EXHIBIT 10.14
EXECUTION VERSION
INTERCOMPANY SUBORDINATION AGREEMENT
THIS INTERCOMPANY SUBORDINATION AGREEMENT (this "AGREEMENT"), dated as
of July 7, 2003, is made by and between XXXXXX'X RESTAURANT GROUP, INC., a
Delaware corporation ("BORROWER"), and each of Borrower's Subsidiaries
identified on the signature pages hereto (such Subsidiaries, together with
Borrower, are referred to hereinafter each individually as an "OBLIGOR", and
individually and collectively, jointly and severally, as the "OBLIGORS"), in
favor of XXXXX FARGO FOOTHILL, INC., a California corporation ("LENDER").
WHEREAS, Borrower and Lender have entered into that certain Loan and
Security Agreement, of even date herewith (as amended, restated, modified,
renewed or extended from time to time, the "LOAN AGREEMENT"), pursuant to which
Lender has agreed to make certain financial accommodations to Borrower;
WHEREAS, each Obligor has made or may make certain loans or advances
from time to time to one or more other Obligors; and
WHEREAS, each Obligor has agreed to the subordination of such
indebtedness of each other Obligor to such Obligor, upon the terms and subject
to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
conditions, representations, and warranties set forth herein and for other good
and valuable consideration, the parties hereto agree as follows:
SECTION 1 DEFINITIONS; INTERPRETATION.
(a) TERMS DEFINED IN LOAN AGREEMENT. All capitalized terms used in
this Agreement and not otherwise defined herein shall have the meanings assigned
to them in the Loan Agreement.
(b) CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"AGREEMENT" has the meaning set forth in the preamble hereto.
"BANK PRODUCT PROVIDERS" has the meaning set forth in the Loan
Agreement.
"BORROWER" has the meaning set forth in the preamble hereto.
"INSOLVENCY EVENTS" has the meaning set forth in Section 3.
"LENDER" has the meaning set forth in the preamble hereto.
"LOAN AGREEMENT" has the meaning set forth in the recitals hereto.
"OBLIGORS" has the meaning set forth in the preamble hereto.
"SENIOR DEBT" means the Obligations and other indebtedness and
liabilities of the Obligors to Lender and the Bank Product Providers under or in
connection with the Loan Agreement, the Guaranty and the other Loan Documents,
including all unpaid principal of the Advances, all interest accrued thereon,
all fees due under the Loan Agreement and the other Loan Documents, and all
other amounts payable by the Obligors to Lender and the Bank Product Providers
thereunder or in connection therewith, whether now existing or hereafter
arising, and whether due or to become due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, and including without limitation
interest, fees, and other such amounts, which would accrue and become due but
for the commencement of an Insolvency Event, whether or not such interest, fees,
and other amounts are allowed or allowable in whole or in part in any such
Insolvency Event.
"SUBORDINATED DEBT" means, with respect to each Obligor, all
indebtedness, liabilities, and other obligations of any other Obligor owing to
such Obligor in respect of any and all loans or advances made by such Obligor to
such other Obligor whether now existing or hereafter arising, and whether due or
to become due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, including all fees and all other amounts payable by any other
Obligor to such Obligor under or in connection with any documents or instruments
related thereto.
"SUBORDINATED DEBT PAYMENT" means any payment or distribution by or on
behalf of the Obligors, directly or indirectly, of assets of the Obligors of any
kind or character, whether in cash, property, or securities, including on
account of the purchase, redemption, or other acquisition of Subordinated Debt,
as a result of any collection, sale, or other disposition of collateral, or by
setoff, exchange, or in any other manner, for or on account of the Subordinated
Debt.
(c) INTERPRETATION. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the term "including" is not limiting, and the
term "or" has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or." The words "hereof," "herein," "hereby,"
"hereunder," and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. Section,
subsection, clause, schedule, and exhibit references are to this Agreement
unless otherwise specified. References to agreements and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications thereto. References to statutes or regulations are to be construed
as including all statutory and regulatory provisions consolidating, amending, or
replacing the statute or regulation referred to. The captions and headings are
for convenience of reference only and shall not affect the construction of this
Agreement.
