EXECUTION COPY
THE RESTAURANT COMPANY,
as Issuer,
THE GUARANTORS NAMED THEREIN
and
THE BANK OF NEW YORK,
as Trustee
--------------------------------
Second Supplemental Indenture
Dated as of May 3, 2006
to
Indenture
Dated
as of September 21, 2005
--------------------------------
SECOND SUPPLEMENTAL INDENTURE, dated as of May 3, 2006 (this "SECOND
SUPPLEMENTAL INDENTURE"), by and among THE RESTAURANT COMPANY, a Delaware
corporation (the "COMPANY"), the Guarantors listed on the signature pages hereto
under the heading "Additional Guarantor" (each an "ADDITIONAL GUARANTOR" and
collectively, the "ADDITIONAL GUARANTORS"), the other Guarantors listed on the
signature pages hereto under the heading "Original Guarantors" (the "ORIGINAL
GUARANTORS" and, together with the Additional Guarantors, collectively, the
"GUARANTORS") and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (in such capacity, the "Trustee").
WHEREAS, the Company, the Original Guarantors and the Trustee executed
and delivered an Indenture, dated as of September 21, 2005 (the "INDENTURE"),
providing for the issuance of 10% Senior Notes due 2013 (the "NOTES");
WHEREAS, there are now outstanding under the Indenture, Notes in the
principal amount of $190,000,000;
WHEREAS, each of the Additional Guarantors is a direct wholly-owned
domestic subsidiary of the Company;
WHEREAS, each of the Additional Guarantors constitutes a Restricted
Subsidiary;
WHEREAS, Section 4.18 of the Indenture requires the Company to cause
the Additional Guarantors to execute and deliver to the Trustee this Second
Supplemental Indenture pursuant to which the Additional Guarantors shall
unconditionally guarantee all of the Company's Obligations under the Notes and
the Indenture and shall become a party to the Registration Rights Agreement, in
each case on the terms and conditions of the Second Supplemental Indenture and
on the other terms and conditions set forth herein;
WHEREAS, all conditions and requirements necessary to make this Second
Supplemental Indenture a valid, binding and legal instrument in accordance with
its terms have been performed and fulfilled and the execution and delivery
hereof have been in all respects duly authorized by all necessary parties; and
WHEREAS, the execution and delivery of this Second Supplemental
Indenture has been duly authorized by the parties hereto, and all other acts
necessary to make this Second Supplemental Indenture a valid and binding
supplement to the Indenture effectively amending the Indenture as set forth
herein have been duly taken;
NOW THEREFORE, in consideration of the above premises, it is mutually
covenanted and agreed, for equal and proportionate benefit of all holders of
Notes, as follows:
ARTICLE ONE
Joinder of Additional Guarantors
Section 1.1 AGREEMENT TO GUARANTEE. The Additional Guarantors hereby
agree, jointly and severally with all other Guarantors, to guarantee the
Company's Obligations under the Indenture and the Notes on the terms and subject
to the conditions set forth herein and in Article 10 of the Indenture and to be
bound by all other applicable provisions of the Indenture and the Notes. The
Guarantors agree that the Guarantees set forth in Article 10 of the Indenture,
as supplemented by its agreement to guarantee contained herein or in any other
Guarantee, shall remain in full force and effect and apply to all of the Notes
notwithstanding any failure by the Additional Guarantors to endorse on such
Notes a notation of the Guarantor.
Section 1.2 REGISTRATION RIGHTS AGREEMENT. By its execution of this
Second Supplemental Indenture, each Additional Guarantor hereby (i) agrees that
from and after the date hereof it shall be a party under and the Registration
Rights Agreement as if it were a signatory thereto and shall be bound by all of
the provisions thereof, and (ii) agrees that it shall comply with and be subject
to all the terms, conditions, covenants, agreements and obligations set forth
therein.
Section 1.3 NO RECOURSE AGAINST OTHERS. No direct or indirect
stockholder, employee, officer or director, as such, past, present or future of
the Company, the Original Guarantors or the Additional Guarantors or any
successor entity shall have any personal liability for any Obligations of the
Company, the Original Guarantors or the Additional Guarantors or any successor
entities hereunder, by reason of his, her or its status as such stockholder,
employee, officer or director. Each Holder, by accepting a Note, waives and
releases all such liability, and such waiver and release is part of the
consideration for the issuance of the Notes and this Second Supplemental
Indenture.
ARTICLE TWO
Miscellaneous
Section 2.1 INSTRUMENTS TO BE READ TOGETHER. This Second Supplemental
Indenture is an indenture supplemental to the Indenture, and said Indenture and
this Second Supplemental Indenture shall henceforth be read together.
Section 2.2 CONFIRMATION. The Indenture as amended and supplemented by
this Second Supplemental Indenture is in all respects confirmed and preserved.
Section 2.3 TERMS DEFINED. Capitalized terms used in this Second
Supplemental Indenture and not otherwise defined herein shall have the
respective meanings set forth in the Indenture.
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Section 2.4 HEADINGS. The headings of the Articles and Sections of
this Second Supplemental Indenture have been inserted for convenience of
reference only, and are not to be considered a part hereof and shall in no way
modify or restrict any of the terms and provisions hereof.
Section 2.5 GOVERNING LAW. The laws of the State of New York, without
regard to the principles of conflicts of law, shall govern this Second
Supplemental Indenture.
Section 2.6 COUNTERPARTS. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 2.7 EFFECTIVENESS. The provisions of this Second Supplemental
Indenture will take effect immediately upon its execution and delivery by the
Trustee in accordance with the provisions of the Indenture.
Section 2.8 CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. In
entering into this Second Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture, the Notes and the
Registration Rights Agreement relating to the conduct or affecting the liability
or affording protection to the Trustee, whether or not elsewhere herein so
provided. The Trustee shall not be responsible in any manner for or in respect
of the validity or sufficiency of this Second Supplemental Indenture or for or
in respect of the recitals contained herein, all of which are made by the
Company.
Section 2.9 TRUSTEE DOCUMENTS. On or before the date hereof, the
Company shall deliver to the Trustee pursuant to the Indenture, (a) an Officers'
Certificate and (b) an Opinion of Counsel, in each case related to the execution
of this Second Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the date first written
above.
THE ISSUER:
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THE RESTAURANT COMPANY
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title Secretary
ORIGINAL GUARANTORS:
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THE RESTAURANT COMPANY OF MINNESOTA
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title Secretary
TRC REALTY LLC
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title Secretary
XXXXXXX FINANCE CORP.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title Secretary
ADDITIONAL GUARANTORS:
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WILSHIRE BEVERAGE, INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title President and Secretary
WILSHIRE RESTAURANT GROUP LLC
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title Treasurer
XXXXX XXXXXXXXX PIE SHOPS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title Treasurer
XXXXX XXXXXXXXX WHOLESALERS, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title Treasurer
MACAL INVESTORS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title Treasurer
MCID, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title Treasurer
FIV CORP.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title Treasurer
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THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title Vice President
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