EXHIBIT 10.16
AMENDMENT NO. 9 TO REVOLVING CREDIT AGREEMENT
Dated as of December 20, 2004
This AMENDMENT NO. 9 TO REVOLVING CREDIT AGREEMENT, dated as of
December 20, 2004 (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 ▇▇▇▇▇▇▇ FAMILY RESTAURANTS, L.P., a
Delaware limited partnership ("Perkins"), THE RESTAURANT COMPANY, a Delaware
corporation ("TRC"), ▇▇▇▇▇▇▇ RESTAURANTS, INC., a Minnesota corporation ("PRI"),
▇▇▇▇▇▇▇ MANAGEMENT COMPANY, INC., a Delaware corporation ("PMC"), and ▇▇▇▇▇▇▇
FINANCE CORP., a Delaware corporation ("PFC", and 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;
WHEREAS, pursuant to a Guaranty, dated as of September 30, 2000, by The
Restaurant Company of Minnesota ("TRCM") in favor of the Agent and the Banks,
TRCM 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;
WHEREAS, pursuant to a Guaranty, dated as of September 30, 2000, by TRC
Realty LLC in favor of the Agent and the Banks, TRC Realty LLC 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;
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WHEREAS, the Borrower has requested that the Banks and the Agent agree
to amend certain of the terms of the Credit Agreement;
WHEREAS, the Banks and the Agent have agreed to amend certain of the
terms of the Credit Agreement upon the conditions set forth herein;
NOW THEREFORE, in consideration of the mutual agreements contained in
the Credit Agreement and herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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 "Applicable Margin" set forth in Section
1.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Applicable Margin. The Applicable Margin with respect to
Revolving Credit Loans that are Base Rate Loans shall be
1.25%. The Applicable Margin with respect to Eurodollar Rate
Loans and Letters of Credit shall be 3.25%."
(b) The definition of "Consolidated Cash Flow" set forth in
Section 1.1 of the Credit Agreement is hereby amended by deleting the
term "Maintenance Capital Expenditures" which appears in clause (h) of
such definition and substituting in lieu thereof the term "Capital
Expenditures".
(c) The definition of "Revolving Credit Loan Maturity Date"
set forth in Section 1.1 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"Revolving Credit Loan Maturity Date. January 12, 2006."
(d) The following new definitions are added in alphabetical
order:
"New Minnesota Property. See Section 9.13(d)."
"New Properties. See Section 10.6(b). "
"Sale Leaseback Properties. See Section 10.6(b)."
"Sale Leaseback Transaction. See Section 10.6(b)."
SS.1.2. COMMITMENT FEE. The Credit Agreement is hereby further amended
by deleting Section 2.2 in its entirety and substituting in lieu thereof the
following new Section 2.2:
"2.2 COMMITMENT FEE. The Borrower agrees to pay to the Agent
for the accounts of the Banks in accordance with their respective
Revolving Credit Commitment Percentages a commitment fee at an annual
rate equal to one-half of
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one percent (0.50%) on the average daily amount during each calendar
quarter or portion thereof from the Closing Date to the Revolving
Credit Loan Maturity Date by which the Total Revolving Credit
Commitment exceeds the sum of (i) the Outstanding amount of Revolving
Credit Loans, plus (ii) the Maximum Drawing Amount, plus (iii) all
Unpaid Reimbursement Obligations during such calendar quarter. The
commitment fee shall be payable quarterly in arrears on the last day of
each calendar quarter for the calendar quarter then ending, with a
final payment on the Revolving Credit Loan Maturity Date or any earlier
date on which the Revolving Credit Commitments shall terminate."
SS.1.3. LETTER OF CREDIT EXPIRY DATE. The Credit Agreement is hereby
further amended by deleting clause (b) of the first sentence of Section 5.1.3 in
its entirety and substituting in lieu thereof the following:
"(b) have an expiry date no later than the date which is
fourteen (14) days (or, if the Letter of Credit is confirmed by a
confirmer or otherwise provides for one or more nominated persons,
forty-five (45) days) prior to the Revolving Credit Loan Maturity
Date."
SS.1.4. RELEASE AND GRANT OF CERTAIN LIENS. The Credit Agreement is
hereby further amended by adding the following subsection (d) to Section 9.13:
"(d) The parties hereto agree that the Agent shall provide a
release of the liens granted by the Borrower to the Agent, for the
benefit of the Banks and the Agent, including without limitation any
mortgage or deed of trust and any Uniform Commercial Code financing
statement, upon the fee-owned property constituting Collateral and
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, provided that
the Borrower shall, simultaneously with such release of liens, grant to
the Agent, for the benefit of the Banks and the Agent, liens upon
Borrower's fee-owned property located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ (the "New Minnesota Property"), such liens to include without
limitation a fully executed mortgage or deed of trust over the New
Minnesota Property, in form and substance satisfactory to the Agent,
together with title insurance polices, evidences of insurances with the
Agent named as loss payee and additional insured, legal opinions and
other documents and certificates with respect to the New Minnesota
Property as was required for Real Estate of the Borrower or any of its
Subsidiaries subject to mortgages as of the Closing Date. The Borrower
further agrees that following the taking of such actions with respect
to the New Minnesota Property, the Agent shall have for the benefit of
the Banks and the Agent a valid and enforceable first priority mortgage
or deed of trust over the New Minnesota Property, free and clear of all
defects and encumbrances except for Permitted Liens."
