Amendment No. 1 to Second Amended and Restated Loan Agreement



 EXHIBIT 10 (d)(2) 
  
 AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED LOAN AGREEMENT 
 [REVOLVING AND BULLET LOANS] 
  
 THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED LOAN AGREEMENT [REVOLVING AND BULLET LOANS] is made as of September 27, 2005 (this “Amendment”) by and between U.S. BANK NATIONAL
ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (together with its successors and assigns, the “Bank”), and FRISCH’S RESTAURANTS, INC., an Ohio
corporation (the “Borrower”), with respect to the Second Amended and Restated Loan Agreement [Revolving and Bullet Loans] entered into as of October 15, 2004 by the Bank and the Borrower (as the same has been amended
and/or supplemented from time to time, and as the same may be further amended, supplemented, restated, or otherwise modified from time to time) (the “Agreement”). Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to such terms in the Agreement as amended hereby. 
  
 R E C I T A L S 
  
 WHEREAS, the Borrower and the Bank have entered into the Agreement; and 
  
 WHEREAS, the Bank has advanced Loans to the Borrower pursuant to the terms of the Agreement; and 
  
 WHEREAS, subject to the terms and conditions of this Amendment, the Bank and the Borrower have agreed to amend certain provisions of the Agreement as
specifically set forth herein; 
  
 NOW, THEREFORE, in
consideration of the premises and the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 
  
 Section 1. Amendments to Section 4(a)(i) of the Agreement.
Section 4(a)(i) of the Agreement is hereby amended and restated in its entirety as follows: 
  
 (i) Revolving Loan. Subject to the terms and conditions of this Agreement, and subject to there being no Event of Default (or event
which might, with the giving of notice or the passage of time, mature into an Event of Default) by the Borrower hereunder, the Bank agrees to lend and relend to the Borrower, upon request by the Borrower made to the Bank in the manner described in
Sections 4(b) and (c) below, during the period from the date hereof to the earlier of (A) September 1, 2008, or the termination date of any extension hereof agreed to by the Borrower and the Bank as described below, or
(B) the date of the occurrence of an Event of Default, unless waived by the Bank (the earlier of such dates being referred to herein as the “Commitment Termination Date”), a 








 
principal sum of up to Five Million Dollars ($5,000,000) (the “Total Commitment Amount”), as the Borrower may from time to time request for
the Borrower’s working capital needs (the “Revolving Loan”); provided, however, that the Bank shall not be required to make, and the Borrower shall not be entitled to receive, any Revolving Loan if, after giving effect thereto,
the aggregate outstanding principal balance of the Revolving Loan would exceed the Total Commitment Amount. 
  
 Each Revolving Loan hereunder shall be in the amount of Five Hundred Thousand Dollars ($500,000) or a multiple thereof. The Revolving Loan
shall be evidenced by a Sixteenth Amended and Restated Revolving Credit Promissory Note given by the Borrower to the Bank in substantially the form of Exhibit F attached hereto, as amended and/or restated from time to time (the
“Revolving Note”). The Revolving Note shall mature and be payable in full on September 1, 2008, unless accelerated or extended as described herein. The Revolving Note shall replace the Fifteenth Amended and Restated Revolving
Credit Promissory Note dated as of October 15, 2004 given by the Borrower to the Bank (the “Prior Note”), and amounts outstanding under the Prior Note shall not be deemed cancelled or satisfied, but shall be evidenced by the
Revolving Note instead of by the Prior Note. If the outstanding principal balance of the Revolving Loan at any time exceeds the Total Commitment Amount, the Borrower shall immediately, without notice or demand, reduce the outstanding principal
balance of the Revolving Loan such that the Total Commitment Amount is not exceeded. 
  
 Upon request by the Borrower, the Bank may consider extensions of the Commitment Termination Date, but is not hereby committing in any way
thereto. Upon any such extension, at the option of the Bank, the Borrower shall execute a new promissory note substantially identical to the Revolving Note, except reflecting the new Commitment Termination Date, which thereupon shall be the
Revolving Note hereunder. 
  
 Notwithstanding
anything to the contrary herein, the Borrower covenants and agrees to pay down the outstanding balance of the Revolving Loan and the Revolving Note to Zero Dollars ($0) for not less than thirty (30) consecutive days during each of the
Borrower’s fiscal years, commencing with the Borrower’s fiscal year beginning on June 3, 2002. 
  
 Section 2. Amendment and Restatement of Exhibit D to the Agreement. Exhibit D to the Agreement is hereby amended and restated in its
entirety as set forth at Exhibit D attached hereto. 
  
 Section 3. Amendment and Restatement of Exhibit F to the Agreement. Exhibit F to the Agreement is hereby amended and restated in its entirety as set forth at Exhibit F attached hereto. 
  

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 Section 4. Release of Mortgages. The Bank agrees, in conjunction with the effectiveness of
this Amendment, to release the mortgages that the Bank holds against the following four (4) parcels of real property of the Borrower: 
  
 1402 Cedar Street, (Store #269) 
 Clarksville,
Clark County, Indiana 
 (Document No. 513917) 
  
 1046 W. Eads Parkway (Store #261) 
 Lawrenceburg, Dearborn County, Indiana 
 (Document No. 513941) 
  
 6611 Miller Lane (Store #267) 
 Dayton, Montgomery County, Ohio 
 (Document
No. 513947) 
  
 79 Springside Drive (Store #264)

 Akron, Summit County, Ohio 
 (Document No. 513933) 
  
 The Bank shall retain its mortgages
against the following two (2) parcels of real property of the Borrower: 
  
 12090 Mason-Montgomery Road (Store #262) 
 Montgomery, Hamilton County, Ohio (*Registered Land) 

 
 5325 Ridge Road (Store #266) 
 Cincinnati, Hamilton County, Ohio 
  
 Section 5. Representations and Warranties. The Borrower hereby represents and warrants to the Bank that: 
  
 (a) no default or Event of Default has occurred and is
continuing on and as of the date hereof; 
  
 (b)
the representations and warranties of the Borrower contained in the Agreement and the other Loan Documents are true and correct on and as of the date hereof as if made on and as of the date hereof, except to the extent that such representations and
warranties expressly relate to a different date; and 
  
 (c) the execution and delivery by the Borrower of this Amendment and the performance by the Borrower of all of its agreements and obligations under this Amendment, the Agreement as amended hereby, and the other Loan Documents, respectively,
are within the power and authority of the Borrower and have been duly authorized by all necessary action on the part of the Borrower, and the execution and delivery by the Borrower of this Amendment, and the performance by it of the transactions
contemplated 

  

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hereby, do not and will not contravene any term or condition set forth in any agreement or instrument to which the Borrower is a party or by which the
Borrower is bound. 
  
 Section 6. Effectiveness and
Conditions Precedent. This Amendment shall become effective upon the Bank’s receipt of: (a) counterparts of this Amendment executed and delivered by the Borrower; (b) a fully executed original of a certificate of officers of the
Borrower with attached resolutions of the Board of Directors of the Borrower (in each case in form and substance satisfactory to the Bank in its sole discretion) authorizing the execution and delivery of this Amendment and consummation of the
transactions contemplated hereby by the Borrower; (c) an original of the Sixteenth Amended and Restated Promissory Note attached hereto as Exhibit F duly executed by the Borrower; and (d) all items necessary to render effective
Amendment No. 1 to First Amended and Restated Loan Agreement [Golden Corral] of even date between the Borrower and the Bank. 
  
 Section 7. Status of Loan Documents; Additional Representations and Warranties. 
  
 (a) This Amendment is limited solely for the purposes and to
the extent expressly set forth herein, and the terms, provisions, and conditions of the Loan Documents, and the Liens granted under the Loan Documents, shall continue in full force and effect and are hereby ratified and confirmed in all respects.
The Borrower expressly reaffirms all of the Loan Documents and the debts and other obligations thereunder, the Borrower agrees that nothing contained herein shall operate to release any of the Borrower or any other person or entity from liability to
keep and perform the provisions, conditions, obligations, and agreements contained in the Loan Documents, except as may be herein modified, and the Borrower hereby reaffirms that each and every provision, condition, obligation, and agreement in such
documents shall continue in full force and effect, except as may be herein modified. The validity, priority, and perfection of all security interests and other liens granted or created by the Loan Documents are hereby acknowledged and confirmed by
the Borrower, and the Borrower agrees that such documents shall continue to secure the Loans and the other obligations, as the same may be amended by this Amendment, without any change, loss, or impairment of the priority of such security interests
or other liens. 
  
 (b) No amendment of any terms
or provisions of the Agreement made hereunder shall relieve the Borrower from complying with any other term or provision of the Agreement or any of the other Loan Documents. 
  
 (c) No action taken by the Bank prior to, on, or after the date hereof shall constitute a waiver of or
modification of any term or condition of any of the Loan Documents, except as specifically set forth herein, or prejudice any rights which the Bank may now have as of the date hereof or may have in the future under or in connection with the Loan
Documents, including, without limitation, all rights and remedies in connection with defaults, Events of Default, and failures of conditions precedent to the making of Loans that have occurred and are continuing, all of which rights and remedies the
Bank hereby expressly reserves. 
  

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 Section 8. Miscellaneous. 
  
 (a) No Waiver, Cumulative Remedies. No failure or delay or course of dealing on the part of the Bank
in exercising any right, power, or privilege hereunder shall operate as an express or implied waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege hereunder. The rights, powers, and remedies herein expressly provided are cumulative and not exclusive of any rights, powers, or remedies which the Bank would otherwise have. No notice to or demand on
the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Bank to any other or further action in any circumstances without notice or
demand. 
  
 (b) Ratification, Etc. Except
as expressly provided for herein, the Agreement and all documents, instruments, and agreements related thereto, including, but not limited to, the other Loan Documents, are hereby ratified and confirmed in all respects and shall continue in full
force and effect. The Agreement and this Amendment shall be read and construed as a single agreement. This Amendment shall constitute one of the Loan Documents. All references in the Agreement, the Loan Documents, or any related agreement or
instrument to the Agreement shall hereafter refer to the Agreement as amended hereby. 
  
 (c) Expenses. The Borrower agrees to pay and reimburse the Bank for all of its costs and expenses (including, without limitation,
costs and expenses of legal counsel) in connection with this Amendment. 
  
 (d) Bankruptcy; Insolvency. The Borrower hereby represents and warrants that, on and as of the date hereof: no proceeding has been filed or commenced by or against the Borrower for dissolution, termination, or
liquidation; nor does there exist insolvency of the Borrower, nor does the Borrower fail to pay its debts as they become due in the ordinary course of business; nor has a creditor’s committee been appointed for the business of the Borrower; nor
has the Borrower made an assignment for the benefit of creditors, or filed a petition in bankruptcy or for reorganization or to effect a plan of arrangement with creditors; nor has the Borrower applied for or permitted the appointment of a receiver
or trustee for any or all of its property, assets, or rights; nor is the Borrower aware of any such receiver or trustee being appointed for any or all of its property, assets, or rights. 
  
 (e) Headings Descriptive. The headings of the several sections and subsections of this Amendment are
inserted for convenience only and shall not in any way affect the meaning or construction of any provision. 
  
 (f) Severability. In case any provision in or obligation under this Amendment shall be invalid, illegal, or unenforceable in any
jurisdiction, the validity, legality, and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. 
  
 (g) Counterparts; Execution. This Amendment may be
executed and delivered in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same
instrument. The exchange of copies of this 

  

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Amendment and of signature pages by facsimile or electronic mail transmission shall constitute effective execution and delivery of this Amendment as to the
parties and may be used in lieu of the original Amendment for all purposes. Signatures of the parties transmitted by facsimile or electronic mail shall be deemed to be their original signatures for all purposes. 
  
 (h) Release. The Borrower hereby acknowledges and
confirms that: (i) it does not have any grounds, and hereby agrees not to challenge (or to allege or to pursue any matter, cause, or claim arising under or with respect to), in any case based upon acts or omissions of the Bank occurring prior
to the date hereof or facts otherwise known to it as of the date hereof, the effectiveness, genuineness, validity, collectability, or enforceability of the Agreement or any of the other Loan Documents, the obligations of the Borrower to the Bank,
the Liens securing such obligations, or any of the terms or conditions of any Loan Document; and (ii) it does not possess (and hereby forever waives, remises, releases, discharges, and holds harmless the Bank and its affiliates, stockholders,
directors, officers, employees, attorneys, agents, and representatives and each of their respective heirs, executors, administrators, successors, and assigns (collectively, the “Indemnified Parties”) from and against, and
agrees not to allege or pursue) any action, cause of action, suit, debt, claim, counterclaim, cross-claim, demand, defense, offset, opposition, demand, and/or other right of action whatsoever, whether in law, equity, or otherwise (which it, all
those claiming by, through, or under it, or its successors or assigns, have or may have) against the Indemnified Parties, or any of them, by reason of, any matter, cause, or thing whatsoever, with respect to events or omissions occurring or arising
on or prior to the date hereof and relating to the Agreement or any of the other Loan Documents (including, without limitation, with respect to the payment, performance, validity, or enforceability of the obligations of the Borrower to the Bank, the
Liens securing such obligations, or any or all of the terms or conditions of any Loan Document) or any transaction relating thereto. 
  
