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Exhibit
10.1
AMENDMENT NUMBER ELEVEN TO
CREDIT AGREEMENT AND WAIVER
This AMENDMENT NUMBER
ELEVEN TO CREDIT AGREEMENT AND WAIVER (this “
Amendment ”) is entered into as of November 2,
2007, by the lenders identified on the signature pages hereof (the
“ Lenders ”), WELLS FARGO FOOTHILL, INC.
, a California corporation, as the arranger and administrative
agent for the Lenders (in such capacity, together with its
successors and assigns, if any, in such capacity, “
Agent ”; and together with the Lenders, the “
Lender Group ”), BUCA, INC ., a Minnesota
corporation (“ Parent ”), and each of
Parent’s Subsidiaries identified on the signature pages
hereof (such Subsidiaries, together with Parent, are referred to
hereinafter each individually as a “ Borrower ”,
and individually and collectively, jointly and severally, as the
“ Borrowers ”), with reference to the
following:
WHEREAS , Borrowers
and the Lender Group are parties to that certain Credit Agreement,
dated as of November 15, 2004 (as amended, restated,
supplemented, or otherwise modified from time to time, the “
Credit Agreement ”);
WHEREAS , Borrowers
has advised the Lender Group that Borrowers have failed to comply
with Section 6.16(a)(i) of the Credit Agreement by
permitting EBITDA as of the last day of the 12 month period ending
September 30, 2007 to be less than $7,500,000 (the “
Designated Event of Default ”);
WHEREAS , Borrowers
have requested that the Lender Group agree to certain amendments to
the Credit Agreement, as set forth herein; and
WHEREAS , upon the
terms and conditions set forth herein, the Lender Group is willing
to accommodate Borrowers’ requests.
NOW, THEREFORE , in
consideration of the foregoing and the mutual covenants herein
contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
| 1. |
Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them
in the Credit Agreement, as amended hereby. |
| 2. |
Amendments to Credit Agreement . |
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(a) |
Section 6.16(a)(i) of the Credit Agreement is
hereby amended by replacing the reference to
“$9,100,000” contained in the fourth row of the table
contained therein for the 12 month period ending December 30,
2007 with “$5,695,000”. |
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(b) |
Section 6.16(a)(ii) of the Credit Agreement is
hereby amended by replacing the reference to
“1.25:1.00” contained in the thirteenth row of the
table contained therein for the 12 month period ending
December 30, 2007 with “1.00:1.00”. |
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(c) |
Schedule 1.1 of the Credit Agreement is hereby amended
by amending and restating the definition of “EBITDA” as
follows: |
““ EBITDA
” means, with respect to any fiscal period, in each case as
determined in accordance with GAAP, Parent’s and its
Subsidiaries’ consolidated net earnings (or loss), minus
extraordinary gains and interest income for such period,
plus:
(a) interest expense, income
taxes, depreciation and amortization, and Restaurant Pre-Opening
Expenses for such period;
(b) for fiscal year 2005
through and including fiscal year 2006 only, legal fees and
disbursements incurred in connection with any of the
Investigations, charges relating to the reimbursement of witnesses
in any of the Investigations, and fees and disbursements of
forensic accountants retained by the Borrowers in connection with
any of the Investigations, in an aggregate amount not to exceed
$3,000,000 (the “ Investigations Expenses
”);
(c) for any fiscal year after
fiscal year 2004 through and including fiscal year 2006, charges
not to exceed $1,000,000 (inclusive of legal fees and
disbursements) in the aggregate for amounts, if any, in excess of
the remaining reserve therefor paid during such period under the
settlement of the Class Action Lawsuit;
(d) any non-cash asset
impairment charges or fixed asset additions for restaurant
properties that have previously been impaired, in each case in
accordance with FASB 144 (to the extent having been deducted in the
calculation of net earnings (loss) for such period);
(e) for the fourth fiscal
quarter of fiscal year 2005 and each fiscal year thereafter, any
charges related to FIN 47 in amount not to exceed $359,857 for the
fourth fiscal quarter of fiscal year 2005 and $210,000 for each
fiscal year thereafter;
(f) for fiscal year 2006 and
each fiscal year thereafter, any charges related to
FASB 123;
(g) any non-recurring store
closure expenses and lease termination charges for such period
related to any store closures; and
(h) for the third fiscal
quarter of fiscal year 2007, asset write-off and renovation
expenses related to the store located at 855 Howard Street, San
Francisco, CA 94103 in an aggregate amount not to exceed
$700,000;
provided that any reversal
(or reimbursement) of charges set forth in the foregoing clauses
(b) through (h) shall not be included in (and, as
applicable, subtracted from) EBITDA.”
| 3. |
Waiver of Designated Events of Default . Subject to the
satisfaction by Borrowers of the conditions precedent set forth in
Section 4 herein, and anything in the Credit Agreement to the
contrary notwithstanding, the Lender Group hereby waives the
Designated Event of Default; provided , however ,
nothing herein shall be deemed a waiver with respect to any other
future failure of Borrowers to comply fully with any provision of
the Credit Agreement or any other provision of any Loan Document.
This waiver shall be effective only for the Designated Event of
Default, and in no event shall this waiver be deemed to be a waiver
of enforcement of any of the Lender Group’s rights with
respect to any other Defaults or Events of Default now existing or
hereafter arising. Nothing contained in this Amendment nor any
communications between any Borrower and any member of the Lender
Group shall be a waiver of any rights or remedies any member of the
Lender Group has or may have against Borrowers, except as
specifically provided herein. Except as specifically provided
herein, each member of the Lender Group hereby reserves and
preserves all of its rights and remedies against Borrowers under
the Credit Agreement and the other Loan Documents. |
| 4. |
Conditions Precedent to Amendment. The satisfaction of
each of the following shall constitute conditions precedent to the
effectiveness of this Amendment and each and every provision
hereof: |
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(a) |
Agent shall have received this Amendment, duly ex |
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