EXHIBIT 10.1
AMENDMENT NUMBER TWO TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NUMBER TWO TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") dated as of September 23, 2002, is entered among AVADO
BRANDS, INC., a Georgia corporation ("Borrower"), each of the lenders that from
time to time is a party hereto (such lenders, each individually a "Lender" and
collectively, the "Lenders"), FOOTHILL CAPITAL CORPORATION, a California
corporation, as administrative agent for the Lender Group (in such capacity,
together with its successors in accordance with the Transferee Side Letter, if
any, in such capacity, "Administrative Agent"), and ABLECO FINANCE LLC, a
Delaware limited liability company, as collateral agent for the Lender Group (in
such capacity, together with its successors in accordance with the Transferee
Side Letter, if any, in such capacity, the "Collateral Agent"; Administrative
Agent, Collateral Agent and the Lenders, individually and collectively, the
"Lender Group"), in light of the following:
W I T N E S S E T H
WHEREAS, Borrower, the Lenders, Administrative Agent, and Collateral Agent
are parties to that certain Second Amended and Restated Credit Agreement, dated
as of March 20, 2002, as amended by that certain Amendment Number One to Second
Amended and Restated Credit Agreement dated as of June 4, 2002 (as amended,
restated, supplemented, or modified from time to time, the "Credit Agreement");
WHEREAS, Borrower has requested that the Lender Group consent to the
amendment of the Credit Agreement as set forth herein; and
WHEREAS, subject to the satisfaction of the conditions set forth herein,
the Lender Group is willing to so consent to the amendment of the Credit
Agreement on the terms set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to amend the
Credit Agreement, effective immediately, as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement, as
amended hereby.
2. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 1.01 of the Credit Agreement hereby is amended by amending and
restating the following defined term in its entirety as follows:
"Permitted Deferred Taxes" means with respect to any date (each such date,
a "Determination Date") (A) before the date that is 90 days after the Effective
Date, taxes which are set forth on Schedule 5.01(k)(ii) in an aggregate
outstanding amount as of such Determination Date which is not more than
$9,741,000, (B) on and after the date that is 90 days after the Effective Date
and before the date that is 180 days after the Effective Date, penalties with
respect to sales taxes set forth on Schedule 5.01(k)(iii) in an aggregate
outstanding amount as of such Determination Date which is not more than
$2,100,000, other than sales taxes owed to the State of Michigan, (C) on and
after the date that is 180 days after the Effective Date and before the date
that is 300 days after the Effective Date, penalties with respect to sales taxes
set forth on Schedule 5.01(k)(iii) and owed to the State of Michigan, in an
aggregate outstanding amount as of such Determination Date which is not more
than $600,000, and (D) as of any Determination Date, any other taxes, interest
thereon and/or penalties in an aggregate outstanding amount as of such
Determination Date which is not more than $250,000.
(b) Section 1.01 of the Credit Agreement hereby is amended by inserting the
following new defined terms in proper alphabetical order:
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"Second Amendment" means that certain Amendment Number Two to Credit
Agreement, dated as of September 23, 2002, by and between the Borrower and the
Lender Group.
"Second Amendment Effective Date" means the date, if ever, that all of the
conditions set forth in Section 3 of the Second Amendment shall be satisfied (or
waived by Agent in its sole discretion).
"Second Amendment Fee" has the meaning set forth in Section 2.06(c).
(c) Section 1.01 of the Credit Agreement hereby is amended by deleting the
phrase "Section 6.02(c)(ii)(B)" appearing in the definition of "Disposition" and
replacing it with the phrase "Section 6.02(c)(iii)(F)".
(d) Section 1.01 of the Credit Agreement hereby is amended by deleting the
phrase "Section 6.02(c)(ii)" appearing in clause (xviii) of the definition of
"Permitted Investments" and replacing it with the phrase "Section 6.02(c)(iii)".
(e) Section 2.05(a)(ii) of the Credit Agreement is hereby amended by
inserting the phrase "or Subsection (c)(vi)" before the last word thereof.
(f) Section 2.05(c)(v) of the Credit Agreement hereby is amended by
deleting the phrase "Section 6.02(c)(ii)(C)" appearing in the first sentence
thereof and replacing it with the phrase "Section 6.02(c)(iii)(F)".
(g) Section 2.06 of the Credit Agreement is hereby amended by inserting the
following new clause (c) at the end thereof:
"(c) Second Amendment Fee. Borrower shall pay to Administrative Agent, for
the ratable benefit of the Lenders, an amendment fee in the amount of $25,000
(the "Second Amendment Fee"), which amendment fee shall be fully earned and
non-refundable on the Second Amendment Effective Date, and shall be charged to
Borrower's Loan Account on such date."
(h) Section 4.03(f) of the Credit Agreement is hereby amended and restated
in its entirety as follows:
"(f) Within 180 days of the Effective Date, deliver to Collateral Agent a
certificate of an Authorized Officer that states that all taxes imposed upon
Borrower or any of its Subsidiaries or any property of Borrower or any of its
Subsidiaries and which have become due and payable have been paid prior to
delinquency, except (i) to the extent subject to a Permitted Protest, and (ii)
taxes and penalties described in clauses (C) and (D) of the definition of
"Permitted Deferred Taxes"."
