EXHIBIT 99.3
AMENDMENT NO. 5 TO THE CREDIT AGREEMENT
THIS AMENDMENT NO. 5 TO THE CREDIT AGREEMENT (this "Amendment") is made
and entered into this 24th day of January, 2002, by and among CAPTAIN D'S,
INC., a Delaware corporation ("Borrower"), the banks, lenders, financial
institutions and other institutional lenders a party to the Credit Agreement
referred to below (collectively, the "Lenders") executing this Amendment, and
HUDSON ADVISORS, L.L.C., a Delaware limited liability company ("Hudson"), as
Administrative Agent for the Lenders. The undersigned Subsidiary Guarantors
hereby join in the execution of this Amendment for the purposes set forth in
the Consent below.
RECITALS:
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A. Reference is hereby made to that certain Credit Agreement (the
"Initial Credit Agreement") dated as of September 6, 2000, made and entered
into by and among Borrower, Bank of America, N.A. ("Bank of America"), as the
initial issuing bank, as the swing line bank and as administrative agent and
collateral agent for the Lender Parties (as defined therein), the Initial
Lenders party thereto and Banc of America Securities LLC, as sole lead
arranger and sole book manager for the Lender Parties. The Initial Credit
Agreement has been amended, supplemented and modified by: (i) that certain
Amendment No. 1 and Waiver to the Credit Agreement (the "First Amendment")
dated as of January 26, 2001, made and entered into by and among Borrower,
Bank of America, as Administrative Agent for the Lender Parties, and the
other Lender Parties party thereto, (ii) that certain Amendment No. 2 to the
Credit Agreement (the "Second Amendment") dated as of April 2, 2001, made and
entered into by and among Borrower, Bank of America, as Administrative Agent
for the Lender Parties, and the other Lender Parties party thereto, (iii)
that certain Amendment No. 3 to the Credit Agreement (the "Third Amendment")
dated as of August 31, 2001, made and entered into by and among Borrower,
Bank of America, as Administrative Agent for the Lender Parties, and the
other Lender Parties party thereto, and (iv) that certain Amendment No. 4 to
the Credit Agreement (the "Fourth Amendment") dated as of December 27, 2001,
made and entered into by and among Borrower, Bank of America, as
Administrative Agent for the Lender Parties, and the other Lender Parties
party thereto. The Initial Credit Agreement, as so amended, supplemented and
modified by the First Amendment, the Second Amendment, the Third Amendment
and the Fourth Amendment, is hereinafter collectively referred to as the
"Credit Agreement." The capitalized terms defined in the Credit Agreement
and not otherwise defined herein are used herein as therein defined.
B. Further reference is hereby made to that certain Master Assignment
and Acceptance Agreement attached hereto as Exhibit A and made a part hereof
for all purposes, pursuant to the terms of which all of the Notes, the
Advances and the Loan Documents were assigned to, and assumed by, the
Lenders. Additionally, concurrently herewith, Bank of America has resigned
as Administrative Agent and Hudson has been appointed the
Administrative Agent, pursuant to that certain Agreement Regarding Loan
Administration attached hereto as Exhibit B and made a part hereof for all
purposes. The Lenders who are parties hereto are the current owners and
holders of all of the Notes, the Advances and the Loan Documents and together
with the L/C Arranger, are the sole Lender Parties.
C. The parties hereto now desire to enter into this Amendment in order
to amend the Credit Agreement and the Loan Documents as provided herein.
NOW, THEREFORE, for and in consideration of the foregoing recitals, the
mutual covenants contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Lenders,
Hudson, as Administrative Agent, and Borrower hereby agree as follows:
AGREEMENTS:
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1. Amendment and Restatement of the Notes. The parties hereby agree
that concurrently herewith the Notes shall be amended and restated in their
entirety by five (5) certain Amended and Restated Promissory Notes (herein so
called), in the forms attached hereto as Exhibit C and Exhibit D,
respectively, and made a part hereof for all purposes. References in the
Loan Documents to the Notes shall hereafter be deemed to be references to the
Amended and Restated Promissory Notes. As a material inducement to the
Lenders to enter into this Amendment, Borrower acknowledges that it is justly
indebted to the Lenders in the amount of the principal balance of and all
accrued and unpaid interest on the Notes and all other sums due under any of
the other Loan Documents as set forth on Exhibit E attached hereto and made
a part hereof for all purposes.
2. Amendments.
(A) The definitions contained in Section 1.01 of the Credit Agreement
are amended as follows:
(i) "Amendment No. 5" is hereby added as a defined term in
correct alphabetical order, the definition of which shall read in its
entirety as follows:
"Amendment No. 5" shall mean Amendment No. 5 to this
Agreement, dated January 24, 2002, by and among Borrower,
the Lenders and the Administrative Agent.
(ii) "Amendment No. 5 Effective Date" is hereby added as a
defined term in correct alphabetical order, the definition of which
shall read in its entirety as follows:
"Amendment No. 5 Effective Date" shall have the meaning
therefor set forth in Amendment No. 5.
(iii) "Arranging Affiliate" is hereby added as a defined term
in correct alphabetical order, the definition of which shall read in
its entirety as follows:
"Arranging Affiliate" means one or more Affiliates of L/C
Arranger who have or will incur reimbursement obligations
and indemnity obligations to the Issuer in connection with
the
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Letters of Credit.
(iv) "Hudson" is hereby added as a defined term in correct
alphabetical order, the definition of which shall read in its
entirety as follows:
"Hudson" means Hudson Advisors, L.L.C., a Delaware limited
liability company.
(v) "Initial Letter of Credit" is hereby added as a defined
term in correct alphabetical order, the definition of which shall
read in its entirety as follows:
"Initial Letter of Credit" means the Irrevocable Standby
Letter of Credit in the face amount of $6,356,000
substantially in the form of Exhibit G to Amendment No. 5.
(vi) "Issuer" is hereby added as a defined term in correct
alphabetical order, the definition of which shall read in its
entirety as follows:
"Issuer" means JP Morgan Chase Bank with respect to the
Initial Letter of Credit, and any issuer of the Supplemental
Letter of Credit.
(vii) "L/C Arranger" is hereby added as a defined term in
correct alphabetical order, the definition of which shall read in its
entirety as follows, and all references to Issuing Bank are hereby
amended to be references to L/C Arranger:
"L/C Arranger" means F&C Capital S.ar.L.
(viii) "L/C Cash Collateral Account" is hereby added as a
defined term in correct alphabetical order and replaces the
definition of such term in each other Loan Document, the definition
of which shall read in its entirety as follows:
"L/C Cash Collateral Account" means such account of the
Administrative Agent as the Administrative Agent shall
specify by written notice to Borrower; such account being
for the benefit of L/C Arranger.
(ix) "Letter of Credit Supplement to Credit Agreement" is
hereby added as a defined term in correct alphabetical order, the
definition of which shall read in its entirety as follows:
"Letter of Credit Supplement to Credit Agreement" means the
Letter of Credit Supplement to Credit Agreement dated
January 24, 2002 by and among the Borrower, the Lenders and
the L/C Arranger, as the same may be amended or otherwise
modified from time to time.
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(x) "Supplemental Letter of Credit" is hereby added as a
defined term in correct alphabetical order, the definition of which
shall read in its entirety as follows:
"Supplemental Letter of Credit" means a letter of credit in
a stated amount of up to $1,000,000 which may be issued
pursuant to the Letter of Credit Supplement to Credit
Agreement or, in the alternative, an increase in the stated
amount of the Initial Letter of Credit of up to $1,000,000.
(xi) The defined term "Administrative Agent's Account" is
hereby amended and restated to read in its entirety as follows:
"Administrative Agent's Account" means an account of the
Administrative Agent maintained by the Administrative Agent
at a bank and with an account number to be designated by the
Administrative Agent.
