Exhibit 4(f)
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"), dated
as of January 24, 1997, is entered into among LUBY'S CAFETERIAS, INC., a
Delaware corporation (the "Borrower"), the banks listed on the signature pages
hereof (the "Lenders"), and NATIONSBANK OF TEXAS, N.A., as Administrative
Lender for the Lenders (in said capacity, the "Administrative Lender").
BACKGROUND
A. The Borrower, the Lenders, and the Administrative Lender
heretofore entered into that certain Credit Agreement, dated as of
February 27, 1996, (the "Credit Agreement"; the terms defined in the Credit
Agreement and not otherwise defined herein shall be used herein as defined in
the Credit Agreement).
B. The Borrower, the Lenders, and the Administrative Lender desire to
amend the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are all hereby acknowledged,
the Borrower, the Lenders, and the Administrative Lender covenant and agree as
follows:
1. AMENDMENTS.
(a) The definition of "Restricted Subsidiary" set forth in
Section 1.1 of the Credit Agreement is hereby amended to read as
follows:
"Restricted Subsidiary means (a) each direct and indirect
Subsidiary of the Borrower which is not an Unrestricted Subsidiary
and (b) each direct and indirect Subsidiary which is designated as
a "Restricted Subsidiary" on Schedule 3 hereto, whether or not
such Subsidiary meets the qualifications of an Unrestricted
Subsidiary."
(b) Section 5.3(a) of the Credit Agreement is hereby amended to
read as follows:
"(a) The Borrower covenants and agrees that it will not,
and will cause each of its Restricted Subsidiaries to not,
directly or indirectly (i) sell, transfer or otherwise dispose of
any of its assets (whether now owned or hereafter acquired) or
(ii) enter into any arrangement with any Person, whereby the
Borrower or any such Restricted Subsidiary shall sell or transfer
any property, whether now owned or hereafter acquired, used or
useful in its business, and thereafter rent or lease the property
so sold or transferred ("Sale-Leaseback"), except (i) sales of
inventory or equipment in the ordinary course of business,
(ii) dispositions of obsolete inventory or equipment, waste or by-
product material in the ordinary course of business,
(iii) dispositions of Cash Equivalents or cash in the ordinary
course of business, (iv) dispositions of property to the Borrower
or to a Restricted Subsidiary, and (v) other dispositions of
property and Sale-Leasebacks (A) for not less than the fair market
value of such property and (B) provided the aggregate Net Proceeds
of all such dispositions and Sale-Leasebacks during any fiscal
year shall not exceed 5% of the consolidated total assets of the
Borrower and its Subsidiaries as of the end of the immediately
preceding fiscal year."
(c) Schedule 3 to the Credit Agreement is hereby amended to be
in the form of Schedule 3 to this First Amendment.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
execution and delivery hereof, the Borrower represents and warrants that, as
of the date hereof and after giving effect to the amendments contemplated by
the foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement are true and correct on and as of the date hereof as made on
and as of such date;
(b) no event has occurred and is continuing which constitutes a
Default or an Event of Default;
(c) the Borrower has full power and authority to execute and
deliver this First Amendment, and this First Amendment and the Credit
Agreement, as amended hereby, constitute the legal, valid and binding
obligations of the Borrower, enforceable in accordance with their
respective terms, except as enforceability may be limited by applicable
debtor relief laws and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and
except as rights to indemnity may be limited by federal or state
securities laws;
(d) neither the execution, delivery and performance of this
First Amendment or the Credit Agreement, as amended by this First
Amendment, nor the consummation of any transactions herein or therein,
will contravene or conflict with any law to which the Borrower or any of
its Subsidiaries is subject or any indenture, agreement or other
instrument to which the Borrower or any of its Subsidiaries or any of
their respective property is subject; and
(e) no authorization, approval consent, or other action by,
notice to, or filing with, any governmental authority or other Person is
required for the execution, delivery or performance by the Borrower of
this First Amendment.
