EIGHTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
4.02
EXECUTION
VERSION
EIGHTH
AMENDMENT TO CREDIT
AGREEMENT
THE
STEAK N SHAKE COMPANY, an
Indiana corporation (the “Company”) and FIFTH THIRD BANK, a Michigan
banking corporation, formerly known as Fifth Third Bank (Central Indiana),
and
Fifth Third Bank, Indiana (Central) (the “Bank”), being parties to that certain
Credit Agreement dated as of November 16, 2001, as previously amended
(collectively, the “Agreement”), agree to further amend the Agreement by this
Eighth Amendment to Credit Agreement (this “Amendment”) as follows.
1.
DEFINITIONS. All
defined terms used herein not otherwise defined in this Amendment shall have
their respective meanings set forth in the Agreement.
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(a)
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Amended
Definitions. The following definitions appearing under
Section 1 of the Agreement are hereby amended and restated in their
respective entireties as follows:
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c.
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"Applicable
Spread" means that number of Basis Points to be taken into account
in determining the LIBOR-based Rate determined by reference to the
Company’s ratio of Funded Debt to EBITDA as follows:
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Ratio
of Funded Debt
to EBITDA
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Applicable
Spread
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>
4.00
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250
b.p.
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>
3.00 but < 4.00
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200
b.p.
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>
2.00 but < 3.00
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150
b.p.
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<
2.00
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100
b.p.
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Effective
as of the date of the Eighth Amendment, the Applicable Spread shall
be the
highest tier. Thereafter, the Applicable Spread shall be determined
as of
the end of each fiscal quarter upon receipt of the
Company’s quarterly financial statements delivered in accordance with
Section 5(b)(ii) herein.
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x.
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“Loan
Document”
means any of this Agreement, the Revolving Note, the Guaranties,
all
Reimbursement Agreements, the Security Agreement, the Intercreditor
Agreement, and any other instrument or document which evidences or
secures
the Loan or Letters of Credit, or which expresses an agreement as
to terms
applicable to the Loan or Letters of Credit, and in the plural means
any
two or more of the Loan Documents, as the context requires.
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jj.
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“Prudential
Note
Purchase Agreement” means that certain Amended and Restated Note
Purchase and Private Shelf Agreement dated as of September 20, 2002,
entered into by and among the Company, Prudential, Prudential Investment
Management, Inc., and each Prudential Affiliate party thereto, as
amended,
and as it may hereafter be amended, modified, or restated from time
to
time.
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(b)
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New
Definitions. The following new definitions are hereby
added to Section 1 of the Agreement as follows:
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vv.
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“Collateral”
is
used as defined in Section 4(a) herein.
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ww.
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“Eighth
Amendment” means that certain agreement entitled “Eighth Amendment
to Credit Agreement” entered into by and between the Company and the Bank
dated as of May 16, 2008, for the purpose of amending this Agreement.
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xx.
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“Intercreditor
Agreement” is used as defined in Section 4(b) herein.
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yy.
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“Noteholders”
means Prudential Investment Management, Inc., The Prudential Insurance
Company of America, Pruco Life Insurance Company, and United of Omaha
Life
Insurance Company, and their respective successors and assigns.
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zz.
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“Security
Agreement” is used as defined in Section 4(a) herein.
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2.
THE
REVOLVING LOAN. Sections 2(a)(i) and 2(a)(iv) and the first
sentence of Section 2(a)(ii) of the Agreement are hereby amended and restated
in
their respective entireties, and a new Section 2(a)(vi) is hereby added to
the
Agreement, all as follows:
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(i)
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The
Commitment -- Use
of Proceeds. From the date of the Eighth Amendment and
until the Revolving Loan Maturity Date, the Bank agrees to make Advances
(collectively, the “Revolving Loan”) to the Company from time to time
under a revolving line of credit of amounts not exceeding in the
aggregate
principal amount at any time outstanding the amounts shown for the
corresponding periods (such amount for each period hereinafter called
the
“Commitment”) in the following chart:
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Period
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Commitment
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Commencing
on the date of the Eighth Amendment and until and on
7/31/08
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$45,000,000
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On
8/1/08, and at all times thereafter until the Revolving Loan Maturity
Date
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$40,000,000
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Proceeds
of the Revolving Loan may be used by the Company only to fund general corporate
purposes.
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(ii)
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Method
of
Borrowing. The obligation of the Company to repay the
Revolving Loan shall be evidenced by a Promissory Note of the Company
in
the form of Exhibit
“A”
attached to the Eighth Amendment (the “Revolving Note”).
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(iv)
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Unused
Fee. The Company shall pay to the Bank a
facility or unused fee for each partial or full calendar
quarter during which the Commitment is outstanding equal to, as of
the
date of the Eighth Amendment, thirty (30) Basis Points per annum
of the
average daily excess of the Commitment over the aggregate outstanding
principal balance of the Revolving Loan. For purposes of
calculating the unused fee, the aggregate amount available to be
drawn
under all outstanding Letters of Credit shall be added to the aggregate
outstanding principal balance of the Revolving Loan for the same
period. Unused fees for each calendar quarter shall be due and
payable within ten (10) calendar days following the Bank's submission
of a
statement of the amount due, and if not paid by such date, then such
fees
may be debited by the Bank to any demand deposit account of the Company
carried with the Bank without further authority. Such fees
shall be calculated on the basis of a year of 360 days and actual
days
elapsed.
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(vi)
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Excess
Utilization
Fee.
In
addition to the payment of accrued interest and the unused fee
provided in
Section 2(a)(iv) herein, commencing on the date of the Eighth Amendment,
the Company shall also pay to the Bank an excess utilization fee
equal to
fifty (50) Basis Points per annum on the daily amount by which
the
aggregate outstanding principal amount of the Revolving Loan on
and after
May 1, 2008, and until and on July 31, 2008, is in excess of $40,000,000.
The excess utilization fee shall be due and payable monthly within
ten
(10) calendar days following the Bank's submission of a statement
of the
amount due, and if not paid by such date, then such fees may be
debited by
the Bank to any demand deposit account of the Company carried with
the
Bank without further authority. Such fees shall be calculated on
the basis
of a year of 360 days and actual days elapsed.
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3.
FINANCIAL
COVENANTS. Sections 5(g)(i) and 5(g)(ii) of the Agreement are
hereby amended and restated in their respective entireties as
follows:
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(i)
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Maximum
Ratio of
Funded Debt to EBITDA. As of the end of each period of four (4)
consecutive fiscal quarters ending as of the last day of each fiscal
quarter commencing with the period of four (4) consecutive fiscal
quarters
ending on April 9, 2008, the Company shall maintain a ratio of Funded
Debt
to EBITDA of not more than 4.75 to 1.00.
