WAIVER XX. 0 XXX XXXXXXXXX XX. 0
XXXXXX XX. 0 AND AMENDMENT NO. 1 (this "WAIVER AND AMENDMENT"), dated
as of March 14, 2008, to the AMENDED AND RESTATED CREDIT AGREEMENT (the "CREDIT
AGREEMENT"; capitalized terms used but not defined herein shall have the
respective meanings set forth in the Credit Agreement), dated as of September
21, 2005, amended and restated as of May 3, 2006, by and among PERKINS & XXXXX
XXXXXXXXX'X INC. f/k/a THE RESTAURANT COMPANY, a Delaware corporation (the
"BORROWER"), XXXXXXX & XXXXX XXXXXXXXX'X HOLDING INC. f/k/a THE RESTAURANT
HOLDING CORPORATION ("HOLDINGS"), the Guarantors identified therein, the Lenders
identified therein and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association, as Administrative Agent, BNP PARIBAS as Syndication Agent and XXXXX
FARGO FOOTHILL, INC., as Documentation Agent.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower requests a waiver from the Lenders from the
requirements of Section 10.1 of the Credit Agreement requiring that Borrower and
its Subsidiaries not permit the Consolidated Leverage Ratio be greater than 5.25
to 1.00 for the fiscal quarter ended December 31, 2007;
WHEREAS, the Borrower and the Lenders desire to agree to certain other
amendments and waivers to the Credit Agreement, upon and subject to the terms
and conditions thereof; and
WHEREAS, pursuant to Section 14.2 of this Credit Agreement the
Required Lenders desire to enter into this Waiver and Amendment.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1 WAIVER.
As of the Effective Date (as defined below) and subject to the
satisfaction of the conditions set forth in Section 4 hereof, the Required
Lenders hereby waive any Default or Event of Default arising from the failure of
the Borrower and its Subsidiaries to comply with Section 10.1 of the Credit
Agreement for the fiscal quarter ended December 31, 2007.
SECTION 2 AMENDMENTS.
As of the Effective Date (as defined below) and subject to the
satisfaction of the conditions set forth in Section 4 hereof, the Borrower and
the Required Lenders hereby amend the Credit Agreement as follows:
(a) AMENDMENTS TO SECTION 1.1. DEFINITIONS.
The definition of "Applicable Margin" in Section 1.1 of the Credit
Agreement is hereby amended by:
(i) deleting the first paragraph and accompanying table of the
definition and
(ii) replacing it with the following:
"APPLICABLE MARGIN" means (i) with respect to the Term Loans, (x)
5.25% for LIBOR Rate Loans and (y) 4.25% for Base Rate Loans and (ii) with
respect to Revolving Credit Loans, the corresponding percentages per annum as
set forth below based on the Consolidated Leverage Ratio:
---------------------------------------------------------------------------------------------------
LIBOR BASE
PRICING LEVEL CONSOLIDATED LEVERAGE RATIO COMMITMENT FEE SPREAD RATE SPREAD
--------------- ----------------------------------- --------------- --------------- ---------------
I Less than or equal to 4.00 to 1.00 0.50% 4.25% 3.25%
--------------- ----------------------------------- --------------- --------------- ---------------
II Greater than 4.00 to 1.00, but 0.50% 4.75% 3.75%
less than or equal to 4.50 to 1.00
--------------- ----------------------------------- --------------- --------------- ---------------
III Greater than 4.50 to 1.00 0.50% 5.25% 4.25%
--------------- ----------------------------------- --------------- --------------- ---------------
The definition of "LIBOR Rate" in Section 1.1 of the Credit Agreement
is hereby amended by adding the following immediately after the table to the
definition: "; PROVIDED that in no case may the LIBOR Rate be less than 3.25%."
