ELEVENTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
ELEVENTH AMENDMENT TO CREDIT
AGREEMENT
THE STEAK N SHAKE COMPANY, an
Indiana corporation (the “Company”) and FIFTH THIRD BANK, a Michigan
banking corporation, formerly known as Fifth Third Bank (Central Indiana) and as
Fifth Third Bank, Indiana (Central) (the “Bank”), being parties to that certain
Credit Agreement dated as of November 16, 2001, as previously amended
(collectively, the “Agreement”), agree to further amend the Agreement by this
Eleventh Amendment to Credit Agreement (this “Amendment”) as
follows.
1. DEFINITIONS. All
defined terms used herein not otherwise defined in this Amendment shall have
their respective meanings set forth in the Agreement. In addition,
the following new definition is hereby added to Section 1 of the Agreement as
follows:
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“Eleventh
Amendment” means that certain agreement entitled “Eleventh
Amendment to Credit Agreement” entered into by and between the Company and
the Bank dated as of July 8, 2009, for the purpose of amending this
Agreement.
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2. PERMITTED
INVESTMENTS. Section 6(e) of the Agreement is hereby amended
and restated in its entirety as follows:
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e.
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Mergers,
Consolidations, Sales, Acquisition or Formation of
Subsidiaries. Except as hereinafter provided, the
Company shall not be a party to any consolidation or merger and shall not
purchase the capital stock of or otherwise acquire any equity interest in
any other business entity. The Company shall not acquire any
material part of the assets of any other business entity, except in the
ordinary course of business. The Company shall not sell,
transfer, convey or lease all or any material part of its assets, except
in the ordinary course of business, or sell or assign with or without
recourse any receivables. The Company shall not cause to be
created or otherwise acquire any Subsidiaries other than those
Subsidiaries in existence as of the date
hereof. Notwithstanding anything to the contrary stated herein,
the Company may use up to Ten Million Dollars ($10,000,000.00) of surplus
cash, determined in the aggregate, and only surplus cash and not the
proceeds of the Loan, to make investments of any lawful nature, including
but not limited to investments of marketable securities, investments in
bonds or stocks of unlisted companies, share repurchases of the Company’s
stock, investments in real estate, the repurchase of any or all of the
Company’s stores formerly sold through sale/leaseback transactions, and
for any other investment as the Board of Directors of the Company may
approve, provided no Event of Default or Unmatured Event of Default exists
at the time of the making of such investment or would result
therefrom.
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3. REPRESENTATIONS
AND WARRANTIES. In order to induce the Bank to enter into this
Amendment, the Company affirms that the representations and warranties contained
in the Agreement are correct as of the date of this Amendment, except that (i)
they shall be deemed to also refer to this Amendment as well as all documents
named herein and, (ii) Section 3(d) of the
Agreement shall be deemed also to refer to the most recent audited
and unaudited financial statements of the Company delivered to the
Bank. The Company further represents and warrants that there are
presently no liens on any assets of the Company, whether real or personal, other
than the liens on the personal property assets of the Company granted to the
Bank.
4. EVENTS OF
DEFAULT. The Company certifies to the Bank that no Event of
Default or Unmatured Event of Default under the Agreement, as amended by this
Amendment, has occurred and is continuing as of the date of this Amendment,
except as are waived herein.
5. CONDITIONS
PRECEDENT. As conditions precedent to the effectiveness of
this Amendment, the Bank shall have received the following contemporaneously
with execution and delivery of this Amendment, each duly executed, dated and in
form and substance satisfactory to the Bank:
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(i)
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This
Amendment duly executed by the
Company.
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(ii)
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The
Reaffirmation of Guaranty Agreement in the form attached hereto as Exhibit "A"
duly executed by Steak n Shake Operations,
Inc.
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(iii)
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The
Reaffirmation of Guaranty Agreement in the form attached hereto as Exhibit "B"
duly executed by Steak n Shake Enterprises,
Inc.
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(iv)
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The
Reaffirmation of Guaranty Agreement in the form attached hereto as Exhibit "C"
duly executed by SnS Investment
Company.
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(v)
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Resolutions
of the Board of Directors of the Company authorizing the execution,
delivery and performance, respectively, of this Amendment and all other
Loan Documents provided for in this Amendment to which the Company is a
party, certified by the Secretary of the Board of Directors of the Company
as being in full force and effect and duly adopted as of the date
hereof.
