EXHIBIT 10.1.5
AMENDMENT NO. 5
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT NO. 5 TO REVOLVING CREDIT AND TERM LOAN AGREEMENT dated
as of August 6, 2003 (this "Amendment"), by and among XXXX & BUSTER'S, INC.
("DBI"), the Subsidiaries of DBI (DBI collectively with such subsidiaries, the
"Borrowers"), FLEET NATIONAL BANK ("FNB"), the other lending institutions listed
on Schedule 1 to the Credit Agreement (together with FNB, the "Banks"), FNB as
administrative agent for the Banks (the "Agent") and Bank One, NA as
documentation agent (the "Documentation Agent"), amends certain provisions of
the Revolving Credit and Term Loan Agreement, dated as of June 30, 2000 among
the Borrowers, the Banks, the Agent and the Documentation Agent (as amended and
in effect from time to time, the "Credit Agreement"). Each capitalized term used
herein without definition shall have the meaning assigned to such term in the
Credit Agreement.
WHEREAS, the Borrowers wish to issue Convertible Subordinated Debt (as
defined below) and to acquire D & B Toronto (as defined below) using proceeds
from the issuance of the Convertible Subordinated Debt as provided herein;
WHEREAS, the Borrowers, the Banks and the Agent desire to decrease by
$4,000,000 the aggregate permitted principal amount of the Revolving Credit
Loans available under the Credit Agreement as provided more fully herein below;
WHEREAS, the Borrowers, the Banks and the Agent have agreed to amend
certain terms and conditions of the Credit Agreement as specifically set forth
in this Amendment;
NOW THEREFORE, in consideration of the mutual agreements contained in
the Credit Agreement and herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. AMENDMENT TO SECTION 1 - DEFINITIONS. Section 1 of the
Credit Agreement is hereby amended by inserting, in alphabetical order, the
following new definitions:
"D & B Toronto. The Xxxx & Buster's restaurant located in Toronto,
Canada to be purchased by Newco, subject to compliance by Newco and the
Borrowers with Section 9.17, as permitted by Section 10.5.3.
D & B Toronto Acquisition. The acquisition by Newco, subject to
compliance with Section 9.17, of all of the assets of D & B Toronto
with $4,000,000 of the cash proceeds from the issuance of the
Convertible Subordinated Debt pursuant to documentation in form and
substance satisfactory to the Agent.
Convertible Subordinated Debt. Unsecured Indebtedness of DBI evidenced
by the Subordinated Indenture and the Subordinated Notes.
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Indenture Effective Date. The date on which the Subordinated Indenture
becomes effective and DBI has incurred the Convertible Subordinated
Debt, which date shall be prior to August 31, 2003.
Newco. The newly created Subsidiary of DBI which, subject to compliance
with Section 9.17, will acquire the assets of D & B Toronto.
Repurchase Event. As such term is defined in the Subordinated
Indenture.
Subordinated Debt Documents. Collectively, the Subordinated Purchase
Agreement, the Subordinated Indenture, the Subordinated Registration
Rights Agreement, the Subordinated Notes, the Warrants and the other
documents and agreements executed and delivered in connection
therewith.
Subordinated Indenture. The Indenture dated as of a date after August
4, 2003 but prior to August 31, 2003 between DBI and [the Indenture
Trustee] relating to the Subordinated Notes in form and substance and
containing subordination provisions satisfactory to the Agent.
Subordinated Notes. The Convertible Subordinated Notes due 2008 in the
aggregate principal amount of not more than $35,000,000 issued pursuant
to the Subordinated Indenture in form and substance and containing
subordination provisions satisfactory to the Agent.
Subordinated Purchase Agreement. The Securities Purchase Agreement,
dated after August 4, 2003 but prior to August 31, 2003, among DBI and
certain other parties thereto as initial purchasers, relating to the
issuance and sale by DBI of the Subordinated Notes and the Warrants, in
form and substance satisfactory to the Agent.
Subordinated Registration Rights Agreement. The Registration Rights
Agreement, dated after August 4, 2003 but prior to August 31, 2003,
among DBI, U.S. Bancorp Xxxxx Xxxxxxx Inc., and certain other parties
thereto as initial purchasers of the Subordinated Notes and Warrants in
form and substance satisfactory to the Agent.
Warrants. The warrants to purchase shares of common stock issued
pursuant to the Subordinated Purchase Agreement and all warrants issued
in exchange, transfer or replacement thereof in form and substance
satisfactory to the Agent."
