FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of September 15, 1999,
is made among AVADO BRANDS, INC., as "Borrower"; WACHOVIA BANK, NATIONAL
ASSOCIATION, BANKBOSTON, N.A., and the other parties listed as a "Bank" or the
"Banks" on the signature page(s) hereof, as "Banks"; WACHOVIA BANK, NATIONAL
ASSOCIATION, as "Administrative Agent" for the Banks, the "Syndication Agent,"
the "Arranger," the "Co-Arranger" (each as defined below) and itself;
BANKBOSTON, N.A., as "Syndication Agent " for the Banks; WACHOVIA SECURITIES,
INC., as "Arranger"; and BANCBOSTON XXXXXXXXX XXXXXXXX, INC., as "Co-Arranger."
The Borrower, the Banks, the Administrative Agent, the Syndication Agent, the
Arranger and the Co-Arranger are hereinafter called, collectively, the
"Parties." The Parties are parties to a Credit Agreement, dated as of June 22,
1999 (the "Credit Agreement"), and are entering into this Amendment for the
purpose of amending the Credit Agreement in the manner specified below.
Accordingly, for value received, the Parties agree as follows:
1. Definitions.
1.1 Terms Incorporated by Reference. Capitalized terms used herein, but not
expressly defined herein, shall have the meanings given to such terms in the
Credit Agreement.
1.2 Change to Accounting Terms and Determinations . The last sentence of
Section 1.2 of the Credit Agreement, which presently reads as follows:
In determining compliance of the Borrower with the financial covenants set
forth in Sections 5.4 through 5.7 hereof, and, in making such calculations for
any other purposes hereunder, including, without limitation, the determination
of the Applicable Margin pursuant to the definition thereof and the
determination of the unused commitment fee pursuant to Section 2.6.2, (i) there
shall be excluded from the calculations of Consolidated Net Income, depreciation
and amortization expense and operating lease and rent expense any amounts
attributable to Applebee's Neighborhood Grill & Bar restaurants which were sold
prior to the Closing Date, and [(ii)] for the Fiscal Quarters of Borrower ending
closest to June 30, 1999, September 30, 1999, December 31, 1999 and March 31,
2000, interest expense shall be "annualized," rather than presented
historically; e.g., for the four (4) Fiscal Quarters ending closest to each such
date, interest expense shall be computed by multiplying interest expense for the
Fiscal Quarter ending closest to such date, and multiplying by four (4).
shall be deleted in its entirety and the following revised last sentence
shall be substituted in its place:
In determining compliance of the Borrower with the financial covenants set
forth in Sections 5.4 through 5.7 hereof, and, in making such calculations for
any other purposes hereunder, including, without limitation, the determination
of the Applicable Margin pursuant to the definition thereof and the
determination of the unused commitment fee pursuant to Section 2.6.2, there
shall be excluded from the calculations of Consolidated Net Income, depreciation
and amortization expense and operating lease and rent expense any amounts
attributable to Xxxxxxxx'x Neighborhood Grill & Bar restaurants which were sold
prior to the Closing Date.
1.3 Change to Defined Term. The defined term "Fixed Charge Coverage Ratio,"
set forth in Section 1.1 of the Credit Agreement, which presently reads:
"Fixed Charge Coverage Ratio" shall mean, for any fiscal period, the ratio
which (A) the sum of (i) EBITDAR for such period; plus (ii) the sum (without
duplication) of (a) any dividends paid in respect of Redeemable Preferred Stock
during such period, plus (b) any payments made (howsoever denominated or
construed) in respect of any TECONS in such period, regardless of maturity or
the timing of any redemption or repurchase rights granted in regard thereto (the
sum of (a) and (b) above being called, collectively, "Investment Costs" herein);
bears to (B) the sum (without duplication) of: (i) all Investment Costs; plus
(ii) operating lease expense; plus (iii) interest expense; in each case, for the
Borrower and its Consolidated Subsidiaries for the same such period; all as
determined under GAAP.
