FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This FIFTH AMENDMENT (this "Amendment"), dated as of December 31, 1996, by
and among MORTON'S RESTAURANT GROUP, INC., a Delaware corporation (formerly
known as Quantum Restaurant Group, Inc.) having its principal place of business
at Suite 210, 3333 New Hyde Park Road, New Hyde Park, New York 11042 (referred
to below and in the Credit Agreement, as defined below, as "Quantum"), THE
PEASANT RESTAURANTS, INC., a Delaware corporation having its principal place of
business at 489 Peachtree Street, N. E., Atlanta, Georgia 30308 ("Peasant"),
MORTON'S OF CHICAGO, INC., an Illinois corporation with its principal place of
business at 350 West Hubbard Street, Chicago, Illinois 60610 ("Morton's")
(Quantum, Peasant and Morton's are referred to herein collectively as the
"Borrowers", and each, individually, as a "Borrower"), THE FIRST NATIONAL BANK
OF BOSTON, as Agent (the "Agent") for the Lenders (as defined in the Credit
Agreement referred to below), THE FIRST NATIONAL BANK OF BOSTON ("FNBB") in its
individual capacity as a Lender, and IMPERIAL BANK, as a Lender, amends (a) the
Second Amended and Restated Revolving Credit and Term Loan Agreement dated as of
June 19, 1995, as amended by the First Amendment dated as of February 14, 1996,
the Second Amendment dated as of March 5, 1996, a letter agreement dated as of
May 2, 1996, the Third Amendment dated as of June 28, 1996, the Fourth Amendment
dated as of December 26, 1996, and as the same may be further amended, modified,
or supplemented from time to time (the "Credit Agreement"), by and among the
Borrowers, the Agent, and the Lenders, and (b) each of the Security and Pledge
Agreements (as defined in the Credit Agreement). Capitalized terms used but not
defined herein shall have the meanings set forth in the Credit Agreement.
WHEREAS, the Agent, the Borrowers, and the Lenders, subject to the terms
and provisions hereof, have agreed to so amend the Credit Agreement and the
Security and Pledge Agreements to permit the Lenders to hold differing
percentages of the term loan facility and the revolving credit facility provided
for in the Credit Agreement;
NOW THEREFORE, the parties hereto hereby agree as follows:
ss.1. Amendments to Credit Agreement. Subject to the satisfaction of the
conditions precedent set forth in ss.4 hereof, the Credit Agreement is hereby
amended as follows:
ss.1.1. New Definitions. Section 1 of the Credit Agreement is hereby
amended by adding the following new definitions to Section 1 in the appropriate
places in the alphabetical sequence:
"Term Loan Percentage. With respect to each Lender, the percentage set
forth beside its name below (subject to adjustment upon any assignments
permitted by ss.17 hereof):"
"Lender Percentage"
------- -----------
"FNBB 75%"
"Imperial Bank" 25%"
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"Total Percentage. With respect to each Lender, that portion of the Term
Loan and Revolving Credit Commitment (or, if the Revolving Credit Commitments
are terminated, Revolving Credit Loans, Letter of Credit Participations in
Unpaid Reimbursement Obligations and participating interests in the risk
relating to outstanding Letters of Credit) held by such Lender as a percentage
of the sum of (a) the outstanding principal amount of the Term Loan, plus (b)
the greater of (i) the Revolving Credit Commitment Amount or (ii) the
outstanding principal amount of the Revolving Credit Loans, Unpaid Reimbursement
Obligations and the Maximum Drawing Amount."
ss.1.2. Changes in Certain Definitions. Section 1 of the Credit Agreement
is hereby amended as follows:
(a) by amending the definition of Majority Lenders to read as follows:
"Majority Lenders. As of any date, the Lenders representing at least fifty
percent (50%) of the Lenders on such date (calculated by number of Lenders
without regard to the Loans, Commitment Percentages, or Term Loan Percentages
thereof) and whose aggregate Total Percentages aggregate to at least fifty-one
percent (51%); provided, however, if at any time when there are less than three
(3) Lenders, Majority Lenders shall mean the Lenders whose aggregate Total
Percentages aggregate to at least fifty-one percent (51%)."
(b) by amending the table contained in the definition of Commitment
Percentage to read as follows:
"Lender Percentage"
------- -----------
" FNBB 75%"
"Imperial Bank" 25%"
(c) by deleting from the definition of Revolving Credit Commitment the
second sentence thereof.
ss.1.3. Term Loan. Section 2.6 of the Credit Agreement is hereby amended as
follows:
(a) by replacing in every instance the word "Commitment" with the words
"Term Loan"; and
(b) by inserting in ss.2.6(c) after every instance of the phrase "ratable
account of the Lenders" the phrase "in accordance with each Lender's Term Loan
Percentage".
ss.1.4. Payments. Section 4.2 of the Credit Agreement is hereby amended as
follows:
(a) by deleting the word "ratably" from line 11; and
(b) by inserting after the phrase "Commitment Percentage" the phrase "or,
as the case may be, applicable Term Loan Percentage".