SECTION 2 SUBORDINATION TO PAYMENT OF SENIOR DEBT. As to each
Obligor, all payments on account of the Subordinated Debt shall be subject,
subordinate, and junior, in right of payment and exercise of remedies, to the
extent and in the manner set forth herein, to the prior payment, in full, in
cash or cash equivalents of the Senior Debt.
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SECTION 3 SUBORDINATION UPON ANY DISTRIBUTION OF ASSETS OF THE
OBLIGORS. Except in connection with any transfer of assets in connection with a
disposition permitted under clause (f) of the definition of Permitted
Dispositions in the Loan Agreement, as to each Obligor, in the event of any
payment or distribution of assets of any other Obligor of any kind or character,
whether in cash, property, or securities, upon the dissolution, winding up, or
total or partial liquidation or reorganization, readjustment, arrangement, or
similar proceeding relating to such other Obligor or its property, whether
voluntary or involuntary, or in bankruptcy, insolvency, receivership,
arrangement, or similar proceedings or upon an assignment for the benefit of
creditors, or upon any other marshaling or composition of the assets and
liabilities of such other Obligor, or otherwise (such events, collectively, the
"INSOLVENCY EVENTS"): (i) all amounts owing on account of the Senior Debt shall
first be paid, in full, in cash, or payment provided for in cash or in cash
equivalents, before any Subordinated Debt Payment is made; and (ii) to the
extent permitted by applicable law, any Subordinated Debt Payment to which such
Obligor would be entitled except for the provisions hereof, shall be paid or
delivered by the trustee in bankruptcy, receiver, assignee for the benefit of
creditors, or other liquidating agent making such payment or distribution
directly to Lender and the Bank Product Providers for application to the payment
of the Senior Debt in accordance with clause (i), after giving effect to any
concurrent payment or distribution or provision therefor to Lender and the Bank
Product Providers in respect of such Senior Debt.
SECTION 4 PAYMENTS ON SUBORDINATED DEBT.
(a) PERMITTED PAYMENTS. So long as no Event of Default has occurred
and is continuing, each Obligor may make, and each other Obligor shall be
entitled to accept and receive, payments on account of the Subordinated Debt in
the ordinary course of business.
(b) NO PAYMENT UPON SENIOR DEBT DEFAULTS. Upon the occurrence and
during the continuance of any Event of Default, each Obligor shall not make, and
each other Obligor shall not accept or receive, any Subordinated Debt Payment
(except for Subordinated Debt Payments expressly permitted under clause (f) of
the definition of Permitted Investments in the Loan Agreement).
SECTION 5 SUBORDINATION OF REMEDIES. As long as any Senior Debt
shall remain outstanding and unpaid, following the occurrence and during the
continuance of any Event of Default, each Obligor shall not, without the prior
written consent of Lender:
(a) accelerate, make demand, or otherwise make due and payable prior
to the original due date thereof any Subordinated Debt or bring suit or
institute any other actions or proceedings to enforce its rights or interests in
respect of the obligations of any other Obligor owing to such Obligor;
(b) exercise any rights under or with respect to guaranties of the
Subordinated Debt, if any;
(c) exercise any rights to set-offs and counterclaims in respect of
any indebtedness, liabilities, or obligations of such Obligor to any other
Obligor against any of the Subordinated Debt; or
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(d) commence, or cause to be commenced, or join with any creditor
other than Lender and the Bank Product Providers in commencing any bankruptcy,
insolvency, or receivership proceeding against the other Obligor.
SECTION 6 PAYMENT OVER TO LENDER. In the event that, notwithstanding
the provisions of Sections 3, 4, and 5, any Subordinated Debt Payments shall be
received in contravention of Section 3, 4, or 5 by any Obligor before all Senior
Debt is paid, in full, in cash or cash equivalents, such Subordinated Debt
Payments shall be held in trust for the benefit of Lender and the Bank Product
Providers and shall be paid over or delivered to Lender and the Bank Product
Providers for application to the payment, in full, in cash or cash equivalents
of all Senior Debt remaining unpaid to the extent necessary to give effect to
such Sections 3, 4, and 5, after giving effect to any concurrent payments or
distributions to Lender and the Bank Product Providers in respect of the Senior
Debt.
