FIFTH AMENDMENT
Dated as of May 3, 2000
This FIFTH 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, the Third Amendment, dated as of September 17, 1999,
and the Fourth Amendment, dated as of December 6, 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 Section 6.02 of
the Credit Agreement to permit the Borrower to provide short-term financing to
certain franchise purchasers for the acquisition by such purchasers of certain
Xxxx In The Box franchises and (ii) amend Section 6.02(o) of the Credit
Agreement with respect to the restrictions relating to Qualifying Subsidiaries.
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 6.02 of the Credit Agreement is hereby amended by deleting the
word "and" as it appears immediately following clause (xi) of Section 6.02(f),
by deleting the period as it appears immediately following clause (xii) of
Section 6.02(f) and substituting in lieu thereof the phrase "; and", and by
adding immediately following clause (xii) of Section 6.02(f) the following new
clause (xiii):
"(xiii) an Investment consisting of secured promissory notes payable by
certain franchise purchasers to the Borrower on or before July 31, 2000 in
an aggregate amount for all such notes at any one time outstanding not to
exceed $17,500,000 in order to finance, in whole or in part, the
acquisition by such purchasers from the Borrower of thirteen Xxxx In The
Box franchises; provided that such promissory notes are paid in full in
immediately available funds on or before August 31, 2000."
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(b) Section 6.02 of the Credit Agreement is hereby amended by deleting
Section 6.02(o) in its entirety and substituting in lieu 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 (x) 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, and (y) Debt incurred by a Qualifying Subsidiary in the
ordinary course of business to states that require domestic corporations to
hold alcohol licenses in respect of license fees payable by such Qualifying
Subsidiary relating to alcohol licenses held by such Qualifying Subsidiary
in an aggregate amount not to exceed $15,000 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 $25,000 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 $25,000 in the aggregate for any Qualifying Subsidiary); or (v)
create more than 40 Qualifying Subsidiaries."
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 listed therein (such Guarantors, 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.
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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. 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.
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.
(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.
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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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FIFTH AMENDMENT
IN WITNESS WHEREOF, the parties hereto have caused this Fifth 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 NEW YORK BRANCH
By: XXXXXX X. XXXXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
ROYAL BANK OF CANADA
By:
-------------------------------
Name:
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 XXXXXXXX
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Vice President
CIBC INC.
By: XXXXXXXXX X. XxXXXX
------------------------------
Name: Xxxxxxxxx X. XxXxxx
Title: Executive Director
CIBC World Markets Corp., As Agent
XXXXXX GUARANTY TRUST CO.
By: XXXXXX XXXXXXX
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Associate
SANWA BANK CALIFORNIA
By: XXXX XXXXXXXX
------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
NATEXIS BANQUE - BFCE
By: XXXX XXXXX
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
By: XXXXX X. XXXXXX, XX.
------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President & Group Manager
S-7 thru S-12
FIFTH AMENDMENT
CONSENT
Dated as of May 3, 2000
The undersigned, as Guarantors under the "Guaranty" (as such terms are
defined in and under the Credit Agreement referred to in the foregoing Fifth
Amendment), each hereby consents and agrees to the foregoing Fifth Amendment and
hereby confirms and agrees that the Guaranty is, and shall continue to be, in
full force and effect and is hereby ratified and confirmed in all respects
except that, upon the effectiveness of, and on and after the date of, said Fifth
Amendment, each reference in the Guaranty 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 Fifth Amendment.
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
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
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