The definition of "Permitted Acquisition" in Section 1.1 of the Credit
Agreement is hereby amended by: (i) deleting the word "and" immediately
preceding the letter "(l)", (ii) replacing the period at the end of clause (l)
with "; and" and (iii) inserting immediately following clause (l) the following:
"(m) no later than five (5) Business Days prior to the proposed closing date of
such acquisition, the Borrower shall have delivered to the Administrative Agent
and the Lenders an Officer's Compliance Certificate for the most recent fiscal
quarter end preceding such acquisition demonstrating, in form and substance
reasonably satisfactory to the Administrative Agent and the Lenders, that on a
pro forma basis (as of the date of the acquisition and after giving effect
thereto, and to any Extensions of Credit made or to be made in connection
therewith, as if such acquisition and Extension of Credit had occurred on the
first day of the applicable four-quarter period) the requirement that the
Consolidated Leverage Ratio would be less than 4.50 to 1.00."
(b) AMENDMENTS TO SECTION 4.4(B)(ii). PREPAYMENTS OF TERM LOAN. MANDATORY
PREPAYMENTS. EQUITY ISSUANCES.
Section 4.4(b)(ii) of the Credit Agreement is hereby amended by
amending and restating the proviso to Section 4.4(b)(ii) in its entirety to read
"PROVIDED; that so long as no Event of Default has occurred and is continuing,
no prepayments shall be required from the Net Cash Proceeds from Equity
Issuances that is an IPO the proceeds of which are used to redeem Senior Notes
in an aggregate amount not to exceed 35% of the original principal amount of the
Senior Notes."
(c) AMENDMENTS TO SECTION 8.1. FINANCIAL STATEMENTS AND PROJECTIONS.
Section 8.1 of the Credit Agreement is hereby amended as follows:
(i) by amending Section 8.1(c) as follows: (a) by deleting the words
"on a quarterly basis, the following: a quarterly operating and capital budget"
and replacing them with "on a four-week accounting period basis, a four-week
operating and capital budget"; and (b) adding the following at the end of
Section 8.1(c): "Each such business plan will include actual and budgeted same
store sales figures for each restaurant concept with detailed component figures
relating to traffic and price/mix and average unit volume and average check as
to each restaurant concept for such period then ended and that portion of the
Fiscal Year then ended."
(ii) by adding immediately following Section 8.1(c) the following:
"(d) MONTHLY FINANCIAL STATEMENTS. As soon as practicable and in any
event within thirty (30) days after the end of each four-week accounting period
of each Fiscal Year (other than the last four-week accounting period of any
Fiscal Quarter), an unaudited combined balance sheet of the Borrower and its
Subsidiaries as of the close of such period and an unaudited combined operating
statement summary and combined statements of direct cash flow for such period
and that portion of the Fiscal Year then ended, all in reasonable detail setting
forth in comparative form the corresponding figures as of the end of and for the
corresponding period and portion of the Fiscal Year in the preceding Fiscal Year
and prepared by the Borrower in accordance with GAAP (except as it relates to
the presentation and format of financial statements), and showing a reasonably
detailed comparison to the budgeted amounts previously provided to Lenders. Such
reasonably detailed comparison will include actual and budgeted same store sales
figures for each restaurant concept with detailed component figures relating to
traffic and price/mix and average unit volume and average check as to each
restaurant concept for such period then ended and that portion of the Fiscal
Year then ended."
The reference in Section 7.1(o) to Section 8.1(a) and (c) shall be
deemed also a reference to Section 8.1(d).
(d) AMENDMENT TO SECTION 9.3 INSURANCE.
Section 9.3 of the Credit Agreement is hereby amended by
adding the following to the end thereof: "As of the Effective Date, no portion
of any Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency as an area having special flood hazards. If any
portion of any Mortgaged Property is at any time located in an area identified
by the Federal Emergency Management Agency as an area having special flood
hazards and in which flood insurance has been made available under the National
Flood Insurance Act of 1968 (or any amendment or successor Act thereto), then
the Loan Parties shall (i) maintain, or cause to be maintained, with a
financially sound and reputable insurer, flood insurance in an amount and
otherwise sufficient to comply with all applicable rules and regulations
promulgated pursuant to such Act and (ii) promptly deliver to the Administrative
Agent evidence of such compliance in form and substance reasonably acceptable to
the Administrative Agent."