SECTION 7 AUTHORIZATION TO LENDER. If, while any Subordinated Debt
is outstanding, any Insolvency Event shall occur and be continuing with respect
to any other Obligor or its property: (i) Lender hereby is irrevocably
authorized and empowered (in the name of each Obligor or otherwise), but shall
have no obligation, to demand, xxx for, collect, and receive every payment or
distribution in respect of the Subordinated Debt and give acquittance therefor
and to file claims and proofs of claim and take such other action (including
voting the Subordinated Debt) as it may deem necessary or advisable for the
exercise or enforcement of any of the rights or interests of Lender and the Bank
Product Providers; and (ii) each Obligor shall promptly take such action as
Lender reasonably may request (A) to collect the Subordinated Debt for the
account of Lender and the Bank Product Providers and to file appropriate claims
or proofs of claim in respect of the Subordinated Debt, (B) to execute and
deliver to Lender such powers of attorney, assignments, and other instruments as
it may request to enable it to enforce any and all claims with respect to the
Subordinated Debt, and (C) to collect and receive any and all Subordinated Debt
Payments.
SECTION 8 CERTAIN AGREEMENTS OF EACH OBLIGOR.
(a) NO BENEFITS. Each Obligor understands that there may be various
agreements between Lender and the Bank Product Providers and any other Obligor
evidencing and governing the Senior Debt, and each Obligor acknowledges and
agrees that such agreements are not intended to confer any benefits on such
Obligor and that neither Lender nor any Bank Product Provider shall have any
obligation to such Obligor or any other Person to exercise any rights, enforce
any remedies, or take any actions which may be available to them under such
agreements.
(b) NO INTERFERENCE. Each Obligor acknowledges that each other Obligor
has granted to Lender for Lender's benefit and for the benefit of the Bank
Product Providers security interests in all of such other Obligor's assets, and
agrees not to interfere with or in any manner oppose a disposition of any
Collateral by Lender and the Bank Product Providers in accordance with
applicable law and the terms of the Loan Documents.
(c) RELIANCE BY LENDER. Each Obligor acknowledges and agrees that
Lender and the Bank Product Providers will have relied upon and will continue to
rely upon the
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subordination provisions provided for herein and the other provisions hereof in
entering into the Loan Documents and making or issuing the Advances, the Letters
of Credit, or other financial accommodations thereunder.
(d) WAIVERS. Except as provided under the Loan Agreement, each Obligor
hereby waives any and all notice of the incurrence of the Senior Debt or any
part thereof and any right to require marshaling of assets.
(e) OBLIGATIONS OF EACH OBLIGOR NOT AFFECTED. Each Obligor hereby
agrees that at any time and from time to time, without notice to or the consent
of such Obligor, without incurring responsibility to such Obligor, and without
impairing or releasing the subordination provided for herein or otherwise
impairing the rights of Lender or the Bank Product Providers hereunder: (i) the
time for any other Obligor's performance of or compliance with any of its
agreements contained in the Loan Documents may be extended or such performance
or compliance may be waived by Lender; (ii) the agreements of any other Obligor
with respect to the Loan Documents may from time to time be modified by such
other Obligor and Lender for the purpose of adding any requirements thereto or
changing in any manner the rights and obligations of such other Obligor or
Lender thereunder; (iii) the manner, place, or terms for payment of Senior Debt
or any portion thereof may be altered or the terms for payment extended, or the
Senior Debt may be renewed in whole or in part; (iv) the maturity of the Senior
Debt may be accelerated in accordance with the terms of any present or future
agreement by any other Obligor and Lender; (v) any Collateral may be sold,
exchanged, released, or substituted and any Lien in favor of Lender for Lender's
benefit and for the benefit of the Bank Product Providers may be terminated,
subordinated, or fail to be perfected or become unperfected; (vi) any Person
liable in any manner for Senior Debt may be discharged, released, or
substituted; and (vii) all other rights against the other Obligor, any other
Person, or with respect to any Collateral may be exercised (or Lender may waive
or refrain from exercising such rights).
