EXHIBIT 10.75
AMENDMENT TO TERM LOAN AGREEMENTS
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THIS AMENDMENT, made as of the 28th day of September, 2003, among S&W OF
LAS VEGAS, L.L.C., a Delaware limited liability company, having an address at
c/o The Xxxxx & Wollensky Restaurant Group, Inc., 0000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Borrower"), THE XXXXX & WOLLENSKY RESTAURANT GROUP, INC.,
having an address at 0000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("S&W
Restaurant Group"), DALLAS S&W, L.P. ("S&W Dallas" and, together with S&W
Restaurant Group, the "Guarantors"), having an address at c/o The Xxxxx &
Wollensky Restaurant Group, Inc., 0000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
and XXXXXX XXXXXXX XXXX XXXXXX COMMERCIAL FINANCIAL SERVICES, INC., a Delaware
corporation, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Lender").
W I T N E S S E T H:
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WHEREAS, the Lender, the Borrower and S&W Restaurant Group entered into
a Term Loan Agreement dated August 23, 2002 (the "Original Term Loan Agreement")
in connection with a $4,000,000.00 loan made by the Lender to the Borrower (the
"First Advance Loan"), and a contemplated loan to the Borrower in the amount of
$10,000,000.00 (the "Term Loan Balance Advance"), which Original Term Loan
Agreement was amended by an Amendment to Term Loan Agreement dated October 25,
2002, by a Second Amendment to Term Loan Agreement dated December 24, 2002, and
by an Amendment to Term Loan Agreements (being the third amendment to the
Original Term Loan Agreement) dated August 20, 2003 (the "August 2003
Amendment"; the Original Term Loan Agreement, as amended through to the August
2003 Amendment, the "First Loan Agreement");
WHEREAS, the Lender, the Borrower and the Guarantors entered into an
additional Term Loan Agreement dated December 24, 2002, which was also amended
by the August 2003 Amendment (being the first amendment to such latter Term Loan
Agreement) [as so amended, the "Second Loan Agreement" and, together with the
First Loan Agreement, the "Loan Agreements"] in connection with a $1,900,000.00
loan (the "Second Term Loan") made by the Lender to the Borrower;
WHEREAS, the First Advance Loan is secured by, among other things, the
Deed of Trust (as defined in the First Loan Agreement), and the Second Term Loan
is secured by, among other things, the Las Vegas Deed of Trust (as defined in
the Second Loan Agreement), each of which deeds of trust encumbers the Subject
Lease (as defined in the First Loan Agreement);
WHEREAS, pursuant to a certain Guaranty of Payment dated August 23,
2002, S&W Restaurant Group guaranteed, among other matters, the Borrower's
obligations under the First Loan Agreement (the "First Loan Guaranty"), and
pursuant to a certain Guaranty of Payment dated December 24, 2002, the
Guarantors guaranteed the Borrower's obligations under the Second Loan Agreement
(the "Second Loan Guaranty");
WHEREAS, in connection with the First Advance Loan, the Borrower and S&W
Restaurant Group entered into a certain Joint and Several Hazardous Material
Guaranty and Indemnification Agreement dated August 23, 2002, in favor of the
Lender (the "First Loan Environmental Guaranty"), and in connection with the
Second Term Loan, the Borrower, S&W Restaurant Group and S&W Dallas entered into
two Joint and Several Hazardous Material Guaranty and Indemnification
Agreements, each dated December 24, 2002, one with respect to the Las Vegas
Property and the second one with respect to the Dallas Property (as such terms
are defined in the Second Loan Agreement) [collectively, the "Second Loan
Environmental Guaranties"]; and
WHEREAS, the Borrower, the Guarantors and the Lender wish to modify
certain of the financial covenants set forth in the Loan Agreements;
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each of the parties hereto, and in order to modify the Loan
Agreements, the parties hereto agree for themselves, their successors and
assigns as follows:
1. The following term is added to Schedule I in the Second Loan
Agreement, in its alphabetical order:
"Subject Lease" shall have the meaning given to such term in the
Las Vegas Deed of Trust."
