Exhibit 4.04(o)
NINTH AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This NINTH AMENDMENT (this "Amendment"), executed, delivered, and dated
as of September 25, 1998 (but effective as of the specified Effective Date
referred to below), by and among XXXXXX'X RESTAURANT GROUP, INC., a Delaware
corporation (formerly known as Quantum Restaurant Group, Inc.) having its
principal place of business at Xxxxx 000, 0000 Xxx Xxxx Xxxx Xxxx, Xxx Xxxx
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 Xxxxx 000, 0000 Xxx Xxxx Xxxx Xxxx,
Xxx Xxxx Park, New York 11042 ("Peasant Holding"), XXXXXX'X OF CHICAGO, INC.,
an Illinois corporation with its principal place of business at 000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("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, 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, 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 the Lenders agree 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 so amend the Credit Agreement;
NOW THEREFORE, the parties hereto hereby agree as follows:
Section 1. Amendments to the Credit Agreement.
Section 1.1. Changes in Certain Provisions.
(a) The table contained in the definition of Commitment Percentages
is hereby amended to read as follows:
Lender Percentage
------ ----------
FNBB 69.2307692%
Imperial Bank 30.7692308%
(b) The definition of Final Maturity Date is hereby amended to read
as follows:
"Final Maturity Date. December 31, 2004."
(c) The second sentence of the definition of Revolving Credit
Commitment is hereby amended to read as follows:
"The initial aggregate Revolving Credit Commitment is Thirty
Two Million Five Hundred Thousand Dollars ($32,500,000)."
(d) The definition of Revolving Credit Commitment Amount is hereby
amended to read as follows:
"Thirty Two Million Five Hundred Thousand Dollars
($32,500,000), minus the amount of any reductions effected pursuant to
the terms of this Agreement."
(e) Section 4.5 of the Credit Agreement is hereby amended by
replacing the figure "$7,500,000" with the figure "$22,500,000."
Section 1.2. Year 2000 Provision. Section 6 of the Credit Agreement is
hereby amended by inserting the following new subsection Section 6.25 at the
end of Section 6 thereof:
"Section 6.25. Year 2000 Provision. The Borrowers and their
Subsidiaries have reviewed the areas within their businesses and
operations which could be adversely affected by, and have developed
or are developing a program to address on a timely basis, the "Year
2000 Problem" (i.e. the risk that computer applications used by the
Borrowers or any their Subsidiaries may be unable to recognize and
perform properly date sensitive functions involving certain dates
prior to and any date after December 31, 1999). Based upon such
review, the Borrowers reasonably believe that the "Year 2000 Problem"
will not have any materially adverse effect on the business or
financial condition of the Borrowers or any of their Subsidiaries."
Section 1.3. Covenants. Section 10 of the Credit Agreement is hereby
amended as follows:
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(a) by amending subsection 10.1(f) by replacing the figure
"$19,000,000" with the figure "$40,000,000".
(b) by amending the text of subsection 10.3(a) to read as follows:
"The Companies may not make or enter into, incur, or assume any binding
commitment to make capital expenditures or binding lease commitments related
to New Construction with respect to the Peasant Restaurants, the Morton's
Restaurants and the Xxxxxxxxx'x Restaurants unless, as of the date of
determination, no more than twenty-five percent (25%) of the Peasant
Restaurants, the Morton's Restaurants and the Xxxxxxxxx'x Restaurants have
demonstrated a negative Net Restaurant Operating Profit for the twelve month
period ending on the date which is the end of the month or quarter for which
the Agent has received the most recent financial information pursuant to
Section 9.4 hereof, with such determination to be made without regard to the
first three (3) months for which each restaurant was open for business."
(c) by amending the text of subsection 10.3(b) to read as follows
(subsection 10.3(c) having previously been deleted by the Sixth Amendment to
the Credit Agreement):
"[Intentionally Omitted.]"
Section 2. Transitional Arrangements; Allocations. Effective as of the
date hereof, 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 date hereof (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 Section 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) and in connection with the repayment of the Term
Loan as contemplated hereby below. 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 increase and reallocation
of the Revolving Credit Commitment Amount.
Section 3. 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
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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 Sections 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.
Section 4. Conditions to Effectiveness. This Amendment shall be deemed
to be effective as of September 25, 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;
(ii) an Amended and Restated Revolving Credit Note executed and
delivered by the Borrowers in favor of BankBoston, N.A. and an
Amended and Restated Revolving Credit Note executed and delivered
by the Borrowers in favor of Imperial Bank, 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) certificates of an appropriate officer of each of the Borrowers,
dated as of the date hereof, as to (i) corporate actions taken by
each of the Borrowers authorizing the execution, delivery, and
performance hereof, and (ii) 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;
(iv) a favorable written legal opinion addressed to the Agent and
Lenders, dated as of the date hereof, from outside counsel to the
Borrowers, with respect to such matters as the Agent and the Lenders
may reasonably request;
(v) such evidence as the Agent may reasonably request such that the
Agent shall be satisfied that the representations and warranties
contained in Section 3 hereof are true and correct on and as of date
hereof and as of the Effective Date.
(vi) such other certificates, documents, or instruments with respect
to this Amendment, the Borrowers and the Guarantors as the Agent or
the Lenders may reasonably request; and
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(vii) an updating amendment to the Fee Letter previously in effect,
reflecting the extension of the Final Maturity Date.
(b) the completion of the following acts:
(i) the Borrowers shall have repaid the Term Loan in full prior
to or on the Effective Date, so as to reduce permanently the
Term Loan principal amount outstanding to $0 as of the Effective
Date;
(ii) the payment of such extension and amendment 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.
Section 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 and supplemented 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. 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.
Section 6. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized.
The Borrowers:
XXXXXX'X RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
XXXXXX'X OF CHICAGO, INC.
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
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:
------------------------------
FLEET NATIONAL BANK
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Consented and agreed to, by each of
THE GUARANTORS (as defined in the Credit
Agreement)
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer for
each of the Guarantors
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized.
The Borrowers:
XXXXXX'X RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
XXXXXX'X OF CHICAGO, INC.
By
--------------------------------
Name: Xxxxxx X. Xxxxxxx
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/ Xxxxxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxxxxx Xxxxx
-------------------------------
Title: Vice President
------------------------------
IMPERIAL BANK
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
FLEET NATIONAL BANK
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Consented and agreed to, by each of
THE GUARANTORS (as defined in the Credit
Agreement)
By:
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officers for
each of the Guarantors
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
The Borrowers:
XXXXXX'X RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
XXXXXX'X OF CHICAGO, INC.
By:
--------------------------------
Name: Xxxxxx X. Xxxxxxx
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/ Xxxxx X. Xxxxxxx Xx.
--------------------------------
Name: Xxxxx X. Xxxxxxx Xx.
------------------------------
Title: First Vice President
------------------------------
FLEET BANK, N.A.
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
Consented and agreed to, by each of
THE GUARANTORS (as defined in the Credit
Agreement)
By:
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer for each of the
Guarantors
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