Exhibit 10.1
MASTER CREDIT FACILITY AGREEMENT
THIS MASTER CREDIT FACILITY AGREEMENT dated as of February 14, 2003 (as it
may be amended from time to time, this "Agreement") is entered into by and
between FIRST NATIONAL BANK OF COLORADO, a national banking corporation,
together with any assigns thereof or successor thereto (hereinafter called
"Bank" or "the Bank") and CHAMPPS ENTERTAINMENT, INC., a Delaware corporation
duly registered to conduct business in the State of Colorado (hereinafter called
"Borrower").
RECITALS
WHEREAS, Borrower wishes to borrow funds from the Bank to finance various
activities of Borrower in connection with Borrower's restaurant business,
including for working capital and for interim financing for construction of and
improvements at new restaurant locations, and the Bank is willing to lend such
funds, on the terms and conditions set forth herein; and
WHEREAS, to induce the Bank to lend such funds, Borrower is granting to the
Bank a security interest in certain property and rights of Borrower relating to
its restaurant business as set forth below; and
WHEREAS, the Bank and the Borrower desire to set forth their agreements and
other provisions relating to the terms of the credit facility being provided by
the Bank; and
WHEREAS, the Borrower is today executing a promissory note payable to the
Lender in the amount of the credit extended to the Borrower for its working
capital;
NOW, THEREFORE, in consideration of the recitals above and the covenants
and promises contained herein, the receipt and sufficiency for which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. THE LOAN. The Bank agrees, upon compliance by Borrower with the terms
and conditions hereof, to make a loan or loans (collectively, the "Loan") to the
Borrower in the principal amounts and during the period set forth below:
a. A loan in the amount of Two Million Dollars ($2,000,000.00) as a
working capital line of credit for Borrower's benefit only ("Working Capital
Line of Credit"), to be evidenced by a Revolving Promissory Note of even date
herewith in the form attached hereto as Exhibit A in the face amount of
$2,000,000.00 ("$2,000,000 Note"); and
b. A loan in the aggregate amount of Six Million Dollars
($6,000,000.00) as an interim line of credit for financing of construction of
and improvements at new restaurant locations ("Construction Line of Credit"), to
be evidenced by separate promissory notes for each new restaurant location in
the form attached hereto as Exhibit B which shall be due and payable in full on
the date which is ninety (90) days from the date of estimated substantial
completion of
such construction and improvements (each such promissory note being referred to
as a "Construction Note" and collectively referred to as "the Construction
Notes").
The $2,000,000 Note and the Construction Notes are collectively referred to
herein as "the Notes."
The Loan will be evidenced by the Notes, together with Assignment and
Estoppel Agreements, UCC Financing Statements, and other documents executed in
connection with, or pertaining to, the Loan, the Notes, or this Agreement, and
any extension, renewal, and/or modification of any such instrument or document.
The Notes, the Assignment and Estoppel Agreements, and all other documents
executed in connection therewith, or pertaining to, the Loan, the Notes, or this
Agreement, and all extensions, renewals, or modifications of all such
instruments or documents shall hereinafter be referred to collectively as the
"Loan Documents."
Borrower agrees to pay the principal amount of the Loan and interest
thereon on the dates and in the amounts set forth in the Notes which the
Borrower signs and delivers to the Bank.
To secure the repayment of the Construction Notes, Borrower shall pledge
and assign to the Bank all of its right, title and interest now existing or
hereafter arising, in and to the tenant construction allowance described and
referred to under the leases ("Tenant Construction Allowance"), together with
all present and future rights, benefits and claims arising therefrom. Further,
the Borrower shall convey, transfer and assign to the Bank, its successors and
assigns, all of the Borrower's right, title and interest, if any, now existing
or hereafter arising, in and to any other rights to payment, credits, refunds,
reimbursements, escrow funds, escrow accounts, deposits, or other cash relating
to the leases and/or the leased premises, and all other sums due by the
landlords to the Borrower, including, without limitation, insurance proceeds,
condemnation proceeds, and all causes of action therefor relating to or arising
from the Premises ("Tenant Funds"). The Tenant Construction Allowances and the
Tenant Funds are hereinafter referred to as the "Collateral."
2. BUSINESS LOAN. Borrower agrees that Borrower will use the proceeds of
the Loan only for the business purposes specified in Section 1 above. The
proceeds of the Loan will not be used for any other purpose, including, without
limitation, for personal, family, household or consumer purposes.
3. FEES. Borrower agrees to pay each of the fees described in Exhibit C
attached hereto and incorporated herewith by this reference, which fees shall be
payable in immediately available funds on the date of the initial funding of the
Loan or on such other day as is specified in Exhibit C. Borrower hereby
expressly acknowledges that all such fees are non-refundable and shall not in
any way serve as a credit to the Borrower under the Notes, this Agreement, or
any other Loan Documents, it being understood and agreed by the Borrower that
said fees are earned in full by the Bank and/or incurred by the Bank on or
before the date of this Agreement. Nothing in this Section 3 shall be construed
to limit the reimbursement of fees and reasonable expenses due the Bank as is
otherwise provided for in this Agreement.
