Exhibit 10.1
ELEVENTH AMENDMENT TO CREDIT
AGREEMENT
THE STEAK N
SHAKE COMPANY , an
Indiana corporation (the “Company”) and FIFTH THIRD
BANK, a Michigan banking corporation, formerly known as Fifth
Third Bank (Central Indiana) and as Fifth Third Bank, Indiana
(Central) (the “Bank”), being parties to that certain
Credit Agreement dated as of November 16, 2001, as previously
amended (collectively, the “Agreement”), agree to
further amend the Agreement by this Eleventh Amendment to Credit
Agreement (this “Amendment”) as follows.
1.
DEFINITIONS . All defined terms used
herein not otherwise defined in this Amendment shall have their
respective meanings set forth in the Agreement. In
addition, the following new definition is hereby added to Section 1
of the Agreement as follows:
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“
Eleventh Amendment ” means that certain agreement
entitled “Eleventh Amendment to Credit Agreement”
entered into by and between the Company and the Bank dated as of
July 8, 2009, for the purpose of amending this
Agreement.
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2.
PERMITTED INVESTMENTS . Section 6(e) of
the Agreement is hereby amended and restated in its entirety as
follows:
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Mergers,
Consolidations, Sales, Acquisition or Formation of
Subsidiaries . Except as hereinafter provided, the
Company shall not be a party to any consolidation or merger and
shall not purchase the capital stock of or otherwise acquire any
equity interest in any other business entity. The
Company shall not acquire any material part of the assets of any
other business entity, except in the ordinary course of
business. The Company shall not sell, transfer, convey
or lease all or any material part of its assets, except in the
ordinary course of business, or sell or assign with or without
recourse any receivables. The Company shall not cause to
be created or otherwise acquire any Subsidiaries other than those
Subsidiaries in existence as of the date
hereof. Notwithstanding anything to the contrary stated
herein, the Company may use up to Ten Million Dollars
($10,000,000.00) of surplus cash, determined in the aggregate, and
only surplus cash and not the proceeds of the Loan, to make
investments of any lawful nature, including but not limited to
investments of marketable securities, investments in bonds or
stocks of unlisted companies, share repurchases of the
Company’s stock, investments in real estate, the repurchase
of any or all of the Company’s stores formerly sold through
sale/leaseback transactions, and for any other investment as the
Board of Directors of the Company may approve, provided no Event of
Default or Unmatured Event of Default exists at the time of the
making of such investment or would result therefrom.
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3.
REPRESENTATIONS AND WARRANTIES. In order
to induce the Bank to enter into this Amendment, the Company
affirms that the representations and warranties contained in the
Agreement are correct as of the date of this Amendment, except that
(i) they shall be deemed to also refer to this Amendment as well as
all documents named herein and, (ii) Section
3(d) of the Agreement shall be
deemed also to refer to the most recent audited and unaudited
financial statements of the Company delivered to the
Bank. The Company further represents and warrants that
there are presently no liens on any assets of the Company, whether
real or personal, other than the liens on the personal property
assets of the Company granted to the Bank.
4.
EVENTS OF DEFAULT . The Company certifies
to the Bank that no Event of Default or Unmatured Event of Default
under the Agreement, as amended by this Amendment, has occurred and
is continuing as of the date of this Amendment, except as are
waived herein.
5.
CONDITIONS PRECEDENT . As conditions
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