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(ii)
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Debt
Service
Coverage Ratio. As of the end of each period of four (4)
consecutive fiscal quarters ending as of the last day of each fiscal
quarter commencing with the period of four (4) consecutive fiscal
quarters
ending on Aril 9, 2008, the Company shall maintain a debt service
coverage
ratio of not less than .70 to 1.00. For purposes of this
covenant, the phrase "debt service coverage ratio" means the ratio
of: (A)
the sum of net income, interest expense, plus rent expense, to (B)
the sum
of interest expense, rent expense, the Current
Portion of all lease obligations, plus the Current Portion of all
long
term debt. The term “Current Portion” means all payments scheduled to be
paid over the twelve (12) month period immediately following the
date of
determination.
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4.
SECURITY
AGREEMENT. New Section 4(a) is hereby added to the Agreement
as follows:
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a.
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Security
Agreement. The Obligations shall be secured by a
security interest in all of the Company's equipment, inventory, accounts
receivable, chattel paper, software, general intangibles and all
deposit
accounts maintained by the Company individually or jointly with the
Bank
or any of the Bank's affiliates, all whether now owned or
hereafter acquired, and in all proceeds thereof (all such business
assets
on which a lien is granted to the Bank hereinafter collectively referred
to as the “Collateral”), which security interest will be created by a
Security Agreement in the form attached to the Eighth Amendment
as Exhibit
"E" (the "Security Agreement"). The Security Agreement
shall provide a security interest in the Collateral described therein
subject only to liens and security interests described in the exceptions
enumerated in Section 6(b) herein.
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b.
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Intercreditor
Agreement. The liens on the Collateral granted to the Bank and also
granted to the Noteholders will be given equal priority and treated
as
pari
passu pursuant to the terms of the Intercreditor and Collateral
Agency Agreement entered into by the Noteholders and the Bank, both
in its
individual capacity and in the role of collateral agent for itself
and the
Noteholders, contemporaneously with execution of the Eighth Amendment
in
the form of Exhibit
“F”
attached to thereto (the “Intercreditor Agreement”).
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5.
NEW
STORES. New Section 6(k) is hereby added to the Agreement as
follows:
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k.
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Additional
Stores. The Company shall not open more than nine (9)
new stores during its 2008 fiscal year.
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6.
EVENTS
OF
DEFAULT. New Section 8(h) is hereby added to the Agreement as
follows:
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h.
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Default
under
Prudential Note Purchase Agreement. Default shall occur
under the Prudential Note Purchase Agreement, or there shall occur
an
event under the Prudential Note Purchase Agreement, if the effect
of such
default or occurrence is to accelerate the maturity of the indebtedness
provided thereunder or to permit the holders of such indebtedness
to cause
such indebtedness to become due and payable prior to its scheduled
maturity.
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7.
REPRESENTATIONS
AND WARRANTIES. In order to induce the Bank to enter into this
Amendment, the Company affirms that the representations and warranties contained
in the Agreement are correct as of the date of this Amendment, except that
(i)
they shall be deemed to also refer to this Amendment as well as all documents
named herein and, (ii) Section 3(d) of the
Agreement shall be deemed also to refer to the most recent audited
and unaudited financial statements of the Company delivered to the
Bank.
8.
EVENTS
OF
DEFAULT. The Company certifies to the Bank that no Event of
Default or Unmatured Event of Default under the Agreement, as amended by this
Amendment, has occurred and is continuing as of the date of this
Amendment.
9.
CONDITIONS
PRECEDENT. As conditions precedent to the effectiveness of
this Amendment, the Bank shall have received the following contemporaneously
with execution and delivery of this Amendment, each duly executed, dated and
in
form and substance satisfactory to the Bank:
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(i)
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This
Amendment duly executed by the Company.
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(ii)
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The
Revolving Note in the form of Exhibit
"A"
attached hereto duly executed by the Company.
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(iii)
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The
Reaffirmation of Guaranty Agreement in the form attached hereto as
Exhibit
"B"
duly executed by Steak n Shake Operations, Inc.
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(iv)
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The
Reaffirmation of Guaranty Agreement in the form attached hereto as
Exhibit
"C"
duly executed by Steak n Shake Enterprises, Inc.
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(v)
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The
Reaffirmation of Guaranty Agreement in the form attached hereto as
Exhibit
"D"
duly executed by SnS Investment
Company.
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(vi)
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A
Security Agreement in the form attached hereto as Exhibit
"E"
duly executed by the Company.
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(vii)
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The
Intercreditor Agreement executed by Prudential and the Prudential
Affiliates, and acknowledged by the Company, in the form attached
hereto
as Exhibit
“F.”
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(viii)
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Resolutions
of the Board of Directors of the Company authorizing the execution,
delivery and performance, respectively, of this Amendment, the Revolving
Note, Security Agreement, and all other Loan Documents provided for
in
this Amendment to which the Company is a party certified by the Secretary
of the Board of Directors of the Company as being in full force and
effect
and duly adopted as of the date hereof.
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(ix)
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The
Certificate of the Secretary of the Board of Directors of the Company
certifying the names of the officer or officers authorized to execute
this
Amendment, the Revolving Note, Security Agreement, and all other
Loan
Documents provided for in this Amendment to which the Company is
a party,
together with a sample of the true signature of each such officer,
dated
as of the date of this Amendment.
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(x)
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Resolutions
of the Board of Directors of Steak n Shake Operations, Inc., an Indiana
corporation, authorizing the execution, delivery and performance,
respectively, of its Reaffirmation of Guaranty Agreement and all
other
Loan Documents provided for in this Amendment to which Steak n Shake
Operations, Inc. is a party certified by the Secretary of the Board
of
Directors of Steak n Shake Operations, Inc. as being in full force
and
effect and duly adopted as of the date hereof.
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(xi)
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The
Certificate of the Secretary of the Board of Directors of Steak n
Shake
Operations, Inc. certifying the names of the officer or officers
authorized to execute its Reaffirmation of Guaranty Agreement and
all
other Loan Documents provided for in this Amendment to which Steak
n Shake
Operations, Inc. is a party, together with a sample of the true signature
of each such officer, dated as of the date of this Amendment.