(e) AMENDMENTS TO SECTION 10.1. LEVERAGE RATIO
Section 10.1 of the Credit Agreement is hereby amended by deleting the
last six rows from the table to Section 10.1 and replacing them with the
following:
---------------------------------------------------- ---------------------------
Q1 Fiscal Year 2008 - Q3 Fiscal Year 2008 6.50 to 1.00
---------------------------------------------------- ---------------------------
Q4 Fiscal Year 2008 - Q3 Fiscal Year 2010 6.00 to 1.00
---------------------------------------------------- ---------------------------
Q4 Fiscal Year 2010 - Q3 Fiscal Year 2011 5.75 to 1.00
---------------------------------------------------- ---------------------------
Q4 Fiscal Year 2011 - Q3 Fiscal Year 2012 5.50 to 1.00
---------------------------------------------------- ---------------------------
Q4 Fiscal Year 2012 and thereafter 5.25 to 1.00
---------------------------------------------------- ---------------------------
(f) AMENDMENTS TO SECTION 10.2. FIXED CHARGE COVERAGE RATIO.
Section 10.2 of the Credit Agreement is hereby amended by deleting the
table to Section 10.2 and replacing it with the following:
--------------------------------------------------- -----------------------------
PERIOD MINIMUM RATIO
--------------------------------------------------- -----------------------------
Q1 Fiscal Year 2008 - Q3 Fiscal Year 2008 0.95 to 1.00
--------------------------------------------------- -----------------------------
Q4 Fiscal Year 2008 and thereafter 1.00 to 1.00
--------------------------------------------------- -----------------------------
(g) AMENDMENTS TO SECTION 10.3. MAXIMUM CAPITAL EXPENDITURES.
Section 10.3 of the Credit Agreement is hereby amended:
(i) by deleting the last six rows from the table to Section 10.3 and
replacing them with the following:
--------------------------------------------------- -----------------------------
Fiscal Year 2008 $19.0 million
--------------------------------------------------- -----------------------------
Fiscal Year 2009 $24.0 million
--------------------------------------------------- -----------------------------
Fiscal Year 2010 $32.0 million
--------------------------------------------------- -----------------------------
Fiscal Year 2011 $34.0 million
--------------------------------------------------- -----------------------------
Fiscal Year 2012 $35.0 million
--------------------------------------------------- -----------------------------
Fiscal Year 2013 $15.0 million
--------------------------------------------------- -----------------------------
and (ii) by inserting the following immediately preceding the period
at the end of Section 10.3 with the following: "except that no carryover amount
from Fiscal Year 2007 may be applied during Fiscal Year 2008 or any subsequent
Fiscal Years".
(h) AMENDMENTS TO SECTION 11.1. LIMITATIONS ON INDEBTEDNESS.
(i) Section 11.1(h) of the Credit Agreement is hereby amended by
deleting the amount "$10,000,000" and replacing it with "$1,000,000".
(ii) Section 11.1(k) of the Credit Agreement is hereby amended by
deleting the amount "$5,000,000" and replacing it with "$1,000,000".
(iii) Section 11.1(m) of the Credit Agreement is hereby amended by
amending and restating such clause in its entirety to read "additional unsecured
Indebtedness of Borrower or any of its Guarantors not otherwise permitted
pursuant to this Section in an aggregate amount outstanding not to exceed
$5,000,000; and".
(i) AMENDMENTS TO SECTION 11.3. LIMITATIONS ON LOANS, ADVANCES, INVESTMENTS
AND ACQUISITIONS.
(i) Section 11.3(i) of the Credit Agreement is hereby amended by
deleting the following immediately preceding the period at the end of Section
11.3(i): "$5,000,000 for all such acquisitions, Guaranty Obligations or
investments pursuant to this SECTION 11.3(i)" and replacing it with "$3,000,000
for all such acquisitions, Guaranty Obligations or investments pursuant to
clause (A) of this SECTION 11.3(i) and $1,000,000 for all such acquisitions,
Guaranty Obligations or investments pursuant to clauses (B) and (C) of this
SECTION 11.3(i)".
