LANDRYS RESTAURANTS, INC. AND U.S. BANK NATIONAL ASSOCIATION, as Trustee
EXHIBIT 10.36
LANDRYS RESTAURANTS, INC.
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of November 19, 2007
to
INDENTURE
Dated as of December 28, 2004
7.50% SENIOR NOTES DUE 2014
SECOND SUPPLEMENTAL INDENTURE, dated as of November 19, 2007, between LANDRYS RESTAURANTS, INC., a Delaware corporation (the Company), the Subsidiary Guarantors named herein and U.S. BANK NATIONAL ASSOCIATION, as successor to Wachovia Bank, National Association, not in its individual capacity but solely as Trustee (the Trustee). All capitalized terms used but not otherwise defined herein shall have the meaning given to such terms in the Indenture (as defined below).
W I T N E S S E T H
WHEREAS, the Company and the Subsidiary Guarantors have heretofore executed and delivered to the Trustee a certain Indenture, dated as of December 28, 2004 (as amended by that First Supplemental Indenture, dated as of October 29, 2007, the Indenture), pursuant to which $400,000,000 aggregate principal amount of 7.50% Senior Notes due 2014 of the Company (collectively, the Notes) were issued; and
WHEREAS, pursuant to and in accordance with the provisions of Section 4.17 of the Indenture, the Company has redesignated certain Unrestricted Subsidiaries as Restricted Subsidiaries (the New Restricted Subsidiaries) and pursuant to Section 4.19 of the Indenture each such New Restricted Subsidiary is required to execute and deliver to the Trustee a supplemental indenture pursuant to which such New Restricted Subsidiary shall unconditionally and irrevocably guarantee the Companys obligations under the Indenture; and
WHEREAS, Landrys Seafood House-Little Rock, Inc., an Arkansas corporation (Little Rock), a Restricted Subsidiary under the Indenture, has been dissolved in accordance with the provisions of Section 4.05 of the Indenture; and
WHEREAS, each New Restricted Subsidiary desires to execute this Second Supplemental Indenture for the purpose of agreeing and acknowledging that it is a Subsidiary Guarantor under the terms of the Indenture; and
WHEREAS, the Company desires and has requested the Trustee to join with it in the execution and delivery of this Second Supplemental Indenture; and
WHEREAS, the Company has furnished the Trustee with an Officers Certificate and an Opinion of Counsel complying with the requirements of Sections 9.01, 9.06, 13.04 and 13.05 of the Indenture; and
WHEREAS, all things necessary to make this Second Supplemental Indenture a valid agreement of the Company and the Trustee and a valid amendment to and waiver of the Indenture have been done.
AGREEMENT
NOW, THEREFORE, for and in consideration of the foregoing premises, it is mutually covenanted and agreed for the equal and proportionate benefit of all Holders of the Notes, as follows:
SECTION 1. Amendments to the Indenture. Each of T-Rex Café, Inc., a Delaware corporation, T-Rex Café Kansas City, Inc., a Kansas corporation and T-Rex Café Orlando, Inc., a Florida corporation unconditionally and irrevocably guarantees to each Holder and to the Trustee the due and punctual payment of the principal of, premium, if any, and interest on the Notes and all other amounts due and payable under the Indenture and the Notes whether at maturity, by acceleration, redemption, repurchase or otherwise, including, without limitation, interest on the overdue principal of, premium, if any, and interest on the Notes, to the extent lawful, on the terms and subject to the conditions set forth in Article Eleven of the Indenture and agrees to be bound by all other provisions of the Indenture applicable to a Subsidiary Guarantor therein.
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SECTION 2. Effectiveness. This Second Supplemental Indenture shall become effective and be deemed effective as of the date first set forth above. On and after the effectiveness of this Second Supplemental Indenture, each reference to the Indenture in the Indenture or any other document related thereto shall mean and be a reference to the Indenture as amended by this Second Supplemental Indenture.
SECTION 3. Ratification of Indenture. The Indenture as specifically amended by this Second Supplemental Indenture 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 Second Supplemental Indenture shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any party hereto under the Indenture or any other document related thereto nor constitute a waiver of any provision thereof.
SECTION 4. Governing Law. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 5. Headings, Etc. Section headings of this Second Supplemental Indenture are inserted for convenience of reference only and are not to be considered party of this Second Supplemental Indenture for any purpose.
SECTION 6. Counterparts. This Second Supplemental Indenture may be executed by the parties hereto in separate counterparts, each of which shall be deemed an original, and all such counterparts shall together constitute but one and the same instrument.
SECTION 7. Trustee Not Responsible for Recitals. The recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties below have caused this Second Supplemental Indenture to be duly executed as of the day and year first above written.