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(xii)
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Resolutions
of the Board of Directors of Steak n Shake Enterprises, Inc., an
Indiana
corporation, authorizing the execution, delivery and performance,
respectively, of its Reaffirmation of Guaranty Agreement and all
other
Loan Documents provided for in this Amendment to which Steak n Shake
Enterprises, Inc. is a party certified by the Secretary of the Board
of
Directors of Steak n Shake Enterprises, Inc. as being in full force
and
effect and duly adopted as of the date hereof.
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(xiii)
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The
Certificate of the Secretary of the Board of Directors of Steak n
Shake
Enterprises, Inc. certifying the names of the officer or officers
authorized to execute its Reaffirmation of Guaranty Agreement and
all
other Loan Documents provided for in this Amendment to which Steak
n Shake
Enterprises, Inc. is a party, together with a sample of the true
signature
of each such officer, dated as of the date of this Amendment.
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(xiv)
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Resolutions
of the Board of Directors of SnS Investment Company, an Indiana
corporation, authorizing the execution, delivery and performance,
respectively, of its Reaffirmation of Guaranty Agreement and all
other
Loan Documents provided for in this Amendment to which SnS Investment
Company is a party certified by the Secretary of the Board of Directors
of
SnS Investment Company as being in full force and effect and duly
adopted
as of the date hereof.
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(xv)
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The
Certificate of the Secretary of the Board of Directors of SnS Investment
Company certifying the names of the officer or officers authorized
to
execute its Reaffirmation of Guaranty Agreement and all other Loan
Documents provided for in this Amendment to which SnS Investment
Company
is a party, together with a sample of the true signature of each
such
officer, dated as of the date of this Amendment.
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(xvi)
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An
amendment fee in the amount of $100,000 payable to the Bank by the
Company
contemporaneously with the execution of this Amendment.
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10.
WAIVERS. The
Bank hereby consents to, and waives the prohibition provided in Section 6(b)
of
the Agreement against, the Company granting to the noteholders under the
Prudential Note Purchase Agreement a security interest in the Collateral on
the
condition that the priority of such lien is equal to and pari passu with the
lien granted by the Company to the Bank in the Collateral, pursuant to the
terms
of the Intercreditor Agreement in form and content satisfactory to the
Bank. The Bank also waives the prohibition
provided in Section 6(c) of the Agreement against the Company or any Subsidiary
guaranteeing the obligations of any other person, in order to allow Steak n
Shake Operations, Inc., an Indiana corporation, Steak n Shake Enterprises,
Inc.,
an Indiana corporation, and SnS Investment Company, an Indiana corporation,
to
guarantee the Company’s obligations to the Noteholders under the Prudential Note
Purchase Agreement. Nothing contained herein shall be deemed to be a waiver
of
the violation of any other term or provision of the Agreement, whether now
or in
the future, nor shall the Bank be deemed to have waived the same or similar
provisions in the future, unless specifically stated by the Bank in
writing.
11.
PRIOR
AGREEMENTS. The Agreement,
as
amended by this Amendment, supersedes all previous agreements and commitments
made or issued by the Bank with respect to the Loans and all other subjects
of
this Amendment, including, without limitation, any oral or written proposals
which may have been made or issued by the Bank.
12.
EFFECT
OF
AMENDMENT. The provisions
contained herein shall serve to supplement and amend the provisions of the
Agreement. To the extent that the terms of this Amendment conflict
with the terms of the Agreement, the provisions of this Amendment shall control
in all respects.
13.
REAFFIRMATION. Except
as expressly amended by this Amendment, all of the terms and conditions of
the
Agreement shall remain in full force and effect as originally written and as
previously amended.
14.
COUNTERPARTS.
This Amendment
may be executed in any number of counterparts, each of which shall be an
original and all of which when taken together shall be one and the same
agreement.
IN
WITNESS WHEREOF, the
Company and the Bank have executed and delivered in Indiana this Eighth
Amendment Credit Agreement by their respective duly authorized officers as
of May 16, 2008.
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THE
STEAK N SHAKE
COMPANY, an Indiana corporation
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By:
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/s/
Xxxxx X. Xxxxx
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Vice
President, General Counsel and Corporate
Secretary
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FIFTH
THIRD BANK, a Michigan banking corporation,
formerly known
as Fifth Third Bank (Central Indiana), and Fifth Third Bank, Indiana
(Central)
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx, Vice President
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SCHEDULE
OF
EXHIBITS
Exhibit
"A"
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-
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Promissory
Note (Revolving Loan) ($45,000,000.00) (The Steak n Shake Company)
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Exhibit
"B"
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-
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Reaffirmation
of Guaranty Agreement (Steak n Shake Operations, Inc.)
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Exhibit
"C"
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-
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Reaffirmation
of Guaranty Agreement (Steak n Shake Enterprises, Inc.)
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Exhibit
"D"
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-
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Reaffirmation
of Guaranty Agreement (SnS Investment Company)
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Exhibit
“E”
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-
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Security
Agreement (The Steak n Shake Company)
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Exhibit
“F”
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-
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Intercreditor
and Collateral Agency Agreement (Prudential Investment Management,
Inc.,
The Prudential Insurance Company of America, Pruco Life Insurance
Company,
United of Omaha Life Insurance Company, and Fifth Third Bank, individually
and as Collateral Agent)
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Exhibit
"A"
PROMISSORY
NOTE
(Revolving
Loan)
$45,000,000.00
Indianapolis,
Indiana
Dated: May 16, 2008
Final
Maturity: January 30,
2009
On
or before January 30, 2009 (“Final
Maturity”), THE STEAK N SHAKE
COMPANY, an Indiana corporation (the “Maker”) promises to pay to the
order of FIFTH THIRD BANK,
a Michigan banking
corporation, formerly known as Fifth Third Bank
(Central Indiana), and Fifth Third Bank, Indiana (Central) (the “Bank”) at the
principal office of the Bank at Indianapolis, Indiana, the principal sum of
Forty-Five Million and 00/100 Dollars ($45,000,000.00), or so much of the
principal amount of the Loan represented by this Note as may be disbursed by
the
Bank pursuant to the terms of the Credit Agreement described below, and to
pay
interest on the unpaid principal balance outstanding from time to time as
provided in this Note.
This
Note evidences indebtedness (the
“Loan”) incurred or to be incurred by the Maker under a revolving line of credit
extended to the Maker by the Bank under a Credit Agreement dated as of November
16, 2001, as amended (the “Credit Agreement”). All references in this
Note to the Credit Agreement shall be construed as references to that Agreement
as it may be amended from time to time. The Loan is referred to in
the Credit Agreement as the “Revolving Loan.” Subject to the terms
and conditions of the Credit Agreement, the proceeds of the Loan may be advanced
and repaid and re-advanced until Final Maturity. The principal amount
of the Loan outstanding from time to time shall be determined by reference
to
the books and records of the Bank on which all Advances under the Loan and
all
payments by the Maker on account of the Loan shall be recorded. Such
books and records shall be deemed primafacie
to be correct
as to such matters. The terms “Advance” and “Banking Day” are used in this Note
as defined in the Credit Agreement.
