SEVENTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
4.21
EXECUTION
VERSION
SEVENTH
AMENDMENT TO CREDIT AGREEMENT
THE
STEAK N SHAKE
COMPANY, an Indiana corporation (the “Company”) and FIFTH THIRD
BANK, a Michigan banking corporation, formerly known as Fifth Third
Bank (Central Indiana), and Fifth Third Bank, Indiana (Central) (the “Bank”),
being parties to that certain Credit Agreement dated as of November 16, 2001,
as
previously amended (collectively, the “Agreement”), agree to further amend the
Agreement by this Seventh Amendment to Credit Agreement (this “Amendment”) as
follows.
1. DEFINITIONS. All
defined terms used herein not otherwise defined in this Amendment shall have
their respective meanings set forth in the Agreement.
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(a)
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Amended Definitions. The following definitions
appearing under Section 1 of the Agreement are hereby amended and
restated
in their respective entireties as
follows:
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·
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"Applicable
Spread" means that number of Basis Points to be taken into account
in
determining the per annum at which the LIBOR-based Rate of interest
on the
Revolving Loan shall be calculated, and which shall be 70 Basis
Points at
all times on and after the date of the Seventh
Amendment.
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·
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"Revolving
Loan Maturity Date" means January 30,
2009.
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(b)
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New Definition. The following new definition is
hereby added to Section 1 of the Agreement as
follows:
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·
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“Seventh
Amendment” means that certain agreement entitled “Seventh Amendment to
Credit Agreement” entered into by and between the Company and the Bank
dated as of December 7, 2007, for the purpose of amending this
Agreement.
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2. RENEWAL
OF THE LOAN. In order to document the renewal of the
Loan, the first sentence of Section 2(a)(ii) of the Agreement is hereby amended
and restated in its entirety as follows:
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(ii)
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Method of Borrowing. The obligation of the Company to
repay the Revolving Loan shall be evidenced by a Promissory Note
of the
Company in the form of Exhibit “A” attached to the Seventh
Amendment (the “Revolving Note”).
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3. UNUSED
FEE. Section 2(a)(iv) of the Agreement is hereby amended
and restated in its entirety as follows:
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(iv)
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Unused Fee. The Company shall pay to the Bank
a facility or unused fee for each partial or full calendar
quarter during which the Commitment is outstanding equal to, effective
as
of the date of the Seventh Amendment, ten (10) Basis Points per
annum of
the average daily excess of the Commitment over the aggregate outstanding
principal balance of the Revolving Loan. For purposes of calculating
the
unused fee, the aggregate amount available to be drawn under all
outstanding Letters of Credit shall be added to the aggregate outstanding
principal balance of the Revolving Loan for the same
period. Unused fees for each calendar quarter shall be due and
payable within ten (10) days following the Bank's submission of
a
statement of the amount due. Such fees may be debited by the
Bank when due to any demand deposit account of the Company carried
with
the Bank without further authority. Such fees shall be
calculated on the basis of a year of 360 days and actual days
elapsed.
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1
4. FINANCIAL
COVENANTS. Section 5(g)(i) is hereby amended and
restated in its entirety and a new Section 5(g)(ii) is hereby added to the
Agreement as follows:
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(i)
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Maximum Ratio of Funded Debt to EBITDA. As of the end of each
period of four (4) consecutive fiscal quarters ending as of the
last day
of each fiscal quarter shown in the table below, commencing with
the
period of four (4) consecutive fiscal quarters ending on December
19,
2007, the Company shall maintain a ratio of Funded Debt to EBITDA
of not
more than that shown opposite such fiscal
quarter:
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Period
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Ratio
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first
fiscal quarter of fiscal year 2008
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3.75
to 1.00
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second
fiscal quarter of fiscal year 2008
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4.00
to 1.00
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third
fiscal quarter of fiscal year 2008
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3.75
to 1.00
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fourth
fiscal quarter of fiscal year 2008
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3.50
to 1.00
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first
fiscal quarter of fiscal year 2009, and as of the end of each fiscal
quarter thereafter
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2.75
to 1.00
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(ii)
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Debt
Service Coverage Ratio. As of the end of each period of
four (4) consecutive fiscal quarters ending as of the last day
of each
fiscal quarter shown in the table below, commencing with the period
of
four (4) consecutive fiscal quarters ending on December 19, 2007,
the
Company shall maintain a debt service coverage ratio of not less
than that
shown opposite such fiscal quarter:
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Period
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Ratio
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first
fiscal quarter of fiscal year 2008
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.95
to 1.00
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second
fiscal quarter of fiscal year 2008
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.90
to 1.00
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third
fiscal quarter of fiscal year 2008
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.95
to 1.00
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fourth
fiscal quarter of fiscal year 2008
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1.05
to 1.00
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first
fiscal quarter of fiscal year 2009, and as of the end of each fiscal
quarter thereafter
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1.25
to 1.00
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For
purposes of this covenant, the phrase "debt service coverage ratio" means
the
ratio of: (A) the sum of net income, interest expense, plus rent expense,
to (B)
the sum of interest expense, rent expense, the Current Portion of all lease
obligations, plus the Current Portion of all long term debt. The term “Current
Portion” means all payments scheduled to be paid over the twelve (12) month
period immediately following the date of determination.
