EXHIBIT 10.79
SEVENTH AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of March 27, 2007
among
CKE RESTAURANTS, INC.,
THE LENDERS NAMED HEREIN
and
BNP PARIBAS,
as Administrative Agent,
BNP PARIBAS SECURITIES CORP.,
as Lead Arranger and Sole Bookrunning Manager,
and
CITIGROUP GLOBAL MARKETS, INC. AND
BANK OF AMERICA, N.A.
as Co-Syndication Agents
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SECTION 1. DEFINITIONS.............................................. 6
Section 1.1 Definitions.............................................. 6
SECTION 2. AMOUNT AND TERMS OF CREDIT FACILITIES.................... 33
Section 2.1 Term Loans............................................... 33
Section 2.2 Revolving Loans.......................................... 35
Section 2.3 Notice of Borrowing...................................... 35
Section 2.4 Disbursement of Funds.................................... 36
Section 2.5 Notes.................................................... 37
Section 2.6 Interest................................................. 37
Section 2.7 Interest Periods......................................... 39
Section 2.8 Minimum Amount of Eurodollar Loans....................... 40
Section 2.9 Conversion or Continuation............................... 40
Section 2.10 Voluntary Reduction of Commitments....................... 40
Section 2.11 Voluntary Prepayments.................................... 41
Section 2.12 Mandatory Prepayments.................................... 41
Section 2.13 Application of Prepayments............................... 43
Section 2.14 Method and Place of Payment.............................. 43
Section 2.15 Fees..................................................... 44
Section 2.16 Interest Rate Unascertainable, Increased Costs,
Illegality............................................... 44
Section 2.17 Funding Losses........................................... 46
Section 2.18 Increased Capital........................................ 47
Section 2.19 Taxes.................................................... 47
Section 2.20 Use of Proceeds.......................................... 49
Section 2.21 Collateral Security...................................... 49
Section 2.22 Replacement of Certain Lenders........................... 52
Section 2.23 Increased Amounts........................................ 52
SECTION 3. LETTERS OF CREDIT........................................ 54
Section 3.1 Issuance of Letters of Credit, etc....................... 54
Section 3.2 Letter of Credit Fees.................................... 56
Section 3.3 Obligation of Borrower Absolute, etc..................... 56
SECTION 4. CONDITIONS PRECEDENT..................................... 59
Section 4.1 Conditions Precedent to the Effectiveness of this
Agreement................................................ 59
Section 4.2 Conditions Precedent to All Loans........................ 65
SECTION 5. REPRESENTATIONS AND WARRANTIES........................... 66
Section 5.1 Corporate Status......................................... 66
Section 5.2 Corporate Power and Authority............................ 67
Section 5.3 No Violation............................................. 67
Section 5.4 Litigation............................................... 67
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CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 5.5 Financial Statements; Financial Condition; etc........... 67
Section 5.6 Solvency................................................. 68
Section 5.7 Projections.............................................. 68
Section 5.8 Material Adverse Change.................................. 68
Section 5.9 Use of Proceeds; Margin Regulations...................... 68
Section 5.10 Governmental and Other Approvals......................... 68
Section 5.11 Security Interests and Liens............................. 69
Section 5.12 Tax Returns and Payments................................. 69
Section 5.13 ERISA.................................................... 69
Section 5.14 Investment Company Act................................... 70
Section 5.15 Dissolved Subsidiaries; Previously Material
Subsidiaries, etc........................................ 70
Section 5.16 Representations and Warranties in Subordinated Debt
Documents................................................ 70
Section 5.17 True and Complete Disclosure............................. 70
Section 5.18 Organizational Structure; Capitalization................. 70
Section 5.19 Environmental Matters.................................... 71
Section 5.20 Intellectual Property.................................... 72
Section 5.21 Ownership of Property; Restaurants....................... 72
Section 5.22 No Default............................................... 72
Section 5.23 Licenses, etc............................................ 72
Section 5.24 Compliance with Law...................................... 72
Section 5.25 No Burdensome Restrictions............................... 73
Section 5.26 Brokers' Fees............................................ 73
Section 5.27 Labor Matters............................................ 73
Section 5.28 Indebtedness of the Borrower and Its Subsidiaries........ 73
Section 5.29 Other Agreements......................................... 73
Section 5.30 Immaterial Subsidiaries.................................. 73
Section 5.31 Franchise Agreements and Franchisees..................... 73
SECTION 6. AFFIRMATIVE COVENANTS.................................... 74
Section 6.1 Information Covenants.................................... 74
Section 6.2 Books, Records and Inspections........................... 78
Section 6.3 Maintenance of Insurance................................. 78
Section 6.4 Taxes.................................................... 78
Section 6.5 Corporate Franchises..................................... 79
Section 6.6 Compliance with Law...................................... 79
Section 6.7 Performance of Obligations............................... 79
Section 6.8 Maintenance of Properties................................ 79
Section 6.9 Compliance with Terms of Leaseholds...................... 79
Section 6.10 Compliance with Environmental Laws....................... 80
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CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 6.11 Subsidiary Guarantors.................................... 80
Section 6.12 Immaterial Subsidiaries.................................. 80
Section 6.13 [Reserved]............................................... 81
Section 6.14 Collateral Account....................................... 81
Section 6.15 [Reserved]............................................... 81
Section 6.16 Conditions Subsequent to the Closing Date................ 81
SECTION 7. NEGATIVE COVENANTS....................................... 82
Section 7.1 Financial Covenants...................................... 82
Section 7.2 Indebtedness............................................. 83
Section 7.3 Liens.................................................... 85
Section 7.4 Restriction on Fundamental Changes....................... 87
Section 7.5 Sale of Assets........................................... 88
Section 7.6 Contingent Obligations................................... 89
Section 7.7 Dividends................................................ 89
Section 7.8 Advances, Investments and Loans.......................... 90
Section 7.9 Transactions with Affiliates............................. 94
Section 7.10 Limitation on Voluntary Payments and Modifications of
Certain Documents........................................ 95
Section 7.11 Changes in Business...................................... 96
Section 7.12 Certain Restrictions..................................... 96
Section 7.13 Lease Obligations........................................ 97
Section 7.14 Hedging Agreements....................................... 98
Section 7.15 Plans.................................................... 98
Section 7.16 Fiscal Year; Fiscal Quarter.............................. 98
Section 7.17 Partnerships............................................. 98
Section 7.18 Excluded Resales......................................... 99
Section 7.19 Designated Senior Indebtedness........................... 99
Section 7.20 Instruments.............................................. 99
Section 7.21 [Reserved]............................................... 99
SECTION 8. EVENTS OF DEFAULT........................................ 99
Section 8.1 Events of Default........................................ 99
Section 8.2 Rights and Remedies...................................... 103
SECTION 9. THE AGENTS............................................... 103
Section 9.1 Appointment.............................................. 103
Section 9.2 Delegation of Duties..................................... 104
Section 9.3 Exculpatory Provisions................................... 104
Section 9.4 Reliance by an Agent..................................... 104
Section 9.5 Notice of Default........................................ 105
Section 9.6 Non-Reliance on Agents and Other Lenders................. 105
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CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 9.7 Indemnification.......................................... 105
Section 9.8 An Agent in its Individual Capacity...................... 106
Section 9.9 Successor Administrative Agent........................... 106
Section 9.10 Additional Agents........................................ 107
SECTION 10. MISCELLANEOUS............................................ 107
Section 10.1 Payment of Expenses, Indemnity, etc...................... 107
Section 10.2 Right of Setoff.......................................... 108
Section 10.3 Notices.................................................. 109
Section 10.4 Successors and Assigns; Participation; Assignments....... 109
Section 10.5 Amendments and Waivers................................... 112
Section 10.6 No Waiver; Remedies Cumulative........................... 115
Section 10.7 Sharing of Payments...................................... 115
Section 10.8 Application of Collateral Proceeds....................... 115
Section 10.9 Governing Law; Submission to Jurisdiction................ 116
Section 10.10 Counterparts............................................. 117
Section 10.11 Financial Advisor........................................ 117
Section 10.12 Amendment and Restatement................................ 117
Section 10.13 Headings Descriptive..................................... 118
Section 10.14 Marshalling; Recapture................................... 118
Section 10.15 Severability............................................. 118
Section 10.16 Independence of Covenants................................ 119
Section 10.17 Survival................................................. 119
Section 10.18 Domicile of Loans........................................ 119
Section 10.19 Limitation of Liability.................................. 119
Section 10.20 Calculations; Computations............................... 119
Section 10.21 WAIVER OF TRIAL BY JURY.................................. 119
Section 10.22 References............................................... 120
Section 10.23 USA PATRIOT Act.......................................... 120
Section 10.24 Waiver and Acknowledgment................................ 120
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CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Exhibits, Schedules and Annexes
Exhibit A - Form of Term Note
Exhibit B - Form of Revolving Note
Exhibit C - Form of Borrower Pledge Agreement
Exhibit D - Form of Borrower Security Agreement
Exhibit E - Form of Guaranty
Exhibit F - Form of Subsidiary Pledge Agreement
Exhibit G - Form of Subsidiary Security Agreement
Exhibit H - Form of Opinion of Stradling, Yocca, ▇▇▇▇▇▇▇ and ▇▇▇▇▇
Exhibit I - Form of Assignment Agreement
Exhibit J - Form of Notice of Borrowing
Exhibit K - Form of Confirmation of Guaranty and Security Interest
Exhibit L - Form of Additional Commitment Agreement
Schedule 1.1 - Lenders and Revolving Loan Commitments
Schedule 5.10 - Governmental Approvals
Schedule 5.11 - Prior Liens
Schedule 5.13 - ERISA
Schedule 5.15 - Dissolved Entities
Schedule 5.18 - Organizational Structure and Capitalization
Schedule 5.21 - Real Property
Schedule 5.27 - Labor Matters
Schedule 5.28 - Existing Indebtedness
Schedule 5.29 - Joint Venture and Partnership Agreements;
Non-Competition Agreements
Schedule 5.30 - Immaterial Subsidiaries
Schedule 5.31 - Franchisees/Licensees
Schedule 7.3 - Existing Liens
Schedule 7.6 - Existing Contingent Obligations
Schedule 7.8 - Existing Investments
Schedule 7.17 - Existing Partnerships
Annex I - Lending Offices
v
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 27,
2007, among CKE Restaurants, Inc., a Delaware corporation (the "BORROWER"), the
Lenders (as hereinafter defined), BNP Paribas ("BNP PARIBAS"), as administrative
agent for the Lenders (in such capacity, the "ADMINISTRATIVE AGENT"), and
Citigroup Global Markets, Inc., ("CITIGROUP") and Bank of America, N.A., as
co-syndication agents for the Lenders (in such capacity, the "CO-SYNDICATION
AGENTS").
SECTION 1. DEFINITIONS.
Section 1.1 Definitions. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural number the singular.
"ACQUIRING SUBSIDIARY" shall have the meaning provided in Section 2.21(b).
"ACQUISITION" shall mean any transaction, or any series of related
transactions, consummated after the Closing Date, by which the Borrower or any
of its Subsidiaries (i) acquires any going business or assets of any Person or
division thereof (other than assets acquired by the Borrower or any of its
Subsidiaries in the ordinary course of its business), whether through purchase
of assets, merger or otherwise or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of related
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors or a
majority (by percentage or voting power) of the outstanding partnership
interests of a partnership or of the outstanding equity interests of a limited
liability company or other corporate entity.
"ADDITIONAL AGENTS" shall have the meaning provided in Section 9.10.
"ADDITIONAL COMMITMENTS" shall have the meaning provided in Section
2.23(a).
"ADDITIONAL COMMITMENT AGREEMENT" shall have the meaning provided in
Section 2.23(c).
"ADDITIONAL LOANS" shall have the meaning provided in Section 2.23(a).
"ADDITIONAL REVOLVING COMMITMENT" shall have the meaning provided in
Section 2.23(a).
"ADDITIONAL REVOLVING LOAN" shall have the meaning provided in Section
2.23(a).
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"ADDITIONAL TERM COMMITMENT" shall have the meaning provided in Section
2.23(a).
"ADDITIONAL TERM LOANS" shall have the meaning provided in Section 2.23(a).
"ADJUSTED LEVERAGE RATIO" shall mean with respect to the Borrower on a
consolidated basis with its Subsidiaries, at any date, the ratio of (a)(i)
Consolidated Total Debt plus (ii) the product of (A) eight multiplied by (B) an
amount equal to Consolidated Rentals for the period of four (4) consecutive
fiscal quarters of the Borrower (taken as one accounting period) most recently
ended on or prior to such date to (b) Consolidated EBITDAR for the period of
four (4) consecutive fiscal quarters most recently ended on or prior to such
date.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to that term in the
introduction to this Agreement and also shall mean and include any successor
administrative agent appointed in accordance with Section 9.9.
"ADMINISTRATIVE AGENT'S OFFICE" shall mean the office of the Administrative
Agent located at Chicago, Illinois, or such other office as the Administrative
Agent may hereafter designate in writing as such to the other parties hereto.
"AFFECTED LENDER" shall have the meaning provided in Section 2.22.
"AFFILIATE" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control another Person if
such Person possesses, directly or indirectly, the power to (i) vote 10% or more
of the Voting Stock of such other Person or (ii) direct or cause the direction
of the management and policies of such other Person, whether through the
ownership of voting securities, by contract or otherwise. No Lender shall be
deemed to be an Affiliate of the Borrower as a result of its being a party to
this Agreement.
"AGENT" shall mean the Administrative Agent or either Co-Syndication Agent,
as the context may require, and "AGENTS" means the Administrative Agent and the
Co-Syndication Agents.
"AGREEMENT" shall mean this Seventh Amended and Restated Credit Agreement,
as the same may from time to time hereafter be modified, restated, supplemented
or amended.
"APPLICABLE MARGIN" shall mean, with respect to the Commitment Fee and each
Eurodollar Loan or Base Rate Loan that is a Term Loan, the rate of interest per
annum shown below:
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Eurodollar Loans Base Rate Loans Commitment Fee
---------------- --------------- --------------
1.375% 0.375% 0.50%
"ASSET DISPOSITION" shall mean any conveyance, sale, lease, license,
transfer or other disposition by the Borrower or any of its Subsidiaries
subsequent to the Closing Date of any asset (including by way of (i) a sale and
leaseback transaction, (ii) the sale or other transfer of any of the capital
stock or other equity interest of any Subsidiary of the Borrower and (iii) any
total or partial loss, destruction or condemnation of any asset), but excluding
(A) sales of inventory in the ordinary course of business, (B) licenses of
intellectual property to franchisees in the ordinary course of business, (C)
leases and subleases of real and personal property of the Borrower or any of its
Subsidiaries to any of their respective franchisees in the ordinary course of
business and consistent with past practices, and (D) sales, transfers or other
dispositions of any property or assets by the Borrower or any of its
wholly-owned Subsidiaries to the Borrower or any of its wholly-owned Domestic
Subsidiaries, PROVIDED, that (i) all documents or opinions required to be
delivered to the Administrative Agent pursuant to Section 2.21 have been
delivered to the Administrative Agent and the Borrower has provided the
Administrative Agent with written notice of such sale, transfer or other
disposition at least ten (10) days prior to the date of any such sale, transfer
or other disposition and (ii) the Administrative Agent and Lenders shall not be
deemed to have released their security interest in any such property or assets.
"ASSIGNEE" shall have the meaning provided in Section 10.4(c).
"ASSIGNMENT AGREEMENT" shall have the meaning provided in Section 10.4(d).
"AUTHORIZED OFFICER" of any Person shall mean any of the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Senior Vice President, any Executive Vice President, any Vice
President, the Controller, the Treasurer or Assistant Treasurer of such Person,
acting singly.
"BANKRUPTCY CODE" shall mean Title 11 of the United States Code entitled
"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
"BASE RATE" shall mean, at any particular date, the higher of (i) the rate
of interest publicly announced by BNP Paribas in its office in New York, New
York from time to time as its "base rate" changing as and when such base rate
changes and (ii) the Federal Funds Rate plus
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
0.50%. The base rate is not intended to be the lowest rate of interest charged
by BNP Paribas in connection with extensions of credit to debtors.
"BASE RATE LOANS" shall mean Loans made and/or being maintained at a rate
of interest based upon the Base Rate.
"BLOCKED ACCOUNT AGREEMENT" shall mean the Amended and Restated Collateral
Account Control Agreement, dated as of June 2, 2004, by and among the Borrower,
the Administrative Agent and BNP Paribas in its capacity as both a "securities
intermediary", as defined in Section 8-102 of the UCC, and a "bank", as defined
in Section 9-102 of the UCC, as the same may from time to time hereafter be
modified, restated, supplemented or amended.
"BORROWER" shall have the meaning provided in the first paragraph of this
Agreement.
"BORROWER PLEDGE AGREEMENT" shall mean a pledge agreement substantially in
the form of the Fourth Amended and Restated Borrower Pledge Agreement set forth
as Exhibit C hereto, as the same may be amended, restated, modified or
supplemented from time to time.
"BORROWER SECURITY AGREEMENT" shall mean a security agreement substantially
in the form of the Fourth Amended and Restated Borrower Security Agreement set
forth as Exhibit D hereto duly executed and delivered to the Administrative
Agent by the Borrower, as the same may be amended, restated, modified or
supplemented from time to time.
"BORROWING" shall mean the incurrence of one Type of Loan of one Facility
from all the Revolving Lenders or the Term Lenders, as the case may be, on a
given date (or resulting from conversions or continuations on a given date)
having, in the case of Eurodollar Loans, the same Interest Period.
"BUSINESS DAY" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which shall be
in Chicago, Los Angeles or New York City a legal holiday or a day on which
banking institutions are authorized or required by law or other government
actions to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans,
any day which is a Business Day described in clause (i) and which is also a day
for trading by and between banks for U.S. dollar deposits in the relevant London
interbank Eurodollar market.
"CAPITAL EXPENDITURES" shall mean, for any period, all expenditures
(whether paid in cash or accrued as a liability, including the portion of
Capitalized Leases of the Borrower and its Subsidiaries originally incurred
during such period that is capitalized on the consolidated balance sheet of the
Borrower and its Subsidiaries) by the Borrower and its Subsidiaries during such
period that, in conformity with GAAP, are included in "capital expenditures",
"additions to
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
property, plant or equipment" or comparable items in the consolidated financial
statements of the Borrower and its Subsidiaries (excluding any expenditures for
assets that would be included in "capital expenditures," "additions to property,
plant or equipment" or in comparable items in the consolidated financial
statements of the Borrower and its Subsidiaries in conformity with GAAP which
assets are acquired in a Permitted Acquisition).
"CAPITAL STOCK" shall mean any and all shares of, or interests or
participations in, corporate stock (or other instruments or securities
evidencing ownership).
"CAPITALIZED LEASE" shall mean with respect to any Person, (i) any lease of
property, real or personal, the obligations under which are capitalized on the
consolidated balance sheet of such Person, and (ii) any other such lease of such
Person to the extent that the then present value of the minimum rental
commitment thereunder should, in accordance with GAAP, be capitalized on a
balance sheet of the lessee.
"CAPITALIZED LEASE OBLIGATIONS" with respect to any Person, shall mean at
any time of determination all obligations of such Person under or in respect of
Capitalized Leases of such Person.
"CASH COLLATERALIZE" shall mean the pledge and deposit with or delivery to
the Administrative Agent, for the benefit of the Administrative Agent, the
Issuing Bank and the Lenders, cash or deposit account balances pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent and the Issuing Bank; such documentation shall irrevocably
authorize the Administrative Agent to apply such cash collateral to
reimbursement of the Issuing Bank for draws under Letters of Credit as and when
occurring, and in all cases to payment of other Obligations as and when due.
Cash collateral shall be maintained in blocked deposit accounts at the
Administrative Agent or a Lender.
"CASH EQUIVALENTS" shall mean (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (PROVIDED that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than 360 days from the date of acquisition, (ii) time deposits and certificates
of deposit of any Lender or any domestic commercial bank of recognized standing
having capital and surplus in excess of $200,000,000 with maturities of not more
than 180 days from the date of acquisition, (iii) fully secured repurchase
obligations with a term of not more than 7 days for underlying securities of the
types described in clause (i) entered into with any bank meeting the
qualifications specified in clause (ii) above, and (iv) commercial paper issued
by the parent corporation of any Lender or any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 and
commercial paper rated at least A-1 or the equivalent thereof by Standard &
Poor's Ratings Group or at least P-1 or the
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
equivalent thereof by ▇▇▇▇▇'▇ Investor Services, Inc. and in each case maturing
within 180 days after the date of acquisition.
"CLOSING DATE" shall mean March 27, 2007.
"CLOSING EBITDA" shall mean, with respect to the Borrower and its
Subsidiaries for the 13 Retail Periods ended immediately prior to the Closing
Date and all determined on a consolidated basis and in accordance with GAAP, the
sum of (i) Consolidated Net Income for such period, plus (ii) to the extent
deducted in the calculation of Consolidated Net Income for such period,
Consolidated Interest Expense for such period, plus (iii) to the extent deducted
in the calculation of Consolidated Net Income for such period, federal and state
income taxes for such period, plus (iv) to the extent deducted in the
calculation of Consolidated Net Income for such period, depreciation and
amortization expense for such period, plus (v) to the extent deducted in the
calculation of Consolidated Net Income for such period, all extraordinary losses
for such period, plus (vi) to the extent deducted in the calculation of
Consolidated Net Income for such period, Consolidated Share-Based Compensation
Expense, minus (vii) to the extent included in the calculation of Consolidated
Net Income for such period, all extraordinary gains for such period.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and any successor statute.
"COLLATERAL" shall mean all property and interests in property now owned or
hereafter acquired in or upon which a Lien has been or is purported or intended
to have been granted to the Administrative Agent or any Lender or any Interest
Rate Hedge Provider under any of the Security Documents.
"COLLATERAL ACCOUNT" shall have the meaning set forth in the Borrower
Security Agreement."
"COMMITMENT FEE" shall have the meaning provided in Section 2.15(b).
"COMMITMENTS" shall mean, collectively, the Term Loan Commitments and the
Revolving Loan Commitments and "COMMITMENT" shall mean either of such
Commitments.
"COMPLIANCE CERTIFICATE" shall have the meaning provided in Section 6.1(e).
"CONFIRMATION OF GUARANTY AND SECURITY INTEREST" shall mean a confirmation
substantially in the form of Exhibit K attached hereto duly executed and
delivered to the Administrative Agent by the Borrower and each Subsidiary of the
Borrower (other than the
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Immaterial Subsidiaries), as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"CONSENTS" shall have the meaning provided in Section 4.1(r).
"CONSOLIDATED CASH INTEREST EXPENSE" shall mean, for any period,
Consolidated Interest Expense for such period minus the amount of such
Consolidated Interest Expense for such period not paid or payable in cash.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of determination, the
total assets of the Borrower and its Subsidiaries on a consolidated basis which
may properly be classified as current assets in conformity with GAAP, excluding
cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of determination,
the total liabilities of the Borrower and its Subsidiaries on a consolidated
basis which may properly be classified as current liabilities in conformity with
GAAP, excluding the current portion of Indebtedness and Hedging Agreements.
"CONSOLIDATED EBITDA" shall mean, for any Person during any period, the sum
of (i) Consolidated Net Income for such period, plus (ii) to the extent deducted
in the calculation of Consolidated Net Income for such period, Consolidated
Interest Expense for such period, plus (iii) to the extent deducted in the
calculation of Consolidated Net Income for such period, federal and state income
taxes for such period, plus (iv) to the extent deducted in the calculation of
Consolidated Net Income for such period, depreciation and amortization expense
for such period, plus (v) to the extent deducted in the calculation of
Consolidated Net Income for such period, all extraordinary losses for such
period, plus (vi) to the extent deducted in the calculation of Consolidated Net
Income for such period, Consolidated Share-Based Compensation Expense, minus
(vii) to the extent included in the calculation of Consolidated Net Income for
such period, all extraordinary gains for such period, all determined on a
consolidated basis for such Person and its Subsidiaries in accordance with GAAP.
"CONSOLIDATED EBITDAR" shall mean, during any period (i) Consolidated
EBITDA for the Borrower and its Subsidiaries for such period plus (ii) to the
extent deducted in the calculation of Consolidated Net Income of the Borrower
and its Subsidiaries for such period, Consolidated Rentals for such period.
"CONSOLIDATED EXCESS CASH FLOW" shall mean, for any period, an amount (if
positive) equal to (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated EBITDA and (b) the Consolidated Working Capital
Adjustment minus (ii) the sum, without duplication, of the amounts for such
period of (a) Capital Expenditures (net of any proceeds of any related
financings with respect to such expenditures), (b) Consolidated Cash Interest
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Expense, (c) to the extent deducted in the calculation of Consolidated Net
Income for such period, federal and state income taxes for such period and
payable in cash with respect to such period, (d) amortization of principal of
Capitalized Leases and (e) amortization of principal of the Term Loan as set
forth in Section 2.1.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any Person and for any
period, the total interest expense (including, without limitation, interest
expense attributable to Capitalized Leases in accordance with GAAP, but
excluding any non-cash interest expense attributable to the amortization or
write-off of deferred financing costs) of such Person and its Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" shall mean for any Person and for any period the
net income (or loss) of such Person and its Subsidiaries on a consolidated basis
for such period (taken as a single accounting period) as determined in
accordance with GAAP minus to the extent included in the calculation of
Consolidated Net Income for such period, gains for such period (net of any
applicable state or federal expense) resulting from any sale by the Borrower or
any of its Subsidiaries of a Restaurant of the Borrower or such Subsidiary plus
to the extent included in the calculation of Consolidated Net Income for such
period, losses for such period (net of any applicable state or federal tax
benefit) resulting from any sale by the Borrower or any of its Subsidiaries of a
Restaurant of the Borrower or such Subsidiary, plus any reserves (net of any
applicable state or federal tax benefit) established in accordance with GAAP for
closures of Restaurants or non-cash reductions in the carrying value of
Restaurant-related assets (including goodwill and other intangible assets).
"CONSOLIDATED RENTALS" shall mean, for the Borrower and its Subsidiaries
for any period, the aggregate rent expense for the Borrower and its Subsidiaries
for such period, minus rental income received from franchisees and third parties
pursuant to (i) subleases to such franchisees or third parties, as the case may
be, and (ii) leases that have been assigned to such franchisees or third
parties, as the case may be, in which the Borrower or its Subsidiary, as
applicable, remains liable for the payment of rent under such lease to the
extent that rent payments are actually made, all as determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED SHARE-BASED COMPENSATION EXPENSE" shall mean, for any Person
and for any period, the total share-based compensation expense (including,
without limitation, share-based compensation expense attributable to stock
option grants and restricted stock awards in accordance with GAAP) of such
Person and its Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP.
"CONSOLIDATED TOTAL DEBT" shall mean, at any time, all Indebtedness of the
Borrower and its Subsidiaries (other than undrawn amounts under letters of
credit issued for the account of the Borrower or any of its Subsidiaries) as
determined on a consolidated basis.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"CONSOLIDATED WORKING CAPITAL" shall mean, as at any date of determination,
the excess (or deficit) of Consolidated Current Assets over Consolidated Current
Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is
less than) Consolidated Working Capital as of the end of such period.
"CONTINGENT OBLIGATION" as to any Person shall mean any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends
or other obligations ("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase
or payment of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of such
primary obligation against loss in respect thereof; PROVIDED, HOWEVER, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"CONVERSION" shall have the meaning provided in Section 2.21(b).
"CONVERTIBLE BOND HEDGE TRANSACTIONS" shall mean any Hedging Agreement
entered into by the Borrower at the time of entering into an agreement to sell
any Permitted Convertible Debt, the effect of which (individually or in the
aggregate) is to reduce the economic dilution to the Borrower resulting from the
issuance of shares of common stock by the Borrower pursuant to the terms of such
Permitted Convertible Debt.
"CONVERTIBLE SUBORDINATED NOTE INDENTURE" shall mean that certain Indenture
between the Borrower and ▇▇▇▇▇ Fargo Bank of Minnesota, National Association
(successor-in-interest to ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association), as
Trustee, dated as of September 29, 2003, as the same may be amended, restated,
supplemented or otherwise modified in accordance with the terms of this
Agreement and any refinancings or replacements thereof in a principal amount
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
not exceeding the principal amount of the Indebtedness so refinanced or replaced
(plus premium and accrued interest payable thereon and fees payable in such
refinancing) and with an average life to maturity of not less than the then
average life to maturity of the Indebtedness so refinanced or replaced; PROVIDED
that (i) the Lenders shall receive 10 days prior written notice thereof and (ii)
such refinancings or replacements thereof may not change or amend any term or
provision thereof if the effect of such change or amendment, together with all
other changes or amendments, would be materially adverse to the Borrower, the
Administrative Agent or the Lenders, in the Administrative Agent's reasonable
determination.
"CONVERTIBLE SUBORDINATED NOTES" shall mean the convertible subordinated
notes issued by the Borrower pursuant to the Convertible Subordinated Note
Indenture, in the maximum aggregate principal amount not to exceed $15,200,000,
as the same may be amended, restated, supplemented or otherwise modified in
accordance with the terms of this Agreement; PROVIDED that such Convertible
Subordinated Notes shall at all times be subordinated in respect of the
Obligations on subordination terms contained in the Convertible Subordinated
Note Indenture.
"CO-SYNDICATION AGENTS" shall have the meaning assigned to that term in the
introduction to this Agreement.
"CREDIT EXPOSURE" shall have the meaning provided in Section 10.4(b).
"DEFAULT" shall mean any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"DEFAULT RATE" shall have the meaning provided in Section 2.6(c).
"DEFERRED COMPENSATION PLAN" shall mean a deferred compensation plan
substantially in the form provided to the Administrative Agent prior to the date
hereof, upon its adoption by the Borrower, as the same may be amended, restated,
modified or supplemented from time to time, PROVIDED, that any such amendments,
restatements, modifications and supplements shall be reasonably satisfactory to
the Administrative Agent.
"DIVIDENDS" shall have the meaning provided in Section 7.7.
"DOMESTIC LENDING OFFICE" shall mean, as to any Lender, the office of such
Lender designated as such on Annex I, or such other office designated by such
Lender from time to time by written notice to the Administrative Agent and the
Borrower.
"DOMESTIC SUBSIDIARY" shall mean any wholly-owned Subsidiary of the
Borrower that is organized under the laws of a state of the United States of
America, and which is a party to the
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Subsidiary Security Agreement, the Guaranty and, if required pursuant to Section
2.21, a Subsidiary Pledge Agreement.
"EBITDA CAPEX AMOUNT" shall mean, for any fiscal year of the Borrower, an
amount, if positive, equal to (i) .80 multiplied by (ii) the difference, if any,
between Consolidated EBITDA for such fiscal year and $150,000,000.
"EMPLOYEE STOCK LOAN" shall mean a loan made by the Borrower or any of its
Subsidiaries to an employee or director of the Borrower or any of its
Subsidiaries, the purpose of which is to finance the acquisition by such
employee or director of the capital stock of the Borrower.
"ENVIRONMENTAL AFFILIATE" shall mean, with respect to any Person, any other
Person whose liability for any Environmental Claim such Person has or may have
retained, assumed or otherwise become liable for (contingently or otherwise),
either contractually or by operation of law.
"ENVIRONMENTAL APPROVALS" shall mean any permit, license, approval, ruling,
variance, exemption or other authorization required under applicable
Environmental Laws.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any notice,
claim, demand or similar communication (written or oral) by any other Person
alleging potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damages, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
(i) the presence, or release into the environment, of any Material of
Environmental Concern at any location, whether or not owned by such Person or
(ii) circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law.
"ENVIRONMENTAL INDEMNITY AGREEMENT" shall mean that certain Amended and
Restated Environmental Indemnity Agreement, dated as of June 2, 2004, among the
Borrower, each Guarantor and the Administrative Agent, as amended, restated,
supplemented or otherwise modified from time to time.
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and foreign laws
and regulations relating to pollution or protection of human health, safety or
the environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata), including without limitation,
laws and regulations relating to emissions, discharges, releases or threatened
releases of Materials of Environmental Concern, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"EQUITY INTERESTS" shall mean Capital Stock and warrants, options or other
rights to acquire Capital Stock.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time. Section references to ERISA are to ERISA, as in
effect at the Closing Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA CONTROLLED GROUP" means a group consisting of any ERISA Person and
all members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control with such Person that,
together with such Person, are treated as a single employer under regulations of
the PBGC.
