EXHIBIT 10.1.2
SECOND AMENDMENT AND CONSENT
TO CREDIT AGREEMENT
THIS SECOND AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this "Amendment"),
is made and entered into as of this 24 day of September, 2004, with an effective
date as set forth in Section 4 hereof, by and among XXXX IN THE BOX INC., a
corporation organized under the laws of Delaware (the "Borrower"), those certain
subsidiaries of the Borrower party to the Guaranty Agreement referred to below
(the "Guarantors"), the Lenders party to the Credit Agreement referred to below
(the "Lenders") pursuant to the authorization (in the form attached hereto as
Annex A, the "Authorization"), WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent for the Lenders (the "Administrative Agent"), FLEET
NATIONAL BANK and US BANK, NATIONAL ASSOCIATION, each in its capacity as a
Syndication Agent (collectively, the "Syndication Agents"), COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL," NEW YORK
BRANCH and BNP PARIBAS, each in its capacity as a Documentation Agent
(collectively, the "Documentation Agents"). WACHOVIA CAPITAL MARKETS, LLC acted
as Lead Arranger in connection with this Amendment.
Statement of Purpose
The Lenders agreed to extend certain credit facilities to the Borrower
pursuant to the Amended and Restated Credit Agreement dated as of January 8,
2004 by and among the Borrower, the Lenders, the Administrative Agent, the
Syndication Agents and the Documentation Agents (as previously amended by that
First Amendment to Credit Agreement dated June 18, 2004, as amended hereby and
as may be further amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"). In connection therewith, certain of the
Subsidiaries of the Borrower reaffirmed their respective obligations under the
Guaranty Agreement dated as of January 22, 2003 in favor of the Administrative
Agent for the ratable benefit of itself and the other Lenders (as reaffirmed and
amended by the Reaffirmation and Master Amendment dated as of January 8, 2004
and as further amended, restated, supplemented or otherwise modified from time
to time, the "Guaranty Agreement").
The parties now desire to amend or modify certain provisions of the Credit
Agreement in certain respects on the terms and conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. All capitalized undefined terms used in this
Amendment shall have the meanings assigned thereto in the Credit Agreement.
2. Amendments to the Credit Agreement. The Credit Agreement is hereby
modified as follows:
(a) Amendment to Existing Definitions. The definition of the following
defined term which is set forth in Section 1.1 of the Credit Agreement is hereby
amended in its entirety as follows:
"Excess Cash Flow" means, for any period of determination commencing with
the Fiscal Year ending October 2, 2005 and thereafter, the sum of the following
determined on a Consolidated basis, without duplication, for the Borrower and
its Restricted Subsidiaries in accordance with GAAP: (a) EBITDA for such period,
minus (b) cash taxes and Interest Expense paid in cash for such period, minus
(c) all scheduled principal payments made in respect of Debt during such period
minus (d) all Capital Expenditures made during such period, minus (e)
non-scheduled principal payments with respect to the Term Loan Facility plus or
minus (f) any increases or decreases in Working Capital minus (g) the cash
portion of the purchase price for Permitted Acquisitions minus (h) any
reasonable transaction costs and expenses incurred in connection with Permitted
Acquisitions minus (i) Net Cash Proceeds from any offering of equity securities
by the Borrower or any of its Restricted Subsidiaries other than solely as a
result of offerings of equity securities made in connection with any employee
stock option, incentive plan or stock purchase plan or made in connection with
compensation or incentive plans for directors and officers, in each case,
entered into in the ordinary course of business, or the exercise of any options
or other convertible securities in connection therewith minus (j) the purchase
price of repurchases of the common stock of the Borrower made in cash during
such period pursuant to the terms of Section 11.6(b).
(b) Amendment to Add New Definitions. Section 1.1 of the Credit Agreement
is hereby amended by inserting the following new definitions in appropriate
alphabetical order:
"Independent Collateral Account" means a collateral account established
and maintained by the Independent Issuer. The amounts held in such collateral
account shall in no event exceed $55,000,000 in the aggregate at any time, shall
be subject to the Lien of the Independent Issuer pursuant to Section 11.2 and
shall be available to reimburse the Independent Issuer for draws, fees, expenses
and related obligations with respect to the Independent Letters of Credit in the
event that the Borrower defaults on its reimbursement obligations to the
Independent Issuer with respect to such letters of credit.
