Exhibit 10.1.1
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT ("Amendment") is made as of
November 26, 1996, 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 Amended and Restated Revolving Credit
Agreement, dated as of March 15, 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. The definition of "Applicable Margin" in
Section 1.01(c) is amended to read in its entirety as
follows:
"Applicable Margin" shall mean with respect to ABR
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Loans and Eurodollar Loans the rate per annum set forth
opposite the applicable Leverage Ratio set forth below.
APPLICABLE MARGIN
Eurodollar
Leverage Ratio ABR Loans Loans
------------------ --------------- ----------
Greater than 1.50% 2.50%
4.5:1
4.00:1 to 4.5:1 1.00% 2.00%
3.50:1 to 4.0:1 0.75% 1.75%
less than 3.50:1 0.50% 1.50%
3. The definition of "Consolidated Capital
Expenditures" in Section 1.01(c) is amended to read in its
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), excluding expenditures made for Permitted
Restaurant Repurchases and Permitted Sale Leaseback
Repurchases, by the Company and its Subsidiaries during such
period that in conformity with GAAP would be classified as
capital expenditures.
4. The definition of "Leverage Ratio" in Section
1.01(c) is amended to read in its entirety as follows:
"Leverage Ratio" shall mean a ratio of
Indebtedness of the Company to Consolidated EBITDA for the
previous four fiscal quarters.
5. The definition of "Excluded Asset Sale" in
Section 1.01(c) is amended to read in its entirety as
follows:
"Excluded Asset Sale" shall mean (i) the sale of
goods in the ordinary course of business; (ii) sales of
assets to franchisees in the ordinary course of business
consistent with past practice; (iii) the sale of any
property or assets, excluding properties listed on Schedule
7.01(b)-1, acquired after March 15, 1996 by the Company or
its Subsidiaries pursuant to a sale-leaseback transaction;
(iv) the sale, lease, transfer or disposal of any asset or
assets by the Company or a Subsidiary of the Company to any
of the Company or any Subsidiary of the Company; (v) the
sale or other disposition of obsolete or worn out equipment
or other assets in the ordinary course of business; (vi) the
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sale, lease, transfer or disposal of properties listed on
Schedule 1.01(c), as amended from time to time; (vii) the
sale, lease, transfer or disposal of no more than two
properties listed on Schedule 7.01(b)-1 or Schedule 7.01(b)-
2 in each fiscal year; provided, however, that the Company
may sell such properties if and only if the Company proposes
to add an equivalent number of sites, the real estate of
each having a book value no less than that of the property
for which it is being substituted, to Schedule 7.01(b)-1 and
the Agent shall have received (a) evidence satisfactory to
the Agent that Mortgages have been filed on the sites to be
added to Schedule 7.01(b)-1 and (b) revised versions of
Schedule 1.01 (c) and Schedule 7.01(b)-1, marked to show the
date of such revisions; (viii) the sale, lease, transfer or
disposal of assets (other than goods and services) having a
fair value consideration not exceeding $5,000,000 in the
aggregate for all of the Company and its Subsidiaries in any
fiscal year; provided, however, that for purposes of
clause (viii) no sale, lease, transfer or disposal of assets
having a fair value consideration of less than $100,000
shall be included in any aggregation of sales, leases,
transfers and disposals; or (ix) the sale or other
disposition to a Company franchisee of (a) any restaurant
that has been acquired by the Company from a franchisee or
(b) any other Company restaurant, provided that the
aggregate value of such Company restaurants sold or
otherwise disposed of pursuant to this clause (ix) does not
exceed the aggregate value of restaurants acquired by the
Company from its franchisees.
6. The definition of "Net Capital Expenditures"
in Section 1.01(c) is amended to read in its entirety as
follows:
"Net Capital Expenditures" shall mean capital
expenditures in accordance with GAAP, excluding expenditures
made for Permitted Restaurant Repurchases and Permitted Sale
Leaseback Repurchases, less proceeds from sale-leaseback
transactions involving assets not acquired through a
Permitted Restaurant Repurchase or Permitted Sale Leaseback
Repurchase.
7. The definition of "Permitted Restaurant
Repurchases" in Section 1.01(c) is amended to read in its
entirety as follows:
"Permitted Restaurant Repurchases" shall mean
restaurants repurchased by the Company from one or more of
its franchisees, provided that between September 30, 1996
and the Termination Date, the aggregate price of all such
repurchases, less any proceeds generated from the sale by
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the Company of restaurants to franchisees, does not exceed
$24,000,000, and provided further that when the Company
acquires a fee interest in the property through such
repurchase, the Company shall file a Mortgage on such
property within 30 days thereafter, and when the Company
acquires a leasehold interest in the property through such
repurchase, the Company shall use its best efforts to file a
Mortgage on such property promptly thereafter.
