EXHIIBIT 10.74
AMENDMENT TO TERM LOAN AGREEMENTS
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THIS AMENDMENT, made as of August 20, 2003, between S&W OF LAS VEGAS,
L.L.C., a Delaware limited liability company, having an address at c/o The Xxxxx
& Wollensky Restaurant Group, Inc., 0000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Borrower"), THE XXXXX & WOLLENSKY RESTAURANT GROUP, INC., having an
address at 0000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("S&W Restaurant Group"),
DALLAS S&W, L.P. ("S&W Dallas" and, together with S&W Restaurant Group, the
"Guarantors"), having an address at c/o The Xxxxx & Wollensky Restaurant Group,
Inc., 0000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and XXXXXX XXXXXXX XXXX XXXXXX
COMMERCIAL FINANCIAL SERVICES, INC., a Delaware corporation, having an office at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Lender").
W I T N E S S E T H:
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WHEREAS, the Lender, the Borrower and S&W Restaurant Group entered into
a Term Loan Agreement dated August 23, 2002 (the "Original Term Loan Agreement")
in connection with a $4,000,000.00 loan made by the Lender to the Borrower (the
"First Advance Loan"), and a contemplated loan to the Borrower in the amount of
$10,000,000.00 (the "Term Loan Balance Advance"), which Original Term Loan
Agreement was amended by an Amendment to Term Loan Agreement dated October 25,
2002 and by a Second Amendment to Term Loan Agreement dated December 24, 2002
(the Original Term Loan Agreement, as so amended, the "First Loan Agreement");
WHEREAS, the Lender, the Borrower and the Guarantors entered into an
additional Term Loan Agreement dated December 24, 2002 (the "Second Loan
Agreement" and, together with the First Loan Agreement, the "Loan Agreements")
in connection with a $1,900,000.00 loan (the "Second Term Loan") made by the
Lender to the Borrower;
WHEREAS, the First Advance Loan is secured by, among other things, the
Deed of Trust (as defined in the First Loan Agreement) and the Second Term Loan
is secured by, among other things, the Las Vegas Deed of Trust (as defined in
the Second Loan Agreement), each of which deeds of trust encumbers the Subject
Lease (as defined in the First Loan Agreement);
WHEREAS, pursuant to a certain Payment Guaranty dated August 23, 2002,
S&W Restaurant Group guaranteed, among other matters, the Borrower's obligations
under the First Loan Agreement (the "First Loan Guaranty"), and pursuant to a
certain Payment Guaranty dated December 24, 2002, the Guarantors guaranteed the
Borrower's obligations under the Second Loan Agreement (the "Second Loan
Guaranty");
WHEREAS, in connection with the First Advance Loan, the Borrower and S&W
Restaurant Group entered into a certain Joint and Several Hazardous Material
Guaranty and Indemnity Agreement dated August 23, 2002, in favor of the Lender
(the "First Loan Environmental Guaranty"), and in connection with the Second
Term Loan, the Borrower, S&W Restaurant Group and S&W Dallas entered into a
certain Joint and Several Hazardous Material Guaranty and Indemnity Agreement
dated December 24, 2002 (the "Second Loan Environmental Guaranty");
WHEREAS, the Borrower has modified the Subject Lease to, among other
things, modify the rent, the purchase price, and certain other payment terms
with respect to the purchase option under the Subject Lease, and such
modification required the Lender's consent; and
WHEREAS, the Lender's consent to such modification was conditioned upon
the terms and conditions of set forth in this Amendment;
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each of the parties hereto, and in order to modify the Loan
Agreements, the parties hereto agree for themselves, their successors and
assigns as follows:
1. Except as otherwise provided in this Amendment, all capitalized terms
used, but not defined in this Amendment shall have the meanings given to such
terms in the First Loan Agreement.
2. The parties confirm their agreement and understanding that the
Commitment to make the Term Loan Balance Advance under the First Loan Agreement
terminated effective as of April 30, 2003. Simultaneously herewith, the Borrower
has paid the Lender the sum of $25,417.00 in payment of the unused availability
fee for such Commitment for the period from the end of the last quarterly period
to April 30, 2003.
3. The following covenant is added to Schedule II of the First Loan
Agreement and Schedule II of the Second Loan Agreement:
"(g) Collateral Account. (i) On the date hereof, the Borrower
shall deposit $75,000.00 in the MS BusinesScape Account for Business
maintained by the Borrower at Xxxxxx Xxxxxxx XX Inc., Account No.
000-000000-000 (the "Retail Cash Account"), and thereafter commencing on
August 1 and on the 1st day of each calendar month during the Term, the
Borrower shall deposit an additional $25,000.00 in the Retail Cash
Account. The Borrower has granted the Lender a security interest in the
Retail Cash Account pursuant to the Security Agreement (Financial
Assets), and the Borrower, the Lender and Xxxxxx Xxxxxxx XX Inc. have
entered into a certain Account Control Agreement dated as of the date of
this Amendment (the "Account Control Agreement")
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to set forth the respective parties rights and claims in respect of the
income, dividends, earnings, profits and proceeds of the financial
assets contained in the Retail Cash Account. The Borrower, promptly upon
request by the Lender, shall do, execute, acknowledge, deliver, file,
re-file, and perform all such further acts to evidence and perfect the
Lender's security interest in the Retail Cash Account."
