EXHIBIT 99.2
AMENDMENT NO. 15 TO SECOND AMENDED AND RESTATED REVOLVING
CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT NO. 15 (this "Amendment"), executed, delivered, and dated
as of March 26, 2002 (but effective as of the Amendment Closing Date referred to
below), 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:
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:
"Additional Equity Basket Amount. As of any date of determination,
the resulting amount of funds equal to the following calculation: (i) the
amount of the net cash proceeds received by Quantum from the issuance of
its capital stock and/or additional capital contributions after the
Fifteenth Amendment Closing Date and on or prior to such date of
determination (other than from the Specified Equity Contribution, other
equity contributions required to be made as a condition precedent to the
occurrence of the Fifteenth Amendment Closing Date under Amendment No. 15,
and Make-Up Equity) less (ii) the aggregate amount of Distributions made
pursuant to Section 10.5(b)(v) prior to such date, less (iii) the
aggregate amount of capital expenditures made by the Companies prior to
such date pursuant to Section 10.3 which are made from and pursuant to the
Additional Equity Basket Amount, and less (iv) the aggregate amount of
Investments made prior to such date pursuant to Section 10.11(n)."
"Amendment No. 15. Amendment No. 15 to this Agreement."
"Xxxxxx Xxxxxx Holdings. Morton's Holdings, Inc., a Delaware
corporation which has been formed by Xxxxxx Xxxxxx Partners for purposes
of the Xxxxxx Xxxxxx Transaction."
"Xxxxxx Xxxxxx Merger Sub. Morton's Acquisition Company, a Delaware
corporation that is a wholly owned Subsidiary of Xxxxxx Xxxxxx Holdings,
formed for purposes of the Xxxxxx Xxxxxx Transaction."
"Xxxxxx Xxxxxx Partners. Xxxxxx Xxxxxx Partners III, L.P., a
Delaware limited partnership."
"Xxxxxx Xxxxxx Transaction. The acquisition of Quantum by Xxxxxx
Xxxxxx Holdings in a statutory merger transaction in which Xxxxxx Xxxxxx
Merger Sub merges with and into Quantum, with Quantum as the surviving
Person, at a merger price no less than $12.60 per share of merger
consideration, and approximately $54,000,000 in the aggregate, all in cash
to be paid by Xxxxxx Xxxxxx Holdings from its own funds upon the
consummation of such merger transaction, which merger transaction shall
result (after giving effect thereto) in Xxxxxx Xxxxxx Holdings owning at
least 92.5% of the issued and outstanding capital stock of Quantum, all on
such further terms and conditions and pursuant to such documentation as
shall have been disclosed to, and shall be approved in form and substance
by, the Agent,
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prior to the Fifteenth Amendment Closing Date (it being acknowledged that
the Merger Agreement, dated March 26, 2002, as last furnished to the Agent
prior to the date of execution of Amendment No. 15 is satisfactory to the
Agent; provided that modifications to the Merger Agreement shall be
required to be reasonably satisfactory to the Agent)."
"Change of Control. The occurrence of any of the following: (i) the
CHI Entities shall cease to own, directly or indirectly, more than 50% of
the issued and outstanding capital stock of Quantum, or (ii) the CHI
Entities shall cease to have the power (whether or not exercised) to elect
(whether by ownership of capital stock, contract or otherwise) a majority
of the Board of Directors of Quantum."
"CHI. Xxxxxx Xxxxxx, Inc., a Delaware corporation."
"CHI Entities. CHI, Xxxxxx Xxxxxx Partners, and their respective
Affiliates."
"Fifteenth Amendment Closing Date. The date on which the conditions
precedent set forth in ss.3 of Amendment No. 15 have been satisfied and
such Amendment No. 15 has become effective."
"FQ. A specified Fiscal Quarter."
"Make-Up Equity. The amount of the net cash proceeds received by
Quantum from the issuance of its capital stock and/or additional capital
contributions the proceeds of which are utilized to reimburse the
Companies for capital expenditures in respect of Supplemental Unit
Commitments or other outlays specified in ss.10.3 hereof as eligible to be
reimbursed from Make-Up Equity."
"Special Excluded Charges. For any period, the applicable accounting
charges for (i) permitted management fees under Section 10.18 during such
period, (ii) noncash charges for purchase accounting adjustments during
such period, (iii) charges for transaction expenses for the Xxxxxx Xxxxxx
Transaction during such period, (iv) charges for proxy costs and the costs
of Quantum's efforts to explore strategic alternatives to enhance
stockholder value during such period, incurred prior to the Fifteenth
Amendment Closing Date, (v) legal and settlement expenses actually
incurred by the Companies relating to existing employee litigation, in any
event not to exceed $250,000 in the aggregate, and (vi) financing fees
relating to Amendment No. 15."
"Specified Equity Contribution. The contribution of $10,000,000 in
cash to the common equity capital of Quantum by Xxxxxx Xxxxxx Holdings
upon the consummation of the Xxxxxx Xxxxxx Transaction, which funds shall
be immediately
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applied by the Companies to prepay $10,000,000 of the outstanding
principal of the Term Loan on the Fifteenth Amendment Closing Date."
"Specified Term Loan Prepayment. The prepayment of $10,000,000 of
the outstanding principal of the Term Loan on the Fifteenth Amendment
Closing Date with the proceeds of the Specified Equity Contribution."
