FOURTH AMENDMENT
Dated as of December 6, 1999
This FOURTH AMENDMENT (this "Amendment") is among XXXX IN THE BOX INC.
(formerly 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 NationsBank, N.A.
(successor 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, the Second
Amendment, dated as of February 27, 1999 and the Third Amendment, dated as of
September 17, 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 (i) amend the Credit
Agreement to permit the Borrower to create Qualifying Subsidiaries (as defined
below), (ii) amend Sections 6.01(k) and 6.02(i) of the Credit Agreement with
respect to Qualifying Subsidiaries, and (iii) amend Section 6.02(g)(v) of the
Credit Agreement with respect to the repurchase by the Borrower of its capital
stock.
3. 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 2 hereof, the Credit Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by
inserting in appropriate alphabetical order the following new definition:
"Qualifying Subsidiary" means any direct wholly-owned Subsidiary of
the Borrower created on or after December 6, 1999 that is designated by the
Borrower in writing to the Agent as a Qualifying Subsidiary; provided that, both
before and immediately after giving effect to such designation, there shall be
no default in the performance or observance of any agreement contained in
Section 6.02(o)."
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(b) Section 6.01(k) of the Credit Agreement is hereby amended by (i)
inserting immediately following the words "Collateral Release Date" in the first
and second lines thereof the words "(with respect to clauses (ii) through (vi)
below) and at all times (with respect to clause (i) below)", and (ii) by
deleting the words "(other than an Excluded Subsidiary or a Foreign Subsidiary)"
as they appear in the third line thereof and substituting in lieu thereof the
words "(other than an Excluded Subsidiary, a Qualifying Subsidiary or a Foreign
Subsidiary)".
(c) Section 6.02(g)(v) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(v) the Borrower may acquire capital stock of the Borrower, provided
that the aggregate purchase price for all such capital stock acquired on
or after December 6, 1999 shall not exceed $40,000,000 in the aggregate
and that at the time of and immediately after any such acquisition, the
Borrower would not be in Default hereunder."
(d) Section 6.02(i) of the Credit Agreement is hereby amended by
deleting the words "(other than Excluded Subsidiaries)" as they appear in the
first and second lines thereof and substituting in lieu thereof the words
"(other than Excluded Subsidiaries or Qualifying Subsidiaries)".
(e) Section 6.02 of the Credit Agreement is hereby amended by
inserting immediately following Section 6.02(n) thereof the following new
Section 6.02(o):
"(o) Qualifying Subsidiaries. (i) Permit, or permit any of its
Subsidiaries to permit, any Qualifying Subsidiary to create, incur, assume or
suffer to exist, any Lien on or with respect to any of its assets or properties
of any character (whether now owned or hereafter acquired); (ii) permit, or
permit any of its Subsidiaries to permit, any Qualifying Subsidiary to create,
incur, assume or suffer to exist any Debt (other than Debt incurred by a
Qualifying Subsidiary in the ordinary course of business to the state in which
such Qualifying Subsidiary is organized in respect of franchise taxes and
related fees payable by such Qualifying Subsidiary in an amount not to exceed
$1,000 in the aggregate for any Qualifying Subsidiary); (iii) sell, lease, or
otherwise transfer, or permit any of its Subsidiaries to sell, lease or
otherwise transfer, any assets or property to any Qualifying Subsidiary or
grant, or permit any of its Subsidiaries to grant, any option or other right to
any Qualifying Subsidiary to purchase, lease or otherwise acquire any assets or
property (except a capital contribution by the Borrower to a Qualifying
Subsidiary in an amount not to exceed $2,000 in the aggregate for any Qualifying
Subsidiary); (iv) make or hold, or permit any of its Subsidiaries to make or
hold, any Investment in a Qualifying Subsidiary (except a capital contribution
by the Borrower to a Qualifying Subsidiary in an amount not to exceed $2,000 in
the aggregate for any Qualifying Subsidiary);or (v) create more than five
Qualifying Subsidiaries."
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SECTION 2. 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"); and
(b) each of the representations and warranties in Section 3 below
shall be true and correct.
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
and the Consent, as applicable, and to perform its obligations hereunder and
under the Loan Documents (as amended 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 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
amended 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.
(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.
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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 amended hereby.
(b) Except as specifically amended 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.
(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 5. 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 6. 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 Fourth
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first written above.
XXXX IN THE BOX INC. (successor to
Foodmaker, Inc.), a Delaware corporation
By: XXXXXX X. XXXXX
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and 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: First Vice President
and Branch Manager
ROYAL BANK OF CANADA
By: XXXX XXXXXXXX
-------------------------
Name: Xxxx Xxxxxxxx
Title:
UNION BANK OF CALIFORNIA, N.A.
By: XXXXX XXXXXX
-------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
S-1 thru S-6
U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
BANK ONE, TEXAS, N.A.
By: XXXXXX X. XXXXX
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
CIBC INC.
By:
Name:
Title:
XXXXXX GUARANTY TRUST CO.
By: XXXXXXXX XXXXXXXXX
-------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vide President
SANWA BANK CALIFORNIA
By: X.X. XXXX
-------------------------
Name: X.X. Xxxx
Title: Vice President
NATEXIS BANQUE - BFCE
By: XXXXXX XXXXXXX
-------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Treasurer
By: XXXX X. XXXXX
-------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and
Group Manager Corporate Finance
S-7 thru S-12
CONSENT
Dated as of December 6, 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 Fourth Amendment), each hereby
consents and agrees to the foregoing Fourth 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 Fourth 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 Fourth 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
Vice President and Treasurer
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