SECTION 2. AMENDMENT OF SECTION 4.4.2 - MANDATORY PREPAYMENTS. Section
4.4.2 of the Credit Agreement is hereby amended as follows:
(a) Section 4.4.2.1 is amended by inserting after the words "other
than" in clause (f) of such section, the words "the Convertible Subordinated
Debt,";
(b) Section 4.4.2 is further amended by inserting a new subsection
4.4.2.5 to read as follows:
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"4.4.2.5. Mandatory Prepayments from Proceeds of Convertible
Subordinated Debt. Immediately upon receipt by DBI of the proceeds from the
issuance of the Convertible Subordinated Debt, the Borrowers shall prepay the
Term Loans in an aggregate amount equal to 100% of the proceeds from the
issuance of the Convertible Subordinated Debt less (i) up to $4,000,000 (in
connection with the D & B Toronto Acquisition) and (ii) any fees and expenses
related to the issuance of the Convertible Subordinated Debt, provided that in
no event shall such aggregate amount of such prepayment be less than
$19,000,000. Such prepayment shall be applied to the principal of each of Term
Loan A and Term Loan B on a ratable basis based upon the respective outstanding
amounts thereof and against the remaining scheduled installments of each of such
Term Loan in inverse order of their maturity. No amount repaid with respect to a
Term Loan may be reborrowed. The provisions of Section 6.9 shall apply to each
prepayment pursuant to this Section 4.4.2.5."
SECTION 3. AMENDMENT OF SECTION 8 - STATUS AS SENIOR DEBT. Section 8 of
the Credit Agreement is hereby amended by inserting immediately after the text
of Section 8.25 the following new sections:
"8.26. STATUS OF LOANS AS SENIOR DEBT. From and after the Indenture
Effective Date, all Indebtedness of DBI and each of its Subsidiaries to the
Banks and the Agent in respect of the Obligations constitutes "Designated Senior
Debt" under the terms of the Subordinated Debt Documents.
8.27. SUBORDINATED DEBT DOCUMENTS. Each of the representations and
warranties made by DBI in any of the Subordinated Debt Documents was true and
correct in all material respects on the date such representations and warranties
were made and/or deemed to have been made.
8.28. NO OTHER SENIOR DEBT. DBI has not designated any Indebtedness of
the Borrowers or any of their Subsidiaries as, and has no, "Designated Senior
Debt" for purposes of (and as defined in) the Subordinated Indenture, other than
the Obligations."
SECTION 4. AMENDMENT OF SECTION 10.1 - RESTRICTIONS ON INDEBTEDNESS.
Section 10.1 of the Credit Agreement is hereby amended by deleting the text
"and" following Section 10.1(g), and by deleting Section 10.1(h) in its entirety
and substituting in place thereof the following:
"(h) the Convertible Subordinated Debt; and
(i) Indebtedness consisting of guaranties or indemnities of
Indebtedness of any Borrower or any of its Subsidiaries described in
clauses (a) through (h) of this Section 10.1."
SECTION 5. AMENDMENT OF SECTION 10.5.3 - ACQUISITIONS. Section 10.5.3
of the Credit Agreement is hereby amended by deleting the text "." immediately
following the text "shall not exceed $5,000,000" and substituting the following
therefor:
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", and (c) the D & B Toronto Acquisition, provided that, (i)
immediately prior to and after, and after giving effect to, the D & B Toronto
Acquisition, no Default or Event of Default shall then exist, (ii) the aggregate
amount expended in cash by the Borrowers for such acquisition shall not exceed
$4,000,000, and shall be paid solely from the cash proceeds of the Convertible
Subordinated Debt, (iii) the Agent shall be satisfied that Newco is able to
become a joint and several Borrower and pledge its assets to support the
Obligations, and (iv) either prior to or immediately upon the effectiveness of
the D & B Toronto Acquisition, Newco shall become a joint and several Borrower
hereunder and the Borrowers and Newco shall comply with the provisions of
Section 9.17."
SECTION 6. AMENDMENT OF SECTION 10 - SUBORDINATED DEBT. Section 10 of
the Credit Agreement is hereby amended by inserting immediately after the end of
the text of Section 10.12 the following:
"10.13. SUBORDINATED DEBT. The Borrowers will not, and will not permit
any of their Subsidiaries, to (a) amend, supplement or otherwise modify the
terms of any of the Subordinated Debt Documents or (b) prepay, redeem or
repurchase (or offer to prepay, redeem or repurchase) any of the Convertible
Subordinated Debt.
