EXHIBIT 10.1.3
THIRD AMENDMENT
TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), is made and
entered into as of this 31st day of January, 2005, with an effective date as set
forth in Section 3 hereof, by and among XXXX IN THE BOX INC., a corporation
organized under the laws of Delaware (the "Borrower"), those certain
subsidiaries of the Borrower party to the Guaranty Agreement referred to below
(the "Guarantors"), the Lenders party to the Credit Agreement referred to below
(the "Lenders") pursuant to the authorization (in the form attached hereto as
Annex A, the "Authorization"), WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent for the Lenders (the "Administrative Agent"), FLEET
NATIONAL BANK and US BANK, NATIONAL ASSOCIATION, each in its capacity as a
Syndication Agent (collectively, the "Syndication Agents"), COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL," NEW YORK
BRANCH and BNP PARIBAS, each in its capacity as a Documentation Agent
(collectively, the "Documentation Agents"). WACHOVIA CAPITAL MARKETS, LLC acted
as Lead Arranger in connection with this Amendment.
Statement of Purpose
The Lenders agreed to extend certain credit facilities to the Borrower
pursuant to the Amended and Restated Credit Agreement dated as of January 8,
2004 by and among the Borrower, the Lenders, the Administrative Agent, the
Syndication Agents and the Documentation Agents (as previously amended by that
First Amendment to Credit Agreement dated June 18, 2004, and as further amended
by that Second Amendment and Consent to Credit Agreement dated September 24,
2004, as further amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"). In connection therewith, certain of the
Subsidiaries of the Borrower reaffirmed their respective obligations under the
Guaranty Agreement dated as of January 22, 2003 in favor of the Administrative
Agent for the ratable benefit of itself and the other Lenders (as reaffirmed and
amended by the Reaffirmation and Master Amendment dated as of January 8, 2004
and as further amended, restated, supplemented or otherwise modified from time
to time, the "Guaranty Agreement").
The parties now desire to amend or modify certain provisions of the Credit
Agreement in certain respects on the terms and conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. All capitalized undefined terms used in this
Amendment shall have the meanings assigned thereto in the Credit Agreement.
2. Amendments to the Credit Agreement. The Credit Agreement is hereby
modified as follows:
(a) Amendment to Existing Definition. The definition of the following
defined term which is set forth in Section 1.1 of the Credit Agreement is hereby
amended in its entirety as follows:
"Applicable Margin" means the applicable margin with respect to the
Loans as set forth in Section 5.l(c).
(b) Amendment to Section 5.1(c). Section 5.1(c)(ii) of the Credit
Agreement is hereby amended in its entirety as follows:
"(ii) The Applicable Margin with respect to the Term Loan shall
be 0.50% with respect to Base Rate Loans and 1.75% with respect to LIBOR
Rate Loans."
3. Effectiveness. This Amendment shall become effective on the date that
each of the following conditions has been satisfied:
(a) Amendment Documents. The Administrative Agent shall have
received (1) a duly executed counterpart of this Amendment from the
Administrative Agent, the Borrower and each Guarantor and (2) an
Authorization from each Lender that has made a Term Loan.
(b) Fees and Expenses. The Administrative Agent shall have been
reimbursed for all fees and out-of-pocket charges and other expenses
incurred in connection with this Amendment, including, without limitation,
the fees and expenses referred to in Section 7 of this Amendment, the
Credit Agreement and the transactions contemplated thereby.
(c) Other Documents. The Administrative Agent shall have received
any other documents or instruments reasonably requested by the
Administrative Agent in connection with the execution of this Amendment.
4. Acknowledgement of Guarantors; Reaffirmation of Security Documents.
(a) By their execution hereof, each Guarantor hereby expressly (i)
consents to the modifications and amendments set forth in this Amendment, (ii)
reaffirms all of its respective covenants, representations, warranties and other
obligations set forth in the Guaranty Agreement and the other Loan Documents to
which it is a party and (iii) acknowledges, represents and agrees that its
respective covenants, representations, warranties and other obligations set
forth in the Guaranty Agreement and the other Loan Documents to which it is a
party remain in full force and effect.
(b) The Borrower and each Guarantor hereby confirms that each of the
Security Documents to which it is a party shall continue to be in full force and
effect and is hereby ratified and reaffirmed in all respects as if fully
restated as of the date hereof by this Amendment. In furtherance of the
reaffirmations set forth in this Section 4, the Borrower and each Guarantor
hereby grants and assigns a security interest in all Collateral identified in
any Security Document as collateral security for the Obligations and the
Guaranteed Obligations (as defined in the Guaranty Agreement).
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5. Effect of Amendment. Except as expressly amended hereby, the Credit
Agreement and Loan Documents (including, without limitation, all amendments,
modifications or consents undertaken in connection therewith prior to the date
hereof) shall remain in full force and effect in accordance with their
respective terms. The amendments granted herein are specific and limited and
shall not constitute a modification, acceptance or waiver of any other provision
of or default under the Credit Agreement, the Loan Documents or any other
document or instrument entered into in connection therewith or a future
modification, acceptance or waiver of the provisions set forth herein.