"Stock Repurchase Notes. The unsecured, subordinated promissory
notes to be issued by Quantum as consideration for stock repurchases in
each case solely pursuant to Section 10.5(b)(iv) and the additional
unsecured, subordinated promissory notes issued by Quantum as
payment-in-kind of interest on the outstanding Stock Repurchase Notes
pursuant to the terms thereof; the Stock Repurchase Notes must (a) provide
for no required cash payments thereon prior to June 30, 2006, with all
required payments of interest thereon provided to be payable in kind in
the form of additional Stock Repurchase Notes, (b) must be reasonably
satisfactory in form and substance to the Agent, and (c) must be subject
to a written subordination agreement with respect thereto in favor of the
Agent and the Lenders in form and substance reasonably satisfactory to the
Agent."
ss.1.2. Changes in Certain Definitions . Section 1 of the Credit Agreement
is hereby further amended as follows:
(a) The definition of "Consolidated Adjusted Cash Flow" in Section 1 of
the Credit Agreement is hereby amended by adding the following new sentence at
the end of such definition:
"The calculation of Consolidated Adjusted Cash Flow shall exclude the
Special Excluded Charges."
(b) The definition of "Consolidated Cash Flow" in Section 1 of the Credit
Agreement is hereby amended by adding the following new sentence at the end of
such definition:
"The calculation of Consolidated Cash Flow shall exclude the Special
Excluded Charges."
(c) The definition of "Consolidated EBITDA" in Section 1 of the Credit
Agreement is hereby amended by adding the following new sentence at the end of
such definition:
"The calculation of Consolidated EBITDA shall exclude the Special Excluded
Charges, except in the case of determining Excess Operating Cash Flow; and
for purposes of the determination of Excess Operating Cash Flow, the
calculation of Consolidated EBITDA shall exclude those Special Excluded
Charges which are non-
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cash charges, but shall not exclude those Special Excluded Charges which
are cash charges."
(d) The definition of "Excess Operating Cash Flow" in Section 1 of the
Credit Agreement is hereby amended by adding the following new sentence at the
end of such definition:
"Mandatory Recapture Prepayments and the Specified Term Loan Prepayment
shall, however, be excluded (i.e., not subtracted) from the calculation
of Excess Operating Cash Flow."
(e) The definition of "Funded Indebtedness" in Section 1 of the Credit
Agreement is hereby amended by inserting, immediately before the phrase
"purchase money Indebtedness" the following text:
"Indebtedness in respect of any applicable Subordinated Debt (but
excluding the Stock Repurchase Notes),"
(f) 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 the Revolving Credit Commitment Amount in effect immediately prior to
each date set forth in the table below 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
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December 31, 2004 $60,500,000
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Final Maturity Date $0
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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. 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
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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 monthly financial statements delivered to the Agent pursuant to
Section 9.4(c), after adjustment on a pro forma basis to give effect to
any Revolving Credit Loans and/or Letters of Credit then being requested
and to the repayments of Funded Indebtedness made since the date of such
monthly financial statements, no Event of Default would have occurred
under Section 10.7 (provided that for purposes of such pro forma
determination the Reference Period for which the Cash Flow Leverage Ratio
is computed shall be deemed to be the 12 consecutive fiscal month period
ending on the date of such monthly financial statements) if the Revolving
Credit Loans and/or Letters of Credit then being requested had been
outstanding at the end of the relevant 12 consecutive fiscal month period
for which such pro forma determination is made.
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 Revolving Credit
Commitment Amount minus the sum of the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations."
ss.1.4. Interest on Revolving Credit Loans. Section 2.4(c)(i) of the
Credit Agreement is hereby amended in its entirety to read as follows:
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"(i) subject to adjustment pursuant to ss.2.4(c)(iv), if on any
Adjustment Date occurring prior to the earliest Adjustment Date following
December 31, 2002 on (or prior to) which there shall have been delivered
by the Companies the unaudited financial statements and Compliance
Certificates required under ss.9.4 hereof for the Reference Period ended
on or about December 31, 2002, the Applicable Margin as determined on such
Adjustment Date under ss.2.4(b) would have been set at Pricing Tier 3, 2,
or 1, the Applicable Margin determined on such Adjustment Date shall
instead be set at Pricing Tier 4;"
ss.1.5. Scheduled Term Loan Principal Payments. Section 2.6 of the Credit
Agreement is hereby amended by amending the table contained in Section 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 $250,000
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March 31, 2003 $1,000,000
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June 30, 2003 $1,000,000
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September 30, 2003 $1,000,000
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December 31, 2003 $1,000,000
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March 31, 2004 $1,000,000
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June 30, 2004 $1,000,000
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September 30, 2004 $1,000,000
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December 31, 2004 $1,000,000
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March 31, 2005 $1,250,000
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June 30, 2005 $1,250,000
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September 30, 2005 $1,250,000
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December 31, 2005 $1,250,000"
