1
EXHIBIT 10.47
AMENDMENT NO. 1 TO CREDIT AGREEMENT AND LIMITED WAIVER
This AMENDMENT NO. 1 TO CREDIT AGREEMENT AND LIMITED WAIVER (this
"Amendment") is entered into as of September 29, 1997 among CKE Restaurants,
Inc., the Lenders and Banque Paribas, as Agent.
RECITALS
CKE Restaurants, Inc., a Delaware corporation (the "Borrower"), certain
financial institutions (the "Lenders") and Banque Paribas, as agent (in such
capacity, the "Agent") are parties to that certain Credit Agreement, dated as of
July 15, 1997 (as amended hereby and as further amended, restated, supplemented
or otherwise modified, the "Credit Agreement").
Star Buffet, Inc., a newly-formed, wholly-owned Subsidiary of the
Borrower ("Star Buffet") proposes to assume certain Indebtedness (the "Star
Buffet Indebtedness") in connection with its acquisition of certain assets of
North Restau rants, Inc. and, in connection therewith, the Borrower proposes to
enter into a guaranty, pursuant to which the Borrower will guarantee the
repayment by Star Buffet of the Star Buffet Indebtedness (the "Guaranty").
Summit Family Restaurants Inc., a wholly-owned Subsidiary of the
Borrower ("Summit") proposes to sell certain of its assets identified on
Schedule I hereto (the "Summit Assets") to a newly formed, wholly-owned
Subsidiary of the Borrower, for a sale price equal to the book value of the
Summit Assets (the "Summit Sale").
Casa Xxxxxx Incorporated, an indirect, wholly-owned Subsidiary ("CB")
of the Borrower proposes to sell certain of its assets identified on Schedule II
hereto (the "CB Assets") to Summit, for a sale price equal to the book value of
the CB Assets (the "CB Sale").
The Borrower has requested that the Agent and the Lenders amend and
grant certain waivers with respect to, certain provisions of the Credit
Agreement in connection with the Guaranty, the Summit Sale and the CB Sale, all
as more fully described herein.
The Agent and the Banks have agreed to grant such amendments and
waivers upon the terms and conditions set forth herein.
2
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings assigned thereto in the Credit
Agreement.
Section 2. Amendments to the Credit Agreement. Subject to the terms and
conditions set forth herein, the Credit Agreement is hereby amended as follows:
(a) Definitions. Section 1.1 of the Credit Agreement is hereby
amended by adding, in proper alphabetical order, the following definition:
"Star Buffet Guaranty" shall mean that certain guaranty to be executed
by the Borrower in favor of United States National Bank of Oregon, in an
aggregate principal amount not in excess of $7,000,000.
(b) Indebtedness. Section 7.2 of the Credit Agreement is hereby
amended by (i) deleting the word "and" as it appears immediately after the words
"7.6(a)" in subsection (c) thereof and replacing such word with a comma and (ii)
adding, immediately before the semicolon as it appears at the end of subsection
(c) thereof, the words "and 7.6(d)."
(c) Contingent Obligations. Section 7.6 of the Credit Agreement is
hereby amended by (i) deleting the word "and" as it appears at the end of
subsection (b) thereof, (ii) deleting the period as it appears at the end of
subsection (c) thereof and replacing such period with a semicolon and the word
"and" and (iii) adding the following new subsection (d):
"(d) pursuant to the Star Buffet Guaranty."
Section 3. Limited Waiver. Subject to the terms and conditions set
forth herein, the Agent and the Banks hereby agree to waive the requirements of
Section 7.5(a)(i) of the Credit Agreement (i) solely to the extent that the sale
price paid to Summit for the Summit Assets is less than the fair market value of
such assets at the time of the Summit Sale and (ii) solely to the extent that
the
2
3
sale price paid to CB for the CB Assets is less than the fair market value of
such assets at the time of the CB Sale.
Section 4. Conditions to Effectiveness of Amendment. The effectiveness
of this Amendment is subject to the satisfaction of the following conditions
precedent:
(a) Amendment. This Amendment shall have been duly executed and
delivered by the Borrower and the Required Lenders.
(b) Officer's Certificate. The Agent shall have received a
certificate of an Authorized Officer of the Borrower certifying as to the
matters set forth in Sections 5(a) and 5(b) of this Amendment.
(c) Transaction Documentation. The Agent shall have approved the
form and substance of each of the agreements to be executed by the Borrower in
connection with each of the transactions contemplated by Sections 2 and 3 of
this Amendment.
