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EXHIBIT 4.10
MODIFICATION TO CREDIT AGREEMENT
This Modification to Credit Agreement (this "Modification") dated the
23rd day of March, 2001 (this "Modification"), is made by and between WALL
STREET DELI, INC., a Delaware corporation ("Borrower") and AMSOUTH BANK, an
Alabama banking corporation ("Lender").
RECITALS
A. Borrower and Lender have heretofore entered into that certain
Credit Agreement dated as of June 19, 1996, as amended by that certain Amended
and Restated Credit Agreement dated February 2, 1999, that certain Modification
to Credit Agreement dated October 25, 1999, that certain Modification to Credit
Agreement dated October 29, 1999, that certain Modification to Credit Agreement
dated November 30, 1999, that certain Modification to Credit Agreement dated
January 27, 2000, that certain Modification to Credit Agreement dated March 3,
2000, that certain Modification to Credit Agreement dated November 10, 2000,
that certain Modification to Credit Agreement dated January 5, 2001, and that
certain Modification to Credit Agreement dated February 5, 2001 (the "Credit
Agreement") pursuant to which the Lender agreed to make available to the
Borrower a credit facility in the original maximum principal amount of
$4,000,000 as evidenced by that certain Master Note from Borrower to Lender
dated December 26, 1996, as amended by that certain Amended and Restated Master
Note dated February 1, 1999, that certain Note Modification Agreement dated
October 25, 1999, and that certain Note Modification Agreement dated January 5,
2001 (the "Note"). The Credit Agreement and Note shall hereinafter collectively
be referred to as the "Credit Documents"). Capitalized terms used herein and not
otherwise defined shall have the meanings given to them in the Credit Documents.
B. Section 3 of that certain Modification to Credit Agreement
between Borrower and Lender dated February 5, 2001 amended the Credit Agreement
to require Borrower to reduce the outstanding principal balance under the Note
to $1,750,000 on or prior to February 28, 2001 (the "Required Paydown").
C. Borrower has requested that the date for the Required Paydown
be extended. Lender has agreed to extend the date for the Required Paydown as
set forth herein, and requires this Modification as evidence thereof.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and other
good and valuable consideration, the Borrower and Lender agree as follows:
1. The Recitals herein are true and correct.
2. Borrower and Lender agree that the date for the Required Paydown is
hereby extended to March 30, 2001. Therefore, the Credit Agreement is
hereby amended to provide that on or prior to March 30, 2001, Borrower
shall make a principal reduction payment to Lender in an amount
necessary to reduce the outstanding principal balance under the Note to
$1,750,000. A failure to make such principal payment shall constitute
an Event of Default under the Credit Documents.
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3. As a condition to this Modification, Borrower shall pay to Lender a
modification fee of $2,000 due upon execution and delivery of this
Modification. Additionally, Borrower agrees to directly pay and
reimburse the Lender for all expenses, including the reasonable fees
and expenses of legal counsel, incurred by the Lender in connection
with the preparation of the documentation to evidence this
Modification.
4. Borrower represents and warrants to the Lender that all representations
and warranties given by the Borrower to the Lender in Article III of
the Credit Agreement are true and correct as of the date hereof, except
to the extent affected by this Modification.
5. Except as herein modified, the Credit Agreement shall remain in full
force and effect, and the Credit Agreement as so modified, is hereby
ratified and affirmed in all respects. The Borrower confirms that it
has no offsets or defenses with respect to its obligations pursuant to
the Credit Agreement, as herein modified, and represents that this
Modification has been duly authorized, executed and delivered pursuant
to all necessary action of the Borrower. Furthermore, Borrower hereby
releases, satisfies, conceals, waives, acquits, and forever discharges
the Lender, its directors, officers, employees, agents, attorneys,
successors and assigns, of and from any and all claims, demands,
actions, or causes of action of any kind or character, arising at any
time in the past, up to and including the date of this Modification,
which relate or pertain in any way to the Credit Documents or the
indebtedness evidenced thereby and/or the collection of such
indebtedness.
6. This Modification shall inure to the benefit of and be binding upon the
parties hereto, and their respective successors and assignors.
7. This Modification may be executed in counterparts, each of which shall
be an original, but all of which when taken together shall constitute
one and the same instrument.
8. The Borrower irrevocably (a) acknowledges that this Modification will
be accepted by the Lender and performed by the Borrower in the State of
Alabama; (b) submits to the jurisdiction of each state or federal court
sitting in Jefferson County, Alabama (collectively, the "Courts") over
any suit, action or proceeding arising out of or relating to this
Modification or any of the other Credit Documents (an "Action"); (c)
waives, to the fullest extent permitted by law, any objection or
defense that the Borrower may now or hereafter have based on improper
venue, lack of personal jurisdiction, inconvenience of forum or any
similar matter in any Action brought in any of the Courts; (d) agrees
that final judgment in any Action brought in any of the Courts shall be
conclusive and binding upon the Borrower and may be enforced in any
other court to the jurisdiction of which the Borrower is subject, by a
suit upon such judgment; (e) consents to the service of process on the
Borrower in any Action by the mailing of a copy thereof by registered
or certified mail, postage prepaid, to the Borrower at the Borrower's
address designated in or pursuant to Section 7.1; (f) agrees that
service in accordance with Section 7.14(e) of the Credit Amendment
shall in every respect be effective and binding on the Borrower to the
same extent as though served on the Borrower in person by a person duly
authorized to serve such process; and (g) AGREES THAT THE PROVISIONS OF
THIS PARAGRAPH, EVEN IF FOUND NOT TO BE STRICTLY ENFORCEABLE BY ANY
COURT, SHALL CONSTITUTE "FAIR WARNING" TO THE BORROWER THAT THE
EXECUTION OF THIS MODIFICATION MAY SUBJECT THE BORROWER TO THE
JURISDICTION OF EACH STATE OR FEDERAL COURT SITTING IN JEFFERSON
COUNTY, ALABAMA WITH RESPECT TO ANY ACTIONS, AND THAT IT IS
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FORESEEABLE BY THE BORROWER THAT THE BORROWER MAY BE SUBJECTED
TO THE JURISDICTION OF SUCH COURTS AND MAY BE SUED IN THE STATE OF
ALABAMA IN ANY ACTIONS. Nothing in this Paragraph shall limit or
restrict the Lender's right to serve process or bring Actions in courts
otherwise than as herein provided.
9. The exercise by the Lender of any option given to it under the Credit
Agreement shall not constitute a waiver of the right to exercise any
other option. No failure or delay on the part of the Lender in
exercising any right, power or remedy under the Credit Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise
of any such right, power or remedy preclude any further exercise
thereof or the exercise of any other right, power or remedy.
10. This Modification shall inure to the benefit of and be binding upon the
parties hereto and their respective successor and assigns.
11. Inapplicability or unenforceability of any provisions of this
Modification shall not limit or impair the operation or the validity of
any other provision of this Modification.
IN WITNESS WHEREOF, the parties have caused this Modification to be
duly executed under seal as of the day and year first above written.
BORROWER:
WALL STREET DELI, INC.,
a Delaware corporation
By:/s/ Xxxxxx X. Xxxxxxxx
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Printed Name: Xxxxxx X. Xxxxxxxx
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Its: Chief Financial Officer
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[Affix corporate seal]
Attest: /s/ W.I. King
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Printed Name: W.I. King
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Title: Controller
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[Affix corporate seal]
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that Xxxxxx X. Xxxxxxxx whose name as Chief Financial
Officer of Wall Street Deli, Inc., a Delaware corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this day
that, being informed of the contents of the instrument, s/he, as such officer
and with full authority, executed the same voluntarily on the day the same bears
date.
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Given under my hand and official seal, this 26th day of March, 2001.
/s/ Xxxxxx Xxxxxxxx
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Notary Public
My commission expires: 2/4/04
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[SEAL]
LENDER:
AMSOUTH BANK,
an Alabama banking corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Printed Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that Xxxxxxx X. Xxxxxxxx whose name as Vice President of
AmSouth Bank, an Alabama banking corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of the instrument, s/he, as such officer and with
full authority, executed the same voluntarily on the day the same bears date.
Given under my hand and official seal, this 28th day of March, 2001.
/s/ Xxxxxx Xxxxx
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Notary Public
My commission expires: 1/17/04
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[SEAL]
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