AMENDMENT NO. 2
TO
3-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 19, 2004
THIS AMENDMENT NO. 2 TO 3-YEAR REVOLVING CREDIT AGREEMENT ("Amendment")
is made as of the "Amendment Effective Date" (as defined below) by and among
XXXXXXXX'X INTERNATIONAL, INC. (the "Borrower"), the financial institutions
listed on the signature pages hereof as lenders (the "Lenders"), BANK ONE, NA,
individually as a Lender, as LC Issuer, Swing Line Lender and as administrative
agent (the "Administrative Agent") for the Lenders under that certain 3-Year
Revolving Credit Agreement dated as of November 5, 2001 by and among the
Borrower, the Lenders and the Administrative Agent (as amended, the "Credit
Agreement"). Defined terms used herein and not otherwise defined herein shall
have the meaning given to them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to the Credit Agreement;
WHEREAS, the Borrower has requested certain amendments set forth
herein; and
WHEREAS, the Lenders party hereto and the Administrative Agent are
willing to agree to such extension request and amend the Credit Agreement, in
each case 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.
1. Amendments to Credit Agreement. Subject to the satisfaction of the
conditions precedent set forth in Section 2 below, the Credit Agreement is
hereby amended as follows:
1.1. Section 6.12 of the Credit Agreement is hereby amended and
restated to read as follows.
"6.12. Capital Expenditures. The Borrower will not, nor will it permit
any Subsidiary to, expend in excess of an aggregate amount of
$125,000,000 (the "Base Amount") for Capital Expenditures during any
fiscal year, commencing with the fiscal year ending December 30, 2004;
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provided that, if the aggregate amount of Capital Expenditures during
any such fiscal year is less than the Base Amount (the difference being
the "Shortfall Amount"), then the permitted amount of Capital
Expenditures during the immediately succeeding fiscal year shall be an
amount equal to the Base Amount plus the Shortfall Amount."
1.2. Section 1(d) of Schedule I to the Compliance Certificate set forth
as Exhibit B to the Credit Agreement is hereby amended by deleting the reference
to "$100,000,000" appearing therein and substituting "125,000,000" in lieu
thereof.
2. Conditions of Effectiveness. This Amendment shall become effective and
be deemed effective, if, and only if, and shall be effective as of date upon
which, the Administrative Agent shall have received each of the following (such
date, herein the "Amendment Effective Date"):
(a) duly executed signature pages to this Amendment from the Borrower
and the Required Lenders;
(b) a reaffirmation from each of the Guarantors, such reaffirmation
being attached hereto and made a part hereof; and
(c) such other documents, instruments and agreements as the
Administrative Agent may reasonably request.
3. Representations and Warranties of the Borrower. The Borrower hereby
represents and warrants as follows:
(a) This Amendment and the Credit Agreement as previously executed and
as amended hereby, constitute legal, valid and binding obligations of the
Borrower and are enforceable against the Borrower in accordance with their
terms.
(b) Upon the effectiveness of this Amendment, the Borrower hereby
reaffirms all covenants, representations and warranties made by it in the
Credit Agreement and other Loan Documents, to the extent the same are not
amended hereby, and agrees that all such covenants, representations and
warranties shall be deemed to have been remade as of the effective date of
this Amendment.
(c) No Default or Unmatured Default has occurred and is continuing
under the Credit Agreement.
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4. Reference to the Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import 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.
(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 any of 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.
5. Governing Law. This Amendment shall be governed by and construed in
accordance with the internal laws (as opposed to the conflict of law provisions)
of the State of Illinois.
6. 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.
7. Counterparts. This Amendment may be executed by one or more of the
parties to the 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 facsimile signature page hereto sent to the Administrative Agent
or the Administrative Agent's counsel shall be effective as a counterpart
signature provided each party executing such a facsimile counterpart agrees to
deliver originals to the Administrative Agent thereof.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment No. 2 has been duly executed as of
the day and year first above written.
XXXXXXXX'X INTERNATIONAL, INC.
as Borrower
By:/s/Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANK ONE, NA, individually as a Lender, as
LC Issuer, Swing Line Lender and as
Administrative Agent
By:/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director, Capital Markets
SUNTRUST BANK, individually as a Lender
and as a Syndication Agent
By:/s/ Xxxxx X. Xxxx
--------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
U.S. BANK NATIONAL ASSOCIATION,
individually as a Lender and as a
Syndication Agent
By:/s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
Signature Page to Amendment No. 2
July 2004
Xxxxxxxx'x International, Inc.
