SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of August 29, 2000 (the
"Second Supplemental Indenture"), between and among SHONEY'S, INC., a
corporation duly organized and existing under the laws of the State of
Tennessee (the "Company"), TPI RESTAURANTS, INC., a corporation duly
organized and existing under the laws of the State of Tennessee (the
"Guarantor"), and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the "Trustee")
W I T N E S S E T H:
WHEREAS, TPI Enterprises, Inc., a corporation duly organized under
the laws of the State of New Jersey ("Enterprises"), the Guarantor and the
Trustee executed that certain Indenture dated as of July 15, 1992 (the
"Original Indenture"), providing for the issuance of certain subordinated and
unsecured debentures in the principal amount of up to Fifty-One Million,
Seven Hundred Fifty Thousand and 00/100 Dollars ($51,750,000), which are
designated the 8-1/4% Convertible Subordinated Debentures Due 2002 (the
"Securities"), of which an aggregate principal amount of Fifty-One Million,
Five Hundred Sixty-Three Thousand and 00/100 Dollars ($51,563,000) are
currently issued and Outstanding;
WHEREAS, the Securities are fully guaranteed as to the payment of
principal and interest, but on a subordinated basis, by the Guarantor;
WHEREAS, in connection with the acquisition by the Company of the
assets of Enterprises substantially as an entirety, the Company assumed the
obligations of Enterprises under the Indenture and with respect to the
Securities pursuant to that certain First Supplemental Indenture dated as of
September 9, 1996 (the "First Supplemental Indenture," and together with the
Original Indenture, the "Existing Indenture"), between and among Enterprises,
the Guarantor, the Trustee and the Company, pursuant to which the Company was
substituted for Enterprises under the Indenture and Enterprises was relieved
of all obligations and covenants under the Indenture and the Securities;
WHEREAS, the Company is offering to purchase for cash, on the terms
and subject to the conditions set forth in the Purchase Offer and Consent
Solicitation Statement dated July 18, 2000 (as it may be supplemented or
amended from time to time, the "Purchase Offer"), and the related Letter of
Transmittal and Consent (as it may be supplemented or amended from time to
time, the "Letter of Transmittal and Consent," and together with the Purchase
Offer, the "Company Tender Offer"), all of the Outstanding Securities;
WHEREAS, Section 1002 of the Existing Indenture provides that, when
authorized by a Board Resolution, indentures supplemental thereto may be
executed and delivered by the Company, the Guarantor and the Trustee for the
purpose of amending the Indenture with the consent of the Holders of not less
than a majority in principal amount of the Securities at the time Outstanding
(or in certain cases with the consent of each Holder of the Securities
affected thereby);
WHEREAS, the Holders of a majority of the principal amount of the
Securities at this time Outstanding have delivered to The Bank of New York as
depositary (the "Depositary") for the Company in the Company Tender Offer
Acts evidencing the consents thereof to the amendments to the Existing
Indenture on the terms set forth in this Second Supplemental Indenture;
WHEREAS, the Depositary has, on behalf of the Company, delivered to
the Trustee Acts evidencing the requisite consents of the Holders of a
majority of the principal amount of the Securities at this time Outstanding
to amend the Existing Indenture on the terms set forth in this Second
Supplemental Indenture;
WHEREAS, all other acts and proceedings necessary have been done to
make this Second Supplemental Indenture, when executed and delivered by the
Company, the Guarantor and the Trustee, the legal, valid and binding
agreement of the Company and the Guarantor in accordance with its terms.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
Section 1. Confirmation of the Indenture; Definitions. Except as
amended and supplemented hereby, the Existing Indenture is hereby confirmed
and reaffirmed in all particulars. Anything in the Existing Indenture or
herein to the contrary notwithstanding, all recitals, definitions and
provisions contained in this Second Supplemental Indenture shall take
precedence over the recitals, definitions and provisions of the Existing
Indenture to the extent of any conflict between the two. Unless otherwise
defined herein, terms defined in the Existing Indenture and used herein shall
have the meanings given to them in the Existing Indenture.
Section 2. Amendment of Article One. (a) From and as of the
Operational Time, Article One of the Indenture shall be amended by deleting
the following defined terms and the definitions thereof:
"Cash Equivalent"
"Consent"
"Consent Payment"
"EEP"
"EEP Partnership Interest"
"Enterprises Guaranty"
"Existing Subsidiary"
"FCC Permits"
"Investment"
"Maxcell"
"PP&E Amount"
"Restaurants Business"
"Restaurants Notes"
"Restaurants Notes Indenture"
"Restricted Payment"
"Tender Offer"
"TPI Entertainment"
(b) From and as of the Operational Time, Article One of the Indenture
shall be amended by deleting the definitions for the following terms and
replacing them with the following definitions:
"Company" means Shoney's, Inc., provided that if another
Person is the surviving entity of any merger with the Company,
thereafter the reference to Shoney's, Inc. in this definition shall
be deemed to refer to such other Person.
"Guarantor" means TPI Restaurants, Inc., provided that if
another Person is the surviving entity of any merger with the
Guarantor, thereafter the reference to TPI Restaurants, Inc. in this
definition shall be deemed to refer to such other Person.
