1
Exhibit 99(b)(ii)
August 15, 1997
Xxxxxx'x Restaurants, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Vice President-Finance
Gentlemen:
This letter (this "Amendment") confirms and evidences certain
agreements between Star Bank, National Association, a national banking
association (the "Bank"), and Xxxxxx'x Restaurants, Inc., an Ohio corporation
(the "Borrower"), with respect to the Loan Agreement between the Bank and the
Borrower dated as of July 9, 1997 (as the same may be amended from time to
time, the "Agreement"), as follows:
1. PURPOSE OF LOAN. The first sentence of SECTION 1(I) of the
Agreement is hereby deleted in its entirety and replaced with the following,
which hereupon shall be deemed the first sentence of SECTION 1(I) of the
Agreement:
(i) PURPOSE OF LOAN. Proceeds of the Loan shall be
used only for the purpose of purchasing shares of the
Borrower's common stock pursuant to an issuer tender offer
(the "Stock Purchase") and paying expenses associated
therewith.
2. LOAN. SECTION 4(A) of the Agreement is hereby deleted in its
entirety and replaced with the following, which hereupon shall be deemed
SECTION 4(A) of the Agreement:
(a) LOAN. Subject to the terms and conditions of
this Agreement, and subject to there being no Event of
Default (or event which might, with the giving of notice or
the passage of time, mature into an Event of Default) by the
Borrower hereunder, the Bank agrees to lend to the Borrower a
principal sum of up to Eighteen Million Dollars ($18,000,000)
(the "Maximum Loan Amount")
2
Xxxxxx'x Restaurants, Inc.
August 15, 1997
Page 2
hereunder (the "Loan"). The Loan shall be evidenced by a
Promissory Note given by the Borrower to the Bank in
substantially the form of EXHIBIT J attached hereto (the
"Note"). The Loan shall mature and be payable in full on
August 15, 1999 (the "Maturity Date"), unless accelerated as
described herein, and subject to required principal and
interest payments as provided herein.
Seventeen Million One Hundred Forty-Four Thousand
Four Hundred Ninety Dollars ($17,144,490) of the proceeds of
the Loan (the "Initial Disbursement") shall be disbursed to
the Borrower on August 15, 1997 (the "Disbursement Date").
The Borrower may thereafter obtain additional disbursements
of proceeds of the Loan ("Additional Disbursements"),
provided that (i) each Additional Disbursement shall be in a
minimum amount of Twenty-Five Thousand Dollars ($25,000),
(ii) each Additional Disbursement shall be used only for the
purpose of paying expenses associated with the Stock
Purchase, (iii) the Borrower may obtain no more than three
(3) Additional Disbursements, (iv) no Additional
Disbursements may be requested or obtained after October 15,
1997, (v) in no event shall the Bank be required to make any
disbursement of proceeds of the Loan which would cause the
total amount of disbursements of Loan proceeds, including the
Initial Disbursement and Additional Disbursements, to exceed
the Maximum Loan Amount, and (vi) the Bank shall not be
required to make any Additional Disbursement if an Event of
Default (or event which might, with the giving of notice or
the passage of time, mature into an Event of Default) exists
before or after giving effect to such Additional Disbursement
or if the representations and warranties set forth in SECTION
1 hereof are not true and correct both before and after
giving effect to such Additional Disbursement.
The Borrower shall notify the Bank by 12:00 noon on
any business day on which it
3
Frisch's Restaurants, Inc.
August 15, 1997
Page 3
desires to obtain an Additional Disbursement. Such notice
shall be in writing, shall specify the amount of the
Additional Disbursement requested, shall specify the interest
rate elected in accordance with SECTION 4(B) hereof, and
shall be accompanied by evidence satisfactory to the Bank of
the expenses to be paid with the proceeds of such Additional
Disbursement. Each request for an Additional Disbursement
shall be deemed a certification by the Borrower that no Event
of Default (or event which might, with the giving of notice
or the passage of time, mature into an Event of Default)
exists before or after giving effect to such Additional
Disbursement and that the representations and warranties set
forth in SECTION 1 hereof are true and correct both before
and after giving effect to such Additional Disbursement (and
upon request by the Bank, the Borrower shall provide the Bank
with a written certification thereof).
3. ADDITIONAL LEGAL OPINIONS. The following sentence is hereby added
to the end of SECTION 4(D) of the Agreement:
At such time, the Borrower shall also provide the Bank with
an opinion or opinions of counsel in form and substance
satisfactory to the Bank to the effect that (i) each of the
Mortgages is sufficient to create a valid lien in favor of
the Bank on the interest of the grantor in the real property
covered thereby and is in recordable form under the laws of
the jurisdiction in which such real property is located and
(ii) upon the filing of the Financing Statements in the
respective offices noted thereon, the Bank will have a
perfected security interest in such of the property of the
debtors thereunder in which a security interest may be
perfected by the filing of financing statements.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Except as expressly
amended hereby, all representations, warranties and covenants of the Borrower
set forth in the Agreement shall be deemed restated as of the date hereof, and
the Borrower further represents and warrants that:
4
Xxxxxx'x Restaurants, Inc.
August 15, 1997
Page 4
(a) This Amendment has been duly executed and delivered by
the Borrower and authorized by all requisite action on the part of the
Borrower; and
(b) The execution and delivery by the Borrower of this
Amendment does not constitute a violation of any applicable law or a breach of
any provision contained in the Borrower's Articles of Incorporation or Code of
Regulations or contained in any order of any court or other governmental agency
or in any agreement, instrument or document to which the Borrower is a party or
by which the Borrower or any of its assets or properties is bound.
5. MISCELLANEOUS.
(a) The Borrower shall reimburse the Bank for all
out-of-pocket costs and expenses, including without limitation reasonable
attorney's fees, incurred by the Bank or for which the Bank becomes obligated
in connection with or arising out of this Amendment.
(b) As amended hereby, the Agreement shall remain in full
force and effect, and all references in the Loan Documents to the Agreement
shall mean the Agreement as amended hereby.
(c) Capitalized terms used but not defined herein shall have
the same meanings herein as in the Agreement.
(d) This Amendment may be executed in counterparts.
Please acknowledge the agreement of the Borrower to the foregoing by
having four copies of this Amendment signed in the appropriate place below and
return three of them to the Bank.
STAR BANK, NATIONAL ASSOCIATION
By: ______________________________
Title: ____________________________
Acknowledged and Agreed:
XXXXXX'X RESTAURANTS, INC.
By: _______________________
Title: ____________________