SS.1.5. DISPOSITION OF ASSETS. The Credit Agreement is hereby further
amended by deleting Section 10.5(b) in its entirety and substituting in lieu
thereof the following:
"(b) become a party to or agree to or effect the disposition
of any substantial assets, other than sales of inventory in the
ordinary course of business, consistent with past practices; provided,
however, that if there is no Default or Event of Default in existence
at the time and none would be created as a result of such action, such
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Persons may dispose of additional assets in the ordinary course of
business with an aggregate book value not to exceed, on a cumulative
basis from the Closing Date, $37,000,000."
SS.1.6. SALE AND LEASEBACK. The Credit Agreement is hereby further
amended by deleting Section 10.6 in its entirety and substituting in lieu
thereof the following:
"10.6 SALE AND LEASEBACK.
(a) The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby the Borrower or any Subsidiary of the
Borrower shall sell or transfer any property owned by it in
order then or thereafter to lease such property or lease other
property that the Borrower or any Subsidiary of the Borrower
intends to use for substantially the same purpose as the
property being sold or transferred, unless such transaction
(hereinafter referred to as a "Sale Leaseback Transaction")
would be a permitted disposition of assets under Section 10.5
and the obligations of the Borrower or such Subsidiary as
lessee would constitute permitted Indebtedness under Section
10.1.
(b) Upon the Borrower's written request, Agent shall
release the liens, including without limitation any mortgage
or deed of trust granted by the Borrower to the Agent, for the
benefit of the Banks and the Agent, together with any Uniform
Commercial Code financing statements, existing upon the
fee-owned properties constituting Collateral which are the
subjects of a Sale Leaseback Transaction consummated prior to
the Revolving Credit Loan Maturity Date (the "Sale Leaseback
Properties"), provided that (i) the Borrower may request such
release of liens upon no more than thirteen (13) Sale
Leaseback Properties, (ii) fee-owned properties opened for
business by the Borrower subsequent to the Closing Date ("New
Properties") shall become Collateral under this Credit
Agreement in a number and value equal to the number and value
at least of the Sale Leaseback Properties, (iii)
simultaneously with the consummation of any Sale Leaseback
Transaction, the Borrower shall grant to the Agent, for the
benefit of the Banks and the Agent, liens upon the New
Properties, such liens to include without limitation a fully
executed mortgage or deed of trust over the New Properties, in
form and substance satisfactory to the Agent, together with
title insurance polices, evidences of insurances with the
Agent named as loss payee and additional insured, legal
opinions and other documents and certificates with respect to
such New Properties as was required for Real Estate of the
Borrower or any of its Subsidiaries as of the Closing Date,
(iv) following the taking of such actions with respect to such
New Properties, the Agent shall have for the benefit of the
Banks and the Agent valid and enforceable first priority
mortgages or deeds of trust over the New Properties, free and
clear of all defects and encumbrances except for Permitted
Liens, and (v) the value of the liens granted by the Borrower
on the New Properties shall be comparable to or greater than
the value of the liens granted by the Borrower on the Sale
Leaseback Properties."
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SS.1.7. NET WORTH. The Credit Agreement is hereby further amended by
deleting Section 11.2 in its entirety and substituting in lieu thereof the
following new Section 11.2:
"11.2 INTENTIONALLY OMITTED."
SS.1.8. CASH FLOW RATIO. The Credit Agreement is hereby further amended
by deleting Section 11.3 in its entirety and substituting in lieu thereof the
following new Section 11.3:
"11.3 CASH FLOW RATIO. The Borrower will not permit the Cash
Flow Ratio, determined at the end of each fiscal quarter of the
Borrower, to be less than 1.05:1."
SS.1.9. INTEREST COVERAGE RATIO. The Credit Agreement is hereby further
amended by deleting Section 11.4 in its entirety and substituting in lieu
thereof the following new Section 11.4:
"11.4 INTENTIONALLY OMITTED."
SS.1.10. CAPITAL EXPENDITURES. The Credit Agreement is hereby further
amended by deleting Section 11.5 in its entirety and substituting in lieu
thereof the following new Section 11.5:
"11.5 INTENTIONALLY OMITTED."
SS.1.11. MINIMUM EBITDA. The Credit Agreement is hereby further amended
by adding the following new Section 11.6:
"11.6 MINIMUM EBITDA. The Borrower will not permit
Consolidated EBITDA for the twelve fiscal month period ending on the
last day of each fiscal quarter of the Borrower, to be less than
$36,000,000."
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 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
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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 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;
(b) The Borrower shall have paid to the Agent, for the pro
rata account of each Bank, a non-refundable amendment fee in an amount
equal to fifteen hundredths of one percent (0.15%) on such Bank's
Revolving Credit Commitment (after giving effect to this Amendment).
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. Nothing
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contained in this Amendment (i) shall be construed to imply a
willingness on the part of the Banks or the Agent to grant any similar
or other future amendment of any of the terms and conditions of the
Credit Agreement or the other Loan Documents and (ii) shall in any way
prejudice, impair or effect any rights or remedies of the Banks and the
Agent under the Credit Agreement or the other Loan Documents.
(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).
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
an agreement under seal as of the date first written above.
THE RESTAURANT COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO/EVP
THE RESTAURANT HOLDING
CORPORATION, as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO/EVP
▇▇▇▇▇▇▇ FINANCE CORP., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO/EVP
THE RESTAURANT COMPANY OF
MINNESOTA, as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO/EVP
TRC REALTY LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO/EVP
FLEET NATIONAL BANK (f/k/a BankBoston,
N.A.), individually and as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇
Title: Director
BANK OF AMERICA, N.A. (f/k/a
Nationsbank, N.A.), individually
and as Syndication Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇
Title: Director
AMSOUTH BANK (f/k/a First American
National Bank)
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
