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EX-10.2 - LUBYS INC | v191453_ex10-2.htm |
8-K - LUBYS INC | v191453_8k.htm |
SECOND AMENDMENT TO CREDIT
AGREEMENT
THIS
SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is made
and entered into as of July 26, 2010 by and among LUBY’S, INC., a Delaware
corporation (the “Company”); each of
the Lenders which is or may from time to time become a party to the Credit
Agreement (as defined below) (individually, a “Lender” and,
collectively, the “Lenders”), and WELLS
FARGO BANK, NATIONAL ASSOCIATION, acting as administrative agent for the Lenders
(in such capacity, together with its successors in such capacity, the “Administrative
Agent”).
RECITALS
A.
The Company, the Lenders and the
Administrative Agent executed and delivered that certain Credit Agreement dated
as of November 9, 2009, as amended by instrument dated as of January 31,
2010. Said Credit Agreement, as amended, supplemented and restated,
is herein called the “Credit
Agreement”. Any capitalized term used in this Amendment and
not otherwise defined shall have the meaning ascribed to it in the Credit
Agreement.
B. The
Company, the Lenders and the Administrative Agent desire to amend the Credit
Agreement in certain respects.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements,
representations and warranties herein set forth, and further good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company, the Lenders and the Administrative Agent do hereby agree as
follows:
SECTION
1. Amendments to
Credit Agreement.
(a) The
definition of “Applicable Rate” set
forth in Section
1.01 of the Credit Agreement is hereby to read in its entirety as
follows:
“Applicable Rate”
means, for any day with respect to any ABR Loan or Eurodollar Loan or with
respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption “ABR Spread”,
“Eurodollar Spread” or “Commitment Fee Rate”, as the case may be, based upon the
Total Leverage Ratio as of the most recent determination date:
Total
Leverage Ratio
|
ABR Spread
|
Eurodollar Spread
|
Commitment Fee
Rate
|
||||
Category 1: greater
than
2.50
|
2.75
|
4.50
|
0.45
|
||||
Category 2: greater
than
1.25 but less than
or
equal to 2.50
|
2.00
|
3.75
|
0.40
|
||||
Category 3: greater
than
0.50 but less than
or
equal to 1.25
|
1.50
|
3.25
|
0.35
|
||||
Category 4: less than
or
equal to 0.50
|
1.00
|
2.75
|
0.30
|
For
purposes of the foregoing, (i) the Total Leverage Ratio shall be determined as
of the end of each fiscal quarter of the Borrower’s fiscal year based upon the
Borrower’s consolidated financial statements delivered pursuant to Sections 5.01(a) or
(b) and (ii)
each change in the Applicable Rate resulting from a change in the Total Leverage
Ratio shall be effective during the period commencing on and including the date
of delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately preceding
the effective date of the next such change; but the Total Leverage Ratio shall
be deemed to be in Category 1 at the request of the Required Lenders if the
Borrower fails to timely deliver the consolidated financial statements required
to be delivered by it pursuant to Sections 5.01(a) or
(b), during the
period from the deadline for delivery thereof until such consolidated financial
statements are received.
(b) The
definition of “Commitment” set forth
in Section 1.01
of the Credit Agreement is hereby to read in its entirety as
follows:
“Commitment” means,
with respect to each Lender, the commitment, if any, of such Lender to make
Loans and to acquire participations in Letters of Credit hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender’s Revolving
Exposure hereunder, as such commitment may be (a) reduced or increased from time
to time pursuant to Section 2.07 and (b)
reduced from time to time pursuant to assignments by or to such Lender pursuant
to Section
9.04. The amount of each Lender’s Commitment as of July 26,
2010 is set forth on Schedule
2.01. The aggregate amount of the Lenders’ Commitments as of
July 26, 2010 is $53,000,000.
