FOURTH LOAN MODIFICATION AGREEMENT

 

                                                                   EXHIBIT 10.39

                       FOURTH LOAN MODIFICATION AGREEMENT

               THIS FOURTH LOAN MODIFICATION AGREEMENT ("Amendment") is entered
into as of the 15th day of March, 2001 by and between BIG BUCK BREWERY &
STEAKHOUSE, INC., a Michigan corporation, f/k/a Michigan Brewery, Inc.
("Borrower"), and WAYNE COUNTY EMPLOYEES' RETIREMENT SYSTEM, a body politic of
the State of Michigan ("Lender").

                                    RECITALS:

               WHEREAS, on or about February 4, 2000, Lender (i) acquired
certain loans to Borrower from Bank One, Michigan ("BANK ONE"), formerly known
as NBD Bank, a Michigan banking corporation (collectively, the "BANK ONE
LOANS"), (ii) restructured and consolidated the Bank One Loans ("RESTRUCTURED
LOAN"), and (iii) made an additional $5,876,114.74 loan to Borrower ("NEW
LOAN").

        WHEREAS, the Restructured Loan is evidenced by that certain Amended,
Restated and Consolidated Convertible Note dated February 4, 2000 in the
principal amount of $1,623,885.26 given by Borrower in favor of Lender
("CONSOLIDATED NOTE").

        WHEREAS, the New Loan is evidenced by that certain 10% Convertible
Secured Promissory Note Due February 2003 dated February 4, 2000 in the
principal amount of $5,876,114.74 given by Borrower in favor of Lender
("CONVERTIBLE NOTE").

        WHEREAS, on or about August 21, 2000, Lender made an additional loan to
Borrower in the principal amount of $1,500,000 ("Texas Loan"), which Texas Loan
was evidenced by a Promissory Note in the principal amount of $1,500,000 dated
August 21, 2000 given by Borrower in favor of Lender ("Texas Note"; and the
Consolidated Note, the Convertible Note and the Texas Note, as amended are
hereinafter collectively referred to as the "NOTES"), and in connection
therewith entered into a Loan Modification Agreement and various other loan and
security documents executed in connection therewith (collectively, the "FIRST
MODIFICATION DOCUMENTS").

        WHEREAS, on or about October 20, 2000 but effective as of
October 1, 2000, Borrower and Lender entered into that certain Second Loan
Modification Agreement pursuant to which, among other things, Lender agreed to
extend the term of the Consolidated Note until October 1, 2002, and Borrower
executed and delivered an Allonge to the Consolidated Note and various other
loan and security documents executed in connection therewith (collectively, the
"SECOND MODIFICATION DOCUMENTS").

        WHEREAS, on or about February 20, 2001 Borrower and Lender entered into
that certain Third Loan Modification Agreement pursuant to which Lender agreed
to extend the term of the (i) Consolidated Note to February 1, 2003 and
(ii) Texas Note to no later than February 1, 2003, and, in connection therewith,
Borrower executed and delivered a Second Allonge to the Consolidated Note
("SECOND ALLONGE") and an Allonge to the Texas Note ("TEXAS ALLONGE") and
various other loan and security documents executed in connection therewith
(collectively, the "THIRD MODIFICATION DOCUMENTS").



        WHEREAS, the Notes are secured or evidenced by:

          (i)    Mortgage (Future Advance) dated April 25, 1995 given by
                 Borrower to Bank One, as recorded in Liber 586, Page 112,
                 Otsego County Records, as amended by Amendment dated
                 July 28, 1995, as recorded in Liber 591, Page 139, Otsego
                 County Records, as assigned to Lender by Assignment of Mortgage
                 dated February 4, 2000, as recorded in Liber 749, Page 302,
                 Otsego County Records, as amended by that certain Second
                 Amendment to Mortgage dated February 4, 2000, as recorded in
                 Liber 749, Page 309, Otsego County Records, as further amended
                 by that certain Third Amendment to Mortgage dated
                 August 21, 2000, as recorded in Liber 772, Page 001, Otsego
                 County Records and as further amended by that certain Fourth
                 Amendment to Mortgage dated as of October 20, 2000 but
                 effective as of October 1, 2000, as recorded in Liber 0777,
                 Page 844 Otsego County Records (as amended, the "GAYLORD
                 MORTGAGE"), which Gaylord Mortgage encumbers certain real
                 property owned by Borrower in the City of Gaylord, Otsego
                 County, Michigan ("GAYLORD PROPERTY");

