SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest
Event Reported): November 22, 1996
CHECKERS DRIVE-IN RESTAURANTS, INC.
----------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-19649 58-1654960
- ---------------------------- ------------ -------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
600 Cleveland Street, 8th Floor
Clearwater, Florida 34615
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 813-441-3500
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<PAGE>
Item 5. Other Events.
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Change in Primary Lender Group
- ------------------------------
On November 22, 1996, Checkers Drive-In Restaurants, Inc. ("Checkers")
entered into an Amended and Restated Credit Agreement (the "Restated Credit
Agreement") which restructured its primary debt with its new senior secured
lenders, who acquired the debt on November 14, 1996. The new lender group is led
by CKE Restaurants, Inc. ("CKE") which, together with its affiliates Fidelity
National Financial, Inc., William P. Foley, II, and Carl L. Karcher, acquired
and holds approximately 55.8% of the approximately $35.8 million of outstanding
debt due under the Restated Credit Agreement. The new lender group also includes
KCC Delaware, a wholly-owned subsidiary of Giant Group, Ltd. ("Giant Group"),
The Travelers Indemnity Company, Burt Sugarman, The Galileo Fund, L.P.,
Canpartners Investments IV, LLC, and Foothill Capital Corporation. The Galileo
Fund, L.P., Canpartners Investments IV, LLC, and Foothill Capital Corporation
were three of the four investment companies that previously owned all of the
debt.
CKE is the parent of Carl Karcher Enterprises, Inc., Casa Bonita,
Incorporated and Summit Family Restaurants, Inc. Burt Sugarman is the Chairman
of the Board, President and CEO of Giant Group and Chairman of the Board of
Rally's Hamburgers, Inc. ("Rally's"). Giant Group and CKE (together with its
affiliate Fidelity National Financial, Inc.) are controlling stockholders of
Rally's. CKE and Rally's, directly or indirectly, own, franchise or license over
1400 restaurants.
Pursuant to the terms of the Restated Credit Agreement, the term of the
Agreement has been extended for an additional year to July 31, 1999. The
interest rate on the outstanding indebtedness has been fixed at 13.0%. The
principal repayment schedule has been revised to require no principal payments
until the fifth period of fiscal 1997. For periods five through eleven in fiscal
1997, principal payments of $200,000 per period will be required. For periods
twelve in fiscal 1997 through period three in fiscal 1998, the required
principal payments will be the greater of $275,000 per period or 50% of
consolidated cash flow for the previous period, and for periods four of fiscal
1998 through the end of the term of the loan, the required principal payments
will be the greater of $350,000 per period or 60% of consolidated cash flow for
the previous period. In addition to standard financial covenants, the Restated
Credit Agreement requires Checkers to have a minimum amount of consolidated
earnings before interest, taxes, depreciation and amortization (EBITDA) at the
end of each period, beginning at $625,000 in the first period of fiscal 1997, $1
million in period 2, $1.25 million for periods 3 through 6, $1.3 million for
periods 7 through 9, $2 million for periods 10 through 13, and $2.75 million for
each period thereafter. It also limits capital expenditures to $4 million per
year, unless otherwise approved by the Board of Directors of Checkers.
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<PAGE>
The new lender group agreed to eliminate a $4.0 million restructuring fee
that had been demanded by the prior lending group as a condition to their
restructuring of the loan, which fee had been agreed to by Checkers, as well as
up to $2 million that could have been payable by Checkers under the prior loan
agreement if Checkers had not made certain principal prepayments during the term
of the loan.
In connection with the restructuring, Checkers was required to issue
warrants (the "Warrants") to the members of the new lender group to purchase an
aggregate of 20 million shares of Checkers common stock for $0.75 per share,
which was the approximate market price of the common stock prior to the
announcement of the transfer of the debt. The Warrants are exercisable at any
time until November 22, 2002. Checkers is obligated to register the common stock
issuable under the Warrants within six months and to maintain such registration
for the life of the Warrants. The holders of the Warrants also have other
registration rights relating to the common stock to be issued under the
Warrants. The Warrants contain customary antidilution provisions. The warrants
to purchase 150,000 shares of Checkers common stock for $2.69 per share, which
were issued in April 1995 to Checkers, prior bank lending group under the prior
loan agreement, were cancelled.
The new lenders also agreed to provide to Checkers a short-term revolving
line of credit of up to $2.5 million and to guarantee the full subscription of a
$10 million rights offering to be made by Checkers to the holders of its common
stock and the holders of the Warrants, on a pro rata basis as if the Warrants
had been exercised for common stock prior to the rights offering. Pursuant to
the rights offering, Checkers will distribute to its stockholders and the
holders of the Warrants rights to acquire shares of Checkers common stock for
$10 million upon terms to be determined by the Board of Directors. The new
lender group has agreed to purchase whatever shares are not purchased by
Checkers' stockholders. Borrowings under the revolving line of credit will bear
interest at an annual rate of 13% and will be due on the earlier of March 22,
1997, or the consummation of the rights offering. The term of the revolving line
of credit can be extended by Checkers for up to three months, by issuing to the
lending group for each one-month extension additional warrants to purchase
333,333 shares of Checkers common stock at an exercise price equal to 90% of
the average closing price of the common stock over the 30-day period ending on
the last day of the applicable period before giving effect to the extension.
These additional warrants will have the same terms as the Warrants.
Under the terms of the Restated Credit Agreement, Checkers can retain 50%
of the proceeds from sales of assets and use the same for general corporate
purposes, although sales of assets in excess of $250,000 in any transaction or
series of related transactions have to be approved in advance by two-thirds in
interest of the new lender group. The remaining 50% of sales proceeds must be
used to pay down the indebtedness outstanding under the Restated Credit
Agreement, but all payments will be applied against the payments due under the
Agreement in order of their maturity.
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<PAGE>
Election of Chairman of the Board; Additions to Board of Directors
- ------------------------------------------------------------------
On November 22, 1996, Checkers' Board of Directors elected Frederick E.
Fisher, one of its existing Board members, as Chairman. In addition, in
connection with the restructuring of its primary debt as described above, the
Board increased its membership to seven and elected three new members nominated
by the new lender group to fill the three vacancies. The new Board members
include William P. Foley, II, Chairman and Chief Executive Officer of CKE
Restaurants, Inc., Thomas Thompson, President of CKE Restaurants, Inc., and
Terry Christensen, an attorney with the firm of Christensen, Miller, Fink,
Jacobs, Glaser, Weil & Shapiro, LLP, of Los Angeles, California. Mr. Christensen
also serves as a director of Giant Group, Ltd.
Under the terms of the Restated Credit Agreement, Checkers is obligated to
maintain the number of Board seats at seven and to nominate and recommend to its
stockholders for election as directors at each annual meeting nominees of the
lender group so that at all times during the term of the Restated Credit
Agreement nominees of the lender group will hold three of the seven Board seats.
Lopez Litigation Settlement
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On November 22, 1996, the United States District Court for the Middle
District of Florida entered an Order and Final Judgment approving the previously
announced settlement of the proceeding styled LOPEZ, ET AL. V. CHECKERS DRIVE-IN
RESTAURANTS, INC., Case No. 94- 282-CIV-T-17C. The court certified the
proceeding as a class action, with the plaintiff class comprised of all
purchasers of Checkers common stock on the national securities markets between
August 26, 1993 and March 15, 1994. Approximately 15 persons, who according to
information filed with the court purchased an aggregate of approximately 10,000
shares of Checkers common stock during the relevant period, sought an exclusion
from the class and were excluded. Pursuant to the settlement agreement, Checkers
will issue warrants to the plaintiffs to purchase an aggregate of 5,100,000
shares of Checkers' common stock at a price of $1.375 per share. The warrants
will terminate four years after issuance if not exercised before that date.
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<PAGE>
Item 7. Financial Statements and Exhibits.
---------------------------------
(a) Financial Statements of Businesses Acquired.
-------------------------------------------
None.
(b) Pro Forma Financial Information.
-------------------------------
None.
(c) Exhibits.
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Exhibit
Number Exhibit Description
------ -------------------
4.1 Amended and Restated Credit Agreement, dated as of November 22,
1996, between the Company, CKE Restaurants, Inc., as Agent, and
the lenders listed therein.
4.2 Second Amended and Restated Security Agreement, dated as of
November 22, 1996, between the Company and CKE Restaurants, Inc.,
as Agent.
4.3 Form of Warrant issued to lenders under the Amended and Restated
Credit Agreement, dated November 22, 1996.
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<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the Registrant has duly caused this Report to be signed on its
behalf by the undersigned thereunto duly authorized.
CHECKERS DRIVE-IN RESTAURANTS, INC.
By: /s/ Albert J. DiMarco
----------------------------------------
Albert J. DiMarco
President and Chief Executive Officer
Dated: November 29, 1996
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit Description
------ -------------------
4.1 Amended and Restated Credit Agreement, dated as of November 22,
1996, between the Company, CKE Restaurants, Inc., as Agent, and
the lenders listed therein.
4.2 Second Amended and Restated Security Agreement, dated as of
November 22, 1996, between the Company and CKE Restaurants, Inc.,
as Agent.
4.3 Form of Warrant issued to lenders under the Amended and Restated
Credit Agreement, dated November 22, 1996.
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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
November 22, 1996
among
CHECKERS DRIVE-IN RESTAURANTS, INC.
The Lenders Listed Herein
and
CKE RESTAURANTS, INC.,
as Agent
<PAGE>
TABLE OF CONTENTS
AMENDED AND RESTATED CREDIT AGREEMENT
Page
----
ARTICLE IDEFINITIONS............................1
SECTION 1.01. Definitions..........................................1
SECTION 1.02. Accounting Terms and Determinations.................12
SECTION 1.03. References..........................................13
SECTION 1.04. Use of Defined Terms................................13
SECTION 1.05. Terminology.........................................13
ARTICLE II THE CREDIT...........................13
SECTION 2.01. Syndicated Term Loans...............................13
SECTION 2.02. Commitment to Lend Revolving Participated Loans.....14
SECTION 2.03. Notes; Miscellaneous Matters........................14
SECTION 2.04. Maturity of Loans...................................16
SECTION 2.05. Interest Rates......................................16
SECTION 2.06. Intentionally Deleted...............................16
SECTION 2.07. Optional Prepayments of Syndicated Term Loan Notes..16
SECTION 2.08. Principal Payments of Notes.........................16
SECTION 2.09. Intentionally Deleted...............................18
SECTION 2.10. Intentionally Deleted...............................18
SECTION 2.11. General Provisions as to Payments...................18
SECTION 2.12. Computation of Interest and Fees....................18
SECTION 2.13. Collateral..........................................18
SECTION 2.14. Waiver and Release..................................19
i
<PAGE>
ARTICLE III CONDITIONS TO CLOSING.....................20
SECTION 3.01. Conditions to Closing...............................20
SECTION 3.02. Conditions to All Borrowings........................22
ARTICLE IV REPRESENTATIONS AND WARRANTIES.................22
SECTION 4.01. Corporate Existence and Power.......................22
SECTION 4.02. Corporate and Governmental Authorization;
No Contravention....................................22
SECTION 4.03. Binding Effect......................................23
SECTION 4.04. Financial Information...............................23
SECTION 4.05. No Litigation.......................................23
SECTION 4.06. Compliance with ERISA...............................23
SECTION 4.07. Compliance with Laws; Payment of Taxes..............23
SECTION 4.08. Consolidated Subsidiaries...........................24
SECTION 4.09. Investment Company Act..............................24
SECTION 4.10. Public Utility Holding Company Act..................24
SECTION 4.11. Ownership of Property; Liens........................24
SECTION 4.12. No Default..........................................24
SECTION 4.13. Full Disclosure.....................................24
SECTION 4.14. Environmental Matters...............................25
SECTION 4.15. Capital Stock.......................................25
SECTION 4.16. Margin Stock........................................25
SECTION 4.17. Insolvency..........................................26
ARTICLE V COVENANTS............................26
SECTION 5.01. Information.........................................26
SECTION 5.02. Inspection of Property, Books and Records...........29
ii
<PAGE>
SECTION 5.03. Minimum Consolidated EBITDA.........................29
SECTION 5.04. Capital Expenditures................................29
SECTION 5.05. Intentionally Deleted...............................30
SECTION 5.06. Intentionally Deleted...............................30
SECTION 5.07. Restricted Payments.................................30
SECTION 5.08. Limitation on Indebtedness..........................30
SECTION 5.09. Loans or Advances...................................30
SECTION 5.10. Investments.........................................31
SECTION 5.11. Negative Pledge.....................................31
SECTION 5.12. Maintenance of Existence............................32
SECTION 5.13. Dissolution.........................................32
SECTION 5.14. Consolidations, Mergers and Sales of Assets.........32
SECTION 5.15. Use of Proceeds.....................................32
SECTION 5.16. Compliance with Laws; Payment of Taxes; SEC Filings.32
SECTION 5.17. Insurance...........................................33
SECTION 5.18. Change in Fiscal Year...............................33
SECTION 5.19. Maintenance of Property.............................33
SECTION 5.20. Environmental Notices...............................33
SECTION 5.21. Environmental Matters...............................33
SECTION 5.22. Environmental Release...............................33
SECTION 5.23. Transactions with Affiliates........................33
SECTION 5.24. Certain Action in respect of Permitted Subordinated
Indebtedness........................................34
ARTICLE VI DEFAULTS............................34
SECTION 6.01. Events of Default...................................34
iii
<PAGE>
ARTICLE VII THE AGENT...........................36
SECTION 7.01. Appointment; Powers and Immunities..................36
SECTION 7.02. Reliance by Agent...................................37
SECTION 7.03. Defaults............................................37
SECTION 7.04. Rights of Agent as a Lender.........................38
SECTION 7.05. Indemnification.....................................38
SECTION 7.06. Payee of Note Treated as Owner......................38
SECTION 7.07. Nonreliance on Agent and Other Lenders..............38
SECTION 7.08. Failure to Act......................................39
SECTION 7.09. Resignation or Removal of Agent.....................39
ARTICLE VIII [INTENTIONALLY DELETED]...................39
ARTICLE IX MISCELLANEOUS...............................39
SECTION 9.01. Notices.............................................39
SECTION 9.02. No Waivers..........................................40
SECTION 9.03. Expenses; Documentary Taxes.........................40
SECTION 9.04. Indemnification.....................................40
SECTION 9.05. Sharing of Setoffs..................................41
SECTION 9.06. Amendments and Waivers..............................41
SECTION 9.07. No Margin Stock Collateral..........................42
SECTION 9.08. Successors and Assigns..............................42
SECTION 9.09. Confidentiality.....................................44
SECTION 9.10. Intentionally Deleted...............................44
SECTION 9.11. Obligations Several.................................44
SECTION 9.12. California Law......................................44
iv
<PAGE>
SECTION 9.13. Severability........................................44
SECTION 9.14. Interest............................................44
SECTION 9.15. Interpretation......................................45
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction.......45
SECTION 9.17. Counterparts........................................45
v
<PAGE>
EXHIBITS
--------
EXHIBIT 2.01(a) Syndicated Term Loan Note
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EXHIBIT 2.01(b) Form of Warrant
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EXHIBIT 2.02 Notice of Borrowing
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EXHIBIT 2.03(a) Revolving Participated Loan Note
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EXHIBIT 3.01(d) Form of Registration Rights Agreement
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EXHIBIT 3.01(e) Form of Second Amended and Restated Security Agreement
- ---------------
EXHIBIT 3.01(f) Form of Amended and Restated Guaranty
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EXHIBIT 3.01(g) Form of Amended and Restated Guarantor Security Agreement
- ---------------
EXHIBIT 3.01(h) Form of Closing Certificate
- ---------------
EXHIBIT 3.01(i) Form of Opinion of Counsel for the Borrower
- ---------------
EXHIBIT 3.01(k) Form of Insurance Certificate
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EXHIBIT 5.01(a)(iii) Form of Compliance Certificate
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vi
<PAGE>
SCHEDULES
---------
Schedule A Amended Credit Agreement as of July 29, 1996
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Schedule 4.04 Material Adverse Effects
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Schedule 4.08 Subsidiaries
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Schedule 5.08 Indebtedness
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Schedule 5.09 Loans
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Schedule 5.11 Liens
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Schedule 5.24 Permitted Subordinated Indebtedness
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vii
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated as of
November 22, 1996, among CHECKERS DRIVE-IN RESTAURANTS, INC., the LENDERS listed
on the signature pages hereof and CKE RESTAURANTS, INC., as Agent.
WHEREAS, on October 28, 1993 the Borrower, Wachovia Bank of Georgia, N.A.,
as Agent (the "Initial Agent") and the Initial Banks (as hereinafter defined)
entered into a Credit Agreement (the "Original Credit Agreement") pursuant to
which the Initial Agent and the Initial Banks made certain loans to the
Borrower;
WHEREAS, pursuant to the agreements listed on Schedule A attached hereto,
the Borrower, the Initial Agent and the Initial Banks from time to time amended
and modified the Original Credit Agreement (the Original Credit Agreement as so
amended and modified, the "Amended Credit Agreement");
WHEREAS, on July 29, 1996 pursuant to certain agreements, the Prior Agent
(as hereinafter defined) and the Prior Lenders (as hereinafter defined) acquired
all right, title and interest of the Initial Agent and the Initial Banks in, to
and under the Amended Credit Agreement and the Loan Documents (as defined in the
Amended Credit Agreement);
WHEREAS, on November 12, 1996 pursuant to certain agreements, the Prior
Agent and the Prior Lenders assigned to the Agent and the Lenders, and the Agent
and the Lenders acquired, an assignment interest in, to and under the Amended
Credit Agreement and the Loan Documents;
WHEREAS, the Borrower has requested and, subject to the conditions set
forth herein, the Agent and the Lenders have agreed to restructure the
Borrower's obligations under the Amended Credit Agreement, as amended to date;
and
WHEREAS, this Agreement amends, restates and supersedes in its entirety
the Amended Credit Agreement, as amended to date, and no term or provision of
the Amended Credit Agreement shall bind the parties to this Agreement unless
specifically set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
<PAGE>
"Affiliate" means (i) any Person that directly, or indirectly through one
or more intermediaries, controls the Borrower (a "Controlling Person"), (ii) any
Person (other than the Borrower or a Subsidiary) which is controlled by or is
under common control with a Controlling Person, or (iii) any Person (other than
a Subsidiary) of which the Borrower owns, directly or indirectly, 20% or more of
the common stock or equivalent equity interests, excluding existing joint
ventures. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agent" means CKE Restaurants, Inc., a Delaware corporation, in its
capacity as agent for the Lenders hereunder, and its successors and permitted
assigns in such capacity.
"Agreement" means this Amended and Restated Credit Agreement, together
with all amendments and supplements hereto and all exhibits and schedules
hereto.
"Amended Credit Agreement" has the meaning set forth in the recitals
hereto.
"Amended and Restated Security Agreement" means that certain Second
Amended and Restated Security Agreement substantially in the form attached
hereto as Exhibit 3.01(e), delivered by the Borrower dated as of even date
herewith.
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment Agreement" means an Assignment Agreement executed in
accordance with Section 9.08(c).
"Borrower" means Checkers Drive-In Restaurants, Inc., a Delaware
corporation, and its successors and its permitted assigns.
"Borrowing" means (i) the restructuring of the Prior Syndicated Debt as of
the Closing Date pursuant to Section 2.01(a), and (ii) any borrowing thereafter
consisting of Revolving Participated Loans made to the Borrower by CKE (which
Revolving Participated Loans are participated to the Lenders hereunder) pursuant
to Article II.
"Capital Expenditures" means for any period the sum of all capital
expenditures incurred during such period by the Borrower and its Consolidated
Subsidiaries, as determined in accordance with GAAP.
"Capital Stock" means any nonredeemable capital stock of the Borrower or
any Consolidated Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. ss. 9601 et. seq. and its implementing regulations and
amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation and
Liability Inventory System established pursuant to CERCLA.
2
<PAGE>
"Change of Control" means the occurrence of any of the following events:
(a) the acquisition after the Closing Date, in one or more transactions, of
"beneficial ownership" (within the meaning of Section 13(d) under the Exchange
Act and the rules and regulations promulgated thereunder) by (i) any Person or
entity, or (ii) any group of Persons or entities who constitute a group (within
the meaning of Section 13 of the Exchange Act), in either case, of any
securities of the Borrower such that, as a result of such acquisition, such
Person, entity or group either (A) "beneficially owns" (within the meaning of
Rule 13 under the Exchange Act), directly or indirectly 35% or more of the
Borrower's then outstanding voting securities entitled to vote on the election
of directors of the Borrower ("Voting Securities") (it being understood that
this clause (A) shall not apply if the Lenders or their Affiliates acquire
beneficial ownership of 35% or more of Borrowers than outstanding Voting
Securities) or (B) otherwise has the ability to elect, directly or indirectly, a
majority of the members of the Borrower's Board of Directors; (b) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Borrower (together with any new
directors selected by such Board of Directors or whose nomination for election
by the stockholders of the Borrower was approved by a vote of 662/3% of the
directors of the Borrower then still in office who are either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
members of the Board of Directors of the Borrower then in office; (c) the sale,
lease, transfer or other disposition of all or substantially all of the assets
of the Borrower as entirety or substantially as an entirety in one transaction
or a series of related transactions; (d) the liquidation or dissolution of the
Borrower; or (e) any transaction permitted under Section 5.14 which results in
any of the foregoing.
"Checkers Restaurant" shall mean any and all restaurants operated as a
Checkers restaurant, whether owned or operated by the Borrower or any other
Person.
"CKE" shall mean CKE Restaurants, Inc., a Delaware corporation, and its
successors and assigns.
"Closing Certificate" has the meaning set forth in Section 3.01(h).
"Closing Date" means the date on which all matters set forth in Section
3.01 are satisfied.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
"Collateral" has the meaning set forth in Section 2.13.
"Commitment" means, with respect to the Revolving Participated Loans to be
made by CKE pursuant to Section 2.02 of this Agreement, the amount of
$2,500,000.
"Compliance Certificate" has the meaning set forth in Section
5.01(a)(iii).
"Consolidated Cash Flow" means, for any period, Consolidated EBITDA for
such period, minus (i) consolidated interest expense of the Borrower and its
Consolidated Subsidiaries, to the extent such interest is paid in cash, for such
period, minus (ii) the cash portion of the provision for income taxes of the
Borrower and its Consolidated Subsidiaries for such period.
3
<PAGE>
"Consolidated EBITDA" means, for any period, Consolidated Net Income for
such period, plus (i) consolidated interest expense of the Borrower and its
Consolidated Subsidiaries for such period, plus (ii) provision for income taxes
of the Borrower and its Consolidated Subsidiaries for such period, plus (iii)
depreciation, amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other non-cash charges (excluding any such non-cash
charge to the extent that it represents an accrual of or reserve for cash
charges in any future period or amortization of a prepaid cash expense that was
paid in a prior period) of the Borrower and its Consolidated Subsidiaries to the
extent that such depreciation, amortization and other non-cash charges were
deducted in computing Consolidated Net Income for such period, minus (iv)
non-cash items increasing consolidated revenues of the Borrower and its
Consolidated Subsidiaries in determining Consolidated Net Income for such
period, in each case on a consolidated basis and determined in accordance with
GAAP.