2. The following terms are added to Schedule I in the First Loan
Agreement, each in its respective alphabetical order:
"S&W Dallas" means Dallas S&W, L.P.
"S&W Restaurant Group" means The Xxxxx & Wollensky Restaurant
Group, Inc. The Xxxxx & Wollensky Restaurant Group, Inc. is also
sometimes referred to as the Guarantor.
3. The following term is added to Schedule I in each of the Loan
Agreements, in its alphabetical order:
"Subject Lease Capital Lease Debt" means rental payments under
the Subject Lease which the Borrower is required to treat as payments of
principal or interest under GAAP.
4. (a) Paragraph (d) of Schedule II to the First Loan Agreement is
amended and restated in its entirety to read as follows:
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(d) Debt. So long as any portion of the Loan shall remain
unpaid, the Borrower will not create, incur, assume or suffer to
exist, any Debt other than: (i) Debt existing on December 24,
2002 and described on New Schedule 5.02(c) annexed to the
Amendment to Term Loan Agreements dated as of September 28, 2003,
(ii) Debt secured by Liens permitted by Paragraph (c)(ii) of this
Schedule II aggregating not more than $100,000.00 at any one time
outstanding, (iii) unsecured Debt incurred in the ordinary course
of business aggregating (for both the Borrower and S&W Dallas
combined) not more than $200,000.00 at any one time outstanding,
(iv) Debt owing to the Lender, and (v) Subject Lease Capital
Lease Debt.
(b) Paragraph (d) of Schedule II to the Second Loan Agreement is amended
and restated in its entirety to read as follows:
(d) Debt. So long as any portion of the Loan shall remain
unpaid, neither the Borrower nor S&W Dallas will create, incur,
assume or suffer to exist, any Debt other than: (i) Debt existing
on December 24, 2002, and described on New Schedule 5.02(c)
annexed to the Amendment to Term Loan Agreements dated as of
September 28, 2003, (ii) Debt secured by Liens permitted by
Paragraph (c)(ii) of this Schedule II aggregating not more than
$100,000.00 at any one time outstanding, (iii) unsecured Debt
incurred in the ordinary course of business aggregating (for both
the Borrower and S&W Dallas combined) not more than $200,000.00
at any one time outstanding, (iv) Debt owing to the Lender, and
(v) Subject Lease Capital Lease Debt.
5. Paragraph (f) of Schedule II to each of the Loan Agreements is
amended and restated in its entirety to read as follows:
(f) Financial Covenants. So long as any portion of the Loan shall
remain unpaid, the Borrower and the Guarantors (as indicated below)
shall comply with the following:
(i) Debt Service Coverage Ratio. The Borrower shall not permit
the ratio of EBITDA excluding rent received from tenants, minus
maintenance capital expenditures, minus real estate taxes, to
interest expense plus current portion of long-term debt, to be
less than 1.50 to 1.00 (measured on a rolling four quarter basis)
as of the close of any fiscal quarter; provided, however (x) that
the amount of any "balloon" payments due at the maturity of that
certain Promissory Note dated as of December 24, 2002 in the
original principal amount of $1,900,000.00 made by the Borrower
in favor of the Lender, and due at the maturity of that certain
Promissory Note dated August 23, 2002 in the original principal
amount of $4,000,000.00 made by
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the Borrower to the Lender, shall not be included for the
purposes of the calculation of the foregoing ratio, and (y) that
in determining the foregoing ratio, Subject Lease Capital Lease
Debt shall be excluded from the calculations of interest expense,
current portion of long-term debt (as applicable) and EBITDA.
(ii) Intentionally omitted.
