Exhibit 10.3
AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT (this "Amendment") is made and
entered into as of December 31, 1998 by and among CARROLS CORPORATION, a
Delaware corporation (the "Borrower"); each of the Lenders which is or may
from time to time become a party to the Loan Agreement (as defined below)
(individually, a "Lender" and, collectively, the "Lenders"), HELLER FINANCIAL,
INC., as Documentation Agent, NATIONSBANK, as Co-Agent, and CHASE BANK OF
TEXAS, NATIONAL ASSOCIATION, a national banking association, acting as agent
for the Lenders (in such capacity, together with its successors in such
capacity, the "Agent").
RECITALS
A. The Borrower, the Lenders and the Agent executed and delivered
that certain Loan Agreement dated as of May 12, 1997, as amended by instrument
dated as of July 9, 1998. Said Loan Agreement, as amended, supplemented and
restated, is herein called the "Loan Agreement." Any capitalized term used in
this Amendment and not otherwise defined shall have the meaning ascribed to it
in the Loan Agreement.
B. The Borrower, the Lenders and the Agent desire to amend the Loan
Agreement in certain respects.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and warranties herein set forth, and further good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Lenders and the Agent do hereby agree as
follows:
SECTION 1. Amendment to Loan Agreement.
(a) Section 7.14 of the Loan Agreement is hereby amended to read
in its entirety as follows:
7.14 Borrower will cause Pollo Tropical to distribute its
available cash flow to its shareholders (and will cause each
Subsidiary of Pollo Tropical to distribute its available cash flow to
its shareholders), ratably in accordance with their respective
interests, on a quarterly basis beginning on March 31, 1999 (but
subject to the provisions of Section 1(e) above), to the maximum
extent legally permissible.
(b) Section 9.1(o) of the Loan Agreement is hereby amended to l
read in its entirety as follows:
(l) Pollo Tropical Assets and Merger - the Borrower shall
fail to acquire all of the issued and outstanding equity interests of
Pollo Tropical (and to cause the
merger of Pollo Tropical and each Subsidiary of Pollo Tropical into
Borrower) by March 31, 1999 or the Borrower shall fail to create
valid, perfected Liens upon the assets owned by Pollo Tropical and its
Subsidiaries as of the date of such merger in favor of Agent securing
the Obligations (to the maximum extent permissible under the present
terms of the Senior Notes Documentation) by March 31, 1999.
SECTION 2. Payment of Senior Notes and Required Additional Liens. The
parties hereto acknowledge that the Senior Notes have been paid in full and,
as a result, Borrower is obligated under the terms of the Loan Agreement to
provide additional Liens to Agent securing the Obligations. Notwithstanding
the foregoing, Lenders hereby agree that Borrower shall not be required to
provided such additional Liens required by reason of the payment in full of
the Senior Notes until March 31, 1999.
SECTION 3. Ratification. Except as expressly amended by this
Amendment, the Loan Agreement and the other Loan Documents shall remain in
full force and effect. None of the rights, title and interests existing and to
exist under the Loan Agreement are hereby released, diminished or impaired,
and the Borrower hereby reaffirms all covenants, representations and
warranties in the Loan Agreement.
SECTION 4. Expenses. The Borrower shall pay to the Agent all
reasonable fees and expenses of its respective legal counsel (pursuant to
Section 11.3 of the Loan Agreement) incurred in connection with the execution
of this Amendment.
SECTION 5. Certifications. The Borrower hereby certifies that (a) no
material adverse change in the assets, liabilities, financial condition,
business or affairs of the Borrower has occurred and (b) no Default or Event
of Default has occurred and is continuing or will occur as a result of this
Amendment.
SECTION 6. Miscellaneous. This Amendment (a) shall be binding upon
and inure to the benefit of the Borrower, the Lenders and the Agent and their
respective successors, assigns, receivers and trustees; (b) may be modified or
amended only by a writing signed by the required parties; (c) shall be
governed by and construed in accordance with the laws of the State of New York
and the United States of America; (d) may be executed in several counterparts
by the parties hereto on separate counterparts, and each counterpart, when so
executed and delivered, shall constitute an original agreement, and all such
separate counterparts shall constitute but one and the same agreement and (e)
together with the other Loan Documents, embodies the entire agreement and
understanding between the parties with respect to the subject matter hereof
and supersedes all prior agreements, consents and understandings relating to
such subject matter. The headings herein shall be accorded no significance in
interpreting this Amendment.
NOTICE PURSUANT TO TEX. BUS. & COMM. CODE SECTION 26.02
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THE LOAN AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND ALL OTHER LOAN
DOCUMENTS EXECUTED BY ANY OF THE PARTIES PRIOR HERETO OR SUBSTANTIALLY
CONCURRENTLY HEREWITH CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT BLANK INTENTIONALLY
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
caused this Amendment to be signed by their respective duly authorized
officers, effective as of the date first above written.
CARROLS CORPORATION,
a Delaware corporation
By: /s/ Joseph A. Zirkman
------------------------
Name: Joseph A. Zirkman
Title: Vice President & Secretary
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CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Agent and as
a Lender
By: /s/ Michael J. Costello
-----------------------
Name: Michael J. Costello
Title: Vice President
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HELLER FINANCIAL, INC.,
as Documentation Agent and as
a Lender
By: --------------------------
Name: ------------------------
Title: -----------------------
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NATIONSBANK,
as Co-Agent and as a Lender
By: /s/ William Tucker
----------------------
Name: William Tucker
Title: Senior Vice President
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SUNTRUST BANK, ATLANTA
By: /s/ J. Scott Deviney
----------------------
Name: J. Scott Deviney
Title: Banking Officer
By: /s/ Charles J. Johnson
----------------------
Name: Charles J. Johnson
Title: Vice President
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THE NORTHERN TRUST COMPANY
By: /s/ Arthur J. Fogel
----------------------
Name: Arthur J. Fogel
Title: Vice President
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COMERICA BANK
By: /s/ David W. Shiney
------------------------
Name: David W. Shiney
Title: Assistant Vice President
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BANK OF SCOTLAND
By: /s/ Tom Colwell
-------------------------
Name: Tom Colwell
Title: Vice President
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PNC BANK, NATIONAL
ASSOCIATION
By: --------------------------
Name: ------------------------
Title: -----------------------
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The undersigned hereby join in this Amendment to evidence their
consent to execution by Borrower of this Amendment, to confirm that each Loan
Document now or previously executed by the undersigned applies and shall
continue to apply to the Loan Agreement, as amended hereby, to acknowledge
that without such consent and confirmation, Lender would not execute this
Amendment and to join in the notice pursuant to Tex. Bus. & Comm.
Code '26.02 set forth above.
CARROLS REALTY HOLDINGS CORP.,
a Delaware corporation
By: /s/ Joseph A. Zirkman
-----------------------
Name: Joseph A. Zirkman
Title: Vice President & Secretary
CARROLS HOLDINGS CORPORATION,
a Delaware corporation
By: /s/ Joseph A. Zirkman
-----------------------
Name: Joseph A. Zirkman
Title: Vice President & Secretary
CARROLS REALTY HOLDINGS CORP.,
a Delaware corporation
By: /s/ Joseph A. Zirkman
-----------------------
Name: Joseph A. Zirkman
Title: Vice President & Secretary
CARROLS REALTY I CORP., a
Delaware corporation
By: /s/ Joseph A. Zirkman
-----------------------
Name: Joseph A. Zirkman
Title: Vice President & Secretary
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