10.14. SENIOR DEBT. The Borrowers will not in any manner designate or
permit to exist any Indebtedness of any Borrower or any of their Subsidiaries as
"Designated Senior Debt" (or any analogous term) for purposes of (and as defined
in) the Subordinated Indenture, other than the Indebtedness in respect of the
Obligations."
SECTION 7. AMENDMENT OF SECTION 11 - LEVERAGE RATIO. Section 11.1 of
the Credit Agreement is hereby amended by deleting the text thereof in its
entirety and substituting the following therefor:
"11.1 LEVERAGE RATIO. The Borrowers will not permit the
Leverage Ratio, determined at the end of and for any period of four
consecutive fiscal quarters of the Borrowers ending during any period
described in the table below, to be greater than the ratio set forth
opposite such period in the column labeled Unadjusted Ratio in such
table; provided that for any period of four consecutive fiscal quarters
of the Borrowers ending from and after the date on which the Borrowers
receive Net Cash Proceeds in an aggregate amount in excess of
$12,500,000 from Existing Unit Permitted Sale-Leasebacks and a New Unit
Permitted Sale-Leaseback in respect to the Cleveland, Ohio Unit, the
Borrowers will not permit the Leverage Ratio, determined at the end of
and for such four quarter period to be greater than the ratio set forth
below in the column labeled "Adjusted Ratio" opposite the period during
which such four quarter period ends:
Period
------
(inclusive of end dates) Unadjusted Ratio Adjusted Ratio
------------------------ ---------------- --------------
Effective Date through Fiscal Year 2004 1.65:1 1.65:1
(ending 1/31/04)
Thereafter 1.50:1 1.50:1
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SECTION 8. AMENDMENT OF SECTION 14 - EVENTS OF DEFAULT. Section 14.1 of
the Credit Agreement is hereby amended as follows:
(a) Section 14.1(f) of the Credit Agreement is hereby amended by
deleting Section 14.1(f) in its entirety and restating it as follows:
"(f) (i) the holders of all or any part of the Convertible
Subordinated Debt shall accelerate the maturity of all or any part of the
Convertible Subordinated Debt; or the Convertible Subordinated Debt shall be (or
shall be required at such time to be) prepaid, redeemed or repurchased in whole
or in part; or DBI or any of its Subsidiaries shall be or become required under
the terms of any of the Subordinated Debt Documents to prepay, redeem or
repurchase (or shall be or become required thereunder to offer to prepay, redeem
or repurchase) all or any part of the Convertible Subordinated Debt; or (ii) any
Borrower or any of its Subsidiaries shall fail to pay at maturity, or within any
applicable period of grace, any obligation for borrowed money or credit received
or in respect of any Capitalized Leases in an outstanding principal amount of
$250,000, or any Convertible Subordinated Debt or fail to observe or perform any
material term, covenant or agreement contained in any agreement by which it is
bound, evidencing or securing such Indebtedness for such period of time as would
permit (assuming the giving of appropriate notice if required) the holder or
holders thereof or of any obligations issued thereunder to accelerate the
maturity thereof;"
(b) Section 14.1(j) of the Credit Agreement is hereby amended by
inserting immediately after the text "Change of Control" the text "or a
Repurchase Event".
SECTION 9. 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 10. WAIVER OF SECTION 20.1. Each of the Agent and the Banks
hereby waives the condition in Section 20.1 that an Assignment and Acceptance
shall not become effective until five (5) Business Days after the execution
thereof with respect to the assignment by Bank of America, N.A. to FNB dated
July 28, 2003. Such Assignment and Acceptance shall become effective immediately
upon the satisfaction of the other conditions therein.
SECTION 11. 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 12. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Banks and the Agent as follows:
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(a) The execution and delivery by each Borrower of this Amendment and
the performance by each Borrower of its obligations and agreements under this
Amendment and the Credit Agreement as amended hereby are within the corporate
authority of such Borrower, have been duly authorized by all necessary corporate
proceedings on behalf of such Borrower, and do not and will not contravene any
provision of law, statute, rule or regulation to which such Borrower is subject
or any of such Borrower's charter, other incorporation papers, by-laws or any
stock provision or any amendment thereof or of any agreement or other instrument
binding upon such Borrower.
(b) Each of this Amendment and the Credit Agreement as amended hereby
constitutes the legal, valid and binding joint and several obligation of each
Borrower, enforceable in accordance with its respective terms, except as limited
by bankruptcy, insolvency, reorganization, moratorium or other laws relating to
or affecting generally the enforcement of creditors' rights.
