Exhibit 4.04(n)
TENTH AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This TENTH AMENDMENT (this "Amendment"), executed, delivered, and dated as
of November 18, 1998 (but effective as of the specified Effective Date referred
to below), by and among ▇▇▇▇▇▇'▇ RESTAURANT GROUP, INC., a Delaware corporation
(formerly known as Quantum Restaurant Group, Inc.) having its principal place of
business at ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ Park, New York 11042
(referred to below and in the Credit Agreement, as defined below, as "Quantum"),
PEASANT HOLDING CORP., a Delaware corporation having its principal place of
business at ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ Park, New York 11042
("Peasant Holding"), ▇▇▇▇▇▇'▇ OF CHICAGO, INC., an Illinois corporation with its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Morton's") (Quantum, Peasant Holding and Morton's are referred to herein
collectively as the "Borrowers", and each, individually, as a "Borrower"),
BANKBOSTON, N.A. (formerly known as The First National Bank of Boston), as Agent
(the "Agent") for the Lenders (as defined in the Credit Agreement referred to
below), BANKBOSTON, N.A. (formerly known as The First National Bank of Boston
and referred to below and in the Credit Agreement, as defined below, as "FNBB")
in its individual capacity as a Lender, and IMPERIAL BANK, as a Lender, and
joined in by FIRST UNION NATIONAL BANK, as a new Lender, amends the Second
Amended and Restated Revolving Credit and Term Loan Agreement dated as of June
19, 1995, as amended by the First Amendment dated as of February 14, 1996, the
Second Amendment dated as of March 5, 1996, a letter agreement dated as of May
2, 1996, the Third Amendment dated as of June 28, 1996, a letter agreement dated
as of November 7, 1996, the Fourth Amendment dated as of December 26, 1996, the
Fifth Amendment dated as of December 31, 1996, the Sixth Amendment dated as of
February 6, 1997, the Seventh Amendment dated as of June 27, 1997, the Eighth
Amendment dated as of February 12, 1998, the Ninth Amendment dated as of
September 25, 1998, and as the same may be further amended, modified, or
supplemented from time to time (the "Credit Agreement"), by and among the
Borrowers, the Agent, and the Lenders. Capitalized terms used but not defined
herein shall have the meanings set forth in the Credit Agreement.
WHEREAS, the Borrowers have requested that the Lenders agree to provide a
term loan and to amend certain provisions of the Credit Agreement; and
WHEREAS, the Agent and the Lenders, subject to the terms and provisions
hereof, have agreed to provide a term loan and so amend the Credit Agreement;
NOW THEREFORE, the parties hereto hereby agree as follows:
ss.1. Amendments to the Credit Agreement.
ss.1.1. New Definitions. Section 1 of the Credit Agreement is hereby
amended by adding the following new definitions to Section 1 in the appropriate
place in the alphabetical sequence:
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"First Union. First Union National Bank, as a Lender."
"FNBB. BankBoston, N.A., as a Lender."
"Foreign Subsidiary. Any Subsidiary which conducts substantially all of
its business in countries other than the United States of America and that is
organized under the laws of a jurisdiction other than the United States of
America and the states (or the District of Columbia) thereof."
"Quantum Treasury Stock. See Section 10.5(b) hereof."
"Term Loan Maturity Date. December 31, 2003."
"10th Amendment Closing Date. November 20, 1998."
ss.1.2. Changes in Certain Definitions. Section 1 of the Credit Agreement
is hereby further amended as follows:
(a) The definition of "Agent" in Section 1 of the Credit Agreement is
hereby amended by replacing the reference to "ss.13.7" with a reference to
"ss.13.9".
(b) The definition of "Capitalized Lease Indebtedness" in Section 1 of the
Credit Agreement is hereby amended by replacing the word "subsidiaries" with the
word "Subsidiaries".
