SIXTH AMENDMENT
Dated as of November 17, 2000
This SIXTH AMENDMENT (this "Amendment") is among ▇▇▇▇ IN THE BOX INC.
(formerly Foodmaker, Inc.), a Delaware corporation (the "Borrower"), the
financial institutions and other entities party to the Credit Agreement referred
to below (the "Lenders"), and BANK OF AMERICA, N.A. (formerly 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, the Second Amendment dated
as of February 27, 1999, the Third Amendment dated as of September 17, 1999, the
Fourth Amendment dated as of December 6, 1999, and the Fifth Amendment dated as
of May 3, 2000 (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 certain provisions of
the Credit Agreement to permit and facilitate (a) the Borrower's creation and
capitalization of three new Subsidiaries, consisting of two wholly-owned
Delaware limited liability companies (respectively, "General Partner" and
"Limited Partner") and an indirectly wholly-owned Texas limited partnership
("Texas LP") (General Partner, Limited Partner and Texas LP, collectively, the
"▇▇▇▇ East Subsidiaries"), (b) the Borrower's capital contribution of the
Contributed Assets (as defined below) to Texas LP in exchange for a 99% limited
partnership interest in Texas LP and Texas LP's assumption of certain
liabilities of the Borrower (not to include any liabilities or obligations of
the Borrower pursuant to the Credit Agreement except as and to the extent set
forth in the Guaranty) and the Borrower's capital contribution of cash to the
General Partner in exchange for a 100% equity interest in General Partner, (c)
the General Partner's contribution of cash to the Texas LP in exchange for a 1%
general partnership interest in Texas LP, (d) the Borrower's contribution of its
limited partnership interest in Texas LP to Limited Partner in exchange for a
100% equity interest in Limited Partner, (e) the Borrower's entry into
transactions and arrangements with the ▇▇▇▇ East Subsidiaries pursuant to which
the ▇▇▇▇ East Subsidiaries, or some of them, would pay to the Borrower royalties
with respect to the use of the "▇▇▇▇ in the Box" name and consulting,
management, shared services and other fees, and (f) other agreements and
arrangements ancillary to the transactions set forth in clauses (a) through (e)
above (all such transactions and arrangements set forth in clauses (a) through
(f) above, the "▇▇▇▇ East Transactions").
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:
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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:
(a) Section 1.01 of the Credit Agreement is hereby amended by adding
thereto, in appropriate alphabetical order, the following defined terms:
"Contributed Assets" means substantially all of the assets and
operations of ▇▇▇▇ in the Box in the states of Florida, Texas, Illinois,
Missouri, Louisiana, North Carolina, Tennessee and South Carolina and
certain related intangible assets.
"General Partner" means JBX General Partner LLC, a Delaware limited
liability company.
"▇▇▇▇ East Subsidiary" means each of General Partner, Limited Partner,
and Texas LP, and "▇▇▇▇ East Subsidiaries" is a collective reference to all
of such Subsidiaries.
"▇▇▇▇ East Transactions" means (a) the Borrower's creation and
capitalization of the ▇▇▇▇ East Subsidiaries, (b) the Borrower's capital
contribution of the Contributed Assets (as defined below) to Texas LP in
exchange for a 99% limited partnership interest in Texas LP and Texas LP's
assumption of certain liabilities of the Borrower (not to include any
liabilities or obligations of the Borrower pursuant to the Credit Agreement
except as and to the extent set forth in the Guaranty) and the Borrower's
capital contribution of cash to the General Partner in exchange for a 100%
equity interest in General Partner, (c) the General Partner's contribution
of cash to the Texas LP in exchange for a 1% general partnership interest
in Texas LP, (d) the Borrower's contribution of its limited partnership
interest in Texas LP to Limited Partner in exchange for a 100% equity
interest in Limited Partner, (e) the Borrower's entry transactions and
arrangements with the ▇▇▇▇ East Subsidiaries pursuant to which the ▇▇▇▇
East Subsidiaries, or some of them, would pay to the Borrower royalties
with respect to the use of the "▇▇▇▇ in the Box" name and consulting,
management, shared services and other fees, and (f) other agreements and
arrangements ancillary to the transactions set forth in clauses (a) through
(e) above (all such transactions and arrangements set forth in clauses (a)
through (f) above, the "▇▇▇▇ East Transactions").
"Limited Partner" means JBX Limited Partner LLC, a Delaware limited
liability company.
"Texas LP" means ▇▇▇▇ in the Box Eastern Division L.P., a Texas
limited partnership.
(b) Section 6.01(j) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
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(j) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate, other than (i) payments for management advisory services not to
exceed $375,000 in the aggregate, (ii) transactions permitted under Section
6.02(g), (iii) the CRC Leases, (iv) any Permitted CRC Transaction and (v)
the ▇▇▇▇ East Transactions; provided, however, that nothing in this Section
6.01(j) shall be construed to imply that any of the ▇▇▇▇ East Transactions,
or any of the other transactions referenced specifically herein, is not a
transaction on terms that are fair and reasonable and no less favorable to
the Borrower or such Subsidiary than it would obtain in a comparable arm's
length transaction with a Person not an Affiliate;
(c) Section 6.02(b)(iii)(B) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(B) the Surviving Debt and Permitted Subordinated Debt (including any
guaranties of Permitted Subordinated Debt (provided that any guarantee of
Permitted Subordinated Debt described in clause (B) of the definition
thereof shall be on terms and conditions satisfactory to the Required
Lenders));
(d) Section 6.02(i) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(i) Corporate Organization. (A) Create any Subsidiaries (other than
Excluded Subsidiaries, Qualifying Subsidiaries and the ▇▇▇▇ East
Subsidiaries) not in existence on the date hereof; or (B) amend in any
respect adverse to the Agent or any Lender, or permit any of its
Subsidiaries (whether or not existing on the date hereof) to amend in any
respect adverse to the Agent or any Lender, its certificate or articles of
incorporation, bylaws or other organizational or charter documents.
(e) Section 6.02(k)(iii) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(iii) amend, modify or change in any manner any term or condition of
any Surviving Debt or Permitted Subordinated Debt in a manner adverse to
the Agent or any Lender, or permit any of its Subsidiaries to do any of the
foregoing other than to prepay any Debt permitted hereunder and payable to
the Borrower or any other Loan Party.
(f) Section 6.02(n) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(n) Partnerships. Become a general partner in any general or limited
partnership (other than an Excluded Subsidiary or any of the ▇▇▇▇ East
Subsidiaries) or permit any of its Subsidiaries (other than an Excluded
Subsidiary or any of the ▇▇▇▇ East Subsidiaries) to become a general
partner in any general or limited partnership, other than any Subsidiary
the sole assets of which consist of its interest in such partnership.
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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 listed therein (such Guarantors, together with the Borrower,
each a "Loan Party" and, collectively, the "Loan Parties");
(b) each ▇▇▇▇ East Subsidiary shall have guaranteed all Obligations of the
Borrower under the Credit Agreement and Notes by executing and delivering to the
Agent an amendment to Guaranty in substantially the form required by Section
6.01(k) of the Credit Agreement; and
(c) 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 amended 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 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 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 amended hereby.
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(b) Except as specifically amended 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.
(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 facsimile 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 Sixth Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first written above.
▇▇▇▇ IN THE BOX INC.
(successor to Foodmaker, Inc.),
a Delaware corporation
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
BANK OF AMERICA, NA. as Agent
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
Lenders
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BANK OF AMERICA, NA.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
CREDIT LYONNAIS LOS ANGELES BRANCH
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President/Manager
ROYAL BANK OF CANADA
By:
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Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By: ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
S-1 thru S-6
U.S. BANK NATIONAL ASSOCIATION
By:
-----------------------------------------
Name:
Title:
BANK ONE TEXAS, NA.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
CIBC, INC.
By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Director
CIBC World Markets Corp., As Agent
▇▇▇▇▇▇ GUARANTY TRUST CO.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
SANWA BANK CALIFORNIA
By:
-----------------------------------------
Name:
Title:
NATEXIS BANQUE - BFCE
By: ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
S-7 thru S-12
CONSENT
Dated as of November 17, 2000
The Undersigned, as Guarantors under the "Guaranty" (as much terms are
defined in and under the Credit Agreement referred to in the foregoing Sixth
Amendment), each hereby consents and agrees to the foregoing Sixth Amendment and
hereby confirms and agrees that the Guaranty is, and shall continue to be, in
full force and effect and is hereby ratified and confirmed in all respects
except that, upon the effectiveness of, and on and after the date of, said Sixth
Amendment, each reference in the Guaranty to the "Credit Agreement",
"thereunder", "thereof" and words of like imports to the Credit Agreement shall
mean and be a reference to the Credit Agreement as amended by said Sixth
Amendment.
CP DISTRIBUTION CO., a Delaware corporation,
CP WHOLESALE CO., a Delaware corporation and
▇▇▇▇ IN THE BOX, INC., a New Jersey corporation
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and Secretary
FOODMAKER INTERNATIONAL FRANCHISING,INC.
a Delaware corporation
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and Treasurer
S-13
