AMENDMENT NO. 2 TO
SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 2 TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is entered into as of April 21, 2005, among CKE Restaurants, Inc.
(the "Borrower"), the Lenders party hereto (the "Lenders") and BNP Paribas, a
bank organized under the laws of France acting through its Chicago branch ("BNP
Paribas"), as agent for the Lenders (in such capacity, the "Agent").
RECITALS
The Borrower, the Lenders and the Agent are parties to that certain Sixth
Amended and Restated Credit Agreement, dated as of June 2, 2004 (as amended by
that certain Amendment No. 1 to Sixth Amended and Restated Credit Agreement
dated November 4, 2004 among the Borrower, the Lenders and the Agent, the
"Credit Agreement").
The Borrower has requested that the Agent and the Lenders amend certain
provisions of the Credit Agreement as more fully described herein.
The Agent and the Lenders have agreed to grant such amendments upon the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings assigned thereto in the Credit
Agreement.
2. Amendments to the Credit Agreement. Subject to the terms and conditions
set forth herein, the Credit Agreement is hereby amended as follows:
(a) Rate Reduction.
(i) Section 1.1 of the Credit Agreement is hereby amended as
follows:
(1) the definition of "APPLICABLE MARGIN" is hereby amended
by deleting the grid set forth in the definition in its
entirety and replacing such grid with the following:
Leverage Ratio Eurodollar Loans Base Rate Loans Commitment Fee
- -------------- ---------------- --------------- --------------
less than or equal to 2.75 to 1.0 2.00% 0.75% 0.50%
greater than 2.75
2.25% 1.00% 0.50%
(2) the following definition shall be added in alphabetical
order:
""APPLICABLE L/C FEE RATE" shall mean (A) if the
Leverage Ratio is less than or equal to 2.75 to 1.0,
2.25% and (B) if the Leverage Ratio is greater than
2.75, 2.50%."
(ii) Section 2.6(a)(ii) of the Credit Agreement is hereby amended
by deleting the reference to "1.25%" in clause (x) thereof in
its entirety and replacing such percentage with "1.00%".
(iii) Section 2.6(b)(ii) of the Credit Agreement is hereby amended
by deleting the reference to "2.50%" in clause (x) thereof in
its entirety and replacing such percentage with "2.25%".
(iv) Section 2.6(c)(i) of the Credit Agreement is hereby amended by
deleting the reference to "1.50%" in clause (y) thereof in its
entirety and replacing such percentage with "1.25%".
(v) Section 3.2 of the Credit Agreement is hereby amended by
deleting all the references to (A) "Applicable Margin for
Eurodollar Loans" in its entirety and replacing them with
"Applicable L/C Fee Rate" and (B) "2004" in its entirety and
replacing them with "2005".
(b) Cash Dividends on Common Stock.
(i) Section 1.1 of the Credit Agreement is hereby amended by
inserting the following at the end of the definition of
"JUNIOR CAPITALIZATION AMOUNT":
", plus (C) all cash dividends paid by the Borrower on any
common stock of the Borrower from and after the Closing Date
to and including such time, to pay such cash dividends in
accordance with Section 7.7(d)"
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(ii) Section 7.7(d) of the Credit Agreement is hereby amended by
deleting it in its entirety and replacing it with the
following:
"The Borrower may redeem, retire or purchase any shares of any
class of the Capital Stock of the Borrower, and/or declare and
pay dividends in cash with respect to any common stock of the
Borrower provided, that (i) the cumulative amount of (A) the
purchase price paid by the Borrower for such Capital Stock and
(B) the cash dividends paid by the Borrower on such common
stock shall not exceed, in the aggregate after giving effect
to such payments and all other payments made pursuant to this
Section 7.7(d) and Section 7.10(d)(iv) hereof, the Junior
Recapitalization Amount, (ii) both before and after giving
effect to any such redemption, retirement or purchase, and/or
any such declaration and payment of any dividend, no Default
or Event of Default shall have occurred and be continuing and
(iii) after giving effect to such redemption, retirement or
purchase, and/or such declaration and payment of any dividend,
the Unused Portion shall be at least $25,000,000."