"ERISA PERSON" shall have the meaning set forth in Section 3(9) of ERISA
for the term "person."
"ERISA PLAN" means (i) any Plan that (x) is not a Multiemployer Plan and
(y) has Unfunded Benefit Liabilities in excess of $2,000,000 and (ii) any Plan
that is a Multiemployer Plan.
"EUROCURRENCY RESERVE REQUIREMENTS" shall mean, with respect to each day
during an Interest Period for Eurodollar Loans, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Federal Reserve
Board or other governmental authority or agency having jurisdiction with respect
thereto for determining the maximum reserves (including, without limitation,
basic, supplemental, marginal and emergency reserves) for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D) maintained
by a member bank of the Federal Reserve System.
"EURODOLLAR BASE RATE" shall mean, with respect to each day during an
Interest Period for Eurodollar Loans, the rate per annum (rounded upwards, if
necessary, to the nearest whole multiple of one-sixteenth of one percent)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in United States Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period. If for any reason such rate is
not available, the term "Eurodollar Base Rate" shall mean, for any Eurodollar
Loan for any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest whole multiple of one-sixteenth of one percent)
appearing on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in United States Dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; PROVIDED, HOWEVER, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
the nearest whole multiple of one-sixteenth of one percent). If, for any reason,
neither of such rates is available, then "Eurodollar Base Rate" shall mean the
rate per annum at which deposits in United States Dollars, as determined by the
Administrative Agent, are being offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank market
at 11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank's
Eurodollar Loan comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period and the
Eurodollar Base Rate for any Interest Period for each Eurodollar Loan comprising
part of the same Borrowing shall be determined by the Administrative Agent on
the basis of applicable rates furnished to and received by the Administrative
Agent from the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.7.
"EURODOLLAR LENDING OFFICE" shall mean, as to any Lender, the office of
such Lender designated as such on Annex I, or such other office designated by
such Lender from time to time by written notice to the Administrative Agent and
the Borrower.
"EURODOLLAR LOANS" shall mean Loans made and/or being maintained at a rate
of interest based upon the Eurodollar Rate.
"EURODOLLAR RATE" shall mean with respect to each day during an Interest
Period for Eurodollar Loans, a rate per annum determined for such day in
accordance with the following formula (rounded upwards to the nearest whole
multiple of 1/100th of one percent):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"EVENT OF DEFAULT" shall have the meaning provided in Section 8.1.
"EXCESS AVAILABILITY" shall mean, as of any time the same is to be
determined, the amount (if any) by which (a) the Total Revolving Loan Commitment
as then determined exceeds (b) the aggregate principal amount of the Revolving
Loans and L/C Obligations then outstanding.
"EXCLUDED RESALES" shall mean any sale by the Borrower or any of its
Subsidiaries of a Restaurant of the Borrower or such Subsidiary so long as (i)
such Restaurant was acquired by the Borrower or such Subsidiary from a
franchisee with the intent of reselling such Restaurant and (ii) such sale
occurs within twelve (12) months of the acquisition of such Restaurant by the
Borrower or such Subsidiary.
"EXISTING DEBT" shall have the meaning provided in Section 4.1(o).
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"EXISTING PROPERTY SALE AND LEASEBACK TRANSACTION" shall have the meaning
provided in Section 7.13(a)(i).
"FACILITY" shall mean either or both of the Term Loans and the Revolving
Loans.
"FEDERAL FUNDS RATE" shall mean, for any day, an interest rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three (3) Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FEDERAL RESERVE BOARD" shall mean the Board of Governors of the Federal
Reserve System as constituted from time to time.
"FEE LETTER" shall mean that certain fee letter entered into between the
Borrower and the Administrative Agent dated March 27, 2007, as amended,
restated, supplemented or otherwise modified from time to time.
"FEES" shall have the meaning set forth in Section 2.15(c).
"FINAL MATURITY DATE" shall mean the later of the Revolving Loan Maturity
Date and the Term Loan Maturity Date.
"FINANCIAL ADVISOR" has the meaning set forth in Section 10.11.
"FRANCHISE AGREEMENTS" shall mean any and all agreements that create a
franchise or license to which the Borrower or any of its Subsidiaries is a party
(as franchisee, licensee, franchisor or licensor) relating to the operation or
development of any Restaurant or Restaurants, including such franchise and/or
license agreements to which any of Borrower or any of its Subsidiaries is a
party as of the Closing Date and such franchise and/or license agreements
entered into from time to time after the Closing Date by the Borrower or any of
its Subsidiaries and shall include all other rights under such agreements
regardless of their nature.
"FRANCHISEE CONSTRUCTION DEBT" shall have the meaning provided in Section
7.2(j).
"GAAP" shall mean (i) for purposes of determining compliance with the
covenants set forth in Section 7 hereof, United States generally accepted
accounting principles as in effect on
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
the Closing Date and consistent with those utilized in the preparation of the
financial statements referred to in Section 5.5 and (ii) for all other purposes,
United States generally accepted accounting principles as in effect as of the
date of determination.
"GREEN BURRITO" shall mean GB Franchise Corporation, a California
corporation.
"GUARANTOR" shall mean each Subsidiary of the Borrower that shall be
required by the terms of this Agreement to enter into a Guaranty from time to
time.
"GUARANTY" shall mean a guaranty substantially in the form of the Fourth
Amended and Restated Guaranty set forth as Exhibit E hereto duly executed and
delivered to the Administrative Agent for itself, the Lenders and any Interest
Rate Hedge Providers by each Subsidiary of the Borrower (other than the
Immaterial Subsidiaries), as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"HARDEE'S" shall mean ▇▇▇▇▇▇'▇ Food Systems, Inc., a North Carolina
corporation or any successor entity permitted pursuant to the terms of this
Agreement.
"▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ ACT" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvement Act of 1976, as amended.
"HEDGING AGREEMENTS" shall mean any interest rate protection agreements
(including, without limitation, any interest rate swaps, caps, floors, collars,
options, futures and similar agreements) and swaps (including, without
limitation, any caps, floors, collars, options, futures and similar agreements)
relating to currencies, commodities or securities, and similar agreements.
"IMMATERIAL INVESTMENTS" shall mean, at any time, (a) any Investment owned
by the Borrower or any Subsidiary consisting of Capital Stock of any Person that
is not a Subsidiary of the Borrower and which, when added to all other
Investments held by the Borrower and/or its Subsidiaries consisting of Capital
Stock of such Person does not exceed $1,000,000 at any one time outstanding and
(b) any Investment owned by the Borrower or any Subsidiary consisting of an
Instrument payable by any Person that is not a Subsidiary of the Borrower and
which, when added to all other Investments held by the Borrower and/or its
Subsidiaries consisting of Instruments payable by such Person does not exceed
$2,000,000 at any one time outstanding.
"IMMATERIAL SUBSIDIARIES" shall mean any Subsidiary of the Borrower with
assets of less than $1,500,000 (as determined in accordance with GAAP), which is
designated by the Borrower as an Immaterial Subsidiary on Schedule 5.30 or
pursuant to Section 6.12; PROVIDED that the aggregate amount of assets of all
Subsidiaries designated as Immaterial Subsidiaries shall not at any time exceed
$10,000,000 (as determined in accordance with GAAP).
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"INCREASE EFFECTIVE DATE" shall have the meaning provided in Section
2.23(b).
"INDEBTEDNESS" of any Person shall mean, without duplication, (i) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than trade payables on terms of 90 days or
less incurred in the ordinary course of business of such Person), (ii) all
indebtedness of such Person evidenced by a note, bond, debenture, acceptance or
similar instrument, (iii) the principal component of all Capitalized Lease
Obligations of such Person, (iv) the face amount of all letters of credit issued
for the account of such Person and, without duplication, all unreimbursed
amounts drawn thereunder, and all obligations of such Person, contingent or
otherwise, under acceptances or similar facilities, (v) all indebtedness of any
other Person secured by any Lien on any property owned by such Person, whether
or not such indebtedness has been assumed in an amount equal to the lesser of
the fair market value at such date of such property subject to such Lien
securing such Indebtedness and the amount of the Indebtedness secured by such
Lien, (vi) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property), (vii) all Contingent Obligations of such Person, (viii) all
payment obligations, whether absolute or contingent, matured or unmatured,
present or future, due or to become due, now existing or hereafter arising, of
such Person under any Hedging Agreements, (ix) all Redeemable Stock and (x) all
indebtedness and other obligations of the types specified in clauses (i) through
(ix) above of any joint venture or partnership for which such Person is liable.
"INDEMNITEE" shall have the meaning provided in Section 10.1(c).
"INS" shall mean the United States Immigration and Naturalization Service
or any governmental body succeeding to its functions.
"INSTRUMENT" shall have the meaning ascribed thereto in the UCC.
"INTELLECTUAL PROPERTY" has the meaning set forth in Section 5.20.
"INTEREST PERIOD" shall have the meaning provided in Section 2.7.
"INTEREST RATE AGREEMENTS" shall mean any and all interest rate protection
agreements, including, without limitation, any interest rate swaps, caps,
collars, floors and similar agreements.
"INTEREST RATE HEDGE PROVIDERS" shall mean any Lender or Affiliate of any
Lender that provides an Interest Rate Agreement to the Borrower as permitted
pursuant to Section 7.14(a).
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"INVESTMENT" of a Person shall mean any loan, advance, extension of credit
or commitment to make any such loan, advance or extension of credit (other than
accounts receivable arising in the ordinary course of business), deposit account
or contribution of capital by such Person to any other Person or any investment
in, or purchase or other acquisition (whether by purchase, merger, consolidation
or otherwise) of, the stock, partnership interests, notes, bonds, debentures or
other securities, including options and warrants, of, or other ownership
interests in, any other Person made by such Person (whether for cash, property,
services, securities or otherwise).
"ISSUE" shall mean, with respect to any Letter of Credit, to issue or to
extend the expiry of, or to renew or increase the amount of, such Letter of
Credit; and the terms "Issued," "Issuing" and "Issuance" have corresponding
meanings.
"ISSUING BANK" shall mean BNP Paribas or, with the consent of BNP Paribas,
any other Revolving Lender (and their respective successors) that agrees to be
an Issuing Bank hereunder, in its capacity as issuer of one or more Letters of
Credit hereunder.
"JUNIOR RECAPITALIZATION AMOUNT" shall mean, at the time of determination,
and after giving effect to any of the following amounts paid, the result of
$220,000,000, plus, (i) any Consolidated Excess Cash Flow for the previous
fiscal year of the Borrower limited to the extent such Consolidated Excess Cash
Flow is not required to be applied as a mandatory prepayment pursuant to Section
2.12(h), minus (ii) the sum of (A) all amounts paid by the Borrower from and
after the close of fiscal year 2007 to and including such time, to redeem,
retire, purchase, defease or otherwise acquire, directly or indirectly, any
shares of any class of the Capital Stock of the Borrower in accordance with
Section 7.7(d), plus (B) all amounts paid by the Borrower from and after the
close of fiscal year 2007 to and including such time, to prepay, redeem,
defease, purchase or acquire for value the Convertible Subordinated Notes or
otherwise segregate funds with respect to the Convertible Subordinated Notes in
accordance with Section 7.10(d)(iv), plus (C) all cash dividends paid by the
Borrower on any common stock of the Borrower from and after the close of fiscal
year 2007 to and including such time, to pay such cash dividends in accordance
with Section 7.7(d).
"LA SALSA" shall mean, collectively, La Salsa, Inc., a California
corporation, and La Salsa of Nevada, Inc., a Nevada corporation.
"L/C AMENDMENT APPLICATION" shall mean an application form for amendment of
outstanding Letters of Credit as shall at any time be in use at the Issuing
Bank, as the Issuing Bank shall request.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"L/C APPLICATION" shall mean an application form for issuance of Standby
Letters of Credit or Trade Letters of Credit, as appropriate, as shall at any
time be in use at the Issuing Bank, as the Issuing Bank shall request.
"L/C COMMITMENT" shall mean the commitment of the Issuing Bank to Issue,
and the commitment of the Revolving Lenders severally to participate in, Letters
of Credit from time to time Issued or outstanding under Section 3, in an
aggregate amount not to exceed on any date the amount of $85,000,000, PROVIDED,
that the L/C Commitment is part of the Total Revolving Loan Commitment, rather
than a separate, independent commitment.
"L/C OBLIGATIONS" shall mean at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the amount of
all unreimbursed drawings under all Letters of Credit.
"L/C RELATED DOCUMENTS" shall mean the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating to
any Letter of Credit, including any of the Issuing Bank's standard form
documents for standby or commercial letter of credit issuances, as appropriate.
"LENDER AFFILIATE" shall mean, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and
similar extensions of credit in the ordinary course of its business and is
managed or advised by the same investment manager or advisor as such Lender or
by an Affiliate of such Lender or advisor or manager.
"LENDERS" shall mean the persons listed on Schedule 1.1 hereto and the
persons which from time to time become a party hereto in accordance with Section
10.4(d).
"LETTERS OF CREDIT" shall mean any letters of credit Issued by the Issuing
Bank pursuant to Section 3.
"LEVERAGE RATIO" shall mean, with respect to the Borrower on a consolidated
basis with its Subsidiaries, at any date, the ratio of (a) Consolidated Total
Debt of the Borrower and its Subsidiaries to (b) Consolidated EBITDA of the
Borrower and its Subsidiaries for the period of four (4) consecutive fiscal
quarters most recently ended on or prior to such date, all determined on a
consolidated basis for the Borrower and its Subsidiaries for such period.
"LIEN" shall mean any mortgage, deed of trust, pledge, charge, security
interest, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority or other security agreement of any
kind or nature whatsoever, whether or not filed, recorded or otherwise perfected
under applicable law, including, without limitation, any conditional sale or
other title retention agreement, any financing lease having substantially the
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
same effect as any of the foregoing and the filing of any financing statement or
similar instrument under the Uniform Commercial Code or comparable law of any
jurisdiction, domestic or foreign.
"LIQUIDATING DISTRIBUTION" shall mean any extraordinary, liquidating or
other distribution in return of capital with respect to any Equity Interest of
any Person (other than a Subsidiary of any Domestic Subsidiary) owned by a Loan
Party which Equity Interest is pledged pursuant to any of the Security
Documents.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes, the Guaranty, each
Letter of Credit, each L/C Related Document, the Fee Letter, the Security
Documents, the Environmental Indemnity Agreement, each Interest Rate Agreement
permitted to be entered into pursuant to Section 7.14(a) and all other
documents, instruments and agreements executed and/or delivered in connection
herewith or therewith or required or contemplated hereunder or thereunder, as
the same may be amended, restated, modified or supplemented and in effect from
time to time.
"LOAN PARTY" shall mean and include the Borrower and each Guarantor.
"LOANS" shall mean and include the Term Loans and the Revolving Loans.
"MARGIN STOCK" shall have the meaning provided such term in Regulation U of
the Federal Reserve Board.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect upon (i) the
business, operations, properties, assets, performance, prospects or condition
(financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole,
or (ii) the ability of any Loan Party to perform, or of the Administrative Agent
or any of the Lenders to enforce, any of such Loan Party's material Obligations
under any Loan Document to which it is or is to be a party, or (iii) the
validity, perfection or priority of any Lien in favor of the Administrative
Agent for the benefit of the Lenders on any material portion of the Collateral.
"MATERIAL LEASES" shall have the meaning provided in Section 6.9.
"MATERIALS OF ENVIRONMENTAL CONCERN" shall mean and include chemicals,
pollutants, contaminants, wastes, toxic substances, petroleum and petroleum
products, asbestos and radioactive materials.
"MORTGAGE AMENDMENTS" shall have the meaning provided in Section 6.16.
"MORTGAGES" shall mean collectively, each mortgage, deed of trust,
leasehold mortgage, leasehold deed of trust or other similar instrument executed
and delivered by the Borrower or
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
any of its Subsidiaries to the Administrative Agent for the benefit of the
Lenders from time to time (including, without limitation, all Mortgages
delivered prior to the Closing Date) and granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇
on the real property of the Borrower or such Subsidiary identified therein, as
the same may be amended, restated, supplemented or otherwise modified.
"MULTIEMPLOYER PLAN" shall mean a Plan which is a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA.
"NET DEBT PROCEEDS" means all cash proceeds received by the Borrower or any
of its Subsidiaries from the incurrence of, or the issuance of any instruments
relating to, any Indebtedness (other than (i) Indebtedness borrowed by the
Borrower under this Agreement, (ii) Indebtedness permitted to be incurred
pursuant to Section 7.2(g), (iii) Indebtedness permitted to be incurred pursuant
to Section 7.2(i) (including the Convertible Subordinated Notes) and (iv)
Indebtedness permitted to be incurred pursuant to Section 7.2(m) with respect to
Sale and Leaseback Transactions) net of reasonable and customary underwriting
fees and discounts, brokerage commissions and other similar reasonable and
customary costs and expenses directly attributable to such issuance or
incurrence.
"NET EQUITY PROCEEDS" shall mean all cash proceeds received by the Borrower
or any of its Subsidiaries from any capital contribution or the issuance of any
Equity Interests or other equity securities of the Borrower or any of its
Subsidiaries (other than the issuance of common stock (A) of the Borrower issued
to employees, consultants or directors of the Borrower or any of its
Subsidiaries pursuant to an employee stock option or purchase plan approved by
the Board of Directors of the Borrower or (B) of any Subsidiary of the Borrower
to the Borrower or any wholly-owned Subsidiary of the Borrower), net of any
reasonable and customary brokerage commissions, underwriting fees and discounts
and any other similar reasonable and customary costs or expenses directly
attributable to such issuance.
"NET SALE PROCEEDS" shall mean, with respect to (a) any Asset Disposition,
all proceeds in the form of cash or cash equivalents received by the Borrower or
any of its Subsidiaries from or in respect of such Asset Disposition (including
any cash proceeds received as income or other proceeds of any noncash proceeds
of such Asset Disposition and including any insurance payment or condemnation
award in respect of any assets of the Borrower or any of its Subsidiaries) and
(b) any Liquidating Distribution, all proceeds in the form of cash or cash
equivalents received by the Borrower or any of its Subsidiaries from or in
respect of any Liquidating Distribution, in the case of the foregoing clauses
(a) and (b), net of (i) reasonable and customary expenses incurred or reasonably
expected to be incurred in connection with such Asset Disposition or Liquidating
Distribution, (ii) any income, franchise, transfer or other tax payable by the
Borrower or such Subsidiary in connection with such Asset Disposition or
Liquidating Distribution and (iii) any Indebtedness secured by a Lien on such
property or assets and required to be repaid as a result of such Asset
Disposition, in each case with respect to the
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
foregoing clause (i) to the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash or cash equivalents, actually
paid to a Person that is not an Affiliate and are properly attributable to such
transaction or to the asset that is the subject thereof; PROVIDED, HOWEVER, that
Net Sale Proceeds shall not include any such proceeds from Excluded Resales.
"NEW PROPERTY SALE AND LEASEBACK TRANSACTION" shall have the meaning
provided in Section 7.13(a)(i).
"NOTE" shall mean a Revolving Note or a Term Note.
"NOTES" shall mean and include each Revolving Note and each Term Note.
"NOTICE OF BORROWING" shall have the meaning provided in Section 2.3(a).
"NOTICE OF CONVERSION OR CONTINUATION" shall have the meaning provided in
Section 2.9(b).
"OBLIGATIONS" shall mean all obligations, liabilities and indebtedness of
every kind, nature and description of the Borrower and the other Loan Parties
from time to time owing to the Administrative Agent or any Lender or any
Indemnitee under or in connection with this Agreement or any other Loan
Document, whether direct or indirect, primary or secondary, joint or several,
absolute or contingent, due or to become due, now existing or hereafter arising
and however acquired and shall include, without limitation, all principal and
interest on the Loans and, to the extent chargeable under any Loan Document, all
charges, expenses, fees and attorney's fees.
"ORIGINAL CREDIT AGREEMENT" shall mean that certain Sixth Amended and
Restated Credit Agreement dated as of June 2, 2004, among the Borrower, the
lenders party thereto and BNP Paribas, as agent, as amended, restated,
supplemented or otherwise modified prior to the date hereof.
"OTHER TAXES" shall have the meaning provided in Section 2.19(c).
"PARTICIPANT" shall have the meaning provided in Section 10.4(b).
"PAYMENT DATE" shall mean the fifteenth day of each March, June, September
and December of each year.
"PATRIOT ACT" shall have the meaning provided in Section 10.23.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
under ERISA, or any successor thereto.
"PERMITTED ACQUISITION" shall mean any Acquisition by the Borrower or any
of its Subsidiaries of a Restaurant that has been approved by the board of
directors (or other governing body, if applicable) of the Person which is the
subject of such Acquisition.
"PERMITTED CONVERTIBLE DEBT" shall mean up to $220,000,000 in aggregate
principal amount of Indebtedness of the Borrower or any Subsidiary of the
Borrower permitted to be incurred hereunder, entered into after the Closing Date
through the sale of securities through one or more initial purchasers or
underwriters, providing for the conversion thereof by the holder into shares of
common stock of the Borrower, or, to the extent such Indebtedness is "Net Share
Settled Convertible Debt," into cash (in an amount of up to the principal amount
thereof) in an amount measured by reference to such shares of common stock,
PROVIDED that (i) such Indebtedness is unsecured pari passu debt or subordinate
to the Loans, (ii) such Indebtedness matures at a date later than the Revolving
Loan Maturity Date and the Term Loan Maturity Date and any call or put option
contained within such Indebtedness shall not be exercisable prior to the
Revolving Loan Maturity Date and the Term Loan Maturity Date and (iii) the
proceeds of such Indebtedness are used to pay or prepay the Term Loans or the
Additional Loans (or if the Additional Loans have not then been drawn, to
permanently reduce the availability thereof).
"PERMITTED SUBORDINATED DEBT" shall mean Indebtedness of the Borrower or
any Subsidiary of the Borrower incurred after the Closing Date, (A) with respect
to which no principal payments are due prior to the date which is one year and
one day after the Final Maturity Date and (B) which is subordinated as to
exercise of remedies and in right of payment to the Borrower's Obligations and
such Subsidiary's Obligations, respectively, under the Loan Documents on, and is
otherwise subject to, terms and conditions (including, without limitation, terms
in respect of maturities, covenants, defaults and remedies and interest rates)
approved in writing by the Administrative Agent and in any event shall not
include Indebtedness issued pursuant to the Convertible Subordinated Notes.
"PERSON" shall mean and include any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or other
enterprise or any government or political subdivision or agency, department or
instrumentality thereof.
"PLAN" means any employee benefit plan covered by Title IV of ERISA, the
funding requirements of which:
(i) were the responsibility of the Borrower or a member of its ERISA
Controlled Group at any time within the six years immediately preceding the
Closing Date,
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(ii) are currently the responsibility of the Borrower or a member of its
ERISA Controlled Group, or
(iii) hereafter become the responsibility of the Borrower or a member of
its ERISA Controlled Group,
including any such plans as may have been, or may hereafter be, terminated for
whatever reason.
"PREPAYMENT" shall have the meaning provided in Section 7.10(a)(i).
"PRO RATA SHARE" as to any Lender shall mean:
(a) with respect to all payments, computations and determinations
relating to the Term Loan Commitment or the Term Loan of any Lender, the
percentage obtained by dividing (i) the outstanding principal balance of such
Lender's Term Loan by (ii) the aggregate outstanding principal balance of the
Term Loans;
(b) with respect to all payments, computations and determinations
relating to the Revolving Loan Commitment or the Revolving Loans of any Lender,
or such Lender's interest in Letters of Credit (including, without limitation,
determinations of the Commitment Fee under Section 2.15(b) and letter of credit
fees under Section 3.2), the percentage obtained by dividing (i) such Lender's
Revolving Loan Commitment (or the aggregate outstanding principal balance of
such Lender's Revolving Loans and all L/C Obligations in which such Lender has
an interest, if the Revolving Loan Commitments have been terminated pursuant to
the terms of this Agreement) by (ii) the Total Revolving Loan Commitment (or the
aggregate outstanding principal balance of the Revolving Loans and all L/C
Obligations, if the Revolving Loan Commitments have been terminated pursuant to
the terms of this Agreement); and
(c) for all other purposes with respect to each Lender, the percentage
obtained by dividing (i) the sum of (A) the outstanding principal balance of
such Lender's Term Loan and (B) such Lender's Revolving Loan Commitment (or the
aggregate outstanding principal balance of such Lender's Revolving Loans and all
L/C Obligations in which such Lender has an interest, if the Revolving Loan
Commitments have been terminated pursuant to the terms of this Agreement) by
(ii) the sum of (A) the aggregate outstanding principal balance of the Term
Loans and (B) the Total Revolving Loan Commitment (or the aggregate outstanding
principal balance of the Revolving Loans and all L/C Obligations, if the
Revolving Loan Commitments have been terminated pursuant to the terms of this
Agreement).
"RATE HEDGING OBLIGATIONS" shall mean any and all obligations of any Loan
Party to any Interest Rate Hedge Provider under Interest Rate Agreements
permitted pursuant to Section 7.14(a).
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"REAL ESTATE COLLATERAL" shall mean Collateral subject to or purported to
be subject to the Lien of the Mortgages.
"REDEEMABLE STOCK" shall mean any Equity Interest which, by its terms, or
upon the happening of any event matures, is mandatorily redeemable or
repurchaseable (other than for Capital Stock not constituting Redeemable Stock),
in whole or in part, prior to one year and one day after the Final Maturity
Date, or is, by its terms or upon the happening of any event, required to be
redeemed or repurchased, redeemable or repurchaseable at the option of the
holder thereof, in whole or in part, at any time prior to one year and one day
after the Final Maturity Date.
"REFERENCE BANKS" shall mean each of BNP Paribas, First Bank and Trust,
Fleet National Bank, U.S. Bank National Association, ▇▇▇▇▇ Fargo Bank, National
Association and Union Bank of California, N.A. and their respective successors;
PROVIDED, HOWEVER, that in the event any such Person shall cease to be a Lender
hereunder, such Person shall cease to be a Reference Bank.
"REGISTER" shall have the meaning provided in Section 10.4(h).
"REGULATION D" shall mean Regulation D of the Federal Reserve Board as from
time to time in effect and any successor to all or any portion thereof.
"REPLACEMENT LENDER" shall have the meaning provided in Section 2.22.
"REPORTABLE EVENT" has the meaning set forth in Section 4043(b) of ERISA
(other than a Reportable Event as to which the provision of 30 days notice to
the PBGC is waived under applicable regulations), or is the occurrence of any of
the events described in Section 4068(f) or 4063(a) of ERISA.
"REQUIRED LENDERS" shall mean all Lenders whose Pro Rata Shares, in the
aggregate, are greater than 50%.
"RESTAURANT" shall mean any quick service restaurant.
"RETAIL PERIOD" shall mean any of the thirteen consecutive four week or
five week periods used by the Borrower for accounting purposes which begin on or
about the Tuesday after the last Monday in January of each year and ending on
the last Monday in January of the next year.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"REVOLVING LENDERS" shall mean, collectively, the Lenders holding the
Revolving Commitments or any outstanding Revolving Loan, L/C Obligation or
participation therein and "REVOLVING LENDER" means any one of them.
"REVOLVING LOAN COMMITMENT" shall mean at any time, for any Lender, the
amount set forth opposite such Lender's name on Schedule 1.1 hereto under the
heading "Revolving Loan Commitment," as such amount may be (a) increased from
time to time pursuant to Section 2.23 and/or (b) reduced from time to time
pursuant to the terms of this Agreement.
"REVOLVING LOAN MATURITY DATE" shall mean March 27, 2012.
"REVOLVING LOANS" shall have the meaning provided in Section 2.2(a).
"REVOLVING NOTE" shall have the meaning provided in Section 2.5(a).
"SALE AND LEASEBACK TRANSACTIONS" shall mean Existing Property Sale and
Leaseback Transactions and New Property Sale and Leaseback Transactions, in each
case, permitted to be entered into by the Borrower or any of its Subsidiaries
pursuant to Section 7.13(a).
"SECURED PARTIES" shall have the meaning provided in the Borrower Security
Agreement and the Subsidiary Security Agreement.
"SECURITY DOCUMENTS" shall mean and include the Borrower Security
Agreement, the Subsidiary Security Agreement, the Guaranty, the Borrower Pledge
Agreement, the Subsidiary Pledge Agreements, the Mortgages and all other
security agreements, pledge agreements, mortgages, leasehold mortgages,
assignments and similar agreements executed in connection with the Loan
Documents.
"SOLVENT" as to any Person shall mean that (i) the sum of the assets of
such Person, both at a fair valuation and at present fair salable value, will
exceed its liabilities, including contingent liabilities, (ii) such Person will
have sufficient capital with which to conduct its business as presently
conducted and as proposed to be conducted and (iii) such Person has not incurred
debts, and does not intend to incur debts, beyond its ability to pay such debts
as they mature. For purposes of this definition, "debt" means any liability on a
claim, and "claim" means (x) a right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured, or (y)
a right to an equitable remedy for breach of performance if such breach gives
rise to a payment, whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured, or unsecured. With respect to any such contingent liabilities, such
liabilities shall be computed at the amount which, in light of
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
all the facts and circumstances existing at the time, represents the amount
which can reasonably be expected to become an actual or matured liability.
"STANDBY LETTER OF CREDIT" shall mean any standby letter of credit issued
by the Issuing Bank pursuant to Section 3 and which is not a Trade Letter of
Credit.
"SUBORDINATED DEBT DOCUMENTS" shall mean the Convertible Subordinated Notes
and the Convertible Subordinated Note Indenture.
"SUBSIDIARY" of any Person shall mean and include (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned or controlled by such Person
directly or indirectly through one or more Subsidiaries and (ii) any
partnership, limited liability company, association, joint venture or other
entity in which such Person, directly or indirectly through one or more
Subsidiaries, is either a general partner or has a more than 50% equity interest
at the time. Unless otherwise expressly provided, all references to a
"Subsidiary" shall mean a Subsidiary of the Borrower.
"SUBSIDIARY PLEDGE AGREEMENT" shall mean each pledge agreement
substantially in the form of the Fourth Amended and Restated Subsidiary Pledge
Agreement set forth as Exhibit F hereto duly executed and delivered to the
Administrative Agent by each Subsidiary of the Borrower which owns any equity
interest of any Person, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"SUBSIDIARY SECURITY AGREEMENT" shall mean a security agreement
substantially in the form of the Fourth Amended and Restated Subsidiary Security
Agreement set forth as Exhibit G hereto duly executed and delivered to the
Administrative Agent by each Subsidiary of the Borrower (other than the
Immaterial Subsidiaries), as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"SURVIVING DEBT" shall have the meaning provided in Section 4.1(o).
"TAXES" has the meaning set forth in Section 2.19(a).
"TERM LOAN" shall have the meaning provided in Section 2.1.
"TERM LOAN COMMITMENT" shall mean at any time, for any Lender, the amount
set forth opposite such Lender's name in the Register, as such amount may be (a)
increased from time to time pursuant to Section 2.23 and/or (b) reduced from
time to time pursuant to the terms of this Agreement.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"TERM LOAN LENDERS" means, collectively, the Lenders holding the Term Loan
Commitments or any outstanding Term Loans and "TERM LOAN LENDER" means any one
of them.
"TERM LOAN MATURITY DATE" shall mean March 27, 2013.
"TERM LOAN PAYDOWN" shall have the meaning set forth in Section 2.1.
"TERM NOTE" shall have the meaning provided in Section 2.5(a).
"TERMINATION EVENT" shall mean (i) a Reportable Event, or (ii) the
initiation of any action by the Borrower, any member of the Borrower's ERISA
Controlled Group or any ERISA Plan fiduciary to terminate an ERISA Plan or the
treatment of an amendment to an ERISA Plan as a termination under ERISA, or
(iii) the institution of proceedings by the PBGC under Section 4042 of ERISA to
terminate an ERISA Plan or to appoint a trustee to administer any ERISA Plan.
"TOTAL COMMITMENT" shall mean, at any time, the sum of the Commitments of
all of the Lenders at such time.
"TOTAL REVOLVING LOAN COMMITMENT" shall have the meaning set forth in
Section 2.2(a).
"TOTAL TERM LOAN COMMITMENT" shall have the meaning set forth in Section
2.1(a).
"TRADE LETTER OF CREDIT" shall mean any Letter of Credit that is issued
pursuant to Section 3 for the benefit of a supplier of inventory to the Borrower
or any of its Subsidiaries to effect payment for such inventory.
"TRANSACTION DOCUMENTS" shall mean the Loan Documents.
"TRANSACTIONS" shall mean each of the transactions contemplated by the
Transaction Documents.
"TRANSFEREE" shall have the meaning provided in Section 10.4(e).
"TYPE" shall mean any type of Loan determined with respect to the interest
option applicable thereto, i.e., a Base Rate Loan or a Eurodollar Loan.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"UCC" shall mean the Uniform Commercial Code as in effect from time to time
in the applicable jurisdiction.
"UNFUNDED BENEFIT LIABILITIES" shall mean with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all benefit
liabilities under such Plan as defined in Section 4001(a)(16) of ERISA, exceeds
(ii) the fair market value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plan (on the basis
of assumptions prescribed by the PBGC for the purpose of Section 4044 of ERISA).
"UNUSED PORTION" shall mean at any time with respect to the Revolving
Loans, the amount by which the Total Revolving Loan Commitment in effect at such
time exceeds the sum of (i) the aggregate principal amount of the Revolving
Loans outstanding at such time and (ii) the aggregate amount of L/C Obligations
outstanding at such time.
"VOTING STOCK" shall mean capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though the right
so to vote has been suspended by the happening of such a contingency.
SECTION 2. AMOUNT AND TERMS OF CREDIT FACILITIES.
Section 2.1 Term Loans. Subject to and upon the terms and conditions
herein set forth, each Term Loan Lender severally and not jointly agrees to make
a single loan to the Borrower on the Closing Date of a sum not exceeding the
Term Loan Commitment of such Term Loan Lender (each such loan, a "TERM LOAN").
The aggregate principal amount of the Term Loan Commitments (the "TOTAL TERM
LOAN COMMITMENT") shall not exceed $120,000,000. All unutilized Term Loan
Commitments shall expire simultaneously with the making of the Term Loans on the
Closing Date. The Term Loan of each Term Loan Lender made on the Closing Date
shall be initially made as a Base Rate Loan or a Eurodollar Loan (subject to the
other terms of this Agreement, including without limitation, Section 2.3 and
Section 2.17) and may thereafter be maintained at the option of the Borrower as
a Base Rate Loan or a Eurodollar Loan, in accordance with the provisions hereof.
Once repaid, Term Loans may not be reborrowed. The
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Borrower shall repay the principal amounts with respect to the Term Loans on the
dates and in the amounts set forth below (each, a "TERM LOAN PAYDOWN"):
DATE PAYDOWN AMOUNT
---- --------------
July 1, 2007 $ 300,000
October 1, 2007 $ 300,000
January 1, 2008 $ 300,000
April 1, 2008 $ 300,000
July 1, 2008 $ 300,000
October 1, 2008 $ 300,000
January 1, 2009 $ 300,000
April 1, 2009 $ 300,000
July 1, 2009 $ 300,000
October 1, 2009 $ 300,000
January 1, 2010 $ 300,000
April 1, 2010 $ 300,000
July 1, 2010 $ 300,000
October 1, 2010 $ 300,000
January 1, 2011 $ 300,000
April 1, 2011 $ 300,000
July 1, 2011 $ 300,000
October 1, 2011 $ 300,000
January 1, 2012 $ 300,000
April 1, 2012 $28,500,000
July 1, 2012 $28,500,000
October 1, 2012 $28,500,000
January 1, 2013 $28,800,000
Notwithstanding the foregoing, the Term Loans shall mature on the Term Loan
Maturity Date and shall be repaid in full, without premium or penalty, by the
Borrower, on the Term Loan Maturity Date; PROVIDED HOWEVER, that the last such
installment due on the Term Loan Maturity Date shall be in the amount necessary
to repay in full the aggregate unpaid principal balance of the Term Loans.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 2.2 Revolving Loans.
(a) Subject to and upon the terms and conditions herein set
forth, each Lender severally and not jointly agrees, at any time and from time
to time on and after the Closing Date and prior to the Revolving Loan Maturity
Date, to make revolving loans (collectively, "REVOLVING LOANS") to the Borrower,
which Revolving Loans shall not exceed in aggregate principal amount at any time
outstanding (i) the Revolving Loan Commitment of such Lender at such time minus
(ii) such Lender's Pro Rata Share of the L/C Obligations at such time; PROVIDED
that at no time shall the aggregate outstanding principal amount of the
Revolving Loans of all of the Lenders plus the L/C Obligations of all of the
Lenders exceed the Total Revolving Loan Commitment. The sum of the Revolving
Loan Commitments of all of the Lenders (the "TOTAL REVOLVING LOAN COMMITMENT")
as of the date hereof is $200,000,000. The Revolving Loans of each Lender made
on the Closing Date shall be initially made as a Base Rate Loan or a Eurodollar
Loan (subject to the other terms of this Agreement, including without
limitation, Section 2.3 and Section 2.17) and may thereafter be maintained at
the option of the Borrower as a Base Rate Loan or a Eurodollar Loan, in
accordance with the provisions hereof.
(b) Revolving Loans may be voluntarily prepaid pursuant to
Section 2.11, and, subject to the other provisions of this Agreement, any
amounts so prepaid may be reborrowed. Each Lender's Revolving Loan Commitment
shall expire, and each Revolving Loan shall mature on, the Revolving Loan
Maturity Date, without further action on the part of the Lenders or the
Administrative Agent.
(c) Each Borrowing of Revolving Loans shall be in the aggregate
minimum amount of $500,000 or any integral multiple of $500,000 in excess
thereof.
Section 2.3 Notice of Borrowing.
(a) Whenever the Borrower desires to borrow Revolving Loans
hereunder, it shall give the Administrative Agent at the Administrative Agent's
Office prior to 12:00 Noon, Chicago time, on the Business Day of such borrowing
by telex, facsimile or telephonic notice (promptly confirmed in writing) of each
Base Rate Loan, and at least three Business Days' prior telex, facsimile or
telephonic notice (promptly confirmed in writing) of each Eurodollar Loan to be
made hereunder. Each such notice shall be in the form of Exhibit J hereto (a
"NOTICE OF BORROWING") shall be irrevocable and shall specify (i) the aggregate
principal amount of the requested Revolving Loans, (ii) the date of Borrowing
(which shall be a Business Day), and (iii) whether such Revolving Loans shall
consist of Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the
initial Interest Period to be applicable thereto
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(PROVIDED, that no Eurodollar Loan may be requested or made when any Default or
Event of Default has occurred and is continuing).
(b) Promptly after receipt of a Notice of Borrowing, the
Administrative Agent shall provide each Lender with a copy thereof and inform
each Lender as to its Pro Rata Share of the Revolving Loans requested
thereunder.
Section 2.4 Disbursement of Funds.
(a) No later than 2:00 P.M., Chicago time, on the date specified
in each Notice of Borrowing, each Lender will make available its Pro Rata Share
of the Revolving Loans requested to be made on such date, in U.S. dollars and
immediately available funds, at the Administrative Agent's Office. After the
Administrative Agent's receipt of the proceeds of such Revolving Loans, the
Administrative Agent will make available to the Borrower by depositing in the
Borrower's account at the Administrative Agent's Office the aggregate of the
amounts so made available in the type of funds actually received.
(b) Unless the Administrative Agent shall have been notified by
any Lender prior to the date of a Borrowing that such Lender does not intend to
make available to the Administrative Agent its portion of the Revolving Loans to
be made on such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on such date and the
Administrative Agent in its sole discretion may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender and the Administrative Agent has made such amount available to
the Borrower, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower and the
Borrower shall immediately repay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover from such
Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to the then applicable rate of interest, calculated in accordance
with Section 2.6, for the respective Revolving Loans. Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its commitments
hereunder or to prejudice any rights which the Borrower may have against any
Lender as a result of any default by such Lender hereunder. Notwithstanding
anything contained herein or in any other Loan Document to the contrary, the
Administrative Agent may apply all funds and proceeds of Collateral available
for the payment of any Obligations first to repay any amount owing by any Lender
to the Administrative Agent as a result of such Lender's failure to fund its
Revolving Loans hereunder.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 2.5 Notes.
(a) The Borrower's obligation to pay the principal of, and
interest on, each Lender's Loans shall be evidenced by (i) in the case of such
Lender's Term Loans, a promissory note (as the same may be amended, restated,
supplemented or otherwise modified from time to time, a "TERM NOTE") duly
executed and delivered by the Borrower substantially in the form of Exhibit A
hereto in a principal amount equal to such Lender's Term Loan with blanks
appropriately completed in conformity herewith and (ii) in the case of such
Lender's Revolving Loans, a promissory note (as the same may be amended,
restated, supplemented or otherwise modified from time to time, a "REVOLVING
NOTE") duly executed and delivered by the Borrower substantially in the form of
Exhibit B hereto in a principal amount equal to such Lender's Revolving Loan
Commitment, with blanks appropriately completed in conformity herewith. Each
Note issued to a Lender shall (x) be payable to the order of such Lender, (y) be
dated the date such Note was issued, and (z) mature on the Term Loan Maturity
Date or the Revolving Loan Maturity Date, as the case may be.
(b) Each Lender is hereby authorized, at its option, either (i)
to endorse on the schedule attached to its Revolving Note (or on a continuation
of such schedule attached to such Revolving Note and made a part thereof) an
appropriate notation evidencing the date and amount of each Revolving Loan
evidenced thereby and the date and amount of each principal and interest payment
in respect thereof, or (ii) to record such Revolving Loans and such payments in
its books and records. Such schedule or such books and records, as the case may
be, shall constitute prima facie evidence of the accuracy of the information
contained therein.
Section 2.6 Interest.
(a) (i) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Term Loan that is a Base Rate Loan from the date
of the making of such Term Loan until such Term Loan shall be paid in full at a
rate per annum which shall be equal to the sum of (x) the Applicable Margin plus
(y) the Base Rate in effect from time to time, such rate to change as and when
the Base Rate changes, such interest to be computed on the basis of a 365 or
366-day year, as the case may be, and paid for the actual number of days
elapsed, subject to the provisions of clause (c) of this Section 2.6.
(ii) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Revolving Loan that is a Base Rate Loan from the date
of the making of such Revolving Loan until such Revolving Loan shall be paid in
full at a rate per annum which shall be equal to the sum of (x) 0.50% plus (y)
the Base Rate in effect from time to time, such rate to change as and when the
Base Rate changes, such interest to be computed on the basis of a 365 or 366-day
year, as the case may be, and paid for the actual number of days elapsed,
subject to the provisions of clause (c) of this Section 2.6.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(b) (i) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Term Loan that is a Eurodollar Loan from the
date of the making of such Term Loan until such Term Loan shall be paid in full
at a rate per annum which shall be equal to the sum of (x) the Applicable Margin
plus (y) the relevant Eurodollar Rate, such interest to be computed on the basis
of a 360-day year and paid for the actual number of days elapsed, subject to the
provisions of clause (c) of this Section 2.6.
(ii) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Revolving Loan that is a Eurodollar Loan from the date
of the making of such Revolving Loan until such Revolving Loan shall be paid in
full at a rate per annum which shall be equal to the sum of (x) 1.50% plus (y)
the relevant Eurodollar Rate, such interest to be computed on the basis of a
360-day year and paid for the actual number of days elapsed, subject to the
provisions of clause (c) of this Section 2.6.
(c) In the event that, and for so long as, any Event of Default
shall have occurred and be continuing, the outstanding principal amount of all
Loans and, to the extent permitted by law, overdue interest in respect of all
Loans, shall bear interest at a rate per annum (the "DEFAULT RATE") equal to the
sum of (x) 2% plus (y) the Applicable Margin applicable to Term Loans that are
Base Rate Loans plus (z) the Base Rate in effect from time to time, and shall be
payable on demand.
(d) Interest on each Loan shall accrue from and including the
date of the Borrowing thereof to but excluding the date of any repayment thereof
(PROVIDED that any Loan borrowed and repaid on the same day shall accrue one
day's interest) and shall be payable (i) in respect of each Base Rate Loan,
quarterly in arrears on each Payment Date, (ii) in respect of each Eurodollar
Loan, on the last day of each Interest Period applicable to such Loan and, in
the case of an Interest Period of six months, on the date occurring three months
from the first day of such Interest Period and on the last day of such Interest
Period, and (iii) in the case of all Loans, on any prepayment or conversion (on
the amount prepaid or converted), at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand. Each determination by the
Administrative Agent of an interest rate hereunder shall, except for manifest
error, be final, conclusive and binding for all purposes.
(e) In the event that the Eurodollar Base Rate is to be
determined by reference to the Reference Banks, each Reference Bank agrees to
furnish to the Administrative Agent timely information for the purpose of
determining each Eurodollar Base Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Administrative Agent for the
purpose of determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Administrative Agent shall give prompt notice to
the Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.6(b), and the rate, if any,
furnished by each Reference Bank for the purpose of determining the interest
rate under Section 2.6(b).
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 2.7 Interest Periods.
(a) The Borrower shall, in each Notice of Borrowing or Notice of
Conversion or Continuation in respect of the making of, conversion into or
continuation of a Eurodollar Loan, select the interest period (each an "INTEREST
PERIOD") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Borrower, be either a one-month, two-month, three-month or
six-month period, PROVIDED that:
(i) the initial Interest Period for any Eurodollar Loan
shall commence on the date of the making of such Loan (including the date
of any conversion from a Base Rate Loan) and each Interest Period occurring
thereafter in respect of such Loan shall commence on the date on which the
next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, PROVIDED, HOWEVER, that if any Interest Period
would otherwise expire on a day which is not a Business Day but is a day of
the month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iii) if any Interest Period begins on a day for which there
is no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last Business
Day of such calendar month;
(iv) no Interest Period in respect of any Revolving Loan or
any Term Loan shall extend beyond the Revolving Loan Maturity Date or the
Term Loan Maturity Date, as the case may be; and
(v) no Interest Period in respect of a Term Loan shall
extend beyond any date upon which a repayment of the Term Loans is required
to be made pursuant to Section 2.1 unless the aggregate principal amount of
Term Loans which are Base Rate Loans or which have Interest Periods which
will expire on or before such date is equal to or in excess of the amount
of the Term Loan repayment required to be made on such date.
(vi) If upon the expiration of any Interest Period, the
Borrower has failed to elect a new Interest Period to be applicable to the
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
respective Eurodollar Loan as provided above, the Borrower shall be deemed
to have elected to convert such Eurodollar Loans into Base Rate Loans
effective as of the expiration date of such current Interest Period.
Section 2.8 Minimum Amount of Eurodollar Loans. All borrowings,
conversions, continuations, payments, prepayments and selection of Interest
Periods hereunder shall be made or selected so that, after giving effect
thereto, (i) the aggregate principal amount of any Borrowing comprised of
Eurodollar Loans shall not be less than $3,000,000 or an integral multiple of
$500,000 in excess thereof, and (ii) there shall be no more than twelve (12)
Borrowings comprised of Eurodollar Loans outstanding at any time.
Section 2.9 Conversion or Continuation.
(a) Subject to the other provisions hereof, the Borrower shall
have the option (i) to convert at any time all or any part of outstanding Base
Rate Loans which comprise part of the same Borrowing to Eurodollar Loans, (ii)
to convert all or any part of outstanding Eurodollar Loans which comprise part
of the same Borrowing to Base Rate Loans, on the expiration date of the Interest
Period applicable thereto, or (iii) to continue all or any part of outstanding
Eurodollar Loans which comprise part of the same Borrowing as Eurodollar Loans
for an additional Interest Period, on the expiration of the Interest Period
applicable thereto; PROVIDED, that no Loan may be continued as, or converted
into, a Eurodollar Loan when any Default or Event of Default has occurred and is
continuing.
(b) In order to elect to convert or continue a Loan under this
Section 2.9, the Borrower shall deliver an irrevocable notice thereof (a "NOTICE
OF CONVERSION OR CONTINUATION") to the Administrative Agent no later than 12:00
Noon, Chicago time, (i) on the Business Day of the proposed conversion date in
the case of a conversion to a Base Rate Loan and (ii) at least three Business
Days in advance of the proposed conversion or continuation date in the case of a
conversion to, or a continuation of, a Eurodollar Loan. A Notice of Conversion
or Continuation shall specify (w) the requested conversion or continuation date
(which shall be a Business Day), (x) the amount, Facility and Type of the Loan
to be converted or continued, (y) whether a conversion or continuation is
requested, and (z) in the case of a conversion to, or a continuation of, a
Eurodollar Loan, the requested Interest Period. Promptly after receipt of a
Notice of Conversion or Continuation under this Section 2.9(b), the
Administrative Agent shall provide each Lender with a copy thereof.
Section 2.10 Voluntary Reduction of Commitments. Upon at least three
Business Day's prior irrevocable written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, without premium or penalty, to permanently reduce
each Lender's Pro Rata Share of all or part of the Total Revolving Loan
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Commitment, PROVIDED that any such partial reduction shall be in the minimum
aggregate amount of $1,000,000 or any integral multiple of $500,000 in excess
thereof.
Section 2.11 Voluntary Prepayments. The Borrower shall have the right
to prepay the Loans in whole or in part from time to time on the following terms
and conditions: (i) the Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing), which notice shall
be irrevocable, of its intent to prepay the Loans, at least three Business Days
prior to a prepayment of Eurodollar Loans and on the Business Day of a
prepayment of Base Rate Loans, which notice shall specify the amount of such
prepayment and what Types of Loans and which Facilities are to be prepaid and,
in the case of Eurodollar Loans, the specific Borrowing(s) pursuant to which
made, and which notice the Administrative Agent shall promptly transmit to each
of the Lenders, (ii) each prepayment shall be in an aggregate principal amount
of $1,000,000 or any integral multiple of $500,000 in excess thereof and (iii)
partial prepayments of the Term Loans shall be applied to the remaining
scheduled installments of principal thereof on a pro rata basis; PROVIDED that
if any prepayment of Eurodollar Loans is made pursuant to this Section 2.11 on a
day which is not the last day of the Interest Period applicable thereto, the
Borrower shall pay to each Lender all amounts due in connection with such
prepayment pursuant to Section 2.17.
Section 2.12 Mandatory Prepayments.
(a) Upon the consummation of any Asset Disposition or upon the
receipt by any Loan Party of any Liquidating Distribution after the Closing
Date, in each case within 270 days after the Borrower or any of its Subsidiaries
receives any Net Sale Proceeds, the Borrower shall prepay the outstanding Loans
in an amount equal to 100% of the amount of such Net Sale Proceeds, in
accordance with the provisions of Section 2.13; PROVIDED, HOWEVER, that such Net
Sale Proceeds which the Borrower or such Subsidiary shall, within 270 days after
receipt thereof, use to reinvest in the business of the Borrower of its
Subsidiaries, shall not be included in determining the aggregate Net Sale
Proceeds for such period; PROVIDED, FURTHER that, if an Event of Default shall
have occurred and be continuing on the date such Net Sale Proceeds are received
by the Borrower or any of its Subsidiaries or at any time during such 270 day
period, then the Borrower shall prepay the outstanding Loans in an amount equal
to 100% of such Net Sale Proceeds (or, if any portion of such proceeds shall
have been reinvested prior to the occurrence of such Event of Default, 100% of
such remaining amount of Net Sale Proceeds not so reinvested), in accordance
with the provisions of Section 2.13, on the later of the date such Net Sale
Proceeds are received by the Borrower or any of its Subsidiaries or the date of
the occurrence of such Event of Default.
(b) On each date on which the Borrower or any of its Subsidiaries
receives any Net Equity Proceeds, the Borrower shall prepay the outstanding
Loans in an amount equal to (i) 50% of such Net Equity Proceeds if no Default or
Event of Default has occurred or is continuing as a result of the Borrower's
failure to deliver any financial statement or Compliance
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Certificate as and when required pursuant to Section 6.1(a), 6.1(b) or 6.1(e),
as applicable and (ii) 75% of such Net Equity Proceeds if any Default or Event
of Default has occurred and is continuing as a result of the Borrower's failure
to deliver any financial statement or Compliance Certificate as and when
required pursuant to Sections 6.1(a), 6.1(b) or 6.1(e), as applicable, in each
case in accordance with the provisions of Section 2.13.
(c) On each date on which the Borrower or any of its Subsidiaries
receives any Net Debt Proceeds or becomes or remains liable with respect to
Indebtedness with respect to Capitalized Leases in excess of $100,000,000 in the
aggregate at any one time outstanding for the Borrower and its Subsidiaries, the
Borrower shall prepay the outstanding Loans in an amount equal to 100% of such
Net Debt Proceeds or 100% of the amount by which the aggregate amount of
Indebtedness of the Borrower and its Subsidiaries with respect to Capitalized
Leases exceeds $100,000,000 on such date, respectively, in accordance with the
provisions of Section 2.13.
(d) On each day on which the Total Revolving Loan Commitment is
reduced pursuant to Section 2.10 the Borrower shall prepay the Revolving Loans
to the extent, if any, that the outstanding principal amount of the Revolving
Loans exceeds such reduced Total Revolving Loan Commitment.
(e) If at any time and for any reason the aggregate principal
amount of Revolving Loans plus the L/C Obligations then outstanding are greater
than the Total Revolving Loan Commitment, the Borrower shall immediately prepay
the Revolving Loans in an amount equal to such excess. In addition, to the
extent at any time and for any reason, the Total Revolving Loan Commitment minus
the aggregate principal amount of Revolving Loans then outstanding, is less than
the amount of L/C Obligations outstanding at such time, the Borrower shall Cash
Collateralize the L/C Obligations in an amount equal to the amount by which such
L/C Obligations exceed the amount equal to the difference between the Total
Revolving Loan Commitment and such aggregate principal amount of Revolving
Loans.
(f) The Borrower shall make each Term Loan Paydown in accordance
with Section 2.1.
(g) Nothing in this Section 2.12 shall be construed to constitute
the Lenders' consent to any transactions referred to in Sections 2.12(a),
2.12(b) or 2.12(c) above which transaction is not expressly permitted by the
terms of this Agreement.
(h) In the event that there shall be Consolidated Excess Cash
Flow for any fiscal year of the Borrower (commencing with fiscal year 2008), the
Borrower shall, no later than 90 days after the end of such fiscal year, prepay
the Loans in an aggregate amount equal to
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
25% of such Consolidated Excess Cash Flow, minus the aggregate amount of any
voluntary prepayments made pursuant to Section 2.11 during such fiscal year.
Section 2.13 Application of Prepayments.
(a) All prepayments of the Loans required by clauses (a) through
(c) and (h) of Section 2.12 shall be applied first, to prepay the Term Loans
until such Term Loans shall have been repaid in full, together with accrued and
unpaid interest thereon, second, to prepay the Revolving Loans until such
Revolving Loans shall have been repaid in full, together with accrued and unpaid
interest thereon, third, to Cash Collateralize the then outstanding Letters of
Credit and, fourth, to all other outstanding Obligations. If (i) at the time of
any prepayment of the principal amount of the Revolving Loans pursuant to the
preceding sentence (other than any prepayment required by Section 2.12(a))
either (A) the Leverage Ratio as of the end of the fiscal quarter immediately
preceding such date as to which financial statements are required to have been
delivered pursuant to Section 6.1(a) or 6.1(b), as applicable, is greater than
or equal to 2.0 or (B) any Default or Event of Default has occurred and is
continuing as a result of the Borrower's failure to deliver any financial
statement or Compliance Certificate as and when required pursuant to Section
6.1(a), 6.1(b) or 6.1(e), as applicable, then simultaneously with any prepayment
of the principal amount of the Revolving Loans pursuant to the preceding
sentence, each Lender's Revolving Loan Commitment shall be permanently reduced
by such Lender's Pro Rata Share of such prepayment and, (ii) at the time of any
prepayment of the principal amount of the Revolving Loans pursuant to the
preceding sentence (other than any prepayment required by Section 2.12(a)), both
(A) the Leverage Ratio as of the end of the fiscal quarter immediately preceding
such date as to which financial statements are required to have been delivered
pursuant to Sections 6.1(a) and 6.1(b), as applicable, is less than 2.0 and (B)
no Default or Event of Default has occurred or is continuing as a result of the
Borrower's failure to deliver any financial statement or Compliance Certificate
as and when required pursuant to Section 6.1(a), 6.1(b) or 6.1(e), as
applicable, then, any Revolving Loans repaid pursuant to the preceding sentence
may be reborrowed, subject to the other terms of this Agreement.
(b) Simultaneously with any prepayment of the principal amount of
Revolving Loans pursuant to Section 2.12(a), each Lender's Revolving Loan
Commitment shall be permanently reduced by such Lender's Pro Rata Share of such
prepayment.
(c) All prepayments of the then remaining Term Loans required by
clauses (a) through (c) of Section 2.12 shall be applied on a pro rata basis to
the scheduled installments of principal thereof.
Section 2.14 Method and Place of Payment.
(a) Except as otherwise specifically provided herein, all
payments and prepayments under this Agreement and the Notes shall be made to the
Administrative Agent for
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
the account of the Lenders entitled thereto not later than 2:00 P.M., Chicago
time, on the date when due and shall be made in lawful money of the United
States of America in immediately available funds at the Administrative Agent's
Office, and any funds received by the Administrative Agent after such time
shall, for all purposes hereof (including the following sentence), be deemed to
have been paid on the next succeeding Business Day. Except as otherwise
specifically provided herein, the Administrative Agent shall thereafter cause to
be distributed on the date of receipt thereof to each Lender in like funds its
Pro Rata Share of payments so received.
(b) Whenever any payment to be made hereunder or under any Note
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable at the applicable rate
during such extension.
(c) All payments made by the Borrower hereunder and under the
other Loan Documents shall be made irrespective of, and without any reduction
for, any setoff or counterclaims.
Section 2.15 Fees.
(a) The Borrower agrees to pay the fees in the amounts and on the
dates specified in the Fee Letter.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee (the "COMMITMENT FEE") for each day
computed at the per annum rate equal to the Applicable Margin (determined for
the Commitment Fee in accordance with the definition of Applicable Margin)
multiplied by each such Lender's Pro Rata Share of the average daily Unused
Portion, from and including the Closing Date to the Revolving Loan Maturity
Date.
(c) The Commitment Fee shall accrue from and including the
Closing Date to but excluding the Revolving Loan Maturity Date. Accrued fees
under this Section 2.15 shall be payable on the Closing Date and payable
quarterly in arrears on each Payment Date, commencing June 15, 2007, and on the
Revolving Loan Maturity Date or such earlier date, if any, on which the
Revolving Loan Commitments shall terminate in accordance with the terms hereof.
The Commitment Fee and all other fees due under the Loan Documents (collectively
the "FEES") shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 2.16 Interest Rate Unascertainable, Increased Costs,
Illegality.
(a) In the event that the Administrative Agent, in the case of
clause (i) below, or any Lender, in the case of clauses (ii) and (iii) below,
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period, that by reason of any changes arising after the Closing
Date affecting the interbank Eurodollar market, adequate and fair means do
not exist for ascertaining the applicable interest rate on the basis
provided for in the definition of the Eurodollar Rate; or
(ii) at any time, that the relevant Eurodollar Rate
applicable to any of its Loans shall not represent the effective pricing to
such Lender for funding or maintaining a Eurodollar Loan, or such Lender
shall incur increased costs or reductions in the amounts received or
receivable hereunder in respect of any Eurodollar Loan, in any such case
because of (x) any change since the Closing Date in any applicable law or
governmental rule, regulation, guideline or order or any interpretation
thereof and including the introduction of any new law or governmental rule,
regulation, guideline or order (such as for example but not limited to a
change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D of the Federal Reserve Board to the
extent included in the computation of the Eurodollar Rate), whether or not
having the force of law and whether or not failure to comply therewith
would be unlawful, and/or (y) other circumstances affecting such Lender or
the interbank Eurodollar market or the position of such Lender in such
market; or
(iii) at any time, that the making or continuance by it of
any Eurodollar Loan has become unlawful by compliance by such Lender in
good faith with any law or governmental rule, regulation, guideline or
order (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) or has become impracticable as a result
of a contingency occurring after the Closing Date which materially and
adversely affects the interbank Eurodollar market;
then, and in any such event, the Administrative Agent or such Lender shall,
promptly after making such determination, give notice (by telephone promptly
confirmed in writing) to the Borrower and (if applicable) the Administrative
Agent of such determination (which notice the Administrative Agent shall
promptly transmit to each of the other Lenders). Thereafter (x) in the case of
clause (i) above, the Borrower's right to request Eurodollar Loans shall be
suspended, and any Notice of Borrowing or Notice of Conversion or Continuation
given by the Borrower with respect to any Borrowing of Eurodollar Loans which
has not yet been made shall be deemed cancelled and rescinded by the Borrower,
(y) in the case of clause (ii) above, the Borrower shall pay to such Lender,
upon such Lender's delivery of a written demand therefor to the Borrower with a
copy to the Administrative Agent, such additional amounts (in the form of an
increased
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
rate of interest, or a different method of calculating interest, or otherwise,
as such Lender in its sole discretion shall determine) as shall be required to
compensate such Lender for such increased costs or reduction in amounts received
or receivable hereunder and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in clause (b) below as promptly as
possible and, in any event, within the time period required by law. The written
demand provided for in clause (y) shall demonstrate in reasonable detail the
calculation of the amounts demanded and shall, absent manifest error, be final
and conclusive and binding upon all of the parties hereto.
(b) In the case of any Eurodollar Loan or requested Eurodollar
Loan affected by the circumstances described in clause (a)(ii) above, the
Borrower may, and in the case of any Eurodollar Loan affected by the
circumstances described in clause (a)(iii) above the Borrower shall, either (i)
if any such Eurodollar Loan has not yet been made but is then the subject of a
Notice of Borrowing or a Notice of Conversion or Continuation, be deemed to have
cancelled and rescinded such notice, or (ii) if any such Eurodollar Loan is then
outstanding, require the affected Lender to convert each such Eurodollar Loan
into a Base Rate Loan at the end of the applicable Interest Period or such
earlier time as may be required by law, in each case by giving the
Administrative Agent notice (by telephone promptly confirmed in writing) thereof
on the Business Day that the Borrower was notified by the Lender pursuant to
clause (a) above; PROVIDED, HOWEVER, that all Lenders whose Eurodollar Loans are
affected by the circumstances described in clause (a) above shall be treated in
the same manner under this clause (b).
(c) In the event that the Administrative Agent determines at any
time following its giving of notice based on the conditions described in clause
(a)(i) above that none of such conditions exist, the Administrative Agent shall
promptly give notice thereof to the Borrower and the Lenders, whereupon the
Borrower's right to request Eurodollar Loans from the Lenders and the Lenders'
obligation to make Eurodollar Loans shall be restored.
(d) In the event that a Lender determines at any time following
its giving of a notice based on the conditions described in clause (a)(iii)
above that none of such conditions exist, such Lender shall promptly give notice
thereof to the Borrower and the Administrative Agent, whereupon the Borrower's
right to request Eurodollar Loans from such Lender and such Lender's obligation
to make Eurodollar Loans shall be restored.
Section 2.17 Funding Losses. The Borrower shall compensate each
Lender, upon such Lender's delivery of a written demand therefor to the
Borrower, with a copy to the Administrative Agent (which demand shall set forth
the basis for requesting such amounts and shall, absent manifest error, be final
and conclusive and binding upon all of the parties hereto), for all reasonable
losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by such Lender in connection with the liquidation
or reemployment of deposits or funds required by it to make or carry its
Eurodollar Loans), that such Lender sustains: (i) if for any reason (other than
a default by such Lender) a Borrowing of, or conversion from or
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
into, or a continuation of, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion or Continuation
(whether or not rescinded, cancelled or withdrawn or deemed rescinded, cancelled
or withdrawn, pursuant to Section 2.16(a) or 2.16(b) or otherwise), (ii) if any
prepayment or repayment (including, without limitation, payment after
acceleration or any payment as a result of the applicability of Section 2.22 or
Section 10.5(b)) or conversion of any of its Eurodollar Loans occurs on a date
which is not the last day of the Interest Period applicable thereto, (iii) if
any prepayment of any of its Eurodollar Loans is not made on any date specified
in a notice of prepayment given by the Borrower, or (iv) as a consequence of any
default by the Borrower in repaying its Eurodollar Loans or any other amounts
owing hereunder in respect of its Eurodollar Loans when required by the terms of
this Agreement. Calculation of all amounts payable to a Lender under this
Section 2.17 shall be made on the assumption that such Lender has funded its
relevant Eurodollar Loan through the purchase of a Eurodollar deposit bearing
interest at the Eurodollar Rate in an amount equal to the amount of such
Eurodollar Loan with a maturity equivalent to the Interest Period applicable to
such Eurodollar Loan, and through the transfer of such Eurodollar deposit from
an offshore office of such Lender to a domestic office of such Lender in the
United States of America, PROVIDED that each Lender may fund its Eurodollar
Loans in any manner that it in its sole discretion chooses and the foregoing
assumption shall only be made in order to calculate amounts payable under this
Section 2.17.
Section 2.18 Increased Capital. If any Lender shall have determined
that compliance with any applicable law, rule, regulation, guideline, request or
directive (whether or not having the force of law) of any governmental
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on the capital or assets of such Lender or any
Person controlling such Lender as a consequence of its commitments or
obligations hereunder, then from time to time, upon such Lender's delivering a
written demand therefor to the Administrative Agent and the Borrower (with a
copy to the Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or Person for such
reduction.
Section 2.19 Taxes.
(a) All payments made by the Borrower under this Agreement shall
be made free and clear of, and without reduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any governmental authority excluding,
in the case of each Agent and each Lender, net income and franchise taxes
imposed on such Agent or such Lender by the jurisdiction under the laws of which
such Agent or such Lender is organized or any political subdivision or taxing
authority thereof or therein, or by any jurisdiction in which such Lender's
Domestic Lending Office or Eurodollar Lending Office, as the case may be, is
located or any political subdivision or taxing authority thereof or therein (all
such non-excluded taxes, levies, imposts, deductions, charges or
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
withholdings being hereinafter called "TAXES"). If any Taxes are required to be
withheld from any amounts payable to any Agent or any Lender hereunder or under
the Notes, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement and the Notes. Whenever
any Taxes are payable by the Borrower, as promptly as possible thereafter, the
Borrower shall send to the Administrative Agent for its own account, for the
account of either Co-Syndication Agent, or for the account of such Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any Taxes
when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Agents and the Lenders for any
incremental taxes, interest or penalties that may become payable by any Agent or
any Lender as a result of any such failure. The agreements in this Section 2.19
shall survive the termination of this Agreement and the payment of the Notes and
all other Obligations.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (including each Assignee that
becomes a party to this Agreement pursuant to Section 10.4) agrees that, prior
to the first date on which any payment is due to it hereunder, it will deliver
to the Borrower and the Administrative Agent (i) two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI or successor
applicable form, as the case may be, certifying in each case that such Lender is
entitled to receive payments under this Agreement and the Notes payable to it,
without deduction or withholding of any United States federal income taxes, and
(ii) an Internal Revenue Service Form W-8 (or W-8BEN) or W-9 or successor
applicable form, as the case may be, to establish an exemption from United
States backup withholding tax. Each Lender which delivers to the Borrower and
the Administrative Agent a Form W-8BEN or W-8ECI and Form W-8 (or W-8BEN) or W-9
pursuant to the preceding sentence further undertakes to deliver to the Borrower
and the Administrative Agent two further copies of the said letter and Form
W-8BEN or W-8ECI and Form W-8 (or W-8BEN) or W-9, or successor applicable forms,
or other manner of certification, as the case may be, on or before the date that
any such letter or form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent letter and form previously
delivered by it to the Borrower, and such extensions or renewals thereof as may
reasonably be requested by the Borrower, certifying in the case of a Form W-8BEN
or W-8ECI that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes,
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
letter or form with respect to it and such Lender advises the Borrower that it
is not capable of receiving payments without any deduction or withholding of
United States federal income tax, and in the case of a Form W-8 (or W-8BEN) or
W-9, establishing an exemption from United States backup withholding tax.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(c) In addition, the Borrower agrees to pay any and all present
or future stamp, court or documentary taxes and any other excise or property
taxes or charges or similar levies which arise from any payment made under any
Loan Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(d) The Borrower agrees to indemnify each Agent and each Lender
for (i) the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes imposed or asserted by any jurisdiction on amounts payable under this
Section) paid by such Agent and such Lender, (ii) amounts payable under Section
2.19 (c) and (iii) any liability (including additions to tax, penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant governmental authority. Payment under this subsection
(d) shall be made within 30 days after the date a Lender or an Agent makes a
demand therefor.
Section 2.20 Use of Proceeds. The proceeds of the Loans shall be used
(i) to prepay in full the outstanding principal amount of the Borrower's Loans
(as defined in the Original Credit Agreement) pursuant to the Original Credit
Agreement and (ii) for the Borrower's working capital and general corporate
purposes which shall include, but not be limited to, Restaurant renovations and
Permitted Acquisitions.
Section 2.21 Collateral Security.
(a) As security for the payment of the Obligations, the Borrower
shall cause to be granted to the Administrative Agent, for the ratable benefit
of the Lenders, a first priority perfected Lien on and security interest in all
of the following, whether now or hereafter existing or acquired subject only to
the Liens permitted to be incurred pursuant to Section 7.3 hereof: (i) all of
the shares of capital stock (or other equity interests of each Subsidiary if
such Subsidiary is not a corporation) of each Subsidiary of the Borrower now or
hereafter directly or indirectly owned by the Borrower and all proceeds thereof,
all as more specifically described in the Borrower Pledge Agreement and the
Subsidiary Pledge Agreements; (ii) certain of the assets of the Borrower and all
proceeds thereof, all as more specifically described in the Borrower Security
Agreement and the Mortgages; and (iii) certain of the assets of each Subsidiary
now or hereafter directly or indirectly owned by the Borrower and all proceeds
thereof, all as more specifically described in the Subsidiary Security Agreement
and the Mortgages. To the extent the Administrative Agent for the benefit of the
Lenders does not have a first priority perfected security interest in any assets
of the Borrower or any other Loan Party required to be pledged as described
above which is of the type described in the Borrower Security Agreement, the
Borrower Pledge Agreement, the Subsidiary Pledge Agreement or the Subsidiary
Security
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Agreement, the Borrower will grant, and cause each other Loan Party to
grant, to the Administrative Agent for itself and the benefit of the Lenders a
first priority perfected security interest in such assets subject only to the
Liens permitted pursuant to Section 7.3 hereof. In connection with any sales of
assets permitted hereunder, the Administrative Agent will release and terminate
the liens and security interests granted under the Security Documents with
respect to such assets and no further consent of the Lenders will be required
with respect to any such release.
(b) Concurrently with the consummation of any Permitted
Acquisition or any other acquisition of any asset (whether by purchase, merger,
contribution, license or otherwise) which is of the type described in the
Borrower Security Agreement, the Subsidiary Security Agreement, the Borrower
Pledge Agreement or the Subsidiary Pledge Agreement by the Borrower or any
Subsidiary of the Borrower (other than a Subsidiary which, after giving effect
to any such acquisition, is an Immaterial Subsidiary, except as otherwise
provided in Section 6.11 or any Security Document) (an "ACQUIRING SUBSIDIARY")
or the formation of any new Subsidiary (other than a Subsidiary which, after
giving effect to any such acquisition, is an Immaterial Subsidiary, except as
otherwise provided in Section 6.11 or any Security Document) of the Borrower or
upon an Immaterial Subsidiary ceasing to qualify or be designated as an
Immaterial Subsidiary (conversion from the status of an Immaterial Subsidiary to
a Subsidiary which is not an Immaterial Subsidiary is hereinafter referred to as
a "CONVERSION"), the Borrower shall:
(i) in the case of a Permitted Acquisition of stock or other
equity interest or any other acquisition of stock or other equity interest
(whether by purchase, merger, contribution, license or otherwise) by the
Borrower or any such Acquiring Subsidiary of the Borrower or the formation
of such a new Subsidiary or a Conversion: (A) deliver or cause to be
delivered to the Administrative Agent all of the certificates representing
the capital stock (or other equity interest if such equity interests are
represented by a certificate or certificates) of such new Subsidiary which
is being acquired or formed or converted (or Investment if such Investment
is not an Immaterial Investment), beneficially owned by the Borrower or
such Acquiring Subsidiary, as additional collateral for the Obligations, to
be held by the Administrative Agent in accordance with the terms of the
Borrower Pledge Agreement or a Subsidiary Pledge Agreement, as the case may
be; and (B) cause such Acquiring Subsidiary (which is not already a party
thereto) or new Subsidiary which is being acquired or formed or converted
to deliver to the Administrative Agent (1) duly executed counterpart
signature pages to each of the Guaranty, and the Subsidiary Security
Agreement, in the forms attached respectively thereto as Appendix I,
together with the authorization to the Administrative Agent and the Lenders
to attach such signature pages to the Guaranty and the Subsidiary Security
Agreement, respectively, the effect of which shall be that as of the date
set forth on such signature pages such Acquiring Subsidiary or such new or
converted Subsidiary,
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
as the case may be, shall become a party to each such agreement and be
bound by the terms thereof and any revisions to the schedules to the
Subsidiary Security Agreement necessary in connection therewith, (2) if
such new or converted Subsidiary owns any capital stock or other equity
interest or if such Acquiring Subsidiary is not already a party to a
Subsidiary Pledge Agreement, a Subsidiary Pledge Agreement duly executed by
such new or converted Subsidiary or such Acquiring Subsidiary, as the case
may be, or if such new or converted Subsidiary owns any copyrights,
trademarks, patents or other intellectual property, such additional
Security Documents as requested by the Administrative Agent, (3) such
Uniform Commercial Code financing statements as shall be required to
perfect the security interest of the Administrative Agent and the Lenders
in the Collateral being pledged by such new Subsidiary pursuant to the
Subsidiary Security Agreement, and (4) ten (10) days prior written notice
of any such Permitted Acquisition, other acquisition, formation or
Conversion.
(ii) in the case of a Permitted Acquisition of assets or any
other acquisition of assets (including equity interests of a Person other
than a corporation) (whether by purchase, merger, contribution, license or
otherwise) by the Borrower or any such Acquiring Subsidiary which is of the
type described in the Borrower Security Agreement or the Subsidiary
Security Agreement or the formation of such a new Subsidiary or a
Conversion into a Person which in either case is not a corporation, deliver
or cause to be delivered by the Borrower or such Acquiring Subsidiary
acquiring such assets or forming such new Subsidiary, (A) such Uniform
Commercial Code financing statements as shall be required to perfect the
security interest of the Administrative Agent and the Lenders in the assets
being so acquired, (B) if such assets include copyrights, trademarks,
patents or other intellectual property, such additional Security Documents
as requested by the Administrative Agent, (C) any additional instruments or
documents evidencing the security interest of the Administrative Agent
reasonably required by the Administrative Agent and (D) ten (10) days prior
written notice of any such Permitted Acquisition, other acquisition,
formation or Conversion; and
(iii) in any case (A) provide such other documentation,
including, without limitation, one or more opinions of counsel reasonably
satisfactory to the Administrative Agent, articles of incorporation,
by-laws and resolutions (or equivalent organizational and authorization
documents), which in the reasonable opinion of the Administrative Agent is
necessary or advisable in connection with such Permitted Acquisition or
formation of such new Subsidiary or other acquisition (whether by purchase,
merger, contribution or otherwise) or Conversion, and (B) if, as a result
of the consummation of any transaction or transactions, there is a
significant change in the information provided by the Borrower on Schedule
5.18, promptly provide the Administrative Agent with a new schedule which
reflects the then current corporate structure of the Borrower and its
Subsidiaries certified by an Authorized Officer of the Borrower.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(c) [Reserved]
Section 2.22 Replacement of Certain Lenders. If a Lender ("AFFECTED
LENDER") shall have requested compensation from the Borrower under Sections
2.16, 2.18 or 2.19 to recover Taxes or other additional costs incurred by such
Lender which are not being incurred generally by the other Lenders, or delivered
a notice pursuant to Section 2.16(a)(iii) claiming that such Lender is unable to
extend Eurodollar Loans to the Borrower for reasons not generally applicable to
the other Lenders, then, in any such case, so long as no Default or Event of
Default exists, the Borrower may make written demand on such Affected Lender
(with a copy to the Administrative Agent) for the Affected Lender to assign, and
such Affected Lender shall assign pursuant to one or more duly executed
assignment and acceptance agreements in substantially the form of Exhibit I
thirty (30) Business Days after the date of such demand, to one or more
financial institutions that comply with the provisions of Sections 10.4(c) and
10.4(d) (and that are reasonably acceptable to the Administrative Agent) which
the Borrower shall have engaged for such purpose ("REPLACEMENT LENDER"), all of
such Affected Lender's rights and obligations under this Agreement and the other
Loan Documents (including its Revolving Loan Commitment, all Loans owing to it,
all of its participation interests in outstanding Letters of Credit, and its
obligation to participate in additional Letters of Credit hereunder) in
accordance with Sections 10.4(c) and 10.4(d). Further, with respect to any such
assignment, the Affected Lender shall have concurrently received, in cash, all
amounts due and owing to such Affected Lender hereunder or under any other Loan
Document, including the aggregate outstanding principal amount of the Loans owed
to such Lender, together with accrued interest thereon through the date of such
assignment from the Replacement Lender, amounts payable under Sections 2.16,
2.18 and 2.19 with respect to such Affected Lender and compensation payable
under Section 2.15; PROVIDED, that upon such Affected Lender's replacement, such
Affected Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.16, 2.17, 2.18, 2.19 and 10.1 accruing
with respect to such Affected Lender prior to the date such Affected Lender is
replaced, as well as to any fees accrued for its account hereunder prior to
being replaced and not yet paid, and shall continue to be obligated under
Section 9.7.
Section 2.23 Increased Amounts.
(a) The Borrower shall have the right from time to time after the
Closing Date and, with respect to any Additional Revolving Commitment, prior to
the Revolving Loan Maturity Date, and, with respect to any Additional Term Loan,
the Term Loan Maturity Date, with the consent of the Administrative Agent and
subject to the terms of this Section 2.23, to elect the establishment of (i) an
increase in the Revolving Loan Commitment (the "ADDITIONAL REVOLVING
COMMITMENT", and any Loan made pursuant to such Additional Revolving Commitment,
an "ADDITIONAL REVOLVING LOAN") and/or (ii) one or more tranches of additional
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
term loans (the "ADDITIONAL TERM LOANS", and a commitment to make an Additional
Term Loan, an "ADDITIONAL TERM COMMITMENT" and together with the Additional
Revolving Commitment, the "ADDITIONAL COMMITMENTS"), PROVIDED that (A) the
aggregate principal amount of the Additional Commitments shall not exceed
$100,000,000, (B) each Borrowing of Additional Revolving Loans or Additional
Term Loans (collectively, the "ADDITIONAL LOANS") shall be in an aggregate
minimum amount of $500,000 or any integral multiple of $500,000 in excess
thereof, (C) no Lender's Commitment shall be increased without the consent of
such Lender, (D) the conditions precedent set forth in Section 4.2 shall have
been satisfied, (E) after giving pro forma effect to the Additional Loans, the
Borrower shall be in compliance with each of the covenants contained in Section
7.1, and (F) the Borrower shall deliver or caused to be delivered any documents
reasonably requested by the Administrative Agent in connection with the
transaction.
(b) Borrower shall give the Administrative Agent not less than 10
Business Days advance written notice of its election pursuant to this Section
2.23, which notice shall specify the amount of the requested increase, whether
the Borrower requests an Additional Term Commitment or an Additional Revolving
Commitment, the requested effective date of the Additional Revolving
Commitment(s) and/or Additional Term Loan(s) (the "INCREASE EFFECTIVE DATE"),
the time period within which each applicable existing Lender is requested to
respond, the names and proposed Commitments of each Lender, including new
lenders providing the Additional Commitments, and such other information as the
Administrative Agent reasonably requests. The Administrative Agent shall
promptly notify each Term Loan Lender, in the case of an Additional Term
Commitment, and each Revolving Lender, in the case of an Additional Revolving
Commitment, of such notice and of the proposed terms and conditions of the
Additional Commitments agreed between the Borrower and the Administrative Agent.
Each such Lender shall notify the Administrative Agent within the specified time
period whether or not it agrees to make an Additional Commitment. Any Lender not
responding within such time period shall be deemed to have declined to make an
Additional Commitment. No Additional Commitment shall require the approval or
consent of any Lender other than the Lender making such Additional Term Loan or
an Additional Revolving Commitment.
(c) Each Lender agreeing to make an Additional Commitment shall
execute and deliver to the Administrative Agent an agreement substantially in
the form of Exhibit L attached hereto (an "ADDITIONAL COMMITMENT AGREEMENT").
Upon receipt of such Additional Commitment Agreement, if the Administrative
Agent consents to the proposed Additional Commitment and/or Additional Loan, (i)
such Additional Commitment and/or Additional Loan shall become effective, (ii)
any new Lender making an Additional Commitment and/or Additional Loan shall be
deemed to be a party in all respects to this Agreement as of the date of the
Additional Commitment Agreement, with its Commitment as set forth in such
Additional Commitment Agreement, (iii) the Revolving Loan Commitment of an
existing Lender making an Additional Revolving Commitment shall increase as
specified in the Additional Commitment Agreement and (iv) the Administrative
Agent shall record the applicable
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
information with respect to such Additional Commitment and/or Additional Loan in
the Register. If the Administrative Agent does not consent to the proposed
Additional Commitment and/or Additional Loan, such Additional Commitment and/or
Additional Loan shall not be effective.
(d) An Additional Term Commitment shall be deemed to be a Term
Loan Commitment under this Agreement. Additional Term Loans (i) shall rank pari
passu in all respects to the Term Loans made pursuant to Section 2.1, (ii) for
purposes of prepayments, shall be treated the same as the Term Loans and (iii)
shall have terms and conditions that are substantially similar to those
applicable to the Term Loans.
(e) An Additional Revolving Commitment shall be deemed to be a
Revolving Loan Commitment under this Agreement. Additional Revolving Loans (i)
shall rank pari passu in all respects to the Revolving Loans made pursuant to
Section 2.2, (ii) for purposes of prepayments, shall be treated the same as the
Revolving Loans and (iii) shall have terms and conditions that are substantially
similar to those applicable to the Revolving Loans.
SECTION 3. LETTERS OF CREDIT.
Section 3.1 Issuance of Letters of Credit, etc.
(a) Subject to the terms and conditions hereof, at any time and
from time to time from the Closing Date through the day prior to the Revolving
Loan Maturity Date, the Issuing Bank shall issue such Letters of Credit for the
account of the Borrower or any Subsidiary of the Borrower which is a party to
the Guaranty as Borrower may request by an L/C Application; PROVIDED that,
giving effect to such Letter of Credit, (x) the sum of the L/C Obligations then
outstanding plus the then outstanding aggregate principal amount of the
Revolving Loans shall not exceed the Total Revolving Loan Commitment and (y) the
aggregate L/C Obligations then outstanding shall not exceed the L/C Commitment.
Unless all the Revolving Lenders and the Issuing Bank otherwise consent in
writing, the Borrower and its Subsidiaries shall not request any Letter of
Credit (i) whose term exceeds 12 months or (ii) which expires after the
Revolving Loan Maturity Date unless such Letter of Credit is Cash Collateralized
at least two (2) Business Days prior to the Revolving Loan Maturity Date. No
Letter of Credit shall be issued except in the ordinary course of business of
the Borrower or any of its Subsidiaries or in connection with Permitted
Acquisitions with respect to which the conditions set forth in Section 7.8(f)
have been satisfied, each Letter of Credit shall be used solely (a) to support
obligations of the Borrower and its Subsidiaries not prohibited hereunder, other
than Indebtedness for borrowed money, and (b) for the purposes described in the
definition of "Trade Letter of Credit".
(b) The Borrower shall submit the L/C Application for the
Issuance of any Letter of Credit to the Issuing Bank at least five Business Days
prior to the date when
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
required. Upon Issuance of a Letter of Credit, the Issuing Bank shall promptly
notify the Revolving Lenders of the amount and terms thereof.
(c) Upon the Issuance of a Letter of Credit, each Revolving
Lender that has made a Revolving Loan Commitment shall be deemed to have
purchased a pro rata participation, from the Issuing Bank in an amount equal to
that Lender's Pro Rata Share, in the Letter of Credit. Without limiting the
scope and nature of each Revolving Lender's participation in any Letter of
Credit, to the extent that the Issuing Bank has not been reimbursed by the
Borrower for any payment to a beneficiary of a Letter of Credit in respect of a
drawing under such Letter of Credit made by the Issuing Bank under any Letter of
Credit, each Revolving Lender shall, pro rata according to its Pro Rata Share,
reimburse the Issuing Bank promptly upon demand for the amount of such payment.
The obligation of each Revolving Lender to so reimburse the Issuing Bank shall
be absolute and unconditional and shall not be affected by the occurrence of a
Default, Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of the
Borrower to reimburse the Issuing Bank for the amount of any payment made by the
Issuing Bank under any Letter of Credit together with interest as hereinafter
provided.
(d) Upon the making of any payment with respect to any Letter of
Credit by the Issuing Bank, the Borrower shall be deemed to have submitted a
Notice of Borrowing for a Revolving Loan consisting of a Base Rate Loan in the
amount of such payment, and the Administrative Agent shall without notice to or
the consent of Borrower cause Revolving Loans to be made by the Revolving
Lenders in an aggregate amount equal to the amount paid by the Issuing Bank on
that Letter of Credit, but not exceeding the Total Revolving Loan Commitment
minus the then outstanding principal amount of Revolving Loans and minus all
other then outstanding L/C Obligations, and for this purpose, the conditions
precedent set forth in Section 4 hereof shall not apply. The proceeds of such
Revolving Loans shall be paid to the Issuing Bank to reimburse it for the
payment made by it under the Letter of Credit. Promptly following any Revolving
Loans made under this Section 3.1(d), the Administrative Agent shall notify the
Borrower thereof.
(e) To the extent that any Revolving Loans made pursuant to
Section 3.1(d) are insufficient to reimburse the Issuing Bank in full, the
Borrower agrees to pay to the Issuing Bank with respect to each Letter of
Credit, within one Business Day after demand therefor, a principal amount equal
to any payment made by the Issuing Bank under that Letter of Credit, together
with interest on such amount from the date of any payment made by the Issuing
Bank through the date of payment by the Borrower at the Default Rate for
Revolving Loans. The principal amount of any such payment made by the Borrower
to the Issuing Bank shall be used to reimburse the Issuing Bank for the payment
made by it under the Letter of Credit. Each Revolving Lender that has reimbursed
the Issuing Bank pursuant to Section 3.1(d) for its Pro Rata Share of any
payment made by the Issuing Bank under a Letter of Credit shall thereupon
acquire a pro rata participation, to the extent of such reimbursement, in the
claim of the Issuing Bank against the Borrower under this Section 3.1(e).
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(f) The Issuance of any supplement, modification, amendment,
renewal or extension to or of any Letter of Credit shall be treated in all
respects the same as the Issuance of a new Letter of Credit.
Section 3.2 Letter of Credit Fees. The Borrower shall pay (i) a letter
of credit fee to the Administrative Agent equal to (x) a per annum rate equal to
1.50% times (y) the stated amount of each Standby Letter of Credit for the term
of each such Letter of Credit for the account of the Lenders who have made
Revolving Loan Commitments, according to their respective Pro Rata Shares, in
each case payable quarterly in arrears on each Payment Date, commencing on June
15, 2007, and (ii) a letter of credit fee to the Administrative Agent equal to
(x) a per annum rate equal to 1.50% times (y) the stated amount of each Trade
Letter of Credit as of the date of Issuance thereof, payable for the account of
the Lenders who have made Revolving Loan Commitments, according to their
respective Pro Rata Shares, in each case payable quarterly in arrears on each
Payment Date, commencing on June 15, 2007. Upon (A) the issuance of each Letter
of Credit, the Borrower shall also pay to the Administrative Agent for the
account of the Issuing Bank an amount equal to the greater of (i) $500 or (ii)
0.125% of the stated amount of such Letter of Credit as an issuance fee; (B) the
amendment of each Letter of Credit, the Borrower shall pay to the Administrative
Agent for the account of the Issuing Bank the amendment fees, in each case, as
the Issuing Bank normally charges in connection with a Letter of Credit and
activity pursuant thereto, in either case which fees shall be solely for the
account of the Issuing Bank; and (C) the incurrence of any reasonable
out-of-pocket costs and expenses in connection with the maintenance of any
Letter of Credit, the Borrower shall pay to the Administrative Agent for the
account of the Issuing Bank the amount of such out-of-pocket costs and expenses
so incurred.
Section 3.3 Obligation of Borrower Absolute, etc.
(a) The obligation of the Borrower to pay to the Issuing Bank the
amount of any payment made by the Issuing Bank under any Letter of Credit shall
be absolute, unconditional and irrevocable. Without limiting the foregoing, such
obligation of the Borrower shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, this Agreement or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to departure
from the Letter of Credit, this Agreement or any other agreement or
instrument relating thereto;
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(iii) the existence of any claim, setoff, defense or other
rights which the Borrower or any Subsidiary of the Borrower may have at any
time against the Issuing Bank, any Lender, any Agent, any beneficiary of
the Letter of Credit (or any Persons for whom any such beneficiary may be
acting) or any other Person, whether in connection with the Letter of
Credit, this Agreement or any other agreement or instrument relating
thereto, or any unrelated transactions;
(iv) any demand, statement or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever so long as any such document appeared
to comply with the terms of the Letter of Credit;
(v) payment by the Issuing Bank in good faith under the
Letter of Credit against presentation of a draft or any accompanying
document which does not strictly comply with the terms of the Letter of
Credit;
(vi) the existence, character, quality, quantity, condition,
packing, value or delivery of any property purported to be represented by
documents presented in connection with any Letter of Credit or for any
difference between any such property and the character, quality, quantity,
condition or value of such property as described in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of property as described in documents presented in
connection with any Letter of Credit or the existence, nature and extent of
any insurance relative thereto;
(viii) the solvency or financial responsibility of any party
issuing any documents in connection with a Letter of Credit;
(ix) any failure or delay in notice of shipments or arrival
of any property; and
(x) any other circumstances whatsoever.
(b) As among the Borrower, the Lenders, the Issuing Bank and the
Administrative Agent, the Borrower assumes all risks of the acts and omissions
of, or misuse of such Letter of Credit by, the beneficiary of any Letter of
Credit. In furtherance and not in limitation of the foregoing, subject to the
provisions of the Letter of Credit applications and Letter of Credit
reimbursement agreements executed by the Borrower at the time it requests any
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Letter of Credit, the Administrative Agent, the Issuing Bank and the Lenders
shall not be responsible:
(i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letters of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole
or in part, which may prove to be invalid or ineffective for any reason;
(iii) for the failure of the beneficiary of a Letter of
Credit to comply duly with conditions required in order to draw upon such
Letter of Credit;
(iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex,
or other similar form of teletransmission or otherwise;
(v) for errors in interpretation of technical trade terms;
(vi) for any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under any Letter of
Credit or of the proceeds thereof;
(vii) for the misapplication by the beneficiary of a Letter
of Credit of the proceeds of any drawing under such Letter of Credit; and
(viii) for any consequences arising from causes beyond the
control of the Administrative Agent, the Issuing Bank and the Lenders
including, without limitation, any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority.
None of the above shall affect, impair, or prevent the vesting of any of the
Issuing Bank's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
Issuing Bank under or in connection with Letters of Credit issued by it or any
related certificates shall not, in the absence
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
of gross negligence or willful misconduct, put the Issuing Bank under any
resulting liability to the Borrower or relieve the Borrower of any of its
obligations hereunder to any such Person.
(d) The Issuing Bank shall be entitled to the protection accorded
to the Administrative Agent pursuant to Section 9, mutatis mutandis.
SECTION 4. CONDITIONS PRECEDENT.
Section 4.1 Conditions Precedent to the Effectiveness of this
Agreement. This Agreement shall become effective as of the Closing Date upon the
satisfaction on or before the Closing Date of the following conditions
precedent:
(a) Loan Documents.
(i) Credit Agreement. The Borrower and the Lenders shall
have executed and delivered this Agreement to the Administrative Agent.
(ii) Notes. The Borrower shall have executed and delivered
to each of the Lenders the appropriate Notes in the amount, maturity and as
otherwise provided herein.
(iii) [Intentionally Omitted.]
(iv) [Intentionally Omitted.]
(v) [Intentionally Omitted.]
(vi) [Intentionally Omitted.]
(vii) [Intentionally Omitted.]
(viii) [Intentionally Omitted.]
(ix) [Intentionally Omitted.]
(x) [Intentionally Omitted.]
(xi) Confirmation of Guaranty and Security Interest. The
Borrower and each Subsidiary of the Borrower (other than any such
Subsidiary which is an Immaterial Subsidiary) shall have executed and
delivered to the Administrative Agent a Confirmation of Guaranty and
Security Interest.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(b) Opinions of Counsel. The Administrative Agent shall have
received (A) a legal opinion, dated the Closing Date, from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Loan Parties, substantially in the form set
forth as Exhibit H hereto and (B) such other legal opinions, each dated the
Closing Date, from local counsel to the Loan Parties as requested by the
Administrative Agent with respect to such matters as requested by the
Administrative Agent and in form and substance satisfactory to the
Administrative Agent.
(c) Corporate Documents. The Administrative Agent shall have
received the certificate of incorporation, certificate of limited partnership,
certificate of formation or other similar organizational document of each of the
Loan Parties as amended, restated, supplemented or otherwise modified on or
prior to the Closing Date, (other than in the case of a general partnership)
certified to be true, correct and complete by the appropriate Secretary of State
as of a date not more than ten Business Days prior to the Closing Date, and a
bring-down good standing certificate or telephonic confirmation from the
appropriate Secretary of State in each jurisdiction of organization of each Loan
Party dated the Closing Date.
(d) Certified Resolutions, etc. The Administrative Agent shall
have received a certificate of the Secretary or Assistant Secretary of each of
the Loan Parties or of a general partner in the case of each Loan Party which is
a general partnership and dated the Closing Date certifying (i) the names and
true signatures of the incumbent officers of such Person authorized to sign the
applicable Loan Documents, (ii) the By-Laws, partnership agreement, limited
liability company agreement or other similar organizational document of such
Person as in effect on the Closing Date, (iii) the resolutions of the Borrower's
Board of Directors approving and authorizing the execution, delivery and
performance of all Transaction Documents executed by the Borrower, and (iv) that
there have been no changes in the certificate of incorporation, certificate of
limited partnership, certificate of formation or other similar organizational
document of such Person since the date of the most recent certification thereof
by the appropriate Secretary of State or, in the case of a partnership or other
similar entity, the partnership agreement or other similar organizational
document.
(e) Existing Indebtedness. The Administrative Agent shall have
received copies of all documents relating to existing Indebtedness for borrowed
money or evidenced by a note, bond, debenture, acceptance or similar instrument
of the Borrower and its Subsidiaries that shall be outstanding in each case in a
principal amount in excess of $2,000,000 on and after the Closing Date,
including, without limitation, terms of amortization, interest, premiums, fees,
expenses, maturity, amendments, covenants, events of default and remedies,
certified as of the Closing Date as such by the President or Vice President of
the Borrower, PROVIDED that no such document shall be required to be delivered
to the Administrative Agent if (i) such document was delivered to the
Administrative Agent pursuant to Section 4.1(e) of the Original Credit Agreement
and (ii) such document has not been amended, restated, supplemented or otherwise
modified since such delivery to the Administrative Agent (unless the documents
evidencing each such amendment, restatement, supplement or other modification
have been delivered to the Administrative Agent).
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(f) Process Agent. Each Loan Party shall have appointed an agent
satisfactory to the Administrative Agent for service of process in connection
with any action or proceeding arising under or relating to the Loan Documents,
and such agent shall have accepted such appointment in writing.
(g) Officer's Certificate. The Administrative Agent and the
Lenders shall have received a certificate of the President or Vice President of
the Borrower, dated the Closing Date, certifying that (i) the Subordinated Debt
Documents are in full force and effect and no material term or condition thereof
has been amended from the form thereof delivered to the Administrative Agent, or
waived, except as disclosed to the Administrative Agent or its counsel prior to
the execution of this Agreement, (ii) each of the Loan Parties and, to the best
of his or her knowledge, the other parties to the Subordinated Debt Documents,
have performed or complied in all material respects with all agreements and
conditions contained in such Subordinated Debt Documents, (iii) subject to the
foregoing, neither any Loan Party nor, to the best of his or her knowledge, any
such other party is in default in the performance or compliance with any of the
material terms or provisions thereof, except to the extent that performance
thereof or compliance therewith or default has been waived with the prior
written consent of the Lenders, (iv) all of the representations and warranties
of the Borrower and each other Loan Party contained in the Subordinated Debt
Documents and the Loan Documents are true and correct, (v) no Default or Event
of Default has occurred and is continuing and no default or event of default has
occurred and is continuing under the Subordinated Debt Documents and (vi) since
January 29, 2007, no event or change has occurred that has caused or evidences a
Material Adverse Effect.
(h) Closing Compliance Certificate. The Administrative Agent
shall have received a certificate signed by the chief financial officer of the
Borrower (i) containing conclusions that the Borrower and its Subsidiaries are
Solvent before and after giving effect to the Transactions and that Closing
EBITDA equals at least $175,000,000, (ii) containing conclusions that the
Leverage Ratio, calculated as of the end of the Retail Period of the Borrower
ending January 29, 2007, does not exceed 1.25 and setting forth the calculations
required to establish such Leverage Ratio and (iii) containing conclusions that
the Adjusted Leverage Ratio, calculated as of the end of the Retail Period of
the Borrower ending January 29, 2007, does not exceed 3.50 and setting forth the
calculations required to establish such Adjusted Leverage Ratio.
(i) Insurance. The Administrative Agent shall have received a
certificate of insurance demonstrating insurance coverage in respect of each of
the Loan Parties of types, in amounts, with insurers and with other terms
reasonably satisfactory to the Administrative Agent and which name the
Administrative Agent as an additional insured or loss payee, as applicable.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(j) [Intentionally Omitted.]
(k) UCC-1 Financing Statements. The Agent shall have received
originals of each UCC-1 financing statement (i) duly authorized by the Borrower
naming the Borrower as debtor and the Agent as secured party and filed in the
jurisdictions set forth in Schedule I to the Borrower Security Agreement and
(ii) duly authorized by each other Loan Party naming such Loan Party as debtor
and the Agent as secured party and filed in the appropriate jurisdictions set
forth in Schedule I to the Subsidiary Security Agreement.
(l) Pledged Collateral. The Administrative Agent shall have
received (i) the original stock, membership interest or partnership interest
certificates evidencing the Pledged Stock (as defined in the Borrower Pledge
Agreement and each Subsidiary Pledge Agreement) pursuant to the Borrower Pledge
Agreement and each Subsidiary Pledge Agreement (other than certificates
representing any shares of Pledged Stock of any Immaterial Subsidiary and any
shares of Pledged Stock which evidence an Immaterial Investment), together with
undated stock powers or similar instruments of assignment duly executed in blank
in connection therewith and (ii) each original Instrument pursuant to the
Borrower Pledge Agreement and each Subsidiary Pledge Agreement (other than any
Instrument evidencing an Immaterial Investment).
(m) Corporate and Capital Structure. The corporate and capital
structure of the Loan Parties shall be satisfactory to the Lenders, and the
Administrative Agent shall have received a corporate structure chart with
respect to the Borrower and all of its Subsidiaries (certified by an Authorized
Officer of the Borrower).
(n) Funded Debt and Capitalization. The Total Revolving Loan
Commitment minus the aggregate principal amount of the Revolving Loans
outstanding on the Closing Date minus the amount of any L/C Obligations then
outstanding including any Letters of Credit to be issued on the Closing Date
shall equal at least $25,000,000. The assets and liabilities of the Borrower and
its consolidated Subsidiaries shall be materially consistent with the
projections dated March 1, 2007 and previously delivered by the Borrower to the
Administrative Agent.
(o) Existing Indebtedness. The Administrative Agent shall have
received evidence satisfactory to the Administrative Agent and the Lenders that,
after giving effect to the consummation of the Transactions, (i) the Borrower
and its Subsidiaries shall not be liable for or have outstanding any
Indebtedness which is of the type of Indebtedness which would appear as a
liability on (or would be required to appear as a liability on) the consolidated
balance sheet of the Borrower (and not of the type required solely to be
included in the footnotes thereto) and which Indebtedness shall include, without
limitation, Indebtedness for borrowed
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
money and Capitalized Lease Obligations, other than (A) the Loans outstanding
hereunder as contemplated by Section 4.1(n) and (B) Indebtedness permitted under
Section 7.2 (but excluding Indebtedness described in Section 7.2(a))
(collectively, the "SURVIVING DEBT"), and (ii) the Borrower and each of its
Subsidiaries shall have paid in full all other Indebtedness of the Borrower and
each of its Subsidiaries existing prior to the making of the initial Loans
hereunder (all of the foregoing Indebtedness described in the foregoing clause
(i) and (ii) referred to collectively as "EXISTING DEBT"). The Administrative
Agent shall be satisfied that the execution and delivery of, and the performance
by each of the Borrower and its Subsidiaries of its respective obligations
under, each Transaction Document to which it is a party and consummation of the
Transactions does not violate, conflict with or cause a default under any
document or instrument evidencing Existing Debt. The Administrative Agent shall
have received (i) payoff and lien termination and release agreements, in form
and substance satisfactory to the Administrative Agent, from each creditor of
the Borrower and its Subsidiaries with respect to Existing Debt other than
Surviving Debt, and (ii) such UCC Amendments (or its equivalent), intellectual
property lien releases in recordable form in all applicable jurisdictions, and
other lien and mortgage release and termination agreements, evidence of release
of federal and state tax liens, all in form and substance satisfactory to the
Administrative Agent, as the Administrative Agent shall request, duly executed
by the appropriate Person in favor of which such Liens were granted.
(p) Environmental Matters. The Administrative Agent shall have
received, if the Administrative Agent deems it necessary, a written report of an
investigation, conducted to the Administrative Agent's satisfaction, from an
environmental consultant acceptable to the Administrative Agent, as to any
environmental, health or safety violations, hazards or liabilities which it
deems material. The Administrative Agent shall (i) be satisfied that neither the
Borrower nor any of its Subsidiaries nor any other Loan Party is subject to any
present or contingent liability deemed material by the Administrative Agent in
its reasonable judgment in connection with any past or present treatment,
storage, recycling, disposal or release or threatened release, at any property
location regardless of whether owned or operated by the Borrower or any of its
Subsidiaries or any other Loan Party, of any Materials of Environmental Concern
or in connection with any Environmental Law or other health or safety laws or
regulations, and that their operations taken as a whole comply in all material
respects (in the Administrative Agent's reasonable judgment) with all
Environmental Laws or other health or safety laws or regulations and (ii) be
satisfied that neither the Borrower nor any of its Subsidiaries, nor any other
Loan Party nor any property owned or operated by any such Person is the subject
of any federal or state investigation evaluating whether any remedial action,
involving a material expenditure (in the opinion of the Administrative Agent) is
needed to respond to any release or other presence of Materials of Environmental
Concern.
(q) Fees and Expenses. The Administrative Agent shall have
received, for its account and for the account of each Lender, as applicable, all
Fees and other fees and expenses due and payable hereunder and under the other
Loan Documents on or before the date
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
hereof, including, without limitation, the reasonable fees and expenses accrued
through the date hereof, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and any
other counsel retained by the Administrative Agent.
(r) Consents, Licenses, Approvals; Compliance with Laws. All
consents, licenses, orders, permits, authorizations, validations, certificates,
filings and approvals (collectively, "CONSENTS"), if any, required in connection
with the execution, delivery and performance by the Borrower or any of its
Subsidiaries, and the validity and enforceability of the Transaction Documents,
or in connection with any of the Transactions, including, without limitation,
all shareholder Consents and all Consents required by any federal, state, local
regulatory or governmental authority including, without limitation, all Consents
required pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, shall have been obtained or made
and shall be in full force and effect and copies thereof shall in each case have
been delivered to the Administrative Agent. No law or regulation shall be
applicable that could reasonably be expected to restrain, prevent or otherwise
impose adverse conditions on the validity and enforceability of the Transaction
Documents, or the Transactions. The Borrower shall have delivered to the
Administrative Agent such evidence as the Administrative Agent shall have
requested, evidencing compliance by the Borrower, its Subsidiaries and the other
Loan Parties with all applicable laws, rules and regulations before and after
giving effect to the Transactions (including, without limitation, all applicable
corporate and securities laws and all ERISA, environmental and health and safety
laws, rules and regulations).
(s) Management Contracts. The Borrower shall have delivered to
the Administrative Agent and each Lender copies of each written agreement that
it or any of its Subsidiaries has with its officers or other members of
management as requested by the Administrative Agent certified by an officer of
the Borrower, and each such contract shall be satisfactory in form and substance
to the Administrative Agent.
(t) [Reserved]
(u) No Material Adverse Change; No Default. No event, act or
condition shall have occurred after January 29, 2007, that has had a Material
Adverse Effect, or that would make the facts and other information represented
by the Borrower or the other Loan Parties to the Administrative Agent prior to
the Closing Date materially misleading. No Default or Event of Default shall
have occurred and be continuing or shall result from the consummation of the
Transactions on the Closing Date.
(v) Management/Ownership. The composition of the management of
the Borrower and its strategic plans shall be satisfactory to the Administrative
Agent.
(w) No Litigation. There shall not be any action, suit,
investigation, arbitration, litigation or proceeding pending or threatened
against the Borrower or any of its
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Subsidiaries, before any court, arbitrator or governmental or administrative
body, agency or official that could reasonably be expected to have a material
adverse effect on the Transactions, the Borrower or the other Loan Parties.
(x) [Intentionally Omitted.]
(y) [Intentionally Omitted.]
(z) Financial Statements. The Administrative Agent shall have
received and be satisfied with (i) audited financial statements of the Borrower
and its Subsidiaries for each of the last three fiscal years, including balance
sheets, income and cash flow statements, audited by independent public
accountants of recognized national standing and prepared in conformity with
GAAP, together with such accountants' report thereon, (ii) unaudited interim
financial statements of the Borrower and its subsidiaries for the fiscal periods
most recently ended prior to the Closing Date (including without limitation
Retail Period financial statements for any such period), (iii) a pro forma
balance sheet of the Borrower and the other Loan Parties as of the Closing Date
after giving effect to the Transactions, and (iv) projected financial statements
(including balance sheets, income and cash flow statements) of the Borrower and
the other Loan Parties for the seven-year period after the Closing Date, all of
the foregoing to be substantially consistent with any financial statements for
the same periods delivered to the Administrative Agent prior to March 1, 2007
and, in the case of any such financial statements for subsequent periods,
substantially consistent with any projected financial statements for such
periods delivered to the Administrative Agent prior to March 1, 2007.
(aa) Additional Matters. The Administrative Agent shall have
received such other certificates, opinions, documents and instruments relating
to the Transactions as may have been reasonably requested by the Administrative
Agent or any Lender, and all corporate and other proceedings and all other
documents (including, without limitation, all documents referred to herein and
not appearing as exhibits hereto) and all legal matters in connection with the
Transactions shall be satisfactory in form and substance to the Lenders.
Section 4.2 Conditions Precedent to All Loans. The obligation of each
Lender to make any Loan at any time on or after the date hereof and of the
Issuing Bank to issue any Letter of Credit is subject to the satisfaction on the
date such Loan is made or such Letter of Credit is Issued of the following
conditions precedent:
(a) Representations and Warranties. The representations and
warranties contained herein and in the other Loan Documents (other than
representations and warranties which expressly speak only as of a different
date) shall be true and correct in all material respects on such date both
before and after giving effect to the making of such Loans or the Issuance of
such Letter of Credit.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such date either before or
after giving effect to the making of such Loans or the Issuance of such Letter
of Credit.
(c) No Injunction. No law or regulation shall have been adopted,
no order, judgment or decree of any governmental authority shall have been
issued, and no litigation shall be pending or threatened, which in the
reasonable judgment of the Lenders would enjoin, prohibit or restrain, or impose
or result in the imposition of any material adverse condition upon, the making
or repayment of the Loans, the Issuance of such Letter of Credit or the
reimbursement of any amounts with respect thereto or the consummation of the
Transactions.
(d) No Material Adverse Change. No event, act or condition shall
have occurred after January 29, 2007 which, in the judgment of the Required
Lenders, has had or could have a Material Adverse Effect.
(e) Notice of Borrowing or Issuance. The Administrative Agent or
the Issuing Bank shall have received a fully executed Notice of Borrowing or L/C
Application, as appropriate, in respect of the Loans to be made or Letters of
Credit to be Issued, respectively, on such date.
The acceptance of the proceeds of each Loan and of the Issuance of
each Letter of Credit shall constitute a representation and warranty by the
Borrower to the Administrative Agent and each of the Lenders that all of the
conditions required to be satisfied under this Section 4 in connection with the
making of such Loan or the Issuance of such Letter of Credit have been
satisfied.
All of the Notes, certificates, agreements, legal opinions and other
documents and papers referred to in this Section 4, unless otherwise specified,
shall be delivered to the Administrative Agent for the account of each of the
Lenders and, except for the Notes, in sufficient counterparts for each of the
Lenders, and shall be satisfactory in form and substance to the Administrative
Agent and each Lender in its sole discretion.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders to enter into this Agreement and to
make the Loans and to induce the Issuing Bank to issue Letters of Credit, the
Borrower makes the following representations and warranties, which shall survive
the execution and delivery of this Agreement and the Notes and the making of the
Loans and the Issuance of the Letters of Credit:
Section 5.1 Corporate Status. Each Loan Party (i) is duly organized
and validly existing and in good standing under the laws of the jurisdiction of
its organization, (ii) has the corporate or other requisite power and authority
to own its property and assets and to
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
transact the business in which it is engaged or presently proposes to engage and
(iii) has duly qualified and is authorized to do business and is in good
standing as a foreign entity in every jurisdiction in which it owns or leases
real property or in which the nature of its business requires it to be so
qualified, except in the case of clause (iii), where the failure to so qualify,
individually or in the aggregate, could not have a Material Adverse Effect.
Section 5.2 Corporate Power and Authority. Each Loan Party has the
corporate or other requisite power and authority to execute, deliver and carry
out the terms and provisions of each of the Transaction Documents to which it is
a party and has taken all necessary corporate or other requisite action to
authorize the execution, delivery and performance by it of such Transaction
Documents. Each Loan Party has duly executed and delivered each such Transaction
Document, and each such Transaction Document constitutes its legal, valid and
binding obligation, enforceable in accordance with its terms.
Section 5.3 No Violation. Neither the execution, delivery or
performance by any Loan Party of the Transaction Documents to which it is a
party, nor compliance by it with the terms and provisions thereof nor the
consummation of the Transactions, (i) will contravene any applicable provision
of any law, statute, rule, regulation, order, writ, injunction or decree of any
court or governmental instrumentality or (ii) will conflict or be inconsistent
with or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except pursuant
to the Security Documents) upon any of the property or assets of any Loan Party
pursuant to the terms of, any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which such Loan Party is a party or by which it
or any of its property or assets is bound or to which it may be subject or (iii)
will violate any provision of its certificate of incorporation, by-laws,
partnership agreement or limited liability company agreement (or other relevant
organizational documents) of any Loan Party.
Section 5.4 Litigation. There are no actions, suits, governmental
investigations, arbitrations or proceedings pending or threatened (i) with
respect to any of the Transactions or the Transaction Documents or (ii) that
could, individually or in the aggregate, result in a Material Adverse Effect.
Section 5.5 Financial Statements; Financial Condition; etc. Each of
the financial statements and financial certificates delivered pursuant to
Section 4.1(z) were prepared in accordance with GAAP consistently applied and
fairly present the financial condition and the results of operations of the
entities covered thereby on the dates and for the periods covered thereby,
except as disclosed in the notes thereto and, with respect to interim financial
statements, subject to normally recurring year-end adjustments. No Loan Party
has any material liability (contingent or otherwise) not reflected in such
financial statements or in the notes thereto.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 5.6 Solvency. On the Closing Date and at all times after the
Closing Date, after giving effect to the Transactions, each Loan Party is and
will be Solvent.
Section 5.7 Projections. The projections delivered to the Lenders
dated January 29, 2007, were prepared on the basis of the assumptions
accompanying them, and such projections and assumptions, as of the date of
preparation thereof and as of the Closing Date, are reasonable and represent the
Borrower's good faith estimate of its future financial performance, it being
understood that nothing contained in this Section 5.7 shall constitute a
representation or warranty that such future financial performance or results of
operations will in fact be achieved.
Section 5.8 Material Adverse Change. Since January 29, 2007, there has
occurred no event, act, condition or liability which has had, or could have, a
Material Adverse Effect.
Section 5.9 Use of Proceeds; Margin Regulations. All proceeds of each
Loan, and each Letter of Credit, will be used by the Borrower only in accordance
with the provisions of Section 2.20. No part of the proceeds of any Loan, or any
Letter of Credit, will be used by the Borrower to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock. Neither the making of any Loan, nor the Issuance of any Letter
of Credit, nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulations T, U or X of the Federal Reserve Board.
Following the application of the proceeds of each Loan, less than 25% of the
value (as determined by any reasonable method) of the assets of the Borrower and
its Subsidiaries (on a consolidated and an unconsolidated basis) have been and
will continue to be, represented by Margin Stock.
Section 5.10 Governmental and Other Approvals. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, or any other Person, is required to
authorize, or is required in connection with (i) the execution, delivery and
performance of any Transaction Document or the consummation of any of the
Transactions or (ii) the legality, validity, binding effect or enforceability of
any Transaction Document or the exercise by any Agent or any Lender of any of
its rights under any Loan Document, except those listed on Schedule 5.10 that
have already been duly made or obtained and remain in full force and effect and
except for the filing of financing statements pursuant to the Security
Documents. All applicable waiting periods including, without limitation, those
under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act in connection with each Permitted Acquisition
and the other transactions contemplated thereby have expired without any action
having been taken by any competent authority restraining, preventing or imposing
materially adverse conditions upon the rights of the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien
on, any properties now owned or hereafter acquired by any of them.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 5.11 Security Interests and Liens. The Security Documents
create, as security for the Obligations, valid and enforceable security
interests in and Liens on all of the Collateral, in favor of the Administrative
Agent for the ratable benefit of the Lenders, and subject to no other Liens
(other than Liens expressly permitted by Section 7.3 hereof). Such security
interests in and Liens on the Collateral are superior to and prior to the rights
of all third parties (except as disclosed on Schedule 5.11), and no further
recordings or filings are or will be required in connection with the creation,
perfection or enforcement of such security interests and Liens, other than the
filing of continuation statements in accordance with applicable law.
Section 5.12 Tax Returns and Payments. Each Loan Party has filed all
tax returns required to be filed by it and has paid all taxes and assessments
payable by it which have become due, other than (i) those not yet delinquent or
those that are reserved against in accordance with GAAP which are being
diligently contested in good faith by appropriate proceedings or (ii) where the
failure to so pay has not resulted and could not reasonably be expected to
result in liability in excess of $1,000,000 in the aggregate for all of the Loan
Parties.
Section 5.13 ERISA. Neither the Borrower nor any of its Subsidiaries
have any Plans other than those listed on Schedule 5.13. No accumulated funding
deficiency (as defined in Section 412 of the Code or Section 302 of ERISA) or
Reportable Event has occurred with respect to any Plan. There are no Unfunded
Benefit Liabilities under any Plan except as notified to the Administrative
Agent pursuant to Section 6.1(h)(i)(E). The Borrower and each member of its
ERISA Controlled Group have complied with the requirements of Section 515 of
ERISA with respect to each Multiemployer Plan and is not in "default" (as
defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan. The aggregate potential total withdrawal liability, and the
aggregate potential annual withdrawal liability payments of the Borrower and the
members of its ERISA Controlled Group as determined in accordance with Title IV
of ERISA as if the Borrower and the members of its ERISA Controlled Group had
completely withdrawn from all Multiemployer Plans is not greater than
$2,000,000. To the best knowledge of the Borrower and each member of its ERISA
Controlled Group, no Multiemployer Plan is or is likely to be in reorganization
(as defined in Section 4241 of ERISA or Section 418 of the Code) or is insolvent
(as defined in Section 4245 of ERISA). No material liability to the PBGC (other
than required premium payments), the Internal Revenue Service, any Plan or any
trust established under Title IV of ERISA has been, or is expected by the
Borrower or any member of its ERISA Controlled Group to be, incurred by the
Borrower or any member of its ERISA Controlled Group. Neither the Borrower nor
any member of its ERISA Controlled Group has any contingent liability with
respect to any post-retirement benefit under any "welfare plan" (as defined in
Section 3(1) of ERISA), other than liability for continuation coverage under
Part 6 of Title I of ERISA and other than contingent liabilities under Hardee's
Retiree Medical Insurance Plan, and the aggregate present value of all
post-retirement benefit liabilities of the Borrower and its Subsidiaries under
Hardee's Retiree Medical Insurance Plan as of the Closing Date does not exceed
$4,800,000. No lien under Section 412(n) of the Code or Section 302(f) of ERISA
or requirement to provide security under Section 401(a)(29) of the Code or
Section 307
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
of ERISA has been or is reasonably expected by the Borrower or any member of its
ERISA Controlled Group to be imposed on the assets of the Borrower or any member
of its ERISA Controlled Group.
Section 5.14 Investment Company Act. No Loan Party is (x) an
"investment company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended, or (y)
subject to any other federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
Section 5.15 Dissolved Subsidiaries; Previously Material Subsidiaries,
etc. Schedule 5.15 sets forth a list of previous Subsidiaries that have been
dissolved since November 12, 2003 (the "DISSOLVED ENTITIES"). All of the assets
and property (including, without limitation, all real property for which title
was previously vested in Leased Restaurant Partners) of each Dissolved Entity
have been transferred to the Borrower or a Subsidiary of the Borrower party to
the Subsidiary Security Agreement and Guaranty.
Section 5.16 Representations and Warranties in Subordinated Debt
Documents. All representations and warranties made by any Loan Party in the
Subordinated Debt Documents, and, to the best of the Borrower's knowledge, all
representations made by each other Person in such Subordinated Debt Documents,
are true and correct in all material respects. None of such representations and
warranties is inconsistent in any material respect with the representations and
warranties of any Loan Party made herein or in any other Loan Document.
Section 5.17 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of any Loan Party in writing to the
Administrative Agent or any Lender on or prior to the Closing Date, for purposes
of or in connection with this Agreement or any of the Transactions is, and all
other such factual information (taken as a whole) hereafter furnished by or on
behalf of any Loan Party in writing to the Administrative Agent or any Lender
will be, true and accurate in all material respects on the date as of which such
information is dated or furnished and not incomplete by omitting to state any
material fact necessary to make such information (taken as a whole) not
misleading at such time. As of the Closing Date, there are no facts, events or
conditions known to any Loan Party which, individually or in the aggregate, have
or could be expected to have a Material Adverse Effect.
Section 5.18 Organizational Structure; Capitalization. Schedule 5.18
hereto sets forth as of the Closing Date, the jurisdiction of incorporation or
organization of the Borrower, each of its Subsidiaries, each other Loan Party
and each Subsidiary of such Loan Party, the number of authorized and issued
shares of capital stock or other outstanding equity interests of the Borrower
and each of its Subsidiaries and of each other Loan Party and each Subsidiary of
such Loan Party, the par value thereof and (other than with respect to the
Borrower) the registered owner(s) thereof. All of such stock has been duly and
validly issued and is fully paid and non-assessable and (except for the stock of
the Borrower) is, together with all such other
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
equity interests, owned by such Loan Party free and clear of all Liens. Except
for the Convertible Subordinated Notes or as disclosed in Schedule 5.18, neither
any Loan Party nor any such Subsidiary has outstanding any securities
convertible into or exchangeable for its capital stock or other outstanding
equity interest nor does any Loan Party or any such Subsidiary have outstanding
any rights to subscribe for or to purchase, or any options for the purchase of,
warrants or any agreements providing for the issuance (contingent or otherwise)
of, or any calls, commitments or claims of any character relating to, its
capital stock or other outstanding equity interest.
Section 5.19 Environmental Matters.
(a) (i) Each of the Loan Parties and their Environmental
Affiliates are in compliance with all applicable Environmental Laws except where
noncompliance, individually or in the aggregate, could not have a Material
Adverse Effect, (ii) each of the Loan Parties and their Environmental Affiliates
have all Environmental Approvals required to operate their businesses as
presently conducted or as reasonably anticipated to be conducted except where
the failure to obtain any such Environmental Approval, individually or in the
aggregate, could not have a Material Adverse Effect, (iii) none of the Loan
Parties nor any of their Environmental Affiliates has received any communication
(written or oral), whether from a governmental authority, citizens group,
employee or otherwise, that alleges that such Loan Party or Environmental
Affiliate is not in full compliance with all Environmental Laws and where such
noncompliance, individually or in the aggregate, could have a Material Adverse
Effect, and (iv) to the Borrower's best knowledge after due inquiry, there are
no circumstances that may prevent or interfere with such full compliance in the
future except where such noncompliance, individually or in the aggregate, could
not have a Material Adverse Effect.
(b) There is no Environmental Claim pending or threatened against
any Loan Party or its Environmental Affiliate, which, individually or in the
aggregate, could have a Material Adverse Effect.
(c) There are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge or disposal of any Material of Environmental
Concern, that could form the basis of any Environmental Claims against any of
the Loan Parties or any of their Environmental Affiliates, which Environmental
Claims, individually or in the aggregate, could have a Material Adverse Effect.
(d) [Reserved]
(e) [Reserved]
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 5.20 Intellectual Property. Each of the Loan Parties owns or
has the valid right to use all patents, trademarks, service marks, domain names,
trade names, copyrights, trade secrets and other intangible rights (the
"INTELLECTUAL PROPERTY"), which are used in or necessary for the operation of
its business, free and clear of all Liens. Schedule V to the Borrower Security
Agreement and Schedule V to the Subsidiary Security Agreement together set forth
a complete and accurate list thereof with respect to each Loan Party as of the
Closing Date, of all applications and registrations for Intellectual Property
owned by such Loan Party and all license agreements to or from third parties to
which such Loan Party is a party or is otherwise bound. Each Loan Party is the
record owner of all registrations and applications which it owns and all such
registrations for Intellectual Property are valid and enforceable. To the best
of each Loan Party's knowledge, no service, product, process, component or other
material presently offered, sold or employed by any Loan Party infringes upon or
dilutes any Intellectual Property of any other Person, and no such claims have
been made by any other Person against any Loan Party. There is no pending or, to
the best of each Loan Party's knowledge, threatened claim or litigation against
or affecting any Loan Party contesting its rights to own or use any Intellectual
Property or the validity or enforceability thereof.
Section 5.21 Ownership of Property; Restaurants. Schedule 5.21 sets
forth all the real property owned or leased by the Loan Parties as of the
Closing Date and identifies the street address, the current owner (and current
record owner, if different) and whether such property is leased or owned. The
Loan Parties have good and marketable fee simple title to or valid leasehold
interests in all of such real property and good title to all of their personal
property subject to no Lien of any kind except Liens permitted hereby. Schedule
5.21 also sets forth a list of each Restaurant and the street address thereof
which is owned or operated as of the Closing Date by any Loan Party or any of
its Subsidiaries. The Loan Parties enjoy peaceful and undisturbed possession
under all of their respective leases.
Section 5.22 No Default. No Loan Party is in default under or with
respect to any Transaction Document or any other agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound in any respect which could result in a Material Adverse Effect. No Default
or Event of Default exists.
Section 5.23 Licenses, etc. The Loan Parties have obtained and hold in
full force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other rights, consents and approvals which are necessary for the operation of
their respective businesses as presently conducted.
Section 5.24 Compliance with Law. Each Loan Party is in compliance
with all applicable laws, rules, regulations, orders, judgments, writs and
decrees except where such non-compliance, individually or in the aggregate,
could not have a Material Adverse Effect.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 5.25 No Burdensome Restrictions. No Loan Party is a party to
any agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which, individually or in the aggregate, could have a Material Adverse Effect.
Section 5.26 Brokers' Fees. None of the Loan Parties has any
obligation to any Person in respect of any finder's, brokers, investment banking
or other similar fee in connection with any of the Transactions.
Section 5.27 Labor Matters. Except as set forth on Schedule 5.27,
there are no collective bargaining agreements or Multiemployer Plans covering
the employees of the Borrower, any of its Subsidiaries or any of the other Loan
Parties, and none of such Persons has suffered any strikes, walkouts, work
stoppages or other material labor difficulty within the last five years. No
proceedings are pending against the Borrower or any of its Subsidiaries before
the INS which could reasonably be expected to have a Material Adverse Effect.
Section 5.28 Indebtedness of the Borrower and Its Subsidiaries. Set
forth on Schedule 5.28 hereto is a complete and accurate list of all
Indebtedness of the Borrower and each of its Subsidiaries existing as of the
Closing Date and not otherwise permitted under Section 7.2, showing the
principal amount outstanding thereunder as of the Closing Date.
Section 5.29 Other Agreements. Schedule 5.29 sets forth a complete and
accurate list as of the Closing Date of (i) all joint venture and partnership
agreements to which the Borrower or any of its Subsidiaries is a party, and (ii)
all covenants not to compete restricting the Borrower or any of its Subsidiaries
to which the Borrower or any of its Subsidiaries is a party or by which the
Borrower or any of its Subsidiaries is bound.
Section 5.30 Immaterial Subsidiaries. The Subsidiaries of the Borrower
designated as Immaterial Subsidiaries on the Closing Date are set forth on
Schedule 5.30. The assets of each Subsidiary of the Borrower designated as an
Immaterial Subsidiary by the Borrower do not exceed $1,500,000 and the assets of
all of the Subsidiaries of the Borrower designated as Immaterial Subsidiaries by
the Borrower do not in the aggregate exceed $10,000,000, in each case as
determined in accordance with GAAP.
Section 5.31 Franchise Agreements and Franchisees. None of the
Franchise Agreements to which the Borrower or any of its Subsidiaries is a party
as a franchisor or a licensor prohibit or restrict in any manner the assignment
of such Franchise Agreement to the Administrative Agent for the benefit of the
Secured Parties or require any consent of any Person in connection with any such
assignment. Schedule 5.31 sets forth a complete and accurate list of each Person
who is a franchisee or licensee of the Borrower or any of its Subsidiaries as of
the Closing Date.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SECTION 6. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that until all of the Commitments of
each of the Lenders have terminated, each of the Letters of Credit has expired
or been terminated, and the Obligations are paid in full:
Section 6.1 Information Covenants. The Borrower will furnish to the
Administrative Agent, with sufficient copies for each Lender:
(a) Quarterly Financial Statements. Within 45 days after the
close of each of the first three (3) quarterly accounting periods in each fiscal
year of the Borrower, the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarterly period and the related consolidated
statements of income and cash flow for such quarterly period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly period, and
in each case setting forth comparative figures for the related periods in the
prior fiscal year.
(b) Annual Financial Statements. Within 90 days after the close
of each fiscal year of the Borrower, the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and cash flow for such fiscal year, setting
forth comparative figures for the preceding fiscal year and, with respect to
such consolidated financial statements, certified without qualification by KPMG
LLP or other independent certified public accountants of recognized national
standing reasonably acceptable to the Administrative Agent and the Required
Lenders and indicating that its audit of the consolidated financial statements
of the Borrower was conducted in accordance with generally accepted auditing
standards.
(c) Management Letters. Promptly after the Borrower's receipt
thereof, a copy of any "management letter" or other material report received by
the Borrower from its certified public accountants.
(d) Budgets. Within 60 days after the first day of each fiscal
year of the Borrower, a budget and financial forecast of results of operations
and sources and uses of cash (in form reasonably satisfactory to the
Administrative Agent) prepared by the Borrower for such fiscal year, accompanied
by a written statement of the assumptions used in connection therewith, together
with a certificate of the chief financial officer of the Borrower to the effect
that such budget and financial forecast and, to the best of such officer's
knowledge, assumptions, are reasonable and were prepared in good faith. The
financial statements required to be delivered pursuant to clauses (a) and (b)
above shall be accompanied by a comparison of the actual financial results set
forth in such financial statements to those contained in the forecasts delivered
pursuant to this clause (d) together with an explanation of any material
variations from the results anticipated in such forecasts.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(e) Officer's Certificates. At the time of the delivery of the
financial statements under clauses (a) and (b) above, a certificate of the chief
financial officer of the Borrower which certifies (x) that such financial
statements fairly present the financial condition and the results of operations
of the Borrower and its Subsidiaries on the dates and for the periods indicated,
subject, in the case of interim financial statements, to normally recurring
year-end adjustments, and that such financial statements were prepared in
accordance with GAAP and (y) that such officer has reviewed the terms of the
Loan Documents and has made, or caused to be made under his or her supervision,
a review in reasonable detail of the business and condition of the Borrower and
its Subsidiaries during the accounting period covered by such financial
statements, and that as a result of such review such officer has concluded that
no Default or Event of Default has occurred during the period commencing at the
beginning of the accounting period covered by the financial statements
accompanied by such certificate and ending on the date of such certificate or,
if any Default or Event of Default has occurred, specifying the nature and
extent thereof and, if continuing, the action the Borrower proposes to take in
respect thereof (the "COMPLIANCE CERTIFICATE"). Such certificate shall set forth
the calculations required to establish whether the Borrower was in compliance
with the provisions of Sections 6.11, 6.12, 7.1, 7.2, 7.3, 7.7, 7.8 and 7.18
during and as at the end of the accounting period covered by the financial
statements accompanied by such certificate.
(f) Notice of Default. Promptly and in any event within one
Business Day after any Loan Party obtains knowledge thereof, notice (i) of the
occurrence of any Default or Event of Default together with a certificate of an
Authorized Officer of the Borrower specifying the nature and period of existence
thereof and the Borrower's proposed response thereto, (ii) that any holder of
Indebtedness of the Borrower or any Subsidiary of the Borrower having an
outstanding principal balance exceeding $5,000,000 has given any written notice
to the Borrower or any Subsidiary of the Borrower or taken any other action with
respect to a claimed default or event or condition of the type referred to in
Section 8.1(d) specifying (A) the nature and period of existence of any such
claimed default, condition or event, (B) the notice given or action taken by
such Person in connection therewith, and (C) the Borrower's proposed response
thereto and (iii) of the occurrence of any default or event of default under any
Subordinated Debt Document specifying (A) the nature and period of existence of
any such default, condition or event, (B) any notice given or action taken by
any holder or trustee thereunder in connection therewith, and (C) the Borrower's
proposed response thereto.
(g) Notice of Litigation. Promptly after (i) the occurrence
thereof, notice of the institution of, or any material development in, any
action, suit, litigation, proceeding, investigation or arbitration, before any
court or arbitrator or any governmental or administrative body, agency or
official, against the Borrower, any of its Subsidiaries or any material property
of any thereof which, individually or in the aggregate, could have a Material
Adverse Effect, or (ii) actual knowledge thereof, notice of the threat of any
such action, suit, proceeding, investigation or arbitration.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(h) ERISA.
(i) As soon as possible and in any event within 10 days
after the Borrower or any member of its ERISA Controlled Group knows, or
has reason to know, that:
(A) any Termination Event with respect to a Plan has
occurred or will occur, or
(B) any condition exists with respect to a Plan which
presents a material risk of termination of the Plan or imposition of an
excise tax or other liability on the Borrower or any member of its ERISA
Controlled Group, or
(C) the Borrower or any member of its ERISA Controlled
Group has applied for a waiver of the minimum funding standard under
Section 412 of the Code or Section 302 of ERISA, or
(D) the Borrower or any member of its ERISA Controlled
Group has engaged in a "prohibited transaction," as defined in Section 4975
of the Code or as described in Section 406 of ERISA, that is not exempt
under Section 4975 of the Code and Section 408 of ERISA, or
(E) the aggregate present value of the Unfunded Benefit
Liabilities under all Plans has in any year increased by $500,000 or to an
amount in excess of $2,000,000, or
(F) any condition exists with respect to a
Multiemployer Plan which presents a material risk of a partial or complete
withdrawal (as described in Section 4203 or 4205 of ERISA) by the Borrower
or any member of its ERISA Controlled Group from a Multiemployer Plan, or
(G) the Borrower or any member of its ERISA Controlled
Group is in "default" (as defined in Section 4219(c)(5) of ERISA) with
respect to payments to a Multiemployer Plan, or
(H) a Multiemployer Plan is in "reorganization" (as
defined in Section 418 of the Code or Section 4241 of ERISA) or is
"insolvent" (as defined in Section 4245 of ERISA), or
(I) the potential withdrawal liability (as determined
in accordance with Title IV of ERISA) of the Borrower and the members of
its ERISA Controlled Group with respect to all Multiemployer Plans has in
any year increased by $500,000 or to an amount in excess of $2,000,000, or
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(J) there is an action brought against the Borrower or
any member of its ERISA Controlled Group under Section 502 of ERISA with
respect to its failure to comply with Section 515 of ERISA,
a certificate of the president or chief financial officer of the Borrower
setting forth the details of each of the events described in clauses (A) through
(J) above as applicable and the action which the Borrower or the applicable
member of its ERISA Controlled Group proposes to take with respect thereto,
together with a copy of any notice or filing from the PBGC or which may be
required by the PBGC or other agency of the United States government with
respect to each of the events described in clauses (A) through (J) above, as
applicable.
(ii) As soon as possible and in any event within two
Business Days after the receipt by the Borrower or any member of its ERISA
Controlled Group of a demand letter from the PBGC notifying the Borrower or
such member of its ERISA Controlled Group of its final decision finding
liability and the date by which such liability must be paid, a copy of such
letter, together with a certificate of the president or chief financial
officer of the Borrower setting forth the action which the Borrower or such
member of its ERISA Controlled Group proposes to take with respect thereto.
(i) SEC Filings. Promptly upon transmission thereof, copies of
all regular and periodic financial information, proxy materials and other
information, regular, periodic and special reports and registration statements,
if any, which any Loan Party shall file with the Securities and Exchange
Commission or any governmental agencies substituted therefore or which any Loan
Party shall send to its stockholders.
(j) Environmental. Promptly and in any event within two Business
Days after the existence of any of the following conditions, a certificate of an
Authorized Officer of the Borrower specifying in detail the nature of such
condition and the applicable Loan Party's or Environmental Affiliate's proposed
response thereto: (i) the receipt by any Loan Party or any of its Environmental
Affiliates of any communication (written or oral), whether from a governmental
authority, citizens group, employee or otherwise, that alleges that such Loan
Party or Environmental Affiliate is not in compliance with applicable
Environmental Laws where such noncompliance, individually or in the aggregate,
could have a Material Adverse Effect, (ii) any Loan Party or any of its
Environmental Affiliates shall obtain actual knowledge that there exists any
Environmental Claim pending or threatened against such Loan Party or such
Environmental Affiliate, which, individually or in the aggregate, could have a
Material Adverse Effect, or (iii) any release, emission, discharge or disposal
of any Material of Environmental Concern that could form the basis of any
Environmental Claim against any Loan Party or any of their Environmental
Affiliates, which Environmental Claim, individually or in the aggregate could
have a Material Adverse Effect.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(k) Creditor Reports. Promptly after the furnishing thereof,
copies of any statement or report furnished to any other holder of the
securities of any Loan Party or of any of its Subsidiaries pursuant to the terms
of any indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lenders pursuant to any other clause of this Section 6.1.
(l) [Intentionally Omitted].
(m) Other Information. From time to time, such other information
or documents (financial or otherwise) as any Lender may reasonably request.
Section 6.2 Books, Records and Inspections. The Borrower shall, and
shall cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in relation
to its business and activities. The Borrower shall, and shall cause each of its
Subsidiaries to, permit the officers and designated representatives of any
Lender or the Financial Advisor to visit and inspect any of the properties of
the Borrower or any of its Subsidiaries, and to examine the books of record and
account of the Borrower or any of its Subsidiaries and discuss the affairs,
finances and accounts of the Borrower or any of its Subsidiaries, with, and be
advised as to the same by, its and their officers and independent accountants,
all upon reasonable notice and at such reasonable times as such Lender or, in
the case of the Financial Advisor, the Administrative Agent may desire, PROVIDED
that no such prior notice shall be required if an Event of Default has occurred
and is continuing.
Section 6.3 Maintenance of Insurance. The Borrower shall, and shall
cause each of its Subsidiaries to, (a) maintain with financially sound and
reputable insurance companies insurance on itself and its properties (including
all real properties leased or owned by them) in at least such amounts and
against at least such risks as are customarily insured against in the same
general area by companies engaged in the same or a similar business similarly
situated, which insurance shall in any event not provide for materially less
coverage than the insurance in effect on the Closing Date and shall name the
Administrative Agent for the benefit of the Lenders as an additional insured or
loss payee, as applicable, and (b) furnish to each Lender from time to time,
upon written request, the policies under which such insurance is issued,
certificates of insurance and such other information relating to such insurance
as such Lender may request.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 6.4 Taxes.
(a) The Borrower, and shall cause each of its Subsidiaries to,
timely file with the appropriate governmental authorities all required tax
returns, tax reports, and information statements relating to Taxes, and all such
tax returns, tax reports and information statements shall be true, correct and
complete in all material respects when filed. The Borrower shall pay or cause to
be paid, and shall cause each of its Subsidiaries to pay or cause to be paid,
when due, all taxes, charges and assessments and all other lawful claims
required to be paid by the Borrower or such Subsidiaries, except as contested in
good faith and by appropriate proceedings diligently conducted, if adequate
reserves have been established with respect thereto in accordance with GAAP.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries to, file or consent to the filing of any consolidated tax return
with any Person (other than the Borrower and its Subsidiaries).
Section 6.5 Corporate Franchises. Except as permitted by Section 7.4
below, the Borrower shall, and shall cause each of its Subsidiaries to, do or
cause to be done, all things necessary to preserve and keep in full force and
effect its existence and its patents, trademarks, servicemarks, tradenames,
copyrights, franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights of way and other rights,
consents and approvals except where the failure to so preserve any of the
foregoing (other than existence) could not, individually or in the aggregate,
result in a Material Adverse Effect.
Section 6.6 Compliance with Law. The Borrower shall, and shall cause
each of its Subsidiaries to, comply in all material respects with all applicable
laws, rules, statutes, regulations, decrees and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of their business and the ownership of their property,
including, without limitation, ERISA and all Environmental Laws.
Section 6.7 Performance of Obligations. The Borrower shall, and shall
cause each of its Subsidiaries to, perform all of its obligations under the
terms of each mortgage, indenture, security agreement, debt instrument, lease,
undertaking and contract by which it or any of its properties is bound or to
which it is a party, except where the failure to perform such obligations
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
Section 6.8 Maintenance of Properties. The Borrower shall, and shall
cause each of its Subsidiaries to, ensure that its respective properties useful
in its respective business are kept in good repair, working order and condition,
normal wear and tear excepted.
Section 6.9 Compliance with Terms of Leaseholds. The Borrower shall
and shall cause each of its Subsidiaries to (a) make all payments and otherwise
perform all obligations in respect of all leases of the Borrower and each of its
Subsidiaries of real property,
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(b) keep all such leases that are useful or material in the conduct of the
business of the Borrower and its Subsidiaries (such useful or material leases
are hereinafter referred to as the "MATERIAL LEASES") in full force and effect,
(c) not allow such Material Leases to lapse or be terminated or any rights to
renew such leases to be forfeited or cancelled, and (d) notify the
Administrative Agent of any default by any party with respect to such Material
Leases and cooperate with the Administrative Agent in all respects to cure any
such default.
Section 6.10 Compliance with Environmental Laws. The Borrower shall,
and shall cause each of its Subsidiaries and all lessees and other Persons
occupying its properties to (a) comply in all material respects, with all
Environmental Laws and Environmental Approvals applicable to its respective
operations and properties; (b) obtain and renew all Environmental Approvals
necessary for its respective operations and properties; and (c) conduct any
investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to remove and clean up all Materials of
Environmental Concern from any of its respective properties, in accordance with
the requirements of all Environmental Laws; PROVIDED, HOWEVER, that neither the
Borrower nor any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances, unless the
Borrower or any of its Subsidiaries is subject to an order issued by any
governmental authority requiring the Borrower or such Subsidiary to undertake
any such cleanup, removal, remedial or other action, in which case this proviso
shall not apply.
Section 6.11 Subsidiary Guarantors. The Borrower shall cause each of
its Subsidiaries now or hereafter existing, formed or acquired (other than any
Immaterial Subsidiaries) to at all times be and remain a party to the Guaranty,
the Subsidiary Security Agreement and, if any such Subsidiary owns any Equity
Interests in any Person (other than in an Immaterial Subsidiary), a Subsidiary
Pledge Agreement. The Borrower shall cause to be delivered to the Administrative
Agent a legal opinion in form and substance reasonably satisfactory to the
Administrative Agent with respect to any Subsidiary entering into the Guaranty
after the Closing Date.
Section 6.12 Immaterial Subsidiaries. If (i) the assets of any
Subsidiary of the Borrower then designated as an Immaterial Subsidiary shall at
any time exceed $1,500,000, then the Borrower shall immediately provide notice
to the Administrative Agent thereof, and such Subsidiary shall immediately be
deemed automatically to no longer be an Immaterial Subsidiary or (ii) the
aggregate amount of assets of all Subsidiaries of the Borrower so designated as
Immaterial Subsidiaries shall at any time exceed $10,000,000, then the Borrower
shall immediately provide notice to the Administrative Agent thereof and notice
of which of such previously designated Immaterial Subsidiaries shall no longer
be deemed to be Immaterial Subsidiaries so that the aggregate amount of assets
of all such Subsidiaries so designated as Immaterial Subsidiaries does not
exceed $10,000,000; PROVIDED that the Borrower may from time
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
to time designate additional Subsidiaries of the Borrower as Immaterial
Subsidiaries so long as the assets of any such Subsidiary do not exceed
$1,500,000 and so long as the aggregate amount of assets of all such
Subsidiaries so designated as Immaterial Subsidiaries does not exceed
$10,000,000 (in each case as determined in accordance with GAAP). At such time
as any Subsidiary that was an Immaterial Subsidiary is no longer an Immaterial
Subsidiary, the Borrower shall thereafter comply with the terms of this
Agreement with respect to such Subsidiary relating to or affecting Subsidiaries
that are not Immaterial Subsidiaries (in addition to those terms relating to or
affecting the Borrower's Subsidiaries generally), including, without limitation,
the requirements of Section 6.11 and Section 2.21.
Section 6.13 [Reserved].
Section 6.14 Collateral Account. The Collateral Account shall, at all
times during which any funds are deposited therein or credited thereto, be
subject to the Blocked Account Agreement.
Section 6.15 [Reserved].
Section 6.16 Conditions Subsequent to the Closing Date. (a) Not later
than sixty (60) days after the Closing Date (unless the Administrative Agent
shall have extended such date in its sole discretion), the Borrower shall
execute and deliver, or cause CKE Distribution, LLC, a California limited
liability company, to execute and deliver, to the Administrative Agent
documents, in form and substance satisfactory to the Administrative Agent, to
cause CKE Distribution, LLC to become a party to the Guaranty and the Subsidiary
Security Agreement and the Borrower to pledge its equity interest in CKE
Distribution, LLC to the Administrative Agent, and the Borrower shall execute
and/or deliver, or cause CKE Distribution, LLC to execute and/or deliver, such
financing statements, stock powers and other documents reasonably requested by
the Administrative Agent in connection with this Section 6.16.
(b) Not later than sixty (60) days after the Closing Date, the
Borrower shall deliver to the Administrative Agent (i) an amendment to each
Mortgage that recites the maturity date of the Loans (collectively, the
"MORTGAGE AMENDMENTS"), in recordable form and otherwise in form and substance
reasonably acceptable to the Administrative Agent, evidencing the extension of
such maturity date to the Final Maturity Date, duly executed by the Borrower or
its Subsidiary, as applicable, together with evidence that (A) counterparts of
the Mortgage Amendments have been duly delivered for filing or recording in all
filing or recording offices that the Administrative Agent may reasonably deem
necessary or desirable and (B) all filing and recording taxes and fees necessary
to properly record the Mortgage Amendments in such offices have been paid and
(ii) a legal opinion with respect to the Mortgage Amendments in form and
substance satisfactory to the Administrative Agent.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(c) Not later than thirty (30) days after the Closing Date, the
Borrower shall have delivered to the Administrative Agent a legal opinion from
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Loan Parties, in form and
substance satisfactory to the Administrative Agent, that the execution, delivery
and performance by the Borrower of each of the Transaction Documents (as defined
in the legal opinion delivered pursuant to Section 4.1(b)(A) as of the date
hereof) and the performance by the Borrower of its obligations under each of the
Transaction Documents does not constitute a violation of, or a default under,
any material agreements or material instruments requested by the Administrative
Agent.
SECTION 7. NEGATIVE COVENANTS.
The Borrower covenants and agrees that until all of the Commitments of
each Lender have terminated, each of the Letters of Credit has expired or been
terminated, and the Obligations are paid in full:
Section 7.1 Financial Covenants.
(a) Leverage Ratio. The Borrower shall not permit the Leverage
Ratio at any time during each of the fiscal quarters of the Borrower of the
respective fiscal year set forth below to exceed the ratio set forth opposite
such fiscal year:
Fiscal Year Ratio
----------- -----
2008 2.50
2009 2.25
2010 and each
fiscal year
thereafter 2.00
(b) [Reserved]
(c) [Reserved]
(d) [Reserved]
(e) Capital Expenditures.
(i) The Borrower shall not make or incur, and shall not
permit any of its Subsidiaries to make or incur, any Capital Expenditures,
except, subject to subsections (ii) and (iii) below, Capital Expenditures
of the Borrower
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
and its Subsidiaries in an aggregate amount not in excess of the sum of (I)
$85,000,000, plus (II) the EBITDA CapEx Amount for such fiscal year, plus
(III) the amount of Net Sale Proceeds for Asset Dispositions occurring
during such fiscal year not required to be applied to reduce the Loans
pursuant to Section 2.12. If the aggregate amount of Capital Expenditures
made or incurred during any fiscal year of the Borrower is less than the
amount (as reduced, if applicable) permitted to be made or incurred
pursuant to the immediately preceding sentence, then the maximum amount for
the following fiscal year of the Borrower and its Subsidiaries (but not any
subsequent fiscal year of the Borrower) shall be increased by the amount of
such difference. For the avoidance of doubt, the maximum aggregate amount
of Capital Expenditures permitted to be made or incurred for fiscal year
2008 shall be increased by an amount equal to the difference between (A)
the maximum amount of Capital Expenditures permitted to be made or incurred
by the Borrower during fiscal year 2007 as determined pursuant to this
Section 7.1(e)(i) and (B) the aggregate amount of Capital Expenditures made
or incurred by the Borrower during fiscal year 2007.
(ii) [Reserved]
(iii) Notwithstanding any other provision of this Section
7.1(e), if at any time the Unused Portion of the Revolving Loans shall be
less than $15,000,000, and until such time as such Unused Portion has been
restored to at least $15,000,000, the Borrower shall not make or incur and
shall not permit any of its Subsidiaries to make or incur any Capital
Expenditures (other than Capital Expenditures otherwise permitted by this
Section 7.1(e) and made or incurred pursuant to contractual commitments to
make or incur such Capital Expenditures entered into by the Borrower or any
of its Subsidiaries at a time when such Unused Portion was at least
$15,000,000).
Section 7.2 Indebtedness. The Borrower shall not, and shall not permit
any of its Subsidiaries to, create, incur, assume, suffer to exist or otherwise
become or remain directly or indirectly liable with respect to, any Indebtedness
other than the following PROVIDED that none of the creation, incurrence,
assumption or existence of any of the following result in or cause a violation
or breach of, or default under, any Subordinated Debt Document:
(a) Indebtedness hereunder and under the other Loan Documents;
(b) Indebtedness outstanding on the Closing Date and set forth on
Schedule 5.28 hereto (without duplication of any other Indebtedness permitted by
the other provisions of this Section 7.2);
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(c) Indebtedness permitted under Sections 7.6(a) and 7.6(b);
(d) Indebtedness of the Borrower of the type described in clause
(viii) of the definition of Indebtedness to the extent permitted under Section
7.14;
(e) Indebtedness with respect to (i) purchase money Indebtedness
incurred solely to finance Capital Expenditures permitted under Section 7.1(e)
and any extensions, renewals, refundings or refinancings thereof, not in excess
of $5,000,000 in the aggregate at any one time outstanding for all such purchase
money Indebtedness and all extensions, renewals, refundings and refinancings
thereof and (ii) Capitalized Leases permitted under Section 7.13 and any
extensions, renewals, refundings or refinancings thereof so long as the terms of
any such Indebtedness with respect to Capitalized Leases is permitted under
Section 7.13; PROVIDED, that (A) any such Indebtedness incurred pursuant to this
clause (e) and any such extensions, renewals, refundings or refinancings thereof
shall not exceed, in the case of Capitalized Leases, the lesser of the purchase
price or the fair market value of the asset so financed or, in the case of
purchase money Indebtedness, 90% of the lesser of the purchase price or the fair
market value of the asset so financed, (B) at the time of such incurrence, no
Default or Event of Default has occurred and is continuing or would result from
such incurrence, and (C) such Indebtedness has a scheduled maturity and is not
due on demand;
(f) any extensions, renewals, refundings and refinancings of the
Indebtedness described in clause (b) above, so long as the terms of any such
extension, renewal, refunding or refinancing Indebtedness, and of any agreement
entered into and of any instrument issued in connection therewith, are otherwise
permitted by the Loan Documents; PROVIDED, FURTHER, that the principal amount of
such Indebtedness shall not be increased above the principal amount thereof
outstanding immediately prior to such extension, renewal, refunding or
refinancing, and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension, renewal, refunding
or refinancing;
(g) Indebtedness of any Domestic Subsidiary of the Borrower owed
to the Borrower or to any Domestic Subsidiary of the Borrower;
(h) Permitted Subordinated Debt in an aggregate principal amount
not to exceed $5,000,000 at any one time outstanding incurred in connection with
a Permitted Acquisition with respect to which all of the conditions set forth in
Section 7.8(f) have been satisfied and incurred to pay all or part of the
purchase price thereof which Permitted Subordinated Debt, if secured, is secured
only by Liens permitted pursuant to Section 7.3(i);
(i) Indebtedness of the Borrower incurred pursuant to the
Convertible Subordinated Notes in an aggregate principal amount not to exceed
$15,200,000;
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(j) unsecured Indebtedness of the Borrower or any of its
Subsidiaries consisting of guarantees of Indebtedness of a franchisee incurred
to finance a remodeling, construction or purchase of a retail unit of such
franchisee or capital expenditures of such franchisee ("FRANCHISEE CONSTRUCTION
DEBT"); PROVIDED, that (i) the amount of the obligations of the Borrower and its
Subsidiaries under or with respect to such guarantees shall not exceed
$40,000,000 in the aggregate outstanding at any time; (ii) the amount of the
obligations of the Borrower and its Subsidiaries under or with respect to
guarantees of more than 20% of the principal amount of the Franchisee
Construction Debt of a franchisee shall not exceed $5,000,000 in the aggregate
outstanding at any time; and (iii) except for the guarantees described in the
foregoing clause (ii), the amount of the obligations of the Borrower and its
Subsidiaries under or with respect to guarantees of Franchisee Construction Debt
of any franchisee shall not exceed 20% of the Franchisee Construction Debt of
such franchisee;
(k) unsecured Indebtedness of the Borrower or any of its
Subsidiaries owing to former franchisees and representing the deferred purchase
price (or a deferred portion of such purchase price) payable by the Borrower or
such Subsidiary to such former franchisee in connection with the purchase by the
Borrower or such Subsidiary of one or more retail outlets from such former
franchisee in an aggregate principal amount for all such Indebtedness not to
exceed $5,000,000 at any one time outstanding;
(l) Indebtedness of any entity acquired pursuant to a Permitted
Acquisition with respect to which all of the conditions set forth in Section
7.8(f) have been satisfied, which Indebtedness (i) is existing prior to such
Permitted Acquisition, (ii) is assumed by the Borrower or any Subsidiary of the
Borrower in connection with any such Permitted Acquisition and (iii) is not
incurred in contemplation of such Permitted Acquisition; PROVIDED, that the
aggregate principal amount of all such Indebtedness shall not exceed $5,000,000
at any time outstanding;
(m) Indebtedness with respect to Sale and Leaseback Transactions
permitted under Section 7.13(a); and
(n) Permitted Convertible Debt and Indebtedness under any
Convertible Bond Hedge Transactions.
Section 7.3 Liens. The Borrower shall not, and shall not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist, directly or
indirectly, any Lien on any of its property now owned or hereafter acquired,
other than the following PROVIDED, that none of the creation, incurrence,
assumption or existence of any of the following result in the creation or
imposition of a Lien under any Subordinated Debt Document:
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(a) Liens existing on the Closing Date and set forth on Schedule
7.3 hereto;
(b) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings diligently conducted and with respect to
which adequate reserves are being maintained in accordance with GAAP;
(c) Statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by Law (other than
any Lien imposed by ERISA or pursuant to any Environmental Law) created in the
ordinary course of business for amounts not yet due or which are being contested
in good faith by appropriate proceedings diligently conducted and with respect
to which adequate bonds have been posted;
(d) Liens (other than any Lien imposed by ERISA or pursuant to
any Environmental Law) incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(e) Easements, licenses, rights-of-way, covenants, conditions and
restrictions, zoning and similar restrictions and other similar charges or
encumbrances not interfering with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries and which do not detract materially from the
value of the property to which they attach or impair materially the use thereof
by the Borrower or any of its Subsidiaries or materially adversely affect the
security interests of the Administrative Agent or the Lenders therein;
(f) Liens granted to the Administrative Agent for the benefit of
the Lenders pursuant to the Security Documents securing the Obligations;
(g) Liens created pursuant to Capitalized Leases and to secure
other purchase-money Indebtedness permitted pursuant to Section 7.2(e),
PROVIDED, that such Liens are only in respect of the property or assets subject
to, and secure only, the respective Capitalized Lease or other purchase-money
Indebtedness;
(h) Liens arising out of the replacement, extension or renewal of
any Lien permitted by clause (a) above upon or in the same property theretofore
subject thereto in connection with the refunding, refinancing, extension or
renewal (without increase in the amount or change in any direct or contingent
obligor) of the Indebtedness secured thereby permitted pursuant to Section
7.2(f);
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(i) Liens securing Permitted Subordinated Debt permitted pursuant
to Section 7.2(h) PROVIDED, that (i) such Liens are only in respect of the
assets acquired in the applicable Permitted Acquisition, (ii) the Obligations
are secured by valid first priority perfected Liens on such assets and the Liens
permitted pursuant to this Section 7.3(i) are second in priority to the Liens on
such assets securing the Obligations and (iii) the rights and remedies of any
holder of such Liens are subordinated to the rights and remedies of the
Administrative Agent and the Lenders on terms approved in writing by the
Administrative Agent;
(j) Liens securing Indebtedness (other than Permitted
Subordinated Debt) of the Borrower and its Subsidiaries in an aggregate
principal amount not to exceed $25,000,000;
(k) Liens of a lessor covering only specific property leased by
the Borrower or any of its Subsidiaries subject to operating leases entered into
by the Borrower or any of its Subsidiaries as a lessee in the ordinary course of
business;
(l) Liens of a lessor covering only specific property leased by
the Borrower or any of its Subsidiaries subject to a Sale and Leaseback
Transaction permitted by Section 7.13(a) entered into by the Borrower or any of
its Subsidiaries as a lessee; and
(m) Liens set forth as exceptions to the title policies accepted
by the Administrative Agent in connection with the Real Estate Collateral.
Section 7.4 Restriction on Fundamental Changes.
(a) The Borrower shall not, and shall not permit any of its
Subsidiaries to, enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), discontinue its business
or convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, all or any substantial part of its business or property,
whether now or hereafter acquired, except (i) as otherwise permitted under
Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or
convey, sell, lease or transfer all or substantially all of its assets to, the
Borrower or any other Domestic Subsidiary of the Borrower, PROVIDED, that in any
such merger involving the Borrower, the Borrower shall be the surviving
corporation and any such Subsidiary merging into the Borrower or any such
Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the
Borrower or a Subsidiary of the Borrower in a Permitted Acquisition permitted
hereunder may merge with the Borrower or any wholly-owned Subsidiary of the
Borrower, PROVIDED, that in any such merger, the Borrower or such wholly-owned
Subsidiary shall be the surviving corporation, PROVIDED, FURTHER, that in each
case, (A) any such wholly-owned Subsidiary of the Borrower which is the
surviving corporation of any such merger or to which any business or property is
so transferred shall be a party to the Guaranty and the Subsidiary Security
Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (B)
the Borrower shall give the Administrative
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Agent at least ten (10) days prior written notice of any such sale, merger or
other transfer, (C) the Administrative Agent and Lenders shall not be deemed to
have released their security interest in any assets so transferred or in any
Subsidiary or the assets of any Subsidiary so merged and (D) no Default or Event
of Default shall have occurred or be continuing or would occur after giving
effect thereto or as a result thereof.
(b) Borrower shall not and shall not permit any of its
Subsidiaries to, amend its certificate of incorporation or by-laws (or other
relevant organizational and governing documents) in any manner adverse to the
interests of the Administrative Agent or the Lenders.
Section 7.5 Sale of Assets. The Borrower shall not, and shall not
permit any of its Subsidiaries to, make, consummate or effect any Asset
Disposition (or agree to do so at any future time) with respect to all or any
part of its property or assets, except:
(a) the sale of any asset by the Borrower or any of its
Subsidiaries (excluding (i) a bulk sale of inventory and a sale of receivables
(other than delinquent accounts for collection purposes only) and (ii) a sale of
any capital stock of ▇▇▇▇ ▇▇▇▇▇▇▇ Enterprises, Inc. or Hardee's) so long as:
(1) the purchase price paid to the Borrower or such Subsidiary
for such asset shall be no less than the fair market value of such asset at
the time of such sale,
(2) the purchase price for such asset shall be paid to the
Borrower or such Subsidiary solely in cash, Cash Equivalents or non-cash
consideration in the form of promissory notes, PROVIDED, that in the case
of non-cash consideration received in the form of promissory notes, (A)
such consideration shall not exceed 25% of the aggregate purchase price for
such asset, (B) such promissory notes shall mature no later than 3 years
after the date of issuance, (C) such promissory notes shall be pledged to
the Administrative Agent, for the benefit of the Lenders, pursuant to a
pledge agreement in form and substance satisfactory to the Administrative
Agent, (D) all payments of principal, interest and other amounts payable
under such promissory notes and that are received by the Borrower or such
Subsidiary shall be applied to prepay the outstanding Loans in accordance
with Section 2.12(a) hereof and (E) the aggregate principal amount of all
promissory notes received as consideration for all asset sales permitted
under this Section 7.5(a) shall not exceed $50,000,000 at any one time
outstanding,
(3) the aggregate fair market value of such asset and all other
assets sold by the Borrower and its Subsidiaries during the same
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
fiscal year of the Borrower pursuant to this clause (a) shall not exceed
10% of the total assets of the Borrower and its Subsidiaries determined on
a consolidated basis in accordance with GAAP (PROVIDED, that Excluded
Resales shall not be included in the calculation of such percentage),
(4) the Borrower shall prepay the outstanding Loans pursuant to,
and in accordance with, Section 2.12 in an aggregate principal amount equal
to the Net Sale Proceeds received by the Borrower or such Subsidiary from
the sale, transfer or other disposition of such asset,
(5) no Default or Event of Default has occurred and is continuing
or would result from such asset sale, and
(6) with respect to any Asset Disposition involving Real Estate
Collateral, the Borrower sells such Real Estate Collateral in the ordinary
course of business; and
(b) so long as no Default or Event of Default shall occur and be
continuing, the grant of any option or other right to purchase any asset in a
transaction which would be permitted under the provisions of the preceding
clause (a).
(c) Notwithstanding the foregoing, the Borrower or any Subsidiary
of the Borrower may from time to time sell its ownership interest in La Salsa or
all or any portion of its property or assets owned by La Salsa on or before the
date hereof.
Section 7.6 Contingent Obligations. The Borrower shall not, and shall
not permit any of its Subsidiaries to, create or become or be liable with
respect to any Contingent Obligation, except:
(a) pursuant to the Guaranty or the Security Documents;
(b) Contingent Obligations which are in existence on the Closing
Date and which are set forth on Schedule 7.6; and
(c) Contingent Obligations permitted pursuant to Section 7.2(j).
Section 7.7 Dividends. The Borrower shall not, and shall not permit
any of its Subsidiaries to, declare or pay any dividends, or return any capital
to, its stockholders or authorize or make any other distribution, payment or
delivery of property or cash to its stockholders as such, or redeem, retire,
purchase, defease or otherwise acquire, directly or indirectly, any shares of
any class of its Capital Stock now or hereafter outstanding (or any
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
options, rights or warrants issued with respect to its Capital Stock), or set
aside any funds for any of the foregoing purposes (all the foregoing
"DIVIDENDS"), except that:
(a) Dividends may be made to the Borrower or any of its
wholly-owned Subsidiaries by any of its wholly-owned Subsidiaries;
(b) So long as no Default or Event of Default shall have occurred
and be continuing or would result therefrom, the Borrower may declare and
deliver dividends and distributions payable only in common stock of the
Borrower;
(c) So long as no Default or Event of Default shall have occurred
and be continuing, any Subsidiary of the Borrower that is not a wholly-owned
Subsidiary of the Borrower may declare and pay cash dividends to the extent, and
only to the extent, of any cumulative positive net income (after deducting any
negative net income) of such Subsidiary arising after the date such Subsidiary
became a Subsidiary of the Borrower so long as such dividends are payable to all
of its equity holders on a ratable basis;
(d) 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)(iii) 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;
(e) So long as no Default of Event of Default shall have occurred
and be continuing, the Borrower may enter into with its directors and executive
officers a transaction or transactions pursuant to the terms of the Deferred
Compensation Plan whereby an Eligible Stock Option (as defined in the Deferred
Compensation Plan) is exercised by any such directors or executive officers
which results in a Qualifying Gain (as defined in the Deferred Compensation
Plan); and
(f) The Borrower may enter into any Convertible Bond Hedge
Transactions.
Section 7.8 Advances, Investments and Loans. The Borrower shall not,
and shall not permit any of its Subsidiaries to, make or suffer to exist,
directly or indirectly any Investments (including, without limitation, loans and
advances to the Borrower or any of its
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Subsidiaries, and other Investments in Subsidiaries of the Borrower), or
commitments therefor, or to create any Subsidiary or to become or remain a
partner in any partnership or joint venture, or make any Acquisition of any
interest in any Person, except that the following shall be permitted PROVIDED,
that none of the making, existence or creation of or becoming or remaining a
partner in, any of the following will not result in or cause a violation or
breach of, or default under, any Subordinated Debt Document:
(a) Investments set forth on Schedule 7.8;
(b) Investments by the Borrower and its Subsidiaries in
Subsidiaries of the Borrower outstanding on the Closing Date, additional
Investments (other than loans and advances) by the Borrower or any Subsidiary of
the Borrower in any Domestic Subsidiary of the Borrower which Subsidiary is
Solvent and is a party to the Guaranty, and additional Investments by the
Borrower or any wholly-owned Subsidiary of the Borrower consisting of loans and
advances to wholly-owned Domestic Subsidiaries of the Borrower to the extent
permitted by Section 7.2(g).
(c) loans and advances by the Borrower and its Subsidiaries to
their employees in the ordinary course of its business (other than Employee
Stock Loans) not exceeding $2,000,000 in the aggregate at any one time
outstanding;
(d) the Borrower and its Subsidiaries may acquire and hold Cash
Equivalents;
(e) Investments consisting of promissory notes permitted to be
received as consideration in connection with Asset Dispositions permitted under
Section 7.5(a);
(f) Permitted Acquisitions, PROVIDED, that, in the case of each
Permitted Acquisition, the conditions referred to in clauses (i) through (viii)
below are satisfied on or prior to the date of such Permitted Acquisition (it
being understood that, for purposes of clause (ii) below, the phrase "the
Borrower and its Subsidiaries" and the phrase "Consolidated" shall be deemed to
include the Person (and its Subsidiaries, if any, to be acquired) or assets to
be acquired as though such Person (and its Subsidiaries, if any, to be acquired)
or assets were a Subsidiary of the Borrower):
(i) the Person or assets to be acquired satisfy the criteria
set forth in either the definition of "Permitted Acquisition" contained in
Section 1;
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(ii) the Borrower shall have delivered to the Administrative
Agent a certificate of the chief financial officer of the Borrower, in form
and substance satisfactory to the Administrative Agent, demonstrating:
(1) compliance by the Borrower and its Subsidiaries with the
covenants set forth in Section 7.1, on a pro forma basis after giving
effect to such Acquisition, for a period of four consecutive fiscal
quarters after the date of such Acquisition, and
(2) the Consolidated EBITDA of the Person and any of its
Subsidiaries, if any, to be acquired, for the twelve-month period most
recently ended shall be a positive number;
(iii) the representations and warranties contained in each
Loan Document are correct in all material respects on and as of the date of
such Acquisition, after giving effect to such Acquisition, as though made
on and as of such date, other than any such representations and warranties
that by their terms are specifically made as of a date other than such
date;
(iv) no event has occurred and is continuing on the date of
such Acquisition, or would result from such Acquisition, that constitutes a
Default or an Event of Default;
(v) the Total Revolving Loan Commitment minus the aggregate
principal amount of the Revolving Loans outstanding on the date of such
Permitted Acquisition after giving effect to such Permitted Acquisition,
minus the amount of any L/C Obligations outstanding on the date of such
Permitted Acquisition after giving effect to such Permitted Acquisition
shall equal at least $25,000,000;
(vi) all Consents and waiting periods described in clause
(vii)(3)(D) below shall have been obtained or expired; and
(vii) the Borrower or such Subsidiary of the Borrower making
such Acquisition shall furnish or cause to be furnished to the
Administrative Agent and the Lenders the following:
(1) Certified copies of the resolutions of the Board of
Directors (or other governing body) of the Borrower and, if any Subsidiary
of the Borrower will participate in the applicable Acquisition, of such
Subsidiary (in each case, to the extent resolutions of the Board of
Directors of the Borrower or such Subsidiary are required or advisable
pursuant to applicable law or the Borrower's or such Subsidiary's charter
documents) and of all documents evidencing other necessary corporate action
or other Consents, if any, with respect to such Acquisition;
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(2) Such other financial, business and other
information regarding the Person or assets to be acquired, as the case may
be, as the Administrative Agent or the Required Lenders through the
Administrative Agent shall have reasonably requested, including, without
limitation, actual and pro forma financial statements and projections
relating to such Person or assets;
(3) In the case of each Permitted Acquisition, to the
extent that such Acquisition consists of the acquisition by the Borrower or
any of its Subsidiaries of stock, partnership or other Equity Interests of
any Person (or assets in the case of clause (A) below):
(A) All documents required to be delivered
pursuant to Section 2.21 and Section 6.11;
(B) A copy of the charter or other organizational
document of such Person and each amendment thereto, if any, certified
by the Secretary of State of its jurisdiction of organization, as of a
date reasonably near the date of such Borrowing, as being a true and
correct copy thereof;
(C) An officer's certificate signed on behalf of
such Person by an appropriate officer of such Person, certifying as to
(i) the absence of any amendment to the charter or other
organizational document of such Person since the date of the Secretary
of State's certificate referred to in clause (B) above, (ii) a true
and correct copy of the by-laws or similar organizational document of
such Person, (iii) a true and correct copy of the resolutions adopted
by the Board of Directors or equivalent governing body of such Person
approving the documents or instruments to be delivered under this
Section 7.8(f) to which such Person is a party and the matters
contemplated thereby, (iv) the incumbency and specimen signatures of
the officers of such Person executing the documents and instruments to
be delivered under this Section 7.8(f) to which such Person is a
party, and (v) the due organization and good standing of such Person
as a Person organized under the laws of its jurisdiction of
organization;
(D) Evidence satisfactory to the Administrative
Agent and the Lenders that the Borrower, its Subsidiaries and the
Person being acquired has made and obtained
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
all necessary governmental and other Consents required in order to
consummate such Acquisition and that all applicable waiting periods
with respect to such Acquisition including, without limitation, those
under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act have expired without any action having
been taken by any competent authority restraining, preventing or
imposing materially adverse conditions upon the rights of the Loan
Parties or their Subsidiaries freely to transfer or otherwise dispose
of, or to create any Lien on, any properties now owned or hereafter
acquired by any of them; and
(viii) the total consideration, contingent or otherwise, for
the Acquisition of the Person being acquired, together with the
consideration paid for each other Acquisition consummated pursuant to this
Section 7.8(f) during the same fiscal year does not exceed, in the
aggregate, $10,000,000 (including, without limitation, securities,
instruments, or promissory notes tendered or executed in connection with
such acquisition), PROVIDED, that the consideration paid under this clause
(viii) shall be included for purposes of calculating compliance with
Section 7.1(e) and all such Acquisitions shall be permitted only to the
extent they are permitted under Section 7.1(e);
(g) Investments received as consideration in connection with
Asset Dispositions permitted under paragraph (a) of Section 7.5;
(h) Investments consisting of promissory notes evidencing past
due receivables owed to the Borrower or any Subsidiary of the Borrower by an
account debtor and not involving any monetary advance;
(i) Employee Stock Loans not exceeding $10,000,000 in the
aggregate at any one time outstanding;
(j) loans to franchisees of Green Burrito in an aggregate amount
not to exceed $900,000 for all such loans made after the Closing Date; and
(k) Convertible Bond Hedge Transactions.
Section 7.9 Transactions with Affiliates. The Borrower shall not, and
shall not permit any of its Subsidiaries to, enter into any transaction or
series of related transactions, whether or not in the ordinary course of
business, with any Affiliate, other than on terms and conditions substantially
as favorable to the Borrower or such Subsidiary as would be obtainable at the
time in a comparable arm's-length transaction with a Person other than an
Affiliate;
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
PROVIDED, HOWEVER, that Employee Stock Loans otherwise permitted by the terms
hereof shall not be considered to be transactions with Affiliates for purposes
of this Section 7.9.
Section 7.10 Limitation on Voluntary Payments and Modifications of
Certain Documents. The Borrower shall not, and shall not permit any of its
Subsidiaries to:
(a) make any sinking fund payment or voluntary or optional
payment or prepayment on or redemption, defeasance, purchase or acquisition for
value of (including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of paying
when due) or exchange of any Indebtedness (excluding the Indebtedness hereunder
and under the other Loan Documents and Indebtedness permitted to be incurred
pursuant to Section 7.2(i)), PROVIDED that the Borrower may, and may permit any
of its Subsidiaries to,
(i) prepay, redeem, defease, purchase or acquire or exchange
any (collectively, a "PREPAYMENT") Surviving Debt (other than Indebtedness
permitted to be incurred pursuant to Section 7.2(i)) only if on the date of
such Prepayment after giving effect to such Prepayment (x) no event or
condition has occurred and is continuing, or would result from such
Prepayment, that constitutes a Default or an Event of Default, and (y)
after giving effect to such Prepayment, the Total Revolving Loan Commitment
minus the aggregate principal amount of the Revolving Loans outstanding on
the date of such Prepayment minus the amount of any L/C Obligations
outstanding on the date of such Prepayment shall equal at least
$20,000,000; PROVIDED, HOWEVER, that notwithstanding the foregoing, the
Borrower shall not, and shall not permit any of its Subsidiaries to, make
any Prepayment of any Indebtedness referred to in Section 7.2(h);
(ii) make regularly scheduled or required repayments of
Indebtedness permitted pursuant to Section 7.2; and
(iii) the conversion of the Indebtedness consisting of any
Permitted Convertible Debt in accordance with the terms and conditions
thereof and any settlement pursuant to the terms of any Convertible Bond
Hedge Transactions.
(b) amend, modify or waive, or permit the amendment, modification
or waiver of (i) the Surviving Debt (other than Indebtedness permitted to be
incurred pursuant to Section 7.2(h) or Section 7.2(i)) in any way that would be
materially adverse to the Lenders or (ii) the Permitted Subordinated Debt or the
Subordinated Debt Documents; or
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(c) make any payment in violation of any subordination terms of
any Indebtedness of the Borrower or any of its Subsidiaries; or
(d) make or offer to make any sinking fund payment, payment,
prepayment, redemption, defeasance, purchase or acquisition for value
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying when
due) or otherwise segregate funds with respect to the Convertible Subordinated
Notes other than:
(i) regularly scheduled semi-annual interest payments
required to be made in cash;
(ii) conversions of the Convertible Subordinated Notes into
common stock of the Borrower; and
(iii) the redemption, repurchase or acquisition for value of
Convertible Subordinated Notes, PROVIDED, that (A) the purchase price paid
by the Borrower for such Convertible Subordinated Notes shall not exceed,
in the aggregate after giving effect to such payment and all other payments
made pursuant to Section 7.7(d) hereof and this Section 7.10(d)(iii)
hereof, the Junior Recapitalization Amount, (B) both before and after
giving effect to such redemption, retirement or purchase no Default or
Event of Default shall have occurred and be continuing and (C) after giving
effect to such redemption, repurchase or acquisition for value, no
Revolving Loans shall be outstanding.
Section 7.11 Changes in Business. The Borrower shall not, and shall
not permit any of its Subsidiaries to, enter into any business which is
substantially different from that conducted by the Borrower or such Loan Party,
as the case may be, on the Closing Date after giving effect to the Transactions.
Section 7.12 Certain Restrictions. The Borrower shall not, and shall
not permit any of its Subsidiaries to, enter into or permit to exist any
agreement, instrument or other document which directly or indirectly restricts
the ability of the Borrower or any of its Subsidiaries to (a) enter into
amendments, modifications or waivers of the Loan Documents, (b) sell, transfer
or otherwise dispose of its assets, (c) create, incur, assume or suffer to exist
any Lien upon any of its property, (d) create, incur, assume, suffer to exist or
otherwise become liable with respect to any Indebtedness, (e) make loans or
advances to the Borrower, or (f) pay any Dividend or repay any Indebtedness owed
to the Borrower or any of its Subsidiaries; PROVIDED, that Capitalized Leases or
agreements governing purchase money Indebtedness which contain restrictions of
the types referred to in clauses (b) or (c) with respect to the property covered
thereby shall be permitted; PROVIDED, FURTHER, that the foregoing shall not
apply to restrictions in effect on the Closing Date contained in agreements
governing Surviving Debt
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(other than Indebtedness arising under the Convertible Subordinated Notes) and,
if such Indebtedness is renewed, extended or refinanced, restrictions in the
agreements governing the renewed, extended or refinanced Indebtedness (as
successive renewals, extensions and refinancings thereof) if such restrictions
are no more restrictive in any material respect than those contained in the
agreements governing the Indebtedness being renewed, extended or refinanced and
if such renewals, extensions and refinancings are permitted pursuant to Section
7.2(f).
Section 7.13 Lease Obligations. The Borrower shall not, and shall not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
obligations as lessee:
(a) for the rental or hire of real or personal property in
connection with any sale and leaseback transaction, except:
(i) the Borrower and its Subsidiaries may sell real property
or equipment owned by the Borrower or any of its Subsidiaries on the
Closing Date and simultaneously with such sale become liable with respect
to any operating lease involving such property (each, an "EXISTING PROPERTY
SALE AND LEASEBACK TRANSACTION"), and (ii) the Borrower and its
Subsidiaries may sell real property which the Borrower or any of its
Subsidiaries acquires after the Closing Date for the purpose of building a
Restaurant which the Borrower or such Subsidiary intends to own and
operate, and simultaneously with such sale become liable with respect to
any operating lease involving such property if such sale and leaseback
occurs on or before the date which is twelve (12) months after the date of
acquisition by the Borrower or one of its Subsidiaries of such real
property (each, a "NEW PROPERTY SALE AND LEASEBACK TRANSACTION") PROVIDED,
that:
(1) an Affiliate of the Borrower or any of its
Subsidiaries is not a party to any such Sale and Leaseback Transaction
(except to the extent that the Borrower or any of its Subsidiaries is
the lessee);
(2) the Administrative Agent is provided with fully
executed documentation of each Sale and Leaseback Transaction on or
prior to the closing date of such transaction;
(3) no Default or Event of Default exists on the
closing date of any Sale and Leaseback Transaction or would result
therefrom and the Borrower shall deliver to the Administrative Agent
prior to the closing date of such transaction an officer's certificate
of the chief financial officer of the Borrower certifying thereto;
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(4) the term of each such operating lease shall not be
less than fifteen (15) years, PROVIDED, that the Borrower and its
Subsidiaries may enter into Sale and Leaseback Transactions involving
equipment in an amount not exceeding $5,000,000 in the aggregate where
the term of the operating lease is less than fifteen (15) but greater
than three (3) years; and
(5) the aggregate amount of all property sold after the
Closing Date pursuant to a Sale and Leaseback Transaction shall not
exceed $25,000,000 in the aggregate.
(b) for the rental or hire of other real or personal property of
any kind under leases or agreements to lease including Capitalized Leases except
for leases (including Capitalized Leases) entered into for fair market value in
the ordinary course of business of the Borrower and its Subsidiaries.
Section 7.14 Hedging Agreements. The Borrower shall not, and shall not
permit any of its Subsidiaries to, enter into or remain liable under any Hedging
Agreement, except (a) Interest Rate Agreements, if any, with one or more of the
Lenders, their respective Affiliates, or another counterparty acceptable to the
Administrative Agent pursuant to which the Borrower and its Subsidiaries have
hedged their reasonably estimated interest rate exposure, (b) Hedging Agreements
relating to commodities pursuant to which the Borrower and its Subsidiaries have
hedged their reasonably estimated commodity price exposure and (c) any
Convertible Bond Hedge Transactions.
Section 7.15 Plans. The Borrower shall not, nor shall it permit any
member of its ERISA Controlled Group to, take any action which would increase
the aggregate present value of the Unfunded Benefit Liabilities under all Plans
to an amount in excess of $2,000,000.
Section 7.16 Fiscal Year; Fiscal Quarter. The Borrower shall not, and
shall not permit any of its Subsidiaries to, change its fiscal year or any of
its fiscal quarters.
Section 7.17 Partnerships. The Borrower shall not, and shall not
permit any of its Subsidiaries to, become or remain a general partner in any
general or limited partnership, or permit any of its Subsidiaries to do so,
except for any Subsidiary which is a corporation and the sole assets of which
consist of its interest in such partnership and except with respect to the
partnerships described on Schedule 7.17.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 7.18 Excluded Resales. The Borrower shall not, and shall not
permit any of its Subsidiaries to, acquire, purchase, hold or own any
Restaurants which the Borrower or any such Subsidiaries acquire from a
franchisee with the intent of reselling to the extent the aggregate amount of
Restaurants owned or held by the Borrower and its Subsidiaries would exceed
$20,000,000 at any one time outstanding, such amount to be measured by the
purchase price paid by the Borrower or any such Subsidiaries for such
Restaurants.
Section 7.19 Designated Senior Indebtedness. The Borrower shall not
designate, create or permit to exist any Designated Senior Indebtedness (as
defined in the Convertible Subordinated Note Indenture) other than obligations
arising under the Loan Documents.
Section 7.20 Instruments. The Borrower shall not permit any of its
Subsidiaries to own or hold, directly or beneficially, any Instrument if such
Subsidiary is not a party to a legal, valid and binding Subsidiary Pledge
Agreement.
Section 7.21 [Reserved].
SECTION 8. EVENTS OF DEFAULT
Section 8.1 Events of Default. Each of the following events, acts,
occurrences or conditions shall constitute an Event of Default (each an "EVENT
OF DEFAULT") under this Agreement, regardless of whether such event, act,
occurrence or condition is voluntary or involuntary or results from the
operation of law or pursuant to or as a result of compliance by any Person with
any judgment, decree, order, rule or regulation of any court or administrative
or governmental body:
(a) Failure to Make Payments. The Borrower shall (i) default in
the payment when due of any principal of the Loans or (ii) default, and such
default shall continue unremedied for two (2) or more Business Days, in the
payment when due of any interest on the Loans or in the payment when due of any
Fees or any other amounts owing hereunder.
(b) Breach of Representation or Warranty. Any representation or
warranty made by any Loan Party herein or in any other Loan Document or in any
certificate or statement delivered pursuant hereto or thereto shall prove to be
false or misleading in any material respect on the date as of which made or
deemed made.
(c) Breach of Covenants.
(i) The Borrower shall fail to perform or observe any
agreement, covenant or obligation arising under Section 6.1(f) or Section
7.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(ii) The Borrower shall fail to perform or observe any
agreement, covenant or obligation arising under this Agreement (except
those described in subsections (a), (b) and (c)(i) above), and such failure
shall continue for thirty (30) days.
(iii) Any Loan Party shall fail to perform or observe any
agreement, covenant or obligation arising under any provision of the Loan
Documents other than this Agreement, which failure shall continue after the
end of the applicable grace period, if any, provided therein.
(d) Default Under Other Agreements. Any Loan Party or any of its
Subsidiaries shall default in the payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) of any amount
owing in respect of the Convertible Subordinated Notes or any other Indebtedness
of such Loan Party or any of its Subsidiaries (other than the Obligations) in
the aggregate principal amount of $5,000,000 or more; or any Loan Party or any
of its Subsidiaries shall default in the performance or observance of any
obligation or condition with respect to any such Indebtedness or any other event
shall occur or condition shall exist, if the effect of such default, event or
condition is to accelerate the maturity or cause a mandatory redemption of any
such Indebtedness or to permit the holder or holders thereof, or any trustee or
agent for such holders, to accelerate the maturity or require a redemption or
other repurchase thereof of any such Indebtedness, or any such Indebtedness
shall become or be declared to be due and payable prior to its stated maturity
other than as a result of a regularly scheduled payment; or any such
Indebtedness shall be declared to be due and payable, or shall be required to be
prepaid, redeemed, purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Indebtedness shall be required to be made, in each case
prior to its stated maturity other than as a result of a regularly scheduled
payment.
(e) Bankruptcy, etc. (i) Any Loan Party or any of its
Subsidiaries shall commence a voluntary case concerning itself under the
Bankruptcy Code; or (ii) an involuntary case is commenced against any Loan Party
or any of its Subsidiaries and the petition is not controverted within 10 days,
or is not dismissed within 60 days, after commencement of the case; or (iii) a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of any Loan Party or any of its
Subsidiaries or any Loan Party or any of its Subsidiaries commences any other
proceedings under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to any Loan Party or
any of its Subsidiaries or there is commenced against any Loan Party or any of
its Subsidiaries any such proceeding which remains undismissed for a period of
60 days; or (iv) any order of relief or other order approving any such case or
proceeding is entered; or (v) any Loan Party or any of its Subsidiaries is
adjudicated insolvent or bankrupt; or (vi) any Loan Party or any of its
Subsidiaries suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or (vii) any Loan Party
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
or any of its Subsidiaries makes a general assignment for the benefit of
creditors; or (viii) any Loan Party or any of its Subsidiaries shall fail to
pay, or shall state that it is unable to pay, or shall be unable to pay, its
debts generally as they become due; or (ix) any Loan Party or any of its
Subsidiaries shall call a meeting of its creditors with a view to arranging a
composition or adjustment of its debts; or (x) any Loan Party or any of its
Subsidiaries shall by any act or failure to act consent to, approve of or
acquiesce in any of the foregoing; or (xi) any corporate action is taken by any
Loan Party or any of its Subsidiaries for the purpose of effecting any of the
foregoing.
(f) ERISA. (i) Any Termination Event shall occur, or (ii) any
Plan shall incur an "accumulated funding deficiency" (as defined in Section 412
of the Code or Section 302 of ERISA), whether or not waived, or (iii) the
Borrower or a member of its ERISA Controlled Group shall have engaged in a
transaction which is prohibited under Section 4975 of the Code or Section 406 of
ERISA which could result in the imposition of liability in excess of $2,000,000
on the Borrower or any member of its ERISA Controlled Group, or (iv) the
Borrower or any member of its ERISA Controlled Group shall fail to pay when due
an amount which it shall have become liable to pay to the PBGC, any Plan or a
trust established under Title IV of ERISA, or (v) a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
an ERISA Plan must be terminated or have a trustee appointed to administer any
ERISA Plan, or (vi) the Borrower or a member of its ERISA Controlled Group
suffers a partial or complete withdrawal from a Multiemployer Plan or is in
"default" (as defined in Section 4219(c)(5) of ERISA) with respect to payments
to a Multiemployer Plan, or (vii) a proceeding shall be instituted against the
Borrower or any member of its ERISA Controlled Group to enforce Section 515 of
ERISA and such proceeding shall remain undismissed for 180 days, or (viii) any
other event or condition shall occur or exist with respect to any Plan which
could subject the Borrower or any member of its ERISA Controlled Group to any
tax, penalty or other liability in excess of $2,000,000 or (ix) the aggregate
present value of all post-retirement benefit liabilities of the Borrower and its
Subsidiaries under any "welfare plan" (as defined in Section 3(1) of ERISA),
including, without limitation, Hardee's Retiree Medical Insurance Plan, exceeds
$20,000,000.
(g) Security Documents. Any of the Security Documents shall for
any reason cease to be in full force and effect, or shall cease to give the
Administrative Agent for the benefit of the Lenders the Liens, rights, powers
and privileges purported to be created thereby including, without limitation, a
perfected first priority security interest in, and Lien on, any material part of
the Collateral in accordance with the terms thereof or the Borrower or any of
the Borrower's Subsidiaries party to any Security Document seeks to repudiate
its respective obligations thereunder and the Liens created thereby are
rendered, or the Borrower or any such Subsidiary of the Borrower seeks to render
such Liens, invalid and unperfected.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(h) Guaranty. The Guaranty or any provision thereof shall cease
to be in full force and effect, or any Guarantor or any Person acting by or on
behalf of a Guarantor shall deny or disaffirm all or any portion of such
Guarantor's obligations under such Guaranty.
(i) Change of Control. (i) Any Person or two or more Persons
acting in concert shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the Borrower
(or other securities convertible into such Voting Stock) representing 20% or
more of the combined voting power of all Voting Stock of the Borrower; or (ii)
during any period of up to 24 consecutive months, commencing after the Closing
Date, individuals who at the beginning of such 24-month period were directors of
the Borrower shall cease for any reason to constitute a majority of the board of
directors of the Borrower; or (iii) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall have entered into
a contract or arrangement that, upon consummation, will result in its or their
acquisition of, the power to exercise control over Voting Stock of the Borrower
(or other securities convertible into such securities representing 20% or more
of the combined voting power of all Voting Stock of the Borrower); or (iv) a
Change of Control as defined in the Convertible Subordinated Note Indenture
shall have occurred.
(j) Judgments. One or more judgments or decrees or awards in an
aggregate amount of $5,000,000 or more shall be entered by a court or courts of
competent jurisdiction or in any arbitration proceeding against any Loan Party
or any of its Subsidiaries and (i) any such judgments or decrees or awards shall
not be stayed, discharged, paid, bonded or vacated within 30 days or (ii)
enforcement proceedings shall be commenced by any creditor on any such judgment
or decree or award.
(k) Environmental Matters. (i) Any Environmental Claim shall have
been asserted against any Loan Party or any Environmental Affiliate thereof
which, if determined adversely, could have a Material Adverse Effect, (ii) any
release, emission, discharge or disposal of any Material of Environmental
Concern shall have occurred, and such event could form the basis of an
Environmental Claim against any Loan Party or any Environmental Affiliate
thereof which, if determined adversely, could have a Material Adverse Effect, or
(iii) any Loan Party or its Environmental Affiliate shall have failed to obtain
any Environmental Approval necessary for the management, use, control,
ownership, or operation of its business, property or assets or any such
Environmental Approval shall be revoked, terminated, or otherwise cease to be in
full force and effect, in each case, if the existence of such condition could
have a Material Adverse Effect.
(l) Ownership of Certain Assets. The Borrower and/or its
Subsidiaries shall sell, convey or otherwise transfer or dispose of any material
intellectual property or license agreement owned by or licensed to the Borrower
or any of its Subsidiaries or any material license agreement to which the
Borrower or any of its Subsidiaries is a party other than (A) a
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
sale, conveyance or other transfer (other than a Lien) to a Domestic Subsidiary,
(B) licenses pursuant to Franchise Agreements pledged to the Administrative
Agent pursuant to the Security Documents and (C) any Asset Disposition permitted
by the terms of any of the Loan Documents.
Section 8.2 Rights and Remedies. Upon the occurrence of any Event of
Default described in Section 8.1(e), the Commitments shall automatically and
immediately terminate and the unpaid principal amount of and any and all accrued
interest on the Loans and any and all accrued Fees and other Obligations shall
automatically become immediately due and payable, with all additional interest
from time to time accrued thereon and without presentation, demand, or protest
or other requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and notice of acceleration), all of which are hereby expressly waived by
Borrower, and the obligation of each Lender to make any Loan hereunder shall
thereupon terminate; and upon the occurrence and during the continuance of any
other Event of Default, the Administrative Agent shall at the request, or may
with the consent, of the Required Lenders, by written notice to Borrower, (i)
declare that the Commitments are terminated, whereupon the Commitments and the
obligation of each Lender to make any Loan hereunder shall immediately
terminate, (ii) require the Borrower to Cash Collateralize the L/C Obligations
in an amount equal to the maximum aggregate amount that is, or at any time
thereafter may become, available for drawing under any outstanding Letters of
Credit (whether or not any beneficiary shall have presented, or shall be
entitled at such time to present, the drafts or other documents required to draw
under such Letters of Credit), and (iii) declare the unpaid principal amount of
and any and all accrued and unpaid interest on the Loans and any and all accrued
Fees and other Obligations to be, and the same shall thereupon be, immediately
due and payable with all additional interest from time to time accrued thereon
and without presentation, demand, or protest or other requirements of any kind
(including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and notice of
acceleration), all of which are hereby expressly waived by Borrower.
SECTION 9. THE AGENTS
Section 9.1 Appointment. Each Lender hereby irrevocably designates and
appoints BNP Paribas as the Administrative Agent of such Lender under this
Agreement and each other Loan Document, and each such Lender irrevocably
authorizes BNP Paribas as the Administrative Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and each
other Loan Document, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities on the part of the
Administrative Agent shall be read into this Agreement or otherwise exist
against the Administrative Agent. The provisions of this Section 9
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
are solely for the benefit of the Agents and the Lenders and no Loan Party shall
have any rights as a third party beneficiary or otherwise under any of the
provisions hereof. In performing its functions and duties hereunder and under
the other Loan Documents, the Administrative Agent shall act solely as the agent
of the Lenders and does not assume nor shall be deemed to have assumed any
obligation or relationship of trust or agency with or for any Loan Party or any
of their respective successors and assigns.
Section 9.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement or the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
Section 9.3 Exculpatory Provisions. No Agent shall be (i) liable for
any action lawfully taken or omitted to be taken by it or any Person described
in Section 9.2 under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
under or in connection with, this Agreement or any other Loan Document or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement, or any other Loan Document or for any failure of any Loan
Party to perform their obligations hereunder or thereunder. No Agent shall be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party. This Section is intended solely to govern
the relationship between the Agents, on the one hand, and the Lenders, on the
other.
Section 9.4 Reliance by an Agent. Each Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to any Loan
Party), independent accountants and other experts selected by such Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless the Administrative Agent shall have received an
executed Assignment Agreement in respect thereof. The Administrative Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Required Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
Section 9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Administrative Agent has received notice from a Lender or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
promptly give notice thereof to the Lenders. Subject to the provisions of
Section 10.5, the Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be directed by the Required Lenders;
PROVIDED that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as the Administrative Agent shall deem advisable and in the
best interests of the Lenders.
Section 9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that no Agent, nor any of the Agents' officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by an Agent hereafter taken,
including, without limitation, any review of the affairs of any Loan Party,
shall be deemed to constitute any representation or warranty by such Agent. Each
Lender represents and warrants to each Agent that it has, independently and
without reliance upon any Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, prospects, financial and
other conditions and creditworthiness of the Loan Parties and made its own
decision to make its Loans hereunder and enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon any Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, prospects, financial and other condition and
creditworthiness of the Loan Parties. Except for notices, reports and other
documents expressly required under the Loan Documents to be furnished to the
Lenders by an Agent, such Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, prospects, financial and other condition or
creditworthiness of the Loan Parties which may come into the possession of such
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
Section 9.7 Indemnification. The Lenders agree to indemnify each Agent
and its officers, directors, employees, representatives and agents (to the
extent not reimbursed by the
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Loan Parties and without limiting the obligation of the Loan Parties to do so),
ratably according to their Pro Rata Shares, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (including,
without limitation, the fees and disbursements of counsel for any Agent or such
Person in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not such Agent or such Person
shall be designated a party thereto) that may at any time (including, without
limitation, at any time following the payment of the Obligations) be imposed on,
incurred by or asserted against such Agent or such Person as a result of, or
arising out of, or in any way related to or by reason of, any of the
Transactions or the execution, delivery or performance of any Loan Document or
any other Transaction Document (but excluding any such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful misconduct of such
Agent or such Person as finally determined by a court of competent
jurisdiction); PROVIDED that to the extent indemnification payments made by the
Lenders pursuant to this Section 9.7 are subsequently recovered by an Agent from
or for the account of the Borrower, such Agent shall promptly refund such
previously paid indemnification payments to the Lenders.
Section 9.8 An Agent in its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Loan Parties as though such Agent were not an Agent
hereunder. With respect to Loans made or renewed by it and any Note issued to
it, each Agent shall have the same rights and powers under this Agreement as any
Lender and may exercise the same as though it were not an Agent, and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
Section 9.9 Successor Administrative Agent. The Administrative Agent
may resign as the Administrative Agent upon 30 days' notice to the Borrower and
the Lenders. If the Administrative Agent shall resign as the Administrative
Agent under this Agreement, then the Required Lenders during such 30-day period
shall appoint from among the Lenders a successor administrative agent, whereupon
such successor administrative agent shall succeed to the rights, powers and
duties of the Administrative Agent and the term "Administrative Agent" shall
mean such successor administrative agent, effective upon its appointment, and
the former Administrative Agent's rights, powers and duties as Administrative
Agent shall be terminated, without any other or further act or deed on the part
of such former Administrative Agent or any of the parties to this Agreement or
any holders of the Notes. Notwithstanding anything herein to the contrary, so
long as no Event of Default has occurred and is continuing, each such successor
administrative agent shall be subject to approval by the Borrower, which
approval shall not be unreasonably withheld or delayed. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 9 and Section 10.1 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 9.10 Additional Agents. Except for rights and powers, if any,
expressly reserved under this Agreement to any arranger, bookrunner,
co-syndication agent, or other titled agent named on the cover page of this
Agreement, other than the Administrative Agent (collectively, the "ADDITIONAL
AGENTS"), and except for obligations, liabilities, duties and responsibilities,
if any, expressly assumed under this Agreement by any Additional Agent, no
additional Agent, in such capacity, has any right, power, obligation, liability,
duty or responsibility under this Agreement or under any of the other Loan
Documents. Without limiting the foregoing, no Additional Agent shall have or be
deemed to have a fiduciary relationship with any Lender.
SECTION 10. MISCELLANEOUS
Section 10.1 Payment of Expenses, Indemnity, etc. The Borrower shall:
(a) whether or not the transactions hereby contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses of the Agents
in connection with the negotiation, preparation, execution and delivery of the
Loan Documents, the commitment letter related thereto and the Fee Letter, the
syndication of the Loans and the closing of the Transactions and the documents
and instruments referred to therein, in connection therewith, the creation,
perfection or protection of the Administrative Agent's Liens in the Collateral
(including, without limitation, fees and expenses for lien searches and filing
and recording fees and, including, without limitation, fees and expenses
incurred in connection with the transactions contemplated by Section 2.21), and
any amendment, waiver or consent relating to any of the Loan Documents
(including, without limitation, as to each of the foregoing, the reasonable fees
and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel
to the Administrative Agent and any other attorneys and legal assistants
retained by the Administrative Agent and allocated costs of internal counsel and
legal assistants) and of the Administrative Agent and each Lender in connection
with the preservation of rights under, and enforcement of, the Loan Documents
and the documents and instruments referred to therein or in connection with any
restructuring or rescheduling of the Obligations (including, without limitation,
the reasonable fees and disbursements of counsel for the Administrative Agent
and for each of the Lenders);
(b) pay, and hold the Administrative Agent and each of the
Lenders harmless from and against, any and all present and future stamp, excise
and other similar taxes with respect to the foregoing matters and hold the
Administrative Agent and each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Lender) to pay such taxes; and
(c) indemnify each Agent, the Financial Advisor and each Lender,
and each of their Affiliates and their officers, directors, employees,
representatives, trustees,
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
attorneys and agents (each an "INDEMNITEE") from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature whatsoever (including, without limitation, the reasonable fees
and disbursements of counsel for such Indemnitee) that may at any time
(including, without limitation, at any time following the payment of the
Obligations) be imposed on, asserted against or incurred by any Indemnitee as a
result of, or arising out of, or in any way related to or by reason of, or in
connection with the preparation for a defense of, any investigation, litigation
or proceeding arising out of, related to or in connection with (i) any of the
Transactions or the execution, delivery or performance of any Loan Document or
any other Transaction Document (including, without limitation, any actual or
proposed use by the Borrower or any Subsidiary of the Borrower of the proceeds
of any Loan or Letter of Credit), (ii) any violation by any Loan Party or its
Environmental Affiliate of any applicable Environmental Law, (iii) any
Environmental Claim arising out of the management, use, control, ownership or
operation of property or assets by any of the Loan Parties or any of their
Environmental Affiliates, including, without limitation, all on-site and
off-site activities involving Materials of Environmental Concern, (iv) the
breach of any environmental representation or warranty set forth in Section
5.19, (v) the grant to the Administrative Agent and the Lenders of any Lien in
any property or assets of any of the Loan Parties or any stock or other equity
interest in any of the Loan Parties, and (vi) the exercise by the Administrative
Agent and the Lenders of their rights and remedies (including, without
limitation, foreclosure) under any agreements creating any such Lien (but
excluding, as to any Indemnitee, any such losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements incurred solely by reason of the gross negligence or willful
misconduct of such Indemnitee as finally determined by a court of competent
jurisdiction). The Borrower's obligations under this Section shall survive the
termination of this Agreement and the payment of the Obligations.
Section 10.2 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Lender and each of such Lender's Affiliates is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Loan Party or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final) and any other indebtedness at any time held or owing by such Lender or
such Affiliate (including, without limitation, by branches and agencies of such
Lender or such Affiliate wherever located) to or for the credit or the account
of any Loan Party against and on account of the Obligations of the Loan Parties
to such Lender or such Affiliate under this Agreement or under any of the other
Loan Documents, including, without limitation, all interests in Obligations
purchased by such Lender pursuant to Section 10.7, and all other claims of any
nature or description arising out of or connected with this Agreement or any
other Loan Document, irrespective of whether or not such Lender or such
Affiliate shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 10.3 Notices. Except as otherwise expressly provided herein,
all notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy, telex, or cable
communication), and shall be deemed to have been duly given or made when
delivered by hand, or five days after being deposited in the United States mail,
postage prepaid, or, in the case of telex notice, when sent, answerback
received, or, in the case of telecopy notice, when sent, or, in the case of a
nationally recognized overnight courier service, one Business Day after delivery
to such courier service, addressed, in the case of each party hereto, at its
address specified opposite its signature below or on the appropriate Assignment
Agreement, or to such other address as may be designated by any party in a
written notice to the other parties hereto, PROVIDED that notices and
communications to the Administrative Agent shall not be effective until received
by the Administrative Agent.
Section 10.4 Successors and Assigns; Participation; Assignments.
(a) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Borrower, the Lenders, the Agents, all future
holders of the Notes and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender. No Lender may
participate, assign or sell any of its Credit Exposure (as defined in clause (b)
below) except as required by operation of law, in connection with the merger,
consolidation or dissolution of any Lender or as provided in this Section 10.4.
(b) Participation. Any Lender may at any time sell to one or more
Persons (each a "PARTICIPANT") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender and or any
other interest of such Lender hereunder (in respect of any such Lender, its
"CREDIT EXPOSURE"). Notwithstanding any such sale by a Lender of participating
interests to a Participant, such Lender's rights and obligations under this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Note for all purposes under this Agreement (except as expressly provided below),
and the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. The Borrower agrees that if any Obligations
are due and unpaid, or shall have been declared or shall have become due and
payable upon the occurrence and during the continuance of an Event of Default,
each Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement or any Note PROVIDED, that such right of
setoff shall be subject to the obligations of such Participant to share with the
Lenders, and the Lenders agree to share with such Participant, as provided in
Section
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
10.7. The Borrower also agrees that each Participant shall be entitled to the
benefits of Sections 2.16, 2.17, 2.18 and 2.19, PROVIDED, that no Participant
shall be entitled to receive any greater amount pursuant to such Sections than
the transferor Lender would have been entitled to receive in respect of the
amount of the participating interest transferred by such transferor Lender to
such Participant had no such transfer occurred. Each Lender agrees that any
agreement between such Lender and any such Participant in respect of such
participating interest shall not restrict such Lender's right to agree to any
amendment, supplement, waiver or modification to this Agreement or any other
Loan Document, except where the result of any of the foregoing would be to
extend the final maturity of any Obligation or any regularly scheduled
installment thereof or reduce the rate or extend the time of payment of interest
thereon or reduce the principal amount thereof or release all or substantially
all of the Collateral (except as expressly provided in the Loan Documents).
(c) Assignments. Any Lender may, in accordance with applicable
law, at any time assign to any Lender or any affiliate thereof, including,
without limitation, a Lender Affiliate or, with the consent of the
Administrative Agent, which consent shall not be unreasonably withheld, to any
other Person (each an "ASSIGNEE") all or any part of its Credit Exposure;
PROVIDED, that in the case of any such assignment to a Person that is not
another Lender or an affiliate of the assigning Lender, each such assignment
shall be (i) except in the case of an assignment of the entire remaining amount
of the Lender's Credit Exposure, (A) for a Credit Exposure not less than
$5,000,000 in the case of Revolving Loans (or such lesser amount agreed to by
the Administrative Agent) and (B) for Credit Exposure not less than $1,000,000
in the case of Term Loans (or such lesser amount agreed to by the Administrative
Agent), PROVIDED, that concurrent assignments of such Lender's Term Loan Credit
Exposure to such Person and the affiliates of such Person, including, without
limitation, Lender Affiliates of such Person, may be for lesser amounts so long
as the aggregate amount of such assignments are not less than $1,000,000 (or
such lesser amount agreed to by the Administrative Agent), (ii) to an Assignee
approved in writing by the Administrative Agent, which approval shall not be
unreasonably withheld and (iii) in the case of Revolving Loans, so long as no
Default or Event of Default shall have occurred and be continuing, to an
Assignee approved by the Borrower, which approval shall not be unreasonably
withheld. The Borrower, the Administrative Agent and the Lenders agree that to
the extent of any assignment the Assignee shall be deemed to have the same
rights and benefits under the Loan Documents and the same rights of setoff and
obligation to share pursuant to Section 10.7 as it would have had if it were a
Lender hereunder.
(d) Assignment Requirements. Any Lender may at any time and from
time to time assign to one or more Assignees all or any part of its Credit
Exposure pursuant to a supplement to this Agreement, substantially in the form
of Exhibit I hereto (an "ASSIGNMENT AGREEMENT"), executed by such Assignee, such
transferor Lender, the Administrative Agent and, if required pursuant to clause
(iii) of Section 10.4(c) above, the Borrower. Upon (i) such execution of such
Assignment Agreement, (ii) delivery to the Administrative Agent of any consent
required pursuant to Section 10.4(c) above and a copy of the Assignment
Agreement and
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(iii) payment of a $3,500 fee to the Administrative Agent for processing of such
assignment, and subject to acceptance and recording of such Assignment Agreement
pursuant to subsection (h) below, such assignment shall become effective on the
effective date specified in such Assignment Agreement, which effective date
shall be at least five (5) Business Days after delivery of such Assignment
Agreement (or such shorter period agreed to by the Administrative Agent), such
transferor Lender shall be released from its obligations hereunder to the extent
of such assignment and such Assignee shall for all purposes be a Lender party to
this Agreement and shall have all the rights and obligations of a Lender under
this Agreement to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Administrative
Agent shall be required. Such Assignment Agreement shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Assignee as a Lender and the resulting adjustment of the
Commitments, if any, arising from the purchase by such Assignee of all or a
portion of the Credit Exposure of such transferor Lender.
(e) Disclosure of Information. The Borrower authorizes each
Lender to disclose to any Participant or Assignee (each, a "TRANSFEREE") and any
prospective Transferee any and all financial and other information in such
Lender's possession concerning the Borrower which has been delivered to such
Lender by the Borrower pursuant to this Agreement or which has been delivered to
such Lender by the Borrower in connection with such Lender's credit evaluation
of the Borrower prior to entering into this Agreement.
(f) Pledges by Lenders. Notwithstanding any other provision set
forth in this Agreement, any Lender may at any time assign and pledge a security
interest in all or any portion of its rights under this Agreement to secure the
obligations of such Lender, including, without limitation, any assignment or
pledge to secure obligations to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank; PROVIDED, that no such assignment or pledge shall release the
assigning Lender from its obligations hereunder or substitute any such assignee
or pledgee for such Lender as a party hereto.
(g) Transfer and Exchange of Notes. Promptly after the
consummation of any transfer to an Assignee pursuant hereto, the transferor
Lender, the Administrative Agent and the Borrower shall make appropriate
arrangements so that any Notes held by such transferor Lender shall be
surrendered to the Borrower for cancellation, one or more replacement Notes in
exchange therefor shall be issued to such transferor Lender, and one or more new
Notes shall be issued to such Assignee, in each case in notional amounts
reflecting such transfer. Each such new Revolving Note and new Term Note shall
be payable to the Assignee and shall be substantially in the form of Exhibits A
and B, respectively.
(h) Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at its address referred to
on its signature page hereto
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
a copy of each Assignment Agreement delivered to it and a register (the
"REGISTER") for the recordation of the names and addresses of the Lenders and
the Commitments of, and the principal amount of the Loans and the making of
payments with respect to any Letter of Credit owing to, each Lender pursuant to
the terms hereof from time to time. The entries in the Register shall be, to the
extent permitted by law, prima facie evidence of the existence and amounts of
the obligations of the Borrower therein recorded, and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as the owner
of the Loans recorded therein for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower at any reasonable time and from time to time upon
reasonable prior notice. Upon receipt of a duly executed Assignment Agreement,
and satisfaction of the conditions set forth in Section 10.4(c) and Section
10.4(d), the Administrative Agent shall accept such Assignment Agreement and
record the information contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
Section 10.5 Amendments and Waivers.
(a) Neither this Agreement, any Note, any other Loan Document
(other than any Interest Rate Agreement) to which the Borrower or any other Loan
Party is a party nor any terms hereof or thereof may be amended, supplemented,
modified or waived except in accordance with the provisions of this Section. The
Administrative Agent (with the consent of the Required Lenders) and the Borrower
(or such other Loan Party, as the case may be) may, from time to time, enter
into written amendments, supplements, modifications or waivers for the purpose
of adding, deleting, changing or waiving any provisions to this Agreement, the
Notes, or the other Loan Documents to which the Borrower or such other Loan
Party is a party, PROVIDED, that no such amendment, supplement, modification or
waiver shall
(i) extend the Revolving Loan Maturity Date or the Term Loan
Maturity Date, extend the time for payment of any installment, fee or
required prepayment of any Obligations, reduce the rate or extend the time
of payment of interest on any Obligations, reduce the principal amount of
any Obligations, reduce the amount of any scheduled payment, reduce any fee
payable to the Lenders hereunder, change the amount of any Commitment of
any Lender, consent to or permit the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement or any other Loan
Document, modify any provision hereof providing for the pro rata sharing of
payments, or in each case without the written consent of all the Lenders
directly affected (whose consent shall be required for any such amendment,
modification, termination or waiver in addition to that of the Required
Lenders);
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(ii) release ▇▇▇▇ ▇▇▇▇▇▇▇ Enterprises, Inc., Hardee's or any
Subsidiary of Hardee's (other than any such Subsidiary which is an
Immaterial Subsidiary), from the Guaranty and the other applicable Security
Documents (including the release of such Loan Party's stock certificates
from the Borrower Pledge Agreement or the Subsidiary Pledge Agreement, as
applicable), in each case without the written consent of all of the
Lenders; or
(iii) amend, modify or waive any provision of Section 9 or
any other provision of any Loan Document if the effect thereof is to affect
the rights or duties of the Administrative Agent or the Issuing Bank,
without the written consent of the Administrative Agent or the Issuing
Bank, as the case may be.
(iv) waive a Default or Event of Default without the consent
of the Revolving Lenders whose Pro Rata Shares, in the aggregate, are
greater than 50% and the Required Lenders.
(v) (a) change in any manner the definition of "Pro Rata
Share" or the definition of "Required Lenders" (except for any changes
resulting solely from an increase in the aggregate amount of the
Commitments approved by the Required Lenders), (b) change in any manner any
provision of this Agreement that, by its terms, expressly requires the
approval or concurrence of all Lenders, (c) increase the maximum duration
of Interest Periods permitted hereunder, (d) amend, modify or waive Section
2.12 or 2.13 hereof in a manner that would alter the application of any
prepayment of the Obligations or (e) change in any manner or waive the
provisions contained in Section 8.1(a), this Section 10.5 or Section 10.7,
in each case without the written consent of all of the Lenders.
(vi) release or subordinate any Lien granted in favor of the
Administrative Agent with respect to all or substantially all of the
Collateral or release all or substantially all of the Guarantors from their
obligations under the Guaranty, in each case other than in accordance with
Section 10.5(a)(ii) or the other terms of the Loan Documents, without the
written consent of all of the Lenders, PROVIDED that the release from the
Guaranty and the other applicable Security Documents (including the release
of such Loan Party's stock certificates from the Borrower Pledge Agreement
or the Subsidiary Pledge Agreement, as applicable) of any Subsidiary of the
Borrower (other than a Subsidiary of Hardee's) with assets of less than
$10,000,000 (as determined in accordance with GAAP) shall not require the
consent of any of the Lenders in any of the foregoing circumstances if (x)
such Subsidiary (a "SOLD GUARANTOR") is being released from the Guaranty
because all or a portion of the assets of such Sold Guarantor are being
sold or otherwise disposed of in an Asset Disposition or the Equity
Interests of such Sold Guarantor are being sold or otherwise disposed of or
an issuance of Equity Interests
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
of such Sold Guarantor is commenced, and immediately after giving effect to
such sale, other disposition or issuance of Equity Interests and as a
result of such sale, other disposition or issuance of Equity Interests,
such Sold Guarantor is no longer a Subsidiary of the Borrower and (y) any
such Asset Disposition or sale, other disposition or issuance of Equity
Interests is otherwise permitted and commenced in accordance with the terms
of this Agreement (and the Administrative Agent is hereby authorized by the
Lenders to execute and deliver to the Borrower all such documents
evidencing any such release).
Any such amendment, supplement, modification or waiver shall apply to each of
the Lenders equally and shall be binding upon the Borrower, the Lenders, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the Borrower, the Lenders and the Administrative Agent shall be restored
to their former position and rights hereunder and under the outstanding Notes,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing, but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. Notwithstanding the
foregoing, (i) the Fee Letter may be amended or otherwise modified in a writing
executed by only the parties thereto and (ii) a Letter of Credit may be amended
in accordance with Section 3.1(f).
Any waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it was given. No failure or delay by the
Administrative Agent, any Lender or the Issuing Bank in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No notice to or demand on the Borrower in any case shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.5 shall be binding upon each Lender
at the time outstanding, each future Lender and, if signed by the Borrower, the
Borrower. Without limiting the generality of the foregoing, the making of a Loan
or the issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at such time.
(b) Each of the Lenders agrees that in the event that such Lender
is requested to consent to any amendment, supplement, modification or waiver of
any term or condition of or with respect to this Agreement or any other Loan
Document, the effectiveness of which requires the consent of all of the Lenders,
the Required Lenders, the affected Lenders or any other identified group of
Lenders pursuant to the first proviso of Section 10.5(a) hereof, and such Lender
shall fail or refuse to give such consent, such Lender (the "AFFECTED LENDER")
shall be obliged, at the request of the Borrower and with the consent of the
Administrative Agent,
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
within three Business Days of such request to assign all of its interests,
rights and obligations hereunder and under the other Loan Documents to (i)
another Lender or (ii) another qualified financial institution nominated by the
Administrative Agent and reasonably acceptable to the Borrower (the "REPLACEMENT
LENDER"), and willing to participate in this Agreement through the Final
Maturity Date in the place of such Affected Lender; PROVIDED that the Affected
Lender receives payment in full, pursuant to an Assignment Agreement, of an
amount equal to such Lender's Pro Rata Share of all unpaid principal and
interest owing to the Lenders and all accrued but unpaid fees and other costs
and expenses payable with respect to its Pro Rata Share. The Administrative
Agent is irrevocably appointed as attorney-in-fact to execute any such
Assignment Agreement if the Affected Lender fails to execute same. The
Administrative Agent shall give written notice to the Borrower of any assignment
pursuant to this Section 10.5(b).
Section 10.6 No Waiver; Remedies Cumulative. No failure or delay on
the part of an Agent or any Lender or any holder of a Note in exercising any
right, power or privilege hereunder or under any other Loan Document and no
course of dealing between any Loan Party and an Agent or any Lender or the
holder of any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Loan Document preclude any other or further exercise thereof of the exercise of
any other right, power or privilege hereunder or thereunder. The rights and
remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which an Agent or any Lender or the holder of any Note would
otherwise have. No notice to or demand on any Loan Party in any case shall
entitle any Loan Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agent, the Lenders or the holder of any Note to any other or further action in
any circumstances without notice or demand.
Section 10.7 Sharing of Payments. Each of the Lenders agrees that if
it should receive any amount hereunder (whether by voluntary payment, by
realization upon security, by the exercise of the right of setoff or banker's
lien, by counterclaim or cross action, by the enforcement of any right under the
Loan Documents, or otherwise) which is applicable to the payment of any
Obligations, of a sum which with respect to the related sum or sums received by
other Lenders is in a greater proportion than the total of such Obligation then
owed and due to such Lender bears to the total of such Obligation then owed and
due to all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in such Obligations owing to such
Lenders in such amount as shall result in a proportional participation by all of
the Lenders in such amount; PROVIDED that if all or any portion of such excess
amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
Section 10.8 Application of Collateral Proceeds. The Administrative
Agent shall, unless otherwise specified at the direction of the Required Lenders
which direction shall be
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
consistent with the last sentence of this Section 10.8, apply all proceeds of
Collateral in the following order:
(A) first, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the Administrative Agent;
(B) second, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the Co-Syndication
Agents, the Lenders and the Issuer;
(C) third, to pay interest due in respect of the Loans
and L/C Obligations;
(D) fourth, to the ratable payment of principal
outstanding on the Loans, Obligations for unreimbursed drawings under all
Letters of Credit and net termination amounts payable in respect of Rate
Hedging Obligations (with the order of application to the installments of
any particular Loan, Obligation for any unreimbursed drawing under any
Letter of Credit or net termination amount payable in respect of Rate
Hedging Obligation to be determined by the Administrative Agent in its sole
discretion);
(E) fifth, to provide required cash collateral if any
pursuant to Section 8.2; and
(F) sixth, to the ratable payment of all other
Obligations.
The order of priority set forth in this Section 10.8 and the related provisions
of this Agreement are set forth solely to determine the rights and priorities of
the Agents and the Lenders as among themselves. The order of priority set forth
in clauses (B) through (F) of this Section 10.8 may at any time and from time to
time be changed with the consent of 100% of the Lenders without necessity of
notice to or consent of or approval by the Borrower, or any other Person. The
order of priority set forth in clause (A) of this Section 10.8 may be changed
only with the prior written consent of the Administrative Agent.
Section 10.9 Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS (WITHOUT
GIVING EFFECT TO THE
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW TO THE EXTENT SUCH PRINCIPLES
WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN THE STATE
OF ILLINOIS).
(b) Any legal action or proceeding with respect to this Agreement
or any other Loan Document and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of Illinois or of the
United States of America for the Northern District of Illinois, and, by
execution and delivery of this Agreement, the Borrower hereby accepts for itself
and in respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and appellate courts. The Borrower
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, the Borrower at its address set
forth opposite its signature below. The Borrower hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Loan Document brought in the courts referred to above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum. Nothing herein shall affect the right of the
Administrative Agent, any Lender or any holder of a Note to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Borrower in any other jurisdiction.
Section 10.10 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
Section 10.11 Financial Advisor. The Borrower and each Lender agrees
and acknowledges that the Administrative Agent may, in its sole discretion, from
time to time retain a financial advisor (the "FINANCIAL ADVISOR") for the
purpose of advising the Administrative Agent and the Lenders as to the financial
condition of the Borrower and its Subsidiaries and such other matters related to
the facility provided and contemplated hereunder as the Administrative Agent and
the Lenders may desire. The Borrower agrees to pay all reasonable fees, costs
and out-of-pocket expenses of the Financial Advisor in connection with the
performance of its duties under this Section 10.11 and to indemnify the
Financial Advisor in accordance with Section 10.1(c) hereof.
Section 10.12 Amendment and Restatement. This Agreement amends and
restates in its entirety the Original Credit Agreement. Upon the effectiveness
of this Agreement, the terms and provisions of the Original Credit Agreement
shall, subject to this Section 10.12, be superseded hereby. Notwithstanding the
amendment and restatement of the Original Credit Agreement by this Agreement,
the Borrower shall continue to be liable to the Lenders party to
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
the Original Credit Agreement and the Administrative Agent with respect to
agreements on the part of the Borrower under the Original Credit Agreement to
indemnify any of such Lenders or the Administrative Agent in connection with
events or conditions arising or existing prior to the date hereof, including,
but not limited to, those events and conditions set forth in Section 10 thereof.
This Agreement is given in substitution for the Original Credit Agreement. Upon
the effectiveness of this Agreement, each reference to the Original Credit
Agreement in any other document, instrument or agreement executed and/or
delivered in connection therewith shall mean and be a reference to this
Agreement. This Agreement amends, restates and supersedes only the Original
Credit Agreement. This Agreement is not a novation. Nothing contained herein or
in any of the other Loan Documents, unless expressly herein or therein stated to
the contrary, is intended to amend, modify or otherwise affect any other
instrument, document or agreement executed and/or delivered in connection with
the Original Credit Agreement. The principal amounts of Loans outstanding under
the Original Credit Agreement immediately prior to giving effect to this
Agreement to each Lender that is a party thereto shall be deemed to be Loans
made by that Lender hereunder. Each Letter of Credit issued under the Original
Credit Agreement and outstanding immediately prior to giving effect to this
Agreement shall be deemed to be a Letter of Credit hereunder. To the extent
necessary, the Administrative Agent shall reallocate such outstanding Revolving
Loans and the participation interests in such outstanding Letters of Credit
ratably among the Revolving Lenders after giving effect to this Agreement so
that each Revolving Lender's Pro Rata Share of such Letters of Credit is based
on the Total Revolving Loan Commitment hereunder.
Section 10.13 Headings Descriptive. The headings of the several
Sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
Section 10.14 Marshalling; Recapture. Neither the Administrative Agent
nor any Lender shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor of
any Loan Party or any other party or against or in payment of any or all of the
Obligations. To the extent any Lender receives any payment by or on behalf of
any Loan Party, which payment or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
such Loan Party or its estate, trustee, receiver, custodian or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then to the extent of such payment or repayment, the obligation or part thereof
which has been paid, reduced or satisfied by the amount so repaid shall be
reinstated by the amount so repaid and shall be included within the liabilities
of such Loan Party to such Lender as of the date such initial payment, reduction
or satisfaction occurred.
Section 10.15 Severability. In case any provision in or obligation
under this Agreement or the Notes or the other Loan Documents shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 10.16 Independence of Covenants. All covenants hereunder shall
be given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall
not avoid the occurrence of a Default or Event of Default if such action is
taken or condition exists.
Section 10.17 Survival. All indemnities set forth herein including,
without limitation, in Sections 2.16, 2.17, 2.18, 2.19, 9.7 and 10.1 shall
survive the execution and delivery of this Agreement and the Notes and the
making and repayment of the Loans hereunder.
Section 10.18 Domicile of Loans. Each Lender may transfer and carry
its Loans at, to or for the account of any branch office, subsidiary or
affiliate of such Lender.
Section 10.19 Limitation of Liability. No claim may be made by any
Loan Party or any other Person against any Agent or any Lender or the
Affiliates, directors, officers, employees, attorneys or agent of any of them
for any special, indirect, consequential or punitive damages in respect of any
claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement or any other
Transactions, or any act, omission or event occurring in connection therewith;
and each Loan Party hereby waives, releases and agrees not to ▇▇▇ upon any claim
for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
Section 10.20 Calculations; Computations. The financial statements to
be furnished to the Administrative Agent and the Lenders pursuant hereto shall
be made and prepared in accordance with GAAP consistently applied throughout the
periods involved and consistent with GAAP as used in the preparation of the
financial statements referred to in Section 5.5, and, except as otherwise
specifically provided herein, all computations determining compliance with
Section 7.1 hereof shall utilize GAAP.
Section 10.21 WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE BORROWER, THE AGENTS 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 AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Section 10.22 References. Unless otherwise expressly specified herein,
all references to "Article," "Section," "Schedule," or "Exhibit" shall mean
articles and sections of, and schedules and exhibits to, this Agreement.
Section 10.23 USA PATRIOT Act. Each Lender hereby notifies the
Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "PATRIOT ACT"), it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Patriot Act.
Section 10.24 Waiver and Acknowledgment. Subject to the terms and
conditions set forth herein, the Administrative Agent and each Lender hereby
waive the following:
(a) Any Event of Default pursuant to Section 8.1(b) of the
Credit Agreement resulting from any failure by the Borrower to prepare the
financial statements of the Borrower for the fiscal year ended January 30, 2006
("2006 FINANCIAL STATEMENTS") in accordance with GAAP consistently applied and
any failure of such financial statements to fairly present the financial
condition of the Borrower as of the respective dates thereof as required by
Section 5.5 of the Credit Agreement solely to the extent that such failure
relates to or otherwise is the subject of adjustments, amendments and/or
restatements of the 2006 Financial Statements in respect of an overstatement of
net income resulting from an overstatement of "income tax benefit" by
approximately $16,000,000 (the "RESTATEMENT");
(b) Any Event of Default pursuant to Section 8.1(b) of the
Credit Agreement resulting from any non-compliance with Sections 5.5 and 5.17 of
the Credit Agreement with respect to or in connection with the 2006 Financial
Statements and certain other reports and certificates as to or in connection
with the financial information and/or computations delivered by the Borrower
during or otherwise with respect to the fiscal year ended January 30, 2006
solely to the extent related to or resulting from the Restatement;
(c) Any Event of Default pursuant to Section 8.1(c)(i) of the
Credit Agreement resulting from any failure of the Borrower to furnish to the
Administrative Agent within one Business Day after a Loan Party obtained
knowledge thereof notice of the occurrence of any Default or Event of Default,
together with a certificate of an Authorized Officer of the Borrower specifying
the nature and period of existence thereof and the Borrower's proposed response
thereto, as required by Section 6.1(f) of the Credit Agreement, solely to the
extent related to or resulting from the Restatement;
(d) Any Event of Default pursuant to Section 8.1(c)(ii) of the
Credit Agreement resulting from any failure of the Borrower to deliver to the
Administrative Agent audited financial statements of the Borrower in accordance
with GAAP as required by Section 4.1(z) of the Credit Agreement solely to the
extent related to or resulting from the Restatement; and
(e) Any Event of Default pursuant to Section 8.1(c)(ii) of the
Credit Agreement resulting from any failure of the Borrower to keep proper books
of record and account with full, true and correct entries and in conformity with
GAAP as required by Section 6.2 of the Credit Agreement solely to the extent
relating to or resulting from the Restatement.
(Signature Pages Follow)
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
CKE RESTAURANTS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Print Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
BNP PARIBAS,
as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ III
------------------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇ III
Title: MANAGING DIRECTOR
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: DIRECTOR
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇ III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
BNP Paribas
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
BNP PARIBAS,
as an Issuing Bank and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ III
------------------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇ III
Title: MANAGING DIRECTOR
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: DIRECTOR
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇ III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
BNP Paribas
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
CITIGROUP GLOBAL MARKETS, INC.,
as Co-Syndication Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
BANK OF AMERICA, N.A.,
as Co-Syndication Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
[NAME OF LENDER]
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
Address:
-------------------------------
-------------------------------
Attn:
-------------------------
Telephone:
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Telecopy:
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