Exhibit 10.1
Execution Copy
FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), made and
entered into as of December 7, 2000, is by and between BUCA, INC., a Minnesota
corporation (the "Borrower"), the banks which are signatories hereto
(individually, a "Bank" and, collectively, the "Banks"), BANK OF AMERICA, N.A.,
a national banking association ("BofA"), as one of the Banks and as Co-Agent for
the Banks (in such capacity, a "Co-Agent"), FLEET NATIONAL BANK (formerly known
as BANKBOSTON, N.A.), a national banking association, as one of the Banks and as
Co-Agent for the Banks (in such capacity, a "Co-Agent"), BRANCH BANKING AND
TRUST COMPANY, a North Carolina banking corporation, as one of the Banks and as
Co-Agent and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as
one of the Banks, and as agent for the Banks (in such capacity, the "Agent").
RECITALS
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1. U.S. Bank National Association, as Agent and as a Bank, Bank of
America, N.A., as Co-Agent and as a Bank, and the Borrower entered into a Credit
Agreement dated as of September 27, 1999, as amended by that First Amendment to
Credit Agreement dated as of October 21, 1999, among U.S. Bank National
Association, as Agent and as a Bank, Bank of America, N.A., as Co-Agent and as a
Bank, and BankBoston, N.A., as Co-Agent and as a Bank, as amended by that Second
Amendment to Credit Agreement dated as of December 24, 1999, among U.S. Bank
National Association, as Agent and as a Bank, Bank of America, N.A., as Co-Agent
and as a Bank, and BankBoston, N.A., as Co-Agent and as a Bank, and as amended
by that Third Amendment to Credit Agreement dated as of March 3, 2000, among
U.S. Bank National Association, as Agent and as a Bank, Bank of America, N.A.,
as Co-Agent and as a Bank, and BankBoston, N.A., as Co-Agent and as a Bank (the
"Credit Agreement").
2. The Borrower has requested that the Banks amend the Credit
Agreement in certain respects.
3. The parties desire to amend the Credit Agreement, subject to the
terms and conditions set forth in this Amendment.
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AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby covenant
and agree to be bound as follows:
Section 1. Capitalized Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement, unless the context shall otherwise require.
Section 2. Amendment. The Credit Agreement is hereby amended as
follows:
2.1 Parties. Branch Banking and Trust Company is hereby
added as a party and signatory to the Credit Agreement, in the capacity of
a Bank and Co-Agent thereunder.
2.2 Fleet. All references in the Credit Agreement to
"BankBoston" shall, from and after the date hereof, refer to "Fleet".
2.3 Definitions.
2.2(a) The definitions of "Applicable Fee Percentage",
"Applicable Margin", "Borrowing Base", "Co-Agent", "Commitments",
"Guarantors", "Note", "Revolving Commitment Ending Date", "Revolving
Percentage", "Termination Date", "Total Revolving Commitment Amount", and
"Total Revolving Outstandings" contained in Section 1.1 of the Credit
Agreement are hereby amended to read in their entireties as follows:
"Applicable Fee Percentage": The Applicable Fee Percentage
set forth in the table below as in effect from time to time determined
based on the Cash Flow Leverage Ratio calculated as of the end of the
most recent fiscal quarter of the Borrower for which the Borrower has
furnished the financial statements and reports required under Section
5.1(a) or 5.1(d), as applicable (adjustments to the Applicable Fee
Percentage to become effective as of the first day of the month
following receipt of the financial statements required under Section
5.1(a) or 5.1(d), as applicable):
Applicable
Cash Flow Leverage Ratio (in each case, to 1.00) Fee Percentage
------------------------------------------------ --------------
Less than or equal to 2.00........................................ 0.25%
Greater than 2.00................................................. 0.50%
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Notwithstanding the foregoing, if the Borrower has not furnished the
financial statements and reports required under Section 5.1(a) or
5.1(d), as applicable, for any fiscal quarter by the required date,
the Applicable Fee Percentage shall be calculated as if the Cash Flow
Leverage Ratio as of the end of such fiscal quarter was greater than
2.00 to 1.00 for the period from the first day of the fiscal quarter
first occurring after such required date until the first day of the
month following the month in which such financial statements and
reports are delivered.