          (ii)   Mortgage dated February 4, 2000, given by Borrower in favor of
                 Lender as recorded in Liber 21160, Page 389, Oakland County
                 Records, as amended by that certain First Amendment to Mortgage
                 dated effective as of August 21, 2000 as recorded in Liber
                 21788, Page 775, Oakland County Records and as further amended
                 by that certain Second Amendment to Mortgage dated
                 October 20, 2000 but effective as of October 1, 2000 as
                 recorded in Liber 21952, Page 742, Oakland County Records (as
                 amended, "LEASEHOLD MORTGAGE", encumbering Borrower's leasehold
                 interest in certain real property located in the City of Auburn
                 Hills, Oakland County, Michigan ("AUBURN HILLS PROPERTY");

          (iii)  Common Stock Purchase Warrant dated February 4, 2000 executed
                 by the Borrower;

          (iv)   Subscription and Investment Representation Agreement for 10%
                 Convertible Secured Promissory Note due February 2003 by and
                 between Lender and Borrower;

          (v)    Security Agreement dated February 4, 2000 executed by Lender
                 and Borrower;

          (vi)   Limited Partnership Interest Pledge and Security Agreement
                 dated February 4, 2000 executed by Lender and Borrower;

          (vii)  Stock Pledge and Security Agreement dated February 4, 2000
                 executed by Lender and Borrower;

          (viii) an Assignment of Real Estate Leases and Rents dated
                 July 28, 1995, recorded in Liber 591, Page 144, Otsego County
                 Records given by Borrower in favor of Bank One, as assigned to
                 Lender by Assignment of Real Estate Leases and Rents dated
                 February 4, 2000, as recorded in Liber 0749, Page 305, Otsego
                 County Records and as amended (as amended, the "ASSIGNMENT");

          (ix)  Loan Agreement dated July 28, 1995 by and between Borrower and
                Bank One, as assigned to Lender;



          (x)   Assignment of Note dated as of August 21, 2000 by and between
                Borrower and Lender; and

          (xi)  UCC Financing Statements and other loan documents with respect
                to the Notes and the documents executed in connection with the
                Bank One Loan.

(All of the documents described in this recital as amended by the First
Modification Documents, the Second Modification Documents and the Third
Modification Documents are hereinafter collectively referred to as the "ORIGINAL
LOAN DOCUMENTS".)

        WHEREAS, Borrower requested, and Lender agreed, to permit Borrower to
obtain a Line of Credit in the amount of $1,000,000.00 from Crestmark Bank
("CRESTMARK LINE OF CREDIT").

        WHEREAS, as security for the Crestmark Line of Credit, Lender has agreed
to issue an unconditional and irrevocable Letter of Credit in favor of Crestmark
Bank ("CRESTMARK") for the account of Borrower in the amount of $1,000,000.00
expiring on April 1, 2002 ("LETTER OF CREDIT").

        WHEREAS, Borrower has agreed to use the proceeds of the Crestmark Line
of Credit to provide certain financing to Buck & Bass, L.P. ("BUCK & BASS"), an
affiliate of Borrower, to pay various construction liens incurred in connection
with the construction and fixturing of Buck & Bass' Grapevine, Texas restaurant
("GRAPEVINE PROPERTY"), as more particularly set forth on EXHIBIT A attached
hereto (collectively the "LIENS").

        WHEREAS, the obligations of Buck & Bass to the Borrower with respect to
the $1,000,000 loan to Buck & Bass to finance the payment of the Liens ("BIG
BUCK LOAN") shall be evidenced by a promissory note and security agreement in
the principal amount of $1,000,000 ("BUCK & BASS NOTE").

        WHEREAS, in connection with Lender supplying Borrower with a Letter of
Credit, the Borrower is executing and delivering to Lender this Agreement.

