Exhibit 10.19
FIRST AMENDMENT
TO
LOAN AGREEMENT
among
THE NEW YORK RESTAURANT GROUP, INC.
as Borrower,
the GUARANTORS ,
that are a party hereto,
and
FLEET BANK, N.A.
as Lender
Dated as of June 8, 1999
FIRST AMENDMENT TO LOAN AGREEMENT
FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment"), dated as of
June 8, 1999, is entered into by and among THE NEW YORK RESTAURANT GROUP, INC.,
a Delaware corporation (the"Borrower"), The Manhattan Ocean Club Associates,
L.L.C., a New York limited liability company, La Cite Associates, L.L.C., a
Delaware limited liability company, Atlantic & Pacific Grill Associates, L.L.C.,
a New York limited liability company, Xxx. Xxxxx Sub, LLC, a Delaware limited
liability company, New York RGI Sub, LLC, a Delaware limited liability company,
Restaurant Group Management Service, LLC, a New York limited liability company,
S & W Chicago, LLC, a Delaware limited liability company, S & W of Miami,
L.L.C., a Delaware limited liability company, MOC D.C., L.L.C., a Delaware
limited liability company, S & W Las Vegas, L.L.C., a Delaware limited liability
company, S & W New Orleans, L.L.C., a Delaware limited liability company, S & W
D.C., L.L.C., a Delaware limited liability company, Manhattan Ocean Holdings,
Inc., a Delaware corporation, Cite Holdings, Inc., a Delaware corporation, and
Atlantic & Pacific Grill Holdings, Inc., a Delaware corporation, MPM Holdings,
Inc., a Delaware corporation, NYRGI Holdings, Inc., a Delaware corporation,
Restaurant Group Management Holdings, Inc., a New York corporation, S & W
Chicago Holdings, Inc., a Delaware corporation, MOC D.C. Holdings, Inc., a
Delaware corporation, S & W New Orleans Holdings, Inc., a Delaware corporation,
and S & W D.C. Holdings, Inc., a Delaware corporation (each of the twenty-two
(22) foregoing entities is referred to herein as a "Guarantor and collectively
as the "Guarantors") and FLEET BANK, N.A., a national banking association
organized under the laws of the United States (the "Lender").
W I T N E S S E T H:
WHEREAS, the Borrower entered into a senior secured revolving credit
facility for up to an aggregate principal amount not to exceed the lower of
$15,000,000 or 75% of the Appraised Value of the Mortgaged Property (the
"Original Commitment") with the Lender pursuant to a Loan Agreement dated as of
September 1, 1998, between the Borrower and the Lender (the "Agreement"); (all
capitalized terms used herein and not defined herein shall have the meanings
ascribed respectively thereto in the Agreement);
WHEREAS, pursuant to Borrower's request, Lender has agreed to
temporarily increase the Original Commitment to $16,500,000 and modify the
Agreement and the other Loan Documents, as more particularly hereinafter
provided.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Agreement and the other Loan
Documents are hereby modified as follows:
1. Commitment. The term "Commitment", as defined in Section 2.1 of
the Agreement, is hereby amended to mean $16,500,000. Upon execution of this
Amendment, Borrower shall execute and deliver to Lender an Amended and Restated
Note, in substantially the form annexed hereto as Exhibit A, evidencing the
increase in the Commitment.
2. Prepayments. Section 2.9 (b) of the Loan Agreement is amended by
adding a Section (iii) to read as follows:
"Borrower shall make a mandatory prepayment in an amount equal to no
less than $1,500,000 upon the closing of any subordinated
indebtedness. Borrower acknowledges that any subordinated
indebtedness must be on terms and conditions satisfactory to the
Lender.
3. Reduction in Commitment. After a mandatory prepayment as
described in this Section 2, or any other repayment that reduces the outstanding
principal amount to $ 15,000,000, the Commitment will be reduced to $15,000,000.
4. Fees. (a) In consideration of the Lenders agreeing to enter into
this Amendment, and granting the waivers set forth in paragraph 7 below, the
Borrower hereby agrees to pay to Lender a Loan Fee of $50,000 on the date hereof
(the "Closing Date"). In the event the Borrower has not reduced the outstanding
principal amount to less than or equal to $15,000,000 on or before 45 days from
the execution of this Amendment, Borrower shall pay an Additional Loan Fee of
$50,000. Borrower further agrees that such Additional Loan Fee shall be
increased by $15,000 if the Borrower's audited financial statements for the year
ending December 31, 1998 are not received by Lender on or before July 1, 1999.
(b) The Borrower agrees that as a condition to the agreement
of Lender to increase the Original Commitment, Borrower shall pay in full upon
the execution of this Amendment, all outstanding unpaid fees, costs and expenses
of Lender and its counsel as well as all fees, costs and expenses incurred by
Lender in connection with the preparation and execution of this Amendment.
Lender's counsel fees are set forth on Exhibit 4(b).