(c) The table contained in the definition of Commitment Percentages in
Section 1 of the Credit Agreement is hereby amended to read as follows:
"Lender Percentage
------- ----------
FNBB 44.4444445%
Imperial Bank 22.▇▇▇▇▇▇▇%
First Union 33.3333333%"
(d) Subsection (E) of the definition of Interest Period in Section 1 of
the Credit Agreement is hereby changed to read as follows:
"(E) with respect to Revolving Credit Loans, any Interest Period
relating to any Eurodollar Rate Loan that would otherwise extend
beyond the Final Maturity Date shall end on the Final Maturity Date,
and with respect to the Term Loan, any Interest Period relating to
any Eurodollar Rate Loan that would otherwise extend beyond the Term
Loan Maturity Date shall end on the Term Loan Maturity Date; and".
(e) The definition of "Majority Lenders" in Section 1 of the Credit
Agreement is hereby amended by deleting the remainder of the definition
appearing immediately after the phrase, "provided, however," and replacing the
deleted text with the following phrase:
"if at any time there shall be two (and only two) Lenders (and only at
such time), and each such Lender at such time has a Total Percentage equal
to or greater than 20%, Majority Lenders shall mean (and require) both
such Lenders."
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(f) The definition of "Solvency Certificate" appearing in Section 1 of the
Credit Agreement is hereby deleted.
(g) The definition of Term Loan in Section 1 of the Credit Agreement is
hereby amended by replacing in the text of such definition the words "Closing
Date" with the words "10th Amendment Closing Date", and replacing the number
"$15,000,000" with the number "$12,500,000".
(h) The table contained in the definition of Term Loan Percentage in
Section 1 of the Credit Agreement is hereby amended to read as follows:
"Lender Percentage
------- ----------
FNBB 44.4444445%
Imperial Bank 22.▇▇▇▇▇▇▇%
First Union 33.3333333%"
ss.1.3. Obligations for Revolving Credit Loans. Section 2.1(b)(i) of the
Credit Agreement is hereby amended by adding the phrase "jointly and severally"
immediately alter the word "unconditionally".
ss.1.4. Term Loan. Section 2.6 of the Credit Agreement is hereby amended
as follows:
(a) Subsection (a) of Section 2.6 is hereby amended to read as follows:
"(a) Commitment to Lend. Subject to the terms and conditions set
forth in this Agreement, the Lenders, severally in accordance with their
respective Term Loan Percentages, will on the 10th Amendment Closing Date,
upon the effectiveness of the Tenth Amendment hereto on such date, lend to
the Borrowers as joint and several obligors the Term Loan, which shall be
in the initial principal amount of $12,500,000. Each Lender's portion of
the Term Loan shall be in a principal amount equal to such Lender's Term
Loan Percentage of the aggregate principal amount of $12,500,000."
(b) Subsection (b) of Section 2.6 is hereby amended by replacing the
phrase "Closing Date" with the phrase "10th Amendment Closing Date".
(c) The text of Subsection (c)(i) of Section 2.6 is hereby amended to read
as follows:
"The Borrowers jointly and severally promise to pay to the Agent for the
ratable accounts of the Lenders, in accordance with their respective Term
Loan Percentages, the principal amount of the Term Loan in installments
due and payable on the dates and in the amounts set forth in the following
table (with the final payment due and payable in any event on the Term
Loan Maturity Date to be in the amount equal to the then unpaid principal
balance of the Term Loan):"
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Date Installment Amount
---- ------------------
December 31, 2000 $780,000
March 31, 2001 $780,000
June 30, 2001 $780,000
September 30, 2001 $780,000
December 31, 2001 $780,000
March 31, 2002 $780,000
June 30, 2002 $780,000
September 30, 2002 $780,000
December 31, 2002 $1,252,000
March 31, 2003 $1,252,000
June 30, 2003 $1,252,000
September 30, 2003 $1,252,000
December 31, 2003 $1,252,000
(d) The second sentence of Subsection (c)(ii) of Section 2.6 is hereby
amended to read as follows:
"Mandatory Prepayments shall be applied against the scheduled unpaid
installments of principal due in respect of the Term Loan in the inverse
order of their maturity."
(e) The phrase "Final Maturity Date" in Subsection (d) of Section 2.6 is
hereby replaced with the phrase "Term Loan Maturity Date".
