Re: Amendment No. 9 to Amended and Restated Note Purchase and Private Shelf Agreement
EXHIBIT
99.2
Execution
Copy
November
21, 2008
The
Steak
N Shake Company
500
Century Building
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▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Indianapolis,
Indiana 46204
Attention: Chief
Financial Officer
|
|
Re:
|
Amendment
No. 9 to Amended and Restated Note Purchase and Private Shelf
Agreement
|
Ladies
and Gentlemen:
Reference
is
made to that certain ▇▇▇▇▇▇▇ and Restated Note Purchase and Private Shelf
Agreement dated as of September 20, 2002, as amended by that certain Amendment
No. 1 dated December 18, 2002, that certain Amendment No. 2 dated May 21,
2003,
that certain Amendment No. 3 dated September 17, 2003, that certain Amendment
dated November 7, 2005, that certain Amendment No. 5 dated October 30, 2007,
that certain Amendment No. 6 dated December 5, 2007, that certain Amendment
No.
7 dated May 16, 2008 and that certain Amendment No. 8 dated August 11, 2008
(as
so amended, the “Note
Agreement”) among The Steak N Shake Company, an Indiana corporation (the
“Company”), Prudential
Investment Management, Inc., The Prudential Insurance Company of America
and
each Prudential Affiliate which has or may become a party thereto in accordance
with the terms thereof (collectively, “Prudential”), pursuant to
which the Company issued and sold and Prudential purchased the Company’s senior
fixed rate notes from time to time. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms
in
the Note Agreement.
The
Company has advised Prudential that Events of Default exist under paragraph
7A(v) of the Note Agreement as a result of the Company’s failure to comply with
the provisions of paragraph 6A of the Note Agreement and the provisions of
paragraph 6C(2) of the Note Agreement as of and for the fiscal quarter of
the
Company ending on or about September 24, 2008 (the “Existing Events of
Default”).
The
Company has requested that Prudential waive the Existing Events of
Default. The Company has further requested that the Holders agree to
amend the Note Agreement as more particularly set forth below.
Subject
to the terms and conditions hereof, Prudential is willing to agree to such
request. Accordingly, and in accordance with the provisions of
paragraph 11C of the Note Agreement, the parties hereto agree as
follows:
SECTION
1. Amendment. From
and after
the Effective Date (as defined in Section 5 below), the Note Agreement and
the
Notes are amended as follows:
1.1.
Paragraph 4B(3) of the Note Agreement is amended and restated in its entirety
as
follows:
“4B(3).
50/50
Prepayments; Pro Rata
Prepayments. (a) On any date when the aggregate Indebtedness
under the Credit Agreement is reduced below the Threshold Amount (including,
without limitation, as a result of an application of proceeds to the payment
of
Indebtedness under the Credit Agreement pursuant paragraph 6C(7)(iii)), then,
on
such date the Company shall prepay a principal amount of the Notes equal
to the
amount of the Reduction with respect to such reduction, together with interest
thereon to such date and together with the Yield-Maintenance Amount, if any,
with respect to each Note. Any partial prepayment of the Notes
pursuant to this paragraph 4B(3) shall be applied in satisfaction of the
required payments of principal thereof (including the required payment of
principal due upon the maturity thereof) in the inverse order of their scheduled
due dates. (b) After the occurrence and continuation of an Event of Default
and
simultaneously with the making of any prepayment of the Indebtedness under
the
Credit Agreement prior to its regularly scheduled payment date or dates under
the Credit Agreement, the Company shall prepay a principal amount of the
Notes,
together with accrued interest thereon and Yield-Maintenance Amount, if any,
with respect thereto, in a pro rata amount calculated on the aggregate
outstanding principal balance of the Indebtedness under the Credit Agreement
and
the aggregate outstanding principal amount of the Notes immediately prior
to
such prepayment.”
1.2.
Paragraph 5A is amended by renumbering clauses (iii), (iv), (v) and (vi)
thereof
as clauses (iv), (v), (vi) and (vii), respectively, and adding a new clause
(iii) thereto as follows:
“(iii)
as soon as practicable and in any event within 30 days after the end of each
month (other than the last month of a quarterly period) in each fiscal year
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for the period from the beginning of the current
fiscal year to the end of such month, and a consolidating and consolidated
balance sheet of the Company and its Subsidiaries as at the end of such month,
setting forth in each case in comparative form figures for the corresponding
period in the preceding fiscal year, all in reasonable detail and certified
by
an authorized financial officer of the Company, subject to changes resulting
from year-end adjustments;”
1.3.
