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EXHIBIT 10.45
SECOND AMENDMENT
TO
CKE RESTAURANTS, INC.
CREDIT AGREEMENT
DATED AS OF NOVEMBER 25, 1996
This SECOND AMENDMENT (this "Amendment") is among CKE
RESTAURANTS, INC., a Delaware corporation (the "Borrower"), the Financial
Institutions party to the Credit Agreement referred to below (the "Lenders"),
and NATIONSBANK OF TEXAS, N.A., as agent (the "Agent") for the Lenders
thereunder.
PRELIMINARY STATEMENTS:
1. The Borrower, the Lenders and the Agent are parties
to a Credit Agreement dated as of August 1, 1996, as amended by the First
Amendment dated as of September 30, 1996 (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 Agent and the
Lenders amend the Credit Agreement to increase the amount of Designated
Investments permitted thereunder.
3. The Agent and the Lenders are willing to grant
the request of the Borrower on the terms and conditions set forth herein.
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 hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit
Agreement is, effective concurrently with the satisfaction of the conditions
precedent set forth in Section 2 hereof, hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby
amended by adding thereto the following defined term in the appropriate
alphabetical order:
"'SECOND AMENDMENT' means the Second Amendment to
this Agreement, dated as of November 25, 1996."
(b) Section 6.02(f)(iv) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
"(iv) other Designated Investments in an
aggregate amount invested and not recovered not to exceed at
any one time (A) $20,000,000 minus (B) the amount, if any, by
which the aggregate consideration paid by the Borrower and its
Subsidiaries in connection with all Permitted Acquisitions
after the date hereof (excluding from the calculation of such
aggregate consideration (I) consideration paid in the form of
common stock of the Borrower, (II) consideration paid with the
proceeds of Permitted Subordinated Debt and consideration paid
or refinanced with the proceeds of the Permitted Acquisition
Financing, and (III) in the case of a Permitted Acquisition
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by a Subsidiary of the Borrower which is not a wholly-owned
Subsidiary of the Borrower, the consideration paid by such
Subsidiary with the proceeds of equity contributions to such
Subsidiary by Persons other than the Borrower and its
Subsidiaries) exceeds the sum of (1) $5,000,000 plus (2) the
Additional Investment Amount;".
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective when:
(a) the Agent has executed this Amendment and has
received counterparts of this Amendment executed by the Borrower and
the Required Lenders; and
(b) the Agent has received counterparts of the Consent
appended hereto (the "Consent") executed by each of the Guarantors
(such Guarantors, together with the Borrower, each a "Loan Party" and,
collectively, the "Loan Parties").
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 or the Consent, as applicable, and to perform its obligations
hereunder and under the Loan Documents (as amended or 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 amended or 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.
(b) ENFORCEABILITY. This Amendment has been duly executed
and delivered by the Borrower. The Consent has been duly executed and delivered
by each Guarantor. This Amendment and each Loan Document (as amended or modified
hereby) is the legal, valid and binding obligation of each Loan Party party
hereto or 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 or warranties that, by their terms, are specifically made as of
a date other than the date hereof) are 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.
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 and amended hereby.
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(b) Except as specifically amended above, the Credit
Agreement and all other Loan Documents, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
(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 or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 5. EXECUTION IN 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.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
CKE RESTAURANTS, INC.
By: /s/ Robert A. Wilson
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Title: Vice President
NATIONSBANK OF TEXAS, N.A.,
as Agent
By: /s/ Tom F. Sharfenberg
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Title: Senior Vice President
LENDERS:
NATIONSBANK OF TEXAS, N.A.
By: /s/ Tom F. Sharfenberg
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Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ S. Devaney
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Title: Commercial Banking Manager
MELLON BANK, N.A.
By: /s/ Abdi Rais
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Title: Vice President
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SUMITOMO BANK OF CALIFORNIA, N.A.
By: /s/ Matt R. Van Steenhuyse
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Title: Vice President
U. S. NATIONAL BANK OF OREGON
By: /s/ Janet Jordan
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Title: Vice President
WELLS FARGO BANK, N.A.
By: /s/ Sandra D. Martin
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Title: