EXHIBIT 10.2
Execution Copy
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated as of November 1, 2001
(this "Amendment") is by and between BUCA, INC., a Minnesota corporation (the
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"Borrower"), the banks which are signatories to the Credit Agreement defined
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below (individually, a "Bank" and, collectively, the "Banks"), BANK OF AMERICA,
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N.A., a national banking association ("BofA"), as one of the Banks and as agent
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for the Banks (in such capacity, the "Agent"), FLEET NATIONAL BANK, a national
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banking association ("Fleet"), as one of the Banks, and BRANCH BANKING AND TRUST
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COMPANY, a North Carolina banking corporation ("Branch"), as one of the Banks.
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RECITALS
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1. The Agent, Banks and the Borrower entered into a Credit Agreement
dated as of August 28, 2001 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"); and
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2. The Borrowers and the Banks have mutually agreed to amend certain
provisions of the Credit Agreement, subject to the terms and conditions set
forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby covenant
and agree to be bound as follows:
Section 1 Capitalized Terms. Capitalized terms used herein and not
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otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement, unless the context shall otherwise require.
Section 2 Amendments. The Credit Agreement is hereby amended or
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modified, as the case may be, as follows:
Section 2.1 Definitions.
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(a) The definition of "Letter of Credit Commitment" contained
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in Section 1.1 of the Credit Agreement is amended in its entirety as
follows:
"Letter of Credit Commitment": $1,500,000.
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(b) The definition of "Average Annual Comparable Restaurant
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Sales Growth" contained in Section 1.1 of the Credit Agreement is
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amended by adding the following proviso to the end of such definition:
; provided, however, that the Total Restaurant Sales for
Comparable Restaurants for each of the fiscal month
ending September 30, 2001 and the fiscal month ending
October 28, 2001 shall be deemed to equal the average of
the Total Restaurant Sales for Comparable Restaurants for
each of the twelve consecutive fiscal months ending
August 26, 2001.
Section 2.2 Deposit Accounts and Securities Accounts. Section 5.16
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of the Credit Agreement is amended by replacing the number "60" both times
it appears in such section with the number "120".
Section 2.3 Average Restaurant Annual Cash Flow. Section 6.17 of the
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Credit Agreement is amended by adding the following proviso to the end of
such section:
; provided, however, that when calculating Restaurant Net
Income for purposes of determining the Average Restaurant
Annual Cash Flow for any date of determination from September
30, 2001 through March 31, 2002, the Borrower shall be
permitted to add-back in to such Restaurant Net Income
calculation non-recurring extraordinary charges in an amount
not to exceed $2,147,000.
Section 2.4 Interest/Operating Lease Payment Coverage Ratio. Section
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6.18 of the Credit Agreement is amended in its entirety as follows:
Section 6.18 Interest/Operating Lease Payment Coverage Ratio.
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The Borrower will not permit the Interest/Operating Lease Payment
Coverage Ratio to be less than (i) 2.50 to 1.00 as of September 30,
2001, (ii) 2.10 to 1.00 as of December 30, 2001, (iii) 2.15 to 1.00 as
of March 31, 2002, (iv) 2.75 to 1.00 as of June 30, 2002 and of the
last day of each fiscal quarter thereafter; provided, however, that
when calculating EBIT for purposes of determining the
Interest/Operating Lease Payment Coverage Ratio for any date of
determination from September 30, 2001 through March 31, 2002, the
Borrower shall be permitted to add-back in to such EBIT calculation
non-recurring extraordinary charges in an amount not to exceed
$2,147,000.
Section 2.5 Fixed Charge Coverage Ratio. Section 6.19 of the Credit
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Agreement is amended by adding the following proviso to the end of such
section:
; provided, however, that when calculating Annualized EBITDA for
purposes of determining the Fixed Charge Coverage Ratio for
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any date of determination from September 30, 2001 through March
31, 2002, the Borrower shall be permitted to add-back in to
such Annualized EBITDA calculation non-recurring extraordinary
charges in an amount not to exceed $2,147,000.