(xii) The defined term "Letter of Credit" is hereby amended
and restated to read in its entirety as follows:
"Letters of Credit" means the Initial Letter of Credit, and,
to the extent issued, the Supplemental Letter of Credit.
(xiii) The defined term "Letter of Credit Commitment" is
hereby amended and restated to read in its entirety as follows:
"Letter of Credit Commitment" means, with respect to the L/C
Arranger, $7,356,000.
(xiv) The defined term "Loan Documents" is hereby amended and
restated to read in its entirety as follows:
"Loan Documents" means (a) for purposes of this Agreement
and the Notes and any amendment or modification hereof or
thereof and for all other purposes other than for purposes
of the Subsidiary Guaranty and the Collateral Documents, (i)
this Agreement, (ii) the Notes, (iii) the Subsidiary
Guaranty, (iv) the Collateral Documents, and (v) the Letter
of Credit Supplement to Credit Agreement, and (b) for
purposes of the Subsidiary Guaranty and the Collateral
Documents, (i) this Agreement, (ii) the Notes, (iii) the
Subsidiary Guaranty, (iv) the Collateral Documents, (v) the
Letter of Credit Supplement to Credit Agreement and (vi)
each Bank Hedge Agreement, in each case as amended or
otherwise modified from time to time.
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(xv) The defined term "Mortgage Policies" is hereby amended
and restated to read in its entirety as follows:
"Mortgage Policies" has the meaning specified in Exhibit F
of Amendment No. 5.
(xvi) The defined term "Obligation" is hereby amended and
restated to read in its entirety as follows:
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind,
including, without limitation, any liability of such Person
on any claim, whether or not the right of any creditor to
payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to
in Section 6.01(f). Without limiting the generality of the
foregoing, the Obligations of any Loan Party under the Loan
Documents include (a) the obligation to pay principal,
interest, letter of credit commissions and any other amounts
due under the Letter of Credit Supplement to Credit
Agreement, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by such
Loan Party under any Loan Document and (b) the obligation of
such Loan Party to reimburse any amount in respect of any of
the foregoing that any Lender Party, in its sole discretion,
may elect to pay or advance on behalf of such Loan Party.
(xvii) The defined term "Post-Closing Mortgages" is hereby
amended and restated to read in its entirety as follows:
"Post-Closing Mortgages" means the deeds of trust, trust
deeds and mortgages in substantially the form of Exhibit F,
duly executed by Borrower and covering all fee simple
properties of Borrower and its Subsidiaries listed on
Schedule 5.01(x)(i) of this Agreement, except the following
properties: Store Nos. 3299, 3384 and 3528.
(xviii) The defined term "Unused Working Capital Commitment"
is hereby amended and restated to read in its entirety as follows:
"Unused Working Capital Commitment" means, with respect to
any Working Capital Lender at any time, (a) such Lender's
Working Capital Commitment at such time minus (b) the
aggregate principal amount of all Working Capital Advances
made by such Lender (in its capacity as a Lender) and
outstanding at such time.
