MEXICAN RESTAURANTS, INC.
Exhibit
10.24
EXECUTION
COPY
MEXICAN
RESTAURANTS, INC.
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Dated
as
of: November 15, 2005
Effective
as of: June 30, 2005
Bank
of
America, N.A.
(successor
by merger to Fleet National Bank)
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Re:
Amendment No. 2 to Amended and Restated Revolving Credit
and
Term Loan Agreement
Ladies
and Gentlemen:
We
refer
to the Amended and Restated Revolving Credit and Term Loan Agreement (the
“Loan
Agreement”), dated as of January 7, 2004, between Mexican Restaurants, Inc. (the
“Borrower”) and Bank of America, N.A. (successor by merger to Fleet National
Bank) (the “Lender”). All of the words and expressions used in this letter of
agreement (this “Amendment No. 2”) which are not defined herein, but which are
defined in the Loan Agreement, shall have the same meanings herein as specified
therefor in the Loan Agreement.
We
have
requested that you make certain amendments to the Loan Agreement and you
have
advised us that you are prepared and would be pleased to make the amendments
requested by us, but only on the condition that we join with you in this
letter
of agreement.
Accordingly,
in consideration of these premises, the promises, mutual covenants and
agreements contained in this Amendment No. 2, and fully intending to be legally
bound by this Amendment No. 2, we hereby agree with you as
follows:
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ARTICLE
I
AMENDMENTS
TO LOAN AGREEMENT
Effective
as of June 30, 2005 (herein the “Modification Date”), the Loan Agreement is
amended as follows:
(a) Each
reference in any Loan Document to the Loan Agreement shall be deemed to mean
and
include this Amendment No. 2, and this Amendment No. 2 shall be deemed to
be a Loan Document for all purposes under the Loan Agreement.
(b) The
first
sentence of the definition of “Consolidated Cash Flow” is amended to read in its
entirety as follows:
1.18 “Consolidated
Cash Flow” means, in relation to the Borrower Affiliated Group on a Consolidated
basis for any period, Consolidated EBITDA for such period, minus
(a) cash
Taxes paid during such period, and minus
(b)
Consolidated Maintenance Capital Expenditures during such period.
(c) The
table
set forth in Section 2.6 of the Loan Agreement is amended to read in its
entirety as follows:
|
Table
1
Applicable
Interest Rate Margins
|
|||
|
Level
|
Maximum
Consolidated Leverage Ratio
|
Applicable
Prime Rate Margin
|
Applicable
LIBOR Margin
|
|
I
|
<1.00
|
0.00%
|
2.00%
|
|
II
|
>1.00,
but <1.50
|
0.50%
|
2.50%
|
|
III
|
>1.50,
but <1.75
|
1.00%
|
3.00%
|
|
IV
|
>1.75
|
1.50%
|
3.50%
|
(d) Clause
(iii) of Section 5.9 of the Loan Agreement is amended: (i) by deleting the
reference to “$1,000,000” contained therein; and (ii) by inserting in its place
the following: “$2,000,000”.
(e) Section
5.16(b) of the Loan Agreement is amended by inserting the following new second
sentence:
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Notwithstanding
clause (iv) of the immediately preceding sentence, it is agreed that the
minimum
EBITDA requirement shall be reduced to $6,000,000 for each of the fiscal
quarters ending September 30, 2005, December 31, 2005, March 31, 2006, June
30,
2006 and September 30, 2006, whereupon such minimum requirement shall
automatically revert to $6,500,000 for the fiscal quarter ending December
31,
2006 and for each fiscal quarter thereafter.