5. REPRESENTATIONS
AND WARRANTIES. In order to induce the Bank to enter
into this Amendment, the Company affirms that the representations and warranties
contained in the Agreement are correct as of the date of this Amendment,
except
that (i) they shall be deemed to also refer to this Amendment as well as
all
documents named herein and, (ii) Section
3(d) of the Agreement shall be deemed also to
refer to the most recent audited and unaudited financial statements of the
Company delivered to the Bank.
6. EVENTS
OF DEFAULT. The Company certifies to the Bank that no
Event of Default or Unmatured Event of Default under the Agreement, as amended
by this Amendment, has occurred and is continuing as of the date of this
Amendment.
7. CONDITIONS
PRECEDENT. As conditions precedent to the effectiveness
of this Amendment, the Bank shall have received the following contemporaneously
with execution and delivery of this Amendment, each duly executed, dated
and in
form and substance satisfactory to the Bank:
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(i)
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This Amendment duly executed by the
Company.
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(ii)
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The Revolving Note in the form of Exhibit "A" attached hereto duly
executed by the Company.
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(iii)
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The Reaffirmation of Guaranty Agreement in the form attached hereto
as
Exhibit "B" duly executed by Steak n Shake Operations,
Inc.
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(iv)
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The Reaffirmation of Guaranty Agreement in the form attached hereto
as
Exhibit "C" duly executed by Steak n Shake Enterprises,
Inc.
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(v)
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The Reaffirmation of Guaranty Agreement in the form attached hereto
as
Exhibit "D" duly executed by SnS Investment
Company.
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(vi)
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Resolutions of the Board of Directors of the Company authorizing
the
execution, delivery and performance, respectively, of this Amendment
and
all other Loan Documents provided for in this Amendment to which
the
Company is a party certified by the Secretary of the Board of Directors
of
the Company as being in full force and effect and duly adopted
as of the
date hereof.
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(vii)
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The Certificate of the Secretary of the Board of Directors of the
Company
certifying the names of the officer or officers authorized to execute
this
Amendment and all other Loan Documents provided for in this Amendment
to
which the Company is a party, together with a sample of the true
signature
of each such officer, dated as of the date of this
Amendment.
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(viii)
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Resolutions of the Board of Directors of Steak n Shake Operations,
Inc.,
an Indiana corporation, authorizing the execution, delivery and
performance, respectively, of its Reaffirmation of Guaranty Agreement
and
all other Loan Documents provided for in this Amendment to which
Steak n
Shake Operations, Inc. is a party certified by the Secretary of
the Board of Directors of Steak n Shake Operations, Inc. as being
in full
force and effect and duly adopted as of the date
hereof.
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(ix)
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The Certificate of the Secretary of the Board of Directors of Steak
n
Shake Operations, Inc. certifying the names of the officer or officers
authorized to execute its Reaffirmation of Guaranty Agreement and
all
other Loan Documents provided for in this Amendment to which Steak
n Shake
Operations, Inc. is a party, together with a sample of the true
signature
of each such officer, dated as of the date of this
Amendment.
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(x)
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Resolutions of the Board of Directors of Steak n Shake Enterprises,
Inc.,
an Indiana corporation, authorizing the execution, delivery and
performance, respectively, of its Reaffirmation of Guaranty Agreement
and
all other Loan Documents provided for in this Amendment to which
Steak n
Shake Enterprises, Inc. is a party certified by the Secretary of
the Board
of Directors of Steak n Shake Enterprises, Inc. as being in full
force and
effect and duly adopted as of the date
hereof.
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(xi)
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The Certificate of the Secretary of the Board of Directors of Steak
n
Shake Enterprises, Inc. certifying the names of the officer or
officers
authorized to execute its Reaffirmation of Guaranty Agreement and
all
other Loan Documents provided for in this Amendment to which Steak
n Shake
Enterprises, Inc. is a party, together with a sample of the true
signature
of each such officer, dated as of the date of this
Amendment.
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(xii)
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Resolutions of the Board of Directors of SnS Investment Company,
an
Indiana corporation, authorizing the execution, delivery and performance,
respectively, of its Reaffirmation of Guaranty Agreement and all
other
Loan Documents provided for in this Amendment to which SnS Investment
Company is a party certified by the Secretary of the Board of Directors
of
SnS Investment Company as being in full force and effect and duly
adopted
as of the date hereof.
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(xiii)
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The Certificate of the Secretary of the Board of Directors of SnS
Investment Company certifying the names of the officer or officers
authorized to execute its Reaffirmation of Guaranty Agreement and
all
other Loan Documents provided for in this Amendment to which SnS
Investment Company is a party, together with a sample of the true
signature of each such officer, dated as of the date of this
Amendment.
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8. PRIOR
AGREEMENTS. The Agreement, as amended
by this Amendment, supersedes all previous agreements and commitments made
or
issued by the Bank with respect to the Loans and all other subjects of this
Amendment, including, without limitation, any oral or written proposals which
may have been made or issued by the Bank.
9. EFFECT
OF AMENDMENT. The provisions contained
herein shall serve to supplement and amend the provisions of the
Agreement. To the extent that the terms of this Amendment conflict
with the terms of the Agreement, the provisions of this Amendment shall control
in all respects.
10. REAFFIRMATION. Except
as expressly amended by this Amendment, all of the terms and conditions of
the
Agreement shall remain in full force and effect as originally written and
as
previously amended.
11. COUNTERPARTS.
This Amendment may be executed in any number of counterparts, each of which
shall be an original and all of which when taken together shall be one and
the
same agreement.
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IN
WITNESS WHEREOF,
the Company and the Bank have executed and delivered in Indiana this Seventh
Amendment Credit Agreement by their respective duly authorized officers as
of
December 7, 2007.
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THE
STEAK N SHAKE COMPANY, an Indiana
corporation
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By:
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/s/ Xxxxx X. Xxxxx |
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Xxxxx X. Xxxxx, Vice President, General Counsel and Corporate
Secretary
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FIFTH
THIRD BANK, a Michigan banking corporation, formerly known as Fifth
Third Bank (Central Indiana), and Fifth Third Bank, Indiana
(Central)
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By:
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/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, VicePresident and Senior
RelationshipManager
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4
SCHEDULE
OF EXHIBITS
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Exhibit
"A"
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Promissory
Note (Revolving Loan)($50,000,000.00) (The Steak n Shake
Company)
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Exhibit
"B"
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Reaffirmation
of Guaranty Agreement (Steak n Shake Operations,
Inc.)
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Exhibit
"C"
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Reaffirmation
of Guaranty Agreement (Steak n Shake Enterprises,
Inc.)
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Exhibit
"D"
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Reaffirmation
of Guaranty Agreement (SnS Investment
Company)
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5
Exhibit
A
PROMISSORY
NOTE
(Revolving
Loan)
Indianapolis,
Indiana
$50,000,000.00 Dated:
December 7, 2007
Final
Maturity: January 30,
2009
On
or before January 30, 2009 (“Final
Maturity”), THE STEAK N SHAKE COMPANY, an Indiana corporation
(the “Maker”) promises to pay to the order of FIFTH THIRD BANK,
a Michigan banking corporation, formerly known as Fifth
Third Bank
(Central Indiana), and Fifth Third Bank, Indiana (Central) (the “Bank”) at the
principal office of the Bank at Indianapolis, Indiana, the principal sum
of
Fifty Million and 00/100 Dollars ($50,000,000.00), or so much of the principal
amount of the Loan represented by this Note as may be disbursed by the Bank
under the terms of the Credit Agreement described below, and to pay interest
on
the unpaid principal balance outstanding from time to time as provided in
this
Note.