"Independent Issuer" means Wachovia, in its capacity as issuer of the
Independent Letters of Credit.
"Independent Letters of Credit" means those letters of credit issued by
the Independent Issuer for the account of the Borrower in an aggregate maximum
face amount not to exceed $50,000,000. The Independent Letters of Credit shall
be issued outside of the Credit Facility and shall not constitute Letters of
Credit under this Agreement. Each Independent Letter of Credit shall expire on a
date satisfactory to the Independent Issuer, which date shall be no later than
the earlier of (A) one (1) year after the date of its issuance (but any
Independent Letter of Credit may, by its terms, be renewable annually with the
consent of the Independent Issuer), and (B) the fifth (5th) Business Day prior
to the Revolving Credit Maturity Date."
(c) Amendment to Section 11.1. Section 11.1 of the Credit Agreement is
hereby amended by (i) deleting the word "and" after the semicolon at the end of
subsection (m); (ii) inserting the word "and" after the semicolon at the end of
subsection (n); and (iii) inserting the following as a new subsection (o):
"(o) Debt of the Borrower or any of its Restricted Subsidiaries consisting
of all obligations, contingent or otherwise, of the Borrower or any of its
Restricted Subsidiaries relative to the face
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amount of the Independent Letters of Credit, whether drawn or undrawn,
including, without limitation, any reimbursement obligations in connection with
the Independent Letters of Credit;"
(d) Amendment to Section 11.2. Section 11.2 of the Credit Agreement is
hereby amended by (i) deleting the word "and" after the semicolon at the end of
subsection (m); (ii) deleting the period at the end of subsection (n) and
replacing it with "; and"; and (iii) inserting the following as a new subsection
(o):
"(o) Liens of the Independent Issuer in and to the Independent Collateral
Account and the items deposited therein"
(e) Amendment to Section 11.6. Section 11.6 of the Credit Agreement is
hereby amended by (i) deleting the reference to "$15,000,000" in subsection (b)
and replacing it with "$115,000,000".
3. Consent. Each of the Lenders executing an Authorization acknowledges
and consents to the grant by the Borrower of a first priority Lien to the
Independent Issuer in and to the Independent Collateral Account and all amounts
on deposit therein and authorizes the Administrative Agent on its behalf to
prepare and execute any documentation necessary to release the Liens of the
Administrative Agent for the benefit of the Lenders on the Independent
Collateral Account and all amounts on deposit therein; provided that such
release shall remain effective only for so long as the Independent Letters of
Credit and any unreimbursed draws, fees, expenses and related obligations on
such letters of credit remain outstanding. In furtherance of the foregoing the
Borrower by its execution of this Amendment grants to the Administrative Agent
(for the ratable benefit of itself and the other Lenders) a Lien on the
Independent Collateral Account, the proceeds therefrom and all items on deposit
therein, which Lien shall, without any further action by the Administrative
Agent, the Lenders or the Borrower immediately and automatically attach to the
Independent Collateral Account, the proceeds therefrom and the items on deposit
therein upon the final expiration or termination of the Independent Letters of
Credit and payment in full of all draws, fees, expenses and related obligations
with respect to such letters of credit. The Borrower further agrees to perform,
make, execute and deliver any and all acts, documents, deeds and instruments
that the Administrative Agent may require to evidence , perfect and maintain
such Lien.
4. Effectiveness. This Amendment shall become effective on the date that
each of the following conditions has been satisfied:
(a) Amendment Documents. The Administrative Agent shall have
received (1) a duly executed counterpart of this Amendment from the
Administrative Agent, the Borrower and each Guarantor and (2) an Authorization
from the Required Lenders.
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(b) Fees and Expenses. The Administrative Agent shall have been
reimbursed for all fees and out of pocket charges and other expenses incurred in
connection with this Amendment, including, without limitation, the fees and
expenses referred to in Section 8 of this Amendment, the Credit Agreement and
the transactions contemplated thereby.
(c) Other Documents. The Administrative Agent shall have received
any other documents or instruments reasonably requested by the Administrative
Agent in connection with the execution of this Amendment.