"Applicable Margin": Subject to the provisions of
2.5(a), the Applicable Margin set forth in the table below as in
effect from time to time determined based on the Cash Flow Leverage
Ratio calculated as of the end of the most recent fiscal quarter of
the Borrower for which the Borrower has furnished the financial
statements and reports required under Section 5.1(a) or 5.1(d), as
applicable (adjustments to the Applicable Margin to become effective
as of the first day of the month following receipt of the financial
statements required under Section 5.1(a) or 5.1(d), as applicable):
Reference
Rate Eurodollar
Cash Flow Leverage Ratio (in each case, to 1.00) Advances Advances
------------------------------------------------ -------- ---------
Less than or equal to 2.00........................................ 0.00% 1.875%
Greater than 2.00................................................. 0.25% 2.250%
Notwithstanding the foregoing, if the Borrower has not furnished the
financial statements and reports required under Section 5.1(a) or
5.1(d), as applicable, for any fiscal quarter by the required date,
the Applicable Margin shall be calculated as if the Cash Flow Leverage
Ratio as of the end of such fiscal quarter was greater than 2.00 to
1.00 for the period from the first day of the fiscal quarter first
occurring after such required date until the first day of the month
following the month in which such financial statements and reports are
delivered.
"Borrowing Base": The product of (a) Annualized
EBITDA times (b) 2.00.
"Co-Agent": Each of BofA, Fleet, and Branch.
"Commitments": The Revolving Commitment of each Bank.
"Guarantors": The Persons listed on Schedule 1.1-2, or any
other Subsidiaries who may hereafter guaranty the Obligations.
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"Note": A Revolving Note (hereinafter defined).
"Revolving Commitment Ending Date": December 31, 2002.
"Revolving Percentage": With respect to any Bank, the
percentage equivalent of a fraction, the numerator of which is
the Revolving Commitment Amount of such Bank and the denominator
of which is the Total Revolving Commitment Amount.
"Termination Date": The earliest of (a) the Revolving
Commitment Ending Date, (b) the date on which the Commitments are
terminated pursuant to Section 7.2 or (c) the date on which the
Total Revolving Commitment Amount is reduced to zero pursuant to
Section 2.7.
"Total Revolving Commitment Amount": The sum of the
Revolving Commitment Amounts.
"Total Revolving Outstandings": As of any date of
determination, the sum of (a) the aggregate unpaid principal
balances of the Advances evidenced by the Revolving Notes
outstanding on such date, plus (b) the aggregate maximum amount
of Letter of Credit Obligations outstanding on such date.
2.2(b) The definitions of "BankBoston", "Revolving (A)
Commitment", "Revolving (A) Commitment Amount", "Revolving (A) Note",
"Revolving (B) Commitment", "Revolving (B) Commitment Amount",
"Revolving (B) Note", "Total Revolving (A) Outstandings", "Total
Revolving (B) Outstandings", "Unused Revolving (A) Commitment" and
"Unused Revolving (B) Commitment" are hereby deleted in their
entireties.
2.2(c) The following new definitions of "Branch", "Fleet",
"Revolving Commitment", "Revolving Commitment Amount", "Revolving
Note" and "Unused Revolving Commitment" are hereby added to Section
1.1 of the Credit Agreement in correct alphabetical order thereto:
"Branch": Branch Banking and Trust Company, a North
Carolina banking corporation.
"Fleet": Fleet National Bank, a national banking
association, formerly known as BankBoston, N.A.
"Revolving Commitment": With respect to a Bank, the
agreement of such Bank to make Revolving Loans to the Borrower in
an
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aggregate principal amount outstanding at any time not to
exceed such Bank's Revolving Commitment Amount upon the
terms and subject to the conditions and limitations of this
Agreement.
"Revolving Commitment Amount": With respect to a
Bank, initially the amount set forth in Schedule 1.1 hereto,
as the same may be reduced from time to time pursuant to
Section 2.7.
"Revolving Note": An amended and restated
promissory note of the Borrower, as set forth on Exhibit
1.1-3, as the same may be amended, restated, or otherwise
modified and in effect from time to time.
"Unused Revolving Commitment": As of any date of
determination, the amount by which the Total Revolving
Commitment Amount exceeds the Total Revolving Outstandings
on such date.
2.4 Revolving Credit. Section 2.1(a) of the Credit
Agreement is hereby deleted and the following is substituted in lieu
thereof:
Section 2.1(a) Revolving Credit. On the terms and
subject to the conditions hereof, each Bank severally agrees
to make a loan (the "Revolving Loan") to the Borrower on a
revolving basis available as Advances at any time and from
time to time, with respect to the Revolving Commitment of
such Bank, from the Closing Date until the Termination Date,
during which period the Borrower may borrow, repay and
reborrow in accordance with the provisions hereof, provided,
that (i) no Revolving Loan will be made by a Bank in any
amount which, after giving effect thereto, would cause the
unpaid principal amount of outstanding Advances by such Bank
in respect of the Revolving Commitment of such Bank to at
any time exceed the Revolving Commitment Amount of such
Bank, (ii) at no time shall the Total Revolving Outstandings
exceed the Borrowing Base, and (iii) for a period of 30
consecutive calendar days during each Fiscal Year, starting
with Fiscal Year beginning January 2001, the Borrower shall
pay on the principal of the Revolving Loans an amount
sufficient to cause the outstanding principal balance of the
Revolving Loans to be reduced to zero for each day of such
30 consecutive day period.