This
Note evidences indebtedness (the
“Loan”) incurred or to be incurred by the Maker under a revolving line of credit
extended to the Maker by the Bank under a Credit Agreement dated as of November
16, 2001, as amended. All references in this Note to the Credit
Agreement shall be construed as references to that Agreement as it may be
amended from time to time. The Loan is referred to in the Credit
Agreement as the “Revolving Loan.” Subject to the terms and
conditions of the Credit Agreement, the proceeds of the Loan may be advanced
and
repaid and re-advanced until Final Maturity. The principal amount of
the Loan outstanding from time to time shall be determined by reference to
the
books and records of the Bank on which all Advances under the Loan and all
payments by the Maker on account of the Loan shall be recorded. Such
books and records shall be deemed primafacie to be correct as to
such matters. The terms “Advance” and “Banking Day” are used in this Note as
defined in the Credit Agreement.
Interest
on the unpaid principal
balance of the Loan outstanding from time to time prior to and after maturity
will accrue at the rate or rates provided in the Credit
Agreement. Prior to maturity, accrued interest shall be due and
payable on the last Banking Day of each month commencing on the last Banking
Day
of December, 2007. After maturity, interest shall be due and payable
as accrued and without demand. Interest will be calculated by
applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual
number
of days the principal balance is outstanding.
The
entire outstanding principal
balance of this Note shall be due and payable, together with accrued interest,
at Final Maturity. Reference is made to the Credit Agreement for
provisions requiring prepayment of principal under certain
circumstances. Principal may be prepaid, but only as provided in the
Credit Agreement.
If
any installment of interest due
under the terms of this Note is not paid when due, then the Bank or any
subsequent holder of this Note may, subject to the terms of the Credit
Agreement, at its option and without notice, declare the entire principal
amount
of the Note and all accrued interest immediately due and
payable. Reference is made to the Credit Agreement which provides for
acceleration of the maturity of this Note upon the happening of other “Events of
Default” as defined therein.
If
any installment of interest due
under the terms of this Note prior to maturity is not paid in full within
ten
(10) days when due, then the Bank at its option and without prior notice
to the
Maker, may assess a late payment fee in an amount equal to the greater of
$20.00
or five percent (5%) of the amount past due. Each late payment fee
assessed shall be due and payable on the earlier of the next regularly scheduled
interest payment date or the maturity of this Note. Waiver by the
Bank of any late payment fee assessed, or the failure of the Bank in any
instance to assess a late payment fee shall not be construed as a waiver
by the
Bank of its right to assess late payment fees thereafter.
All
payments on account of this Note
shall be applied first to expenses of collection, next to any late payment
fees
which are due and payable, next to interest which is due and payable, and
only
after satisfaction of all such expenses, fees and interest, to
principal.
The
Maker and any endorsers severally
waive demand, presentment for payment and notice of nonpayment of this Note,
and
each of them consents to any renewals or extensions of the time of payment
of
this Note without notice. All amounts payable under the terms of this Note
shall
be payable with expenses of collection, including attorneys' fees, and without
relief from valuation and appraisement laws.
This
Note supersedes and replaces that
certain Promissory Note (Revolving Loan) made by the Maker payable to the
order
of the Bank dated January 30, 2005, in the principal amount of $50,000,000.00
and maturing on January 30, 2008.
This
Note is made under and will be
governed in all cases by the substantive laws of the State of Indiana,
notwithstanding the fact that Indiana conflicts of law rules might otherwise
require the substantive rules of law of another jurisdiction to
apply.
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THE
STEAK N SHAKE COMPANY, an Indiana
corporation
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By: /s/ Xxxxx X.
Xxxxx
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Xxxxx
X. Xxxxx, Vice President, General Counsel and Corporate
Secretary
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6
REAFFIRMATION
OF GUARANTY AGREEMENT
(Steak
n
Shake Operations, Inc.)
The
undersigned (the “Guarantor”), being the Guarantor under that certain Guaranty
Agreement dated as of November 16, 2001 (the “Guaranty”), pursuant to which the
undersigned guaranteed the obligations of THE STEAK N SHAKE
COMPANY, an Indiana corporation (the “Company”) to FIFTH THIRD
BANK, a Michigan banking corporation, formerly known as Fifth Third
Bank (Central Indiana),and Fifth Third Bank, Indiana (Central) (the
“Bank”) under the terms of that certain Credit Agreement (the
“Agreement”) dated as of November 16, 2001, entered into by and between the
Company and the Bank, as previously amended, hereby consents to the execution
of
that certain Seventh Amendment to Credit Agreement to be entered into by
and
between the Company and the Bank dated as of even date herewith (the
“Amendment”), and hereby agrees that the Obligations (as defined in the
Guaranty) shall include the obligations of the Company to the Bank under
the
Agreement as amended by the Amendment, which Amendment, among other things,
renews the maturity date of that certain Revolving Loan (as described in
the
Agreement) to January 30, 2009, and the undersigned reaffirms its
Obligations under, and agrees to be bound by, the terms of the
Guaranty.
Further,
the Guarantor acknowledges that while it may be the present practice of the
Bank
to obtain the undersigned’s consent to the execution and delivery of the
Amendment, the Bank may discontinue any such practice in the future and such
discontinuance shall not be construed as a waiver of the Bank’s right, in its
discretion, to enter into any further amendments to or grant any further
waivers
of any of the terms and conditions of the Agreement without the consent of
the
undersigned, and the Bank’s failure to request or obtain the consent of the
undersigned to any such amendment or waiver shall not affect the liability
of
the undersigned to the Bank under the Guaranty.
IN
WITNESS WHEREOF, the undersigned has executed this Reaffirmation of
Guaranty Agreement as of December 7, 2007.
STEAK
N SHAKE OPERATIONS, INC., an Indiana corporation
By: /s/ Xxxxx X.
Xxxxx
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Xxxxx
X. Xxxxx, Vice President, General Counsel and Corporate
Secretary
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STATE
OF INDIANA
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SS:
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COUNTY
OF Xxxxxx
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Before
me, a Notary Public in and for said County and State, personally
appeared Xxxxx X. Xxxxx, the Vice President, General Counsel and
Corporate Secretary of STEAK N SHAKE OPERATIONS, INC., an
Indiana corporation, who as such authorized officer acknowledged execution
of
the foregoing Reaffirmation of Guaranty Agreement on behalf of said corporation
this 10th day of December, 2007.
Signature:
/s/ Xxxxx
Xxxxxx
Printed:
Xxxxx
Xxxxxx
Notary Public
My
Commission Expires: 2-17-2008
My
County
of Residence: Xxxxxx
7
Exhibit
C
REAFFIRMATION
OF GUARANTY AGREEMENT
(Steak
n
Shake Enterprises, Inc.)
The
undersigned (the “Guarantor”), being the Guarantor under that certain Guaranty
Agreement dated as of August 21, 2006 (the “Guaranty”), pursuant to which the
undersigned guaranteed the obligations of THE STEAK N SHAKE
COMPANY, an Indiana corporation (the “Company”) to FIFTH THIRD
BANK, a Michigan banking corporation, formerly known as Fifth Third
Bank (Central Indiana), and Fifth Third Bank, Indiana (Central) (the “Bank”)
under the terms of that certain Credit Agreement (the “Agreement”)
dated as of November 16, 2001, entered into by and between the Company and
the
Bank, as previously amended, hereby consents to the execution of that certain
Seventh Amendment to Credit Agreement to be entered into by and between the
Company and the Bank dated as of even date herewith (the “Amendment”), and
hereby agrees that the Obligations (as defined in the Guaranty) shall include
the obligations of the Company to the Bank under the Agreement as amended
by the
Amendment, which Amendment, among other things, renews the maturity date
of that
certain Revolving Loan (as described in the Agreement) to January 30, 2009,
and
the undersigned reaffirms its Obligations under, and agrees to be bound by,
the
terms of the Guaranty.
Further,
the Guarantor acknowledges that while it may be the present practice of the
Bank
to obtain the undersigned’s consent to the execution and delivery of the
Amendment, the Bank may discontinue any such practice in the future and such
discontinuance shall not be construed as a waiver of the Bank’s right, in its
discretion, to enter into any further amendments to or grant any further
waivers
of any of the terms and conditions of the Agreement without the consent of
the
undersigned, and the Bank’s failure to request or obtain the consent of the
undersigned to any such amendment or waiver shall not affect the liability
of
the undersigned to the Bank under the Guaranty.
IN
WITNESS WHEREOF, the undersigned has executed this Reaffirmation of
Guaranty Agreement as of December 7, 2007.
STEAK
N SHAKE ENTERPRISES, INC., an Indiana corporation
By: /s/ Xxxxx X.
Xxxxx
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Xxxxx X. Xxxxx, Vice President, General Counsel and Corporate
Secretary
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STATE
OF INDIANA
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SS:
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COUNTY
OF Xxxxxx
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Before
me, a Notary Public in and for said County and State, personally appeared
Xxxxx X. Xxxxx, the Vice President, General Counsel and Corporate
Secretary of STEAK N SHAKE ENTERPRISES, INC., an Indiana
corporation, who as such authorized officer acknowledged execution of the
foregoing Reaffirmation of Guaranty Agreement on behalf of said corporation
this
10th day of December, 2007.
Signature:
/s/ Xxxxx
Xxxxxx
Printed:
Xxxxx
Xxxxxx
Notary Public
My
Commission Expires: 2-17-2008
My
County
of Residence: Xxxxxx
8
Exhibit
D
REAFFIRMATION
OF GUARANTY AGREEMENT
(SnS
Investment Company)
The
undersigned (the “Guarantor”), being the Guarantor under that certain Guaranty
Agreement dated as of November 16, 2001 (the “Guaranty”), pursuant to which the
undersigned guaranteed the obligations of THE STEAK N SHAKE
COMPANY, an Indiana corporation (the “Company”) to FIFTH THIRD
BANK, a Michigan banking corporation, formerly known as Fifth Third
Bank (Central Indiana), a Michigan banking corporation and formerly known
as
Fifth Third Bank, Indiana (Central) (the “Bank”) under the terms of
that certain Credit Agreement (the “Agreement”) dated November 16, 2001, entered
into by and between the Company and the Bank, as previously amended, hereby
consents to the execution of that certain Seventh Amendment to Credit Agreement
to be entered into by and between the Company and the Bank dated as of even
date
herewith (the “Amendment”), and hereby agrees that the Obligations (as defined
in the Guaranty) shall include the obligations of the Company to the Bank
under
the Agreement as amended by the Amendment, which Amendment, among other things,
renews the maturity date of that certain Revolving Loan (as described in
the
Agreement) to January 30, 2009, and the undersigned reaffirms its Obligations
under, and agrees to be bound by, the terms of the Guaranty.
Further,
the Guarantor acknowledges that while it may be the present practice of the
Bank
to obtain the undersigned’s consent to the execution and delivery of the
Amendment, the Bank may discontinue any such practice in the future and such
discontinuance shall not be construed as a waiver of the Bank’s right, in its
discretion, to enter into any further amendments to or grant any further
waivers
of any of the terms and conditions of the Agreement without the consent of
the
undersigned, and the Bank’s failure to request or obtain the consent of the
undersigned to any such amendment or waiver shall not affect the liability
of
the undersigned to the Bank under the Guaranty.
IN
WITNESS WHEREOF, the undersigned has executed this Reaffirmation of
Guaranty Agreement as of December 7, 2007.
SnS
INVESTMENT COMPANY, an Indiana corporation
By: /s/ Xxxxx X.
Xxxxx
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Xxxxx
X. Xxxxx, Vice President, General Counsel and Corporate Secretary
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STATE
OF INDIANA
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SS:
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COUNTY
OF Xxxxxx
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Before
me, a Notary Public in and for said County and State, personally appeared
Xxxxx X. Xxxxx, the Vice President, General Counsel and Corporate
Secretary of SnS INVESTMENT COMPANY, an Indiana
corporation, who as such authorized officer acknowledged execution of the
foregoing Reaffirmation of Guaranty Agreement on behalf of said corporation
this
10th day of December, 2007.
Signature:
/s/ Xxxxx
Xxxxxx
Printed:
Xxxxx
Xxxxxx
Notary Public
My
Commission Expires: 2-17-2008
My
County
of Residence: Xxxxxx
