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Exhibit 4.31
[EXECUTION FORM]
MODIFICATION AGREEMENT NO. 2
TO
AMENDED AND RESTATED REDUCING REVOLVING
CREDIT AGREEMENT
THIS MODIFICATION AGREEMENT NO. 2 (the "Modification Agreement No. 2"),
dated as of January 9, 1997, to the Reducing Revolving Credit Agreement, dated
as of July 21, 1993, as amended and restated as of May 3, 1996 and as modified
by Modification Agreement No. 1, dated as of October 24, 1996 (as further
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Existing Credit Agreement"), among SHONEY'S, INC., a Tennessee
corporation (the "Borrower"), CIBC INC., acting through its Atlanta Office and
various other financial institutions, which are now, or in accordance with
Section 10.10 of the Existing Credit Agreement hereafter become, parties thereto
(collectively, the "Lenders" and, individually, a "Lender"), and CANADIAN
IMPERIAL BANK OF COMMERCE, a Canadian chartered bank acting through its New York
Agency, as Agent and Collateral Agent (the "Agent") for the Lenders;
W I T N E S S E T H:
WHEREAS, the Borrower has requested that certain provisions of the Existing
Credit Agreement be amended in certain respects as set forth herein; and
WHEREAS, the Lenders are willing to amend such provisions of the Existing
Credit Agreement and to take or permit the taking of certain actions as set
forth herein, but only on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. Unless otherwise defined herein or
the context otherwise requires, capitalized terms used in this Modification
Agreement No. 2, including its preamble and recitals, have the following
meanings (such meanings to be equally applicable to the singular and plural
forms thereof):
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"Agent has the meaning assigned to such term in the preamble.
"Borrower" has the meaning assigned to such term in the preamble.
"Existing Credit Agreement" has the meaning assigned to such term in the
preamble.
"Lenders" and "Lender" have the respective meanings assigned to such terms
in the preamble.
"Modification Agreement No. 2" has the meaning assigned to such term in the
preamble.
"Modification Effective Date" has the meaning assigned to such term in
Section 3.1.
SECTION 1.2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, capitalized terms used in this Modification
Agreement No. 2, including its preamble and recitals, have the meanings
provided in the Existing Credit Agreement.
ARTICLE II
AMENDMENT OF EXISTING CREDIT AGREEMENT
AS OF THE MODIFICATION EFFECTIVE DATE
Effective on (and subject to the occurrence of) the Modification Effective
Date, the provisions of the Existing Credit Agreement referred to below are
hereby amended in accordance with this Article II. Except as expressly so
amended, the Existing Credit Agreement shall continue in full force and effect
in accordance with its terms.
SECTION 2.1. Modification of Article I (Definitions). Article I of the
Existing Credit Agreement is hereby modified as follows:
SECTION 2.1.1. Section 1.4 of the Existing Credit Agreement is amended
by adding the following sentence after the last sentence thereof:
"In addition, for purposes of Section 7.2.4, the effects of (i) the
application of Statement No. 121 "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of" of the
Financial Accounting Standards Board in an amount not to exceed
$25,000,000 in the aggregate and (ii) any aggregate net gain on the
disposition of assets attributable to the write-down in the value of
such assets due to the application of the preceding clause (i), shall
be excluded from the calculation of the compliance by the Borrower and
its Subsidiaries with the
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covenants contained in such Section."
SECTION 2.2. Modification of Article VII (Covenants). Article VII of
the Existing Credit Agreement is hereby modified as follows:
SECTION 2.2.1. Section 7.2.8 of the Existing Credit Agreement is
hereby amended by (i) deleting the word "and" after clause (g) thereof,
(ii) changing the "." at the end of clause (h) thereto to "; and ", and
(iii) adding new clauses (i) and (j) thereof to read as follows:
"(i) in the case of the Borrower, (x) a Guaranty of certain
equipment lease obligations of TPIR existing as of the Acquisition
Date not to exceed $900,000 in the aggregate and (y) guaranties
replacing such guaranties so long as such replacement guaranty does
not increase the amount of obligations guarantied thereby and the
other terms and conditions of such replacement guaranty are no more
onerous to the Borrower than those of the guaranty so replaced; and
(j) in the case of the Borrower, the Guaranty of the obligations
of TPIR with respect to self-insurance obligations of TPIR relating to
workmen's compensation claims in the states of South Carolina and
Alabama."
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. Modification Effective Date. This Modification Agreement
No. 2 shall become effective as of the date first above written, when all
of the conditions set forth in Sections 3.1.1 through 3.1.3 shall have been
satisfied (the "Modification Effective Date").
SECTION 3.1.1. Resolutions, etc. The Agent shall have received from
the Borrower, a certificate, dated the Modification Effective Date, of its
Secretary or any Assistant Secretary as to:
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery, and performance of this
Modification Agreement No. 2 and each other Loan Document to be
executed by it;
(b) the incumbency and signatures of the officers of the Borrower
authorized to act with respect to this Modification Agreement No. 2
and each other Loan Document to be executed by it (upon which
certificate the Agent and each Lender may conclusively rely until the
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Agent shall have received a further certificate of the Secretary of
the Borrower canceling or amending such prior certificate, which
further certificate shall be reasonably satisfactory to the Agent).