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(B) Notwithstanding anything to the contrary contained in the Credit
Agreement or any of the other Loan Documents, the Administrative Agent, the
Lenders and Borrower hereby agree as follows:
(i) the Swing Line Facility and the Letter of Credit Facility
(other than as set forth in the Letter of Credit Supplement to Credit
Agreement) are terminated, the Working Capital Commitment is reduced
to $8,644,000 and shall further be reduced by the amount of the
Supplemental Letter of Credit when and to the extent issued, and Lone
Star Fund IV (U.S.), L.P. is the only Lender with a Working Capital
Commitment;
(ii) with respect to any Working Capital Advance that, when
funded, will not cause aggregate unpaid Working Capital Advances
first made after the Amendment No. 5 Effective Date to exceed
$3,000,000, such Working Capital Advance shall be made on the same
Business Day on which notice is given so long as such notice is given
prior to 11:00 a.m. (Dallas, Texas time) on such Business Day, and,
with respect to any other Working Capital Advance, such Working
Capital Advance shall be made on notice given not later than 11:00
a.m. (Dallas, Texas time) on the third Business Day prior to the
proposed Borrowing;
(iii) in addition to the uses permitted by the Credit
Agreement for Working Capital Advances, Working Capital Advances in
an amount not to exceed $2,000,000 may be used by Borrower to fund
one or more dividends to Shoney's, provided, however, that (x) at the
time of the payment of any such dividend, Shoney's has no credit
availability under the Senior Credit Facility, and (y) Borrower has
no cash on hand with which to fund the dividend that will be paid
with such Working Capital Advance; provided, further, that: (i) no
more than $5,000,000 of dividends may be paid or moneys advanced by
or from Borrower to Shoney's on or after the Amendment No. 5
Effective Date; (ii) no dividends may be paid or moneys advanced by
or from Borrower to Shoney's at any time that Shoney's has credit
availability under the Senior Credit Facility; and (iii) no proceeds
of any Working Capital Advance may be used to make a payment in
respect of the Senior Credit Facility;
(iv) from and after the Amendment No. 5 Effective Date,
Advances shall accrue interest payable in arrears on the last
Business Day of each March, June, September and December and on the
date Advances are paid in full at the lesser of (x) the maximum rate
permitted by applicable law, or (y)(i) 12.5% per annum from the date
hereof through May 15, 2002, and (ii) 15% per annum from May 16, 2002
through October 31, 2002, provided, however, that upon the occurrence
and during the continuance of an Event of Default, Borrower shall pay
interest on (aa) the unpaid principal balance of each Advance owing
to the Lenders at a rate per annum equal at all times to 2% per annum
above the then applicable rate per annum and (bb) to the fullest
extent permitted by law, the amount of any interest, fee or other
amount that is not paid when due from the date such amount shall be
due until such amount shall be paid in full, at a rate per annum
equal at all times to 2% per annum above the then applicable rate per
annum;
(v) the Termination Date is hereby extended to October 31,
2002; provided, however, that Borrower shall pay to the Lenders on
May 15, 2002, an amendment and extension fee equal to 2% of (x) the
then outstanding balance of the Advances plus (y) the
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then undrawn amount of the Letters of Credit plus (z) the then Unused
Working Capital Commitment; provided, however, that, the portion of
such fee payable in respect of the Letters of Credit shall be for the
sole account of L/C Arranger and the portion of such fee payable in
respect of Working Capital Advances and Unused Working Capital
Commitment shall be for the sole account of Lone Star Fund IV (U.S.),
L.P. Failure to pay such amendment and extension fee on or before
May 15, 2002 shall constitute an "Event of Default" for all purposes
of the Credit Agreement and the other Loan Documents; and
(vi) the first $2,600,000 of Net Cash Proceeds from the sale,
transfer or other disposition of any assets of the Borrower or any
of its Subsidiaries occurring or received on or after the Amendment
No. 5 Effective Date shall be deposited to the Administrative Agent's
Account and reserved for application on May 15, 2002 to the amendment
and extension fee payable as required by Section 2(B)(v) of this
Amendment, provided, however, that any portion of such reserved
amount not required to pay such fee shall be released from such
reserve and then applied in accordance with the requirements of the
Credit Agreement.
(C) Section 2.08 of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
Section 2.08. Fees. A commitment fee shall accrue from and
after the Amendment No. 5 Effective Date on the average
daily Unused Working Capital Commitment at a rate per annum
equal to .50% for the period from the Amendment No. 5
Effective Date to and including May 15, 2002, and .75%
thereafter. Such fee shall be payable to the Administrative
Agent for the sole benefit of Lenders with a Working Capital
Commitment and shall be payable on (i) April 30, 2002
calculated for the period from the Amendment No. 5 Effective
Date to and including such date, and (ii) on July 31, 2002
and October 31, 2002 calculated for the period from but
excluding the preceding payment date to and including each
such date.
(D) Section 5.01(x) of the Credit Agreement is hereby deleted in its
entirety.