(c) The
definition of “EBITDA” set forth in
Section 1.01 of
the Credit Agreement is hereby to read in its entirety as
follows:
2
“EBITDA” means,
without duplication, for any period, consolidated income from continuing
operations of the Borrower, consistent with the Borrower’s Forms 10-K and 10-Q,
plus depreciation, amortization, other non-cash expenses, interest expense,
taxes, and minus in the case of income or plus in the case of losses, non-cash
income and extraordinary gains or losses and other non-recurring items of income
or expense as approved by the Administrative Agent; provided that, if the
Borrower or any of its Subsidiaries acquires the Equity Interests or assets of
any Person during such period under circumstances permitted under Section 6.14 hereof,
EBITDA shall be adjusted to give pro forma effect to such acquisition assuming
that such transaction had occurred on the first day of such
period. In calculating EBITDA for purposes of the Total
Leverage Ratio and the Interest Coverage Ratio, (i) no EBITDA for any period on
or prior to the last day of the third fiscal quarter of the Borrower’s 2010
fiscal year which is allocable to the assets acquired by Borrower or a
Subsidiary of Borrower from Fuddruckers, Inc. (“Fuddrucker Assets”)
shall be included, (ii) as of any date during the fourth fiscal quarter of the
Borrower’s 2010 fiscal year, $8,000,000 shall be added to EBITDA, (iii) as of
any date during the first fiscal quarter of the Borrower’s 2011 fiscal year,
$6,154,000 shall be added to EBITDA, (iv) as of any date during the second
fiscal quarter of the Borrower’s 2011 fiscal year, $4,308,000 shall be added to
EBITDA and (v) as of any date during the third fiscal quarter of the Borrower’s
2011 fiscal year, $2,462,000 shall be added to EBITDA. EBITDA which
is allocable to the Fuddrucker Assets from and after the first day of the
Borrower’s 2011 fiscal year shall be included in calculating EBITDA for purposes
of the Total Leverage Ratio and the Interest Coverage Ratio. In
calculating EBITDA for purposes of the Minimum EBITDA covenant, for the first
three periods of the fiscal quarter ending August 25, 2010 $1,846,000 shall be
added to EBITDA and for the fourth period of the fiscal quarter ending August
25, 2010 the actual EBITDA allocable to Fuddruckers Assets for such period shall
be added to EBITDA
(d) A
new definition of “Fuddruckers Purchase
Agreement” is hereby added to Section 1.01 of the
Credit Agreement, such new definition to read in its entirety as
follows:
“Fuddruckers Purchase
Agreement” means that certain Asset Purchase Agreement dated as of June
23, 2010 between the Borrower and Fuddruckers, Inc., a Texas corporation, and of
certain Affiliates of Fuddruckers, Inc.
(e) The
definition of “Guarantors” set forth
in Section 1.01
of the Credit Agreement is hereby to read in its entirety as
follows:
“Guarantors” means (i)
Christopher J. Pappas, (ii) Harris J. Pappas and (iii) each of the present or
future Subsidiaries of the Borrower.
(f) The
definition of “Guaranty” set forth
in Section 1.01
of the Credit Agreement is hereby to read in its entirety as
follows:
“Guaranty” means (i)
that certain Guaranty dated as of November 9, 2009 executed by all of the then
current Subsidiaries of the Borrower in favor of the Administrative Agent, (ii)
that certain Guaranty dated as of July 26, 2010 executed by Christopher J.
Pappas and Harris J. Pappas in favor of the Administrative Agent, and (iii) any
and all other guaranties now or hereafter executed in favor of the
Administrative Agent relating to the Obligations hereunder and the other Loan
Documents, as any of them may from time to time be amended, modified, restated
or supplemented.
(g) The
definition of “Maturity Date” set
forth in Section
1.01 of the Credit Agreement is hereby to read in its entirety as
follows:
“Maturity Date” means
September 1, 2011.
(h) The
definition of “Phantom
Amortization” set forth in Section 1.01 of the
Credit Agreement is hereby to read in its entirety as follows:
3
“Phantom Amortization”
means, (i) for the fiscal quarter ended August 25, 2010, an amount equal to the
outstanding principal balance of the Loans as of the close of business on August
25, 2010 divided by twenty-eight (28) and (ii) for any subsequent fiscal
quarter, an amount equal to the outstanding principal balance of the Loans as of
the close of business on the last day of such fiscal quarter divided by seven
(7).
(i) Section 2.07(a) of
the Credit Agreement is hereby amended to read in its entirety as
follows:
(a) The
aggregate amount of the Commitments shall be reduced to (i) $50,400,000 on
November 30, 2010, (ii) $48,800,000 on February 28, 2011, (iii) $43,900,000 on
May 31, 2011 and (iv) $40,000,000 on August 31, 2011. Each such
reduction shall be allocated among the Lenders pro rata in accordance with their
respective Commitments. Concurrently with any such reduction,
Borrower shall make any prepayment required under Section 2.09(b) as a
result of such reduction. Unless previously terminated, the
Commitments shall terminate on the Maturity Date.
