EXHIBIT 10.15
BAYPORT RESTAURANT GROUP, INC.
AND SUBSIDIARIES
FIRST AMENDMENT
THIS AMENDMENT (this "Amendment") is entered into as of February 6, 1996
by and among Bayport Restaurant Group, Inc., Crab House, Inc., Capt. Crab's
Take-Away of 79th Street, Inc., Take-Away/King Shopping Plaza, Inc. and Cryotech
Industries of North Carolina, Inc. (each collectively referred to herein as the
"Borrower" or the "Borrowers"), the financial institutions party to the
Agreement (as defined below) (the "Lenders"), and The First National Bank of
Boston, a national banking association having its head office at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, its successors and assigns, as agent for the
Lenders (the "Agent").
R E C I T A L S
WHEREAS, the Borrowers, the Agent and the Lenders have entered into a
Revolving Credit and Term Loan Agreement dated December 14, 1994 (the
"Agreement"), all capitalized terms used, but not otherwise defined, herein
having the meanings ascribed to them in the Agreement;
WHEREAS, the Borrowers have requested that the Lenders agree to modify
certain terms of the Agreement, including increasing the Maximum Commitment to
$16,000,000, and the Lenders are willing to grant such request;
WHEREAS, the Borrowers are continuing to operate and carry on their
respective businesses on an interrelated and integrated basis with each being
interdependent on the others for certain aspects of their operations, and the
Lenders, in recognition thereof, are continuing to rely on the consolidated
financial strength of the Borrowers;
NOW THEREFORE, in consideration of the foregoing premises and the mutual
benefits to be derived by the parties from a continuing relationship under the
Agreement and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each of the parties agrees as
follows:
#. The defined terms "Maximum Commitment" and "Property or Properties"
appearing in Section 1 of the Agreement are hereby amended in their entirety to
read as follows:
"MAXIMUM COMMITMENT. The sum of the Commitments, not to
exceed $16,000,000.00."
"PROPERTY OR PROPERTIES. Shall mean
(i) EXISTING PROPERTIES. The real estate purchased, leased or licensed
by the Borrower and described in Exhibit 1.1(a) attached hereto and
incorporated herein by reference which represent the location at which
the Borrower has, as of the date hereof, existing operations or
facilities under construction; and
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(ii) ADDITIONAL PROPERTIES. Any parcel of real estate
purchased, leased or licensed by the Borrower after the
Closing Date."
#. Section 2.4(b) is hereby amended by deleting the table of Early
Termination Periods and Early Termination Fees contained therein and
substituting therefor the following:
"EARLY TERMINATION PERIODS EARLY TERMINATION FEE
-------------------------- ---------------------
From December 15, 1995
to December 14, 1996 2% of the Maximum
Commitment
From December 15, 1996
to December 31, 1997 1% of the Maximum
Commitment"
#. Section 5.1 is hereby amended by relettering subclause
(i) as new subclause (j), and by substituting the following as
new subclause (i):
"(i) as soon as available, but in any event within forty-five (45) days
after the end of each fiscal quarter, an income statement reporting income
and expense for each restaurant operated by the Borrowers in operation as of
the end of such fiscal quarter;"
#. The Commitments appearing on the signature pages of the
Agreement are hereby amended as follows: (a) the Commitment
of The First National Bank of Boston is $11,000,000; and (b)
the Commitment of Capital Bank is $5,000,000.
#.Section 6.3 of the Agreement is hereby amended by the addition of the
following new subclause (h) at the end thereof:
"(h) Encumbrances in favor of Capital Bank ("Capital") on certain "Jax
Inventory" (expressly excluding proceeds other than insurance proceeds), as
such term is defined in the Revolving Credit Agreement dated December 12,
1995 betwen Capital and the Borrowers for Indebtedness incurred thereunder
up to an amount not to exceed the "Capital Limit," as defined in that
certain Intercreditor Agreement dated as of December 12, 1995 between
Capital and the Agent, as may be amended from time to time."
#. The section numbered "11.5" appearing on page 69 of the Agreement
is hereby corrected to read "11.15."
#. EFFECTIVENESS OF AMENDMENT. This Amendment shall become
effective, as of the date first written above, upon the
satisfaction of the following conditions precedent:
(a) receipt by the Agent of this Amendment executed by each
of the parties hereto;
(b) receipt by the Agent of new Revolving Credit Notes to the order of each
of the
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Lenders in the amount of their respective new Commitments,
accompanied by an Affidavit of Out-of-State Delivery or, if executed in the
state of Florida, the required amount of documentary stamps affixed thereto;
(c) a certificate of the secretary or an assistant secretary of the
Borrowers with respect to resolutions of their respective Boards of
Directors authorizing the execution and delivery of this Amendment,
confirming the resolutions previously adopted by such Boards of Directors of
the Borrowers on October 19, 1994 authorizing the borrowings and other
transactions contemplated under the Agreement, identifying the officer(s)
authorized to execute, deliver and take all other actions required under
this Amendment, or the Agreement, and confirming that each of the Borrowers'
Articles of Organization and By-Laws previously delivered and certified to
the Agent on November 22, 1994 have not been amended, substituted, rescinded
or otherwise modified in any way since the date of said prior certification;
(d) a certificate of the president or chief financial officer of the
Borrowers with respect to representations and warranties under the Agreement
(to include a list of Properties acquired since the Closing Date), and the
absence of any Defaults or Events of Default;
(e) an opinion of legal counsel to the Borrowers as to due organization and
good standing, due authorization of this Amendment and the transactions
contemplated hereby, enforceability of this Amendment, the existence of no
conflicts with laws or other agreements, and the satisfaction or payment of
all necessary recording, documentary, filing or other fees;
(f) such other items or documents as may be requested by the
Agent or the Lenders.
