Exhibit 10.22
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FOURTH AMENDMENT
TO
LOAN AGREEMENT
among
THE ▇▇▇▇▇ & WOLLENSKY RESTAURANT GROUP, INC.
as Borrower,
the GUARANTORS,
that are a party hereto,
and
FLEET BANK, N.A.
as Lender
Dated as of March _, 2001
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FOURTH AMENDMENT TO LOAN AGREEMENT
FOURTH AMENDMENT TO LOAN AGREEMENT (this "Amendment"), dated as of
March _, 2001, is entered, into by and among THE ▇▇▇▇▇ & WOLLENSKY RESTAURANT
GROUP, INC., a Delaware corporation (the "Borrower"), The Manhattan Ocean Club
Associates, L.L.C., a Delaware limited liability company, La Cite Associates,
L.L.C., a Delaware limited liability company, Atlantic & Pacific Grill
Associates, L.L.C., a Delaware limited liability company, ▇▇▇. ▇▇▇▇▇ Sub, LLC, a
Delaware limited liability company, New York RGI Sub, LLC, a Delaware limited
liability company, Restaurant Group Management Service, LLC, a Delaware 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, and MOC of
Miami, L.L.C., a Delaware limited liability company (each of the thirteen (13)
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"). All capitalized terms used
herein and not defined herein shall have the meanings ascribed respectively
thereto in the Agreement.
WHEREAS, the Borrower entered into a senior secured revolving credit
facility for up to an aggregate principal amount not to exceed $15,000,000 (the
"Original Commitment") with the Lender pursuant to that certain Loan Agreement
dated as of September 1, 1998, as amended by that certain First Amendment to
Loan Agreement, dated as of June 8, 1999, that certain Second Amendment to the
Loan Agreement, dated as of June 29, 1999, and that certain Third Amendment to
Loan Agreement, dated as of February 29, 2000 (collectively, the "Agreement");
WHEREAS, the Borrower and the Lender have previously agreed by letter,
dated as of March __, 2001, to extend the Loan B Commitment Period through April
30, 2001 and to waive any and all rights, remedies or claims that the Lender may
have against the Borrower as a result of the Borrower's failure to make
prepayments of Loan B during the Clean-up Period; and
WHEREAS, the parties hereto desire to amend the Agreement to modify the
existing financial covenants and certain other terms, as more particularly
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby
acknowledged, subject to the satisfaction of the condition set forth in
paragraph 20 below, the Agreement and the other Loan Documents are hereby
modified as follows:
1. EBITDA. The definition of EBITDA in Section 1.1 of the Agreement is
hereby amended by adding immediately after the words "in accordance with GAAP"
on the last line thereof: ", provided, however, that the EBITDA with respect to
the ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in Washington, D.C. shall not be included in EBITDA with
respect to any monthly period commencing on January 3, 2001, during which period
such restaurant has been closed and is being offered for sale or sublease or has
been disposed of."
2. Consolidated Fixed Charge Coverage Ratio. The definition of
Consolidated Fixed Charge Coverage Ratio in Section 1.1 of the Agreement is
hereby amended in its entirety to read as follows:
"'Consolidated Fixed Charge Coverage Ratio' shall mean the ratio of
Rolling Four Quarter EBITDA before deferred rent and Lease Expense
to the sum of (a) Interest Expense plus (b) amortization of
Indebtedness of the Borrower and its Subsidiaries plus (c) Lease
Expense for such period."
3. New Defined Terms. Section 1.1 of the Agreement is hereby amended by
adding each of the following definitions in appropriate alphabetical order:
"Consolidated Leverage Ratio " shall mean as of the date of
determination, the ratio of Consolidated Total Debt less cash on
hand as of the date of such determination to Rolling Four Quarter
EBITDA.
"Consolidated Total Debt" shall mean as of the date of
determination, all indebtedness of the Borrower and its
Subsidiaries, including, without duplication all Capitalized Lease
Obligations, determined on a consolidated basis in accordance with
GAAP.
"Lease Expense" shall mean, for any period, the aggregate amount of
fixed and contingent rentals payable by Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with
GAAP, for such period with respect to (without duplication) all
leases, licenses or agreements relating to the use of real and
personal property by the Borrower and its Subsidiaries and all
Capitalized Leases.
4. Termination Date. The Termination Date, as defined in Section 1.1 of
the Agreement, is hereby amended by (a) deleting the phrase "July 31, 2002" on
the second line of such definition, and (b) replacing it with "June 30, 2002."
5. Loan B Commitment Period. The Loan B Commitment Period, as set forth in
Section 2.1(A) of the Agreement and currently scheduled to expire on April 30,
2001, is hereby extended to June 30, 2002.
6. Final Term Loan Maturity Date. The final Maturity Date of the Term Loan
as set forth in Section 2.7 of the Agreement is hereby amended to June 30, 2002,
and Borrower agrees to execute an amended Term Note in order to reflect such
change.
7. Mandatory Prepayment. Section 2.9(b) of the Agreement is hereby amended
by adding the following clause:
"(iii) Notwithstanding anything contained herein to the contrary,
and in addition to any other required prepayments as described in
this Section 2.9, the Borrower shall, in one as more prepayments on
or before December 31, 2001, reduce the outstanding principal amount
of the Term Loan by at least $1,000,000 in the aggregate."
8. Amendments to Clean-up Period Requirements. (a) Section 2.9(c) is
hereby amended to replace "December 1st, 2000" with "January 3rd, 2002" and
"January 29th, 2001" with "February 28th, 2002".
(b) Section 8(a) is hereby amended in its entirety to read as
follows:
"(a) The Borrower shall have failed to provide to Lender, no
later than January 5, 2002, written notice of the
commencement of a Clean-up Period as set forth in
Section 2.9."
9. Amendment to Negative Covenants. (a) A new Section 7.7 is hereby added,
to read as follows:
"7.7 Capital Expenditures. Incur any Capital Expenditures in any
consecutive twelve month period in excess of $1,000,000, other than
in connection with the building or financing of a new restaurant
otherwise permitted under the terms of this Agreement."
(b) Section 7.13 of the Agreement is hereby amended by (i) deleting
the word "or" after the words "▇▇▇▇▇ & Wollensky in Washington, D.C." on the
second to last line thereof and replacing such word with ", " and (ii) adding
immediately after the words "▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in Washington, D.C." on the
second to last and last lines thereof: "or to ▇▇▇▇▇ & Wollensky in Philadelphia,
PA. Nothing in this Section 7.13 shall be deemed to limit the restrictions on
Capital Expenditures as set forth in Section 7.7 herein."
10. Audited Financial Statements. Notwithstanding anything contained
herein to the contrary, Borrower acknowledges that it shall be an Event of
Default if the audited financial statements required to be delivered by Borrower
to Lender for the fiscal year of Borrower ended January 3, 2001 pursuant to
Section 5.3(a) herein are (i) not delivered to the Lender by April 15, 2001, and
(ii) not substantially identical to the unaudited financial statements
previously delivered to the Lender by the Borrower.
11. Waivers.
(a) Lender hereby waives compliance by the Borrower with (i) the
financial covenants set forth in Section 6.1 of the Agreement, and (ii) the
affirmative covenants set forth in Sections 5.3(b) and 5.11 of the Agreement,
only for the first, second, third and fourth quarters of the year 2000 only.
(b) Lender further waives any Default under Sections 8(m) and 8(n)
of the Agreement caused by the failure of Borrower to comply with the
requirements of a Clean-up Period as set forth in Section 2.9 of the Agreement
for the period from December 1st, 2000 through January 25th, 2001.
12. Amendments of Financial Covenants.
(a) Section 6.1(a) of the Agreement is hereby amended in its
entirety to read as follows:
"(a) Consolidated Fixed Charge Coverage Ratio. Borrower and its
Subsidiaries on a consolidated basis will maintain a Consolidated
Fixed Charge Ratio, of not less than: 1.15 to 1.0 as of the end of
the first fiscal quarter of 2001; 1.20 to 1.0 as of the end of the
second fiscal quarter of 2001; 1.25 to 1.0 as of the end of the
second fiscal quarter of 2001; and 1.30 to 1.0 as of the end of the
fourth fiscal quarter of 2001 and each fiscal quarter thereafter."