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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 twenty (120) 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 (and then, as provided below, the
Revolving Credit Loans and the Revolving Credit Commitment Amount) in an
amount equal to the Applicable Recapture Percentage (as defined below) of
the Excess Operating Cash Flow as computed for such most recently
completed fiscal year, in each case payable to the Agent for application
first in respect of the Term Loan (and then, as provided below, the
Revolving Credit Loans and the Revolving Credit Commitment Amount) and
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allocation to the applicable ratable accounts of the Lenders (the
"Mandatory Recapture Prepayments"). The "Applicable Recapture Percentage"
pertaining to any Recapture Date shall be determined as follows: if the
Cash Flow Leverage Ratio was greater than or equal to 2.50 to 1.00, but
less than 3.00 to 1.00, as determined as of the most recent Fiscal Quarter
end date 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 Recapture
Date, the Applicable Recapture Percentage shall be 50%; if the Cash Flow
Leverage Ratio was greater than or equal to 3.00 to 1.00 as determined as
of the most recent Fiscal Quarter end date 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 Recapture Date, the Applicable Recapture
Percentage shall be 75%. Such Mandatory Recapture Prepayments, in the case
of the Term Loan, shall be applied to the remaining unpaid scheduled
installments of principal of the Term Loan in the inverse order of
maturity. No such Mandatory Recapture Prepayments with respect to the Term
Loan may be re-borrowed. If, and to the extent, that any such amounts of
Mandatory Recapture Prepayments remain unutilized ("Remaining Amounts") on
any Recapture Date and the Term Loan shall have been paid in full, the
Revolving Credit Commitment Amount shall then be automatically and
immediately reduced by such Remaining Amount, in each case allocated pro
rata among the Lenders in accordance with their respective Commitment
Percentages (the "Recapture Reductions"); no such Recapture Reductions of
the Revolving Credit Commitment Amount shall be subject to reinstatement;
and the Borrowers shall, simultaneously with such Recapture Reductions of
the Revolving Credit Commitment Amount, pay such amount in cash to the
Agent for the respective, ratable accounts of the Lenders for application
in the manner described in ss.2.1(e) hereof. However, such obligation to
make any Mandatory Recapture Prepayments (as to the Term Loans or
otherwise) on any such potential Recapture Date shall not apply if (but
only if) the Cash Flow Leverage Ratio shall have been less than 2.50 to
1.00 as determined as of the most recent Fiscal Quarter end date 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. Section 2.6(e)(C)(i) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(i) if on any Adjustment Date prior to the earliest Adjustment Date
following December 31, 2002 on (or prior to) which there shall have been
delivered by the Companies the unaudited financial statements and
Compliance Certificates required under ss.9.4 hereof for the Reference
Period ended on or about December 31, 2002, the Applicable Term Margin as
determined on such Adjustment Date under
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ss.2.6(e)(B) would have been set at Pricing Tier 3, 2, or 1, the Applicable Term
Margin determined on such Adjustment Date shall instead be set at Pricing Tier
4;"
ss.1.8. Certain Representations.
(a) Section 6.8 of the Credit Agreement is hereby amended by
deleting the phrase "the Balance Sheet Date" from Section 6.8 and
inserting in its place the following phrase:
"the end of the 2001 Fiscal Year"
(b) Section 6.10 of the Credit Agreement is hereby amended as follows:
(i) by inserting the phrase "as of the Closing Date" into the
second sentence of Section 6.10 immediately after the comma
appearing before the word "none"; and
(ii) replacing the word "All" at the beginning of the third
sentence of Section 6.10 with the phrase "As of the Closing Date,
all".
(c) Section 6.11 of the Credit Agreement is hereby amended by
inserting immediately before the phrase "there is no pending" the
following phrase:
"and except as would not be reasonably expected to have a material
adverse effect on the business or financial condition of the
Companies taken as a whole,"
ss.1.9. Borrowing Conditions. 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.
With reference to the information set forth in the then most recent
monthly financial statements delivered to the Agent pursuant to Section
9.4(c), after adjustment on a pro forma basis to give effect to any
Revolving Credit Loans and/or Letters of Credit then being requested and
to the repayments of Funded Indebtedness made since the date of such
monthly financial statements, no Event of Default would have occurred
under Section 10.7 (provided that for purposes of such pro forma
determination the Reference Period for which the Cash Flow Leverage Ratio
is computed shall be deemed to be the 12 consecutive fiscal month period
ending on the date of such monthly financial statements) if the Revolving
Credit Loans and/or Letters of Credit then being requested had been
outstanding at the end of the relevant 12 consecutive fiscal month period
for which such pro forma determination is made. The Loan Documents shall
be in full force and effect."
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ss.1.10. Interest Rate Protection. Section 9 of the Credit Agreement is
hereby amended by adding the following new Section 9.18, immediately after the
existing Section 9.17:
"ss.9.18. Interest Rate Protection. The Borrowers shall, not later
than 90 days after the Fifteenth Amendment Closing Date, purchase or
obtain an interest rate cap or swap or effect other interest rate
protection arrangements in a minimum aggregate notional amount of
principal not less than 50% of the total Funded Indebtedness then in
effect for a period of not less than two years and at a maximum rate and
on other terms and conditions reasonably satisfactory to the Agent; the
parties agreeing that existing Funded Indebtedness bearing interest at a
fixed rate will be counted towards this requirement, subject to the
Agent's reasonable satisfaction with the fixed rate of interest that is
applicable to such existing Funded Indebtedness during the relevant
two-year period."