(E) Section 6.01 of the Credit Agreement is hereby amended by adding
the word "or" at the end of clause (o) thereof and by inserting thereafter a
new clause (p) to read in its entirety as follows:
(p) the Borrower shall fail, at its sole cost and expense,
to deliver the items or take the actions set forth in
Exhibit F to Amendment No. 5 within the time periods set
forth therein;
(F) All references to Bank of America in the capacity of
Administrative Agent and/or collateral agent in the Credit Agreement, the
Notes and the other Loan Documents are hereby amended to be references to
Hudson in such capacity. Without limiting the generality of the
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forgoing, the following amendments are made to the Credit Agreement and/or
the other Loan Documents:
(i) Pursuant to the terms of Section 7.01(b) of the Credit
Agreement, Hudson shall also act as the "collateral agent" under the
Loan Documents and shall have all rights and benefits set forth in
Section 7.01(b) in connection with its actions in such capacity.
(ii) Section 7.03 of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
SECTION 7.03. Hudson and Affiliates. With respect to its
Commitments (if any), the Advances made by it (if any) and
the Notes issued to it (if any), Hudson shall have the same
rights and powers under the Loan Documents as any other
Lender Party and may exercise the same as though it were not
the Administrative Agent; and, if Hudson has any
Commitments, has made any Advances and/or has been issued
any Notes, the term "Lender Party" or "Lenders Parties"
shall, unless otherwise expressly indicated, include Hudson
in its individual capacity. Hudson and its Affiliates may
accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from
and generally engage in any kind of business with, any Loan
Party, any of its Subsidiaries and any Person who may do
business with or own securities of any Loan Party or any
such Subsidiary, all as if Hudson were not the
Administrative Agent and without any duty to account
therefor to the Lender Parties.
(iii) All references to the Administrative Agent or the
"collateral agent" in any of the Loan Documents are hereby amended
to be references to Hudson as the Administrative Agent or as the
"collateral agent" (as applicable).
3. Conditions of Effectiveness. This Amendment shall become effective
as of the first date (the "Amendment No. 5 Effective Date") on which each of
the following conditions precedent shall have been satisfied:
(i) The Administrative Agent shall have received (a)
counterparts of this Amendment executed by Borrower and the Lenders
or, as to any of the Lender Parties, advice satisfactory to the
Administrative Agent that such Lender Party has executed this
Amendment, (b) the Consent attached hereto executed by each of the
parties thereto and (c) the Letter of Credit Supplement to Credit
Agreement and the Consent thereto executed by each party thereto.
(ii) The Administrative Agent shall have received on or before
the Amendment No. 5 Effective Date the following, each dated such
date (unless otherwise specified), in
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form and substance satisfactory to the Lenders (unless otherwise
specified) and in sufficient copies for each Lender Party:
(a) Certified copies of (x) resolutions of the Board of
Directors of Borrower approving this Amendment, the Letter
of Credit Supplement to Credit Agreement and the matters
contemplated hereby and thereby, (y) resolutions, consents
or other evidences of corporate or limited liability company
authorization reasonably acceptable to the Administrative
Agent from each other Loan Party evidencing approval of the
Consent, the Letter of Credit Supplement to Credit Agreement
and the matters contemplated hereby and thereby, and (z) all
documents evidencing other necessary corporate or limited
liability company action and governmental and other third
party approvals and consents, if any, with respect to this
Amendment, the Consent, the Letter of Credit Supplement to
Credit Agreement and the matters contemplated hereby and
thereby;
(b) A certificate of Borrower and each other Loan
Party, in each case signed on behalf of a corporate Loan
Party by its President or a Vice President and its Secretary
or any Assistant Secretary and on behalf of a limited
liability company Loan Party by an authorized representative
of its managing member, dated the Amendment No. 5 Effective
Date (the statements made in such certificate being true on
and as of the Amendment No. 5 Effective Date), certifying as