Advances hereunder shall be made by the several
Banks ratably in the proportion of their respective
Revolving Commitment Amounts. Advances may be obtained and
maintained, at the election of the Borrower but subject to
the limitations hereof, as Reference Rate Advances or
Eurodollar Rate Advances.
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2.5 Notes. Section 2.3 of the Credit Agreement is
hereby deleted and the following is substituted in lieu thereof:
Section 2.3 Notes. The Advances of each Bank
shall be evidenced by a single Revolving Note payable to the
order of such Bank in a principal amount equal to such Bank's
Revolving Commitment Amount. Upon receipt of each Bank's Note
from the Borrower, the Agent shall mail such Note to such
Bank. Each Bank shall enter in its records the amount of the
various Advances made, converted or continued and the payments
made thereon, and each Bank is authorized by the Borrower to
enter into its records, a record of such Advances and
payments; provided, however that the failure by any Bank to
make any such entry or any error in making such entry shall
not limit or otherwise affect the obligation of the Borrower
hereunder and on the Notes, and, in all events, the principal
amounts owing by the Borrower in respect of the Revolving Note
payable to the order of each Bank shall be the aggregate
amount of all Advances made by such Bank with respect to its
Revolving Commitment, less all payments of principal thereof
made by the Borrower. The records of the Banks shall be
rebuttable presumptive evidence of the principal amount owing
and unpaid on the Notes and the amount available for draw
under the Letter of Credit Commitment, respectively.
2.6 Other Mandatory Prepayments. The reference in
Section 2.6(b) of the CrediT Agreement to the phrase "Aggregate
Revolving Commitment Amounts" shall be deemed to be a reference to the
phrase "Total Revolving Commitment Amount".
2.7 Optional Prepayments. Section 2.6(c) of the Credit
Agreement is hereby deleted and the following is substituted in lieu
thereof:
2.6(c) Optional Prepayments. The Borrower
may prepay the Reference Rate Advances, in whole or in part,
at any time, without premium or penalty. The Borrower may
prepay Eurodollar Rate Advances, in whole or in part, at any
time; provided that, upon such prepayment, the Borrower shall
pay to the Banks the amounts, if any, required pursuant to
Section 2.24 hereof. Any such prepayment must be accompanied
by accrued and unpaid interest on the amount prepaid. Each
partial prepayment shall be in an aggregate amount for all the
Banks of $100,000 or, if more, an integral multiple thereof.
Amounts paid (unless following an acceleration or upon
termination of the Revolving Commitments in whole) on the
Revolving Loans under this Section 2.6 may be reborrowed upon
the terms and subject to the conditions and limitations of
this Agreement. Amounts paid or prepaid on the Advances
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under this paragraph (c) shall be for the account of each Bank
in proportion to its shares of outstanding Advances.
2.8 Reduction of the Total Revolving Commitment Amount
or Termination of Commitments. Section 2.7 of the Credit Agreement is
hereby deleted and the following is substituted in lieu thereof:
2.7(a) Optional Reduction of the Total Revolving
Commitment Amount or Termination of Commitments. The Borrower
may, at any time, upon not less than three (3) Business Days
prior written notice to the Agent, reduce the Total Revolving
Commitment Amount, with any such reduction in a minimum amount
of $500,000 or, if more, in an integral multiple of $100,000;
provided, however, that the Borrower may not at any time
reduce the Total Revolving Commitment Amount below the then
aggregate unpaid principal balance of the Revolving Notes. The
Borrower may, at any time, upon not less than three (3)
Business Days prior written notice to the Agent, terminate the
Commitments in their entirety. Upon termination of the
Commitments pursuant to this Section, the Borrower shall pay
to the Banks the full amount of all outstanding Advances
evidenced by the Revolving Notes, all accrued and unpaid
interest thereon, all unpaid Revolving Commitment Fees accrued
to the date of such termination under Section 2.8(b) and all
other unpaid Obligations of the Borrower to the Banks and the
Agent hereunder with respect to the Commitments. Upon the date
on which the Commitments have been terminated, the Borrower
shall have paid to the Banks all unpaid Obligations of the
Borrower to the Banks and the Agent.
