Re: Amendment No. 5 to Amended and Restated Note Purchase and Private Shelf Agreement
EXHIBIT
4.19
EXECUTION
VERSION
October
30, 2007
The
Steak
N Shake Company
500
Century Building
00
Xxxxx
Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention: Chief
Financial Officer
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|
Re:
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Amendment
No. 5 to Amended and Restated Note Purchase and Private Shelf
Agreement
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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 by that certain Amendment dated December 18,
2002, that certain Amendment dated May 21, 2003, that certain Amendment dated
September 17, 2003 and that certain Amendment dated November 7, 2005 (as so
amended, 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 has or 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 Note Agreement is amended as follows:
1.1 Paragraph
6A of the Note Agreement is amended in its entirety to read as
follows:
“6A. Debt
Service Coverage
Ratio. The Company will not permit the Debt Service Coverage
Ratio to be less than (i) 1.05 to 1.00 at any time during the period beginning
September 26, 2007 and ending July 2, 2008 and (ii) 1.25 to 1.00 at
any other time.”
1.2 The
proviso appearing at the end of paragraph 6C(2) (Debt) of the Note Agreement
is
amended in its entirety and the following is hereby substituted
therefor:
“provided
that for each period of four
(4) consecutive fiscal quarters commencing with the period of four (4)
consecutive fiscal quarters ending on (or nearest to) September 30, 2002, the
Company shall, at all times maintain a ratio of Consolidated Debt to
consolidated EBITDA (the “Leverage Ratio”) not exceeding (i)
3.25 to 1.00 for the four (4) consecutive fiscal quarter periods ending on
(or
nearest to) September 30, 2007, December 31, 2007, March 30, 2008 and
June 30, 2008 and (ii) 2.75 to 1.00 for each other period of four (4)
consecutive fiscal quarters; further provided that for purposes of the Leverage
Ratio, all current and future Capitalized Lease Obligations shall, for so long
as the underlying leases are in effect, at all times be included in the
computation of Consolidated Debt of the Company notwithstanding any subsequent
reclassification of such Capitalized Lease Obligations as operating leases
under
generally accepted accounting principles (and with respect to such rental
obligations that are reclassified as operating leases, the amount of such rental
obligations included in the computation of Consolidated Debt shall be the amount
that would otherwise be required to be capitalized in accordance with generally
accepted accounting principles if such rental obligations were in fact
Capitalized Lease Obligations (it being understood and agreed that if the
Company and/or its Subsidiaries has Capitalized Lease Obligations at the time
of
calculating the capitalized amount of such operating leases, such calculation
of
the capitalized amount of such operating leases shall be performed consistent
with the methodology used to calculate the capitalized amount of such
Capitalized Lease Obligations)). Together with the delivery of
financial statements required by paragraphs 5A(i) and (ii), for each Capitalized
Lease Obligation reclassified as an operating lease the Company will deliver
to
each Significant Holder an Officer’s Certificate demonstrating the computation
(including disclosing the discount rate used in each such computation) of the
capitalized portion of such operating lease required to be included in the
computation of Consolidated Debt for purposes of the Leverage Ratio pursuant
to
the immediately preceding proviso.”
SECTION
2. Representations and
Warranties. The Company represents and
warrants that (a) each representation and warranty set forth in
paragraph 8 of the Note Agreement is true and correct as of the date of
execution and delivery of this letter by the Company with the same effect as
if
made on such date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they were true and correct
as
of such earlier date); and (b) after giving effect to the amendments set forth
in Section 1 hereof, no Event of Default or Default exists or has occurred
and
is continuing on the date hereof.
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SECTION
3. Conditions
Precedent. This letter shall be deemed
effective as of September 26, 2007 upon the return to Prudential on or before
November 9, 2007 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,
Xxx Xxxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxxx.
SECTION
4. Reference to and Effect on Note
Agreement. Upon the effectiveness of
this letter, each reference to the Note Agreement and the Notes in any other
document, instrument or agreement shall mean and be a reference to the Note
Agreement and the Notes as modified by this letter. Except as
specifically set forth in Section 1 hereof, each of the Note Agreement and
the
Notes shall remain in full force and effect and each is hereby ratified and
confirmed in all respects. The execution, delivery and effectiveness
of this letter shall not be construed as a course of dealing or other
implication that Prudential or any holder of any Note has agreed to or is
prepared to grant any consents or agree to any amendments to the Note Agreement
in the future, whether or not under similar circumstances.
SECTION
5. Expenses. The
Company hereby confirms its obligations under the Note Agreement, whether or
not
the transactions hereby contemplated are consummated, to pay, promptly after
request by Prudential or any holder of any Note, all reasonable out-of-pocket
costs and expenses, including attorneys’ fees and expenses, incurred by
Prudential or any holder of any Note in connection with this letter agreement
or
the transactions contemplated hereby, in enforcing any rights under this letter,
or in responding to any subpoena or other legal process or informal
investigative demand issued in connection with this letter or the transactions
contemplated hereby. The obligations of the Company under this
Section 5 shall survive transfer by any holder of any Note and payment of any
Note.
SECTION
6. 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
7. 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.
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Very
truly yours,
PRUDENTIAL
INVESTMENT MANAGEMENT, INC.
By:
/s/ P. Xxxxx xxx
Xxxxxxx
Name: P.
Xxxxx xxx Xxxxxxx
Title:
Vice
President
THE
PRUDENTIAL INSURANCE COMPANY
OF
AMERICA
By:
/s/ P. Xxxxx xxx
Xxxxxxx
Name: P.
Xxxxx xxx Xxxxxxx
Title:
Vice
President
PRUCO
LIFE INSURANCE COMPANY
By:
/s/ P. Xxxxx xxx
Xxxxxxx
Vice
President
UNITED
OF OMAHA LIFE INSURANCE
COMPANY
By: Prudential
Private Placement Investors,
L.P.
(as Investment
Advisor)
By: Prudential
Private Placement Investors, Inc.
(as
its
General Partner)
By:
/s/ P. Xxxxx xxx
Xxxxxxx
Vice
President
Agreed
and Accepted:
THE
STEAK N SHAKE COMPANY
By: /s/ Xxxxxxx
X. Blade
Name:
Xxxxxxx X. Blade
Title:
Executive Vice President, Chief Financial and Administrative
Officer
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