EXHIBIT 10.1.2
AMENDMENT NO. 2
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT NO. 2 TO REVOLVING CREDIT AND TERM LOAN AGREEMENT dated
as of November 19, 2001 (this "Amendment"), by and among XXXX & BUSTER'S, INC.
("D & B"), the Subsidiaries of D&B (D&B collectively with such subsidiaries, the
"Borrowers"), FLEET NATIONAL BANK ("FNB"), the other lending institutions listed
on Schedule 1 to the Credit Agreement (together with FNB, the "Banks"), FNB as
administrative agent for the Banks (the "Agent") and Bank One, NA as
documentation agent (the "Documentation Agent"), amends certain provisions of
the Revolving Credit and Term Loan Agreement, dated as of June 30, 2000 among
the Borrowers, the Banks, the Agent and the Documentation Agent (as amended and
in effect from time to time, the "Credit Agreement"). Each capitalized term used
herein without definition shall have the meaning assigned to such term in the
Credit Agreement.
WHEREAS, D&B has created a new subsidiary, D&B Leasing, Inc. (the "New
Subsidiary");
WHEREAS, pursuant to Section 9.17 of the Credit Agreement, the New
Subsidiariy is required to become a Borrower under the Credit Agreement and
party to the Security Documents;
WHEREAS, the Borrowers, the Banks and the Agent have agreed to amend
certain terms and conditions of the Credit Agreement as specifically set forth
in this Amendment;
NOW THEREFORE, in consideration of the mutual agreements contained in
the Credit Agreement and herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. JOINDER TO CREDIT AGREEMENT AND SECURITY DOCUMENTS. The New
Subsidiary hereby joins the Credit Agreement and each of the Security Documents
as a "Borrower" as defined therein as if it were an original signatory thereto,
and further covenants and agrees that by its execution hereof it shall be bound
by and shall comply with all the terms and conditions of the Credit Agreement
and each of the Security Documents applicable to it as a Borrower.
SECTION 2. AMENDMENT TO SECTION 1 - DEFINITIONS. Section 1 of the
Credit Agreement is hereby amended as follows:
(a) by deleting the table within the definition of the term "Applicable
Margin" and substituting the following table therefor:
REVOLVING CREDIT LOANS TERM LOAN A TERM LOAN B
------------------------ -------------------- -------------------------
EURO-DOLLAR
BASE RATE LOANS BASE EURO-DOLLAR EURO-DOLLAR
RATE AND LETTERS RATE RATE BASE RATE RATE
LEVEL LEVERAGE RATIO LOANS OF CREDIT LOANS LOANS LOANS LOANS
-------- --------------------- ------- ------------ ------- ----------- ---------- -----------
I < 1.25:1 0.75% 2.25% 0.75% 2.25% 1.75% 3.25%
II > 1.25:1 and < 1.75:1 1.50% 3.00% 1.50% 3.00% 2.25% 3.75%
-
III > 1.75:1 2.00% 3.50% 2.00% 3.50% 2.50% 4.00%
-
(b) by further amending the definition of the term "Applicable Margin"
by deleting the text of clause (a) in the second paragraph of such definition
and substituting the following therefor:
(a) for the period commencing on November 19, 2001 through the end of
the current Rate Adjustment Period, the Applicable Margin shall be that
percentage corresponding to Level II in the table above.
(c) by deleting the text of the definition of the term "Leverage Ratio"
in its entirety and substituting the following therefor:
Leverage Ratio. As at the end of any fiscal quarter of the Borrowers,
the ratio of (a) Consolidated Funded Indebtedness at such date (less,
for purposes of calculating the Leverage Ratio as at the end of the
fiscal quarter of the Borrower ending November 4, 2001, any
Indebtedness to be repaid pursuant to Section 4.4.2.1 on November 19,
2001 with Net Cash Proceeds from Permitted Sale-Leasebacks received
prior to November 19, 2001) to (b) Consolidated EBITDA for the period
of the four (4) consecutive fiscal quarters then ending minus with
respect to any Unit which was the subject of a Permitted Sale-Leaseback
during such period, the difference between (i) the amount of rental
expense which would have been incurred in respect of such Unit if such
Permitted Sale-Leaseback had occurred immediately prior to the
beginning of such four-quarter period (assuming the monthly rental rate
for such Unit throughout such four-quarter period equaled the monthly
rental rate in effect at the end of such period and (ii) the amount of
rental expense actually incurred in respect of such Unit during such
four-quarter period and already deducted in calculating Consolidated
EBITDA for such period.