5. Acknowledgement of Guarantors; Reaffirmation of Security Documents.
(a) By their execution hereof, each Guarantor hereby expressly (i)
consents to the modifications and amendments set forth in this Amendment, (ii)
reaffirms all of its respective covenants, representations, warranties and other
obligations set forth in the Guaranty Agreement and the other Loan Documents to
which it is a party and (iii) acknowledges, represents and agrees that its
respective covenants, representations, warranties and other obligations set
forth in the Guaranty Agreement and the other Loan Documents to which it is a
party remain in full force and effect.
(b) The Borrower and each Guarantor hereby confirms that each of the
Security Documents to which it is a party shall continue to be in full force and
effect and is hereby ratified and reaffirmed in all respects as if fully
restated as of the date hereof by this Amendment. In furtherance of the
reaffirmations set forth in this Section 5, the Borrower and each Guarantor
hereby grants and assigns a security interest in all Collateral identified in
any Security Document as collateral security for the Obligations and the
Guaranteed Obligations (as defined in the Guaranty Agreement).
6. Effect of Amendment. Except as expressly amended hereby, the Credit
Agreement and Loan Documents shall remain in full force and effect in accordance
with their respective terms. The amendments granted herein are specific and
limited and shall not constitute a modification, acceptance or waiver of any
other provision of or default under the Credit Agreement, the Loan Documents or
any other document or instrument entered into in connection therewith or a
future modification, acceptance or waiver of the provisions set forth therein.
7. Representations and Warranties/No Default.
(a) By its execution hereof, the Borrower and each Guarantor hereby
certifies that each of the representations and warranties set forth in the
Credit Agreement, the Guaranty Agreement and the other Loan Documents is true
and correct as of the date hereof as if fully set forth herein (except for any
representation and warranty made as of an earlier date, which representation and
warranty shall remain true and correct as of such earlier date) and that no
Default or Event of Default has occurred and is continuing as of the date
hereof.
(b) By its execution hereof, the Borrower and each Guarantor hereby
represents and warrants that the Borrower and each Guarantor thereof has the
right, power and authority and has taken all necessary corporate and other
action to authorize the execution, delivery and performance of this
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Amendment and each other document executed in connection herewith to which it is
a party in accordance with their respective terms.
(c) This Amendment and each other document executed in connection herewith
has been duly executed and delivered by the duly authorized officers of the
Borrower and each Guarantor party thereto, and each such document constitutes
the legal, valid and binding obligation of the Borrower and each Guarantor party
thereto, enforceable in accordance with its terms except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
state or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies.
8. Fees and Expenses. The Borrower shall pay all reasonable out-of-pocket
fees and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent.
9. Governing Law. This Amendment shall be governed by, construed and
enforced in accordance with, the laws of the State of New York (including
Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of
New York), without regard to the conflicts of law provisions of such state.
10. Counterparts. This Amendment may be executed in separate counterparts,
each of which when executed and delivered is an original but all of which taken
together constitute one and the same instrument.
11. Facsimile Transmission. A facsimile, telecopy or other reproduction of
this Amendment may be executed by one or more parties hereto, and an executed
copy of this Amendment may be delivered by one or more parties hereto by
facsimile or similar instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Amendment as well as any facsimile, telecopy or
other reproduction hereof.
[Signature Pages To Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first above written.
BORROWER:
XXXX IN THE BOX INC.
By: /S/XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Vice President / Treasurer
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GUARANTORS:
XXXX IN THE BOX EASTERN DIVISION L.P.
By: JBX General Partner LLC, its General
Partner
By: Xxxx in the Box Inc., its Sole and
Managing Member
By: /S/XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President / Treasurer
JBX GENERAL PARTNER LLC
By: Xxxx in the Box Inc., its Sole and
Managing Member
By: /S/XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President / Treasurer
JBX LIMITED PARTNER LLC
By: Xxxx in the Box Inc., its Sole and
Managing Member
By: /S/XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President / Treasurer
[Signature Pages Continue]
[Second Amendment - Xxxx in the Box, Inc.]
QDOBA RESTAURANT CORPORATION
By: /S/XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
ADMINISTRATIVE AGENT AND LENDERS:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent,
as Lender and at the request of the other
Lenders party to the Credit Agreement
pursuant to the Authorization
By: /S/ XXXXXXX X. XXXXXX III
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Name: Xxxxxxx X. Xxxxxx XX
Title: Assistant Vice President
[Second Amendment - Xxxx in the Box, Inc.]
