EXHIBIT 10.12
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT dated as of January 14, 2002
(this "Amendment") is by and between BUCA, INC., a Minnesota corporation (the
"Borrower"), the banks which are signatories to the Credit Agreement defined
below (individually, a "Bank" and, collectively, the "Banks"), BANK OF AMERICA,
N.A., a national banking association ("BofA"), as one of the Banks and as agent
for the Banks (in such capacity, the "Agent"), FLEET NATIONAL BANK, a national
banking association ("Fleet"), as Documentation Agent and as one of the Banks,
and BRANCH BANKING AND TRUST COMPANY, a North Carolina banking corporation
("Branch"), as one of the Banks.
RECITALS
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A. The Agent, the Banks and the Borrower have entered into a Credit
Agreement dated as of August 28, 2001, as amended by the First Amendment to
Credit Agreement dated as of November 1, 2001 (as further amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement").
B. The Borrower has entered into an agreement to purchase certain assets of
Xxxxx Xxxxx'x Restaurant Group, and has requested that the Banks (i) consent to
and provide a $20,000,000 term loan to finance such purchase, and (ii) amend
certain provisions contained in the Credit Agreement.
C. The Banks have agreed to consent to such purchase, provide such
financing, and amend certain provisions contained in the Credit Agreement, all
subject to the terms and conditions set forth in this Amendment.
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 Amendments. The Credit Agreement is hereby amended or modified,
as the case may be, as follows:
Section 2.1 Definitions.
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(a) The definitions of "Advance," "Applicable Fee Percentage,"
"Applicable Margin," "Average Annual Comparable Restaurant Sales
Growth," "Borrowing Base," "Commitments," "Comparable Restaurant,"
"Fiscal Year," "Loan," "Majority Banks," "Note," and "Revolving
Commitment Ending Date" contained in Section 1.1 of the Credit
Agreement are hereby amended in their entireties to read as follows:
"Advance": Any portion of the outstanding Revolving Loans or Term
Loan by a Bank as to which one of the available interest rate options
and, if pertinent, an Interest Period, is applicable. An Advance may
be a Eurodollar Rate Advance or a Reference Rate Advance.
"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):
Cash Flow Leverage Ratio Applicable Fee Percentage
------------------------ -------------------------
Less than or equal to 2.50 to 1.00 0.500%
Greater than 2.50 to 1.00 but
less than or equal to 2.75 to 1.00 0.500%
Greater than 2.75 to 1.00 but
less than or equal to 3.00 to 1.00 0.500%
Greater than 3.00 to 1.00 0.500%
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
3.00 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.
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"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 Advances Advances
------------------------ -------- --------
Less than or equal to 2.50 to 1.00 0.750% 2.250%
Greater than 2.50 to 1.00 but
less than or equal to 2.75 to 1.00 1.000% 2.500%
Greater than 2.75 to 1.00 but
less than or equal to 3.00 to 1.00 1.250% 2.750%
Greater than 3.00 to 1.00 1.500% 3.000%
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 3.00 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.
"Average Annual Comparable Restaurant Sales Growth": For any date
of determination, the percentage annual increase in Total Restaurant
Sales for Comparable Restaurants calculated by comparing (a) Total
Restaurant Sales for Comparable Restaurants for the twelve consecutive
fiscal months ended on such date of determination, to (b) Total
Restaurant Sales for Comparable Restaurants for the 12 consecutive
fiscal months ended on the last day of the fiscal month which ended 12
fiscal months prior to such date of determination (the "Prior 12-Month
Period"), in each case determined on a consolidated basis in
accordance with GAAP; provided, however, that, for the purposes of
subsection (a) above, Total Restaurant Sales shall be calculated in
respect of Comparable
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Xxxxx Xxxxx'x Restaurants only for full fiscal months occurring after
the Second Amendment Closing Date and, for purposes of subsection (b)
above, Total Restaurant Sales shall be calculated in respect of
Comparable Xxxxx Xxxxx'x Restaurants only for the corresponding fiscal
months included in the Prior 12-Month Period; provided, further,
however, that the Total Restaurant Sales for Comparable Restaurants
for each of the fiscal month ending September 30, 2001 and the fiscal
month ending October 28, 2001 shall be deemed to equal the average of
the Total Restaurant Sales for Comparable Restaurants for each of the
twelve consecutive fiscal months ending August 26, 2001.
"Borrowing Base": The product of (a) Annualized EBITDA times (b)
1.50.
"Commitments": The Revolving Commitment and the Term Loan
Commitment of each Bank.
"Comparable Restaurant": Each Restaurant continuously owned and
operated by the Borrower or a Subsidiary during the 24 fiscal months
of the Borrower prior to the date of determination and each Comparable
Xxxxx Xxxxx'x Restaurant.
"Fiscal Year": The fiscal year of the Borrower, which ends on the
last Sunday of each December. The fiscal quarters and the fiscal
months of the Borrower through January, 2005 are set forth in Schedule
1.1-1.
"Loan": The Revolving Loan or the Term Loan.
"Majority Banks": At any time, Banks other than the Defaulting
Banks whose Total Percentages aggregate at least 62.5% (with Total
Percentages being computed without reference to the Revolving
Commitment Amounts and Term Loan Commitment Amounts of Defaulting
Banks).
"Note": A Revolving Note or a Term Note.
"Revolving Commitment Ending Date": January 14, 2005.
(b) Section 1.1 of the Credit Agreement is further amended by adding
the definitions "Additional Commitment Amount," "Comparable Xxxxx Xxxxx'x
Restaurant," "Net Cash Proceeds," "Purchase Agreement," "Second Amendment,"
"Second Amendment Closing Date," "Term Loan," "Term Loan Commitment," "Term
Loan Commitment Amount," "Term Loan Percentage," "Term Note," "Total
Percentage," "Total Term Loan Commitment Amount," "Xxxxx Xxxxx'x," and
"Xxxxx Xxxxx'x Acquisition" thereto in the correct alphabetical order as
follows:
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"Additional Commitment Amount": As defined in Section 2.7(c).
"Comparable Xxxxx Xxxxx'x Restaurant": Each Restaurant acquired
pursuant to the Purchase Agreement that has been continuously owned
and operated by Xxxxx Xxxxx'x and/or the Borrower or a Subsidiary
during the 24 fiscal months of the Borrower prior to the date of
determination.
"Net Cash Proceeds": The gross 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) received by the Borrower or any Subsidiary with respect to
(i) the sale or disposition of assets by the Borrower or such
Subsidiary, or (ii) the issuance of Indebtedness or Equity Interests
by the Borrower or such Subsidiary, less the actual cash expenses and
taxes paid or, with the prior written approval of the Agent (which
shall not be unreasonably withheld), to be paid by the Borrower or
such Subsidiary in connection with such disposition or issuance.
