EXHIBIT 4.04(q)
AMENDMENT NO. 13 TO SECOND AMENDED AND RESTATED REVOLVING
CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT NO. 13 (this "Amendment"), executed, delivered, and
dated as of September 29, 2000 (and effective as of the Effective Date referred
to below), by and among ▇▇▇▇▇▇'▇ RESTAURANT GROUP, INC., a Delaware corporation
(formerly known as Quantum Restaurant Group, Inc.) having its principal place of
business at ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ Park, New York 11042
(referred to below and in the Credit Agreement, as defined below, as "Quantum"),
PEASANT HOLDING CORP., a Delaware corporation having its principal place of
business at ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ Park, New York 11042
("Peasant Holding"), ▇▇▇▇▇▇'▇ OF CHICAGO, INC., an Illinois corporation with its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Morton's") (Quantum, Peasant Holding and Morton's are referred to herein
collectively as the "Borrowers", and each, individually, as a "Borrower"), FLEET
NATIONAL BANK (formerly known as BankBoston, N.A.), as Agent and Administrative
Agent (the "Agent") for the Lenders (as defined in the Credit Agreement referred
to below), FLEET NATIONAL BANK (formerly known as BankBoston, N.A. and referred
to sometimes in the Credit Agreement, as defined below, as "Fleet" or "FNBB") in
its individual capacity as a Lender ("Fleet"), IMPERIAL BANK, THE CHASE
MANHATTAN BANK, and FIRST UNION NATIONAL BANK, as Lenders, and FIRST UNION
NATIONAL BANK, as documentation agent (the "Documentation Agent") for the
Lenders, amends the Second Amended and Restated Revolving Credit and Term Loan
Agreement dated as of June 19, 1995, as the same is amended, modified, or
supplemented from time to time (the "Credit Agreement"), by and among the
Borrowers, the Administrative Agent, the Documentation Agent and the Lenders.
Capitalized terms used but not defined herein shall have the meanings set forth
in the Credit Agreement.
WHEREAS, the Borrowers have requested that the Lenders agree to
increase the amount of their revolving credit commitments and to amend certain
provisions of the Credit Agreement; and
WHEREAS, the Agent and the Lenders, subject to the terms and provisions
hereof, have agreed to do so;
NOW THEREFORE, the parties hereto hereby agree as follows:
-2-
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT. Subject to the
satisfaction of the conditions precedent set forth in SECTION 3 hereof, the
Credit Agreement is hereby amended as follows:
SECTION 1.1. NEW DEFINITIONS. Section 1 of the Credit Agreement is
hereby amended by adding the following new definitions to Section 1 in the
appropriate place in the alphabetical sequence:
"ADDITIONAL COMMITMENT AMOUNT. See SECTION 17A."
"ADDITIONAL COMMITMENT CONDITIONS. The following conditions,
as determined after giving effect to the proposed Additional Commitment
Amounts of the relevant, prospective New Lender:
(a) no Default or Event of Default shall have occurred and be
continuing either immediately before or immediately after giving effect
to any such Additional Commitment Amounts; and
(b) the total of all Additional Commitment Amounts, on an
aggregate, cumulative basis, shall not exceed $22,500,000."
"CHASE. The Chase Manhattan Bank, in its capacity as a
Lender."
"FLEET. Fleet National Bank, in its capacity as a Lender."
"INSTRUMENT OF ADHERENCE. See SECTION 17A."
"LLC ASSIGNMENT AGREEMENT. See SECTION 3."
"NEW LENDER. See SECITON 17A."
"THIRTEENTH AMENDMENT CLOSING DATE. September __, 2000."
SECTION 1.2. CHANGES IN CERTAIN DEFINITIONS. Section 1 of the Credit
Agreement is hereby further amended as follows:
(a) The definition of "Commitment Percentages" in Section 1 of the
Credit Agreement is hereby amended to read as follows:
"COMMITMENT PERCENTAGES. With respect to each Lender, the
percentage set forth beside its name below (subject to adjustment upon
any assignments permitted by SECTION 17 hereof and upon any increases
in the Revolving Credit Commitment Amount permitted by SECTION 17A
hereof):
LENDER PERCENTAGE
------ ----------
Fleet 39.09678%
First Union 32.04365%
Imperial Bank 12.81688%
Chase 16.04269%
-3-
(b) The definition of "Fee Letter" in Section 1 of the Credit Agreement
is hereby amended to read as follows:
"FEE LETTER. The Fee Letter by and among the Borrowers and
Fleet initially dated as of June 19, 1995, as amended, modified,
supplemented, restated or extended and in effect from time to time."