"Consolidated Net Income" means, for any period, the aggregate of the Net
Income of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (i)
extraordinary items, (ii) any gains or losses from the sale of any assets of the
Borrower or its Subsidiaries, (iii) the net income of any Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
that Subsidiary of that net income is not permitted, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary or its stockholders, or is not permitted without prior governmental
approval (that has not been obtained), and (iv) the income or loss from any
entity in which the Borrower's or its Subsidiary's, as applicable, investment is
classified pursuant to GAAP as a minority interest.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which, in accordance with GAAP, would be consolidated with those
of the Borrower in its consolidated financial statements as of such date.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Code.
"Default" has the meaning set forth in Section 6.01.
"Default Rate" means a rate per annum equal to the sum of the then
applicable interest rate on the Loans plus two percent (2%).
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in The State of California are authorized by law
to close.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
4
<PAGE>
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower or any Wholly Owned Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notices" means notice from any Environmental Authority, of
possible or alleged noncompliance with or liability under any Environmental
Requirement, including without limitation any complaints, citations, demands or
requests from any Environmental Authority or from any other person or entity for
correction of any, violation of any Environmental Requirement or any
investigations concerning any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under any
applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any Wholly
Owned Subsidiary or the Properties, including but not limited to any such
requirement under CERCLA or similar state legislation and all federal, state and
local laws, ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Event of Default" has the meaning set forth in Section 6.01.
"Fiscal Quarter" means any fiscal quarter of the Borrower, it being
understood that each of the first three fiscal quarters of each Fiscal Year
consists of three Reporting Periods and the final fiscal quarter consists of
four Reporting Periods.
"Fiscal Year" means any fiscal year of the Borrower consisting of the 52
or 53 week period generally ending on the Monday closest to December 31.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section 1.02, are to be used in
making the calculations for purposes of determining compliance with the terms of
this Agreement.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Indebtedness or other
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obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation (whether arising
by virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to provide collateral security, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for the purpose of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part), provided that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantors" means, individually and collectively, (i) InnerCityFoods
Leasing Company, a Delaware corporation, (ii) InnerCityFoods Restaurant Company,
Inc., a Delaware corporation, (iii) InnerCityFoods Joint Venture Company, a
Delaware corporation, and (iv) any other Person delivering a Guaranty to the
Agent, together with each of their respective successors and permitted assigns.
"Guaranty" means, individually and collectively, (i) those certain Amended
and Restated Guaranty Agreements, substantially in the form of Exhibit 3.01(f)
hereto, executed and delivered by the Guarantors, jointly and severally, to the
Agent, for the ratable benefit of each of the Lenders, together with all
amendments and modifications thereto and (ii) any other guaranty agreement
delivered to the Agent for the purpose of providing a Guarantee of any of the
Borrower's or the Guarantors' obligations under any of the Loan Documents,
together with all amendments and modifications thereto.
"Guarantor Security Agreements" means those certain Amended and Restated
Security Agreements, substantially in the form of Exhibit 3.01(g) hereto,
executed and delivered by the Guarantors to the Agent, for the ratable benefit
of each of the Lenders, together with all respective amendments and any
modifications thereto.
"Hazardous Materials" includes, without limitation, (a) solid or hazardous
waste, as defined in the Resource Conservation and Recovery Act of 1980, 42
U.S.C. ss. 6901 et seq. and its implementing regulations and amendments, or in
any applicable state or local law or regulation, (b) "hazardous substance",
"pollutant", or "contaminant" as defined in CERCLA, or in any applicable state
or local law or regulation, (c) gasoline, or any other petroleum product or
by-product, including, crude oil or any fraction thereof or (d) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Indebtedness" shall have the meaning set forth in Section 5.08.
"Initial Agent" means Wachovia Bank of Georgia, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as agent for the Initial Banks under the Amended Credit Agreement.
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"Initial Banks" mean collectively Wachovia Bank of Georgia, N.A., Barnett
Bank of Pinellas County, The Boatmen's National Bank of St. Louis, PNC Bank,
Kentucky, Inc., NBD Bank and First Alabama Bank.
"Interest Period" means the period commencing on the last day of each
Reporting Period and ending on the same date of the following Reporting Period;
provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to paragraph (b) below) which would otherwise end on a day which
is not a Domestic Business Day shall be extended to the next succeeding
Domestic Business Day;
(b) the first Interest Period shall commence on November 26, 1996
and shall end on December 30, 1996; and
(c) any Interest Period which begins before the Termination Date and
would otherwise end after the Termination Date shall end on the
Termination Date.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Lender" means each Person listed on the signature pages hereof (other
than the Borrower and Guarantors) and its successors and assigns.
"Lending Office" means, as to each Lender, its office located at its
address set forth on the signature pages hereof or identified on the signature
pages hereof as its Lending Office or such other office as such Lender may
hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title, or
encumbrance or servitude of any kind in respect of such asset to secure or
assure payment of a Indebtedness or a Guarantee, whether by consensual agreement
or by operation of statute or other law, or by any agreement, contingent or
otherwise, to provide any of the foregoing. For the purposes of this Agreement,
a Person shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease (as determined under GAAP) or other
title retention agreement relating to such asset. Provided, however, an
operating lease (as determined under GAAP) shall not constitute a Lien.
"Loan" means a Syndicated Term Loan or a Revolving Participated Loan and
"Loans" means Syndicated Term Loans or Revolving Participated Loans or both.
"Loan Documents" means this Agreement, the Notes, the Warrants, the
Guaranty, the Security Agreements, the Post-Closing Collateral Documents, the
Registration Rights Agreement, the Mortgage Documents and any other document
evidencing, relating to or securing the obligations of the Borrower hereunder,
and any other document or instrument delivered from time to time in connection
7
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with this Agreement, the Notes, the Warrants or the obligations of the Borrower
hereunder, as such documents and instruments may be amended, modified or
supplemented from time to time.
"Margin Stock" means "margin stock" as defined in Regulations G, T, U or
X.
"Material Adverse Effect" means, with respect to any event, act, condition
or occurrence arising after the Closing Date, or if arising on or before the
Closing Date, not disclosed to the Lenders in writing (such written disclosures
to include, without limitation, the Borrower's most recent Annual Report on Form
10-K and most recent Quarterly Report on Form 10-Q previously delivered to the
Lenders) on or before the Closing Date, of whatever nature (including any
adverse determination in any litigation, arbitration, or governmental
investigation or proceeding that is not a judgment giving rise to a Default
under Section 6.01(j)), whether singly or in conjunction with any other event or
events, act or acts, condition or conditions, occurrence or occurrences, whether
or not related, a material adverse change in, or a material adverse effect upon,
any of (a) the financial condition, operations, business, properties or
prospects of the Borrower and its Consolidated Subsidiaries taken as a whole,
(b) the rights and remedies of the Agent and the Lenders under the Loan
Documents, or (c) the legality, validity or enforceability of any Loan Document.
In making any determination of a Material Adverse Effect, all relevant
circumstances known to the Lenders shall be considered, including, without
limitation, insurance proceeds receivable, opinions of counsel, the merits of
any relevant claim, subrogation rights, and contribution rights available to the
Borrower.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NTDT Note" means the promissory note of the Borrower held by Nashville
Twin Drive- Thru Partners, L.P. ("NTDT"), the outstanding principal amount of
which was $1,126,162 as of September 9, 1996.
"Net Income" means, as applied to any Person for any period, the aggregate
amount of net income of such Person, after taxes, for such period, as determined
in accordance with GAAP.
"Net Proceeds" means the cash proceeds received by the Borrower in respect
to the issuance of Capital Stock in connection with the exercise of subscription
rights distributed (including any such rights exercised by the Lenders as
required hereunder) pursuant to the Rights Offering, after deducting therefrom
reasonable and customary costs and expenses incurred by the Borrower directly in
connection with such issuance.
"Notes" means (i) the Syndicated Term Loan Notes, and (ii) the Revolving
Participated Loan Note, together with all amendments, consolidations,
modifications, renewals, and supplements to, and replacements of, items (i) and
(ii) above.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Original Credit Agreement" has the meaning set forth in the recitals
hereto.
"Participant" has the meaning set forth in Section 9.08(b).
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"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Subordinated Indebtedness" means the Indebtedness identified on
SCHEDULE 5.24 hereto.
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code and is either (i) maintained by a member of the Controlled Group
for employees of any member of the Controlled Group or (ii) maintained pursuant
to a collective bargaining agreement or any other arrangement under which more
than one employer makes contributions and to which a member of the Controlled
Group is then making or accruing an obligation to make contributions or has
within the preceding five (5) plan years made contributions.
"Post-Closing Collateral" has the meaning set forth in Section 2.13(a).
"Post-Closing Collateral Documents" has the meaning set forth in Section
2.13(a).
"Prior Agent" means The Galileo Fund, L.P., a Massachusetts limited
partnership, in its capacity a agent for the Prior Lenders under the Amended
Credit Agreement.
"Prior Lenders" means collectively The Galileo Fund, L.P., Canpartners
Investments IV, LLC, Foothill Capital Corporation and Pearl Street, L.P.
"Prior Revolving Participated Loan Note" means the Revolving Participated
Loan dated October 2, 1995 of the Borrower in favor of Wachovia Bank of Georgia,
N.A. in the original principal amount of $2,000,000.
"Prior Syndicated Debt" means the loans, interest, and other obligations
of the Borrower to the Lenders outstanding on the Closing Date under the "Loans"
as defined in the Amended Credit Agreement.
"Prior Syndicated Term Loan Notes" means, collectively (i) the Amended and
Restated Syndicated Term Loan Note dated as of April 12, 1995 of the Borrower in
favor of Wachovia Bank of Georgia, N.A. in the original principal amount of
$12,031,250, (ii) the Amended and Restated Syndicated Term Loan Note dated as of
April 12, 1995 of the Borrower in favor of Barnett Bank of Pinellas County in
the original principal amount of $7,218,750, (iii) the Amended and Restated
Syndicated Term Loan Note dated as of April 12, 1995 of the Borrower in favor of
The Boatmen's National Bank of St. Louis in the original principal amount of
$4,812,500, (iv) the Amended and Restated Syndicated Term Loan Note dated as of
April 12, 1995 of the Borrower in favor of NBD Bank in the original principal
amount of $4,812,500, (v) the Amended and Restated Syndicated Term Loan Note
dated as of April 12, 1995 of the Borrower in favor of PNC Bank, Kentucky, Inc.
9
<PAGE>
in the original principal amount of $4,812,500 and (vi) the Amended and Restated
Syndicated Term Loan Note dated as of April 12, 1995 of the Borrower in favor of
First Alabama Bank in the original principal amount of $4,812,500.
"Prior Warrant Agreements" means, individually and collectively, the
Warrant Agreements dated as of April 15, 1995 executed and delivered by the
Borrower to the Initial Banks, and having been subsequently assigned to the
Prior Lenders and re-assigned to the Lenders.
"Pro Rata Share" means, with respect to each Lender identified below, the
percentage interest set forth opposite the name of such Lender:
Lender Percentage Interest
------ -------------------
CKE Restaurants, Inc. 36.75214
KCC Delaware 14.24501
Fidelity National Financial, Inc. 10.54131
The Travelers Indemnity Company 8.54701
The Galileo Fund, L.P. 5.69801
Foothill Capital Corporation 5.69801
Canpartners Investments IV, LLC 5.69801
William P. Foley II 5.69800
Burt Sugarman 3.56125
Carl Leo Karcher 2.84900
Stephen Mahood 0.71225
--------
Total 100.00000%
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Consolidated Subsidiary, wherever located.
"Rall-Folks Notes" means the promissory notes of the Borrower held by
Rall-Folks, Inc. ("Rall-Folks"), the aggregate outstanding principal amount of
which was $1,788,000 as of September 9, 1996.
"RDG Note" means the promissory note of the Borrower held by Restaurant
Development Group, Inc. ("RDG"), the outstanding principal amount of which was
approximately $1,693,000 as of September 9, 1996.
"Registration Rights Agreement" means the Registration Rights Agreement,
in the form of EXHIBIT 3.01(d) hereto, executed and delivered by the Borrower to
Lenders.
"Regulation G" means Regulation G of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
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"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Released Parties" has the meaning set forth in Section 2.14 hereof.
"Reporting Period" means, with respect to any Fiscal Year, each
consecutive 4 week period beginning on the first day of such Fiscal Year.
"Required Lenders" means at any time Lenders having at least 662/3% of the
aggregate outstanding principal amount of the Syndicated Term Loan Notes.
"Restricted Payment" means (i) any dividend or other distribution on any
shares of the Borrower's capital stock (except dividends payable solely in
shares of its capital stock) or (ii) any cash payment on account of the
purchase, redemption, retirement or acquisition (excluding therefrom any nominal
amount of cash paid in lieu of fractional shares of Capital Stock issued in the
ordinary course of business) of (a) any shares of the Borrower's capital stock
(except shares acquired upon the conversion thereof into other shares of its
capital stock) or (b) any option, warrant or other right to acquire shares of
the Borrower's capital stock.
"Retail Building" means any removable restaurant building owned by the
Borrower and operated under the "Checkers" trade name and all related equipment
and moveable site improvements.
"Revolving Lenders" means CKE and KCC Delaware.
"Revolving Participated Loan" means a Loan made by CKE pursuant to Section
2.02.
"Revolving Participated Loan Note" means the amended and restated
promissory note of the Borrower, substantially in the form of Exhibit 2.03(b),
evidencing the obligation of the Borrower to repay the Revolving Participated
Loans, together with all amendments, consolidations, modifications, renewals and
supplements thereto.
"Rights Guaranty" means the commitment of CKE, KCC Delaware and Fidelity
National Financial, Inc. pursuant to Section 2.03(d).
"Rights Offering" means the distribution by the Borrower to each holder of
Common Stock of the Borrower (it being understood that, for purposes of the
Rights Offering, the Warrants will be deemed to have been exercised and the
shares of Common Stock of the Borrower issuable on exercise of the Warrants
shall be deemed to be issued and outstanding and held of record by the Lenders
on the record date established for such distribution) of rights to purchase
shares of Common Stock of the Borrower, at any price as may be determined by the
Borrower up to the average closing price for such common stock for the ten
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trading days prior to the effective date of the registration statement covering
such shares, the Net Proceeds of which shall be not less than $10,000,000.
"Security Agreements" means the Guarantor Security Agreements and the
Amended and Restated Security Agreement.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower, and any partnership in which
the Borrower or any Consolidated Subsidiary is a general partner.
"Syndicated Term Loans" means the Loans made by the Lenders pursuant to
Section 2.01(a).
"Syndicated Term Loan Notes" means the amended and restated promissory
notes of the Borrower, substantially in the form of EXHIBIT 2.03(a), evidencing
the obligation of the Borrower to repay the Syndicated Term Loans, together with
all amendments, consolidations, modifications, renewals, and supplements
thereto.
"Termination Date" means (i) with respect to the Revolving Participated
Loan Commitment and the Revolving Participated Loans, unless extended by the
Borrower pursuant to Section 2.03(e), upon the earlier to occur of (I) March 22,
1997 or (II) consummation of the issuance of shares of Capital Stock as a result
of the full subscription of rights in the Rights Offering, and (ii) with respect
to the Syndicated Term Loans, July 31, 1999.
"Transferee" has the meaning set forth in Section 9.08(d).
"Unfunded Vested Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all vested nonforfeitable
benefits under such Plan 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, but only to the extent that such excess represents a
potential liability of a member of the Controlled Group to the PBGC or the Plan
under Title IV of ERISA.
"Warrants" mean the warrants to purchase shares of Borrower's Common Stock
in the form attached hereto as Exhibit 2.01(b) to be issued to the Lenders on
the Closing Date pursuant to Section 2.01(a).
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP, applied on a basis consistent (except for changes with
which the Borrower's independent public accountants concur or that are otherwise
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required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Lenders except for any change in which the Borrower's independent public
accountants concur or is required by GAAP, in determining compliance with any of
the provisions of this Agreement or any of the other Loan Documents: (i) the
Borrower shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements, or (ii) the Required Lenders
shall so object in writing within 30 days after the delivery of such financial
statements, in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial statements
as to which such objection shall not have been made (which, if objection is made
in respect of the first financial statements delivered under Section 5.01
hereof, shall mean the financial statements referred to in Section 4.04).
SECTION 1.03. REFERENCES. Unless otherwise indicated, references in this
Agreement to "Articles", "Exhibits", "Schedules", "Sections" and other
Subdivisions are references to articles, exhibits, schedules, sections and other
subdivisions hereof.
SECTION 1.04. USE OF DEFINED TERMS. All terms defined in this Agreement
shall have the same defined meanings when used in any of the other Loan
Documents, unless otherwise defined therein or unless the context shall require
otherwise.
SECTION 1.05. TERMINOLOGY. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and the plural shall
include the singular. Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. SYNDICATED TERM LOANS.
(a) Each Lender severally agrees, subject to the terms and
conditions set forth herein and based on the representations and warranties set
forth herein, to restructure the Borrower's obligations hereunder as provided
herein. All Syndicated Term Loans shall earn interest at the rate of 13.00% per
annum. In consideration for the restructuring of the Borrower's obligations
hereunder, the Commitment and the Rights Guaranty, on the Closing Date, the
Borrower shall grant to the Lenders, in proportion to each Lender's Pro Rata
Share of the Prior Syndicated Debt, warrants for the purchase of an aggregate of
20,000,000 shares of the Borrower's Common Stock at an exercise price of $.75
each, which warrants may be exercised in accordance with and subject to the
terms and conditions of the Warrants. Effective as of the Closing Date, the
Prior Warrant Agreements shall be terminated and of no further force or effect.
(b) On the Closing Date, subject to satisfaction of the terms and
conditions set forth in Article III herein, each Lender severally agrees to
deliver to the Borrower the Prior Syndicated Term Loan Notes and the Agent
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agrees to deliver to the Borrower the Prior Revolving Participated Loan Note, in
exchange for (i) a Syndicated Term Loan Note in the principal amount of such
Lender's Pro Rata Share of the Prior Syndicated Debt, (ii) a participation
interest in the Revolving Participated Loan in an amount equal to such Lender's
Pro Rata Share of the Revolving Participated Loan Note, and (iii) warrant
certificates representing a number of Warrants equal to such Lender's Pro Rata
Share of the Warrants issuable pursuant to Section 2.01(a).
SECTION 2.02. COMMITMENT TO LEND REVOLVING PARTICIPATED LOANS. CKE shall
from time to time on or after December 3, 1996 and through and including the
Termination Date applicable to Revolving Participated Loans, upon the written
request of the Borrower in the form of notice attached hereto as Exhibit 2.02
(the "Notice of Borrowing"), and on the terms and conditions set forth herein,
make Revolving Participated Loans to the Borrower in an aggregate principal
amount at any time not to exceed an amount equal to $2,500,000 through and
including the Termination Date, which Revolving Participated Loans shall be
evidenced by the Revolving Participated Loan Note (in the original stated
principal amount of $2,500,000) dated as of the Closing Date. Each Revolving
Participated Loan Borrowing under this Section 2.02 shall be in an aggregate
principal amount of $500,000 or any larger multiple of $250,000. Within the
foregoing limits, the Borrower may borrow under this Section 2.02, repay and
reborrow under this Section 2.02 at any time before the Termination Date
applicable to Revolving Participated Loans. All Revolving Participated Loans
shall earn interest at the rate of 13.00% per annum. CKE shall notify each
Revolving Lender of each Revolving Participated Loan Borrowing, and each
Revolving Lender other than CKE shall, on the date of each Revolving
Participated Loan Borrowings, purchase a participating interest in Revolving
Participated Loans in an amount equal to the same proportion of such Revolving
Participated Loans as such other Revolving Lender's Pro Rata Share bears to the
aggregate Pro Rata Shares of the Revolving Lenders. On the date of each such
Revolving Participated Loan Borrowing, each Revolving Lender will immediately
transfer to CKE, in immediately available funds, the amount of its
participation. Whenever, at any time after CKE has received from any such
Revolving Lender its participating interest in a Revolving Participated Loan,
the Agent receives any payment on account thereof, the Agent will distribute to
such Revolving Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Revolving Lender's participating interest was outstanding and funded;
provided, however, that in the event that such payment received by the Agent is
required to be returned, such Revolving Lender will return to the Agent any
portion thereof previously distributed by the Agent to it. Each Revolving
Lender's obligation to purchase such participating interests shall be absolute
and unconditional and shall not be affected by any circumstance, including,
without limitation: (i) any set-off, counterclaim, recoupment, defense or other
right which such Revolving Lender or any other Person may have against CKE
requesting such purchase or any other Persons for any reason whatsoever; (ii)
the occurrence or continuance of a Default or an Event of Default or the
termination of the Commitments; (iii) any adverse change in the condition
(financial or otherwise) of the Borrower, or any other Person; (iv) any breach
of this Agreement by the Borrower or any other Revolving Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
SECTION 2.03. NOTES; MISCELLANEOUS MATTERS.
(a) The Syndicated Term Loans of each Lender shall be evidenced by
the Syndicated Term Loan Notes payable to the order of such Lender for the
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account of its Lending Office in an amount equal to the original principal
amount of such Lender's Pro Rata Share of the Prior Syndicated Debt. The
Revolving Participated Loan shall be evidenced by the Revolving Participated
Loan Note payable to the order of CKE in the original principal amount of
$2,500,000.
(b) The Borrower hereby represents, warrants, ratifies and confirms
that the Prior Syndicated Debt in the aggregate outstanding principal amount of
$35,818,098.88 as of the Closing Date (which consists of an aggregate principal
amount of $34,718,098.88 of "Syndicated Term Loans" as defined under the Amended
Credit Agreement, an aggregate principal amount of $1,000,000 of "Revolving
Participated Loans" as defined under the Amended Credit Agreement, and an
aggregate principal amount of $100,000 with respect to the "Extension Fee" as
defined under the Amended Credit Agreement (more specifically, the Eleventh
Amendment Agreement dated July 29, 1996 identified on Schedule A attached
hereto)) as evidenced by the Syndicated Term Loan Notes remains in full force
and effect without novation and is payable in accordance with its terms, without
defense, offset, recoupment or counterclaim. The Borrower also represents and
warrants that the fair market value of the Collateral exceeds the aggregate
principal amount of the Loans. CKE shall record with respect to the Revolving
Participated Loan Note on the schedule forming a part thereof appropriate
notations to evidence the date, amount and maturity of each Revolving
Participated Loan made by it, the date and amount of each payment of principal
made by the Borrower with respect thereof and, such schedule shall constitute
rebuttable presumptive evidence of the principal amount owing and unpaid on the
Revolving Participated Loan Note; provided that the failure of CKE to make any
such recordation or endorsement shall not affect the obligation of the Borrower
hereunder or under the Revolving Participated Loan Note or the ability of CKE to
assign such Revolving Participated Loan Note. CKE is hereby irrevocably
authorized by the Borrower so to endorse the Revolving Participated Loan Note
and to attach to and make a part of the Revolving Participated Loan Note a
continuation of any such schedule as and when required.
(c) Intentionally Deleted.
