Exhibit 10.23.2
SECOND AMENDMENT TO
NOTE PURCHASE AGREEMENTS
This SECOND AMENDMENT TO NOTE
PURCHASE AGREEMENTS (hereinafter, the “ Amendment
”) is entered into as of December 20, 2004 among
Ryan’s Restaurant Group, Inc. (formerly known as Ryan’s
Family Steak Houses, Inc.), a South Carolina corporation (the
“ Company ”) and the holders of the Notes (as
defined below).
WHEREAS, the Company issued and sold
Seventy Five Million Dollars ($75,000,000) in aggregate principal
amount of its 9.02% Senior Notes due January 28, 2008 (as they
may be amended, restated or otherwise modified from time to time,
the “ Notes ”) pursuant to separate Note
Purchase Agreements, each dated as of January 28, 2000,
between the Company and the purchasers identified on
Schedule A thereto, (as amended by the Amendment Agreement
dated as of July 25, 2003, the “ Note Agreements
”).
WHEREAS, the register for the
registration and transfer of the Notes indicates that the Persons
named in Annex 1 hereto are currently the holders of the entire
outstanding principal amount of the Notes.
NOW, THEREFORE, in consideration of
the premises and the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments . Each
Note Agreement is hereby amended in the following respects:
(a) In each Note Agreement, each
reference to “Ryan’s Family Steak Houses, Inc.”
is hereby deleted and replaced with a reference to
“Ryan’s Restaurant Group, Inc.”
(b) Section 10.5 of each of the
Note Agreements is hereby amended and restated in its entirety to
read as follows:
" 10.5. Restricted
Payments and Restricted Investments.
(a) The Company will not, and will
not permit any of its Subsidiaries to, declare, make or incur any
liability to declare or make any Restricted Payment or any
Restricted Investment unless, immediately prior, and immediately
after giving effect, to the making of such Restricted Payment or
Restricted Investment, no Default or Event of Default would exist
and, with respect to Restricted Payments, immediately after giving
effect to such action, the aggregate amount of such Restricted
Payments of the Company and its Subsidiaries declared or made
during the period commencing on September 30, 2004, and ending
on the date such Restricted Payment is declared or made, inclusive,
would not exceed the sum of:
(1) $22,295,500, plus
(2) 50% of Net Income for such period
(or minus 100% of Net Income for such period if Net Income
for such period is a loss), plus
(3) the aggregate amount of net
proceeds arising from sales of the Company’s Capital Stock
during such period, plus
(4) the Carryforward Restricted
Payment Basket (as determined below), minus
(5) the amount of the aggregate
Unused Restricted Payment Allowance allocated to the Carryforward
Capital Expenditure Basket as provided in clause
(b) below.
As used
herein, the term “ Unused Capital Expenditure
Allowance ” means, for any fiscal year, the amount by
which Permitted Capital Expenditures for such fiscal year exceeds
the aggregate amount of Capital Expenditures actually made by the
Company and its Subsidiaries during such fiscal year. As used
herein, the term “ Carryforward Capital Expenditure
Basket ” shall mean the aggregate, if any, of (i) all
Unused Capital Expenditure Allowance allocated by the Company
pursuant to subsection (c) below for Capital Expenditures in
future fiscal years and (ii) the Unused Restricted Payment
Allowance allocated by the Company pursuant to subsection
(b) below for Capital Expenditures in future fiscal years;
notwithstanding the foregoing, the Carryforward Capital Expenditure
Basket may not be increased in any fiscal year by more than
$10,000,000. The term “ Carryforward Restricted Payment
Basket ” shall mean the portion, if any, of all Unused
Capital Expenditure Allowance allocated by the Company pursuant to
subsection (c) below for permitted Restricted Payments in
future fiscal years.
(b) Within 90 days after the end
of each fiscal year of the Company, commencing with 90 days
after the end of fiscal year 2004, after or with delivery of the
audited annual financial statements in respect of the immediately
preceding fiscal year of the Company, the Company shall notify the
holders of the Notes of (i) the Unused Restricted Payment
Allowance for such immediately preceding fiscal year and
(ii) whether or not the Company will allocate any portion of
such Unused Restricted Payment Allowance to the Carryforward
Capital Expenditure Basket, whereupon the Carryforward Capital
Expenditure Basket shall be immediately increased by the amounts
allocated thereto. Notwithstanding the foregoing, the Carryforward
Capital Expenditure Basket may not be increased in any fiscal year
by more than $10,000,000.
(c) Within 90 days after the end
of each fiscal year, commencing with fiscal year 2004, after or
with delivery of the audited annual financial statements with
respect to such fiscal year, the Company shall notify the holders
of the Notes of (i) the Unused Capital Expenditure Allowance
for such immediately preceding fiscal year and (ii) the
Company’s allocation of such Unused Capital Expenditure
Allowance in whole or in part to the Carryforward Capital
Expenditure Basket and/or the Carryforward Restricted Payment
Basket, whereupon the Carryforward Capital Expenditure Basket and
Carryforward Restricted Payment Basket shall be immediately
increased by the amounts allocated thereto. Notwithstanding the
foregoing, (x) the Carryforward Capital Expenditure Basket may
not be increased in any fiscal year by more than $10,000,000,
(y) the Carryforward Restricted Payment Basket may not be
increased in any fiscal year by more than $25,000,000, and
(z) no increase in the Carryforward Restricted Payment Basket
shall be permitted if the aggregate amount of Capital Expenditures
made in the immediately preceding fiscal year was less than
$40,000,000. If the Company fails to deliver such notice to the
holders of the Notes in the time required, the Unused Capital
Expenditure Allowance shall be allocated first to the Carryforward
Restricted Payment Basket and then to the Carryforward Capital
Expenditure Basket.”
2
(c) Section 10.6(c) of each of
the Note Agreements is hereby amended and restated in its entirety
to read as follows:
(c) statutory Liens of landlords and
Liens of carriers, warehousemen, mechanics, materialmen and other
similar Liens (other than Liens arising under Section 412 of
the Code or ERISA), in each case incurred in the ordinary course of
business for sums not yet due or the payment of which is not at the
time required by Section 9.4;
(d) The definitions of “Credit
Facility”, “Debt”, “Funded Debt” and
“Permitted Capital Expenditures” appearing in
Schedule B of each of the Note Agreements are hereby amended
and restated in their entirety to read as follows:
“Credit Facility”
means the revolving credit, letter of credit and swingline facility
extended to the Company pursuant to that certain Credit Agreement
dated as of December 20, 2004 by and among the Company and
Fire Mountain as borrowers, certain of the Company’s
Subsidiaries, as guarantors, the Lenders (as defined therein) from
time to time party thereto, and Bank of America, N.A., as
Administrative Agent, together with (except as otherwise provided
herein) all amendments, restatements, extensions, renewals,
refinancings and substitutions thereof, in whole or in part.
“Debt” means,
with respect to any Person, without duplication,
(a) its liabilities for borrowed
money and its redemption obligations in respect of mandatorily
redeemable Preferred Stock;
(b) its liabilities for the deferred
purchase price of property acquired by such Person (excluding
accounts payable arising in the ordinary course of business but
including, without limitation, all liabilities created or arising
under any conditional sale or other title retention agreement with
respect to any such property);
(c) all liabilities appearing on its
balance sheet in accordance with GAAP in respect of Capital
Leases;
(d) all liabilities for borrowed
money secured by any Lien with respect to any property owned by
such Pers
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