"Purchase Agreement": The Asset Purchase Agreement (the "Purchase
Agreement") dated as of December 17, 2001 between VT Administrative,
Inc., a Massachusetts corporation, Back Bay Restaurant Associates
Limited Partnership, a Massachusetts limited partnership, Beacon
Restaurant Associates Limited Partnership, a Massachusetts limited
partnership, Danvers Restaurant Associates Limited Partnership, a
Massachusetts limited partnership, Dedham Restaurant Associates
Limited Partnership, a Massachusetts limited partnership, Exton
Restaurant Associates Limited Partnership, a Massachusetts limited
partnership, Lexington Restaurant Associates Limited Partnership, a
Massachusetts limited partnership, Natick Restaurant Associates
Limited Partnership, a Massachusetts limited partnership, S & S
Restaurant Associates Limited Partnership, a Massachusetts limited
partnership, Wynnewood Restaurant Associates Limited Partnership, a
Massachusetts limited partnership, First Beacon Operating Corp., a
Massachusetts corporation, First Xxxx Corp., a Pennsylvania
corporation, First Jordan Corporation, a Massachusetts corporation,
First Julian Corporation, a Massachusetts corporation, First Xxx
Corporation, a Massachusetts corporation, First Michaella Corp., a
Massachusetts corporation, Seekonk Operating Corp., a Massachusetts
corporation, Shrewsbury Operating Corp., a Massachusetts corporation,
First Xxxxxx Corporation, a Massachusetts corporation, and Beacon
Street Realty Trust, a Massachusetts nominee trust (collectively, the
"Sellers"), and Xxxxxx
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Bloom, Xxxxxx Xxxxx, Xxxxxxx Xxxx and Xxxxxx Xxxxx and the Borrower,
relating to the purchase of certain assets of Xxxxx Xxxxx'x.
"Second Amendment": The Second Amendment to Credit Agreement
dated as of January 14, 2002, by and between the Borrower, the Agent
and the Banks.
"Second Amendment Closing Date": January 14, 2002.
"Term Loan": As defined in Section 2.1.
"Term Loan Commitment": With respect to a Bank, the agreement of
such Bank to make a Term Loan to the Borrower in an aggregate
principal amount not to exceed such Bank's Term Loan Commitment Amount
upon the terms and subject to the conditions and limitations of this
Agreement.
"Term Loan 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.
"Term Loan Percentage": With respect to any Bank, the percentage
equivalent of a fraction, the numerator of which is the amount of the
Term Loan Commitment of such Bank and the denominator of which is the
Total Term Loan Commitment Amount.
"Term Note": A promissory note of the Borrower in the form of
Exhibit 1.1-4A.
"Total Percentage": With respect to any Bank, the percentage
equivalent of a fraction, the numerator of which is the sum of the
Revolving Commitment Amount of such Bank and the Term Loan Commitment
Amount of such Bank and the denominator of which is the sum of the
Total Revolving Commitment Amount and the Total Term Loan Commitment
Amount.
"Total Term Loan Commitment Amount": The sum of the Term Loan
Commitment Amounts.
"Xxxxx Xxxxx'x": Xxxxx Xxxxx'x Restaurant Group.
"Xxxxx Xxxxx'x Acquisition": The Borrower's acquisition of
certain assets of Xxxxx Xxxxx'x pursuant to the Purchase Agreement.
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Section 2.2 Lending Commitments. Section 2.1 of the Credit Agreement
is amended by (i) adding the phrase "in respect of its Revolving
Commitment" after the term "Advances" wherever such term appears therein,
and (ii) adding thereto the following subsection (c):
(c) Term Loans. On the terms and subject to the conditions
hereof, each Bank severally agrees to make a term loan (each, a "Term
Loan" and, collectively, the "Term Loans") to the Borrower on the
Second Amendment Closing Date in an amount from each Bank equal to its
Term Loan Commitment Amount.
Section 2.3 Procedure for Loans; Notes. Sections 2.2 and 2.3 of the
Credit Agreement are amended in their entireties to read as follows:
2.2 Procedure for Loans.
(a) Procedure for Revolving Loans. Any request by the Borrower
for an Advance on the Revolving Loan hereunder shall be in writing or
by telephone and must be given so as to be received by the Agent not
later than 12:00 noon (Chicago time) three Eurodollar Business Days
prior to the requested Advance Date if the Revolving Loans (or any
portion thereof) are requested as Eurodollar Rate Advances and not
later than 12:00 noon (Chicago time) on the requested Advance Date if
the Advances are requested as Reference Rate Advances. Each request
for an Advance on the Revolving Loans hereunder shall be irrevocable
and shall be deemed a representation by the Borrower that on the
requested Advance Date and after giving effect to the requested
Advance the applicable conditions specified in Article III have been
and will be satisfied. Each request for an Advance on the Revolving
Loans hereunder shall specify (a) the requested Advance Date and (b)
the amount of the Advance which shall be in a minimum amount of
$500,000 in the aggregate for all Banks, (c) whether such Advances are
to be funded as Reference Rate Advances or Eurodollar Rate Advances
(and, if such Advances are to be made with more than one applicable
interest rate choice, specifying the amount to which each interest
rate choice is applicable) and (d) in the case of Eurodollar Rate
Advances, the duration of the initial Interest Period applicable
thereto. The Agent may rely on any telephone request for an Advance on
the Revolving Loans hereunder which it believes in good faith to be
genuine; and the Borrower hereby waives the right to dispute the
Agent's record of the terms of such telephone request. The Agent shall
promptly notify each other Bank of the receipt of such request, the
matters specified therein, and of such Bank's ratable share of the
requested Advances, and each Bank shall provide its share of the
requested Advances to the Agent in Immediately Available Funds not
later than 2:00 p.m., (Chicago time) on the requested Advance Date.
Unless the Agent determines that any applicable condition specified in
Article III has not been satisfied, the Agent will make
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available to the Borrower at the Agent's principal office in Chicago,
Illinois in Immediately Available Funds not later than 5:00 p.m.
(Chicago time) on the requested Advance Date the amount of the
requested Advances. If the Agent has made an Advance on the Revolving
Loans to the Borrower on behalf of a Bank but has not received the
amount of such Advance from such Bank by the time herein required,
such Bank shall pay interest to the Agent on the amount so advanced at
the overnight Federal Funds rate from the date of such Advance to the
date funds are received by the Agent from such Bank, such interest to
be payable with such remittance from such Bank of the principal amount
of such Advance (provided, however, that the Agent shall not make any
Advance on behalf of a Bank if the Agent has received prior notice
from such Bank that it will not make such Advance). If the Agent does
not receive payment from such Bank by the next Business Day after the
date of any Advance on the Revolving Loans, the Agent shall be
entitled to recover such Advance, with interest thereon at the rate
(or rates) then applicable to such Advance, on demand, from the
Borrower, without prejudice to the Agent's and the Borrower's rights
against such Bank. If such Bank pays the Agent the amount herein
required with interest at the overnight Federal Funds rate before the
Agent has recovered from the Borrower, such Bank shall be entitled to
the interest payable by the Borrower with respect to the Advance in
question accruing from the date the Agent made such Advance.
