EXHIBIT 10.12
AMENDMENT NO. 5 TO REVOLVING CREDIT AGREEMENT
Dated as of May 14, 2003
This AMENDMENT NO. 5 TO REVOLVING CREDIT AGREEMENT, dated as of May
14, 2003 (this "Amendment"), amends that certain Revolving Credit Agreement,
dated as of December 22, 1997 (as amended and in effect from time to time, the
"Credit Agreement"), by and among XXXXXXX FAMILY RESTAURANTS, L.P., a Delaware
limited partnership ("Perkins"), THE RESTAURANT COMPANY, a Delaware corporation
("TRC"), XXXXXXX RESTAURANTS, INC., a Minnesota corporation ("PRI"), and
XXXXXXX MANAGEMENT COMPANY, INC., a Delaware corporation ("PMC"), and XXXXXXX
FINANCE CORP., a Delaware corporation (together with TRC, PRI and PMC, the
"Original Guarantors"), FLEET NATIONAL BANK (f/k/a BankBoston, N.A.), a
national banking association and the other lending institutions listed on
Schedule 1 thereto (the "Banks"), FLEET NATIONAL BANK (f/k/a BankBoston, N.A.),
as agent and administrative agent for the Banks (the "Agent"), and BANK OF
AMERICA, N.A. (f/k/a Nationsbank, N.A.), as Syndication Agent (the "Syndication
Agent"). All capitalized terms used herein without definitions shall have the
meanings given such terms in the Credit Agreement.
WHEREAS, pursuant to the Joinder and Amendment No. 2, dated as of
December 20, 1999, by and among Perkins, the Original Guarantors, the Banks,
the Agent and the Syndication Agent, TRC joined the Credit Agreement and the
Loan Documents and agreed to become a Borrower under the Credit Agreement and
to comply with and be bound by all of the terms, conditions and covenants of
the Credit Agreement and Loan Documents applicable to it as a Borrower;
WHEREAS, as of the Merger Date, Perkins, PRI and PMC merged with and
into TRC such that TRC became the sole Borrower under the Credit Agreement (TRC
is hereinafter referred to as the "Borrower");
WHEREAS, pursuant to a Guaranty, dated as of December 20, 1999, by The
Restaurant Holding Corporation ("TRHC") in favor of the Agent and the Banks,
TRHC has guaranteed all of the Borrower's obligations to the Banks and the
Agent under or in respect of the Credit Agreement and the other Loan Documents
and became a Guarantor under the Credit Agreement;
WHEREAS, pursuant to a Guaranty, dated as of September 30, 2000, by
The Restaurant Company of Minnesota ("TRCM") in favor of the Agent and the
Banks, TRCM has guaranteed all of the Borrower's obligations to the Banks and
the Agent under or in respect of the Credit Agreement and the other Loan
Documents and became a Guarantor under the Credit Agreement;
WHEREAS, pursuant to a Guaranty, dated as of September 30, 2000, by
TRC Realty LLC in favor of the Agent and the Banks, TRC Realty LLC has
guaranteed all of the Borrower's obligations to the Banks and the Agent under
or in respect of the Credit Agreement and the other Loan Documents and became a
Guarantor under the Credit Agreement;
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WHEREAS, the Borrower has requested, among other things, that the
Banks and the Agent agree to waive any Event of Default resulting from the
Borrower's failure to comply with the covenant set forth in ss.11.4 of the
Credit Agreement (as in effect immediately prior to giving effect to this
Amendment) for the fiscal quarter ended April 20, 2003;
WHEREAS, the Banks and the Agent are willing, subject to the terms and
conditions set forth herein, to, among other things, waive any Event of Default
resulting from the Borrower's failure to comply with the covenant set forth in
ss.11.4 of the Credit Agreement (as in effect immediately prior to giving
effect to this Amendment) for the fiscal quarter ended April 20, 2003; and
WHEREAS, the parties have agreed to amend the Credit Agreement as
provided herein;
NOW THEREFORE, in consideration of the mutual agreements contained in
the Credit Agreement and herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
SS.1. AMENDMENTS TO CREDIT AGREEMENT.
SS.1.1. DEFINITIONS. Section 1.1 of the Credit Agreement is hereby
amended as follows:
(a) The definition of "Applicable Margin" set forth in ss.1.1 of
the Credit Agreement is hereby amended by deleting the table set forth in such
definition and substituting in lieu thereof the following table:
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Base Rate Eurodollar Rate Loans
Level Leverage Ratio Loans and Letters of Credit
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I <2.75:1 0.50% 2.50%
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II >2.75:1 and 1.00% 3.00%
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<3.50:1
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III >3.50:1 and 1.50% 3.50%
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<3.75:1
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IV >3.75:1 1.75% 3.75%
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(b) The definition of "Consolidated EBITDA" set forth in ss.1.1
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"Consolidated EBITDA. For any period, the sum of (a) the
Consolidated Net Income of the Borrower and its Subsidiaries for such
period, plus (b) income of a non-wholly-owned Subsidiary of the
Borrower which is properly attributable to minority interest and which
has been deducted in the calculation of Consolidated Net Income but
which has not been distributed by such Subsidiary,
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plus (c) Consolidated Total Interest Expense for such period, plus (d)
to the extent deducted in the calculation of Consolidated Net Income,
income tax expense for such period, plus (e) to the extent deducted in
the calculation of Consolidated Net Income, depreciation and
amortization for such period, plus (f) to the extent deducted in the
calculation of Consolidated Net Income and without duplication, other
non-cash charges of the Borrower and its Subsidiaries for such period,
plus (g) to the extent deducted in the calculation of Consolidated Net
Income and without duplication, nonrecurring noncapitalized
transaction expenses relating to the Repurchase and the transactions
contemplated hereby, plus (h) without duplication, to the extent
deducted in the calculation of Consolidated Net Income for such
period, and only to the extent such interest is not paid or payable in
cash during such period, interest on the Discount Notes for such
period, plus (i) without duplication, to the extent deducted in the
calculation of Consolidated Net Income for such period, for purposes
of calculating the financial covenants set forth in ss.11 hereof, up
to (but not exceeding) one million dollars ($1,000,000) in the
aggregate of the Borrower's termination costs in connection with the
Borrower's termination of the airplane lease, dated November 9, 1999,
between TRC Realty LLC and General Electric Capital Corporation."
(c) The definition of "Revolving Credit Commitment" set forth in
ss.1.1 of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
"Revolving Credit Commitment. With respect to each Bank, the
amount set forth on Schedule 1 hereto as the amount of such Bank's
commitment to make Revolving Credit Loans to the Borrower, as the same
may be increased pursuant to ss.21.10 or reduced from time to time; or
if such commitment is terminated pursuant to the provisions hereof,
zero."
(d) The following new definitions are added in alphabetical
order:
"Acceding Lender. See ss.21.10."
"Instrument of Accession. See ss.21.10."
SS.1.2. COMMITMENT FEE. The Credit Agreement is hereby further
amended by deleting ss.2.2 in its entirety and substituting in lieu thereof the
following new ss.2.2:
"2.2. COMMITMENT FEE. The Borrower agrees to pay to the
Agent for the accounts of the Banks in accordance with their
respective Revolving Credit Commitment Percentages a commitment fee at
an annual rate equal to (a) if the Applicable Margin corresponds to
Level I or II in the table set forth in the definition of "Applicable
Margin", one-half of one percent (0.50%), (b) if the Applicable Margin
corresponds to Level III in the table set forth in the definition of
"Applicable Margin", three-quarters of one percent (0.75%) and (c) if
the Applicable Margin corresponds to Level IV in the table set forth
in the definition of "Applicable Margin", one and one-quarter of one
percent (1.25%), in each case on the average daily amount during each
calendar quarter or portion thereof from the Closing Date
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to the Revolving Credit Loan Maturity Date by which the Total
Revolving Credit Commitment exceeds the sum of (i) the Outstanding
amount of Revolving Credit Loans, plus (ii) the Maximum Drawing
Amount, plus (iii) all Unpaid Reimbursement Obligations during such
calendar quarter. The commitment fee shall be payable quarterly in
arrears on the last day of each calendar quarter for the calendar
quarter then ending, with a final payment on the Revolving Credit Loan
Maturity Date or any earlier date on which the Revolving Credit
Commitments shall terminate."
