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EXHIBIT 10.38
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is entered into as of October 23, 1998 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 Amended and Restated
Credit Agreement, dated as of April 1, 1998 (as amended, restated supplemented
or otherwise modified, the "Credit Agreement").
Pursuant to that certain Subordinated Note Indenture dated as of
March 13, 1998 between the Borrower and Chase Manhattan Bank and Trust Company,
N.A., as trustee (the "Indenture"), the Borrower issued Convertible Subordinated
Notes in the aggregate principal amount of $197,225,000 (the "Subordinated
Notes").
The Borrower now desires to redeem and repurchase certain of the
Subordinated Notes and to use proceeds of Revolving Loans made under the Credit
Agreement to consummate such redemption and repurchase (collectively, the
"Redemption").
The Borrower has requested that the Agent and the Lenders amend
certain provisions of the Credit Agreement in connection with the consummation
of the Redemption, all as more fully described herein.
The Agent and the Lenders have agreed to amend the Credit Agree-
ment upon the terms and conditions set forth herein.
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.
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Section 2. AMENDMENTS. 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 as follows:
(i) The definition of "Consolidated EBITDA" contained
in Section 1.1 of the Credit Agreement is hereby amended by in
serting the following new clauses (v) and (vi) immediately after
the comma appearing in the seventh line thereof:
plus (v) to the extent deducted in the calculation of
Consolidated Net Income for such period, all extraordinary losses
for such period, minus (vi) to the extent included in the
calculation of Consolidated Net Income for such period, all
extraordinary gains for such period.
(ii) the following new definition is hereby added to
Section 1.1 of the Credit Agreement in proper alphabetical order:
"Permitted Redemption" shall mean the redemption and
repurchase by the Borrower of Subordinated Notes for a purchase
price not to exceed $85,000,000 in the aggregate, provided that
(i) the purchase price paid by the Borrower for such Subordinated
Notes shall be made at a discount equal to no less than 15% of
the par value of such Subordinated Notes in the aggregate, (ii)
no redemption or repurchase shall occur on or after the date that
is 9 months after October 23, 1998 and (iii) any such
Subordinated Notes that are redeemed and repurchased shall be
delivered to the "trustee" under the Subordinated Note Indenture
for cancellation and shall not be reissued.
(b) Use of Proceeds. Section 2.20 of the Credit Agreement is
hereby amended by inserting the phrase "to redeem and repurchase Subordinated
Notes in connection with the Permitted Redemption," immediately after the phrase
"Credit Facility," as it appears in the third line of such section.
(c) Dividends. Section 7.7 of the Credit Agreement is hereby
amended by amending and restating, in its entirety, clause (ii) of subsection
(b) thereof to read as follows:
(ii) declare and pay cash dividends to its stockholders
and purchase, redeem, retire or otherwise acquire shares of its
own outstanding capital stock for cash during any fiscal year of
the Borrower if
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after giving effect thereto the aggregate amount of such
dividends, purchases, redemptions, retirements and acquisitions
paid or made during such fiscal year would be less than the
amount of (A) 30% of Consolidated Net Income of the Borrower for
each fiscal year of the Borrower (commencing with the fiscal year
ending January 26, 1998) up to and including the fiscal year
immediately preceding the year in which such dividend, purchase,
redemption, retirement or acquisition is paid or made, less (B)
the aggregate amount of any sinking fund payments, payments,
prepayments, redemptions, defeasances, and purchases or
acquisitions for value paid pursuant to Section 7.10(d) during
such fiscal year (excluding, however, the aggregate amount of
payments made in connection with the Permitted Redemption), less
(C) the aggregate amount of all such dividends, purchases,
redemptions, retirements and acquisitions paid and made by the
Borrower after January 26, 1998 through and including the end of
such immediately preceding fiscal year; and.