(b) Procedure for Term Loans. Not later than 12:00 noon (Chicago
time) three Eurodollar Business Days prior to the Second Amendment
Closing Date if the Term Loans are requested as Eurodollar Rate
Advances and not later than 12:00 noon (Chicago time) on the Second
Amendment Closing Date if the Term Loans are requested as Prime Rate
Advances, the Borrower shall deliver to the Agent a written notice of
borrowing. Such notice of borrowing shall be irrevocable and shall be
deemed a representation by the Borrower that on the Second Amendment
Closing Date and after giving effect to the Term Loans the applicable
conditions specified in Article III and the Second Amendment have been
and will be satisfied. Such notice of borrowing shall specify (i) the
Second Amendment Closing Date, (ii) whether such Term Loans are to be
funded as Eurodollar Rate Advances or Prime Rate Advances, and (iii)
in the case of Eurodollar Rate Advances, the duration of the initial
Interest Period applicable thereto. The Agent shall promptly notify
each Bank of the receipt of such notice and the matters specified
therein. On the Second Amendment Closing Date, each Bank shall provide
to the Agent the amount of such Bank's Term Loan in Immediately
Available Funds not later than 2:00 p.m. (Chicago time). Unless the
Agent determines that any applicable condition specified in Article
III or the Second Amendment has not been satisfied, the Agent will
make available to the Borrower at the Agent's principal office in
Chicago, Illinois in Immediately Available
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Funds not later than 5:00 p.m. (Chicago time) on the Second Amendment
Closing Date the requested Advances.
Section 2.3 Notes. The Revolving Loans 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. The Term Loan of each Bank shall be evidenced by a Term Note
payable to the order of such Bank in the principal amount equal to
such Bank's Term Loan Commitment Amount originally in effect. Upon
receipt of each Bank's Notes from the Borrower, the Agent shall mail
such Notes 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, and the principal amount owing by the Borrower in
respect of the Term Note payable to the order of each Bank shall be
the aggregate amount of all Advances made by such Bank with respect to
its Term Loan Commitment, less all payments of principal thereof made
by the Borrower.
Section 2.4 Interest Rates, Interest Payments and Default Interest.
Section 2.5 of the Credit Agreement is amended by (i) re-naming subsection
(a) thereof "The Revolving Loans," (ii) amending subsection (a)(iii)
thereof in its entirety to read as follows:
(iii) [INTENTIONALLY OMITTED.],
(iii) re-numbering subsection (b) thereof, entitled "Lawful Interest,"
subsection (c), and (iv) adding thereto the following new subsection (b):
(b) The Term Loans. Interest shall accrue and be payable on the
Term Loans as follows:
(i) Subject to paragraph (iii) below, each Eurodollar Rate
Advance shall bear interest on the unpaid principal amount
thereof during the Interest Period applicable thereto at a rate
per annum equal to the sum of (A) the Adjusted Eurodollar Rate
for such Interest Period, plus (B) the Applicable Margin.
(ii) Subject to paragraph (iii) below, each Reference Rate
Advance shall bear interest on the unpaid principal amount
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thereof at a varying rate per annum equal to the sum of (A) the
Reference Rate, plus (B) the Applicable Margin.
(iii) Upon the occurrence and during the continuance of any
Event of Default, each Advance shall, at the option of the
Majority Banks and upon written notice to the Borrower, bear
interest on the unpaid principal amount thereof at a rate per
annum equal to the sum of the rate applicable to such Advance,
but for the provisions of this clause (iii), plus 2.0%.
(iv) Interest shall be payable (A) with respect to each
Eurodollar Rate Advance, on the last day of the Interest Period
applicable thereto; (B) with respect to any Reference Rate
Advance, on the first day of each month; (C) with respect to all
Advances, upon any permitted prepayment (on the amount prepaid),
and (D) with respect to all Advances, if any remain outstanding,
on the earlier of (X) the third anniversary of the Second
Amendment Closing Date, (Y) the date on which the Commitments are
terminated pursuant to Section 7.2 or (Z) the date which the
Total Term Loan Commitment Amount is reduced to zero pursuant to
Section 2.7; provided that interest under Section 2.4(b)(iii)
shall be payable on demand.
Section 2.5 Mandatory Prepayments. Sections 2.6(a) and 2.6(b)(ii) of
the Credit Agreement are amended by adding the phrase "on the Revolving
Loans" after the terms "Advances," "Reference Rate Advances" and
"Eurodollar Rate Advances" wherever those terms appear therein. In
addition, Section 2.6(b)(i) of the Credit Agreement is amended in its
entirety to read as follows:
(i) Within one Business Day following the receipt thereof, the
Borrower shall prepay to the Agent for the account of the Banks an
amount equal to 100% of all Net Cash Proceeds from (A) 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
Majority Banks (provided that, unless such consent of the Majority
Banks requires such prepayment, no such prepayment shall be required
to the extent such Net Cash Proceeds are, with the prior written
approval of the Agent obtained by the Borrower prior to or
concurrently with its receipt of such Net Cash Proceeds, which
approval shall not be unreasonably withheld, reinvested or to be
reinvested within sixty (60) days by the Borrower or a Subsidiary in
the development of a new Restaurant or the maintenance or operation of
an existing Restaurant), or (B) the issuance of Indebtedness (other
than Indebtedness permitted by subsections (a) through (e) and (g)
through (i) of Section 6.13 hereof) or Equity Interests (other than
Excluded Equity Issuances) by the Borrower or any Subsidiary, to the
extent such amount is necessary to reduce the aggregate unpaid
principal balance of the Advances on the Term Loans, in the case of
the sale or
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disposition of assets or the issuance of Indebtedness, or on the
Revolving Loans, in the case of the issuance of Equity Interests, to
$0. Any such prepayments received in respect of the issuance of Equity
Interests shall be applied to the Revolving Loans in the same manner
as repayments under clause (ii) of this Section 2.6(b). Any such
prepayments received in respect of the sale or disposition of assets
or the issuance of Indebtedness shall be applied to the Term Loans by
reducing, on a pro rata basis, each remaining quarterly installment to
be paid by the Borrower pursuant to Section 2.6(d). As used herein
"Excluded Equity Issuances" shall mean (A) any issuances of common
stock of the Borrower under, or upon the exercise of options granted
under, the Borrower's 1996 Stock Incentive Plan, as amended, Stock
Option Plan for Nonemployee Directors, as amended, and 2000 Stock
Incentive Plan, as amended, or, with the prior written consent of the
Majority Banks (which shall not be unreasonably withheld), any other
stock-based incentive plan or arrangement for directors, officers or
employees of or consultants to the Borrower or any of its Subsidiaries
(collectively, the "Stock-Based Incentive Plans"), (B) any issuances
of common stock of the Borrower upon the exercise of options granted
to landlords of the Borrower or any of its Subsidiaries, (C) any
issuances of Equity Interests of any Subsidiary to the Borrower or any
other Subsidiary, and (D) any issuances of common stock of the
Borrower under the BUCA, Inc. Employee Stock Purchase Plan, as
amended, maintained by the Borrower. This provision shall not be
deemed to permit any sale or disposition of assets or the issuance of
any Indebtedness by the Borrower or any Subsidiary not otherwise
permitted hereunder.
Section 2.6 Prepayments. Section 2.6 of the Credit Agreement is
further amended by adding thereto the following new subsection (d):
(d) Repayment Terms. The unpaid principal balance of all
Revolving Notes, together with all accrued and unpaid interest
thereon, shall be due and payable on the Termination Date. Subject to
Section 2.6(b)(i) and Section 2.7(b), the principal of the Term Loan
shall be payable (i) on the last day of each fiscal quarter in
quarterly installments of (A) $1,666,667 commencing on June 30, 2002
and ending on September 29, 2002, (B) $1,666,666 on December 29, 2002,
(C) $1,750,000 commencing on March 30, 2003 and ending on December 28,
2003, and (D) $2,000,000 commencing on March 28, 2004 and ending on
December 26, 2004, and (ii) with a final installment in an amount
equal to the remaining principal balance of the Term Loan, if any, on
the earlier of (X) the third anniversary of the Second Amendment
Closing Date, (Y) the date on which the Commitments are terminated
pursuant to Section 7.2 or (Z) the date which the Total Term Loan
Commitment Amount is reduced to zero pursuant to Section 2.7.