2.7(b) Mandatory Reduction of Total Revolving
Commitment Amount. The Revolving Commitment Amounts, at the
Agent's discretion, shall be permanently reduced on each date
of receipt by the Borrower or any Subsidiary of any cash
proceeds (including cash payments received by way of deferred
payment of principal of a note or an installment receivable
and the cash realization of any non-cash proceeds) from the
sale or disposition of assets by the Borrower or any
Subsidiary not otherwise permitted by Section 6.2 hereof and
sold with the consent of the Agent by the amount of such cash
proceeds (net of any taxes arising out of such sale or
disposition).
2.9 Revolving Commitment Fees. Section 2.8(b) of the
Credit Agreement is hereby deleted and the following is substituted in
lieu thereof:
2.8(b) Revolving Commitment Fees. The
Borrower shall pay to the Agent, for the ratable benefit of
the Banks, fees (the "Revolving Commitment Fees") in an amount
equal to the product of (i) the Applicable
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Fee Percentage times (ii) the average daily Unused Revolving
Commitment for the period from the Closing Date to the
Termination Date.
Such Revolving Commitment Fees are payable
in arrears quarterly on the first day of each April, July,
October and January and on the Termination Date.
2.10 Financial Statements and Reports. Sections 5.1(c)
and 5.1(d) of the Credit Agreement are hereby deleted and the
following are substituted in lieu thereof:
5.1(c) As soon as available and in any event
within 30 days after the end of each fiscal month in each
Fiscal Year, an unaudited consolidated statement of cash flow
for the Borrower and the Subsidiaries for such month and for
the period from the beginning of such Fiscal Year to the end
of such month, an unaudited statement of income for each
Restaurant for such month and for the period from the
beginning of such Fiscal Year to the end of such month, and an
unaudited consolidated balance sheet of the Borrower and the
Subsidiaries as at the end of such month, setting forth in
comparative form figures for the corresponding period for the
preceding Fiscal Year, accompanied by a certificate in the
form of Exhibit 5.1(c) hereto signed by the chief financial
officer of the Borrower setting forth in reasonable detail a
calculation of the Borrowing Base determined as of the end of
such month and stating that such financial statements present
fairly, in all material respects, the consolidated financial
condition of the Borrower and the Subsidiaries and that the
same have been prepared in accordance with GAAP (except for
the absence of footnotes and subject to year-end audit
adjustments).
5.1(d) As soon as available and in any event
within 30 days after the end of each of the first three fiscal
quarters of each Fiscal Year (or 45 days after the end of each
of the first three fiscal quarters of each Fiscal Year, if the
Borrower is required to file reports on Form 10-Q with the
Securities and Exchange Commission pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended,
in respect of such fiscal quarter), unaudited consolidated
statements of cash flow and changes in stockholders' equity
for the Borrower and the Subsidiaries for such quarter and for
the period from the beginning of such Fiscal Year to the end
of such quarter, an unaudited statement of income for each
Restaurant for such quarter and for the period from the
beginning of such Fiscal Year to the end of such quarter, and
an unaudited consolidated balance sheet of the Borrower and
the Subsidiaries as at the end of such quarter, setting forth
in comparative form
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figures for the corresponding period for the preceding Fiscal
Year, accompanied by a certificate signed by the chief
financial officer of the Borrower stating that such financial
statements present fairly, in all material respects, the
consolidated financial condition of the Borrower and the
Subsidiaries and that the same have been prepared in
accordance with GAAP (except for the absence of footnotes and
subject to year-end audit adjustments).
2.11 Disposition of Assets. Section 6.2(c) of the
Credit Agreement is hereby deleted and the following is substituted in
lieu thereof:
6.2(c) the sale, assignment, lease, conveyance,
transfer or other disposition of property by the Borrower to
any Wholly-Owned Subsidiary or by a Subsidiary to the Borrower
or any Wholly-Owned Subsidiary; provided that such transferee
Subsidiary shall have executed and delivered to the Agent a
Guaranty and a Security Agreement (Guarantor) and related UCC
financing statements for filing in such jurisdictions as the
Agent may request;
2.12 Subsidiaries. Section 6.5 of the Credit Agreement
is hereby amended by inserting the word "initial" before the word
"capitalization" the first time it appears therein.
2.13 Investments. Section 6.12(h) of the Credit
Agreement is hereby deleted and the following is substituted in lieu
thereof:
6.12(h) Equity Interests in any Subsidiary
the formation or acquisition of which is permitted under
Section 6.5, and contributions to the capital of any such
Subsidiary or any other Wholly-Owned Subsidiary which has
executed and delivered to the Agent a Guaranty and a Security
Agreement (Guarantor).