to (v) the absence of any amendments to the charter, bylaws
or operating agreement, as the case may be, of each Loan
Party in existence on the Closing Date since the date of the
Secretary of State's certificate referred to in Section
3.01(k)(iii) of the Credit Agreement, or any steps taken by
the board of directors (or persons performing similar
functions) or the shareholders or members of such Loan Party
to effect or authorize any further amendment, supplement or
other modification thereto; (w) the charter, bylaws or
operating agreement, as the case may be, of each Loan Party
that became a Loan Party after the Closing Date; (x) the due
incorporation or organization, as the case may be, and good
standing (or the equivalent) of such Loan Party as a
corporation or limited liability company organized under the
laws of the jurisdiction of its incorporation or
organization, respectively, and the absence of any
proceeding (either pending or contemplated) for the
dissolution, liquidation or other termination of the
existence of such Loan Party or any of its Subsidiaries; (y)
the accuracy in all material respects of the representations
and warranties made by such Loan Party in the Loan Documents
to which it is or is to be a party as though made on and as
of the Amendment No. 5 Effective Date (other than any such
representations or warranties that, by their terms, refer to
a specific date other than the Amendment No. 5 Effective
Date, in which case as of such specific date); and (z) the
absence of any event occurring and continuing that would
constitute a Default;
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(c) A certificate of the Secretary or an Assistant
Secretary of Borrower and each other corporate Loan Party
certifying the names and true signatures of the officers of
Borrower and such other Loan Party signing this Amendment
and the Consent and the other documents delivered hereunder
and thereunder;
(d) A certificate of an authorized representative of
the managing member of each limited liability company Loan
Party certifying the names and true signatures of such Loan
Party signing this Amendment and the Consent and the other
documents delivered hereunder and thereunder;
(e) Such financial, business and other information
regarding Borrower and the Loan Parties and their respective
property, assets and businesses as the Administrative Agent
or the Lender Parties shall have requested;
(f) A favorable opinion of Dinsmore & Shohl LLP,
counsel for Borrower and the other Loan Parties, in form and
substance reasonably satisfactory to the Administrative
Agent; and
(g) Such other opinions, certificates, documents and
information as the Administrative Agent or the Lenders may
reasonably request.
(iii) The representations and warranties contained in each of
the Loan Documents shall be correct in all material respects on and
as of the Amendment No. 5 Effective Date, as though made on and as
of such date (other than any such representations or warranties that,
by their terms, refer to a specific date other than the Amendment No.
5 Effective Date, in which case as of such specific date).
(iv) No event shall have occurred and be continuing that
constitutes a Default.
(v) All of the accrued fees and expenses of the Administrative
Agent and the Lender Parties (including the accrued fees and expenses
of counsel for the Administrative Agent) shall have been paid in
full.
The effectiveness of this Amendment is further conditioned upon the accuracy
of all of the factual matters described herein. This Amendment is subject to
the provisions of Section 8.01 of the Credit Agreement, except that no
amendment or waiver of any provision of this Section 3, nor consent to any
departure by Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Lenders.
4. No Partnership or Joint Venture. Any provision hereof to the
contrary notwithstanding, each Lender, by virtue of making or owning the
Advances or any action taken pursuant hereto or contemplated hereby, shall
not be deemed to be a partner or joint venturer with Borrower or any other
party. Borrower shall indemnify, protect, defend and hold the Lenders
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harmless from and against any and all liabilities, damages, claims, demands
and expenses, including, without limitation, expenses of defending or
settling any such claims or demands and all reasonable fees and disbursement
of legal counsel engaged or employed by any Lender in defending or settling
such claims or demands, resulting from such a construction of the parties and
their relationship.
