SECOND AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO THE AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT ("Amendment") is made as of July
11, 1997, among Foodmaker, Inc., a Delaware corporation (the
"Company"), each of the banks identified on the signature
pages hereof (each a "Bank" and, collectively, the "Banks"),
Credit Lyonnais New York Branch, as Agent, Collateral Agent
and Swing Line Bank, and Union Bank, as Issuing Bank.
W I T N E S S E T H
WHEREAS, the Company, the Banks, the Agent, the
Collateral Agent, the Swing Line Bank and the Issuing Bank
entered into the Amended and Restated Revolving Credit
Agreement, dated as of March 15, 1996, as amended by the
First Amendment to Amended and Restated Credit Agreement,
dated as of November 26, 1996 (the "Credit Agreement"); and
WHEREAS, the signatories hereto desire to amend
the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises
and of the covenants and agreements contained herein and in
the Credit Agreement, the parties hereto agree that the
Credit Agreement is hereby amended as set forth herein:
1. Capitalized terms used herein which are not
otherwise defined herein but are defined in the Credit
Agreement shall have the meanings given to such terms in the
Credit Agreement.
2. Clause (xi) of the definition of Permitted
Encumbrances in Section 1.01(c) is amended to read in its
entirety as follows:
(xi) any mortgage, encumbrance or other Lien upon,
or security interest in, any property hereafter acquired by
the Company or its Subsidiaries, created contemporaneously
with such acquisition to secure or provide for the payment
or financing of any part of the purchase price thereof, or
the assumption of any Lien upon, or security interest in,
any such property hereafter acquired existing at the time of
such acquisition, or the acquisition of any such property
subject to any Lien without the assumption thereof (or any
Permitted Refinancing thereof); provided, that (A) the
Indebtedness secured by any such Lien shall not exceed
$5,000,000 except that the limitation in this clause (A)
shall not apply to Indebtedness secured by the estates for
years to be purchased by Subsidiaries created for such
purpose from CRC-I Limited Partnership and CRC-II Limited
Partnership and (B) each such Lien shall attach only to the
property so acquired and fixed improvements thereon.
3. The definition of "Subsidiary" in Section
1.01(c) is amended to read in its entirety as follows:
"Subsidiary" shall mean (i) any corporation the
majority of the voting shares of which at the time are owned
directly or indirectly by the Company and/or by one or more
Subsidiaries of the Company, and (ii) any limited or general
partnership in which the Company or any Subsidiary has at
least a majority ownership interest and has the power to
direct the policies, management and affairs thereof.
4. The first sentence of Section 2.07(a) of the
Credit Agreement is hereby amended to read as follows:
(a) If (i) the Company or any Subsidiary shall
sell, lease, assign, transfer or otherwise dispose of any of
its assets, other than pursuant to an Excluded Asset Sale,
(ii) any of Company's or Subsidiary's capital assets shall
be subject to loss, casualty, fire damage, theft or other
destruction or condemnation or (iii) the Company or a
Subsidiary issues, assumes or incurs Specified Additional
Indebtedness, other than the assumption of or guarantee of
Indebtedness by the Subsidiaries created as permitted by
Section 8.02(h) in connection with the purchases by such
Subsidiaries of certain estates for years from CRC-I Limited
Partnership and CRC-II Limited Partnership, the Commitment
of each Bank shall be reduced as provided below by an amount
equal to such Bank's Pro Rata Share of the Net Cash Proceeds
from any such sale, lease, assignment, transfer, disposi-
tion, loss, casualty, fire damage, theft, destruction,
condemnation, issuance, assumption or incurrence.
5. Section 6.01(b) of the Credit Agreement is
hereby amended to read in its entirety as follows:
(b) Good Standing and Power. The Company and
each of its Subsidiaries are corporations or partnerships,
as the case may be, each duly organized and validly
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existing, under the laws of the jurisdiction of its
formation, and each has the power to own its property and to
carry on its business as now being conducted and is duly
qualified to do business and is in good standing in each
jurisdiction in which the character of the properties owned
or leased by it therein or in which the transaction of its
business makes such qualification necessary, except where
any such failure could not individually or together with all
other such failures to be so qualified reasonably be
expected to have a Material Adverse Effect.