2.14 Capital Expenditures. Section 6.10 of the Credit
Agreement is hereby amended to read in its entirety as follows:
Section 6.10 Capital Expenditures. The
Borrower will not, and will not permit any Subsidiary to, make
Capital Expenditures in an amount exceeding, on a consolidated
basis, $37,500,000 in Fiscal Year 2000, and $35,000,000 in any
Fiscal Year thereafter; provided that all Capital Expenditures
shall be invested in the development of new Restaurants or the
maintenance of existing Restaurants or in the construction,
acquisition, repair or maintenance of the Borrower's corporate
headquarters.
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2.15 Annual Additional Restaurants. A new Section 6.25
is hereby added to the Credit Agreement in correct numerical order as
follows:
Section 6.25 Annual Additional Restaurants. The
Borrower will not, nor will it permit any Subsidiary to, open
more than 20 new Restaurants, in the aggregate, in any Fiscal
Year.
2.16 Indemnification. Section 8.9 of the Credit
Agreement is hereby amended to read in its entirety as follows:
Section 8.9 Indemnification. Each Bank agrees to
indemnify the Agent, as Agent (to the extent not reimbursed by
the Borrower), ratably according to such Bank's share of the
Total Revolving Commitment Amount from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever which may be imposed on or incurred by
the Agent in any way relating to or arising out of the Loan
Documents or any action taken or omitted by the Agent under
the Loan Documents, provided that no Bank shall be liable for
any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct. No payment by any Bank under this Section
shall relieve the Borrower of any of its obligations under
this Agreement.
2.17 Signature Pages. The signature pages to the Credit
Agreement are hereby deleted and inserted in lieu thereof are the
signature pages as set forth on this Amendment.
2.18 Revolving Commitment Amounts. Schedule 1.1 hereto
is hereby added as Schedule 1.1 to the Credit Agreement in the correct
numerical order.
2.19 Revolving Note. Exhibit 1.1-4 to the Credit
Agreement is hereby deleted, and Exhibit 1.1-3 to the Credit Agreement
is hereby amended and restated in its entirety in the form of Exhibit
A to this Amendment.
2.20 Compliance Certificate. Exhibit 5.1(e) to the
Credit Agreement is hereby amended and restated in its entirety in the
form of Exhibit B to this Amendment.
2.21 Existing Loans Repriced. The parties hereto
acknowledge that upon execution of this Amendment, the existing Loans
made by the Banks to the
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Borrower are repriced, pursuant to the definitions of "Applicable Fee
Percentage" and "Applicable Margin" as amended hereby.
Section 3. Effectiveness of Amendments. The amendments
contained in this Amendment shall become effective upon delivery by the Borrower
of, and compliance by the Borrower with, the following:
3.1 This Amendment, duly executed by the Borrower.
3.2 An amended and restated revolving note in the form
of Exhibit A hereto, made payable to each Bank in the amount of that
Bank's Revolving Commitment.
3.3 A Security Agreement (Guarantor), duly executed by
each of BUCA Investments, Inc., BUCA Texas Restaurants, L.P., and BUCA
Texas Beverage, Inc.
3.4 A Pledge Agreement (Subsidiary), duly executed by
each of BUCA Restaurants, Inc., BUCA Investments, Inc., and BUCA
Restaurants 2, Inc.
3.5 A Guaranty, duly executed by each of BUCA
Investments, Inc., BUCA Texas Restaurants, L.P., and BUCA Texas
Beverage, Inc.
3.6 An amendment, consent and reaffirmation to the
Pledge Agreement of the Borrower, along with corresponding stock
certificates, stock powers, and a UCC-3 amendment, in form and
substance satisfactory to the Agent, duly executed by the Borrower.
3.7 An affirmation of guaranty and security agreement,
in form and substance satisfactory to the Agent, duly executed by the
existing Guarantors.
3.8 UCC financing statements suitable for filing
against BUCA Investments, Inc., BUCA Texas Restaurants, L.P., BUCA
Texas Beverage, Inc., BUCA Restaurants, Inc., and BUCA Restaurants 2,
Inc. in jurisdictions required by the Agent in form and substance
satisfactory to the Agent, duly executed by such Subsidiaries.
3.9 An Amendment to the Security Agreement (Guarantor)
duly executed by BUCA Restaurants 2, Inc. and a UCC-3 Amendment to the
existing financing statement filed against BUCA Restaurants 2, Inc.,
in form and substance satisfactory to the Agent, duly executed by such
Subsidiary.
