by adding 0.50% to each of the
Applicable Margin percentages in the table set forth in ss.2.4(b) above."
SS.1.5. SCHEDULED TERM LOAN PRINCIPAL PAYMENTS. Section 2.6 of the Credit
Agreement is hereby amended by amending the table contained in ss.2.6(c)(i) in
its entirety to read as follows:
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Date Installment Amount
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March 31, 2002 $250,000
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June 30, 2002 $250,000
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September 30, 2002 $250,000
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December 31, 2002 $750,000
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March 31, 2003 $1,500,000
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June 30, 2003 $1,500,000
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September 30, 2003 $2,000,000
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December 31, 2003 $2,000,000
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March 31, 2004 $2,000,000
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June 30, 2004 $2,000,000
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September 30, 2004 $2,000,000
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December 31, 2004 $2,000,000
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March 31, 2005 $2,000,000
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June 30, 2005 $2,000,000
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September 30, 2005 $2,000,000
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December 31, 2005 $1,500,000
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SS.1.6. MANDATORY TERM LOAN PRINCIPAL REPAYMENTS. Section 2.6(c)(iii) of
the Credit Agreement is hereby amended in its entirety to read as follows:
"(iii) ANNUAL EXCESS CASH FLOW RECAPTURE. On the date which is one
hundred and five (105) days after the end of each fiscal year (the
"Recapture Date"), except as set forth below, the Borrowers jointly and
severally shall be obligated to make prepayments in respect of the
outstanding principal of the Term Loan in an amount equal to seventy-five
percent (75%) of the Excess Operating Cash Flow as computed for such most
recently completed fiscal year, in each case payable to the Agent for
application in respect of the Term Loan to the applicable ratable accounts
of the Lenders (the "Mandatory Recapture Prepayments"). Such Mandatory
Prepayments shall be applied to the remaining unpaid scheduled
installments of principal in the inverse order of maturity. No such
Mandatory Recapture
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Prepayments with respect to the Term Loan may be re-borrowed. However,
such obligation to make Mandatory Recapture Prepayments on any such
potential Recapture Date shall not apply if (but only if) the Term Loan
shall have been paid in full or the Cash Flow Leverage Ratio shall have
been less than 2.25 to 1.00 as determined as of each of the two most
recent, consecutive Fiscal Quarter end dates occurring prior to such
Recapture Date for which there shall have been delivered by the Companies
the financial statements and Compliance Certificates required under ss.9.4
hereof on or prior to such potential Recapture Date."
SS.1.7. INTEREST ON TERM LOAN.
(a) The table in Section 2.6(e)(B) of the Credit Agreement is hereby
amended in its entirety to appear as follows:
APPLICABLE
CASH FLOW APPLICABLE TERM BASE TERM EURODOLLAR RATE
PRICING TIER LEVERAGE RATIO RATE MARGIN (P.A.) MARGIN (P.A.)
----------------------------------------------------------------------------------------------
1 Less than 2.25 to 1 1.25% 2.75%
----------------------------------------------------------------------------------------------
2 Greater than or equal to 2:25 to 1 1.75% 3.25%
but less than 2.50 to 1
----------------------------------------------------------------------------------------------
3 Greater than or equal to 2.50 to 1 2.25% 3.75%
but less than 3.00 to 1
----------------------------------------------------------------------------------------------
4 Greater than or equal to 3:00 to 1 2.75% 4.25%
but less than 4.00 to 1
----------------------------------------------------------------------------------------------
5 Greater than or equal to 4.0 to 1 3.00% 4.50%
----------------------------------------------------------------------------------------------
(b) Section 2.6(e)(C)(i) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(i) unless the Majority Lenders agree in writing that the
Applicable Margin shall be determined without giving effect to this
ss.2.6(e)(C)(i) in which case this ss.2.6(e)(C)(i) shall be of no force
and effect, the Applicable Term Margin shall be determined by reference to
Pricing Tier 5 (notwithstanding the actual Cash Flow Leverage Ratio) until
the date which is nine months following the Fourteenth Amendment Date.
