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Exhibit 10-80
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AMENDMENT NO. THREE AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. Three and Waiver to Amended and Restated Credit
Agreement (the "Amendment") dated as of DECEMBER 15, 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, and by Amendment No. Two and Waiver dated as of
September 27, 1993 (the "Agreement").
B. The Borrower is in default of a certain covenant of the Agreement and
has requested the Bank to waive such default.
C. The Borrower has requested the Bank to amend the Agreement in certain
respects.
D. The Bank has agreed to waive the default 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 6.6 of the Agreement is hereby amended in full to read
as follows:
"6.6 Fixed Charge Coverage Ration. To maintain a Fixed Charge
Coverage Ratio not less than the ratio indicated at the end of each
fiscal period as specified below:
Period End Ratio
For quarter ending
January 31, 1994,
calculated on a Four
Quarter Rolling Basis .94:1.00
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At the end of each fiscal
quarter thereafter,
calculated on a Four
Quarter Rolling Basis 1.00:1.00
For purposes of this Agreement, 'Fixed Charge Coverage Ratio' means
the following calculation, expressed as a ratio for any fiscal period:
(a) EBITDA less the net gain realized on sales of fixed assets (or the
EBITDA less the net loss incurred on sales of fixed assets) divided by
(b) the sum of (i) interest and tax expense, (ii) dividends paid,
(iii) current portion of long-term debt, (iv) current portion of
capital leases, and (v) the difference between (A) the total price of
fixed assets purchased and (B) the total principal amount of loans and
capital leases incurred to finance such purchases and the total amount
of cash proceeds realized from any sales of fixed assets; 'EBITDA'
means earnings before interest and tax expense, depreciation,
amortization, and other non-cash charges. This ratio shall be
calculated quarterly using a Four Quarter Rolling Basis. 'Four
Quarter Rolling Basis' shall mean the four quarters calculated using
the results of the fiscal quarter then most recently ended and the
immediately preceding three (3) quarters."
3. Defaults. The Borrower hereby acknowledges that it breached the
following covenant of the Agreement for the fiscal period ending November 1,
1993:
3.1 Paragraph 6.6 in that the Fixed Charge Coverage Ratio was .94:1.00
and not 1.00:1.00 as required.
4. Waiver. The Bank hereby waives compliance with the above covenant
for the fiscal period ending November 1, 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.
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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 of 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,
AND SAVINGS ASSOCIATION INC.
By /s/ Deborah Miller By /s/ Richard C. Celio
Title Vice President Title Vice President,
General Counsel
By _______________________ By /s/ Loren Pannier
Title ____________________ Title Sr. Vice President
Chief Financial Officer
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