EXHIBIT 10.11
November 1, 2001
Ark Restaurants Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Reference is made to that certain Fourth Amended and Restated Credit
Agreement, dated as of December 27, 1999 by and between Bank Leumi USA (the
"Bank") and Ark Restaurants Corp. (the "Company"), as amended by letter
agreements, dated August 21, 2000 and as of November 21, 2000 (as so amended,
the "Restated Agreement"). Capitalized terms used in this letter agreement (the
"Amendment"), and not otherwise defined herein, shall have the meanings defined
in the Restated Agreement.
Pursuant to the Restated Agreement, the Bank agreed to (i) make one or
more Loans to the Company, until the Conversion Date, in an aggregate amount as
of the date of this Amendment not to exceed $23,000,000, at any one time
outstanding, and (ii) issue letters of credit for the benefit of the Company, in
an aggregate amount not to exceed $1,500,000. The Bank and the Company have
agreed to further amend the Restated Agreement, among other things, to (i)
increase the aggregate amount of the Loans which the Bank may make to the
Company to $26,000,000 until the Conversion Date, (ii) change the Conversion
Date, (iii) reduce the aggregate amount of the Letters of Credit, which the Bank
may issue for the benefit of the Company, at any one time outstanding to
$1,000,000.
Accordingly, the Company and the Bank agree as follows:
A. Amendments to Definitions
A.1 Section 1.6 of the Restated Agreement is hereby amended and
restated as follows:
"1.6 The term "Commitment" means the principal sum of $26,000,000
until June 30, 2002, provided, however, that the said sum shall be
reduced by any Reduction Amount."
B. Amendments to Amount and Terms of Credit
B.1 Section 2.1.1 of the Restated Agreement is hereby amended and
restated as follows:
"Section 2.1.1. Commitment of the Bank. The Bank shall, subject to
and upon the terms and conditions herein set forth, make available
to the Company until June 30, 2002 (the "Conversion Date") loans
(each a
"Revolving Loan" and collectively the "Revolving Loans"). The
Revolving Loans which the Bank shall make available to the
Borrower in any calendar month shall, in the aggregate, not
exceed $1,250,000. The Revolving Loans made available to the
Company pursuant to this revolving loan facility are to provide
working capital for the Company's operations. The aggregate
principal amount of the Revolving Loans, at any time outstanding,
shall not exceed the Commitment. Subject to the foregoing, until
the Conversion Date, the Company may borrow, repay and reborrow
the Loans to the limit of the Commitment."
B.2 Section 2.1.4 of the Restated Agreement is hereby amended and
restated as follows:
Section 2.1.4. Note. The Revolving Loans shall be evidenced by a
promissory note evidencing the Loans substantially in the form of
Exhibit A annexed to the Amendment, with the blanks completed in
conformity herewith (the "Revolving Note") duly executed by the
Company and payable to the order of the Bank, and which shall (i)
be dated as of the date of the Amendment; (ii) be in the principal
amount of $26,000,000; (iii) bear interest at a fluctuating rate
per annum equal to one half of one (1/2%) percent above the
Reference Rate, in effect from time to time, until maturity
(whether by acceleration or otherwise) and thereafter at a
fluctuating rate per annum equal to three (3%) percent above the
Reference Rate, in effect from time to time; and (iv) be payable
as to interest at such rate in arrears on the first day of each
month commencing with the first day of the month following the
date of the Amendment and thereafter on the first day of each
month until (a) the Conversion Date, or (b) maturity whether
acceleration or otherwise, and after maturity upon demand, and
both before and after judgment, until the principal amount is paid
in full. On the Conversion Date, the Bank shall deliver the
Revolving Note to the Company upon delivery by the Company to the
Bank, at the Bank's office specified in Section 9.6, (i) the
prepayment, if any, provided for in Section 2.2.2 of the Restated
Agreement, (ii) a note in the principal amount of $22,000,000
evidencing the Term Loan (the "Term Note") substantially in the
form of Exhibit B annexed, completed in conformity herewith, (iii)
payment of the conversion fee in an amount equal to three eighths
of one percent of the Term Loan Amount, and (iv) such other
documents and papers as are provided for herein. The Term Note
shall be duly executed by the Company and payable to the order of
the Bank, and (i) be dated the Conversion Date, (ii) be in the
principal amount of $22,000,000, (iii) bear interest at a
fluctuating rate per annum equal to one half of one (1/2%) percent
above the Reference Rate, in effect from time to time, until
maturity (whether by acceleration or otherwise), and thereafter at
a fluctuating rate per annum equal to three (3%) percent above the
Reference Rate, in effect from time to time, (iv) be payable as to
interest at such rate in arrears on the first day of each month,
commencing on the first day of the first month immediately
subsequent to the Conversion Date and thereafter on the first date
of every month until the principal amount is paid in full, and (v)
be payable as to principal in thirty-six (36)
equal consecutive monthly installments on the first day of every
month until the maturity (whether by acceleration or at the
Maturity Date), when the entire then unpaid balance and interest
accrued thereon shall be due and payable.
B.3 The third sentence of Section 2.1.5 of the Restated Agreement
is hereby amended and restated as follows:
"The maximum contingent liability of the Bank (including therein
any payments made by the Bank to the beneficiaries of such letters
of credit which have not been repaid to the Bank) under all
Letters of Credit issued for the account of the Company shall not
at any time exceed $1,000,000."
C. Conditions Precedent. The obligation of the Bank to execute and
deliver this Amendment is subject to the conditions precedent that:
C.1 Representations and Warranties. All of the representations and
warranties contained in the Restated Agreement, or otherwise made to the Bank
pursuant to or in connection with any of the Loan Documents, shall be correct
and complete in all material respects.
C.2 Note. The Company shall have executed and delivered to the
Bank the Revolving Note evidencing the Revolving Loans.
C.3 Supporting Documents. The Bank shall have received the
following: (a) a certificate of the Secretary or an Assistant Secretary of the
Company, dated as of even date herewith, certifying as to (i) the Certification
of Incorporation and By-Laws of the Company as then in effect; (ii) the
resolutions of the Board of Directors of the Company authorizing the execution,
delivery and performance of this Amendment and the Note, and the borrowing(s)
thereunder; (iii) the full force and effect of such resolutions on the date
hereof; and (iv) the incumbency and signature of each of the officers of the
Company signing this Amendment and the Note; (b) such additional supporting
documents as the Bank may reasonably request.
C.4 Additional Collateral. Lutece, Inc., a Subsidiary, shall have
executed and delivered (i) an amended and restated security agreement, wherein
it shall make specific reference to trademark rights as part of its Subsidiaries
Collateral, (ii) a Trademark Security Agreement, in form acceptable for
recording with the United States Patent Office, and (iii) such other and further
documents the Bank may reasonably require. Ark Fremont Inc., and Las Vegas
Whiskey Bar, Inc., each a Subsidiary, shall have executed and delivered (i) an
Unlimited Guarantee of payment of all Indebtedness of the Borrower to the Bank,
(ii) a security agreement granting to the Bank a first priority security
interest in all of their Subsidiaries' Collateral, and (iii) such other and
further documents as the Bank may reasonable require.
C.5 Opinion. The Bank shall have received a written opinion of
legal counsel to the Company, in form and substance satisfactory to the Bank and
its counsel.
C.6 Fees. The Company shall have paid (i) the reasonable
attorneys' fees of counsel for the Bank, and (ii) all other charges and
disbursements incurred in connection with the transactions contemplated by the
Amendment.
D. Representations and Warranties. To induce the Bank to enter into the
Amendment, the Company represents and warrants to the Bank that:
D.1 Authority, Enforceability. The Company has all requisite legal
right, power and authority to execute, deliver and perform this Amendment. The
Restated Agreement, this Amendment and the Loan Documents are legal, valid and
binding obligations of such of the Company and the Subsidiaries as are parties
thereto, and are enforceable in accordance with their terms, except as such
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws presently or hereafter in effect affecting the enforcement of
creditors' rights generally or the availability of equitable remedies.
D.2 Execution. The execution, delivery and performance by the
Company of this Amendment and the Revolving Note (a) have been authorized by all
requisite corporate action, (b) will not violate (i) the Certificate of
Incorporation or By-laws of the Company, (ii) the Certificate of Incorporation
or By-Laws of each Subsidiary, (iii) any agreement or contract to which the
Company is a party, or by which it or any of its property is bound, or any
order, decree or judgment, or the provisions of any statute, rule or regulation,
domestic or foreign, or (c) result in the creation of any lien, charge or
encumbrance of any nature whatsoever upon any property or assets of the Company
or any Subsidiary.
D.3 New Restaurant-Related Businesses. Since November 21, 2000,
the Company (i) has not opened any Restaurant-Related Business, except the
Restaurant-Related Businesses owned by the Subsidiaries identified in the second
sentence of Section C.4 of this Amendment, and (ii) has not relocated any
Restaurant-Related Business, except to premises within the same address. A
revised schedule 4.12 to the Credit Agreement is annexed to this Amendment as
and Exhibit.
E. Miscellaneous.
E.1 Extant Note. As soon after execution and delivery by the
Company of the Note as is practical, the Bank will return to the Company the
note evidencing the Loans which was extant prior to the execution and delivery
of the Revolving Note.
E.2 Entire Agreement. This Amendment is intended by the parties as
the final expression of their agreement, and therefore incorporates all
negotiations of the parties hereto, and together with the Restated Agreement and
other Loan Documents set forth in the entire agreement of the parties hereto.
E.3 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding and agreement, kindly
indicate your acceptance thereof by signing below.