5. Effect of Amendment. All references in the Loan Documents to the
"Loan Agreement" shall be deemed to refer to the Agreement as modified pursuant
to the terms hereof. All references in any one of the Loan Documents to any of
the other Loan Documents shall be deemed to refer to such other Loan Documents
as modified pursuant to the terms hereof. In the event of any inconsistency or
conflict between the terms and provisions of any of the Loan Documents and the
terms and provisions of this Amendment, the terms and provisions of this
Amendment shall control and be binding, it being the agreement and intent of the
Borrower, Guarantors and the Lender that the terms and provisions contained or
referred to in the Loan Documents shall hereby be and be deemed to be amended
and modified to the extent, but only to the extent, necessary to give effect to
the terms and provisions of this Amendment.
6. Consent of Borrower and Guarantor. By execution of this
Amendment, Borrower and Guarantors hereby expressly consent to the modification
and amendments relating to the Loan Agreement as set forth herein, and
Guarantors and Borrower hereby acknowledge, represent and agree that the
Guaranty, the Revolving Note, the Security Agreement and the other Loan
Documents to which each is a party remain in full force and effect and
constitute the valid and legally binding obligation of Guarantors and Borrowers,
enforceable against such Person in accordance with its terms, that the Guaranty,
the Revolving Note, the Security Agreement and the other Loan Documents extend
to and apply to the Loan Agreement as modified and amended, and
-2-
that the execution and deliver of this Amendment does not constitute and shall
not be deemed to constitute, a release, waiver or satisfaction of Guarantors' or
Borrowers' obligations under the Guaranty, the Revolving Note, the Security
Agreement or other Loan Documents.
7. Borrower's Representations, Warranties and Covenants. Borrower
and Guarantors hereby certify that the following statements are true on the
date hereof:
(a) No Default or Event of Default has occurred and is continuing;
(b) All representations and warranties contained in the Agreement
and the other Loan Documents, before and after giving effect to this
Amendment, are true and correct in all material respects with the same
effect as though such representations and warranties are being made as of
the date hereof.
(c) Except with respect to compliance with Sections 5.3 and 6.1, the
Borrower, before and after giving effect to this Amendment is in
compliance in all material respects with all covenants in Sections 5, 6
and 7 of the Loan Agreement and all other covenants and agreements
contained in the Agreement and the other Loan Documents;
(d) There has been no material adverse change in the financial
condition or business of the Borrower and Guarantors;
(e) Except as expressly modified hereby, the Agreement and other
Loan Documents remain unmodified and in full force and effect and are
hereby ratified and confirmed in all respects; and
(f) The Borrower has no offsets, counterclaims or defenses to the
enforcement of, or otherwise with respect to, the Agreement and/or other
Loan Documents as hereby modified.
8. Limited Waiver. The Lender hereby waives the failure of Borrower
to comply with the covenants set forth in Sections 5.3 and 6.1 of the Agreement
through and until July 29, 1999. Notwithstanding the foregoing, Lender reserves
the right, and Borrower acknowledges that Lender has reserved the right to
reevaluate the compliance by Borrower with the covenants set forth in Section 7
upon receipt of the Borrower's audited 1998 financial statements. Except as
specifically set forth in this paragraph 7, Lender has not waived any covenant
of Borrower or any Guarantor contained in any of the Loan Documents.
9. Execution in Counterparts. This Amendment may be executed in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
10. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of New York.
-3-
11. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
THE NEW YORK RESTAURANT, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
THE MANHATTAN OCEAN CLUB
ASSOCIATES, L.L.C., a New York limited
liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
LA CITE ASSOCIATES, L.L.C.,
a Delaware limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
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ATLANTIC & PACIFIC GRILL
ASSOCIATES, L.L.C., a New York
limited liability company
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
XXX. XXXXX SUB, LLC, a Delaware
limited liability company
By: The New York Restaurant Group,
Inc., its Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
NEW YORK RGI SUB, LLC., a Delaware
limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
RESTAURANT GROUP MANAGEMENT
SERVICE, LLC, a New York,
limited liability company
By: The New York Restaurant Group,
Inc., its Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
-5-
S & W Chicago, L.L.C., a Delaware
limited liability company
By:The New York Restaurant Group, Inc.,
its Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
S & W OF MIAMI, L.L.C., a Delaware
limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
MOC D.C., L.L.C., a Delaware
limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
-6-
S & W LAS VEGAS, LLC, a Delaware
limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
S & W NEW ORLEANS, LLC, a Delaware
limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
S & W D.C., LLC, a Delaware
limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
MANHATTAN OCEAN HOLDINGS, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
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CITE HOLDINGS, INC.,
a Delaware Corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
ATLANTIC & PACIFIC GRILL HOLDINGS, INC.,
a Delaware Corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
MPM HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
NYRGI HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
RESTAURANT GROUP MANAGEMENT
HOLDINGS, INC., a New York corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
-8-
S & W CHICAGO HOLDINGS, INC.,
a Delaware corporation,
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
MOC D.C. HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
S & W NEW ORLEANS HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
S & W D.C. HOLDINGS, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
FLEET BANK, N.A.