---------------------
(d) The Borrower shall prepare and file with the Securities and
Exchange Commission, and use its best efforts to be declared effective under the
Securities Act of 1933, as amended, a registration statement relating to the
shares of Common Stock of the Borrower to be issued in a Rights Offering, and to
distribute rights to purchase Common Stock pursuant thereto to Borrower's
stockholders and the holders of the Warrants as of a record date which is,
within 60 days after the Closing Date. Each of CKE, Fidelity National Financial,
Inc. and KCC Delaware hereby agrees, severally and not jointly, to purchase from
the Company an aggregate number of shares of Borrower Common Stock equal to the
excess, if any, of the maximum number of shares of Borrower Common Stock
issuable upon the exercise in full of all subscription rights distributed in
such Rights Offering remaining after subtracting from the maximum number of
shares of Borrower Common Stock issuable upon the exercise of all subscription
rights so distributed and exercised by Persons other than the Lenders and their
Affiliates. The obligations of the foregoing Lenders to purchase shares shall be
allocated among them in accordance with their relative Pro Rata Shares.
(e) The Borrower shall have the right, on notice to the Agent, to
extend the Termination Date applicable to the Revolving Participated Loan for
three (3) successive one (1)- month periods; provided, that for each such
extension the Borrower shall issue to the Revolving
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Lenders, pro rata in accordance with each Revolving Lender's interests in the
Revolving Participated Loan, additional warrants to purchase 333,333 shares of
Common Stock of the Borrower upon the first day of each such one-month extension
period at an exercise price equal to 90% of the average closing price of
Borrower's Common Stock, as reported on the NASDAQ National Market, over the 30
day period ending on the last day of the applicable Termination Date (before
giving effect to such extension). The terms of the warrants shall be identical
to the Warrants.
(f) Upon the closing, the Borrower shall take all corporate actions
necessary to elect to the Board of Directors of the Borrower three (3) designees
of the Lenders, and such Board of Directors shall consist of seven (7) Persons,
of whom three (3) Persons shall have been designated by the Lenders. At each
election of directors from and after the Closing Date, the Borrower shall
nominate for election to its Board of Directors and recommend to its
stockholders the election of three (3) designees of the Lenders to the Board of
Directors. No change in the actual number of directors of the Borrower shall be
made without the prior written consent of the Required Lenders.
SECTION 2.04. MATURITY OF LOANS. Except for mandatory prepayments of the
Loans required by this Agreement, the Syndicated Term Loans and the Revolving
Participated Loans shall mature, and the principal amount thereof, if any,
together with all accrued but unpaid interest thereon, if any, shall be due and
payable on the applicable Termination Date without notice to or demand upon the
Borrower.
SECTION 2.05. INTEREST RATES.
(a) Each Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate per annum equal to 13.00%. Such interest shall be payable for
each Interest Period on the last day thereof. Any overdue principal of and, to
the extent permitted by applicable law, overdue interest on any Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the Default Rate.
(b) After the occurrence and during the continuance of a Default,
the principal amount of the Loans (and, to the extent permitted by applicable
law, all accrued interest thereon) shall, at the election of the Required
Lenders, bear interest at the Default Rate.
SECTION 2.06. INTENTIONALLY DELETED.
SECTION 2.07. OPTIONAL PREPAYMENTS OF SYNDICATED TERM LOAN NOTES. The
Borrower may, upon at least one Domestic Business Day's notice to the Lenders,
prepay the Syndicated Term Loan Notes by an aggregate amount of at least
$500,000 or any larger multiple of $500,000, without premium or penalty.
SECTION 2.08. PRINCIPAL PAYMENTS OF NOTES.
(a) Scheduled Principal Payments. On the last day of each of the
following Reporting Periods, the Borrower shall pay the principal amount of the
Syndicated Term Loans equal to the greater of the following amounts:
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Amount Equal to
the Greater of
-----------------
Reporting Periods x or y
------ ----
From the Closing Date
through Reporting Period
4 in Fiscal Year 1997 (n/a) (n/a)
For Reporting Periods
5 through 11 in Fiscal Year 1997 $200,000 (n/a)
For Reporting Period 12 in
Fiscal 1997 through
Reporting Period 3 in
Fiscal Year 1998 $275,000 50% of Consolidated
Cash Flow for the
previous
Reporting Period
For Reporting Period 4
in Fiscal Year 1998 and for all
Reporting Periods thereafter $350,000 60% of Consolidated
Cash Flow for the
previous Reporting
Period
As used in this Section 2.08(a), Consolidated Cash Flow shall exclude the
portion of Consolidated Cash Flow attributable to any Person other than a Wholly
Owned Subsidiary that is not received by the Borrower or any Guarantor.
(b) MANDATORY PRINCIPAL PAYMENTS UPON SALES OF ASSETS. Except to the
extent otherwise provided in this Section 2.08(b), all proceeds (whenever
received, whether at closing or as a result of payments under any promissory
note, net however of prorated property taxes and reasonable transactional costs
incurred with respect to such closing) payable to and received by Borrower or
any Guarantor from the sale of assets (except for sales of inventory in the
ordinary course of business) owned by the Borrower and/or its Consolidated
Subsidiaries permitted by Section 5.14 hereof shall be paid to the Lenders and
shall be applied against the outstanding principal payments required to be paid
under Section 2.08(a) in order of maturity. Notwithstanding foregoing, provided
no Default exists, the Borrower may retain fifty percent (50%) the of such net
proceeds of asset sales and may use the portion so retained for general
corporate purposes (other than dividends, distributions or loans). Nothing
herein shall be construed to permit the Borrower to sell any of its assets other
than as expressly authorized by this Agreement.
(c) PREPAYMENT AT ELECTION OF LENDERS UPON CHANGE OF CONTROL. Upon
the occurrence of a Change of Control (which Change of Control the parties agree
shall not occur from the election of representatives of the Lenders to the
Borrower's Board of Directors on the Closing Date pursuant to this Agreement or
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any additional stock purchased by Lenders or their Affiliates), each Lender
shall have the right to require the Borrower to prepay the Notes at a prepayment
price equal to 103% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of prepayment. Within five Domestic Business Days
following any Change of Control, the Borrower will mail a notice thereof to each
Lender, with a copy to the Agent (a "Change of Control Notice"). Any Lender, by
written notice to the Borrower within 30 days following receipt of such Change
of Control Notice, may elect prepayment of its Notes and the Borrower shall
prepay such Notes at the price specified above no later than 30 days thereafter.
(d) PREPAYMENT UPON RIGHTS OFFERING. Upon the consummation of the
issuance and sale of Capital Stock in connection with a Rights Offering, the
Borrower shall prepay the entire principal amount of the Revolving Participated
Loans, plus accrued and unpaid interest, if any, thereon to the date of
prepayment.
SECTION 2.09. INTENTIONALLY DELETED.
SECTION 2.10. INTENTIONALLY DELETED.
SECTION 2.11. GENERAL PROVISIONS AS TO PAYMENTS.
(a) The Borrower shall make each payment of principal of, and
interest on, the Syndicated Term Loans and of fees hereunder not later than
11:00 A.M. (Eastern Standard Time) on the date when due, in Federal or other
funds immediately available, to the Agent at its address referred to in Section
9.01. The Borrower shall make each payment of principal of, and interest on, the
Revolving Syndicated Term Loan not later than 11:00 A.M. (Eastern Standard Time)
on the date when due, in Federal or other funds immediately available, to the
Agent.
(b) Whenever any payment of principal of, or interest on, the Loans
or of fees hereunder shall be due on a day which is not a Domestic Business Day,
the date for payment thereof shall be extended to the next succeeding Domestic
Business Day.
SECTION 2.12. COMPUTATION OF INTEREST AND FEES. Interest on Loans shall be
computed on the basis of a year of 360 days and a month of 30 days. All fees
payable hereunder shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding the
last day).
SECTION 2.13. COLLATERAL.
(a) In addition to the collateral security granted by the Borrower
and the Guarantors under the Security Agreements the Borrower shall (and shall
cause each of the Guarantors to), at the sole cost and expense of the Borrower
(subject to the limitations described in subsection 2.13(c) below), grant to the
Agent and do all things requested to maintain, for the ratable benefit of the
Lenders to secure all obligations of the Borrower hereunder (including, without
limitation, the Syndicated Term Loan Notes and the Revolving Participated Loan
Note), a continuing, blanket and general lien upon and security interest and
title in and to all real property, equipment, inventory, general intangibles,
personal property and assets of the Borrower and the Guarantors, or other assets
as the Required Lenders shall designate in their reasonable discretion (the
"Post-Closing Collateral") and shall deliver (or cause to be delivered) to the
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<PAGE>
Agent such duly executed security agreements, security deeds, mortgages, deeds
of trust, estoppels, subordination agreements, pledge agreements, stock powers,
Uniform Commercial Code financing statements, title certificates, affidavits,
and other documents, as are reasonably necessary or desirable in the judgment of
the Required Lenders to perfect first priority liens (as such first priority may
be available) against the Post-Closing Collateral (collectively, the "Post-
Closing Collateral Documents").
(b) The Borrower shall (and shall cause each of the Guarantors to),
after an Event of Default, at the sole cost and expense of the Borrower, deliver
(or cause to be delivered) to the Agent such appraisals, surveys, title
searches, title policies, environmental audits and other documents, all of which
shall be satisfactory to the Required Lenders in all respects, as are deemed
reasonably necessary or desirable by the Required Lenders in connection with the
Collateral.
(c) The Borrower agrees to pay up to $200,000 of costs and expenses
incurred by the Agent and the Lenders in connection with the actions
contemplated by this Section 2.13, including, without limitation, all filing
fees, lien search fees, intangible taxes (whether incurred before or after
payment in full of the Loans), documentary stamp taxes (whether incurred before
or after payment in full of the Loans), surveys, environmental surveys, and
title reports. All such documentation shall be reasonable and customary and in
form and substance satisfactory to the Agent and the Lenders in their
discretion. The Borrower hereby irrevocably appoints the Agent as the Borrower's
attorney-in-fact to (i) deliver and record in the appropriate filing office any
instrument contemplated or required hereby (including, without limitation, the
relevant security deeds, mortgages, deeds of trust, and Uniform Commercial Code
financing statements) and to pay the related recording expenses and (ii) from
time to time in the Agent's discretion, to take any other action which the Agent
may deem reasonably necessary or advisable to accomplish the purposes of this
Section 2.13 with respect to the Collateral.
SECTION 2.14. WAIVER AND RELEASE. THROUGH THE DATE OF THIS AGREEMENT, THE
BORROWER AND EACH GUARANTOR HEREBY KNOWINGLY AND VOLUNTARILY, FOREVER RELEASES,
ACQUITS AND DISCHARGES THE AGENT AND THE LENDERS (BUT NOT ANY OF THE PRIOR
LENDERS), THEIR DIRECTORS, OFFICERS, PARTNERS, TRUSTEES, BENEFICIARIES,
EMPLOYEES, AGENTS, CONTROLLING PERSONS AND SHAREHOLDERS (COLLECTIVELY, THE
"RELEASED PARTIES") (A) FROM AND OF ANY AND ALL CLAIMS ARISING FROM ACTS OR
OMISSIONS OF ANY OF THE RELEASED PARTIES OR THE PRIOR LENDERS, THEIR DIRECTORS,
OFFICERS, PARTNERS, TRUSTEES, BENEFICIARIES, EMPLOYEES, AGENTS, CONTROLLING
PERSONS AND SHAREHOLDERS (COLLECTIVELY, THE "PRIOR LENDER PARTIES") THAT MAY
HAVE OCCURRED PRIOR TO THE CLOSING DATE THAT ANY OF THE RELEASED PARTIES OR ANY
OF THE PRIOR LENDER PARTIES (1) IS IN ANY WAY RESPONSIBLE FOR THE PAST, CURRENT
OR FUTURE CONDITION OR DETERIORATION OF THE BUSINESS OPERATIONS AND/OR FINANCIAL
CONDITION OF THE BORROWER, OR (2) BREACHED ANY AGREEMENT TO LOAN MONEY OR MAKE
OTHER FINANCIAL ACCOMMODATIONS AVAILABLE TO THE BORROWER OR TO FUND ANY
OPERATIONS OF THE BORROWER AT ANY TIME, AND (B) FROM AND OF ANY AND ALL OTHER
CLAIMS, DAMAGES, LOSSES, ACTIONS, COUNTERCLAIMS, SUITS, JUDGMENTS, OBLIGATIONS,
19
<PAGE>
LIABILITIES, DEFENSES, AFFIRMATIVE DEFENSES, SETOFFS, AND DEMANDS OF ANY KIND OR
NATURE WHATSOEVER, IN LAW OR IN EQUITY, WHETHER PRESENTLY KNOWN OR UNKNOWN,
WHICH THE BORROWER OR ANY GUARANTOR MAY HAVE HAD, NOW HAVE, OR WHICH IT CAN,
SHALL OR MAY HAVE FOR, UPON, OR BY REASON OF ANY MATTER, COURSE OR THING
WHATSOEVER RELATING TO, ARISING OUT OF, BASED UPON, OR IN ANY MANNER CONNECTED
WITH, ANY TRANSACTION, EVENT, CIRCUMSTANCE, ACTION, FAILURE TO ACT, OR
OCCURRENCE OF ANY SORT OR TYPE, WHETHER KNOWN OR UNKNOWN, WHICH OCCURRED,
EXISTED, WAS TAKEN, PERMITTED, BEGUN, OR OTHERWISE RELATED OR CONNECTED TO OR
WITH ANY OR ALL OF THE LOANS, THIS AGREEMENT, THE AMENDED CREDIT AGREEMENT, ANY
OR ALL OF THE LOAN DOCUMENTS, AND/OR ANY DIRECT OR INDIRECT ACTION OR OMISSION
OF ANY OF THE RELEASED PARTIES OR THE PRIOR LENDER PARTIES ARISING FROM ACTS OR
OMISSIONS OF THE RELEASED PARTIES OR THE PRIOR LENDER PARTIES THAT MAY HAVE
OCCURRED PRIOR TO THE CLOSING DATE. THE BORROWER FURTHER AGREES THAT FROM AND
AFTER THE DATE HEREOF, IT WILL NOT ASSERT TO ANY PERSON OR ENTITY THAT ANY
DETERIORATION OF THE BUSINESS OPERATIONS OR FINANCIAL CONDITION OF THE BORROWER
WAS CAUSED BY ANY BREACH OR WRONGFUL ACT OF ANY OF THE RELEASED PARTIES OR THE
PRIOR LENDER PARTIES OCCURRING PRIOR TO THE DATE HEREOF.
It is the intention of the parties that the foregoing shall be
effective as a full and final accord and satisfactory release of each and every
matter specifically or generally referred to above. In furtherance of this
intention, the parties acknowledge that each is familiar with Section 1542 of
the California Civil Code, which provides as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
The parties hereto waive and relinquish any right and benefits which they each
may have under said Section 1542. The parties acknowledge that they may
hereafter discover facts in addition to or different from those which they now
know or believe to be true with respect to the Action or the subject matter of
this Agreement, but it is their intention to fully, finally and forever settle
and release any and all matters, disputes and differences, known or unknown,
suspected or unsuspected, which do now exist, may exist or heretofore have
existed between them.
ARTICLE III
CONDITIONS TO CLOSING
SECTION 3.01. CONDITIONS TO CLOSING. The obligation of each Lender to make
a Syndicated Term Loan or of CKE to make a Revolving Participated Loan on the
occasion of the first Borrowing, and to restructure the obligations hereunder,
is subject to the satisfaction of the conditions set forth below and receipt by
the Agent of the documents, instruments, agreements and certificates set forth
20
<PAGE>
below (in sufficient number of counterparts (except as to the Notes and the
Warrants) for delivery of a counterpart to each Lender and retention of one
counterpart by the Agent):
(a) from each of the parties hereto of either (i) a duly executed
counterpart of this Agreement signed by such party or (ii) a facsimile
transmission stating that such party has duly executed a counterpart of this
Agreement and sent such counterpart to the Agent;
(b) duly executed originals of the Syndicated Term Loan Notes and
the Revolving Participated Loan;
(c) duly executed originals of the Warrants;
(d) duly executed Registration Rights Agreement;
(e) duly executed Amended and Restated Security Agreement;
(f) duly executed Guaranty by each of the Guarantors;
(g) duly executed Guarantor Security Agreements;
(h) a certificate (the "Closing Certificate") substantially in the
form of EXHIBIT 3.01(h)), dated as of the Closing Date, signed by a principal
financial officer of the Borrower, to the effect that (i) no Default has
occurred and is continuing, and (ii) the representations and warranties of the
Borrower contained in Article IV are true on and as of the Closing Date;
(i) an opinion letter (together with any opinions of local counsel
relied on therein) of Shumaker, Loop & Kendrick, counsel for the Borrower, dated
as of the Closing Date, substantially in the form of EXHIBIT 3.01(i) and
covering such additional matters relating to the transactions contemplated
hereby as the Agent or any Lender may reasonably request;
(j) all documents which the Agent or any Lender may reasonably
request relating to the existence of the Borrower and the Guarantors, the
corporate authority for and the validity of this Agreement, the Notes, the
Warrant Agreements and the other Loan Documents and any other matters relevant
hereto, or thereto, all in form and substance reasonably satisfactory to the
Agent, including, without limitation, a certificate of incumbency of each of the
Borrower and the Guarantors, signed by the Secretary or an Assistant Secretary
of the Borrower and the Guarantors, certifying as to the names, true signatures
and incumbency of the officer or officers, respectively, of the Borrower and the
Guarantors authorized to execute and deliver the Loan Documents, and certified
copies of the following items, for the Borrower and each of the Guarantors,
respectively: (i) Certificate/Articles of Incorporation, (ii) Bylaws, (iii) a
certificate of the Secretary of State of the state of incorporation of each as
to the good standing of each as a corporation in that state, and (iv) the action
taken by the Board of Directors authorizing the execution, delivery and
performance of this Agreement, the Notes, the Warrants and the other Loan
Documents to which the Borrower or any of the Guarantors is a party;
(k) a list in the form of EXHIBIT 3.01(k) hereto certified by the
principal financial officer of the Borrower, of all insurance required by
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<PAGE>
Section 5.17 showing the insurer, the face amount and the nature of coverage,
and the Agent as a loss payee (or beneficiary, as the case may be) under each
policy then in force;
(l) all mortgages and security interests securing the Borrower's
obligations hereunder (and the Guarantors' obligations under the Guaranties)
shall be duly perfected and validly recorded; and
(m) there shall not have occurred any material adverse change in the
condition (financial or otherwise), operation, properties, assets, liabilities,
earnings or prospects of the Borrower or the Guarantors since September 9, 1996.
SECTION 3.02. CONDITIONS TO ALL BORROWINGS. The obligation of CKE to make
a Revolving Participated Loan on the occasion of each Borrowing is subject to
the satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing;
(b) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the Borrower
contained in Article IV of this Agreement shall be true on and as of the date of
such Borrowing; and
(d) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Revolving Participated Loans will not exceed
the amount of the Commitment.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the truth and accuracy of the
facts specified in paragraphs (b), (c) and (d) of this Section; provided that
such Borrowing shall not be deemed to be such a representation and warranty to
the effect set forth in Section 4.04(b) as to any event, act or condition having
a Material Adverse Effect which has theretofore been disclosed in writing by the
Borrower to the Lenders if the aggregate outstanding principal amount of the
Loans immediately after such Borrowing will not exceed the aggregate outstanding
principal amount thereof immediately before such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Borrower is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification is
necessary, except where the failure to qualify could not reasonably be expected
22
<PAGE>
to have or cause a Material Adverse Effect, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, except where the failure to have any license,
authorization, consent or approval could not reasonably be expected to have or
cause a Material Adverse Effect.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION.
The execution, delivery and performance by the Borrower of this Agreement, the
Notes, the Warrant Agreements and the other Loan Documents delivered as of the
Closing Date (i) are within the Borrower's corporate powers, (ii) have been duly
authorized by all necessary corporate action, (iii) require no action by or in
respect of or filing with, any governmental body, agency or official, (iv) do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Borrower
or of any agreement, judgment, injunction, order, decree or other material
instrument binding upon the Borrower or any Guarantor, and (v) do not result in
the creation or imposition of any Lien on any asset of the Borrower or any
Guarantor other than Liens created or imposed pursuant to the Loan Documents.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of the Borrower enforceable in accordance with its terms, the
Notes, the Warrant Agreements and the other Loan Documents, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower enforceable in accordance with their respective
terms, provided that the enforceability hereof and thereof is subject in each
case to general principles of equity and to bankruptcy, insolvency and similar
laws affecting the enforcement of creditors' rights generally, and to standards
of good faith and commercial reasonableness.
SECTION 4.04. FINANCIAL INFORMATION. (a) The consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of January 1, 1996, and the
related consolidated statements of income, shareholders' equity and cash flows
for the Fiscal Year then ended, reported on by KPMG Peat Marwick, and the
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries of
September 9, 1996, and the related consolidated statements of operations and
cash flows for the Fiscal Quarter then ended, copies of which have been
delivered to each of the Lenders, fairly present, in conformity with GAAP, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such dates and their consolidated results of operations and
cash flows for such periods stated.
(b) Since September 9, 1996 and excepted as disclosed in Schedule
4.04 attached hereto, there has been no event, act, condition or occurrence
having a Material Adverse Effect.
SECTION 4.05. NO LITIGATION. Except as disclosed as Schedule 4.05, there
is no action, suit or proceeding pending, or to the knowledge of the Borrower
threatened, against or affecting the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official which could
reasonably be expected to have or cause a Material Adverse Effect.
SECTION 4.06. COMPLIANCE WITH ERISA.
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(a) The Borrower and each member of the Controlled Group have
fulfilled their obligations in all material respects under the minimum funding
standards of ERISA and the Code with respect to each Plan and are in compliance
in all material respects with the presently applicable provisions of ERISA and
the Code, and have not incurred any liability to the PBGC or a Plan under Title
IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group is
or ever has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES. The Borrower and its
Consolidated Subsidiaries are in compliance with all applicable laws,
regulations and similar requirements of governmental authorities, except where
such compliance is being contested in good faith through appropriate proceedings
and except where the failure to comply could not reasonably be expected to have
or cause a Material Adverse Effect. There have been filed on behalf of the
Borrower and its Consolidated Subsidiaries all Federal and state income, excise,
property and other tax returns which are required to be filed by them and all
taxes due pursuant to such returns or pursuant to any assessment received by or
on behalf of the Borrower or any Consolidated Subsidiary have been paid. There
have been filed on behalf of the Borrower and its Consolidated Subsidiaries all
local income, excise, property and other tax returns that are required to be
filed by them and all taxes due pursuant to the returns or any assessment
received by Borrower or any Consolidated Subsidiary have been paid, except to
the extent that unfiled tax returns and unpaid taxes could not reasonably be
expected to have or cause a Material Adverse Effect. The charges, accruals and
reserves on the books of the Borrower and its Consolidated Subsidiaries in
respect of taxes or other governmental charges are, in the opinion of the
Borrower, adequate, except for any changes in taxes which are imposed
retroactively.
SECTION 4.08. CONSOLIDATED SUBSIDIARIES. Each of the Borrower's
Consolidated Subsidiaries is a corporation or other business entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted, except where the failure to have any license,
authorization, consent, or approval could not reasonably be expected to have or
cause a Material Adverse Effect. The Borrower has no Subsidiaries except for
those Subsidiaries listed on Schedule 4.08, which accurately sets forth each
such Subsidiary's complete name and jurisdiction of incorporation.