(j) Section 2.07(d) of
the Credit Agreement is hereby amended to read in its entirety as
follows:
(d) [Intentionally
Left Blank]
(k) Section 2.08(a) of
the Credit Agreement is hereby amended to read in its entirety as
follows:
(a) The
Borrower shall make payments of the unpaid principal balance of the Loans during
each fiscal quarter in an aggregate amount equal to or exceeding $2,000,000
(inclusive of amounts paid pursuant to Section
2.09(c)). In the event that Borrower makes a payment in any
fiscal quarter in an aggregate amount (inclusive of amounts paid pursuant to
Section
2.09(c)) of more than $2,000,000, the amount paid by the Borrower in
excess of $2,000,000 shall be credited to Borrower's obligation to make such
payment in the subsequent fiscal quarters in direct order. Without
limiting the foregoing, the Borrower hereby unconditionally promises to pay to
the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Loan of such Lender on the Maturity Date.
(l) Section 2.09(c) of
the Credit Agreement is hereby amended to read in its entirety as
follows:
(c) In
the event and on each occasion that any Net Proceeds are received by or on
behalf of the Borrower or any of its Subsidiaries in respect of any Prepayment
Event, the Borrower shall, within three Business Days after such Net Proceeds
are received, prepay Borrowings in an aggregate amount equal to 100% of such Net
Proceeds in the case of a Prepayment Event with respect to any real property
that is listed on Schedule 6.05
attached hereto. To the extent such prepayment would result in the
payment of breakage costs hereunder, at the election of the Required Lenders,
either (i) such prepayment shall be deferred until the last day of the
applicable Interest Period or (ii) such breakage costs shall be
waived.
4
(m) Section 5.13 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
SECTION
5.13 Financial
Covenants. The Borrower will have and maintain:
(a) Total Leverage Ratio
– a Total Leverage Ratio of not greater than (i) at any time from and after the
date hereof through and including August 25, 2010, 3.00 to 1.00 and
(ii) at all times thereafter, 2.75 to 1.00.
(b) Interest Coverage
Ratio – an Interest Coverage Ratio of not less than 2.00 to
1.00 as of the end of each fiscal quarter.
(c) Minimum EBITDA –
EBITDA of not less than (i) $4,500,000 for the fiscal quarter ended August 25,
2010, (ii) $2,500,000 for the fiscal quarter ended November 17, 2010, (iii)
$3,500,000 for the fiscal quarter ended February 9, 2011, (iv) $7,000,000 for
the fiscal quarter ended May 4, 2011 and (iv) $6,500,000 for the fiscal quarter
ended August 31, 2011.
(n) Section 5.03(c) of
the Credit Agreement is hereby amended to read in its entirety as
follows:
(c) In
the event that (i) either (x) an Appraisal has been provided pursuant to Section 5.14 of this
Agreement (other than to the extent already addressed in Section 5.16 hereof)
or (y) any Mortgaged Property is sold pursuant to Section 6.05 of this
Agreement, and (ii) the Loan to Value Ratio exceeds 1.00 to 2.00
(such event being herein called an "Additional Real Collateral
Event"), as soon as practicable and in any event within forty-five (45)
days after an Additional Real Collateral Event, Borrower shall (1) execute and
deliver or cause to be executed and delivered a Mortgage or Mortgages, in form
and substance reasonably satisfactory to Administrative Agent, in favor of
Administrative Agent and duly executed by Borrower or the applicable Subsidiary,
covering and affecting and granting a first-priority Lien upon real property
with an Appraisal value that is in an amount sufficient to cause the Loan to
Value Ratio to not exceed 1.00 to 2.00 (the real property covered by the
Mortgage or Mortgages created pursuant to this Section 5.03(c) being
herein called the "Additional Real
Collateral"), and such other documents (including, without limitation,
surveys, environmental assessments, certificates and legal opinions, all in form
and substance reasonably satisfactory to Administrative Agent) as may be
required by Administrative Agent in connection with the execution and delivery
of such Mortgage or Mortgages, (2) deliver or cause to be delivered by
Subsidiaries of Borrower such other documents or certificates consistent with
the terms of this Agreement and relating to the transactions contemplated hereby
as Administrative Agent may reasonably request, (3) to the extent required by
Administrative Agent, cause a title insurance underwriter satisfactory to
Administrative Agent to issue to Administrative Agent a mortgage policy of title
insurance, in form and substance satisfactory to Administrative Agent, insuring
the first-priority Lien of the applicable Mortgage in such amount as is
satisfactory to Administrative Agent and (4) deliver or cause to be delivered by
Subsidiaries of Borrower evidence reasonably satisfactory to the Administrative
Agent that such Additional Real Property lies in an area requiring special
notices of flood hazard issues or the purchase of flood hazard
insurance. The Additional Real Collateral shall become Mortgaged
Property and Scheduled Real Property for purposes of this
Agreement. The real property that constitutes Additional Real
Collateral shall be selected at the Borrower's discretion and shall
be satisfactory to the Required Lenders.