Interest
on the unpaid principal
balance of the Loan outstanding from time to time prior to and after maturity
will accrue at the rate or rates provided in the Credit
Agreement. Prior to maturity, accrued interest shall be due and
payable on the last Banking Day of each month commencing on the last Banking
Day
of April, 2008. After maturity, interest shall be due and payable as
accrued and without demand. Interest will be calculated by applying
the ratio of the annual interest rate over a year of 360 days, multiplied by
the
outstanding principal balance, multiplied by the actual number of days the
principal balance is outstanding.
The
entire outstanding principal
balance of this Note shall be due and payable, together with accrued interest,
at Final Maturity. Principal may be prepaid, but only as provided in
the Credit Agreement.
If
any installment of interest due
under the terms of this Note is not paid when due, then the Bank or any
subsequent holder of this Note may, subject to the terms of the Credit
Agreement, at its option and without notice, declare the entire principal amount
of the Note and all accrued interest immediately due and
payable. Reference is made to the Credit Agreement which provides for
acceleration of the maturity of this Note upon the happening of other “Events of
Default” as defined therein.
If
any installment of interest due
under the terms of this Note prior to maturity is not paid in full within ten
(10) days when due, then the Bank at its option and without prior notice to
the
Maker, may assess a late payment fee in an amount equal to the greater of $20.00
or five percent (5%) of the amount past due. Each late payment fee
assessed shall be due and payable on the earlier of the next regularly scheduled
interest payment date or the maturity of this Note. Waiver by the
Bank of any late payment fee assessed, or the failure of the Bank in any
instance to assess a late payment fee shall not be construed as a waiver by
the
Bank of its right to assess late payment fees thereafter.
All
payments on account of this Note
shall be applied first to expenses of collection, next to any late payment
fees
which are due and payable, next to interest which is due and payable, and only
after satisfaction of all such expenses, fees and interest, to
principal.
The
Maker and any endorsers severally
waive demand, presentment for payment and notice of nonpayment of this Note,
and
each of them consents to any renewals or extensions of the time of payment
of
this Note without notice. All amounts payable under the terms of this Note
shall
be payable with expenses of collection, including attorneys' fees, and without
relief from valuation and appraisement laws.
This
Note supersedes and replaces that
certain Promissory Note (Revolving Loan) made by the Maker payable to the order
of the Bank dated December 7, 2007, in the principal amount of $50,000,000.00
and maturing on January 30, 2009.
This
Note is made under and will be
governed in all cases by the substantive laws of the State of Indiana,
notwithstanding the fact that Indiana conflicts of law rules might otherwise
require the substantive rules of law of another jurisdiction to
apply.
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THE
STEAK N SHAKE
COMPANY, an Indiana corporation
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By:
/s/
Xxxxx X.
Xxxxx
Xxxxx
X. Xxxxx
Vice
President, General Counsel and Corporate Secretary
Exhibit
"B"
REAFFIRMATION
OF GUARANTY
AGREEMENT
(Steak
n
Shake Operations, Inc.)
The
undersigned (the “Guarantor”), being the Guarantor under that certain Guaranty
Agreement dated as of November 16, 2001 (the “Guaranty”), pursuant to which the
undersigned guaranteed the obligations of THE STEAK N SHAKE COMPANY, an
Indiana corporation (the “Company”) to FIFTH THIRD BANK, a Michigan
banking corporation, formerly known as Fifth Third Bank (Central
Indiana),and Fifth Third Bank, Indiana (Central) (the “Bank”) under
the terms of that certain Credit Agreement (the “Agreement”) dated as
of November 16, 2001, entered into by and between the Company and the Bank,
as
previously amended, hereby consents to the execution of that certain Eighth
Amendment to Credit Agreement to be entered into by and between the Company
and
the Bank dated as of even date herewith (the “Amendment”), hereby agrees that
the Obligations (as defined in the Guaranty) shall include the obligations
of
the Company to the Bank under the Agreement as amended by the Amendment, which
Amendment, among other things, revises the amount of the Revolving Loan,
modifies certain financial covenants, and grants liens on the Company’s business
assets, and the undersigned reaffirms its Obligations under, and agrees to
be
bound by, the terms of the Guaranty.
Further,
the Guarantor acknowledges that while it may be the present practice of the
Bank
to obtain the undersigned’s consent to the execution and delivery of the
Amendment, the Bank may discontinue any such practice in the future and such
discontinuance shall not be construed as a waiver of the Bank’s right, in its
discretion, to enter into any further amendments to or grant any further waivers
of any of the terms and conditions of the Agreement without the consent of
the
undersigned, and the Bank’s failure to request or obtain the consent of the
undersigned to any such amendment or waiver shall not affect the liability
of
the undersigned to the Bank under the Guaranty.
IN
WITNESS WHEREOF, the
undersigned has executed this Reaffirmation of Guaranty Agreement by its duly
authorized officer as of May 16, 2008.
STEAK
N SHAKE OPERATIONS,
INC., an Indiana corporation
By:
/s/ Xxxxx X.
Xxxxx
Xxxxx
X. Xxxxx
Vice
President, General Counsel and Corporate Secretary
STATE
OF INDIANA
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)
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)
SS:
COUNTY
OF Xxxxxx
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)
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Before
me, a Notary Public in and for said County and State, personally appeared Xxxxx X. Xxxxx, the Vice
President, General Counsel and Corporate
Secretary of STEAK N
SHAKE OPERATIONS, INC., an Indiana corporation, who as such authorized
officer acknowledged execution of the foregoing Reaffirmation of Guaranty
Agreement on behalf of said corporation this 16th day of May,
2008.
Signature: /s/
Xxxx
Xxxxxx
Printed: Xxxx
Xxxxxx, Notary Public
My
Commission Expires: 3/3/2015
My
County
of Residence: Xxxxxxx
Exhibit
"C"
REAFFIRMATION
OF GUARANTY
AGREEMENT
(Steak
n
Shake Enterprises, Inc.)