ss.1.5. Failure to Make Funds Available. Section 4.10 of the Credit
Agreement is hereby amended as follows:
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(a) by deleting in ss.4.10(a) the words "of the Loans requested" and
replacing them with the phrase "of the Revolving Credit Loans requested and/or
its Term Loan Percentage of the Term Loan, as applicable";
(b) by deleting in ss.4.10(b) the words "of the Loans" in line 3 and
replacing them with the phrase "of the Revolving Credit Loans and/or the Term
Loan Percentage of the Term Loan, as applicable";
(c) by inserting in clause (ii) of ss.4.10(b) after the word "borrowing"
the phrase "with respect to Revolving Credit Loans and/or Term Loan Percentage
of such borrowing with respect to the Term Loan, as applicable,"; and
(d) by inserting in clause (iii) of ss.4.10(b) after the word "borrowing"
the phrase " with respect to Revolving Credit Loans and/or Term Loan Percentage
of such borrowing with respect to the Term Loan, as applicable,".
ss.1.6. Setoff. Section 12 of the Credit Agreement is hereby amended as
follows:
(a) by inserting in ss.12(b) before the words "Loan", "Loans", and "Notes",
in each instance, the phrase "Revolving Credit";
(b) by inserting inss.12(c) after the word "may" in line 4 the phrase ",but
only with the consent of the Majority Lenders,"; and
(c) by replacing in ss.12(d)(ii) the phrase "pro rata;" with the phrase
"ratably in accordance with the amount of such Obligations of such type as shall
be owing to the respective Lenders;".
ss.1.7. Payments to Agent. Section 13.5.1 of the Credit Agreement is hereby
amended by replacing the phrase "pro rata" with the word "applicable".
ss.1.8. Indemnity. Section 13.7 of the Credit Agreement is hereby amended
by inserting after the words "ratably agree hereby" the phrase ",according to
each Lender's Total Percentage,".
ss.1.9. Agent as Lender. The text of Section 13.8 of the Credit Agreement
is hereby amended to read as follows:
"Agent as Lender. In its individual capacity, FNBB shall have the same
obligations and the same rights, powers, and privileges in respect of its
lending commitments and the Loans made by it, and as the holder of any of the
Notes and as the purchaser of any Letters of Credit Participations, as it would
have if it were not also the Agent."
ss.1.10. Duties in the Case of Enforcement. Section 13.11 of the Credit
Agreement is hereby amended by inserting after the phrase "hereby agreeing
ratably" the phrase ",according to each Lender's Total Percentage,".
ss.1.11. Assignment. Section 17(a) of the Credit Agreement is hereby
amended as follows:
(a) by deleting the words "a portion of its" in the third line thereof and
replacing them with the words "portions of its Term Loan Percentage,";
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(b) by deleting the words "same portion" and replacing them with the words
"related respective portions";
(c) by replacing the text of clause (i) of such subsection with the text
"each such assignment shall be of a constant, and not a varying, percentage of
all the assignor's rights and obligations in respect of the Revolving Credit
Commitment and the Revolving Credit Loans (and the risk relating to Letters of
Credit), or the Term Loan, as the case may be, under this Agreement;"; and
(d) by replacing the word "and" in clause (ii) of such subsection with the
phrase "and/or (as the case may be)".
ss.1.12. Participations. Section 17(e) of the Credit Agreement is hereby
amended by inserting after the phrase "Revolving Credit Commitment" the phrase "
or Term Loan portion".
ss.1.13. Consents, Amendments, Waivers, Etc.. Section 21 of the Credit
Agreement is hereby amended as follows:
(a) by inserting in clause (d) thereof after the words "Majority Lenders"
the added words " or the definition of Total Percentage hereunder";
(b) by inserting in clause (d) thereof after the words "Commitment
Percentage" the words ", Term Loan Percentage, Total Percentage"; and
(c) by inserting in clause (f) thereof after the words "Commitment
Percentage" the words ", Term Loan Percentage or Total Percentage".
ss.1.14. Exhibit F. Exhibit F of the Credit Agreement is hereby deleted in
its entirety and replaced by the Exhibit F attached hereto.
ss.2. Amendment to Security and Pledge Agreements. Subject to the
satisfaction of the conditions precedent set forth in ss.4 hereof, each of the
Security and Pledge Agreements is hereby amended by inserting in ss.17 of each
such Security and Pledge Agreement after the phrase "its ratable share of such
payments" the phrase "in accordance with Section 12(d) of the Credit Agreement".
ss.3. Representations and Warranties. The Borrowers hereby represent and
warrant to the Agent and the Lenders as follows:
(a) Representations and Warranties in Credit Agreement. Except as
specified in writing by the Borrowers to the Agent with respect to the
subject matter of this Amendment prior to the execution and delivery
hereof by the Agent and the Lenders, the representations and
warranties of the Borrowers contained in the Credit Agreement were
true and correct in all material respects when made and continue to be
true and correct in all material respects on the date hereof, except,
in each case to the extent of changes resulting from transactions
contemplated or permitted by the Loan Documents and this Amendment and
changes occurring in the ordinary course of business which singly or
in the aggregate are not materially adverse, and to the extent that
such representations and warranties relate expressly to an earlier
date.
