Exhibit 10.1
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amendment to Amended and Restated Credit Agreement (the
"Amendment") is made as of January 30, 2008, between Bank of America, N. A.
("Bank") and California Pizza Kitchen, Inc., a Delaware corporation, successor
by merger to California Pizza Kitchen, Inc., a California corporation
("Borrower").
RECITALS
A. Borrower and Bank entered into that certain Amended and Restated
Credit Agreement dated as of June 30, 2004, as previously amended (the
"Agreement").
B. Borrower and Bank desire to amend certain terms and provisions of
the Agreement as herein provided.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
2.1 The definition of "Commitment" set forth in
Section 1.01 of the Agreement is amended to read as follows:
"Commitment" means $100,000,000, as such amount may be
reduced from time to time, in accordance with this Agreement.
2.2 Exhibit C to the Agreement is deleted in its entirety
and replaced by a new Exhibit C in the form attached hereto.
3. Representations and Warranties. Borrower hereby represents and warrants
to Bank that: (i) no Event of Default and no event which with notice or lapse of
time or both would become an Event of Default has occurred and is continuing and
has not been previously waived, (ii) the representations and warranties of
Borrower set forth in the Agreement are true on and as of the date hereof as if
made on and as of said date, except to the extent that such representations and
warranties specifically refer to an earlier date, (iii) the making and
performance by Borrower of this Amendment have been duly authorized by all
necessary action, and (iv) no consent, approval, authorization, permit or
license is required in connection with the making or performance of the
Agreement as amended hereby.
4. Conditions. This Amendment will be effective when the Bank receives the
following items, in form and content acceptable to the Bank.
4.1 This Amendment duly executed by all parties hereto.
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4.2 A certified resolution and incumbency certificate of the
Borrower, if required by the Bank.
4.3 A note executed by the Borrower.
4.4 A Consent and Reaffirmation of Guaranty duly signed by CPK
Management Company.
4.5 Payment of all out-of-pocket expenses, including attorneys' fees,
incurred by the Bank in connection with the preparation of this Amendment.
5. Effect of Amendment. Except as provided in this Amendment, the Agreement
shall remain in full force and effect and shall be performed by the parties
hereto according to its terms and provisions.
IN WITNESS WHEREOF, this Amendment has been executed by the parties
hereto as of the date first above written.
BANK OF AMERICA, N.A.
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Senior Vice President
CALIFORNIA PIZZA KITCHEN, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title:Chief Financial Officer
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EXHIBIT "C"
$100,000,000 January 30, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to
pay to the order of Bank of America, N.A. (the "Lender"), on the Maturity Date
(as defined in the Credit Agreement referred to below) the principal amount of
One Hundred Million Dollars ($100,000,000), or such lesser principal amount of
Loans (as defined in the Credit Agreement referred to below) payable by Borrower
to Lender on such Maturity Date under that certain Amended and Restated Credit
Agreement dated as of June 30, 2004, as amended, between California Pizza
Kitchen, Inc., a Delaware corporation, successor by merger to California Pizza
Kitchen, Inc., a California corporation ("Borrower") and Lender (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Credit Agreement;" the terms defined therein being used herein as
therein defined).
Borrower promises to pay interest on the unpaid principal amount of each
Loan from the date of such Loan until such principal amount is paid in full, at
such interest rates, and payable at such times as are specified in the Credit
Agreement.
All payments of principal and interest shall be made to Lender in United
States dollars in immediately available funds at its Lending Office.
If any amount is not paid in full when due hereunder, such unpaid amount
shall bear interest, to be paid upon demand, from the due date thereof until the
date of actual payment (and before as well as after judgment) computed at the
per annum rate set forth in the Credit Agreement.
This Note is the "Note" referred to in the Credit Agreement. Reference is
hereby made to the Credit Agreement for rights and obligations of payment and
prepayment, events of default and the right of Lender to accelerate the maturity
hereof upon the occurrence of such events. Loans made by Lender shall be
evidenced by one or more loan accounts or records maintained by Lender in the
ordinary course of business. Lender may also attach schedules to this Note and
endorse thereon the date, amount and maturity of its Loans and payments with
respect thereto. This Note is nonnegotiable.
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Note.
Borrower agrees to pay all collection expenses, court costs and Attorney
Costs (whether or not litigation is commenced) which may be incurred by Lender
in connection with the collection or enforcement of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA.
CALIFORNIA PIZZA KITCHEN, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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