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EXHIBIT 10.71
AMENDMENT NO. 3 TO REVOLVING CREDIT AGREEMENT
Dated as of March 31, 2000
This Amendment No. 3 to Revolving Credit Agreement, dated as of March
31, 2000 (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; and
WHEREAS, the parties hereto wish to amend the Credit Agreement as
hereinafter set forth.
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 "Revolving Credit Loan Maturity Date" set
forth in ss.1.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"REVOLVING CREDIT LOAN MATURITY DATE. January 1, 2005."
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(b) The definition of "Applicable Margin" set forth in ss.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% 2.00%
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II >=2.75:1 and <3.50:1 0.50% 2.50%
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III >=3.50:1 1.00% 3.00%
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(c) The definitions of "Improvement Capital Expenditures", "New
Site Capital Expenditures" and "Remodeling Capital Expenditures" set forth in
ss.1.1 of the Credit Agreement are hereby deleted in their entirety.
(d) The definition of "Consolidated Cash Flow" set forth in
ss.1.1 of the Credit Agreement is hereby amended by adding the following text
immediately before the period at the end of such definition: ", plus (j)
without duplication, to the extent deducted in the calculation of Consolidated
Net Income for such period, and only to the extent such interest is not paid or
payable in cash during such period, interest on the Discount Notes for such
period".
(e) The definition of "Consolidated EBITDA" set forth in ss.1.1
of the Credit Agreement is hereby amended by adding the following text
immediately before the period at the end of such definition: ", plus (h)
without duplication, to the extent deducted in the calculation of Consolidated
Net Income for such period, and only to the extent such interest is not paid or
payable in cash during such period, interest on the Discount Notes for such
period".
SS.1.2. PERMITTED ACQUISITIONS. The Credit Agreement is hereby
further amended by deleting each reference to "New Site Capital Expenditures"
set forth in ss.10.5(c)(vi)(A) and substituting in lieu thereof the text
"Capital Expenditures".
SS.1.3. LEVERAGE RATIO. The Credit Agreement is hereby further
amended by deleting the table set forth in ss.11.1 and substituting in lieu
thereof the following table:
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Period Ratio
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12/31/99 - 12/30/01 3.75:1
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12/31/01 - 12/30/02 3.50:1
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12/31/02 - 12/30/03 3.25:1
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12/31/03 and at all times thereafter 3.00:1
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SS.1.4. INTEREST COVERAGE RATIO. The Credit Agreement is hereby
further amended by deleting the table set forth in ss.11.4 and substituting in
lieu thereof the following table:
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Period Ratio
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12/31/99 - 12/30/02 3.00:1
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12/31/02 - 12/30/03 3.25:1
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12/31/03 and at all times thereafter 3.50:1
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SS.1.5. CAPITAL EXPENDITURES. The Credit Agreement is hereby
further amended by deleting ss.11.5 thereto 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 Consolidated EBITDA for such fiscal year minus Consolidated Total
Interest Expense for such fiscal year."
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, (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.
(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.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
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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 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
accounts of the Banks, an amendment fee in an amount equal to twenty-five
hundredths of one percent (0.25%) on the Total Revolving Credit Commitment.
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 parties hereto have executed this Amendment as
an agreement under seal of the date first written above.
THE RESTAURANT COMPANY
By:
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Name:
Title:
XXXXXXX FINANCE CORP., as Guarantor
By:
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Name:
Title:
THE RESTAURANT HOLDING
CORPORATION, as Guarantor
By:
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Name:
Title:
FLEET NATIONAL BANK (f/k/a BankBoston,
N.A.), individually and as Agent
By:
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Name:
Title:
BANK OF AMERICA, N.A. (f/k/a
Nationsbank, N.A.), individually and as
Syndication Agent
By:
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Name:
Title:
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FIRST AMERICAN NATIONAL BANK
By:
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Name:
Title:
FLEET BUSINESS CREDIT CORPORATION
By:
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Name:
Title:
