Exhibit 4.04(r)
INSTRUMENT OF ADHERENCE
Dated as of February 28, 2001
To: Fleet National Bank, as Agent,
the Lenders, and the Borrowers,
as defined in the Credit Agreement
referred to below
Reference is made to the Second Amended and Restated Revolving Credit and
Term Loan Agreement, dated as of June 19, 1995 (as amended and in effect from
time to time, the "Credit Agreement"), by and among XXXXXX'X RESTAURANT GROUP,
INC. (formerly known as Quantum Restaurant Group, Inc.), a Delaware corporation
(referred to below and in the Credit Agreement as "Quantum"), PEASANT HOLDING
CORP., a Delaware corporation ("Peasant Holding"), XXXXXX'X OF CHICAGO, INC., an
Illinois corporation ("Morton's") (Quantum, Peasant Holding and Morton's are
referred to herein collectively as the "Borrowers", and each, individually, as a
"Borrower"), FLEET NATIONAL BANK, as Agent (the "Agent") for the Lenders (as
defined in the Credit Agreement), FLEET NATIONAL BANK (referred to in the Credit
Agreement as "FNBB") in its individual capacity as a Lender, and the other
Lenders party thereto. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Credit Agreement.
The parties hereto hereby agree as follows:
1. Additional Commitment Amount; New Lender. This Instrument of Adherence
(this "Instrument") is being executed and delivered in accordance with ss.17A of
the Credit Agreement. The Borrowers have requested that LaSalle Bank National
Association ("LaSalle") agree to provide the Borrowers with an Additional
Commitment Amount pursuant to ss.17A. By their respective signatures below, each
of the Borrowers and the Agent hereby consents to the provision by LaSalle of an
Additional Commitment Amount in the amount of $12,500,000.00 and to the status
of LaSalle thereby as a "New Lender" with a corresponding Revolving Credit
Commitment under ss.17A of the Credit Agreement (in such capacity, LaSalle being
referred to sometimes herein as the "New Lender"), to the extent of such
Additional Commitment Amount. By its signature below, LaSalle agrees to provide
such Additional Commitment Amount to the Borrowers and to be bound, as a Lender,
by the terms and conditions of the Credit Agreement and the other Loan Documents
(as to such Additional Commitment Amount and its corresponding Revolving Credit
Commitment) and to make Revolving Credit Loans and to participate in the
issuance, extension and renewal of Letters of Credit, all in accordance with the
Credit Agreement and such Additional Commitment Amount. LaSalle agrees that its
Additional
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Commitment Amount under the Credit Agreement shall be equal to $12,500,000.00 as
aforesaid. LaSalle's address for notices (as provided in ss. 17A of the Credit
Agreement) is as set forth on the applicable signature page hereto. LaSalle
further hereby expressly confirms and agrees, for the benefit of the Agent, the
Lenders, and the Borrowers, as to all of the matters set forth in
ss.ss.17A(j)(i) through (viii) of the Credit Agreement with respect to itself,
its status as a New Lender and its obligation to provide the Additional
Commitment Amount contemplated hereby in respect of the Revolving Credit
Commitment Amount under the Credit Agreement. The Agent hereby waives the
processing fee of $3,000 otherwise applicable to this Instrument under ss.17A of
the Credit Agreement.
2. New Revolving Credit Note. Upon the execution and delivery of this
Instrument, and as a condition to its effectiveness, an appropriate Revolving
Credit Note shall be issued by the Borrowers to the New Lender in the applicable
amount provided for in ss.2.1(c) of the Credit Agreement. The Borrowers shall
also promptly furnish to LaSalle and the Agent such additional documents and
assurances as either may reasonably request pursuant to ss.17A(e) of the Credit
Agreement in connection with this Instrument and such Revolving Credit Note.
3. Effective Date. The effective date for this Instrument shall be
February 28, 2001 (the "Effective Date"). Following the execution of this
Instrument, and the consent hereto of the Agent and the Borrowers having been
obtained and evidenced by their execution hereof as indicated below, each party
hereto shall deliver its duly executed counterpart hereof to the Agent for
recording in the Register by the Agent as provided in ss.17A of the Credit
Agreement.
4. Joinder. From and after the Effective Date, the New Lender shall be a
party to the Credit Agreement and shall be entitled to all of the rights,
benefits and interests of, and obligated to perform all of the undertakings,
obligations and duties of, a Lender under the Credit Agreement having a
Revolving Credit Commitment in respect of the Additional Commitment Amount
provided for in this Instrument, all as contemplated by ss.17A of the Credit
Agreement.
5. Adjustment of Revolving Credit Commitment. Upon the Effective Date, the
Revolving Credit Commitment Amount, the related aggregate amount of the
Revolving Credit Commitment, and the applicable Commitment Percentages of the
Lenders shall be adjusted as provided in ss.17A of the Credit Agreement to
reflect the Additional Commitment Amount contemplated hereby.
6. Initial Funding Arrangements. Pursuant to ss.17A of the Credit
Agreement, on the Effective Date the New Lender shall fund its applicable
portion of the outstanding Revolving Credit Loans in the manner set forth in
ss.17A in such amounts as shall be necessary to result in the New Lender and
each of the other Lenders then holding Revolving Credit Loans equal to its
applicable Commitment Percentage (after giving effect to the adjustments
thereof referred to above) of the aggregate principal amount of all Revolving
Credit Loans then outstanding; and the Borrowers shall pay any amounts
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that may be applicable in connection with such funding arrangements pursuant to
the final paragraph of ss.17A of the Credit Agreement. Any such payments of
funds by the New Lender to (or for the account of) the other Lenders to
effectuate the funding arrangements contemplated hereby in respect of the New
Lender's Additional Commitment Amount shall constitute Revolving Credit Loans by
the New Lender made to, and owed jointly and severally by, the Borrowers, all as
provided in ss.17A.
7. Governing Law. THIS INSTRUMENT IS INTENDED TO TAKE EFFECT AS A SEALED
INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICT OF
LAWS).
8. No Default or Event of Default. By signing this Instrument below, the
Borrowers hereby represent and warrant to the New Lender and the Agent that no
Default or Event of Default has occurred and is continuing and that all of the
Additional Commitment Conditions are satisfied in connection herewith.
9. Eligible Assignee Status. By signing this Instrument below, LaSalle
hereby represents and warrants to the Agent, the Lenders, and the Borrowers that
it is an Eligible Assignee and accordingly is eligible for the status of a New
Lender hereunder.
10. Counterparts. This Instrument may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
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IN WITNESS WHEREOF, intending to be legally bound, the undersigned has
caused this Instrument to be executed on its behalf by its applicable officer
thereunto duly authorized, as of the date first above written.
The New Lender: LASALLE BANK NATIONAL
ASSOCIATION
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: VP
Address for notices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
CONSENTED AND AGREED TO:
FLEET NATIONAL BANK, as Agent
By: /s/ Xxxxxx X. XxxXxxxxxx
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Name: Xxxxxx X. XxxXxxxxxx
Title: Vice President
XXXXXX'X RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
XXXXXX'X OF CHICAGO, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: EVP & CFO
