Exhibit 10.1
SECOND AMENDMENT
Dated as of February 27, 1999
This SECOND AMENDMENT (this "Amendment") is among FOODMAKER, INC., a
Delaware corporation (the "Borrower"), the financial institutions and other
entities party to the Credit Agreement referred to below (the "Lenders"), and
NATIONSBANK, N.A. (successor to NationsBank of Texas, N.A.), as L/C Bank (as
defined in the Credit Agreement) and as agent (the "Agent") for the Lenders and
the Issuing Banks thereunder.
PRELIMINARY STATEMENTS:
1. The Borrower, the Lenders, the Arranger, the Documentation Agent
and the Agent have entered into a Credit Agreement dated as of April 1, 1998, as
amended by the First Amendment dated as of August 24, 1998 (as so amended, the
"Credit Agreement"; capitalized terms used and not otherwise defined herein have
the meanings assigned to such terms in the Credit Agreement).
2. The Borrower has requested that the Lenders amend the definition
of "Capital Expenditures" set forth in the Credit Agreement to exclude certain
expenditures therefrom to the extent such capital expenditures are reimbursed by
third party suppliers of the Borrower.
3. The Required Lenders are, on the terms and conditions stated
below, willing to grant the request of the Borrower.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Credit Agreement. Effective as of the date
hereof and subject to satisfaction of the conditions precedent set forth in
Section 2 hereof, the Credit Agreement is hereby amended as follows:
Section 1.01 of the Credit Agreement is hereby amended by adding
thereto, in appropriate alphabetical order, the following defined term:
"CapEx Reimbursements" means amounts received in cash from suppliers
(net of any refunds of such amounts to such suppliers) to the Borrower and
its Subsidiaries (but only to the extent such suppliers are not Affiliates
of the Borrower or any of its Subsidiaries) in reimbursement of capital
expenditures made or to be made by the Borrower and its Subsidiaries."
The definition of "Capital Expenditures" contained in Section 1.01 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Capital Expenditures' means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
that portion of Capitalized Leases which is capitalized on a Consolidated
balance sheet of the Borrower and its Subsidiaries) that in conformity with
GAAP would otherwise be classified as capital expenditures; provided,
however, that Capital Expenditures shall not include expenditures (i) in
connection with any Permitted Sale-Leaseback Repurchase, or (ii) to the
extent of any CapEx Reimbursement in respect thereof actually received by
the Borrower or any of its Subsidiaries (it being understood that any CapEx
Reimbursement deducted in any period and refunded by the Borrower or any of
its Subsidiaries in a subsequent period shall constitute Capital
Expenditures in such subsequent period to the extent such refund is not
deducted in the calculation of the amount of CapEx Reimbursement for such
subsequent period)."
The definition of "EBITDA" contained in Section 1.01 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"EBITDA" means, for any period, (i) net income (or net loss) minus
any non-recurring or extraordinary gains plus (ii) to the extent deducted
in determining such net income (or net loss), the sum of (a) interest
expense, (b) income tax expense, (c) depreciation expense, (d) amortization
expense, and (e) non-recurring or extraordinary losses, in each case
determined in accordance with GAAP for such period minus (iii) to the
extent included in determining such net income (or net loss), the amount of
any CapEx Reimbursements received in such period.
SECTION 2. Conditions to Effectiveness. This Amendment shall not be
effective until each of the following conditions precedent shall have been
satisfied:
(a) the Agent shall have executed this Amendment and shall have
received counterparts of this Amendment executed by the Borrower and the
Required Lenders and counterparts of the Consent appended hereto (the "Consent")
executed by each of the Guarantors and Grantors (as defined in the Security
Agreement) listed therein (such Guarantors and Grantors, together with the
Borrower, each a "Loan Party" and, collectively, the "Loan Parties"); and
(b) each of the representations and warranties in Section 3 below
shall be true and correct.
SECTION 3. Representations and Warranties. The Borrower represents
and warrants as follows:
(a) Authority. The Borrower and each other Loan Party has the
requisite corporate power and authority to execute and deliver this Amendment
and the Consent, as applicable, and to perform its obligations hereunder and
under the Loan Documents (as modified hereby) to which it is a party. The
execution, delivery and performance by the Borrower of this Amendment and by
each other Loan Party of the Consent, and the performance by each Loan Party of
each Loan Document (as modified hereby) to which it is a party have been duly
approved by all necessary corporate action of such Loan Party and no other
corporate proceedings on the part of such Loan Party are necessary to consummate
such transactions.
