Amendment No. 1 and Waiver to Credit Agreement among Captain D's, Inc., Lenders, and Bank of America, N.A.

Summary

Captain D's, Inc., several lenders, and Bank of America, N.A. (as Administrative Agent) have agreed to amend their existing Credit Agreement dated September 6, 2000. The amendment updates certain definitions and changes a time requirement related to interest rate hedge agreements. The lenders also waive any default that may have occurred due to the Borrower entering into hedge agreements shorter than two years. The amendment is effective once all parties sign and certain conditions are met. Captain D's, Inc. agrees to cover related administrative costs. The agreement is governed by New York law.

EX-10.39 10 0010.txt AMENDMENT NO. 1 AND WAIVER TO CAPTAIN D'S CREDIT AGREEMENT EXECUTION COPY AMENDMENT NO. 1 AND WAIVER TO THE CREDIT AGREEMENT Dated as of January 26, 2001 AMENDMENT NO. 1 AND WAIVER 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, supplemented or otherwise modified through the date hereof, the "Credit Agreement"). Capitalized terms not otherwise defined in this Amendment and Waiver 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. The Credit Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 3, hereby amended as follows: (a) Section 1.01 is hereby amended as follows: (i) The definition of "Captain D's Properties" set forth therein is hereby amended by deleting the words "Captain D's Properties, LLC" after the word "means" and substituting for such words the words "SHN Properties, LLC". (b) Section 5.01(m) is amended by deleting the words "for a period of no less than 2 years" and substituting for such words the words "through and until December 31, 2001". SECTION 2. Waiver. Subject to the satisfaction of the conditions precedent set forth in Section 3, the Lenders hereby agree to waive any Default or Event of Default that has occurred pursuant to Section 5.01(m) as a result of the Borrower entering into interest rate Hedge Agreements that extend for a period of less than 2 years. 2 SECTION 3. Conditions of Effectiveness. This Amendment and Waiver shall become effective as of the date first above written when, and only when, the Administrative Agent shall have received counterparts of this Amendment and Waiver executed by the Borrower and the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment and Waiver, and the consent attached hereto executed by each of the parties thereto. The effectiveness of this Amendment and Waiver is conditioned on the accuracy of the factual matters described herein. This Amendment and Waiver is subject to the provisions of Section 8.01 of the Credit Agreement. SECTION 4. Reference to and Effect on the Credit Agreement and the Notes. (a) On and after the effectiveness of this Amendment and Waiver, 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 and Waiver. (b) The Credit Agreement, the Notes and each of the other Loan Documents, as specifically amended by this Amendment and Waiver, 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 and Waiver. (c) The execution, delivery and effectiveness of this Amendment and Waiver 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 5. 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 Waiver 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 6. Execution in Counterparts. This Amendment and Waiver 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 and Waiver by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment and Waiver. SECTION 7. Governing Law. This Amendment and Waiver 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 and Waiver 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: Richard G. Parkhurst, Jr. Managing Director MORGAN STANLEY DEAN WITTER PRIME INCOME TRUST By /s/ Sheila A. Finnerty ------------------------------------ Name: Sheila A. Finnerty Title: Senior Vice President 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 NORTH AMERICAN 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: /s/ Jeffrey W. Heuer --------------------------------- Name: Jeffrey W. Heuer 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 KZH CYPRESSTREE-1 LLC By /s/ Peter Chin ---------------------------------- Name: Peter Chin Title: Authorized Agent KZH STERLING LLC By /s/ Peter Chin ---------------------------------- Name: Peter Chin Title: Authorized Agent ML CLO XV PILGRIM AMERICA (CAYMAN) LTD. By: Pilgrim Investments, Inc. as its investment manager By /s/ Jeffrey A. Bakalar --------------------------------- Name: Jeffrey A. Bakalar Title: Senior Vice President ML CLO XX PILGRIM AMERICA (CAYMAN) LTD. By: Pilgrim Investments, Inc. as its investment manager By /s/ Jeffrey A. Bakalar --------------------------------- Name: Jeffrey A. Bakalar Title: Senior Vice President ML CLO XII PILGRIM AMERICA (CAYMAN) LTD. By: Pilgrim Investments, Inc. as its investment manager By /s/ Jeffrey A. Bakalar --------------------------------- Name: Jeffrey A. Bakalar Title: Senior Vice President HELLER FINANCIAL LEASING, INC. By -------------------------------- Name: Title: BALANCED HIGH-YIELD FUND I LTD. /s/ John J. D'Angelo By /s/ Heidimarie E. Skor -------------------------------- Name: John J. D'Angelo Heidimarie E. Skor CFA Title: Vice President - Asset Management Managing Director SENIOR DEBT PORTFOLIO By: Boston Management Company, as Investment Advisors By ------------------------------- Name: Title: SEQUILS I, LTD. By: TCW Advisors, Inc., as its Collateral Manager By /s/ Richard Kurth -------------------------------- Name: Richard Kurth Title: Vice President By /s/ Mark Gold -------------------------------- Name: Mark Gold Title: Managing Director SEQUILS IV, LTD. By: TCW Advisors, Inc., as its Collateral Manager By /s/ Richard Kurth ------------------------------- Name: Richard Kurth Title: Vice President By /s/ Mark Gold ------------------------------- Name: Mark Gold Title: Managing Director TRANSAMERICA BUSINESS CREDIT CORPORATION By /s/ Perry Vavoules ------------------------------- Name: Perry Vavoules Title: Managing Director GENERAL ELECTRIC CAPITAL CORPORATION By ------------------------------- Name: Title: CAPTIVA II FINANCE, LTD. By /s/ David Dyer ------------------------------- Name: David Dyer Title: Director CONSENT Dated as of January 26, 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 and Waiver), (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 Waiver and hereby confirms and agrees that (a) notwithstanding the effectiveness of such Amendment and Waiver, each of the Loan Documents (as defined in the Credit Agreement referred to in the foregoing Amendment and Waiver) 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 and Waiver, 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 Waiver, 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: 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., V.P., Captain D's, Inc. as Managing Member -------------------------------- Title: CAPTAIN D's REALTY, LLC By: Captain D's, Inc., as Managing Member By: /s/ F.E. McDaniel, Jr., V.P. Captain D's, Inc. as Managing Member -------------------------------- Title: BEVERAGES SALES, INC. By: /s/ Farbood Azari --------------------------------- Title: President