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3.10 A Certificate of the Secretary or Assistant
Secretary of the Borrower (a) certifying as to a copy of the
resolutions of the Board of Directors of the Borrower authorizing the
execution, delivery and performance of this Amendment, (b) certifying
that there have been no amendments to the Articles of Incorporation
and Bylaws of the Borrower since true and accurate copies of the same
were delivered to the Agent with a certificate of the Secretary of the
Borrower dated September 27, 1999, and (c) certifying as to the name,
title, and specimen signature of the officer or officers of the
Borrower authorized to execute this Amendment, and any other
instrument or agreement executed by the Borrower in connection with
this Amendment.
3.11 A Certificate of the Secretary or Assistant
Secretary of BUCA Restaurants, Inc. certifying as to (i) corporate
resolutions authorizing the execution, delivery and performance of its
Pledge Agreement and consent and reaffirmation of its Guaranty and
Security Agreement (Guarantor); (ii) incumbency of officers with
specimen signatures; (iii) no amendments to its Articles of
Incorporation or Bylaws since true and accurate copies of the same
were delivered to the Agent on September 27, 1999.
3.12 A Certificate of the Secretary or Assistant
Secretary of BUCA Restaurants 2, Inc. certifying as to (i) a true and
accurate copy of its Articles of Incorporation, as amended, certified
by the Minnesota Secretary of State and (ii) a true and accurate copy
of its Bylaws.
3.13 A Certificate of the Secretary or Assistant
Secretary of each of BUCA Investments, Inc., BUCA Texas Restaurants,
L.P., and BUCA Texas Beverage, Inc. certifying as to (i) corporate
resolutions or limited partnership action authorizing the execution,
delivery and performance of its respective Guaranty and Security
Agreement (Guarantor) (and in the case of BUCA Investments, Inc., as
to its Pledge Agreement (Subsidiary)); (ii) the name, title, and
specimen signatures of the officers authorized to execute its
respective Guaranty, Security Agreement (Guarantor), or Pledge
Agreement (Subsidiary), as applicable; (iii) a true and accurate copy
of its Articles of Incorporation or limited partnership agreement; and
(iv) a true and complete copy of its Bylaws or other constitutive
documents.
3.14 A copy of the Articles of Incorporation or
Certificate of Limited Partnership, with all amendments thereto, for
each of BUCA Texas Beverage, Inc., BUCA Texas Restaurants, L.P., BUCA
Investments, Inc. and BUCA Restaurants 2, Inc., certified by the
appropriate governmental official of the jurisdiction of its
organization or incorporation as of a date not more than 30 days prior
to the date hereof.
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3.15 A certificate of good standing or a certificate of
existence for each of the Borrower, BUCA Texas Beverage, Inc., BUCA
Texas Restaurants, L.P., BUCA Investments, Inc., BUCA Restaurants,
Inc., and BUCA Restaurants 2, Inc., in the jurisdiction of its
organization or incorporation, certified by the appropriate
governmental officials as of a date not more than 30 days prior to the
date hereof.
3.16 An opinion of counsel to the Borrower and all new
and existing Guarantors, in form and substance satisfactory to the
Agent.
3.17 XXXXX 27 Certificate(s) of Insurance showing
property, liability, automobile and workers compensation coverages for
the Borrower and the Borrower's direct and indirect Subsidiaries.
3.18 Payment of all reasonable unpaid legal fees and
other out-of-pocket expenses incurred by the Agent through the date of
this Amendment in connection with this Amendment of which the Borrower
has been notified as of the date of this Amendment.
3.19 Payment to the Agent of a $15,000 amendment fee.
3.20 Payment to the Agent of a $110,000 extension fee.
Section 4. Consent, Default and Waiver.
4.1 Borrower Restructuring. The Borrower has requested
that the Banks consent to the transfer of assets used in the operation
of certain Restaurants by the Borrower to BUCA Restaurants 2, Inc. and
BUCA Restaurants, Inc. in connection with a proposed restructuring
anticipated to occur prior to the end of 2001 (the "2001 Borrower
Restructuring"). The Borrower has requested that the Banks expressly
consent to the 2001 Borrower Restructuring.
4.2 Name Change. Under Section 6 of the Security
Agreement (Guarantor) executed by BUCA Restaurants 2, Inc. ("BR 2"),
formerly known as BUCA (DT Minneapolis), Inc., BR 2 agreed that it
would not change its name unless the Agent had been given at least 30
days' prior written notice thereof and BR 2 had executed and delivered
to the Agent such financing statements and other instruments required
or appropriate to continue the perfection of the security interest
created by such Security Agreement (Guarantor). The Borrower has
advised the Agent that BR 2 changed its name without providing such
notice. As a result, an Event of Default has occurred under Section
7.1(e) of the Credit Agreement. The Borrower has requested that the
Banks waive such Event of Default.
