Capital Expenditures in
connection with new restaurant purchases (including in connection with franchise
buybacks and purchases of competitor restaurants), plus (b) the amount paid in
connection with the consummation of Permitted Non-Equity Acquisitions, plus (c)
in an amount not to exceed $300,000 for any Restaurant, the amount of expenses
paid for revenue enhancing remodel/refresh projects."
(B)
SECTION 7.18 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY AMENDING
AND RESTATING SUBSECTION (A)(I) THEREOF IN ITS ENTIRETY AS FOLLOWS:
"(i)
Minimum Adjusted EBITDA.
Adjusted EBITDA, measured on each fiscal
quarter-end basis, for the then most recently completed thirteen Fiscal Month
period, of at least $24,000,000."
(C)
SECTION 7.18 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY AMENDING
AND RESTATING SUBSECTION (A)(II) THEREOF IN ITS ENTIRETY AS FOLLOWS:
"(ii)
Fixed Charge Coverage Ratio.
A Fixed Charge Coverage Ratio,
measured on a fiscal quarter-end basis, of at least the required amount
2
set forth in the following table for the applicable period set forth opposite
thereto:
Applicable Ratio
Applicable Period
1.05:1.0
For the four fiscal quarters ending July 12, 2007
0.95:1.0
For the four fiscal quarters ending November 1, 2007
1.00:1.0
For the four fiscal quarters ending January 24, 2008
1.00:1.0
For the four fiscal quarters ending April 17, 2008
1.00:1.0
For the four fiscal quarters ending July 10, 2008
1.00:1.0
For the four fiscal quarters ending October 30, 2008
1.00:1.0
For each of the four fiscal quarters ended thereafter"
3.
CONDITIONS PRECEDENT TO AMENDMENT.
THE SATISFACTION OF EACH OF THE
FOLLOWING SHALL CONSTITUTE CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AMENDMENT AND EACH AND EVERY PROVISION HEREOF:
(A)
AGENT SHALL HAVE RECEIVED THIS AMENDMENT, DULY EXECUTED BY THE
PARTIES HERETO, AND THE SAME SHALL BE IN FULL FORCE AND EFFECT.
(B)
AGENT SHALL HAVE RECEIVED A REAFFIRMATION AND CONSENT
SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT A, DULY EXECUTED AND
DELIVERED BY EACH GUARANTOR.
(C)
AGENT SHALL HAVE RECEIVED AN AMENDMENT FEE FROM BORROWER IN THE
AMOUNT OF $50,000, WHICH SHALL BE DISTRIBUTED RATABLY AMONG THE LENDERS IN
ACCORDANCE WITH THEIR RESPECTIVE PRO RATA SHARES (IT BEING UNDERSTOOD THAT, BY
EXECUTION AND DELIVERY OF THIS AMENDMENT, BORROWER AUTHORIZES THE AGENT TO
CHARGE THE BORROWER'S LOAN ACCOUNT FOR SUCH FEE AND SUCH AMOUNT SHALL THEREAFTER
ACCRUE INTEREST AT THE RATE APPLICABLE TO ADVANCES UNDER THE LOAN AGREEMENT IN
ACCORDANCE WITH SECTION 2.6 OF THE LOAN AGREEMENT).
3
(D)
THE REPRESENTATIONS AND WARRANTIES HEREIN AND IN THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON AND AS OF THE DATE HEREOF, AS THOUGH MADE ON SUCH DATE (EXCEPT TO
THE EXTENT THAT SUCH REPRESENTATIONS AND WARRANTIES RELATE SOLELY TO AN EARLIER
DATE).
(E)
AFTER GIVING EFFECT TO THE AMENDMENTS SET FORTH HEREIN, NO DEFAULT
OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING ON THE DATE HEREOF,
NOR SHALL RESULT FROM THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN.
(F)
NO INJUNCTION, WRIT, RESTRAINING ORDER, OR OTHER ORDER OF ANY
NATURE PROHIBITING, DIRECTLY