Exhibit 4.04(k)
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DATE: April 6, 1998
TO: Morton's Restaurant Group
ATTN: Thomas J. Baldwin
FAX: 516-627-1898
PHONE: 516-627-1515
FROM: BankBoston, N.A. ("BBNA")
ATTN: Mary M. Scherr, Derivative Confirmations
FAX: 617-434-4284
PHONE: 617-434-4405
RE: EXTENDIBLE SWAP TRANSACTION
[Our Ref: SW56700US/SWN56701US]
The purpose of this letter agreement is to set forth the terms and conditions
of the Transaction entered into between BankBoston, N.A. ("BBNA") and
Morton's Restaurant Group ("Morton's") on the Trade Date specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in
the ISDA Master Agreement specified below.
The definitions and provisions contained in the 1991 ISDA (the
"Definitions"), each as published by the International Swaps and Derivatives
Association, Inc. ("ISDA"), are incorporated into this Confirmation. In the
event of any inconsistency between the Definitions and provisions in this
Confirmation, this Confirmation will govern.
1. This Confirmation evidences a complete binding agreement between you
and us as to the terms of the Transaction to which this Confirmation relates.
In addition, you and we agree to use our best efforts promptly to negotiate,
execute and deliver an agreement in the form of the ISDA Master Agreement
(Multicurrency-Cross Border) (the "ISDA Form") published by ISDA, with such
modifications as you and we shall in good faith agree (such agreement, the
"Agreement"). Upon the execution by you and us of the Agreement, this
Confirmation will supplement, form a part of, and be subject to the Agreement.
All provisions contained or incorporated by reference in the Agreement, upon
its execution, shall govern this Confirmation except as expressly modified
below. Until we execute and deliver the Agreement, this Confirmation shall
supplement, form a part of, and be subject to an agreement in the form of the
ISDA Form as if we had executed an agreement in such form (with a Schedule
thereto which provides that Market Quotation and the Second Method apply for
purposes of Section 6(e) of such agreement) on the Trade Date hereof. In the
event of any inconsistency between this Confirmation and either the ISDA Form
or the Agreement, this Confirmation will govern.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:-
Notional Amount: USD 10,000,000
Trade Date: April 3, 1998
Effective Date: April 7, 1998
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Termination Date: April 7, 2001, subject to adjustment
according to the Modified Following
Business Day convention and to Section 4 herein.
FIXED AMOUNTS:
Fixed Rate Payer: Morton's
Fixed Rate: 5.59%
Fixed Rate Payment Dates The 7th of January, April, July and
October in each year beginning July 7, 1998,
and ending on the Termination Date, subject
to adjustment in accordance with the
Modified Following Business Day convention.
Fixed Rate Day Count
Fraction: Actual/360
FLOATING AMOUNTS:
Floating Player: BBNA
Floating Rate Payment Dates: The 7th of January, April, July and October
in each year beginning July 7, 1998, and
ending on the Termination Date, subject
to adjustment in accordance with the
Modified Following Business Day convention.
Floating Rate for Initial
Calculation Period: 5.6875%
Floating Rate Day Count
Fraction: Actual/360
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Three months
Spread: None
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable
Business Days: New York and London
Business-Day Convention: Modified Following.
Calculation Agent: BBNA
Governing Law: New York law
Documentation: ISDA Master Agreement to be provided by
BBNA.
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3. Relationship Between Parties
Each party represents to the other party that:
(a) Non-Reliance. It is acting for its own account, and it has made its
own independent decisions to enter into this Transaction and as to whether
this Transaction is appropriate or proper for it based upon its own judgment
and upon advice from such advisors as it has deemed necessary. It is not
relying on any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into this Transaction; it
being understood that information and explanations related to the terms and
conditions of this Transaction shall not be considered investment advice or a
recommendation to enter into this Transaction. It has not received from the
other party any assurance or guarantee as to the expected results of this
Transaction.
(b) Evaluation and Understanding. It is capable of evaluating and
understanding (on its own behalf or through independent professional advice),
and understands and accepts, the terms, conditions and risks of this
Transaction. It is also capable of assuming, and assumes, the financial and
other risks of this Transaction.
(c) Status of Parties. The other party is not acting as a fiduciary or an
advisor for it in respect of this Transaction.
(d) Risk Management. It has entered into this Transaction for the purpose
of (i) managing its borrowings or investments, (ii) hedging its underlying
assets or liabilities or (iii) in connection with its line of business.
4. OTHER PROVISION(S)
As long as no Event of Default or Termination Event shall have occurred
and then be continuing, the parties agree that the Floating Rate Payer may
extend the Termination Date of this Transaction by two years and must notify
the Fixed Rate Payer on April 5, 2001, by telephonic notice of its intention
to do so on April 9, 2001, whereupon the obligations of the parties hereunder
shall reflect a revised Termination Date of April 7, 2003, and all other
terms of the Transaction shall remain in effect as detailed above.
5. ACCOUNT DETAILS:
Payments to BBNA: Through the Federal Reserve Bank,
Boston, Routing No. ABA 011000390, for A/C
BBNA, Boston, for credit to Arbitrage
Settlement Account #295032, Attn: Swap
Desk, 01-13-08.
Payments to MORTON'S: PLEASE ADVISE
5. CONTACT INSTRUCTIONS:
BBNA: Swap Desk (Resets/Payments): Tel: (617)434-1321
FAX: (617)434-0505
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Confirmations: Tel: (617)434-4405
FAX: (617)434-4284
MORTON'S: PLEASE ADVISE
Very truly yours,
BANKBOSTON, N.A.
By: /s/ William K. LePard By: /s/ James Mather
------------------------------- ----------------------------------
Name: William K. LePard Name: James Mather
Title: Managing Director Title: Managing Director
Agreed and accepted as of the date first above written:
MORTON'S RESTAURANT GROUP
By: /s/ Thomas J. Baldwin
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Name: Thomas J. Baldwin
Title: EVP & CFO
PLEASE SIGN AND FAX TO:
617-434-4284, ATTN: MARY SCHER
REQUEST CORRECTIONS: 617-434-4405.
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