ss.1.11. Indebtedness. Section 10.1(j) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(j) the Stock Repurchase Notes;"
ss.1.12. Interest Coverage. Section 10.2 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"ss.10.2. Interest Coverage. The Borrowers will not permit the
Interest Coverage Ratio (as defined below), as determined for any
Reference Period ending with any Fiscal Quarter set forth in the table
below to be less than the ratio set forth in the table below opposite the
Fiscal Quarter ending such Reference Period:
Fiscal Quarter Ending the
Reference Period Minimum Ratio
First FQ of 2002 2.40 to 1.00
Second FQ of 2002 2.50 to 1.00
Third FQ of 2002 2.60 to 1.00
Fourth FQ of 2002 2.70 to 1.00
First FQ of 2003 2.85 to 1.00
Second FQ of 2003 3.00 to 1.00
Third FQ of 2003 3.15 to 1.00
Fourth FQ of 2003 3.40 to 1.00
First FQ of 2004 3.50 to 1.00
Second FQ of 2004 3.50 to 1.00
Third FQ of 2004 3.75 to 1.00
Fourth FQ of 2004 4.00 to 1.00
First FQ of 2005 4.25 to 1.00
Second FQ of 2005 4.50 to 1.00
Third FQ of 2005 4.50 to 1.00
Fourth FQ of 2005 and thereafter 5.00 to 1.00
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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.1.13. Capital Expenditures. Section 10.3 of the Credit Agreement is
hereby amended as follows:
(a) Section 10.3(b) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(b) The Companies shall not make or enter into, incur, or assume
any binding commitments to make capital expenditures or binding lease
commitments related to New Construction (collectively, "New Construction
Commitments"), other than (i) in 2002, commitments with respect to the New
Construction and development in 2002 of the five specified new Xxxxxx'x
Restaurant units to be developed and opened in 2002, located,
respectively, in (A) King of Prussia, Pennsylvania, (B) Richmond,
Virginia, (C) Arlington, Virginia, (D) Burbank, California, and (E)
Paramus, New Jersey, provided that the costs of New Construction and
development for such five specified locations shall not exceed, in the
aggregate, the sum of $10,000,000 plus the amount of cash received as
insurance proceeds (excluding proceeds from business interruption
insurance) in respect of the casualty loss with respect to the unit
located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and (ii) in each Fiscal
Year subsequent to 2002, and provided that no Event of Default exists,
commitments entered into with respect to the New Construction and
development of units in an aggregate number, in any Fiscal Year, not to
exceed the number determined as follows (it being understood that
compliance with the following aggregate per Fiscal Year numerical
commitment limitation is determined at the time the Companies enter into
the relevant incremental commitment in question, but such determination as
to any such incremental commitment does not retroactively disqualify any
existing commitment that was previously permitted hereunder at the time it
was entered into during such Fiscal Year by the Companies): (A) zero if
the Cash Flow Leverage Ratio as reflected in the then most recent
Compliance Certificate and financial statements
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delivered under Section 9.4 as of the commitment being entered into is greater
than 3.00 to 1.00; (B) one if the Cash Flow Leverage Ratio as reflected in the
then most recent Compliance Certificate and financial statements delivered under
Section 9.4 as of the commitment being entered into is less than or equal to
3.00 to 1.00 but greater than or equal to 2.75 to 1.00; (C) two if the Cash Flow
Leverage Ratio as reflected in the then most recent Compliance Certificate and
financial statements delivered under Section 9.4 as of the commitment being
entered into is less than 2.75 to 1.00 but greater than or equal to 2.50 to
1.00; (D) four if the Cash Flow Leverage Ratio as reflected in the then most
recent Compliance Certificate and financial statements delivered under Section
9.4 as of the commitment being entered into is less than 2.50 to 1.00 but
greater than or equal to 2.25 to 1.00; (E) six if the Cash Flow Leverage Ratio
as reflected in the then most recent Compliance Certificate and financial
statements delivered under Section 9.4 as of the commitment being entered into
is less than 2.25 to 1.00 but greater than or equal to 2.00 to 1.00; and (F)
eight if the Cash Flow Leverage Ratio as reflected in the most recent Compliance
Certificate and financial statements delivered under Section 9.4 as of the
commitment being entered into is less than 2:00 to 1:00 (such permitted
commitments under the foregoing provisions of this clause (b)(ii) being referred
to as the "Basic Unit Commitments"); provided, however, that (x) in the event
that the number of new units in respect of which New Construction Commitments
were entered into in any Fiscal Year is less than the number otherwise permitted
by clause (b)(ii) (as such number may have been increased pursuant to this
clause (x) or clause (y) below), or the commitment for a new unit in respect of
which a New Construction Commitment was entered into in a previous Fiscal Year
is terminated prior to the completion of such unit, the number of new units in
respect of which New Construction Commitments may be entered into in the
immediately succeeding Fiscal Year shall be increased by one, (y) the number of
units in respect of which a New Construction Commitment may be entered into in
any Fiscal Year may be increased as provided in Section 10.3(g), and (z) the
Companies may enter into additional commitments for New Construction (which will
not in any case be commenced until after Fiscal Year 2002) not then otherwise
permitted to be entered into as Basic Unit Commitments by the foregoing
provisions of this clause (b)(ii) (such additional commitments being referred to
as the "Supplemental Unit Commitments"), but, if at the time required for the
making of the actual capital expenditures for the New Construction of any
particular unit pursuant to any such Supplemental Unit Commitment, the Companies
would not have been permitted to enter into a new Basic Unit Commitment at such
time for such unit (based on the Cash Flow Leverage Ratio as reflected in the
then most recent Compliance Certificate and financial statements delivered under
Section 9.4), such capital expenditures for New Construction relating to such
Supplemental Unit Commitment must be funded and paid for with such amounts as
either must not exceed (and shall be funded from) the Additional Equity Basket
Amount at such time or must be reimbursed to the Companies from the proceeds of
Make-Up Equity received by Quantum on or before the 60th day following the
completion of the
-13-
relevant unit; and, further provided that, if at the time required for the
making of the actual capital expenditures for the New Construction of any
particular unit pursuant to any such Supplemental Unit Commitment the
Companies then actually would have been permitted to enter into a new
Basic Unit Commitment with respect thereto at such time and the Companies
proceed with such New Construction Capital Expenditures for such then
qualifying unit, such unit shall then be deemed to be counted as "usage"
against the permitted aggregate numerical total of Basic Unit Commitments
for the Fiscal Year in which such capital expenditures so occur, as if an
actual Basic Unit Commitment were then entered into for such unit pursuant
to clause (b)(ii) hereof at such time in lieu of the previous Supplemental
Unit Commitment relating thereto (a "Redesignated Unit Commitment");
further provided, however, no more than one Supplemental Unit Commitment
not constituting a Redesignated Unit Commitment shall in any event exist
or be outstanding at any time; and further provided, however, the
foregoing limitations with respect to the source of funding of
Supplemental Unit Commitments shall not prohibit the outlay of not more
than $200,000 of funds by the Companies relating to each Supplemental Unit
Commitment (not constituting a Redesignated Unit Commitment) (which such
special amounts of not more than $200,000 shall subsequently be
appropriately allocated to the cost of the unit in question for purposes
of measuring compliance with the limitations set forth in subsections (e)
or (g) hereof, as applicable). The units referred to in clause (i) of this
Section 10.3(b) to be developed in 2002 shall solely be Morton's
Restaurants (and shall not utilize any New Concept). Subsequent to Fiscal
Year 2002, the Companies may not open (or convert any of their existing
restaurants to) units constituting more than two New Concepts, provided
that only one unit constituting a New Concept shall be opened (or result
from such a conversion) in the first year of utilizing the New Concept."