(f) RIGHTS OF LENDER NOT TO BE IMPAIRED. No right of Lender or the
Bank Product Providers to enforce the subordination provided for herein or to
exercise its other rights hereunder shall at any time in any way be prejudiced
or impaired by any act or failure to act by any other Obligor, Lender, the Bank
Product Providers or by any noncompliance by the other Obligor with the terms
and provisions and covenants herein or in any other Loan Document, regardless of
any knowledge thereof Lender or the Bank Product Providers may have or otherwise
be charged with.
(g) FINANCIAL CONDITION OF THE OBLIGORS. Except as provided under the
Loan Agreement or any Loan Document, each Obligor shall not have any right to
require Lender to obtain or disclose any information with respect to: (i) the
financial condition or character of any other Obligor or the ability of the
other Obligor to pay and perform Senior Debt; (ii) the Senior Debt; (iii) the
Collateral or other security for any or all of the Senior Debt; (iv) the
existence or nonexistence of any guarantees of, or any other subordination
agreements with respect to, all or any part of the Senior Debt; (v) any action
or inaction on the part of Lender or any other Person; or (vi) any other matter,
fact, or occurrence whatsoever.
(h) ACQUISITION OF LIENS OR GUARANTIES. Except as permitted under the
Loan Agreement, each Obligor shall not, without the prior consent of Lender,
acquire any right or
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interest in or to any assets of any other Obligor or accept any guaranties from
any other Obligor or from any other Subsidiary of Borrower for the Subordinated
Debt.
SECTION 9 SUBROGATION.
(a) SUBROGATION. Until the payment and performance in full in cash of
all Senior Debt (other than contingent reimbursement obligations), no Obligor
shall have, and no Obligor shall directly or indirectly exercise, any rights
that it may acquire by way of subrogation under this Agreement, by any payment
or distribution to Lender hereunder or otherwise. Upon the payment and
performance in full in cash of all Senior Debt (other than contingent
reimbursement obligations), each Obligor shall be subrogated to the rights of
Lender to receive payments or distributions applicable to the Senior Debt until
the Subordinated Debt shall be paid in full. For the purposes of the foregoing
subrogation, no payments or distributions to Lender of any cash, property, or
securities to which any Obligor would be entitled except for the provisions of
Section 3, 4, or 5 shall, as among such Obligor, its creditors (other than
Lender), and the other Obligor, be deemed to be a payment by the other Obligors
to or on account of the Senior Debt.
(b) PAYMENTS OVER TO THE OBLIGORS. If any payment or distribution to
which any Obligor would otherwise have been entitled but for the provisions of
Section 3, 4, or 5 shall have been applied pursuant to the provisions of Section
3, 4, or 5 to the payment of all amounts payable under the Senior Debt, such
Obligor shall be entitled to receive from Lender any payments or distributions
received by Lender in excess of the amount sufficient to pay in full in cash all
amounts payable under or in respect of the Senior Debt. If any such excess
payment is made to Lender, Lender shall promptly remit such excess to such
Obligor and until so remitted shall hold such excess payment for the benefit of
such Obligor.
SECTION 10 CONTINUING AGREEMENT; REINSTATEMENT.
(a) CONTINUING AGREEMENT. This Agreement is a continuing agreement of
subordination and shall continue in effect and be binding upon each Obligor
until payment and performance in full in cash of the Senior Debt (or the
collateralization thereof in a manner reasonably satisfactory to Lender) (other
than contingent reimbursement obligations) or until such Obligor is released
from its obligations hereunder pursuant to the terms of the Loan Agreement and
the other Loan Documents. The subordinations, agreements, and priorities set
forth herein shall remain in full force and effect regardless of whether any
party hereto in the future seeks to rescind, amend, terminate, or reform, by
litigation or otherwise, its respective agreements with the other Obligor,
except to the extent otherwise permitted by the Loan Agreement or the other Loan
Documents.