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4.3 Consent and Waiver. Upon the date on which the
amendments contained in this Amendment become effective, the Banks
hereby (i) consent to the 2001 Borrower Restructuring described in
Section 4.1, (ii) waive the Default and Event of Default described in
Section 4.2, and (iii) waive any Default or Event of Default that
might exist solely by reason of the leasing or operation of
Restaurants in the State of Texas by BUCA Texas Restaurants, L.P. or
the contribution or other transfer by the Borrower or any Subsidiary
to BUCA Investments, Inc., BUCA Texas Restaurants, L.P. or BUCA Texas
Beverage, Inc. of cash and/or assets used in the operation of such
Restaurants or the making by the Borrower or any of its Subsidiaries
of any loan to BUCA Investments, Inc., BUCA Texas Restaurants, L.P. or
BUCA Texas Beverage, Inc. in any such case prior to the time (A) each
such Subsidiary executed and delivered to the Agent a Guaranty,
Security Agreement (Guarantor) and related UCC financing statements,
(B) the Borrower or Subsidiary owning each such Subsidiary executed
and delivered to the Agent an amendment to the Pledge Agreement or a
Pledge Agreement (Subsidiary) in respect thereof, and (C) certificates
representing the Equity Interests of each such Subsidiary (together
with stock powers or other comparable assignment forms) were delivered
to the Agent. The Borrower agrees that the consent and waivers set
forth in this Section 4.3 shall be limited to the precise meaning of
the words as written herein and shall not be deemed (i) to be a
consent to any waiver or modification of any other term or condition
of the Credit Agreement or (ii) to prejudice any right or remedy that
the Agent or any Bank may now have or may in the future have under or
in connection with the Credit Agreement with respect to other Defaults
or Events of Default. The Borrower acknowledges and agrees that the
consent and waivers set forth in this Section 4.3 are provided by the
Banks as a financial accommodation to the Borrower. Except as
expressly set forth herein, the consent and waivers described in this
Section 4.3 shall not alter, affect, release or prejudice in any way
any of the Borrower's obligations under the Credit Agreement. The
consent and waivers set forth herein shall not constitute a consent or
waiver by the Agent or any Bank of any other Default or Event of
Default, if any, under the Credit Agreement, and shall not be, and
shall not be deemed to be, a course of action with respect thereto
upon which the Borrower may rely in the future, and the Borrower
hereby expressly waives any claim to such effect.
Section 5. Representations, Warranties, Authority, No Adverse
Claim.
5.1 Reassertion of Representations and Warranties, No
Default. The Borrower hereby represents that on and as of the date
hereof and after giving effect to this Amendment (a) all of the
representations and warranties contained in the Credit Agreement are
true and correct in all respects as of the date hereof as though made
on and as of such date, except for changes permitted by the terms of
the Credit
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Agreement, and (b) there will exist no Default or Event of Default
under the Credit Agreement as amended by this Amendment on such date
which has not been waived by the Agent.
5.2 Authority, No Conflict, No Consent Required. The
Borrower represents and warrants that the Borrower has the corporate
power and authority to enter into this Amendment and has duly
authorized the execution and delivery of this Amendment and any other
agreements and documents executed and delivered by the Borrower in
connection herewith by proper corporate action, and, except as set
forth in Schedule 4.3 to the Credit Agreement, none of this Amendment
nor the agreements contained herein contravenes or constitutes a
default under any agreement, instrument or indenture to which the
Borrower is a party or a signatory or a provision of the Borrower's
Articles of Incorporation or Bylaws or any requirement of law
presently in effect and applicable to the Borrower, or results in the
imposition of any Lien on any of its property under any agreement
binding on or applicable to the Borrower or any of its property
except, if any, in favor of the Agent and except where the
contravention or default or the imposition of such Lien could not
adversely affect the validity or enforceability of this Amendment or
constitute a Material Adverse Occurrence. The Borrower represents and
warrants that, except as set forth in Schedule 4.3 to the Credit
Agreement, no consent, approval or authorization of or registration or
declaration with any Person, including but not limited to any
governmental authority, is required on the part of the Borrower in
connection with the execution and delivery by the Borrower of this
Amendment or any other agreements and documents executed and delivered
by the Borrower in connection herewith or the performance of
obligations of the Borrower herein described, except for those which
the Borrower has obtained or provided and as to which the Borrower has
delivered certified copies of documents evidencing each such action to
the Agent and except where the failure to obtain such consent,
approval or authorization or to make such registration or declaration
could not adversely effect the validity or enforceability of this
Amendment or constitute a Material Adverse Occurrence.
