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EXHIBIT 4
JOINDER AND AMENDMENT NO. 2
Dated as of December 20, 1999
Reference is hereby made to the 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"), and
XXXXXXX MANAGEMENT COMPANY, INC., a Delaware corporation ("PMC"), and XXXXXXX
FINANCE CORP., a Delaware corporation (together with TRC, PRI and PMC, the
"Existing Guarantors"), BANKBOSTON, N.A., a national banking association and
the other lending institutions listed on Schedule 1 thereto (the "Banks"),
BANKBOSTON, N.A. as agent and administrative agent for the Banks, 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 he meanings given such terms in the Credit Agreement.
WHEREAS, Perkins and the Guarantors have requested that the Banks amend
the Credit Agreement and the other Loan Documents to, among other things, make
TRC a co-borrower, together with Perkins, under the Credit Agreement;
WHEREAS, the Banks have agreed, subject to the terms and conditions set
forth herein, to, among other things, make TRC a co-borrower, together with
Perkins, under the Credit Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows.
1. JOINDER TO CREDIT AGREEMENT AND LOAN DOCUMENTS. TRC (the "New Borrower"
and, together with Perkins, the "Borrowers"), hereby joins the Credit Agreement
and the Loan Documents and agrees 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. Without limiting the generality of the preceding sentence, TRC agrees
that it shall be jointly and severally liable, together with Perkins, for the
payment and performance of all obligations of the Borrowers under the Credit
Agreement as supplemented hereby. TRC agrees that a copy of this Joinder and
Amendment may be attached as an allonge to each of the Revolving Credit Notes,
and TRC agrees
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to be bound by each Revolving Credit Note as if it had been a party to such
Revolving Credit Note from the Closing Date.
2. AMENDMENTS TO LOAN DOCUMENTS. The parties hereto agree that, as of the
Effective Date (defined below), the Credit Agreement and the other Loan
Documents shall be further amended and supplemented as set forth below:
a. All references to the "Borrower" contained in the Credit Agreement
and the other Loan Documents shall hereafter be deemed to be references to the
Borrowers and, after the Merger Date (defined below), to the survivor in the
Mergers (defined below). Each reference to the "Obligations" or the
"obligations of the Borrower", or words to a similar effect, shall hereafter be
deemed to be a reference to the joint and several obligations of each of the
Borrowers, each of the Borrowers hereby agreeing that they shall be jointly and
severally liable for all of the Obligations under the Credit Agreement and the
other Loan Documents, each as amended hereby.
b. Each of PRI, PMC and PFC hereby agrees that the "Guaranteed
Obligations" shall hereafter include all obligations of each of the Borrowers
under the Credit Agreement and the other Loan Documents, each as amended hereby.
c. (i) Section 1.1 of the Credit Agreement is hereby amended by adding
the following new definitions in alphabetical order:
"Discount Indenture. The Indenture, dated as of May 18, 1998, between TRC
and State Street Bank and Trust Company, as trustee, in the form delivered to
the Agent prior to the Effective Date."
"Discount Notes. The Notes evidencing up to an aggregate of $31,100,000 in
principal amount at maturity issued under the Discount Indenture."
"Merger Agreement. Collectively, the Agreement and Plan of Merger, dated
as of December __, 1999, between PMC and PRI, the Agreement and Plan of Merger,
dated as of December __, 1999, between PRI and TRC, and the Agreement and Plan
of Merger, dated as of December __, 1999, between Perkins and TRC, each in the
form delivered to the Agent prior to the Effective Date."
"Merger Date. The date the Merger becomes effective, and PRI, Perkins and
PMC are merged with and into TRC."
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"Mergers. Collectively, the merger of PMC into PRI, the merger of PRI into
TRC, and the merger of Perkins into TRC pursuant to the Merger Agreement."
(ii) Section 1.1 of the Credit Agreement is hereby amended by restating
the following definitions in their entirety as provided herein:
"Consolidated Funded Indebtedness. At any time, the sum of (a) the
aggregate amount of Indebtedness of the Borrower and its Subsidiaries, on a
consolidated basis, relating to the borrowing of money or the obtaining of
credit or in respect of Capitalized Leases (but excluding, only for so long as
interest or principal is not paid or payable in cash thereon, the Discount
Notes), plus (b) without duplication, all reimbursement obligations of such
Persons in respect of letters of credit outstanding, plus (c) without
duplication, all Indebtedness guaranteed by the Borrower or any of its
Subsidiaries."
"Consolidated Total Interest Expense. For any period, the remainder of
(a) the aggregate amount of interest required to be paid or accrued by the
Borrower and its Subsidiaries during such period on all Indebtedness of the
Borrower and its Subsidiaries outstanding during all or any part of such
period, whether such interest was or is required to be reflected as an item of
expense or capitalized, including payments consisting of interest in respect of
Capitalized Leases, and including commitment fees, agency fees, facility fees,
balance deficiency fees and similar fees and expenses in connection with the
borrowing of money, but excluding, only for so long as such interest is not
paid or payable in cash in such period, interest on the Discount Notes, minus
(b) interest income of the Borrower and its Subsidiaries for such period, in
each case, determined on a consolidated basis for such Persons in accordance
with generally accepted accounting principles."
d. Section 7.2 of the Credit Agreement is hereby amended by (i) deleting
the reference to TRC in the proviso of the first sentence thereof, (ii)
deleting clause (a) of the second sentence thereof, and (iii) from and after
the Merger Date, deleting the proviso of the first sentence in its entirety.
e. Section 10.1 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (n); (ii) deleting the period at
the end of clause (o) and substituting the text "; and"; and (iii) inserting the
following new clause (p):
"(p) from and after the Merger Date, Indebtedness of the Borrower not to
exceed an aggregate principal amount or accreted value of $31,100,000 in
respect of the Discount Notes under the Discount Indenture."
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f. Section 10.4 of the Credit Agreement is hereby amended by (i)
inserting the following clause immediately following "(ii)" therein: "for so
long as the Borrower is a pass through entity for tax purposes," and (ii) by
inserting the following new clause (v) following clause (iv): "and (v) so long
as no Default or Event of Default then exists or would result from the making of
such dividend, on one occasion on the Merger Date the Borrower may pay a
dividend to its equity holders in an aggregate amount not to exceed $50,100,000.
g. Section 10.5(a) of the Credit Agreement is hereby amended by (i)
inserting in clause (v) thereof immediately preceding the proviso, the phrase
"including in the case of a merger with and into TRC, the Merger,"; (ii) in
clause (B) of the proviso contained therein, replacing the reference to "thirty
(30)" with a reference to "ten (10)"; and (iii) inserting at the end of Section
10.5(a) before the semicolon, the phrase "after giving effect to the Joinder and
Amendment No. 2".
h. Section 11.2 of the Credit Agreement is hereby amended by (i) deleting
the phrase "the greater of (A) actual Consolidated Net Worth at December 31,
1997 and (B) $25,561,000" and substituting therefor the phrase "actual
Consolidated Net Worth at December 31, 1999" and (ii) by replacing the date
"December 31, 1997" in clause (b) thereof with the date "December 31, 1999."
i. Section 11.5 of the Credit Agreement is hereby amended by (i) deleting
the row corresponding to Fiscal Year 1999 from the table set forth therein and
(ii) inserting the following new text at the end of such Section: "In addition,
the Borrower will not make, and will not permit any of its Subsidiaries to make,
Maintenance Capital Expenditures, Improvement Capital Expenditures, New Site
Capital Expenditures, or Remodeling Capital Expenditures that exceed
$28,500,000, in the aggregate, for the Fiscal Year 1999.".
j. The Credit Agreement is hereby further amended by (i) adding the
following new Section 9.18 in the correct numerical sequence thereof:
9.18. GUARANTY AND PLEDGE. The Borrower shall, not later than the
Merger Date, (i) cause The Restaurant Holding Corporation ("TRHC") to
guaranty the Obligations pursuant to a guaranty in form and substance
satisfactory to the Agent (provided that the liability of TRHC under such
guaranty shall be limited to the value of the Equity Interests of TRC held
by TRHC, after giving effect to the Merger and the related transactions),
which such guaranty shall be a Security Document hereunder, (ii) cause TRHC
to pledge to the Agent, for the
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benefit of the Banks and the Agent, as security for the Obligations, 100% of
the capital stock of the Borrower owned by TRHC, pursuant to a pledge
agreement in form and substance satisfactory to the Agent, which such pledge
agreement shall be a Security Document hereunder, (iii) cause to be
delivered to the Agent all such other documents and instruments (including
without limitation, legal opinions) as the Agent may reasonably request in
connection with such guaranty and pledge. From and after the Merger Date,
TRHC shall be a "Guarantor" hereunder.
k. The Credit Agreement is hereby further amended by adding the text
"9.18," immediately after the reference to "9.14," in Section 14.1(c) thereof.
l. The parties hereby agree that (i) the reference to TRC in Section 29.10
of the Credit Agreement is hereby deleted and (ii) from and after the effective
date of the Merger, Section 29.10 of the Credit Agreement is hereby deleted in
its entirety.
m. The Credit Agreement is hereby further amended by supplementing
Schedule 10.3 thereto with Schedule 10.3 attached hereto.
3. JOINDER TO SECURITY AGREEMENT. TRC further covenants and agrees that
by its execution hereof it shall be bound by and shall comply with all terms
and conditions of the Security Agreement, dated as of December 22, 1997, between
Perkins and the Agent, as fully as if it were the "Company" referred to therein,
and thereby and hereby grants to the Agent, for the benefit of the Banks and the
Agent, to secure the payment and performance in full of all of the Obligations,
a security interest in and so pledges and assigns to the Agent, for the benefit
of the Banks and the Agent, the following properties, assets and rights of the
undersigned, wherever located, whether now owned or hereafter acquired or
arising, and all proceeds and products thereof (all of the same being
hereinafter called the "Collateral"):
All personal and fixture property of every kind and nature including
without limitation all furniture, fixtures, equipment, raw materials,
inventory, other goods, accounts, contract rights, rights to the payment of
money, insurance refund claims and all other insurance claims and proceeds,
tort claims, chattel paper, documents, instruments, securities and other
investment property, deposit accounts, and all general intangibles
including, without limitation, all tax refund claims, license fees,
patents, patent applications, trademarks, trademark applications, trade
names, copyrights, copyright applications, rights to xxx and recover for
past infringement of patents, trademarks and copyrights, computer programs,
computer
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software, engineering drawings, service marks, customer lists, goodwill,
and all licenses, permits, agreements of any kind or nature pursuant to
which TRC possesses, uses or has authority to possess or use property
(whether tangible or intangible) of others or others possess, use or have
authority to possess or use property (whether tangible or intangible) of
TRC, and all recorded data of any kind or nature, regardless of the
medium of recording including, without limitation, all software, writings,
plans, specifications and schematics.
TRC has attached hereto a duly completed Perfection Certificate and
represents and warrants with respect to the matters set forth in such
Perfection Certificate. TRC further covenants and agrees that by its execution
hereof it shall provide all such information, complete all such forms and, take
all such actions, and enter into all such agreements, in form and substance
reasonably satisfactory to the Agent that are reasonably deemed necessary by
the Agent in order to grant to the Agent, for the benefit of the Banks and the
Agent, a valid, first-priority perfected security interest in all of the assets
of the undersigned securing the Obligations; provided that TRC shall not be
required to grant a mortgage on its leasehold interests in the Real Estate and
on any fee owned Real Estate located in Florida.
4. NEW BORROWER'S REPRESENTATIONS AND WARRANTIES. TRC hereby acknowledges,
and represents and warrants, the following:
(a) it is a corporation duly incorporated, validly existing, and in
good standing under the laws of the State of Delaware on or prior to the
date hereof;
(b) its chief executive office and principal place of business, and
the location at which its books and records are kept, is located at 0000
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000,
(c) it is capable of complying with and is in compliance with all of
the provisions of the Credit Agreement and the Loan Documents applicable
to it, after giving effect to this Joinder and Amendment;
(d) except as set forth on Annex 4(d) hereto, each of the
representations and warranties set forth in ss.8 of the Credit Agreement
is true and correct in all material respects as of the date hereof (except
to the extent of changes resulting from transactions contemplated or
permitted by the Credit Agreement and the other Loan Documents, including
those contemplated and permitted by this Joinder and Amendment No. 2, and
changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse,
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and except to the extent that such representations and warranties relate
expressly to an earlier date);
(e) TRC wishes to grant security interests in favor of the Agent, for
the benefit of the Banks and the Agent, as herein provided and to become a
party to the Security Agreement; and
(f) upon execution of this Joinder and Amendment, the undersigned
will be jointly and severally liable, together with Perkins, for the
payment and performance of all obligations of the Borrowers under the
Credit Agreement as supplemented hereby.