(iii) Senior Leverage Ratio. Subject to (vi) below, S&W
Restaurant Group shall not permit the ratio of total
Unsubordinated Funded Debt to EBITDA to exceed 3.00 to 1.00
(measured on a rolling four quarter basis) as of the close of any
fiscal quarter. For purposes of determining the foregoing ratio,
Subject Lease Capital Lease Debt shall be excluded from the
calculations of Unsubordinated Funded Debt and EBITDA. Any
purchase money mortgage debt incurred by a Subsidiary (other than
the Borrower and S&W Dallas) of S&W Restaurant Group which is not
guaranteed by S&W Restaurant Group, the Borrower or S&W Dallas
shall not be deemed to be a part of Unsubordinated Funded Debt of
S&W Restaurant Group for the purposes of the calculation of
Senior Leverage Ratio to the extent that such purchase money debt
is less than $5,000,000.00 in the aggregate.
(iv) Interest Coverage Ratio. Subject to (vi) below, S&W
Restaurant Group shall not permit the ratio of EBIT to interest
expense to be less than: (A) 1.0 to 1.0 as of the close of the
fiscal quarter ending September 29, 2003; (B) 1.75 to 1.00 as of
the close of the fiscal quarter ending December 29, 2003; and (C)
2.0 to 1.0 as of the close of any fiscal quarter ending
thereafter (in each case, measured on a rolling four quarter
basis). Subject Lease Capital Lease Debt shall be excluded from
the calculations of interest expense and EBIT in determining the
foregoing ratio.
(v) Loan Repayment. Prior to the end of each calendar month, S&W
Restaurant Group shall repay any loans owing to the Borrower to
the extent required for the Borrower to make all payments then
due and payable under the Note and the other Loan Documents.
(vi) General. All calculations of EBITDA and EBIT will exclude
from the determination of earnings, (a) amounts attributable to
pre-opening expenses associated with new restaurants, which
expenses are approved by the Lender in its reasonable discretion,
and (b) operating losses (up to $150,000.00 per new restaurant)
incurred by a new restaurant during the first full month after
the opening of such new restaurant. All calculations of EBITDA
and EBIT will include rent payments under the Subject Lease as an
operating expense, provided that until the first fiscal quarter
ending after December 15, 2004, such rent payments may be
excluded from the
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calculation of earnings for purposes of determining the Interest
Coverage Ratio. An amount up to $300,000.00 which may be paid by
S&W Restaurant Group in connection with the settlement of a suit
filed on or about September 5, 2001 by Mondo's of Scottsdale,
L.C. in the State of Arizona may be excluded from the
determination of any of the negative (financial) covenants set
forth above for the fiscal quarter in which such settlement is
actually paid. The negative (financial) covenants of S&W
Restaurant Group will be determined on the basis of the
consolidated results reflected on S&W Restaurant Group's
financial statements. Accounting terms which are not otherwise
defined shall have the meanings ascribed to them under GAAP.
6. This Amendment is conditioned upon the Lender's receipt of payment of
all accrued and unpaid legal fees of the Lender's counsel (whether or not in
connection with the transactions contemplated by this Amendment), and the
Lender's fee in the amount of $10,000.00.
7. The Borrower and each of the Guarantors represent and warrant to the
Lender that all of the representations and warranties made by or on behalf of
the Borrower and each of the Guarantors in the Loan Agreements, the First Loan
Guaranty, the Second Loan Guaranty, the First Loan Environmental Guaranty and
the Second Loan Environmental Guaranty (the latter four guaranties being,
collectively, the "Guaranties"), and the other Loan Documents (as defined in the
respective Loan Agreements) are true and correct in all material respects on and
as of the date hereof and that no Event of Default (as defined in either of the
Loan Agreements) has occurred and is continuing under the Loan Agreements, the
Guaranties, or the other Loan Documents (as defined in the respective Loan
Agreements), and no event has occurred which, with notice, lapse of time or
both, would constitute such an Event of Default.
8. The Borrower and the Guarantors confirm and reaffirm their respective
obligations under the Guaranties, and all grants of collateral security for the
First Advance Loan and the Second Term Loan.