(c) The definition of "Final Maturity Date" in Section 1 of the Credit
Agreement is hereby amended to read as follows:
"FINAL MATURITY DATE. December 31, 2005."
(d) The definition of "FNBB" in Section 1 of the Credit Agreement is
hereby amended to read as follows:
"FNBB. Fleet (formerly known as BankBoston, N.A.), in its
capacity as a Lender."
(e) The definition of "▇▇▇▇▇▇ Subsidiaries" in Section 1 of the Credit
Agreement is hereby amended by amending clause (ii) thereof to read as follows:
"(ii) any other corporation, limited liability company, or
other similar business entity which becomes a Subsidiary of Porterhouse
or a Subsidiary of Morton's after the date hereof."
(f) The definition of "Net Cash Proceeds" in Section 1 of the Credit
Agreement is hereby amended by inserting after each instance of the words
"capital stock" the phrase "or other equity interests".
(g) The definition of "Revolving Credit Commitment" in Section 1 of the
Credit Agreement is hereby amended by replacing the phrase "$50,000,000" with
the phrase "$53,000,000".
(h) The definition of "Revolving Credit Commitment Amount" in Section 1
of the Credit Agreement is hereby amended to read as follows:
"REVOLVING CREDIT COMMITMENT AMOUNT. Fifty-Three Million
Dollars ($53,000,000), as the same may be increased pursuant to SECTION
17A or reduced by the amount of any reductions effected pursuant to the
terms of this Agreement."
(i) The definition of "Security Documents" in Section 1 of the Credit
Agreement is hereby amended by inserting after the phrase "Trademark Collateral
Assignment Agreements" the phrase ", the LLC Assignment Agreement".
(j) The definition of "Subsidiary" in Section 1 of the Credit Agreement
is hereby amended by inserting immediately before the period at the end of such
definition the phrase "or other equity interests".
(k) The definition of "Term Loan Maturity Date" in Section 1 of the
Credit Agreement is hereby amended to read as follows:
-4-
"TERM LOAN MATURITY DATE. December 31, 2005."
(l) The table contained in the definition of "Term Loan Percentage" in
Section 1 of the Credit Agreement is hereby amended to read as follows:
"LENDER PERCENTAGE
------ ----------
Fleet 40.00000%
First Union 33.33334%
Imperial Bank 13.33333%
Chase 13.33333%"
SECTION 1.3. TERM LOAN PRINCIPAL PAYMENTS. Section 2.6 of the Credit
Agreement is hereby amended by amending the table contained in SECTION 2.6(c)(i)
to read as follows:
-------------------------------- -----------------------
Date Installment Amount
-------------------------------- -----------------------
-------------------------------- -----------------------
September 30. 2001 $250,000
-------------------------------- -----------------------
-------------------------------- -----------------------
December 31, 2001 $250,000
-------------------------------- -----------------------
-------------------------------- -----------------------
March 31, 2002 $250,000
-------------------------------- -----------------------
-------------------------------- -----------------------
June 30. 2002 $250,000
-------------------------------- -----------------------
-------------------------------- -----------------------
September 30, 2002 $250,000
-------------------------------- -----------------------
-------------------------------- -----------------------
December 31, 2002 $250,000
-------------------------------- -----------------------
-------------------------------- -----------------------
March 31, 2003 $250,000
-------------------------------- -----------------------
-------------------------------- -----------------------
June 30, 2003 $250,000
-------------------------------- -----------------------
-------------------------------- -----------------------
September 30, 2003 $250,000
-------------------------------- -----------------------
-------------------------------- -----------------------
December 31, 2003 $250,000
-------------------------------- -----------------------
-------------------------------- -----------------------
March 31, 2004 $2,500,000
-------------------------------- -----------------------
-------------------------------- -----------------------
June 30, 2004 $2,500,000
-------------------------------- -----------------------
-------------------------------- -----------------------
September 30, 2004 $2,500,000
-------------------------------- -----------------------
-------------------------------- -----------------------
December 31, 2004 $2,500,000
-------------------------------- -----------------------
-------------------------------- -----------------------
March 31, 2005 $3,000,000
-------------------------------- -----------------------
-------------------------------- -----------------------
June 30, 2005 $3,000,000
-------------------------------- -----------------------
-------------------------------- -----------------------
September 30, 2005 $3,000,000
-------------------------------- -----------------------
-------------------------------- -----------------------
December 31, 2005 $3,000,000
-------------------------------- -----------------------
SECTION 1.4. SECURITY AND GUARANTIES. Section 3 of the Credit Agreement
is hereby amended as follows:
(a) by inserting after the phrase "(collectively, the "Trademark
Collateral Assignment Agreements")" the phrase ", and a certain Collateral
Assignment of Limited Liability Company Interests by ▇▇▇▇▇▇'▇ of Chicago
Holding, Inc. and ▇▇▇▇▇▇'▇ of Chicago/Pittsburgh, Inc. (the "LLC Assignment
Agreement"), in each case as amended, modified, supplemented, or restated and in
effect from time to time"; and
(b) by inserting after the phrase "plant, equipment, shares of
stock of" the phrase ", or other equity interests in,"
-5-
SECTION 1.5. COMMITMENT FEE. Section 4.5 of the Credit Agreement is
hereby amended by deleting the figure "$40,000,000" and replacing it with the
phrase "the amount equal to the applicable Revolving Credit Commitment Amount
minus $10, 000, 000".