The
undersigned (the “Guarantor”), being the Guarantor under that certain Guaranty
Agreement dated as of August 21, 2006 (the “Guaranty”), pursuant to which the
undersigned guaranteed the obligations of THE STEAK N SHAKE COMPANY, an
Indiana corporation (the “Company”) to FIFTH THIRD BANK, a Michigan
banking corporation, formerly known as Fifth Third Bank (Central Indiana),
and
Fifth Third Bank, Indiana (Central) (the “Bank”) under the terms of
that certain Credit Agreement (the “Agreement”) dated as of November 16, 2001,
entered into by and between the Company and the Bank, as previously amended,
hereby consents to the execution of that certain Eighth Amendment to Credit
Agreement to be entered into by and between the Company and the Bank dated
as of
even date herewith (the “Amendment”), and hereby agrees that the Obligations (as
defined in the Guaranty) shall include the obligations of the Company to the
Bank under the Agreement as amended by the Amendment, which Amendment, among
other things, revises the amount of the Revolving Loan, modifies certain
financial covenants, and grants liens on the Company’s business assets, and the
undersigned reaffirms its Obligations under, and agrees to be bound by, the
terms of the Guaranty.
Further,
the Guarantor acknowledges that while it may be the present practice of the
Bank
to obtain the undersigned’s consent to the execution and delivery of the
Amendment, the Bank may discontinue any such practice in the future and such
discontinuance shall not be construed as a waiver of the Bank’s right, in its
discretion, to enter into any further amendments to or grant any further waivers
of any of the terms and conditions of the Agreement without the consent of
the
undersigned, and the Bank’s failure to request or obtain the consent of the
undersigned to any such amendment or waiver shall not affect the liability
of
the undersigned to the Bank under the Guaranty.
IN
WITNESS WHEREOF, the
undersigned has executed this Reaffirmation of Guaranty Agreement by its duly
authorized officer as of May 16, 2008.
STEAK
N SHAKE ENTERPRISES,
INC., an Indiana corporation
By:
/s/ Xxxxx X.
Xxxxx
Xxxxx
X. Xxxxx
Vice
President, General Counsel and Corporate Secretary
STATE
OF INDIANA
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)
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)
SS:
COUNTY
OF Xxxxxx
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)
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Before
me, a Notary Public in and for said County and State, personally appeared Xxxxx X. Xxxxx, the
Vice
President, General Counsel and
Corporate Secretary of STEAK N SHAKE ENTERPRISES,
INC., an Indiana corporation, who as such authorized officer acknowledged
execution of the foregoing Reaffirmation of Guaranty Agreement on behalf of
said
corporation this 16th day
of May, 2008.
Signature: /s/
Xxxx
Xxxxxx
Printed: Xxxx
Xxxxxx, Notary Public
My
Commission Expires: 3/3/2015
My
County
of Residence: Xxxxxxx
REAFFIRMATION
OF GUARANTY
AGREEMENT
(SnS
Investment Company)
The
undersigned (the “Guarantor”), being the Guarantor under that certain Guaranty
Agreement dated as of November 16, 2001 (the “Guaranty”), pursuant to which the
undersigned guaranteed the obligations of THE STEAK N SHAKE COMPANY, an
Indiana corporation (the “Company”) to FIFTH THIRD BANK, a Michigan
banking corporation, formerly known as Fifth Third Bank (Central Indiana),
a
Michigan banking corporation and formerly known as Fifth Third Bank, Indiana
(Central) (the “Bank”) under the terms of that certain Credit
Agreement (the “Agreement”) dated November 16, 2001, entered into by and between
the Company and the Bank, as previously amended, hereby consents to the
execution of that certain Eighth Amendment to Credit Agreement to be entered
into by and between the Company and the Bank dated as of even date herewith
(the
“Amendment”), and hereby agrees that the Obligations (as defined in the
Guaranty) shall include the obligations of the Company to the Bank under the
Agreement as amended by the Amendment, which Amendment, among other things,
revises the amount of the Revolving Loan, modifies certain financial covenants,
and grants liens on the Company’s business assets, and the undersigned reaffirms
its Obligations under, and agrees to be bound by, the terms of the
Guaranty.
Further,
the Guarantor acknowledges that while it may be the present practice of the
Bank
to obtain the undersigned’s consent to the execution and delivery of the
Amendment, the Bank may discontinue any such practice in the future and such
discontinuance shall not be construed as a waiver of the Bank’s right, in its
discretion, to enter into any further amendments to or grant any further waivers
of any of the terms and conditions of the Agreement without the consent of
the
undersigned, and the Bank’s failure to request or obtain the consent of the
undersigned to any such amendment or waiver shall not affect the liability
of
the undersigned to the Bank under the Guaranty.
IN
WITNESS WHEREOF, the
undersigned has executed this Reaffirmation of Guaranty Agreement by its duly
authorized officer as of May 16, 2008.
SnS
INVESTMENT COMPANY, an
Indiana corporation
By:
/s/ Xxxxx X.
Xxxxx
Xxxxx
X. Xxxxx
Vice
President, General Counsel and Corporate
Secretary
STATE
OF INDIANA
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)
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)
SS:
COUNTY
OF Xxxxxx
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)
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Before
me, a Notary Public in and for said County and State, personally appeared Xxxxx X. Xxxxx, the
Vice
President, General Counsel and
Corporate Secretary of SnS INVESTMENT COMPANY, an
Indiana corporation, who as such authorized officer acknowledged execution
of
the foregoing Reaffirmation of Guaranty Agreement on behalf of said corporation
this 16th day of May,
2008.
Signature: /s/
Xxxx
Xxxxxx
Printed: Xxxx
Xxxxxx, Notary Public
My
Commission Expires: 3/3/2015
My
County
of Residence: Xxxxxxx
Exhibit
"E"
SECURITY
AGREEMENT
THE
STEAK N SHAKE COMPANY, an
Indiana corporation (the “Company”), hereby grants to FIFTH THIRD BANK, a Michigan
banking corporation, formerly known as Fifth Third Bank (Central Indiana),
and
Fifth Third Bank, Indiana (Central), in its capacity as Collateral Agent
for
itself as the Bank under the Credit Agreement and for the benefit of
the
Noteholders described herein (the “Collateral Agent”), a security interest
in all of the Company’s Equipment, Inventory, Accounts Receivable,
General Intangibles, Chattel Paper, Deposit Accounts, and Software, whether
now
owned or hereafter acquired, and in the proceeds thereof, to secure the
payment
and performance of all of the Obligations. Such security interest is
granted on the terms stated in this Security Agreement (this “Security
Agreement”).
l.
DEFINITIONS. As
used in this Security Agreement, the following terms have the meanings
indicated
when used with the initial letter capitalized:
(a)
“Account Debtor” means a party who is obligated to the Company with respect to
any Account Receivable, or General Intangible.