3. CONDITIONS OF EFFECTIVENESS. This First Amendment shall be
effective as of the date first above written, subject to the following:
(a) the Administrative Lender shall have received counterparts
of this First Amendment executed by each Lender;
(b) the Administrative Lender shall have received counterparts
of this First Amendment executed by the Borrower;
(c) the Administrative Lender shall have received the Subsidiary
Guaranty duly executed by each Guarantor;
(d) the Administrative Lender shall have received a
subordination agreement, in form and substance satisfactory to the
Administrative Lender (the "Subordination Agreement"), duly executed by
each Guarantor;
(e) the Administrative Lender shall have received an officer's
certificate for each Guarantor, including a certificate of incumbency
with respect to each officer of such Guarantor signing the Subsidiary
Guaranty and the Subordination Agreement, and including (i) a copy of
the certificate of incorporation or limited partnership of such
Guarantor, as appropriate, certified to be true, complete and correct by
the secretary of state of organization, (ii) a copy of the by-laws or
partnership agreement of each Guarantor, as appropriate, certified to be
true, complete and correct, (iii) a copy of the resolutions of such
Guarantor authorizing the execution, delivery and performance of the
Subsidiary Guaranty and the Subordination Agreement; and (iv) a copy of
the certificates of existence and good standing of such Guarantor for
its state of organization and each state in which it is qualified to do
business; and
(f) the Administrative Lender shall have received, in form and
substance satisfactory to the Administrative Lender and its counsel,
such other documents, certificates and instruments as the Administrative
Lender shall require.
4. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this First Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", or
words of like import shall mean and be a reference to the Credit
Agreement, as affected and amended hereby.
(b) The Credit Agreement, as amended by the amendments referred
to above, shall remain in full force and effect and is hereby ratified
and confirmed.
5. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand
all costs and expenses of the Administrative Lender in connection with the
preparation, reproduction, execution and delivery of this First Amendment and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Lender with respect thereto and with respect to advising the Administrative
Lender as to its rights and responsibilities under the Credit Agreement, as
hereby amended).
6. EXECUTION IN COUNTERPARTS. This First Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each which when so executed and delivered shall be deemed to be
an original and all of which when taken together shall constitute but one and
the same instrument.
7. GOVERNING LAW: BINDING EFFECT. This First Amendment shall be
governed by and construed in accordance with the laws of the State of Texas
and shall be binding upon the Borrower and each Lender and their respective
successors and assigns.
8. HEADINGS. Section headings in this First Amendment are included
herein for convenience of reference only and shall not constitute a part of
this First Amendment for any other purpose.
9. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FIRST
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO ORAL
UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as the date first above written.
LUBY'S CAFETERIAS, INC.
By: XXXX X. XXXXXX, XX.
_________________________________
Name: Xxxx X. Xxxxxx, Xx.
Title: President
NATIONSBANK OF TEXAS, N.A.
By: XXXX XXXXXX
_________________________________
Name: Xxxx Xxxxxx
Title: Senior Vice President
SUNTRUST BANK, ATLANTA
By: XXXX X. XXXXX
_________________________________
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
By: XXXX X. XXXXXX, XX.
_________________________________
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: XXXXXX X. XXXXXXXX
_________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
THE BANK OF TOKYO, LTD., DALLAS
AGENCY
By: XXXX XXXXXXXX
_________________________________
Name: Xxxx Xxxxxxxx
Title: Vice President
SCHEDULE 3
SUBSIDIARIES
1. Borrower is a Delaware corporation.
2. L&W Seafood, Inc. is a Delaware corporation and an Unrestricted
Subsidiary. Borrower owns 80% of the outstanding stock L&W Seafood,
Inc.
3. Borrower owns, either directly or indirectly, 100% of the outstanding
ownership interests of the following Subsidiaries, each of which is a
Restricted Subsidiary:
(a) Luby's Holdings, Inc., a Delaware corporation (a wholly-owned
subsidiary of Borrower).
(b) LUBCO, Inc., a Delaware corporation (a wholly-owned subsidiary of
Luby's Holdings, Inc.).
(c) Luby's Limited Partner, Inc., a Delaware corporation (a wholly-
owned subsidiary of Luby's Holdings, Inc.).
(d) Luby's Management, Inc., a Delaware corporation (a wholly-owned
subsidiary of LUBCO, Inc.).
(e) Luby's Restaurants Limited Partnership, a Texas limited
partnership (owned 1% by Luby's Management, Inc., sole general
partner, and 99% by Luby's Limited Partner, Inc., sole limited
partner).
