EXHIBIT 4.4
NE RESTAURANT COMPANY, INC.
$100,000,000
10 3/4% Senior Notes due 2008
AMENDMENT NO.1 TO
-----------------
PURCHASE AGREEMENT
------------------
July 21, 1998
CHASE SECURITIES INC.
BANCBOSTON SECURITIES INC.
c/o Chase Securities Inc.
270 Park Avenue, 4th Floor
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Purchase Agreement (the "Purchase
--------
Agreement"), dated as of July 13, 1998, among NE Restaurant Company, Inc., a
- ---------
Delaware corporation (the "Company"), Chase Securities Inc. ("CSI") and
------- ---
BancBoston Securities Inc. (together with CSI, the "Initial Purchasers"). On
------------------
July 20, 1998, pursuant to the terms of the Purchase Agreement, the Company
issued and sold $100,000,000 aggregate principal amount of its 10 3/4% Senior
Notes due 2008 (the "Securities"), which Securities are to be unconditionally
----------
guaranteed (the "Guarantees") on a senior unsecured basis by each Guarantor (as
----------
defined below), including, without limitation, Bertucci's Inc. ("Bertucci's"
----------
and, together with its subsidiaries, the "Bertucci's Guarantors"). On July 21,
---------------------
1998, the Company used the proceeds from the sale of the Securities, along with
additional funds, to acquire Bertucci's, Inc. ("Bertucci's"), which, along with
all of its subsidiaries, shall provide Guarantees for the Notes. The Securities
were issued pursuant to an Indenture to be dated as of July 20, 1998 (the
"Indenture") among the Company and United States Trust Company of New York, as
- ----------
trustee (the "Trustee"), which is being amended pursuant to a Supplemental
-------
Indenture, dated the date hereof, among the Company, the Bertucci's Guarantors
and the Trustee, for the purpose of adding the Bertucci's Guarantors as parties
to the Indenture. "Guarantor" means each subsidiary of the Company (other than
---------
(i) a foreign subsidiary, (ii) NERC Limited Partnership or NERC SPE Inc., (iii)
NERC SPE II Inc. or (iv) NERC Limited Partnership II) in existence on the date
of issuance of the securities and any Restricted Subsidiary (other that (i) a
Foreign Subsidiary or (ii) a special purpose entity and/or limited partnership
created solely to incur certain indebtedness) created or acquired by the
Company after the date of issuance of the securities.
Pursuant to Section 19 of the Purchase Agreement, the Company and the
Initial Purchasers agreed to amend the Purchase Agreement for the purpose of
adding Bertucci's and its subsidiaries as parties thereto and subject to the
obligations arising thereunder, including but not limited to Section 9, and
entitled to the benefits therefrom.
Accordingly, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto agree to amend the Purchase Agreement as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are defined
--------------
in the Purchase Agreement and used herein are so used and so defined.
2
2. Addition of Section 2A. The Purchase Agreement is hereby amended to add
Section 2A, which reads as follows:
2A. Representations, Warranties and Agreements of the Bertucci's Guarantors.
------------------------------------------------------------------------
The Bertucci's Guarantors represent and warrant to, and agree
with, the Initial Purchasers on and as of the date hereof and the Closing
Date (as defined in Section 3 of the Purchase Agreement) that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not contain any untrue
statement of a material fact with respect to Bertucci's or omit to state
a material fact with respect to Bertucci's required to be stated therein
or necessary in order to make the statements with respect to Bertucci's
therein, in the light of the circumstances under which they were made,
not misleading; provided that the Bertucci's Guarantors make no
--------
representation or warranty as to information contained in or omitted
from the Preliminary Offering Memorandum or the Offering Memorandum in
reliance upon and in conformity with written information relating to the
Initial Purchasers furnished to the Company by or on behalf of any
Initial Purchaser specifically for use therein (the "Initial Purchasers'
------------------
Information").
-----------
(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contains all of the information
that, if requested by a prospective purchaser of the Securities, would
be required to be provided to such prospective purchaser pursuant to
Rule 144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties
of the Initial Purchasers contained in Section 2 and their compliance
with the agreements set forth therein, it is not necessary, in
connection with the issuance and sale of the Securities to the Initial
Purchasers and the offer, resale and delivery of the Securities by the
Initial Purchasers in the manner contemplated by this Agreement and the
Offering Memorandum, to register the Securities under the Securities Act
or to qualify the Indenture under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
-------------------
(d) Bertucci's and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their ownership or lease of
property or the conduct of their businesses require such qualification,
and have all power and authority necessary to own or hold their
properties and to conduct the businesses in which they are engaged,
except where the failure to so qualify or have such power or authority
would not, singularly or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), results of operations,
business or prospects of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect").