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SECTION 3. AMENDMENT TO SECTION 2 - RESTRICTION ON REVOLVING CREDIT
USAGE. Section 2 of the Credit Agreement is hereby amended by inserting at the
end thereof the following new Section 2.10:
2.10. RESTRICTION ON REVOLVING CREDIT USAGE. Notwithstanding
anything to the contrary set forth herein, in the event that the
Borrowers have prepaid Revolving Credit Loans as required pursuant to
Sections 3.2 and 4.4.2 with Net Cash Proceeds received in connection
with Permitted Sale-Leasebacks, (a) on or prior to April 30, 2002, the
Borrowers shall not be permitted to reborrow under this Section 2 more
than $6,000,000 of the amount so repaid from such proceeds without the
prior written consent of those Banks holding in aggregate at least
fifty-one percent (51%) of the Total Revolving Credit Commitment as in
effect at such time and (b) after April 30, 2002, the Borrowers shall
not be permitted to reborrow under this Section 2 more than $4,000,000
of the amount so repaid from such proceeds without the prior written
consent of those Banks holding in aggregate at least fifty one percent
(51%) of the Total Revolving Credit Commitment as in effect at such
time.
SECTION 4. AMENDMENT TO SECTION 3 - MANDATORY PREPAYMENT OF REVOLVING
CREDIT LOANS. Section 3.2 of the Credit Agreement is hereby amended by inserting
after the first sentence thereof the following new sentences:
In addition to the mandatory prepayment required by the preceding
sentence, the Borrowers shall also prepay the Revolving Credit Loans as
required pursuant to Section 4.4.2. In the event that the Borrowers
have prepaid Revolving Credit Loans as required pursuant to Section
4.4.2 with Net Cash Proceeds received in connection with Permitted
Sale-Leasebacks and thereafter have reborrowed under Section 2 more
than $4,000,000 of the amount so repaid, then to the extent that the
aggregate principal amount of the Revolving Credit Loans so reborrowed
and still outstanding on April 30, 2002 exceeds $4,000,000, the
Borrowers shall also repay on April 30, 2002 any Revolving Credit Loans
in an aggregate principal amount equal to such excess. For purposes of
calculating the outstanding principal amount of Revolving Credit Loans
so reborrowed and outstanding on April 30, 2002, (i) any voluntary
repayments of Revolving Credit Loans received by the Agent after such
reborrowing shall be deemed to have been applied to repay such
reborrowed Revolving Credit Loans and (ii) no mandatory prepayments
required pursuant to Section 4.4.2 shall be deemed to have been applied
to repay such reborrowed Revolving Credit Loans unless and until no
other Revolving Credit Loans remain outstanding on April 30, 2002.