(d) Voluntary Payments. Section 7.10 of the Credit Agreement is
hereby amended by amending and restating, in its entirety, subsection (d)
thereof to read as follows:
(d) make or offer to make any sinking fund payment,
payment, prepayment, redemption, defeasance, purchase or acquisi-
tion for value (including, without limitation, by way of
depositing with the trustee with respect thereto money or
securities before due for the purpose of paying when due) or
otherwise segregate funds with respect to the Subordinated Notes
(other than (i) in connection with the Permitted Redemption, (ii)
regularly scheduled semi-annual interest payments required to be
made in cash and (iii) conversions of the Subordinated Notes into
common stock of the Borrower) to the extent that the aggregate
amount of all such sinking fund payments, payments, prepayments,
redemptions, defeasances, and purchases or acquisitions for value
would exceed the sum of (A) 30% of the Consolidated Net Income of
the Borrower for each fiscal year of the Borrower (commencing
with the fiscal year ending January 26, 1998 up to and including
the fiscal year immediately preceding the year in which sinking
fund payment, payment, prepayments redemption, defeasances,
purchase or acquisition is made, less (B), together with the
aggregate amount of all dividends, purchases, redemptions,
retirements and acquisitions paid or made pursuant to Section
7.7(b)(ii), less (C) the aggregate amount of all such sinking
fund payments, payments, prepayments, redemptions, defeasances,
and purchases or acquisitions for value paid and made by the
Borrower after January 26, 1998 through and including the end of
such immediately preceding fiscal year.
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Section 3. 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, the Agent and the Required Lenders; and
(b) Fee Letter. The Agent shall have received an executed
copy of that certain Fee Letter, dated as of October 26, 1998 between the Agent
and the Borrower, duly executed by the parties thereto.
Section 4. REPRESENTATIONS AND WARRANTIES. The Borrower repre-
sents 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 on and as of
the date hereof.
Section 5. MISCELLANEOUS.
(a) EFFECT; RATIFICATION. The amendments 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, are hereby ratified and confirmed and shall
remain in full force and effect.
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(b) LOAN DOCUMENTS. This Amendment is a Loan Document
executed pursuant to the Credit Agreement and shall be construed, administered
and applied in accordance with the terms and provisions thereof.
(c) 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.
(d) 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.
(e) 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.
(f) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS.
(g) 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.
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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 BOSTON, N.A.
By: ___________________________________
Name: _________________________________
Title: ________________________________
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BANK LEUMI (USA)
By: ___________________________________
Name: _________________________________
Title: ________________________________
BANK OF MONTREAL
By: ___________________________________
Name: _________________________________
Title: ________________________________
BANK UNITED
By: ___________________________________
Name: _________________________________
Title: ________________________________
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BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
FIRST AMERICAN NATIONAL BANK
By: ___________________________________
Name: _________________________________
Title: ________________________________
FIRST BANK & TRUST
By: ___________________________________
Name: _________________________________
Title: ________________________________
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FLEET NATIONAL BANK
By: ___________________________________
Name: _________________________________
Title: ________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By: ___________________________________
Name: _________________________________
Title: ________________________________
MANUFACTURERS BANK
By: ___________________________________
Name: _________________________________
Title: ________________________________
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NATEXIS BANQUE - BFCE
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
NATIONAL BANK OF KUWAIT, S.A.K.,
GRAND CAYMAN BRANCH
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
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SUMITOMO BANK OF CALIFORNIA
By: ___________________________________
Name: _________________________________
Title: ________________________________
THE DAI-ICHI KANGYO BANK, LTD.,
LOS ANGELES AGENCY
By: ___________________________________
Name: _________________________________
Title: ________________________________
THE FUJI BANK LIMITED, LOS ANGELES
AGENCY
By: ___________________________________
Name: _________________________________
Title: ________________________________
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY
By: ___________________________________
Name: _________________________________
Title: ________________________________
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THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
By: ___________________________________
Name: _________________________________
Title: ________________________________
THE SANWA BANK, LIMITED
By: ___________________________________
Name: _________________________________
Title: ________________________________
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By: ___________________________________
Name: _________________________________
Title: ________________________________
U.S. BANK NATIONAL ASSOCIATION
By: ___________________________________
Name: _________________________________
Title: ________________________________
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XXX XXXXXX AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By: ___________________________________
Name: _________________________________
Title: ________________________________
XXXXX FARGO BANK
By: ___________________________________
Name: _________________________________
Title: ________________________________
CENTURA BANK
By: ___________________________________
Name: _________________________________
Title: ________________________________
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