Ex-10.23.2



 






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.”



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     (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 Person (whether or not it has assumed or
otherwise become liable for such liabilities);




     (e) the outstanding principal amount of any Securitization Transaction,
after taking into account reserve accounts and making appropriate
adjustments as determined by the Required Holders in their reasonable
judgment; and




     (f) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (e) hereof.




Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (d) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP.



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     “Funded Debt” means, without duplication, the sum of:




     (a) all outstanding Indebtedness (other than (i) Hedging Agreements and
(ii) Indebtedness owing from one Obligor to another Obligor) of the Obligors
and their Subsidiaries for borrowed money;




     (b) all purchase money Indebtedness of the Obligors and their
Subsidiaries;




     (c) the principal portion of all obligations of the Obligors and their
Subsidiaries under Capital Leases;




     (d) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker’s
acceptances created for the account of an Obligor or its Subsidiaries (it
being understood that, to the extent an undrawn letter of credit supports
another obligation consisting of Indebtedness, in calculating aggregate
Indebtedness only such other obligation shall be included);




     (e) all Guaranties of the Obligors and their Subsidiaries with respect
to Funded Debt of another Person;




     (f) all Funded Debt of another entity secured by a Lien on any property
of the Obligors and their Subsidiaries whether or not such Funded Debt has
been assumed by an Obligor or any of its Subsidiaries;




     (g) all Funded Debt of any partnership or unincorporated joint venture
to the extent an Obligor or one of its Subsidiaries is legally obligated or
has a reasonable expectation of being liable with respect thereto, net of
any assets of such partnership or joint venture;




     (h) the principal balance outstanding under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance
sheet financing product where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease in
accordance with GAAP; and




     (i) the outstanding principal amount of any Securitization Transaction,
after taking into account reserve accounts and making appropriate
adjustments as determined by the Required Holders in their reasonable
judgment.



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     “Permitted Capital Expenditures” means, in any fiscal year, commencing with the
fiscal year ending December 29, 2004, (i) the dollar amounts set forth below
opposite the fiscal year for the relevant testing period plus (ii) the amount of net
cash proceeds received in such fiscal year from the sale of stores in accordance
with Section 10.9 plus (iii) the Carryforward Capital Expenditure Basket:



	 	 	 	 	 
	Fiscal Year	 	Amount	 
	2004
	 	$	90,000,000	 
	2005
	 	$	94,000,000	 
	2006
	 	$	98,000,000	 
	2007
	 	$	102,000,000	”







     (d) The following definitions are hereby added to Schedule B of each of the Note
Agreements in its proper alphabetical order to read as follows:




     ”Fire Mountain” means Fire Mountain Restaurants, Inc. a Delaware corporation
formerly known as Ryan’s Family Steak Houses East, Inc., together with any successor
or assign thereof.




     ”Securitization Transaction” means any financing transaction or series of
financing transactions (including factoring arrangements) pursuant to which the
Company or any Subsidiary may sell, convey or otherwise transfer, or grant a
security interest in, accounts, payments, receivables, rights to future lease
payments or residuals or similar rights to payment to a special purpose subsidiary
or affiliate of the Company.




     ”Unused Restricted Payment Allowance” means, for any fiscal year, the amount by
which the amount of Restricted Payments the Company was permitted to make as of the
end of such fiscal year in accordance with Section 10.5(a) exceeds the amount of
actual Restricted Payments made by the Company as of the end of such fiscal year.”



     2. Waiver of any Default Relating to Name Change. Any default or event of default
under the Note Agreements relating to the Company’s failure to give notice to any lender, agent or
holder with respect to the Note Agreements, the Credit Facility or the 2003 Note Agreement of the
Company’s name change from “Ryan’s Family Steak Houses, Inc.” to “Ryan’s Restaurant Group, Inc.” or
of the name change of the Company’s subsidiary from “Ryan’s Family Steak Houses East, Inc.” to
“Fire Mountain Restaurants, Inc.” (any such default, the “Existing Event of Default”) is hereby
waived. The Company acknowledges and agrees that the foregoing waiver relates solely to the
Existing Event of Default and shall in no way be deemed or construed as a waiver by the holders of
the Notes of any other Default or Event of Default under the Note Agreement or any other Financing
Document now existing or occurring subsequent to the date of this Amendment. The holders of Notes
expressly reserve the full extent of their rights under the Note Agreement, the other Financing
Documents and applicable law in respect of any Default or Event of Default existing on the date
hereof and not specified herein as the Existing Event of Default.



     3. Conditions Precedent. The effectiveness of this Amendment is conditioned on:




     (a) Receipt by the Company of duly executed counterparts of this Amendment from the
Required Holders;



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     (b) Delivery to the Purchasers of documentation certified by the applicable
governmental authority evidencing the Company’s name change from “Ryan’s Family Steak
Houses, Inc.” to “Ryan’s Restaurant Group, Inc.”