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SECTION 5. AMENDMENT OF SECTION 4.4.2.1 - MANDATORY PREPAYMENTS FROM
NET CASH PROCEEDS. Section 4.4.2.1 of the Credit Agreement is hereby amended as
follows:
(a) by inserting after the word "then" at the beginning of the text
following the comma at the end of clause (f) the parenthetical phrase "(except
as provided otherwise in the next paragraph with respect to Existing Unit
Permitted Sale-Leasebacks completed on or prior to April 15, 2002 and the
Cleveland, Ohio New Unit Permitted Sale-Leaseback if completed on or prior to
April 15, 2002)";
(b) by inserting after the reference to "Section 4.4.2.1" in the
sentence which begins "Any insurance proceeds, awards from taking or
condemnation of properties or Net Cash Proceeds from the disposition of a New
Unit Permitted Sale-Leaseback described in this Section 4.4.2.1 . . ." which
appears in the text following the comma at the end of clause (f) the
parenthetical phrase "(except Net Cash Proceeds from the disposition of the
Cleveland, Ohio New Unit Permitted Sale-Leaseback if and to the extent that such
Net Cash Proceeds are required to be applied as set forth in the next
paragraph)"; and
(c) by inserting after the text following the comma at the end of
clause (f) the following new paragraph:
Notwithstanding anything to the contrary set forth above, if
the Borrowers receive Net Cash Proceeds from any Existing Unit
Permitted Sale-Leaseback completed on or prior to April 15, 2002 or
from a New Unit Permitted Sale-Leaseback of the Cleveland, Ohio Unit if
completed on or prior to April 15, 2002, the Borrowers shall, within
three Business Days following such receipt (or if such receipt occurred
prior to November 19, 2001, on or prior to November 26, 2001), apply:
(x) with respect to the first $7,500,000 of such Net Cash Proceeds, (I)
forty percent (40%) to prepay the Term Loans and (II) sixty percent
(60%) to repay outstanding Revolving Credit Loans; (y) with respect to
the next $17,500,000 of such Net Cash Proceeds, (I) eighty percent
(80%) to prepay the Term Loans and (II) twenty percent (20%) to repay
outstanding Revolving Credit Loans; and (z) with respect to any such
Net Cash Proceeds in excess of $25,000,000, one hundred percent (100%)
to prepay the Term Loans. No amount repaid with respect to a Term Loan
may be reborrowed. The Revolving Credit Commitments shall not be
reduced by the amounts required to be applied to prepay the Revolving
Credit Loans pursuant to this paragraph; provided, however, that the
Borrowers' right to reborrow the amount of the Revolving Credit Loans
so repaid shall be restricted as set forth in Section 2.10.
Notwithstanding anything to the contrary set forth in Section 4.4.2.3,
the amount of the mandatory prepayments of the Term Loans required to
be made pursuant to this paragraph shall be applied forty-five percent
(45%) to repay the Term Loan A and fifty-five percent (55%) to repay
Term Loan B
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subject to application pursuant to Section 4.4.2.4 if and to the extent
that any Bank holding any portion of Term Loan B declines such
prepayment. In the event that at the time of any repayment required
pursuant to this paragraph, the aggregate principal amount of any
outstanding Revolving Credit Loans is less than the amount which would
otherwise be required to be applied to repay Revolving Credit Loans
hereunder, such excess amount shall be applied to prepay the Term Loans
as provided in this paragraph. All mandatory prepayments of Term Loan A
or Term Loan B, as the case may be, shall be applied against the
remaining scheduled installments of such Term Loan in the inverse order
of their maturity. Any prepayment of any portion of the principal of
either Term Loan or any Revolving Credit Loan shall include all
interest accrued on such portion of such Term Loan or Revolving Credit
Loan to the date of prepayment. The provisions of Section 6.9 shall
apply to each prepayment pursuant to this paragraph. Within two
Business Days after any Borrower receives any Net Cash Proceeds from
any Existing Unit Permitted Sale-Leaseback completed on or prior to
April 15, 2002 or from a New Unit Permitted Sale-Leaseback of the
Cleveland, Ohio Unit if completed on or prior to April 15, 2002 (or if
the receipt of such Net Cash Proceeds occurred prior to November 19,
2001, then on or prior to November 26, 2001), the Borrowers shall
deliver to the Agent written notice of such receipt, which notice shall
specify the amount of such Net Cash Proceeds then received, the
aggregate amount of such Net Cash Proceeds received to date (inclusive
of the amount then received), the portion of such Net Cash Proceeds
then received which is to be applied to prepay the Revolving Credit
Loans, Term Loan A and Term Loan B in accordance with the terms hereof
and the repayment amount to be received by each Bank in respect of such
Bank's Revolving Credit Loans, such Bank's Term A Commitment Percentage
of the Term Loan A and/or such Bank's Term B Commitment Percentage of
the Term Loan B, as applicable.
SECTION 6. AMENDMENT OF SECTION 4.4.2.3 - APPLICATION OF PREPAYMENTS.
Section 4.4.2.3 of the Credit Agreement is hereby amended by inserting the
phrase "Except as otherwise provided in the last paragraph of Section 4.4.2.1,"
at the beginning to the first sentence thereof and changing the first letter of
the word "All" immediately following such phrase to lower case.
SECTION 7. AMENDMENT OF SECTION 6 - INTEREST AFTER DEFAULT. Section
6.10.1 and Section 6.10.2 of the Credit Agreement are hereby amended by deleting
the phrase "two percent (2%)" where it appears in each such section and
substituting therefor the phrase "three percent (3%)".
SECTION 8. AMENDMENT OF SECTION 9 - INSPECTION OF PROPERTIES AND BOOKS,
ETC. Section 9 of the Credit Agreement is hereby amended by inserting the
following new Section 9.9.4 at the end thereof:
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9.9.4 OUTSIDE CONSULTANT. In the event that the comparative
sales report prepared by the Borrowers in a manner consistent with past
practice for the fourth quarter of Fiscal Year 2002 (ending February 2,
2002) indicates a decline of five percent (5%) or more in same Unit
sales from the fourth quarter of Fiscal Year 2001, the Agent may, and
upon the request of the Majority Banks shall, appoint an outside
consultant to assist the Banks in analyzing the business and financial
condition of the Borrowers and any proposals relating to this Credit
Agreement, the Loans outstanding hereunder or the Borrowers' business.
The Borrowers shall pay any fees, costs and expenses incurred by or
payable to such consultant. Contemporaneously with the delivery to the
Banks of the financial statements of the Borrowers required to be
delivered pursuant to Section 9.4(b) for the fourth quarter of Fiscal
Year 2002, the Borrower shall deliver to the Agent its comparative
sales report for the fourth quarter of Fiscal Year 2002 prepared in a
manner consistent with past practice and showing same Unit sales for
the corresponding quarter of Fiscal Year 2001.
SECTION 9. AMENDMENT OF SECTION 10.3 - LOANS TO EMPLOYEES. Section 10.3
of the Credit Agreement is hereby amended by deleting the text of Section
10.3(i) in its entirety and substituting in place thereof the following:
(i) Investments consisting of loans and advances to employees in an
aggregate amount not to exceed $500,000 at any time outstanding;
provided that (x) other than loans or advances to employees for moving,
entertainment, travel and other similar expenses incurred in the
ordinary course of the Borrowers' business in an aggregate amount at
any one time outstanding not to exceed $100,000, no new loans or
advances shall be made to employees after November 19, 2001 until March
31, 2002, and (y) other than loans and advances permitted pursuant to
clause (x) above, new loans or advances may not be made to employees
after March 31, 2002 unless prior to making any such loan or advance,
the Borrowers deliver to the Agent a certificate signed by a financial
officer of the Borrowers demonstrating that at the time of making such
loan or advance the sum of the (i) the Borrowers' cash on hand plus
(ii) the amount by which the Total Revolving Credit Commitment exceeds
the sum of (A) the Outstanding amount of Revolving Credit Loans plus
(B) the Maximum Drawing Amount, plus (C) all Unpaid Reimbursement
Obligations exceeds $6,000,000 after giving effect to any Investments
then contemplated to be made under Section 10.3(i) and any Revolving
Credit Loans to be advanced to finance such Investment;
SECTION 10. AMENDMENT OF SECTION 11 - LEVERAGE RATIO. Section 11.1 of
the Credit Agreement is hereby amended by deleting the text thereof in its
entirety and substituting the following therefor:
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11.1 LEVERAGE RATIO. The Borrowers will not permit the
Leverage Ratio, determined at the end of and for any period of four
consecutive fiscal quarters of the Borrowers ending during any period
described in the table below, to be greater than the ratio set forth
opposite such period in the column labeled Unadjusted Ratio in such
table; provided that for any period of four consecutive fiscal quarters
of the Borrowers ending from and after the date on which the Borrowers
receive Net Cash Proceeds in an aggregate amount in excess of
$12,500,000 from Existing Unit Permitted Sale-Leasebacks and a New Unit
Permitted Sale-Leaseback in respect to the Cleveland, Ohio Unit, the
Borrowers will not permit the Leverage Ratio, determined at the end of
and for such four quarter period to be greater than the ratio set forth
below in the column labeled "Adjusted Ratio" opposite the period during
which such four quarter period ends:
Period Unadjusted Adjusted
(inclusive of end dates) Ratio Ratio
----------------------- ---------- --------
Fiscal Year 2002 (ending 2/3/02) 2.00:1 1.75:1
Fiscal Year 2003 (ending 2/2/03) 1.75:1 1.50:1
Fiscal Year 2004 and thereafter 1.50:1 1.50:1
SECTION 11. AMENDMENT OF SECTION 11.4 - CAPITAL EXPENDITURES AND NEW