Paragraph 5J of the Note Agreement is amended and restated in its entirety
as
follows:
5J.
Mortgages. At
all
times on and after March 31, 2010,
the Company shall have, and shall have caused its Subsidiaries to have, executed
and delivered to the Collateral Agent and the holders of the Notes such
mortgages and leasehold mortgages in favor of the Collateral Agent for the
benefit of the Bank and the holders of the Notes securing the Senior
Indebtedness (as defined in the Intercreditor Agreement) (the “Mortgages”), each in form
and
substance satisfactory to the Required Holders, on such real property owned
or
leased by the Company and its Subsidiaries as the Required Holders deem
necessary in their sole discretion, each duly filed and recorded in all such
places so as to perfect the liens intended to be created thereby, provided
that
the holders of the Notes will not require the Company to deliver or maintain
any
Mortgages in addition to the Mortgages then in effect to the extent that
the
Company has demonstrated to the holders of the Notes that the aggregate Fair
Market Value of all real property subject to the Mortgages then in effect
exceeds 250% of the aggregate outstanding principal amount of the Senior
Indebtedness (as defined in the Intercreditor Agreement) plus any unused
commitments under the Credit Agreement at such time. No later than
September 30, 2009 the Company shall submit to each holder of the Notes a
proposed list of appraisers for the real property owned or leased by the
Company
and its Subsidiaries. With respect to the real estate subject to each
Mortgage, the Company shall have delivered to the Collateral Agent and the
holders of the Notes, at or before the time such Mortgage is delivered to
the
Collateral Agent, (a) from a title company acceptable to the Required Holders,
a
prepaid mortgagee title insurance policy in form acceptable to the Required
Holders, in an amount at least equal to the estimated fair market value of
such
real estate and the improvements thereon, insuring the lien of such mortgage
with respect to such real estate as a valid, prior lien on such real estate
subject only to such exceptions as shall be approved by the Required Holders
and
containing such endorsements as may be required by the Required Holders,
(b) an
ALTA/ACSM Land Title Survey with respect to such real estate, dated (or updated
and recertified) as of a recent date, certified to the holders of the Notes
by a
land surveyor licensed in the jurisdiction in which such real estate is located,
and satisfactory to the Required Holders, and (c) a Phase 1 environmental
assessment, and such additional environmental assessments and reports as
the
Required Holders may request, satisfactory to the Required Holders, and each
holder of the Notes shall be satisfied with the environmental condition of
such
real estate. Notwithstanding the foregoing, if the aggregate
outstanding principal amount of the Notes on September 30, 2009 is equal
to or
less than $5,000,000, then the Company shall not be required to deliver a
list
of appraisers to the holders of the Notes on such date, and all the other
provisions of this paragraph 5J, including without limitation the requirement
to
deliver Mortgages, shall be of no further force and effect.”
1.4.
Paragraph 6A of the Note Agreement is amended in its entirety to read as
follows:
“6A. Fixed
Charge Coverage
Ratio. The Company will not permit the Fixed Charge Coverage
Ratio to be less than:
(i)
1.10 to 1.00 as of the last day of
the fiscal quarter ending on (or nearest to) September 24, 2008, determined
for
the period of four consecutive fiscal quarters of the Company ended as of
such
date;
(ii)
0.70 to 1.00 as of the last day of
the fiscal quarter ending on (or nearest to) December 17, 2008, determined
for
the period of the one fiscal quarter of the Company ended as of such
date;
(iii)
1.10 to 1.00 as of the last day
of the fiscal quarter ending on (or nearest to) April 8, 2009, determined
for
the period of the one fiscal quarter of the Company ended as of such
date;
(iv)
1.20 to 1.00 as of the last day of
the fiscal quarter ending on (or nearest to) July 1, 2009, determined for
the
period of the one fiscal quarter of the Company ended as of such date;
and
(v)
1.20 to 1.00 as of the last day of
each fiscal quarter thereafter; determined for both the period of the one
fiscal
quarter and the period of four consecutive fiscal quarters of the Company
ended
as of such date.”
1.5.