(f) The third sentence of Subsection (d) of Section 2.6 is hereby amended
to read as follows:
"Prepayments of the Term Loan made pursuant to this paragraph shall be
applied against the scheduled unpaid installments of principal due in
respect of the Term Loan in the direct order of their maturity."
(g) Subsection (e)(iii) of Section 2.6 is hereby amended by deleting the
phrase "After the Closing Date" and capitalizing the word "the" appearing
immediately after such phrase.
ss.1.5. Representations and Warranties. Section 6.25 of the Credit
Agreement is hereby amended by inserting the phrase "and have made related
appropriate inquiries of their material suppliers and vendors" at the end of the
first sentence in the subsection immediately after the parenthetical expression
and before the period, and inserting the phrase ", the development of such
program, and such inquiries" immediately after the word "review" appearing in
the second sentence.
ss.1.6. Affirmative Covenants. Section 9 of the Credit Agreement is
hereby amended as follows:
(a) Section 9.3 is hereby amended to read as follows:
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"ss.9.3. Use of Proceeds. The Borrowers shall use (a) the proceeds
of the Loans for (i) capital expenditures in accordance with ss.10.3, (ii)
new restaurant development, working capital and general corporate
purposes, (iii) stock repurchases in accordance with ss.10.5(b) and (iv)
refinancing existing indebtedness; and (b) the Letters of Credit for
working capital and general corporate purposes, including, without
limitation supporting obligations permitted by this Agreement."
(b) Paragraph (d) of Section 9.4 is hereby amended by deleting the comma
after the phrase "10.6", inserting the word "and" immediately after the phrase
"10.6", and deleting the phrase "and 10.8".
(c) Section 9 of the Credit Agreement is hereby amended by adding the
following new subsection ss.9.17 at the end of Section 9:
"ss.9.17. Year 2000 Compliance. The Borrowers and their Subsidiaries
shall perform all acts reasonably necessary to ensure that the Borrowers
and their Subsidiaries become Year 2000 Compliant in a timely manner. The
Borrowers and their Subsidiaries shall use reasonable efforts, consistent
with good business practices in the restaurant industry, to assess whether
their material suppliers and vendors with whom they from time to time are
doing business become Year 2000 Compliant in a timely manner, and based on
such assessment such Companies shall prudently manage their business
relationships with such material suppliers and vendors. As used in this
paragraph, "Year 2000 Compliant" shall mean, in regard to any entity, that
all computer applications, material to the business operations or
financial condition of such entity, will properly perform date sensitive
functions involving the dates that occur on January 1, 2000 and
thereafter. At the request of the Agent, the Borrowers and their
Subsidiaries shall provide the Agent with written assurances, and other
evidence acceptable to the Agent and the Lenders of the compliance by the
Borrowers and their Subsidiaries with this Section 9.17."
ss.1.7. Negative Covenants. Section 10 of the Credit Agreement is hereby
amended as follows:
(a) The phrase ", Investments," is inserted immediately following the word
"expenditures" on the second line of Section 10.3(g).
(b) The following new text is added to the end of Section 10.5(b):
"In addition, Quantum may make Distributions (consisting of the repurchase
by Quantum of up to 1,330,600 shares of its outstanding common stock from
its shareholders), in an aggregate cumulative amount not exceeding
$20,000,000, provided that no Default or Event of Default is then existing
and none would exist after giving effect to any such Distribution. Such
repurchased Quantum capital stock shall be then either held by Quantum as
treasury stock ("Quantum Treasury Stock"), reissued, or cancelled."
(c) The following sentence is added to the end of Section 10.11(f):
"Notwithstanding the foregoing, none of the Companies shall be required to
pledge to the Agent any shares of the capital stock of any Foreign
Subsidiaries held by such Company unless requested by the Agent in writing
(and in the case of such a
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request by the Agent for a pledge of such capital stock, such pledge shall
apply to the lesser of (A) 65% of the total outstanding capital stock of
such Foreign Subsidiary and (B) the outstanding capital stock of such
Foreign Subsidiary owned by such Company), and no Foreign Subsidiary shall
be required to guarantee the Obligations or grant a security interest in
its assets to the Agent as Collateral for the benefit of the Lenders
unless requested by the Agent in writing."