SECTION 1.6. REPRESENTATION AS TO LEGAL EXISTENCE. Section 6.1 of the
Credit Agreement is hereby amended to read as follows:
"SECTION 6.1. EXISTENCE.
(a) Each of the Companies is a corporation or limited
liability company (as applicable) duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation or organization, as applicable. Each of the Companies has
adequate corporate or limited liability company (as applicable) power
and authority to own or to hold under lease its properties and to carry
on the business in which it is presently engaged and will be engaged.
Each of the Companies is qualified as a foreign corporation or limited
liability company (as applicable) and is licensed, admitted or approved
to do business as a foreign corporation or limited liability company
(as applicable) in each jurisdiction wherein the character of the
properties owned or held under lease by it, or the nature of the
business conducted by it, makes such qualification necessary, except
where such failure to qualify would not have a material adverse effect
on the Companies taken as a whole, and would not have any effect on the
enforceability of the Loan Documents.
(b) Each of the Companies has the corporate or limited
liability company (as applicable) power and authority to enter into
each of the Loan Documents to which it is or pursuant hereto is to
become a party, to perform, observe and comply with all of its
agreements and obligations under each of such documents, and, in the
case of each of the Borrowers, to make all of the borrowings
contemplated by this Agreement."
SECTION 1.7. REPRESENTATION AS TO AUTHORITY, ETC. Section 6.3 of the
Credit Agreement is hereby amended to read as follows:
"SECTION 6.3. AUTHORITY, ETC. The execution and delivery by
each of the Companies of each of the Loan Documents to which it is or
pursuant hereto is to become a party, the performance by each of all of
its agreements and obligations under each of such documents and the
making by each of the Borrowers of all of the borrowings contemplated
by this Agreement, as applicable, have been duly authorized by all
necessary corporate or limited liability company (as applicable) action
on the part of each of the Companies and its shareholders, members or
other holders of equity securities (as applicable), and do not and will
not (i) contravene any provision of its Charter or by-laws (each as
from time to time in effect), (ii) conflict with, or result in a breach
of any material term, condition or provision of, or constitute a
default under or result in the creation of any mortgage, lien, pledge,
charge, security interest or other encumbrance upon any of its property
under, any agreement, deed of trust, indenture, mortgage or other
instrument to which it is a party or by which it or any of its or their
property is bound or affected, the consequences of which
-6-
would have a material adverse effect on the Companies taken as a whole,
(iii) violate or contravene any provision of any law, regulation,
order, ruling or interpretation thereunder or any decree, order or
judgment of any court or governmental or regulatory authority, bureau,
agency or official (all as from time to time in effect and applicable),
except where such violation or contravention would not materially
adversely affect the Companies taken as a whole, and would not have any
effect on the enforceability of the Loan Documents, (iv) except as set
forth in SCHEDULE 6.3, require any waivers, consents or approvals by
any creditors which have not been obtained, except where the failure to
obtain the same would not have a material adverse effect on the
Companies taken as a whole, and would not have any effect on the
enforceability of the Loan Documents, (v) require any consents or
approvals by any of the shareholders, members or other holders of
equity securities (as applicable) of any of the Companies (except such
as will be duly obtained on or prior to the Closing Date and will be in
full force and effect on and as of the Closing Date), or (vi) except as
set forth in SCHEDULE 6.3, require any approval, consent, order,
authorization or license by, or giving notice to, or taking any other
action with respect to, any governmental or regulatory authority or
agency under any provision of any applicable law except those actions
which have been taken or will be taken prior to the Closing Date or
where the failure to do so would not result in a material adverse
effect on the Companies taken as a whole and would not have any effect
on the enforceability of the Loan Documents."
SECTION 1.8. COVENANT AS TO LEGAL EXISTENCE, ETC. Section 9.2 of the
Credit Agreement is hereby amended as follows:
(a) the first sentence is hereby amended by inserting after the word
"incorporation" the phrase "or organization".