3. Representations and Warranties. The Borrower represents and warrants to
the Agent and the Lenders, as of the date hereof, that both before and
after giving effect to this Amendment:
(a) no Default or Event of Default has occurred and is continuing; and
(b) all of the representations and warranties of the Borrower and each
other Loan Party contained in the Transaction Documents are true and
correct.
4. Conditions to Effectiveness of this Amendment. Upon satisfaction of the
following conditions precedent, this Amendment shall immediately become
effective as of the date hereof:
(a) with respect to the amendments set forth in (i) Section 2(a), the
Agent shall have received a counterpart to this Amendment, duly
executed and delivered by the Borrower and each of the Lenders and
(ii) Section 2(b), the Agent shall have received a counterpart to
this Amendment, duly executed and delivered by the Borrower and each
of the Required Lenders;
(b) the Agent shall have received a certificate of a duly authorized
officer of the Borrower certifying as to matters set forth in
Section 3 of this Amendment;
(c) the Agent shall have received such other agreements, instruments,
certificates and opinions relating to the transactions contemplated
hereby as may have been reasonably requested by the Agent or any
Lender.
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5. Miscellaneous.
(a) Effect; Ratification. The amendments set forth herein are effective
solely for the purposes set forth herein and shall be limited
precisely as written, and shall not be deemed to (i) be a consent to
any amendment, waiver or modification of any other term or condition
of any Transaction Document or of any other instrument or agreement
referred to therein, except as set forth herein, or (ii) prejudice
any right or remedy that the Agent or any Lender may now have or may
have in the future under or in connection with the Credit Agreement,
as amended hereby, or any other instrument or agreement referred to
therein. Each reference in the Credit Agreement to "this Agreement,"
"herein," "hereof" and words of like import and each reference in
the other Transaction Documents to the "Credit Agreement" shall mean
the Credit Agreement as amended hereby. This Amendment shall be
construed in connection with and as part of the Credit Agreement and
all terms, conditions, representations, warranties, covenants and
agreements set forth in the Credit Agreement and each other
instrument or agreement referred to therein, except as herein
amended, are hereby ratified and confirmed and shall remain in full
force and effect.
(b) Expenses and Fees. Notwithstanding anything contained in the Credit
Agreement, as amended hereby, or any other Transaction Document and
in addition to any fees and expenses required to be paid by the
Borrower thereunder, the Borrower agrees to pay all reasonable
out-of-pocket costs, fees and expenses incurred by the Agent in
connection with the preparation, execution and delivery of this
Amendment (including the reasonable fees and expenses of counsel to
the Agent).
(c) Counterparts. This Amendment may be executed in any number of
counterparts, each such counterpart constituting an original and all
of which when taken together shall constitute one and the same
instrument.
(d) Severability. Any provision contained in this Amendment that is held
to be inoperative, unenforceable or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable or
invalid without affecting the operation, enforceability or validity
of the remaining provisions of this Amendment in that jurisdiction
or the operation, enforceability or validity of such provision in
any other jurisdiction.
(e) GOVERNING LAW. THE RIGHTS AND DUTIES OF THE BORROWER, THE LENDERS
AND THE AGENT UNDER THIS AMENDMENT, SHALL BE GOVERNED BY THE LAW OF
THE STATE OF ILLINOIS, EXCLUDING CHOICE OF LAW PRINCIPLES THAT WOULD
REQUIRE THE APPLICATION OF THE LAWS OF ANY STATE OTHER THAN SUCH
STATE.
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(f) WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE BORROWER, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY
WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AMENDMENT,
THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY MATTER
ARISING HEREUNDER OR THEREUNDER.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first above written.
CKE RESTAURANTS, INC.
By: /s/ Theodore Abajian
---------------------------------
Name: Theodore Abajian
Title: Executive Vice President and
Chief Financial Officer
[Lender signatures]