It is hereby understood and agreed that the Bank will not charge an annual
review fee for the Working Capital Line of Credit. However, the Bank shall
charge an annual review fee to the
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Borrower on the Construction Line of Credit. Said fee shall be no less than
Fifteen Thousand Dollars ($15,000.00), but no greater than Thirty Thousand
Dollars ($30,000.00) per year, to be determined in the Bank's sole discretion.
The Bank shall provide the Borrower ten (10) days' prior written demand
therefor. Borrower shall not be entitled to any rebate, discount or proration of
the fees due to partial reductions or payoffs, if any, of the Loan.
Additionally, the Bank shall charge fees in connection with the issuance of
Letters of Credit issued on behalf of the Borrower during the term of the Loan,
said fees to be in addition to the fees and expenses provided for in this
Section 3.
4. CONDITIONS PRECEDENT TO LOAN. The obligation of the Bank to make the
Loan pursuant to Section 1 of this Agreement is subject to satisfaction of the
following conditions precedent (unless otherwise expressly waived by the Bank in
writing) on or before the date of this Agreement, in each case in form and
substance satisfactory to the Bank:
a. Lender shall have received all fees payable pursuant to Section 3
above.
b. The Bank shall have received lien searches on the Borrower and
such other parties as the Bank may require, showing that the accounts receivable
owned by the Borrower are free from all security interest, liens, and
encumbrances, except for the prior security interest in favor of the Bank, such
searches to be updated coincident with the Bank's annual review of the Loan.
c. The Bank shall have received evidence that the Borrower is
registered as a foreign corporation to do business in the State of Colorado and
is currently in good standing with the Colorado Secretary of State's office.
Further, the Borrower shall have provided to the Bank a copy of the Articles of
Incorporation and Bylaws.
d. The Borrower shall provide to the Bank its resolution, signed by
the Board of Directors and otherwise in the form approved by the Bank and its
legal counsel, authorizing the Borrower to execute and deliver this Agreement,
the Notes, and all other documents now or hereafter to be signed by the Borrower
in connection with the Loan.
e. The Bank shall have received the $2,000,000 Note duly executed by
the Borrower.
f. The Bank shall have received evidence of filing of Uniform
Commercial Code Financing Statements in satisfactory form in the appropriate
offices and such other action required by the Bank to perfect and protect the
security interests, if any, granted by this Agreement or any of the Loan
Documents.
g. The Bank shall have received the Auto Debit Form covering the
Borrower's Account Nos. 701003511 and 701002834, duly executed by the Borrower.
h. The Bank shall have received evidence of insurance in a form
acceptable to the Bank and naming the Bank as an additional insured, mortgagee
and loss payee thereon, as to Borrower's commercial general liability insurance,
and its umbrella liability insurance, and its commercial property insurance
covering all of the Borrower's restaurant locations (including real
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and personal property thereon) and evidencing commercial general liability
and/or umbrella insurance in an aggregate amount not less than $25,000,000.00.
i. The representations set forth in this Agreement and the other
Loan Documents shall be true and correct on the day of the making of the Loan
(or any portion thereof) as if made on such date. No default (as defined below)
shall exist or will result from the making of the Loan. No material adverse
change affecting the Borrower shall have occurred.
The acceptance by the Borrower of funding of the Loan (or any portion
thereof) shall be deemed to constitute a representation by the Borrower to the
Bank that the conditions precedent to the Loan set forth in this Section 4 are
satisfied. It is expressly understood and agreed by the Borrower that, if
Borrower has not satisfied all of the requirements prior to the date of funding
of the Loan, time being of the essence, or if Borrower has breached the
observance or performance of any of its undertakings, warranties or
representations in connection with the Loan, or if Borrower is in default under
this Agreement, the Bank shall have the right, without giving prior notice to
the Borrower to cancel its loan commitment dated November 25, 2002 ("Loan
Commitment"), to the Borrower and to terminate all of its obligations under this
Agreement (including, without limitation, the obligation to make any advance or
disbursements of the Loan proceeds), whereupon the Bank shall have the right to
retain any fees collected and pursuant to any other and further legal and
equitable remedies available to the Bank.
5. ADVANCES UNDER WORKING CAPITAL LINE OF CREDIT. The Borrower shall be
entitled to advances of principal from time to time under the Working Capital
Line of Credit ("Working Capital Advance(s)") subject to the terms and
conditions provided in this Section 5. The Bank shall disburse each Working
Capital Advance to the Borrower within two (2) days after receipt by the Bank of
requests therefor from the Borrower (which may be made in writing, by electronic
transmission, or verbally if confirmed in writing) and satisfaction of all terms
and conditions under this Agreement for the Working Capital Advance. The
$2,000,000 Note is intended as a revolving line of credit, and any principal
repaid by the Borrower in accordance with the terms of the $2,000,000 Note may
be redrawn by the Borrower, subject to the terms and conditions for Working
Capital Advances.