Section 2.7 Optional Reduction of Commitments. Section 2.7(a) of the
Credit Agreement is amended by adding (i) the word "Revolving" before the
term
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"Commitments" wherever such term appears therein, and (ii) the words "with
respect to the Revolving Commitments" to the end of the last sentence of
such section.
Section 2.8 Mandatory Reduction of Commitments. Section 2.7(b) of the
Credit Agreement is amended in its entirety to read as follows:
(b) Mandatory Reduction of Commitments.
(i) Sale of Assets. The Term Loan Commitment Amounts shall
be permanently reduced (ratably according to the Banks' then
respective Term Loan Percentages) on each date of receipt by the
Borrower or any Subsidiary of the Net 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 Majority Banks by the amount of such Net Cash
Proceeds; provided that, unless such consent of the Majority
Banks requires such reduction, no such reduction shall occur to
the extent such proceeds are, with the prior written approval of
the Agent (which shall not be unreasonably withheld) obtained by
the Borrower prior to or concurrently with its receipt of such
Net Cash Proceeds, reinvested or to be reinvested within sixty
(60) days by the Borrower or a Subsidiary in the development of a
new Restaurant or the maintenance or operation of an existing
Restaurant.
(ii) Issuance of Indebtedness. The Term Loan Commitment
Amounts shall be permanently reduced (ratably according to the
Banks' then respective Term Loan Percentages) on each date of
receipt by the Borrower or any Subsidiary of the Net Cash
Proceeds from the issuance of any Indebtedness (other than
Indebtedness permitted by subsections (a) through (e) and (g)
through (i) of Section 6.13 hereof) by the Borrower or any
Subsidiary by the amount of such Net Cash Proceeds.
Section 2.9 Optional Increase of the Total Revolving Commitment
Amount. Section 2.7(c)(i) of the Credit Agreement is amended by (a)
replacing the words "by $5,000,000" in the second line thereof with the
words "by an amount not to exceed $10,000,000," and (b) replacing the words
"Closing Date" in the fifth line thereof with the words "Second Amendment
Closing Date."
Section 2.10 Revolving Commitment Fees. Section 2.8(b)(ii) of the
Credit Agreement is amended in its entirety to read as follows:
(ii) [INTENTIONALLY OMITTED.]
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Section 2.11 Letters of Credit. Section 2.11 of the Credit Agreement
is amended by adding the word "Revolving" before the term "Commitments"
wherever such term appears therein.
Section 2.12 Use of Loan Proceeds. Section 2.19 of the Credit
Agreement is amended in its entirety to read as follows:
Section 2.19 Use of Loan Proceeds. The proceeds of the Advances
shall be used (i) to finance the Xxxxx Xxxxx'x Acquisition, and the
fees and expenses incurred in connection therewith, in accordance with
the terms, and subject to the conditions, of the Purchase Agreement
and the Second Amendment, (ii) for the development of new Restaurants,
and (iii) for the Borrower's general business purposes, all in a
manner not in conflict with any of the Borrower's covenants in this
Agreement.
Section 2.13 Optional Prepayment/Replacement of Banks. Section
2.26(a)(ii) of the Credit Agreement is amended in its entirety to read as
follows:
(ii) The Borrower may prepay in full all outstanding Obligations
owed to such Affected Bank and terminate such Affected Bank's
Commitments, in which case the Total Revolving Commitment Amount will
be reduced by the amount of such Affected Bank's Revolving Commitment
Amount and the Total Term Loan Commitment Amount will be reduced by
the amount of such Affected Bank's Term Loan Commitment Amount. The
Borrower shall, within ninety (90) days following notice of its
intention to do so, prepay in full all outstanding Obligations owed to
such Affected Bank (including, in any case where such prepayment
occurs as the result of a demand for payment of increased costs, such
Affected Bank's increased costs for which it is entitled to
reimbursement under this Credit Agreement through the date of such
prepayment), and terminate such Affected Bank's obligations under the
Commitments.
Section 2.14 New Restaurants. Section 5.15 of the Credit Agreement is
amended by adding the following exception to the end of such section:
, and further, except that (i) Dedham K&L, Inc., which is not a
Wholly-Owned Subsidiary, shall be permitted to hold the liquor license
for the Xxxxx Xxxxx'x Restaurant operated in Dedham, Massachusetts;
provided, that (x) the Borrower or BUCA Restaurants 3, Inc. shall have
entered into a stock purchase agreement with Xxxxx Xxxxx for the
purchase of Xxxxx Xxxxx'x stock in Dedham K&L, Inc. that is
substantially in the form of the stock purchase agreement for the
Xxxxx Xxxxx'x Acquisition delivered to the Agent prior to the Second
Amendment Closing Date, (y) the Equity Interests therein owned by the
Borrower or any Subsidiary (which shall be certificated) have been
pledged and delivered to the Agent pursuant to an amendment to the
Pledge Agreement or a Pledge Agreement (Subsidiary),
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as applicable, and (z) Dedham K&L, Inc. shall hold such liquor license
pursuant to the terms of a beverage concession agreement delivered to
the Agent not later than ten (10) days after its execution that is
substantially in the form of the beverage concession agreement
delivered to the Agent prior to the Second Amendment Closing Date, and
(ii) the Sellers, which are not Wholly-Owned Subsidiaries, shall be
permitted to hold the liquor licenses for the other Xxxxx Xxxxx'x
Restaurants pending issuance of such licenses to BUCA Restaurants 3,
Inc.; provided that the Sellers shall hold such liquor licenses
pursuant to the terms of management agreements delivered to the Agent
within ten (10) days after their execution that are in substantially
the form of the management agreement for the Xxxxx Xxxxx'x Acquisition
delivered to the Agent prior to the Second Amendment Closing Date, and
the Borrower shall have delivered to the Agent not later than six (6)
months following the Second Amendment Closing Date either a copy of
each such license showing that each such license has been issued to
BUCA Restaurants 3, Inc. or written evidence of the Borrower's good
faith efforts to cause each such license to be issued to BUCA
Restaurants 3, Inc.
Section 2.15 Deposit Accounts and Securities Accounts. Section 5.16 of
the Credit Agreement is amended by (i) replacing the number "120" in the
first and eighth lines of such with the number "30" and (ii) adding the
words "Second Amendment" before the term "Closing Date" in the first line
of such section.
Section 2.16 Xxxxx Xxxxx'x Acquisition Documents. The Credit Agreement
is amended by adding the following new Section 5.18 thereto:
Section 5.18 Xxxxx Xxxxx'x Acquisition Documents. The Borrower
shall deliver to the Agent (i) not more than ten (10) days after the
Second Amendment Closing Date, a copy of each agreement, instrument,
document, certificate and opinion delivered in connection with the
Xxxxx Xxxxx'x Acquisition at the Closing of such Acquisition,
certified as true and correct by the Secretary or Assistant Secretary
of the Borrower, and (ii) not more than ten (10) days after receipt
thereof, a copy of each agreement, instrument, document, certificate
and opinion delivered in connection with the Xxxxx Xxxxx'x Acquisition
after the closing of such acquisition, certified as true and correct
by the Secretary or Assistant Secretary of the Borrower.
