Exhibit 10.1


 


EXECUTION VERSION


 


FIFTH AMENDMENT TO CREDIT AGREEMENT


 


THIS FIFTH AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”) is entered into as of May 21, 2021 among CRACKER BARREL OLD COUNTRY STORE, INC., a Tennessee
corporation (the “Borrower”), the Guarantors party hereto, the Lenders party hereto and BANK OF AMERICA, N.A., as Administrative
Agent and Collateral Agent. All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms
in the Credit Agreement (as defined below and amended hereby).


 


RECITALS


 


WHEREAS, the Borrower, the
Guarantors party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and Collateral
Agent, have entered into that certain Credit Agreement dated as of September 5, 2018 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”); and


 


WHEREAS, the Borrower has
requested that the Lenders amend the Credit Agreement as set forth below, upon and subject to the terms and conditions specified in this
Amendment.


 


NOW, THEREFORE, in consideration
of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:


 


1.             Amendments. Subject to the terms and conditions set forth herein, the Credit Agreement is hereby amended as follows:


 


(a)           The definition of “Specified Dividend” in Section 1.01 of the Credit Agreement is hereby deleted in its entirety.


 


(b)          The
following new definition is hereby added to Section 1.01 of the Credit Agreement in the appropriate alphabetical order to read as follows:


 


“Rescindable
Amount” has the meaning specified in Section 2.11(e).


 


(c)           The
following sentence is hereby added at the end of Section 2.11(e) of the Credit Agreement to read as follows:


 


Furthermore, with
respect to any payment that the Administrative Agent makes for the account of the Lenders or the Issuing Banks hereunder as to which
the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies
(such payment referred to as the “Rescindable Amount”): (1) the Borrower has not in fact made such payment;
(2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not then owed); or (3) the
Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such
Lender or such Issuing Bank, in immediately available funds with interest thereon, for each day from and including the date such amount
is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.


 






    


     


    

 


(d)           Section
5.02(g)(iii) of the Credit Agreement is hereby amended to read as follows:


 


(iii)       so
long as any such dividend, purchase, redemption, retirement or acquisition occurs subsequent to August 1, 2021 (it being understood that
a dividend may be declared but not paid on or prior to such date), and so long as immediately after giving effect thereto, the sum of
(A) availability under the Revolving A Credit Facility plus (B) unrestricted cash and Cash Equivalents on hand of the Loan Parties
(the sum of such amounts in clauses (A) and (B) being referred to as “Cash Availability”) equals or exceeds
$100,000,000, the Borrower may declare and pay cash dividends to its stockholders and purchase, redeem, retire or otherwise acquire shares
of its own outstanding capital stock (x) in an unlimited amount if at the time such dividend, purchase or redemption is made and after
giving effect thereto, the Borrower’s Consolidated Total Leverage Ratio is 3.00 to 1.00 or less and (y) in an aggregate amount not
to exceed $100,000,000 in any Fiscal Year if at the time such dividend, purchase or redemption is made and after giving effect thereto,
the Borrower’s Consolidated Total Leverage Ratio is greater than 3.00 to 1.00; provided that, notwithstanding the foregoing
clauses (x) and (y), so long as immediately after giving effect to the payment of any such dividends, Cash Availability equals or exceeds
$100,000,000, the Borrower may declare and pay cash dividends to its stockholders in an aggregate amount not to exceed in any Fiscal Year
the product of (i) the aggregate amount of dividends permitted hereunder that were declared by the Borrower in the fourth quarter of the
immediately preceding Fiscal Year multiplied by (ii) four (4); provided, further, that, notwithstanding the foregoing,
the aggregate amount of all such dividends, purchases, redemptions, retirements and acquisitions paid during the period commencing August
1, 2021 and ending October 29, 2021 shall not exceed $35,000,000;


 


(e)           A new Section 7.12 is hereby added to the Credit Agreement to read as follows:


 


SECTION 7.12 Recovery
of Payments. Without limitation of any other provision in this Agreement, if at any time the Administrative Agent makes a payment
hereunder in error to any Lender or any Issuing Bank (the “Credit Party”), whether or not in respect of an Obligation
due and owing by the Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Credit Party receiving
a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such
Credit Party in immediately available funds in the currency so received, with interest thereon, for each day from and including the date
such Rescindable Amount is received by it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Each
Credit Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise
claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation
to return any Rescindable Amount.  The Administrative Agent shall inform each Credit Party promptly upon determining that any payment
made to such Credit Party comprised, in whole or in part, a Rescindable Amount.