-----------------------
(e) All of the outstanding shares of capital stock of Bertucci's
and its subsidiaries have been duly and validly authorized and issued
and are fully paid and non-assessable.
(f) Bertucci's has full right, power and authority to execute
and deliver this Agreement, the Indenture (as supplemented on the date
hereof), the Registration Rights
3
Agreement (as supplemented on the date hereof) and the Merger Agreement
(collectively, the "Transaction Documents") and to perform its
---------------------
obligations hereunder and thereunder; and all corporate action required
to be taken for the due and proper authorization, execution and delivery
of each of the Transaction Documents and the consummation of the
transactions contemplated thereby have been duly and validly taken.
(g) This Agreement has been duly authorized, executed and
delivered by Bertucci's and constitutes a valid and legally binding
agreement of Bertucci's enforceable against Bertucci's in accordance
with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally, by rights of acceleration, if applicable, and by
general equitable principles (whether considered in a proceeding in
equity or at law) and except to the extent that the indemnification and
contribution provisions thereof may be limited by federal or state
securities laws or the public policy underlying such laws or otherwise
unenforceable.
(h) The Registration Rights Agreement has been duly authorized
by Bertucci's and, when duly executed and delivered in accordance with
its terms by each of the parties thereto, will constitute a valid and
legally binding agreement of Bertucci's enforceable against Bertucci's
in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally, by rights of acceleration,
if applicable, and by general equitable principles (whether considered
in a proceeding in equity or at law) and except to the extent that the
indemnification and contribution provisions thereof may be limited by
federal or state securities laws or the public policy underlying such
laws or otherwise unenforceable.
(i) The Indenture has been duly authorized by Bertucci's and,
when duly executed and delivered in accordance with its terms by each of
the parties thereto, will constitute a valid and legally binding
agreement of Bertucci's enforceable against Bertucci's in accordance
with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally, by rights of acceleration, if applicable, and by
general equitable principles (whether considered in a proceeding in
equity or at law) and except to the extent that the indemnification and
contribution provisions thereof may be limited by federal or state
securities laws or the public policy underlying such laws or otherwise
unenforceable. On the date Bertucci's and its subsidiaries become
Guarantors, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission applicable to an indenture which is qualified thereunder.
(j) The Guarantees, when provided by Bertucci's and its
subsidiaries pursuant to a supplement to the Indenture, will have been
duly authorized by Bertucci's and its subsidiaries and will constitute a
valid and legally binding obligation of Bertucci's enforceable against
Bertucci's in accordance with its terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally, by rights of acceleration, if applicable,
and by general equitable principles (whether considered in a proceeding
in equity or at law).
4
(k) The Merger Agreement has been duly authorized, executed and
delivered by Bertucci's and constitutes a valid and legally binding
agreement of Bertucci's enforceable against Bertucci's in accordance
with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally, by rights of acceleration, if applicable, and by
general equitable principles (whether considered in a proceeding in
equity or at law) and except to the extent that the indemnification and
contribution provisions thereof may be limited by federal or state
securities laws or the public policy underlying such laws or otherwise
unenforceable.
(l) Each Transaction Document conforms in all material respects
to the description thereof contained in the Offering Memorandum.
(m) The execution, delivery and performance by Bertucci's and
its subsidiaries of each of the Transaction Documents to which it is a
party, the issuance, authentication, sale and delivery of the Securities
and compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction
Documents will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of Bertucci's or its subsidiaries pursuant
to, any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which Bertucci's or its
subsidiaries are a party or by which Bertucci's or its subsidiaries are
bound or to which any of the property or assets of Bertucci's or its
subsidiaries are subject, nor will such actions result in any violation
of the provisions of the charter or by-laws of Bertucci's or its
subsidiaries or any statute or any judgment, order, decree, rule or
regulation of any court or arbitrator or governmental agency or body
having jurisdiction over Bertucci's or its subsidiaries or any of their
properties or assets; and no consent, approval, authorization or order
of, or filing or registration with, any such court or arbitrator or
governmental agency or body under any such statute, judgment, order,
decree, rule or regulation is required for the execution, delivery and
performance by Bertucci's or its subsidiaries of each of the Transaction
Documents, the issuance, authentication, sale and delivery of the
Securities and compliance by Bertucci's or its subsidiaries with the
terms thereof and the consummation of the transactions contemplated by
the Transaction Documents, except for (A) if applicable, such consents,
approvals, authorizations, filings, registrations or qualifications (i)
which shall have been obtained or made prior to the Closing Date and
(ii) as may be required to be obtained or made under the Securities Act
and applicable state securities laws as provided in the Registration
Rights Agreement or (B) where the failure to obtain or make any such
consent, approval, authorization, order, filing or registration would
not be reasonably expected to result in a Material Adverse Effect or any
material adverse effect on the ability of the Company to perform its
obligations under the Transaction Documents.
