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Exhibit 4.33
[EXECUTION COPY]
MODIFICATION AGREEMENT NO. 1
TO
BRIDGE LOAN CREDIT AGREEMENT
THIS MODIFICATION AGREEMENT NO. 1 (the "Modification Agreement No.
1"), dated as of October 24, 1996, to the Bridge Loan Credit Agreement, dated
as of May 3, 1996 (as amended, supplemented, amended and restated or otherwise
modified from time to time, the "Credit Agreement"), among SHONEY'S, INC., a
Tennessee corporation (the "Borrower"), the various financial institutions,
which are now, or in accordance with Section 10.10 of the 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 (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
Credit Agreement be amended in certain respects as set forth herein; and
WHEREAS, the Lenders are willing to amend such provisions of the
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. 1, 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.
"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. 1" 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. 1, including its preamble and
recitals, have the meanings provided in the Credit Agreement.
ARTICLE II
AMENDMENT OF CREDIT AGREEMENT
AS OF THE MODIFICATION EFFECTIVE DATE
Effective on (and subject to the occurrence of) the Modification
Effective Date, the provisions of the Credit Agreement referred to below are
hereby amended in accordance with this Article II. Except as expressly so
amended, the 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 Credit Agreement is hereby modified as follows:
SECTION 2.1.1. The definition of "Affiliate" is amended by
adding the following sentence after the last sentence thereof:
"In connection with the sale of capital stock or warrants
exercisable for capital stock of ShoLodge by the Borrower,
ShoLodge shall not be considered an Affiliate of the Borrower
or any of its Affiliates."
SECTION 2.2. Modification of Article VII (Covenants).
Article VII of the Credit Agreement is hereby modified as follows:
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SECTION 2.2.1. Clause (e) of Section 7.2.11 of the Credit
Agreement is hereby amended by deleting the reference therein to
"clause (c)" of Section 3.1.2 of the Credit Agreement and substituting
the "clause (b)" in its place.
SECTION 2.2.2. Section 7.2.17 of the Credit Agreement is
hereby amended by deleting the proviso at the end thereof and
substituting the following in its place:
"provided, however, that the Borrower may (i) terminate the
relevant franchise agreements in connection with Franchise
Acquisitions and (ii) terminate or modify any franchise
agreement with ShoLodge in connection with the sale of capital
stock or warrants exercisable for capital stock of ShoLodge
(including, without limitation, acceleration of royalty
payments)."
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. Modification Effective Date. This
Modification Agreement No. 1 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. 1 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. 1 and each other Loan Document to
be executed by it (upon which certificate the Agent and each
Lender may conclusively rely until the 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. 1 duly
executed by the Borrower, the Agent, and the Required Lenders.
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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 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 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 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. 1 to any article or section are, unless
otherwise specified, to such article or section of this Modification
Agreement No. 1.
SECTION 4.2. Instrument Pursuant to Credit Agreement;
Limited Waiver. This Modification Agreement No. 1 is a Loan Document
executed pursuant to the 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 Credit
Agreement. Any term or provision of and any modification effected by
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this Modification Agreement No. 1 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
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 Credit
Agreement.
SECTION 4.3. Successors and Assigns. This Modification
Agreement No. 1 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.
1 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. 1 to be executed by the respective officers hereunder duly
authorized as of the day and year first above written.
SHONEY'S, INC.
By:
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Title: Treasurer
CANADIAN IMPERIAL BANK OF
COMMERCE, acting through
its NEW YORK AGENCY, as
Agent
By:
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Title: Authorized Signatory
CANADIAN IMPERIAL BANK OF
COMMERCE
By:
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Title: Authorized Signatory
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