        NOW, THEREFORE, as consideration of the foregoing it is hereby agreed
that:

        1. RECITALS. The recitals set forth above are incorporated herein by
reference and shall form a part of this Agreement.

        2. MODIFICATIONS. Subject to all the terms and conditions set forth in
this Agreement, Lender is agreeing, INTER ALIA, to permit the Borrower to obtain
the Line of Credit from Crestmark and provide the Letter of Credit to Crestmark
Bank as security for the Crestmark Line of Credit.

(For convenience, the modification referred to in this Paragraph 2 is
hereinafter referred to as the "MODIFICATIONS".)

        3. BORROWERS ACKNOWLEDGEMENTS. As of March 15, 2001, there was (i)
$1,608,688.09 in principal owing under the Consolidated Note, (ii) $5,821,123.07
in principal owing under the Convertible Note and (iii) $1,500,000.00 in
principal owing under the Texas Note, plus accrued but unpaid interest, costs
and expenses and other obligations provided in the Loan Documents (all such
obligations of Borrower to Lender are hereinafter collectively referred to as
the "OBLIGATIONS"). The Obligations are due and owing Lender without setoff,
recoupment, defense, deduction, counterclaim, credit, allowance or adjustment,
whether in law or equity, of any kind or nature.



        4.  MODIFICATION OF DOCUMENTS.

            (a) AMENDMENT TO GAYLORD MORTGAGE. The Gaylord Mortgage and
Assignment shall be amended by a Fifth Amendment to Mortgage dated as the date
hereof to evidence the fact that the Gaylord Mortgage also secures the
Reimbursement Obligations (as herein defined) and to evidence the fact that the
Gaylord Mortgage also secures the Texas Note as amended by the Allonge and the
Consolidated Note as amended by the Second Allonge, in substantially the form of
EXHIBIT B attached hereto;

            (b) AMENDMENT TO LEASEHOLD MORTGAGE. The Leasehold Mortgage shall be
amended by a Third Amendment to Mortgage dated as of the date of this Agreement
to evidence the fact that the Leasehold Mortgage secures the Reimbursement
Obligations, and that the Gaylord Mortgage also secures the Texas Note as
amended by the Texas Allonge and the Consolidated Note as amended by the Second
Allonge, in substantially the form of EXHIBIT C attached hereto;

            (c) RATIFICATION OR ACKNOWLEDGEMENT OF GUARANTEES. William Rolinski,
(the "GUARANTOR") shall confirm his guaranty obligations with respect to the
Restructured Loan, Texas Loan and the Reimbursement Obligations by executing a
Ratification of Guaranty substantially the form of EXHIBIT D attached hereto;

            (d) ACKNOWLEDGEMENT. Buck & Bass, Borrower and Bass Pro Outdoor
World, L.L.C. shall execute and deliver to Lender an acknowledgement and
subordination of interest in the form of EXHIBIT E attached hereto.

            (e) ASSIGNMENT OF NOTE. Borrower shall execute and deliver an
assignment of Buck & Bass Note and endorse the Buck & Bass Note to Lender as
collateral security for the Notes, in substantially the form of EXHIBIT F
attached hereto.

            (f) MISCELLANEOUS. All such other documents and agreements
reasonably required by Lender to effectuate the provisions of this Agreement.

(For convenience, this Agreement and all other documents executed in connection
herewith are sometimes hereinafter collectively referred to as the "FOURTH
MODIFICATION DOCUMENTS"; and the Original Loan Documents and the Fourth
Modification Documents are sometimes hereinafter collectively referred to as the
"LOAN DOCUMENTS".)

        5.  REIMBURSEMENT OBLIGATIONS.

            (a) In the event the Letter of Credit shall be drawn upon by
Crestmark, Borrower shall immediately pay to Lender in the immediately available
U. S. funds at the principal office of Lender or as otherwise directed by Lender
the full amount of all funds paid to Crestmark under the Letter of Credit.

