Exhibit 10.20
SECOND 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 29, 1999
SECOND AMENDMENT TO LOAN AGREEMENT
SECOND AMENDMENT TO LOAN AGREEMENT (this "Amendment"), dated as of
June 29, 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 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").
WITNESSETH:
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, and the First Amendment to Loan Agreement dated
as of June 8, 1999, which inter alia temporarily increased the Original
Commitment to $16,500,000 (the "Revised Commitment") (together 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
decrease the Revised Commitment to $15,000,000 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 arc hereby modified as follows:
1. Commitment. The term "Commitment", as defined in Section 2.1 of
the Agreement, is hereby amended to mean $15,000,000.
2. Conversion Date. The term "Conversion Date", as defined in
Section 2.6 of the Agreement is hereby amended to mean January 15, 2000.
3. EBITDA. The definition of EBITDA in Section 1.1 of the Agreement
is hereby amended in its entirety to read as follows:
"'EBITDA' shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any period, the sum of (a)
Adjusted Net Income, plus (b) Interest Expense, plus (c)
depreciation and amortization, plus (d) any non-cash extraordinary
or non-recurring charges, plus (e) deferred rent, plus (f) Federal,
state and local income taxes, computed in accordance with GAAP."
4. Termination Date. The term "Termination Date", as defined in
Section 1.1 of the Agreement is hereby amended to mean January 15, 2000,
5. 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 mean
January 15, 2003.
6. Rolling Four Quarter EBITDA. Section 1.1 is hereby amended to add
the following definition after the definition of Revolving Loan Note:
"'Rolling Four Quarter EBITDA' shall mean the EBITDA for the prior
four consecutive fiscal quarters ending with the most recent fiscal
quarter."
7. Working Capital Sublimit. The definition of the term "Working
Capital Sublimit" in Section 1.1 of the Agreement, is hereby deleted.
8. Working Capital Advances. Sections 2.5 and 8(c) are hereby
deleted in their entirety.
9. Procedure for Requesting Advances. The second sentence of Section
2.3 of the Agreement is hereby amended in its entirety to read as follows:
"Such Borrowing Notice shall (a) identify the Project to which such
proposed borrowing relates or identify such proposed borrowing as a
Working Capital Advance, (b) state whether the Borrower requests the
Advance to bear interest at the Adjusted LIBOR Rate, and if so, for
what LIBOR Interest Period, and (c) provide certification from the
Chief Financial Officer of the Borrower that taking into account the
proposed borrowing, the Borrower will be in compliance with the
covenants in Sections 6 and 7 on a pro forma basis."
10. Amendments to Financial Ratios.
(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 Coverage Ratio, calculated on a rolling four quarter
basis, of not less than 1.50 to 1.0 from the last day of the 1999
fiscal year end and thereafter."
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(b) Section 6.1(b) of the Agreement is hereby amended in its
entirety to read as follows:
"(b) Consolidated EBITDA. The Consolidated EBITDA of the Borrower
and its Subsidiaries shall be not less than: $1,500,000 for the
second fiscal quarter of 1999, $0 for the third fiscal quarter of
1999; $2,750,000 for the fourth fiscal quarter of 1999, $2,750,000
for the first fiscal quarter of 2000; $2,350,000 for the second
fiscal quarter of 2000; $1,000,000 for the third fiscal quarter of
2000; and $4,400,000 for the fourth fiscal quarter of 2000 and
thereafter."
(c) Minimum Rolling Four Quarter EBITDA. Section 6.1 of the
Agreement is hereby amended to add the following Section 6.1(c) 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: $5,850,000 for the fourth fiscal quarter of 1999,
$7,125,000 for the first fiscal quarter of 2000; $7,900,000 for the
second fiscal quarter of 2000; $8,900,000 for the third fiscal
quarter of 2000; and $10,500,000 for the fourth fiscal quarter of
2000 and thereafter."
11. Fees. In consideration of the Lender agreeing to enter into this
Amendment, and granting the waivers set forth in paragraph 15 below, the
Borrower hereby agrees to pay to Lender a Loan Fee of $50,000 on the date hereof
(the "Closing Date").
