EXHIBIT 10.15
AMENDMENT NO. 8 TO REVOLVING CREDIT AGREEMENT
Dated as of December 6, 2004
This AMENDMENT NO. 8 TO REVOLVING CREDIT AGREEMENT, dated as of
December 6, 2004 (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"),
XXXXXXX MANAGEMENT COMPANY, INC., a Delaware corporation ("PMC"), and XXXXXXX
FINANCE CORP., a Delaware corporation ("PFC", and 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 that the Banks and the Agent agree
to amend certain of the terms of the Credit Agreement;
WHEREAS, the Banks and the Agent have agreed to amend certain of the
terms of the Credit Agreement upon the conditions set forth 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. AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended by deleting clause (b) of the first sentence of Section 5.1.3 in its
entirety and substituting in lieu thereof the following:
"have an expiry date of no later than January 1, 2005."
SS.2. 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 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.
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SS.3. 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 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.4. CONDITIONS TO EFFECTIVENESS. This Amendment shall be effective as
of the date hereof upon the Agent's receipt of an original counterpart signature
to this Amendment, duly executed and delivered by the Borrower, the Guarantors,
the Majority Banks and the Agent.
SS.5. 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.
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(d) Headings or captions used in this Amendment are for
convenience of reference only and shall not define or limit the
provisions hereof.
(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]
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: EVP/CFO
THE RESTAURANT HOLDING
CORPORATION, as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP/CFO
XXXXXXX FINANCE CORP., as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP/CFO
THE RESTAURANT COMPANY OF MINNESOTA,
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP/CFO
TRC REALTY LLC, as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP/CFO
FLEET NATIONAL BANK (f/k/a BankBoston,
N.A.), individually and as Agent
By: /s/ Xxxxxxx X. X'Xxxx
------------------------------------
Name: Xxxxxxx X. X'Xxxx
Title: Director
BANK OF AMERICA, N.A. (f/k/a
Nationsbank, N.A.), individually and as
Syndication Agent
By: /s/ Xxxxxxx X. X'Xxxx
------------------------------------
Name: Xxxxxxx X. X'Xxxx
Title: Director
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. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