9. This Amendment sets forth the entire understanding of the parties
with respect to the modification to the First Loan Agreement and the Second Loan
Agreement. The Borrower acknowledges that no oral or other agreements,
conditions, promises, understandings, representations or warranties exist in
regard to its obligations under, or the subject matter of, this Amendment,
except those specifically set forth herein and therein.
10. As specifically modified and restated herein, all of the terms,
covenants, conditions and stipulations contained in each of the First Loan
Agreement and the Second Loan Agreement are hereby ratified and confirmed in all
respects, shall continue to apply with full force and effect.
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11. Neither this Amendment nor any provision hereof may be modified,
amended, changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
12. This Amendment may be executed in one or more counterparts each of
which shall be an original but all of which when taken together shall constitute
one and the same instrument.
13. This Amendment is and shall be deemed to be a contract entered into
pursuant to the laws of the State of New York and shall in all respects be
governed, construed, applied and enforced in accordance with the laws of the
State of New York.
14. The Borrower and each of the Guarantors agree to submit to personal
jurisdiction in the State of New York in any action or proceeding arising out of
this Amendment or either of the Loan Agreements or any of the other Loan
Documents (as defined in each of the Loan Agreements). In furtherance of such
agreement, the Borrower and each of the Guarantors hereby agree and consent that
without limiting other methods of obtaining jurisdiction, personal jurisdiction
over any of them in any such action or proceeding may be obtained within or
without the jurisdiction of any court located in New York and that any process
or notice of motion or other application to any such court in connection with
any such action or proceeding may be served upon any of them by registered or
certified mail to, or by personal service at, the last known address of the
applicable entity whether such address be within or without the jurisdiction of
any such court. The Borrower and each of the Guarantors further agree that the
venue of any litigation arising in connection with the First Advance Loan or the
Second Term Loan, or in respect of any of the obligations of the Borrower or
either of the Guarantors under this Amendment, shall, to the extent permitted by
law, be in New York County.
15. This Amendment is binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and assigns.
16. Nothing in this Amendment is intended to or shall be deemed to
create any rights or obligations of partnership, joint venture, or similar
association among the parties hereto.
17. If any term, covenant, provision or condition of this Amendment
shall be held to be invalid, illegal or unenforceable in any respect, this
Amendment shall be construed without such term, covenant, provision or
condition.
18. The parties hereto hereby irrevocably and unconditionally waive any
and all rights to trial by jury in any action, suit or counterclaim arising in
connection with, out of or otherwise related to this Amendment.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
S&W OF LAS VEGAS, L.L.C.,
a Delaware limited liability company
By: The Xxxxx & Wollensky Restaurant Group, Inc.,
a Delaware corporation, its Majority Member
By:/s/ Xxxxx Xxxx
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Xxxxx Xxxx
Authorized Officer
THE XXXXX & WOLLENSKY RESTAURANT GROUP, INC.,
a Delaware corporation
By:/s/ Xxxxx Xxxx
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Xxxxx Xxxx
Authorized Officer
DALLAS S&W, L.P.
By: S&W of Dallas LLC, general partner
By:/s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Authorized Officer
XXXXXX XXXXXXX XXXX XXXXXX COMMERCIAL
FINANCIAL SERVICES, INC.
By:/s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Vice President
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XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 5th day of November in the year 2003, before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxxx Xxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxx Xxxxx
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Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 5th day of November in the year 2003, before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxxx Xxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxx Xxxxx
-------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 5th day of November in the year 2003, before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxxx Xxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxx Xxxxx
-------------------------------
Notary Public
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 5th day of November in the year 2003, before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxxx Xxxxxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Eva Xxxxx Xxxxx
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Notary Public
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NEW SCHEDULE 5.02(c)
CERTAIN EXISTING DEBT
That certain loan in the original principal amount of $1,650,000, made
by Toll Road Texas Land Company, L.P. to S&W Dallas on October 9, 2002, secured
by the First Dallas Deed of Trust.
That certain loan in the original principal amount of $1,900,000.00 made
by the Borrower to S&W Dallas, as evidenced by that certain promissory note
dated December 24, 2002 executed by S&W Dallas.
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