(b) The fifth sentence is hereby amended to read as follows:
"Except as permitted by SECTION 10.11(f) or SECTION 10.11(g)
hereof, Morton's or ▇▇▇▇▇▇'▇ of Chicago Holding, Inc. shall at all
times be the record and beneficial owner of 100% of the outstanding
capital stock of, or other equity interests in, each of the ▇▇▇▇▇▇
Subsidiaries on a fully diluted basis except that ▇▇▇▇▇▇'▇ of
Chicago/Pittsburgh Inc. shall be permitted to be the record and
beneficial owner of 100% of the outstanding equity interests in
▇▇▇▇▇▇'▇ of Chicago/Pittsburgh LLC on a fully diluted basis; and,
further, Morton's shall at all times be the record and beneficial owner
of 100% of the outstanding equity interests in ▇▇▇▇▇▇'▇ of Chicago
Holding, Inc. on a fully diluted basis."
SECTION 1.9. INDEBTEDNESS Section 10.1(f) of the Credit Agreement is
hereby amended by deleting the figure "$40,000,000" and replacing it with the
figure "$80,000,000".
SECTION 1.10. DISTRIBUTIONS. Section 10.5(b) of the Credit Agreement is
hereby amended by amending the second sentence thereof to read as follows:
"In addition, Quantum may make Distributions (consisting of
the repurchase by Quantum of shares of its outstanding common stock
from its
-7-
shareholders) at a maximum purchase price not to exceed $30 per share
(such maximum price per share to be proportionately adjusted from time
to time to take into account the effect of stock splits, reverse stock
splits, stock dividends, and similar applicable, proportional stock
transactions occurring from time to time), PROVIDED that (i) no Default
or Event of Default is then existing and none would exist after giving
effect to any such Distribution, (ii) the aggregate cumulative amount
of such Distributions made during the period from the Closing Date
through the Thirteenth Amendment Closing Date does not exceed
$46,893,725.84, and the aggregate cumulative amount of such
Distributions made during the period from and after the Thirteenth
Amendment Closing Date does not exceed an additional $33,106,274.16,
and (iii) the pro forma Cash Flow Leverage Ratio (computed for this
purpose on a PRO FORMA basis, the numerator of such ratio for this
purpose being the Funded Indebtedness that would be then outstanding on
the date of such proposed Distribution immediately after giving effect
to such proposed Distribution and any related Indebtedness to be
incurred in connection with the financing thereof, and the denominator
of such ratio for this purpose being the Consolidated EBITDA for the
Reference Period ending on the most recent Fiscal Quarter end date for
which there shall have been delivered by the Companies the financial
statements and Compliance Certificates required under SECTION 9.4
hereof prior to the time of any such proposed Distribution) shall be
less than 3.00 to 1.00."
SECTION 1.11. CHANGE IN TERMS AND PAYMENT OF SUBORDINATED DEBT AND
CAPITAL STOCK. Section 10.10(b) of the Credit Agreement is hereby amended by
inserting after each instance of the words "capital stock" the phrase "or other
equity interests".
SECTION 1.12. INVESTMENTS. Section 10.11 of the Credit Agreement is
hereby amended as follows:
(a) Section 10.11(f) is hereby amended as follows:
(i) by inserting after each instance of the words "capital
stock" the phrase "or other equity interests";
(ii) by inserting after each instance of the word
"stockholder" the phrase "or equity interest holder"; and
(iii) by inserting after each instance of the word
"stockholders" the phrase "or equity interest holders".
(b) Section 10.11(g) is hereby amended as follows:
(i) by inserting after the phrase "Quantum, Peasant Holding,
Morton's" the phrase ", ▇▇▇▇▇▇'▇ of Chicago Holding, Inc., or ▇▇▇▇▇▇'▇
of Chicago/Pittsburgh Inc. (solely in the case of its Subsidiary,
▇▇▇▇▇▇'▇ of Chicago/Pittsburgh LLC)";
(ii) by inserting after each instance of the word
"corporation" the phrase ", limited liability company, or other similar
business entity";
-8-
(iii) by inserting after each instance of the word
"corporations" the phrase ", limited liability companies, or other
similar business entities";
(iv) by inserting after each instance of the words "capital
stock" the phrase "or other equity interests";
(v) by inserting after each instance of the word
"stockholder" the phrase "or equity interest holder";
(vi) by inserting after each instance of the word
"stockholders" the phrase "or equity interest holders"; and
(vii) by inserting after the words "stock acquisition" the
phrase "or acquisition otherwise effected by acquiring equity
interests".