(ii) Section 11.3(l) of the Credit Agreement is hereby amended by
deleting the amount "$10,000,000" and replacing it with "$2,000,000".
(j) AMENDMENTS TO SECTION 11.6. LIMITATIONS ON DIVIDENDS AND DISTRIBUTIONS.
(i) Section 11.6(c) of the Credit Agreement is hereby amended by
amending and restating such subsection in its entirety to read: "so long as no
Event of Default exists, the Borrower may (i) make payments of management fees
in the amounts and at the rates specified in the Management Agreement; PROVIDED
that before and after giving effect thereto, (A) the Consolidated Leverage Ratio
shall be less than 5.00 to 1.00, (B) calculating the Consolidated Fixed Charges
to include such payment (notwithstanding the definition thereof), the Borrower
shall be in compliance with the Fixed Charge Coverage Ratio under Section 10.2
and (C) in no case may payments pursuant to the Management Agreement exceed in
the aggregate $895,000 during any Fiscal Quarter; and (ii) reimburse expenses of
Xxxxxx Xxxxxx, Inc. and its affiliates in accordance with the Management
Agreement, so long as the aggregate amount of reimbursement payments in any
Fiscal Year does not exceed $400,000;".
(ii) Section 11.6(f) of the Credit Agreement is hereby amended by
adding the following immediately preceding the semicolon at the end of Section
11.6(f): "; PROVIDED, FURTHER, that before and after giving effect thereto, (i)
the Consolidated Leverage Ratio shall be less than 4.75 to 1.00, (ii) the
Borrower shall be in compliance with the Fixed Charge Coverage Ratio under
Section 10.2 and (iii) in no case may the Borrower make such payments unless the
unused Commitments under the Revolving Credit Facility would be no less than
$10,000,000".
(iii) Section 11.6(g) of the Credit Agreement is hereby amended by
adding the following immediately preceding the period at the end of Section
11.6(g): "; PROVIDED, FURTHER, that before and after giving effect to any
payment pursuant to this Section (including any carryover amount from the
previous fiscal year) except with respect to up to $1,000,000 in the aggregate
that the Borrower may use to repurchase equity units of the Borrower, Holdings
or any di-
rect or indirect parent of Holdings from any former employee of Holdings or any
of its Subsidiaries, the Consolidated Leverage Ratio shall be less than 5.00 to
1.00".
(k) AMENDMENTS TO SECTION 11.8. TRANSACTIONS WITH AFFILIATES.
Section 11.8(v) of the Credit Agreement is hereby amended by amending
and restating such subsection in its entirety to read: "so long as no Event of
Default exists, (i) the payments of management fees to Xxxxxx Xxxxxx, Inc. in
the amounts and at the rates specified in the Management Agreement; PROVIDED
that before and after giving effect thereto, (A) the Consolidated Leverage Ratio
shall be less than 5.00 to 1.00, (B) calculating the Consolidated Fixed Charges
to include such payment (notwithstanding the definition thereof), the Borrower
shall be in compliance with the Fixed Charge Coverage Ratio under SECTION 10.2
and (C) in no case may payments of management fees pursuant to the Management
Agreement exceed in the aggregate $895,000 during any Fiscal Quarter; and (ii)
reimburse expenses of Xxxxxx Xxxxxx, Inc. and its affiliates in accordance with
the Management Agreement, so long as the aggregate amount of reimbursement
payments in any Fiscal Year does not exceed $400,000;"
(l) AMENDMENT TO ARTICLE XI - ADDENDUM OF SECTION 11.15 - CASH MANAGEMENT.
Article XI of the Credit Agreement is hereby amended by addendum of
Section 11.15 as follows:
"SECTION 11.15 CASH MANAGEMENT. At any time accumulate or hold in
excess of $7,000,000 in unrestricted cash and cash equivalents for any period of
fifteen (15) consecutive Business Days unless the Borrower shall repay the
Revolving Credit Facility by such amount in excess of $7,000,000 on or before
1:00 p.m. the next Business Day after such 15-Business Day period (without
thereby permanently reducing the Revolving Credit Commitment).