6. Section 8.02(a) of the Credit Agreement is
hereby amended to read in its entirety as follows:
(a) Transactions with Affiliates. Enter into, or
permit any of its Subsidiaries to enter into any transaction
or series of related transactions with any Affiliate, other
than transactions in the ordinary course of business which
are on terms and conditions substantially as favorable to
the Company or such Subsidiary as would be obtainable by the
Company or such Subsidiary in an arms-length transaction
with a Person other than an Affiliate except (i) payments
for management advisory work not in excess of $375,000,
(ii) the sale of any of the Common Stock of the Company to
any officers or employees of the Company or any of its
Subsidiaries or the issuance of options to purchase Common
Stock of the Company and (iii) the lease by the Company from
the Subsidiaries created as permitted by Section 8.02(h) of
real property in which any such Subsidiary owns an estate
for years.
7. Section 8.02(b) of the Credit Agreement is
amended to read in its entirety as follows:
(b) Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, or permit any Subsidiary
so to do, except (i) Indebtedness set forth under
clauses (i) through (viii) of Specified Additional
Indebtedness, (ii) Indebtedness of the Company and any
Subsidiary secured by mortgages, encumbrances or liens
specifically permitted by Section 8.02(c),including, but not
limited to, Indebtedness secured by a Lien on the estates
for years purchased from CRC-I Limited Partnership and
CRC-II Limited Partnership existing at the time of such
purchase, (iii) contingent liabilities permitted by
Section 8.02(f), (iv) Indebtedness existing as of the date
hereof and specified on Schedule 8.02(b) hereto and (v) the
guarantees by the Subsidiaries created as permitted by
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Section 8.02(h) of the 9.75% Senior Secured Notes due
November 1, 2003 of FM 1993A Corp.
8. Section 8.02(d) of the Credit Agreement is
amended to read in its entirety as follows:
(d) Merger, Acquisition or Sales of Assets.
Enter into any merger or consolidation or acquire assets of
any Person, other than Permitted Restaurant Repurchases,
Permitted Sale Leaseback Repurchases, purchases by
Subsidiaries created for such purpose of certain estates for
years from CRC-I Limited Partnership and CRC-II Limited
Partnership or assets acquired in the ordinary course of the
Company's business, or sell, lease, or otherwise dispose of
any of its assets, except pursuant to an Excluded Asset
Sale, or permit any Subsidiary so to do, except that a
Wholly Owned Subsidiary may be merged or consolidated with
one or more other Wholly Owned Subsidiaries or into the
Company.
9. Clause (i) of Section 8.02(f) of the Credit
Agreement is amended to read in its entirety as follows:
(i) in connection with a merger or the purchase
of certain estates for years from CRC-I Limited Partnership
or CRC-II Limited Partnership, each as permitted by
Section 8.02(d).
10. (a) The first sentence of Section 8.02(g) of
the Credit Agreement is amended to read in its entirety as
follows:
(g) Loans and Investments. Purchase or acquire
the obligations or stock of, or any other interest in, or
make loans, advances or capital contributions to, or form
any joint ventures or partnerships with, any Person, or
permit any Subsidiary so to do, except (i) direct
obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United
States of America, with a maturity not exceeding one year,
(ii) certificates of deposit, time deposits, banker s
acceptances or other instruments of a bank having a combined
capital and surplus of not less than $500,000,000 with a
maturity not exceeding one year, (iii) commercial paper
rated at least A-1 or P-1 maturing within one year after the
date of acquisition thereof or rated at least A-2 or P-2
maturing within ninety days after the date of acquisition
thereof, (iv) money market accounts maintained at a bank
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having combined capital and surplus of not less than
$500,000,000 or at another financial institution
satisfactory to the Agent, and (v) money market funds
organized under the laws of the United States or any State
thereof that invest solely in (a) any of the types of
investments permitted under Subsections 8.02(g)(i) and (ii),
(b) commercial paper rated at least A-1 or P-1 maturing
within one year after the date of acquisition thereof, or
(c) any combination of the types of investments set forth in
items (a) and (b) of this Subsection 8.02(g)(v).
(b) Section 8.02(g) of the Credit Agreement is
further amended by adding a new clause (G) immediately
following clause (F), which shall read in its entirety as
follows:
(G) Acquire the stock or other interests in the
Subsidiaries created as permitted by Section 8.02(h).