Thereafter, the Applicable Term Margin shall be determined on each
Adjustment Date as provided in ss.2.6(e)(B), PROVIDED that notwithstanding
the definition of Adjustment Date in Section 1 hereof, for purposes of
this ss.2.6(e)(C)(i),
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the initial Adjustment Date after the Fourteenth Amendment Date shall
occur on the first Business Day following the date which is nine months
after the Fourteenth Amendment Date and the Applicable Term Margin on such
date shall be determined on the basis of the calculation of the Cash Flow
Leverage Ratio for the fiscal period of four consecutive Fiscal Quarters
then most recently ended and each Adjustment Date subsequent to such
initial Adjustment Date shall be the next date determined as provided in
the definition of Adjustment Date in Section 1 hereof;"
SS.1.8. COMMITMENT FEE. Section 4.5 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"ss.4.5. COMMITMENT FEES. The Borrowers jointly and severally agree
to pay to the Agent, for the accounts of the Lenders, in accordance with
their respective Commitment Percentages, a commitment fee (the "Commitment
Fee") calculated as the Applicable Commitment Fee Percentage per annum of
the average daily amount, if any, during each three-month period (or
portion thereof) ending on the payment dates referred to below to the
Final Maturity Date by which the aggregate Outstanding amount of the
Revolving Credit Loans during such period (or portion thereof) PLUS the
sum of the Maximum Drawing Amount and all Unpaid Reimbursement Obligations
is less than the Revolving Credit Commitment Amount. The "Applicable
Commitment Fee Percentage" shall mean that percentage determined on each
Adjustment Date to be the applicable rate per annum set forth in the table
below opposite the level of the Cash Flow Leverage Ratio determined for
the applicable fiscal period of four consecutive Fiscal Quarters, treated
as a single accounting period (as referred to in the definition of Cash
Flow Leverage Ratio), ending on the last day of the Fiscal Quarter that
ended immediately prior to such Adjustment Date (the "Quarter End Date").
The Applicable Commitment Fee Percentage that is so determined on each
such Adjustment Date shall be effective as of the date immediately
following the preceding Quarter End Date (i.e., as of the first day of the
Fiscal Quarter immediately following such Quarter End Date) and shall
continue to be effective through the next Quarter End Date.
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APPLICABLE COMMITMENT FEE
CASH FLOW PERCENTAGE (P.A.)
LEVERAGE RATIO
----------------------------------------------------------------
Less than 2.25 to 1 0.50%
----------------------------------------------------------------
Greater than or equal to 2:25 0.50%
to 1 but less than 2.50 to 1
----------------------------------------------------------------
Greater than or equal to 2.50 0.75%
to 1 but less than 3.00 to 1
----------------------------------------------------------------
Greater than or equal to 3:00 0.75%
to 1 but less than 4.00 to 1
----------------------------------------------------------------
Greater than or equal to 4.0 0.75%
to 1
----------------------------------------------------------------
The Commitment Fee shall be payable quarterly in arrears on the last day
of each March, June, September and December with the final payment at
maturity of the Loans."
SS.1.9. COMMITMENT TO ISSUE LETTERS OF CREDIT. Section 4A.1.1 of the
Credit Agreement is hereby amended by inserting prior to the period at the end
of the first sentence thereof the clause: "and (c) prior to June 30, 2003 if the
Cash Flow Leverage Ratio as reflected in the then most recent Compliance
Certificate delivered pursuant to ss.9.4(d) and as adjusted on a PRO FORMA basis
to give effect to any Revolving Credit Loans and/or Letters of Credit then being
requested is greater than 4.25 to 1.00, the sum of the aggregate principal
amount of all Outstanding Revolving Credit Loans (after giving effect to any
amounts then requested) PLUS the sum of the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations shall not exceed $60,000,000."