(m) AMENDMENT TO SCHEDULE 11.2. EXISTING LIENS.
Schedule 11.2 to the Credit Agreement is hereby amended by
incorporating and adding the following immediately after the listing in Schedule
11.2 of precautionary financing statements filed against leased property of the
Borrower: "See also all capital leases of the Borrower and Xxxxx Xxxxxxxxx Pie
Shops, Inc. listed under SCHEDULE 7.1(t). All such liens are subject to the
representations and warranties the Borrower made under SECTION 7.1(S)." The
Required Lenders waive any default caused by failure to so cross-reference such
portion of SCHEDULE 7.1(t).
(n) AMENDMENT TO SECTION 12.1 - ADDENDUM OF SUBSECTION 12.1(n) - SPONSOR
AGREEMENT.
Section 12.1 of the Credit Agreement is hereby amended by addendum of
subsection 12.1(n) as follows:
"(n) SPONSOR AGREEMENT. Xxxxxx Xxxxxx Partners III, L.P. and Xxxxxx
Xxxxxx Partners IV, L.P. (collectively, the "Sponsor") shall fail at any time to
comply with their obligations under the Guarantees delivered pursuant to Section
3 of the Waiver No. 2 and Amendment No. 1 dated as of March 14, 2008 to this
Credit Agreement and such default shall continue for a period of thirty (30)
days thereafter."
SECTION 3 SPONSOR AGREEMENT.
Xxxxxx Xxxxxx Partners III, L.P. and Xxxxxx Xxxxxx Partners IV, L.P.
(collectively, the "Sponsor") shall on the Effective Date, execute and deliver
to the Administrative Agent for the benefit of the Lenders the Sponsor
Guarantees in the form of Exhibit A. The Guarantees will provide for a payment
to the Administrative Agent in immediately available Dollars (and the
Administrative Agent shall use such funds to make such repayments of the
Revolving Credit Facility (without thereby permanently reducing the Revolving
Credit Commitment)) equal to (i) at any time that unused Commitments under the
Revolving Credit Facility are less than $6,000,000 for three consecutive
Business Days in any seven-day period or any three Business Days in any ten-day
period, the amount by which $6,000,000 exceeds the lowest such amount of unused
Commitments during such seven-day or ten-day period (without regard to whether
the unused Commitments exceed $6,000,000 at any time during such period or
thereafter) or (ii) all outstanding Revolving Loans (without a permanent
commitment reduction) upon the occurrence of any Event of Default; PROVIDED that
the aggregate cumulative amount that the Sponsor shall be obligated to pay under
the Guarantees shall in no case exceed in the aggregate $4,000,000. The parties
agree, for the avoidance of doubt, that no Restricted Payments shall be made
with the proceeds of any payments made pursuant to this Section and no
Restricted Payments shall be permitted or increased by the amount of such
payments.
SECTION 4 CONDITIONS TO EFFECTIVENESS.
This Waiver and Amendment shall become effective when, and only when,
and as of the date (the "EFFECTIVE DATE") on which (a) the Administrative Agent
shall have received counterparts of this Waiver and Amendment executed by the
Borrower and the Required Lenders, (b) the Administrative Agent shall have
received the Sponsor Guarantees executed by the Sponsor, (c) the Borrower shall
have paid in cash to each Lender executing and delivering to the Administrative
Agent a signature page on or prior to 12:00 noon on March 14, 2008 a fee of
0.25% of the outstanding Loans and Commitments of such Lender and (d) the
Borrower shall have paid the fees and expenses set forth in Section 7 below. The
effectiveness of this Waiver and Amendment (other than Sections 7, 8 and 9
hereof) is conditioned upon the accuracy of the representations and warranties
and confirmations set forth in Section 5 hereof.
SECTION 5 REPRESENTATIONS AND WARRANTIES; CONFIRMATIONS.
