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Exhibit
10.2
AMENDMENT NUMBER THIRTEEN
TO CREDIT AGREEMENT AND WAIVER
This AMENDMENT NUMBER
THIRTEEN TO CREDIT AGREEMENT AND WAIVER (this “
Amendment ”) is entered into as of May 13, 2008,
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
have advised the Lender Group that an Event of Default has occurred
and is continuing under the Credit Agreement as a result of
Borrowers’ failure to maintain a Fixed Charge Coverage Ratio
of 0.00:1.00 for the 12 month period ending March 30, 2008 as
required by Section 6.16(a)(ii) of the Credit Agreement
(the “ Designated Event of Default
”);
WHEREAS, Borrowers
have requested that the Lender Group agree to waive the Designated
Event of Default and amend 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 2.1(a) of the Credit Agreement is hereby
amended and restated in its entirety as follows:
“(a) Subject to the
terms and conditions of this Agreement, and during the term of this
Agreement, each Lender with a Revolver Commitment agrees
(severally, not jointly or jointly and severally) to make advances
(“ Advances ”) to Borrowers in an amount at any
one time outstanding not to exceed such Lender’s Pro Rata
Share of an amount equal to the lesser of (i) the
Maximum Revolver Amount less the Sale-Leaseback Reserve
less the Letter of Credit Usage, or (ii) the Borrowing
Base less the Letter of Credit Usage.”
(b) Schedule 1.1 to
the Credit Agreement is hereby amended by adding the following
definition of “Sale-Leaseback Reserve” in proper
alphabetical order:
“ “
Sale-Leaseback Reserve ” means a reserve in an amount
equal to the greater of (a) $1,500,000, and (b) 50% of
the Net Cash Proceeds actually received by Borrowers pursuant to
that certain Contract of Sale, effective as of April 25, 2008
(the “ Sale-Leaseback Contract ”), between Buca
Restaurants 2, Inc., a Minnesota corporation and Barton Creek
Capital, LLC, a Texas limited liability company, which reserve may
be released or reinstated in whole or in part from time to time by
Agent in its sole and absolute discretion; provided that ,
anything to the contrary contained in the foregoing
notwithstanding, if the transactions contemplated by the
Sale-Leaseback Contract are not consummated the amount of the
Sale-Leaseback Reserve shall be zero.”
(c) Schedule 1.1 of
the Credit Agreement is hereby amended by amending and restating
the definition of “Borrowing Base” as
follows:
“ “
Borrowing Base ” means, as of any date of
determination, the result of:
(a) the lesser of
(i) (A) as of any date
of determination (other than any date of determination that falls
during one of the periods set forth in clauses (B) and
(C) below), the product of 1.75 times TTM EBITDA for the most
recently ended 12 consecutive monthly periods for which financial
statements have been delivered pursuant to Section 5.3
, (B) as of any date of determination during the fiscal month
ended August 24, 2008, the lesser of (y) the product of
2.10 times TTM EBITDA for the most recently ended 12 consecutive
monthly periods for which financial statements have been delivered
pursuant to Section 5.3 , and (z) the sum of
(I) the product of 1.75 times TTM EBITDA for the most recently
ended 12 consecutive monthly periods for which financial statements
have been delivered pursuant to Section 5.3 plus (II)
$1,700,000, and (C) as of any date of determination during the
fiscal month ended September 28, 2008, the lesser of
(y) the product of 2.10 times TTM EBITDA for the most recently
ended 12 consecutive monthly periods for which financial statements
have been delivered pursuant to Section 5.3 , and
(z) the sum of (I) the product of 1.75 times TTM EBITDA
for the most recently ended 12 consecutive monthly periods for
which financial statements have been delivered pursuant to
Section 5.3 plus (II) $1,000,000, and
(ii) 50% of the most recently
determined Enterprise Value;
minus
(b) the sum of (i) the
Bank Product Reserve, (ii) the Sale-Leaseback Reserve, and
(iii) the aggregate amount of reserves, if any, established by
Agent under Section 2.1(b) .”
3. Waiver of Designated Event 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, or 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 executed by the parties hereto, and the same
shall be in full force and effect.
(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.
(c) 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).
(d) 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.
(e) 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
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