5
(o) Section 5.11 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
SECTION
5.11 Use of
Proceeds and Letters of Credit. The Letters of Credit and the
proceeds of the Loans will be used only for general corporate purposes and for
general working capital purposes, which may include refinancing existing
Indebtedness and costs associated with the acquisition of Fuddruckers, Inc. and
other acquisitions permitted hereunder. No part of the proceeds of
any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations U and X.
(p) Section 5.14 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
SECTION
5.14 Appraisals. On
or before September 30, 2010, Borrower shall provide to the
Administrative Agent Appraisals of real property owned by the Loan Parties which
is not currently covered by a Mortgage reflecting appraised values which, when
added to the appraised values of the real property currently covered by a
Mortgage, would cause the Loan to Value Ratio to be equal to or less than 1.00
to 2.00 upon satisfaction of the requirements of Section 5.16 with
respect to such real property. Thereafter, Borrower shall provide
Appraisals of the Mortgaged Property to the Administrative Agent upon request by
the Administrative Agent (but not more frequently than once in any period of
twelve months unless an Event of Default has occurred and is
continuing). The Borrower shall pay all costs and expenses incurred
in obtaining any Appraisals required hereunder.
(q) Section 5.16 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
SECTION
5.16 Mortgages. On
or before September 30, 2010, Borrower shall provide (a) counterparts of
additional Mortgages signed on behalf of Borrower or its Subsidiary (as
applicable) covering additional Mortgaged Property having an appraised value (as
demonstrated by Appraisals delivered to the Administrative Agent pursuant to the
first sentence of Section 5.14)
sufficient to result in the Loan to Value Ratio being equal to or less than 1.00
to 2.00, and (b) evidence reasonably satisfactory to the Administrative Agent
that none of such additional Mortgaged Property lies in an area requiring
special notices of flood hazard issues or the purchase of flood hazard insurance
and, to the extent reasonably required by Administrative Agent with respect to
the applicable Mortgaged Property, a policy or policies of title insurance
issued by a nationally recognized title insurance company, insuring the Lien of
each such additional Mortgage as a valid first Lien on the Mortgaged Property
described therein, free of any other Liens except as permitted by Section 6.02,
together with such endorsements, coinsurance and reinsurance as the
Administrative Agent may reasonably request, and such surveys, abstracts and
appraisals as may be required pursuant to such additional Mortgages or as the
Administrative Agent may reasonably request.
6
(r) Section 6.02(v) of
the Credit Agreement is hereby amended to read in its entirety as
follows:
(v) in
addition to and cumulative of the Liens permitted under the other provisions of
this Section, Liens securing Indebtedness not exceeding, in the aggregate at any
one time outstanding, $10,000,000; and
(s)
Section 6.08 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
SECTION
6.08 Restricted
Payments. The Borrower will not, nor will it permit any other
Loan Party to, declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so. Notwithstanding the foregoing, at any time (i) the Borrower may
declare and pay dividends with respect to its Equity Interests payable solely in
additional shares of its common stock, (ii) Subsidiaries of the Borrower may
declare and pay dividends ratably with respect to their Equity Interests, (iii)
the Borrower may declare and pay such payments or prepayments of Subordinated
Debt as may be permitted under the terms and provisions of any applicable
Subordination Agreement and (iv) management fees paid to advisors and
consultants in an aggregate amount not to exceed $1,000,000 in any fiscal
year.
(t) Section 6.13 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
SECTION
6.13 Capital
Expenditures. The Borrower will not, and will not permit any
other Loan Party to, make a Capital Expenditure if, after giving effect to such
Capital Expenditure, (a) any Event of Default is then existing or would arise as
a result of the applicable Capital Expenditure or (b) there are Loans
outstanding and such Capital Expenditure, when added with all other Capital
Expenditures in such fiscal year, would exceed (i) for the fiscal year ended
August 25, 2010, $10,000,000 and (ii) for any subsequent fiscal year,
$15,000,000. Acquisitions permitted under the terms and provisions of
Section 6.14
hereof shall not be treated as Capital Expenditures for purposes of this
Section.