SECTION 1.13. SHARES AND INDEBTEDNESS OF SUBSIDIARIES. Section 10.13 of
the Credit Agreement is hereby amended by inserting after each instance of the
phrase "shares of the capital stock" the phrase "or other equity interests".
SECTION 1.14. PROVISIONS WITH RESPECT TO NEW LENDERS. The Credit
Agreement is hereby amended by inserting the following new Section 17A
immediately after SECTION 17:
"SECTION 17A. NEW LENDERS. Except as otherwise provided
herein, any Person who qualifies as an Eligible Assignee hereunder may,
prior to March 1, 2001, join this Agreement as an additional Lender
with a Revolving Credit Commitment (such Person, which may for the
purposes of this SECTION 17A be an existing Lender, being herein
referred to (with respect to its status under this SECTION 17A as an
additional Lender) as the "New Lender") and be entitled to all the
rights and interests, and obligated to perform all of the obligations
and duties of, a Lender with respect to a specified additional amount
of Revolving Credit Commitment hereunder, incremental to the total
Revolving Credit Commitment Amount as then existing immediately prior
to giving effect to such additional amount, PROVIDED that (a) the
Additional Commitment Conditions are satisfied in connection therewith,
(b) the New Lender, the Agent, and the Borrowers shall have executed
and delivered an instrument of adherence (the "Instrument of
Adherence") in form and substance reasonably satisfactory to the New
Lender, the Agent and the Borrowers pursuant to which such New Lender
shall agree to be bound as a Lender (as to the applicable Additional
Commitment Amount and the corresponding Revolving Credit Commitment) by
the terms and conditions hereof and the other Loan Documents, and to
make Revolving Credit Loans and to participate in the issuance,
extension, and renewal of Letters of Credit, all in accordance with
this Agreement, and which Instrument of Adherence shall specify the
maximum amount of credit in addition to the then existing Revolving
Credit Commitment Amount that such New Lender agrees to provide
hereunder (in each case, the "Additional Commitment Amount") and the
New Lender's address for notices, (c) the Additional Commitment Amount
provided by any New Lender must total at least $5,000,000 (in integral
multiples of $500,000, if in excess of $5,000,000), (d) after giving
effect to such Additional Commitment Amount, the Revolving Credit
Commitment Amount and the corresponding, aggregate Revolving Credit
Commitment shall not exceed
-9-
$75,500,000 (or, if less, the amount equal to the sum of the Revolving
Credit Commitment Amount as in existence immediately prior to giving
effect to such Additional Commitment Amount, plus such Additional
Commitment Amount), (e) such New Lender and the Agent shall have
received such opinions of counsel to the Borrowers, such evidence of
proper corporate organization, existence, power and authority, and
appropriate corporate proceedings with respect to the Borrowers, and
such other certificates, instruments, and documents, as they shall have
reasonably requested in connection with such Instrument of Adherence
and any related Revolving Credit Notes, (f) the Agent shall have
received from the New Lender or the Company a processing fee of $3,000
in connection with such Instrument of Adherence, (g) any applicable
fees provided for in the Fee Letter payable at such time shall be paid
to the applicable Persons entitled thereto, (h) unless the New Lender
is also an existing Lender, the Agent shall have given its prior
written consent with respect to such New Lender, which consent is not
to be unreasonably withheld or delayed, (i) an appropriate Revolving
Credit Note shall be issued to the New Lender at such time in the
applicable amount provided in SECTION 2.1(c), and (j) such New Lender
shall have confirmed to and agreed with the Agent, for the benefit of
itself and the Lenders, and with the Borrowers, as follows:
(i) the Agent and the Lenders have made no representation or
warranty and shall have no responsibility with respect to any
statements, warranties or representations made in or in connection with
this Agreement or the other Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency, collectibility or
value of this Agreement, the other Loan Documents, any Collateral, or
any other instrument or document furnished pursuant hereto;
(ii) the Agent and the Lenders have made no representation or
warranty and shall have no responsibility with respect to the financial
condition of the Borrowers and their Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations,
or the performance or observance by the Borrowers and their
Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations or any of their other obligations
under this Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto;
(iii) such New Lender confirms that it has received a copy of
this Agreement, and the other Loan Documents, together with copies of
the most recent financial statements referred to in SECTION 6.7 and
SECTION 9.4 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
such Instrument of Adherence;
(iv) such New Lender will, independently and without reliance
upon the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement;
-10-
(v) such New Lender represents and warrants that it qualifies
as an Eligible Assignee;
(vi) such New Lender appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to the
Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto;
(vii) such New Lender agrees that it will perform in
accordance with their terms all of the obligations that by the terms of
this Agreement are required to be performed by it as a Lender having a
Revolving Credit Commitment; and
(viii) such New Lender represents and warrants that it is
legally authorized to enter into such Instrument of Adherence.