SS.1.10. CONDITIONS TO SUBSEQUENT LOANS. Section 8.3 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"ss.8.3. PERFORMANCE, ETC. No event shall have occurred on or prior
to any drawdown date and be continuing on such date, and no condition
shall exist on such date, which constitutes a Default or Event of Default.
After adjustment on a PRO FORMA basis to give effect to any Revolving
Credit Loans and/or Letters of Credit then being requested, no Event of
Default would have occurred under ss.ss.10.2, 10.3, 10.5(b), 10.6 and 10.7
as of the end of the most recent Reference Period if the Revolving Credit
Loans and/or Letters of Credit then being requested had been outstanding
at such time. The Loan Documents shall be in full force and effect."
SS.1.11. INTEREST COVERAGE. Section 10.2 of the Credit Agreement is hereby
amended in its entirety to read as follows:
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"ss.10.2. INTEREST COVERAGE. The Borrowers will not permit the
Interest Coverage Ratio, as determined for any Reference Period to be less
than (a) 2.40 to 1.00 with respect to any Reference Period ending on or
after December 30, 2001, but prior to June 30, 2002, (b) 2.50 to 1.00 with
respect to the Reference Period ending on or about June 30, 2002, (c) 3.00
to 1.00 with respect to the Reference Period ending on or about September
30, 2002, (d) 3.25 to 1.00 with respect to the Reference Period ending on
or about December 29, 2002, (e) 4.00 to 1.00 with respect to any Reference
Period ending in Fiscal Year ending on or about December 28, 2003 and (f)
5.00 to 1.00 with respect to any Reference Period ending thereafter. The
term "Interest Coverage Ratio" shall mean, for any fiscal period or
Reference Period, the ratio of the Consolidated Adjusted Cash Flow of the
Companies to the Cash Interest Charges of the Companies for such fiscal
period or Reference Period, excluding from the calculation of such ratio
any applicable charge in respect of the Xxxxxxxx'x Litigation Expense or
the Specified Restaurant Closing Expenses.
Federal tax credits (associated with such excess federal social
security taxes previously paid) that are earned in any fiscal period (if
and to the extent such taxes were expended as labor costs when paid) will
be treated as reductions in labor cost expense (or reductions in other
applicable operating expenses), without duplication in each case, for the
period in which such federal tax credits are earned (rather than as
reductions in federal tax expense for such period) notwithstanding any
provisions of this Agreement to the contrary."
SS.1.12. CAPITAL EXPENDITURES. Section 10.3 of the Credit Agreement is
hereby amended as follows:
(a) by deleting the words "Intentionally Omitted" from ss.10.3(b) thereof
and substituting the following therefor:
"(b) From and after the Fourteenth Amendment Date, the Companies may
not make or enter into, incur, or assume any binding commitments to make
capital expenditures or binding lease commitments related to New
Construction if the Cash Flow Leverage Ratio as reflected in the then most
recent Compliance Certificate delivered pursuant to ss.9.4(d) exceeds 2.50
to 1.00."
(b) by deleting the text of ss.10.3(e) in its entirety and substituting
the following therefor:
"(e) The Companies will not permit their aggregate capital
expenditures, determined on a consolidated basis in accordance with
generally accepted accounting principles, including, without limitation,
property, plant and equipment purchased as well as capitalized start-up
expenses and capitalized pre-opening expenses (net of actual landlord
reimbursements for capital expenditures), to exceed (i) $13,000,000 during
the Fiscal Year ending on or about December 29, 2002; (ii) $4,000,000
during the Fiscal Year ending on or about December 28, 2003; (iii)
$8,000,000 during the Fiscal Year ending on or about December 31, 2004; or
(iv) $10,000,000 during the Fiscal Year ending on or about December 31,
2005; PROVIDED that if the aggregate amount of capital expenditures
actually made in any Fiscal
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Year ending after December 31, 2001 is less than the maximum amount
permitted in such Fiscal Year, the maximum amount of capital expenditures
permitted hereunder in the immediately following fiscal year shall be
increased by such difference; PROVIDED FURTHER, that no such increase
shall exceed $5,000,000."