(f) Section
5.16(c) of the Loan Agreement is amended to read in its entirety as
follows:
Section
5.16(c) Minimum Consolidated Cash Flow Coverage. The Borrower shall not permit
the ratio of Consolidated Cash Flow to Consolidated Financial Obligations
to be
less than: (i) 2.0 to 1.0 as at the last day of each of the fiscal quarters
ending on September 30, 2005, December 31, 2005, March 31, 2006, June 30,
2006
and September 30, 2006 (as determined at the end of each such fiscal quarter
for
the four consecutive quarters then ending); and (ii) 2.5 to 1.0 as at the
end of
any fiscal quarter thereafter (as determined at the end of each such fiscal
quarter for the four consecutive quarters then ending).
| (g) |
The
table set forth in Section 5.16(e) of the Loan Agreement is amended
to
read in its entirety as follows:
|
|
Period
|
Maximum
Amount
|
|
Fiscal
Year 2005
|
$4,600,000
|
|
Fiscal
Year 2006 and thereafter
|
$4,250,000
|
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
The
Borrower hereby represents and warrants to the Lender as follows:
(a)
Representations
in Loan Documents.
Each of
the representations and warranties made by or on behalf of the Borrower or
any
other member of the Borrower Affiliated Group to you in any of the Loan
Documents, as amended by this Amendment No. 2, was true and correct when
made
and is true and correct on and as of the Modification Date (except to the
extent
that such representations and warranties relate expressly to an earlier date)
with the same full force and effect as if each of such
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representations
and warranties had been made by the Borrower or such other member of the
Borrower Affiliated Group on the date hereof and in this Amendment No.
2.
(b)
Defaults.
No
Default or Event of Default exists on the date hereof.
(c)
Binding
Effect of Documents.
This
Amendment No. 2 has been duly executed and delivered to you by the Borrower
and
is in full force and effect as of the effective date hereof, and the agreements
and obligations of the Borrower contained herein constitute the legal, valid
and
binding obligations of the Borrower, enforceable against the Borrower in
accordance with its terms.
ARTICLE
III
PROVISIONS
OF GENERAL APPLICATION
(a)
No
Other Changes.
Except
as otherwise expressly provided by this Amendment No. 2, all of the terms,
conditions and provisions of the Loan Agreement and the other Loan Documents
remain unaltered. The Loan Agreement and this Amendment No. 2 shall be read
and
construed as one agreement. The making of the amendments in this Amendment
No. 2
does not imply any obligation or agreement by the Lender to make any other
amendment, waiver, modification or consent as to any matter on any subsequent
occasion.
(b)
Governing
Law.
This
Amendment No. 2 is intended to take effect as a sealed instrument and shall
be
deemed to be a contract under the laws of the Commonwealth of Massachusetts.
This Amendment No. 2 and the rights and obligations of each of the parties
hereto are contracts under the laws of the Commonwealth of Massachusetts
and
shall for all purposes be construed in accordance with and governed by the
laws
of such Commonwealth (without regard to conflicts of law rules).
(c)
Binding
Effect; Assignment.
This
Amendment No. 2 shall be binding upon and inure to the benefit of each of
the
parties hereto and their respective successors and assigns.
(d)
Counterparts.
This
Amendment No. 2 may be executed in any number of counterparts, but all such
counterparts shall together constitute but one and the same agreement. In
making
proof of this Amendment No. 2, it shall not be necessary to produce or account
for more than one counterpart hereof signed by each of the parties
hereto.
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(e)
Conflict
with Other Agreements.
If any
of the terms of this Amendment No. 2 shall conflict in any respect with any
of the terms of any of the Loan Documents, the terms of this Amendment No.
2
shall be controlling.
(f)
Conditions
Precedent.
The
obligation of the Lender to make the foregoing amendments to the Loan Agreement
is subject to (i) the Lender having received an executed original counterpart
of
this Amendment No. 2, duly executed and delivered by the Borrower, and (ii)
the
Lender having signed this Amendment No. 2.
If
you
are in agreement with the foregoing, please sign below and deliver a signed
counterpart hereof to the undersigned, whereupon this Amendment No. 2, as
so
accepted by you, shall become a binding agreement among you and the
undersigned.
Very
truly yours,
MEXICAN
RESTAURANTS, INC.
By:_____________________
Name:
Title:
On
behalf
of, and in his capacity as
Vice
President of, the Borrower and each
other
member of the Borrower Affiliated
Group
ACCEPTED
AND AGREED:
BANK
OF
AMERICA, N.A.
(successor
by merger to Fleet National Bank)
By:________________________
Name:
Title: