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EXHIBIT 10.2
AMENDMENT NO. 1
Dated as of June 16, 1998
To the banks, financial institutions
and other institutional lenders
(collectively, the "Lender Parties") party
to the Credit Agreement referred to
below, NationsBank.N.A., as
administrative agent (the "Administrative
Agent") for the Lender Parties, and
NationsBanc Xxxxxxxxxx Securities, Inc.,
as syndication agent for the Lender Parties
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of November 28, 1997
(the "Credit Agreement") among Shoney's, Inc. (the "Borrower") and you.
Capitalized terms not otherwise defined in this Amendment No. 1 have the same
meanings as specified in the Credit Agreement.
It is hereby agreed by you and the Borrower as follows:
The Credit Agreement is, effective as of the date of this
Amendment No. 1, hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by
adding the following definitions in the correct alphabetical order:
" 'Approved Fund' means, with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests
in bank loans and is advised or managed by the same investment
advisor as such Lender or by an Affiliate of such investment
advisor."
" 'Captain D's Lease Program' means a program entered into by
the Borrower and its Subsidiaries for the expansion of the
Captain D's system."
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" 'New Distribution Facility' means the new distribution
facility to be operated by the Borrower and located in the
southeastern United States."
(b) Section 5.02(b)(iv)(C) of the Credit Agreement is hereby
amended in full to read as follows:
"(C)(i) Capitalized Leases (other than those
permitted by subclauses (ii) and (iii) of this clause
(C) and those permitted by clause (E) below) not to
exceed in the aggregate $15,000,000 at any time
outstanding, (ii) Capitalized Leases in connection
with the Captain D's Lease Program not to exceed in
the aggregate $5,000,000 in any Fiscal Year plus, in
any Fiscal Year ending in 1999 or thereafter, an
amount up to $5,000,000 equal to the excess (if any)
of the amount of Capitalized Leases permitted to be
incurred in the immediately preceding Fiscal Year in
connection with the Captain D's Lease Program over
the aggregate amount of Capitalized Leases in
connection with the Captain D's Lease Program
actually incurred in the immediately preceding Fiscal
Year, (iii) Capitalized Leases in connection with the
New Distribution Facility not to exceed $5,000,000 at
any time outstanding and (iv) in the case of
Capitalized Leases to which any Subsidiary of the
Borrower is a party, Debt of the Borrower of the type
described in clause (i) of the definition of "Debt"
guaranteeing the Obligations of such Subsidiary under
the Capitalized Leases permitted under this clause
(C),"
(c) Section 5.02(e) of the Credit Agreement is hereby amended
by (i) deleting the figure "$10,000,000" in clause (iv) thereof and
replacing such figure with the figure "$100,000,000" and (ii) amending
in full clause (viii) thereof to read as follows:
"(viii) the sale of Insurex Agency, Inc. and Insurex
Benefits Administrators, Inc. and any tradenames or
trademarks related thereto, provided that at least
30% of the total consideration for any such sale
shall be in cash,".
(d) Section 5.02(f) of the Credit Agreement is hereby amended
by (i) deleting the word "and" at the end of clause (vii) thereof, (ii)
replacing the period at the end of clause (viii) thereof with "; and"
and (iii) adding a new clause (ix) at the end thereof that reads as
follows:
"(ix) Investments constituting non-cash proceeds of
asset sales to the extent permitted by Section
5.02(e)(viii)."
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(e) Section 5.02(p) of the Credit Agreement is hereby amended
by adding to the end thereof the following:
"; provided, however, that the foregoing calculation
of Capital Expenditures made by the Borrower and its
Subsidiaries in any Fiscal Year shall exclude (i) any
Capital Expenditures made in such Fiscal Year in
connection with the Captain D's Lease Program and
(ii) any Capital Expenditures made in such Fiscal
Year in connection with the New Distribution
Facility."
(f) Section 5.02(o) of the Credit Agreement is hereby amended
by adding to the end thereof the following:
"and except for futures contracts relating to the
purchase by the Borrower and its Subsidiaries of up
to 80% of the diesel fuel needs for any Fiscal Year
for Commissary Operations, Inc."
(g) Section 5.04(a) of the Credit Agreement is hereby amended
by deleting the ratio in the chart therein for February 14, 1999 and
replacing such ratio with the ratio "2.50:1".
(h) Section 5.04(c) of the Credit Agreement is hereby amended
by deleting the ratios in the chart for October 25, 1998 and February
14, 1999 and replacing each such ratio with the ratio "5.50:1".
(i) Section 5.04(d) of the Credit Agreement is hereby amended
by deleting the final proviso therein and replacing such proviso with
the following:
"; provided further that for purposes of calculating
the fixed charge coverage ratio for each of the
fiscal quarters other than year end fiscal quarters,
the Capital Expenditure component of such ratio shall
not exceed $35,000,000".
(j) Section 8.07(a) of the Credit Agreement is hereby amended
by adding immediately after the first reference in clause (ii) thereof
to "Lender" the phrase ", an Affiliate of any Lender or an Approved
Fund of any Lender".
This Amendment No. 1 shall become effective as of the date
first above written when, and only when the Administrative Agent shall have
received counterparts of this Amendment No. 1 executed by the Borrower and the
Required Lenders or, as to any of the Lenders, advice satisfactory to the
Administrative Agent that such Lender has executed this Amendment No. 1, and the
consent attached hereto executed by each other Loan Party. This Amendment No. 1
is subject to the provisions of Section 8.01 of the Credit Agreement.
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On and after the effectiveness of this Amendment No. 1, 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 Notes and each other of 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 by
this Amendment No. 1.