 






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2.             Conditions Precedent. This Amendment shall be effective upon satisfaction of the following conditions precedent:


 


(a)          receipt
by the Administrative Agent of counterparts of this Amendment duly executed by (i) an authorized officer acceptable to the Administrative
Agent of each Loan Party, (ii) the Required Lenders and (iii) the Administrative Agent; and


 


(b)           the
Borrower shall have paid all reasonable costs and expenses of the Administrative Agent (including reasonable and documented fees and expenses
of its legal counsel) in connection with this Amendment to the extent invoiced prior to or on the date hereof (paid directly to such counsel
if requested by the Administrative Agent), without prejudice to a final settling of accounts between the Administrative Agent and the
Borrower.


 


3.             Miscellaneous.


 


(a)           The
Credit Agreement (as amended hereby) and the obligations of the Loan Parties thereunder and under the other Loan Documents are hereby
ratified and confirmed and shall remain in full force and effect according to their terms. This Amendment shall not be deemed or construed
to be a satisfaction, reinstatement, novation or release of any Loan Document or a waiver by the Administrative Agent or any Lender of
any rights and remedies under the Loan Documents, at law or in equity.


 


(b)         Each
Guarantor (i) acknowledges and consents to all of the terms and conditions of this Amendment, (ii) affirms all of its obligations under
the Loan Documents, and (iii) agrees that this Amendment and all documents executed in connection herewith do not operate to reduce or
discharge its obligations under the Credit Agreement or the other Loan Documents.


 


(c)           The
Borrower and the Guarantors hereby represent and warrant to the Administrative Agent and the Lenders as follows:


 


(i)         Each
Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this
Amendment. This Amendment and the execution and performance hereof by the Loan Parties do not conflict with any Loan Party’s organizational
documents or any law, agreement or obligation by which any Loan Party is bound.


 


(ii)       This
Amendment has been duly executed and delivered by each Loan Party and constitutes a legal, valid and binding obligation of each Loan Party,
enforceable against each such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and subject to general principles of equity.


 


(iii)        No
approval, consent, exemption, authorization or other action by, or notice to, or filing with, any Governmental Authority or any other
Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of
this Amendment.


 






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(d)           The
Loan Parties represent and warrant to the Administrative Agent and the Lenders that (i) after giving effect to this Amendment, the
representations and warranties contained in each Loan Document are true and correct in all material respects (or, in the case of any
representation or warranty that is qualified by materiality or Material Adverse Effect, such representation or warranty is true and
correct in all respects) on and as of the date hereof as though made on and as of the date hereof, other than any such
representations or warranties that, by their express terms, refer to a specific earlier date, in which case as of such specific
date, and (ii) no event has occurred and is continuing which constitutes a Default or an Event of Default.


 


(e)          This
Amendment shall constitute a Loan Document for all purposes. This Amendment may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or other electronic imaging means
(e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. This
Amendment constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous
agreements and understandings, oral or written, relating to the subject matter hereof. This Amendment will inure to the benefit of and
bind the respective successors and permitted assigns of the parties hereto.


 


(f)          THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. THE TERMS OF SECTIONS 9.05 AND 9.06 OF THE CREDIT AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE, MUTATIS
MUTANDIS.


 


[SIGNATURE PAGES FOLLOW]


 






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IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be duly executed as of the date first above written.


 


	BORROWER:	CRACKER BARREL OLD COUNTRY STORE, INC.,
	 	 a Tennessee corporation
	 	 	 
	 	By: 	/s/ Richard M. Wolfson
	 	 	Name:	Richard M. Wolfson
	 	 	Title:	Senior Vice President, General Counsel and Secretary
	 	 	 
	GUARANTORS:	CBOCS SUPPLY, INC.,
	 	 a Tennessee corporation
	 	 	 
	 	By: 	/s/ Richard M. Wolfson
	 	 	Name:	Richard M. Wolfson
	 	 	Title:	Secretary
	 	 	 
	 	 CBOCS WEST, INC.,
	 	 a Nevada corporation
	 	 	 
	 	By: 	/s/ Richard M. Wolfson
	 	 	Name:	Richard M. Wolfson
	 	 	Title:	Secretary
	 	 	 
	 	 CB MUSIC LLC,
	 	 a Tennessee limited liability company
	 	 	 
	 	By: 	/s/ Richard M. Wolfson
	 	 	Name:	Richard M. Wolfson
	 	 	Title:	Secretary
	 	 	 
	 	 CB EATERTAINMENT, INC.,
	 	 a Delaware corporation
	 	 	 
	 	By:	 /s/ Richard M. Wolfson
	 	 	Name:	Richard M. Wolfson
	 	 	Title:	Vice President, General Counsel and Secretary