8. Clause (ii) of the definition of "Specified
Additional Indebtedness" in Section 1.01(c) is amended to
read in its entirety as follows:
(ii) Indebtedness incurred pursuant to sale-
leaseback transactions, entered into pursuant to the
acquisition of new restaurant properties, not exceeding
(A) $50,000,000 in the fiscal year ending September 1997 and
$60,000,000 in the fiscal year ending October 1998, or
(B) $120,000,000 during the period from September 30, 1996
to the Termination Date.
9. Definitions for the terms "Capital
Investment" and "Permitted Sale Leaseback Repurchases" are
added to Section 1.01(c) to read in their entirety as
follows:
"Capital Investment" shall mean capital
expenditures in accordance with GAAP, including Permitted
Restaurant Repurchases and Permitted Sale Leaseback
Repurchases.
"Permitted Sale Leaseback Repurchases" shall mean
the repurchase of property with respect to which the Company
has previously entered into a sale leaseback arrangement,
provided that such repurchase is completed by December 31,
1997 and that the aggregate purchase price of such
repurchases does not exceed $18,000,000, and provided
further that when the Company acquires a fee interest in the
property through such repurchase, the Company shall file a
Mortgage on such property within 30 days thereafter, and
when the Company acquires a leasehold interest in the
property through such repurchase, the Company shall use its
best efforts to file a Mortgage on such property promptly
thereafter.
10. Section 2.04 shall be amended to read in its
entirety as follows:
Section 2.04. Commitment Fee. The Company shall
pay to the Agent for the account of the Banks a fee (the
"Commitment Fee") equal, (a) if the Leverage Ratio is
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greater than 4.00:1, to 0.500 percent (1/2 of 1%) per annum
(on the basis of a 365-day year for the actual number of
days elapsed) on the daily average Available Commitment from
the date hereof to the Termination Date and (b) if the
Leverage Ratio is equal to or less than 4.00:1, to 0.375
percent per annum (on the basis of a 365-day year for the
actual number of days elapsed) on the daily average
Available Commitment from the date thereof to the
Termination Date. Such fee shall be payable in arrears on
the last day of each calendar quarter, commencing on the
first such date after the date hereof, and on the
Termination Date.
11. Section 8.02(d) shall be 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, 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.
12. Section 8.03(a) shall be amended to read in
its entirety as follows:
(a) Minimum Consolidated EBITDA. Maintain
Consolidated EBITDA of not less than the amounts specified
for each of the following periods:
For the Four Fiscal Amount
Quarters Ending (in millions)
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01/97 $95
04/97 $97
07/97 $98
09/97 $102
1/98 $106
4/98 $110
7/98 $114
10/98 $119
and thereafter
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13. Section 8.03(b) shall be amended to read in
its entirety as follows:
(b) Capital Expenditures. Not make or permit its
Subsidiaries to make, during the fiscal year ending at the
date specified, aggregate Net Capital Expenditures in an
amount in excess of that specified below for such period,
provided that if in any fiscal year the Company does not
make Net Capital Expenditures equal to the aggregate amount
permitted pursuant to this Section 8.03(b), up to
$10,000,000 of the excess of the amount permitted by this
Section over the amount of such expenditures made shall
carry over to the following fiscal year to increase the
amount of permitted expenditures in that period:
For the Fiscal Year Amount
Ending (in millions)
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09/97 $55
10/98 $75
10/05/98 - 12/31/98 $20
The Company may purchase property in which the
Company has an existing interest for an amount up to
$4,000,000, provided, that after subtracting the purchase
price from Consolidated EBITDA for the preceding four fiscal
quarters, the Company remains in compliance with all
covenants of this Section 8.03. If such purchase is made,
the purchase price will be subtracted from Consolidated
EBITDA for the purpose of determining subsequent fiscal
quarters' covenant compliance, the Applicable Margin and the
Commitment Fee.
