|
Exhibit
10.1
THIRD
AMENDMENT
TO REVOLVING CREDIT
AGREEMENT
This THIRD AMENDMENT TO
REVOLVING CREDIT AGREEMENT , dated as of November 6, 2007
(this “ Amendment ”), by and among
MCCORMICK & SCHMICK ACQUISITION CORP. , a Delaware
corporation (“ MSAC ”), MCCORMICK &
SCHMICK RESTAURANT CORP. , a Delaware corporation (“
MSRC ”), MCCORMICK & SCHMICK MARYLAND
LIQUOR, INC. , a Maryland corporation, MCCORMICK &
SCHMICK ACQUISITION I TEXAS, INC. , a Texas corporation
(“ MS Acquisition I ”),
MCCORMICK & SCHMICK ACQUISITION II TEXAS, INC. , a
Delaware corporation (“ MS Acquisition
II ”), MCCORMICK & SCHMICK ACQUISITION
TEXAS LP , a Texas limited partnership, MCCORMICK &
SCHMICK ACQUISITION III TEXAS, INC. , a Texas corporation,
MCCORMICK & SCHMICK’S ATLANTA II, LLC , a
Delaware limited liability company, MCCORMICK &
SCHMICK’S HACKENSACK, LLC , a Delaware limited liability
company, MCCORMICK & SCHMICK ORLANDO, LLC , a
Delaware limited liability company, MCCORMICK & SCHMICK
DALLAS, L.P. , a Texas limited partnership,
MCCORMICK & SCHMICK DALLAS LIQUOR, INC. , a Texas
corporation, MCCORMICK & SCHMICK AUSTIN, LP , a
Texas limited partnership, MCCORMICK & SCHMICK AUSTIN
LIQUOR, INC. , a Texas corporation, and each of the other
Subsidiaries of MSAC which shall from time to time hereafter become
a party thereto pursuant to §9.17 of the Credit Agreement (as
defined below) (collectively, the “ Borrowers
”), BANK OF AMERICA, N.A. , as successor by merger to
Fleet National Bank, and COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A. “RABOBANK INTERNATIONAL”
NEW YORK BRANCH (collectively, the “ Lenders
”), BANK OF AMERICA, N.A. , as successor by merger to
Fleet National Bank, as administrative agent for itself and the
Lenders (in such capacity, the “ Administrative Agent
”), amends certain provisions of the Revolving Credit
Agreement, dated as of July 23, 2004 (as amended and in effect
from time to time, the “ Credit Agreement
”), by and among the Borrowers, the Lenders, the
Administrative Agent and BANC OF AMERICA SECURITIES LLC , as
arranger. Terms not otherwise defined herein which are defined in
the Credit Agreement shall have the same respective meanings herein
as therein.
WHEREAS, the Borrowers
have requested that the Administrative Agent and the Lenders amend
certain provisions of the Credit Agreement; and
WHEREAS , the
Administrative Agent and the Lenders have agreed to amend certain
provisions of the Credit Agreement as provided more fully herein
below;
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 agree as follows:
1.1. Amendment
to §10.1 of the Credit Agreement (Restrictions on
Indebtedness) . §10.1(d) of the Credit Agreement is
hereby amended by deleting the figure of “$3,000,000”
in the last line therein and substituting the figure
“$10,000,000” therefor.
1.2. Conditions
to Effectiveness . Upon the Administrative Agent’s
receipt of a counterpart signature page to this Amendment duly
executed and delivered by each of the Borrowers, the Required
Lenders and the Administrative Agent, this Amendment shall be
deemed to be effective as of September 28, 2007.
1.3.
Representations and Warranties . Each of the
Borrowers hereby represents and warrants to the Administrative
Agent and the Lenders as follows:
(a) Representations
and Warranties in the Credit
Agreement . The representations and warranties of each of
the Borrowers contained in the Credit Agreement were true and
correct in all material respects as of the date when made and
continue to be true and correct in all material respects on the
date hereof, except to the extent of changes resulting from
transactions or events 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, or to the extent that such representations and
warranties relate expressly to an earlier date.
(b) Ratification ,
Etc. Except as expressly amended or waived hereby, the
Credit Agreement and the other Loan Documents, and all documents,
instruments and agreements related thereto, are hereby ratified and
confirmed in all respects and shall continue in full force and
effect. The Credit Agreement shall, together with this Amendment,
be read and construed as a single agreement. All references to the
Credit Agreement in the Credit Agreement, the Loan Documents or any
related agreement or instrument shall hereafter refer to the Credit
Agreement as amended hereby.
(c) Authority ,
Etc . The execution and delivery by each of the Borrowers of
this Amendment and the performance by such Person of all of its
agreements and obligations under the Credit Agreement as amended
hereby are within the corporate, limited partnership or limited
liability company authority, as applicable, of such Person and have
been duly authorized by all necessary entity proceedings on the
part of such Person.
(d) Enforceability
of Obligations . This Amendment and the Credit
Agreement as amended hereby
|