(b)
“Accounts Receivable” or “Account” is used as defined in the Uniform Commercial
Code.
(c)
“Bank” means Fifth Third Bank in its individual capacity.
(d)
“Chattel Paper” is used as defined in the Uniform Commercial Code.
(e)
“Collateral” means all property or rights in which a security interest is
granted under this Security Agreement.
(f)
“Collateral Account” is used as defined in Paragraph 10(a).
(g)
“Collateral Agent Expenses” shall mean, without limitation, all costs and
expenses incurred by the Collateral Agent in connection with the performance
of
its duties under this Security Agreement or the Intercreditor Agreement,
including the realization upon or protection of the Collateral or enforcing
or
defending any lien upon or security interest in the Collateral or any
other
action taken in accordance with the provisions of this Agreement, expenses
incurred for legal counsel in connection with the foregoing, and any
other
costs, expenses or liabilities incurred by the Collateral Agent for which
the
Collateral Agent is entitled to be reimbursed or indemnified by the Company
pursuant to this Agreement or by the Senior Lenders pursuant to this
Security
Agreement or the Intercreditor Agreement.
(h)
“Collateral Agent Obligations” shall mean all obligations of the Company to pay,
reimburse or indemnify the Collateral Agent for any Collateral Agent
Expenses.
(i)
“Credit Agreement” means that certain Credit Agreement entered into by and
between the Company and the Bank dated as of November 16, 2001, as amended
from
time to time.
(j)
"Credit Facilities" means all loans, letters of credit, and any and all
other
credit facilities extended to or on behalf of the Company pursuant to
the Credit
Agreement or the Prudential Note Purchase Agreement.
(k)
“Default” means an “Event of Default” as defined in the Credit Agreement or in
the Prudential Note Purchase Agreement, as applicable.
(l)
“Deposit Accounts” means all demand, time, savings, passbook, and similar
accounts of the Company maintained with the Collateral Agent or any other
bank.
(m) “Equipment”
means all of the furniture, fixtures, machinery, equipment, and other
Goods of
the Company, other than Inventory, farm products, or consumer goods,
together
with all tools, accessories, parts and accessions now in, attached to
or
hereafter placed in or added to such property, and any replacements of
any such
property.
(n)
“General Intangibles” is used as defined in the Uniform Commercial
Code.
(o)
“Goods” is used as defined in the Uniform Commercial Code.
(p)
“Intercreditor Agreement” means that certain Intercreditor and
Collateral Agency Agreement entered into by and among the Noteholders
and the
Bank, in its individual capacity and as Collateral Agent for itself and
the
Noteholders, dated as of even date herewith.
(q)
“Inventory” means all Goods which are held for sale or lease to customers or
which are furnished, have been furnished or are to be furnished under
contracts
of service, or which are raw materials, work in process or materials
used or
consumed in the Company’s business.
(r)
“Letters of Credit” shall mean the letters of credit issued under Section 2(b)
of the Credit Agreement.
(s)
“Letter of Credit Collateral Obligations” shall mean all of the obligations of
the Company under Section 9 of the Credit Agreement to deposit cash with
the
Collateral Agent with respect to Outstanding Letter of Credit
Exposure.
(t)
“Loan and Reimbursement Obligations” shall mean principal amount of
the Revolving Loan and the reimbursement obligations due the Bank with
respect
to Letters of Credit.
(u)
“Noteholders” means Prudential Investment Management, Inc., The Prudential
Insurance Company of America, Pruco Life Insurance Company, and United
of Omaha
Life Insurance Company, and their respective successors and assigns,
and any
other party who becomes a noteholder pursuant to the Prudential Note
Purchase
Agreement.
(v)
“Obligations” means the Collateral Agent Obligations, the Loan and Reimbursement
Obligations, the Letter of Credit Collateral Obligations, the principal
amount
of the Senior Secured Notes, and all of the other present or future
indebtedness, liabilities and obligations of the Company now or hereafter
owed
to any or all of the Collateral Agent, the Bank or the Noteholders, evidenced
by
or arising under, by virtue of or pursuant to this Security Agreement,
the
Credit Agreement, the Prudential Note Purchase Agreement, the
Revolving Note or the Senior Secured Notes, whether such indebtedness,
liabilities and obligations are direct or indirect, joint, several or
joint and
several, or now exist or hereafter arise, and all renewals and extensions
thereof, including, without limitation, all interest on the Revolving
Loan and
the Senior Secured Notes and any Yield Maintenance Amounts. The term
“Obligations” shall include all of the foregoing indebtedness, liabilities and
obligations, whether or not allowed as a claim in any bankruptcy, insolvency,
receivership or similar proceeding.
(w)
“Outstanding Letter of Credit Exposure” at any time shall mean the undrawn face
amount of all outstanding Letters of Credit at such time.
(x)
“Prudential Note Purchase Agreement” means that certain Amended and Restated
Note Purchase and Private Shelf Agreement dated as of September 20, 2002,
entered into by and among the Company, The Prudential Insurance Company
of
America, Prudential Investment Management, Inc., and each Prudential
Affiliate
party thereto, as amended, and as it may hereafter be amended, modified,
or
restated from time to time.
(y)
“Revolving Loan” is used as defined in the Credit Agreement.
(z)
“Revolving Note” is used as defined in the Credit Agreement.
(aa) “Senior
Lenders” means the Bank and the Noteholders, collectively.
(bb)
“Senior Secured Notes” means the Company’s 8.29% Series G Senior Notes due
August 23, 2010, the Company’s 5.66% Series I Senior Notes due 2011, and any and
all other shelf notes issued from time to time pursuant to the Prudential
Note
Purchase Agreement.
(cc) “Software”
is used as defined in the Uniform Commercial Code.
(dd) “Subsidiary”
and “Subsidiaries” are used as defined in the Credit Agreement.
(ee) “Uniform
Commercial Code” means the Uniform Commercial Code as in effect from time to
time in the State of Indiana, or in the state where the relevant collateral
is
located.
2.
FINANCING
STATEMENTS. The Company authorizes the Collateral Agent at the
expense of the Company to file a financing statement or statements in
those
public offices deemed necessary by the Collateral Agent to perfect the
security
interest granted to it herein. The Company shall execute and deliver
any document that the Collateral Agent may request to perfect or to further
evidence or perfect the security interest created by this Security Agreement
including, without limitation, any certificate or certificates of title
to the
Collateral with the security interest of the Collateral Agent noted thereon
or
executed applications for such certificates of title.
3.
LOCATION, INSPECTION
AND
PROTECTION OF COLLATERAL. Unless the Company gives the
Collateral Agent not less than ten (10) days prior written notice of
additional
locations at which Inventory and Equipment shall be kept, all Inventory
and
Equipment is kept and shall be kept at the following addresses:
See
Schedule I attached hereto
Unless
the Company gives the Collateral Agent written notice of the location
of
additional offices where records of the Company relative to Accounts
Receivable,
Chattel Paper, and General Intangibles are kept, all such records of
the Company
shall be kept at the following address:
00
Xxxxx
Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
which,
the Company represents, is also the address of its principal
office. The Company shall not change the location of its principal
office or state of organization or its legal name under which it is organized
as
of the date hereof unless the Company gives the Collateral Agent not
less than
30 days’ prior written notice of such event. The Company shall, at
all reasonable times and in a reasonable manner, allow the officers,
attorneys
and accountants of the Collateral Agent to examine, inspect, photocopy
and make
abstracts from the Company’s books and records and to verify Equipment and
Inventory, the latter both as to quantity and quality, and to arrange
for
verification of Accounts Receivable, under reasonable procedures, directly
with
the Account Debtors or by other methods. The Company shall also
deliver to the Collateral Agent upon request any promissory notes or
other
papers evidencing any Account and any guaranty or collateral and all
Chattel
Paper together with appropriate endorsements and assignments and any
information
relating thereto and shall do anything else the Collateral Agent may
reasonably
require to further protect the Collateral Agent’s interest in the
Collateral. If any of the Collateral consists of Equipment normally
used in more than one state and the Company intends to use any of such
Collateral in any jurisdiction other than a state in which the Company
shall
have previously advised the Collateral Agent such Collateral is to be
used, the
Company shall not commence use in such other jurisdiction except upon
ten (10)
days prior written notice to the Collateral Agent.
4.
FIXTURES. None of
the Collateral is attached to real estate so as to constitute a
fixture. If any Collateral is hereafter so attached to any real
estate, notice of the common address, legal description, and name of
the owner
of record of such real estate shall be furnished to the Collateral Agent
at
least ten (10) days prior to such attachment. If any Collateral is
hereafter attached to real estate prior to the perfection of the security
interest created by this Security Agreement in such Collateral, the Company
shall, on demand, furnish the Collateral Agent with a disclaimer of interest
in
the Collateral executed by each person having an interest in such real
estate.
5.
THE COMPANY’S
TITLE. The Company has full and clear title to all of the
Collateral presently owned and shall have such title to all Collateral
hereafter
acquired except for the security interest granted by this Security Agreement
and
any other lien or security interest permitted under the terms of the
Credit
Agreement, and the Company shall keep the Collateral free at all times
from any
lien or encumbrance except those permitted by the Credit
Agreement. No financing statements covering all or any portion of the
Collateral is on file at any public office except as may be required
or
permitted by this Security Agreement and the Credit Agreement.
6.
THE COMPANY’S DUTY TO MAINTAIN
THE COLLATERAL. The Company shall keep all tangible Collateral
in good order and repair and shall not waste or destroy any of the
Collateral. The Company shall not use the Collateral in violation of
any statute or ordinance or contrary to the provisions of any policy
of
insurance thereon.
7.
INSURANCE. In
addition to maintaining such insurance on the Collateral as is required
by the
Credit Agreement, the Company shall, upon the reasonable request of the
Collateral Agent, keep the Collateral insured against such additional
risks, in
such amounts and under such policies as the Collateral Agent may reasonably
require and with such companies as shall be reasonably acceptable to
the
Collateral Agent. All policies providing insurance on the Collateral
shall provide that any loss thereunder shall be payable to the Collateral
Agent
under a standard form of secured lender’s loss payable
endorsement. The Company authorizes the Collateral Agent to endorse
on the Company’s behalf and to negotiate drafts reflecting proceeds of insurance
on the Collateral, provided that the Collateral Agent shall remit to
the Company
such surplus, if any, as remains after the proceeds have been applied
at the
Collateral Agent’s option, (a) to the satisfaction of all of the Obligations or
to the establishment of a cash collateral account for the Obligations,
or (b) to
the replacement or repair of the Collateral; provided, however, that
so long as
no Default exists, and provided further that the Company can demonstrate
to the
Collateral Agent’s satisfaction that any proposed replacement or repair of
collateral is economically and physically feasible, such proceeds shall
be
applied, at the Company’s option and to the extent necessary, as provided in the
foregoing clause (b). Certificates evidencing the existence of all of
the insurance required under the Credit Agreement, the Prudential Note
Purchase
Agreement, or this Security Agreement shall be furnished to the
Collateral Agent by the Company and the original policies providing such
insurance shall be delivered to the Collateral Agent at its
request.
8.
ADVANCES TO PROTECT
COLLATERAL. Upon failure of the Company to procure any
required insurance or to remove any prohibited encumbrance upon the Collateral
or if any policy providing any required insurance is canceled, the Collateral
Agent may procure such insurance or remove any encumbrance on the Collateral
and
any amounts expended by the Collateral Agent for such purposes shall
be
immediately due and payable by the Company to the Collateral Agent and
shall be
added to and become a part of the Obligations secured hereby and shall
bear
interest at the Bank’s Prime Rate, as defined in the Credit Agreement, plus
three percent (3%) per annum.
9.
DEALING WITH COLLATERAL
PRIOR
TO DEFAULT. Prior to Default and thereafter until the
Collateral Agent shall notify the Company of the revocation of such
authority:
(a) the
Company may, in the ordinary course of business, at its own expense,
sell, lease
or furnish under contracts of service, any of the Inventory normally
held by the
Company for such purposes, provided that a sale in the ordinary course
of
business shall not include a transfer in total or partial satisfaction
of a
debt, and the Company may use and consume, in the ordinary course of
its
business, any raw materials, work in process or materials normally held
by it
for such purposes;
(b) the
Company shall, at its own expense, endeavor to collect, when due, all
amounts
due with respect to any Accounts or General Intangibles, and shall take
such
action with respect to collection as the Collateral Agent may reasonably
request
or, in the absence of such request, as the Company may deem advisable
in
accordance with sound business practice, and
(c) the
Company may grant, in the ordinary course of business, to any Account
Debtor,
any rebate, refund or adjustment to which such Account Debtor may be
entitled,
and may accept, in connection therewith, the return of the goods, the
sale or
lease of which shall have given rise to the obligation of the Account
Debtor.
10.
