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EXHIBIT 10.46
THIRD AMENDMENT
TO
CKE RESTAURANTS, INC.
CREDIT AGREEMENT
DATED AS OF FEBRUARY 14, 1997
This THIRD AMENDMENT (this "Amendment") is among CKE
RESTAURANTS, INC., a Delaware corporation (the "Borrower"), the Financial
Institutions party to the Credit Agreement referred to below (the "Lenders"),
and NATIONSBANK OF TEXAS, N.A., as agent (the "Agent") for the Lenders
thereunder.
PRELIMINARY STATEMENTS:
1. The Borrower, the Lenders and the Agent are parties
to a Credit Agreement dated as of August 1, 1996, as amended by the First
Amendment dated as of September 30, 1996 and the Second Amendment dated as of
November 25, 1996 (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 Agent and the
Lenders amend the Credit Agreement to modify the amount of Designated
Investments permitted thereunder.
3. The Agent and the Lenders are willing to grant the
request of the Borrower on the terms and conditions set forth herein.
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 hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit
Agreement is, effective concurrently with the satisfaction of the conditions
precedent set forth in Section 2 hereof, hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby
amended by adding thereto the following defined terms in the appropriate
alphabetical order:
"`DESIGNATED INVESTMENT ADVANCE' means Revolving B Advances
made on a day on which the Borrower makes a Designated
Investment in an amount equal to the lesser of (a) the sum of
all such Revolving B Advances or (b) the amount of the
Designated Investment.
`DESIGNATED INVESTMENT AMOUNT' means, at any time, the
aggregate amount of all outstanding Designated Investment
Advances at such time.
`TOTAL CONSOLIDATED ASSETS' means, as of any time of
determination, the total assets of the Borrower and its
Subsidiaries at such time determined on a Consolidated basis
and in accordance with GAAP."
(b) Section 2.05(a) of the Credit Agreement is hereby
amended by (i) deleting the word "and" in the second to the last line thereof
and (ii) deleting the period at the end thereof and inserting the following in
lieu thereof:
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", and (iii) in the case of any prepayment of Revolving B
Advances, shall first be applied to reduce the Revolving B
Advances that are not Designated Investment Advances and then
to reduce the Designated Investment Advances."
(c) Section 6.02(f)(iv) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"(iv) other Designated Investments in an
aggregate amount invested and not recovered not to exceed,
immediately after any Designated Investment is made, 20% of
the Total Consolidated Assets of the Borrower as shown on the
10-K or 10-Q most recently filed by the Borrower with the
Securities and Exchange Commission as of the date on which
such Designated Investment is made, provided that immediately
after any Designated Investment is made, (A) there are no
outstanding Revolving A Advances, (B) the Designated
Investment Amount does not exceed $15,000,000 and (C) the
Borrower has timely made all filings required of it by the
Securities and Exchange Commission;".
(d) Section 6.02(f)(v)(G) of the Credit Agreement is
amended and restated in its entirety as follows:
"(G) the aggregate consideration paid by
the Borrower and its Subsidiaries in connection with all
Permitted Acquisitions after the date hereof (excluding from
the calculation of such aggregate consideration (I)
consideration paid in the form of common stock of the
Borrower, (II) consideration paid with the proceeds of
Permitted Subordinated Debt and consideration paid or
refinanced with the proceeds of the Permitted Acquisition
Financing and (III) in the case of a Permitted Acquisition by
a Subsidiary of the Borrower which is not a wholly-owned
Subsidiary of the Borrower, the consideration paid by such
Subsidiary with the proceeds of equity contributions to such
Subsidiary by Persons other than the Borrower and its
Subsidiaries) shall not exceed the sum of (a) $25,000,000 plus
(b) the Additional Investment Amount."
(e) Section 6.03 of the Credit Agreement is amended by
adding thereto a new Section 6.03(n) to read as follows:
"(N) TOTAL CONSOLIDATED ASSETS. On the
Business Day immediately prior to the date on which the
Borrower makes any Designated Investment, a copy of the 10-K
or 10-Q most recently filed by the Borrower with the
Securities and Exchange Commission, and certified by the chief
financial officer of the Borrower as to the truth and accuracy
thereof.".
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective when:
(a) the Agent has executed this Amendment and has received
counterparts of this Amendment executed by the Borrower and the
Required Lenders;
(b) the Agent has received counterparts of the Consent
appended hereto (the "Consent") executed by each of the Guarantors
(such Guarantors, together with the Borrower, each a "Loan Party" and,
collectively, the "Loan Parties"); and
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(c) the Borrower has paid to the Agent in accordance with
Section 2.09(a) of the Credit Agreement for the account of each
Lender, a fee equal to 0.05% of the sum of the principal amount of all
outstanding Advances owed to such Lender, the Unused Revolving A
Commitment, if any, of such Lender, the Unused Revolving B Commitment,
if any, of such Lender and such Lender's Pro Rata Share of the
aggregate outstanding Letter of Credit Obligations as of such date.
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 or the Consent, as applicable, and to perform its obligations
hereunder and under the Loan Documents (as amended or 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 amended or 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. This Amendment and each Loan Document (as amended
or modified hereby) is the legal, valid and binding obligation of each Loan
Party hereto or 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 or warranties that, by their terms, are specifically made as of
a date other than the date hereof) are 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.
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 and amended hereby.
(b) Except as specifically amended above, the Credit
Agreement and all other Loan Documents, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
(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 or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
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SECTION 5. EXECUTION IN 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 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.
SECTION 7. COSTS, EXPENSES AND TAXES. The Borrower agrees to
pay on demand all out-of-pocket expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Amendment and any other documents prepared or obtained in connection
therewith, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Agent with respect thereto and with respect to
advising the Agent as to its rights and responsibilities hereunder and
thereunder. Borrower further agrees to pay on demand all costs and expenses, if
any (including, without limitation, reasonable counsel fees and expenses), of
the Agent, and the Lenders in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Amendment, including,
without limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 7.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
CKE RESTAURANTS, INC.
By: /s/ Xxxxxx Xxxxxx
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Title: Vice President
NATIONSBANK OF TEXAS, N.A.,
as Agent
By: /s/ Xxx X. Xxxxxxxxxxxx
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Title: Senior Vice President
LENDERS:
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxx X. Xxxxxxxxxxxx
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Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Xxxxxxx Xxxxxx
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Title: Vice President
MELLON BANK, N.A.
By /s/ Xxxx Xxxx
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Title: Vice President
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SUMITOMO BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxx X. Xxx Xxxxxxxxxx
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Title: Vice President
U. S. NATIONAL BANK OF OREGON
By: /s/ Xxxxx Xxxxxx
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Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx X. Xxxxx
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Title: Vice President
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