Paragraph 6C(2) of the Note Agreement is amended in its entirety to read
as
follows:
“6C(2). Debt. Create,
incur, assume or suffer to exist any Debt, except:
(i) Debt
of any
Subsidiary to the Company or a Wholly-Owned Subsidiary and Debt of the Company
to any Wholly-Owned Subsidiary;
(ii)
(1)
Debt of the Company under
the Credit Agreement and (2) Debt of any Subsidiary under a Guarantee of
Indebtedness or other obligations of the Company under the Credit Agreement,
provided that such Subsidiary is party to the Guaranty Agreement and the
Intercreditor Agreement is in full force and effect and applicable to such
Guarantee;
(iii) Debt
evidenced by the Notes;
(iv) Debt of the Company
or Subsidiaries evidenced by Capitalized Lease Obligations existing on
September
24, 2003, in individual principal amounts not in excess of the amounts
outstanding on September 24, 2003 (which principal amounts in aggregate
shall be
less than $150,000,000) and as identified on Schedule 6C(1)
hereto; and
(v)
Debt
of the Company
or Subsidiaries in an aggregate outstanding principal amount not in excess
of
$20,000,000 at any time evidenced by Capitalized Lease Obligations incurred
after November 21, 2009 in connection with sale-leaseback transactions;
provided that
in
connection with any Transfer of assets made in any such sale leaseback
transaction, the Company and its Subsidiaries have complied with the
provisions
of paragraph 6C(7)(iii).
1.6.
Paragraph 6C(2A) is amended in its entirety to read as follows:
“6C(2A). Total
Liabilities to Tangible Net
Worth Ratio. The Company will not permit the ratio of Total Liabilities
to Tangible Net Worth to be greater than 1.10 to 1.00 at any time.”
1.7.
Paragraph 6D of the Note Agreement is amended and restated in its entirety
as
follows:
“6D. Availability
under Credit
Agreement. The Company shall not permit at any time there not
to be in full force and effect a commitment by the Banks under a Credit
Agreement to make revolving loans to the Company in an aggregate outstanding
principal amount of up to at least $25,000,000 minus the lesser of (i)
$5,000,000 and (ii) the aggregate principal amount of prepayments of the
Notes
made after November 21, 2008 having a scheduled termination date meeting
the
following requirements. At all times before November 21, 2009, no
portion of the commitment described in the preceding sentence shall at any
time
have a scheduled termination date prior to November 21, 2009, and at all
times
on or after November 21, 2009, no portion of such commitment shall at any
time
have a scheduled termination date prior to one year after the date of
determination.”
1.8.
Paragraph 7A of the Note Agreement is amended by adding “or” at the end of
clause (xv) thereof and adding new clauses (xvi) and (xvii) thereto as
follows:
“(xvi) the
audited consolidated financial statements of the Company and its Subsidiaries
for the fiscal year ended September 24, 2008 required to be delivered pursuant
to paragraph 5A(ii) shall differ in any material way from the unaudited
preliminary financial statements of the Company and its Subsidiaries for
such
year delivered to the holders of the Notes prior to execution by such holders
of
the Ninth Amendment; or
(xvii) the
Banks and the Company shall not have entered into an agreement on or before
September 30, 2009 with the holders of the Notes pursuant to which a new
collateral agent who will agree to act as Collateral Agent with respect to
the
Mortgages is appointed to be the Collateral Agent in replacement of the
Collateral Agent as of November 21, 2008;”
1.9.
Paragraph 10A of the Note Agreement is amended by amending the following
defined
term therein in its entirety as follows:
“Remaining
Scheduled Payments”
shall mean, with respect to the Called Principal of any Note, all
payments of
such Called Principal and interest thereon that would be due on or after
the
Settlement Date with respect to such Called Principal if no payment of such
Called Principal were made prior to its scheduled due date; provided that
for
the purposes of calculating “Remaining Schedule Payments” for any Settlement
Date on or before December 31, 2009, the increase in the interest rates on
the
Notes effected pursuant to Section 2.1 of the Ninth Amendment shall be
disregarded.
1.10.
Paragraph 10B of the Note Agreement is amended by deleting the definitions
of
“Pro Rate Share” and “Pro Rate Amount” and by adding, or amending and restating,
as applicable, the following defined terms:
“Adjusted
Capital Expenditures”
shall mean, for any period, capital expenditures for such period minus
an
amount, if any, equal to the proceeds from any Specified Asset Sales during
such
period.
“Collateral”
shall mean all
accounts, accounts receivable, inventory, machinery, equipment, general
intangibles, fixtures and all other tangible or intangible personal property
of
the Company and its Subsidiaries, whether now owned or hereafter acquired
and
whether now or hereafter existing, and any real property subject to the
Mortgages.