4. (a) The following terms are added to Schedule I to each of the Loan
Agreements, in their respective alphabetical order:
"Account Control Agreement" has the meaning given to it in
paragraph (g) of Schedule II.
"Retail Cash Account" has the meaning given to it in paragraph
(g) of Schedule II.
"Security Agreement (Financial Assets)" means the Security
Agreement (Financial Assets) dated as of the date hereof, made by
the Borrower to the Lender.
(b) Schedule I to the First Loan Agreement is further amended to
delete the definition of the term "Collateral Documents" and to insert
the following in its place:
"Collateral Documents" means the Security Agreement, the
Security Agreement (Financial Assets), the Deed of Trust
and the Assignment of Leases."
(c) Schedule I to the Second Loan Agreement is further amended to
delete the definition of the term "Collateral Documents" and to insert
the following in its place:
"Collateral Documents" means the Security Agreements,
the Security Agreement (Financial Assets), the Deed of
Trusts and the Las Vegas Assignment of Leases."
5. S&W Restaurant Group (and in the case of the First Loan Environmental
Guaranty, the Borrower) confirms and reaffirms its obligations under the First
Loan Agreement, the First Loan Guaranty and the First Loan Environmental
Guaranty and agrees that the Borrower's obligations as modified by this
Amendment shall be "Debt" under the First Loan Guaranty and the First Loan
Environmental Guaranty. Each of the Guarantors (and, in the case of the Second
Loan Environmental Guaranty, the Borrower) confirms and reaffirms its
obligations under the Second Loan Agreement, the Second Loan Guaranty and the
Second Loan Environmental Guaranty and agrees that the Borrower's obligations as
modified by this Amendment shall be "Debt" under the Second Loan Guaranty and
the Second Loan Environmental Guaranty.
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6. The parties confirm and agree that the obligations of the Borrower
under this Amendment shall be one of the "Secured Obligations" under (a) the
Security Agreement (as defined in the First Loan Agreement) and (b) the Security
Agreements (as defined in the Second Loan Agreement).
7. This Amendment sets forth the entire understanding of the parties
with respect to the modification to the First Loan Agreement and the Second Loan
Agreement. The Borrower acknowledges that no oral or other agreements,
conditions, promises, understandings, representations or warranties exist in
regard to its obligations under, or the subject matter of, this Amendment,
except those specifically set forth herein and therein.
8. As specifically modified and restated herein, all of the terms,
covenants, conditions and stipulations contained in each of the First Loan
Agreement and the Second Loan Agreement are hereby ratified and confirmed in all
respects, shall continue to apply with full force and effect.
9. Neither this Amendment nor any provision hereof may be modified,
amended, changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
10. This Amendment may be executed in one or more counterparts each of
which shall be an original but all of which when taken together shall constitute
one and the same instrument.
11. This Amendment is and shall be deemed to be a contract entered into
pursuant to the laws of the State of New York and shall in all respects be
governed, construed, applied and enforced in accordance with the laws of the
State of New York.
12. The Borrower agrees to submit to personal jurisdiction in the State
of New York in any action or proceeding arising out of this Amendment. In
furtherance of such agreement, the Borrower hereby agrees and consents that
without limiting other methods of obtaining jurisdiction, personal jurisdiction
over the Borrower in any such action or proceeding may be obtained within or
without the jurisdiction of any court located in New York and that any process
or notice of motion or other application to any such court in connection with
any such action or proceeding may be served upon the Borrower by registered or
certified mail to, or by personal service at, the last known address of the
Borrower, whether such address be within or without the jurisdiction of any such
court. The Borrower further agrees that the venue of any litigation arising in
connection with the indebtedness, or in respect of any of the obligations of the
Borrower under this Amendment, shall, to the extent permitted by law, be in New
York County.
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13. This Amendment is binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and assigns.
14. Nothing in this Amendment is intended to or shall be deemed to
create any rights or obligations of partnership, joint venture, or similar
association among the parties hereto.
15. If any term, covenant, provision or condition of this Amendment
shall be held to be invalid, illegal or unenforceable in any respect, this
Amendment shall be construed without such term, covenant, provision or
condition.
16. The parties hereto hereby irrevocably and unconditionally waive any
and all rights to trial by jury in any action, suit or counterclaim arising in
connection with, out of or otherwise related to this Amendment.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
S&W OF LAS VEGAS, L.L.C.,
a Delaware limited liability company
By: The Xxxxx & Wollensky Restaurant Group, Inc.,
a Delaware corporation, its Majority Member
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
Authorized Officer
XXXXX & WOLLENSKY RESTAURANT GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
Authorized Officer
DALLAS S&W, L.P.
By: S&W of Dallas LLC, general partner
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: President of its Sole Member
XXXXXX XXXXXXX XXXX XXXXXX COMMERCIAL FINANCIAL
SERVICES, INC.
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Vice President
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XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of July in the year 2003, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxx Xxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
/s/ Xxxxx X. Xxxxx
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Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of July in the year 2003, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxx Xxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
/s/ Xxxxx X. Xxxxx
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Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of July in the year 2003, before me, the undersigned, a
Notary Public in and for said State, personally appeared ______________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxx X. Xxxxx
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Notary Public
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of July in the year 2003, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxx Xxxxxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Eva Xxxxx Xxxxx
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Notary Public
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