(b) Section 10.3(c) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"Notwithstanding anything to the contrary set forth in this Section 10.3,
the Companies may make capital expenditures (including New Construction
Capital Expenditures and Maintenance Capital Expenditures) from time to
time to the extent funded from the Additional Equity Basket Amount."
(c) Section 10.3(e) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(e) The Companies will not permit their aggregate capital
expenditures not related to New Construction ("Maintenance Capital
Expenditures"), determined on a consolidated basis in accordance with
generally accepted accounting principles to exceed (i) $4,000,000 in the
2002 Fiscal Year, or (ii) $5,000,000 in any subsequent Fiscal Year;
PROVIDED that if the aggregate amount of Maintenance Capital
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Expenditures made in any such Fiscal Year is less than the maximum amount
set forth above as permitted in such Fiscal Year, the maximum amount of
Maintenance Capital Expenditures permitted under this clause (e) in the
immediately following Fiscal Year shall be increased by such difference;
provided, however, that no such carryover shall exceed $3,000,000."
(d) Section 10.3(f) of the Credit Agreement is hereby amended by deleting
the phrase "Default or" from the first line of Section 10.3(f).
(e) Section 10.3(g) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(g) The Companies will not permit the average amount per unit of
actual capital expenditures related to New Construction ("New Construction
Capital Expenditures") of units (other than those units specified in
ss.10.3(b)(i) hereof) completed after the Fifteenth Amendment Closing Date
to exceed $2,000,000, and such New Construction Capital Expenditures shall
in any event be made only for units permitted to be developed under
Section 10.3(b) above; provided, however, that (x) the aggregate actual
New Construction Capital Expenditures for the relevant units may exceed
$2,000,000 multiplied by the number of the relevant new units completed
after the Fifteenth Amendment Closing Date to the extent made from the
Additional Equity Basket Amount at such time or reimbursed to the
Companies from the proceeds of Make-Up Equity received by Quantum on or
before the 60th day following completion of the relevant unit, (y) if (A)
the aggregate amount of New Construction Capital Expenditures made in
respect of permitted units completed in any Fiscal Year is less than (B)
the number of such completed units multiplied by $2,000,000 (the amount by
which the amount of item (A) is less than the amount of item (B) is the
"Carryover Amount") and the Carryover Amount is at least $750,000, the
number of New Construction Commitments to be entered into in the
immediately succeeding Fiscal Year pursuant to Section 10.3(b)(ii) shall
increase by one, provided that if the New Construction Capital
Expenditures in respect of the least expensive unit in respect of which of
a New Construction Commitment is entered into in the immediately
succeeding Fiscal Year exceeds the Carryover Amount, such excess shall be
made and funded from the Additional Equity Basket Amount at such time or
from Make-Up Equity received by Quantum within 60 days of the completion
of such unit, and (z) the foregoing provisions of this clause (g)
notwithstanding, the amount of cash received as insurance proceeds
(excluding proceeds from business interruption insurance) in respect of
the casualty loss with respect to the unit located at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, shall also be deemed to constitute additional permitted
amounts under this clause (g) available to be used either in 2002 for New
Construction Capital Expenditures relating to the five specified permitted
units referred to in clause (b)(i) above to be developed in 2002, or (to
the extent not so utilized for such five specified permitted units in
2002) to be used after 2002 for New Construction Capital Expenditures
-15-
relating to a single additional unit, in addition to those expressly
permitted by clause (b)(ii) above, built after 2002 solely with such
insurance proceeds (which shall then in such case be deemed to be
permitted to be developed under clause (b) of this Section 10 in addition
to (and without regard to the number of) those permitted under such clause
(b) by reference to the Cash Flow Leverage Ratio), until such total
insurance proceeds amount has been deemed utilized, on a cumulative basis,
in its entirety hereunder."