LEASES. Section 11.4 of the Credit Agreement is hereby amended by deleting the
text thereof in its entirety and substituting in place thereof the following:
11.4. NEW UNIT CAPITAL EXPENDITURES; NEW LEASES. The Borrowers
will not, nor will they permit any of their Subsidiaries or Affiliates
to (a) make aggregate New Unit Capital Expenditures in excess of
$15,000,000 during any fiscal year, (b) permit more than one new Unit
to open or become operational in the Fiscal Year 2003 of the Borrower,
(c) permit any new Unit to open or become operational in any twelve
(12) month period ending thereafter, without the prior written
unanimous consent of the Banks, (d) make aggregate New Unit Capital
Expenditures in excess of $12,500,000 in connection with any single
Unit during such Unit's first full year of operation, (e) with respect
to any single Unit opening in a particular fiscal year, expend more
than the Per-Unit Start-Up Cost Cap in Consolidated Start-Up Costs in
connection with such Unit, (f) commit to the construction, acquisition
or opening of new Units at any time that the Leverage Ratio at the end
of the most recently ended fiscal quarter for which the Borrowers' have
delivered the Compliance Certificate exceeds the Incurrence Ratio, or
(g) sign any new real property leases without the prior written
unanimous consent of the Banks.
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SECTION 12. AMENDMENT OF SECTION 11 - MINIMUM EBITDA REQUIREMENT.
Section 11 of the Credit Agreement shall be amended by inserting the following
new Section 11.5 at the end thereof:
11.5. MINIMUM CONSOLIDATED EBITDA. The Borrowers will not
permit the sum of (i) Consolidated EBITDA for each fiscal quarter of
the Borrowers specified in the table below plus (ii) to the extent
deducted from Consolidated EBITDA of the Borrowers for such fiscal
quarter, any rental expense incurred by the Borrowers in respect of
each Unit which is the subject of a Permitted Sale-Leaseback
transaction occurring after October 1, 2001 to be less than the minimum
amount set forth opposite such fiscal quarter in the table below:
MINIMUM
CONSOLIDATED
FISCAL QUARTER EBITDA
-------------- ------------
Q4 -FY 2002 (ending 2/3/02) $15,750,000
Q1 - FY 2003 $14,250,000
Q2 - FY 2003 $11,500,000
Q3 - FY 2003 $ 9,500,000
Q4 - FY 2003 (ending 2/2/03) $16,000,000
SECTION 13. AMENDMENT TO SCHEDULE 8.18. Schedule 8.18 to the Credit
Agreement is hereby amended by deleting such Schedule 8.18 in its entirety and
substituting in place thereof the Schedule 8.18 attached to this Amendment and
made a part hereof.
SECTION 14. AFFIRMATION AND ACKNOWLEDGMENT. Each Borrower hereby
ratifies and confirms all of its Obligations to the Banks and the Agent,
including, without limitation, the Loans, and the Borrowers hereby affirm their
joint and several absolute and unconditional promise to pay to the Banks the
Loans, the Reimbursement Obligations, and all other amounts due under the Credit
Agreement as amended hereby. Each Borrower hereby confirms that the Obligations
are and remain secured pursuant to the
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Security Documents and pursuant to all other instruments and documents executed
and delivered by each Borrower as security for the Obligations.
SECTION 15. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Banks and the Agent as follows:
(a) The execution and delivery by each Borrower of this Amendment and
the performance by each Borrower of its obligations and agreements under this
Amendment and the Credit Agreement as amended hereby are within the corporate
authority of such Borrower, have been duly authorized by all necessary corporate
proceedings on behalf of such Borrower, and do not and will not contravene any
provision of law, statute, rule or regulation to which such Borrower is subject
or any of such Borrower's charter, other incorporation papers, by-laws or any
stock provision or any amendment thereof or of any agreement or other instrument
binding upon such Borrower.
(b) Each of this Amendment and the Credit Agreement as amended hereby
constitutes the legal, valid and binding joint and several obligation of each
Borrower, enforceable in accordance with its respective terms, except as limited
by bankruptcy, insolvency, reorganization, moratorium or other laws relating to
or affecting generally the enforcement of creditors' rights.
