AMENDMENT NO. 2 TO THE
CREDIT AGREEMENT
Dated as of April 2, 2001
AMENDMENT NO. 2 TO THE CREDIT AGREEMENT among Captain D's, Inc., a
Delaware corporation (the "Borrower"), the banks, financial institutions and
other institutional lenders parties to the Credit Agreement referred to below
(collectively, the "Lenders"), and Bank of America, N.A., as Administrative
Agent (the "Administrative Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Administrative Agent have
entered into a Credit Agreement dated as of September 6, 2000, as amended by
Amendment No. 1 and Waiver to the Credit Agreement dated as of January 26,
2001 (such agreement as so amended, the "Credit Agreement"). Capitalized
terms not otherwise defined in this Amendment have the same meanings as
specified in the Credit Agreement.
(2) The Borrower and the Lenders have agreed to amend the Credit
Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. Section 5.01(x)(i) of the
Credit Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 2, hereby
amended by (i) deleting the words "Within 210 days after the Closing Date" at
the beginning thereof and substituting for such words the words "No later
than August 31, 2001" and (ii) adding at the end thereof the following
proviso:
"provided, however, that in the event that the Borrower obtains and
accepts one or more financing commitments on or before June 30, 2001
for the refinancing and prepayment in full of the Facilities on or
prior to September 30, 2001, in form and substance, and from
financing providers, reasonably acceptable to the Administrative
Agent, the Borrower shall not be required to comply with the
requirements of this Section 5.01(x)(i); provided, further, however,
that if such refinancing and prepayment of the Facilities does not
occur on or before September 30, 2001, the Borrower shall comply with
the requirements of this Section 5.01(x)(i) no later than October 31,
2001.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, the
Administrative Agent shall have received counterparts of this Amendment
executed by the Borrower and the Required
2
Lenders or, as to any of the Lenders, advice satisfactory to the
Administrative Agent that such Lender has executed this Amendment, and the
consent attached hereto executed by each of the parties thereto. The
effectiveness of this Amendment is conditioned on the accuracy of the factual
matters described herein. This Amendment is subject to the provisions of
Section 8.01 of the Credit Agreement.
SECTION 3. Reference to and Effect on the Credit Agreement and the
Notes. (a) On and after the effectiveness of this Amendment, 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 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.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, 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.
(c) The execution, delivery and effectiveness of this Amendment 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.
SECTION 4. Costs and Expenses. The Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery and administration, modification and
amendment of this Amendment and the other instruments and documents to be
delivered hereunder (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent) in accordance with the
terms of Section 8.04 of the Credit Agreement.
SECTION 5. Execution in Counterparts. This Amendment 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 but one and the
same agreement. Delivery of an executed counterpart of a signature page to
this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION 6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
CAPTAIN D'S, INC.
By /s/ F.E. McDaniel, Jr.
---------------------------------
Title: V.P.
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender
By /s/ Richard G. Parkhurst, Jr.
---------------------------------
Title: Managing Director
VAN KAMPEN SENIOR
INCOME TRUST
By: Van Kampen Investment
Advisory Corp.
By /s/ Darvin D. Pierce
--------------------------------
Name: Darvin D. Pierce
Title: Principal
VAN KAMPEN SENIOR
FLOATING RATE FUND
By: Van Kampen Investment
Advisory Corp.
By /s/ Darvin D. Pierce
---------------------------------
Name: Darvin D. Pierce
Title: Principal
VAN KAMPEN PRIME RATE
INCOME TRUST
By: Van Kampen Investment
Advisory Corp.
By /s/ Darvin D. Pierce
---------------------------------
Name: Darvin D. Pierce
Title: Principal
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of
First Allmerica Financial Life Insurance
Company as Portfolio Manager
By /s/ Jeffrey W. Heuer
---------------------------------
Name: Jeffrey W. Heuer
Title: Principal
NORTH AMERICA SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By /s/ Jeffrey W. Heuer
---------------------------------
Name: Jeffrey W. Heuer
Title: Principal
CYPRESSTREE INVESTMENT PARTNERS I, LTD
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By /s/ Jeffrey W. Heuer
---------------------------------
Name: Jeffrey W. Heuer
Title: Principal
KZH STERLING LLC
By /s/ Susan Lee
---------------------------------
Name: Susan Lee
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By /s/ Susan Lee
--------------------------------
Name: Susan Lee
Title: Authorized Agent
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD.