SS.1.3. LEVERAGE RATIO. The Credit Agreement is hereby further
amended by deleting the table set forth in ss.11.1 thereof and substituting in
lieu thereof the following table:
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Period Ratio
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12/31/99 - 10/7/01 3.75:1
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10/8/01 -- 4/21/02 4.50:1
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4/22/02 - 7/14/02 4.40:1
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7/15/02 -- 10/6/02 4.30:1
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10/7/02 -- 12/29/02 4.20:1
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12/30/02 - 12/28/03 4.00:1
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12/29/03 -- 4/18/04 3.50:1
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4/19/04 and thereafter 3.25:1
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SS.1.4. INTEREST COVERAGE RATIO. The Credit Agreement is hereby
further amended by deleting the table set forth in ss.11.4 thereof and
substituting in lieu thereof the following table:
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Period Ratio
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12/31/99 - 12/30/01 2.50:1
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12/31/01 - 12/29/02 2.25:1
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12/30/02 - 12/28/03 2.25:1
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12/29/03 and thereafter 2.75:1
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SS.1.5. CAPITAL EXPENDITURES. The Credit Agreement is hereby further
amended by deleting ss.11.5 thereof and substituting in lieu thereof the
following new ss.11.5:
"11.5. CAPITAL EXPENDITURES. The Borrower will not make,
and will not permit any of its Subsidiaries to make, Capital
Expenditures during any fiscal year that exceed, in the aggregate, an
amount equal to the lesser of (a) Consolidated EBITDA for such fiscal
year minus Consolidated Total Interest Expense for such fiscal year
and (b) (i) for the fiscal year ending December 29, 2002, $16,000,000,
(ii) for the fiscal year ending December 28, 2003, $13,000,000, and
(iii) for the fiscal year ending December 26, 2004, $18,000,000.
Notwithstanding the foregoing and subject to the proviso set forth at
the end of this sentence, for purposes of determining compliance with
this ss.11.5 for any fiscal year, "Capital Expenditures" shall not
include Capital Expenditures made during such fiscal year with the
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proceeds of any asset sale within one hundred eighty (180) days from
the date of such asset sale; provided that the aggregate amount of
Capital Expenditures so excluded shall not exceed (A) $10,000,000 for
the period from the Closing Date to the Revolving Credit Loan Maturity
Date and (B) $3,000,000 in any fiscal year."
SS.1.6. ACCEDING LENDERS. The Credit Agreement is hereby further
amended by adding the following new ss.21.10 in the correct numerical sequence
thereof and by adding Exhibit E thereto in the form of Exhibit A hereto:
"21.10. ACCEDING LENDERS. Except as otherwise provided
herein and only if the Leverage Ratio for each of the previous two
consecutive fiscal quarters is less than 3.00:1, one or more
commercial banks, other financial institutions or other Persons
approved by the Agent (each such commercial bank, other financial
institution or other Person, an "Acceding Lender") may, at the request
of the Borrower and with the consent of the Agent, become a party to
this Credit Agreement by entering into an Instrument of Accession in
substantially the form of Exhibit E hereto (an "Instrument of
Accession") with the Borrower, the Guarantors and the Agent and
assuming thereunder Revolving Credit Commitment(s) in an amount to be
agreed upon by the Borrower, the Guarantors, such Acceding Lender and
the Agent, to make Revolving Credit Loans and participate in the risk
relating to Letters of Credit, as the case may be, pursuant to the
terms hereof, and the Total Revolving Credit Commitment shall
thereupon be increased by the amount of such Acceding Lender's
Revolving Credit Commitment; provided that:
(i) the Agent shall have given its prior written
consent to such accession in its capacity as Agent, such
consent not to be unreasonably withheld; and
(ii) in no event shall the Total Revolving Credit
Commitment be increased under any one or more of such
Instruments of Accession so as to exceed, in the aggregate,
$35,000,000 minus any previously effected reduction of the
Total Revolving Credit Commitment pursuant to ss.2.3 made
after May 14, 2003. On the effective date specified in any
Instrument of Accession, Schedule 1 hereto shall be deemed to
be amended to reflect (A) the name, address, Revolving Credit
Commitment, and Revolving Credit Commitment Percentage of
such Acceding Lender, (B) the Total Revolving Credit
Commitment as increased by such Acceding Lender's Revolving
Credit Commitments, and (C) the changes to the other Bank's
respective Revolving Credit Commitment Percentage and any
changes to the other Bank's respective Revolving Credit
Commitments (in the event such Bank is also the Acceding
Lender) resulting from such assumption and such increased
Total Revolving Credit Commitment."
SS.1.7. SCHEDULE 1. At the Borrower's request in order to reduce the
Total Revolving Credit Commitment as provided in such amended Schedule 1, the
Credit Agreement is hereby further amended by deleting Schedule 1 attached
thereto and substituting in lieu thereof the Schedule 1 attached hereto.
