EXHIBIT 10.1.1
FIRST AMENDMENT
TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made and
entered into as of this 18th day of June, 2004, 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 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:
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"Applicable Margin" means the applicable margin with respect to the
Loans as set forth in Section 5.1(c).
(b) Amendment to Section 5.1(c). Section 5.1(c) of the Credit Agreement
is hereby amended in its entirety as follows:
"(c) Applicable Margin.
(i) The Applicable Margin provided for in Section 5.1 (a)
with respect to any Revolving Credit Loan or Swingline Loan shall be based
upon the Leverage Ratio as of the end of the fiscal quarter immediately
preceding the delivery of the financial statements and the accompanying
Officer's Compliance Certificate for such fiscal quarter, as follows:
APPLICABLE
LIBOR
PRICING LEVEL LEVERAGE RATIO MARGIN APPLICABLE BASE RATE MARGIN
------------- ------------------------ ---------- ---------------------------
I Greater than or equal to 2.50% 1.25%
1.75 to 1.00
II Greater than or equal 2.25% 1.00%
to 1.00 to 1.00 but less
than 1.75 to 1.00
III Less than 1.00 to 2.00% 0.75%
1.00
(ii) The Applicable Margin with respect to the Term Loans
shall be 1.00% with respect to Base Rate Loans and 2.25% with respect to
LIBOR Rate Loans.
(iii) Adjustments, if any, in the Applicable Margin with
respect to Revolving Credit Loans and Swingline Loans shall be made on the
date (each a "Calculation Date") ten (10) Business Days after the date by
which the Borrower is required to provide quarterly financial statements
of the Borrower and its Subsidiaries and an accompanying Officer's
Compliance Certificate setting forth the Leverage Ratio of the Borrower
and its Subsidiaries for the most recently ended fiscal quarter of the
Borrower and its Subsidiaries; provided further that if the Borrower fails
to provide the Officer's Compliance Certificate as required by Section 8.2
for the most recently ended fiscal quarter of the Borrower and its
Subsidiaries preceding the applicable Calculation Date, the Applicable
Margin with respect to Revolving Credit Loans and Swingline Loans shall be
based on Pricing Level I (as shown above) from such Calculation Date until
such time as an appropriate Officer's Compliance Certificate is provided,
at which time the Applicable Margin with respect to Revolving Credit Loans
and Swingline Loans shall be determined by reference to the Leverage Ratio
as of the last day of the most recently ended fiscal quarter of the
Borrower and its Subsidiaries preceding such Calculation Date. Except as
provided in the preceding sentence, the Applicable Margin with respect to
Revolving Credit Loans and Swingline Loans shall be effective from one
Calculation Date until the next Calculation Date.
3. Effectiveness. This Amendment shall become effective on the date
that each of the following conditions has been satisfied:
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(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 Term Loans.
(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).
5. Effect of Amendment. Except as expressly amended hereby, the Credit
Agreement and Loan Documents 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 therein.
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.
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(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 thereto, and each such document
constitutes the legal, valid and binding obligation of the Borrower and each
Guarantor party 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.
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 Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President and 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 Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President and Treasurer
JBX GENERAL PARTNER LLC
By: Xxxx in the Box Inc., its Sole and
Managing Member
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President and Treasurer
JBX LIMITED PARTNER LLC
By: Xxxx in the Box Inc., its Sole and
Managing Member
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President and Treasurer
[Signature Pages Continue]
[First Amendment - Xxxx in the Box Inc.]
QDOBA RESTAURANT CORPORATION
By: /s/ Xxxx X Xxxxxxx
------------------------------
Name: XXXX X XXXXXXX
Title: PRESIDENT & CEO
[Signatures Continued on the Following Page]
[First 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/ Xxxxx X. Xxxxxxx, lil
------------------------------
Name: Xxxxx X. Xxxxxxx, lil
Title: Director
[First Amendment - Xxxx in the Box, Inc.]