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(b) Enforceability. This Amendment has been duly executed and
delivered by the Borrower. The Consent has been duly executed and delivered by
each Guarantor and each Grantor. This Amendment and each Loan Document (as
modified hereby) is the legal, valid and binding obligation of each Loan Party
party hereto and thereto, enforceable against such Loan Party in accordance with
its terms, and is in full force and effect.
(c) Representations and Warranties. The representations and
warranties contained in each Loan Document (other than any such representations
and warranties that, by their terms, are specifically made as of a date other
than the date hereof) are true and correct on and as of the date hereof as
though made on and as of the date hereof.
(d) No Default. No event has occurred and is continuing that
constitutes a Default or Event of Default.
SECTION 4. Reference to and Effect on the Loan Documents. (a) Upon
and after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as modified hereby.
(b) Except as specifically modified above, the Credit Agreement and
the other Loan Documents are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Collateral Documents and all of the Collateral
described therein do and shall continue to secure the payment of all Secured
Obligations under and as defined therein, in each case as amended hereby.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender, any Issuing Bank, the Arranger, the Documentation
Agent or the Agent under any of the Loan Documents, nor constitute a waiver or
amendment of any provision of any of the Loan Documents.
SECTION 5. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment or the
Consent by telefacsimile shall be effective as delivery of a manually executed
counterpart of this Amendment or such Consent.
SECTION 6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first written above.
FOODMAKER, INC.,
a Delaware corporation
By: HAROLD SACHS
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Name: Harold Sachs
Title: Treasurer
NATIONSBANK, N.A. (successor to NationsBank
of Texas, N.A.),
as Agent
By: RICHARD G. PARKHURST, JR.
-------------------------
Name: Richard G. Parkhurst, Jr.
Title: Senior Vice President
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Lenders
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NATIONSBANK, N.A. (successor to NationsBank
of Texas, N.A.)
By: RICHARD G. PARKHURST, JR.
-------------------------
Name: Richard G. Parkhurst, Jr.
Title: Senior Vice President
CREDIT LYONNAIS LOS ANGELES BRANCH
By: DIANNE M. SCOTT
---------------
Name: Dianne M. Scott
Title: First Vice President and Branch Manager
ROYAL BANK OF CANADA
By: JOHN CRAWFORD
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Name: John Crawford
Title: Senior Manager
UNION BANK OF CALIFORNIA, N.A.
By: LINDA WELKER
------------
Name: Linda Welker
Title: Vice President
BANK ONE, TEXAS, N.A.
By: THOMAS R. FREAS
---------------
Name: Thomas R. Freas
Title: Managing Director, Authorized Office
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CIBC OPPENHEIMER CORP., AS AGENT FOR CIBC INC.
By: GERALD GIRARDI
--------------
Name: Gerald Girardi
Title: Executive Director
SANWA BANK CALIFORNIA
By: L.D. HART
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Name: L.D. Hart
Title: Vice President
NATEXIS BANQUE - BFCE
By: DANIEL TOUFFU
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Name: Daniel Touffu
Title: Senior VP and Regional Manager
By: PEYMAN PARHAMI
--------------
Name: Peyman Parhami
Title: Assistant Treasurer
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CONSENT
Dated as of February 27, 1999
The undersigned, as Guarantors under the "Guaranty" and as
Grantors under the "Security Agreement" (as such terms are defined in and under
the Credit Agreement referred to in the foregoing Second Amendment), each hereby
consents and agrees to the foregoing Second Amendment and hereby confirms and
agrees that (i) the Guaranty and the Security Agreement are, and shall continue
to be, in full force and effect and are hereby ratified and confirmed in all
respects except that, upon the effectiveness of, and on and after the date of,
said Second Amendment, each reference in the Guaranty and the Security Agreement
to the "Credit Agreement", "thereunder", "thereof" and words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as amended by said Second Amendment, and (ii) the Security Agreement
and all of the Collateral described therein do, and shall continue to, secure
the payment of all of the Secured Obligations as defined in the Security
Agreement.
CP DISTRIBUTION CO., a Delaware corporation,
CP WHOLESALE CO., a Delaware corporation, and
JACK IN THE BOX, INC., a New Jersey corporation
By: LAWRENCE E. SCHAUF
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Name: Lawrence E. Schauf
Title: Executive Vice President and Secretary
FOODMAKER INTERNATIONAL
FRANCHISING, INC.,
a Delaware corporation
By: HAROLD L. SACHS
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Harold L. Sachs
Treasurer