SECTION 4.09. INVESTMENT COMPANY ACT. Neither the Borrower nor any of its
Consolidated Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.10. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor
any of its Consolidated Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its
Consolidated Subsidiaries has title to its properties sufficient for the conduct
of its business, and none of such property is subject to any Lien except as
permitted in Section 5.11.
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SECTION 4.12. NO DEFAULT. Except as disclosed in the Forms 10K, 10Q and 8K
of Borrower filed with the Securities and Exchange Commission, neither the
Borrower nor any of its Consolidated Subsidiaries is in default under or with
respect to any agreement, instrument or undertaking to which it is a party or by
which it or any of its property is bound which could have or cause a Material
Adverse Effect and no Default or Event of Default has occurred and is
continuing.
SECTION 4.13. FULL DISCLOSURE. All written information heretofore
furnished by the Borrower to the Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the Agent or any
Lender will be, true, accurate and complete in every material respect or based
on reasonable estimates on the date as of which such information is stated or
certified. The Borrower has disclosed to the Lenders in writing any and all
facts which could have or cause a Material Adverse Effect.
SECTION 4.14. ENVIRONMENTAL MATTERS.
(a) Neither the Borrower nor any Consolidated Subsidiary is subject
to any Environmental Liability which could have or cause a Material Adverse
Effect as the Environmental Liability becomes due and neither the Borrower nor
any Consolidated Subsidiary has been designated as a potentially responsible
party under CERCLA or under any state statute similar to CERCLA. None of the
Properties has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) No Hazardous Materials are being used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed of, managed or
otherwise handled at, or shipped or transported to or from the Properties except
in material compliance with Environmental Requirements. No Hazardous Materials
are present at, on, in or under the Properties, or, to the best of the knowledge
of the Borrower, at or from any adjacent site or facility (except for Hazardous
Materials, such as cleaning solvents, pesticides and other materials used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed, or otherwise handled in minimal amounts in the ordinary
course of business in compliance with all applicable Environmental Requirements)
in such quantities that the cost to monitor, investigate, and/or remediate the
Hazardous Materials in compliance with Environmental Requirements could not
reasonably be expected to have or cause a Material Adverse Effect.
(c) The Borrower, and each of its Consolidated Subsidiaries, is in
compliance with all Environmental Requirements in connection with the operation
of the Properties and the Borrower's, and each of its Consolidated Subsidiary's
respective businesses, except where the potential Environmental Liability could
not reasonably be expected to have or cause a Material Adverse Effect.
SECTION 4.15. CAPITAL STOCK. All Capital Stock, debentures, bonds, notes
and all other securities of the Borrower and its Consolidated Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including but not limited to, the "Blue Sky" laws of
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all applicable states and the federal securities laws. The issued shares of
Capital Stock of the Borrower's Wholly Owned Subsidiaries are owned by the
Borrower free and clear of any Lien or adverse claim. At least a majority of the
issued shares of capital stock of each of the Borrower's Subsidiaries other than
Wholly Owned Subsidiaries is owned by the Borrower free and clear of any Lien or
adverse claim.
SECTION 4.16. MARGIN STOCK. Neither the Borrower nor any of its
Consolidated Subsidiaries is engaged principally, or as one of its important
activities, in the business of purchasing or carrying any Margin Stock, and no
part of the proceeds of any Loan will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock, or be used for any purpose which violates, or which is
inconsistent with, the provisions of Regulation X.
SECTION 4.17. INSOLVENCY. After giving effect to the execution and
delivery of this Agreement, the Notes and the other Loan Documents, the Borrower
will not be "insolvent," within the meaning of such term as defined in ss. 101
of Title 11 of the United States Code or Section 2 of the Uniform Fraudulent
Transfer Act, or any other applicable state law pertaining to fraudulent
transfers, as amended from time to time, or be unable to pay its debts generally
as such debts become due, or have an unreasonably small capital to engage in any
business or transaction, whether current or contemplated.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any amount payable hereunder or
under any Note remains unpaid:
SECTION 5.01. INFORMATION.
(a) The Borrower will deliver to each of the Lenders:
(i) as soon as available and in any event within 120 days
after the end of each Fiscal Year, a consolidated
balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of operations,
stockholders' equity and cash flows for such Fiscal
Year, setting forth in each case in comparative form the
figures for the previous fiscal year, all certified by
KPMG Peat Marwick or other independent public
accountants of nationally recognized standing, with such
certification to be free of exceptions and
qualifications not acceptable to the Required Lenders;
(ii) as soon as available and in any event within 45 days
after the end of each of the first 3 Fiscal Quarters of
each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end
of such Fiscal Quarter and the related statements of
operations and statements of cash flows for such
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Fiscal Quarter and for the portion of the Fiscal Year
ended at the end of such Fiscal Quarter, setting forth
in each case in comparative form the figures for the
corresponding Fiscal Quarter and the corresponding
portion of the previous Fiscal Year, all certified
(subject to normal year-end adjustments) as to fairness
of presentation, GAAP and consistency by the chief
financial officer or the chief accounting officer of the
Borrower, except to the extent that interim financial
statements on Form 10-Q do not require footnotes and
other disclosures that would otherwise be required by
GAAP;
(iii) simultaneously with the delivery of each set of
financial statements referred to in paragraphs (i) and
(ii) above and at the end of each Reporting Period, a
certificate, substantially in the form of EXHIBIT
5.01(a)(iii) (a "Compliance Certificate"), of the chief
financial officer or the chief accounting officer of the
Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower
was in compliance with the requirements of Sections 5.03
through 5.11, inclusive, and 5.14 on the date of such
financial statements and (ii) stating whether any
Default exists on the date of such certificate and, if
any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(iv) simultaneously with the delivery of each set of annual
financial statements referred to in paragraph (a)(i)
above, a statement of the firm of independent public
accountants which reported on such statements to the
effect that nothing has come to their attention to cause
them to believe that any Default existed on the date of
such financial statements, or, if any Default then
exists, setting forth the details thereof, and a copy of
the audit report and/or management letter provided by
such accountants to the Borrower;
(v) within 5 Domestic Business Days after the Borrower has
knowledge of the occurrence of any Default, a
certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth the
details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(vi) promptly upon the mailing thereof to the stockholders of
the Borrower generally, copies of all financial
statements, reports and proxy statements so mailed; and
(vii) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto
and any registration statements on Form S-8 or its
equivalent) and annual, quarterly or monthly reports
which the Borrower shall have filed with the Securities
and Exchange Commission.
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(b) Upon the request of the Agent or any Lender, the Borrower will
deliver to each of the Lenders:
(i) if and when any member of the Controlled Group (A) gives
or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA)
with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has
given or is required to give notice of any such
reportable event, a copy of the notice of such
reportable event given or required to be given to the
PBGC; (B) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of
such notice; or (C) receives notice from the PBGC under
Title IV of ERISA of an intent to terminate or appoint a
trustee to administer any Plan, a copy of such notice;
and
(ii) as soon as available and in any event within 25 days
after the end of each of the first 12 Reporting Periods
of each Fiscal Year, a consolidated statement of income
and balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such Reporting Period and
for the portion of the Fiscal Year ended at the end of
such Reporting Period, setting forth in each case in
comparative form the figures for the corresponding
Reporting Period and the corresponding portion of the
previous Fiscal Year, all certified (subject to normal
year-end adjustments) as to fairness of presentation,
GAAP and consistency by the chief financial officer or
the chief accounting officer of the Borrower, except to
the extent that interim financial statements do not
require footnotes and that such financial statements are
subject to normal year-end adjustments;
(iii) promptly upon receipt or obtaining knowledge thereof,
any and all bona fide offers or expressions of interest
(whether verbal or written, solicited or unsolicited) to
merge with or to acquire all or any part of the assets
or capital stock of the Borrower;
(iv) within 25 days after the end of each Reporting Period, a
variance report which reconciles the performance of the
Borrower for the immediately preceding Reporting Period
to the projected budget of the Borrower for such period;
(v) within 25 days after the end of each Reporting Period,
an accounts payable schedule for the Borrower;
(vi) within 25 days after the end of each fiscal quarter of
the Borrower, a written schedule of all fee simple and
leased properties of the Borrower as of such date;
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(vii) within 25 days after the end of each Reporting Period, a
written schedule of the revenues, profit contributions
and other operating and financial information with
respect to each Checkers Restaurant, on an individual
and regional basis;
(viii)within 5 days after the end of each calendar week,
written weekly sales reports with respect to each
Checkers Restaurant, on an individual and regional
basis;
(ix) within 25 days after the end of each Reporting Period, a
written summary of the Borrower's advertising and
promotional activities, including a summary of amounts
expended in connection therewith and a cost/benefit
analysis of such expenditures; and
(x) from time to time such additional information regarding
the financial position or business of the Borrower and
its Subsidiaries as may be reasonably requested.
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The Borrower will
(i) keep, and cause each Consolidated Subsidiary to keep, proper books of record
and account in which full, true and correct entries in conformity with GAAP
shall be made of all dealings and transactions in relation to its business and
activities; and (ii) permit, and cause each Wholly Owned Subsidiary to permit,
representatives of any Lender at the Borrower's expense to visit and inspect any
of their respective properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers, employees and independent public
accountants. The Borrower agrees to cooperate and assist in such visits and
inspections, in each case at such reasonable times and as often as may
reasonably be desired.
SECTION 5.03. MINIMUM CONSOLIDATED EBITDA. For each three consecutive
Reporting Period cycle ending with the Reporting Period listed below,
Consolidated EBITDA shall not be less than the amounts listed below:
Reporting Period Amount ($)
---------------- ----------
Fiscal Year 1996: N/A
Fiscal Year 1997: Reporting Period 1 625,000
Reporting Period 2 1,000,000
Reporting Period 3 1,250,000
Reporting Period 4 1,250,000
Reporting Periods 5-6 1,250,000
Reporting Periods 7-9 1,300,000
Reporting Periods 10-13 2,000,000
Fiscal Year 1998: Reporting Periods 1-13 2,750,000
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Reporting Period Amount ($)
---------------- ----------
Fiscal Year 1999: Reporting Periods 1 through 2,750,000
the Reporting Period in which
the Termination Date occurs.
SECTION 5.04. CAPITAL EXPENDITURES. Capital Expenditures shall not exceed
(a) $1,500,000 for the period from September 16, 1996 through the end of Fiscal
Year 1996, and (b) $4,000,000 for any Fiscal Year thereafter (unless otherwise
approved by the Borrower's Board of Directors).
SECTION 5.05. INTENTIONALLY DELETED.
SECTION 5.06. INTENTIONALLY DELETED.
SECTION 5.07. RESTRICTED PAYMENTS. The Borrower will not declare or make
any Restricted Payments other than Restricted Payments made for the purpose of
purchasing any redeemable warrants issued in a rights offering.
SECTION 5.08. LIMITATION ON INDEBTEDNESS. Neither the Borrower nor any of
its Subsidiaries will create, incur, assume, or become, be or remain liable in
any manner in respect of, or allow to exist, any Indebtedness (which term shall
include: all indebtedness, obligations and liabilities which in accordance with
generally accepted accounting principles would be reflected on the balance sheet
of the Borrower as a liability; all indebtedness, obligations and liabilities,
whether or not assumed by Borrower or any Subsidiary, secured by any mortgage,
pledge or lien existing on property owned by the Borrower or any Subsidiary; and
all amounts representing rental payments which, in accordance with generally
accepted accounting principles, would be classified as a liability on its
balance sheet), except for:
(a) the Notes and any other obligations owed to the Lenders under
this Agreement or otherwise;
(b) Indebtedness of the Borrower existing as of the date of this
Agreement which is specifically disclosed in SCHEDULE 5.08 attached hereto;
(c) Indebtedness representing trade debt, wages, employee benefits,
advance payments on sales contracts and other indebtedness incurred in the
ordinary course of business;
(d) Indebtedness existing as of the date of this Agreement secured
by liens permitted by subsection (a) of Section 5.11;
(e) Liabilities for taxes, assessments, governmental charges, liens
or claims described in Section 5.16 hereof to the extent that payment thereof is
not required by such Section 5.16; and
(f) Indebtedness in respect of final judgments for the payment of
money not in excess of $10,000 in the aggregate at any time outstanding
(excluding sums covered by insurance) remaining unsatisfied and in effect for
any period of less than thirty (30) days or in respect of which a stay of
execution shall have been obtained pending an appeal or proceeding for review.
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SECTION 5.09. LOANS OR ADVANCES. Neither the Borrower nor any Guarantor
shall make loans or advances to any Person except (without duplication): (a)
loans or advances to employees not exceeding $50,000 in the aggregate principal
amount outstanding at any time, in each case made in the ordinary course of
business and consistent with practices existing on the Closing Date; (b)
deposits required by government agencies or public utilities; (c) loans,
advances or monetary capital contributions from the Borrower or a Guarantor to
any Guarantor, or from any Guarantor to the Borrower; (d) loans in existence on
the Closing Date not exceeding a total aggregate principal amount of $53,957,868
outstanding as described on Schedule 5.09 attached hereto, which are evidenced
by legally enforceable promissory notes and subject to the Lenders' perfected
Liens and shall be delivered to the Agent; and (e) loans or advances consented
to by the Required Lenders in connection with asset sales under Section 5.14 or
loans or advances in connection with asset sales which do not require the
consent of the Required Lenders; provided that after giving effect to the making
of any loans, advances or deposits permitted by this Section, the Borrower will
be in full compliance with all the provisions of this Agreement.
SECTION 5.10. INVESTMENTS. Neither the Borrower nor any Guarantor shall
make Investments in any Person except as permitted by Section 5.09 and except
Investments (i) in direct obligations of the United States Government maturing
within one year, (ii) in certificates of deposit issued by a commercial bank
whose long-term certificates of deposit are rated at least AA or the equivalent
thereof by Standard & Poor's Corporation and Aa or the equivalent thereof by
Moody's Investors Service, Inc., (iii) in commercial paper rated A1 or the
equivalent thereof by Standard & Poor's Corporation or P1 or the equivalent
thereof by Moody's Investors Service, Inc. and in either case maturing within 6
months after the date of acquisition, (iv) in tender bonds the payment of the
principal of and interest on which is fully supported by a letter of credit
issued by a United States bank whose long-term certificates of deposit are rated
at least AA or the equivalent thereof by Standard & Poor's Corporation and Aa or
the equivalent thereof by Moody's Investors Service, Inc, and (v) not in excess
of $150,000 individually.
SECTION 5.11. NEGATIVE PLEDGE. Neither the Borrower nor any Wholly Owned
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and identified on
SCHEDULE 5.11;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring or
constructing such asset;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged with or into the Borrower or a Consolidated
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof
by the Borrower or a Consolidated Subsidiary and not created in contemplation of
such acquisition;
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(f) Liens securing Indebtedness owing by any Subsidiary to the
Borrower;
(g) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing paragraphs of this Section, PROVIDED that (i) such Indebtedness is not
secured by any additional assets, and (ii) the amount of such Indebtedness
secured by any such Lien is not increased or, if increased, the excess of the
amount of the Indebtedness secured by any such lien over the amount of the
Indebtedness so refinanced extended, renewed, or refunded shall be tendered to
the Agent as a prepayment of the Syndicated Term Loans;
(h) Liens incidental to the conduct of its business or the ownership
of its assets which (i) do not secure Indebtedness and (ii) do not in the
aggregate materially detract from the value of its assets or materially impair
the use thereof in the operation of its business;
(i) any Lien on Margin Stock;
(j) Liens in favor of the Lenders created under the Loan Documents;
and
(k) Liens incurred by Borrower in the ordinary course of business
for items not past due and payable, including mechanics' and materialmen's liens
and deposits and charges for workers' compensation and liens for taxes and
assessments not past due and payable.
SECTION 5.12. MAINTENANCE OF EXISTENCE. The Borrower shall, and shall
cause each Subsidiary to, maintain its corporate existence and carry on its
business in substantially the same manner and in substantially the same fields
as such business is now carried on and maintained.
SECTION 5.13. DISSOLUTION. Neither the Borrower nor any of its Wholly
Owned Subsidiaries shall suffer or permit dissolution or liquidation either in
whole or in part or redeem or retire any shares of its own stock or that of any
Wholly Owned Subsidiary, except through corporate reorganization to the extent
permitted by Section 5.14.
SECTION 5.14. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Borrower
will not, nor will it permit any Wholly Owned Subsidiary to, consolidate or
merge with or into, or sell, lease or otherwise transfer all or any substantial
part of its assets to, any other Person, or discontinue or eliminate any
business line or segment; PROVIDED, HOWEVER, that if no Default has occurred and
is continuing (i) the Borrower may merge with another Person if (A) such Person
was organized under the laws of the United States of America or one of its
states, (B) the Borrower is the corporation surviving such merger, and (C)
immediately after giving effect to such merger, no Default shall have occurred
and be continuing, (ii) Subsidiaries of the Borrower may merge with one another
or, if the Borrower is the surviving corporation, the Borrower, and (iii) the
foregoing limitation on the sale, lease or other transfer of assets and on the
discontinuation or elimination of a business line or segment shall not prohibit
the Borrower from selling or permitting the sale of assets owned by the Borrower
and its Subsidiaries for not less than 85% (or a lesser percentage as may be
consented to by the Required Lenders in writing) of their book value PROVIDED
that any such sale or sales, in any single transaction or series of related
transactions, in excess of $250,000 shall be consented to in writing in advance
by the Required Lenders (other than sales of used buildings to franchisees to be
operated by such franchisees as Checkers Restaurants).
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SECTION 5.15. USE OF PROCEEDS. No portion of the proceeds of the Loans
will be used by the Borrower or any Subsidiary (i) in connection with, whether
directly or indirectly, any tender offer for, or other acquisition of, stock of
any corporation with a view towards obtaining control of such other corporation,
(ii) directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose
in violation of any applicable law or regulation.
SECTION 5.16. COMPLIANCE WITH LAWS; Payment of Taxes; SEC Filings. The
Borrower will, and will cause each of its Wholly Owned Subsidiaries and each
member of the Controlled Group to, comply with applicable laws (including but
not limited to ERISA), regulations and similar requirements of governmental
authorities (including but not limited to PBGC) in all material respects, except
where the necessity of such compliance is being contested in good faith through
appropriate proceedings. The Borrower will, and will cause each of its Wholly
Owned Subsidiaries to, pay promptly before past due all taxes, assessments,
governmental charges, claims for labor, supplies, rent and other obligations
which, if unpaid, might become or remain a lien against the property of the
Borrower or any Wholly Owned Subsidiary, except liabilities being contested in
good faith and against which, if requested by the Agent, the Borrower will set
up reserves in accordance with GAAP. The Borrower will timely file all reports
with the Securities and Exchange Commission (including Forms 10K, 10Q and 8K)
required to be filed under, and will otherwise comply in all respects with,
applicable securities laws.
SECTION 5.17. INSURANCE. The Borrower will maintain, and will cause each
of its Wholly Owned Subsidiaries to maintain (either in the name of the Borrower
or in such Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all its property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies of established repute engaged in the same or similar business,
and as required by the other Loan Documents.
SECTION 5.18. CHANGE IN FISCAL YEAR. The Borrower will not change its
Fiscal Year without the consent of the Required Lenders.
SECTION 5.19. MAINTENANCE OF PROPERTY. The Borrower shall, and shall cause
each Wholly Owned Subsidiary to, maintain all of its properties and assets in
good condition, repair and working order, except for ordinary wear and tear and
loss by casualty.
SECTION 5.20. ENVIRONMENTAL NOTICES. The Borrower shall furnish to the
Lenders and the Agent prompt written notice of all Environmental Liabilities,
pending, threatened or anticipated Environmental Proceedings, Environmental
Notices, Environmental Judgments and Orders, and Environmental Releases at, on,
in, under or in any way affecting the Properties or any adjacent property, and
all facts, events, or conditions that could lead to any of the foregoing.
SECTION 5.21. ENVIRONMENTAL MATTERS. The Borrower and its Wholly Owned
Subsidiaries will not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at, or
otherwise handle, or ship or transport to or from the Properties any Hazardous
Materials except for Hazardous Materials such as cleaning solvents, pesticides
and other similar materials used, produced, manufactured, processed, treated,
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recycled, generated, stored, disposed, managed, or otherwise handled in minimal
amounts in the ordinary course of business in compliance with all applicable
Environmental Requirements.
SECTION 5.22. ENVIRONMENTAL RELEASE. The Borrower agrees that upon the
occurrence of an Environmental Release at or on any of the Properties it will
act immediately to investigate the extent of, and to take appropriate remedial
action to eliminate, such Environmental Release, whether or not ordered or
otherwise directed to do so by any Environmental Authority.
SECTION 5.23. TRANSACTIONS WITH AFFILIATES. Excluding any transactions
otherwise permitted by this Agreement, neither the Borrower nor any of its
Wholly Owned Subsidiaries shall enter into, or be a party to (and the Borrower
shall use its best efforts to cause any other Subsidiary to not enter into or be
a party to), any transaction with any Affiliate of the Borrower or such
Subsidiary (which Affiliate is not the Borrower or a Subsidiary), except (i)
such transactions between and/or among the Borrower and its Wholly Owned
Subsidiaries which are permitted by law, consistent with its past practices, in
the ordinary course of business and pursuant to reasonable terms which are no
less favorable to Borrower or such Wholly Owned Subsidiary than would be
obtained in a comparable arm's length transaction with a Person which is not an
Affiliate or (ii) such transactions as are otherwise fully disclosed to the
Agent and the Lenders and consented to in writing in advance by the Required
Lenders.
SECTION 5.24. CERTAIN ACTION IN RESPECT OF PERMITTED SUBORDINATED
INDEBTEDNESS. The Borrower shall not amend, modify or otherwise change in any
respect having an adverse effect on the Borrower's financial condition or
results of operations or otherwise disadvantageous in any respect to the Agent
or the Lenders any of the terms or conditions of any Permitted Subordinated
Indebtedness (including, without limitation, any terms or conditions relating to
the payment of principal, interest or fees in connection therewith), or any
other document evidencing, securing or relating to any Permitted Subordinated
Indebtedness; PROVIDED, HOWEVER, that notwithstanding the foregoing the Borrower
shall be permitted to convert the Permitted Subordinated Indebtedness evidenced
by the Rall-Folks Notes, the RDG Note and the NTDT Note into common stock of the
Borrower on the terms and conditions specified in Borrower's Quarterly Report on
Form 10-Q for the period ended September 9, 1996.