5.3 No Adverse Claim. The Borrower warrants,
acknowledges and agrees that to the Borrower's knowledge no events
have taken place and no circumstances exist at the date hereof which
would give the Borrower a basis to assert a defense, offset or
counterclaim to any claim of the Banks with respect to the Borrower's
obligations under the Credit Agreement as amended by this Amendment.
Section 6. Affirmation of Credit Agreement, Further
References, Affirmation of Security Interest. The Banks and the Borrower each
acknowledge and affirm that the Credit Agreement, as hereby amended, is hereby
ratified and confirmed in all respects and all terms, conditions and provisions
of the Credit Agreement, except as
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amended by this Amendment, shall remain unmodified and in full force and effect.
All references in any document or instrument to the Credit Agreement are hereby
amended and shall refer to the Credit Agreement as amended by this Amendment.
The Borrower confirms to the Banks that the Borrower's obligations under the
Credit Agreement, as amended by this Amendment, are and continue to be secured
by the security interest granted by the Borrower in favor of the Agent under
that certain Security Agreement (Borrower), that certain Pledge Agreement, and
that certain Collateral Assignment of Trademarks, all dated as of September 27,
1999, and made by the Borrower in favor of the Agent, and all of the terms,
conditions, provisions, agreements, requirements, promises, obligations, duties,
covenants and representations of the Borrower under such documents and any and
all other documents and agreements entered into with respect to the obligations
under the Credit Agreement are incorporated herein by reference and are hereby
ratified and affirmed in all respects by the Borrower.
Section 7. Successors. This Amendment shall be binding upon
the Borrower and the Banks and their respective successors and assigns, and
shall inure to the benefit of the Borrower and the Banks and the successors and
assigns of the Banks.
Section 8. Legal Expenses. As provided in Section 9.2 of the
Credit Agreement, the Borrower agrees to reimburse the Agent, upon execution of
this Amendment, for all reasonable out-of-pocket expenses (including reasonable
attorney' fees and legal expenses of Xxxxxx & Xxxxxxx LLP, counsel for the
Agent) incurred in connection with negotiation, preparation and execution of
this Amendment and all other documents negotiated, prepared and executed in
connection with this Amendment, and in enforcing the obligations of the Borrower
under this Amendment, and to pay and save the Banks harmless from all liability
for any stamp or other taxes which may be payable with respect to the execution
or delivery of this Amendment, which obligations of the Borrower shall survive
any termination of the Credit Agreement.
Section 9. Counterparts. This Amendment may be executed in
several counterparts as deemed necessary or convenient, each of which, when so
executed, shall be deemed an original, provided that all such counterparts shall
be regarded as one and the same document, and any party to this Amendment may
execute such agreement by executing a counterpart of such agreement.
Section 10. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT
OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
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Section 11. Capacity. All agreements, consents and waivers of
any of the Banks hereunder or under any previous amendments to the Credit
Agreement shall be considered to have been made or given by such Bank in both
its capacity as a Bank and its capacity as the Agent or a Co-Agent, as
applicable.
[The remainder of this page is left intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
BUCA, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Title: Chief Financial Officer
----------------------------------
Address:
Attention: Xxxx X. Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Signature Page 1 to Fourth Amendment
U.S. BANK NATIONAL ASSOCIATION,
as Agent and a Bank
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Assistant Vice President
----------------------------------
Address:
Attention: Xxxxxx X. Xxxxxxxxx
MPFP0602
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Signature Page 2 to Fourth Amendment
BANK OF AMERICA, N.A.,
as Co-Agent and a Bank
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Title: Senior Vice President
----------------------------------
Address:
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
IL1-231-06-13
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Signature Page 3 to Fourth Amendment
FLEET NATIONAL BANK,
as Co-Agent and a Bank
By: /s/ Xxxxxx XxxXxxxxxx
-------------------------------------
Title: Vice President
----------------------------------
Address:
Attention: Xxxxxx XxxXxxxxxx
MADE 10008H
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Signature Page 4 to Fourth Amendment
BRANCH BANKING AND TRUST COMPANY,
as Co-Agent and a Bank
By: /s/ Xxxx Xxxxx
-------------------------------------
Title: Vice President
----------------------------------
Address:
Attention: Xxxx Xxxxx
000 Xxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx-Xxxxx, XX 00000
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
SCHEDULE 1
To Credit Agreement and Fourth Amendment to Credit Agreement
Revolving
Commitment
Bank Amount
---- --------
U.S. Bank National Association........................ $5,000,000
Bank of America, N.A.................................. $5,000,000
Fleet National Bank................................... $5,000,000
Branch Banking and Trust Company...................... $5,000,000
Signature Page 5 to Fourth Amendment