Section 2.6 Cash Flow Leverage Ratio. Section 6.20 of the Credit
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Agreement is amended by adding the following proviso to the end of such
section:
; provided, however, that when calculating Annualized EBITDA
for purposes of determining the Cash Flow Leverage Ratio for
any date of determination from September 30, 2001 through March
31, 2002, the Borrower shall be permitted to add-back in to
such Annualized EBITDA calculation non-recurring extraordinary
charges in an amount not to exceed $2,147,000.
Section 3 Effectiveness of Amendments. The amendments and
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modifications contained in this Amendment shall become effective (the "Effective
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Date") upon delivery by the Borrower of, and compliance by the Borrower with,
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the following:
(a) This Amendment duly executed by the Borrower and the Banks.
(b) A copy of the resolutions of the Board of Directors of the
Borrower authorizing the execution, delivery and performance of this
Amendment, certified as true and accurate by its Secretary or Assistant
Secretary, along with a certification by such Secretary or Assistant
Secretary (i) certifying that there has been no amendment to the Articles
of Incorporation or Bylaws of the Borrower since true and accurate copies
of the same were delivered to the Lender with a certificate of the
Secretary of the Borrower dated August 28, 2001, 2001, and (ii) identifying
each officer of the Borrower authorized to execute this Amendment, and
certifying as to specimens of such officer's signature and such officer's
incumbency in such offices as such officer holds.
(c) A reaffirmation by each Guarantor of the Guaranty entered into
by such Guarantor, in form and substance satisfactory to the Agent.
(d) The Borrower shall have satisfied such other conditions as
specified by the Banks, including payment of all invoiced legal fees and
expenses incurred by the Banks through the date of this Amendment in
connection with the Credit Agreement.
Section 4 Representations; No Default. The Borrower hereby represents
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that on and as of the date hereof and after giving effect to this Amendment (a)
all of the representations and warranties contained in the Credit Agreement are
true, correct and complete in all respects as of the date hereof as though made
on and as of such date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they are true and correct
as of such earlier date, and (b) there will exist no Default or Event of Default
which has not been waived by the Banks. The
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Borrower represents and warrants that the Borrower has the power and legal right
and authority to enter into this Amendment and any other statement, instrument
or transaction contemplated hereby or relating hereto, and has duly authorized
the execution and delivery of this Amendment and any other statement, instrument
or transaction contemplated hereby or relating hereto by proper corporate
action, and, except as set forth in Schedule 4.3 to the Credit Agreement,
neither this Amendment, any other statement, instrument or transaction
contemplated hereby or relating hereto, nor the agreements contained herein or
therein contravene or constitute a default under any agreement, instrument or
indenture to which the Borrower is a party or a signatory or a provision of the
Borrower's Articles of Incorporation, Bylaws or, to the best of the Borrower's
knowledge, any other agreement or requirement of law. The Borrower represents
and warrants that no consent, approval or authorization of or registration or
declaration with any Person, including but not limited to any governmental
authority, is required in connection with the execution and delivery by the
Borrower of this Amendment and any other statement, instrument or transaction
contemplated hereby or relating hereto, or the performance of obligations of the
Borrower herein or therein described. The Borrower represents and warrants that
this Amendment and any other statement, instrument or transaction contemplated
hereby or relating hereto are the legal, valid and binding obligations of the
Borrower, enforceable in accordance with their terms, subject to limitations as
to enforceability which might result from bankruptcy, insolvency, moratorium and
other similar laws affecting creditors' rights generally and subject to general
principles of equity. The Borrower warrants that no events have taken place and
no circumstances exist at the date hereof which would give the Borrower a basis
to assert a defense, offset or counterclaim to any claim of the Bank as to any
obligations of the Borrower to the Banks.
