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Exhibit 10-79
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AMENDMENT NO. TWO AND WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. Two and Waiver to Amended and Restated Credit Agreement
(the "Amendment") dated as of 9/27, 1993, is between Bank of America National
Trust and Savings Association (the "Bank") and Carl Karcher Enterprises, Inc.
(the "Borrower").
RECITALS
A. The Bank and the Borrower entered into a certain Amended and Restated
Credit Agreement dated as of November 20, 1992, as amended by Amendment No. One
dated as of April 28, 1993 (the "Agreement").
B. The Borrower is in default of certain terms and conditions of the
Agreement and has requested the Bank to waive such defaults.
C. The Borrow has requested the Bank to amend the Agreement in certain
respects.
D. The Bank has agreed to waive the defaults and to amend the Agreement but
on the terms and conditions herein contained.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
2.1 Paragraph 6.4 of the Agreement is hereby amended in full to read as
follows:
"6.4 Retained Earnings. As of each date indicated below, increase
Retained Earnings by an amount that is greater than the Retained Earnings as
of the last day of the immediately prior fiscal year as indicated below, by
at least the amount set opposite such date.
Minimum Semi-Annual increase
in Retained Earnings over
Prior Fiscal Year End Retained
Date Earnings
August 15, 1994 $5,000,000
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Minimum Annual increase in
Retained Earnings Over Prior
Fiscal Year End Retained
Date Earnings
January 31, 1994 $5,000,000
For the purposes of this Agreement, "Retained Earnings" means cumulative
earnings shown on the Borrower's balance sheet and in accordance with
generally accepted accounting principles consistently applied."
2.2 Paragraph 6.13 is hereby amended to read in full as follows:
"6.13 Stock Redemption. Not to expend funds for the redemption of
capitalstock of the Borrower."
2.3 Paragraph 6.27 is hereby amended to read in full as follows:
"6.27 Minimum Net Income. Earn net income before taxes of at least
the amounts indicated at the end of each fiscal period as specified below:
Period End Amount
Year to date at the end of
the third fiscal quarter
of 1994 $5,400,000
Year to date at the end of
fiscal year 1994. $8,700,000"
2.4 The following Paragraph 8.13 is hereby added to the Agreement:
"8.13 Board of Directors. Two (2) or more members of the
Borrower's Board of Directors, as currently composed, change for
any reason.
3. Defaults. The Borrower hereby acknowledges that it breached the
following terms and conditions of the Agreement for the fiscal period
ending August 9, 1993:
3.1 Paragraph 6.4 in that Retained Earnings were $2,345,000 and not
$2,500,000 as required.
3.2 Paragraph 6.13 in that the Borrower redeemed 59,752 shares of its
capital stock in violation of the conditions set forth in said paragraph.
3.3 Paragraph 6.27 in that net income before taxes was $3,849,000 and
not $4,850,000 as required.
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4. Waiver. The Bank hereby waives compliance with the above covenants
for the fiscal period ending August 9, 1993.
5. Representations and Warranties. When the Borrower signs this Amendment,
the Borrower represents and warrants to the Bank that: (a) other than the
defaults listed above there is no event which is, or with notice of, or lapse
of time, or both would be, a default under the Agreement and (b) the
representations and warranties in the Agreement are true as of the date of the
Amendment as if made on the date of this Amendment, (c) this Amendment is
within the Borrower's powers, has been duly authorized, and does not conflict
with any of the Borrower's organizational papers, and (d) this Amendment does
not conflict with any law, agreement, or obligations by which the Borrower is
bound.
6. Conditions. This Amendment will be effective when the Bank receives the
following items, in form and content acceptable to the Bank:
6.1 This Amendment executed by the Borrower.
6.2 A fee of $15,000.
7. Effect of Amendment and Waivers. The above waivers shall be limited
precisely as written and relate solely to the sections of the Agreement and for
the time referred to above. Nothing in the above consents shall be deemed to
(a) constitute a waiver of compliance by the Borrower with respect to any other
term, provision or condition os the Agreement or any other instrument or
agreement referred to therein or (b) prejudice any right or remedy that the
Bank may now have or may have in the future under applicable law or instrument
or agreement referred to therein. Except as expressly set forth herein, the
terms, provisions, and conditions of the Agreement and the other documents
issued pursuant thereto shall remain in full force and effect and in all other
respects are hereby ratified and confirmed.
This Amendment is executed as of the date stated at the top of the
first page.
BANK OF AMERICA NATIONAL TRUST CARL KARCHER ENTERPRISES INC.
AND SAVINGS ASSOCIATION.
By /s/ Deborah Miller By /s/ Donald E.Doyle
Title Vice President Title President, CEO
By __________________________ By /s/ Loren C. Pannier
Title _______________________ Title Sr. Vice President, CFO
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