SS.1.13. DISTRIBUTIONS. Section 10.5 of the Credit Agreement is hereby
amended as follows:
(a) by deleting the text of ss.10.5(b) in its entirety and substituting
the following therefor:
"(b) Quantum may not make any Distributions from and after the
Fourteenth Amendment Date. Prior to the Fourteenth Amendment Date, Quantum
shall be permitted to have made any Distribution permitted by the Credit
Agreement as in effect on the date of such Distribution."
(b) by deleting the text ofss.10.5(c) in its entirety and substituting the
phrase "[Intentionally Omitted]" therefor.
(c) by deletingss.ss.10.5(d) and 10.5(e) in their entirety.
SS.1.14. CASH FLOW COVERAGE RATIO. Section 10.6 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"ss.10.6. CASH FLOW COVERAGE RATIO. The Borrowers will not permit
the Cash Flow Coverage Ratio, as determined for any Reference Period to be
less than (a) 1.10 to 1.00 with respect to any Reference Period ending on
or after December 30, 2001, but prior to September 30, 2002, (b) 1.20 to
1.00 with respect to the Reference Period ending on or about September 30,
2002, (c) 1.25 to 1.00 with respect to the Reference Period ending on or
about December 29, 2002, and (d) 1.30 to 1.00 with respect to any
Reference Period ending thereafter. The term "Cash Flow Coverage Ratio"
shall mean, for any fiscal period or Reference Period, the ratio of (i)
Consolidated Cash Flow of the Companies for such period or Reference
Period to (ii) (A) rental expenses under the Operating Leases of
restaurants and storage space for such period or Reference Period PLUS (B)
required principal payments (other than Mandatory Recapture Prepayments)
in respect of Indebtedness (including Capitalized Leases) for such period
or Reference Period PLUS (C) Cash Interest Charges for such period or
Reference Period excluding from the calculation of such ratio any
applicable charge in respect of the Xxxxxxxx'x Litigation Expense or the
Specified Restaurant Closing Expenses.
Federal tax credits (associated with such excess federal social
security taxes previously paid) that are earned in any fiscal period (if
and to the extent such taxes were expended as labor costs when paid) will
be treated as reductions in labor cost expense (or reductions in other
applicable operating expenses), without duplication in each case, for the
period in which such federal tax credits are earned (rather than as
reductions in federal tax expense for such period) notwithstanding any
provisions of this Agreement to the contrary."
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SS.1.15. CASH FLOW LEVERAGE RATIO. Section 10.7 of the Credit Agreement is
hereby amended is hereby amended in its entirety to read as follows:
"ss.10.7. CASH FLOW LEVERAGE RATIO. The Borrowers will not permit
the Cash Flow Leverage Ratio, as determined as of the end of any Fiscal
Quarter, to exceed (a) 4.50 to 1.00 as of the end of any Fiscal Quarter
ending on or after December 30, 2001, but prior to June 30, 2002, (b) 4.25
to 1.00 as of the end of the Fiscal Quarter ending on or about June 30,
2002, (c) 3.75 to 1.00 with respect to the Fiscal Quarter ending on or
about September 30, 2002, (d) 3.00 to 1.00 as of the end of any Fiscal
Quarter ending on or after December 29, 2002, but prior to September 28,
2003, (e) 2.50 to 1.00 as of the end of any Fiscal Quarter ending on or
after September 28, 2003, but prior to September 26, 2004, and (f) 2.25 to
1.00 as of the end of any Fiscal Quarter ending on or about September 26,
2004 or thereafter."