(i) Section 4.03 of the Credit Agreement is hereby amended by inserting the
following new clause (l) immediately after Section 4.03(k):
"(l) Within 300 days of the Effective Date, deliver to Collateral Agent a
certificate of an Authorized Officer that states that all taxes imposed upon
Borrower or any of its Subsidiaries or any property of Borrower or any of its
Subsidiaries and which have become due and payable have been paid prior to
delinquency, except (i) to the extent subject to a Permitted Protest, and (ii)
taxes and penalties described in clause (D) of the definition of "Permitted
Deferred Taxes"."
(j) Section 6.01(c) of the Credit Agreement is hereby amended by deleting
the phrase "(A) and (B)" and replacing it with the phrase "(A), (B) and (C)".
(k) Section 6.02(c)(iii)(E) of the Credit Agreement hereby is amended by
deleting the phrase "(c)(ii)(E)" appearing therein and replacing it with the
phrase "(c)(iii)(E)".
3. CONDITIONS PRECEDENT TO AMENDMENT. The satisfaction of each of the
following unless waived or deferred by the Required Lenders in their sole
discretion, shall constitute conditions precedent to the effectiveness of this
Amendment and each and every provision hereof:
(a) Collateral Agent shall have received the reaffirmation and consent of
each of the Guarantors in the form attached hereto as Exhibit A, on or before
the Second Amendment Effective Date, duly executed and delivered, and in full
force and effect.
(b) The representations and warranties in the Credit Agreement as amended
by this Amendment, and the other Loan Documents shall be true and correct in all
material respects on and as of the date hereof, as though made on such date
(except to the extent that such representations and warranties relate solely to
an earlier date).
(c) No injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
Governmental Authority against the Lender Group.
(d) No Event of Default shall result from the consummation of the
transactions contemplated herein.
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4. CONSTRUCTION. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to its
conflicts of laws principles (other than any provisions thereof validating the
choice of the laws of the State of New York as the governing law).
5. ENTIRE AMENDMENT. This Amendment, and terms and provisions hereof,
constitute the entire agreement among the parties pertaining to the subject
matter hereof and supersedes any and all prior or contemporaneous amendments
relating to the subject matter hereof. Except as expressly amended hereby, the
Credit Agreement and other Loan Documents shall remain unchanged and in full
force and effect. To the extent any terms or provisions of this Amendment
conflict with those of the Credit Agreement or other Loan Documents, the terms
and provisions of this Amendment shall control. This Amendment is a Loan
Document.
6. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Amendment may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this Amendment by
signing any such counterpart. Delivery of an executed counterpart of this
Amendment by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
7. AMENDMENTS. This Amendment cannot be altered, amended, changed or
modified in any respect or particular unless each such alteration, amendment,
change or modification shall have been agreed to by each of the parties and
reduced to writing in its entirety and signed and delivered by each party.
8. MISCELLANEOUS
(a) Upon the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of like
import referring to the Credit Agreement shall mean and refer to the Credit
Agreement as amended by this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in the Loan
Documents to the "Credit Agreement", "thereunder", "therein", "thereof" or words
of like import referring to the Credit Agreement shall mean and refer to the
Credit Agreement as amended by this Amendment.
(c) The Lender Group hereby reserves all remedies, powers, rights, and
privileges that the Lender Group may have under the Credit Agreement or the
other Loan Documents, at law (including under the Code), in equity, or
otherwise; and (b) all terms, conditions, and provisions of the Credit Agreement
and the other Loan Documents are and shall remain in full force and effect and
nothing herein shall operate as a consent to or a waiver, amendment, or
forbearance in respect of any matter (including any Event of Default whether
presently existing or subsequently occurring) or any other right, power, or
remedy of the Lender Group under the Credit Agreement and the other Loan
Documents. No delay on the part of the Lender Group in the exercise of any
remedy, power, right or privilege shall impair such remedy, power, right, or
privilege or be construed to be a waiver of any default, nor shall any partial
exercise of any such remedy, power, right or privilege preclude further exercise
thereof or of any other remedy, power, right or privilege.
[signature page follows.]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered as of the date first written above.
BORROWER:
AVADO BRANDS, INC.,
a Georgia corporation
By:_________________________
Name:
Title:
COLLATERAL AGENT:
ABLECO FINANCE LLC,
a Delaware limited liability company,
as Collateral Agent
By:_________________________
Name:
Title:
ADMINISTRATIVE AGENT:
FOOTHILL CAPITAL CORPORATION,
a California corporation,
as Administrative Agent
By:__________________________
Name:
Title:
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LENDERS:
ABLECO FINANCE LLC,
a Delaware limited liability company,
for itself and its Affiliate assigns
By:___________________________
Name:
Title:
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:____________________________
Name:
Title:
REGIMENT CAPITAL II, L.P.,
a Delaware limited partnership
By:____________________________
Name:
Title: Its General Partner
HCM/Z Special
Opportunities LLC, (F/K/A
HZ Special Opportunities LLC),
a Cayman Islands limited liability
company
By: Highbridge Capital Management, LLC
By: __________________________________
Name: Xxxxxx Xxxxx
Title: Portfolio Manager
Exhibits and schedules to this agreement are not filed pursuant to Item
601(b)(2) of SEC Regulation S-K. By the filing of this form 10Q, the Registrant
hereby agrees to furnish supplementally a copy of any omitted exhibit or
schedule to the Commission upon request.
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