ARTICLE VI
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the following events
(each, a "Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Loan or shall fail to pay any interest on any Loan within 5 Domestic Business
Days after such interest shall become due, or shall fail to pay any fee or other
amount payable hereunder within 5 Domestic Business Days after such fee or other
amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in: (i) Section 5.01 (except Section 5.01(a)(v)) and such failure
shall continue for 15 Business Days after the earlier to occur of (x) written
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notice thereof has been given to the Borrower by the Agent at the request of any
Lender or (y) the Borrower obtains knowledge of any such failure; or (ii)
Sections 5.01(a)(v), 5.02(ii), 5.03 to 5.15, inclusive, Sections 5.18, 5.23 or
5.24; or
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained or incorporated by reference in this Agreement (other than
those covered by paragraph (a) or (b) above) and such failure shall not have
been cured within 30 days after the earlier to occur of (i) written notice
thereof has been given to the Borrower by the Agent at the request of any Lender
or (ii) the Borrower otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or statement made by
the Borrower in Article IV of this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall prove to
have been incorrect or misleading in any material respect when made (or deemed
made); or
(e) the Borrower (other than Indebtedness described in Section
5.08(c) and Indebtedness described in Section 5.08(e) which is not delinquent
and for which adequate reserves have been established by the Borrower) or any
Wholly Owned Subsidiary shall fail to make any payment in respect of
Indebtedness outstanding in an aggregate amount in excess of $500,000 (other
than the Notes) when due or within any applicable grace period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Indebtedness of the Borrower or any Wholly Owned
Subsidiary outstanding in an aggregate amount in excess of $500,000 (including,
without limitation, any required mandatory prepayment or "put" of such
Indebtedness to the Borrower or any Wholly Owned Subsidiary) or enables (or,
with the giving of notice or lapse of time or both, would enable) the holders of
such Indebtedness or any Person acting on such holders' behalf to accelerate the
maturity thereof (including, without limitation, any required mandatory
prepayment or "put" of such Indebtedness to the Borrower or any Wholly Owned
Subsidiary); or
(g) the Borrower or any Wholly Owned Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Wholly Owned Subsidiary (with the exception of
Checkers of Chicago, Inc.) seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Wholly Owned Subsidiary
under the federal bankruptcy laws as now or hereafter in effect; or
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(i) the Borrower or any member of the Controlled Group shall fail to
pay when due any material amount which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any member
of the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any such Plan or Plans must be terminated; or the Borrower or any other member
of the Controlled Group shall enter into, contribute or be obligated to
contribute to, terminate or incur any withdrawal liability with respect to, a
Multiemployer Plan;
(j) one or more final, nonappealable judgments or orders for the
payment of money in an aggregate amount in excess of $1,000,000 shall be
rendered against the Borrower or any Wholly Owned Subsidiary and such judgment
or order shall continue unsatisfied and unstayed for a period of 30 days; or
(k) a federal tax lien for a claimed amount in excess of $100,000
shall be filed against the Borrower under Section 6323 of the Code or a lien of
the PBGC shall be filed against the Borrower under Section 4068 of ERISA and in
either case such lien shall remain undischarged for a period of 25 days after
the date of filing; or
(l) except as a result of the election of representatives of Lenders
to Borrower's Board of Directors on the Closing Date pursuant to this Agreement
or any additional stock purchases by Lenders, as of any date a majority of the
Board of Directors of the Borrower consists of individuals who were not either
(A) directors of the Borrower as of the corresponding date of the previous year,
(B) selected or nominated to become directors by the Board of Directors of the
Borrower of which a majority consisted of individuals described in clause (A),
or (C) selected or nominated to become directors by the Board of Directors of
the Borrower of which a majority consisted of individuals described in clause
(A) and individuals described in clause (B); or
(m) (i) any default by the Borrower or any of the Guarantors under
any of the Loan Documents shall exist after the satisfaction of any applicable
grace, notice or cure periods, if any, (ii) any Loan Documents (including,
without limitation, the Guaranty) shall cease to be enforceable, or (iii) any
Guarantor or the Borrower shall assert that any Loan Document (including,
without limitation, the Guaranty) shall cease to be enforceable
then, and in every such event (an "Event of Default"), the Agent shall if
requested by the Required Lenders, by notice to the Borrower declare the Notes
(together with accrued interest thereon) to be, and the Notes shall thereupon
become, immediately due and payable without presentment, demand, protest or
additional notice of any kind, all of which are hereby waived by the Borrower
together with interest at the Default Rate accruing on the principal amount
thereof from and after the date of such Event of Default; provided that if any
Event of Default specified in paragraph (g) or (h) above occurs with respect to
the Borrower, without any notice to the Borrower or any other act by the Agent
or the Lenders, the Notes (together with accrued interest thereon) shall become
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immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower together with
interest thereon at the Default Rate accruing on the principal amount thereof
from and after the date of such Event of Default. Notwithstanding the foregoing,
the Agent shall have available to it all other remedies at law or equity, and
shall, subject to the provisions of Article VII, exercise any one or all of them
at the request of the Required Lenders.
ARTICLE VII
THE AGENT
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents with such powers as are specifically delegated to
the Agent by the terms hereof and thereof, together with such other powers as
are reasonably incidental thereto. The Agent: (a) shall have no duties or
responsibilities except as expressly set forth in this Agreement and the other
Loan Documents, and shall not by reason of this Agreement or any other Loan
Document be a trustee for any Lender; (b) shall not be responsible to the
Lenders for any recitals, statements, representations or warranties contained in
this Agreement or any other Loan Document, or in any certificate or other
document referred to or provided for in, or received by any Lender under, this
Agreement or any other Loan Document, or for the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or any other document referred to or provided for herein or therein or
for any failure by the Borrower to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document except to the
extent requested by the Required Lenders, and then only on terms and conditions
reasonably satisfactory to the Agent, and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or wilful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. The
provisions of this Article VII are solely for the benefit of the Agent and the
Lenders, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Agent shall act solely as
agent of the Lenders and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and administrative in
nature, and the Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Lender.
SECTION 7.02. RELIANCE BY AGENT. The Agent shall be entitled to rely upon
any certification, notice or other communication (including any thereof by
telephone, telefax, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants or
other experts selected by the Agent. As to any matters not expressly provided
for by this Agreement or any other Loan Document, the Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and
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thereunder in accordance with instructions signed by the Required Lenders, and
such instructions of the Required Lenders in any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders.
SECTION 7.03. DEFAULTS. The Agent shall not be deemed to have knowledge of
the occurrence of a Default or an Event of Default unless the Agent has received
notice from a Lender or the Borrower specifying such Default or Event of Default
and stating that such notice is a "Notice of Default". In the event that the
Agent receives such a notice of the occurrence of a Default or an Event of
Default, the Agent shall give prompt notice thereof to the Lenders. The Agent
shall (subject to Section 9.06) take such action hereunder with respect to such
Default or Event of Default as shall be directed by the Required Lenders,
provided that, unless and until the Agent shall have received such directions,
the 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 it shall
deem advisable in the best interests of the Lenders.
SECTION 7.04. RIGHTS OF AGENT AS A LENDER. CKE and its successors and
assigns, in its capacity as a Lender hereunder, shall have the same rights,
powers and obligations hereunder as any other Lender and may exercise the same
as though it were not acting as the Agent, and the term "Lender" or "Lenders"
shall, unless the context otherwise indicates, include CKE in its individual
capacity. The Agent may (without having to account therefor to any Lender)
accept deposits from, lend money to and generally engage in any kind of banking,
trust or other business with the Borrower (and any of its Affiliates) as if it
were not acting as the Agent, and the Agent may accept fees and other
consideration from the Borrower (in addition to any agency fees and arrangement
fees heretofore or hereinafter agreed to between the Borrower and the Agent) for
services in connection with this Agreement or any other Loan Document or
otherwise without having to account for the same to the Lenders.
SECTION 7.05. INDEMNIFICATION. Each Lender severally agrees to indemnify
the Agent, to the extent the Agent shall not have been reimbursed by the
Borrower, in an amount equal to its Pro Rata Share, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and is continuing,
the normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or any such other documents; PROVIDED, HOWEVER that no Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or wilful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the opinion of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
SECTION 7.06. PAYEE OF NOTE TREATED AS OWNER. The Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof shall have been
filed with the Agent and the provisions of Section 9.08(c) have been satisfied.
Any requests, authority or consent of any Person who at the time of making such
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request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of that
Note or of any Note or Notes issued in exchange therefor or replacement thereof.
SECTION 7.07. NONRELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees
that it has, independently and without reliance on the Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and decision to enter
into this Agreement and that it will, independently and without reliance upon
the 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 analysis and
decisions in taking or not taking action under this Agreement or any of the
other Loan Documents. The Agent shall not be required to keep itself informed as
to the performance or observance by the Borrower of this Agreement or any of the
other Loan Documents or any other document referred to or provided for herein or
therein or to inspect the properties or books of the Borrower or any other
Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Agent hereunder or
under the other Loan Documents, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Borrower or any
other Person (or any of their Affiliates) which may come into the possession of
the Agent.
SECTION 7.08. FAILURE TO ACT. Except for action expressly required of the
Agent hereunder or under the other Loan Documents, the Agent shall in all cases
be fully justified in failing or refusing to act hereunder and thereunder unless
it shall receive further assurances to its satisfaction by the Lenders of their
indemnification obligations under Section 7.05 against any and all liability and
expense which may be incurred by the Agent by reason of taking, continuing to
take, or failing to take any such action.
SECTION 7.09. RESIGNATION OR REMOVAL OF AGENT. Subject to the appointment
and acceptance of a successor Agent as provided below, the Agent may resign at
any time by giving notice thereof to the Lenders and the Borrower, and the Agent
may be removed at any time with or without cause by the Required Lenders. If a
Lender which is serving as Agent assigns all of its rights and interests
hereunder pursuant to Section 9.08 hereof, such assignment shall operate as, and
shall be deemed notice to the other Lenders and to the Borrower of, the Agent's
resignation. Upon any such resignation or removal, the Required Lenders or their
respective assignees shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders or their
respective assignees and shall have accepted such appointment within 30 days
after the retiring Agent's notice of resignation, the Required Lenders' removal
of the retiring Agent, or the retiring Agent's notice of assignment, then the
Retiring Agent may, on behalf of the Lenders, appoint a successor Agent. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder.
Notwithstanding the foregoing, if each Lender shall assign all of its respective
rights and interests hereunder pursuant to Section 9.08 hereof to the assignee
or assignees, then such assignee or assignees, or their respective designee,
shall automatically be deemed to be, and shall have all of the powers, rights
and privileges of, the Agent as of the effective date of such assignment unless
and until the Required Lenders remove such assignee or assignees as Agent and
appoint a Successor Agent as provided above. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
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shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent hereunder.
ARTICLE VIII
[INTENTIONALLY DELETED]
ARTICLE IX
MISCELLANEOUS
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SECTION 9.01. NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telecopier or
similar writing) and shall be given to such party at its address or telecopier
number set forth on the signature pages hereof or such other address or
telecopier number as such party may hereafter specify for the purpose by notice
to each other party. Each such notice, request or other communication shall be
effective (i) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified in this Section and the appropriate confirmation is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iii)
if given by any other means, when delivered at the address specified in this
Section; provided that notices to the Agent under Article II or Article VIII
shall not be effective until received.
SECTION 9.02. NO WAIVERS. No failure or delay by the Agent or any Lender
in exercising any right, power or privilege hereunder or under any Note or other
Loan Document shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. EXPENSES; DOCUMENTARY TAXES. The Borrower shall pay (i) all
reasonable out-of-pocket expenses of the Agent, including reasonable fees and
disbursements of special counsel for the Lenders and the Agent and of special
counsel for the Prior Lenders and the Prior Agent, in connection with the
preparation of this Agreement and the other Loan Documents (including all of
such fees and disbursements of special counsel for the Prior Lenders and the
Prior Agent which were incurred up to the Closing Date in connection with prior
amendments, extensions, waivers and other actions relating to the Amended Credit
Agreement and the other Loan Documents (as defined in the Amended Credit
Agreement)), any waiver or consent hereunder or thereunder or any amendment
hereof or thereof or any Default or alleged Default hereunder or thereunder and
(ii) if a Default occurs, all out-of-pocket expenses incurred by the Agent and
the Lenders, including fees and disbursements of counsel, in connection with
such Default and collection and other enforcement proceedings resulting
therefrom, including out-of-pocket expenses incurred in enforcing this Agreement
and the other Loan Documents. The Borrower shall pay all of the expenses
described in clause (i) of this Section on or within 90 days following
consummation of the Rights Offering, or on May 31, 1996, if the Rights Offering
is not consummated on or prior to such date. The Borrower shall indemnify the
Agent and each Lender against any transfer taxes, documentary taxes, assessments
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or charges made by any Authority by reason of the execution and delivery of this
Agreement or the other Loan Documents.
SECTION 9.04. INDEMNIFICATION. The Borrower shall indemnify the Agent, the
Lenders and each affiliate thereof and their respective directors, officers,
partners, trustees, beneficiaries, controlling persons, shareholders, employees
and agents from, and hold each of them harmless against, any and all losses,
liabilities, claims or damages to which any of them may become subject, insofar
as such losses, liabilities, claims or damages arise out of or result from (i)
any actual or proposed use by the Borrower of the proceeds of any extension of
credit by any Lender hereunder, or (ii) breach by the Borrower of this Agreement
(including, without limitation, representations, warranties and covenants
relating to environmental matters) or any other Loan Document, or (iii) any acts
or omissions of any of the Prior Lenders that may have occurred prior to the
Closing Date or any and all claims that any of the Prior Lenders (A) is in any
way responsible for the past, current or future condition or deterioration of
the business operations and/or financial condition of the Borrower, or (B)
breached any agreement to loan money or make other financial accommodations
available to the Borrower or to fund any operations of the Borrower at any time,
and from and of any and all other claims, damages, losses, actions,
counterclaims, suits, judgments, obligations, liabilities, defenses, affirmative
defenses, setoffs, and demands of any kind or nature whatsoever, in law or in
equity, whether presently known or unknown, which the Borrower or any Guarantor
may have had, now have, or which it can, shall or may have for, upon, or by
reason of any matter, course or thing whatsoever relating to, arising out of,
based upon, or in any manner connected with, any transaction, event,
circumstance, action, failure to act, or occurrence of any sort or type, whether
known or unknown, which occurred, existed, was taken, permitted, begun, or
otherwise related or connected to or with any or all of the Loans, this
Agreement, the Amended Credit Agreement, any or all of the Loan Documents,
and/or any direct or indirect action or omission of any of the Lender Parties
arising from acts or omissions of the Lender Parties that may have occurred
prior to the closing date, or (iv) from any investigation, litigation
(including, without limitation, any actions taken by the Agent or any of the
Lenders to enforce this Agreement or any of the other Loan Documents) or other
proceeding (including, without limitation, any threatened investigation or
proceeding) relating to the foregoing, and the Borrower shall reimburse the
Agent and each Lender, and each affiliate thereof and their respective
directors, officers, employees and agents, upon demand for any expenses
(including, without limitation, legal fees) incurred in connection with any such
investigation or proceeding; but excluding any such losses, liabilities, claims,
damages or expenses incurred by reason of the gross negligence or wilful
misconduct of the Person to be indemnified.
SECTION 9.05. SHARING OF SETOFFS. Each Lender agrees that if it shall, by
exercising any right of setoff or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest owing with
respect to the Notes held by it which is greater than the proportion received by
any other Lender in respect of the aggregate amount of all principal and
interest owing with respect to the Notes held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Lenders owing to such other
Lenders, and such other adjustments shall be made, as may be required so that
all such payments of principal and interest with respect to the Notes held by
the Lenders owing to such other Lenders shall be shared by the Lenders pro rata;
PROVIDED that (i) nothing in this Section shall impair the right of any Lender
to exercise any right of setoff or counterclaim it may have and to apply the
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amount subject to such exercise to the payment of indebtedness of the Borrower
other than its indebtedness under the Notes, and (ii) if all or any portion of
such payment received by the purchasing Lender is thereafter recovered from such
purchasing Lender, such purchase from each other Lender shall be rescinded and
such other Lender shall repay to the purchasing Lender the purchase price of
such participation to the extent of such recovery together with an amount equal
to such other Lender's ratable share (according to the proportion of (x) the
amount of such other Lender's required repayment to (y) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of setoff
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 9.06. AMENDMENTS AND WAIVERS.
(a) Any provision of this Agreement, the Notes or any other Loan
Documents may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Lenders (and, if the
rights or duties of the Agent are affected thereby, by the Agent); PROVIDED
that, no such amendment or waiver shall, unless signed by all Lenders, (i)
change the Pro Rata Share of any Lender or subject any Lender to any additional
obligation, (ii) change the principal of or rate of interest on any Syndicated
Term Loan or any fees or other amounts payable hereunder, (iii) change the date
fixed for any payment of principal or interest on any Syndicated Term Loan or
the amount of principal or interest due on any date fixed for the payment
thereof, (iv) change the percentage of Lenders which shall be required for the
Lenders or any of them to take any action under this Section or any other
provision of this Agreement, (v) release or substitute all or a substantial
portion of the collateral (if any) held as security for the Borrower's
obligations hereunder, or (vi) release any Guarantee given to support payment of
the Borrower's obligations hereunder.
(b) The Borrower will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement unless each Lender shall be informed thereof by the Borrower and shall
be afforded an opportunity of considering the same and shall be supplied by the
Borrower with sufficient information to enable it to make an informed decision
with respect thereto. Executed or true and correct copies of any waiver or
consent effected pursuant to the provisions of this Agreement shall be delivered
by the Borrower to each Lender forthwith following the date on which the same
shall have been executed and delivered by the requisite percentage of Lenders.
The Borrower will not, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Lender (in its capacity as such) as consideration for or as an
inducement to the entering into by such Lender of any waiver or amendment of any
of the terms and provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all such Lenders.
SECTION 9.07. NO MARGIN STOCK COLLATERAL. Each of the Lenders represents
to the Agent and each of the other Lenders that it in good faith is not,
directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
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SECTION 9.08. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns; provided that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement.
(b) Any Lender (or successor or assignee of 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, or any other
interest of such Lender hereunder. In the event of any such sale by a Lender of
a participating interest to a Participant, such Lender's 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, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. In no event shall a Lender
that sells a participation be obligated to the Participant to take or refrain
from taking any action hereunder except that such Lender may agree that it will
not (except as provided below), without the consent of the Participant, agree to
(i) the change of any date fixed for the payment of principal of or interest on
the related loan or loans, (ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment thereof with respect to
the related loan or loans, (iii) the change of the principal of the related loan
or loans, (iv) any change in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) fee is payable
hereunder from the rate at which the Participant is entitled to receive interest
or fee (as the case may be) in respect of such participation, (v) the release or
substitution of all or any substantial part of the collateral (if any) held as
security for the Borrower's obligations hereunder, or (vi) the release of any
Guarantee given to support payment of the Borrower's obligations hereunder. Each
Lender selling a participating interest in any Syndicated Term Loan, Note, or
other interest under this Agreement shall provide the Borrower and the Agent
with written notification stating that such sale has occurred and identifying
the Participant and the interest purchased by such Participant.
(c) Any Lender or assignee of any Lender (in either case, a
"Transferor") may at any time assign to one or more banks or other financial
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement, the Notes and the other Loan
Documents (but in no event shall such assignment of any portion of the principal
balance of any Note (other than the Revolving Participated Loan Note) be less
than either (i) the entire principal amount of such Note, or (ii) $2,000,000),
and such Assignee shall assume all rights and obligations of the Transferor
hereunder pursuant to an agreement executed by such Assignee, such Transferor
and the Agent in form and substance satisfactory to the Agent (an "Assignment
Agreement"). Upon (a) execution of the Assignment Agreement by such Transferor,
such Assignee and the Agent, (b) payment by such Assignee to such Transferor of
an amount equal to the purchase price agreed between such Transferor and such
Assignee, and (c) payment of a processing and recordation fee of $2,000 to the
Agent, 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 with a Pro Rata Share
as set forth in the Assignment Agreement, and the Transferor shall be released
from its obligations hereunder to a corresponding extent, and no further consent
or action by the Borrower, the Lenders or the Agent shall be required. Upon the
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consummation of any transfer to an Assignee pursuant to this paragraph (c), the
Transferor, the Agent and the Borrower shall make appropriate arrangements so
that, if required, a new Note (or Notes) is (are) issued to such Assignee.
(d) Subject to the provisions of Section 9.09, the Borrower
authorizes each Lender to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee who has agreed
in writing to be bound by Section 9.09 any and all financial 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
prior to entering into this Agreement.
(e) Intentionally Deleted.
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(f) Anything in this Section 9.08 to the contrary notwithstanding,
any Lender may assign and pledge all or any portion of the Syndicated Term Loans
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of such assigned
Syndicated Term Loans and/or obligations made by the Borrower to the assigning
and/or pledging Lender in accordance with the terms of this Agreement shall
satisfy the Borrower's obligations hereunder in respect of such assigned
Syndicated Term Loans and/or obligations to the extent of such payment. No such
assignment shall release the assigning and/or pledging Lender from its
obligations hereunder.
SECTION 9.09. CONFIDENTIALITY. Each Lender agrees to keep any information
delivered or made available by the Borrower to it which is clearly indicated to
be confidential information, confidential from anyone other than persons
employed or retained by such Lender who are or are expected to become engaged in
evaluating, approving, structuring or administering the Borrower's obligations
hereunder provided, that, such individuals shall be subject to the agreement
contained in this Section 9.09; PROVIDED, HOWEVER that nothing herein shall
prevent any Lender from disclosing such information (i) to any other Lender,
(ii) upon the order of any court or administrative agency after notice to the
Borrower, (iii) upon the request or demand of any regulatory agency or authority
having jurisdiction over such Lender after notice to the Borrower, (iv) which
has been publicly disclosed by Borrower, (v) to the extent reasonably required
in connection with any litigation to which the Agent, any Lender or their
respective Affiliates may be a party, (vi) to the extent reasonably required in
connection with the exercise of any remedy hereunder, (vii) to such Lender's
legal counsel and independent auditors and (viii) to any actual or proposed
Participant, Assignee or other Transferee of all or part of its rights
hereunder, provided that such proposed Participant, Assignee or other Transferee
agrees in writing to be bound by this Section.
SECTION 9.10. INTENTIONALLY DELETED.
SECTION 9.11. OBLIGATIONS SEVERAL. The obligations of each Lender
hereunder are several, and no Lender shall be responsible for the obligations or
commitment of any other Lender hereunder. Nothing contained in this Agreement
and no action taken by the Lenders pursuant hereto shall be deemed to constitute
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the Lenders to be a partnership, an association, a joint venture or any other
kind of entity. The amounts payable at any time hereunder to each Lender shall
be a separate and independent debt, and each Lender shall be entitled to protect
and enforce its rights arising out of this Agreement or any other Loan Document
and it shall not be necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
SECTION 9.12. CALIFORNIA LAW. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of California.
SECTION 9.13. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement, the Notes or any of the other Loan Documents should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby and shall be enforced to the
greatest extent permitted by law.
SECTION 9.14. INTEREST. In no event shall the amount of interest due or
payable hereunder or under the Notes exceed the maximum rate of interest allowed
by applicable law, and in the event any such payment is inadvertently made to
any Lender by the Borrower or inadvertently received by any Lender, then such
excess sum shall be credited as a payment of principal, unless the Borrower
shall notify such Lender in writing that it elects to have such excess sum
returned forthwith. It is the express intent hereof that the Borrower not pay
and the Lenders not receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid by the Borrower under
applicable law.
SECTION 9.15. INTERPRETATION. No provision of this Agreement or any of the
other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.16. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. The Borrower
and each of the Lenders and the Agent irrevocably (a) waives any and all right
to trial by jury in any legal proceeding arising out of this Agreement, any of
the other Loan Documents, or any of the transactions contemplated hereby or
thereby, (b) submits to the nonexclusive personal jurisdiction in the State of
California, the courts thereof and the United States District Courts sitting
therein, for the enforcement of this Agreement, the Notes and the other Loan
Documents, (c) waives any and all personal rights under the law of any
jurisdiction to object on any basis (including, without limitation,
inconvenience of forum) to jurisdiction or venue within the State of California
for the purpose of litigation to enforce this Agreement, the Notes or the other
Loan Documents, and (d) agrees that service of process may be made upon it in
the manner prescribed in Section 9.01 for the giving of notice to the Borrower.
Nothing herein contained, however, shall prevent the Agent from bringing any
action or exercising any rights against any security and against the Borrower
personally, and against any assets of the Borrower, within any other state or
jurisdiction.
SECTION 9.17. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
45
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
<TABLE>
<CAPTION>
<S> <C>
CHECKERS DRIVE-IN RESTAURANTS,
INC.
By: /s/ Albert J. DiMarco
--------------------------------------
Name: Albert J. DiMarco
Title: President & Chief Executive Officer
600 Cleveland Street
Suite 1050
Clearwater, Florida 34615
Attention: Chief Financial Officer
Telecopier number: (813) 443-7047
Telephone number: (813) 441-3500
CKE RESTAURANTS, INC.,
as Agent and as a Lender
By: /s/ W. P. Foley II
----------------------------------------
Name: W. P. Foley II
Tile:
1200 North Harbor Boulevard
Anaheim, California 92801
Attention:
Telecopier No.: (714)__________
Telephone No.: (714)__________
KCC DELAWARE
By: /s/ Terry Christensen
-----------------------------------------
Name: Terry Christensen
Title:
________________________
________________________
Attention:
Telecopier No.: ( )____________
Telephone No.: ( )____________
46
<PAGE>
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ Andrew Puzder
-----------------------------------------
Name: Andrew Puzder
Title:
________________________
________________________
Attention:
Telecopier No.: ( )____________
Telephone No.: ( )____________
THE TRAVELERS INDEMNITY COMPANY
By: /s/ Emil J. Molinaro, Jr.
-----------------------------------------
Name: Emil J. Molinaro, Jr.
Title:
________________________
________________________
Attention:
Telecopier No.: ( )____________
Telephone No.: ( )____________
/s/ William P. Foley II
--------------------------------------------
Name: William P. Foley II
Attention:
Telecopier No.: ( )____________
Telephone No.: ( )____________
/s/ Burt Sugarman
--------------------------------------------
Name: Burt Sugarman
________________________
________________________
Attention:
Telecopier No.: ( )____________
Telephone No.: ( )____________
47
<PAGE>
/s/ M'Liss Kane as proxy for
Carl Leo Karcher
--------------------------------------------
Name: Carl Leo Karcher
________________________
________________________
Attention:
Telecopier No.: ( )____________
Telephone No.: ( )____________
/s/ M'Liss Kane as proxy for
Stephen Mahood
--------------------------------------------
Name: Stephen Mahood
________________________
________________________
Attention:
Telecopier No.: ( )____________
Telephone No.: ( )____________
THE GALILEO FUND, L.P.
By: DDJ Galileo, LLC, its
General Partner
By: /s/ Illegible
---------------------------------------
Name:
Title:
141 Linden Street
Suite 4
Wellesley, MA 02181
Attention: Robert L. Hockett
Telecopier number: (617) 283-8555
Telephone number: (617) 283-8518
48
<PAGE>
FOOTHILL CAPITAL CORPORATION
By: /s/ Karen S. Sandler
---------------------------------------
Name: Karen S. Sandler
Title:
1111 Santa Monica Blvd.
Suite 1500
Los Angeles, CA 90025
Attention: Dennis Ascher
Telecopier number: (310) 479-0461
Telephone number: (310) 996-7156
CANPARTNERS INVESTMENTS IV, LLC
By: /s/ Joshua S. Friedman
----------------------------------------
Name: Joshua S. Friedman
Title:
c/o Canyon Partners
9665 Wilshire Boulevard
Suite 200
Beverly Hills, CA 90212
Attention: Scott Imbach
Telecopier number: (310) 247-2701
Telephone number: (310) 247-2700
49
</TABLE>
<PAGE>
SCHEDULE A
----------
<TABLE>
<CAPTION>
AMENDED CREDIT AGREEMENT AS OF JULY 29, 1996
<C> <C>
1. Amended and Restated Credit Agreement dated as of April 12, 1995 among Checkers
Drive-In Restaurants, Inc., the Prior Agent and the Prior Banks
2. Amendment Agreement dated as of July 26, 1995 among the Borrower, the Guarantors,
the Prior Agent and the Prior Banks
3. Second Amendment Agreement dated as of October 2, 1995 among the Borrower, the
Guarantors, the Prior Agent and the Prior Banks
4. Third Amendment Agreement dated as of January 2, 1996 among the Borrower, the
Guarantors, the Prior Agent and the Prior Banks
5. Fourth Amendment Agreement dated as of January 31, 1996 among the Borrower, the
Guarantors, the Prior Agent and the Prior Banks
6. Fifth Amendment Agreement dated as of February 29, 1996 among the Borrower, the
Guarantors, the Prior Agent and the Prior Banks
7. Sixth Amendment Agreement dated as of March 8, 1996 among the Borrower, the
Guarantors, the Prior Agent and the Prior Banks
8. Seventh Amendment Agreement dated as of March 11, 1996 among the Borrower, the
Guarantors, the Prior Agent and the Prior Banks
9. Eighth Amendment Agreement dated as of March 13, 1996 among the Borrower, the
Guarantors, the Prior Agent and the Prior Banks
10. Ninth Amendment Agreement dated as of March 15, 1996 among the Borrower, the
Guarantors, the Prior Agent and the Prior Banks
11. Tenth Amendment Agreement dated as of May 29, 1996 among the Borrower, the
Guarantors, the Prior Agent and the Prior Banks
12. Eleventh Amendment Agreement dated as of July 29, 1996 among the Borrower, the
Guarantors, the Prior Agent and the Prior Banks
50
</TABLE>
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
----------------------------------------------
THIS SECOND AMENDED AND RESTATED SECURITY AGREEMENT (this "Agreement") is
made as of the 22nd day of November, 1996, by and among CHECKERS DRIVE-IN
RESTAURANTS, INC., a Delaware corporation (the "Borrower") and CKE RESTAURANTS,
INC., as "Agent" for the ratable benefit of the "Lenders" under the Amended and
Restated Credit Agreement referred to below. Terms defined in the Amended and
Restated Credit Agreement shall have the same meaning under this assignment
except as otherwise provided.
RECITALS:
---------
A. The Borrower, certain banks (the "Initial Banks") and Wachovia Bank of
Georgia, N.A. (the "Initial Agent"), acting for itself and as agent for the
Initial Banks, executed and delivered that certain Credit Agreement, dated as of
October 28, 1993 (the "Original Credit Agreement").
B. The Borrower, the Initial Banks and the Initial Agent executed and
delivered that certain Security Agreement dated as of March 10, 1995 (the
"Original Security Agreement"), whereby the Borrower granted a security interest
in the Collateral (as defined in the Original Security Agreement) in order to
secure the Obligations (as defined in the Original Security
Agreement).
C. Concurrently with, and as a condition to, the execution and delivery of
amendments to the Original Credit Agreement, dated as of April 12, 1995 (the
Original Credit Agreement as so amended and as subsequently amended or otherwise
modified, the "Amended Credit Agreement"), the Borrower, the Initial Banks and
the Initial Agent agreed to amend and restate, as of April 12, 1995, the Amended
Security Agreement to grant a security interest in the Collateral (as defined
below) in order to secure certain additional Obligations (as defined below) of
the Borrower (such amended and restated Original Security Agreement is referred
to herein as the "Amended and Restated Security Agreement").
D. On November 12, 1996, pursuant to certain agreements, the Lenders and
the Agent acquired all right, title and interest of the Banks (as defined in the
original Credit Agreement), in, to and under the Amended Credit Agreement, the
Original Security Agreement and the other Loan Documents (as defined in the
Amended Credit Agreement).
E. Concurrently herewith, the Borrower, the Lenders and the Agent executed
and delivered that certain Amended and Restated Credit Agreement, dated as of
even date herewith (as amended, supplemented or otherwise modified from time to
time hereafter, the "Amended and Restated Credit Agreement") pursuant to which
the Lenders have restructured the Borrower's obligations under the Amended
Credit Agreement.
<PAGE>
F. As a condition, among others, to the Agent and the Lenders executing
and delivering the Amended and Restated Credit Agreement, the Borrower has
agreed to execute and deliver this Agreement in order to secure (i) the
Syndicated Term Loan Notes (ii) the Revolving Participated Loan Note, and (iii)
all of the other Obligations.
AGREEMENTS:
-----------
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which the parties hereto
acknowledge, the parties hereto agree that the Amended and Restated Security
Agreement is amended and restated in its entirety as follows:
DEFINITIONS
-----------
As used in this Agreement, the terms defined in the Preamble and Recitals
hereto shall have the respective meanings specified therein, and the following
terms shall have the following meanings (capitalized terms not otherwise defined
herein shall have the meaning set forth therefor in the Amended and Restated
Credit Agreement):
"Account" individually and "Accounts" collectively mean all of the
Borrower's right, title and interest in and to all presently existing or
hereafter acquired or created accounts, accounts receivable, contract rights,
documents of title, notes, drafts, instruments, acceptances, chattel paper,
securities, leases and writings evidencing a monetary obligation or a security
interest in or a lease of goods; all rights to receive the payment of money or
other consideration under present or future contracts (including, without
limitation, all rights to receive payments under presently existing or hereafter
acquired or created letters of credit), or by virtue of merchandise sold or
leased, services rendered, loans and advances made or other considerations
given, by or set forth in or arising out of any present or future chattel paper,
note, draft, lease, acceptance, writing, bond, insurance policy, instrument,
document or general intangible, and all extensions and renewals of any thereof;
all rights under or arising out of present or future contracts, agreements or
general interests in merchandise which gave rise to any or all of the foregoing,
including all goods; all claims or causes of action now existing or hereafter
arising in connection with or under any agreement or document or by operation of
law or otherwise; all collateral security of any kind (including real property)
given by any person with respect to any of the foregoing; all returned, rejected
or repossessed goods, the sale or lease of which shall have given or shall give
rise to an any of the foregoing and all cash and non-cash proceeds and products
of all such goods; and all proceeds (cash and non-cash) of the foregoing.
"Collateral" shall mean all of the Borrower's Accounts, Equipment,
General Intangibles, Inventory and other personal property, all whether now
owned or existing or hereafter acquired or created, together with any and all
cash and non-cash proceeds (including, without limitation, insurance proceeds)
and products thereof.
"Default Rate" has the meaning set forth therefor in the Amended and
Restated redit Agreement.
2
<PAGE>
"Enforcement Costs" mean all reasonable expenses, charges, costs and
fees whatsoever (including, without limitation, reasonable attorney's fees and
expenses) of any nature whatsoever paid or incurred by or on behalf of the Agent
in connection with (a) the collection or enforcement of any or all of the
Obligations or this Agreement (including, without limitation, attorneys fees
incurred prior to the institution of any suit or other proceeding), (b) the
creation, perfection, collection, maintenance, preservation, defense,
protection, realization upon, disposition, sale or enforcement of all or any
part of the Collateral, (c) the monitoring, inspection, administration,
processing, servicing of any or all of the Obligations and/or the Collateral,
(d) the preparation of this Agreement and the preparation and review of lien and
record searches, reports, certificates, appraisals, environmental surveys,
and/or other documents or information relating from time to time to the taking,
perfection, inspection, preservation, protection and/or release of a Lien on the
Collateral, the value of the Collateral, or otherwise relating to the Agent's
rights and remedies under this Agreement or with respect to the Collateral, and
(e) all filing and/or recording taxes or fees and all stamp and other taxes and
fees payable or determined to be payable in connection with the execution and
delivery of this Agreement and any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes or fees, the
Borrower hereby agreeing to indemnify and save the Agent harmless from and
against such liabilities.
"Equipment" shall mean all of the Borrower's right, title and
interest in and to all equipment, machinery, computers, chattels, tools, parts,
machine tools, moveable restaurant buildings and all related equipment and
moveable site improvements, furniture, furnishings, fixtures and supplies of
every nature, presently existing or hereafter acquired or created and wherever
located, together with all accessions, additions, fittings, accessories, special
tools, and improvements thereto and substitutions therefor and all parts and
equipment which may be attached to or which are necessary for the operation and
use of such personal property, whether or not the same shall be deemed to be
affixed to real property, and all rights under or arising out of present or
future contracts relating to the foregoing and all proceeds (cash and non-cash)
of the foregoing.
"Event of Default" has the meaning described in Article 4.
"Franchise Agreements" means the franchise agreements of the
Borrower as franchisor, with the franchisees, all as described on EXHIBIT A
attached hereto and made a part hereof and any such additional franchise
agreements executed from time to time.
"Franchise Rights of Payment" means all rights of payment the
Borrower may have from time to time under all of its Franchise Agreements in
effect from time to time.
"General Intangibles" shall mean all of the Borrower's right, title
and interest in and to all general intangibles, of every nature, whether
presently existing or hereafter acquired or created, including, without
limitation, all of the Franchise Agreements, all of the Franchise Rights of
Payment, all books, correspondence, credit files, records, computer programs,
computer tapes, cards and other papers and documents in the possession or
control of the Borrower, claims (including without limitation all claims for
income tax and other refunds), choses in action, judgments, patents, patent
licenses, trademarks, trademark licenses, licensing agreements, rights in
3
<PAGE>
intellectual property, goodwill (including all goodwill of the Borrower's
business symbolized by and associated with any and all trademarks, trademark
licenses, copyrights and/or service marks), franchises, royalty payments,
contractual rights, literary rights, copyrights, service names, service marks,
logos, trade secrets, all amounts received as an award in or settlement of a
suit in damages, deposit accounts, interests in joint ventures or general or
limited partnerships, and all proceeds (cash and non-cash) of the foregoing.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Inventory" means all of the Borrower's right, title and interest in
and to all now owned and hereafter acquired inventory, goods, merchandise and
other personal property furnished under any contract of service or intended for
sale or lease, including, without limitation, all raw materials,
work-in-progress, finished goods and materials and supplies of any kind, nature
or description which are used or consumed in the Borrower's business or are or
might be used in connection with the manufacture, packing, shipping,
advertising, selling or finishing of such goods, merchandise and other personal
property and all documents of title or documents representing the same and all
proceeds, (cash and non-cash) of the foregoing.
"Laws" means all ordinances, statutes, rules, regulations, orders,
injunctions, writs, or decrees of any Governmental Authority or political
subdivision or agency thereof, or any court or similar entity established by any
thereof.
"Lien" means any mortgage, deed of trust, deed to secure debt,
grant, pledge, security interest, assignment, encumbrance, judgment, financing
statement, lien or charge of any kind, whether perfected or unperfected,
avoidable or unavoidable, consensual or non-consensual including, without
limitation, any conditional sale or other title retention agreement, filed or
unfiled tax liens, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction, excluding the precautionary filing of any financing statement
by any lessor in a true lease transaction, by any bailor in a true bailment
transaction or by any consignor in a true consignment transaction under the
Uniform Commercial Code of any jurisdiction or the agreement to give any
financing statement by any lessee in a true lease transaction, by any bailee in
a true bailment transaction or by any consignee in a true consignment
transaction.
"Loan Documents" has the meaning set forth therefor in the Amended
and Restated Credit Agreement and as used herein, shall include the Amended and
Restated Credit Agreement.
"Loans" means (i) the Syndicated Term Loan Notes, and (ii) the
Revolving articipated Loan Note.
"Obligations" means all debts, obligations, and liabilities of the
Borrower to the Lenders of any nature whatsoever and whenever arising (whether
now or hereafter existing and whether before or after the commencement of a
proceeding under the Bankruptcy Code) relating to the Loans and pursuant to the
Loan Documents, regardless of whether such debts, obligations and liabilities be
direct, indirect, primary, secondary, joint, several, joint and several, fixed
4
<PAGE>
or contingent; and any and all renewals, restatements, amendments, replacements,
extensions and rearrangements of any such debts, obligations and liabilities
including, without limitation, the principal of, and interest on, loans and
advances and on each of the Notes.
"Person" shall mean and include an individual, a corporation, a
partnership, a joint venture, a trust, an unincorporated association, a
government or political subdivision or agency thereof or any other entity.
ARTICLE 1
COLLATERAL
SECTION 1.1 GRANT OF SECURITY INTEREST. As security for the Obligations,
the Borrower hereby assigns, pledges and grants to the Agent for the ratable
benefit of the Lenders (whether as a holder of Syndicated Term Loan Notes or
Revolving Participated Loan Note), and agrees that the Agent shall have a
perfected and continuing security interest in, all of the Borrower's Collateral,
whether now owned or existing or hereafter acquired or arising, together with
any and all cash and non-cash proceeds and products thereof. The Borrower
further agrees that the Agent shall have in respect thereof all of the rights
and remedies of a secured party under the Uniform Commercial Code of the State
of California as well as those provided in this Agreement.
SECTION 1.2 RELEASE. The Agent shall have no obligation to release and/or
terminate this Agreement, except upon both the performance of this Agreement and
the payment and/or performance of all Obligations and the expiration and
termination of any and all commitments or obligations (whether or not
conditional) of the Agent, on behalf of the Lenders, to re-advance amounts or
otherwise allow Obligations which would be secured thereby.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Agent, and shall be deemed to represent and warrant at the time
each of the Obligations not existing on the date of this Agreement is requested
and again at the time each of those Obligations is incurred, as follows:
2.1.1 PLACE(S) OF BUSINESS AND LOCATION OF COLLATERAL. The Borrower
warrants that the address of the Borrower's chief executive offices and the
address of all other locations of the Collateral are set forth on Exhibit B
attached hereto and made a part hereof.
2.1.2 BUSINESS NAMES AND ADDRESSES. The Borrower has not conducted
business under any name other than "CHECKERS DRIVE-IN RESTAURANTS, INC".
5
<PAGE>
2.1.3 GOOD STANDING. The Borrower is a corporation, duly organized
and existing, in good standing, under the laws of the jurisdiction of its
incorporation, and has the corporate power to own its property and to carry on
its business as now being conducted and is duly qualified to do business and is
in good standing in each jurisdiction in which the character of the properties
owned or leased by it therein or in which the transaction of its business makes
such qualification necessary, except where the failure to so qualify would not
have a material adverse effect on Borrower.
2.1.4 CORPORATE AUTHORITY. The Borrower has full power and authority
to enter into and to perform its obligations under this Agreement, all of which
have been duly authorized by all proper and necessary corporate action. No
consent or approval of shareholders of, or lenders to, the Borrower and no
consent, approval, filing or registration with or notice to any Governmental
Authority on the part of the Borrower is required as a condition to the validity
of this Agreement or the performance by the Borrower of its obligations under
this Agreement.
2.1.5 BINDING AGREEMENTS. This Agreement constitutes the valid and
legally binding agreement of the Borrower and is enforceable against the
Borrower in accordance with its terms, provided that the enforceability hereof
is subject to general principles of equity and to bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights generally,
and to standards of good faith and commercial reasonableness.
2.1.6 NO CONFLICTS. There is no statute, regulation, rule, order or
judgment, no charter, by-law or preference stock provision of the Borrower, and
except for permitted liens under Section 5.11 of the Amended and Restated Credit
Agreement, no provision of any mortgage, indenture, contract or other agreement
binding on the Borrower or affecting its properties, which would prohibit, or
cause a default under or in any way prevent the execution, delivery, or carrying
out of the terms of this Agreement.
2.1.7 TITLE TO COLLATERAL. The Borrower has good and marketable
title to its properties and assets which are included among the Collateral. Such
properties and assets are subject to no Lien of any kind, except for the Liens
in existence as of the date of this Agreement, Liens of the Agent pursuant to
this Agreement or as may be permitted otherwise by the Amended and Restated
Credit Agreement, and the Borrower has legal, enforceable and uncontested rights
to use freely such property and assets.
2.1.8 RECITALS. The Recitals to this Agreement are true, accurately
reflect the matters discussed and are hereby incorporated into and made a part
of this Agreement.
SECTION 2.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in or made under or in connection with
this Agreement shall survive the execution of this Agreement and the incurring
of any particular Obligation.
6
<PAGE>
ARTICLE 3
COVENANTS AND AGREEMENTS OF THE BORROWER
SECTION 3.1 COVENANTS. So long as any of the Obligations (or
commitments therefor) shall be outstanding hereunder, the Borrower agrees with
the Agent as follows:
3.1.1 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE, COMPLIANCE
WITH LAWS, ETC. The Borrower will (i) do or cause to be done all things
necessary to preserve and to keep in full force and effect its corporate
existence and material rights and its franchises, trade names, patents,
trademarks and permits which are necessary for the continuance of its business,
and (ii) comply with all applicable Laws and observe the valid requirements of
Governmental Authorities, the noncompliance with or the nonobservance of which
might materially interfere with the performance of its obligations hereunder, or
with the Agent's interest in the Collateral.
3.1.2 CERTAIN NOTICES. The Borrower will notify the Agent not less
than thirty (30) days prior to (i) any change in the name or corporate structure
under which the Borrower conducts its business the opening of any new place of
business or the closing of any existing place of business; and (ii) any change
in the location of the places where the Collateral, or any part thereof, or the
books and records concerning the Collateral, or any part thereof, are kept.
3.1.3 MAINTENANCE OF THE COLLATERAL; INSURANCE. The Borrower will
maintain the Collateral in good working order, saving and excepting ordinary
wear and tear, and will not permit anything to be done to the Collateral which
may materially impair the value thereof. The Agent, or agents designated by the
Agent, shall be permitted to enter the premises of the Borrower and examine,
audit and inspect the Collateral at any reasonable time and from time to time
without notice after an Event of Default. The Borrower will promptly furnish to
the Agent all such additional information regarding the Collateral as the Agent
may from time to time request in the exercise of its discretion. With respect to
the insurance required to be obtained by the Borrower under the Amended and
Restated Credit Agreement, the Borrower will obtain from such insurers a
certificate confirming that the Agent, for itself and the other Lenders, is an
additional insured with loss payable to the Agent as its respective interest may
appear on the Collateral and with a specific endorsement to each such insurance
policy pursuant to which the insurer agrees to give the Agent at least thirty
(30) days written notice before any alteration or cancellation of such insurance
policy.
3.1.4 DEFENSE OF TITLE AND FURTHER ASSURANCES. At its expense the
Borrower will defend the title to the Collateral (or any part thereof), and
promptly upon request execute, acknowledge and deliver any financing statement,
renewal, affidavit, deed, assignment, continuation statement, security
agreement, certificate, notice to financial intermediary, or other document the
Agent may require in order to perfect, preserve, maintain, continue, protect
and/or extend the Lien or security interest granted to the Agent under this
Agreement and its priority. The Borrower will from time to time do whatever the
Agent may request by way of obtaining, executing, delivering, and/or filing
financing statements, landlord's or mortgagee's waivers, and other notices and
amendments and renewals thereof and the Borrower will take any and all steps and
observe such formalities as the Agent may request, in order to create and
7
<PAGE>
maintain a valid Lien upon, pledge of, or security interest in, the Collateral
subject to no other liens or claims. The Borrower agrees that a copy of a fully
executed financing statement shall be sufficient to satisfy for all purposes the
requirements of a financing statement as set forth in Article 9 of the
applicable Uniform Commercial Code.