SS.2. REPRESENTATIONS AND WARRANTIES. The Borrowers hereby represent and
warrant to the Agent and the Lenders as follows:
(a) REPRESENTATIONS AND WARRANTIES IN CREDIT AGREEMENT. The
representations and warranties of the Borrowers contained in the Credit
Agreement were true and correct in all material respects when made and continue
to be true and correct in all material respects on and as of the date hereof,
and as of the Effective Date (as defined in ss.3 hereof), except, in each case
to the extent of changes resulting from transactions contemplated or permitted
by the Loan Documents and this Amendment and changes occurring in the ordinary
course of business which singly or in the aggregate are not materially adverse,
and to the extent that such representations and warranties relate expressly to
an earlier date. No Default or Event of Default has occurred and is continuing.
(b) AUTHORITY, NO CONFLICTS, ENFORCEABILITY OF OBLIGATIONS, ETC. Each of
the Borrowers hereby confirms that the representations and warranties of the
Borrowers contained in Sections 6.1, 6.3 and 6.4 of the Credit Agreement are
true and correct on and as of the date hereof, and as of the Effective Date, as
if made on each such date, treating this Amendment, the Credit Agreement as
amended hereby, and the other Loan Documents as amended hereby, as "Loan
Documents" for the purposes of making said representations and warranties.
SS.3. CONDITIONS TO EFFECTIVENESS. This Amendment shall be deemed to be
effective as of the date hereof (the "Effective Date"), subject to:
(a) the delivery to the Agent and the Lenders by (or on behalf of) each of
the Borrowers or the Guarantors, as the case may be, of this Amendment signed by
each of the Borrowers, each of the Guarantors, the Agent, and the Majority
Lenders;
(b) the payment by the Borrowers of an amendment fee in an amount equal to
$134,250, to be paid to the Agent, for allocation among the Lenders PRO RATA in
accordance with each such Lender's share of the Total Exposure; and
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(c) the reimbursement by the Borrowers for the amount of the fees and
expenses of the Agent's Special Counsel for services rendered to the Agent and
related expenses in connection with this Amendment.
SS.4. NO OTHER AMENDMENTS OR WAIVERS; EXECUTION IN COUNTERPARTS. Except as
otherwise expressly provided by this Amendment, all of the terms, conditions and
provisions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect. Each of the Borrowers and the Guarantors confirms and
agrees that the Obligations of the Borrowers to the Lenders under the Loan
Documents, as amended, supplemented, and increased hereby, are secured by,
guarantied under, and entitled to the benefits, of the Security Documents. The
Borrowers, the Guarantors, the Agent and the Lenders hereby acknowledge and
agree that all references to the Credit Agreement and the Obligations thereunder
contained in any of the Loan Documents shall be references to the Credit
Agreement and the Obligations, as amended hereby and as the same may be amended,
modified, supplemented, or restated from time to time. The Security Documents
and the perfected first priority security interests of the Lenders thereunder as
collateral security for the Obligations shall continue in full force and effect,
and the collateral security and guaranties provided for in the Security
Documents shall not be impaired by this Amendment. 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.
SS.5. GOVERNING LAW. This Amendment shall be construed according to and
governed by the internal laws of the Commonwealth of
Massachusetts without
reference to principles of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
FLEET NATIONAL BANK (formerly known as
BankBoston, N.A.), for itself and as
Administrative Agent
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
----------------------------------------
Title: Managing Director
---------------------------------------
FIRST UNION NATIONAL BANK, for itself and
as Documentation Agent
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
----------------------------------------
Title: Senior Vice President
---------------------------------------
XX XXXXXX CHASE BANK (formerly known as
The Chase Manhattan Bank)
By: /s/ Xxxxxxx X. De Xxxx, Jr.
------------------------------------------
Name: Xxxxxxx X. De Xxxx, Jr.
----------------------------------------
Title: Vice President
---------------------------------------
COMERICA BANK-CALIFORNIA, successor by
merger to Imperial Bank
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------------
Title: Vice President
---------------------------------------
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THE BORROWERS:
XXXXXX'X RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
XXXXXX'X OF CHICAGO, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer
CONSENTED AND AGREED TO, BY EACH OF
THE GUARANTORS (as defined in the Credit
Agreement)
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer for each of the
Guarantors