(b) REINSTATEMENT. This Agreement shall continue to be effective or
shall be reinstated, as the case may be, if, for any reason, any payment of the
Senior Debt by or on behalf of any other Obligor shall be rescinded or must
otherwise be restored by Lender, whether as a result of an Insolvency Event or
otherwise.
SECTION 11 TRANSFER OF SUBORDINATED DEBT. No Obligor may assign or
transfer its rights and obligations in respect of the Subordinated Debt (other
than to the Borrower or another Guarantor so long as such Guarantor is not an
Inactive Subsidiary) without the prior
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written consent of Lender, and any such transferee or assignee, as a condition
to acquiring an interest in the Subordinated Debt shall agree to be bound
hereby, in form reasonably satisfactory to Lender.
SECTION 12 OBLIGATIONS OF THE OBLIGORS NOT AFFECTED. The provisions
of this Agreement are intended solely for the purpose of defining the relative
rights of each Obligor against the other Obligors, on the one hand, and of
Lender against the Obligors, on the other hand. Nothing contained in this
Agreement shall (i) impair, as between each Obligor and the other Obligors, the
obligation of the other Obligors to pay their respective obligations with
respect to the Subordinated Debt as and when the same shall become due and
payable, or (ii) otherwise affect the relative rights of each Obligor against
the other Obligors, on the one hand, and of the creditors (other than Lender) of
the other Obligors against the other Obligors, on the other hand.
SECTION 13 ENDORSEMENT OF OBLIGOR DOCUMENTS; FURTHER ASSURANCES AND
ADDITIONAL ACTS.
(a) ENDORSEMENT OF OBLIGOR DOCUMENTS. At the request of Lender, all
documents and instruments evidencing any of the Subordinated Debt, if any, shall
be endorsed with a legend noting that such documents and instruments are subject
to this Agreement, and each Obligor shall promptly deliver to Lender evidence of
the same.
(b) FURTHER ASSURANCES AND ADDITIONAL ACTS. Each Obligor shall
execute, acknowledge, deliver, file, notarize, and register at its own expense
all such further agreements, instruments, certificates, financing statements,
documents, and assurances, and perform such acts as Lender reasonably shall deem
necessary or appropriate to effectuate the purposes of this Agreement, and
promptly provide Lender with evidence of the foregoing reasonably satisfactory
in form and substance to Lender; provided, however, that it is hereby agreed
that Lender shall not require the Subordinated Debt to be evidenced by documents
or other instruments.
SECTION 14 NOTICES. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including by
facsimile transmission) and shall be mailed, sent, or delivered in accordance
with the notice provisions contained in the Loan Agreement and to each Obligor
in care of the Borrower.
SECTION 15 NO WAIVER; CUMULATIVE REMEDIES. No failure on the part of
Lender to exercise, and no delay in exercising, any right, remedy, power, or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, remedy, power, or privilege preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power, or privilege. The rights and remedies under this Agreement are cumulative
and not exclusive of any rights, remedies, powers, and privileges that may
otherwise be available to Lender, whether under any other Loan Document, or
under applicable law.
SECTION 16 COSTS AND EXPENSES. Each of the Obligors, jointly and
severally, agrees to pay to Lender, on demand, the Lender Expenses, other than
to the extent such Lender Expenses have otherwise been paid by Borrower or any
Guarantor pursuant to the terms of the Loan Agreement.
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SECTION 17 SURVIVAL. All covenants, agreements, representations and
warranties made in this Agreement shall, except to the extent otherwise provided
herein, survive the execution and delivery of this Agreement, and shall continue
in full force and effect so long as any Senior Debt remains unpaid. Without
limiting the generality of the foregoing, the obligations of each Obligor under
Section 16 shall survive the satisfaction of the Senior Debt.
SECTION 18 BENEFITS OF AGREEMENT. This Agreement is entered into for
the sole protection and benefit of the parties hereto and their successors and
assigns, and no other Person shall be a direct or indirect beneficiary of, or
shall have any direct or indirect cause of action or claim in connection with,
this Agreement.