Notwithstanding anything to the contrary contained within the $2,000,000
Note and/or this Agreement, the Bank shall have no obligation to make any
Working Capital Advances in any of the following events:
a. At any time after the Due Date of the $2,000,000 Note;
b. If the unpaid principal under the $2,000,000 Note is paid in
full, and Borrower notifies the Bank in writing of its intention to terminate
its use of the Working Capital Line of Credit, in which event the $2,000,000.00
Note shall terminate; or
c. If there exists any Event of Default by the Borrower under the
$2,000,000 Note, this Agreement, or any of the Loan Documents, or any event with
which the passage of time or the giving of notice would constitute a default
under the $2,000,000 Note, this Agreement, or any of the Loan Documents. No
advances shall be made in an amount less than
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$10,000.00. Moreover, for each of Borrower's fiscal quarters, Borrower shall
observe no less than ten (10) days during which no advances may be made on the
$2,000,000 Note.
The Borrower and the Bank hereby acknowledge that the Bank may, from time
to time, issue one or more letters of credit when requested by the Borrower. The
issuance of any letter of credit shall be in the sole discretion of the Bank and
shall be subject to the Bank's conditions precedent and under such terms as the
Bank shall determine from time to time. The face amount(s) of any letter(s) of
credit issue at the request of the Borrower shall reduce the amount available to
the Borrower on its Working Capital Line of Credit as of the date(s) such
letter(s) of credit issue. The Bank may charge the Borrower fees for the
issuance of such letters of credit (except as to the first one or more letter(s)
of credit totaling, in the aggregate, $1,000,000.00) which the Borrower has
requested the Bank to issue, the fee for which letter(s) of credit are subsumed
in the origination fee to be collected by the Bank for the Working Capital Line
of Credit), and it is further understood and agreed that such fees shall be in
addition to the fees required by the Bank as set forth in Section 3 above.
6. CONDITIONS PRECEDENT TO ADVANCES ON CONSTRUCTION LINE OF CREDIT. The
Construction Line of Credit is intended as a revolving line of credit, and any
principal repaid by the Borrower may be redrawn to fund construction on other
(but not the same) restaurant locations, it being expressly understood that once
the Bank has advanced funds on any one restaurant location (as evidenced by a
Construction Note) the Bank shall have no obligation to advance additional funds
to Borrower under another Construction Note for that location. The obligation of
the Bank to make advances on the Construction Line of Credit or any of the
Construction Notes ("Construction Advance(s)") is subject to satisfaction of the
following conditions precedent (unless otherwise expressly waived by the Bank in
writing) on or before the requested date for the Construction Advance, in each
case in form and substance satisfactory to the Bank:
a. The payment by the Borrower of the Bank's reasonable fees and
expenses payable by the Borrower pursuant to this Agreement and for which
the Bank has presented an invoice to the Borrower;
b. Absence of any material adverse change in the financial
condition, business or prospects of the Borrower, considered as a whole, since
the date of the initial funding of the Loan (or, with respect to the conditions
precedent to the initial funding, from the condition or business reflected in
the financial statements, reports, and other information obtained by the Bank
during its review of the Borrower and its then existing restaurant locations);
c. Absence of any Event of Default or the existence of any fact or
circumstance which, upon the passage of time or the giving of notice, or both,
would constitute an Event of Default, after giving effect to the request for an
advance;
d. Receipt by the Bank of evidence satisfactory to the Bank that the
Borrower is not insolvent (within any meaning of any applicable federal or state
laws relating to bankruptcy or fraudulent transfers); will not be rendered
insolvent by the transactions contemplated by the Loan Documents; after giving
effect to such transactions, will not be left with an unreasonably small amount
of working capital with which to engage in its business or undertaking; will not
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incur, have intended to incur, or believe that it has incurred, debts beyond its
ability to pay such debts as they mature, and will not have intended to hinder,
delay or defraud any existing or future creditor;
e. Receipt by the Bank of a writing from the Borrower that truth and
correctness of all representations and warranties made by the Borrower in this
Agreement and the other Loan Documents in all material respects as of the
requested funding date with the same force and effect as if such representations
and warranties had been made on and as of the requested date for the
Construction Advance;
f. Absence of any pending or threatened condemnation or other
taking, whether direct or indirect, against any leased premises for which the
Construction Advance is made, and absence of any casualty to the leased premises
as of the requested date for the Construction Advance;
g. Receipt and approval by the Bank of a current project time line
and a status report (showing, for each Construction Advance on a Construction
Note, the percentage of construction completed);
h. Receipt by the Bank of a Promissory Note in the amount of the
request, in the form attached hereto and incorporated herewith as Exhibit B;
i. Receipt by the Bank of a copy of the executed Lease for each
location for which Borrower requests a Construction Advance, and approval
by the Bank in its reasonable discretion of such Lease(s);
j. Receipt by the Bank of an Assignment and Estoppel Agreement and a
Consent to Assignment, in the forms attached hereto and incorporated herewith as
Exhibits D-1 and D-2, or in such other form as the Bank may approve in its sole
discretion, completed and signed by both the Borrower and the landlord of the
location for which the Borrower is requesting a Construction Advance;
k. Receipt by the Bank of funds in the amount of the Bank's
reasonable legal fees incurred in connection with the negotiation and execution
of each Consent to Assignment and Estoppel as provided in subsection (j)
immediately above; and
l. Receipt by the Bank of such other documents, instruments,
approvals (and, if requested by the Bank, certified duplicates of executed
copies thereof) and opinions as the Bank may reasonably request.
