Exhibit 4.04(s)
ASSIGNMENT AND ACCEPTANCE
Dated as of March 9, 2001
Reference is made to the Second Amended and Restated Revolving Credit and
Term Loan Agreement, dated as of June 19, 1995 (as amended and in effect from
time to time, the "Credit Agreement"), by and among ▇▇▇▇▇▇'▇ RESTAURANT GROUP,
INC. (formerly known as Quantum Restaurant Group, Inc.), a Delaware corporation
(referred to below and in the Credit Agreement as "Quantum"), PEASANT HOLDING
CORP., a Delaware corporation ("Peasant Holding"), ▇▇▇▇▇▇'▇ OF CHICAGO, INC., an
Illinois corporation ("Morton's") (Quantum, Peasant Holding and Morton's are
referred to herein collectively as the "Borrowers", and each, individually, as a
"Borrower"), FLEET NATIONAL BANK, as Agent (the "Agent") for the Lenders (as
defined in the Credit Agreement), FLEET NATIONAL BANK (referred to in the Credit
Agreement as "FNBB") in its individual capacity as a Lender, and the other
Lenders party thereto. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Credit Agreement.
LaSalle Bank National Association (the "Assignor") and Fleet National Bank
(the "Assignee") hereby agree as follows:
1. Assignment. Subject to the terms and conditions of this Assignment and
Acceptance, the Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes without recourse to the Assignor, a
$3,402,777.78 aggregate interest (in respect only of the Revolving Credit
Commitment, the Revolving Credit Loans, and the Letter of Credit Participations)
in and to the rights, benefits, indemnities and obligations of the Assignor
under the Credit Agreement, constituting an assigned Commitment Percentage of
5.19508% in respect of the Revolving Credit Commitment (with respect to
Revolving Credit Loans and Letter of Credit Participations), as in effect
immediately prior to the Effective Date (as hereinafter defined).
2. Assignor's Representations. The Assignor (i) represents and warrants
that (A) it is legally authorized to enter into this Assignment and Acceptance,
(B) the Assignor's portion of the outstanding Revolving Credit Loans and Letter
of Credit Participations and its Commitment Percentage are sufficient to give
effect to this Assignment and Acceptance, (ii) makes no representation or
warranty, express or implied, and assumes and shall have no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or any of the other Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant thereto or the attachment, perfection or priority of
any security interest or mortgage, other than that it is the legal and
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beneficial owner of the interest being assigned by it hereunder free and clear
of any claim or encumbrance; (iii) makes no representation or warranty and
assumes and shall have no responsibility with respect to the financial condition
of any of the Companies or any other Person primarily or secondarily liable in
respect of any of the Obligations, or the performance or observance by any of
the Companies or any other Person primarily or secondarily liable in respect of
any of the Obligations of any of its obligations under the Credit Agreement or
any of the other Loan Documents or any other instrument or document delivered or
executed pursuant thereto; and (iv) attaches hereto the Revolving Credit Note
delivered to it under the Credit Agreement.
The Assignor requests that the Borrowers exchange the Assignor's Revolving
Credit Note for new Revolving Credit Notes payable to the Assignor and the
Assignee as follows:
Notes Payable to Amount of Revolving
the Order of: Credit Note
------------- -----------
Assignor $9,097,222.22
Assignee(1) $23,902,777.78
3. Assignee's Representations. The Assignee (i) represents and warrants
that (A) it is duly and legally authorized to enter into this Assignment and
Acceptance, (B) the execution, delivery and performance of this Assignment and
Acceptance do not conflict with any provision of law or of the charter or
by-laws of the Assignee, or of any agreement binding on the Assignee, (C) all
acts, conditions and things required to be done and performed and to have
occurred prior to the execution, delivery and performance of this Assignment and
Acceptance, and to render the same the legal, valid and binding obligation of
the Assignee, enforceable against it in accordance with its terms, have been
done and performed and have occurred in due and strict compliance with all
applicable laws; (ii) confirms that it has received a copy of the Credit
Agreement and each of the other Loan Documents, together with copies of the most
recent financial statements delivered pursuant to ss.ss.6.7 and 9.4 of the
Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (iii) agrees that it will, independently and without
reliance upon the Assignor, the Agent or any Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement;
(iv) represents and warrants that it is an Eligible Assignee; (v) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to the
----------
(1) The new Revolving Credit Note amount shown for the Assignee above also
reflects and includes the amount of the existing Revolving Credit Note held by
the Assignee, to be replaced by the Revolving Credit Note to be delivered to the
Assignee pursuant thereto.