(d) Additional Matters. The Agent shall have received such other
certificates, opinions, documents and instruments relating to the transactions
contemplated hereby as may have been requested by the Agent or any Lender, in
each case, in form and substance satisfactory to the Agent.
Section 5. Representations and Warranties. The Borrower represents and
warrants to the Agent and the Lenders, as of the date hereof, that both before
and after giving effect to this Amendment:
(a) no Default or Event of Default has occurred and is continuing;
and
(b) all of the representations and warranties contained in the
Credit Agreement and in the other Loan Documents (other than those that
expressly speak only as of a different date) are true and correct.
3
4
Section 6. Miscellaneous.
(a) Effect; Ratification. The amendments and waivers set forth
herein are effective solely for the purposes set forth herein and shall be
limited precisely as written, and shall not be deemed to (i) be a consent to any
amendment, consent or modification of any other term or condition of the Credit
Agreement or of any other instrument or agreement referred to therein; or (ii)
prejudice any right or remedy which the Agent or the Lenders may now have or may
have in the future under or in connection with the Credit Agreement or any other
instrument or agreement referred to therein. Each reference in the Credit
Agreement to "this Agreement", "herein", "hereof" and words of like import and
each reference in the other Loan Documents to the "Agreement" or the "Credit
Agreement" shall mean the Credit Agreement as amended hereby. This Amendment
shall be construed in connection with and as part of the Credit Agreement and
all terms, conditions, representations, warranties, covenants and agreements set
forth in the Credit Agreement and each other instrument or agreement referred to
therein, except as herein amended or waived, are hereby ratified and confirmed
and shall remain in full force and effect.
(b) Loan Documents. This Amendment is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
(c) Costs, Fees and Expenses. The Borrower agrees to pay all costs,
fees and expenses (including the reasonable fees and expenses of counsel to the
Agent) incurred in connection with the preparation, execution and delivery of
this Amendment as required pursuant to the Credit Agreement.
(d) Headings Descriptive. The headings of the several Sections and
Subsections of this Amendment are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision or term of this
Amendment.
(e) Counterparts. This Amendment may be executed in any number of
counterparts, each such counterpart constituting an original and all of which
when taken together shall constitute one and the same instrument.
(f) Severability. Any provision contained in this Amendment that is
held to be inoperative, unenforceable or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable or invalid without affecting
the remaining provisions of this Amendment in that jurisdiction or the
operation, enforceability or validity of such provision in any other
jurisdiction.
4
5
(g) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS.
(h) WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT OR ANY MATTER ARISING HEREUNDER
OR THEREUNDER.
* * * *
5
6
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
CKE RESTAURANTS, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
BANQUE PARIBAS, as Agent and as a Lender
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
BANK OF MONTREAL
By:_____________________________________
Name:___________________________________
Title:__________________________________
6
7
NATEXIS BANQUE
(previously Banque Francaise du Commerce
Exterieur)
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
CREDITANSTALT-BANKVEREIN
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
7
8
THE DAI-ICHI KANGYO BANK, LTD.,
LOS ANGELES AGENCY
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
DEUTSCHE BANK AG, NEW YORK BRANCH
AND CAYMAN ISLANDS BRANCH
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
FIRST BANK & TRUST
By:_____________________________________
Name:___________________________________
Title:__________________________________
8
9
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
By:_____________________________________
Name:___________________________________
Title:__________________________________
MANUFACTURERS BANK
By:_____________________________________
Name:___________________________________
Title:__________________________________
THE SAKURA BANK, LIMITED,
LOS ANGELES AGENCY
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
9
10
THE SANWA BANK, LIMITED,
LOS ANGELES BRANCH
By:_____________________________________
Name:___________________________________
Title:__________________________________
SUMITOMO BANK OF CALIFORNIA
By:_____________________________________
Name:___________________________________
Title:__________________________________
THE SUMITOMO TRUST & BANKING CO., LTD.,
LOS ANGELES AGENCY
By:_____________________________________
Name:___________________________________
Title:__________________________________
UNITED STATES NATIONAL BANK OF OREGON
By:_____________________________________
Name:___________________________________
Title:__________________________________
10
11
XXXXX FARGO BANK
By:_____________________________________
Name:___________________________________
Title:__________________________________
BANK OF AMERICA NT&SA
By:_____________________________________
Name:___________________________________
Title:__________________________________
NATIONAL BANK OF KUWAIT, S.A.K.,
GRAND CAYMAN BRANCH
By:_____________________________________
Name:___________________________________
Title:__________________________________
11