In no event shall the Bank be required to commit to lend and advance to the
Borrower for any one new restaurant location a sum greater than the amount of
the Tenant Construction Allowance to be paid to the Borrower by its landlord for
that new location, it being understood that the Bank shall at all times be fully
collateralized on the Construction Line of Credit (or so much thereof as may be
advanced).
7. CROSS-DEFAULT. Any default by the Borrower in the performance or
observance of any covenant, condition, or obligation of this Agreement shall be
deemed a default or event of
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default under the Notes, entitling the Bank (upon the expiration of any grace
period provided for in the Notes or any other Loan document) to exercise any or
all remedies available to the Bank under the terms of any or all of the Loan
Documents, and any default or event of default under any other Loan Document
shall be deemed an Event of Default under this Agreement, entitling the Bank
(upon the expiration of any such grace period) to exercise any or all remedies
provided for in this Agreement. Failure by the Bank to exercise any right which
it may have hereunder shall not be deemed a waiver thereof unless so agreed in
writing by the Bank, and the waiver by the Bank of any Event of Default by the
Borrower hereunder shall not constitute a continuing waiver or a waiver of any
other default or of the same default on any future occasion.
8. BORROWER'S GENERAL COVENANTS. During the term of the Loan (and unless
otherwise specified herein), Borrower covenants and agrees as follows:
a. Permits and Legal Requirements. The Borrower will comply with and
keep in effect all permits and approvals obtained from any governmental
authorities or agencies that relate to the lawful operation of the Borrower's
restaurant business and/or any of its restaurant locations and which are
material to Borrower's restaurant business, the sale of liquor, and/or its
operations. The Borrower will comply with all existing and future laws,
regulations, orders and requirements of all governmental, judicial or legal
authorities having jurisdiction over the Borrower's restaurants and the
properties on which Borrower's restaurants are located, and with all recorded
restrictions affecting said properties.
b. No Encumbrances. Borrower agrees not to allow, suffer or cause
any encumbrances to be placed upon (i) any Collateral to secure the Loan, and
(ii) any interest in the Borrower, whether the same be done by or through the
Borrower, or any other third party whatsoever.
c. Protection Against Lien Claims. The Borrower will promptly pay
and discharge all claims and liens against the restaurant locations which arise
through or under the Borrower or out of any work provided Buyer on behalf of the
Borrower.
d. Insurance. The Borrower shall carry and maintain, at its sole
cost and expense, a policy or policies of insurance of the types and amounts as
hereinbelow set forth:
i. Comprehensive public liability (including broad form
contractual liability coverage in support of the indemnity provisions contained
herein), property damage insurance and products liability insurance insuring
against claims for personal injury, sickness, disease or death, and property
damage suffered in or about the Premises, including independent contractor
coverage, with a combined single limitation of coverage in an amount of not less
than One Million Dollars ($1,000,000.00) per occurrence, and an aggregate of not
less than Five Million Dollars ($5,000,000.00) which policies shall contain
deductibles in amounts of not more than Two Hundred Fifty Thousand Dollars
($250,000.00);
ii. Umbrella excess liability coverage insurance in an amount of
not less than Fifteen Million Dollars ($15,000,000.00) per occurrence and Twenty
Million Dollars ($20,000,000.00) in the aggregate;
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iii. Fire and extended coverage insurance and improvements and
betterments insurance covering Borrower's personal property, fixtures,
improvements, wall coverings, floor coverings, window coverings, alterations,
furniture, equipment, lighting, ceilings, heating, ventilation and air
conditioning equipment, interior plumbing, plate glass and any other items
installed by Borrower or which constitute non-building standard improvements,
against loss or damage by fire, windstorms, hail, earthquakes, explosion, riot,
damage from aircraft and vehicles, smoke damage, vandalism and malicious
mischief and such other risks as are from time to time covered under "extended
coverage" endorsements and special extended coverage endorsements commonly known
as "all risks" endorsements, in an amount equal to the greater of the full
replacement value with deductible amounts not to exceed Twenty-five Thousand
Dollars ($25,000.00);
iv. Business income insurance in amounts equal to the expected
income for the Borrower's business covering all actual losses sustained;
v. State Worker's Compensation in the statutorily mandated
amounts, and employer's liability insurance coverage, or other similar coverage,
with a combined single limitation of coverage in an amount of not less than Five
Hundred Thousand Dollars ($500,000.00) per occurrence.
All insurance shall be written by an insurance company or companies rated
A, class size X, or better (or other ratings acceptable to the Bank in its
reasonable discretion) in the most current issue of A.M. Best's Insurance
Reports, and which is licensed to do business in the states in which the
Borrower conducts its business and is domiciled in the United States. All
standard policies or certified copies of same shall contain standard mortgagee
clauses (without contribution) in favor of the Bank and shall be deposited with
the Bank as evidence of such insurance until the Loan is fully paid. The
Borrower shall deliver certified copies of all such policies and all
endorsements thereto, certified as true and complete by the issuer thereof,
prior to the date of any advances under the Notes or, in the case of renewals
thereto, fifteen (15) days prior to the expiration of the prior insurance
policy, together with evidence from the insurer that the premiums for such
policies are paid up to the then current date, and that no cancellation,
material change or non-renewal thereof shall be effective except upon thirty
(30) days' prior written notice from the insurer to the Bank and its designees.
