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EXHIBIT 10.1.1
AMENDMENT NO. 1
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT NO. 1 TO REVOLVING CREDIT AND TERM LOAN AGREEMENT dated
as of May 31, 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") and FNB
as administrative agent for the Banks (the "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 Bank One, Texas, N.A., as documentation
agent (as amended and in effect from time to time, the "Credit Agreement").
Capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Credit Agreement.
WHEREAS, D & B has created a new subsidiary, Xxxx & Buster's of Hawaii,
Inc.;
WHEREAS, pursuant to Section 9.17 of the Credit Agreement, Xxxx &
Buster's of Hawaii, Inc. is required to become a Borrower under the Credit
Agreement and a party to the Security Documents;
WHEREAS, the Borrowers, the Banks and the Agent desire to increase the
aggregate permitted principal amount of the Revolving Credit Loans available
under the Credit Agreement as provided more fully herein below;
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. Xxxx &
Buster's of Hawaii, Inc. 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.
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SECTION 2. AMENDMENT TO SCHEDULE 1 OF THE CREDIT AGREEMENT. Schedule 1
to the Credit Agreement is hereby amended by deleting such Schedule 1 in its
entirety and substituting in place thereof the Schedule 1 attached to this
Amendment and made a part hereof.
SECTION 3. AMENDMENT TO SCHEDULE 8.18 OF THE CREDIT AGREEMENT. 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 4. 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 Security Documents and pursuant to all
other instruments and documents executed and delivered by each Borrower as
security for the Obligations.
SECTION 5. 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 Revolving Credit Note payable to the order of Guaranty Bank ("GB") executed
and delivered in connection with this Amendment as provided in Section 6.2 of
this Amendment (the "New Note") and the performance by each Borrower of its
obligations and agreements under this Amendment, the Credit Agreement as amended
hereby and the New Note 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, the Credit Agreement as amended hereby and
the New Note constitutes the legal, valid and binding joint and several
obligations of each Borrower, enforceable in accordance with their 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, the Credit Agreement
as amended hereby or the New Note.
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(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 6. EFFECTIVENESS. This Amendment shall become effective upon
the satisfaction of the following conditions precedent:
SECTION 6.1. JOINDER DOCUMENTS. Xxxx & Buster's of Hawaii Inc.
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 a
Stock certificate representing all of the issued and outstanding
Capital Stock of Xxxx & Buster's of Hawaii, Inc., together with a stock
power duly executed in blank in form and substance reasonably
satisfactory to the Agent.
SECTION 6.2. LOAN DOCUMENTS. Each of this Amendment, the
Revolving Credit Note substantially in the form of Exhibit A to the
Credit Agreement and payable to the order of GB reflecting the increase
in the Revolving Credit Commitment of GB effected hereby, and all
related documents shall have been duly executed and delivered by each
of the Borrowers and, in the case of the Amendment and such other
related documents, the other parties hereto, shall be in full force and
effect and shall be in form and substance reasonably satisfactory to
the Agent.
SECTION 6.3. CORPORATE ACTION. All corporate action necessary
for the valid execution, delivery and performance by each Borrower of
this Amendment, the New Note 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 6.4. CERTIFIED COPIES OF CHARTER DOCUMENTS; GOOD
STANDING. The Agent shall have received from the Borrowers and each of
their Subsidiaries (i) a certificate certifying that its charter or
other incorporation documents and by-laws delivered to the Agent on the
Closing Date have not been amended (or, if such documents have been
amended, certified copies of such documents as so amended) and (ii) a
good standing certificate for each Borrower issued
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by the secretary of state of the jurisdiction under the laws of which
such Borrower is organized.
SECTION 6.5. INCUMBENCY CERTIFICATE. The Agent shall have
received from the Borrowers and each of their Subsidiaries an
incumbency certificate, dated as of the date of this Amendment, signed
by a duly authorized officer of such Person, 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 such Person, each
of this Amendment and the New Note; (ii) in the case of each Borrower,
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 6.6. 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 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 6.7. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS.
The Agent shall have received from the Borrowers and each of their
Subsidiaries a completed and fully executed Perfection Certificate.
SECTION 6.8. ASSIGNMENT AND ACCEPTANCE. An Assignment and
Acceptance substantially in the form of Exhibit F attached to the
Credit Agreement and pursuant to which GB shall have assigned to ORIX
Financial Services, Inc. ("Orix") a $2,500,000 interest in the Term
Loan A advanced by GB shall have been executed by GB, ORIX, D&B, and
the Agent and delivered to the Agent and the Borrowers shall have
delivered to the Agent a Term A Note substantially in the form of
Exhibit C to the Credit Agreement and payable to Orix in the amount of
$2,500,000.
SECTION 6.9. NO MATERIAL ADVERSE CHANGE. The Agent 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 6.10. 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
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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 6.11. 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 Banks and to the Agent.
SECTION 7. MISCELLANEOUS PROVISIONS.
(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 and the New Note
(including legal fees).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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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
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Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXX & BUSTER'S I, L.P.
By: XXXX & BUSTER'S, INC., as general partner
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXX & BUSTER'S OF ILLINOIS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXX & BUSTER'S OF GEORGIA, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXX & BUSTER'S OF PENNSYLVANIA, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
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DANB TEXAS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXX & BUSTER'S OF MARYLAND, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXX & BUSTER'S OF CALIFORNIA, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXX & BUSTER'S OF COLORADO, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXX & BUSTER'S OF NEW YORK, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXX & BUSTER'S OF FLORIDA, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
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XXXX & BUSTER'S OF PITTSBURGH, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
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XXXX & BUSTER'S OF HAWAII, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
D&B REALTY HOLDING, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
FLEET NATIONAL BANK, individually and as Agent
By: /s/ J. Xxxxxxxx Xxxx
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Name: J. Xxxxxxxx Xxxx
Title: Director
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ORIX FINANCIAL SERVICES, INC.
By: /s/ R. Xxxxx Xxxxxxxxx
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Name: R. Xxxxx Xxxxxxxxx
Title: Vice President
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BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Senior Vice President
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BANK ONE, N.A.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
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GUARANTY BANK
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Senior Vice President
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TRANSAMERICA EQUIPMENT FINANCIAL SERVICES CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President
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THE FROST NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
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XXXXXX FINANCIAL LEASING INC.
By: /s/ Xxxxxx X. Les
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Name: Xxxxxx X. Les
Title: Vice President