Section 2.17 Subsidiaries. Section 6.5(a) of the Credit Agreement is
amended by adding the following proviso to the end of the first sentence of
such section: "; provided, however, that the Borrower shall be required to
provide only five (5) days prior written notice with respect to the initial
capitalization of BUCA Restaurants 3, Inc."
Section 2.18 Capital Expenditures. Section 6.10 of the Credit
Agreement is amended in its entirety to read as follows:
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Section 6.10 Capital Expenditures. The Borrower will not, and
will not permit any Subsidiary to, make Capital Expenditures in an
aggregate amount exceeding, on a consolidated basis, $45,000,000 in
any Fiscal Year; provided that (i) the purchase price paid by the
Borrower pursuant to the Purchase Agreement shall not be included when
calculating Capital Expenditures for purposes of this Section 6.10 for
Fiscal Year 2002, (ii) such amount shall be reduced to $30,000,000 for
Fiscal Year 2002 until either (A) the Borrower raises an additional
$25,000,000 in the aggregate of equity or Subordinated Debt, or (B)
the Borrower has generated at least $14,000,000 in EBITDA for the
first two fiscal quarters of Fiscal Year 2002, as reflected in the
financial statements delivered by the Borrower pursuant to Section
5.1(d), (iii) such amount shall be reduced to $25,000,000 in the
aggregate for each Fiscal Year commencing in Fiscal Year 2003 in the
event that the Borrower has not raised, on or before March 31, 2003,
an additional $25,000,000 in the aggregate of equity or Subordinated
Debt, (iv) until an additional $25,000,000 in the aggregate of equity
or Subordinated Debt has been raised by the Borrower, neither the
Borrower nor any Subsidiary shall be permitted (Y) to make Capital
Expenditures in an aggregate amount exceeding $12,000,000 during the
fiscal quarter commencing December 30, 2002 and ending March 30, 2003,
or (Z) to enter into any lease and/or pre-lease arrangements for any
Restaurant with a scheduled opening after March 30, 2003 in the event
such lease and/or pre-lease arrangement contains a cancellation,
buyout, or minimum annualized rent payment provision valued, along
with similar leases and arrangements for any other such Restaurant, in
excess of $3,000,000 in the aggregate, and (v) 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.
Section 2.19 Investments. Section 6.12(m) of the Credit Agreement is
amended in its entirety to read as follows:
(m) The Xxxxx Xxxxx'x Acquisition and any other acquisition of
restaurants or entities that operate restaurants if (i) such other
acquisition is made solely in consideration for the issuance of Equity
Interests of the Borrower, and (ii) such restaurants are converted to
Restaurants not later than one year following the closing date of such
acquisition.
Section 2.20 Financial Ratios. Sections 6.18, 6.19, 6.20 and 6.21 of
the Credit Agreement are amended in their entireties to read as follows:
Section 6.18 Interest/Operating Lease Payment Coverage Ratio. The
Borrower will not permit the Interest/Operating Lease Payment Coverage
Ratio as of the last day of any fiscal quarter to be less than 2.25 to
1.00, commencing with the fiscal quarter ending March 31, 2002.
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Section 6.19 Fixed Charge Coverage Ratio. The Borrower will not
permit the Fixed Charge Coverage Ratio as of the last day of any
fiscal quarter to be less than 1.25 to 1.00, commencing with the
fiscal quarter ending March 31, 2002.
Section 6.20 Cash Flow Leverage Ratio. The Borrower will not
permit the Cash Flow Leverage Ratio as of the last day of any fiscal
quarter to be greater than 3.25 to 1.00, commencing with the fiscal
quarter ending March 31, 2002.
Section 6.21 Net Worth. The Borrower will not permit its Net
Worth as of the last day of any fiscal quarter to be less than the sum
of (i) $125,000,000 plus (ii) fifty percent (50%) of the Borrower's
net income as determined in accordance with GAAP for the fiscal
quarter ending December 30, 2001 and for each fiscal quarter
thereafter.
Section 2.21 Annual Additional Restaurants. Section 6.24 of the Credit
Agreement is amended by adding the following proviso to the end of such
section: "provided; however, such limitation for Fiscal Year 2002 shall not
include any Restaurants acquired by the Borrower in the Xxxxx Xxxxx'x
Acquisition."
Section 2.22 Limitations on Deposit Accounts and Securities Accounts.
Section 6.25 of the Credit Agreement is amended by adding the following
exception to the end of the first sentence of such section:
, except that the Borrower shall have thirty (30) days following the
Second Amendment Closing Date to deliver such a control agreement in
respect of Account Number 0000000 established by the Borrower at First
Bank of Sioux Falls (the "Sioux Falls Account") (provided that, in the
event that the Borrower is unable to obtain such a control agreement
within such 30-day period, the Borrower shall have an additional
120-day period in which to relocate the Sioux Falls Account to a
securities intermediary which will enter into such a control agreement
with respect to such relocated account and such securities
intermediary).
In addition, Section 6.25 of the Credit Agreement is amended by amending
the parenthetical contained in the second sentence of such section in its
entirety to read as follows:
(other than (i) such accounts maintained with the Agent, (ii) such
accounts for which "control agreements" must be maintained under
Section 5.16 but with respect to which the time period for obtaining
such "control agreements" or for relocating such accounts under
Section 5.16 has not yet expired, and (iii) the Sioux Falls Account,
so long as the time period for delivering a "control agreement" with
respect to such account or for
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relocating such account under the first sentence of this section has
not yet expired (collectively, the "Excluded Accounts)).
Section 2.23 Payments and Collections. Section 8.10 of the Credit
Agreement is amended by (i) adding the word "Revolving" before the word
"Notes" in the first sentence of such section, and (ii) replacing the words
"Revolving Percentages" with the words "Total Percentages" in subsection
(b) of such section.
Section 2.24 Exhibits to Credit Agreement.
(a) A new Exhibit 1.1-4A, in the form of Exhibit 1.1-4A hereto,
is hereby added to and made a part of the Credit Agreement as Exhibit
1.1-4A thereto.
(b) Exhibit 5.1(e) to the Credit Agreement is amended in its
entirety in the form of Exhibit 5.1(e) hereto, which is hereby made a
part of the Credit Agreement as Exhibit 5.1(e) thereto.
Section 2.25 Schedules. Each of Schedule 1.1, 1.1-1 and 1.1-2 is
amended in its entirety in the form of Schedules 1.1, 1.1-1 and 1.1-2
hereto, respectively, each of which is hereby made a part of the Credit
Agreement as Schedules 1.1, 1.1-1 and 1.1-2 thereto, respectively.
Section 3 Conditions. The amendments contained in this Amendment shall
become effective upon delivery by the Borrower of, and compliance by the
Borrower with, the following:
(a) This Amendment, duly executed by the Borrower, the Agent and the
Banks.
(b) A Term Note in the form attached hereto as Exhibit 1.1-4A drawn to
the order of each Bank executed by a duly elected officer of the Borrower
and dated the Second Amendment Closing Date.
