EXHIBIT 10.4(a)
XXXXX FARGO FOOTHILL, INC.
0000 XXXXXXXX XXXXXX
XXXXX 0000 XXXX
XXXXX XXXXXX, XXXXXXXXXX 00000
As of July 11, 2003
XXXXXX'X RESTAURANT GROUP, INC.
000 Xxx Xxxx Xxxx Xxxx,
Xxx Xxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Fax No. 000-000-0000
Re: Extension of Time
Reference is made to the Loan and Security Agreement, dated as of July 7,
2003 (the "LOAN AGREEMENT"), by and between Xxxxx Fargo Foothill, Inc., a
California corporation ("LENDER") and Xxxxxx'x Restaurant Group, Inc., a
Delaware corporation ("Borrower"). Capitalized terms used in this letter
agreement without definition have the meanings ascribed to them in the Loan
Agreement.
SECTIONS 3.2(a) THROUGH (h) of the Loan Agreement provide as follows:
"(a) within 10 days of the Closing Date, Lender shall have
received a Cash Management Agreement with respect to the Concentration Account;
(b) within 10 days of the Closing Date, Lender shall have
received a Control Agreement for any Securities Account or any Deposit Account
of Borrower or any of its Subsidiaries that contains cash, Cash Equivalents,
deposit account balances, or Investment Property in an aggregate amount in
excess of $100,000 outstanding as of such date;
(c) within 10 days of the Closing Date, Lender shall have
received the Credit Card Agreements, in form and substance satisfactory to
Lender, duly executed, and in full force and effect,
(d) within the earlier of (i) 10 days from the date of the
making of the initial Advance (or other extension of credit) hereunder, and (ii)
15 days from the Closing Date, Lender shall have received the Mortgage on that
certain Real Property owned by Xxxxxx'x of Chicago/Jacksonville LLC commonly
known as 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, XX, 00000, in form and
substance satisfactory to Lender, duly executed, and in full force and effect;
(e) within the earlier of (i) 10 days from the date of the
making of the initial Advance (or other extension of credit) hereunder, and (ii)
15 days from the Closing Date, Lender shall have received a mortgagee title
insurance policy (or marked commitment to issue the same) for the Real Property
Collateral issued by a title insurance company satisfactory to Lender (each a
"MORTGAGE POLICY" and, collectively, the "MORTGAGE POLICIES") in amounts
reasonably satisfactory to Lender up to 125% of the appraised value of such Real
Property
Collateral assuring Lender that the Mortgage on such Real Property Collateral is
a valid and enforceable first priority mortgage Lien on such Real Property
Collateral free and clear of all defects and encumbrances except Permitted
Liens, and such Mortgage Policy otherwise shall be in form and substance
reasonably satisfactory to Lender;
(f) within 30 days of the Closing Date, Lender shall have
received certified copies of the policies of insurance, together with the
endorsements thereto, as are required by SECTION 6.8, the form and substance of
which shall be satisfactory to Lender and its counsel;
(g) within 30 days of the Closing Date, Lender shall have
received searches reflecting the filing of all financing statements described in
SECTION 3.1(b);
(h) within the time specified in SCHEDULE 3.2(h), each of the
conditions subsequent set forth in SCHEDULE 3.2(h) shall be fulfilled."
Borrower has requested that the deadlines for the deliveries set forth
in SECTIONS 3.2(a) THROUGH (g) of the Loan Agreement and the deadlines for the
deliveries and obligations set forth in Items 3, 5.a, 10 and 14 of SCHEDULE
3.2(h) of the Loan Agreement be extended to the dates set forth below. Lender is
willing to grant the requested extensions.
Accordingly, Lender and Borrower hereby agree as follows:
(1) The deadline for delivering the Cash Management Agreement
pursuant to SECTION 3.2(a) of the Loan Agreement hereby is extended to September
26, 2003.
(2) The deadline for delivering a Control Agreement for any
Securities Account or any Deposit Account of Borrower or any of its Subsidiaries
pursuant to SECTION 3.2(b) of the Loan Agreement hereby is extended to September
26, 2003.
(3) The deadline for delivering the Credit Card Agreements pursuant
to SECTION 3.2(c) of the Loan Agreement hereby is extended to September 26,
2003.