ss.1.14. Distributions. Section 10.5 of the Credit Agreement is hereby
amended by deleting the text of Section 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, except for (i) fees and other amounts permitted
to be paid under ss.10.18 hereof, (ii) amounts permitted by Sections
10.5(a) and 10.10(b) hereof relating to the Peasant Holding Stockholders
Agreement, (iii) the payment by Xxxxxx Xxxxxx Holdings or Xxxxxx Xxxxxx
Merger Sub of the merger consideration for the Xxxxxx Xxxxxx Transaction
solely from funds provided by Xxxxxx Xxxxxx Holdings, (iv) Quantum may in
connection with the repurchase of its capital stock from its stockholders
upon their termination of employment, death, or disability (x) issue to
such holders the Stock Repurchase Notes as consideration for such
repurchases, and (y) if no Default or Event of Default then exists, and
none would result therefrom, pay cash consideration in respect of such
repurchases or make cash principal or interest payments in respect of
Stock Repurchase Notes previously issued, not to exceed $500,000 in the
aggregate in a Fiscal Year for all such cash payments, provided that, (A)
if in any Fiscal Year the amount of such cash payments so permitted by the
foregoing provisions of this clause (y) is not so utilized, such
unutilized amount from such Fiscal Year may be utilized in succeeding
Fiscal Years (each being referred to as an "Unutilized Amount"), and (B)
that the Unutilized Amount in any Fiscal Year may be utilized for
additional Distributions under this clause (iv)(y), in any one or more
subsequent Fiscal Years, or carried over (in addition to any Unutilized
Amount for that Fiscal Year) to any succeeding Fiscal Year, but in no
event shall the aggregate amount of cash Distributions made under this
clause (iv)(y), in any Fiscal Year, after use of such Unutilized Amounts
exceed $1,500,000, and (v) if no Default or Event of Default then exists,
and none would result therefrom, Distributions may be made from the
Additional Equity Basket Amount. Prior to the Fourteenth Amendment Date,
Quantum shall be permitted to have made any Distribution permitted by this
Agreement as in effect on the date of such Distribution."
ss.1.15. Cash Flow Coverage Ratio. Section 10.6 of the Credit Agreement is
hereby amended in its entirety to read as follows:
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"ss.10.6. Cash Flow Coverage Ratio. The Borrowers will not permit
the Cash Flow Coverage Ratio (as defined below), as determined for any
Reference Period ending with any Fiscal Quarter set forth in the table
below to be less than the ratio set forth in the table below opposite the
Fiscal Quarter ending such Reference Period:
FISCAL QUARTER ENDING THE
REFERENCE PERIOD MINIMUM RATIO
First FQ of 2002 1.10 to 1.00
Second FQ of 2002 1.10 to 1.00
Third FQ of 2002 1.15 to 1.00
Fourth FQ of 2002 1.15 to 1.00
First FQ of 2003 1.15 to 1.00
Second FQ of 2003 1.20 to 1.00
Third FQ of 2003 1.20 to 1.00
Fourth FQ of 2003 1.25 to 1.00
First FQ of 2004 1.25 to 1.00
Second FQ of 2004 1.25 to 1.00
Third FQ of 2004 1.25 to 1.00
Fourth FQ of 2004 1.30 to 1.00
First FQ of 2005 1.30 to 1.00
Second FQ of 2005 1.30 to 1.00
Third FQ of 2005 1.30 to 1.00
Fourth FQ of 2005 and thereafter 1.35 to 1.00
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 the Specified Term Loan Prepayment and the 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.1.16. Cash Flow Leverage Ratio. Section 10.7 of the Credit Agreement 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 set forth in the table below for the Reference Period then ending
to exceed the ratio set forth in the table below opposite the Fiscal
Quarter ending such Reference Period:
FISCAL QUARTER ENDING THE
REFERENCE PERIOD MAXIMUM RATIO
First FQ of 2002 4.50 to 1.00
Second FQ of 2002 4.25 to 1.00
Third FQ of 2002 3.85 to 1.00
Fourth FQ of 2002 3.50 to 1.00
First FQ of 2003 3.35 to 1.00
Second FQ of 2003 3.25 to 1.00
Third FQ of 2003 3.10 to 1.00
Fourth FQ of 2003 2.85 to 1.00
First FQ of 2004 2.85 to 1.00
Second FQ of 2004 2.75 to 1.00
Third FQ of 2004 2.75 to 1.00
Fourth FQ of 2004 2.50 to 1.00
First FQ of 2005 2.50 to 1.00
Second FQ of 2005 2.25 to 1.00
Third FQ of 2005 2.25 to 1.00
Fourth FQ of 2005 and thereafter 2.00 to 1.00"
ss.1.17. Transactions with Affiliates. Section 10.8 of the Credit
Agreement is hereby amended to read in its entirety as follows:
"ss.10.8. Transactions with Affiliates. The Companies will not, and
will not permit any of their Subsidiaries to, engage in any transaction
with any Affiliate, including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of
real or personal property to or from, or otherwise requiring payments to
(or for the benefit of) or from, directly or indirectly, any such
Affiliate, on terms more favorable to such Person than would have been
obtainable on an arm's-length basis in the ordinary course of business,
except (a) transactions among the Companies and their Subsidiaries, (b)
transactions constituting Investments permitted by ss.10.11 hereof, (c)
transactions constituting Distributions permitted by ss.10.5 hereof, and
(d) the payment of management fees to CHI and its Affiliates permitted by
ss.10.18 hereof."
