Exhibit 10.1.2
FIRST AMENDMENT
Dated as of August 24, 1998
This FIRST AMENDMENT (this "Amendment") is among FOODMAKER, INC., a
Delaware corporation (the "Borrower"), the financial institutions and other
entities party to the Credit Agreement referred to below (the "Lenders"), and
NATIONSBANK, N.A. (successor to NationsBank of Texas, N.A.), as L/C Bank (as
defined in the Credit Agreement) and as agent (the "Agent") for the Lenders and
the Issuing Banks thereunder.
PRELIMINARY STATEMENTS:
1. The Borrower, the Lenders, the Arranger, the Documentation Agent and
the Agent have entered into a Credit Agreement dated as of April 1, 1998 (the
"Credit Agreement"; capitalized terms used and not otherwise defined herein have
the meanings assigned to such terms in the Credit Agreement).
2. The Borrower has requested that the Lenders amend the Credit
Agreement (i) to permit the repurchase by the Borrower of capital stock of the
Borrower in advance of the time such repurchase would otherwise be permitted
under the terms of the Credit Agreement, and (ii) to delete the requirement that
Debt in respect of Hedge Agreements be subordinated to the rights of the Lender
Parties.
3. The Required Lenders are, on the terms and conditions stated below,
willing to grant the request of the Borrower.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Credit Agreement. Effective as of the date
hereof and subject to satisfaction of the conditions precedent set forth in
Section 2 hereof, the Credit Agreement is hereby amended as follows:
(a) Section 6.02(b)(i)(C) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(C) Debt in respect of Hedge Agreements entered into in order to manage
existing or anticipated interest rate or exchange rate risks and not for
speculative purposes in an aggregate notional amount not to exceed $50,000,000
at any time outstanding;"
(b) Section 6.02(g)(v) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(v) the Borrower may acquire capital stock of the Borrower, provided that
the aggregate purchase price for any such capital stock shall not exceed (1)
$20,000,000 in the aggregate from the Closing Date through October 3, 1999 and
(2) $10,000,000 in any fiscal year of the Borrower thereafter, and that, in any
such case, at the time of and immediately after any such acquisition, the
Borrower would not be in default hereunder."
SECTION 2. Conditions to Effectiveness. This Amendment shall not be
effective until each of the following conditions precedent shall have been
satisfied:
(a) the Agent shall have executed this Amendment and shall have received
counterparts of this Amendment executed by the Borrower and the Required Lenders
and counterparts of the Consent appended hereto (the "Consent") executed by each
of the Guarantors and Grantors (as defined in the Security Agreement) listed
therein (such Guarantors and Grantors, together with the Borrower, each a "Loan
Party" and, collectively, the "Loan Parties"); and
(b) each of the representations and warranties in Section 3 below shall
be true and correct.
SECTION 3. Representations and Warranties. The Borrower represents and
warrants as follows:
(a) Authority. The Borrower and each other Loan Party has the requisite
corporate power and authority to execute and deliver this Amendment and the
Consent, as applicable, and to perform its obligations hereunder and under the
Loan Documents (as modified hereby) to which it is a party. The execution,
delivery and performance by the Borrower of this Amendment and by each other
Loan Party of the Consent, and the performance by each Loan Party of each Loan
Document (as modified hereby) to which it is a party have been duly approved by
all necessary corporate action of such Loan Party and no other corporate
proceedings on the part of such Loan Party are necessary to consummate such
transactions.
(b) Enforceability. This Amendment has been duly executed and delivered
by the Borrower. The Consent has been duly executed and delivered by each
Guarantor and each Grantor. This Amendment and each Loan Document (as modified
hereby) is the legal, valid and binding obligation of each Loan Party party
hereto and thereto, enforceable against such Loan Party in accordance with its
terms, and is in full force and effect.
(c) Representations and Warranties. The representations and warranties
contained in each Loan Document (other than any such representations and
warranties that, by their terms, are specifically made as of a date other than
the date hereof) are true and correct on and as of the date hereof as though
made on and as of the date hereof.
(d) No Default. No event has occurred and is continuing that constitutes
a Default or Event of Default.
SECTION 4. Reference to and Effect on the Loan Documents. (a) Upon and
after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as modified hereby.
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(b) Except as specifically modified above, the Credit Agreement and the
other Loan Documents are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Collateral Documents and all of the Collateral
described therein do and shall continue to secure the payment of all Secured
Obligations under and as defined therein, in each case as amended hereby.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender, any Issuing Bank, the Arranger, the Documentation
Agent or the Agent under any of the Loan Documents, nor constitute a waiver or
amendment of any provision of any of the Loan Documents.
SECTION 5. Reference to and Effect on the Loan Documents. This Amendment
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement. Delivery of an executed counterpart of a signature
page to this Amendment or the Consent by telefacsimile shall be effective as
delivery of a manually executed counterpart of this Amendment or such Consent.
SECTION 6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of California.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first written above.
FOODMAKER, INC.,
a Delaware corporation
By: XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
NATIONSBANK, N.A. (successor to NationsBank of Texas, N.A.),
as Agent
By: XXXXXX X. XXXXXXX
-----------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
S-1
Lenders
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NATIONSBANK, N.A. (successor to NationsBank of Texas, N.A.)
By: XXXXXX X. XXXXXXX
-----------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CREDIT LYONNAIS LOS ANGELES BRANCH
By: XXXXXX X. XXXXX
---------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President and Manager
ROYAL BANK OF CANADA
By: XXXXX XXXXXXXXX
---------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Manager
UNION BANK OF CALIFORNIA, N.A.
By: XXX X. XXXXXX
-------------
Name: Xxx X. Xxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Assistant Relationship Manager
X-0
XXXX XXX, XXXXX, N.A.
By:
Name:
Title:
CIBC INC.
By: XXXXXX XXXXXXX
--------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
CIBC Xxxxxxxxxxx Corp., AS AGENT
THE FUJI BANK, LTD.,
LOS ANGELES AGENCY
By: XXXXXXXX XXXXXX
---------------
Name: Xxxxxxxx Xxxxxx
Title: Joint General Manager
SANWA BANK CALIFORNIA
By: X.X. XXXX
---------
Name: X.X. Xxxx
Title: Vice President
NATEXIS BANQUE - BFCE
By: XXXXXX XXXXXXX
--------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Treasurer
By: XXXXXX TOUFFU
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Name: Xxxxxx Touffu
Title: First VP and Regional Manager
S-3
CONSENT
Dated as of August 24, 1998
The undersigned, as Guarantors under the "Guaranty" and as Grantors under
the "Security Agreement" (as such terms are defined in and under the Credit
Agreement referred to in the foregoing First Amendment), each hereby consents
and agrees to the foregoing First Amendment and hereby confirms and agrees that
(i) the Guaranty and the Security Agreement are, and shall continue to be, in
full force and effect and are hereby ratified and confirmed in all respects
except that, upon the effectiveness of, and on and after the date of, said First
Amendment, each reference in the Guaranty and the Security Agreement to the
"Credit Agreement", "thereunder", "thereof" and words of like import referring
to the Credit Agreement, shall mean and be a reference to the Credit Agreement
as amended by said First Amendment, and (ii) the Security Agreement and all of
the Collateral described therein do, and shall continue to, secure the payment
of all of the Secured Obligations as defined in the Security Agreement.
CP DISTRIBUTION CO., a Delaware corporation,
CP WHOLESALE CO., a Delaware corporation, and
XXXX IN THE BOX, INC., a New Jersey corporation
By: XXXXXXXX X. XXXXXX
------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Executive Vice President and Secretary
FOODMAKER INTERNATIONAL
FRANCHISING, INC.,
a Delaware corporation
By: XXXXXX X. XXXXX
---------------
Xxxxxx X. Xxxxx
Treasurer