(b) Section 6.1(c) of the Agreement is hereby amended in its
entirety to read as follows:
"(c) Minimum Rolling Four Quarter EBITDA. The minimum Rolling Four
Quarter EBITDA of the Borrower and its Subsidiaries shall be not
less than: $5,380,000 as of the end of the first fiscal quarter of
2001; $6,100,000 as of the end of the second fiscal quarter of 2001;
$6,800,000 as of the end of the third fiscal quarter of 2001; and
$7,200,000 as of the end of the fourth fiscal quarter of 2001 and as
of the end of each fiscal quarter thereafter."
(c) Consolidated Leverage Ratio. Section 6.1 of the Agreement is
hereby amended to add the following Section 6.1(d) to read as follows:
"(d) Consolidated Leverage Ratio. The Consolidated Leverage Ratio of
the Borrower and its Subsidiaries shall be not more than: 4.50 to
1.0 for the first fiscal quarter of 2001; 3.90 to 1.0 for the second
fiscal quarter of 2001; 3.50 to 1.0 for the third fiscal quarter of
2001; and 3.25 to 1.0 for the fourth fiscal quarter of 2001 and each
fiscal quarter thereafter."
13. Fees. In consideration of the Lender agreeing to enter into this
Amendment, including granting the waivers set forth above, the Borrower hereby
agrees to pay to Lender
additional Loan Foes as follows: (i) $75,000 on the date hereon, (ii) $25,000 on
or before June 30, 2001, (iii) $25,000 on or before September 30, 2001, and
(iv) $50,000 on or before December 31, 2001, provided, however, that no
particular Loan Fee shall be due and payable by the Borrower in the event that
prior to the date that such Loan Fee is due (a) the Borrower has paid in full
all of its outstanding obligations under the Agreement and the Notes, (b) the
Lender is not required to make any further Advances, and (c) all other rights
and obligations of the Borrower and Lender under the Agreement and the Notes
shall have been terminated.
14. 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.
15. 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, any
Notes, 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 Notes, the Security
Agreement and the other Loan Documents extend to and apply to the Loan Agreement
as modified herein and amended herein, and that the execution and delivery 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, any Note, the Security Agreement or other Loan Documents.
16. 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 2.9 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.
17. 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.
18. Governing Law. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of New York.
19. 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.
20. Condition Precedent. Notwithstanding anything to the contrary set
forth herein, this Amendment shall not take effect unless and until Borrower has
provided to Lender executed copies of amendments to its subordinated debt
financing, reflecting terms and conditions satisfactory to the Lender in its
sole discretion. If such amendments are not provided to Lender by March 30,
2001, this Amendment shall be deemed null and void and of no effect, and the
Loan Documents shall be deemed to continue in effect as if this Amendment had
never been executed.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
THE ▇▇▇▇▇ & WOLLENSKY RESTAURANT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
THE MANHATTAN OCEAN CLUB
ASSOCIATES, L.L.C., a Delaware limited
liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
LA CITE ASSOCIATES, L.L.C.,
a Delaware limited liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
ATLANTIC & PACIFIC GRILL
ASSOCIATES, L.L.C., a Delaware
limited liability company
By: The ▇▇▇▇▇ & Wollensky Restautrant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇. ▇▇▇▇▇ SUB, LLC, a Delaware
limited liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
NEW YORK RGI SUB, LLC., a Delaware
limited liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
RESTAURANT GROUP MANAGEMENT
SERVICE, LLC, a Delaware,
limited liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
S & W CHICAGO, L.L.C., a Delaware
limited liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
S & W OF MIAMI, L.L.C., a Delaware
limited liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
MOC D.C., L.L.C., a Delaware
limited liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
S & W LAS VEGAS, LLC, a Delaware
limited liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
S & W NEW ORLEANS, LLC, a Delaware
limited liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
S & W D.C., LLC, a Delaware
limited liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
MOC of MIAMI, L.L.C., a Delaware
limited liability company
By: The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
FLEET LENDER, N.A.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President