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ss.1.18. Stock Repurchase Arrangements. Section 10.10(b) of the Credit
Agreement is hereby amended by adding the following new text immediately before
the period at the end of the first sentence of Section 10.10(b):
", and obligations of Quantum to repurchase capital stock from its
stockholders but only to the extent and pursuant to arrangements expressly
permitted as Distributions under Section 10.5(b)(iv) hereof."
ss.1.19. Investments. Section 10.11 of the Credit Agreement is hereby
amended by adding the following new clause (n):
"(n) additional Investments made from the Additional Equity Basket
Amount."
ss.1.20. Management Fees, Etc. Section 10 of the Credit Agreement is
hereby amended by adding the following new Section 10.18, immediately after the
existing Section 10.17:
"ss.10.18. Management Fees, Etc. The Companies shall not pay any
management fees to CHI, to Xxxxxx Xxxxxx Holdings, to Xxxxxx Xxxxxx
Partners, or to any other equity holders (direct or indirect) of the
Companies owning 5% or more of the voting stock of Quantum (directly or
indirectly) (other than to the Companies) or to any Affiliate of the
Companies or any Affiliate of any equity holders (direct or indirect) of
the Companies owning 5% or more of the voting stock of Quantum (directly
or indirectly) (other than, in each case, to the Companies), except:
(a) the Companies shall be permitted to pay a management fee to CHI
(or its Affiliates) upon the consummation of the Xxxxxx Xxxxxx
Transaction, not to exceed $2,800,000;
(b) only subsequent to receipt by the Lenders from the Companies of
the audited annual financial statements and Compliance Certificates
required under ss.9.4 for the Fiscal Year ending in December 2002, and
provided in each case that CHI (or the other applicable Affiliate thereof
that is the Person to which the applicable fees are to be paid or are
owed) shall have previously entered into a written subordination agreement
with respect thereto in favor of the Agent and the Lenders in form and
substance reasonably satisfactory to the Agent, and further provided in
each case that no Default or Event of Default exists at the time of
payment of the applicable fees (and none will exist after giving effect to
the payment thereof):
(i) the Companies shall be permitted to pay to CHI (or its
Affiliates) an annual management fee, in an aggregate annual amount
-19-
not to exceed $1,400,000, payable in cash installments quarterly in
advance, at the beginning of each Fiscal Quarter;
(ii) in addition to the periodic amounts permitted to be paid
quarterly pursuant to clause (i) above in this subsection (b),
provided that the Cash Flow Leverage Ratio for the Reference Period
for which the then most recent Compliance Certificate and financial
statements have been delivered under ss.9.4 is equal to or lesser
than 3.00 to 1.00, the Companies shall be permitted to pay to CHI
(or its Affiliates) on the quarterly fee payment dates referred to
above additional quarterly amounts of management fees not to exceed
$175,000 per quarter;
(iii) in addition to the periodic amounts permitted to be paid
quarterly pursuant to clauses (i) and (ii) above in this subsection
(b), provided that the Cash Flow Leverage Ratio for the Reference
Period for which the then most recent Compliance Certificate and
financial statements have been delivered under ss.9.4 is equal to or
lesser than 2.75 to 1.00, the Companies shall be permitted to pay to
CHI (or its Affiliates) on the quarterly fee payment dates referred
to above additional quarterly amounts of management fees not to
exceed $175,000 per quarter; and
(iv) in the event that the payment of the management fees
described to in clause (i), (ii) or (iii) above are not permitted to
be paid, such applicable fees shall accrue and the Companies shall
be permitted to pay such accrued management fees to CHI (or its
Affiliates) on the first Business Day on which (x) no Default or
Event of Default is in existence (and none would exist after giving
effect to such payment) and (y) the Cash Flow Leverage Ratio for the
Reference Period for which the then most recent Compliance
Certificate and financial statements has been delivered under ss.9.4
is equal to or lesser than 2.65:1.00 as determined after adjustment
of such calculation on a pro forma basis (A) to treat such accrued
fees proposed to be so paid as if paid with additional Revolving
Credit Loans borrowed during, and outstanding at the end of, such
Reference Period for which such pro forma calculation is made and
(B) to give effect to the repayments of Funded Indebtedness made
since the end of such Reference Period."
ss.1.21. Mergers, Etc. Section 10.12 of the Credit Agreement is hereby
amended by adding the following new sentence at the end of Section 10.12:
"Further, the parties agree that this Section 10.12 shall not restrict or
prohibit the Xxxxxx Xxxxxx Transaction."
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ss.1.22. EVENTS OF DEFAULT.