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SS.2. CONFIRMATORY WAIVER. (a) Subject to the satisfaction of the
conditions set forth in ss.5, the Agent and the Banks confirm that they will
have waived, by the consequent amendment to ss.11.4 of the Credit Agreement as
contemplated hereby, any Event of Default resulting from the Borrower's failure
to comply with the covenant set forth in ss.11.4 of the Credit Agreement (as in
effect immediately prior to giving effect to this Amendment) for the fiscal
quarter ended April 20, 2003.
(b) The waiver referred to in ss.2(a) shall not extend to (i) any
failure of the Borrower to comply with ss.11.4 of the Credit Agreement after
giving effect to this Amendment and (ii) any other Default or Event of Default
or other departure or deviation from the terms and conditions of the Credit
Agreement not expressly referred to in ss.2(a).
SS.3. REPRESENTATIONS AND WARRANTIES. The Borrower and each of the
Guarantors jointly and severally represent and warrant to the Banks and the
Agent as follows:
(a) Representations and Warranties in Credit Agreement. The
representations and warranties of the Borrower and the Guarantors contained in
the Credit Agreement, each as amended by this Amendment, (i) were true and
correct in all material respects when made, and (ii) except to the extent such
representations and warranties by their terms are made solely as of a prior
date, continue to be true and correct in all material respects on the date
hereof.
(b) Authority, Etc. The execution and delivery by the Borrower
and the each of the Guarantors of this Amendment and the performance by the
Borrower and each of the Guarantors of all of their agreements and obligations
under this Amendment and the Credit Agreement as amended hereby (i) are within
the corporate authority of the Borrower and each of the Guarantors, (ii) have
been duly authorized by all necessary corporate proceedings by the Borrower and
each of the Guarantors, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to which the
Borrower or any of the Guarantors is subject or any judgment, order, writ,
injunction, license or permit applicable to the Borrower or any of the
Guarantors, and (iv) do not conflict with any provision of any corporate
charter or by-laws of, or any agreement or other instrument binding upon, the
Borrower or any Guarantor.
(c) Enforceability of Obligations. This Amendment, and the Credit
Agreement as amended hereby, constitute the legal, valid and binding
obligations of the Borrower and each of the Guarantors enforceable against each
such Person in accordance with their respective terms. Immediately prior to and
immediately after and after giving effect to this Amendment, no Default or
Event of Default exists under the Credit Agreement or any other Loan Document.
SS.4. AFFIRMATION OF BORROWER AND THE GUARANTORS.
(a) The Borrower hereby affirms its absolute and unconditional
promise to pay to each Bank and the Agent the Obligations due under the Notes,
the Credit Agreement as amended hereby, and the other Loan Documents, at the
times and in the amounts provided for therein. The Borrower confirms and agrees
that (i) the Obligations of the Borrower to
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the Banks and the Agent under the Credit Agreement as amended hereby are
secured by and entitled to the benefits of the Security Documents and (ii) all
references to the term "Credit Agreement" in the Security Documents shall
hereafter refer to the Credit Agreement as amended hereby.
(b) Each of the Guarantors hereby acknowledges that it has read
and is aware of the provisions of this Amendment. Each of the Guarantors hereby
reaffirms its absolute and unconditional guaranty of the Borrower's payment and
performance of the Obligations to the Banks and the Agent under the Credit
Agreement, as amended hereby. Each of the Guarantors hereby confirms and agrees
that the Guaranty shall hereafter constitute a guaranty of the Obligations
under the Credit Agreement as amended hereby.
SS.5. CONDITIONS TO EFFECTIVENESS. This Amendment shall be
effective as of the date hereof upon the satisfaction of each of the following
conditions precedent:
(a) The Agent shall have received an original counterpart
signature to this Amendment, duly executed and delivered by the Borrower, the
Guarantors, the Banks and the Agent; and
(b) The Borrower shall have paid to the Agent, for the pro rata
account of each Bank that executes and delivers a copy of this Amendment to the
Agent on or prior to 5:00 p.m. (Eastern Standard Time) on May 14, 2003, a
non-refundable amendment fee in an amount equal to thirty-seven and one-half
hundredths of one percent (0.375%) on such Bank's Revolving Credit Commitment
(after giving effect to this Amendment).