Upon the execution and delivery of an Instrument of Adherence with a
New Lender effected in accordance with all of the foregoing provisions
of this SECTION 17A, and the occurrence of the effective date of such
Instrument of Adherence, the Revolving Credit Commitment Amount and the
corresponding aggregate amount of the Revolving Credit Commitment shall
be increased by the Additional Commitment Amount, and the Commitment
Percentage of each Lender shall be recalculated by the Agent, such that
the Commitment Percentage of each Lender having a Revolving Credit
Commitment shall be recalculated so as to equal the quotient of the
amount of such Lender's individual Revolving Credit Commitment then in
effect divided by the resulting Revolving Credit Commitment Amount
after giving effect to the Additional Commitment Amount. Promptly
thereafter, this Agreement shall be amended by the Agent (each of the
Borrowers and the Lenders hereby consenting to such amendment) to
reflect (1) the name, address, and Commitment Percentage of such New
Lender, (2) the Revolving Credit Commitment Amount as increased by the
Additional Commitment Amount, (3) the resulting changes to the other
Lenders' respective Commitment Percentages and the principal amount of
the Revolving Credit Loans owing to each such Lender resulting from
such Instrument of Adherence, such Additional Commitment Amount, such
increased Revolving Credit Commitment Amount, and the changes in the
various Commitment Percentages. Promptly thereafter, the Agent shall
notify each of the Lenders of the joinder hereunder of such New Lender,
the resulting increase in the Revolving Credit Commitment Amount, the
Additional Commitment Amount, each Lender's new Commitment Percentage,
and the Agent shall provide to each of the Lenders a copy of the
executed Instrument of Adherence, and shall also make appropriate
notations in the Register in accordance with SECTION 17(c) hereof.
Upon the effective date of any Instrument of Adherence
effected in accordance with all of the foregoing provisions of this
SECTION 17A, the New Lender shall make all (if any) such payments to
the other Lenders as may be necessary to result in the respective
Revolving Credit Loans held by such New Lender and the other Lenders
being equal to such applicable Lender's Commitment Percentage (as then
in effect) of the aggregate principal amount of all Revolving Credit
Loans
-11-
outstanding to the Borrowers as of such date. The Borrowers hereby
agree that any New Lender so paying any such amount to the other
Lenders pursuant to this SECTION 17A shall be entitled to all the
rights of a Lender hereunder in respect of such amounts and such
payments to such other Lenders shall constitute Revolving Credit Loans
held by such New Lender hereunder, owed jointly and severally by the
Borrowers, and that such New Lender may, to the fullest extent
permitted by law, exercise all of its right of payment (including the
right of set-off) with respect to such amounts as fully as if such New
Lender had initially advanced to the Borrowers directly, on a joint and
several basis, the amount of such payments.
If any such adjustment payments are made to a Lender pursuant to this
SECTION 17A at a time other than the end of an Interest Period in the
case of all or any portion or portions of Revolving Credit Loans
constituting Eurodollar Rate Loans, the Borrowers shall jointly and
severally pay to each of the Lenders at the time that such payments are
made pursuant to this SECTION 17A the amount that would be required to
be paid by the Borrowers pursuant to SECTION 4.12 hereof had such
payments been made directly by the Borrowers."
SECTION 1.15. CERTAIN AMENDMENT PROVISIONS. Section 21 of the Credit
Agreement is hereby further amended as follows:
(a) Clause (a) of Section 21 of the Credit Agreement is hereby amended
to read as follows:
"(a) increase the principal amount of the Loans or of the
Reimbursement Obligations (or subject the Lenders to any additional
obligations) except pursuant to and in accordance with the terms of
SECTION 17A".
(b) Clause (e) of Section 21 of the Credit Agreement is hereby amended
to read as follows:
"(e) amend SECTIONS 13, 14, 17, 17A, the definition of
"Additional Commitment Conditions", or this SECTION 21".
(c) Clause (f) of Section 21 of the Credit Agreement is hereby amended
to read as follows:
"(f) change the Commitment Percentage, Term Loan Percentage or
Total Percentage of any lender, except pursuant to and in accordance
with the terms of SECTIONS 17 or 17A".
(d) Clause (ii) of Section 21 of the Credit Agreement is hereby amended
by inserting after each instance of the words "capital stock" the phrase "or
other equity interests".