(a) Section 11(c) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(c) if any of the Borrowers shall fail to comply with any of its
covenants contained in ss.9.2, ss.9.3, ss.9.4, ss.9.6, ss.9.18, or ss.10
hereof;"
(b) Section 11 of the Credit Agreement is hereby amended by adding the
word "or" at the end of Section 11(k) and inserting the following new Section
11(l), immediately after Section 11(k):
"(l) a Change of Control shall occur;"
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 Amendment Closing 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 Amendment Closing
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 that is a Business Day (which must be not later than
December 31, 2002) as of which there shall have first occurred the satisfaction
of each of the following conditions precedent (such date of such conditions
precedent being satisfied being referred to as the "Amendment Closing Date"):
(a) Delivery of Amendment. 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
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Amendment signed by each of the Borrowers, each of the Guarantors, the Agent,
and the Majority Lenders;
(b) PAYMENTS TO AGENT AND LENDERS. The payment by (or on behalf of) the
Borrowers (x) of an amendment fee for the Lenders which have executed and
delivered this Amendment to be paid to the Agent for allocation among the
respective Lenders in the manner separately agreed among the Lenders, in an
aggregate amount equal to $600,000 (constituting approximately 0.75% of the
Total Exposure as in effect on the date hereof set forth in the preamble hereto,
after giving effect on a prospective basis to the Specified Term Loan Prepayment
contemplated hereby), and (y) the reasonable 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;
(c) CORPORATE DOCUMENTS; PROCEEDINGS; ETC. The Agent shall have received
such evidence as it may reasonably request of corporate (or other applicable
organizational) existence, good standing, power, and authorization with respect
to the Companies and the parties to the Xxxxxx Xxxxxx Transaction, and as to the
titles, incumbency, and specimen true signatures of the applicable officers and
other representatives of the Companies and such parties to the Xxxxxx Xxxxxx
Transaction, and all corporate proceedings in connection with the transactions
contemplated by this Amendment and all other documents incident thereto shall be
reasonably satisfactory to the Agent and the Agent's Special Counsel, and the
Agent and such counsel shall have received any and all such customary legal
opinions, certificates of public officials, certificates of corporate officers,
and counterpart originals or certified or other copies of such documents, as the
Agent or the Agent's Special Counsel, in each case, may reasonably request (it
being acknowledged that (x) the Merger Agreement relating to the Xxxxxx Xxxxxx
Transaction, as last furnished to the Agent prior to the date of execution of
this Amendment (the "Merger Agreement"), is satisfactory to the Agent and (y)
any modifications to the Merger Agreement shall be required to be reasonably
satisfactory to the Agent);
(d) FUNDING OF THE TRANSACTION. (x) Xxxxxx Xxxxxx Holdings shall have
funded the entire merger consideration and transaction costs and expenses for
the Xxxxxx Xxxxxx Transaction (from sources other than from funds of the
Companies and their Subsidiaries), and the Agent shall have received such
evidence thereof as the Agent may reasonably request, (y) contemporaneously with
the consummation of the Xxxxxx Xxxxxx Transaction, the Specified Equity
Contribution shall have been completed and the Specified Term Loan Prepayment
shall have been made, and (z) upon the consummation of the Xxxxxx Xxxxxx
Transaction, to the extent that the transaction costs and expenses relating to
the consummation thereof are less than $10,000,000, a payment shall be made by
(or on behalf of) the Borrowers in respect of outstanding Revolving Credit Loans
on such date at least equal to the amount of such difference, funded with the
proceeds of cash common equity capital contributed to Quantum on such date by
its equity holder(s) (it being understood and agreed that any
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such payment in respect of outstanding Revolving Credit Loans shall not
constitute a reduction, however, of the Revolving Credit Commitment Amount);
(e) SOURCES AND USES. The Agent shall have received from the Companies or
CHI a statement of sources and uses of funds with respect to the Xxxxxx Xxxxxx
Transaction and the related transaction costs and expenses; such sources and
uses of funds shall be substantially consistent with the information and
estimates with respect thereto provided to the Agent and the Lenders on March
15, 2002;
(f) REPRESENTATIONS AND WARRANTIES; NO DEFAULTS. (x) The representations
and warranties in Section 2 hereof shall be true and correct in all material
respects on and as of the date hereof and the Amendment Closing Date, and the
Agent shall have received such evidence thereof as it may reasonably request,
and (y) no Default or Event of Default shall exist and be continuing, and none
shall exist, after giving effect to the effectiveness of this Amendment, on and
as of the Amendment Closing Date;
(g) COMPLIANCE WITH LAW; NO INJUNCTIONS; GOVERNMENTAL AND OTHER THIRD
PARTY APPROVALS. The Xxxxxx Xxxxxx Transaction shall have been consummated in
all material respects in accordance with applicable laws. The Xxxxxx Xxxxxx
Transaction shall have been consummated in accordance with the Merger Agreement
and all conditions precedent to the consummation of the Xxxxxx Xxxxxx
Transaction as set forth in the Merger Agreement shall have been satisfied, and
not waived except with the consent of the Agent (not to be unreasonably withheld
or delayed), to the reasonable satisfaction of the Agent. The Agent shall have
received such evidence of the foregoing matters set forth in this Section 3(g)
(including, without limitation, copies of merger certificates relating thereto
as filed with the applicable public officials); and
(h) NO ILLEGALITY. There shall not be in effect or pending (on appeal or
otherwise) any stay, injunction, judgment, order, finding, decree, or ruling of
or by any court or governmental or regulatory authority agency or authority to
the effect that this Amendment, any of the Loan Documents, or any matter
relating hereto or thereto is illegal, invalid, or unenforceable in any material
respect, or restraining, enjoining, or limiting in any material respect the
consummation or performance hereof or thereof.
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
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amended hereby and as the same may be amended, modified, supplemented, or
restated from time to time. The Borrowers confirm their continuing obligations
under Section 14 of the Credit Agreement as applied with respect to this
Amendment, the Loan Documents, the Xxxxxx Xxxxxx Transaction, and the matters
relating hereto and thereto. 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. Delivery by any party of
photocopies of the signed signature page of such party to this Amendment by
facsimile telecopier shall be as effective as the delivery of manually executed
counterparts of this Amendment by such party.
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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers or other representatives thereunto duly
authorized.
FLEET NATIONAL BANK (formerly known as
BankBoston, N.A.), for itself and as
Administrative Agent
By: /s/ Xxxxxx X. XxxXxxxxxx
----------------------------------------
Name: Xxxxxx X. XxxXxxxxxx
--------------------------------------
Title: Director
-------------------------------------
FIRST UNION NATIONAL BANK, for itself and
as Documentation Agent
By: /s/ Xxxxx Xxxx
----------------------------------------
Name: Xxxxx Xxxx
--------------------------------------
Title: Senior Vice President
-------------------------------------
JPMORGAN CHASE BANK (formerly known as
The Chase Manhattan Bank)
By: /s/ Xxxxxxx XxXxxx
----------------------------------------
Name: Xxxxxxx XxXxxx
--------------------------------------
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
-------------------------------------
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
