AMENDMENT NO. 2
Dated as of October 26, 2005
to
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of December 3, 2004
THIS AMENDMENT NO. 2 (this "Amendment") is made as of October
26, 2005 by and among Xxxxxxxx'x International, Inc. (the "Borrower"), the
financial institutions listed on the signature pages hereof (the "Lenders") and
JPMorgan Chase Bank, N.A. ("JPMCB"), as Administrative Agent (the
"Administrative Agent") under that certain 5-Year Revolving Credit Agreement
dated as of December 3, 2004 by and among the Borrower, the Lenders, the
Syndication Agents party thereto and the Administrative Agent (as amended, the
"Credit Agreement"). Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings given to them in the Credit Agreement.
WHEREAS, the Borrower has requested certain modifications be
made to the Credit Agreement;
WHEREAS, the Borrower, the Lenders party hereto and the
Administrative Agent have agreed to amend the Credit Agreement on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrower, the Lenders party hereto and the Administrative Agent have agreed to
the following amendments to the Credit Agreement.
1. Amendments to Credit Agreement. Effective as of October 26,
2005 (the "Effective Date"), but subject to the satisfaction of the conditions
precedent set forth in Section 2 below, the Credit Agreement is hereby amended
as follows:
(a) The definition of "Aggregate Commitment" set forth in
forth in Section 1.1 of the Credit Agreement is amended and restated in its
entirety as follows:
"Aggregate Commitment" means the aggregate of the
Commitments of all of the Lenders, as may be adjusted from
time to time pursuant to the terms hereof. The Aggregate
Commitment as of October 26, 2005 is $250,000,000.
(b) The definition of "Commitment Schedule" set forth in forth
in Section 1.1 of the Credit Agreement is amended and restated in its entirety
as follows:
"Commitment Schedule" means the Schedule identifying
each Lender's Commitment as of October 26, 2005 attached
hereto and identified as such.
(c) Clause (a) of the proviso in the first sentence of Section
2.6.3(i) of the Credit Agreement is amended to delete the reference therein to
"$250,000,000" and substitute "$325,000,000" therefor.
(d) The Commitment Schedule to the Credit Agreement is deleted
in its entirety and replaced with the "Commitment Schedule" attached hereto.
2. Conditions of Effectiveness. The effectiveness of this
Amendment is subject to the conditions precedent that the Administrative Agent
shall have (a) administered the reallocation of the Aggregate Outstanding Credit
Exposure on the Effective Date ratably among the Lenders after giving effect to
the increase of the Commitments of the Lenders pursuant to this Agreement and
(b) received (i) counterparts of this Amendment duly executed by the Borrower,
each of the Lenders and the Administrative Agent; (ii) counterparts of the
Consent and Reaffirmation attached hereto duly executed by each Guarantor; (iii)
for the account of each Lender, an upfront fee in an amount equal to 0.075% of
the amount of the incremental increase in such Lender's Commitment effected by
this Amendment; (iv) payment and reimbursement of the Administrative Agent's and
the Arranger's fees and reasonable out-of-pocket expenses (including reasonable
legal fees and expenses) in connection with this Amendment; (v) an opinion
letter of counsel to the Borrower relating to such corporate and other matters,
and in such form, as the Administrative Agent may reasonably request; (vi) a
copy, certified by the Secretary or Assistant Secretary of the Borrower, of the
resolutions of the Board of Directors of the Borrower, authorizing the execution
of this Amendment and the performance by the Borrower of its obligations
hereunder and under the Credit Agreement as amended hereby; and (vii) such other
instruments and documents as are reasonably requested by the Administrative
Agent.
3. Representations and Warranties and Covenants of the
Borrower. The Borrower hereby represents and warrants that (i) this Amendment
and the Credit Agreement as amended hereby constitute legal, valid and binding
obligations of the Borrower and are enforceable against the Borrower in
accordance with their terms and (ii) as of the date hereof and giving effect to
the terms of this Amendment, (x) there exists no Default or Unmatured Default
and (y) the representations and warranties contained in Article V of the Credit
Agreement, as amended hereby, are true and correct, except for representations
and warranties made with reference solely to an earlier date.
4. Commitment Increase.
The parties hereto acknowledge that, as of the date hereof, no
requests for increases of the Aggregate Commitment under Section 2.6.3 of the
Credit Agreement have been made.
5. Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness hereof, each reference to the
Credit Agreement in the Credit Agreement or any other Loan Document shall mean
and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement
and all other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.