(c) No approval or consent of, or filing with, any governmental agency
or authority is required to make valid and legally binding the execution,
delivery or performance by each Borrower of this Amendment and the Credit
Agreement as amended hereby.
(d) The representations and warranties contained in Section 8 of the
Credit Agreement are true and correct at and as of the date made and as of the
date hereof, except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date.
(e) Each Borrower has performed and complied in all material respects
with all terms and conditions herein required to be performed or complied with
by it prior to or at the time hereof, and as of the date hereof, after giving
effect to the provisions hereof, there exists no Event of Default or Default.
SECTION 13. EFFECTIVENESS. This Amendment shall become effective on
August 6, 2003 upon the satisfaction of the following conditions precedent (the
"Effective Date"):
SECTION 13.1. MAJORITY BANK APPROVAL. Each section of this
Amendment other than the sections specified in Section 13.2 shall
become effective upon the written consent of the Borrowers and the
written consent of the Majority Banks.
SECTION 13.2. UNANIMOUS BANK APPROVAL. Section 2 hereof shall
become effective upon the written consent of the Borrowers and the
written consent of each of the Banks.
SECTION 13.3. AMENDMENT FEES. The Borrowers shall have paid to
the Agent, for the account of each Bank, an amendment fee in an amount
equal to one tenth of one percent (0.10%) of the sum of each such
Bank's Revolving Credit Commitment on the Effective Date plus the
aggregate principal amount of such Bank's Term Loans outstanding after
giving effect to the reduction of such Bank's Term Loans pursuant to
Section 4.4.2.5 of the Credit Agreement (as amended hereby).
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SECTION 13.4. NO MATERIAL ADVERSE CHANGE. The Majority Banks
shall be satisfied that there shall have occurred no material adverse
change in the business, operations, assets, management, properties,
financial condition, income or prospects of the Borrowers and their
Subsidiaries taken as a whole since May 4, 2003.
SECTION 13.5. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT.
Each of the representations and warranties of any of the
Borrowers and their Subsidiaries contained in this Amendment, the
Credit Agreement, the other Loan Documents or in any document or
instrument delivered pursuant to or in connection with this Amendment
or the Credit Agreement shall be true as of the date as of which they
were made (except to the extent of changes resulting from transactions
contemplated or permitted by this Amendment or the Credit Agreement and
the other Loan Documents and changes occurring in the ordinary course
of business that singly or in the aggregate are not materially adverse,
and to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default shall
have occurred and be continuing.
SECTION 13.6. PROCEEDINGS AND DOCUMENTS. All proceedings in
connection with the transactions contemplated by this Amendment and all
other documents incident hereto shall be reasonably satisfactory in
substance and in form to the Agent.
SECTION 14. 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 (including legal
fees).
[Remainder of page intentionally left 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/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXX & BUSTER'S I, L.P.
By: XXXX & BUSTER'S, INC., as general
partner
By: /S/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXX & BUSTER'S OF ILLINOIS, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXX & BUSTER'S OF GEORGIA, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXX & BUSTER'S OF PENNSYLVANIA, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
DANB TEXAS, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXX & BUSTER'S OF MARYLAND, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXX & BUSTER'S OF CALIFORNIA, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXX & BUSTER'S OF COLORADO, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXX & BUSTER'S OF NEW YORK, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXX & BUSTER'S OF FLORIDA, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXX & BUSTER'S OF PITTSBURGH, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXX & BUSTER'S OF HAWAII, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
D&B REALTY HOLDING, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
D&B LEASING, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
FLEET NATIONAL BANK, individually and
as Agent
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx Xxxx
Title: Vice President
BANK ONE, NA
(MAIN OFFICE, CHICAGO, ILLINOIS)
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: First Vice President
GUARANTY BANK
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
TRANSAMERICA EQUIPMENT FINANCIAL
SERVICES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
THE FROST NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL BUSINESS
ASSET FUNDING CORPORATION, SUCCESSOR
IN INTEREST TO XXXXXX FINANCIAL
LEASING, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
ORIX FINANCIAL SERVICES, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
ELF FUNDING TRUST I
By: Highland Capital Management,
L.P. as Collateral Manager
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Chief Investment Officer
Title: Highland Capital
Management, L.P.
RESTORATION FUNDING CLO, LTD.
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Xxxx Xxxxx
------------------------------------
Name:
Title:
KZH HIGHLAND - 2 LLC
By:
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
BLUE SQUARE FUNDING LIMITED SERIES 3
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