(c) No approval or consent of, or filing with, any governmental agency
or authority is required to make valid and legally binding the execution,
delivery or performance by each Borrower of this Amendment and the Credit
Agreement as amended hereby.
(d) The representations and warranties contained in Section 8 of the
Credit Agreement are true and correct at and as of the date made and as of the
date hereof, except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date.
(e) Each Borrower has performed and complied in all material respects
with all terms and conditions herein required to be performed or complied with
by it prior to or at the time hereof, and as of the date hereof, after giving
effect to the provisions hereof, there exists no Event of Default or Default.
SECTION 16 EFFECTIVENESS. This Amendment shall become effective on
November 19, 2001 upon the satisfaction of the following conditions precedent:
SECTION 16.1. MAJORITY BANK APPROVAL. Each section of this
Amendment other than the sections specified in Section 16.2 shall
become effective upon the written consent of the Borrowers and the
written consent of the Majority Banks.
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SECTION 16.2. UNANIMOUS BANK APPROVAL. Sections 4, 5 and 6
hereof shall become effective upon the written consent of the Borrowers
and the written consent of each of the Banks.
SECTION 16.3. JOINDER DOCUMENTS. The New Subsidiary shall duly
execute and deliver to the Agent allonges to each of the Revolving
Credit Notes and the Term Notes, an Agency Account Agreement, and
certificates of insurance, in form and substance reasonably
satisfactory to the Agent. D&B shall deliver to the Agent to be held
under the Stock Pledge Agreement as security for the Obligations, stock
certificates representing all of the issued and outstanding capital
stock of the New Subsidiary, together with stock powers duly executed
in blank in form and substance reasonably satisfactory to the Agent for
the New Subsidiary.
SECTION 16.4. AMENDMENT FEES. The Borrowers shall have paid to
the Agent, for the account of each Bank, an amendment fee in an amount
equal to one fifteenth of one percent (0.15%) of the sum of each such
Bank's Revolving Credit Commitment on November 1, 2001 plus the
aggregate principal amount of such Bank's Term Loans outstanding on
November 1, 2001.
SECTION 16.5. CORPORATE ACTION. All corporate action necessary
for the valid execution, delivery and performance by the New Subsidiary
of this Amendment and each of the other related documents to which it
is or is to become a party, shall have been duly and effectively taken,
and evidence thereof reasonably satisfactory to the Agent shall have
been provided to the Agent.
SECTION 16.6. CERTIFIED COPIES OF CHARTER DOCUMENTS; GOOD
STANDING. The Agent shall have received from the New Subsidiary (i) a
certified copy of its charter documents and by-laws and (ii) a good
standing certificate for the New Subsidiary issued by the secretary of
state of the jurisdiction under the laws of which such New Subsidiary
is incorporated.
SECTION 16.7. INCUMBENCY CERTIFICATE. The Agent shall have
received from the New Subsidiary an incumbency certificate, dated as of
the date of this Amendment, signed by a duly authorized officer of the
New Subsidiary, and giving the name and bearing a specimen signature of
each individual who shall be authorized: (i) to sign, in the name and
on behalf of the New Subsidiary, this Amendment; (ii) to make Revolving
Credit Loan Requests and Conversion Requests and to apply for Letters
of Credit; and (iii) to give notices and to take other action on its
behalf under the Loan Documents.
SECTION 16.8. VALIDITY OF LIENS. The Security Documents shall
be effective to create in favor of the Agent for the benefit of the
Banks and the Agent a legal, valid and enforceable first (except for
Permitted
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Liens entitled to priority under applicable law) security interest in
and lien upon the Collateral. All filings, recordings, deliveries of
instruments and other actions necessary or desirable in the opinion of
the Agent to protect and preserve such security interests shall have
been duly effected. The Agent shall have received evidence thereof in
form and substance satisfactory to the Agent.
SECTION 16.9. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS.
The Agent shall have received from the New Subsidiary a completed and
fully executed Perfection Certificate.
