THE RESTAURANT COMPANY,
as Issuer,
THE GUARANTORS NAMED THEREIN
and
THE BANK OF NEW YORK,
as Trustee
--------------------------------
First Supplemental Indenture
Dated as of April 28, 2006
to
Indenture
Dated
as of September 21, 2005
--------------------------------
FIRST SUPPLEMENTAL INDENTURE, dated as of April 28, 2006 (this "FIRST
SUPPLEMENTAL INDENTURE"), by and among THE RESTAURANT COMPANY, a Delaware
corporation (the "COMPANY"), the Guarantors (as defined in the Indenture (as
hereinafter defined)) and THE BANK OF NEW YORK, a New York banking corporation,
as trustee (in such capacity, the "TRUSTEE").
WHEREAS, the Company, the 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, Section 9.01 of the Indenture provides that the Company, the
Guarantors and the Trustee may amend, modify, waive or supplement provisions of
the Indenture without the consent of any holders to, among other things, cure
any ambiguity, defect or inconsistency in the Indenture;
WHEREAS, the Company and the Guarantors desire to amend the definition
of "Attributable Debt" set forth in the Indenture to cure a defect and an
inconsistency in the Indenture; and
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been duly authorized by the parties hereto, and all other acts
necessary to make this First 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
Amendments to the Indenture
Section 1.1 Amendments to Exhibit A-1 and Exhibit B-1.
The definition of the term "Attributable Debt" in Section 1.01 of the
Indenture is hereby amended in its entirety to read as follows:
"Attributable Debt" in respect of a sale and leaseback transaction
occurring on or after the Issue Date means, at the time of
determination, the present value (discounted at the rate of interest
implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback
transaction (including any period for which such lease has been
extended or may, at the option of the lessor, be extended).
ARTICLE TWO
Miscellaneous
Section 2.1 INSTRUMENTS TO BE READ TOGETHER. This First Supplemental
Indenture is an indenture supplemental to the Indenture, and said Indenture and
this First Supplemental Indenture shall henceforth be read together.
Section 2.2 CONFIRMATION. The Indenture as amended and supplemented by
this First Supplemental Indenture is in all respects confirmed and preserved.
Section 2.3 TERMS DEFINED. Capitalized terms used in this First
Supplemental Indenture and not otherwise defined herein shall have the
respective meanings set forth in the Indenture.
Section 2.4 HEADINGS. The headings of the Articles and Sections of
this First 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 First
Supplemental Indenture.
Section 2.6 COUNTERPARTS. This First 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 First Supplemental
Indenture will take effect immediately upon its execution and delivery by the
Trustee in accordance with the provisions of Section 9.01 of the Indenture.
Section 2.8 CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. In
entering into this First Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture and the Notes 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 First 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 First Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date first written
above.
THE RESTAURANT COMPANY
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title President
THE RESTAURANT COMPANY OF MINNESOTA
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title President
TRC REALTY LLC
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title President
XXXXXXX FINANCE CORP.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title President
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title Vice President