“Fair
Market Value” shall mean,
at any time with respect to any real property for the purposes of paragraph
5J,
the fair market value at such time as determined by appraisers selected by
the
Company and approved by the Required Holders. The Company shall pay
all fees and expenses of any such appraisers.
“Fixed
Charge Coverage Ratio”
shall mean, for any period, the ratio of (i) consolidated net income
of
the Company and Subsidiaries (a) plus, to the extent deducted in determining
the
same, interest expense, rental expense, depreciation, amortization, compensation
expense to the extent related to equity-based compensation and not paid in
cash,
the Specified Impairment Charge and non-cash losses on Transfers of assets,
and
(b) minus non-cash gains on Transfers of assets to (ii) the sum of interest
expense, rental expense, Adjusted Capital Expenditures, the current portion
of
all lease obligations and the current portion of Debt, in each case for such
period (or in the case of the current portion of all lease obligations and
the
current portion of Debt, as of the last day of such period; provided that
if the
calculation of “Fixed Charge Coverage Ratio” is being made for a period of one
fiscal quarter under clauses (ii), (iii), (iv) or (v) of paragraph 6A, the
current portion of all lease obligations and the current portion of Debt
for
such calculation shall be equal to the current portion of all lease obligations
and the current portion of Debt as of the last day of such fiscal quarter,
in
each case, divided by four (4)).
“Ninth
Amendment” shall mean
that certain Amendment No. 9 to this Agreement dated as of November 21, 2008,
among the Company, Prudential Investment Management, Inc. and the holders
of the
Notes.
“Reduction”
shall mean, with
respect to any reduction of Indebtedness under the Credit Agreement, an amount
equal to, if positive, (i) the Threshold Amount immediately prior to such
reduction minus (ii) the aggregate Indebtedness outstanding under the Credit
Agreement after giving effect to such reduction.
“Specified
Asset Sales” shall
mean any Transfer of assets in accordance with paragraph
6C(7)(iii).
“Tangible
Net Worth” shall
mean the shareholders' equity of the Company less any allowance for goodwill,
patents, trademarks, trade secrets, and any other assets which would be
classified as intangible assets under generally accepted accounting
principles.
“Threshold
Amount” shall mean
$10,000,000, less the aggregate amount of all Reductions (without
duplication).
“Total
Liabilities” shall
mean, at any date, the aggregate principal amount of all Indebtedness of
the
Company at such date, determined on a consolidated basis in accordance with
generally accepted accounting principles.
1.11.
Schedule 6C(1) to the Note Agreement is amended and restated in its entirety
as
set forth on Schedule 6C(1) attached hereto.
SECTION
2. Interest
Rate Increase. From and
after
the Effective Date, the Notes are amended as follows:
2.1.
Each reference “8.29% per annum” in each outstanding Series G Note is changed to
“(i) 8.29% per annum at all times before November 21, 2008, (ii) 9.00% per
annum
on and after November 21, 2008 and on and before December 30, 2009 and (iii)
12.00% per annum at all times on and after December 31, 2009.”.
2.2.
Each reference to “5.66% per annum” in each outstanding Series I Note is changed
to “(i) 5.66% per annum at all times before November 21, 2008, (ii) 9.00% per
annum on and after November 21, 2008 and on and before December 30, 2009
and
(iii) 12.00% per annum at all times on and after December 31,
2009”.
SECTION
3. Waiver. Effective
on the
Effective Date, Prudential hereby waives the Existing Events of Default,
provided that the Company would have been in compliance with the provisions
of
paragraph 6A and the provisions of paragraph 6C(2) as of the fiscal quarter
of
the Company ended on or about September 24, 2008 if the amendments to the
Note
Agreement in Section 1 hereof had been effective as of the end of such fiscal
quarter.