SECTION 1.16. CONTINUATION OF OBLIGATIONS. Section 24 of the Credit
Agreement is hereby amended by inserting after each instance of the words
"capital stock" the phrase "or other equity interests".
-12-
SECTION 2. TRANSITIONAL ARRANGEMENTS; ALLOCATIONS. Effective as of the
Effective Date, each Lender shall make such dispositions and arrangements with
each other Lender with respect to the then outstanding Revolving Credit Loans
(the "Adjustment") as shall result in the amount of Revolving Credit Loans owed
to each Lender being equal to the product of such Lender's Commitment Percentage
multiplied by the aggregate Revolving Credit Loans outstanding on the Effective
Date (the "Adjusted Amount"). Each of the Borrowers and the Guarantors hereby
agrees that each Lender's Adjusted Amount shall be Revolving Credit Loans owed
by the Borrowers jointly and severally to such Lender as if such Lender had
initially made Revolving Credit Loans to the Borrowers in the amount of the
Adjusted Amount. The Borrowers also hereby jointly and severally agree to pay
all amounts referred to in SECTION 4.12 of thE Credit Agreement arising in
connection with the Adjustment (as if the Adjustment resulted in prepayments of
the Revolving Credit Loans reallocated pursuant to the Adjustment). Upon the
occurrence of the Adjustment, (a) the Agent shall appropriately adjust its
records to reflect each Lender's Adjusted Amount and (b) each of the Lenders
shall promptly thereafter return to the Agent its existing Revolving Credit Note
or Amended and Restated Revolving Credit Note, as the case may be, as replaced
by an Amended and Restated Revolving Credit Note in connection with this
Amendment and the contemplated reallocation of the Revolving Credit Commitment
Amount. The Lenders shall make any appropriate adjustments in payments received
in respect of the Obligations which are allocable to periods prior to the
Effective Date directly among themselves as shall be necessary to effect the
proper allocation of such payments among the Lenders, reflecting their
respective portions of the applicable Obligations held by them from time to
time.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrowers hereby
represent and warrant to the Agent and the Lenders as follows:
(a) REPRESENTATIONS AND WARRANTIES IN CREDIT AGREEMENT. The
representations and warranties of the Borrowers contained in the Credit
Agreement were true and correct in all material respects when made and continue
to be true and correct in all material respects on and as of the date hereof,
and as of the Effective Date, except, in each case to the extent of changes
resulting from transactions contemplated or permitted by the Loan Documents and
this Amendment and changes occurring in the ordinary course of business which
singly or in the aggregate are not materially adverse, and to the extent that
such representations and warranties relate expressly to an earlier date. No
Default or Event of Default has occurred and is continuing.
(b) AUTHORITY, NO CONFLICTS, ENFORCEABILITY OF OBLIGATIONS, ETC. Each
of the Borrowers hereby confirms that the representations and warranties of the
Borrowers contained in Sections 6.1, 6.3 and 6.4 of the Credit Agreement are
true and correct on and as of the date hereof, and as of the Effective Date, as
if made on each such date, treating this Amendment, the Credit Agreement as
amended hereby, and the other Loan Documents as amended hereby, as "Loan
Documents" for the purposes of making said representations and warranties.
SECTION 4. CONDITIONS TO EFFECTIVENESS. This Amendment shall be deemed
to be effective as of the date hereof (the "Effective Date"), subject to:
-13-
(a) the delivery to the Agent and the Lenders by (or on behalf of) each
of the Borrowers or the Guarantors, as the case may be, contemporaneously with
the execution hereof, of the following documents, each in form and substance
satisfactory to the Agent and the Lenders:
(i) this Amendment signed by each of the Borrowers, each of the
Guarantors, the Agent, and each of the Lenders;
(ii) an Amended and Restated Revolving Credit Note executed and
delivered jointly and severally by the Borrowers in favor of
each Lender in the amounts of its respective Commitment
Percentage of the aggregate Revolving Credit Commitment
Amount, which shall (from and after the Effective Date) be
deemed to constitute the Revolving Credit Notes held by such
Persons as referred to in the Credit Agreement;
(iii) certificates of an appropriate officer of each of the
Borrowers, dated as of the date hereof, as to (x) the charter
documents and by-laws, each as amended, of each of the
Borrowers, (y) the corporate actions taken by each of the
Borrowers authorizing the execution, delivery, and performance
hereof, and (z) the names, titles, incumbency, and specimen
signatures of the officers of each of the Borrowers authorized
to sign this Amendment on behalf of each of the Borrowers;
(iv) a favorable written legal opinion addressed to the Agent and
the Lenders, dated as of the date hereof, from outside special
counsel (in New York and Illinois) to the Borrowers, with
respect to such matters as to the Borrowers and the Loan
Documents as the Agent and the Lenders may reasonably request,
including (without limitation) opinions as to the corporate
authority of each of the Borrowers to execute, deliver, and
perform this Amendment, the Revolving Credit Notes, and the
other documents contemplated hereby, and the enforceability
hereof and thereof;
(v) such evidence as the Agent may reasonably request such that
the Agent shall be satisfied that the representations and
warranties contained in SECITON 3 hereof are true and correct
on and as of date hereof and as of the Effective Date;
(vi) legal existence and good standing certificates issued by the
appropriate public officials as to each of the Borrowers, and
such other certificates, documents, or instruments with
respect to this Amendment, the Revolving Credit Notes, the
other Loan Documents, the Borrowers, and the Guarantors as the
Agent or any of the Lenders may reasonably request; and
(vii) an updating amendment to the Fee Letter signed by the
Borrowers, the Guarantors and the Agent;
-14-
(b) the payment by the Borrowers of an amendment fee in an amount equal
to $193,750, to be paid to the Agent, for allocation among the Lenders as they
have separately agreed: and
(c) the reimbursement by the Borrowers for the amount of the fees and
expenses of the Agent's Special Counsel for services rendered to the Agent and
related expenses in connection with this Amendment.