(4) The deadline for delivering the Mortgage pursuant to SECTION
3.2(d) of the Loan Agreement hereby is extended to September 26, 2003.
(5) The deadline for delivering the Mortgage Policies pursuant to
SECTION 3.2(e) of the Loan Agreement hereby is extended to September 26, 2003.
(6) The deadline for delivering the certified copies of the policies
of insurance, together with the endorsements thereto, pursuant to SECTION 3.2(f)
of the Loan Agreement hereby is extended to October 31, 2003.
(7) The deadline for delivering the searches reflecting the filing of
all financing statements pursuant to SECTION 3.2(g) of the Loan Agreement hereby
is extended to September 26, 2003.
-2-
(8) The deadline for fulfilling certain of the conditions subsequent
set forth in SCHEDULE 3.2(h) of the Loan Agreement hereby is extended as set
forth below:
(a) The deadline for delivering the termination statements and
other documentation evidencing the termination of all Liens other than Permitted
Liens pursuant to Item 3 of SCHEDULE 3.2(h) of the Loan Agreement hereby is
extended to September 5, 2003.
(b) The deadline for delivering the stock power in connection
with Item 5.a of SCHEDULE 3.2(h) of the Loan Agreement hereby is extended to
September 5, 2003.
(c) The deadline for delivering evidence satisfactory to Lender
in connection with Item 10 of SCHEDULE 3.2(h) of the Loan Agreement that the
UCC-l Financing Statement filed by Xxxxx Fargo Bank Minnesota, as Trustee for
the Registered Holders of CNL Franchise Loan-Backed Bonds, Series 1998-1 against
Xxxxxx'x of Chicago, Inc. has been terminated, or that the definition of
Permitted Purchase Money has been amended, hereby is extended to September 5,
2003.
(d) The deadline for delivering evidence in connection with Item
14 of SCHEDULE 3.2(h) of the Loan Agreement that the litigation identified
within paragraph 13 of Schedule 5.10 (civil action in the Court of Chancery in
the State of Delaware in New Castle County commenced by BFMA Holding Corporation
against Borrower, members of Borrower's board of directors, and Xxxxxx Xxxxxx,
Inc. and a number of its affiliates) shall not limit, impair or otherwise affect
in any manner any Liens of Lender on the Collateral hereby is extended to
September 5, 2003.
(9) The Loan Agreement, as amended hereby, shall be and remain in
full force and effect in accordance with its respective terms and hereby is
ratified and confirmed in all respects. Except as expressly set forth herein,
the execution, delivery, and performance of this letter agreement shall not
operate as a waiver of or as an amendment of, any right, power, or remedy of
Lender under the Loan Agreement, as in effect prior to the date hereof.
(10) This letter agreement is a Loan Document. Upon and after the
effectiveness of this letter agreement, each reference in the Loan Agreement to
"this Agreement", "hereunder", "herein", "hereof" or words of like import
referring to the Loan Agreement, and each reference in the other Loan Documents
to "the Loan Agreement", "thereunder", "therein", "thereof" or words of like
import referring to the Loan Agreement, shall mean and be a reference to the
Loan Agreement as modified and amended hereby.
(11) The validity of this letter agreement, its construction,
interpretation and enforcement, the rights of the parties hereunder, shall be
determined under, governed by, and construed in accordance with the laws of the
State of New York.
-3-
(12) This letter agreement 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 an original's but all of which
shall together constitute one and the same instrument. Delivery of an executed
counterpart of this letter agreement by telefacsimile shall be equally as
effective as delivery of an original executed counterpart of this letter
agreement. Any party delivering an executed counterpart of this letter agreement
by telefacsimile shall also deliver an original executed counterpart of this
letter agreement, but the failure to do so shall not affect the validity,
enforceability or binding effect of this letter agreement.
Very truly yours,
XXXXX FARGO FOOTHILL, INC.