5. Further Assurances. In addition to the documents, instruments and
acts described in this Amendment and which are to be executed and/or
delivered and/or taken pursuant to this Amendment, Borrower agrees to execute
and deliver from time to time upon request by the Lenders such other
documents and instruments, including, without limitation, an amendment and
restatement of the Credit Agreement and the other Loan Documents and take
such other action, as the Lenders may reasonably request or require to (i)
more fully and completely evidence and carry out the transactions
contemplated by this Amendment, including, without limitation, all necessary
corporate and limited liability company organization and authorization
documents in form and substance reasonably satisfactory to the Lenders, (ii)
promptly correct any defect, error or omission which may be discovered in
this Amendment and execute any and all additional documents, as may be
reasonably requested by the Lenders, to correct such defect, error or
omission, (iii) provide the rights and remedies to the Lenders granted or
provided for by this Amendment and the other Loan Documents, and (iv) perfect
security interests in and Liens against the Collateral. Borrower agrees that
the Administrative Agent, on Borrower's behalf (and without Borrower's
signature), may authorize the filing in the appropriate records of such
financing statements as the Administrative Agent may from time to time
require to effect the terms of the Loan Documents.
6. Continuing Validity. Except as expressly provided herein, all of the
terms, provisions, debts, duties, obligations, liabilities, rights, titles,
security interests, liens, powers and privileges existing by virtue of the
Loan Documents, as amended or modified hereby, shall be and continue in full
force and effect, and are hereby acknowledged by Borrower to be legal, valid,
binding and enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and subject, as to enforceability, to general
principles of equity.
7. Representations and Warranties. Borrower represents and warrants to
the Administrative Agent and the Lenders that, after giving effect to this
Amendment: (i) before giving effect to this Amendment there exists no Event
of Default and after giving effect to this Amendment there exists no Default
or Event of Default or any condition or act which constitutes, or with notice
or lapse of time would constitute, an Event of Default; (ii) Borrower and
each other Person who is a party to any of the Loan Documents have performed
and complied with all covenants, agreements and conditions contained in the
Loan Documents required to be performed or complied with by such Person;
(iii) the representations and warranties of Borrower and each other Person
who is a party to any of the Loan Documents contained in the Credit Agreement
and the other Loan Documents were true and correct when made and are true and
correct in all material respects as of the time of delivery of this Amendment
(other than those representations and warranties that are by their terms
limited to the date on which they were initially made, in which case they are
true and correct as of such earlier date); and (iv) no change has occurred,
in the aggregate, in the financial condition of Borrower or, to the knowledge
of Borrower, of any other Person who is a party to any of the Loan
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Documents from the facts represented in any such Loan Documents, including
this Amendment, which would have a Material Adverse Effect.
8. Binding Agreement. This Amendment shall be binding upon the parties
hereto and their respective heirs, personal representatives, successors and
assigns. Nothing contained herein shall act to amend or modify any of the
provisions of the Loan Documents which restrict or prohibit assignment or
transfer.
9. Modification. Neither this Amendment nor any provision of any of the
Loan Documents may be waived, modified or amended except by an instrument in
writing signed by the party against which the enforcement of such waiver,
modification or amendment is sought, and then only to the extent set forth in
such instrument.
10. Entire Agreement. This Amendment embodies and constitutes the
entire understanding among Hudson, as Administrative Agent, the Lenders and
Borrower with respect to the transactions contemplated in this Amendment, and
all prior or contemporaneous agreements, understandings, representations and
statements, oral or written, with respect to the subject matter hereof are
merged into this Amendment.
11. 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.
(D) In the event of any express conflict or inconsistency between the
terms and provisions of this Amendment and the Credit Agreement with respect
to the subject matter of this Amendment, the terms and provisions of this
Amendment shall govern and control.
12. Costs and Expenses. Borrower agrees to pay on demand all costs and
expenses of the Administrative Agent in connection with the preparation,
execution, delivery and administration,
12
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 to include
without limitation any costs and expenses associated with the deliveries and
actions required to be made or taken as set forth in the Schedule thereof
attached hereto as Exhibit F and made a part hereof for all purposes.
13. Approval of Transfer from Lone Star Fund IV (U.S.), L.P. to F&C
Capital S.ar.L. It is anticipated that 100% of the interests of Lone Star
Fund IV (U.S.), L.P. in each Facility shall be sold and assigned to F&C
Capital S.ar.L. pursuant to an Assignment and Acceptance substantially in the
form of Exhibit C to the Credit Agreement. Borrower hereby consents to such
sale and assignment.