5. DELIVERY OF DOCUMENTS. This Joinder and Amendment shall be effective
upon the receipt by the Agent of the following documents, each of the following
to be in form and substance satisfactory to the Agent (the date of the
satisfaction of such conditions referred to herein as the "Effective Date"):
a. a signature page hereto, duly executed by each of the Borrowers, the
Guarantors, and the Banks;
b. a legal opinion from counsel to the Borrowers as to the legal, valid and
binding nature of the Loan Documents, as supplemented hereby;
c. copies, certified by a duly authorized officer of TRC to be true and
complete as of the date hereof, of each of (i) the charter documents of TRC
as in effect on the date hereof, (ii) the by-laws of TRC as in effect on
the date hereof, (iii) the resolutions of the Board of Directors or a
committee thereof of TRC authorizing the execution and delivery of this
Joinder and Amendment, the other documents executed in connection herewith
and TRC's performance of all of the transactions contemplated hereby, and
(iv) an incumbency certificate giving the name and bearing a specimen
signature of each individual who shall be authorized to sign, in TRC's name
and on its behalf, each of this Joinder and Amendment and the other Loan
Documents, any Revolving Credit Loan Request, and Letter of Credit
Applications, and to give notices and to take other action on its behalf
under the Loan Documents;
d. a certificate of the Secretary of State of Delaware as of a recent date as
to TRC's good standing, valid existence and tax payment status;
e. UCC-1 financing statements and other documents and instruments necessary to
perfect the Agent's security interest for the benefit of the Banks in all
of TRC's assets; provided that TRC shall not be required
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to grant a mortgage on its leasehold interests in the Real Estate and on
any fee owned Real Estate located in Florida; and
f. such other documents as the Agent may reasonably request.
6. CONSENT TO MERGERS. Notwithstanding the provisions of Section 10.5(a)
of the Credit Agreement, each of the Banks hereby consents to the Mergers as
defined in Section 2(c) hereof.
7. MISCELLANEOUS. This Joinder and Amendment shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts. This
Joinder and Amendment may be executed in any number of counterparts, each of
which shall be an original and all of which together shall constitute one
agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Joinder and Amendment
to be executed by their duly authorized officer as of the date first written
above.
XXXXXXX FAMILY
RESTAURANTS, L.P.
By: Xxxxxxx Management Company,
Inc., its General Partner
By:
-----------------------------------
Name:
Title:
THE RESTAURANT COMPANY
By:
-----------------------------------
Name:
Title:
XXXXXXX FINANCE CORP.
By:
-----------------------------------
Name:
Title:
BANKBOSTON, N.A., individually
and as Agent
By:
-----------------------------------
Name:
Title:
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BANK OF AMERICA, N.A. (f/k/a
Nationsbank, N.A.), individually
and as Syndication Agent
By:___________________________
Name:
Title:
FIRST AMERICAN NATIONAL BANK
By:___________________________
Name:
Title:
FLEET BUSINESS CREDIT
CORPORATION
By:___________________________
Name:
Title:
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CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 16th day of December, 1999, personally appeared Xxxxxx X.
XxXxxxxxx to me known personally, and who, being by me duly sworn, deposes and
says that he is the Vice President and Chief Financial Officer of The
Restaurant Company and that said instrument was signed on behalf of said
corporation by authority of its Board of Directors, and said Xxxxxx X.
XxXxxxxxx acknowledged said instrument to be the free act and deed of said
corporation.
____________________________
Notary Public
My commission expires:
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