(n) Arthur Andersen LLP are independent certified public
accountants with respect to Bertucci's and its subsidiaries within the
meaning of Rule 101 of the Code of Professional Conduct of the American
Institute of Certified Public Accountants ("AICPA") and its
-----
interpretations and rulings thereunder. The historical financial
statements (including the related notes) of Bertucci's contained in the
Offering Memorandum comply in all material respects with the
requirements applicable to a registration statement on Form S-1 under
the Securities Act (except that certain supporting schedules are
omitted);
5
such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods covered thereby and fairly present the financial position of
the entities purported to be covered thereby at the respective dates
indicated and the results of their operations and their cash flows for
the respective periods indicated; and the financial information
contained in the Offering Memorandum under the headings "Summary--
Summary Financial Data of Bertucci's", "Selected Financial Data of
Bertucci's" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Bertucci's" are derived from the
accounting records of Bertucci's and its subsidiaries and fairly present
the information purported to be shown thereby. The other historical
financial and statistical information and data included in the Offering
Memorandum, and pertaining to Bertucci's are, in all material respects,
fairly presented.
(o) Except as set forth in the Offering Memorandum there are no
legal or governmental proceedings pending to which Bertucci's or any of
its subsidiaries is a party or of which any property or assets of
Bertucci's or its subsidiaries is the subject which, singularly or in
the aggregate, if determined adversely to Bertucci's or its subsidiary,
would reasonably be expected to have a Material Adverse Effect; and to
the best knowledge of Bertucci's, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(p) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Securities or suspends the sale
of the Securities in any jurisdiction; no injunction, restraining order
or order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to Bertucci's or its
subsidiaries which would prevent or suspend the issuance or sale of the
Securities or the use of the Preliminary Offering Memorandum or the
Offering Memorandum in any jurisdiction; no action, suit or proceeding
is pending against or, to the best knowledge of Bertucci's, threatened
against or affecting Bertucci's or its subsidiaries before any court or
arbitrator or any governmental agency, body or official, domestic or
foreign, which would reasonably be expected to interfere with or
adversely affect the issuance of the Securities or in any manner draw
into question the validity or enforceability of any of the Transaction
Documents or any action taken or to be taken pursuant thereto; and
Bertucci's has complied with any and all requests by any securities
authority in any jurisdiction for additional information to be included
in the Preliminary Offering Memorandum and the Offering Memorandum.
(q) Neither Bertucci's nor any of its subsidiaries is (i) in
violation of its charter or by-laws, (ii) in default, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument
to which it is a party or by which it is bound or to which any of its
property or assets is subject or (iii) in violation of any law,
ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject other than in the case of clauses
(ii) and (iii), any default or violation that would not reasonably by
expected to have a Material Adverse Effect.
6
(r) Bertucci's and its subsidiaries possess all material
licenses, certificates, authorizations and permits issued by, and have
made all declarations and filings with, the appropriate federal, state
or foreign regulatory agencies or bodies which are necessary or
desirable for the ownership of their properties or the conduct of their
businesses as described in the Offering Memorandum, except where the
failure to possess or make the same would not, singularly or in the
aggregate, have a Material Adverse Effect, and neither Bertucci's nor
any of its subsidiaries have received notification of any revocation or
modification of any such license, certificate, authorization or permit
or has any reason to believe that any such license, certificate,
authorization or permit will not be renewed in the ordinary course.
(s) Bertucci's and its subsidiaries have filed all federal,
state, local and foreign income and franchise tax returns required to be
filed through the date hereof and have paid all taxes due thereon, and
no tax deficiency has been determined adversely to Bertucci's or any of
its subsidiaries which has had (nor does Bertucci's nor any of its
subsidiaries have any knowledge of any tax deficiency which, if
determined adversely to Bertucci's or any of its subsidiaries, would
reasonably be expected to have) a Material Adverse Effect.