 





CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 


 






    


     


    

 


	 	CBOCS PENNSYLVANIA, LLC,
	 	a Pennsylvania limited liability company
	 	 	 
	 	By: 	/s/ Richard M. Wolfson
	 	 	Name:	Richard M. Wolfson
	 	 	Title:	Secretary
	 	 	 
	 	CBOCS DISTRIBUTION, INC.,
	 	a Tennessee corporation
	 	 	 
	 	By: 	/s/ Jeffrey M. Wilson
	 	 	Name:	Jeffrey M. Wilson
	 	 	Title:	Treasurer
	 	 	 
	 	ROCKING CHAIR, INC.,
	 	a Nevada corporation
	 	 	 
	 	By: 	/s/ Donna Roberts
	 	 	Name:	Donna Roberts
	 	 	Title:	Assistant Secretary
	 	 	 
	 	CBOCS TEXAS, LLC,
	 	a Tennessee limited liability company
	 	 	 
	 	By: 	/s/ Jeffrey M. Wilson
	 	 	Name:	Jeffrey M. Wilson
	 	 	Title:	President and Treasurer
	 	 	 
	 	CBOCS PROPERTIES, INC.,
	 	a Michigan corporation
	 	 	 
	 	By: 	/s/ S. Victoria Harvey
	 	 	Name:	S. Victoria Harvey
	 	 	Title: 	President



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 


 






    


     


    





 


	ADMINISTRATIVE AGENT	 
	AND COLLATERAL AGENT:	bank of america, n.a.,
		as Administrative Agent and Collateral Agent
	 	 
		By:	/s/ Linda Mackey
		 	Name:       Linda Mackey
		 	Title:         Vice President



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 



 



     


     


    




 


	LENDERS:	BANK OF AMERICA, N.A.,
		as an Issuing Bank, Swing Line Bank and a Lender
	 	 
		By:	 /s/ Robert J. Beckley
		 	Name:       Robert J. Beckley
		 	Title:         Senior Vice President



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 


 




     


     


    

 


	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as an Issuing Bank and a Lender
	 	 
	 	By:	 /s/ Darcy McLaren
	 	 	Name:       Darcy McLaren
	 	 	Title:         Director



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 


 




     


     


    




 


	 	Coöperatieve Rabobank U.A., New York Branch, as a Lender
	 	 
	 	By: 	/s/ Sarah Fleet
	 	 	Name:       Sarah Fleet
	 	 	Title:         Executive Director
	 	 
	 	Coöperatieve Rabobank U.A., New York Branch, as a Lender
	 	 
	 	By: 	/s/ Jennifer Smith
	 	 	Name:       Jennifer Smith
	 	 	Title:         Executive Director



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 


 




     


     


    

 


	 	REGIONS BANK, as a Lender
	 	 
	 	By: 	/s/ Whit Steers
	 	 	Name:       Whit Steers
	 	 	Title:         Vice President



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 


 




     


     


    




 


	 	TRUIST BANK, as a Lender
	 	 
	 	By:	 /s/ J. Matthew Rowand
	 	 	Name:       J. Matthew Rowand
	 	 	Title:         Director



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 


 




     


     


    

 


	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender
	 	 
	 	By: 	/s/ Steven L. Sawyer
	 	 	Name:       Steven L. Sawyer
	 	 	Title:         Senior Vice President



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 


 




     


     


    

 





	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender
	 	 
	 	By:	 /s/ Tracey Silverman
	 	 	Name:       Tracey Silverman
	 	 	Title:         Sr. Vice President



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 


 






     


     


    




 


	 	FIRST HORIZON BANK, as a Lender
	 	 
	 	By:	 /s/ Brian Reeves
	 	 	Name:       Brian Reeves
	 	 	Title:         Senior Vice President



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 



 



     


     


    




 


	 	SYNOVUS BANK, as a Lender
	 	 
	 	By: 	/s/ Chandra Cockrell
	 	 	Name:       Chandra Cockrell
	 	 	Title:         Relationship Manager



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement 



 






     


     


    

 


	 	PINNACLE BANK, as a Lender
	 	 
	 	By:	 /s/ William H. Diehl
	 	 	Name:       William H. Diehl
	 	 	Title:         Senior Vice President



 


CRACKER
BARREL OLD COUNTRY STORE, INC.


FIFTH AMENDMENT
TO Credit agreement