(c) An amended and restated Revolving Note drawn to the order of each
Bank executed by a duly elected officer of the Borrower and dated the
Second Amendment Closing Date.
(d) A collateral assignment with respect to the Purchase Agreement,
duly executed by the Borrower and each seller party thereto, in form and
substance reasonably satisfactory to the Agent and its legal counsel.
(e) The Security Agreement (Guarantor) and Guaranty, each executed by
a duly authorized officer of BUCA Restaurants 3, Inc.
(f) A UCC financing statement for BUCA Restaurants 3, Inc. filed with
the applicable filing offices and post-filing UCC searches showing the
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Agent's first priority security interest (subject to Liens permitted by
Section 6.14 of the Credit Agreement) in the personal property of BUCA
Restaurants 3, Inc. covered by the Security Agreement (Guarantor).
(g) Certificates representing all of the Borrower's or any
Subsidiary's Equity Interests in each of BUCA Restaurants 3, Inc. and
Dedham K&L, Inc., a Massachusetts corporation, together with a duly
executed instrument of transfer or assignment in blank of said
certificates.
(h) An amendment to the Pledge Agreement in respect of BUCA
Restaurants 3, Inc., executed by a duly authorized officer of the Borrower,
and a Pledge Agreement (Subsidiary) in respect of Dedham K&L, Inc.,
executed by a duly authorized officer of BUCA Restaurants 3, Inc.
(i) A UCC financing statement for BUCA Restaurants 3, Inc. and an
amendment to the existing UCC financing statement for the Borrower, each
filed with the applicable filing offices and post-filing UCC searches
showing the Agent's first priority security interest (subject to Liens
permitted by Section 6.14 of the Credit Agreement) in the collateral
covered by the amendment to Pledge Agreement and Pledge Agreement
(Subsidiary).
(j) A true and accurate copy of the resolutions of the Board of
Directors of the Borrower authorizing the execution, delivery and
performance of this Amendment and the transactions contemplated by this
Amendment, certified as true and accurate by its Secretary or Assistant
Secretary, along with a certification by such Secretary or Assistant
Secretary (i) certifying that there has been no amendment to the Articles
of Incorporation or Bylaws of the Borrower since true and accurate copies
of the same were delivered to the Lender with a certificate of the
Secretary of the Borrower dated August 28, 2001, 2001, and (ii) identifying
each officer of the Borrower authorized to execute this Amendment, and
certifying as to specimens of such officer's signature and such officer's
incumbency in such offices as such officer holds.
(k) A certificate of the Secretary or Assistant Secretary of BUCA
Restaurants 3, Inc. certifying as to the following:
i. A true and correct copy of the corporate resolutions of such
Guarantor authorizing the execution, delivery and performance of the
Guaranty, Security Agreement (Guarantor) and Pledge Agreement
(Subsidiary) and other agreements to which BUCA Restaurants 3, Inc. is
a party contemplated hereby and thereby;
ii. The incumbency, names, titles and signatures of the officers
of BUCA Restaurants 3, Inc. authorized to execute the Guaranty,
Security Agreement (Guarantor) and Pledge Agreement (Subsidiary); and
iii. A true and accurate copy of the articles of incorporation
and bylaws of BUCA Restaurants 3, Inc.
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(l) Certificates of the Secretary or Assistant Secretary of each of
BUCA Restaurants, Inc. and BUCA Restaurants 2, Inc., certifying as to the
following:
i. A true and correct copy of the articles of incorporation of each
such Guarantor, which shall reflect, with respect to BUCA
Restaurants, Inc., the merger with BUCA (Indianapolis), Inc. and
BUCA (Kentucky), Inc., and, with respect to BUCA Restaurants 2,
Inc., the merger with BUCA (Eden Praire), Inc., BUCA (Xxxxxx
Road), Inc., BUCA (Lakeview Chicago), Inc., BUCA (Wheeling),
Inc., BUCA (Encino), Inc., BUCA (Pasadena), Inc., BEPPO (DT San
Francisco), Inc., BUCA (Xxxxxxxx), Inc., and UNA Famiglia (Palo
Alto), Inc.; and
ii. No amendment to the bylaws of such Guarantor has been made since
true and accurate copies of the same were delivered to the Agent
with a certificate of the Secretary of such Guarantor dated
August 28, 2001.
(m) A Certificate of Good Standing for the Borrower, BUCA Restaurants
3, Inc. and Dedham K&L, Inc., in the jurisdiction of its incorporation and
in each State in which the character of the properties owned or leased by
such party or the business conducted by such party makes qualification
necessary, certified by the appropriate governmental officials of the date
not more than 30 days prior to the Second Amendment Closing Date.
(n) A reaffirmation of the Guaranty and Security Agreement (Guarantor)
entered into by each Guarantor, duly executed by each Guarantor and in form
and substance reasonably satisfactory to the Agent.
(o) A copy of the fully executed Purchase Agreement and each exhibit
and schedule thereto, certified as true and correct by the Secretary or
Assistant Secretary of the Borrower.
(p) A copy of the fully executed Stock Purchase Agreement between BUCA
Restaurants 3, Inc. and Xxxxx Xxxxx and each exhibit and schedule thereto,
certified as true and correct by the Secretary or Assistant Secretary of
BUCA Restaurants 3, Inc.
(q) A copy of each opinion of counsel executed in connection with the
Xxxxx Xxxxx'x Acquisition, addressed to the Agent or accompanied by a
reliance letter or containing reliance provisions in form and substance
reasonably satisfactory to the Agent specifying that the Agent may rely on
such opinion of counsel.
(r) The closing of the Xxxxx Xxxxx'x Acquisition shall have occurred
(including, without limitation, the execution and delivery of each
management
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agreement and the stock purchase agreement contemplated in the Purchase
Agreement) and such closing shall have been consummated in accordance with
the terms of the Purchase Agreement without waiver of any material (in the
Agent's reasonable judgment) condition thereof and in accordance with all
applicable material legal requirements, and (i) all necessary material (in
the Agent's reasonable judgment) governmental, regulatory, creditor and
shareholder consents approvals and exemptions required to be obtained by
the Borrower in order to consummate the Xxxxx Xxxxx'x Acquisition shall
have been duly obtained and be in full force and effect, including without
limitation all consents from third parties to material agreements and
contracts, (ii) all material (in the Agent's reasonable judgment) permits
necessary for the operation of the Restaurants acquired by the Borrower
from Xxxxx Xxxxx'x shall either have been obtained or the Borrower (or any
Subsidiary) shall have the legal right to use or receive the benefit of
such permits pending the issuance of such permits to the Borrower (or any
Subsidiary), (iii) the execution and delivery of the Purchase Agreement and
all other instruments or agreements entered into in connection with the
Xxxxx Xxxxx'x Acquisition (the "Acquisition Documents") shall not, and the
consummation of the Xxxxx Xxxxx'x Acquisition will not, violate any order,
judgment or decree of any court or governmental body binding on the
Borrower or, to the Borrower's knowledge, any other party to the
Acquisition Documents, or result in a breach of, or constitute a default
under, any material agreement, indenture or instrument to which the
Borrower is a party or by which the Borrower is bound or, to the Borrower's
knowledge, to which any other party to the Acquisition Documents is a party
or by which any such other party is bound; (iv) no action, suits or
proceedings shall be pending or, to the knowledge of the Borrower,
threatened, to which the Borrower or, to the knowledge of the Borrower, any
other party to the Acquisition Documents is party or is subject, or by
which any of them or their properties are or may be bound, which is
reasonably likely to have a material adverse effect on the Xxxxx Xxxxx'x
Acquisition; and (v) no statement or representation made in the Acquisition
Documents by the Borrower or, to the Borrower's knowledge, any other
Person, shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the circumstances under
which they are made, not misleading.