(d) Subsection 10.11(g) is hereby amended as follows:
(i) The phrase "newly formed corporations" in lines 1 and 2 is
hereby replaced by the phrase "corporations newly formed by or on behalf
of one or more Companies".
(ii) The following sentence is added to the end of Subsection
10.11(g):
"Notwithstanding the foregoing, (I) the Companies will not become party
to, or agree to or effect, any asset acquisition or stock acquisition
(other than (x) the acquisition of assets in the ordinary course of
business consistent with past practices, to the extent permitted under
Section 10.3 hereof and (y) stock repurchases permitted under Section
10.5(b) hereof), whether by Investment or otherwise, except with the
consent of the Majority Lenders, and (II) none of the Companies shall be
required to pledge to the Agent any shares of the capital stock of any
Foreign Subsidiaries held by such Company unless requested by the Agent in
writing (and in the case of such a request by the Agent for a pledge of
such capital stock, such pledge shall apply to the lesser of (A) 65% of
the total outstanding capital stock of such Foreign Subsidiary and (B) the
outstanding capital stock of such Foreign Subsidiary owned by such
Company), and no Foreign Subsidiary shall be required to guarantee the
Obligations or grant a security interest in its assets to the Agent as
Collateral for the benefit of the Lenders unless requested by the Agent in
writing."
(e) The word "and" is deleted from the end of Section 10.11(j), the period
at the end of Section 10.11(k) is replaced by "; and", and the following new
paragraph (l) is added at the end of Section 10.11 immediately after Section
10.11(k):
"(l) Investments consisting of Distributions (including, without
limitation, the Quantum Treasury Stock held by Quantum) permitted under
Section 10.5 hereof. At no time shall the Quantum Treasury Stock ever
constitute more than 25% (by value) of the consolidated assets of Quantum,
for purposes of Regulations U and X of the Board of Governors of the
Federal Reserve System (as referred to in ss.6.24 hereof)."
ss.1.8. Consents, Amendments, Waivers, Etc. The phrase ", the Term Loan
Maturity Date," is inserted immediately following the phrase "Final Maturity
Date" in clause (c) of Section 21.
ss.1.9. Regarding the Quantum Treasury Stock. Notwithstanding any
provisions of the Security Documents or the other Loan Documents to the
contrary, (a) Quantum Treasury Stock shall in any event be excluded from the
Collateral covered by the Security Documents; (b) Section 10.4 of the Credit
Agreement shall not apply to Quantum Treasury
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Stock; and (c) Section 10.12 of the Credit Agreement shall not restrict the
disposition of Quantum Treasury Stock by Quantum.
ss.1.10. Regarding FNBB's Share of the Loans. Paragraph (a) of Section 17
of the Credit Agreement is hereby amended by deleting the text of clause (v)
thereof and inserting in its place the phrase "[intentionally omitted]" before
the period at the end of the sentence.
ss.1.11. Schedule 6.11. Schedule 6.11 of the Credit Agreement is hereby
supplemented by the information set forth on Schedule 6.11-A attached hereto.
ss.2. Addition of New Lender.
ss.2.1. Joinder of First Union. From and after the Effective Date (as
defined below). First Union shall be a party to the Credit Agreement as a Lender
thereunder as provided in the Credit Agreement as amended by this Amendment,
with the rights and obligations of a Lender thereunder.
