Exhibit 10.1
SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO THE REVOLVING CREDIT AGREEMENT
("Amendment") is made as of January 24, 1995, 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
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WHEREAS, the Company, the Banks, the Agent, the Collateral Agent,
the Swing Line Bank and the Issuing Bank entered into the Revolving Credit
Agreement, dated as of July 26, 1994 (as amended by the First Amendment to
the Revolving Credit Agreement, dated as of December 14, 1994, 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. Section 8.01(m) of the Credit Agreement is deleted in its
entirety and Section 8.01(n) is relabeled Section 8.01(m).
3. Section 8.02(d) is amended to read in its entirety as follows:
(d) Enter into any merger or consolidation or acquire assets of any
Person, except pursuant to the Fischbein Acquisition/Settlement, 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.
3. The definitions of "Consolidated Capital Expenditures" and
"Consolidated Fixed Charges" are amended to read in their entirety as
follows:
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including that portion of Capital Leases which is capitalized on the
consolidated balance sheet of the Company and its Subsidiaries) by the
Company and its Subsidiaries during such period that in conformity with GAAP
would be classified as capital expenditures; provided, however, expenditures
by the Company pursuant to the Fischbein Acquisition/Settlement shall not be
included in Consolidated Capital Expenditures for the purposes of this
definition.
"Consolidated Fixed Charges" shall mean, for any period, the sum,
without duplication, of (i) Consolidated Interest Expense for such period,
(ii) principal amounts of all Indebtedness of the Company and its
Subsidiaries scheduled to be paid during such period and (iii) Consolidated
Capital Expenditures, excluding Consolidated Capital Expenditures made with
the proceeds from sale leaseback transactions, made during such period.
4. Definitions for the terms "Affiliate" and "Fischbein
Acquisition/Settlement" are added to read in their entirety as follows:
"Affiliate" shall mean, when used with respect to a specified
Person, any other Person that directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control
with, such Person. For the purposes of this definition, the term "control"
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether
though the ownership of voting equity interests, by contract or otherwise;
provided, however, that none of the Agent, the Collateral Agent, the Swing
Line Bank nor any Bank shall be deemed an "Affiliate" of the Company or any
Subsidiary.
"Fischbein Acquisition/Settlement" shall mean the purchase, during
the first calendar quarter of 1995, of all of the stock of companies which
franchise twenty-seven restaurants from Ira Fischbein or Affiliates of Ira
Fischbein in connection with the settlement in full of all outstanding
litigation with such Persons, provided, total consideration for such purchase
and settlement shall not exceed $13.8 million and the cash component of such
consideration shall not exceed $10.5 million.
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5. 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.
6. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
7. 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. When counterparts
of this Amendment executed by each party shall have been lodged with the
Agent (or, in the case of any Bank as to which an executed counterpart shall
not have been so lodged, the Agent shall have received telegraphic, telex or
other written confirmation of execution of a counterpart hereof by such
Bank), this Amendment shall become effective as of the date hereof and the
Agent shall so inform all of the parties hereto.
8. 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.
9. 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 Amendment
to be executed as of the date first above written.
FOODMAKER, INC.
By: CHARLES DUDDLES
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Name: Charles Duddles
Title: Chief Financial Officer
CREDIT LYONNAIS NEW YORK BRANCH
as Agent for the Banks
By: FREDERICK HADDAD
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Name: Frederick Haddad
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH
as Collateral Agent for the Banks
By: FREDERICK HADDAD
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Name: Frederick Haddad
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH
as a Bank and as the Swing Line
Bank
By: FREDERICK HADDAD
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Name: Frederick Haddad
Title: Senior Vice President
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UNITED STATES NATIONAL BANK OF
OREGON
By: JANET E. JORDAN
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Name: Janet E. Jordan
Title: Vice President
UNION BANK as a Bank and as the
Issuing Bank
By: ALI PASHA MOGHADDAM
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Name: Ali Pasha Moghaddam
Title: Vice President
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