SECTION 3.1.2. Execution of Counterparts. The Agent shall have
received counterparts of this Modification Agreement No. 2 duly executed by
the Borrower, the Agent, and the Required Lenders.
SECTION 3.1.3. Compliance with Warranties; No Default etc. The Agent
shall have received from an Authorized Officer of the Borrower a
certificate, dated the date first above written, stating that
(a) the representations and warranties set forth in Article VI of
the Existing Credit Agreement (excluding, however, those contained in
Section 6.7 thereof) and the representations and warranties set forth
in each of the other Loan Documents, in each case as modified in
accordance herewith, are true and correct in all material respects
with the same effect as if then made (unless stated to relate solely
to an earlier date, in which case such representations and warranties
were true and correct as of such earlier date);
(b) except as disclosed by the Borrower to the Agent and the
Lenders pursuant to Section 6.7 of the Existing Credit Agreement:
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding is pending or, to the
knowledge of the Borrower, threatened against the Borrower or any
of its Subsidiaries which might have a Materially Adverse Effect;
and
(ii) no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or
proceeding disclosed pursuant to Section 6.7 of the Existing
Credit Agreement which might have a Materially Adverse Effect;
and
(c) no Default has occurred and is continuing, and neither the
Borrower nor any of its Subsidiaries is in material violation of any
law or government regulation or court order or decree.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Cross References. References in this Modification
Agreement No. 2 to any article or section are, unless otherwise specified,
to such article or section of this Modification Agreement No. 2.
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SECTION 4.2. Instrument Pursuant to Existing Credit Agreement; Limited
Waiver. This Modification Agreement No. 2 is a Loan Document executed
pursuant to the Existing Credit Agreement and shall (unless otherwise
expressly indicated therein) be construed, administered, and applied in
accordance with all of the terms and provisions of the Existing Credit
Agreement. Any term or provision of and any modification effected by this
Modification Agreement No. 2 may be modified in any manner by an instrument
in writing executed by the Borrower and the Required Lenders (or the Agent
on behalf of and with the consent of the Required Lenders). Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Existing Credit Agreement shall remain
unmodified and unwaived. The modifications set forth herein shall be
limited precisely as provided for herein to the provisions expressly
modified herein and shall not be deemed to be a waiver of, amendment of,
consent to or modification of any other term or provision of any other Loan
Document or of any transaction or further or future action on the part of
the Borrower which could require the consent of any of the Lenders under
the Existing Credit Agreement.
SECTION 4.3. Successors and Assigns. This Modification Agreement No. 2
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
SECTION 4.4. Counterparts. This Modification Agreement No. 2 may be
executed by the parties hereto in several counterparts which shall be
executed by the Borrower, each of the Required Lenders and the Agent, as
the case may be, all of which shall be deemed to be an original and which
shall constitute together but one and the same agreement.
SECTION 4.5. Event of Default. It is understood and agreed that any
breach of any representation or warranty or covenant contained herein shall
constitute an Event of Default.
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IN WITNESS WHEREOF, the parties hereto have caused this Modification
Agreement No. 2 to be executed by the respective officers hereunder duly
authorized as of the day and year first above written.
SHONEY'S, INC.
By:___________________________
Title: Treasurer
CANADIAN IMPERIAL BANK OF
COMMERCE, acting through
its NEW YORK AGENCY, as
Agent
By:___________________________
Title: Authorized Signatory
CIBC INC., acting through
its Atlanta Office
By:___________________________
Title: Authorized Signatory
NATIONSBANK OF TENNESSEE, N.A.
By:___________________________
Title:________________________
THE BANK OF NEW YORK
By:___________________________
Title:________________________
LTCB TRUST COMPANY
By:___________________________
Title:________________________
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THE BANK OF NOVA SCOTIA
By:___________________________
Title:________________________
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:___________________________
Title:________________________
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By:___________________________
Title:________________________
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By:___________________________
Title:________________________
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:___________________________
Title:________________________
THE FUJI BANK, LIMITED
By:___________________________
Title:________________________
KREDIETBANK N.V.
By:___________________________
Title:________________________
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ALLIED IRISH BANK
By:___________________________
Title:________________________
MERCANTILE BANK OF ST. LOUIS,
NATIONAL ASSOCIATION
By:___________________________
Title:________________________
PNC BANK, KENTUCKY, INC.
By:___________________________
Title:________________________
THE ROYAL BANK OF SCOTLAND
By:___________________________
Title:________________________
GIROCREDIT BANK
By:___________________________
Title:________________________
FIRST AMERICAN NATIONAL BANK
By:___________________________
Title:________________________
THE SUMITOMO BANK, LIMITED
By:___________________________
Title:________________________
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