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AMENDMENT NUMBER ELEVEN TO CREDIT AGREEMENT AND WAIVER

Waiver Agreement

AMENDMENT NUMBER ELEVEN TO CREDIT AGREEMENT AND WAIVER | Document Parties: Buca Restaurants, Inc | WELLS FARGO FOOTHILL, INC You are currently viewing:
This Waiver Agreement involves

Buca Restaurants, Inc | WELLS FARGO FOOTHILL, INC

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Title: AMENDMENT NUMBER ELEVEN TO CREDIT AGREEMENT AND WAIVER
Governing Law: New York     Date: 11/7/2007
Industry: Restaurants     Sector: Services

AMENDMENT NUMBER ELEVEN TO CREDIT AGREEMENT AND WAIVER, Parties: buca restaurants  inc , wells fargo foothill  inc
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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 .

 

  (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”.

 

  (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”.

 


  (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:

 

  (a) Agent shall have received this Amendment, duly ex

 
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