Exhibit 10.40
AMENDMENT
TO
LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT ("Amendment") is made as of October
25, 2001 (the "Effective Date") by and between SHONEY'S PROPERTIES GROUP 6,
LLC, a Delaware limited liability company ("Debtor"), and GE CAPITAL
FRANCHISE FINANCE CORPORATION, a Delaware corporation, successor by merger to
FFCA FUNDING CORPORATION ("FFC").
PRELIMINARY STATEMENT
Debtor and FFC entered into that certain Loan Agreement dated as of
September 6, 2000 (the "Loan Agreement").
The Loan Agreement provided for FFC to provide the Loans to Debtor for
the Premises, with each Loan to be evidenced by a Note and secured by a first
priority security interest in the corresponding Premises pursuant to a
Mortgage.
This Amendment to Loan Agreement is being executed and delivered by
Debtor and Trustee pursuant to that Substitution Agreement of even date
herewith made by Debtor and Trustee, among others (the "Substitution
Agreement"). The Substitution Agreement provides for the release of the real
property described on attached Exhibit A (the "Released Premises") from the
provisions of the Loan Agreement and all of the Loan Documents (the
"Release"), pursuant to Section 13.A.(i) of the Loan Agreement. For purposes
of this Amendment, all capitalized terms used and not otherwise defined
herein shall have the meaning ascribed to such terms as are contained in the
Substitution Agreement and the Loan Agreement.
AGREEMENT
In consideration of the mutual agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree to amend the Loan Agreement as
follows:
1. DEFINITIONS. All references to the Loan Agreement and the Loan
Documents referring to "FFCA", or any other definitions in the Loan Agreement
containing the term "FFCA" in all or part of its defined term, such as "FFCA
Entities", "FFCA Payments", etc., shall be amended to mean and refer to "FFC"
which means GE Capital Franchise Finance Corporation, a Delaware corporation,
and successor by merger to both FFCA Acquisition Corporation and FFCA Funding
Corporation.
2. DELETION; CONTINUING OBLIGATIONS.
(i) Pursuant to Section 13.B of the Loan Agreement, on and after the
Effective Date: the Released Premises shall be deemed, and is hereby,
deleted and removed as one of the Premises for all purposes of the Loan
Agreement; the Released Premises shall be excluded from
the Aggregate Fixed Charge Coverage Ratio requirement set forth in the Loan
Agreement and the Master Lease; the Released Premises shall be excluded from
the definition of "Premises" as that term is defined and used in the Loan
Agreement and other Loan Documents; and other defined terms in the Loan
Agreement and other Loan documents shall be deemed modified to exclude the
corresponding information for the Released Premises, as appropriate.
(ii) Exhibit A to the Loan Agreement is hereby modified to delete the
address and FFC File Number for the Released Premises.
(iii) Notwithstanding the deletion and removal of the Released Premises
from the Loan Agreement, this Amendment and such deletion and removal shall
not surrender, relinquish, discharge or release and shall not be interpreted
or construed as modifying, amending, terminating, limiting or affecting in
any manner Debtor's obligations and liabilities to FFC and the other FFC
Entities which have accrued or arisen under the Loan Agreement with respect
to the Released Premises prior to the Effective Date of this Amendment,
including, without limitation, the following (the "Debtor's Continuing
Obligations"):
(a) the indemnification and hold harmless obligations of Debtor to
the Indemnified Parties, including, without limitation, FFC, set forth in the
Loan Agreement, including, without limitation, the provisions of Section 12
thereof;
(b) Debtor's obligations and liabilities arising under the Loan
Agreement which have accrued as to the Released Premises prior to the
Effective Date; and
(c) the provisions of the Loan Agreement which the Loan Agreement
provides shall survive the expiration or termination thereof.
Debtor shall be obligated to pay and perform all of the Debtor's Continuing
Obligations in accordance with the corresponding terms and provisions of the
Loan Agreement.
3. NO FURTHER AMENDMENTS. Except as specifically modified, amended or
changed herein in connection with the Release, all terms and provisions of
the Loan Agreement shall remain in full force and effect, unchanged and
unmodified. Without limiting the generality of the foregoing, the
representations, warranties and covenants of Debtor made in the Loan
Agreement are hereby restated and affirmed.
4. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original.
5. EXHIBIT. The exhibits attached hereto are incorporated herein by
this reference as though fully set forth herein.
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IN WITNESS WHEREOF Debtor and FFC have executed this Amendment as of the
date first above written.
GE CAPITAL FRANCHISE FINANCE
CORPORATION, a Delaware corporation,
successor by merger to FFCA FUNDING
CORPORATION
By /s/ Xxxxxx X. Xxxx
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Printed Name Xxxxxx X. Xxxx
-------------------------------------
Its Senior Vice President, Associate General
Counsel and Assistant Secretary
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SHONEY'S PROPERTIES GROUP 6, LLC, a
Delaware limited liability company
By: Shoney's, Inc., a Tennessee corporation, its
managing member
By /s/ X. X. XxXxxxxx, Xx.
-----------------------------------------------
Printed Name X. X. XxXxxxxx, Xx.
-------------------------------------
Its Secretary
----------------------------------------------
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STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on October 24,
2001 by Xxxxxx X. Xxxx, Senior VP, Assistant General Counsel and Assistant
Secretary of GE CAPITAL FRANCHISE FINANCE CORPORATION, a Delaware corporation,
successor by merger to FFCA Funding Corporation, on behalf of the corporation.
/s/ Xxxxx XxXxxx
-----------------------------------
Notary Public
My Commission Expires:
4/22/05
----------------------
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
The foregoing instrument was acknowledged before me on October 23, 2001
by X. X. XxXxxxxx, Xx., Secretary of Shoney's, Inc., a Tennessee corporation,
managing member of Shoney's Properties Group 6, LLC, a Delaware limited
liability company, on behalf of the corporation and limited liability
company.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Notary Public
My Commission Expires:
Jan. 25, 2003
----------------------
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Exhibit omitted due to immateriality.