The Borrower's failure to provide and maintain in force the insurance provided
for herein or to provide the Bank with satisfactory evidence thereof, shall be
regarded as a default hereunder, entitling the Bank to exercise any or all of
the remedies provided in this Agreement upon the occurrence of an Event of
Default.
e. Leases. The Borrower shall promptly provide to the Bank full and
complete photocopies of all new leases and modifications, extensions and
terminations of all leases which are entered into by the Borrower and for which
the Bank shall advance (or has advanced) funds under the Construction Line of
Credit.
f. The Bank's View and Inspection of Restaurants. Borrower agrees to
permit the Bank or its agents to visit and inspect any or all of the restaurant
locations at any time during the term of the Loan.
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g. Taxes. Borrower shall keep current and promptly pay when due all
taxes, charges, dues, assessments and impositions of any kind and nature for or
concerning the Borrower's business and/or the restaurant locations which
Borrower is obligated to pay to all taxing authorities having jurisdiction over
the Borrower and/or its restaurant locations.
9. ACCOUNTING AND FINANCIAL COVENANTS. During the term of the Loan
(unless otherwise specified herein), Borrower covenants and agrees as follows:
a. The Borrower shall keep true and correct financial books and
records of its business. The Borrower shall promptly supply the Bank with any
financial statements or other information concerning its affairs and properties
(real and personal) as the Bank may reasonably request, and shall promptly
notify the Bank of any material adverse change in the Borrower's financial
condition or in the physical condition of the premises described in the
Assignment and Estoppel Agreement(s) and/or any improvements thereon. In any
event, within one hundred fifty (150) days of the Borrower's fiscal year end
(which is June 30), the Borrower shall provide to the Bank financial statements
that are prepared in accordance with and in full compliance with Generally
Accepted Accounting Principles ("GAAP"), and such other information at such time
or thereafter as may be reasonably requested by the Bank, including, without
limitation, cash flow projections for the upcoming fiscal year, operating,
income, and expense statements for the prior fiscal year.
b. Within forty-five (45) days of the end of each fiscal quarter,
the Borrower shall provide the Bank with financial statements which are prepared
in accordance with and in full compliance with GAAP.
c. Borrower shall maintain, and Borrower's financial statements
shall reflect, a minimum ratio of the Borrower's Funded Debt to Tangible Net
Worth of not more than 1.25:1. As used herein, the term "Funded Debt" shall mean
the amount of all interest bearing debt of the Borrower (including the amount of
capitalized leases classified under GAAP as long term interest bearing debt),
excluding the amount of all convertible subordinated notes issued by the
Borrower. The term "Tangible Net Worth" shall mean the total equity of the
Borrower (including the convertible subordinated notes, if subordinate to the
Bank's interests) minus the value of goodwill shown on its balance sheet from
time to time.
d. Within forty-five (45) days of the end of each fiscal quarter,
Borrower shall report a ratio of Funded Debt (annualized) divided by Earnings
Before Income Taxes, Depreciation and Amortization for the trailing twelve (12)
months of not more than 2:1.
e. The Borrower shall maintain one or more operating deposit
accounts with the Bank for the period of time during which the Loan remains
unpaid, including an account into which all of the tenant construction
allowances shall be deposited for locations on which the Bank has made
Construction Advances. Such account shall be styled as the "Champps
Entertainment, Inc. Construction Account" under the Bank's account no. 701002834
("Construction Account"). It is expressly understood and agreed by the Borrower
that remittances of Tenant Construction Allowance funds payable to Borrower
shall be deposited into the Construction Account, and that the Bank shall have
the right, at any time and from time to
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time, to debit the Construction Account, as and when the Bank deems the funds to
be collected, to pay any and all sums due the Bank under any or all of the
Construction Notes.
f. The Bank shall be entitled, and is expressly authorized, to debit
any one or more of the operating deposit accounts of the Borrower for all
monthly interest payments due under the Notes, and other required payments due
under the Notes, this Agreement, or the other Loan Documents.
g. During the term of the Loan, Borrower shall expend no more than
Five Million Dollars ($5,000,000.00) in capital expenditures for improvements to
or replacements for its existing restaurant locations on a fiscal year basis.
Borrower shall make a certification to the Bank of its replacement capital
expenditures within forty-five (45) days of the end of each fiscal year quarter,
and within one hundred fifty (150) days of the Borrower's fiscal year end, in a
form to be promulgated by the Bank or created by the Borrower and acceptable to
the Bank in its reasonable discretion.
10. BORROWER'S NEGATIVE COVENANTS. In addition to the other obligations
set forth in this Agreement and in any Loan Document, while any amount due under
the Loan is unpaid, Borrower shall not, without prior written consent of the
Bank:
a. Merge or consolidate with or into any other entity, except that a
subsidiary of Borrower may merge with another subsidiary of Borrower or with the
Borrower, so long as the Borrower is the continuing entity;
b. Significantly change the character of the Borrower's business;
c. Sell, lease, transfer, or otherwise dispose of all or
substantially all of the Borrower's assets; or
d. Purchase, acquire, or retire any of its outstanding shares,
capital, or equity interests, other than by issuing its shares, capital, or
equity interests in exchange therefor.
11. BORROWER'S REPRESENTATIONS AND WARRANTIES. In addition to all of the
representations and warranties contained in the Loan Documents, Borrower hereby
represents and warrants to the Bank that:
a. All narratives, descriptions, statements, financial statements
and accompanying notes, tax returns, accounts receivable reports, and other
information, previously or currently provided by or on behalf of the Borrower to
the Bank are true, complete and accurate as to their material terms, do not
contain any material misrepresentation, and do not omit any material information
needed to assure their completeness and accuracy. Any narratives, descriptions,
statements, financial statements, tax returns, accounts receivable reports, or
other information hereafter provided by or on behalf of the Borrower to the Bank
will be true, complete and accurate as to their material terms, will not contain
any material misrepresentation, and will not omit any material information
needed to assure their completeness and accuracy. Without limiting the
generality of the foregoing, the Borrower has or will have no actual or
contingent liabilities, except such as are or will be reflected in the financial
statements and
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accompanying notes previously provided by the Borrower or to be provided by the
Borrower pursuant to this Agreement.
b. Borrower is duly organized, validly existing, and in good standing
under the laws of its state of origin, and has all powers necessary to execute
this Agreement and all Loan Documents, to borrow money in accordance with the
terms hereof, and to do any and all things required herein. Further, the
Borrower is qualified to transact business and is in good standing in the State
of Colorado, and in each state in which it operates its restaurant business, and
in each other jurisdiction in which such qualification or standing is necessary
to the conduct of its business, and where the failure to be so qualified would
adversely affect the validity of, the enforceability of, or the ability of the
Borrower to perform its obligations under, this Agreement and the Loan
Documents.
c. The Borrower's principal place of business, principal office, and
the office where it keeps its books and records as to the Borrower's business is
located at its address set out in Section 15 below.
d. The Borrower has the requisite power and authority (i) to lease its
locations and own its personal property, and to carry on its business as now
conducted and as contemplated to be conducted in the performance of the
obligations under this Agreement, and (ii) to execute and deliver the Loan
Documents, and (iii) to carry out the transactions contemplated by this
Agreement and the other Loan Documents.
e. The execution, delivery and performance of this Agreement and the
Loan Documents has in each case been duly authorized by all necessary action and
proceedings by or on behalf of the Borrower, and no further approvals or filings
of any kind, including any approval of or filing with governmental authority,
are required by or on behalf of the Borrower as a condition to the valid
execution, delivery and performance by the Borrower of this Agreement or any
other Loan Documents. No provision in any of Borrower's organizational
documents, including the articles, by-laws, or any other organizational
documents, or of any law, regulation, agreement or undertaking by which Borrower
is governed or bound, or to which Borrower is a party, conflicts with or
prevents the Borrower from executing and carrying out the terms of this
Agreement and the Loan Documents.
f. This Agreement and the other Loan Documents constitute the legal,
valid and binding obligations of the Borrower, enforceable against the Borrower
in accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws, or equitable principles affecting the enforcement of creditors'
rights generally or by the exercise of discretion of any court.
g. Nothing has occurred or will occur before funding of the Loan (or
any portion thereof) that will materially affect in any adverse manner the
condition, business or operations of Borrower as set forth in any information
previously or currently provided by or on behalf of Borrower to the Bank.
Borrower is not insolvent and will not be rendered insolvent by the transactions
contemplated by this Agreement or the other Loan Documents and, after giving
effect to such transactions, the Borrower will not be left with an unreasonably
small amount of capital with which to engage in its business or undertakings,
nor will the Borrower have
11
incurred, have intended to incur, or believe that it has incurred, debt beyond
its ability to pay such debts as they mature. The Borrower did not receive less
than a reasonably equivalent value in exchange for incurrence of the
indebtedness represented by the Notes. There is no contemplated, pending or, to
the best of Borrower's knowledge, threatened bankruptcy, reorganization,
receivership, insolvency or like proceeding, whether voluntary or involuntary,
affecting the Borrower and there has been no assertion or exercise of
jurisdiction over the Borrower by any court empowered to exercise bankruptcy
powers.
h. There are no defaults by the Borrower or, to the knowledge of the
Borrower, by any other person under any contract to which the Borrower is a
party relating to the Collateral, other than defaults which do not permit the
non-defaulting party to terminate the contract and which do not have, or are not
reasonably expected to have, a material adverse affect upon the Borrower. The
Borrower has not received notice or has any knowledge of any existing
circumstances in respect of which it would receive any notice of default or
breach in respect of any contracts affecting or concerning any of the
Collateral.
i. Borrower has filed all required federal, state and local tax
returns, has paid all taxes and assessments as shown on such returns, has
otherwise paid all taxes and assessments as the same have become due and owing,
and has withheld and paid all withholding, trust fund and/or similar taxes and
assessments as required. No material tax obligations or assessments have been
asserted or are unpaid except as disclosed in Borrower's financial statements
and accompanying notes.
j. Borrower will use the Loan only for commercial and/or business
purposes, and not for any other purpose, including, without limitation, for
personal, family or household purposes, and will use the Loan and its proceeds
only for working capital and for construction of and improvements in new
restaurant locations.