11. Section 8.02(h) of the Credit Agreement is
amended to read in its entirety as follows:
(h) Corporate Organization. (i) Create any
Subsidiaries not in existence as of the date hereof, except
that the Company may create Subsidiaries in connection with,
and for the purpose of, effectuating the purchase of certain
estates for years currently owned by CRC-I Limited
Partnership and CRC-II Limited Partnership, provided that
the Company pledges the stock or general partnership
interest, as the case may be, of such Subsidiaries as
Collateral pursuant to the Security Agreement; (ii) amend
its certificate of incorporation in any material respect
without the written consent of the Agent; or (iii) change
its corporate structure.
12. Section 8.02(l) of the Credit Agreement is
amended to read in its entirety as follows:
(l) Prepayment of Debt. Prepay, redeem, defease
(whether actually or in substance) or purchase in any manner
(or deposit or set aside funds or securities for the purpose
of the foregoing)(i) in excess of $50,000,000 in principal
amount of the Company s 9.25% outstanding Senior Notes due
1999, or (ii) any of the Company s 9.75% Senior Subordinated
Notes due 2002.
13. Schedule 6.01 to the Credit Agreement is
hereby replaced with Schedule 6.01 to this Amendment.
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14. The Company agrees to pay on demand all
reasonable costs and expenses of the Agent (including all
reasonable fees and expenses of counsel to the Agent) in
connection with the preparation and execution of this
Amendment.
15. This Amendment has been duly executed and
delivered by the Company and the Credit Agreement, as
amended hereby, constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles. As of the date
hereof, the Company is in compliance in all respects with
all covenants set forth in the Agreement on its part to be
observed or performed and no Default or Event of Default
under the Agreement has occurred and is continuing.
16. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS XX XXX XXXXX
XX XXX XXXX, XXXXXX XXXXXX OF AMERICA.
17. This Amendment may be executed in any number
of counterparts and by the different parties hereto on
separate counterparts and each such counterpart shall be
deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument. This
Amendment shall become effective as of the date hereof upon
the delivery to the Agent of executed counterparts from the
Company and all Banks.
18. The Credit Agreement, as amended hereby,
shall be binding upon the Company, the Banks, the Agent, the
Collateral Agent, the Swing Line Bank and the Issuing Bank
and their respective successors and assigns, and shall inure
to the benefit of the Company, the Banks, the Agent, the
Collateral Agent, the Swing Line Bank and the Issuing Bank
and their respective successors and assigns.
19. Except as expressly provided in this
Amendment, all of the terms, covenants, conditions,
restrictions and other provisions contained in the Credit
Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the date first
above written.
FOODMAKER, INC.
By:/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Treasurer
CREDIT LYONNAIS, NEW YORK BRANCH,
as Agent for the Banks
By:/s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: First Vice President
Address for Notices:
Credit Lyonnais Los Angeles Branch
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
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CREDIT LYONNAIS NEW YORK BRANCH
Signing as a Bank, Swing Line
Bank and Collateral Agent
By:/s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: First Vice President
Address for Notices:
Credit Lyonnais Los Angeles Branch
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
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NATIONSBANK OF TEXAS, N.A.
as a Bank
By: /s/ Xxxx XxXxxxx
Name: Xxxx XxXxxxx
Title: Senior Vice
President
Address for Notices:
NationsBank of Texas, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxx Xxxxx
Fax: (000) 000-0000
Eurodollar Lending Office:
NationsBank of Texas, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxx Xxxxx
Fax: (000) 000-0000
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X.X. XXXXXXXX XXXX XX XXXXXX
as a Bank
By:/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
000 X.X. Xxxxx Xxxxxx, X-00
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
Eurodollar Lending Office:
000 X.X. Xxxxx Xxxxxx, X-00
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
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XXXXX XXXX XX XXXXXXXXXX, N.A. as a
Bank and as the Issuing Bank
By: /s/ Ali Xxxxx Xxxxxxxxx
Name: Ali Xxxxx Xxxxxxxxx
Title: Vice President
Address for Notices:
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxx
Fax: (000) 000-0000
Eurodollar Lending Office:
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxx
Fax: (000) 000-0000
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