(u) Section 6.14 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
SECTION
6.14 Acquisitions. The
Borrower will not, and will not permit any other Loan Party to, enter into any
transaction or series of transactions for the purposes of acquiring all or a
substantial portion of the assets, property and/or Equity Interests in and to
any Person other than the acquisition by the Borrower or any Loan
Party of Equity Interests in and to (which may be way of a merger with and into
the Borrower or another Loan Party so long as the Borrower or the applicable
Loan Party is the surviving entity), or all or a substantial portion of the
assets, property and/or operations of, any Person provided that
7
(a) Aggregate
consideration paid by the Loan Parties in connection with any such acquisition
occurring on or after July 26, 2010 (exclusive of the acquisition contemplated
under the Fuddruckers Purchase Agreement) shall not exceed
$5,000,000;
(b) the
Company may acquire less than 100% of the Equity Interests of a Person, but in
no event less than 80% except as permitted under Section 6.04;
(c) no
Default or Event of Default shall have occurred and be continuing or, on a pro
forma basis, would reasonably be expected to result from such
acquisition;
(d) such
acquisition is of a Person in the restaurant business or a reasonably-related
business (or of assets used in the restaurant business or a reasonably-related
business);
(e)
the Borrower can demonstrate, on a pro forma basis, after giving effect to such
acquisition that the Total Leverage Ratio does not exceed 2.75 to 1.00;
and
(f) the
Borrower shall have delivered (or caused to be delivered) to the Administrative
Agent such other documents as may be reasonably requested by the Administrative
Agent in connection with such acquisition.
(v)
Schedule
2.01 to the Credit Agreement is hereby amended to be identical to Schedule 2.01
attached hereto.
(w) Section 3(d) of the
Security Agreement executed by the Subsidiaries is hereby amended to read in its
entirety as follows:
(d) As
of the date hereof, no Debtor has changed its name, whether by amendment of its
organizational documents or otherwise, or the jurisdiction under whose laws such
Debtor is organized within the last five (5) years.
SECTION
2. Conditions
Precedent. The effectiveness of this Amendment shall be
conditioned upon delivery to the Administrative Agent of each of the
following:
(a) the
Administrative Agent shall have received from the Loan Parties and all of the
Lenders either (1) a counterpart of this Amendment signed on behalf of such
party or (2) written evidence satisfactory to the Administrative Agent (which
may include telecopy or e-mail transmission of a signed signature page of this
Amendment) that such party has signed counterparts of this
Amendment.
8
(b) the
Administrative Agent shall have received fully executed counterparts of (i) new
Notes payable to the order of the Lenders evidencing the Revolving Loans and
(ii) a Guaranty executed by Christopher J. Pappas and Harris J. Pappas in form
and substance satisfactory to the Lenders and (iii) Security Documents executed
by Christopher J. Pappas and Harris J. Pappas in form and substance satisfactory
to the Lenders, creating and perfecting security interests in and to cash held
in deposit accounts maintained at the respective Lenders (pro rata in accordance
with their respective Commitments) in an aggregate amount equal to the principal
amount guaranteed pursuant to the Guaranty referred to above;
(c) the
Administrative Agent shall have received such documents, certificates and
opinions as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Company and the
authorization of the execution and delivery of this Amendment, the new Notes
referred to above, the Guaranties referred to above and the Security Documents
referred to above, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel (provided that delivery of an opinion
regarding the documentation executed by Christopher J. Pappas and Harris J.
Pappas shall not be required until August 9, 2010).
(d) Christopher
J. Pappas and Harris J. Pappas shall have delivered cash collateral to the
Lenders (and shall execute all applicable related Loan Documents) in order to
comply with the provisions of Section 5.15 of the Guaranty dated as of July 26,
2010 executed by Christopher J. Pappas and Harris J. Pappas in favor of the
Administrative Agent.
(e) the
acquisition contemplated by the Fuddruckers Purchase Agreement shall have been,
or substantially simultaneously with the closing of the transactions
contemplated herein shall be, consummated in accordance with the Fuddruckers
Purchase Agreement and applicable law, without any amendment to or waiver of any
terms or conditions of the Fuddruckers Purchase Agreement not approved by the
Administrative Agent (such approval not to be unreasonably withheld or delayed),
and the Administrative Agent shall have received copies of the material
documents evidencing the closing of the transactions contemplated by the
Fuddruckers Purchase Agreement and all material due diligence materials relating
to such transactions, which documents shall be in form and substance
satisfactory to the Administrative Agent.
