EXHIBIT 10.1
SECOND AMENDMENT
Dated as of May 23, 2003
This SECOND AMENDMENT (the "Second Amendment") among AVADO BRANDS, INC., a
Georgia corporation ("Borrower"), each of the lenders that from time to time is
a party to the Credit Agreement (referred to below) as lenders (such lenders,
each individually a "Lender" and collectively, the "Lenders"), HILCO CAPITAL LP,
as administrative agent for the Lenders (in such capacity, together with its
successors and assigns, if any, in such capacity, the "Administrative Agent"),
and DRAWBRIDGE SPECIAL OPPORTUNITIES FUND LP, as collateral agent for the
Lenders (in such capacity, together with its successors and assigns, if any, in
such capacity, the "Collateral Agent").
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Administrative Agent and the Collateral
Agent have entered into the Third Amended and Restated Credit Agreement dated as
of March 21, 2003, as amended from time to time including that certain First
Amendment dated as of May 8, 2003 (as so amended, the "Credit Agreement").
Unless otherwise defined herein, the terms defined in the Credit Agreement shall
be used herein as therein defined.
(2) The Borrower has requested that certain revisions be made to the Credit
Agreement and the Lenders have agreed to make such revisions on the terms and
subject to the conditions set forth in this Second Amendment.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, hereby amended as follows:
(a) Section 8.19 of the Credit Agreement is amended by adding clause (c) to
the end of such Section to read as follows:
"(c) Notwithstanding any provisions of this Section 8.19 to the contrary,
the Borrower shall have an extension to satisfy the post-closing requirements
set forth in this Section 8.19 as follows:
(i) With respect to Section 8.19(a)(i), all post-closing requirements shall
be completed by June 23, 2003 for Don Pablo's #62, Don Pablo's #86 and Don
Pablo's #93.
(ii) With respect to Section 8.19(a)(ii), all post-closing requirements
shall be completed by June 23, 2003 for Don Pablo's #92."
SECTION 2. Conditions of Effectiveness. This Second Amendment shall become
effective (the "Effective Date") as of the May 23, 2003 when the Collateral
Agent shall have received counterparts of this Second Amendment executed by the
Borrower and the Requisite Lenders.
SECTION 3. Representations and Warranties of the Borrowers. The Borrower
represents and warrants as follows:
(a) After giving effect to this Second Amendment, all of the
representations and warranties contained in the Credit Agreement and in the
other Loan Documents shall be true in all material respects.
(b) After giving effect to this Second Amendment, no Default or Event of
Default shall have occurred and be continuing (other than due to Borrower's
failure to pay the scheduled rent payment due on April 30, 2003 under the
SunTrust Master Lease Documents).
SECTION 4. Reference to and Effect on the Loan Documents. Upon the
effectiveness of Section 1 of this Second Amendment, on and after the date
hereof each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to "the Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement as amended hereby.
(a) Except as specifically amended above, the Credit Agreement and all
other Loan Documents, are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Loan Documents and all of the Collateral
described therein do and shall continue to secure the payment of all obligations
of the Borrowers under the Credit Agreement, the Notes and the other Loan
Documents, in each case as amended hereby.
(b) The execution, delivery and effectiveness of this Second Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 5. Execution in Counterparts. This Second Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement.
SECTION 6. Governing Law. This Second Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
[Signature page to follow]
1
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be executed as of the date first above written.
AVADO BRANDS, INC.
By:
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Title:
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HILCO CAPITAL LP,
as Administrative Agent and Lender
By:
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Title:
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DRAWBRIDGE SPECIAL OPPORTUNITIES FUND LP,
as Collateral Agent and Lender
By:
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DB SPECIAL OPPORTUNITIES LP
By:
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Title:
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HIGHBRIDGE/XXXXX
SPECIAL OPPORTUNITIES FUND, L.P.
By:
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Title:
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TRS METIS LLC
By:
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Title:
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