SECTION 5. NO OTHER AMENDMENTS OR WAIVERS; EXECUTION IN COUNTERPARTS.
Except as otherwise expressly provided by this Amendment, all of the terms,
conditions and provisions of the Credit Agreement and the other Loan Documents
shall remain in full force and effect. Each of the Borrowers and the Guarantors
confirms and agrees that the Obligations of the Borrowers to the Lenders under
the Loan Documents, as amended, supplemented, and increased hereby, are secured
by, guarantied under, and entitled to the benefits, of the Security Documents.
The Borrowers, the Guarantors, the Agent and the Lenders hereby acknowledge and
agree that all references to the Credit Agreement and the Obligations thereunder
contained in any of the Loan Documents shall be references to the Credit
Agreement and the Obligations, as amended hereby and as the same may be amended,
modified, supplemented, or restated from time to time. The Security Documents
and the perfected first priority security interests of the Lenders thereunder as
collateral security for the Obligations shall continue in full force and effect,
and the collateral security and guaranties provided for in the Security
Documents shall not be impaired by this Amendment. 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.
SECTION 6. RETURN OF REVOLVING CREDIT NOTES. Promptly upon the
effectiveness of this Amendment, each Lender holding a Revolving Credit Note
previously delivered to such Lender under the Credit Agreement (prior to giving
effect to this Amendment) that has been superseded and replaced by a Revolving
Credit Note delivered to such Lender pursuant to this Amendment shall return
such superseded note, marked "cancelled", to the Borrowers.
SECTION 7. GOVERNING LAW. This Amendment shall be construed according
to and governed by the internal laws of the Commonwealth of Massachusetts
without reference to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
FLEET NATIONAL BANK (formerly known as
BankBoston, N. A.), for itself and as
Administrative Agent
By: /S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Title: VICE PRESIDENT
FIRST UNION NATIONAL BANK, for itself and as
Documentation Agent
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
THE CHASE MANHATTAN BANK
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
IMPERIAL BANK
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
FLEET NATIONAL BANK (formerly known as
BankBoston, N. A.), for itself and as
Administrative Agent
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
FIRST UNION NATIONAL BANK, for itself and as
Documentation Agent
By: /S/▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Title: VICE PRESIDENT
------------------------------------------
THE CHASE MANHATTAN BANK
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
IMPERIAL BANK
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
FLEET NATIONAL BANK (formerly known as
BankBoston, N. A.), for itself and as
Administrative Agent
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
FIRST UNION NATIONAL BANK, for itself and as
Documentation Agent
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
THE CHASE MANHATTAN BANK
By: /S/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Title: VICE PRESIDENT
------------------------------------------
IMPERIAL BANK
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
FLEET NATIONAL BANK (formerly known as
BankBoston, N. A.), for itself and as
Administrative Agent
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
FIRST UNION NATIONAL BANK, for itself and as
Documentation Agent
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
THE CHASE MANHATTAN BANK
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
IMPERIAL BANK
By: /S/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
NAME: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
TITLE: VICE PRESIDENT
------------------------------------------
The Borrowers:
▇▇▇▇▇▇'▇ RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
▇▇▇▇▇▇'▇ OF CHICAGO, INC.
By: /S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
CONSENTED AND AGREED TO, BY EACH OF
THE GUARANTORS (as defined in the Credit
Agreement)
By: /S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer for each of the
Guarantors