3.1.5 SECURITY, ETC. The Borrower agrees that the Agent may at any
time take such steps as the Agent deems reasonably necessary to protect the
Agent's interest in, and to preserve the Collateral, whether at the business
premises of the Borrower or elsewhere.
3.1.6 OTHER LIENS. The Borrower will not permit any Liens on or with
respect to all or any part of the Collateral, other than those Liens in favor of
the Agent, Liens for taxes not yet delinquent, and Liens permitted by the
Amended and Restated Credit Agreement.
3.1.7 LOCATION OF COLLATERAL. Except as expressly permitted
elsewhere in this Agreement or except as permitted by the Amended and Restated
Credit Agreement, without the prior written consent of the Agent, the Borrower
will not transfer, or permit the transfer, to another location of any of the
Collateral or the books and records related to any of the Collateral. Not
withstanding the foregoing, Borrower may from time to time transfer restaurant
units from one location to another without the prior consent of Agent.
3.1.8 DISPOSITION OF COLLATERAL. Without the prior written consent
of the Agent or except as permitted by the Amended and Restated Credit
Agreement, the Borrower will not sell, discount, allow credits or allowances,
transfer, assign, extend the time for payment on, convey, lease, assign,
transfer or otherwise dispose of the Collateral. Unless, with respect to any of
the foregoing actions which are not permitted (and not prohibited) by the
Amended and Restated Credit Agreement, such action is in the ordinary course of
business consistent with past practices.
3.1.9 FRANCHISE AGREEMENTS. Without the prior written consent of the
Agent, the Borrower will not amend or otherwise modify the Franchise Agreements,
other than amendments or modifications made in the ordinary course of business
which would not have a material adverse effect on the Borrower. The Borrower
shall enforce its rights and remedies against its franchisees in accordance with
the terms of the Franchise Agreements in the ordinary course of business. The
Borrower shall maintain at all times all of its franchises, Franchise Agreements
and other General Intangibles relating thereto in full force and effect.
ARTICLE 4
DEFAULT AND RIGHTS AND REMEDIES
SECTION 4.1 EVENTS OF DEFAULT. The occurrence of one or more of the
following events shall be "Events of Default" under this Agreement, and the
terms "Event of Default" or "default" shall mean, whenever they are used in this
Agreement, any one or more of the following events:
8
<PAGE>
4.1.1 The Borrower shall fail to make any payment when due and such
failure shall continue beyond any applicable grace period under any of the
Obligations.
4.1.2 Any representation or warranty made herein or in any report,
certificate, opinion (including any opinion of counsel for the Borrower),
financial statement or other instrument furnished in connection with the Loan
Documents or the Obligations, shall prove to have been false or misleading when
made in any material respect.
4.1.3 Other than failure to pay the Obligations as set forth in
4.1.1 above, the Borrower shall fail to duly and promptly perform, comply with
or observe the terms, covenants, conditions and agreements set forth in this
Agreement (and such failure shall continue uncured for 30 days after notice
thereof) or in any of the other Loan Documents, or an "Event of Default" shall
occur under any of the Loan Documents, and such "Event of Default" is not cured
within any applicable grace period provided therein.
SECTION 4.2 RIGHTS AND REMEDIES, ETC.
4.2.1 GENERAL RIGHTS AND REMEDIES. If any Event of Default shall
occur hereunder, then in each and every such case, the Agent may, at its option
exercised from time to time, at any time thereafter while such Event of Default
is continuing do any one or more of the following:
(a) declare without notice to the Borrower the unpaid
principal amount of all or any of the Obligations (with accrued interest
thereon) to be immediately due and payable, whereupon the same shall forthwith
become due and payable, without presentment, demand, protest or notice of any
kind, all of which the Borrower hereby expressly waives; and/or
(b) exercise any rights and remedies available to the Agent
under this Agreement and applicable Laws.
4.2.2 ENFORCEMENT COSTS; APPLICATION OF PROCEEDS. Subject to the
limitations on certain Enforcement Costs set forth in Section 2.13(c) of the
Amended and Restated Credit Agreement, the Borrower agrees to pay to the Agent
all Enforcement Costs paid or incurred by the Agent. All Enforcement Costs which
are required to be paid by the Borrower, together with interest thereon from the
date incurred or advanced until paid in full at a per annum rate of interest
equal at all times to the Default Rate and shall be paid by the Borrower to the
Agent whenever demanded by the Agent.
Any proceeds of the collection of the Obligations or of the sale or other
disposition of the Collateral will be applied by the Agent first to the payment
of the Enforcement Costs, second to the payment of the Syndicated Term Loans,
and third to the payment of the Revolving Participated Loan Note, and any
balance of such proceeds (if any) will be applied by the Agent to the payment of
the remaining Obligations (whether then due or not), if any, at such time or
times and in such order and manner of application as the Agent may from time to
time in its sole discretion determine. If the sale or other disposition of the
Collateral fails to satisfy all of the Obligations, the Borrower shall remain
9
<PAGE>
liable to the Agent for any deficiency. Any surplus from the sale or disposition
of the Collateral shall be paid to the Borrower or to any other party entitled
thereto or shall otherwise be paid over in a manner permitted by law, less all
Enforcement Costs related to any such payment.
4.2.3 SPECIFIC RIGHTS WITH REGARD TO COLLATERAL. In addition to all
other rights and remedies provided hereunder or as shall exist at law or in
equity from time to time, during the continuance of an Event of Default the
Agent may without notice to the Borrower (except to the extent required by
applicable Laws) endorse the name of the Borrower upon any items of payment
relating to the Collateral or on any proof of claim in any bankruptcy proceeding
against an account debtor and any other obligor with respect to the Collateral.
4.2.4 UNIFORM COMMERCIAL CODE AND OTHER REMEDIES. Upon the
occurrence of an Event of Default (and in addition to all of its rights, powers
and remedies under this Agreement), the Agent shall have all of the rights and
remedies of a secured party under the California Uniform Commercial Code and
other applicable laws. Upon demand by the Agent, the Borrower shall assemble the
Collateral and make it available to the Agent, at a place reasonably convenient
for such purpose as designated by the Agent. The Agent or its agents may enter
upon the Borrower's premises to take possession of the Collateral, to remove it,
to render it unusable, or to sell or otherwise dispose of it.
Any written notice of the sale, disposition or other intended action by
the Agent with respect to the Collateral which is sent by regular mail, postage
prepaid, to the Borrower at the address set forth for notices herein, or such
other address of the Borrower which may from time to time be shown on the
Agent's records, at least ten (10) days prior to such sale, disposition or other
action, shall constitute reasonable notice to the Borrower.
ARTICLE 5
MISCELLANEOUS
SECTION 5.1 COURSE OF DEALING; AMENDMENT. No course of dealing between the
Borrower and the Agent shall be effective to amend, modify or change any
provision of this Agreement and this Agreement may not be amended, modified, or
changed in any respect except by an agreement in writing signed by the Agent and
the Borrower. The Agent shall have the right at all times to enforce the
provisions of this Agreement in strict accordance with the terms hereof and
thereof, notwithstanding any conduct or custom on the part of the Agent in
refraining from so doing at any time or times. The failure or delay of the Agent
at any time or times to enforce its rights under such provisions, strictly in
accordance with the same, shall not be construed as having created a custom in
any way or manner contrary to specific provisions of this Agreement or as having
in any way or manner modified or waived the same.
SECTION 5.2 WAIVER, CUMULATIVE REMEDIES. Subject to the rights of the
Lenders under the Amended and Restated Credit Agreement, the Agent may on behalf
of the Lenders:
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(a) at any time and from time to time, execute and deliver to
the Borrower a written instrument waiving, on such terms and conditions as the
Agent, may specify in such written instrument, any of the requirements of this
Agreement or any Event of Default and its consequences, provided, that any such
waiver shall be for such period and subject and limited to such conditions as
shall be specified in any such instrument and to the instance for which the
waiver is given. In the case of any such waiver, the Borrower and the Agent,
shall be restored to their former positions prior to such Event of Default and
shall have the same rights as they had hereunder. The rights, powers and
remedies provided in this Agreement are cumulative, may be exercised
concurrently or separately, may be exercised from time to time and in such order
as the Agent, shall determine, and are in addition to, and not exclusive of,
rights, powers and remedies provided by applicable Laws.
(b) after an Event of Default proceed against the Borrower
and/or the Collateral with or without proceeding against any Person obligated
under any of the Obligations.
(c) after an Event of Default proceed against the Borrower
with or without proceeding under any of the Loan Documents or any other
agreement.
(d) without reducing or impairing the obligation of the
Borrower and without notice, release or compromise with any guarantor or other
Person liable for all or any part of the Obligations.
(e) without reducing or impairing the obligations of the
Borrower and without notice thereof: (i) fail to perfect the Lien in any or all
Collateral or to release any or all of the Collateral or to accept substitute
Collateral, (ii) allow all or any Obligations to arise after the date of this
Agreement, (iii) waive any provision of this Agreement, (iv) exercise or fail to
exercise rights of set-off or other rights, (v) accept partial payments or
extend from time to time the maturity of all or any part of the Obligations, and
(vi) take or fail to take any action under this Agreement or against any one or
more Persons obligated under the Obligations.
The Borrower hereby waives and releases all claims and defenses against
the Agent and/or the Lenders, respectively, with respect to the payment of the
or enforcement of the Obligations and the Agent's rights in the Collateral on
account of any of the foregoing.
SECTION 5.3 NOTICES. All notices, requests and demands to or upon the
parties to this Agreement shall be deemed to have been given or made when so
given or made in accordance with Section 9.01 of the Amended and Restated Credit
Agreement.
SECTION 5.4 MANAGEMENT AND ADMINISTRATION BY AGENT. The Agent shall not
have any duty to the Borrower to pay for insurance, taxes, or other charges
incurred in the custody, preservation, use or operation of, or in connection
with the management of, any Collateral on which a Lien is granted in connection
with this Agreement; provided, however, that the Agent may (in its sole
discretion) pay such expenses. All such payments shall part of the Obligations
and shall bear interest payable on demand by the Borrower from the date paid or
incurred until paid in full at the Default Rate.
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SECTION 5.5 WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. The Borrower
(a) and each of the Lenders and the Agent irrevocably waives any and all right
to trial by jury in any legal proceeding arising out of this Agreement to the
extent permitted by law, (b) submits to the nonexclusive personal jurisdiction
in the State of California, the courts thereof and the United States District
Courts sitting therein, for the enforcement of this Agreement, (c) waives any
and all personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of California for the purpose of litigation to enforce this
Agreement, and (d) agrees that service of process may be made upon it in the
manner prescribed in Section 9.01 of the Amended and Restated Credit Agreement
for the giving of notice to the Borrower. Nothing herein contained, however,
shall prevent the Agent from bringing any action or exercising any rights
against any security and against the Borrower personally, and against any assets
of the Borrower, within any other state or jurisdiction.
SECTION 5.6 SEVERABILITY. In case one or more provisions contained in this
Agreement shall be invalid, illegal or unenforceable in any respect under any
law, the validity, legality and enforceability of the remaining provisions
contained herein shall remain effective and binding on the parties thereto and
shall not be affected or impaired thereby.
SECTION 5.7 ASSIGNMENT, ETC. The Agent shall have the right to divulge to
any actual or potential purchaser, assignee, transferee or participant of the
Collateral and/or the Obligations, or any part thereof all information, reports,
financial statements and documents obtained in connection with this Agreement or
otherwise as the same may be permitted under the
Amended and Restated Credit Agreement.
SECTION 5.8 BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the Borrower and the Agent and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the Agent.
SECTION 5.9 APPLICABLE LAW. THE BORROWER ACKNOWLEDGES AND AGREES THAT THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, AS IF THIS
AGREEMENT HAD EACH BEEN EXECUTED, DELIVERED, ADMINISTERED AND PERFORMED SOLELY
WITHIN THE STATE OF CALIFORNIA.
SECTION 5.10 DEFINITIONAL PROVISIONS. Unless otherwise defined herein, as
used in this Agreement and in any certificate, report or other document made or
delivered pursuant hereto, accounting terms not otherwise defined herein, and
accounting terms only partly defined herein, to the extent not defined, shall
have the respective meanings given to them under generally accepted United
States accounting principles consistently applied to the Borrower. Unless
otherwise defined herein, all terms used herein which are defined by the
California Uniform Commercial Code shall have the same meanings as assigned to
them by the California Uniform Commercial Code unless and to the extent varied
by this Agreement. The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and article,
section, subsection, schedule and exhibit references are references to articles,
12
<PAGE>
sections or subsections of, or schedules or exhibits to, as the case may be,
this Agreement unless otherwise specified. The captions, headings and titles to
this Agreement and its sections, subsections and other parts are only for the
convenience of the parties and are not part of this Agreement. As used herein,
the singular number shall include the plural, the plural the singular and the
use of the masculine, feminine or neuter gender shall include all genders, as
the context may require. Reference to this Agreement or to any one or more of
the instrument, agreement or document previously, simultaneously or hereafter
executed and delivered by the Borrower, any guarantor and/or any other Person,
singly or jointly with another Person or Persons, evidencing, securing,
guarantying or otherwise in connection with any of the Obligations and/or in
connection with this Agreement shall mean the same as the foregoing may from
time to time be amended, restated, substituted, extended, renewed, supplemented
or otherwise modified.
13
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IN WITNESS WHEREOF, the Borrower has executed and delivered this Agreement
under seal as of the day and year first written above.
CHECKERS DRIVE-IN RESTAURANTS, INC.
(BORROWER)
By: /s/ Albert J. DiMarco (Seal)
----------------------
Name: Albert J. DiMarco
Title: President
14
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ACCEPTED AND AGREED TO ON BEHALF OF THE LENDERS
AS OF THE DATE FIRST WRITTEN ABOVE:
CKE RESTAURANTS, INC.
for itself and as Agent for the Lenders
By: /s/ W. P. Foley II (Seal)
--------------------------
Name: W. P. Foley II
Title:
15
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EXHIBIT B
---------
The Borrower's chief executive office is located at 600 Cleveland Street,
Suite 1050 Clearwater, Florida 34615.
In addition to the Borrower's chief executive office listed above, the
Collateral is also located at the following addresses:
See Attached Schedule 1.
16
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EXHIBIT A
---------
Franchise Agreements:
17
<PAGE>
EXHIBIT A TO FINANCING STATEMENT
--------------------------------
Description of Collateral
-------------------------
This Financing Statement covers the following types (or items) of property
of the Debtor, including, without limitation, all proceeds of any insurance
policies covering all or any part of such property (as such terms are defined
below): all of the Debtor's Accounts, Equipment, General Intangibles, and
Inventory, all whether now owned or existing or hereafter acquired or created,
together with any and all cash and non-cash proceeds (including, without
limitation, insurance proceeds) and products thereof.
"Account" individually and "Accounts" collectively mean all of the
Debtor's right, title and interest in and to all presently existing or hereafter
acquired or created accounts, accounts receivable, contract rights, documents of
title, notes, drafts, instruments, acceptances, chattel paper, securities,
leases and writings evidencing a monetary obligation or a security interest in
or a lease of goods; all rights to receive the payment of money or other
consideration under present or future contracts (including, without limitation,
all rights to receive payments under presently existing or hereafter acquired or
created letters of credit), or by virtue of merchandise sold or leased, services
rendered, loans and advances made or other considerations given, by or set forth
in or arising out of any present or future chattel paper, note, draft, lease,
acceptance, writing, bond, insurance policy, instrument, document or general
intangible, and all extensions and renewals of any thereof; all rights under or
arising out of present or future contracts, agreements or general interests in
merchandise which gave rise to any or all of the foregoing, including all goods;
all claims or causes of action now existing or hereafter arising in connection
with or under any agreement or document or by operation of law or otherwise; all
collateral security of any kind (including real property) given by any person
with respect to any of the foregoing; all returned, rejected or repossessed
goods, the sale or lease of which shall have given or shall give rise to an any
of the foregoing and all cash and non-cash proceeds and products of all such
goods; and all proceeds (cash and non-cash) of the foregoing.
"Equipment" shall mean all of the Debtor's right, title and interest in
and to all equipment, machinery, computers, chattels, tools, parts, machine
tools, moveable restaurant buildings and all related equipment and moveable site
improvements, furniture, furnishings, fixtures and supplies of every nature,
presently existing or hereafter acquired or created and wherever located,
together with all accessions, additions, fittings, accessories, special tools,
and improvements thereto and substitutions therefor and all parts and equipment
which may be attached to or which are necessary for the operation and use of
such personal property, whether or not the same shall be deemed to be affixed to
real property, and all rights under or arising out of present or future
contracts relating to the foregoing and all proceeds (cash and non-cash) of the
foregoing.
"Franchise Agreements" means all franchise agreements of the Borrower as
franchisor, with the franchisees, executed from time to time.
"Franchise Rights of Payment" means all rights of payment the Debtor may
have from time to time under all of its Franchise Agreements in effect from time
to time.
<PAGE>
"General Intangibles" shall mean all of the Debtor's right, title and
interest in and to all general intangibles, of every nature, whether presently
existing or hereafter acquired or created, including, without limitation, all of
the Franchise Agreements, all of the Franchise Rights of Payment, all books,
correspondence, credit files, records, computer programs, computer tapes, cards
and other papers and documents in the possession or control of the Debtor,
claims (including without limitation all claims for income tax and other
refunds), choses in action, judgments, patents, patent licenses, trademarks,
trademark licenses, licensing agreements, rights in intellectual property,
goodwill (including all goodwill of the Debtor's business symbolized by and
associated with any and all trademarks, trademark licenses, copyrights and/or
service marks), franchises, royalty payments, contractual rights, literary
rights, copyrights, service names, service marks, logos, trade secrets, all
amounts received as an award in or settlement of a suit in damages, deposit
accounts, interests in joint ventures or general or limited partnerships, and
all proceeds (cash and non-cash) of the foregoing.
"Inventory" means all of the Debtor's right, title and interest in and to
all now owned and hereafter acquired inventory, goods, merchandise and other
personal property furnished under any contract of service or intended for sale
or lease, including, without limitation, all raw materials, work-in-progress,
finished goods and materials and supplies of any kind, nature or description
which are used or consumed in the Debtor's business or are or might be used in
connection with the manufacture, packing, shipping, advertising, selling or
finishing of such goods, merchandise and other personal property and all
documents of title or documents representing the same and all proceeds, (cash
and non-cash) of the foregoing.
19
Exhibit 4.3
[FORM OF WARRANT]
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SHARES ISSUABLE UPON
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), NOR QUALIFIED UNDER THE SECURITIES LAWS OF ANY
STATE. THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR
FOR SALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF WITHIN THE MEANING OF THE
SECURITIES ACT AND THE SECURITIES LAW. THIS WARRANT AND THE SHARES ISSUABLE UPON
EXERCISE THEREOF MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND COMPLIANCE WITH
THE SECURITIES LAW OF ANY STATE OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY TO THE EFFECT THAT SUCH REGISTRATION AND COMPLIANCE ARE NOT REQUIRED.
Warrant to Purchase
_________ Shares of
Common Stock
As Herein Described
WARRANT TO PURCHASE COMMON STOCK OF
CHECKERS DRIVE-IN RESTAURANTS, INC.
This is to certify that, for value received,________ or registered assigns
(in each case, the "Holder"), is entitled to purchase, subject to the provisions
of this Warrant, from Checkers Drive-In Restaurants, Inc., a Delaware
corporation (the "Company"), at any time during the period from the date hereof
(the "Commencement Date") to 5:00 p.m., California time, on November 22, 2002
(the "Expiration Date"), at which time this Warrant shall expire and become
void, ________ shares ("Warrant Shares") of the Company's Common Stock (the
"Common Stock"). This Warrant shall be exercisable at $.75 per share (the
"Exercise Price"). The number of shares of Common Stock to be received upon
exercise of this Warrant and the Exercise Price shall be adjusted from time to
time as set forth below. This Warrant also is subject to the following terms and
conditions:
1. Exercise of Warrant.
-------------------
1.1 EXERCISE AND PAYMENT. This Warrant may be exercised in whole or
in part at any time from and after the date hereof and before the Expiration
Date, but if such date is a day on which federal or state chartered banking
institutions located in the State of California are authorized to close, then on
the next succeeding day which shall not be such a day. Exercise shall be by
presentation and surrender to the Company at its principal office, or at the
office of any transfer agent designated by the Company, of (i) this Warrant,
(ii) the attached exercise form properly executed, and (iii) either (A) a bank
check for the Exercise Price for the number of Warrant Shares specified in the
exercise form, or (B) cancellation of indebtedness of the Company to the Holder
<PAGE>
in an amount equal to the Exercise Price for the number of Warrant Shares
specified in the exercise form, provided that such cancellation of indebtedness
shall be applied against the payments next due thereunder or (C) any combination
of the consideration specified in the foregoing clauses (A) and (B). If this
Warrant is exercised in part only, the Company or its transfer agent shall, upon
surrender of the Warrant, execute and deliver a new Warrant evidencing the
rights of the Holder to purchase the remaining number of Warrant Shares
purchasable hereunder. Upon receipt by the Company of this Warrant in proper
form for exercise, accompanied by payment as aforesaid, the Holder shall be
deemed to be the holder of record of the Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such Warrant Shares shall not
then be actually delivered to the Holder.
1.2 NET ISSUE EXERCISE. Notwithstanding any provisions in this
Warrant to the contrary, in lieu of exercising this Warrant for cash, the Holder
shall have the right, upon its written request delivered or transmitted to the
Company together with this Warrant, to exchange this Warrant, in whole or in
part at any time or from time to time on or prior to the Expiration Date, for
the number of shares of Common Stock designated by such Holder less the number
of shares having an aggregate fair market value (determined as set forth in
Section 3 hereof) on the date of such exchange equal to the aggregate Exercise
Price the Holder would have paid to the Company to purchase such designated
number of Warrant Shares, and, if a balance of purchasable Warrant Shares
remains after such exchange, the Company shall execute and deliver to the Holder
a new Warrant evidencing the right of the Holder to purchase such balance of
Warrant Shares. No payment of any cash or other consideration shall be required.
Such exchange shall be effective upon the date of receipt by the Company of the
original Warrant surrendered for cancellation and a written request from the
Holder that the exchange pursuant to this Subsection be made, or at such later
date as may be specified in such request.
2. RESERVATION OF SHARES. The Company shall, at all times until the
expiration of this Warrant, reserve for issuance and delivery upon exercise of
this Warrant the number of Warrant Shares which shall be required for issuance
and delivery upon exercise of this Warrant. The Company covenants that the
shares of Common Stock issuable on exercise of the Warrant shall be duly and
validly issued and fully paid and non-assessable and free of liens, charges and
all taxes with respect to the issue thereof, and that upon issuance, such shares
shall be listed on each national securities exchange, if any, on which the other
shares of outstanding Common Stock of the Company are then listed.
3. FRACTIONAL INTERESTS. The Company shall not issue any fractional shares
or script representing fractional shares upon the exercise or exchange of this
Warrant. With respect to any fraction of a share resulting from the exercise or
exchange hereof, the Company shall pay to the Holder an amount in cash equal to
such fraction multiplied by the current fair market value per share of Common
Stock (herein, the "Market Price Per Share"), determined as follows:
(a) If the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on such an exchange or is
listed on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ"), the current fair market value shall be the average of the per
share closing sales prices of the Common Stock on such exchange or NASDAQ for
the 20 consecutive trading days ending on the last trading day prior to the date
of exercise of this Warrant;
2
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(b) If the Common Stock is not so listed or admitted to
unlisted trading privileges or quoted on NASDAQ, the current fair market value
shall be the average of the mean of the bid and asked prices reported for the 20
consecutive trading days ending on the last trading day prior to the date of the
exercise of this Warrant (i) by NASDAQ, or (ii) if reports are unavailable under
clause (i) above, by the National Quotation Bureau Incorporated; or
(c) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not so reported, the
current fair market value shall be an amount, not less than book value,
determined in such reasonable manner as may be prescribed by the Company's Board
of Directors in good faith.
4. NO RIGHTS AS STOCKHOLDERS. This Warrant shall not entitle the Holder to
any rights as a stockholder of the Company, either at law or in equity. The
rights of the Holder are limited to those expressed in this Warrant and are not
enforceable against the Company except to the extent set forth herein. Nothing
herein concerning the rights or privileges of the Holder hereof shall give rise
to any liability of such Holder for the purchase price of any Warrant Shares or
as a shareholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
5. Adjustments.
-----------
5.1 SUBDIVISION OR COMBINATION OF SHARES. If the Company is
recapitalized through the subdivision or combination of its outstanding shares
of Common Stock into a larger or smaller number of shares, the number of Warrant
Shares shall be increased or reduced, as of the record date for such
recapitalization, in the same proportion as the increase or decrease in the
outstanding shares of Common Stock, and the Exercise Price shall be adjusted so
that the aggregate amount payable for the purchase of all of the Warrant Shares
issuable hereunder immediately after the record date for such recapitalization
shall equal the aggregate amount so payable immediately before such record date.
5.2 DIVIDENDS IN COMMON STOCK OR SECURITIES CONVERTIBLE INTO COMMON
STOCK. If the Company declares a dividend or distribution on Common Stock
payable in Common Stock or securities convertible into Common Stock, the number
of shares of Common Stock for which this Warrant may be exercised shall be
increased, as of the record date for determining which holders of Common Stock
shall be entitled to receive such dividend, in proportion to the increase in the
number of outstanding shares (and shares of Common Stock issuable upon
conversion of all such securities convertible into Common Stock) of Common Stock
as a result of such dividend, and the Exercise Price shall be adjusted so that
the aggregate amount payable for the purchase of all the Warrant Shares issuable
hereunder immediately after the record date for such dividend shall equal the
aggregate amount so payable immediately before such record date.
5.3 DISTRIBUTIONS OF OTHER SECURITIES OR PROPERTY.
(a) OTHER SECURITIES. If the Company distributes to holders of
its Common Stock, other than as part of its dissolution or liquidation or the
winding up of its affairs, any of its securities (other than Common Stock or
securities convertible into Common Stock) or any evidence of indebtedness, then
in each case, the number of Warrant Shares thereafter purchasable upon exercise
of this Warrant shall be determined by multiplying the number of Warrant Shares
theretofore purchasable by a fraction, of which the numerator shall be the then
3
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Market Price Per Share of Common Stock (as determined pursuant to Section 3) on
the record date mentioned below in this Section 5.3(a), and of which the
denominator shall be the then Market Price Per Share of Common Stock on such
record date, less the then fair value (as determined by the Board of Directors
of the Company in good faith) of the portion of the shares of the Company's
capital stock or evidences of indebtedness distributable with respect to each
share of Common Stock. Such adjustment shall be made whenever any such
distribution is made, and shall become effective retroactively as of the record
date for the determination of shareholders entitled to receive such
distribution.
(b) PROPERTY. If the Company distributes to the holders of its
Common Stock, other than as a part of its dissolution or liquidation or the
winding up of its affairs, any of its assets (including cash), the Exercise
Price per Warrant Share shall be reduced, without any further action by the
parties hereto, by the Per Share Value (as hereinafter defined) of the dividend
or distribution. For the purposes of this Section 5.3(b), the "Per Share Value"
of any dividend or distribution other than cash shall be equal to the fair
market value of such non-cash distribution divided by the number of shares of
Common Stock outstanding and securities convertible into Common Stock as
determined in good faith by the Board of Directors of the Company; for dividends
or distributions of cash, the Per Share Value thereof shall be the cash
distributed per share of Common Stock.
5.4 RIGHTS OFFERING. If the Company offers rights or warrants to the
holders of Common Stock which entitle them to subscribe to or purchase
additional Common Stock or securities convertible into Common Stock then:
(a) If the price per share (together with the value of the
consideration, if any, paid for such rights or warrants) is lower on the record
date referred to below than the then Market Price Per Share of Common Stock, the
number of Warrant Shares thereafter purchasable upon the exercise of the Warrant
shall be determined by multiplying the number of Warrant Shares immediately
theretofore purchasable upon exercise of the Warrant by a fraction, of which the
numerator shall be the number of shares of Common Stock outstanding on such
record date plus the number of additional shares of Common Stock offered for
subscription or purchase, and of which the denominator shall be the number of
shares of Common Stock outstanding on such record date plus the number of shares
which the aggregate offering price of the total number of shares of Common Stock
so offered would purchase at the then Market Price Per Share of Common Stock.
Such adjustment shall be made whenever such rights or warrants are issued, and
shall become effective retroactively as of the record date for the determination
of shareholders entitled to receive such rights or warrants.
(b) If, however, the price per share (together with the value
of the consideration, if any, paid for such rights or warrants) is not lower on
such record date than the then Market Price Per Share of Common Stock, the
Company shall give written notice of any such proposed offering to the Holder at
least fifteen days prior to the proposed record date in order to permit the
Holder to exercise this Warrant on or before such record date. There shall be no
adjustment in the number of shares of Common Stock for which this Warrant may be
exercised, or in the Exercise Price, by virtue of any such distribution.
(c) There shall be no adjustment in the number of shares of
Common Stock for which this Warrant may be exercised, or in the Exercise Price,
by virtue of this Section 5.4 in connection with the Rights Offering
contemplated by the Credit Agreement (as defined in Section 14 below); provided,
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however, that the distribution of such rights offering is completed by June 22,
1997.
5.5 MERGER, SALE OF ASSETS. If at any time while this Warrant, or
any portion thereof, is outstanding and unexpired there shall be (i) a
reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale or transfer of the Company's properties and assets
as, or substantially as, an entirety to any other person, then, as a part of
such reorganization, merger, consolidation, sale or transfer, lawful provision
shall be made so that the holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Exercise Price then in effect, the number of shares of stock
or other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if this
Warrant had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 5. The foregoing provisions of this Section 5.5 shall similarly
apply to successive reorganizations, consolidations, mergers, sales and
transfers and to the stock or securities of any other corporation that are at
the time receivable upon the exercise of this Warrant. In all events,
appropriate adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the Holder after the transaction, to
the end that the provisions of this Warrant shall be applicable after that
event, as near as reasonably may be, in relation to any shares or other property
deliverable after that event upon exercise of this Warrant.
5.6 RECLASSIFICATION. If the Company, at any time while this
Warrant, or any portion thereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 5.
5.7 LIQUIDATION, ETC. If the Company shall, at any time before the
expiration of this Warrant, dissolve, liquidate or wind up its affairs, or
otherwise declare a dividend, or make a distribution to the holders of its
Common Stock generally, whether in cash, property or assets of any kind,
including any dividend payable in stock or securities of any other issuer owned
by the Company (excluding regularly payable cash dividends declared from time to
time by the Company's Board of Directors or any dividend or distribution
referred to in Section 5.2 or Section 5.3), the Exercise Price shall be reduced,
without any further action by the parties hereto, by the Per Share Value (as
hereinafter defined) of the dividend. For purposes of this Section 5.7, the "Per
Share Value" of a cash dividend or other distribution shall be the dollar amount
of the distribution on each share of Common Stock and the "Per Share Value" of
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any dividend or distribution other than cash shall be equal to the fair market
value of such non-cash distribution on each share of Common Stock as determined
in good faith by the Board of Directors of the Company.
5.8 Dilutive Issuances.
------------------
(a) Upon each issuance (or deemed issuance as provided below)
by the Company of any shares of Common Stock (the "Additional Stock") after the
date hereof, other than "Excluded Stock" (as defined below), for a consideration
per share less than the Exercise Price in effect immediately prior to the
issuance, the Exercise Price in effect immediately prior to each issuance shall
forthwith be adjusted to a price determined by multiplying the Exercise Price by
a fraction, (x) the numerator of which shall be the number of shares of Common
Stock outstanding immediately prior to the issuance of such Additional Stock
plus the number of shares of Common Stock which the aggregate consideration
received by the Corporation for the total number of shares of Additional Stock
so issued would purchase at the Exercise Price in effect immediately prior to
such issuance, and (y) the denominator of which shall be the number of shares of
Common Stock outstanding immediately prior to such issuance of Additional Stock
plus the number of shares of such Additional Stock so issued. For the purpose of
the above calculation, the number of shares of Common Stock outstanding
immediately prior to such issuance of Additional Stock shall be calculated on a
fully diluted basis, as if all convertible securities had been fully converted
into shares of Common Stock immediately prior to such issuance, and any
outstanding options, warrants or other rights for the purchase of shares of
stock or convertible securities had been fully exercised immediately prior to
such issuance (and the resulting securities fully converted into shares of
Common Stock if so convertible) as of such date, but not including in such
calculation any additional shares of Common Stock issuable with respect to
convertible securities, or outstanding options, warrants or other rights for the
purchase of shares of stock or convertible securities, solely as a result of the
adjustment of the respective conversion or exercise prices (or other conversion
ratios) resulting from the issuance of the Additional Stock causing the
adjustment in question.
(b) In the case of the issuance of Common Stock for cash, the
consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions or other expenses allowed, paid
or incurred by the Company for any underwriting or otherwise in connection with
the issuance and sale thereof.
(c) In the case of the issuance of the Common Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as determined in good faith by
the Board of Directors irrespective of any accounting treatment.
(d) In the case of the issuance of options to purchase or
rights to subscribe for Common Stock, securities by their terms convertible into
or exchangeable for Common Stock or options to purchase or rights to subscribe
for such convertible or exchangeable securities, the following provisions shall
apply for all purposes of this Section 5.8:
(i) The aggregate maximum number of shares of Common
Stock deliverable upon exercise (whether or not then exercisable) of such
options to purchase or rights to subscribe for Common Stock shall be
deemed to have been issued at the time such options or rights were issued
and for a consideration equal to the consideration, if any, received by
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the Company upon the issuance of such options or rights plus the minimum
exercise price provided in such options or rights for the Common Stock
covered thereby.
(ii) The aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange (whether or not then
convertible or exchangeable) for any such convertible or exchangeable
securities or upon the exercise of options to purchase or rights to
subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been issued at the
time such securities were issued or such options or rights were issued and
for a consideration equal to the consideration, if any, received by the
Company for any such securities and related options or rights (excluding
any cash received on account of accrued interest or accrued dividends),
plus the minimum additional consideration, if any, to be received by the
Company upon the conversion or exchange of such securities or the exercise
of any related options or rights.
(iii) In the event of any change in the number of shares
of Common Stock deliverable or in the consideration payable to the Company
upon exercise of such options or rights or upon conversion of or in
exchange for such convertible or exchangeable securities, including, but
not limited to, a change resulting from the antidilution provisions
thereof, the Exercise Price, to the extent in any way affected by or
computed using such options, rights or securities, shall be recomputed to
reflect such change, but no further adjustment shall be made for the
actual issuance of Common Stock or any payment of such consideration upon
the exercise of any such options or rights or the conversion or exchange
of such securities.
(iv) Upon the expiration of any such options or rights,
the termination of any such rights to convert or exchange or the
expiration of any options or rights related to such convertible or
exchangeable securities, the Exercise Price, to the extent in any way
affected by or computed using such options, rights or securities, shall be
recomputed to reflect the issuance of only the number of shares of Common
Stock (and convertible or exchangeable securities that remain in effect)
actually issued upon the exercise of such options or rights, upon the
conversion or exchange of such securities or upon the exercise of the
options or rights related to such securities.
(v) The number of shares of Common Stock deemed issued
and the consideration deemed paid therefor pursuant to subparagraphs (i)
and (ii) above shall be appropriately adjusted to reflect any change,
termination or expiration of the type described in either subparagraphs
(iii) or (iv) above.
(e) The term "Excluded Stock" shall mean:
(i) shares of Common Stock issued or issuable upon
exercise of the Warrant or the Warrants containing terms substantially identical
to this Warrant issued to the other Lenders (as that term is defined in that
certain Amended and Restated Credit Agreement dated of even date herewith,
between CKE Restaurants, Inc., for itself and as agent, and the Company);
(ii) shares of Common Stock issued or issuable in a
public offering registered under the Securities Act;
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(iii) shares of Common Stock or related options exercis-
able for such Common Stock issued to employees, officers, and directors of, and
consultants, customers, and vendors to, the Company, pursuant to an arrangement
approved by the Board of Directors of the Company;
(iv) shares of Common Stock issued pursuant to a trans-
action described in Sections 5.1, 5.2, 5.4 or 5.6 above; and
(v) shares of Common Stock issued or issuable in con-
nection with the acquisition by the Company of all of the outstanding voting
stock or substantially all of the assets of another entity.
5.9 ADJUSTMENT OF EXERCISE PRICE. Whenever the number of Warrant
Shares purchasable upon the exercise of the Warrant is adjusted, the Exercise
Price with respect to the Warrant Shares shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of Warrant Shares purchasable upon the exercise of
the Warrant immediately prior to such adjustment, and of which the denominator
shall be the number of Warrant Shares so purchasable immediately thereafter.
5.10 NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares
purchasable upon the exercise of the Warrant or the Exercise Price of the
Warrant Shares is adjusted as provided herein, the Company shall mail to the
Holder a notice of such adjustment or adjustments, prepared and signed by the
Chief Financial Officer or Secretary of the Company, which sets forth the number
of Warrant Shares purchasable upon the exercise of the Warrant and the Exercise
Price of such Warrant Shares after such adjustment, a brief statement of the
facts requiring such adjustment, and the computation by which such adjustment
was made.
5.11 LIMITATION ON ADJUSTMENTS. No adjustment in the number of
Warrant Shares purchasable hereunder shall be required unless such adjustment
would require an increase or decrease of at least one percent in the number of
Warrant Shares purchasable upon the exercise of this Warrant; provided, however,
that any adjustments which by reason of this paragraph 5.11 are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment or in any subsequent exercise in whole or in part of the Warrant.
6. NOTICES TO HOLDER. So long as this Warrant shall be outstanding (a) if
the Company shall pay any dividends or make any distribution upon the Common
Stock otherwise than in cash or (b) if the Company shall offer generally to the
holders of Common Stock the right to subscribe to or purchase any shares of any
class of Common Stock or securities convertible into Common Stock or any similar
rights or (c) if there shall be any capital reorganization of the Company in
which the Company is not the surviving entity, recapitalization of the capital
stock of the Company, consolidation or merger of the Company with or into
another corporation, sale, lease or other transfer of all or substantially all
of the property and assets of the Company, or voluntary or involuntary
dissolution, liquidation or winding up of the Company, then in such event, the
Company shall cause to be mailed to the Holder, at least twenty days prior to
the relevant date described below (or such shorter period as is reasonably
possible if twenty days is not reasonably possible), a notice containing a
description of the proposed action and stating the date or expected date on
which a record of the Company's stockholders is to be taken for the purpose of
any such dividend, distribution of rights, or such reclassification,
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reorganization, consolidation, merger, conveyance, lease or transfer,
dissolution, liquidation or winding up is to take place, the effect of the
action, to the extent such effect may be known on the date of such notice on the
Exercise Price and the kind and amount of shares of stock or other securities or
property deliverable on the exercise of the Warrant, and the date or expected
date, if any is to be fixed, as of which the holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such event. All such notices shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery, and (ii) in the case of mailing, on the third business day following
the date of such mailing.
7. Transfer or Loss of Warrant.
---------------------------
7.1 TRANSFER. This Warrant may be transferred, exercised, exchanged
or assigned ("transferred"), in whole or in part, subject to the provisions of
this Section 7.1. The Holder shall have the right to transfer all or a part of
this Warrant and all or part of the Warrant Shares to its officers, directors or
to its parent or subsidiary corporations. The Company shall register on its
books any permitted transfer of the Warrant, upon surrender of same to the
Company with a written instrument of transfer duly executed by the registered
Holder or by a duly authorized attorney. Upon any such registration of a
transfer, new Warrant(s) shall be issued to the transferee(s) and the
surrendered Warrant shall be cancelled by the Company. A Warrant may also be
exchanged, at the option of the Holder, for one or more new Warrants
representing the aggregate number of Warrant Shares evidenced by the Warrant
surrendered. This Warrant and the Warrant Shares or any other securities ("Other
Securities") received upon exercise of this Warrant or the conversion of the
Warrant Shares shall be subject to restrictions on transferability unless
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or unless an exemption from registration is available. Until this Warrant and
the Warrant Shares are so registered, this Warrant and any certificate for
Warrant Shares issued or issuable upon exercise of this Warrant shall contain a
legend on the face thereof, in form and substance satisfactory to counsel for
the Company, stating that this Warrant or the Warrant Shares may not be sold,
transferred or otherwise disposed of unless, in the opinion of counsel
satisfactory to the Company, which may be counsel to the Company, that the
Warrant or the Warrant Shares may be transferred without such registration. This
Warrant and the Warrant Shares may also be subject to restrictions on
transferability under applicable state securities or blue sky laws. Until the
Warrant and the Warrant Shares are registered under the Securities Act, the
Holder shall reimburse the Company for its expenses, including attorneys' fees,
incurred in connection with any transfer or assignment, in whole or in part, of
this Warrant or any Warrant Shares.
7.2 COMPLIANCE WITH LAWS. Until this Warrant or the Warrant Shares
are registered under the Securities Act, the Company may require, as a condition
of transfer of this Warrant or the Warrant Shares that the transferee (who may
be the Holder in the case of an exchange) represent that the securities being
transferred are being acquired for investment purposes and for the transferee's
own account and not with a view to or for sale in connection with any
distribution of the security. The Company may also require that the transferee
provide written information adequate to establish that the transferee is an
"accredited investor" within the meaning of Regulation D issued under the
Securities Act, or otherwise meets all qualifications necessary to comply with
exemptions to the Securities Act and Securities Laws, all as determined by
counsel to the Company.
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7.3 LOSS OF WARRANT. Upon receipt by the Company of evidence
reasonably satisfactory to it of loss, theft, destruction or mutilation of this
Warrant and, in the case of loss, theft or destruction, of reasonable
satisfactory indemnification, or, in the case of mutilation, upon surrender of
this Warrant, the Company will execute and deliver, or instruct the Transfer
Agent to execute and deliver, a new Warrant of like tenor and date, any such
lost, stolen or destroyed Warrant thereupon shall become void.
8. NO IMPAIRMENT. The Company will not, by amendment of its Certificate of
Incorporation or otherwise, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times, in good faith, take
all such action as may be necessary or appropriate in order to protect the
rights of the Holder against impairment.
9. NOTICES. Notices and other communications to be given to the Holder
shall be deemed sufficiently given if delivered by hand, or two business days
after mailing if mailed by registered or certified mail, postage prepaid,
addressed in the name and at the address of such Holder appearing on the records
of the Company. Notices or other communications to the Company shall be deemed
to have been sufficiently given if delivered by hand or two business days after
mailing if mailed by registered or certified mail, postage prepaid, to the
Company at:
600 Cleveland Street, Suite 800
Clearwater, Florida 34615
Either party may change the address to which notices shall be given by notice
pursuant to this Section 9.
10. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of Delaware.
11. REGISTRATION RIGHTS. Upon exercise of this Warrant, the Holder shall
have and be entitled to exercise rights of registration pursuant to that certain
Registration Rights Agreement dated of even date herewith.
12. COMPLIANCE WITH SECURITIES LAWS. The Holder of this Warrant, by
acceptance hereof, acknowledges that this Warrant and the shares of Common Stock
to be issued upon exercise hereof are being acquired solely for the Holder's own
account and not as a nominee for any other party, and for investment, and that
the Holder will not offer, sell or otherwise dispose of this Warrant or any
shares of Common Stock to be issued upon exercise hereof except under
circumstances that will not result in a violation of the Act or any state
securities laws. Upon exercise of this Warrant, the Holder shall, if requested
by the Company, confirm in writing, in a form satisfactory to the Company, that
the shares of Common Stock so purchased are being acquired solely for the
Holder's own account and not as a nominee for any other party, for investment,
and not with a view toward distribution or resale. All shares of Common Stock
issued upon exercise hereof shall be stamped or imprinted with a legend
substantially the same as the legend imprinted on the face of this Warrant.
13. COMPLIANCE WITH H-S-R ACT. The Company covenants and agrees that it
will make any and all filings under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, and any and all rules promulgated thereunder, as from time to time
may be amended, that may be necessary or required for issuance and delivery of
the Warrant Shares upon exercise of this Warrant.
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14. CONDITION TO EXERCISE. Notwithstanding anything herein to the
contrary, the Holder shall not be entitled to exercise this Warrant if (a) CKE
Restaurants, Inc. ("CKE") shall then be in breach of its obligations under the
Amended and Restated Credit Agreement, dated as of even date herewith, by and
among the Company, CKE, as Agent, and the Lenders identified therein (the
"Credit Agreement"), to make a Revolving Participated Loan (as such term is
defined in the Credit Agreement) and such breach shall not have been cured, or
(b) CKE, KCC Delaware and Fidelity National Financial, Inc. shall then be in
breach of their obligations under Section 2.03(d) of the Credit Agreement to
purchase shares of Common Stock of the Company in connection with a Rights
Offering (as defined in the Credit Agreement) if such Rights Offering shall have
been timely made by the Company as provided in the Credit Agreement, and such
breach shall not have been cured.
IN WITNESS WHEREOF, the Company has executed this Warrant as of November
22, 1996.
CHECKERS DRIVE-IN RESTAURANTS, INC.
By: _______________________________________
Its: _________________________________
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Annex A
[FORM OF EXERCISE]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase______ shares of Common
Stock and herewith tenders payment for such shares of Common Stock to the order
of Checkers Drive-In Restaurants, Inc. in the amount of $__________. The
undersigned requests that a certificate for such shares of Common Stock be
registered in the name of , whose address is ____________________________. If
such number of shares of Common Stock is less than all of the shares of Common
Stock purchasable hereunder, the undersigned requests that a new Warrant
Certificate representing the remaining balance of the shares of Common Stock be
registered in the name of _______________________, whose address is
_______________________, and that such Warrant Certificate be delivered to
_____________________, whose address is _____________________________.
Dated:
Signature:__________________________________
(Signature must conform in all respects to
name of Holder as specified on the face of
the Warrant Certificate.)
____________________________________
(Insert Social Security or Taxpayer
Identification Number of Holder.)
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