Exhibit 10.31
EXECUTION VERSION
CAPITAL CALL AGREEMENT
CAPITAL CALL AGREEMENT, dated as of
January 4, 2006, made by Hancock Park Capital II, L.P. (the
“ Sponsor ”), in favor of the Agents and the
Lenders referred to below.
W I T N E S
S E T H :
WHEREAS, Gordon Biersch Brewery
Restaurant Group, Inc., a Tennessee corporation (the “
Parent ”), Big River Breweries, Inc, a Tennessee
corporation (“ Big River ”), and GB Acquisition
Inc., a Tennessee corporation (“ GBA ” and
together with Big River, each a “ Borrower ” and
collectively, the “ Borrowers ”), each person
listed as a “Guarantor” on the signature pages to the
Financing Agreement referred to below (together with the Parent,
each a “ Guarantor ” and collectively, the
“ Guarantors ” and together with the Borrowers,
each a “ Loan Party ” and collectively, the
“ Loan Parties ”), the lenders from time to time
party thereto (each a “ Lender ” and
collectively, the “ Lenders ”), and Ableco
Finance LLC, a Delaware limited liability company (“
Ableco ”), as collateral agent for the Agents and the
Lenders (in such capacity, the “ Collateral Agent
”) and Wells Fargo Foothill, Inc., a California corporation
(“ Foothill ”), as administrative agent for the
Agents and the Lenders (in such capacity, the “
Administrative Agent ”, and together with the
Collateral Agent, each an “ Agent ” and
collectively, the “ Agents ”) have entered into
an Amended and Restated Financing Agreement, dated as of
October 27, 2004, as amended by the First Amendment and
Waiver, dated as of April 11, 2005, and the Second Amendment
referred to below (as amended, restated, modified or otherwise
changed from time to time, the “ Financing Agreement
”, all terms used in this Agreement which are defined in the
Financing Agreement and not otherwise defined in this Agreement
shall have the same meanings in this Agreement as set forth in the
Financing Agreement), pursuant to which the Agents and the Lenders
are to extend credit to the Borrowers consisting of a revolving
credit facility and term loans;
WHEREAS, the parties intend to enter
into a Second Amendment and Waiver to the Financing Agreement,
dated the date hereof (the “ Second Amendment
”), which provides, among other things, that the Borrowers
may enter into an unsecured and subordinated facility (the “
Additional Liquidity Facility ”) in an aggregate
amount equal to an amount not less than $6,000,000 to be funded on
or prior to April 30, 2006, the proceeds of which shall be
applied as follows: (x) the first $4,000,000 to repay the Loans as
specified in the Financing Agreement, (y) the remaining
proceeds to repay the principal amount of the Sponsor Additional
Subordinated Notes in an aggregate amount not exceeding the
aggregate amount of Sponsor Capital Contributions made as of such
date, and (z) the remainder, if any, to repay Loans as
specified the Financing Agreement; and
WHEREAS, it is condition precedent
to the effectiveness of the Second Amendment that the Sponsor shall
enter into an agreement for the benefit of the Agents and the
Lenders pursuant to which the Sponsor is to make capital
contributions to the Parent upon the occurrence of certain events
as described herein.
NOW, THEREFORE, in consideration of
the premises and the agreements herein and in order to induce the
Agents and the Lenders to enter into the Second Amendment and to
continue to extend credit to the Borrowers pursuant to the
Financing Agreement, the Sponsor hereby agrees for the benefit of
the Agents and the Lenders as follows:
1. Consent to the Second Amendment,
Etc.
(a) The Sponsor hereby acknowledges
and consents to the Second Amendment and hereby waives
(i) notice of acceptance and notice of the incurrence of any
Obligation by the Borrowers; (ii) notice of any actions taken
by the Agents, the Lenders or any Loan Party with respect to the
Second Amendment or under any Loan Document or any other agreement
or instrument relating thereto; (iii) all other notices,
demands and protests, and all other formalities of every kind in
connection with the enforcement of the Obligations or of the
obligations of the Loan Parties hereunder, the omission of or delay
in which, but for the provisions of this Paragraph 1, might
constitute grounds for relieving the Sponsor of its obligations
hereunder; and (iv) any requirement that the Agents or the
Lenders protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against the
Borrowers or any other Person or any Collateral.
(b) The liability of the Sponsor
hereunder shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of the Second
Amendment or any Loan Document or any agreement or instrument
relating thereto; (ii) any change in the time, manner or place
of payment of, or in any other term in respect of, all or any of
the Obligations, or any other amendment or waiver of or consent to
any departure from any provision of the Second Amendment or any
Loan Document other than this Agreement; (iii) any release or
amendment or waiver of or consent to any departure from the terms
of the Second Amendment or any other Loan Document, for all or any
of the Obligations; or (iv) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, the
Borrowers in respect of the Obligations of the Loan Parties in
respect of their obligations hereunder. Each Loan Party hereby
irrevocably waives any rights to setoff or reduction of its
obligations under this Agreement based on any claim that such Loan
Party has against any Person.
2. Capital Contributions to Pay
Obligations .
(a) The Sponsor shall fund capital
contributions (the “ Sponsor Call Contributions
”) to the Parent with proceeds to the Parent on or prior to
the following dates and in the following amounts (which amounts are
(i) in addition to any other capital contributions made prior
to such dates and (ii) made in one capital contribution and
not a series of capital contributions): (A) an aggregate
amount equal to $500,000 on or prior to January 31, 2006,
(B) an aggregate amount equal to $1,500,000 on or prior to
February 28, 2006, (C) an aggregate amount equal to $
1,000,000 on or prior to March 31, 2006 and (D) an
aggregate amount equal to $500,000 on or prior to