shall be deleted in its entirety and the following revised definition of
"Fixed Charge Coverage Ratio" shall be substituted in its place (emphasis added
to reflect additions):
"Fixed Charge Coverage Ratio" shall mean, for any fiscal period, the ratio
which (A) the sum of (i) EBITDAR for such period; plus (ii) the sum (without
duplication) of (a) any dividends paid in respect of Redeemable Preferred Stock
during such period, plus (b) any payments made (howsoever denominated or
construed) in respect of any TECONS in such period, regardless of maturity or
the timing of any redemption or repurchase rights granted in regard thereto (the
sum of (a) and (b) above being called, collectively, "Investment Costs" herein);
bears to (B) the sum (without duplication) of: (i) all Investment Costs; plus
(ii) operating lease expense; plus (iii) interest expense; in each case, for the
Borrower and its Consolidated Subsidiaries for the same such period; all as
determined under GAAP; provided, however, that for the Fiscal Quarters of
Borrower ending closest to June 30, 1999, September 30, 1999, December 31, 1999
and March 31, 2000, interest expense shall be "annualized," rather than
presented historically; that is, computed as follows: (i) for the Fiscal Quarter
ending closest to June 30, 1999, multiply interest expense for such Fiscal
Quarter by four (4); (ii) for the Fiscal Quarter ending closest to September 30,
1999, add together interest expense for such Fiscal Quarter and the preceding
Fiscal Quarter, divide the sum obtained by two (2), and multiply the quotient
resulting by four (4); (iii) for the Fiscal Quarter ending closest to December
31, 1999, add together interest expense for such Fiscal Quarter and the two (2)
preceding Fiscal Quarters, divide the sum obtained by three (3), and multiply
the quotient resulting by four (4); and (iv) for the Fiscal Quarter ending
closest to March 31, 2000, add together interest expense for such Fiscal Quarter
and the three (3) preceding Fiscal Quarters, divide the sum obtained by four (4)
and multiply the quotient resulting by four (4).
1.4 Certain Designations. Section 9.20 of the Credit Agreement (Certain
Designations) shall be amended by adding thereto, at the present end thereof,
the following sentence:
Without limitation of the foregoing, neither the "Arranger" nor the
"Co-Arranger" shall be necessary parties to any consent, waiver or amendment to
this Agreement which may be made hereafter, and any requirement for their
signatures to any such document are hereby waived by the other parties hereto.
2. Miscellaneous.
2.1 Effect and Effective Date of Amendments. The effective date of the
amendments to the Credit Agreement set forth in Sections 1.2 and 1.3 above shall
be the Closing Date. Except as set forth expressly herein, all terms of the
Credit Agreement shall remain unchanged. It is not intended by the Parties that
this Amendment constitute, and this Amendment, shall not constitute a novation
2.2 Georgia Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF GEORGIA.
2.3 Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
2.4 Entire Agreement. This Amendment shall constitute the entire agreement
among the parties with respect to the subject matter hereof.
2.5 Restatement of Representations and Warranties. To induce all other
Parties to enter into this Amendment (A) Borrower hereby restates and renews
each and every representation and warranty heretofore made by it under, or in
connection with, the execution and delivery of, the Credit Agreement; (B)
Borrower hereby restates, ratifies and reaffirms each and every term and
condition set forth in the Credit Agreement, as amended hereby, and in the Loan
Documents, as amended hereby, effective as of the date hereof; and (C) Borrower
hereby certifies that no Event of Default or Default Condition has occurred and
is continuing.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, under seal, by their respective authorized officers, as of the
day and year first above written.
"BORROWER"
AVADO BRANDS, INC. (SEAL)
By:_________________________________
Xxxxx X. Xxxxxxx
Senior Vice President of Finance
Attest:_____________________________
Xxxx X. XxXxxx, Xx.
Secretary
"BANKS"
WACHOVIA BANK, NATIONAL
ASSOCIATION, as the Administrative Agent and as
a Bank (SEAL)
By:________________________________
X. Xxxxxxxx Rison, Vice President
BANKBOSTON, N.A., as Syndication Agent
and as a Bank (SEAL)
By:________________________________
Name:__________________________
Title:___________________________
SUNTRUST BANK, ATLANTA,
as a Bank
By:________________________________
Name:___________________________
Title:____________________________
By:________________________________
Name:___________________________
Title:____________________________
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL,"
NEW YORK BRANCH
By:________________________________
Name:___________________________
Title:____________________________
By:________________________________
Name:___________________________
Title:____________________________
COMERICA BANK,
as a Bank
(SEAL)
By:________________________________
Name:___________________________
Title:____________________________
SOUTHTRUST BANK, NATIONAL ASSOCIATION, as a Bank
(SEAL)
By:________________________________
Name:___________________________
Title:____________________________