(s) UCC searches relating to the Xxxxx Xxxxx'x Acquisition in such
jurisdictions as the Agent or the Banks may reasonably request, and
bring-downs of the UCC searches for the Guarantors covering the period from
the Closing Date to not earlier than 30 days prior to the Second Amendment
Closing Date.
(t) Consolidated pro forma financial statements of the Borrower and
the Subsidiaries showing that, after giving effect to the Xxxxx Xxxxx'x
Acquisition and all liabilities assumed with respect thereto, as if the
same had occurred on the first day of the relevant fiscal period ending
November 25, 2001, (i) the Borrower would have been in compliance with the
covenants set forth in Sections 6.10, 6.16, 6.17, 6.18, 6.19, 6.20 and 6.21
of the Credit Agreement had the amendments
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to such sections provided for in this Amendment been in effect with respect
to and throughout such fiscal periods, and (ii) the Borrower can reasonably
be expected to remain in compliance with such covenants through the
Revolving Commitment Ending Date and to have sufficient cash liquidity to
conduct its business and pay its debts and other liabilities as they become
due.
(u) Consolidated financial statements of the Borrower and the
Subsidiaries, and of Xxxxx Xxxxx'x, for the fiscal year ended December 31,
2000, for the fiscal quarter ended September 30, 2001, and for the fiscal
months ended October 28, 2001 and November 25, 2001, respectively,
including without limitation balance sheets, income and cash flow
statements prepared in conformity with GAAP and, with respect to the
financial statements for the fiscal year ended December 31, 2000, audited
by independent public accountants of recognized national standing, and such
other financial information as the Agent may reasonably request.
(v) No material adverse change since September 30, 2001 shall have
occurred in the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the Borrower
and the Subsidiaries taken as a whole on a proforma basis after taking into
effect the Xxxxx Xxxxx'x Acquisition, or in the facts and information
regarding such entities as represented to the Agent or the Banks since
September 30, 2001.
(w) All Indebtedness of the Sellers for borrowed money existing as of
the Second Amendment Closing Date, including without limitation all such
Indebtedness acquired or otherwise assumed by the Borrower or any
Subsidiary in connection with the Xxxxx Xxxxx'x Acquisition, shall be paid
in full and all related Liens shall have been released on terms and
conditions reasonably satisfactory to the Agent.
(x) An opinion of counsel to the Borrower and each Guarantor in form
and substance reasonably satisfactory to the Banks.
(y) The Borrower shall have paid to the Agent and for the account of
the Banks all fees and other invoiced amounts due and payable by the
Borrower on or prior to the Second Amendment Closing Date, including the
invoiced reasonable fees and expenses of counsel to the Agent.
(z) The Borrower shall have satisfied such other conditions as
reasonably specified by the Banks.
Section 4 Representations; No Default.
Section 4.1 General. The Borrower hereby represents that on and as of
the date hereof and after giving effect to this Amendment and the Xxxxx
Xxxxx'x Acquisition (a) all of the representations and warranties of the
Borrower contained in the Credit Agreement and each Acquisition Document
are true and correct in all respects, in the case of the Credit Agreement,
and in all material
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respects, in the case of the Acquisition Documents, as of the date hereof
as though made on and as of such date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case they are true and correct as of such earlier date, and (b) there
will exist no Default or Event of Default which has not been waived by the
Banks. The Borrower represents and warrants that the Borrower has the
corporate power and authority to enter into this Amendment and any other
instrument or agreement to which it is a party contemplated hereby or
relating hereto, and to consummate the Xxxxx Xxxxx'x Acquisition, and has
duly authorized the execution and delivery of this Amendment, any such
other instrument or agreement to which it is a party contemplated hereby or
relating hereto, and each Acquisition Document to which it is a party by
proper corporate action, and, except as set forth in Schedule 4.3 to the
Credit Agreement, none of this Amendment, any such other instrument or
agreement, any such Acquisition Document, the consummation of the Xxxxx
Xxxxx'x Acquisition, or the agreements contained herein or therein
contravene or constitute a default under (i) any agreement, instrument or
indenture to which the Borrower is a party or a signatory, (ii) a provision
of the Borrower's Articles of Incorporation or Bylaws, or (iii) to the best
of the Borrower's knowledge, any requirement of law presently in effect and
applicable to the Borrower (except in the case of clause (i) or (iii),
above, where such contravention or default could not adversely affect the
validity or enforceability of this Amendment, any such other instrument or
agreement, or any such Acquisition Document, 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 in connection
with the execution and delivery by the Borrower of this Amendment or any
other instrument or agreement to which it is a party contemplated hereby or
relating hereto, the consummation by the Borrower of the Xxxxx Xxxxx'x
Acquisition, or the performance of obligations of the Borrower herein or
therein described, except for those which the Borrower has made or obtained
and except where the failure to obtain such consent, approval or
authorization or to make such registration or declaration could not
adversely affect the validity or enforceability of this Amendment or any
such other instrument or agreement, or constitute a Material Adverse
Occurrence. The Borrower represents and warrants that this Amendment, any
other instrument or agreement to which it is a party contemplated hereby or
relating hereto, and each Acquisition Document to which it is a party are
the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their terms, subject to limitations
as to enforceability which might result from bankruptcy, insolvency,
moratorium and other similar laws affecting creditors' rights generally and
subject to general principles of equity. The Borrower warrants that 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 as to any obligations of the Borrower to the
Banks.
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Section 4.2 Liquor Licenses. The Borrower represents and warrants to
the Agent and the Banks that as of the Second Amendment Closing Date after
giving effect to the Xxxxx Xxxxx'x Acquisition, Schedule 4.20 attached
hereto sets forth a list of each Liquor License Entity (or other entity or
individual permitted by Section 5.15 of the Credit Agreement) holding the
liquor license for a Restaurant, its jurisdiction of organization, the
Restaurant at which such liquor license entity operates the bar or for
which it holds the liquor license, the date of issuance of, and the entity
issuing, such liquor license, and the outstanding principal amount of any
loan made by the Borrower or any Subsidiary to such Liquor License Entity.