 (i) Modification. No amendment or waiver of any provision of this Amendment shall be effective unless the same shall be in writing
and signed by the Bank and the Borrower, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 
  
 Section 9. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER LAW. 
  
 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers as of the
date first written above. 
  

									
	 U.S. BANK NATIONAL ASSOCIATION
	 	 	 	 FRISCH’S RESTAURANTS, INC.

					
	By:	 	/s/    KENDRA BACH        	 	 	 	By:	 	/s/    DONALD H. WALKER        
	 	 	Kendra Bach	 	 	 	 	 	Donald H. Walker
	 	 	Vice President	 	 	 	 	 	Vice President-Finance

  

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 EXHIBIT D 
  
 FINANCIAL COVENANTS 
  
 The Borrower agrees that it shall: 
  
 (a) Tangible Net Worth. Not permit the Borrower’s tangible net worth, on a consolidated basis, to be less than the following amounts (each, a
“Base Tangible Net Worth”) at any time during the following time periods (each, a “TNW Year”): 
  

			
	 TNW Year

	 	 Base Tangible Net Worth


	the period commencing with June 1, 2004 and continuing through the next to last day of the fiscal year ending May 29, 2005 (“FY 05”)	 	$73,000,000
		
	any period commencing with the last day of a fiscal year, beginning with the period commencing on the last day of FY 05, through the next to last day of the next fiscal year	 	the Base Tangible Net Worth for the immediately preceding TNW Year plus $5,000,000

  
 “Tangible net worth”
for purposes hereof shall mean the total of book net worth less any assets, except capitalized leases, considered intangible under generally accepted accounting principles. 
  
 (b) Ratio of Senior Bank Debt to EBITDA. Not permit the ratio of the Borrower’s Senior Bank Debt to EBITDA to
exceed 2.00 to 1.0 at any time. 
  
 “Senior Bank Debt” for
purposes hereof shall mean the sum of all obligations of the Borrower to the Bank, including without limitation all obligations of the Borrower to the Bank incurred in connection with this Agreement and the Golden Corral Loan Agreement, and all
obligations of the Borrower to the Bank incurred in connection with any existing or future lease transactions capitalized or required to be capitalized on the Borrower’s books. 
  
 “EBITDA” for purposes hereof shall mean the Borrower’s consolidated gross (before interest, taxes, depreciation and
amortization) earnings, less cash and non-cash extraordinary gains and non-cash extraordinary losses, calculated in accordance with generally accepted accounting principles consistently applied in accordance with past practices on a rolling four
(4) quarter basis. 
  
 (c) Cash Flow Coverage Ratio.
Not permit the ratio of (i) the Borrower’s EBITDA plus operating lease payments minus Ten Million Dollars ($10,000,000) minus cash dividends to the Borrower’s shareholders, to (ii) the sum of the Borrower’s scheduled
principal payments on long term debt and capital lease obligations plus interest expense plus operating lease payments 

  

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(in each case for the same period that the Borrower’s EBITDA is measured), calculated in accordance with generally accepted accounting principles
consistently applied in accordance with past practices on a rolling four (4) quarter basis, to be less than 1.25 to 1.0 at any time. 
  
 (d) Senior Bank Debt. Not permit the unpaid balance of Borrower’s Senior Bank Debt at any time to exceed Fifty Million Dollars ($50,000,000).

  

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 EXHIBIT F 
  
 SIXTEENTH AMENDED AND RESTATED 
 REVOLVING CREDIT PROMISSORY NOTE 
  

			
	$5,000,000.00	  	Cincinnati, Ohio
	 	  	September 27, 2005

  
 FRISCH’S
RESTAURANTS, INC., an Ohio corporation (the “Borrower”), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank,
National Association (the “Bank”), or it successors or assigns, on or before September 1, 2008, the principal sum of FIVE MILLION DOLLARS ($5,000,000), or such portion thereof as may be outstanding from time to time, together
with interest thereon as hereinafter provided. 
  