            (b) Borrower hereby agrees to pay and to indemnify, defend and hold
Lender harmless against all amounts, damages, liabilities, costs, expenses
and/or losses arising from or connected in any way with respect to, without
limitation, the following:

                (i)   Borrower's failure to pay and perform under this Amendment
                      and/or the other Loan Documents evidencing and securing
                      the Reimbursement Obligations;



                (ii)  Any drawing against the Letter of Credit by Crestmark
                      Bank;

                (iii) Any amounts advanced by Lender to protect and preserve the
                      Letter of Credit and/or any collateral securing the
                      Reimbursement Obligations and/or the issuance of the
                      Letter of Credit;

                (iv)  Any action taken by Lender to prevent any draw against the
                      Letter of Credit by Crestmark;

                (v)   Any breach of any representation or warranty contained in
                      this Amendment and the Loan Documents evidencing or
                      securing the Notes;

                (vi)  Any other event related to the Reimbursement Obligations
                      or the Letter of Credit;

            (c) All amounts due Lender hereunder shall be paid by Borrower when
due. In the event Borrower fails to timely make such payments, Borrower agrees
to pay interest and all amounts paid by and payable to Lender under this
Paragraph 5 at a rate per annum equal to the highest default rate permitted
under the Notes. All interest due under this Paragraph 5 shall accrue on the
basis of a 360-day year.

            (d) Borrower further indemnifies, defends and holds Lender harmless
from any losses, damages, liabilities, costs and expenses incurred by Lender in
enforcing Lender's rights under this Paragraph 5, including, without limitation,
reasonable attorneys' fees.

            (e) The obligations of Borrower under this Paragraph 5
(collectively, the "REIMBURSEMENT OBLIGATIONS") are absolute and unconditional,
subject to no condition precedent whatsoever and are subject to no off-set,
defense, claim or other diminution of value by reason of any claim or defense
Borrower may have against Lender now or in the future. Lender may release any or
all security for the obligations and liabilities securing the Reimbursement
Obligations, without in any way affecting or releasing the obligations or
liabilities of Borrower. Borrower waives demand, presentment, notice of dishonor
and protest. Borrower agrees Lender shall not be liable for any delay under this
Paragraph 5 nor shall Lender be liable under any obligation to take any action
with respect to any security interest granted to Lender in connection with the
Letter of Credit and/or this Paragraph 5, including, without limitation, any
obligation to file, record or re-file or re-record, and/or to maintain or
establish the validity, priority or enforceability of its rights into the
collateral.

            (f) Lender may receive and apply all payments received from Borrower
with respect to the reimbursement obligations against all obligations of
Borrower to Lender under any of the Loan Documents in any order of priority
selected by Lender.

            (g) All of the collateral securing the Obligations shall secure the
Reimbursement Obligations, and a default by Borrower with respect to the
Obligations shall be a default by Borrower with respect to the Reimbursement
Obligations, and a default by Borrower with respect to the Reimbursement
Obligations shall be a default by Borrower with respect to the Obligations.

        6.  REPRESENTATIONS, WARRANTIES, AGREEMENTS AND COVENANTS OF BORROWER.
The Borrower represents, warrants and covenants to Lender that:

            (a) Borrower is a corporation duly organized and validly existing
under the laws of the State of Michigan and is qualified to conduct its business
in Texas; and



            (b) Borrower has the full power and authority to execute and deliver
this Agreement and the Fourth Modification Documents, which has been duly
authorized by all necessary corporate action of Borrower. This Agreement is
valid, binding and enforceable in accordance with its terms.

            (c) Borrower for itself and on behalf of Buck & Bass represent that
the Liens are the only liens or potential liens with respect to the Grapevine
Property and all other construction and fixturing expenses have been paid in
full.

            (d) Borrower shall not, and shall not permit Buck & Bass to, without
the prior written consent of Lender, use any of the Crestmark Letter of Credit
proceeds or the Big Buck Loan for any purpose other than to pay the Liens set
forth in EXHIBIT A attached hereto.

            (e) Borrower agrees that it shall cause Buck & Bass to promptly
provide Lender with evidence of the payment of the Liens.

        7.  CONDITIONS PRECEDENT. It is a condition precedent of Lender to issue
its Letter of Credit that (i) it shall have approved all documents, in its sole
discretion, to be executed by the Borrower in connection with the Crestmark Line
of Credit and (ii) Buck & Bass shall have executed and delivered the Buck & Bass
Note.

        8.  COSTS, EXPENSES, AND FEES.

            (a) Borrower agrees to pay all Modification costs, fees and expenses
of Lender's attorney and all out of pocket costs of Lender.

