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EXHIBIT 10.1
ASSUMPTION AGREEMENT AND FIFTH AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS ASSUMPTION AND FIFTH AMENDMENT (this "AMENDMENT") made this 9th day
of July, 2001, is by and among O'CHARLEY'S INC., a Tennessee corporation
("ORIGINAL BORROWER"), OCI, INC., a Delaware corporation ("OCI"), O'CHARLEY'S
SPORTS BAR, INC., an Alabama corporation ("SPORTS BAR"), AIR TRAVEL SERVICES,
INC., a Tennessee corporation ("AIR TRAVEL"), O'CHARLEY'S MANAGEMENT COMPANY,
INC., a Tennessee corporation ("MANAGEMENT COMPANY"), DFI, INC., a Tennessee
corporation ("DFI"), O'CHARLEY'S RESTAURANT PROPERTIES, LLC, a Delaware limited
liability company, ("RESTAURANT PROPERTIES"), O'CHARLEY'S SERVICE COMPANY, INC.,
a Tennessee corporation ("SERVICE COMPANY"), STONEY RIVER LEGENDARY MANAGEMENT,
L.P., a Georgia limited partnership ("STONEY RIVER LEGENDARY"), and STONEY RIVER
MANAGEMENT COMPANY, INC., a Delaware corporation ("STONEY RIVER MANAGEMENT");
individually, OCI, Sports Bar, Air Travel, Management Company, DFI, Restaurant
Properties, Service Company, Stoney River Legendary and Stoney River Management
are sometimes referred to herein as an "ADDITIONAL BORROWER" and when
referencing two or more of such entities, they are sometimes referred to herein
as "ADDITIONAL BORROWERS"); O'CHARLEY'S FINANCE COMPANY, INC., a Tennessee
corporation (a "NEW BORROWER"), the Original Borrower, the Additional Borrowers
and the New Borrower are sometimes referred to herein, individually and
collectively, as a "BORROWER" and the "Borrowers"), each of the undersigned
Banks, BANK OF AMERICA, N.A., a national banking association, successor in
interest by merger to NationsBank, N.A., as a Bank and as Co-Agent, and AMSOUTH
BANK, an Alabama state bank, successor in interest by merger to First American
National Bank ("AGENT") as a Bank and as Agent for the Banks.
RECITALS:
Pursuant to that certain Amended and Restated Revolving Credit
Agreement, dated as of December 8, 1997 (the "AMENDED AND RESTATED AGREEMENT")
by and among the Banks (other than SunTrust Bank) and Bank One, N.A. ("BANK
ONE") (herein, the "ORIGINAL BANKS") and the Original Borrower, the Original
Banks made certain loans (the "LOANS") in two separate facilities, to the
Original Borrower, in an aggregate amount of up to $100,000,000.00. Pursuant to
an Assumption Agreement and Amendment to Amended and Restated Revolving Credit
Agreement dated December 7, 1998, an Assumption Agreement and Second Amendment
to Amended and Restated Revolving Credit Agreement dated December 8, 1999, a
Third Amendment to Amended and Restated Revolving Credit Agreement dated January
31, 2000 and an Assumption and Fourth Amendment to Amended and Restated
Revolving Credit Agreement dated October 10, 2000, the Amended and Restated
Agreement was amended to restructure the Loans to, among other things, include
the Additional Borrowers as borrowers thereunder, combine the Loans into one
credit facility, and to provide for the departure of Bank One and the addition
of SunTrust, as a Bank (the Amended and Restated Agreement, as so amended, is
hereinafter referred to as the "AGREEMENT"). Capitalized terms not otherwise
defined herein shall have the same meaning as in the Agreement. The Original
Borrower and the Additional Borrowers have requested that the Banks restructure
such loans to add the New Borrower as a Borrower under the credit facility
governed by the Agreement, to extend the Loan Termination Date of the Loan
Facility and to permit the Original Borrower to enter into real estate sale-
leaseback transactions which, among other things, do not exceed $60,000,000 in
proceeds in the aggregate and are consummated between July 9, 2001 and July 9,
2002, and the Banks are willing to do so subject to, among other things, the
execution of this Amendment and the satisfaction of the conditions contained
herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. The New Borrower hereby joins in and assumes each of the obligations,
covenants and conditions set forth in the Agreement, as hereby amended, and
agrees to be bound by all of the
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terms thereof and further assumes and agrees to pay, jointly and severally with
the Original Borrower and the Additional Borrowers, the indebtedness evidenced
by the Notes and other Obligations.
