EXHIBIT 10.73
SECOND AMENDMENT TO TERM LOAN AGREEMENT
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THIS SECOND AMENDMENT TO TERM LOAN AGREEMENT (this "Amendment"),
made the 24th day of December, 2002, between S&W OF LAS VEGAS, L.L.C., a
Delaware limited liability company, having an address at c/o The Xxxxx &
Wollensky Restaurant Group, Inc., 0000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Borrower") and XXXXXX XXXXXXX XXXX XXXXXX COMMERCIAL FINANCIAL SERVICES,
INC., a Delaware corporation, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Lender").
W I T N E S S E T H:
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WHEREAS, the Lender and the Borrower entered into a Term Loan
Agreement (the "Original Loan Agreement") dated August 23, 2002, which Original
Loan Agreement was amended by that certain Amendment to Term Loan Agreement,
dated October 25, 2002, between the Lender and the Borrower (the "First
Amendment", and together with the Original Loan Agreement, collectively, the
"Loan Agreement") in connection with a $4,000,000.00 loan made by the Lender to
the Borrower, and a contemplated loan to the Borrower in the amount of
$10,000,000.00; and
WHEREAS, the Borrower and the Lender have agreed in the manner
hereinafter set forth to modify the Loan Agreement.
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by each of the parties hereto, and in order to modify the
Loan Agreement, the parties hereto agree for themselves, their successors and
assigns as follows:
1. Capitalized terms used, but not otherwise defined herein shall have
the respective meanings ascribed to such terms in the Loan Agreement.
2. Schedule 1 of the Loan Agreement shall be modified by adding the
following definitions thereto:
"Funded Debt" means all Debt, excluding (a) commitments and contingent
obligations in respect of undrawn letters of credit and guaranties
(except, to the extent constituting guaranties in respect of Funded Debt
of a Person other than the Borrower, the Guarantor or any Subsidiary),
(b) hedging obligations and (c) accrued liabilities incurred in the
ordinary course of business.
"Subordinated Debt" of any Person means all Debt completely subordinated
to such Person's obligations to the Lender pursuant to a subordination
agreement in form and substance satisfactory to the Lender.
"Unsubordinated Funded Debt" means Funded Debt that is not Subordinated
Debt.
3. Paragraph (f) of Schedule II of the Loan Agreement shall be modified
by deleting subparagraphs (iii) and (iv) therefrom and by substituting the
following new subparagraphs (iii) and (iv) in lieu thereof:
"(iii) Senior Leverage Ratio. Subject to (v) below, the
Guarantor, on a consolidated basis, shall not permit the ratio of total
Unsubordinated Funded Debt to EBITDA to exceed 3.00 to 1.00 (measured on
a rolling four quarter basis) as of the close of any fiscal quarter. Any
purchase money mortgage debt incurred by a Subsidiary (other than the
Borrower and Dallas S&W, L.P. ("S&W Dallas")) of the Guarantor which is
not guaranteed by the Guarantor, the Borrower or S&W Dallas shall not be
deemed to be a part of Unsubordinated Funded Debt of the Guarantor for
the purposes of the calculation of Senior Leverage Ratio to the extent
that such purchase money debt is less than $5,000,000.00 in the
aggregate.
(iv) Interest Coverage Ratio. Subject to (v) below, Guarantor, on
a consolidated basis, shall not permit the ratio of EBIT to interest
expense to be less than 2.0 to 1.0 (measured on a rolling four quarter
basis) as of the close of any fiscal quarter."
4. This Amendment sets forth the entire understanding of the parties
with respect to the modification to the Loan Agreement set forth herein. The
Borrower acknowledges that no oral or other agreements, conditions, promises,
understandings, representations or warranties exist in regard to its obligations
under, or the subject matter of, this Amendment, except those specifically set
forth herein and therein.
5. As specifically modified and restated herein, all of the terms,
covenants, conditions and stipulations contained in the Loan Agreement are
hereby ratified and confirmed in all respects, shall continue to apply with full
force and effect.
6. Neither this Amendment nor any provision hereof may be modified,
amended, changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
7. This Amendment may be executed in one or more counterparts each of
which shall be an original but all of which when taken together shall constitute
one and the same instrument.
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8. This Amendment is and shall be deemed to be a contract entered into
pursuant to the laws of the State of New York and shall in all respects be
governed, construed, applied and enforced in accordance with the laws of the
State of New York.
9. The Borrower agrees to submit to personal jurisdiction in the State
of New York in any action or proceeding arising out of this Amendment. In
furtherance of such agreement, the Borrower hereby agrees and consents that
without limiting other methods of obtaining jurisdiction, personal jurisdiction
over the Borrower in any such action or proceeding may be obtained within or
without the jurisdiction of any court located in New York and that any process
or notice of motion or other application to any such court in connection with
any such action or proceeding may be served upon the Borrower by registered or
certified mail to, or by personal service at, the last known address of the
Borrower, whether such address be within or without the jurisdiction of any such
court. The Borrower further agrees that the venue of any litigation arising in
connection with the indebtedness, or in respect of any of the obligations of the
Borrower under this Amendment, shall, to the extent permitted by law, be in New
York County.
10. This Amendment is binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and assigns.
11. Nothing in this Amendment is intended to or shall be deemed to
create any rights or obligations of partnership, joint venture, or similar
association among the parties hereto.
12. If any term, covenant, provision or condition of this Amendment
shall be held to be invalid, illegal or unenforceable in any respect, this
Amendment shall be construed without such term, covenant, provision or
condition.
13. The parties hereto hereby irrevocably and unconditionally waive any
and all rights to trial by jury in any action, suit or counterclaim arising in
connection with, out of or otherwise related to this Amendment
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
S&W OF LAS VEGAS, L.L.C.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer and Secretary
XXXXXX XXXXXXX XXXX XXXXXX COMMERCIAL
FINANCIAL SERVICES, INC.
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Vice President
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XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 17th day of December in the year 2002, before me, the
undersigned, a Notary Public in and for said State, personally appeared
Xxxx X. Xxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
/s/ Xxxxxx X. Strobe
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Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 17th day of December in the year 2002, before me, the
undersigned, a Notary Public in and for said State, personally appeared
Xxxxx Xxxxxxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
/s/ Xxxxxx X. Strobe
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Notary Public
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