Section 5 Affirmation of Amended and Restated Credit agreement, Further
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References, Affirmation of Security Interest. The Banks and the Borrower each
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acknowledge and affirm that the Credit Agreement, as hereby amended, is hereby
ratified and confirmed in all respects and all terms, conditions and provisions
of the Credit Agreement, except as amended by this Amendment, shall remain
unmodified and in full force and effect. All references in any document or
instrument to the Credit Agreement are hereby amended and shall refer to the
Credit Agreement as amended by this Amendment. The Borrower confirms to the
Banks that the Obligations are and continue to be secured by the security
interest granted by the Borrower in favor of the Banks under the Security
Documents, and all of the terms, conditions, provisions, agreements,
requirements, promises, obligations, duties, covenants and representations of
the Borrower under such documents and any and all other documents and agreements
entered into with respect to the obligations under the Credit Agreement are
incorporated herein by reference and are hereby ratified and affirmed in all
respects by the Borrower.
Section 6 Merger and Integration, Superseding Effect. This Amendment,
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from and after the date hereof, embodies the entire agreement and understanding
between the parties hereto and supersedes and has merged into this Amendment all
prior oral and written agreements on the same subjects by and between the
parties hereto with the effect that this Amendment, shall control with respect
to the specific subjects hereof and thereof.
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Section 7 Severability. Whenever possible, each provision of this
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Amendment and any other statement, instrument or transaction contemplated hereby
or relating hereto shall be interpreted in such manner as to be effective, valid
and enforceable under the laws of the State of Illinois, but, if any provision
of this Amendment or any other statement, instrument or transaction contemplated
hereby or relating hereto shall be held to be prohibited, invalid or
unenforceable under the applicable law, such provision shall be ineffective in
such jurisdiction only to the extent of such prohibition, invalidity or
unenforceability, without invalidating or rendering unenforceable the remainder
of such provision or the remaining provisions of this Amendment or any other
statement, instrument or transaction contemplated hereby or relating hereto in
such jurisdiction, or affecting the effectiveness, validity or enforceability of
such provision in any other jurisdiction.
Section 8 Successors. This Amendment shall be binding upon the
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Borrower and the Banks and their respective successors and assigns, and shall
inure to the benefit of the Borrower and the Banks and the successors and
assigns of the Banks.
Section 9 Legal Expenses. The Borrower agrees to reimburse the Banks,
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upon execution of this Amendment, for all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and legal expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, counsel for the Agent) incurred in connection with the Credit Agreement,
including in connection with the negotiation, preparation and execution of this
Amendment and all other documents negotiated, prepared and executed in
connection with this Amendment, and in enforcing the obligations of the Borrower
under this Amendment and the Credit Agreement, and to pay and save the Banks
harmless from all liability for, any stamp or other taxes which may be payable
with respect to the execution or delivery of this Amendment, which obligations
of the Borrower shall survive any termination of the Credit Agreement.
Section 10 Headings. The headings of various sections of this Amendment
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have been inserted for reference only and shall not be deemed to be a part of
this Amendment.
Section 11 Counterparts. This Amendment may be executed in several
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counterparts as denecessary or convenient, each of which, when so executed,
shall be deemed an original, provided that all such counterparts shall be
regarded as one and the same document, and either party to this Amendment may
execute any such agreement by executing a counterpart of such agreement.
Section 12 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY THE
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INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING EFFECT TO CONFLICT OF LAW
PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
[The next page is the signature page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
BORROWER: BUCA, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title CFO
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Address:
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
BANKS: BANK OF AMERICA, N.A.,
as the Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title Vice President
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Address:
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
IL1-231-06-13
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A.,
as a Bank
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Title Senior Vice President
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Address:
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
IL1-231-06-13
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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FLEET NATIONAL BANK,
as a Bank
By /s/ ▇▇▇▇ ▇. ▇▇▇
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Title Vice President
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Address:
Attention: ▇▇▇▇ ▇. ▇▇▇
MADE 10008H
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
BRANCH BANKING AND TRUST COMPANY,
as a Bank
By /s/ ▇▇▇▇ ▇▇▇▇▇
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Title VP
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Address:
Attention: ▇▇▇▇ ▇▇▇▇▇
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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