By: ING Pilgrim Investments, as its
investment manager
By /s/ Michel Prince
---------------------------------
Name: Michel Prince, CFA
Title: Vice President
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By: ING Pilgrim Investments, as its
investment manager
By /s/ Michel Prince
---------------------------------
Name: Michel Prince, CFA
Title: Vice President
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
By: ING Pilgrim Investments, as its
investment manager
By /s/ Michel Prince
---------------------------------
Name: Michel Prince, CFA
Title: Vice President
BALANCED HIGH-YIELD FUND I, LTD.
By: ING Capital Advisors LLC,
as Asset Manager
By /s/ Michael J. Campbell
---------------------------------
Name: Michael J. Campbell
Title: Managing Director
SEQUILS I, LTD.
By: TCW Advisors, Inc., as its
Collateral Manager
By /s/ Mara Gold
---------------------------------
Name: Mara Gold
Title: Managing Director
By /s/
---------------------------------
Name:
Title: Vice President
SEQUILS IV, LTD.
By: TCW Advisors, Inc., as its
Collateral Manager
By /s/ Mara Gold
---------------------------------
Name: Mara Gold
Title: Managing Director
By /s/
---------------------------------
Name:
Title: Vice President
TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By /s/ Stephen Goetschius
---------------------------------
Name: Stephen Goetschius
Title: Sr. Vice President
CAPTIVA II FINANCE, LTD.
By /s/ David Dyer
---------------------------------
Name: David Dyer
Title: Director
CONSENT
Dated as of April 2, 2001
Each of the undersigned, Captain D's, Inc., a Delaware corporation,
Shoney's Inc., a Tennessee corporation (and the successor by merger to TPI
Restaurants, Inc., a Tennessee corporation), SHN Properties, LLC, a Delaware
limited liability company, Captain D's Realty, LLC, a Delaware limited
liability company and Beverage Sales, Inc., a Delaware corporation, to the
extent it is (i) a Grantor under the Security Agreement dated as of September
6, 2000 in favor of the Administrative Agent and, for its benefit and the
benefit of the Secured Parties (as defined in the Credit Agreement referred
to in the foregoing Amendment), (ii) a Grantor under the Intellectual
Property Security Agreement dated as of September 6, 2000 in favor of the
Administrative Agent and, for its benefit and the benefit of the Secured
Parties, (iii) a Pledgor under the Pledge Agreement dated as of September 6,
2000 in favor of the Administrative Agent and, for its benefit and the
benefit of the Secured Parties and (iv) a Subsidiary Guarantor under the
Subsidiary Guaranty dated as of September 6, 2000 in favor of the
Administrative Agent and, for its benefit and the benefit of the Secured
Parties, hereby consents to such Amendment and hereby confirms and agrees
that (a) notwithstanding the effectiveness of such Amendment, each of the
Loan Documents (as defined in the Credit Agreement referred to in the
foregoing Amendment) to which it 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, each reference
in such Loan Documents 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, and (b) the Collateral Documents to which it 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).
CAPTAIN D'S, INC.
By: /s/ F.E. McDaniel, Jr.
-------------------------------
Title: V.P.
SHONEY'S, INC.
By: /s/ F.E. McDaniel, Jr.
--------------------------------
Title: V.P. - Finance
SHN PROPERTIES, LLC
By: Captain D's, Inc., as Managing Member
By: /s/ F.E. McDaniel, Jr.
---------------------------------
Title: V.P.
CAPTAIN D's REALTY, LLC
By: Captain D's, Inc., as Managing Member
By: /s/ F.E. McDaniel, Jr.
---------------------------------
Title: V.P.
BEVERAGES SALES, INC.
By: /s/ Farbood Azari
---------------------------------
Title: President