EXHIBIT 10.34
EXECUTION VERSION
CAPITAL CALL AGREEMENT
CAPITAL CALL AGREEMENT, dated as of
April 21, 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, the Second Amendment and
Waiver dated as of January 4, 2006, and the Third 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 Third Amendment and Waiver to the Financing Agreement, dated
the date hereof (the “ Third Amendment ”), and
it is a condition precedent to the effectiveness of the Third
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 Third 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 Third Amendment,
Etc.
(a) The Sponsor hereby acknowledges
and consents to the Third 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
Third 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 Third
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 Third 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 Third 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):