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(b) Authority, No Conflicts, Enforceability of Obligations, Etc. Each of
the Borrowers hereby confirms that the representations and warranties
of the Borrowers contained in ss.ss.6.1, 6.3 and 6.4 of the Credit
Agreement are true and correct on and as of the date hereof as if made
on the date hereof, treating this Amendment, the Credit Agreement as
amended hereby, and the other Loan Documents as amended hereby, as
"Loan Documents" for the purposes of making said representations and
warranties.
ss.4. Conditions to Effectiveness. The effectiveness of this Amendment
shall be subject to the delivery to the Agent and the Lenders by (or on behalf
of) each of the Borrowers or the Guarantors, as the case may be,
contemporaneously with the execution hereof, of each of the following, each in
form and substance satisfactory to the Agent and the Lenders:
(a) this Amendment signed by each of the Borrowers, the Guarantors, the
Agent, and the Lenders;
(b) that certain Assignment and Acceptance to be entered into
contemporaneously herewith between FNBB and Heller Financial with
respect to a certain portion of the Term Loan, with the written
consent of the Agent and the Borrowers with respect thereto;
(c) such evidence as the Agent may reasonably request such that the Agent
shall be satisfied that the representations and warranties contained
in ss.2 hereof are true and correct on and as of date hereof; and
(d) such other certificates, documents, or instruments with respect to
this Amendment, as the Agent or the Lenders may reasonably request.
ss.5. No Other Amendments or Waivers; Execution in Counterparts. Except as
otherwise expressly provided by this Amendment, all of the terms, conditions and
provisions of the Credit Agreement, the Security and Pledge Agreements, and the
other Loan Documents shall remain in full force and effect. Each of the
Borrowers confirms and agrees that the Obligations of the Borrowers to the
Lenders under the Loan Documents, as amended and supplemented hereby, are
secured by, guarantied under, and entitled to the benefits, of the Security
Documents. The Borrowers, the Guarantors, the Agent and the Lenders hereby
acknowledge and agree that all references to the Credit Agreement, the Security
and Pledge Agreements, and the Obligations thereunder contained in any of the
Loan Documents shall be references to the Credit Agreement, the Security and
Pledge Agreements, and the Obligations, as amended hereby and as the same may be
amended, modified, supplemented, or restated from time to time. The Security
Documents and the perfected first priority security interests of the Lenders
thereunder shall continue in full force and effect, and the collateral security
and guaranties provided for in the Security Documents shall not be impaired by
this Amendment. This Amendment may be executed in any number of counterparts,
but all such counterparts shall together constitute but one instrument. In
making proof of this Amendment it shall not be necessary to produce or account
for more than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
ss.6. Governing Law. This Amendment shall be construed according to and
governed by the internal laws of the Commonwealth of Massachusetts without
reference to principles of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
The Borrowers:
MORTON'S RESTAURANT GROUP, INC.
THE PEASANT RESTAURANTS, INC.
MORTON'S OF CHICAGO, INC.
By: /s/ THOMAS J. BALDWIN
--------------------------------------
Name: Thomas J. Baldwin
Title: Senior Vice President - Finance
and CFO
THE FIRST NATIONAL BANK OF BOSTON,
for itself and as Agent
By: _____________________________________
Name:____________________________________
Title:___________________________________
IMPERIAL BANK
By: _____________________________________
Name:____________________________________
Title:___________________________________
Consented and agreed to, by each of
THE GUARANTORS (as defined in the
Credit Agreement)
By: /s/ THOMAS J. BALDWIN
--------------------------------------
Name: Thomas J. Baldwin
Title: Senior Vie President - Finance
and CFO for each of the Guarantors
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
The Borrowers:
MORTON'S RESTAURANT GROUP, INC.
THE PEASANT RESTAURANTS, INC.
MORTON'S OF CHICAGO, INC.
By: _____________________________________
Name:____________________________________
Title:___________________________________
THE FIRST NATIONAL BANK OF BOSTON,
for itself and as Agent
By: /s/ DEBRA ZURKA
--------------------------------------
Name: Debra Zurka
Title: Vice President
IMPERIAL BANK
By: _____________________________________
Name:____________________________________
Title:___________________________________
Consented and agreed to, by each of
THE GUARANTORS (as defined in the
Credit Agreement)
By: _____________________________________
Name:____________________________________
Title:___________________________________
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
The Borrowers:
MORTON'S RESTAURANT GROUP, INC.
THE PEASANT RESTAURANTS, INC.
MORTON'S OF CHICAGO, INC.
By: _____________________________________
Name:____________________________________
Title:___________________________________
THE FIRST NATIONAL BANK OF BOSTON,
for itself and as Agent
By: _____________________________________
Name:____________________________________
Title:___________________________________
IMPERIAL BANK
By: /s/ Dianne H. Russell
--------------------------------------
Name: Dianne H. Russell
Title: Senior Vice President and Manager
Consented and agreed to, by each of
THE GUARANTORS (as defined in the
Credit Agreement)
By: _____________________________________
Name:____________________________________
Title:___________________________________