FOURTH AMENDMENT TO LOAN AGREEMENT
This FOURTH AMENDMENT TO LOAN AGREEMENT (this "AMENDMENT"), dated as of
January 27, 1998, is among SONIC CORP., a Delaware corporation (the
"BORROWER"), each of the banks or other lending institutions which is or may
from time to time become a signatory or party to the Agreement (hereinafter
defined) or any successor or permitted assignee thereof (each a "BANK" and
collectively, the "BANKS"), and CHASE BANK OF TEXAS, N.A. (formerly known as
Texas Commerce Bank National Association), a national banking association
("TCB"), as agent for itself and the other Banks and as issuer of Letters of
Credit under the Agreement (in such capacity, together with its successors in
such capacity, the "AGENT").
RECITALS:
A. Borrower, Agent and Banks have entered into that certain Loan
Agreement dated as of July 12, 1995, as amended by (i) that certain First
Amendment to Loan Agreement dated as of August 16, 1996, (ii) that certain
Second Amendment to Loan Agreement dated as of September 27, 1996, and (iii)
that certain Third Amendment to Loan Agreement dated as of June 19, 1997 (as
amended, the "AGREEMENT").
B. Pursuant to the Agreement, the undersigned guarantors (each a
"GUARANTOR" and, collectively, the "GUARANTORS") executed those certain
Guaranty Agreements dated as of July 12, 1995 (each a "GUARANTY" and
collectively, the "GUARANTIES"), which guarantee to Agent the payment and
performance of the Obligations (as defined in the Agreement).
C. Borrower, Agent and Banks now desire to amend the Agreement to
modify certain covenants, and as otherwise provided herein.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Capitalized terms used in this Amendment,
to the extent not otherwise defined herein, shall have the same meanings as
in the Agreement, as amended hereby.
ARTICLE II
AMENDMENTS
Section 2.1 AMENDMENT TO DEFINITION OF APPLICABLE PERCENTAGE.
Effective as of the date hereof, the table appearing in the definition of
"APPLICABLE PERCENTAGE" set forth in Section 1.1 of the Agreement is hereby
amended to read in its entirety as follows:
APPLICABLE MARGIN APPLICABLE APPLICABLE
RATIO OF CONSOLIDATED FUNDED DEBT TO FOR EURODOLLAR COMMITMENT LETTER OF
CONSOLIDATED EBITDA ADVANCES FEE CREDIT FEE
------------------------------------ ----------------- ---------- ----------
Less than or equal to .50 to 1.00 0.50% 0.125% 0.50%
Greater than .50 to 1.00 but less than or
equal to 1.00 to 1.00 0.75% 0.20% 0.75%
Greater than 1.00 to 1.00 but less than
or equal to 1.50 to 1.00 1.00% 0.20% 1.00%
Greater than 1.50 to 1.00 1.25% 0.25% 1.25%
Section 2.2 DELETION OF CURRENT RATIO FINANCIAL COVENANT. Effective
as of the date hereof, the covenant set forth in Section 10.1 of the
Agreement is hereby deleted in its entirety accordingly and Section 10.1 of
the Agreement is hereby amended to read in its entirety as follows:
Section 10.1 [Intentionally Left Blank]
Section 2.3 AMENDMENTS TO COMPLIANCE CERTIFICATE. Effective as of
the date hereof, Exhibit "D" to the Agreement is hereby amended to read in
its entirety as set forth on Annex II hereto.
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ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS. The effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein and in all other Loan Documents, as amended
hereby, shall be true and correct as of the date hereof as if made on the
date hereof;
(b) NO DEFAULT. No Event of Default shall have occurred and be
continuing and no event or condition shall have occurred that with the
giving of notice or lapse of time or both would be an Event of Default;
ARTICLE IV
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
Section 4.1 RATIFICATIONS. The terms and provisions set forth in
this Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Agreement and except as expressly modified and
superseded by this Amendment, the terms and provisions of the Agreement are
ratified and confirmed and shall continue in full force and effect.
Borrower, Agent and the Banks agree that the Agreement as amended hereby
shall continue to be legal, valid, binding and enforceable in accordance with
its terms.
Section 4.2 RELEASE OF CLAIMS. The Borrower and the Guarantors each
hereby acknowledge and agree that to their knowledge none of them has any and
there are no claims or offsets against or defenses or counterclaims to the
terms and provisions of or the obligations of the Borrower, any Guarantor or
any Subsidiary created or evidenced by the Agreement or any of the other Loan
Documents, and to the extent any such claims, offsets, defenses or
counterclaims exist, the Borrower and the Guarantors each hereby waive, and
hereby release the Agent and each of the Banks from, any and all claims,
offsets, defenses and counterclaims that are known to the Borrower or any
Guarantor as of the date hereof, such waiver and release being with full
knowledge and understanding of the circumstances and effects of such waiver
and release and after having consulted legal counsel with respect thereto.
Section 4.3 REPRESENTATIONS AND WARRANTIES. Borrower hereby
represents and warrants to Agent and the Banks that (i) the execution,
delivery and performance of this Amendment and any and all other Loan
Documents executed and/or delivered in connection herewith have been
authorized by all requisite corporate, partnership and trust action on the
part of Borrower and the
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Guarantors and will not violate the articles of incorporation, bylaws,
partnership agreement or other organizational documents of Borrower or the
Guarantors, (ii) the representations and warranties contained in the
Agreement, as amended hereby, and any other Loan Document are true and
correct on and as of the date hereof as though made on and as of the date
hereof, (iii) no Event of Default has occurred and is continuing and no event
or condition has occurred that with the giving of notice or lapse of time or
both would be an Event of Default, and (iv) Borrower is in full compliance
with all covenants and agreements contained in the Agreement as amended
hereby.