SS.6. MISCELLANEOUS PROVISIONS. (a) Except as otherwise expressly
provided by this Amendment, all of the terms, conditions and provisions of the
Credit Agreement shall remain the same. It is declared and agreed by each of
the parties hereto that the Credit Agreement, as amended hereby, shall continue
in full force and effect, and that this Amendment and the Credit Agreement
shall be read and construed as one instrument. Nothing contained in this
Amendment (i) shall be construed to imply a willingness on the part of the
Banks or the Agent to grant any similar or other future amendment of any of the
terms and conditions of the Credit Agreement or the other Loan Documents and
(ii) shall in any way prejudice, impair or effect any rights or remedies of the
Banks and the Agent under the Credit Agreement or the other Loan Documents.
(b) THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT
UNDER SEAL AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
(c) 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.
(d) Headings or captions used in this Amendment are for
convenience of reference only and shall not define or limit the provisions
hereof.
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(e) The Borrower hereby agrees to pay to the Agent, on demand by
the Agent, all reasonable out-of-pocket costs and expenses incurred or
sustained by the Agent in connection with the preparation of this Amendment
(including reasonable legal fees and expenses).
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
an agreement under seal as of the date first written above.
THE RESTAURANT COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT &
CHIEF FINANCIAL OFFICER
THE RESTAURANT HOLDING
CORPORATION, as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT &
CHIEF FINANCIAL OFFICER
XXXXXXX FINANCE CORP., as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: VICE PRESIDENT & TREASURER
THE RESTAURANT COMPANY OF
MINNESOTA, as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: VICE PRESIDENT & TREASURER
TRC REALTY LLC, as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: VICE PRESIDENT & TREASURER
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FLEET NATIONAL BANK (f/k/a BankBoston,
N.A.), individually and as Agent
By: /s/ Xxxxxx X. XxxXxxxxxx
--------------------------------------
Name: Xxxxxx X. XxxXxxxxxx
Title: Director
BANK OF AMERICA, N.A. (f/k/a
Nationsbank, N.A.), individually and as
Syndication Agent
By: /s/ Chitt Swamidasan
--------------------------------------
Name: Chitt Swamidasan
Title: Principal
AMSOUTH BANK (f/k/a First American
National Bank)
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Portfolio Manager
SCHEDULE 1
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REVOLVING CREDIT
REVOLVING CREDIT COMMITMENT
BANK COMMITMENT PERCENTAGE
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FLEET NATIONAL BANK $9,000,000 36%
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attn: Xxxxxx X. XxxXxxxxxx
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BANK OF AMERICA, N.A. $8,500,000 34%
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attn: Chitt Swamidasan, CFA
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SUNTRUST BANK $4,500,000 18%
000 Xxxxxxxxx, X.X.
Xxxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attn: Xxxxxxx Xxxxxxx
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AMSOUTH BANK $3,000,000 12%
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attn: Xxxxxxxxx X. Xxxxxx
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TOTAL $25,000,000 100%
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EXHIBIT A TO AMENDMENT NO. 5 TO REVOLVING CREDIT AGREEMENT
EXHIBIT E
FORM OF
INSTRUMENT OF ACCESSION
Dated as of [________ __, 200_]
Reference is hereby made to the Revolving Credit Agreement, dated as
of December 22, 1997 (as amended, modified, supplemented or restated and in
effect from time to time, the "Credit Agreement"), by and among XXXXXXX FAMILY
RESTAURANTS, L.P., a Delaware limited partnership, THE RESTAURANT COMPANY, a
Delaware corporation ("Borrower"), XXXXXXX RESTAURANTS, INC., a Minnesota
corporation, and XXXXXXX MANAGEMENT COMPANY, INC., a Delaware corporation, and
XXXXXXX FINANCE CORP., a Delaware corporation, FLEET NATIONAL BANK (f/k/a
BankBoston, N.A.), a national banking association and the other lending
institutions listed on Schedule 1 thereto (the "Banks"), FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.), as agent and administrative agent for the Banks (the
"Agent"), and BANK OF AMERICA, N.A. (f/k/a Nationsbank, N.A.), as Syndication
Agent. Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Credit Agreement.