12. BORROWER'S AFFIRMATIVE DUTIES. In addition to the other obligations
set forth in this Agreement or in any Loan Document, while any amount due under
the Loan remains unpaid, Borrower shall:
a. Promptly inform the Bank of any demand or litigation, any
termination or change in contractual right or obligation, or other event or
change that could materially affect Borrower, its business, its operations or
any of its locations;
b. Promptly notify the Bank if and when any change occurs during the
term of the Loan with respect to any two of the person(s) serving as the chief
executive officer, the chief financial officer, and the chief operating officer;
c. Furnish to the Bank with reasonable promptness such data and
information concerning the business of the Borrower as may be reasonably
requested by the Bank from time to time, and permit the Bank to inspect
Borrower's books and records as well as Borrower's locations, inventory,
equipment and furnishings at any time;
d. Maintain its good standing in its state of origin and in the State
of Colorado, and maintain all licenses, franchises, permits, trade names,
trademarks, copyrights, patents, rights, registrations or other statuses
necessary to the conduct of its business and its operations;
12
e. Promptly commence and diligently prosecute to completion the
construction of any improvements at the new restaurant locations for which the
Bank will make (or has made) Construction Advances; and
f. Execute and cause others to execute and deliver to the Bank all
Loan Documents.
13. EVENTS OF DEFAULT. The Borrower shall be in default under this
Agreement upon the happening of any one of the following events (collectively,
"Events of Default"):
a. At any time the Borrower repudiates, breaches, or otherwise fails
to perform or satisfy, or fails to cause the performance or satisfaction of, any
term, representation, warranty, duty, covenant or condition contained in this
Agreement;
b. If the Borrower commits, or permits the commission of, any act or
omission which constitutes an event of default or other breach or repudiation
under, or with respect to, any Loan Document;
c. If the Borrower commits, or permits the commission of, any act or
omission which constitutes an event of default or other breach or repudiation
under, or with respect to, any other agreement between the Bank and the
Borrower, and such event of default, breach or repudiation has not been cured
within all applicable cure periods provided under such agreement(s);
d. If the Borrower fails to meet its financial covenants (or any of
them) as set forth in Section 9 above; or
e. If the Borrower defaults on any indebtedness to others in excess of
$250,000.00 on which it may be liable, or defaults on any indebtedness to the
Bank on which it may be liable, regardless of amount;
and such default is not cured within the applicable grace period.
14. BANK'S REMEDIES. Upon the occurrence of an Event of Default, and at
any time thereafter, the Bank may, at the same or different times, take one or
more of the following actions:
a. Terminate any obligation to extend credit under this Agreement, the
Notes, any Loan Documents, or any other agreement with Borrower;
b. To foreclose against or otherwise exercise any rights with respect
to any Collateral, whether real or personal, securing the Loan or any obligation
under this Agreement or any Loan Document, including the exercise of any power
of sale granted in any security agreement or instrument, or under applicable
law;
c. To exercise self-help remedies such as setoff or repossession;
13
d. To obtain provisional or ancillary remedies such as injunctive
relief (whether temporary, preliminary or permanent), sequestration, attachment,
garnishment, replevin, or the appointment of a receiver by a court having
jurisdiction;
e. To exercise any other right or remedy available under the Notes,
any Loan Document, or available under any other agreement between the Bank and
Borrower;
f. To place a hold on any and all deposit accounts belonging to
Borrower at the Bank, so as to retain funds then deposited with the Bank (in the
amount due the Bank as a result of an Event of Default) in the Bank's custody;
g. To commence, appear in, and defend any action or proceeding which
might affect its security or its rights, duties or liabilities relating to the
Loan, this Agreement or the Collateral; and/or
h. To exercise any right or remedy available to it at law or in
equity.
All such remedies shall be cumulative and not exclusive, and the Bank shall not
be obligated to pursue any right or remedy or elect any particular right or
remedy, nor will its choice of any particular right or remedy preclude or
otherwise affect its ability to choose or pursue any other right or remedy.
15. NOTICES. All notices that a party may be required or desire to give to
the other party shall be in writing and shall be given by any of the following
methods: (i) personal delivery against a signed receipt, (ii) registered or
certified mail, postage prepaid, return receipt requested, or (iii) overnight
delivery service, to the other party at its address set forth below. Notices
shall be effective upon (A) actual receipt thereof by the party to be notified,
or (B) actual delivery thereof to the appropriate address.
If to Bank: First National Bank of Colorado
Attn: Xxx X. Xxxx
Vice President, Commercial Banking
000 - 00xx Xx., Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
with a copy to: Pendleton, Friedberg, Xxxxxx & Xxxxxxxxx, P.C.
Attn: Xxxxxxx X. Xxxxxx, Esq./Xxxxxx Xxxxxxx, Esq.