12. 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.
13. 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 that the
execution and deliver of this Amendment does not constitute and shall not be
deemed to
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constitute, a release, waiver or satisfaction of Guarantors' or Borrowers'
obligations under the Guaranty, the Revolving Note, the Security Agreement or
other Loan Documents.
14. 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.
15. Limited Waiver. (a) The Lender hereby waives the failure of
Borrower to have provided the timely annual audited financial statements and the
financial covenant compliance letter and calculation for the year ending
December 28, 1998, provided that the consolidated audited financial statements
of the Borrower for the fiscal year ended December 28, 1998, as required by
Section 5.3(a) of the Agreement to be audited by KPMG Peat Marwick shall be
received by the Lender on or before July 1, 1999, in form and substance
satisfactory to the Lender.
(b) Lender waives compliance by Borrower of the covenants set forth
in Sections 6.1(a) and (b) for the fiscal quarter ending March 29, 1999.
(c) Except as specifically set forth in this paragraph 15, Lender
has not waived any covenant of Borrower or any Guarantor contained in any of the
Loan Documents.
16. New Covenant. Section 7 of the Agreement is amended by adding a
Section 7.13 to read as follows:
"7.13 New Construction. Borrowers agrees that so long as any of the
Loans are outstanding, Borrower and its Subsidiaries shall not
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commence construction, conversion or development of any new
restaurant without the consent of the Lender, which may be withheld
or conditioned in its sole discretion. This section 7.13 shall not
apply to ▇▇▇▇▇ & Wollensky in Washington, D.C. or to ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ in Washington, D.C."
17. Subordinated Debt Transaction. Simultaneously with the closing
of this Amendment, Borrower shall have entered into a subordinated debt
transaction with Magnetite Asset Investors, LLC on terms and conditions
satisfactory to Lender.
18. 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.
19. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of New York.
20. 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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
THE MANHATTAN OCEAN CLUB
ASSOCIATES, L.L.C., a Delaware limited
liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
ATLANTIC & PACIFIC GRILL
ASSOCIATES, L.L.C., a Delaware
limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇. ▇▇▇▇▇ SUB, LLC, a Delaware
limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
RESTAURANT GROUP MANAGEMENT
SERVICE, LLC, a Delaware, limited liability
company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
S & W CHICAGO, L.L.C., a Delaware
limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
S & W LAS VEGAS, LLC, a Delaware
limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
MOC of MIAMI, L.L.C., a Delaware
limited liability company
By: The New York Restaurant Group, Inc.,
its Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
FLEET BANK, N.A.
By: /s/ Judah Zweiter
---------------------------------------------
Name: Judah Zweiter
Title: Vice President
[LETTERHEAD OF ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
June 29, 1999
To: Fleet Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: The New York Restaurant Group Inc.
Second Amendment to Loan Agreement
Ladies and Gentlemen:
This opinion is furnished to you in connection with the execution and
delivery by The New York Restaurant Group Inc., a Delaware corporation
("Company"), of the Second Amendment to Loan Agreement dated as of June 29, 1999
(the "Amendment") by and among the Company, the Guarantors (as defined therein)
and Fleet Bank, N.A. ("Fleet"). This opinion is rendered to you, at the request
of Company. Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Amendment.
We have acted as counsel to Company in connection with the preparation,
execution and delivery of the Amendment and in connection with the preparation,
execution and delivery by the Company of the Senior Subordinated Note Purchase
Agreement dated as of June 29, 1999 (the "Note Purchase Agreement") by and among
the Company and Magnetite Asset Investors LLC ("Magnetite"), and the
transactions contemplated therein. In connection with such representation, we
have examined originals, or copies identified to our satisfaction as being true
copies, of the following:
(1) The Amendment;
(2) The Note Purchase Agreement;
(3) The Certificate of Incorporation of the Company, as amended to date
and certified by the Secretary of State of the State of Delaware;
(4) The By-laws of the Company, as amended to date, certified by its
Secretary;
(5) Resolutions of the directors of the Company certified by its
Secretary, approving the Amendment; and
(6) Certificates of the Secretary of State of the State of Delaware
regarding the legal existence and corporate good standing of the
Company dated as of June 24, 1999.