6. Representations and Warranties/No Default.
(a) By its execution hereof, the Borrower and each Guarantor hereby
certifies that each of the representations and warranties set forth in the
Credit Agreement, the Guaranty Agreement and the other Loan Documents is true
and correct as of the date hereof as if fully set forth herein (except for any
representation and warranty made as of an earlier date, which representation and
warranty shall remain true and correct as of such earlier date) and that no
Default or Event of Default has occurred and is continuing as of the date
hereof.
(b) By its execution hereof, the Borrower and each Guarantor hereby
represents and warrants that the Borrower and each Guarantor thereof has the
right, power and authority and has taken all necessary corporate and other
action to authorize the execution, delivery and performance of this Amendment
and each other document executed in connection herewith to which it is a party
in accordance with their respective terms.
(c) This Amendment and each other document executed in connection herewith
has been duly executed and delivered by the duly authorized officers of the
Borrower and each Guarantor party hereto or thereto, and each such document
constitutes the legal, valid and binding obligation of the Borrower and each
Guarantor party hereto or thereto, enforceable in accordance with its terms
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state or federal debtor relief laws from
time to time in effect which affect the enforcement of creditors' rights in
general and the availability of equitable remedies.
7. Fees and Expenses. The Borrower shall pay all reasonable out-of-pocket
fees and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent.
8. Governing Law. This Amendment shall be governed by, construed and
enforced in accordance with, the laws of the State of New York (including
Section 5-1401 and Section 5-1402 of the General Obligations Law of the State
of New York), without regard to the conflicts of law provisions of such state.
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9. Counterparts. This Amendment may be executed in separate counterparts,
each of which when executed and delivered is an original but all of which taken
together constitute one and the same instrument.
10. Facsimile Transmission. A facsimile, telecopy or other reproduction of
this Amendment may be executed by one or more parties hereto, and an executed
copy of this Amendment may be delivered by one or more parties hereto by
facsimile or similar instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Amendment as well as any facsimile, telecopy or
other reproduction hereof.
[Signature Pages To Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date and year first above written.
BORROWER:
XXXX IN THE BOX INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President Treasurer
GUARANTORS:
XXXX IN THE BOX EASTERN DIVISION
L.P.
By: JBX General Partner LLC, its General
Partner
By: Xxxx in the Box Inc., its Sole and
Managing Member
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President Treasurer
JBX GENERAL PARTNER LLC
By: Xxxx in the Box Inc., its Sole and
Managing Member
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President Treasurer
JBX LIMITED PARTNER LLC
By: Xxxx in the Box Inc., its Sole and
Managing Member
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President Treasurer
[Signature Pages Continue]
[Third Amendment - Xxxx in the Box Inc.]
QDOBA RESTAURANT CORPORATION
By: /s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: PRESIDENT & CEO
STORED VALUE CARD, INC.
By: /s/ Xxxxx X. Rebel
--------------------
Name: Xxxxx X. Rebel
Title: President
[Signatures Continued on the Following Page]
[Third Amendment - Xxxx in the Box Inc.]
ADMINISTRATIVE AGENT AND LENDERS:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent,
as Lender and at the request of the other
Lenders party to the Credit Agreement
pursuant to the Authorization
By: /s/ Xxxxxxx X. Xxxxxx III
--------------------------
Name: Xxxxxxx X. Xxxxxx III
Title: Vice President
[Third Amendment - Xxxx in the Box, Inc.]
ANNEX A
FORM OF LENDER AUTHORIZATION
AUTHORIZATION
January__, 2005
Wachovia Bank, National Association,
as Administrative Agent
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Syndication Agency Services
Re: Third Amendment dated as of January 31, 2005 (the "Third Amendment") to
the Amended and Restated Credit Agreement dated as of January 8, 2004 (as
amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement") by and among Xxxx in the Box Inc., as borrower
(the "Borrower"), the subsidiaries of the Borrower party thereto, as
guarantors (the "Guarantors"), the banks and financial institutions party
thereto, as lenders (the "Lenders") and Wachovia Bank, National
Association, as administrative agent (the "Administrative Agent")
This letter acknowledges our receipt and review of the Third Amendment in
the form posted on the Xxxx in the Box Intralinks workspace. By executing this
letter, we hereby authorize the Administrative Agent to execute and deliver the
Third Amendment on our behalf.
Each financial institution executing this Authorization agrees or
reaffirms that it shall be a party to the Credit Agreement and the other Loan
Documents (as defined in the Credit Agreement) to which Lenders are parties and
shall have the rights and obligations of a Lender under each such agreement. In
furtherance of the foregoing, each financial institution executing this
Authorization agrees to execute any additional documents reasonably requested by
the Administrative Agent to evidence such financial institution's rights and
obligations under the Credit Agreement.
_________________________________________________
[Insert name of applicable financial institution]
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