2. Section 1 of the Agreement entitled "DEFINITIONS" is hereby further
amended by amending the following definitions:
"Borrowers" or "Borrower" means O'Charley's Inc., OCI, Inc.,
O'Charley's Sports Bar, Inc., Air Travel Services, Inc., O'Charley's
Management Company, Inc., DFI, Inc., O'Charley's Restaurant Properties,
LLC, O'Charley's Service Company, Inc., Stoney River Legendary
Management, L.P., Stoney River Management Company, Inc., and O'Charley's
Finance Company, Inc., individually and/or collectively.
"Loan Termination Date" means the earlier of (i) the occurrence
of an Event of Default which is not waived by the Agent in accordance
with the terms of this Agreement, or (ii) October 5, 2006 (or such later
date as may be agreed to by the Banks pursuant to Section 2.9 of this
Agreement).
3. Subsection (R) of Section 4.1 of the Agreement is hereby amended in
its entirety to read as follows:
(R) O'Charley's Inc. owns 100% of the issued and outstanding
stock of OCI, Inc., O'Charley's Sports Bar, Inc., Air Travel Services,
Inc., O'Charley's Management Company, Inc., DFI, Inc., O'Charley's
Service Company, Inc., Stoney River Management Company, Inc., and
O'Charley's Finance Company, Inc., and DFI, Inc. owns 100% of the
outstanding membership interests of O'Charley's Restaurant Properties,
LLC. O'Charley's Inc. owns 100% of the partnership interest in Stoney
River Legendary Management, L.P. Except as set forth in the preceding
sentence, none of the Borrowers owns an interest in any Person.
4. Subsection (H) of Section 5.2 of the Agreement is hereby amended in
its entirety to read as follows:
(H) Neither the Borrower nor any Subsidiary will enter into any
sale-leaseback transaction, except: (i) the transactions described in
Exhibit P; (ii) the sale and leaseback of real estate not to exceed
$60,000,000 in sale proceeds in the aggregate for sale-leaseback
transactions involving real estate that are completely consummated
between July 9, 2001 and July 9, 2002 and do not generate more than
$60,000,000 in proceeds in the aggregate, with all such proceeds being
applied to the outstanding principal balance of the Loans; and (iii)
such additional sale-leaseback transactions as shall be consented to by
the Agent (with the consent of the Majority Banks), which consent shall
not be unreasonably withheld, provided the proceeds of any such
sale-leaseback transaction are applied to the outstanding principal
balance of the Loans.
5. The following described Exhibits to the Agreement will be modified as
of the date of this Amendment by the corresponding Exhibits attached to this
Amendment:
Exhibits to Agreement to be modified Modified Exhibits attached to Amendment
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Exhibit A-2 Exhibit A-3
Exhibit B-2 Exhibit B-3
Exhibit E-2 Exhibit E-3
Exhibit F-2 Exhibit F-3
Exhibit G-1 Exhibit G-3
Exhibit H-1 Exhibit H-3
Exhibit I-2 Exhibit I-3
Exhibit J-2 Exhibit J-3
Exhibit K-1 Exhibit K-3
Exhibit X-0 Xxxxxxx X-0
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Exhibits to Agreement to be modified Modified Exhibits attached to Amendment
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Exhibit M-2 Exhibit M-3
Exhibit P-1 Exhibit P-3
6. Conditions. The effectiveness of this Amendment is expressly
contingent upon Borrowers' delivery to Agent of the following amounts and
documents, in form and content acceptable to Agent, in its sole discretion:
(a) This Amendment executed by the Borrowers;
(b) Copies of the resolutions of the New Borrower's governing
boards, certified by the secretaries of the New Borrower as of the date
of this Amendment, authorizing the execution, delivery and performance
of this Amendment, the other Loan Documents, and each other document to
be delivered pursuant hereto;
(c) Copies of the New Borrower's charter or articles of
organization, as applicable, all certified as of the most recent date
practicable by the Secretary of State of its incorporation or formation,
together with certificates dated the date of this Amendment of the New
Borrower's secretary to the effect that such charters or articles of
organization have not been amended since the date of the aforesaid
Secretary of State certifications;
(d) Copies of the New Borrower's by-laws or operating agreement,
as applicable, all certified by the New Borrower's secretary as of the
date of this Amendment;
(e) Certificates dated as of the date of this Amendment of the
New Borrower's secretary as to the incumbency and signatures of the
officers of the New Borrower executing this Amendment, the other Loan
Documents, and each other document to be delivered pursuant hereto;
(f) Certificates, as of the most recent dates practicable, of
the aforesaid Secretary of State, the Secretary of State of each state
in which each Borrower is qualified as foreign corporations or entities
and of the department of revenue or taxation of the foreign states as to
the good standing of each Borrower;
(g) Written opinions of Bass, Xxxxx & Xxxx, PLC, each Borrowers'
counsel, dated the date of this Amendment and addressed individually to
Agents and Banks, in form reasonably satisfactory to the Agents and
Banks.