The Company and any of its Subsidiaries signatory to the Amendment are referred
to in this letter collectively as the "Loan Parties."
We have also examined copies, identified to our satisfaction, of
shareholder and director consents, and certificates of public officials,
respecting the liquidation and dissolution of Manhattan Ocean Holdings, Inc.,
Cite Holdings, Inc., Atlantic & Pacific Grill Holdings, Inc., MPM Holdings,
Inc., NYRGI Holdings, Inc., S&W Chicago Holdings, Inc., S&W D.C. Holdings, Inc.,
MOC D.C. Holdings, Inc. and S&W New Orleans Holdings, Inc., (collectively, the
"Holding Companies").
We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such agreements and instruments, corporate
records, certificates of public officials and of officers of the Loan Parties,
and such other documents and records and such matters of law as we have deemed
necessary as a basis for the opinions set forth below. As to questions of fact
material to such opinions, we have relied, without independent verification,
upon certificates of public officials and of officers of the Loan Parties,
copies of which have been delivered to you, and the factual accuracy and
completeness of all the representations and warranties made by the parties to
the Amendment and the Note Purchase Agreement (collectively, the "Agreements")
and the other documents executed by Company in connection with the Agreements.
The opinions expressed herein as to the valid existence and good standing of the
Company are as of the date of the certificates referred to in clause (6) above
and are based solely on such certificates. With your permission, we have not
obtained certificates or other governmental confirmation as to the valid
existence and good standing of the Subsidiaries; our opinions as to the valid
existence and good standing of the Subsidiaries are therefore based solely on
the officer's certificates referred to above.
As used in this opinion and unless otherwise specified herein, the phrases
"to our knowledge," "known to us" and the like refer to the actual present
knowledge of lawyers currently in this firm who have performed substantive legal
services on behalf of Company in connection with the transactions referred to
herein, without any independent investigation or file or docket review.
For purposes of this opinion, we have assumed, with your permission and
without
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independent verification, (a) the genuineness of all signatures, (b) the legal
capacity of all natural persons who have signed documents examined by us, (c)
the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, (d) that the parties to the Agreements other than the
Loan Parties have each duly authorized, executed and delivered such Agreements
and all other relevant documents and instruments, and (e) that each of the
parties to the Agreements other than the Loan Parties has all requisite power
and authority to enter into and perform its respective obligations in connection
with the transactions described in the Agreements.
We express no opinion as to the laws of any jurisdiction other than the
federal laws of the United States of America, the laws of The Commonwealth of
Massachusetts, and, for purposes of the opinions set forth in paragraphs 1 and 2
below, the General Corporation Law of the State of Delaware. We call to your
attention that the Agreements provide that they are to be governed by and
construed in accordance with the laws of the State of New York, as to which we
have made no independent investigation and express no opinion. Accordingly, our
opinion is based on the assumption, with your consent, that the Agreements will
be governed by the internal laws of The Commonwealth of Massachusetts,
notwithstanding its express terms.
Based upon the foregoing and in reliance thereon and subject to the
assumptions, limitations, qualifications and exceptions set forth below, we are
of the opinion that:
1. Each Loan Party is a corporation duly organized, validly existing and
in corporate good standing under the laws of its jurisdiction of incorporation.
Each Loan Party has all requisite corporate power and authority to own and
operate its properties and to carry on its business as to our knowledge it is
presently conducted, and to enter into and perform its obligations under the
Amendment.
2. The execution and delivery by each Loan Party and the performance by
each Loan Party of its obligations under the Amendment have been duly authorized
by all requisite corporate action by each Loan Party. The Amendment has been
duly executed and delivered by each Loan Party and constitutes the valid and
binding obligation of such Loan Party, enforceable against such Loan Party in
accordance with its terms.
3. The execution and delivery by each Loan Party and the performance by
each Loan Party of its obligations under the Amendment and the consummation of
the transactions pursuant thereto do not violate the charter documents or
By-laws of such Loan Party or violate any of the terms of (a) any existing
statute, rule or regulation binding on any Loan Party or (b) to our knowledge,
any order of any court or governmental agency specifically naming any Loan
Party.
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4. No governmental consents, approvals, authorizations, registrations,
declarations or filings (other than such of the foregoing as (a) are
specifically referred to or disclosed in the Amendment, (b) which have been
obtained or completed prior to the closing of the transactions contemplated by
the Amendment or (c) are filings required to perfect security interests) are
required by any Loan Party in connection with the execution, delivery and
performance by any Loan Party of the Amendment.
5. No Loan Party is (a) an "investment company" or a company "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended, (b) a "holding company" or a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company" or an "affiliate" of
a "subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Act of 1935, or (c) subject to regulation under the Federal
Power Act or the Interstate Commerce Act.
7. There are to our knowledge no actions, suits, or proceedings pending or
overtly threatened against any Loan Party seeking to enjoin or prevent the
transactions contemplated by the Amendment.
8. The Note Purchase Agreement constitutes the valid and binding
obligation of the Company, and to the extent that the Note Purchase Agreement
purports to bind Magnetite it creates a valid and binding obligation of
Magnetite; and Magnetite's rights under the Note Purchase Agreement are
subordinate to the rights of Fleet against the Company to the extent and on the
terms and subject to the conditions set forth in the Note Purchase Agreement.
9. The Holding Companies have been liquidated and dissolved and the
ownership interests of the Company's Subsidiaries held by the Holding Companies
have been distributed to the Company as sole shareholder of each of the Holding
Companies in cancellation of the Company's stock in the Holding Companies.
The opinions contained herein are subject to the following conditions and
qualifications:
(A) We have not been requested to render, and with your permission we do
not express, an opinion as to the application of any insolvency, fraudulent
conveyance, fraudulent transfer, fraudulent obligation or similar laws.
(B) We express no opinion as to any provision of the Amendment to the
extent it provides that the Lender may set off and apply any deposits at any
time held, or any other indebtedness at any time owing, by such Lender or
participant to or for the account of any Loan Party.
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(C) Our opinions in paragraph 2 and 8 above, with respect to the validity,
binding effect and enforceability of the agreements or provisions thereof
referred to in such paragraphs, are subject to the following: (i) bankruptcy,
insolvency, reorganization, moratorium, receivership and other laws now or
hereafter in effect relating to or affecting the enforcement of creditors'
rights, (ii) the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance or injunctive
relief, whether considered in a proceeding in equity or at law, and to the
discretion of the court before which any such proceeding may be brought and
(iii) public policy considerations or court decisions which may limit the rights
of any party to obtain certain remedies and to indemnification, including
indemnification for tortious or criminal acts or violations of law.
(D) Our opinion in paragraph 3 above as to compliance with certain
statutes, rules and regulations is limited to those that, in our experience, are
normally applicable to transactions of the type contemplated by the Amendment.
The opinions set forth in this letter are limited to the specific issues
addressed herein and to statutes, regulations, rules, decisions, decrees and
facts existing on the date hereof. In rendering such opinions, we disclaim any
obligation to advise any party to whom this opinion is addressed of any change
in any of these sources of law or of any subsequent legal or factual
developments which might affect any matters addressed or opinions set forth
herein.
The opinions set forth herein are rendered solely to the parties to whom
this letter is addressed, are solely for the benefit of such parties in
connection with the transactions contemplated by the Note Purchase Agreement,
and may not be relied upon by them for any other purpose. This letter is not to
be quoted in whole or in part or otherwise referred to in any financial
statements or other public releases, nor is it to be filed with any
governmental agency or other person or entity, without the prior written consent
of this firm. This letter may not be delivered to or relied upon by any other
person or entity for any purpose without the prior written consent of this firm.
Very truly yours,
/s/ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
A Professional Corporation
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