SECTION 16.10. LEGAL OPINIONS. The Agent shall have received
or made arrangements for the receipt within thirty days following the
execution and delivery of this Amendment of a legal opinion from legal
counsel to the New Subsidiary, which legal opinion shall be in form and
substance satisfactory to the Agent. In the event that the Agent does
not receive such legal opinion contemporaneously with the execution and
delivery of this Amendment, the failure of the Agent to receive such a
legal opinion within thirty days thereafter shall be considered an
Event of Default under the Credit Agreement.
SECTION 16.11. NO MATERIAL ADVERSE CHANGE. The Majority Banks
shall be satisfied that there shall have occurred no material adverse
change in the business, operations, assets, management, properties,
financial condition, income or prospects of the Borrowers and their
Subsidiaries taken as a whole since February 4, 2001.
SECTION 16.12. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT.
Each of the representations and warranties of any of the
Borrowers and their Subsidiaries contained in this Amendment, the
Credit Agreement, the other Loan Documents or in any document or
instrument delivered pursuant to or in connection with this Amendment
or the Credit Agreement shall be true as of the date as of which they
were made (except to the extent of changes resulting from transactions
contemplated or permitted by this Amendment or the Credit Agreement and
the other Loan Documents and changes occurring in the ordinary course
of business that singly or in the aggregate are not materially adverse,
and to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default shall
have occurred and be continuing.
SECTION 16.13. PROCEEDINGS AND DOCUMENTS. All proceedings in
connection with the transactions contemplated by this Amendment and all
other documents incident hereto shall be reasonably satisfactory in
substance and in form to the Agent.
SECTION 17. MISCELLANEOUS PROVISIONS.
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(a) Except as otherwise expressly provided by this Amendment, all of
the terms, conditions and provisions of the Credit Agreement shall remain the
same. It is declared and agreed by each of the parties hereto that the Credit
Agreement, as amended hereby, shall continue in full force and effect, and that
this Amendment and the Credit Agreement shall be read and construed as one
instrument.
(b) This Amendment is intended to take effect as an agreement under
seal and shall be construed according to and governed by the laws of the
Commonwealth of
Massachusetts.
(c) This Amendment may be executed in any number of counterparts, but
all such counterparts shall together constitute but one instrument. In making
proof of this Amendment, it shall not be necessary to produce or account for
more than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
(d) Each Borrower hereby agrees to pay to the Agent, on demand by the
Agent, all reasonable out-of-pocket costs and expenses incurred or sustained by
the Agent in connection with the preparation of this Amendment (including legal
fees).
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
a document under seal as of the date first above written.
XXXX & BUSTERS, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: CFO
XXXX & BUSTER'S I, L.P.
By: XXXX & BUSTER'S, INC.,
as general partner
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
XXXX & BUSTER'S OF ILLINOIS, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
XXXX & BUSTER'S OF GEORGIA, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
XXXX & BUSTER'S OF PENNSYLVANIA, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
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DANB TEXAS, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
XXXX & BUSTER'S OF MARYLAND, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
XXXX & BUSTER'S OF CALIFORNIA, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
XXXX & BUSTER'S OF COLORADO, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
XXXX & BUSTER'S OF NEW YORK, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
XXXX & BUSTER'S OF FLORIDA, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
14
XXXX & BUSTER'S OF PITTSBURGH, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
XXXX & BUSTER'S OF HAWAII, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
D&B REALTY HOLDING, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
D&B LEASING, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
15
FLEET NATIONAL BANK, individually and
as Agent
By: /s/ J. Xxxxxxxx Xxxx
----------------------------------
Name: J. Xxxxxxxx Xxxx
Title: Managing Director
16
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Vice President
00
XXXX XXX, XX
(XXXX XXXXXX, XXXXXXX, XXXXXXXX)
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
18
GUARANTY BANK
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
19
TRANSAMERICA EQUIPMENT FINANCIAL
SERVICES CORPORATION
By: /s/ R.E. Linn
----------------------------------
Name: R.E. Linn
Title: VP Region Credit Mgr
20
THE FROST NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
21
XXXXXX FINANCIAL LEASING, INC.
By: /s/ Xxxxxxx Xxxxxxxx for Xxx X. Xxx
----------------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President, Portfolio Manager
22
ORIX FINANCIAL SERVICES, INC.
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------
Name: R. Xxxxx Xxxxxxxxx
Title: Vice President
23