Pursuant to the terms of Section 21.10 of the Credit Agreement, the
Borrower, the Guarantors, the Agent and [ ] (the "Acceding Lender") hereby
agree as follows:
1. Subject to the terms and conditions of this Accession
Agreement, the Acceding Lender hereby agrees to assume, without recourse to the
Banks or the Agent, on the Effective Date (as defined below), a Revolving
Credit Commitment of [$____________], in accordance with the terms and
conditions set forth in the Credit Agreement. Upon such assumption, the Total
Revolving Credit Commitment shall be automatically increased by the amount of
such assumption. The Acceding Lender hereby agrees to be bound by, and hereby
requests the agreement of the Borrower, the Guarantors and the Agent that the
Acceding Lender shall be entitled to the benefits of, all of the terms,
conditions and provisions of the Credit Agreement as if the Acceding Lender had
been one of the lending institutions originally executing the Credit Agreement
as a Bank; provided that nothing herein shall be construed as making the
Acceding Lender liable to the Borrower or the Banks in respect of any acts or
omissions of any party to the Credit Agreement or in respect of any other event
occurring prior to the Effective Date (as defined below) of this Accession
Agreement.
2. The Acceding Lender (a) represents and warrants that (i) it
is duly and legally authorized to enter into this Accession Agreement, (ii) the
execution, delivery and performance of this Accession Agreement do not conflict
with any provision of law or of the charter or by-laws of the Acceding Lender,
or of any agreement binding on the
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Acceding Lender, (iii) all acts, conditions and things required to be done and
performed and to have occurred prior to the execution, delivery and performance
of this Accession Agreement, and to render the same the legal, valid and
binding obligation of the Acceding Lender, 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; (b) confirms that it has received a
copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to ss.ss.8.4 and 9.4 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Accession Agreement; (c) agrees that
it will, independently and without reliance upon the Banks or the Agent 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; (d) represents and warrants that it is eligible to
become a party to this Accession Agreement under the terms and conditions of
the Credit Agreement; (e) 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; (f)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank; and acknowledges that it has made arrangements with
the Agent satisfactory to the Acceding Lender with respect to its pro rata
share of Letter of Credit Fees in respect of outstanding Letters of Credit.
3. The Acceding Lender hereby requests that the Borrower issue a
new Revolving Credit Note payable to the order of the Acceding Lender in the
principal amount of [$___________]. In the event the Acceding Lender is also a
Bank party to the Credit Agreement immediately prior to the Effective Date (as
defined below) of this Accession Agreement, that such Acceding Lender agrees to
deliver to the Borrower, as soon as reasonably practicable after the Effective
Date (as defined below), the prior Revolving Credit Note held by it prior to
the issuance of the new Revolving Credit Note, marked "Cancelled".
4. The effective date for this Accession Agreement shall be
[________ __, 200_] (the "Effective Date"). Following the execution of this
Accession Agreement by the Borrower, the Guarantors and the Acceding Lender, it
will be delivered to the Agent for acceptance. Upon acceptance by the Agent,
Schedule 1 to the Credit Agreement shall thereupon be replaced as of the
Effective Date by the Schedule 1 annexed hereto. The Agent shall thereafter
notify the other Banks of the revised Schedule 1 and the arrangements proposed
to ensure that the outstanding amount of Loans made by each Bank will
correspond to its respective Revolving Credit Commitment Percentage after
giving affect to the accession contemplated hereby.
5. Upon such acceptance, from and after the Effective Date, the
Borrower shall make all payments in respect of the Acceding Lender's Revolving
Credit Commitment (including payments of principal, interest, fees and other
amounts) to the Agent for the account of the Acceding Lender.
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6. THIS ACCESSION AGREEMENT SHALL FOR ALL PURPOSES BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICTS OF LAW).
7. This Accession Agreement 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 Accession Agreement to be executed on its behalf by
its officer thereunto duly authorized, to take effect as of the date first
above written.
THE RESTAURANT COMPANY, as
Borrower
By:
---------------------------------------
Name
Title:
THE RESTAURANT HOLDING
CORPORATION, as Guarantor
By:
---------------------------------------
Name:
Title:
XXXXXXX FINANCE CORP., as Guarantor
By:
---------------------------------------
Name:
Title:
THE RESTAURANT COMPANY OF
MINNESOTA, as Guarantor
By:
---------------------------------------
Name:
Title:
TRC REALTY LLC, as Guarantor
By:
---------------------------------------
Name:
Title:
-5-
FLEET NATIONAL BANK (f/k/a
BankBoston, N.A.), as Agent
By:
--------------------------------------
Name
Title:
[INSERT NAME OF ACCEDING LENDER]
By:
--------------------------------------
Name
Title:
SCHEDULE 1 TO INSTRUMENT OF ACCESSION
BANKS AND COMMITMENTS