By:
------------------------------------------
Name:
Title: Vice President
-9-
AMENDED AND RESTATED REVOLVING LOAN NOTE
$16,500,000.00
New York, New York
June 8, 1999
THE NEW YORK RESTAURANT GROUP, INC., a Delaware corporation
(the "Borrower"), for value received, hereby promises to pay to the order of
FLEET BANK, N.A. (the "Bank") on July 31, 1999, at the office of the Bank
specified in Section 9.1 of the Loan Agreement, dated as of September 1, 1998,
as amended by the First Amendment to the Loan Agreement dated as of the date
hereof, among the Borrower, the Guarantors and the Bank, as amended from time to
time (as so amended, the "Agreement"; terms defined in the Agreement shall have
their defined meanings when used in this Note), in lawful money of the United
States of America and in immediately available funds, the principal amount of
SIXTEEN MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($16,500,000.00) or, if
less than such principal amount, the aggregate unpaid principal amount of all
Loans made by the Bank to the Borrower pursuant to Section 2.1 of the Agreement.
The Borrower further promises to pay interest in like money on the unpaid
principal balance of this Note from time to time outstanding at (i) the Adjusted
Prime Rate, or (ii) subject to availability and at the Borrower's request, the
Adjusted LIBOR Rate. Interest shall be computed on the basis of a 360-day year
for actual days elapsed and shall be payable in arrears commencing on the first
day of the first month following any Loan made by the Bank to the Borrower
pursuant to Section 2.1 of the Agreement, and on the first day of each and every
month thereafter, as more particularly set forth in, and subject to the terms
and conditions of, the Agreement. All Loans made by the Bank pursuant to Section
2.1 of the Agreement and all payments of the principal thereon may be endorsed
by the holder of this Note on the schedule annexed hereto, to which the holder
may add additional pages. The aggregate net unpaid amount of Loans set forth in
such schedule shall be presumed to be the principal balance hereof. After the
stated or any accelerated maturity hereof, and after the occurrence of any Event
of Default, this Note shall bear interest at the Post Default Rate, and in the
event that any amount payable hereunder or in connection herewith remains unpaid
for a period of 10 days after its due date, the Borrower shall also be subject
to a late charge of two percent (2%) of the amount not paid when due, all as
more particularly set forth in Section 2.10(e) of the Agreement, and all of such
interest and late charges shall be payable on demand, but in no event in excess
of the maximum rate of interest permitted under applicable law.
This Note is the Revolving Loan Note referred to in the Agreement,
and is entitled to the benefits thereof and may be prepaid, and is required to
be prepaid, in whole or in part (subject to the indemnity provided in the
Agreement), as provided therein.
Upon the occurrence of any one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this Note shall
be, or may be declared to be, immediately due and payable, in each case as
provided in the Agreement. This Note is secured
by the Mortgages, the collateral described in the Security Agreement and by the
Subsidiaries' Guaranty.
The Borrower, for itself and its legal representatives, successors
and assigns, and all endorsers, guarantors or any others who may at any time
become liable for payment hereunder, hereby (i) consents to any and all
extensions of time, renewals, waivers, or modifications or substitutions or
releases of security that may be granted or consented to by the Bank or the
holder hereof with regard to the time of payment hereunder, the security held
for payment hereunder, or any other provision hereof, and (ii) waives
presentment, demand, protest and notice of protest, notice of dishonor, notice
of non-payment, notice of maturity, presentment for the purpose of accelerating
maturity, diligence in collection, and the benefit of any exemption of
insolvency laws, and all other notices applicable hereto, and agrees to pay, to
the extent permitted by law, all fees, costs and expenses incurred by or on
behalf of the Bank or the holder hereof in the collection hereof, including
legal costs and reasonable attorneys' fees and expenses.
This Note has been issued pursuant to the terms of the Agreement,
and is subject to all of the terms and conditions thereof.
This Note shall be construed in accordance with and governed by the
laws of the State of New York. The Borrower consents to the jurisdiction of the
courts of the State of New York in any action brought to enforce any rights of
the Bank or any holder under this Note, and the Borrower waives the right of
trial by jury and the right to interpose any setoff or counterclaim of any kind
or description with respect to any such action.
IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed and delivered by its duly authorized officer as of the day and year
first above written.
THE NEW YORK RESTAURANT
GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
SCHEDULE TO AMENDED AND RESTATED REVOLVING LOAN NOTE
DATED JUNE 8, 1999
BY
THE NEW YORK RESTAURANT GROUP, INC.
TO
FLEET BANK, N.A.
Advances and Payments of Principal and Interact
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Amount of
Amount of Principal Amount of Unpaid Principal Notation
Date Advance Paid or Prepaid Interest Paid Balance of Advances Made By
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xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 11 day of June, 1999, before me personally came Xxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Executive Vice President of The New York Restaurant Group, Inc., the
corporation described in, and which executed, the foregoing instrument; and that
he signed his name thereto by order of the directors of said corporation.
/s/ Xxxx Xxx Xxxx
-----------------
Notary Public
XXXX XXX XXXX
Notary Public, State of New York
No. O1Fl5059904
Qualified in Queens County
Commission Expires May 6, 2000