The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment No. 1, 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 Collateral
Documents and all of the Collateral described therein do and shall continue to
secure the payment of all Obligations of the Loan Parties under the Loan
Documents, in each case as amended by this Amendment No. 1. The execution,
delivery and effectiveness of this Amendment No. 1 shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
any Lender or the Administrative Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
If you agree to the terms and provisions hereof, please
evidence such agreement by executing and returning at least two counterparts of
this Amendment No. 1 to Xxxxx X. X'Xxxxxxxx at Shearman & Sterling, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (Telecopier No. (000) 000-0000).
This Amendment No. 1 may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment No. 1 by telecopier shall be
effective as delivery of a manually executed counterpart of this Amendment No.
1.
This Amendment No. 1 shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
SHONEY'S, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President and Treasurer
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AGREED AS OF THE DATE FIRST ABOVE WRITTEN:
NATIONSBANK, N.A.
as Administrative Agent, as Lender
and as Issuing Bank
By /s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ X.X. Xxxxxxxx
--------------------------------
Title:
PRIME INCOME TRUST
By /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Title: Vice President
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By /s/ Xxxx X. Xxxxxxx
--------------------------------
Title: Authorized Signatory
ML CLO XII PILGRIM AMERICA
(CAYMAN) LTD.
By /s/ Xxxxxx Tiffen
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Title: Senior Vice President
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TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisors (Bermuda), Ltd.
By /s/ Xxxx X. Gold
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Title: Managing Director
By: TCW Investment Management
Company, as Investment Advisor
By /s/ Xxxxxxxx X. Xxxxxx
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Title: Vice President
FREMONT FINANCIAL CORPORATION
By /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
CRESCENT/MACH I
PARTNERS, L.P.,
By: TCW Asset Management
Company, as Investment Manager
By /s/ Xxxxxxxx X. Xxxxxx
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Title: Vice President
XXX XXXXXX AMERICAN
CAPITAL PRIME
RATE INCOME TRUST
By /s/ Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President
& Director
FIRST AMERICAN NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxxx
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Title: Senior Vice President
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THE LONG-TERM CREDIT
BANK OF JAPAN, LTD.
By /s/ A. Haruyama
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Title: Head of Southeast Region
SENIOR HIGH INCOME PORTFOLIO, INC.
By /s/ Xxxx X. Xxxxxxx
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Title: Authorized Signatory
CAPTIVA II FINANCE LTD.
By /s/ Xxxx X. Xxxxxxxxx
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Title: Director
AERIES FINANCE LTD.
By /s/ Xxxxxx Xxxxxxx
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Title: Director
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisors
By /s/ Xxxxx X. Page
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Title: Vice President
STRATA FUNDING LTD.
By /s/ Xxxx X. Xxxxxxxxx
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Title: Director
ML CBO IV (CAYMAN) LTD.
By: Protective Asset Management
Company, as Collateral Manager
By /s/ Xxxx X. Xxxxx
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Title: Executive Vice President
CYPRESSTREE INVESTMENT PARTNERS I, LTD.
By: CypressTree Investment Management Company, Inc.
By /s/ Xxxxxxxxx X. XxXxxxxxx
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Title: Portfolio Manager
CERES FINANCE LTD.
By /s/ Xxxx X. Xxxxxxxxx
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Title: Director
XXXXXX FINANCIAL, INC.
By /s/ Xxxxx Xxxx
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Title:
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TRANSAMERICA BUSINESS CREDIT
CORPORATION
By /s/ Perry Vovoutes
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Title: Senior Vice President
DEUTSCHE FINANCIAL SERVICES
CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President
GREEN TREE FINANCIAL SERVICING
CORPORATION
By_________________________________
Title: Senior Vice President
& General Manager
THE TORONTO DOMINION BANK
By /s/ Xxxxxx X. Xxxxxxxxx
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Title: Director
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BALANCED HIGH-YIELD FUND I LTD., as Assignee
By: BHF-BANK AKTIENGESELLSCHAFT
acting through its New York Branch,
as attorney-in-fact
By /s/ Xxxx Xxxxx Xxxx-Xxxxxx Xxxxxx
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Title: Vice President AVP
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XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxx Xxxxxxx
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Title: Director
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CONSENT
Dated as of June 16, 1998
Each of the undersigned as a Loan Party under the Loan Documents
relating to the Credit Agreement referred to in the foregoing Amendment No. 1,
hereby consents to such Amendment No. 1 and hereby confirms and agrees that (a)
notwithstanding the effectiveness of such Amendment No. 1, each Loan Document to
which such Loan Party is a party is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects, except that, on and
after the effectiveness of such Amendment No. 1, each reference to the "Credit
Agreement", "thereunder", "thereof" or words of like import shall mean and be a
reference to the Credit Agreement, as amended by such Amendment No. 1, and (b)
the Collateral Documents to which such Loan Party is a party and all of the
Collateral described therein do, and shall continue to, secure the payment of
all of the Secured Obligations (in each case, as defined therein).
TPI RESTAURANTS, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
TPI PROPERTIES, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
SHN PROPERTIES, LLC
By: Corporate Benefit Services,
Incorporated of Nashville, its
Managing Member
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
By /s/ X. X. XxXxxxxx, Xx.
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Title: Secretary
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SHONEY'S OF MICHIGAN, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
COMMISSARY OPERATIONS, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------
Title: Vice President, Treasurer
and Assistant Secretary
PARGO'S OF XXXXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
SHONEY'S EQUIPMENT CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
CORPORATE BENEFIT SERVICES,
INCORPORATED OF NASHVILLE
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
PARGO'S OF YORK, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
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SHONEY'S INVESTMENTS, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
TPI ENTERTAINMENT, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
TPI TRANSPORTATION, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
TPI COMMISSARY, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
INSUREX AGENCY, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
INSUREX BENEFITS
ADMINISTRATORS, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President, Treasurer
and Assistant Secretary