SECTION 19 BINDING EFFECT. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by each Obligor and Lender and their
respective successors and permitted assigns.
SECTION 20 CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS
ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW
YORK, STATE OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT LENDER'S OPTION, IN
THE COURTS OF ANY JURISDICTION WHERE LENDER ELECTS TO BRING SUCH ACTION OR WHERE
SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OBLIGOR AND LENDER WAIVES,
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT
THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 20.
EACH OBLIGOR AND LENDER HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH OBLIGOR AND LENDER REPRESENTS THAT EACH SUCH PARTY HAS
REVIEWED THIS WAIVER AND EACH SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
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SECTION 21 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of each of the Obligors and Lender with respect to the matters set forth herein
and supersedes any prior agreements, commitments, drafts, communications,
discussions, and understandings, oral or written, with respect thereto.
(b) AMENDMENTS AND WAIVERS. No amendment to any provision of this
Agreement shall in any event be effective unless the same shall be in writing
and signed by each of the Obligors and Lender; and no waiver of any provision of
this Agreement, or consent to any departure by any Obligor therefrom, shall in
any event be effective unless the same shall be in writing and signed by Lender.
Any such amendment, waiver, or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 22 CONFLICTS. In case of any conflict or inconsistency
between any terms of this Agreement, on the one hand, and any documents or
instruments in respect of the Subordinated Debt, on the other hand, then the
terms of this Agreement shall control.
SECTION 23 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
all applicable laws and regulations. If, however, any provision of this
Agreement shall be prohibited by or invalid under any such law or regulation in
any jurisdiction, it shall, as to such jurisdiction, be deemed modified to
conform to the minimum requirements of such law or regulation, or, if for any
reason it is not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement or the validity or effectiveness of such provision
in any other jurisdiction.
SECTION 24 INTERPRETATION. This Agreement is the result of
negotiations between, and have been reviewed by the respective counsel to, the
Obligors and Lender and is the product of all parties hereto. Accordingly, this
Agreement shall not be construed against Lender merely because of Lender's
involvement in the preparation hereof.
SECTION 25 COUNTERPARTS; TELEFACSIMILE EXECUTION. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile shall be equally effective as delivery of an original executed
counterpart of this Agreement. Any party delivering an executed counterpart of
this Agreement by telefacsimile also shall deliver an original executed
counterpart of this Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and bind effect of
this Agreement.
SECTION 26 TERMINATION OF AGREEMENT. Upon payment and performance in
full in cash of the Senior Debt (other than contingent indemnification
obligations), including the cash collateralization, expiration, or cancellation
of all Senior Debt, if any, consisting of letters of credit, and the full and
final termination of any commitment to extend any financial accommodations under
the Loan Agreement, this Agreement shall terminate and Lender shall
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promptly execute and deliver to each Obligor such documents and instruments as
the Obligors shall reasonably request to evidence such termination; provided,
however, that the obligations of each Obligor under SECTION 16 shall survive
such termination.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered as of the date first above written.