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BANK OF AMERICA, N.A., individually as a
Lender and as a Documentation Agent
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
FLEET NATIONAL BANK, individually as a
Lender and as a Documentation Agent
By:_______________________________________
Name:
Title:
JPMORGAN CHASE BANK as successor to
THE CHASE MANHATTAN BANK, as a Lender
By:/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
ROYAL BANK OF CANADA, as a Lender
By:/s/ Xxxxxx XxxXxxxxx
---------------------------------
Name: Xxxxxx XxxXxxxxx
Title: Aurhorized Signatory
Signature Page to Amendment No. 2
July 2004
Xxxxxxxx'x International, Inc.
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REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy of
Amendment No. 2 to the 3-Year Revolving Credit Agreement dated as of November 5,
2001, by and among Xxxxxxxx'x International, Inc., the Lenders and the
Administrative Agent (the "Credit Agreement"), which Amendment No. 2 is dated as
of July 19, 2004 (the "Amendment"). Capitalized terms used in this 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, the undersigned reaffirms the terms and
conditions of the Guaranty dated as of November 5, 2001 executed by it and
acknowledges and agrees that such Guaranty and each and every other Loan
Document executed by the undersigned in connection with the Credit Agreement
remain in full force and effect and are hereby ratified, reaffirmed and
confirmed. All references to the Credit Agreement contained in the
above-referenced documents shall be a reference to the Credit Agreement as so
amended by the Amendment and as the same may from time to time hereafter be
amended, modified or restated.
AII SERVICES, INC.
By:/s/ Xxxxxxx X. Xxxxxx
Its:Vice President
XXXX ARUNDEL APPLE HOLDING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Its: Assistant Secretary
APPLE AMERICAN LIMITED PARTNERSHIP OF
MINNESOTA
By: Gourmet Systems of Minnesota, Inc., as
general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
APPLEBEE'S BEVERAGE, INC.
By:/s/ Xxxxxx Xxxxxx
Its: Secretary
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XXXXXXXX'X NEIGHBORHOOD GRILL & BAR OF
GEORGIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
APPLEBEE'S NORTHEAST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
APPLEBEE'S OF MICHIGAN, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
APPLEBEE'S OF MINNESOTA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
APPLEBEE'S OF NEW MEXICO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
APPLEBEE'S OF NEW YORK, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
APPLEBEE'S OF NEVADA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
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APPLEBEE'S OF PENNSYLVANIA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
APPLEBEE'S OF TEXAS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
APPLEBEE'S OF VIRGINIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
APPLE VERMONT RESTAURANTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
GOURMET SYSTEMS OF ARIZONA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
GOURMET SYSTEMS OF CALIFORNIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
GOURMET SYSTEMS OF GEORGIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
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GOURMET SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
GOURMET SYSTEMS OF KANSAS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
GOURMET SYSTEMS OF MINNESOTA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
GOURMET SYSTEMS OF NEVADA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
GOURMET SYSTEMS OF TENNESSEE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
GOURMET SYSTEMS OF WISCONSIN, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
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GOURMET WEST OF NEVADA, LIMITED LIABILITY
COMPANY
By: Gourmet Systems of Nevada, Inc., as
managing member
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
INNOVATIVE RESTAURANT CONCEPTS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
IRC KANSAS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
RB INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
RIO BRAVO RESTAURANT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
RIO BRAVO SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
SUMMIT RESTAURANTS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
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ACMC, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
APPLEBEE'S UK, LLC
By: Xxxxxxxx'x International, Inc., as
managing member
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
AFSS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
NEIGHBORHOOD INSURANCE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
APPLEBEE'S OF MARYLAND, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
APPLEBEE'S OF XXXXXXX COUNTY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
APPLEBEE'S OF ST. MARY'S COUNTY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Its: Vice President
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APPLEBEE'S MICHIGAN SERVICES, LLC
By: /s/ Xxxxxxx X. Xxxxxx
Its: Vice President