DEALING WITH COLLATERAL
AFTER
DEFAULT. After Default and upon the request of the Collateral
Agent:
(a) the
Company, upon receipt of any checks, drafts, cash or other remittances
in
payment of Inventory sold or in payment of Accounts Receivable of the
Company,
shall deposit the same in a special collateral account (the “Collateral
Account”) maintained with the Collateral Agent; such proceeds shall be deposited
in the form received except for the indorsement of the Company when required,
which indorsement the Collateral Agent is authorized to make on the Company’s
behalf, and shall be held by the Collateral Agent as security for all
Obligations;
(b) the
Company shall deliver to the Collateral Agent all other instruments and
Chattel
Paper which constitute proceeds from the sale of Collateral, whether
then held
or thereafter acquired; and
(c) the
Company shall keep segregated any such checks, drafts, cash, other instruments,
Chattel Paper or other remittances from any of the Company’s other funds or
property and shall hold such items in trust for the benefit of the Collateral
Agent until delivery to the Collateral Agent or deposit in the Collateral
Account and the Collateral Agent may apply all or any portion of the
funds on
deposit in the Collateral Account against any Obligations in the order
of
application provided for in the Credit Agreement or, absent such provision,
at
the discretion of the Collateral Agent.
After
Default, the Collateral Agent may notify any Account Debtor to make payment
directly to the Collateral Agent of any amounts due or to become due
under any
Account Receivable, General Intangible instrument or Chattel Paper and
the
Collateral Agent may enforce the collection of any Account Receivable,
General
Intangible, instrument or Chattel Paper in its name or in the name of
the
Company, by suit or otherwise, and may surrender, release or exchange
all or any
part thereof or compromise or extend or renew for any period, whether
or not
longer than the original period, any indebtedness thereunder or evidenced
thereby, and any Account Debtor will be fully protected in relying upon
the
representation of the Collateral Agent that it has authority under the
terms of
this Security Agreement to deal with any Account Receivable, General
Intangible,
instrument or Chattel Paper and need not look beyond this Security Agreement
and
such representation of the Collateral Agent to establish the Collateral
Agent’s
authority in that regard.
11.
SUBSTITUTION AND SALE
OF
EQUIPMENT. The Company may from time to time so long as no
Default has occurred and is continuing, substitute items of Equipment
so long as
any new Equipment becomes subject to the security interest created by
this
Security Agreement and is subject to no prior liens or security interest
other
than those permitted by the Credit Agreement. So long as no Default
has occurred and is continuing or would result therefrom, the Company
may, in
the ordinary course of its business, sell or otherwise dispose of any
items of
Equipment for which substitutes have been obtained or which are no longer
useful
to the Company in its operations, provided that at least 10 days prior
written
notice of any proposed disposition of any material amount of Equipment
in a
single or a planned series of transactions is given to the Collateral
Agent. Upon the request of the Company, the Collateral Agent will
deliver an appropriate release of its security interest in any item of
Equipment
disposed of by the Company pursuant to the provisions of this
paragraph.
12.
REMEDIES UPON
DEFAULT. Upon the occurrence of any Default the Collateral
Agent shall have with respect to the Collateral, in addition to all rights
and
remedies specified in the Credit Agreement, this Security Agreement or
any other
agreement between the Company and the Collateral Agent, the remedies
of a
secured party under the Uniform Commercial Code, regardless of whether
the Code
in such form has been enacted in the jurisdiction in which any such right
or
remedy is asserted. Any notice required by law, including but not
limited to notice of the intended disposition of all or any portion of
the
Collateral, shall be deemed reasonably and properly given if given at
least 10
days prior to such disposition in the manner prescribed for the giving
of
notices in the Credit Agreement. Any proceeds of the disposition of
any of the Collateral shall be applied first to the payment of the expenses
of
the retaking, holding, repairing, preparing for sale and sale of the
Collateral,
including reasonable attorneys’ fees and legal expenses in connection therewith
and any balance of such proceeds shall be applied by the Collateral Agent
to the
Obligations in such order as the Collateral Agent shall determine.
13.
RELATION TO CREDIT
AGREEMENT
AND PRUDENTIAL NOTE PURCHASE AGREEMENT. This Security
Agreement is given pursuant to the terms of the Credit Agreement and
the
Prudential Note Purchase Agreement, and shall be deemed a part thereof
and
subject to the terms and conditions thereof.
14.
AUTHORITY. In
order to induce the Collateral Agent to accept this Security Agreement
and to
make the Credit Facilities available to the Company, the Company represents
and
warrants to the Collateral Agent that: (i) the Company is a corporation
organized, existing and in good standing under the laws of the State
of Indiana;
(ii) the execution and delivery of this Security Agreement are within
the
Company’s corporate powers, have been duly authorized by all necessary corporate
action and do not contravene or conflict with any provision of law or
of the
Articles of Incorporation or ByLaws of the Company or of any agreement
binding
upon the Company or its properties; (iii) the principal office of the
Company is
located at 00 Xxxxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx,
Xxxxxxx 00000; (iv) this Security Agreement is the legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance
with its terms; and (v) the exact legal name of the Company is as it
appears on
the signature line hereof.
15.
NOTICES. Any
notice required or otherwise given concerning this Security Agreement
by either
party to the other shall be given as notices are required to be given
under the
terms of the Credit Agreement.
16.
RELATION TO INTERCREDITOR
AGREEMENT. Notwithstanding anything to the contrary which may
be contained herein, the terms of the Intercreditor Agreement are incorporated
herein and made a part hereof, and in the event of a conflict between
the terms
of this Security Agreement and the Intercreditor Agreement, the terms
of the
Intercreditor Agreement shall control.
Dated
as
of May 16, 2008.
|
THE
STEAK N SHAKE
COMPANY, an Indiana corporation
|
By:
/s/ Xxxxx X. Xxxxx
Xxxxx
X. Xxxxx
Vice
President, General Counsel and Corporate Secretary
STATE
OF INDIANA
|
)
|
)
SS:
COUNTY
OF Xxxxxx
|
)
|
Before
me, a Notary Public in and for said County and State, personally appeared
Xxxxx X. Xxxxx, the
Vice President, General Counsel
and
Corporate Secretary of THE STEAK N
SHAKE COMPANY, an
Indiana corporation, who as such authorized officer acknowledged execution
of
the foregoing Reaffirmation of Guaranty Agreement on behalf of said corporation
this 16th day of May,
2008.
Signature: /s/
Xxxx
Xxxxxx
Printed: Xxxx
Xxxxxx, Notary Public
My
Commission Expires: 3/3/2015
My
County
of Residence: Xxxxxxx