(a) REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders to
enter into this Amendment, the Borrower represents and warrants to each of the
Lenders and the Administrative Agent that (x) the representations and warranties
contained in Article VII of the Credit Agreement that are subject to materiality
or Material Adverse Effect qualifications shall be true, correct and complete,
and the representations and warranties that are not subject to materiality or
Material Adverse Effect qualifications shall be true and correct in all material
respects on and as of the Effective Date as if made on and as of the Effective
Date, except for any representation and warranty made as of an earlier date,
which representation and warranty shall remain true, correct and complete in
such respects as of such earlier date, (y) no Default or Event of Default shall
have occurred and be continuing under the Credit Agreement other than any such
Default
or Event of Default that is the subject of this Waiver and Amendment and (z) the
Borrower (i) is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, (ii) has the power and authority
to own its properties and to carry on its business as now being and hereafter
proposed to be conducted, (iii) is duly qualified and authorized to do business
in each jurisdiction in which the character of its properties or the nature of
its business requires such qualification and authorization except in
jurisdictions where the failure to be so qualified or in good standing could not
reasonably be expected to result in a Material Adverse Effect and (iv) has full
power and authority and the legal right to make, deliver and perform this Waiver
and Amendment and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of this Waiver and Amendment.
In order to induce the Lenders to enter into this Amendment, the
Sponsor represents and warrants to each of the Lenders and the Administrative
Agent, solely with respect to Section 3 hereof, that the Sponsor (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has the power and authority to own its
properties and to carry on its business as now being and hereafter proposed to
be conducted, (iii) is duly qualified and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification and authorization except in jurisdictions
where the failure to be so qualified or in good standing could not reasonably be
expected to result in a Material Adverse Effect and (iv) has full power and
authority and the legal right to make, deliver and perform this Waiver and
Amendment and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of this Waiver and Amendment.
(b) CONFIRMATION OF SECURITY. In order to induce the Lenders to enter
into this Waiver and Amendment, each Credit Party hereby acknowledges, confirms
and agrees that (A) notwithstanding the execution and delivery of this Waiver
and Amendment, the Security Documents (i) remain in full force and effect and
have not been terminated, discharged or released, (ii) constitute legal, valid
and binding obligations of each Credit Party signatory thereto, enforceable
against such Credit Party in accordance with their terms and (iii) constitute
valid, enforceable and perfected liens on and security interests in the
Collateral encumbered thereby in favor of the Administrative Agent for the
benefit of the Secured Parties securing the Obligations (subject only to Liens
permitted by the applicable Security Document); and (B) no amendment, supplement
or modification and no additional recording, filing or registration of any
document or notice thereof, financing statement or other instrument in respect
of the Security Documents is necessary in order to preserve, protect or maintain
the validity, priority or perfected status of the liens and security interests
granted to the Administrative Agent for the benefit of the Secured Parties
securing the Obligations.
(c) CONFIRMATION OF MORTGAGE PROVISIONS. Each Loan Party signatory
thereto hereby acknowledges, agrees and confirms that notwithstanding any
provision to the contrary in any Mortgage:
(i) the proceeds of any sale made under or by virtue of Article VIII
of any Mortgage, together with any other sums which then may be held by the
Administrative Agent under such Mortgage, whether under the provisions of
Article VIII of the Mortgage or otherwise, shall be applied in accordance with
the provisions of Section 12.4 of the Credit Agreement; and
(ii) any and all amounts expended by the Administrative Agent in
accordance with the provisions of Section 11.4 of any Mortgage shall be paid by
the Borrower or applicable Subsidiary in accordance with the provisions of
Section 14.3 of the Credit Agreement.
SECTION 6 EFFECT ON THE CREDIT AGREEMENT.
