The Steak N Shake Company Indianapolis, Indiana 46204 Attention: Chief Financial Officer Re: Amendment to Note Purchase and Private Shelf Agreement Ladies and Gentlemen:
Exhibit
10.1
November
14, 2005
The
Steak
N Shake Company
500
Century Building
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Attention:
Chief Financial Officer
Re: Amendment
to Note Purchase and Private Shelf Agreement
Ladies
and Gentlemen:
Reference
is made to that certain Amended and Restated Note Purchase and Private Shelf
Agreement dated as of September 20, 2002 (as amended prior to the date hereof,
the "Note Agreement") among The Steak N Shake Company, an Indiana corporation
(the "Company"), Prudential Investment Management, Inc., The Prudential
Insurance Company of America and each Prudential Affiliate which may become
a
party thereto in accordance with the terms thereof (collectively, "Prudential"),
pursuant to which the Company issued and sold and Prudential purchased the
Company’s senior fixed rate notes from time to time. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned
to such
terms in the Note Agreement.
Pursuant
to the request of the Company and in accordance with the provisions of paragraph
11C of the Note Agreement, the parties hereto agree as follows:
SECTION
1.
Amendment.
From
and after the date this letter becomes effective in accordance with its terms,
the Agreement is amended as follows:
1.1 Paragraph
2B(2) of the Agreement is amended to delete in its entirety clause (i) thereof
and to substitute therefor the following: "(i) September 30, 2008 (or if
such
date is not a Business Day, the Business Day next preceding such date)
and".
1.2 The
Company and Prudential expressly agree and acknowledge that as of the date
hereof the Available Facility Amount is $75,000,000. NOTWITHSTANDING
THE FOREGOING, THIS AMENDMENT AND THE AGREEMENT HAVE BEEN ENTERED INTO ON
THE
EXPRESS UNDERSTANDING THAT NEITHER PRUDENTIAL NOR ANY PRUDENTIAL AFFILIATE
(AS
SUCH TERM IS DEFINED IN THE AGREEMENT AFTER GIVING EFFECT TO THIS
LETTER) SHALL
BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE SHELF NOTES, OR TO QUOTE
RATES, SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC PURCHASES OF SHELF
NOTES,
AND THE FACILITY SHALL IN NO WAY BE CONSTRUED AS A COMMITMENT BY PRUDENTIAL
OR
ANY PRUDENTIAL AFFILIATE.
1.3 Paragraph
6 of the Agreement is amended by inserting the following new paragraph 6C(10)
immediately after paragraph 6C(9):
"6C(10).
Terrorism Sanction Regulations. The
Company will not, and will not permit any Subsidiary, to (i) become a Person
described or designated in the Specially Designated Nationals and Blocked
Persons List of the Office of Foreign Assets Control or in Section 1 of the
Anti-Terrorism Order or (ii) engage in any dealings or transactions with
any
such Person."
1.4 Paragraph
6C(5) of the Agreement is amended by replacing the reference to "6C(6)" with
a
reference to "6C(7)" and by replacing the reference to "6C(4)" with a reference
to "6C(5)".
1.5 Paragraph
6C(7) of the Agreement is amended by replacing the references to "6C(4)"
with
references to "6C(5)".
1.6 Paragraph
8 of the Agreement is amended by inserting the following new paragraph 8Q
immediately after paragraph 8P:
"8Q. Foreign
Assets Control Regulations, Etc.
(i) (a)
Neither the
sale of
the Notes by the Company hereunder nor its use of the proceeds thereof will
violate the Trading with the Enemy Act, as amended, or any of the foreign
assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto.
(ii) Neither
the Company nor any Subsidiary (a) is a Person described or designated in
the
Specially Designated Nationals and Blocked Persons List of the Office of
Foreign
Assets Control or in Section 1 of the Anti-Terrorism Order or (b) engages
in any
dealings or transactions with any such Person. The Company and its Subsidiaries
are in compliance, in all material respects, with the USA Patriot Act.
(iii) No
part
of the proceeds from the sale of the Notes hereunder will be used, directly
or
indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or
anyone
else acting in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended, assuming in all cases
that
such Act applies to the Company."
1.7 Paragraphs
10A and 10B of the Agreement are amended by adding, or amending and restating,
as applicable, the following definitions:
"Anti-Terrorism
Order"
shall
mean Executive Order No. 13,224 of September 24, 2001, Blocking Property
and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as amended.
"Designated
Spread"shall
mean 0.50%.
"Prudential
Affiliate"
shall
mean (i) any other Person directly or indirectly controlling, controlled
by, or
under direct or indirect common control with Prudential and (ii) any managed
account, investment fund or other vehicle for which Prudential or any Prudential
Affiliate described in clause (i) acts as investment advisor or portfolio
manager. A
Person
shall be deemed to control a corporation if such Person possesses, directly
or
indirectly, the power to direct or cause the direction of the management
and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"USA
Patriot Act"
shall
mean United States Public Law 107-56, Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA
PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in effect.
1.8 The
Information Schedule attached to the Agreement is amended and restated to
read
in its entirety as set forth on Exhibit
A
hereto.
SECTION
2.
Representation
and Warranty.
The
Company hereby represents and warrants that no Default or Event of Default
exists under the Agreement as of the date hereof.
SECTION
3.
Conditions
Precedent.
This
letter shall be deemed effective as of September 28, 2005 upon the return
to
Prudential on or before November 28, 2005 of a counterpart hereof duly executed
by the Company and the undersigned holders of the Notes. Upon execution hereof
by the Company, this letter should be returned to: Prudential Capital Group,
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SECTION
4.
Reference
to and Effect on Agreement.
Upon
the effectiveness of this letter, each reference to the Agreement and the
Notes
in any other document, instrument or agreement shall mean and be a reference
to
the Agreement and the Notes as modified by this letter. Except as specifically
set forth in Section 1 hereof, each of the Agreement and the Notes shall
remain
in full force and effect and each is hereby ratified and confirmed in all
respects.
SECTION
5.
Governing
Law.
THIS
LETTER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS
OF THE
PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF ILLINOIS (EXCLUDING
ANY
CONFLICTS OF LAW RULES WHICH WOULD OTHERWISE CAUSE THIS LETTER TO BE CONSTRUED
OR ENFORCED IN ACCORDANCE WITH, OR THE RIGHTS OF THE PARTIES TO BE GOVERNED
BY,
THE LAWS OF ANY OTHER JURISDICTION).\
SECTION
6. Counterparts;
Section Titles.
This
letter may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument. Delivery of an executed counterpart
of a signature page to this letter by facsimile or other electronic transmission
shall be effective as delivery of a manually executed counterpart of this
letter. The section titles contained in this letter are and shall be without
substance, meaning or content of any kind whatsoever and are not a part of
the
agreement between the parties hereto.
Very
truly yours,
PRUDENTIAL
INVESTMENT MANAGEMENT, INC.
By: /s/
Prudential Investment Management
Name:
Title:
Vice President
THE
PRUDENTIAL INSURANCE COMPANY
OF
AMERICA
By:
/s/ Prudential Insurance Company of America
Name:
Title:
Vice President
Agreed
and Accepted:
THE
STEAK N SHAKE COMPANY
By:
/s/ ▇▇▇▇▇▇▇ ▇. Blade
Name:
▇▇▇▇▇▇▇ ▇. Blade
Title:
Senior Vice President & Chief Financial
Officer