SECTION
4. Representations,
Warranties and Covenants. The Company
represents and warrants that (a) each representation and warranty set
forth in paragraph 8 of the Note Agreement is true and correct as of the
date of
execution and delivery of this letter by the Company with the same effect
as if
made on such date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they were true and correct
as
of such earlier date); (b) after giving effect to the amendments set forth
in
Section 1 hereof and the waivers in Section 2 hereof, no Event of Default
or
Default exists or has occurred and is continuing on the date hereof, (c)
neither
the Company nor any of its Subsidiaries has paid or agreed to pay, and neither
the Company nor any of its Subsidiaries will pay or agree to pay, any fees
or
other consideration, including, without limitation, any guarantee, security
interest or other credit enhancement, to any Bank or any other Person in
connection with the waiver and amendment referenced in Section 5.2 hereof
except
an amendment fee to the Banks in the aggregate not to exceed $25,000, (d)
attached as Schedule A hereto is a correct and complete list of all real
property of the Company and its Subsidiaries which is not subject to a Lien
of
any kind and (e) there are presently no liens on any assets of the Company,
whether real or personal, other than the liens on the personal property assets
of the Company granted to the Collateral Agent, and except those liens and
encumbrances permitted pursuant to paragraph 6C(1) of the Agreement. In support
of the representation and warranty in the foregoing clause (e), the Company
shall provide to the holders of the Notes within five (5) days of the execution
of this letter a Schedule of Real Estate showing each parcel of real estate
owned or leased by the Company, its address, revenues, and net operating
income
or loss, as the case may be. Such Schedule shall be on a form reasonably
acceptable to the Required Holders.
SECTION
5. Conditions
Precedent. This letter
shall
be deemed effective on the date (the “Effective Date”) each of the
following conditions shall have been satisfied:
5.1.
Documents. Prudential
shall have received original counterparts or, if satisfactory to Prudential,
certified or other copies of all of the following, each duly executed and
delivered by the party or parties thereto, in form and substance satisfactory
to
Prudential, dated the Effective Date unless otherwise indicated, and on the
Effective Date in full force and effect with no event having occurred and
being
then continuing that would constitute a default thereunder or constitute
or
provide the basis for the termination thereof:
(i)
this letter;
(ii) the
amended and restated Series G Note, in the form of Exhibit A attached hereto,
and the amended and restated Series I Notes, in the form of Exhibit B attached
hereto; and
(iii) such
other certificates, documents and agreements as Prudential may reasonably
request.
5.2.
▇▇▇▇▇▇ andAmendment
to Credit
Agreement. Prudential shall have received a copy of the
executed waiver and amendment to Credit Agreement, extending the “Revolving Loan
Maturity Date” therein from January 30, 2009 to January 30, 2010 and extending
the date thereunder by which mortgages must be delivered to the Collateral
Agent
from November 21, 2008 to June 30, 2009, and otherwise in form and substance
satisfactory to Prudential, and such waiver and amendment shall be in full
force
and effect.
5.3.
Prepayment of
Indebtedness. On the Effective Date, the Company shall prepay
the Indebtedness outstanding under the Credit Agreement in an aggregate amount
of $5,000,000, inclusive of interest thereon to the Effective Date, and prepay
a
principal amount of the Notes and Yield-Maintenance Amount, if any, with
respect
thereto, in an aggregate amount for such principal and Yield-Maintenance
Amount
equal to $5,000,000, inclusive of interest thereon to the Effective
Date.
5.4.
Amendment
Fee. The Company shall have paid to the holders of the Notes,
by wire transfer of immediately available funds, such holder’s ratable portion
(in proportion to the aggregate principal amount of the Notes held by such
holders as of the Effective Date) of an amendment fee in the aggregate amount,
for all holders of the Notes, of $20,000.
5.5.
Fees and Expenses of Counsel
to
Prudential. Without limiting the provisions of Section 6
hereof, the Company shall have paid all fees, charges and disbursements of
counsel to Prudential payable by the Company invoiced as of the Effective
Date.
5.6.
Proceedings. All
corporate and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incident thereto shall
be
satisfactory in substance and form to Prudential, and Prudential shall have
received all such counterpart originals or certified or other copies of such
documents as it may reasonably request.
Upon
execution hereof by the Company, this letter and each of the other foregoing
documents should be returned to: Prudential Capital Group, Two Prudential
▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇.
SECTION
6. Reference
to and Effect on Note Agreement and Notes. Upon the
effectiveness of this letter, each reference to the Note Agreement and the
Notes
in any other document, instrument or agreement shall mean and be a reference
to
the Note Agreement and the Notes as modified by this letter. Except
as specifically set forth in Sections 1 and 2 hereof, each of the Note Agreement
and the Notes shall remain in full force and effect and each is hereby ratified
and confirmed in all respects. The execution, delivery and
effectiveness of this letter shall not be construed as a course of dealing
or
other implication that Prudential or any holder of any Note has agreed to
or is
prepared to grant any waivers or consents or agree to any amendments to the
Note
Agreement in the future, whether or not under similar
circumstances.