As of Second Amendment Closing Date after giving effect to the Xxxxx
Xxxxx'x Acquisition, the Borrower further represents and warrants that (i)
the liquor license for each Restaurant acquired by the Borrower pursuant to
the Xxxxx Xxxxx'x Acquisition is held by a Seller or Dedham K&L, Inc., (ii)
each Seller holding such liquor license holds such liquor license pursuant
to a management agreement in substantially the form of the management
agreement for the Xxxxx Xxxxx'x Acquisition delivered to the Agent prior to
the Second Amendment Closing Date, (iii) the liquor laws of the state,
county or municipality in which a Restaurant, the liquor license for which
is held by a Seller, is located (A) permit such Seller to hold the liquor
license for such Restaurant, and (B) do not require such Seller to operate
the bar at such Restaurant, (iv) the liquor laws applicable to the
Restaurant located in Dedham, Massachusetts do not require that the holder
of the liquor license, Dedham K&L, Inc., operate the bar at such
Restaurant, (v) the bar at the Restaurant located in Dedham, Massachusetts
is operated by the Borrower or a Subsidiary pursuant to a beverage
concession agreement in substantially the form of the beverage concession
agreement for the Xxxxx Xxxxx'x Acquisition delivered to the Agent prior to
the Second Amendment Closing Date, and the Borrower or a Subsidiary has,
pursuant to a stockholder agreement in substantially the form of the
stockholder agreement for the Xxxxx Xxxxx'x Acquisition delivered to the
Agent prior to the Second Amendment Closing Date, sole approval rights on
behalf of Dedham K&L, Inc. with respect to any approvals required to be
given by Dedham K&L, Inc. pursuant to such beverage concession agreement,
and (vi) each liquor license held by a Seller is currently in the process
of being transferred to a Wholly-Owned Subsidiary or Liquor License Entity.
Section 4.3 Capitalization of Borrower and Subsidiaries. The Borrower
represents and warrants to the Agent and the Banks that Schedule 4.21
attached hereto sets forth, as of the Second Amendment Closing Date:
(a) for the Borrower, its jurisdiction of organization,
(b) a list of all Subsidiaries of the Borrower and, as
applicable, the number and percentage of the authorized, issued and
outstanding Equity Interests owned beneficially or of record by the
Borrower or any such Subsidiary therein, and the jurisdiction of
organization of that Subsidiary.
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The Borrower represents and warrants to the Agent and the Banks that as of
the Second Amendment Closing Date, all of the outstanding capital stock of
the Borrower will be validly issued, fully paid and nonassessable, and all
of the outstanding Equity Interests of the Subsidiaries will be validly
issued, fully paid and nonassessable, and will be owned beneficially and of
record directly as set forth on Schedule 4.21, subject to no Liens other
than Liens in favor of the Agent, for itself and the benefit of the Banks,
and the restrictions set forth in Schedule 4.21. The Borrower further
represents and warrants to the Agent and the Banks that, except as
reflected on Schedule 4.21, as of the Second Amendment Closing Date, none
of the Subsidiaries has outstanding any capital stock appreciation or
phantom capital stock rights or plans or other similar rights with respect
to its Equity Interests, or is subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any of its Equity
Interests. The Borrower further represents and warrants to the Agent and
the Banks that, except as set forth on Schedule 4.21, there are no
statutory or contractual preemptive rights or rights of first offer or
refusal with respect to the Equity Interests of any of the Subsidiaries.
The Borrower further represents and warrants to the Agent and the Banks
that neither the Borrower nor any of the Subsidiaries has violated in any
material respect any applicable securities laws in connection with the
offer, sale or issuance of any of its respective Equity Interests.
Section 4.4 Restaurant Locations. The Borrower represents and warrants
to the Agent and the Banks that Schedule 4.23 attached hereto identifies,
as of the Second Amendment Closing Date after giving effect to the Xxxxx
Xxxxx'x Acquisition, the location of each Restaurant owned or operated by
the Borrower or any Subsidiary and (i) if such Restaurant (or the real
property on which such Restaurant is located) is not owned by the Borrower
or a Subsidiary, describes the lease pursuant to which the Borrower or its
Subsidiary leases or operates such Restaurant and identifies the name and
address of the lessor under each such lease, or (ii) if such Restaurant (or
the real property on which such Restaurant is located) is owned by the
Borrower or a Subsidiary, identifies whether any mortgage or deed of trust
in respect of such Restaurant (or real property) has been granted by the
Borrower or a Subsidiary and, if so, describes such mortgage or deed of
trust and the amounts secured thereby, and identifies the name and address
of the mortgagee or other beneficiary under such mortgage or deed of trust.
The Borrower represents and warrants to the Agent and the Banks that as of
the Second Amendment Closing Date, except as set forth on Schedule 4.23,
each indenture, loan or credit agreement or any other "material contract"
(as such term is defined in item 601(b)(10) of Regulation S-K promulgated
by the securities and exchange commission) to which the Borrower or any
Subsidiary is a party or by which the Borrower or any Subsidiary or any of
the Borrower's or any Subsidiary's properties may be bound (other than the
Acquisition Documents) has been disclosed in, and a copy has been included
with, a report or registration statement filed by Borrower with the
Securities and Exchange Commission, pursuant to the requirements of the
Securities Act or the Exchange Ac, or any successor law, and regulations
and rules issued pursuant to the Securities Act or Exchange Act or any
successor law thereto.
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Section 5 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 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
Obligations are and continue to be secured by the security interest granted by
the Borrower in favor of the Banks under the Security Documents, 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 6 Merger and Integration, Superseding Effect. This Amendment, from
and after the date hereof, embodies the entire agreement and understanding
between the parties hereto and supersedes and has merged into this Amendment all
prior oral and written agreements on the same subjects by and between the
parties hereto with the effect that this Amendment, shall control with respect
to the specific subjects hereof and thereof.
Section 7 Severability. Whenever possible, each provision of this Amendment
and any other instrument or agreement contemplated hereby or relating hereto
shall be interpreted in such manner as to be effective, valid and enforceable
under the laws of the State of Illinois, but, if any provision of this Amendment
or any other instrument or agreement contemplated hereby or relating hereto
shall be held to be prohibited, invalid or unenforceable under the applicable
law, such provision shall be ineffective in such jurisdiction only to the extent
of such prohibition, invalidity or unenforceability, without invalidating or
rendering unenforceable the remainder of such provision or the remaining
provisions of this Amendment or any other instrument or agreement contemplated
hereby or relating hereto in such jurisdiction, or affecting the effectiveness,
validity or enforceability of such provision in any other jurisdiction.
Section 8 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 9 Legal Expenses. The Borrower agrees to reimburse the Banks, upon
execution of this Amendment, for all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and legal expenses of Xxxxxx & Xxxxxxx
LLP, counsel for the Agent) incurred in connection with the Credit Agreement,
including in connection with the 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 the Credit Agreement, and to pay and save the Banks
harmless from all liability for any stamp or other taxes which
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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 10 Headings. The headings of various sections of this Amendment
have been inserted for reference only and shall not be deemed to be a part of
this Amendment.
Section 11 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 any such agreement by executing a counterpart of such agreement.
Section 12 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF ILLINOIS, 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.
[The next page is the signature page.]
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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.
BORROWER: BUCA, INC.
By /s/ Xxxx X. Xxxxx
--------------------------------
Title CFO
--------------------------------
BANKS: BANK OF AMERICA, N.A.,
as the Agent
By /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title Vice President
--------------------------------
BANK OF AMERICA, N.A.,
as a Bank
By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
--------------------------------
Title Senior Vice President
--------------------------------
FLEET NATIONAL BANK,
as Documentation Agent and as a Bank
By /s/ Xxxx X. Xxx
--------------------------------
Title Vice President
--------------------------------
BRANCH BANKING AND TRUST COMPANY,
as a Bank
By /s/Xxxx Xxxxx
--------------------------------
Title Senior Vice President
--------------------------------
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