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 wit
|