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(c) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Administrative Agent or the Lenders, nor constitute a waiver of any provision of
the Credit Agreement or any other documents, instruments and agreements executed
and/or delivered in connection therewith. The Administrative Agent and the
Lenders hereby reserve any and all rights which may now or hereafter exist in
favor of the Administrative Agent and the Lenders under the Credit Agreement.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS (INCLUDING, WITHOUT
LIMITATION, 735 ILCS 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE
CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
7. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by one or more
of the parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
XXXXXXXX'X INTERNATIONAL, INC., as the
Borrower
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A., as the
Administrative Agent, as Swing Line
Lender, as LC Issuer and as a Lender
By /s/ Xxxxxxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Vice President
CITICORP LEASING, INC., as a Lender
By /s/ Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
BANK OF AMERICA, N.A. (successor by
merger to Fleet National Bank), as a
Lender
By /s/ Xxxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Principal
SUNTRUST BANK, as a Lender
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Lender
By /s/ Tsuguyuki Umene
--------------------------------------
Name: Tsuguyuki Umene
Title: Deputy General Manager
FIFTH THIRD BANK, as a Lender
By /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A., as a Lender
By /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
COMMITMENT SCHEDULE
LENDER COMMITMENT
JPMorgan Chase Bank, N.A. $43,333,333.32
Bank of America, N.A. (successor by merger to Fleet National Bank) $34,166,666.67
SunTrust Bank $34,166,666.67
Citicorp Leasing, Inc. $34,166,666.67
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch $34,166,666.67
Wachovia Bank, National Association $25,000,000.00
Xxxxx Fargo Bank, N.A. $25,000,000.00
Fifth Third Bank $20,000,000.00
AGGREGATE COMMITMENT $250,000,000.00
CONSENT AND REAFFIRMATION
Dated as of October 26, 2005
Each of the undersigned hereby acknowledges receipt of a copy
of the foregoing Amendment No. 2 to the 5-Year Revolving Credit Agreement dated
as of December 3, 2004 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement") by and among
Xxxxxxxx'x International, Inc. (the "Borrower"), the financial institutions from
time to time party thereto (the "Lenders") and JPMorgan Chase Bank, N.A., in its
individual capacity as a Lender and in its capacity as contractual
representative of the Lenders (the "Administrative Agent"), which Amendment No.
2 is dated as of October 26, 2005 (the "Amendment"). Capitalized terms used in
this Consent and Reaffirmation and not defined herein shall have the meanings
given to them in the Credit Agreement. Without in any way establishing a course
of dealing by the Administrative Agent or any Lender, each of the undersigned
consents to the Amendment and reaffirms the terms and conditions of the Guaranty
and any other Loan Document executed by it and acknowledges and agrees that such
agreement and each and every such Loan Document executed by the undersigned in
connection with the Credit Agreement remains in full force and effect and is
hereby reaffirmed, ratified and confirmed. All references to the Credit
Agreement contained in the above-referenced documents shall be a reference to
the Credit Agreement as so modified by the Amendment and as the same may from
time to time hereafter be amended, modified or restated.
[Signature Pages Follow]
IN WITNESS WHEREOF, this Consent and Reaffirmation has been
duly executed as of the day and year first above written.
ACMC, INC.
AII SERVICES, INC.
XXXX ARUNDEL APPLE HOLDING CORPORATION
APPLE AMERICAN LIMITED PARTNERSHIP OF MINNESOTA
APPLEBEE'S BEVERAGE, INC.
XXXXXXXX'X NEIGHBORHOOD GRILL & BAR OF GEORGIA, INC.
APPLEBEE'S NORTHEAST, INC.
APPLEBEE'S OF MICHIGAN, INC.
APPLEBEE'S OF MINNESOTA, INC.
APPLEBEE'S OF NEW MEXICO, INC.
APPLEBEE'S OF NEW YORK, INC.
APPLEBEE'S OF NEVADA, INC.
APPLEBEE'S OF PENNSYLVANIA, INC.
APPLEBEE'S OF TEXAS, INC.
APPLEBEE'S OF VIRGINIA, INC.
APPLEBEE'S UK, LLC
APPLE VERMONT RESTAURANTS, INC.
GOURMET SYSTEMS OF ARIZONA, INC.
GOURMET SYSTEMS OF CALIFORNIA, INC.
GOURMET SYSTEMS OF GEORGIA, INC.
GOURMET SYSTEMS, INC.
GOURMET SYSTEMS OF KANSAS, INC.
GOURMET SYSTEMS OF MINNESOTA, INC.
GOURMET SYSTEMS OF NEVADA, INC.
GOURMET SYSTEMS OF TENNESSEE, INC.
GOURMETWEST OF NEVADA, LIMITED LIABILITY COMPANY
INNOVATIVE RESTAURANT CONCEPTS, INC.
IRC KANSAS, INC.
RB INTERNATIONAL, INC.
RIO BRAVO SERVICES, INC.
SUMMIT RESTAURANTS, INC.
AFSS, INC.
APPLEBEE'S MICHIGAN SERVICES, LLC
APPLEBEE'S OF XXXXXXX COUNTY, INC.
APPLEBEE'S OF MARYLAND, INC.
APPLEBEE'S OF ST. MARY'S COUNTY, INC.
NEIGHBORHOOD INSURANCE, INC.
GOURMET SYSTEMS OF BRAZIL, LLC
APPLEBEE'S BRAZIL, LLC
GOURMET SYSTEMS OF TEXAS, INC.
GOURMET SYSTEMS BEVERAGE, INC.
APPLEBEE'S INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President/Authorized Agent