SECTION
7. Expenses. The
Company
hereby confirms its obligations under the Note Agreement, whether or not
the
transactions hereby contemplated are consummated, to pay, promptly after
request
by Prudential or any holder of any Note, all reasonable out-of-pocket costs
and
expenses, including attorneys’ fees and expenses, incurred by Prudential or any
holder of any Note in connection with this letter agreement or the transactions
contemplated hereby, in enforcing any rights under this letter, or in responding
to any subpoena or other legal process or informal investigative demand issued
in connection with this letter or the transactions contemplated
hereby. The obligations of the Company under this Section 7 shall
survive transfer by any holder of any Note and payment of any Note.
SECTION
8. Reaffirmation.
Each Guarantor hereby
consents to the terms and conditions of this letter and hereby ratifies and
reaffirms all of its payment and performance obligations, contingent or
otherwise, under the Guaranty Agreement, including without limitation, with
respect to the Note Agreement as amended by this letter. The Company
hereby reaffirms its grant of liens in the Collateral under the Security
Agreement and confirms that such liens continue to secure the Obligations
(as
defined in the Security Agreement), including without limitation, under the
Note
Agreement and the Notes as amended by this letter.
SECTION
9. Release. The
Company and
the Guarantors hereby release, remise, acquit and forever discharge Prudential
and their employees, agents, representatives, consultants, attorneys,
fiduciaries, servants, officers, directors, partners, predecessors, successors
and assigns, subsidiary corporations, parent corporations and related corporate
divisions (collectively, “Released Parties”) from any
and all actions and causes of action, judgments, executions, suits, debts,
claims, demands, liabilities, obligations, damages and expenses of any and
every
character, known or unknown, direct and/or indirect, at law or in equity,
of
whatsoever kind or nature, whether heretofore or hereafter arising, for or
because of any matter or thing done, omitted or suffered to be done by any
Released Party prior to and including the date or execution hereof and in
any
way directly or indirectly arising out of or in any way connected to this
letter
or the Transaction Documents, including but not limited to, claims relating
to
any actions taken in connection with the administration of the investment
evidenced by the Notes (collectively, the “Released
Matters”). The Company and the Guarantors acknowledge that the
agreements in this Section are intended to be in full satisfaction of all
or any
alleged injuries or damages arising in connection with the Released
Matters. The Company and the Guarantors represent and warrant to
Prudential that they have not purported to transfer, assign or otherwise
convey
any right, title or interest in any Released Matter to any other Person and
that
the foregoing constitutes a full and complete release of all Released
Matters.
SECTION
10. Governing
Law. THIS
LETTER SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY,
THE LAW OF THE STATE OF ILLINOIS (EXCLUDING ANY CONFLICTS OF LAW RULES WHICH
WOULD OTHERWISE CAUSE THIS LETTER TO BE CONSTRUED OR ENFORCED IN ACCORDANCE
WITH, OR THE RIGHTS OF THE PARTIES TO BE GOVERNED BY, THE LAWS OF ANY OTHER
JURISDICTION).
SECTION
11. Counterparts;
Section Titles. This letter
may
be executed in any number of counterparts and by different parties hereto
in
separate counterparts, each of which when so executed and delivered shall
be
deemed to be an original and all of which taken together shall constitute
but
one and the same instrument. Delivery of an executed counterpart of a
signature page to this letter by facsimile or other electronic transmission
shall be effective as delivery of a manually executed counterpart of this
letter. The section titles contained in this letter are and shall be
without substance, meaning or content of any kind whatsoever and are not
a part
of the agreement between the parties hereto.
[signature
page follows]
Very
truly yours,
PRUDENTIAL
INVESTMENT MANAGEMENT, INC.
By: /s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Vice
President
THE
PRUDENTIAL INSURANCE COMPANY
OF
AMERICA
By: /s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Vice
President
PRUCO
LIFE INSURANCE COMPANY
By: /s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Vice
President
UNITED
OF OMAHA LIFE INSURANCE
COMPANY
By: Prudential
Private Placement Investors,
L.P.
(as Investment
Advisor)
By: Prudential
Private Placement Investors, Inc.
(as
its
General Partner)
By: /s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Vice
President
Agreed
and Accepted:
THE
STEAK N SHAKE COMPANY
By: /s/
▇▇▇▇▇ ▇.
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Vice President, Interim CFO
STEAK
N SHAKE OPERATIONS, INC.
By: /s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Vice President, Interim CFO of Parent
SNS
INVESTMENT COMPANY
By: /s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Vice President, Interim CFO
STEAK
N SHAKE ENTERPRISES, INC.
By: /s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Vice President, Interim CFO