#. EFFECT UPON THE AGREEMENT. Upon and after the date of this Amendment
all references to the Agreement in that document, any Loan Document, or in any
other related document shall mean the Agreement as amended by this Amendment.
Except as expressly provided in this Amendment, the execution and delivery of
this Amendment does not and will not amend, modify or supplement any provision
of, or constitute a consent to or a waiver of any non-compliance with the
provisions of the Agreement, and, except as specifically provided in this
Amendment, the Agreement shall remain in full force and effect.
#. NO IMPAIRMENT OF LIEN. Nothing set forth herein shall affect the
priority or extent of the lien of the Agreement or any other Loan Document, nor
release or change the liability of any party who may now be or after the date of
this, become liable primarily or secondarily, thereunder.
#. FURTHER ASSURANCES. The Borrowers hereby agree to
execute and deliver such other instruments, and take such other
action, as the Agent or the Lenders may reasonably request in
connection with this Amendment, including, without limitation,
the delivery of all
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additional Uniform Commercial Code financing
statements which the Agent may deem appropriate for the perfection, protection
and enforcement of its security interests in the Collateral.
#. MISCELLANEOUS. (a) This Amendment shall be construed according to and
governed by the laws of The Commonwealth of Massachusetts without regard to its
internal conflicts rules; (b) if any provision of this Amendment is adjudicated
to be invalid, illegal or unenforceable, in whole or in part, it will be deemed
omitted to that extent and all other provisions of this Amendment will remain in
full force and effect; (c) the captions contained in this Amendment are for
convenience of reference only and in no event define, describe or limit the
scope of intent or any of the provisions or terms hereof; (d) this Amendment
shall be binding upon and inure to the benefit of the parties and their
respective heirs, legal representatives, successors and assigns; and (e) this
Amendment may be executed in one or more counterparts.
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IN WITNESS WHEREOF, each of the Borrowers, the Agent and the Lenders in
accordance with Section 11.7 of the Agreement, has caused this Amendment to be
executed and delivered by their respective duly authorized officers as an
instrument under seal as of the date first set forth above.
BORROWER:
BAYPORT RESTAURANT GROUP, INC.
WITNESSED:
By:______________________ By: /s/ Xxxxxxx X. Xxxxxxxxx
Name:____________________ Name: Xxxxxxx X. Xxxxxxxxx
Print Name Print Name
Title: President
Signed At:
CRAB HOUSE, INC.
WITNESSED:
By:______________________ By: /s/ Xxxxxxx X. Xxxxxxxxx
Name:____________________ Name: Xxxxxxx X. Xxxxxxxxx
Print Name Print Name
Title: President
Signed At:
CAPT. CRAB'S TAKE-AWAY OF 79TH
STREET., INC.
WITNESSED:
By:______________________ By: /s/ Xxxxxxx X. Xxxxxxxxx
Name:____________________ Name: Xxxxxxx X. Xxxxxxxxx
Print Name Print Name
Title: President
Signed At:
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CRYOTECH INDUSTRIES OF NORTH
CAROLINA, INC.
WITNESSED:
By:______________________ By: /s/ Xxxxxxx X. Xxxxxxxxx
Name:____________________ Name: Xxxxxxx X. Xxxxxxxxx
Print Name Print Name
Title: President
Signed At:
TAKE-AWAY/KING SHOPPING
PLAZA, INC.
WITNESSED:
By:______________________ By: /s/ Xxxxxxx X. Xxxxxxxxx
Name:____________________ Name: Xxxxxxx X. Xxxxxxxxx
Print Name Print Name
Title: President
Signed At:
AGENT:
THE FIRST NATIONAL BANK OF
BOSTON, as Agent
WITNESSED:
By:______________________ By: /s/ Xxxxxxx X. Xxxxxxxx
Name:____________________ Name: Xxxxxxx X. Xxxxxxxx
Print Name Print Name
Title: Vice President
Signed At:
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LENDERS:
Commitment THE FIRST NATIONAL BANK OF
Amount: $11,000,000 BOSTON
WITNESSED:
By:______________________ By: /s/ Xxxxxxx X. Xxxxxxxx
Name:____________________ Name: Xxxxxxx X. Xxxxxxxx
Print Name Print Name
Title: Vice President
Signed At:
Commitment CAPITAL BANK
Amount: $5,000,000
WITNESSED:
By:______________________ By: /s/ Xxxxxx X. Xxxxxxx
Name:____________________ Name: Xxxxxx X. Xxxxxxx
Print Name Print Name
Title: Senior Vice President
Signed At:
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