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Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (vi) agrees that it will perform in accordance with their
terms all the obligations which by the terms of the Credit Agreement and this
Assignment and Acceptance are required to be performed by it as a Lender; and
(vii) agrees to treat in confidence any information obtained by it pursuant to
the Credit Agreement unless such information otherwise becomes public knowledge
and agrees not to disclose such information to a third party except as required
by law or legal process.
4. Effective Date. The effective date for this Assignment and Acceptance
shall be March 9, 2001 (the "Effective Date"). Following the execution of this
Assignment and Acceptance, and the consent hereto of the Borrowers having been
obtained and evidenced by their execution hereof as indicated below, each party
hereto shall deliver its duly executed counterpart hereof to the Agent for
acceptance (and consent) by the Agent and recording in the Register by the
Agent. The parties hereto hereby waive the five (5) Business Days "waiting
period" provided for in ss.17 of the Credit Agreement with respect to the
occurrence of the Effective Date hereof.
5. Rights Under Credit Agreement. Upon such acceptance (and consent) and
such recording (the Agent hereby waiving the otherwise applicable registration
fee with respect hereto provided for in ss.17 of the Credit Agreement), then,
from and after the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder, and (ii) the Assignor
shall, with respect to that portion of its interest under the Credit Agreement
assigned hereunder, relinquish its rights and be released from its obligations
under the Credit Agreement; provided, however, that the Assignor shall retain
its rights to be indemnified pursuant to ss.14 of the Credit Agreement with
respect to any claims or actions arising prior to the Effective Date.
6. Payments. Upon such acceptance of this Assignment and Acceptance by the
Agent and such recording, from and after the Effective Date, the Agent shall
make all payments in respect of the rights and interests assigned hereby
(including payments of the applicable principal, interest, fees and other
amounts) to the Assignee. The Assignor and the Assignee shall make any
appropriate adjustments in payments for periods prior to the Effective Date by
the Agent or with respect to the making of this assignment directly between
themselves.
7. Governing Law. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE
TO CONFLICT OF LAWS).
8. No Default or Event of Default. By signing this Assignment and
Acceptance in the space indicated below, the Borrowers hereby consent with
respect hereto, and represent and warrant to the Assignor, the Assignee, and the
Agent that no Default or Event of Default has occurred and is continuing.
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9. Counterparts. This Assignment and Acceptance may be executed in any
number of counterparts which shall together constitute but one and the same
agreement.
-5-
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Assignment and Acceptance to be executed on its behalf by its
officer thereunto duly authorized, as of the date first above written.
The Assignor:
LASALLE BANK NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP
The Assignee:
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
CONSENTED AND AGREED TO:
FLEET NATIONAL BANK, as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇'▇ RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
▇▇▇▇▇▇'▇ OF CHICAGO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: EVP & CFO
ASSIGNMENT AND ACCEPTANCE
Dated as of March 9, 2001
Reference is made to the Second Amended and Restated Revolving Credit and
Term Loan Agreement, dated as of June 19, 1995 (as amended and in effect from
time to time, the "Credit Agreement"), by and among ▇▇▇▇▇▇'▇ RESTAURANT GROUP,
INC. (formerly known as Quantum Restaurant Group, Inc.), a Delaware corporation
(referred to below and in the Credit Agreement as "Quantum"), PEASANT HOLDING
CORP., a Delaware corporation ("Peasant Holding"), ▇▇▇▇▇▇'▇ OF CHICAGO, INC., an
Illinois corporation ("Morton's") (Quantum, Peasant Holding and Morton's are
referred to herein collectively as the "Borrowers", and each, individually, as a
"Borrower"), FLEET NATIONAL BANK, as Agent (the "Agent") for the Lenders (as
defined in the Credit Agreement), FLEET NATIONAL BANK (referred to in the Credit
Agreement as "FNBB") in its individual capacity as a Lender, and the other
Lenders party thereto. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Credit Agreement.
Fleet National Bank (the "Assignor") and LaSalle Bank National Association
(the "Assignee") hereby agree as follows:
1. Assignment. Subject to the terms and conditions of this Assignment and
Acceptance, the Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes without recourse to the Assignor, a
$3,402,777.78 aggregate interest (in respect only of the Term Loan) in and to
the rights, benefits, indemnities and obligations of the Assignor under the
Credit Agreement, constituting an assigned Term Loan Percentage of 13.88889% in
respect of the Term Loan, as in effect immediately prior to the Effective Date
(as hereinafter defined).
2. Assignor's Representations. The Assignor (i) represents and warrants
that (A) it is legally authorized to enter into this Assignment and Acceptance,
(B) the Assignor's portion of the outstanding Term Loan and its Term Loan
Percentage are sufficient to give effect to this Assignment and Acceptance, (ii)
makes no representation or warranty, express or implied, and assumes and shall
have no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any of the
other Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant thereto or the
attachment, perfection or priority of any security interest or mortgage, other
than that it is the legal and beneficial owner of the interest being assigned by
it hereunder free and clear of any claim or encumbrance; (iii) makes no
representation or warranty and assumes and shall have no responsibility with
respect to the financial condition of any of the Companies or any other Person
primarily or secondarily liable in respect of any of the
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Obligations, or the performance or observance by any of the Companies or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of its obligations under the Credit Agreement or any of the
other Loan Documents or any other instrument or document delivered or executed
pursuant thereto; and (iv) attaches hereto the Term Note delivered to it under
the Credit Agreement.
The Assignor requests that the Borrowers exchange the Assignor's Term Note
for new Term Notes payable to the Assignor and the Assignee as follows:
Notes Payable to Amount of
the Order of: Term Note
------------- ---------
Assignor $6,397,222.22
Assignee $3,402,777.78
3. Assignee's Representations. The Assignee (i) represents and warrants
that (A) it is duly and legally authorized to enter into this Assignment and
Acceptance, (B) the execution, delivery and performance of this Assignment and
Acceptance do not conflict with any provision of law or of the charter or
by-laws of the Assignee, or of any agreement binding on the Assignee, (C) all
acts, conditions and things required to be done and performed and to have
occurred prior to the execution, delivery and performance of this Assignment and
Acceptance, and to render the same the legal, valid and binding obligation of
the Assignee, enforceable against it in accordance with its terms, have been
done and performed and have occurred in due and strict compliance with all
applicable laws; (ii) confirms that it has received a copy of the Credit
Agreement and each of the other Loan Documents, together with copies of the most
recent financial statements delivered pursuant to ss. ss.6.7 and 9.4 of the
Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (iii) agrees that it will, independently and without
reliance upon the Assignor, the Agent or any Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement;
(iv) represents and warrants that it is an Eligible Assignee; (v) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (vi) agrees that it will perform in accordance
with their terms all the obligations which by the terms of the Credit Agreement
and this Assignment and Acceptance are required to be performed by it as a
Lender; and (vii) agrees to treat in confidence any information obtained by it
pursuant to the Credit Agreement unless such information otherwise becomes
public knowledge and agrees not to disclose such information to a third party
except as required by law or legal process.
4. Effective Date. The effective date for this Assignment and Acceptance
shall be March 9, 2001 (the "Effective Date"). Following the execution of this
Assignment and Acceptance, and the consent hereto of the Borrowers having been
obtained and evidenced
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by their execution hereof as indicated below, each party hereto shall deliver
its duly executed counterpart hereof to the Agent for acceptance (and consent)
by the Agent and recording in the Register by the Agent. The parties hereto
hereby waive the five (5) Business Days "waiting period" provided for in ss.17
of the Credit Agreement with respect to the occurrence of the Effective Date
hereof.
5. Rights Under Credit Agreement. Upon such acceptance (and consent) and
such recording (the Agent hereby waiving the otherwise applicable registration
fee with respect hereto provided for in ss. 17 of the Credit Agreement), then,
from and after the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder, and (ii) the Assignor
shall, with respect to that portion of its interest under the Credit Agreement
assigned hereunder, relinquish its rights and be released from its obligations
under the Credit Agreement; provided, however, that the Assignor shall retain
its rights to be indemnified pursuant to ss.14 of the Credit Agreement with
respect to any claims or actions arising prior to the Effective Date.
6. Payments. Upon such acceptance of this Assignment and Acceptance by the
Agent and such recording, from and after the Effective Date, the Agent shall
make all payments in respect of the rights and interests assigned hereby
(including payments of the applicable principal, interest, fees and other
amounts) to the Assignee. The Assignor and the Assignee shall make any
appropriate adjustments in payments for periods prior to the Effective Date by
the Agent or with respect to the making of this assignment directly between
themselves.
7. Governing Law. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE
TO CONFLICT OF LAWS).
8. No Default or Event of Default. By signing this Assignment and
Acceptance in the space indicated below, the Borrowers hereby consent with
respect hereto, and represent and warrant to the Assignor, the Assignee, and the
Agent that no Default or Event of Default has occurred and is continuing.
9. Counterparts. This Assignment and Acceptance may be executed in any
number of counterparts which shall together constitute but one and the same
agreement.
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IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Assignment and Acceptance to be executed on its behalf by its
officer thereunto duly authorized, as of the date first above written.
The Assignor:
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
The Assignee:
LASALLE BANK NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP
CONSENTED AND AGREED TO:
FLEET NATIONAL BANK, as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇'▇ RESTAURANT GROUP, INC.
PEASANT HOLDING CORP.
▇▇▇▇▇▇'▇ OF CHICAGO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: EVP & CFO