(f) the
Administrative Agent shall have received, for the pro rata benefit of the
Lenders, the balance of the amendment fee in an amount equal to the product of
0.50% times the aggregate of the Commitments of such Lenders executing this
Amendment (after giving effect to the increase of the Commitments set forth
herein) (one-half of such amendment fee having been previously
paid).
SECTION
3. Ratification. Except
as expressly amended by this Amendment, the Credit Agreement and the other Loan
Documents shall remain in full force and effect. None of the rights,
title and interests existing and to exist under the Credit Agreement are hereby
released, diminished or impaired, and the Company hereby reaffirms all
covenants, representations and warranties in the Credit Agreement.
SECTION
4. Expenses. The
Company shall pay to the Administrative Agent all reasonable fees and expenses
of its legal counsel incurred in connection with the execution of this
Amendment.
9
SECTION
5. Certifications. The
Company hereby certifies that (a) no material adverse change in the assets,
liabilities, financial condition, business or affairs of the Company has
occurred and (b) subject to the waiver set forth herein, no Default or Event of
Default has occurred and is continuing or will occur as a result of this
Amendment.
SECTION
6. Miscellaneous. This
Amendment (a) shall be binding upon and inure to the benefit of the Company, the
Lenders and the Administrative Agent and their respective successors, assigns,
receivers and trustees; (b) may be modified or amended only by a writing signed
by the required parties; (c) shall be governed by and construed in accordance
with the laws of the State of Texas and the United States of America; (d) may be
executed in several counterparts by the parties hereto on separate counterparts,
and each counterpart, when so executed and delivered, shall constitute an
original agreement, and all such separate counterparts shall constitute but one
and the same agreement and (e) together with the other Loan Documents, embodies
the entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior agreements, consents and
understandings relating to such subject matter. The headings herein
shall be accorded no significance in interpreting this Amendment.
NOTICE
PURSUANT TO TEX. BUS. & COMM. CODE §26.02
THE
CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND ALL OTHER LOAN DOCUMENTS
EXECUTED BY ANY OF THE PARTIES PRIOR HERETO OR SUBSTANTIALLY CONCURRENTLY
HEREWITH CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Signature
Pages Follow]
10
IN
WITNESS WHEREOF, the Company, the Lenders and the Administrative Agent have
caused this Amendment to be signed by their respective duly authorized officers,
effective as of the date first above written.
LUBY’S,
INC.,
|
|
a
Delaware corporation
|
|
By:
|
/s/ Christopher J.
Pappas
|
Christopher J. Pappas,
|
|
President
and Chief Executive Officer
|
The
undersigned Subsidiaries of the Borrower hereby join in this Amendment to
evidence their consent to execution by Borrower of this Amendment, to confirm
that each Loan Document now or previously executed by the undersigned applies
and shall continue to apply to this Amendment, and to acknowledge that without
such consent and confirmation, Lenders would not execute this
Amendment.
LUBY’S HOLDINGS,
INC.,
|
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a
Delaware corporation,
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LUBY’S LIMITED PARTNER,
INC.,
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a
Delaware corporation,
|
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LUBCO,
INC.,
|
|
a
Delaware corporation,
|
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LUBY’S MANAGEMENT,
INC.,
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a
Delaware corporation,
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LUBY’S BEVCO,
INC.,
|
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a
Texas corporation, and
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LUBY’S
FUDDRUCKERS RESTAURANTS,
LLC, a Texas limited
liability company
|
|
By:
|
/s/ Christopher J.
Pappas
|
Christopher
J. Pappas,
|
|
President
and Chief Executive Officer
|
[signature
page to Second Amendment to Credit Agreement]
WELLS
FARGO BANK, NATIONAL
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ASSOCIATION,
individually and as
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Administrative
Agent
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By:
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/s/ Ben McCaslin
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Name:
Ben McCaslin
|
|
Title:
Vice President
|
[signature
page to Second Amendment to Credit Agreement]
AMEGY
BANK, NATIONAL ASSOCIATION
|
|
By:
|
/s/ Melinda N.
Jackson
|
Name:
Melinda N. Jackson
|
|
Title:
Senior Vice President
|
[signature
page to Second Amendment to Credit Agreement]
SCHEDULE
2.01
Lender
|
Commitments
|
|||
Wells
Fargo Bank, National Association
|
$ | 26,500,000 | ||
Amegy
Bank National Association
|
$ | 26,500,000 |