BORROWER:
XXXXXX'X RESTAURANT GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
GUARANTORS:
PORTERHOUSE, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO, INC., an
Illinois corporation
XXXXXX'X OF CHICAGO/ADDISON,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/ATLANTA,
INC., an Illinois corporation
XXXXXX'X OF CHICAGO/
BALTIMORE, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/BOCA
RATON, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
BUCKHEAD, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/CHICAGO,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
CINCINNATI, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/XXXXXXX,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
CLEVELAND, INC., an Illinois
corporation
XXXXXX'X OF CHICAGO/
COLUMBUS, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/DALLAS,
INC., an Illinois corporation
XXXXXX'X OF CHICAGO/DENVER,
INC., an Illinois corporation
XXXXXX'X OF CHICAGO/DETROIT,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/FIFTH
AVENUE, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
FLAMINGO ROAD CORP., a Delaware
corporation
XXXXXX'X OF CHICAGO/HOUSTON,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/MIAMI,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
MINNEAPOLIS, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/
NASHVILLE, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/NORTH
MIAMI BEACH, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer of the above
corporations
XXXXXX'X OF CHICAGO/ORLANDO,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/PALM
BEACH INC., a Delaware corporation
XXXXXX'X OF CHICAGO/PALM
DESERT, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
PHILADELPHIA, INC., an Illinois
corporation
XXXXXX'X OF CHICAGO/PHOENIX,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
PITTSBURGH, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/
PORTLAND, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/PUERTO
RICO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
ROSEMONT, INC., an Illinois corporation
XXXXXX'X OF CHICAGO/
SACRAMENTO, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/SAN
ANTONIO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/SAN
DIEGO, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/SAN
FRANCISCO, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/SANTA
XXX, INC., a Delaware corporation
XXXXXX'X OF CHICAGO/
SCOTTSDALE, INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/SEATTLE,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/VIRGINIA,
INC., an Illinois corporation
XXXXXX'X OF CHICAGO/
WASHINGTON D.C. INC., a Delaware
corporation
XXXXXX'X OF CHICAGO/
WASHINGTON SQUARE, INC., a
Delaware corporation
XXXXXX'X OF CHICAGO/
XXXXXXXXX, INC., an Illinois
corporation
PORTERHOUSE OF LOS ANGELES,
INC., a Delaware corporation
MOCGC CORP., a Virginia corporation
XXXXXX'X OF CHICAGO HOLDING,
INC., a Delaware corporation
XXXXXX'X OF CHICAGO/BOSTON
LLC, a Delaware limited liability company
XXXXX XXXXXX'X OF CHICAGO/
BURBANK LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/
CHARLOTTE LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/CRYSTAL
CITY LLC, a Delaware limited liability
company
XXXXXX'X OF CHICAGO/DENVER
CRESCENT TOWN CENTER, LLC, a
Delaware limited liability company
XXXXX XXXXXX'X OF
CHICAGO/XXXXXXXX LLC, a Delaware
limited liability company
XXXXXX'X OF CHICAGO/GREAT
NECK LLC, a Delaware limited liability
company
XXXXXX'X OF CHICAGO/
HACKENSACK LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/
HARTFORD LLC, a Delaware limited
liability company
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer of the above
corporations and limited liability
companies
EXHIBIT 10.14
EXECUTION VERSION
XXXXXX'X OF CHICAGO/
HONOLULU LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/
INDIANAPOLIS LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/
JACKSONVILLE LLC, a Delaware
limited liability company
XXXXXX'X OF CHICAGO/KANSAS
CITY LLC, a Delaware limited liability
company
XXXXXX'X OF CHICAGO/KING OF
PRUSSIA LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/
LOUISVILLE LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/NEW
ORLEANS LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/
PITTSBURGH LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/RESTON
LLC, a Delaware limited liability company
XXXXXX'X OF CHICAGO/
RICHMOND LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/
SCHAUMBURG LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/
STAMFORD LLC, a Delaware limited
liability company
XXXXXX'X OF CHICAGO/WHITE
PLAINS LLC, a Delaware limited liability
company
ITALIAN RESTAURANTS HOLDING
CORP., a Delaware corporation
XXXXXXXXX'X RESTAURANTS, INC., a
Delaware corporation
XXXXXXXXX'X OF CIRCLE CENTRE,
INC., a Delaware corporation
XXXXXXXXX'X/XXXX OF PRUSSIA,
INC., a Delaware corporation
XXXXXXXXX'X OF LAS VEGAS, INC., a
Delaware corporation
XXXXXXXXX'X AT VILLAGE SQUARE,
INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer of the above
corporations and limited liability
companies
ADDISON STEAKHOUSE, INC.,
a Texas corporation
CHICAGO STEAKHOUSE, INC.,
a Texas corporation
HOUSTON STEAKHOUSE, INC.,
a Texas corporation
SAN ANTONIO STEAKHOUSE, INC.,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
XXXXX FARGO FOOTHILL, INC.
a California corporation
By: /s/ Xxxx Xxxxxx
-----------------
Name: Xxxx X. Xxxxxx
Title: Vice President