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Section 3. Amendment of Article Six. From and as of the Operational
Time, Section 601 of the Indenture shall be amended to read in its entirety
as follows:
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and
whether it shall be occasioned by the provisions of Article Fourteen
or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any
Security when it becomes due and payable, and the continuance
of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security at its Maturity; or
(3) default in the payment of the Repurchase Price
(as defined in Section 1501 in respect of any Security on
the Repurchase Date (as defined in Section 1501) therefor in
accordance with the provisions of Article Fifteen; or
(4) default in the performance, or breach, of any
covenant or agreement of the Company or the Guarantor in this
Indenture (other than a covenant or agreement a default in
performance or breach of which is specifically addressed
elsewhere in this Indenture) when such default or breach shall
have continued for a period of 60 days after there has been
given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company and the Guarantor
and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities a written notice specifying
such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) "[Intentionally Omitted.]"
(6) "[Intentionally Omitted.]"
(7) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Company or any Significant Subsidiary in an involuntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or (B) a decree or order adjudging the Company or any
Significant Subsidiary a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under any
applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any Significant
Subsidiary, as the case may be, or of any substantial part
of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(8) the commencement by the Company or any
Significant Subsidiary of a voluntary case or proceeding
under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any
other case or proceeding, to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or
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proceeding under any organization or other similar law or to
the commencement of any bankruptcy or insolvency case or
proceeding against the Company or any Significant
Subsidiary, or the filing by the Company or any Significant
Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any
Significant Subsidiary, as the case may be, or of any
substantial part of their property, or the making by the
Company or any Significant Subsidiary of an assignment for
the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or any
Subsidiary, as the case may be, in furtherance of such
action; or
(9) the Guarantee shall for any reason (other than
pursuant to its terms) cease to be in full force and effect.
Section 4. Amendment of Section 901 of Article Nine. From and as of
the Operational Time, Section 901 of the Indenture shall be amended to read
in its entirety as follows:
"[Intentionally Omitted.]"
Section 5. Amendment of Section 902 of Article Nine. From and as of
the Operational Time, Section 902 of the Indenture shall be amended to read
in its entirety as follows:
"[Intentionally Omitted.]"
Section 6. Amendment of Section 903 of Article Nine. From and as of
the Operational Time, Section 903 of the Indenture shall be amended to read
in its entirety as follows:
"[Intentionally Omitted.]"
Section 7. Amendment of Section 904 of Article Nine. From and as of
the Operational Time, Section 904 of the Indenture shall be amended to read
in its entirety as follows:
"[Intentionally Omitted.]"
Section 8. Amendment of Section 1105 of Article Eleven. From and as
of the Operational Time, Section 1105 of the Indenture shall be amended to
read in its entirety as follows:
"[Intentionally Omitted.]"
Section 9. Amendment of Section 1106 of Article Eleven. From and as
of the Operational Time, Section 1106 of the Indenture shall be amended to
read in its entirety as follows:
"[Intentionally Omitted.]"
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Section 10. Amendment of Section 1107 of Article Eleven. From and as
of the Operational Time, Section 1107 of the Indenture shall be amended to
read in its entirety as follows:
"[Intentionally Omitted.]"
Section 11. Amendment of Section 1108 of Article Eleven. From and as
of the Operational Time, Section 1108 of the Indenture shall be amended to
read in its entirety as follows:
"[Intentionally Omitted.]"
Section 12. Amendment of Section 1109 of Article Eleven. From and as
of the Operational Time, Section 1109 of the Indenture shall be amended to
read in its entirety as follows:
"[Intentionally Omitted.]"
Section 13. Amendment of Section 1110 of Article Eleven. From and as
of the Operational Time, Section 1110 of the Indenture shall be amended to
read in its entirety as follows:
"[Intentionally Omitted.]"
Section 14. Amendment of Section 1111 of Article Eleven. From and as
of the Operational Time, Section 1111 of the Indenture shall be amended to
read in its entirety as follows:
"[Intentionally Omitted.]"
Section 15. Conditions to Effectiveness of Second Supplemental
Indenture and to Operation of Amendments Made Hereby. This Second
Supplemental Indenture shall become effective immediately upon its execution
by the Trustee, the Company and the Guarantor (the "Effective Time"),
provided, however, the amendments effected by Sections 2 through and
including Section 14 of this Second Supplemental Indenture shall only become
operational at such time (the "Operational Time") as the Company gives oral
or written notice to the Depositary of the Company's acceptance for payment
of validly tendered Securities pursuant to the Company Tender Offer.
Section 16. Severability. In case any provision in this Second
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be effected or impaired thereby.
Section 17. Counterparts. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
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Section 18. Governing Law. This Second Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of New
York, without regard to principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the date first above
written.
THE COMPANY:
SHONEY'S, INC.
ATTEST:
/s/ Richard D. Schafstall By: /s/ F.E. McDaniel, Jr.
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Title: Secretary Title: Vice President
------------------------- ----------------------------
THE GUARANTOR:
TPI RESTAURANTS, INC.
ATTEST:
/s/ Richard D. Schafstall By: /s/ F.E. McDaniel, Jr.
------------------------------- -----------------------------
Title: Assistant Secretary Title: President
------------------------- ---------------------------
THE TRUSTEE:
THE BANK OF NEW YORK
ATTEST:
/s/ By: /s/ Mary LaGumina
------------------------------- ------------------------------
Title: Vice President Title: Vice President
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