Very truly yours,
BANK LEUMI USA
By: /s/ Xxxx Xxxxxxxxx
----------------------------
Xxxx Xxxxxxxxx
Vice President
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------
Xxxxxxx Xxxxxxxxxx
First Vice President
AGREED TO:
ARK RESTAURANTS CORP.
By: /s/ Xxxxxx Xxxxx
----------------------------
Xxxxxx Xxxxx
Senior Vice President
EXHIBIT A
NOTE
$26,000,000 November 1, 2001
ARK RESTAURANTS CORP., a New York corporation (the "Company"), hereby
promises to pay to the order of BANK LEUMI USA (the "Bank"), at the office of
the Bank at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the
United States and in immediately available funds, the principal sum of
Twenty-Six Million ($26,000,000) Dollars or, if less, the aggregate principal
amount of all outstanding Revolving Loans as defined in and made by the Bank to
the Company pursuant the Loan Agreement (as hereinafter defined).
Each Loan made by the Bank under the Loan Agreement and each payment
thereof made by the Company, shall be endorsed by the Bank on the schedule
attached to this Note, provided, however, that the failure by the Bank to
endorse the schedule shall not affect the obligation of the Company to repay the
Loans.
The outstanding unpaid principal balance of this Note shall bear
interest at the rate per annum provided for in the Loan Agreement. Interest on
this Note shall be payable as set forth in the Loan Agreement and shall be
calculated on the basis of a year of 360 days, for the actual number of days
elapsed.
This note is the Revolving Note referred to in that certain Fourth
Amended and Restated Credit Agreement between the Company and the Bank, dated as
of December 27, 1999, as heretofore and concurrently amended, and as such
agreement may be further amended from time to time (the "Loan Agreement"), and
is subject to prepayment and its maturity is subject to acceleration upon the
terms contained in the Loan Agreement. Capitalized terms used herein shall be
defined as in the Loan Agreement.
If any payment on this Note becomes due and payable on a day on which
the Bank's offices are closed (as required or permitted by applicable law or
otherwise), such payment shall be extended to the next succeeding day on which
those offices are open, and if the date for any payment of principal is so
extended, interest thereon shall be payable for the extended time.
This Note shall be deemed to be in substitution or and replacement of,
and not a repayment of the Note dated as of September 30, 2001, made by the
Company to the Bank (the "Prior Note") and all interest accrued and unpaid under
such Prior Note shall be deemed evidenced by this Note and payable hereunder
from and after the date of accrual hereof. The execution and delivery of this
Note shall not be construed (i) to have constituted repayment of any amount of
principal or interest on the Prior Note, or (ii) release, cancel or terminate or
otherwise impair all or any part of any lien or security interest heretofore
granted to the Bank as collateral security for the Prior Note.
Presentment for payment, demand, notice of dishonor, protest and notice
of protest are hereby waived.
This Note amends and restates the extant Note made by the Company to
the Bank, to evidence the Revolving Loans.
ARK RESTAURANTS CORP.
By: /s/ Xxxxxx Xxxxx
----------------------------
Xxxxxx Xxxxx
Senior Vice President
EXHIBIT B
TERM NOTE
$22,000,000 July 1, 2002
ARK RESTAURANTS CORP., a New York corporation (the "Company"), hereby
promises to pay to the order of BANK LEUMI USA (the "Bank"), at the office of
the Bank at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the
United States and in immediately available funds, the principal sum of
Twenty-Two Million Dollars ($22,000,000), in thirty-five (35) equal consecutive
monthly installments of principal, each in the amount of Six Hundred Eleven
Thousand One Hundred Eleven and 11/100 ($611,111.11) commencing on the first day
of August 2002, and on the first day of each month thereafter until July 1,
2005, when the entire unpaid balance in the principal sum of Six Hundred Eleven
Thousand One Hundred Eleven and 12/100 ($611,111.12), and interest accrued
thereon, shall be due and payable.
This Note is the Term Note referred to in that certain Fourth Amended
and Restated Credit Agreement between the Company and the Bank, dated as of
December 27, 1999, as such agreement has been amended from time to time (the
"Loan Agreement"), and is subject to prepayment and its maturity is subject to
acceleration upon the terms contained in the Loan Agreement. Capitalized terms
used herein shall be defined as in the Loan Agreement.
The outstanding unpaid principal balance of this Note shall bear
interest at the rate per annum provided for in the Loan Agreement. Interest on
this Note shall be payable monthly on the first day of each month commencing
August 1, 2002, and shall be calculated on the basis of a year of 360 days, for
the actual number of days elapsed.
If any payment on this Note becomes due and payable on a day on which
the Bank's offices are closed (as required or permitted by applicable law or
otherwise), such payment shall be extended to the next succeeding day on which
those office are open, and if the date for any payment of principal is so
extended, interest thereon shall be payable for the extended time.
Presentment for payment, demand, notice of dishonor, protest and notice
of protest are hereby waived.
ARK RESTAURANTS CORP.
By:
-------------------------------
Xxxxxxx Xxxxxxxxx,
President