Except as expressly waived herein, the Credit Agreement is and shall
continue to be in full force and effect and is hereby in all respects ratified
and confirmed. The execution, delivery and effectiveness of this Waiver and
Amendment shall not, except as expressly provided herein, operate as an
amendment or waiver of any right, power or remedy of any Lender or the
Administrative Agent under the Credit Agreement, nor constitute an amendment or
waiver of any provision of the Credit Agreement. Each guarantor ratifies and
confirms its Guaranty as being in full force and effect after giving effect to
the Waiver and Amendment herein set forth.
SECTION 7 COSTS, EXPENSES AND TAXES.
Borrower agrees to pay or reimburse the Administrative Agent the fees
set forth in the Engagement Letter dated March 3, 2008 between the Borrower and
the Administrative Agent and for all its reasonable and documented out-of-pocket
costs and expenses (including, without limitation, the reasonable fees and
disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP) incurred in connection with the
development, preparation, negotiation, printing and execution of this Waiver and
Amendment and the consummation and administration of the transactions
contemplated hereby.
SECTION 8 EXECUTION IN COUNTERPARTS.
This Waiver and Amendment may be executed by one or more of the
parties to this Waiver and Amendment on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Waiver and Amendment signed by
all the parties shall be lodged with the Borrower and the Administrative Agent.
SECTION 9 GOVERNING LAW.
This Waiver and Amendment and the rights and obligations of the
parties under this Waiver and Amendment shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York, without giving
effect to the conflict of laws principles thereof which would require the
application of laws of another state.
SECTION 10 SPECIFIC PERFORMANCE.
The Sponsor's obligations under the Sponsor Agreement set forth in
Section 3 hereof are unique and irreparable damage would occur in the event that
any of the provisions of the Sponsor Agreement were not performed in accordance
with their specific intent or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions, without
bond, to prevent or cure the Sponsor's breaches of the provisions of the Sponsor
Agreement and to enforce specifically the terms and provisions thereof, this
being in addition
to any other remedy to which they may be entitled by at law or in equity, and
the Sponsor expressly waives any defense that a remedy in damages for its breach
of the Sponsor Agreement would be adequate. This paragraph shall be in addition
to and not in limitation of any and all other rights in the event of such a
breach.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver No. 2 and
Amendment No. 1 to be duly executed and delivered as of the day and year first
above written.
PERKINS & XXXXX XXXXXXXXX'X INC., as
Borrower
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. STRKYER
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
XXXXXXX & XXXXX XXXXXXXXX'X HOLDING
INC., as Holdings
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. STRKYER
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
XXXXXXX FINANCE CORP., as Guarantor
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. STRKYER
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
PERKINS & XXXXX XXXXXXXXX'X REALTY
LLC, as Guarantor
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. STRKYER
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
WILSHIRE RESTAURANT GROUP LLC, as
Guarantor
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. STRKYER
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
XXXXX XXXXXXXXX PIE SHOPS, INC., as
Guarantor
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. STRKYER
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
XXXXX XXXXXXXXX WHOLESALERS, INC., as
Guarantor
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. STRKYER
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
MACAL INVESTORS, INC., as Guarantor
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. STRKYER
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
MCID, INC., as Guarantor
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. STRKYER
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
WILSHIRE BEVERAGE, INC., as Guarantor
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. STRKYER
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
FIV CORP., as Guarantor
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXX X. STRKYER
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
Solely with respect to Sections 3 and 10 above, as of the day and year
first above written.
XXXXXX XXXXXX PARTNERS III, L.P.,
By: XXXXXX XXXXXX, INC., as Investment Manager
By: /S/ XXXXX X. XXXXXXXX
-------------------------------------
Name: XXXXX X. XXXXXXXX
Title: SECRETARY
XXXXXX XXXXXX PARTNERS IV, L.P.,
By: XXXXXX XXXXXX, INC., as Investment Manager
By: /S/ XXXXX X. XXXXXXXX
-------------------------------------
Name: XXXXX X. XXXXXXXX
Title: SECRETARY
ADMINISTRATIVE AGENT AND LENDERS:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent,
Swingline Lender, Issuing Lender and a Lender
By: /S/ XXXXXXX X. XXXXXXX
-------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: DIRECTOR
