Dated as of September 17, 1999
This THIRD 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
BANK OF AMERICA, N.A. (formerly known as Bank of America National Trust and
Savings Association, successor by merger to Bank of America, N.A., formerly
known as NationsBank, N.A., successor by merger 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, as amended by the First Amendment, dated as of August 24, 1998 and the
Second Amendment, dated as of February 27, 1999 (as so amended, 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 certain
provisions of the Credit Agreement to (i) decrease the amount of Permitted
Sale-Leaseback Transactions that may be undertaken by the Borrower and its
Subsidiaries, (ii) increase the amount of Capital Expenditures that may be made
by the Borrower and its Subsidiaries, (iii) increase the aggregate notional
amount of Debt in respect of Hedge Agreements that may be incurred by the
Borrower, (iv) permit the Borrower and its Subsidiaries to prepay certain Debt,
and (v) amend the definition of "Permitted Liens."
3. The Borrower has requested that the Lenders amend Section 5 of
the Waiver, dated as of May 27, 1999 (the "Waiver"), among the Borrower, the
Lenders, the L/C Bank and the Agent to remove the requirement that financing
statements, fixture filings and other instruments be filed or recorded in
connection with the change in the name of the Borrower.
4. 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 3 hereof, the Credit Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by
deleting in its entirety the table contained in the definition of "Permitted
Sale- Leaseback Transaction" and substituting in lieu thereof the following new
table:
Fiscal Year
Ending In Amount
----------- ------------
1999 $85,000,000
2000 $100,000,000
2001 $125,000,000
2002 $120,000,000
2003 $120,000,000
(b) The definition of "Permitted Liens" in Section 1.01 of the
Credit Agreement is hereby amended by (i) deleting the word "and" at the end of
clause (f) thereof, (ii) deleting the period at the end of clause (g) thereof
and substituting in lieu thereof a semi-colon, and (iii) inserting immediately
following clause (g) thereof the following new clause (h):
"Liens not otherwise constituting Permitted Liens so long as
neither the aggregate outstanding principal amount of the
obligations secured thereby, nor the aggregate fair market value
(determined, in the case of each such Lien, as of the date such
Lien in incurred) of the assets subject thereto exceeds (i) in
the aggregate, $3,000,000 at any time outstanding or (ii) with
respect to any transaction, $500,000 at any time outstanding."
(c) Section 6.02(b) of the Credit Agreement is hereby amended by
deleting the amount of $50,000,000 as it appears in the last line of clause
(i)(C) thereof and substituting in lieu thereof the amount of $75,000,000.
(d) Section 6.02(k) of the Credit Agreement is hereby amended by
deleting subclause (B) of clause (i) thereof in its entirety and substituting in
lieu thereof the following new subclause (B):
"(B) (x) regularly scheduled or required repayments or
redemptions of Surviving Debt, (y) the prepayment of the
Surviving Debt identified on Schedule 6.02(k), and (z) the
prepayment of Debt in respect of Capitalized Leases and other
Debt (whether or not outstanding on the date hereof) in an
aggregate principal amount not to exceed $20,000,000,"
(e) Section 6.04(d) of the Credit Agreement is hereby amended by
deleting in its entirety the table set forth at the end of such Section and
substituting in lieu thereof the following new table:
Fiscal Year Amount
----------- ------------
1999 $140,000,000
2000 $160,000,000
2001 $185,000,000
2002 $195,000,000
2003 $195,000,000
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(f) The Schedules to the Credit Agreement are hereby amended by
inserting in appropriate numerical sequence a new Schedule 6.02(k) in the form
of Exhibit A attached hereto.
SECTION 2. Amendments to Waiver. Effective as of the date hereof
and subject to satisfaction of the conditions precedent set forth in Section 3
hereof, the Waiver is hereby amended by deleting Section 5 thereof in its
entirety.
SECTION 3. 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");
(b) each of the representations and warranties in Section 4 below
shall be true and correct;
(c) with respect to the amendment to the Waiver only, each of the
conditions to the release of the Collateral set forth in Section 9.01(b) of the
Credit Agreement shall have been satisfied.
SECTION 4. 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.
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(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 5. 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.
(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 6. Counterparts. 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 facsimile shall be effective as delivery of a manually executed
counterpart of this Amendment or such Consent.
SECTION 7. 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 Third
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
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
BANK OF AMERICA, N.A.,
as Agent
By: Xxxxxxx X. Xxxxxxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Managing Director
Lenders
BANK OF AMERICA, N.A.
By: Xxxxxxx X. Xxxxxxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Managing Director
CREDIT LYONNAIS LOS ANGELES BRANCH
By: Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: 1st Vice President/Manager
ROYAL BANK OF CANADA
By:
----------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
----------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By: Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
BANK ONE, TEXAS, N.A.
By: Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Director
CIBC INC.
By: Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
CIBC World Markets Corp., as Agent
XXXXXX GUARANTY TRUST CO.
By: Xxxxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Vice President
SANWA BANK CALIFORNIA
By: X. X. Xxxx
----------------------------------
Name: X. X. Xxxx
Title: Vice President
NATEXIS BANQUE - BFCE
By: Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Group Manager - Corporate Finance
By: Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Group Manager - Entertainment Finance
CONSENT
Dated as of September 17, 1999
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 Third Amendment),
each hereby consents and agrees to the foregoing 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 Third 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 Third
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
EXHIBIT A
SCHEDULE 6.02(k)
SURVIVING DEBT PERMITTED TO BE PREPAID
Balance as of
Debt August 29, 1999
---------------------------------------------- ---------------
Secured notes, 11.5% interest, due in
monthly installments through May 1, 2005 $7,160,000
Secured notes, 9.5% interest, due in
monthly installments through August 1, 2017 $8,007,000