ARTICLE V
MISCELLANEOUS
Section 5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Amendment or any other Loan
Document including any Loan Document furnished in connection with this
Amendment shall survive the execution and delivery of this Amendment and the
other Loan Documents, and no investigation by Agent or any Bank or any
closing shall affect the representations and warranties or the right of Agent
and the Banks to rely upon them.
Section 5.2 REFERENCE TO AGREEMENT. Each of the Loan Documents,
including the Agreement and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms
hereof or pursuant to the terms of the Agreement as amended hereby, are
hereby amended so that any reference in such Loan Documents to the Agreement
shall mean a reference to the Agreement as amended hereby.
Section 5.3 EXPENSES OF AGENT. As provided in the Agreement,
Borrower agrees to pay on demand all reasonable costs and expenses incurred
by Agent in connection with the preparation, negotiation, and execution of
this Amendment and the other Loan Documents executed pursuant hereto and any
and all amendments, modifications, and supplements thereto, including without
limitation the reasonable costs and fees of Agent's legal counsel.
Section 5.4 SEVERABILITY. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the provision so held to be invalid or unenforceable.
Section 5.5 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN
DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO
BE PERFORMABLE IN DALLAS, DALLAS COUNTY, TEXAS AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
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Section 5.6 SUCCESSORS AND ASSIGNS. This Amendment is binding upon
and shall inure to the benefit of Borrower, Agent and the Banks and their
respective successors and permitted assigns, except Borrower may not assign
or transfer any of its rights or obligations hereunder without the prior
written consent of Agent.
Section 5.7 COUNTERPARTS. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the
same instrument.
Section 5.8 EFFECT OF WAIVER. No consent or waiver, express or
implied, by Agent or any Bank to or for any breach of or deviation from any
covenant, condition or duty by Borrower or any Guarantor shall be deemed a
consent or waiver to or of any other breach of the same or any other
covenant, condition or duty.
Section 5.9 HEADINGS. The headings, captions, and arrangements used
in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 5.10 NON-APPLICATION OF CHAPTER 346 OF TEXAS FINANCE CODE. The
provisions of Chapter 15 of the Texas Finance Code (formerly Chapter 15 of
the Texas Credit Code (Vernon's Annotated Texas Statutes, Article 5069-15)),
as amended, are specifically declared by the parties not to be applicable to
this Amendment or any of the Loan Documents or the transactions contemplated
hereby.
Section 5.11 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION
WITH THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
HERETO REGARDING THIS AMENDMENT AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
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Executed as of the date first written above.
BORROWER:
SONIC CORP.
By: /s/ W. Xxxxx XxXxxx
----------------------------------------
W. Xxxxx XxXxxx
Vice President of Finance
and Treasurer
AGENT AND BANKS:
CHASE BANK OF TEXAS, N.A. (formerly known
as Texas Commerce Bank National
Association), as Agent and as a Bank
By: /s/ Xxx Xxxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxxx
------------------------------
Title: Vice President
-----------------------------
NATIONSBANK, N.A. (formerly
Boatmen's National Bank of Oklahoma,
formerly Bank IV Oklahoma, N.A.)
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: Sr. Vice President
-----------------------------
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UMB OKLAHOMA BANK
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Title: Executive Vice President
-----------------------------
SUMMIT BANK
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
------------------------------
Title: Regional Vice President
-----------------------------
BANCFIRST
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
Each Guarantor hereby (a) consents and agrees to this Amendment, (b)
agrees that its respective Guaranty shall continue to be the legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms, and (c) represents and warrants that each of the
representations and warranties set forth in this Amendment with regard to
each such Guarantor are true and correct in all respects.
GUARANTORS:
SONIC RESTAURANTS, INC.
By: /s/ W. Xxxxx XxXxxx
----------------------------------------
W. Xxxxx XxXxxx
Vice President of Finance
and Treasurer
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SONIC INDUSTRIES INC.
By: /s/ W. Xxxxx XxXxxx
----------------------------------------
W. Xxxxx XxXxxx
Vice President of Finance
and Treasurer
AMERICA'S DRIVE-IN CORP.
By: /s/ W. Xxxxx XxXxxx
-----------------------------------
Name: W. Xxxxx XxXxxx
------------------------------
Title: Vice President of Finance and Treasurer
-----------------------------
AMERICA'S DRIVE-IN TRUST
By: /s/ W. Xxxxx XxXxxx
-----------------------------------
Name: W. Xxxxx XxXxxx
------------------------------
Title: Vice President of Finance and Treasurer
-----------------------------
EACH OF THE PARTNERSHIPS SPECIFIED
ON ANNEX I HERETO, each an
Oklahoma general partnership
By: Sonic Restaurants, Inc.,
Managing General Partner of
each of such partnerships
By: /s/ W. Xxxxx XxXxxx
----------------------------------------
W. Xxxxx XxXxxx
Vice President of Finance
and Treasurer
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