(h) Payment of all reasonable costs and expenses incurred by
Agent in connection with the Amendment, including, without limitation,
reasonable attorneys' fees.
(i) Payment to Agent of an amendment fee in the amount of
$275,000.00, to be paid pro-rata to the Banks.
7. Ratification. Subject to the terms hereof, each Borrower hereby
restates and ratifies, as of the date hereof, all the representations,
warranties and covenants contained in the Agreement in favor of Agent and Banks,
and confirms that the terms and conditions of the Agreement, as amended hereby,
remain in full force and effect, that no Event of Default under the Agreement
has occurred and continues to exist and that the terms of Article 8 of the
Agreement, as hereby amended, shall continue to govern the Agreement and shall
govern this Amendment.
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IN WITNESS WHEREOF, the parties hereby have duly executed this
Agreement as of the day and year first above written.
AGENT: BORROWER:
AMSOUTH BANK O'CHARLEY'S INC.
By: /s/ Xxx Xxxxxxx By: /s/ A. Xxxx Xxxxxxxx
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Title: Senior Vice President Title: Chief Financial Officer
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CO-AGENT: OCI, INC.
BANK OF AMERICA, N.A.
By: /s/ A. Xxxx Xxxxxxxx
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By: /s/ Xxxxxxx Xxxxx Title: Secretary
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Title: Senior Vice President
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O'CHARLEY'S SPORTS BAR, INC.
BANKS:
By: /s/ A. Xxxx Xxxxxxxx
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AMSOUTH BANK
Title: President
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By: /s/ Xxx Xxxxxxx
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AIR TRAVEL SERVICES, INC.
Title: Senior Vice President
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By: /s/ A. Xxxx Xxxxxxxx
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BANK OF AMERICA, N.A. Title: Secretary
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O'CHARLEY'S MANAGEMENT
By: /s/ Xxxxxxx Xxxxx COMPANY, INC.
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Title: Senior Vice President
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By: /s/ A. Xxxx Xxxxxxxx
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Title: Secretary
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FIRSTAR BANK, N.A. DFI, INC.
By: /s/ Xxxx Xxxxxx By: /s/ A. Xxxx Xxxxxxxx
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Title: Senior Vice President Title: Secretary
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FIRST UNION NATIONAL BANK O'CHARLEY'S RESTAURANT
PROPERTIES, LLC
By: /s/ Xxxxx Xxxxxx By: /s/ A. Xxxx Xxxxxxxx
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Title: Vice President Title: Secretary
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SUNTRUST BANK O'CHARLEY'S SERVICE
COMPANY, INC.
By: /s/ Xxxxx Xxxxx By: /s/ A. Xxxx Xxxxxxxx
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Title: Director Title: Secretary
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STONEY RIVER LEGENDARY
MANAGEMENT, L.P.
By: Stoney River Management
Company, Inc., general partner
By: /s/ A. Xxxx Xxxxxxxx
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Title: Secretary
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STONEY RIVER MANAGEMENT
COMPANY, INC.
By: /s/ A. Xxxx Xxxxxxxx
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Title: Secretary
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O'CHARLEY'S FINANCE
COMPANY, INC.
By: /s/ A. Xxxx Xxxxxxxx
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Title: Secretary
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