SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (hereinafter, as it may be
modified, amended or supplemented from time to time, called this "Amendment"),
made and entered into as of October 15, 1998, by and among AVADO BRANDS, INC.
f/k/a APPLE SOUTH, INC., a Georgia corporation ("Borrower"); the financial
institutions from time to time party to the "Credit Agreement" defined and
described below and identified as the "Banks" therein (collectively, the "Banks"
or, individually, a "Bank"); and WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, successor-by-merger to WACHOVIA BANK OF GEORGIA, NATIONAL
ASSOCIATION, acting as agent for the Banks (Wachovia, when acting in such
capacity, herein sometimes called the "Agent").
WHEREAS, heretofore, Borrower, Banks and Agent made and entered into a
certain Credit Agreement, dated as of April 1, 1998 (which, as amended pursuant
hereto, is called herein the "Credit Agreement"); and
WHEREAS, Borrower, Banks and Agent have agreed to amend the Credit
Agreement in certain respects, as described more particularly below;
NOW, THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00), the
foregoing premises, to induce Banks to amend the Credit Agreement and extend the
credit provided for therein, and for other good and valuable consideration, the
sufficiency and receipt of all of which are acknowledged, Banks, the Agent and
Borrower agree as follows:
1. DEFINITIONS, TERMS AND REFERENCES.
1.1 Terms Incorporated by Reference. Capitalized terms used in this
Amendment but not otherwise expressly defined herein shall have the same
meanings as given to such terms in the Credit Agreement.
2. Amendment to Existing Section 5.19. Existing Section 5.19 shall be
amended by placing "; or" at the end of existing clause (xii) thereof, and
adding a new clause (xiii) thereof, to read as follows:
(xiii) Other Advances. Make loans or advances to Affiliates, shareholders,
directors, officers or employees, in addition to those described in clauses (i)
through (xii) hereinabove, in an aggregate amount, as to all such loans and
advances at any one time outstanding to all such Persons, not to exceed Eight
Million Dollars ($8,000,000), so long as, and provided that, (A) no Event of
Default then exists and (B) each such loan or advance is repaid, in full, not
later than two (2) years from the date of its disbursement.
3. EFFECTIVE DATE; CONDITIONS TO EFFECTIVENESS. All amendments to the
Credit Agreement made however, that the following shall have been executed
and/or delivered to the Agent on or before such date, in form and substance
satisfactory to the Banks, to-wit: (i) a Secretary's (or Assistant Secretary's)
Certificate for the Borrower; and (ii) this Amendment.
4. EFFECT OF AMENDMENT. Except as set forth expressly herein, all terms of
the Credit Agreement, as amended hereby, and the other Loan Documents, shall be
and remain in full force and effect and shall constitute the legal, valid,
binding and enforceable obligations of Borrower to Banks and Agent. To the
extent any terms and conditions in any of the Loan Documents shall contradict or
be in conflict with any terms or conditions of the Credit Agreement, after
giving effect to this Amendment, such terms and conditions are hereby deemed
modified and amended accordingly to reflect the terms and conditions of the
Credit Agreement as modified and amended hereby. It is not intended by the
parties that this Amendment constitute, and this Amendment shall not constitute,
a novation or accord and satisfaction.
5. RESTATEMENT OF REPRESENTATIONS AND WARRANTIES. To induce Banks and Agent
to enter into this Amendment (A) Borrower hereby restates and renews each and
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every representation and warranty heretofore made by it under, or in connection
with, the execution and delivery of, the Credit Agreement; (B) Borrower hereby
restates, ratifies and reaffirms each and every term and condition set forth in
the Credit Agreement, as amended hereby, and in the Loan Documents, as amended
hereby, and in the Loan Documents, effective as of the date hereof; and (C)
Borrower hereby certifies that no Event of Default or Default Condition has
occurred and is continuing.
6. GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Georgia and all applicable federal
laws of the United States of America.
7. COSTS AND EXPENSES. Borrower agrees to pay all costs and expenses of
Agent incurred in connection with the preparation, execution, delivery and
enforcement of this Amendment and all other Loan Documents executed in
connection herewith, including the reasonable fees and out-of-pocket expenses of
Agent's counsel.
8. LOAN DOCUMENT. This Amendment shall constitute a Loan Document for all
purposes of the Credit Agreement, and be governed accordingly.
IN WITNESS WHEREOF, Borrower, the Agent, and each Bank have set their hands
as of the day and year first above written.
"BORROWER"
AVADO BRANDS, INC. f/k/a
APPLE SOUTH, INC.
By:_________________________________
Xxxxx X. Xxxxx, Chief Financial
Officer and Treasurer
Attest:_____________________________
Xxxxx Xxxxxxxx, Assistant Secretary
"BANKS"
WACHOVIA BANK, NATIONAL
ASSOCIATION, as the Agent and as a Bank
By:________________________________
X. Xxxxxxxx Xxxxx, Vice President
SUNTRUST BANK, ATLANTA
By:_________________________________
Name:____________________________
Title:_____________________________
By:_________________________________
Name:____________________________
Title:_____________________________
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND," NEW YORK BRANCH
By:_________________________________
Name:____________________________
Title:_____________________________
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By:_________________________________
Name:____________________________
Title:_____________________________
BANKBOSTON, N.A.
By:_________________________________
Name:____________________________
Title:_____________________________
COMERICA BANK
By:_________________________________
Name:____________________________
Title:_____________________________
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