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(vi)
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The
Certificate of the Secretary of the Board of Directors of the Company
certifying the names of the officer or officers authorized to execute this
Amendment and all other Loan Documents provided for in this Amendment to
which the Company is a party, together with a sample of the true signature
of each such officer, dated as of the date of this
Amendment.
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(vii)
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Resolutions
of the Board of Directors of Steak n Shake Operations, Inc., an Indiana
corporation, authorizing the execution, delivery and performance,
respectively, of its Reaffirmation of Guaranty Agreement and all other
Loan Documents provided for in this Amendment to which Steak n Shake
Operations, Inc. is a party, certified by the Secretary of the
Board of Directors of Steak n Shake Operations, Inc. as being in full
force and effect and duly adopted as of the date
hereof.
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(viii)
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The
Certificate of the Secretary of the Board of Directors of Steak n Shake
Operations, Inc. certifying the names of the officer or officers
authorized to execute its Reaffirmation of Guaranty Agreement and all
other Loan Documents provided for in this Amendment to which Steak n Shake
Operations, Inc. is a party, together with a sample of the true signature
of each such officer, dated as of the date of this
Amendment.
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(ix)
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Resolutions
of the Board of Directors of Steak n Shake Enterprises, Inc., an Indiana
corporation, authorizing the execution, delivery and performance,
respectively, of its Reaffirmation of Guaranty Agreement and all other
Loan Documents provided for in this Amendment to which Steak n Shake
Enterprises, Inc. is a party, certified by the Secretary of the Board of
Directors of Steak n Shake Enterprises, Inc. as being in full force and
effect and duly adopted as of the date
hereof.
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(x)
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The
Certificate of the Secretary of the Board of Directors of Steak n Shake
Enterprises, Inc. certifying the names of the officer or officers
authorized to execute its Reaffirmation of Guaranty Agreement and all
other Loan Documents provided for in this Amendment to which Steak n Shake
Enterprises, Inc. is a party, together with a sample of the true signature
of each such officer, dated as of the date of this
Amendment.
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(xi)
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Resolutions
of the Board of Directors of SnS Investment Company, an Indiana
corporation, authorizing the execution, delivery and performance,
respectively, of its Reaffirmation of Guaranty Agreement and all other
Loan Documents provided for in this Amendment to which SnS Investment
Company is a party, certified by the Secretary of the Board of Directors
of SnS Investment Company as being in full force and effect and duly
adopted as of the date hereof.
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(xii)
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The
Certificate of the Secretary of the Board of Directors of SnS Investment
Company certifying the names of the officer or officers authorized to
execute its Reaffirmation of Guaranty Agreement and all other Loan
Documents provided for in this Amendment to which SnS Investment Company
is a party, together with a sample of the true signature of each such
officer, dated as of the date of this
Amendment.
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6. PRIOR
AGREEMENTS. The Agreement, as
amended by this Amendment, supersedes all previous agreements and commitments
made or issued by the Bank with respect to the Loans and all other subjects of
this Amendment, including, without limitation, any oral or written proposals
which may have been made or issued by the Bank.
7. EFFECT OF
AMENDMENT. The provisions
contained herein shall serve to supplement and amend the provisions of the
Agreement. To the extent that the terms of this Amendment conflict
with the terms of the Agreement, the provisions of this Amendment shall control
in all respects.
8. REAFFIRMATION. Except
as expressly amended by this Amendment, all of the terms and conditions of the
Agreement shall remain in full force and effect as originally written and as
previously amended.
9. COUNTERPARTS. This Amendment
may be executed in any number of counterparts, each of which shall be an
original and all of which when taken together shall be one and the same
agreement.
IN WITNESS WHEREOF, the
Company and the Bank have executed and delivered in Indiana this Eleventh
Amendment Credit Agreement by their respective duly authorized officers as of
July 8, 2009.
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THE STEAK N SHAKE
COMPANY, an Indiana
corporation
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By:
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/s/ Xxxxxx
Xxxxxxx
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Xxxxxx
Xxxxxxx, CEO and Chairman
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FIFTH THIRD BANK, a Michigan
banking corporation, formerly known as Fifth Third Bank (Central Indiana), and
Fifth Third Bank, Indiana (Central)
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By:
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/s/ Xxxxxxx X.
Krummen____
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Xxxxxxx
X. Xxxxxxx, Vice President
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