ss.2.2. Transitional Arrangements; Allocations. Effective as of the
Effective Date, each Lender shall make such dispositions and arrangements with
each other Lender with respect to the then outstanding Revolving Credit Loans
(the "Adjustment") as shall result in the amount of Revolving Credit Loans owed
to each Lender being equal to the product of such Lender's Commitment Percentage
multiplied by the aggregate Revolving Credit Loans outstanding on the Effective
Date (the "Adjusted Amount"). Each of the Borrowers and the Guarantors hereby
agrees that each Lender's Adjusted Amount shall be Revolving Credit Loans owed
by the Borrowers jointly and severally to such Lender as if such Lender had
initially made Revolving Credit Loans to the Borrowers in the amount of the
Adjusted Amount. The Borrowers also hereby jointly and severally agree to pay
all amounts referred to in ss.4.12 of the Credit Agreement arising in connection
with the Adjustment (as if the Adjustment resulted in prepayments of the
Revolving Credit Loans reallocated pursuant to the Adjustment). Upon the
occurrence of the Adjustment, (a) the Agent shall appropriately adjust its
records to reflect each Lender's Adjusted Amount and (b) each Lender previously
party to the Credit Agreement shall promptly thereafter return to the Agent its
existing Revolving Credit Note as replaced by an Amended and Restated Revolving
Credit Note in connection with this Amendment and the contemplated reallocation
of the Revolving Credit Commitment Amount. First Union and the other Lenders
shall make any appropriate adjustments in payments received in respect of the
Obligations which are allocable to periods prior to the Effective Date directly
among themselves as shall be necessary to effect the proper allocation of such
payments among the Lenders, reflecting their respective portions of the
applicable Obligations held by them from time to time.
ss.2.3. Regarding First Union. First Union (i) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement and the other Loan Documents as are delegated to the
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (ii) agrees that it will perform in accordance with the
terms all the obligations which by the terms of the Credit Agreement, as amended
hereby, are required to be performed by it as a Lender; and (iii) agrees to
treat in confidence any information obtained by it pursuant to the Credit
Agreement unless such information otherwise becomes public knowledge and agrees
not to disclose such information to a third party except as required by law or
legal process.
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ss.3. Representations and Warranties.
ss.3.1. Borrowers' Representations and Warranties. The Borrowers hereby
represent and warrant to the Agent and the Lenders as follows:
(a) Representations and Warranties in Credit Agreement. Except as
specified in writing by the Borrowers to the Agent with respect to
the subject matter of this Amendment prior to the execution and
delivery hereof by the Agent and the Lenders, the representations
and warranties of the Borrowers contained in the Credit Agreement
were true and correct in all material respects when made and
continue to be true and correct in all material respects on and as
of the date hereof, and as of the Effective Date, except, in each
case to the extent of changes resulting from transactions
contemplated or permitted by the Loan Documents and this Amendment
and changes occurring in the ordinary course of business which
singly or in the aggregate are not materially adverse, and to the
extent that such representations and warranties relate expressly to
an earlier date.
(b) Authority, No Conflicts, Enforceability of Obligations, Etc. Each of
the Borrowers hereby confirms that the representations and
warranties of the Borrowers contained in ss.ss.6.1, 6.3 and 6.4 of
the Credit Agreement are true and correct on and as of the date
hereof, and as of the Effective Date, as if made on each such date,
treating this Amendment, the Credit Agreement as amended hereby, and
the other Loan Documents as amended hereby, as "Loan Documents" for
the purposes of making said representations and warranties.
ss.3.2 Lenders' Several Representations to First Union. BankBoston, N.A.
and Imperial Bank make no representation or warranty, express or implied, and
assume and shall have no responsibility with respect to any statements,
warranties or representations made by the Companies in or in connection with the
Credit Agreement or any of the other Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant thereto or the attachment, perfection or priority of any
security interest or mortgage, other than each such Lender severally represents
and warrants (as to itself only) to First Union that the portion of the
Obligations acquired by First Union from such Lender hereunder (if any) is free
and clear of any claim or encumbrance created by such Lender.
ss.4. Conditions to Effectiveness. This Amendment shall be deemed to be
effective as of November 20, 1998 (the "Effective Date"), subject to:
(a) the delivery to the Agent and the Lenders by (or on behalf of) each of
the Borrowers or the Guarantors, as the case may be, contemporaneously with the
execution hereof, of the following documents, each in form and substance
satisfactory to the Agent and the Lenders:
(i) this Amendment signed by each of the Borrowers, each of the
Guarantors, the Agent, and each of the Lenders, including (without
limitation) First Union as a new Lender:
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(ii) an Amended and Restated Revolving Credit Note executed and delivered
jointly and severally by the Borrowers in favor of BankBoston, N.A.,
an Amended and Restated Revolving Credit Note executed and delivered
jointly and severally by the Borrowers in favor of Imperial Bank and
a Revolving Credit Note executed and delivered jointly and severally
by the Borrowers in favor of First Union in the amounts of their
respective Commitment Percentages of the aggregate Revolving Credit
Commitment Amount, which shall (from and after the Effective Date)
be deemed to constitute the Revolving Credit Notes referred to in
the Credit Agreement;
(iii) a Term Note executed and delivered jointly and severally by the
Borrowers in favor of BankBoston, N.A., a Term Note executed and
delivered jointly and severally by the Borrowers in favor of
Imperial Bank and a Term Note executed and delivered jointly and
severally by the Borrowers in favor of First Union in the amounts of
their respective Term Loan Percentages of the Term Loan, which shall
(from and after the Effective Date) be deemed to constitute the Term
Notes referred to in the Credit Agreement;
(iv) certificates of an appropriate officer of each of the Borrowers,
dated as of the date hereof, as to (i) the charter documents and
by-laws, each as amended, of each of the Borrowers, (ii) the
corporate actions taken by each of the Borrowers authorizing the
execution, delivery, and performance hereof, and (iii) the names,
titles, incumbency, and specimen signatures of the officers of each
of the Borrowers authorized to sign this Amendment on behalf of each
of the Borrowers;
(v) favorable written legal opinions addressed to the Agent and Lenders,
dated as of the date hereof, from outside New York and Illinois
counsel to the Borrowers, with respect to such matters as to the
Borrowers and the Loan Documents as the Agent and the Lenders may
reasonably request, including (without limitation) opinions as to
the corporate authority of each of the Borrowers to execute,
deliver, and perform this Amendment, the Notes, and the other
documents contemplated hereby, and the enforceability hereof and
thereof;
(vi) such evidence as the Agent may reasonably request such that the
Agent shall be satisfied that the representations and warranties
contained in ss.3 hereof are true and correct on and as of date
hereof and as of the Effective Date;
(vii) legal existence and good standing certificates issued by the
appropriate public officials as to each of the Borrowers, and such
other certificates, documents, or instruments with respect to this
Amendment, the Notes, the other Loan Documents, the Borrowers and
the Guarantors as the Agent or the Lenders may reasonably request;
and
(viii) separate fee letters from the Borrowers to each of BankBoston,
N.A., Imperial Bank and First Union, as separately agreed with each
of them; and
(b) the completion of the following acts:
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(i) the payment of such amendment fees or closing fees by the Borrowers,
relating hereto, as shall have been previously, separately agreed by
the parties, to be paid to the Agent for allocation among the
Lenders in such respective amounts as so agreed with each such
Lender.
ss.5. No Other Amendments or Waivers; Execution in Counterparts. Except as
otherwise expressly provided by this Amendment, all of the terms, conditions and
provisions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect. Each of the Borrowers and the Guarantors confirms and
agrees that the Obligations of the Borrowers to the Lenders under the Loan
Documents, as amended, supplemented, and increased hereby, are secured by,
guarantied under, and entitled to the benefits, of the Security Documents. The
Borrowers, the Guarantors, the Agent and the Lenders hereby acknowledge and
agree that all references to the Credit Agreement and the Obligations thereunder
contained in any of the Loan Documents shall be references to the Credit
Agreement and the Obligations, as amended hereby and as the same may be amended,
modified, supplemented, or restated from time to time. The Security Documents
and the perfected first priority security interests of the Lenders thereunder as
collateral security for the Obligations shall continue in full force and effect,
and the collateral security and guaranties provided for in the Security
Documents shall not be impaired by this Amendment (except for the exclusion of
the Quantum Treasury Stock from the Collateral, as provided herein). This
Amendment may be executed in any number of counterparts, but all such
counterparts shall together constitute but one instrument. In making proof of
this Amendment it shall not be necessary to produce or account for more than one
counterpart signed by each party hereto by and against which enforcement hereof
is sought.
ss.6. Return of Notes. Promptly upon the effectiveness of this Amendment,
each Lender holding a Revolving Credit Note previously delivered to such Lender
under the Credit Agreement (prior to giving effect to this Amendment) that has
been superseded and replaced by a Revolving Credit Note delivered to such Lender
pursuant to this Amendment shall return such superseded note, marked
"cancelled", to the Borrowers.
ss.7. Governing Law. This Amendment shall be construed according to and
governed by the internal laws of the Commonwealth of Massachusetts without
reference to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
The Borrowers:
▇▇▇▇▇▇'▇ RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
▇▇▇▇▇▇'▇ OF CHICAGO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
BANKBOSTON, N.A. (formerly known as The First
National Bank of Boston), for itself and as Agent
By:
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Name:
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Title:
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IMPERIAL BANK
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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Consented and agreed to, by each of THE GUARANTORS
(as defined in the Credit Agreement)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer for each of the
Guarantors
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
The Borrowers:
▇▇▇▇▇▇'▇ RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
▇▇▇▇▇▇'▇ OF CHICAGO, INC.
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
BANKBOSTON, N.A. (formerly known as The First
National Bank of Boston), for itself and as Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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IMPERIAL BANK
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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Consented and agreed to, by each of THE GUARANTORS
(as defined in the Credit Agreement)
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer for each of the
Guarantors
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
The Borrowers:
▇▇▇▇▇▇'▇ RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
▇▇▇▇▇▇'▇ OF CHICAGO, INC.
By:
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
BANKBOSTON, N.A. (formerly known as The First
National Bank of Boston), for itself and as Agent
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
IMPERIAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Title: Vice President
-------------------------------------------
FIRST UNION NATIONAL BANK
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
Consented and agreed to, by each of THE GUARANTORS
(as defined in the Credit Agreement)
By:
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer for each of the
Guarantors
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
The Borrowers:
▇▇▇▇▇▇'▇ RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
▇▇▇▇▇▇'▇ OF CHICAGO, INC.
By:
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
BANKBOSTON, N.A. (formerly known as The First
National Bank of Boston), for itself and as Agent
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
IMPERIAL BANK
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Title: Vice President
-------------------------------------------
Consented and agreed to, by each of THE GUARANTORS
(as defined in the Credit Agreement)
By:
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer for each of the
Guarantors
SCHEDULE 6.11-A
ADDENDUM TO
SCHEDULE 6.11
TO
SECOND AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
▇▇▇▇▇▇'▇ of Chicago, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ v. An employee (Plaintiff) of a subsidiary of the Company,
Morton's of initiated legal action against ▇▇▇▇▇▇'▇ of Chicago,
Chicago, et. al.., Quantum Corporation and unnamed "Doe" defendants on
February 8, 1996 in California Superior Court in San
Francisco. Plaintiffs, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, complaint
alleged under California law, among other things,
wrongful constructive termination, sex discrimination
and sexual harassment. Plaintiff sought general, special
and punitive damages in unspecified amounts, as well as
attorney's fees and costs. The case was subsequently
removed to the US District Court for the Northern
District of California. By order dated October 14, 1997,
the Court granted Plaintiff's motion for partial summary
judgment, finding that an employer is strictly liable
under California law for the sexually harassing conduct
of the employer's supervisory employees. On November 24,
1997, a jury in the US District Court for the Northern
District of California awarded a judgment to the
Plaintiff. In conjunction with the judgment, the Company
recorded a 1997 fourth quarter nonrecurring, pre-tax
charge of $2,300,000, representing compensatory damages
of $250,000, punitive damages of $850,000, and an
estimate of the Plaintiff's and the Company's legal fees
and expenses. On July 29, 1998, the Court entered
judgment in accordance with the jury's verdict. The
Company will vigorously contest and appeal the judgment.