By: /s/ Xxxx Xxxxxx
------------------
Title: Vice President
ACKNOWLEDGED AND AGREED TO BY:
XXXXXX'X RESTAURANT GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Title: EVP & CFO
PORTERHOUSE, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/ADDISON,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
BALTIMORE, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/BUCKHEAD,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
CINCINNATI, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
CLEVELAND, INC., an Illinois corporation
XXXXXX'X OF CHICAGO/DALLAS,
INC., an Illinois corporation
XXXXXX'X OF CHICAGO/DETROIT,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO /HOUSTON,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
MINNEAPOLIS, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/NORTH
MIAMI BEACH, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/PALM
BEACH INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
PHILADELPHIA, INC., an Illinois
corporation
XXXXXX'X OF CHICAGO/
PITTSBURGH, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/PUERTO
RICO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO, INC., an
Illinois corporation
XXXXXX'X OF CHICAGO/ATLANTA,
INC., an Illinois corporation
XXXXXX'X OF CHICAGO/BOCA
RATON, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/CHICAGO,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/XXXXXXX,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/COLUMBUS,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/DENVER,
INC., an Illinois corporation
XXXXXX'X OF CHICAGO/FIFTH
AVENUE, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/FLAMINGO
ROAD CORP., a Delaware corporation
XXXXXX'X OF CHICAGO/MIAMI, INC.,
a Delaware corporation
XXXXXX'X OF CHICAGO/NASHVILLE,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/ORLANDO,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
PALM DESERT, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/PHOENIX,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/PORTLAND,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/ROSEMONT,
INC., an Illinois corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer of the above
entities
XXXXXX'X OF CHICAGO/
SACRAMENTO, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/SAN DIEGO,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/SANTA XXX,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/SEATTLE, INC.,
a Delaware corporation
XXXXXX'X OF CHICAGO/
WASHINGTON D.C. INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/
XXXXXXXXX, INC., an Illinois
corporation
MOCGC CORP., a Virginia corporation
XXXXXX'X OF CHICAGO/BOSTON
LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/
CHARLOTTE LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/CRYSTAL
CITY LLC, a Delaware limited liability
company
XXXXX XXXXXX'X OF
CHICAGO/XXXXXXXX LLC, a Delaware
limited liability company
XXXXXX'X OF CHICAGO/
HACKENSACK LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/HONOLULU
LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/
JACKSONVILLE LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/KING OF
PRUSSIA LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/NEW
ORLEANS LLC, a Delaware limited liability
company
XXXXXX'X OF CHICAGO/SAN
ANTONIO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/SAN
FRANCISCO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
SCOTTSDALE, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/VIRGINIA,
INC., an Illinois corporation
XXXXXX'X OF CHICAGO/
WASHINGTON SQUARE, INC., a
Delaware corporation
PORTERHOUSE OF LOS ANGELES,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO HOLDING,
INC., a Delaware corporation
XXXXX XXXXXX'X OF CHICAGO/
BURBANK LLC, a Delaware limited liability
company
XXXXXX'X OF CHICAGO/DENVER
CRESCENT TOWN CENTER, LLC, a
Delaware limited liability company
XXXXXX'X OF CHICAGO/GREAT
NECK LLC, a Delaware limited liability
company
XXXXXX'X OF CHICAGO/HARTFORD
LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/
INDIANAPOLIS LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/KANSAS
CITY LLC, a Delaware limited liability
company
XXXXXX'X OF CHICAGO/LOUISVILLE
LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/
PITTSBURGH LLC, a Delaware limited
liability company
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer of the above entities
-6-
XXXXXX'X OF CHICAGO/RESTON
LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/
SCHAUMBURG LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/WHITE
PLAINS LLC, a Delaware limited liability
company
ITALIAN RESTAURANTS HOLDING
CORP., a Delaware corporation
XXXXXXXXX'X OF CIRCLE CENTRE,
INC., a Delaware corporation
XXXXXXXXX'X OF LAS VEGAS, INC., a
Delaware corporation
XXXXXX'X OF CHICAGO/RICHMOND
LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/ STAMFORD
LLC, a Delaware limited liability company
XXXXXXXXX'X RESTAURANTS, INC., a
Delaware corporation
XXXXXXXXX'X/XXXX OF PRUSSIA, INC.,
a Delaware corporation
XXXXXXXXX'X AT VILLAGE SQUARE,
INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer of the above entities
-7-
ADDISON STEAKHOUSE, INC.,
a Texas corporation
CHICAGO STEAKHOUSE, INC.,
a Texas corporation
HOUSTON STEAKHOUSE, INC.,
a Texas corporation
SAN ANTONIO STEAKHOUSE, INC.,
a Texas corporation
By: /s/ Xxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxx
Title: President and Executive Vice President
of the above entities
-8-