(t) Neither Bertucci's nor its subsidiaries is (i) an
"investment company" or a company "controlled by" an investment company
within the meaning of the Investment Company Act of 1940, as amended
(the "Investment Company Act"), and the rules and regulations of the
----------------------
Commission thereunder or (ii) a "holding company" or a "subsidiary
company" of a holding company or an "affiliate" thereof within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(u) The Company and its subsidiaries each maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(v) The Company and its subsidiaries each have insurance
covering its properties, operations, personnel and businesses, which
insurance is in amounts and insures against such losses and risks as are
customary in the businesses in which the Company and its subsidiaries
are engaged. Neither Bertucci's nor its subsidiaries have received
notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made
in order to continue such insurance.
(w) The Company and its subsidiaries each own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service
mark registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the
conduct of their respective businesses; and the conduct of their
respective businesses will not conflict in any material
7
respect with, and Bertucci's and its subsidiaries have not received any
notice of any claim of conflict with, any such rights of others.
(x) The Company and its subsidiaries each have good and
marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real and personal property which are
material to the business of Bertucci's and its subsidiaries, in each
case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except such as (i) do not materially interfere
with the use made and proposed to be made of such property by Bertucci's
and its subsidiaries or (ii) would not reasonably be expected to have a
Material Adverse Effect.
(y) No labor disturbance by or dispute with the employees of the
Company or its subsidiaries exists or, to the best knowledge of
Bertucci's, is contemplated or threatened, in each case that would be
reasonably expected to have a Material Adverse Effect.
(z) No "prohibited transaction" (as defined in Section 406 of
the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
-----
amended from time to time (the "Code")) or "accumulated funding
----
deficiency" (as defined in Section 302 of ERISA) or any of the events
set forth in Section 4043(b) of ERISA (other than events with respect to
which the 30-day notice requirement under Section 4043 of ERISA has been
waived) has occurred with respect to any employee benefit plan of
Bertucci's or its subsidiaries which would reasonably be expected to
have a Material Adverse Effect; each such employee benefit plan is in
compliance in all material respects with applicable law, including ERISA
and the Code; Bertucci's and its subsidiary have not incurred and do not
expect to incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from, any pension plan for which
Bertucci's or its subsidiary would have any liability; and each such
pension plan that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would reasonably
be expected to cause the loss of such qualification.
(aa) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of
any kind of toxic or other wastes or other hazardous substances by, due
to or caused by Bertucci's or its subsidiaries (or, to the best
knowledge of Bertucci's, any other entity (including any predecessor)
for whose acts or omissions Bertucci's or its subsidiary is or could
reasonably be expected to be liable) upon any of the property now or
previously owned or leased by Bertucci's or any of its subsidiaries, or
upon any other property, in violation of any statute or any ordinance,
rule, regulation, order, judgment, decree or permit or which would,
under any statute or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any
liability, except for any violation or liability which would not
reasonably be expected to have, singularly or in the aggregate with all
such violations and liabilities, a Material Adverse Effect; and there
has been no disposal, discharge, emission or other release of any kind
onto such property or into the environment surrounding such property of
any toxic or other wastes or other hazardous substances with respect to
which Bertucci's has knowledge, except for any such disposal, discharge,
emission or other release of any kind which could not reasonably be
expected to have, singularly or in the aggregate with all such
discharges and other releases, a Material Adverse Effect.
8
(bb) Neither Bertucci's nor, to the best knowledge of
Bertucci's, any director, officer, agent, employee or other person
associated with or acting on behalf of Bertucci's has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices Act of
1977; or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(cc) On and immediately after the closing of the Acquisition,
Bertucci's and each of its subsidiaries (after giving effect to the
issuance of the Securities and to the other transactions related thereto
as described in the Offering Memorandum) will be Solvent. As used in
this paragraph, the term "Solvent" means, with respect to a particular
date, that on such date (i) the present fair market value (or present
fair saleable value) of the assets of Bertucci's or its respective
subsidiaries is not less than the total amount required to pay the
probable liabilities of Bertucci's and its subsidiaries on their total
existing debts and liabilities (including contingent liabilities) as
they become absolute and matured, (ii) Bertucci's and its respective
subsidiaries are able to realize upon their assets and pay their debts
and other liabilities, contingent obligations and commitments as they
mature and become due in the normal course of business and (iii)
Bertucci's and its subsidiaries are not engaged in any business or
transaction, and is not about to engage in any business or transaction,
for which its property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in
which Bertucci's is engaged. In computing the amount of such contingent
liabilities at any time, it is intended that such liabilities will be
computed at the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(dd) Except as described in the Offering Memorandum, there are
no outstanding subscriptions, rights, warrants, calls or options to
acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance of,
any shares of capital stock of or other equity or other ownership
interest in Bertucci's or its subsidiaries.