14. 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.
15. Governing Law. This Amendment shall be governed by, and construed
in accordance with the laws of the State of New York.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
13
IN WITNESS WHEREOF, Borrower, Hudson, as Administrative Agent, and the
Lenders have executed this Amendment as of the day and year first above
written.
BORROWER:
--------
CAPTAIN D'S, INC.
By: /s/ F. E. McDaniel, Jr.
--------------------------------------
Name: F. E. McDaniel, Jr.
Title: Vice President, Secretary and
Treasurer
LENDER PARTIES:
--------------
LONE STAR FUND IV (U.S.), L.P.
By: Lone Star Partners IV, L.P.
its general partner
By: Lone Star Management Co. IV, Ltd.
its general partner
By: /s/ J.D. Dell
-----------------------------
Name: J.D. Dell
Title: Vice President
U.S. RESTAURANT PROPERTIES
OPERATING LIMITED PARTNERSHIP
By: USRP Managing, Inc., its general
partner
By: /s/ Robert Stetson
-----------------------------------
Name: Robert Stetson
Title: President
14
L/C ARRANGER:
------------
F&C CAPITAL S.ar.L
By: /s/ Benjamin D. Velvin III
----------------------------------------
Name: Benjamin D. Velvin III
Title: Manager
ADMINISTRATIVE AGENT:
--------------------
HUDSON ADVISORS, L.L.C.
By: /s/ J.D. Dell
----------------------------------------
Name: J.D. Dell
Title: Executive Vice President
CONSENT
-------
Each of the undersigned Subsidiary Guarantors acknowledges the terms of
the within Amendment No. 5 to the Credit Agreement and hereby agrees that
their respective Subsidiary Guaranty made in connection with the Facility
shall not be impaired thereby. Each Subsidiary Guarantor hereby ratifies and
reaffirms their respective Subsidiary Guaranty and each acknowledges that the
Lenders are relying on each Subsidiary Guarantor's agreement to execute this
Consent and that the Lenders would not enter into the within Amendment No. 5
to the Credit Agreement without this Consent by each Subsidiary Guarantor.
CAPTAIN D'S OF ILLINOIS, LLC,
a Tennessee limited liability company
By: Captain D's Holdings, Inc., Sole Member
By: /s/ F. E. McDaniel, Jr.
-----------------------------------
Name: F. E. McDaniel, Jr.
Title: President
15
SHN PROPERTIES, LLC,
a Delaware limited liability company
By: Captain D's, Inc., Managing Member
By: /s/ F. E. McDaniel, Jr.
-----------------------------------------
Name: F. E. McDaniel, Jr.
Title: Vice President, Secretary and
Treasurer
CAPTAIN D'S REALTY, LLC,
a Delaware limited liability company
By: Captain D's, Inc., Managing Member
By: /s/ F. E. McDaniel, Jr.
------------------------------------
Name: F. E. McDaniel, Jr.
Title: Vice President, Secretary and
Treasurer
D'S EQUIPMENT CO., INC.,
a Tennessee corporation
By: /s/ F. E. McDaniel, Jr.
-----------------------------------------
Name: F. E. McDaniel, Jr.
Title: Vice President and Secretary
CAPTAIN D'S HOLDINGS, INC.,
a Tennessee corporation
By: /s/ F. E. McDaniel, Jr.
-----------------------------------------
Name: F. E. McDaniel, Jr.
Title: President
16
Text of the following exhibits was omitted due to immateriality:
EXHIBIT A - Master Assignment and Acceptance Agreement
EXHIBIT B - Agreement Regarding Loan Administration
EXHIBIT C - Amended and Restated Promissory Note - U.S. Restaurant Properties
Operating Limited Partnership
EXHIBIT D - Amended and Restated Promissory Note - Lone Star Fund IV (U.S.),
L.P.
EXHIBIT E - Amounts Due
EXHIBIT F - Schedule of Deliveries and Actions
EXHIBIT G - Letter of Credit