LANDRYS RESTAURANTS, INC., Issuer | ||||||||
By: |
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Name: |
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Title: |
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Subsidiary Guarantors: | ||||||||
C.A. MUER CORPORATION | ||||||||
CAPT. CRABS TAKE-AWAY OF 79TH STREET, INC. | ||||||||
CHLN, INC. | ||||||||
CHLNMARYLAND, INC. | ||||||||
CRAB HOUSE, INC. | ||||||||
CRYO REALTY, CORP. | ||||||||
FSI DEVCO, INC. | ||||||||
FSI RESTAURANT DEVELOPMENT, LTD. | ||||||||
BY: | Saltgrass, Inc., General Partner of FSI Restaurant Development, Ltd. | |||||||
HOSPITALITY HEADQUARTERS, INC. | ||||||||
HOUSTON AQUARIUM, INC. | ||||||||
INN AT THE BALLPARK CATERING, INC. | ||||||||
LANDRYS CRAB SHACK, INC. | ||||||||
LANDRYS DEVELOPMENT, INC. | ||||||||
LANDRYS DOWNTOWN AQUARIUM, INC. | ||||||||
LANDRYS G.P., INC. | ||||||||
LANDRYS HARLOWS, INC. | ||||||||
LANDRYS LIMITED, INC. | ||||||||
LANDRYS MANAGEMENT, L.P. | ||||||||
BY: | Landrys G.P., Inc., General Partner of Landrys Management, L.P. | |||||||
LANDRYS PESCE, INC. | ||||||||
LANDRYS SEAFOOD HOUSEALABAMA, INC. | ||||||||
LANDRYS SEAFOOD HOUSEARLINGTON, INC. | ||||||||
LANDRYS SEAFOOD HOUSEBILOXI, INC. | ||||||||
LANDRYS SEAFOOD HOUSECOLORADO, INC. | ||||||||
LANDRYS SEAFOOD HOUSEFLORIDA, INC. | ||||||||
LANDRYS SEAFOOD HOUSELAFAYETTE, INC. | ||||||||
LANDRYS SEAFOOD HOUSEMEMPHIS, INC. | ||||||||
LANDRYS SEAFOOD HOUSEMINNESOTA, INC. | ||||||||
LANDRYS SEAFOOD HOUSEMISSOURI, INC. | ||||||||
LANDRYS SEAFOOD HOUSENEVADA, INC. | ||||||||
LANDRYS SEAFOOD HOUSENEW MEXICO, INC. |
LANDRYS SEAFOOD HOUSENEW ORLEANS, INC. | ||||||||
LANDRYS SEAFOOD HOUSENORTH CAROLINA, INC. | ||||||||
LANDRYS SEAFOOD HOUSEOHIO, INC. | ||||||||
LANDRYS SEAFOOD HOUSESAN LUIS, INC. | ||||||||
LANDRYS SEAFOOD HOUSESOUTH CAROLINA, INC. | ||||||||
LANDRYS SEAFOOD INN & OYSTER BAR, INC. | ||||||||
LANDRYS SEAFOOD INN & OYSTER BAR II, INC. | ||||||||
LANDRYS SEAFOOD INN & OYSTER BARGALVESTON, INC. | ||||||||
LANDRYS SEAFOOD INN & OYSTER BARKEMAH, INC. | ||||||||
LANDRYS SEAFOOD INN & OYSTER BARSAN ANTONIO, INC. | ||||||||
LANDRYS SEAFOOD INN & OYSTER BARSUGAR CREEK, INC. | ||||||||
LANDRYS SEAFOOD KEMAH, INC. | ||||||||
LANDRYS SEAFOOD & STEAK HOUSECORPUS CHRISTI, INC. | ||||||||
LANDRYS TRADEMARK, INC. | ||||||||
LCH ACQUISITION, INC. | ||||||||
LSRI HOLDINGS, INC. | ||||||||
MARINA ACQUISITION CORPORATION OF FLORIDA, INC. | ||||||||
NASHVILLE AQUARIUM, INC. | ||||||||
NEVADA AQUARIUM, INC. | ||||||||
OCEAN BLUE INDUSTRIES, INC. | ||||||||
RAINFOREST CAFE, INC. | ||||||||
RAINFOREST CAFE, INC.BALTIMORE COUNTY | ||||||||
RAINFOREST CAFE, INC.CHA CHA | ||||||||
RAINFOREST CAFE, INC.KANSAS | ||||||||
RAINFOREST TRADEMARK, INC. | ||||||||
SALTGRASS, INC. | ||||||||
SEAFOOD HOLDING SUPPLY, INC. | ||||||||
SUMMIT AIRCRAFT SERVICES, INC. | ||||||||
SUMMIT ONE NETWORK, INC. | ||||||||
SUMMIT SEAFOOD SUPPLY, INC. | ||||||||
SUMMIT SUPPLY, INC. | ||||||||
T-REX CAFÉ, INC. | ||||||||
T-REX CAFÉ-KANSAS CITY, INC. | ||||||||
T-REX CAFÉ ORLANDO, INC. | ||||||||
WEST END SEAFOOD, INC. | ||||||||
WILLIE GS GALVESTON, INC. | ||||||||
WILLIE GS POST OAK, INC. | ||||||||
WSI FISH LIMITED | ||||||||
BY: | Saltgrass, Inc., General Partner of WSI Fish Limited | |||||||
By: |
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Name: | Steven L. Scheinthal | |||||||
Title: | Secretary |
U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee | ||||||||
By: |
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Name: |
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Title: |
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