     (c) Delivery to the Purchasers of the consent and reaffirmation attached hereto, duly
executed by each Guarantor; and




     (d) Delivery to the Purchasers of a duly executed copy, including exhibits and any
schedules related thereto, of the Credit Documents (as defined by the Note Agreements as
amended hereby), together with such other documents, instruments, approvals or opinions as
the Required Holders may reasonably request.



     4. Representations and Warranties. To induce you to enter into this Amendment and to
consent to the Amendment, the Company represents and warrants as follows:




     (a) The execution, delivery and performance by the Company of this Amendment (i) are
within the Company’s power and authority; (ii) have been duly authorized by all necessary
corporate action; (iii) are not in contravention of any provision of the Company’s
certificate of incorporation agreement or other organizational documents; (iv) do not
violate any law or regulation, or any order or decree of any governmental authority; (v) do
not violate, contravene or conflict with contractual provisions of, or cause an event of
default under, any indenture, loan agreement, mortgage, deed of trust, contract or other
agreement or instrument to which it is a party or by which it may be bound, the violation of
which would have or be reasonably expected to have a Material Adverse Effect; (vi) do not
result in the creation or imposition of any Lien upon any of the property of the Company or
any of its Subsidiaries; and (vii) do not require the consent or approval of any
governmental authority or any other person;




     (b) This Amendment has been duly executed and delivered for the benefit of or on behalf
of the Company and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms except as the enforceability
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors’ rights and remedies in general;




     (c) There are no pending or threatened actions, suits or proceedings affecting the
Company or any of its Subsidiaries or the properties of the Company or any of its
Subsidiaries before any court, governmental agency or arbitrator, that would reasonably be
expected, if adversely determined, to have a Material Adverse Effect or to affect the
legality, validity or enforceability of the Note Agreements, as amended by this Amendment;
and




     (d) After giving effect to this Amendment, the representations and warranties of the
Company contained in the Note Agreements and in the other Financing Documents are true and
correct in all material respects, except that disclosure schedules have not been updated
from those previously provided to the holders of the Notes, and no Default or Event of
Default under the Note Agreements has occurred and is continuing as of the date hereof or
would be caused hereby.



     5. Reference to and Effect on the Note Agreements.




     (a) Defined terms used herein and not otherwise defined herein shall have the meaning
assigned to such terms in the Note Agreements.



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     (b) Except as expressly provided in this Amendment, the Note Agreements shall remain
unchanged and in full force and effect, except that each reference in the Note Agreements,
and in any agreements, certificates and notices simultaneously herewith or hereafter
executed under or pursuant to the Note Agreements, as amended hereby, to the “Note
Agreements”, “hereof”, “herein” and similar terms referring to the Note Agreements, shall be
deemed to refer to the Note Agreements as amended by this Amendment.




     (c) The execution, deliver and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of any holder
of a Note under the Note Agreements or the Notes, nor constitute a waiver of any provision
of any of the foregoing.



     6. Costs and Expenses. The Company agrees to pay on demand all costs and expenses
(including, without limitation, reasonable fees and expenses of counsel) incurred by the Purchasers
or any other permitted holder of a Note in connection with this Amendment and the transactions
contemplated hereby. The Company further agrees to pay on demand all costs and expense, if any,
incurred by the Purchasers or any other permitted holder of a Note in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of this Amendment,
including, without limitation, fees and expenses of counsel in connection with the enforcement of
rights under this paragraph 6.



     7. No Default or Claims. To induce the Purchasers to enter into this Amendment, the
Company hereby acknowledges and agrees that, as of the date hereof, and after giving effect to the
terms hereof, there exists (i) no Default or Event of Default, (ii) no right of offset, recoupment,
defense, counterclaim, claim or objection in favor of the Company arising out of or with respect to
any of the Notes or other obligations of the Company owed to any holder of a Note, and (iii) each
Purchaser has acted in good faith and has conducted its relationships with the Company in a
commercially reasonable manner in connection with the negotiations, execution and delivery of this
Amendment and in all respects in connection with the Note Agreements, the Company hereby waiving
and releasing any such claims to the contrary that may exist as of the date of this Amendment.



     8. Counterparts. This Amendment may be executed in any number of counterparts, each
of which shall be an original but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.



     9. Governing Law. This Amendment shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by, the law of the State of New York excluding
choice-of-law principles of the law of such state that would require the application of the laws of
a jurisdiction other than New York.



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     Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and
delivered as of the date first above written.



	 	 	 	 	 
	 

	 	RYAN’S RESTAURANT GROUP, INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	Name: Fred T. Grant, Jr.
	

	 	Title: Senior Vice President — Finance