000 X. 00/xx/ Xxx., Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
If to Borrower: Champps Entertainment, Inc.
00000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx. 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxx, President
14
with a copy to: Xxxxx X. Xxxxxxx, Esq.
Vice President, General Counsel and Secretary
000 Xxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxx. 00000
16. RELATION TO LOAN APPLICATION AND OTHER LOAN DOCUMENTS. The terms and
provisions of this Agreement, the Notes, and the other Loan Documents supersede
any inconsistent terms and conditions of the Bank's loan application or Loan
Commitment to the Borrower; provided that all obligations of the Borrower under
the Loan Commitment to pay any fees to the Bank or any costs and expenses
relating to the Loan or the Loan Commitment shall survive the execution and
delivery of this Agreement, the Notes, and the other Loan Documents, and any
failure of the Borrower to perform any such obligations shall constitute a
default hereunder. To the extent any provisions set forth in this Agreement
conflict materially with any in the Notes, or the other Loan Documents, and in
the event such conflicts cannot be reconciled, the terms contained in the Notes
and the other Loan Documents shall prevail, unless otherwise specified.
17. PAYMENT OF EXPENSES. The Borrower will pay the Bank's reasonable
out-of-pocket costs and expenses incurred in connection with or in the exercise
of any of the Bank's rights or remedies under this Agreement, including, without
limitation, reasonable legal fees and disbursements of any kind, filing fees,
travel expenses of the Bank's employees and agents, and any other reasonable
fees and costs for services which are not customarily performed by the Bank's
salaried employees. The provisions of this Section will survive the termination
of this Agreement and the repayment of the Loan.
18. MISCELLANEOUS PROVISIONS.
a. Modification/Waiver. No modification, waiver or supplement of or to
this Agreement or any of its provisions, nor any consent to any departure by
Borrower therefrom, shall be effective unless the same shall be in writing and
signed by the Bank, and then such modification, waiver, supplement or consent
shall be effective only for the specific instance and purpose for which given.
No notice or demand on Borrower in any case shall entitle Borrower to any other
or further notice or demand in the same, similar, or other circumstances. No
delay on the part of the Bank in exercising any right, power or privilege shall
operate as a waiver thereof.
b. Binding/Beneficial Effect. This Agreement shall bind and inure to
the benefit of the Bank and the Borrower, and each of their respective
successors and assigns, but shall not bind or benefit any other person or
entity, except to the extent set forth in Subsection 18.c. below.
c. Assignment. The Borrower may not assign or delegate any rights or
obligations under this Agreement without the Bank's prior written consent, which
consent may be granted or withheld in the Bank's sole and absolute discretion.
d. Entire Agreement/Effect of Conflict. This Agreement, together with
all Loan Documents, shall constitute the parties' entire agreement concerning
the subject matter of the
15
Loan, and shall supersede any and all previous or contemporaneous agreements and
discussions concerning the Loan, all of which agreements and discussions are
merged herein. The parties intend the terms of this Agreement to be consistent
and compatible with the terms and provisions of the Loan Documents, and intend
and desire that the terms and provisions of all such Documents shall be
interpreted, whenever possible, as consistent and compatible with, or
supplemental to, the terms and provisions of this Agreement.
If, notwithstanding the parties' intent, any term or provision of this
Agreement is found to be inconsistent or incompatible with any term or provision
of any Loan Document, then the term or provision of the Loan Document(s), as the
case may be, shall be effective and shall control, and the inconsistent or
incompatible term or provision of this Agreement shall be ineffective; provided,
however, that all other terms and provisions of this Agreement shall continue in
full force and effect.
e. Voluntary and Informed Execution. Borrower acknowledges that
he/she/it has carefully read and considered each term and provision of this
Agreement, and executes this Agreement voluntarily and with full understanding
of the meaning and effect of each of its terms and provisions. Borrower further
acknowledges that he/she/it has had the opportunity to consult with legal
counsel concerning the meaning and effect of this Agreement, and has either
consulted with counsel, or has voluntarily decided to forego such consultation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
BANK: BORROWER:
First National Bank of Colorado, Champps Entertainment, Inc.,
a national banking corporation a Delaware corporation
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxxxx X. Xxxxxxxxx
------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxx Name: XX Xxxxxxxxx
----------------------------- -------------------------------
Its: Vice President Its: CFO
------------------------------ --------------------------------
16
EXHIBIT A
$2,000,000 PROMISSORY NOTE
17
EXHIBIT B
FORM OF PROMISSORY NOTE
FOR CONSTRUCTION LINE OF CREDIT
18
EXHIBIT C
FEES
Type of Fee Amount Due Date
----------- ------ --------
Origination Fee for Working $12,500.00 Date of Initial Funding of the Loan
Capital Line of Credit
Origination Fee for Construction $30,000.00 Date of Initial Funding of the Loan
Line of Credit
UCC Search Fees $ 434.29 Date of Initial Funding of the Loan
Bank's Legal Fees $13,000.00 Date of Initial Funding of the Loan
19
EXHIBIT D-1
ASSIGNMENT AND ESTOPPEL AGREEMENT
20
EXHIBIT D-2
CONSENT TO ASSIGNMENT
21