14. Section 8.03(c) shall be amended to read in
its entirety as follows:
(c) Minimum Interest Coverage Ratio. Maintain a
ratio of Consolidated EBITDA to Consolidated Interest
Expense of not less than the ratio specified for each of the
following periods:
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For the Four Fiscal
Quarters Ending Ratio
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01/97 2.15:1
04/97 2.25:1
07/97 2.35:1
09/97 2.45:1
1/98 2.55:1
4/98 2.65:1
7/98 2.80:1
10/98 2.90:1
and thereafter
15. Section 8.03(d) shall be amended to read in
its entirety as follows:
(d) Fixed Charge Coverage Ratio. Maintain a
ratio of Consolidated EBITDA less Consolidated Capital
Expenditures, excluding Consolidated Capital Expenditures
made with the proceeds from sale leaseback transactions
involving assets not acquired through a Permitted Restaurant
Repurchase or Permitted Sale Leaseback Repurchase, and less
cash paid for Taxes to Consolidated Fixed Charges of not
less than the ratio specified for each of the following
periods:
For the Four Fiscal
Quarters Ending Ratio
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01/97 1.00:1
04/97 1.00:1
07/97 1.00:1
09/97 1.00:1
1/98 1.00:1
4/98 1.00:1
7/98 1.05:1
10/98 1.10:1
and thereafter
16. Section 8.03(e) shall be amended to read in
its entirety as follows:
(e) Maximum Leverage. Maintain a ratio of
Indebtedness at the date specified to Consolidated EBITDA
for the four fiscal quarters ending at the date specified
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not in excess of the ratio set forth below for the
applicable period:
For the Fiscal
Quarter Ending Ratio
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01/97 4.30:1
04/97 4.20:1
07/97 4.15:1
09/97 4.00:1
1/98 3.85:1
4/98 3.70:1
7/98 3.55:1
10/98 3.40:1
and thereafter
17. 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.
18. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK, UNITED STATES OF AMERICA.
19. 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.
20. 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.
21. 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: HAROLD L. SACHS
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Name: Harold L. Sachs
Title: Treasurer
CREDIT LYONNAIS, NEW YORK BRANCH,
as Agent for the Banks
By: FRED HADDAD
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Name: Fred Haddad
Title: Sr. Vice President
Address for Notices:
1301 Avenue of the Americas
New York, New York 10016
Attn: David Miller
Fax: (212) 459-3176
With copies to:
Credit Lyonnais Los Angeles Branch
515 South Flower Street
Los Angeles, California 90071
Attn: Eric Dulot
Fax: (213) 623-3437
Sullivan & Cromwell
444 South Flower Street
Suite 1200
Los Angeles, California 90071
Attn: Alison S. Ressler
Fax: (213) 683-0457
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CREDIT LYONNAIS NEW YORK BRANCH
Signing as a Bank, Swing Line
Bank and Collateral Agent
By: FRED HADDAD
---------------------
Name: Fred Haddad
Title: Sr. Vice President
Address for Notices:
1301 Avenue of the Americas
New York, New York 10016
Attn: David Miller
Fax: (212) 459-3176
With copies to:
Credit Lyonnais Los Angeles Branch
515 South Flower Street
Los Angeles, California 90071
Attn: Eric Dulot
Fax: (213) 623-3437
Sullivan & Cromwell
444 South Flower Street
Suite 1200
Los Angeles, California 90071
Attn: Alison S. Ressler
Fax: (213) 683-0457
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NATIONSBANK OF TEXAS, N.A.
as a Bank
By: MICHELE M. SHAFROTH
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Name: Michele M. Shafroth
Title: Senior Vice President
Address for Notices:
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 95202
Attn: Kay Hibbs
Fax: (214) 508-0944
Eurodollar Lending Office:
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 95202
Attn: Kay Hibbs
Fax: (214) 508-0944
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U.S. NATIONAL BANK OF OREGON
as a Bank
By: JANET E. JORDAN
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Name: Janet E. Jordan
Title: Vice President
Address for Notices:
111 S.W. Fifth Avenue, T-29
Portland, Oregon 97204
Attn: Janet E. Jordan
Fax: (503) 275-5428
Eurodollar Lending Office:
111 S.W. Fifth Avenue, T-29
Portland, Oregon 97204
Attn: Janet E. Jordan
Fax: (503) 275-5428
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UNION BANK OF CALIFORNIA, N.A. as a
Bank and as the Issuing Bank
By: PASHA MOGHADDAM
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Name: Pasha Moghaddam
Title: Vice President
Address for Notices:
445 South Figueroa Street
15th Floor
Los Angeles, California 90071
Attn: Wendy Frear
Fax: (213) 236-6701
Eurodollar Lending Office:
445 South Figueroa Street
15th Floor
Los Angeles, California 90071
Attn: Wendy Frear
Fax: (213) 236-6701
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