(ee) Neither Bertucci's nor its subsidiaries own any "margin
securities" as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"),
---------------------
and none of the proceeds of the sale of the Securities will be used,
directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the
Securities to be considered a "purpose credit" within the meanings of
Regulation T, U or X of the Federal Reserve Board.
(ff) Except as described in the Offering Memorandum, neither
Bertucci's nor its subsidiaries is a party to any contract, agreement or
understanding with any person that would give rise to a valid claim
against Bertucci's, its subsidiaries or the Initial Purchasers for a
brokerage commission, finder's fee or like payment in connection with
the offering and sale of the Securities.
9
(gg) No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained
in the Preliminary Offering Memorandum or the Offering Memorandum with
respect to Bertucci's has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(hh) Neither Bertucci's nor its subsidiaries do business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Florida Statutes Section 517.075.
(ii) Except as described in the Offering Memorandum, since the
date as of which information is given in the Offering Memorandum, except
as otherwise stated therein, (i) there has been no material adverse
change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs, management or business prospects of Bertucci's,
whether or not arising in the ordinary course of business, (ii)
Bertucci's and its subsidiaries have not incurred any material liability
or obligation, direct or contingent, other than in the ordinary course
of business, (iii) Bertucci's and its subsidiaries have not entered into
any material transaction other than in the ordinary course of business
and (iv) there has not been any change in the capital stock or long-term
debt of Bertucci's and its subsidiaries, or any dividend or distribution
of any kind declared, paid or made by Bertucci's on any class of its
capital stock.
3. Amendment to Section 4. The introductory language of Section 4 is hereby
----------------------
amended to read as follows:
"The Company and the Bertucci's Guarantors agree with each of the Initial
Purchasers:".
3. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4. Counterparts. This Amendment may be executed in one or more counterparts
-------------
(which may include counterparts delivered by telecopier) and, if executed in
more than one counterpart, the executed counterparts shall each be deemed to be
an original, but all such counterparts shall together constitute one and the
same instrument.
10
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Bertucci's
Guarantors and the Initial Purchasers in accordance with its terms.
Very truly yours,
NE RESTAURANT COMPANY, INC.
By /s/ Dennis D. Pedra
-----------------------------
Name: Dennis D. Pedra
Title: President
BERTUCCI'S, INC.
By /s/ Dennis D. Pedra
-----------------------------
Name: Dennis D. Pedra
Title: President
BERTUCCI'S RESTAURANT CORP.
By /s/ Dennis D. Pedra
-----------------------------
Name: Dennis D. Pedra
Title: President
BERTUCCI'S OF ANN ARUNDEL COUNTY, INC.
By /s/ Dennis D. Pedra
-----------------------------
Name: Dennis D. Pedra
Title: President
BERTUCCI'S OF COLUMBIA, INC.
By /s/ Dennis D. Pedra
-----------------------------
Name: Dennis D. Pedra
Title: President
11
BERTUCCI'S OF BALTIMORE COUNTY, INC.
By /s/ Dennis D. Pedra
-----------------------------
Name: Dennis D. Pedra
Title: President
BERTUCCI'S OF BEL AIR, INC.
By /s/ Dennis D. Pedra
-----------------------------
Name: Dennis D. Pedra
Title: President
BERTUCCI'S OF WHITE MARSH, INC.
By /s/ Dennis D. Pedra
-----------------------------
Name: Dennis D. Pedra
Title: President
BERESTCO, INC.
By /s/ Dennis D. Pedra
-----------------------------
Name: Dennis D. Pedra
Title: President
BERTUCCI'S SECURITIES CORP.
By /s/ Dennis D. Pedra
-----------------------------
Name: Dennis D. Pedra
Title: President
SAL & VINNIE'S SICILIAN STEAKHOUSE, INC.
By /s/ Dennis D. Pedra
-----------------------------
Name: Dennis D. Pedra
Title: President
12
Accepted:
CHASE SECURITIES INC.
By /s/ Jeffrey Blumin
----------------------------
Authorized Signatory
BANCBOSTON SECURITIES INC.
By /s/ Steve DeMenna
----------------------------
Authorized Signatory