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Exhibit
10.1
AMENDMENT NUMBER TEN TO
CREDIT AGREEMENT AND WAIVER
This AMENDMENT NUMBER TEN
TO CREDIT AGREEMENT AND WAIVER (this “ Amendment
”) is entered into as of August 6, 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
July 1, 2007 to be less than $8,500,000 (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. |
Amendment to Credit Agreement .
Section 6.16(a)(i) of the Credit Agreement is hereby
amended by replacing the reference to “$9,600,000”
contained in the third row of the table contained therein with
“$7,500,000”. |
| 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
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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.
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| 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 executed by the
parties hereto, and the same shall be in full force and
effect. |
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(b) |
Agent shall have received a reaffirmation and consent
substantially in the form attached hereto as Exhibit A ,
duly executed and delivered by each Guarantor. |
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(c) |
Borrowers shall have paid to Agent, for WFF’s sole and
separate account, an amendment fee of $50,000 (the “ Tenth
Amendment Fee ”), which Tenth Amendment Fee shall be
fully earned (and non-refundable) and paid in full by charging such
fee to Borrowers’ Loan Account on the date
hereof. |
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(d) |
After giving effect to this Amendment, the representations and
warranties herein and in the Credit Agreement, as amended hereby,
and the other Loan Documents shall be true and correct in all
material respects on and as of the date hereof, as though made on
such date (except to the extent that such representations and
warranties relate solely to an earlier date). |
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(e) |
After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing on the date hereof,
nor shall result from the consummation of the transactions
contemplated herein. |
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(f) |
No injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the consummation of the
transactions contemplated herein shall have been issued and remain
in force as of the date hereof by any Governmental Authority
against any Borrower, any Guarantor, Agent, or any
Lender. |
| 5. |
Release . Each Borrower hereby waives, releases, remises
and forever discharges each member of the Lender Group, each of
their respective Affiliates, and each of their respective officers,
directors, em
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