 This is the
Revolving Note referred to in, was executed and delivered pursuant to, and evidences indebtedness of the Borrower incurred under, that certain Second Amended and Restated Loan Agreement [Revolving and Bullet Loans] dated as of October 15, 2004
between the Borrower and the Bank, as the same has been and/or may be amended, restated, supplemented, renewed, or otherwise modified and in effect from time to time (the “Loan Agreement”), to which reference is hereby made for a
statement of the terms and conditions under which the Revolving Loan evidenced hereby was made and is to be repaid and for a statement of the Bank’s remedies upon the occurrence of an Event of Default. Capitalized terms used herein, but not
otherwise specifically defined, shall have the meanings ascribed to such terms in the Loan Agreement. 
  
 The Borrower further promises to pay interest on the outstanding unpaid principal amount hereof from the date hereof until payment in full at the rate or
rates from time to time applicable to the Revolving Loan as determined in accordance with the Loan Agreement; provided, however, that upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay
interest on the outstanding principal balance of this Revolving Note at the rate of interest applicable following the occurrence of an Event of Default as determined in accordance with the Loan Agreement. 
  
 Interest on this Revolving Note shall be payable, at the times and from the
dates specified in the Loan Agreement, on the date of any prepayment hereof, at maturity, whether due by acceleration or otherwise, and as otherwise provided in the Loan Agreement. From and after the date when the principal balance hereof becomes
due and payable, whether by acceleration or otherwise, interest hereon shall be payable on demand. In no contingency or event whatsoever shall interest charged hereunder, however such interest may be characterized or computed, exceed the highest
rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court determines that the Bank has received interest hereunder in excess of the highest rate
applicable hereto, such excess shall be applied in accordance with the terms of the Loan Agreement. 
  

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 The indebtedness evidenced by this Revolving Note is secured pursuant to the terms of the Loan Documents.

  
 The Borrower hereby waives demand, presentment, and protest
and notice of demand, presentment, protest, and nonpayment. 
  
 The Borrower further agrees, subject only to any limitation imposed by applicable law, to pay all expenses, including attorneys’ fees and legal expenses, incurred by the Bank in endeavoring to collect any amounts payable hereunder
which are not paid when due, whether by acceleration or otherwise. 
  
 IMPORTANT: This Revolving Note shall be deemed made in Ohio and shall in all respects be governed by and construed in accordance with the laws of the State of Ohio, including all matters of construction, validity and performance. Without
limitation on the ability of the Bank to initiate and prosecute any action or proceeding in any applicable jurisdiction related to loan repayment, the Borrower and the Bank agree that any action or proceeding commenced by or on behalf of the parties
arising out of or relating to this Revolving Note shall be commenced and maintained exclusively in the District Court of the United States for the Southern District of Ohio, or any other court of applicable jurisdiction located in Cincinnati, Ohio.
The Borrower and the Bank also agree that a summons and complaint commencing an action or proceeding in any such Ohio courts by or on behalf of such parties shall be properly served and shall confer personal jurisdiction on a party to which said
party consents, if (a) served personally or by certified mail to the other party at any of its addresses noted herein, or (b) as otherwise provided under the laws of the State of Ohio. The interest rates and all other terms of this
Revolving Note negotiated with the Borrower are, in part, related to the aforesaid provisions on jurisdiction, which the Bank deems a vital part of this loan arrangement. 
  
 This Note amends and restates the Fifteenth Amended and Restated Revolving Credit Promissory Note dated as of
October 15, 2004 given by the Borrower to the Bank, and evidences all amounts outstanding as of the date hereof under said Fifteenth Amended and Restated Revolving Credit Promissory Note. 
  
 Presentment for payment, notice of dishonor, protest and notice of protest
are hereby waived. 
  

			
	 FRISCH’S RESTAURANTS, INC.

		
	By:	  	/s/    DONALD H. WALKER        
	 	  	Donald H. Walker, Vice President-Finance



			
		
	 Address:
	  	2800 Gilbert Avenue
	 	  	 Cincinnati, Ohio 45206



  

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