            (b) Borrower will pay to Lender an annual fee in the amount of
$10,000.00 ("ISSUER FEE") in connection with Lender issuing the Letter of Credit
on behalf of Borrower. The Issuer Fee shall be deemed earned and payable upon
the execution of this Amendment.

        9.  DOCUMENTS CONTINUE. Except as expressly modified and amended by the
terms of this Amendment, all of the terms and conditions of the Loan Documents
remain in full force and effect and are hereby ratified, confirmed and approved.
If there is an express conflict between the terms of this Amendment and the
terms of the Loan Documents, the terms of this Amendment shall govern and
control.

        10. IMPAIRMENT OF COLLATERAL. The execution and delivery of this
amendment in no manner shall impair or affect any other security (by endorsement
or otherwise) for the Obligations. No security taken heretofore or hereafter
security for the Obligations or the Reimbursement Obligations shall impair in
any manner or affect this amendment. All present and future additional security
is to be considered as cumulative security.

        11. DEFAULT. A default under any of the terms of this Amendment shall be
a default under each of the Loan Documents and a default under any of the Loan
Documents shall be a default under this Amendment.

        12. MISCELLANEOUS.

            (a) This Amendment constitutes the entire understanding of the
parties with respect to the subject matter hereof and may be modified or amended
only by a writing signed by the parties to be charged.



            (b) This Amendment is governed by the internal laws of the State of
Michigan (without regard to conflicts of the law of principles).

            (c) This Amendment may be executed in counterparts, each of which
shall be deemed an original, but together they shall constitute one and the same
instrument, and facsimile copies of signatures shall be treated as original
signatures for all purposes.

            (d) This Amendment is binding on, and inure to the benefit of, the
parties hereto and their respective successors and assigns.

            (e) If any provision of this Amendment is in conflict with any
applicable statutes or rule of law or otherwise unenforceable, such offending
provision shall be null and void only to the extent of such conflict or
unenforceability, but shall be deemed separate from and shall not invalidate any
other provision of this Amendment.

                         [SIGNATURE BLOCK ON NEXT PAGE]



        IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first written above.

                                        BIG BUCK BREWERY & STEAKHOUSE,
                                        INC.,
                                        a Michigan corporation,
                                        (f/k/a Michigan Brewery, Inc.)

                                        By: /s/ William F. Rolinski
                                            -----------------------
                                        Print name: William F. Rolinski
                                             Its: President

                                                        "Borrower"

STATE OF MICHIGAN)
                        )SS
COUNTY OF_______________)

        On this ____ day of _____________, 2001, before me appeared
____________________ as the _______________ of Big Buck Brewery & Steakhouse,
Inc., a Michigan corporation, f/k/a Michigan Brewery, Inc., on behalf of the
corporation.

                                        Print name:_____________________________
                                        Notary Public, __________ County, ______
                                        My commission expires __________________

                                                          [SEAL]

             [SIGNATURE PAGE FOR FOURTH LOAN MODIFICATION AGREEMENT]



        IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first written above.

                                        WAYNE COUNTY EMPLOYEES'
                                        RETIREMENT SYSTEM,
                                        a body politic of the State of Michigan

                                        By: /s/ Ronald Yee
                                            --------------
                                        Print name: Ronald Yee
                                            Its: Director

                                                        "Lender"

STATE OF MICHIGAN)
                        )ss.
COUNTY OF WAYNE)

        The foregoing instrument was acknowledged before me this ____ day of
________________, 2001 by __________________, the _________________ of Wayne
County Employees' Retirement System, on behalf of the Lender.

                                        Print name:_____________________________
                                        Notary Public, __________ County, ______
                                        My commission expires __________________

                                                          [SEAL]

Exhibits:
      A   -   Construction Liens
      B   -   Fifth Amendment to Mortgage
      C   -   Third Amendment to Mortgage
      D   -   Ratification of Guarantee
      E   -   Acknowledgement
      F   -   Assignment of Note and Allonge

             [SIGNATURE PAGE FOR FOURTH LOAN MODIFICATION AGREEMENT] 

Basic Info X:

Name: FOURTH LOAN MODIFICATION AGREEMENT
Type: Fourth Loan Modification Agreement
Date: April 1, 2002
Company: BIG BUCK BREWERY & STEAKHOUSE INC
State: Michigan

Other info: