GUARANTY AGREEMENT
(as amended, restated, supplemented or otherwise modified, this
“ Guaranty ”), dated as of December 15,
2006, is made by certain Domestic Subsidiaries of JACK IN THE BOX
INC., a Delaware corporation (such subsidiaries, collectively, the
“ Guarantors ”, each a “ Guarantor
”), in favor of WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent (in such capacity, the “
Administrative Agent ”) and the Secured
Parties.
Pursuant to the
terms of the Credit Agreement dated as of December 15, 2006
(as amended, restated, supplemented or otherwise modified from time
to time, the “ Credit Agreement ”) among Jack in
the Box Inc., a Delaware corporation, as borrower (the “
Borrower ”), the financial institutions (the “
Lenders ”) from time to time party thereto and the
Administrative Agent, the Lenders have agreed to make Extensions of
Credit to the Borrower upon the terms and subject to the conditions
set forth therein.
The Borrower and
the Guarantors, though separate legal entities, comprise one
integrated financial enterprise, and all Extensions of Credit to
the Borrower will inure, directly or indirectly, to the benefit of
each of the Guarantors.
It is a condition
precedent to the obligation of the Lenders to make their respective
Extensions of Credit to the Borrower under the Credit Agreement
that the Guarantors shall have executed and delivered this Guaranty
to the Administrative Agent and the Secured Parties.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, and to induce
the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective
Extensions of Credit to the Borrower thereunder, the Guarantors
hereby agree with the Administrative Agent and the Secured Parties,
as follows:
(a) The
following terms when used in this Guaranty shall have the meanings
assigned to them below:
“
Additional Guarantor ” means each Domestic Subsidiary
of the Borrower which hereafter becomes a Guarantor pursuant to
Section 26 hereof and Section 9.9 of the Credit
Agreement.
“
Applicable Insolvency Laws ” means all Applicable Law
governing bankruptcy, reorganization, arrangement, adjustment of
debts, relief of debtors, dissolution, insolvency, fraudulent
transfers or conveyances or other similar laws (including, without
limitation, 11 U.S.C. Sections 547, 548 and 550 and other
“avoidance” provisions of Title 11 of the United States
Code).
“
Guaranteed Obligations ” has the meaning set forth in
Section 2(a) hereof.
“
Guaranty ” means this Guaranty Agreement, as amended,
restated, supplemented or otherwise modified from time to
time.
“
Permitted Liens ” means those Liens permitted pursuant
to Section 11.2 of the Credit Agreement.
(b) Unless
otherwise indicated herein, capitalized terms used and not
otherwise defined in this Guaranty including the preambles and
recitals hereof shall have the meanings ascribed to them in the
Credit Agreement. In the event of a conflict between capitalized
terms defined herein and in the Credit Agreement, the Credit
Agreement shall control.
(c) The words
“hereof,” “herein”, “hereto”
and “hereunder” and words of similar import when used
in this Guaranty shall refer to this Guaranty as a whole and not to
any particular provision of this Guaranty, and Section references
are to this Guaranty unless otherwise specified. The meanings given
to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms. Where the context
requires, terms relating to the Collateral or any part thereof,
when used in relation to a Guarantor, shall refer to such
Guarantor’s Collateral or the relevant part
thereof.
SECTION 2.
Guaranty of Obligations of Guarantors .
(a)
Nature of Guaranty . Each Guarantor hereby, jointly and
severally with the other Guarantors, unconditionally guarantees to
the Administrative Agent and the Secured Parties, and their
respective permitted successors, endorsees, transferees and
assigns, the prompt payment and performance of all Obligations of
the Borrower, whether primary or secondary (whether by way of
endorsement or otherwise), whether now existing or hereafter
arising, whether or not from time to time reduced or extinguished
(except by payment thereof) or hereafter increased or incurred,
whether enforceable or unenforceable as against the Borrower,
whether or not discharged, stayed or otherwise affected by any
Applicable Insolvency Law or proceeding thereunder, whether created
directly with the Administrative Agent or any Secured Party or
acquired by the Administrative Agent or any Secured Party through
assignment or endorsement, whether matured or unmatured, whether
joint or several, as and when the same become due and payable
(whether at maturity or earlier, by reason of acceleration,
mandatory repayment or otherwise), in accordance with the terms of
any such instruments evidencing any such obligations, including all
renewals, extensions or modifications thereof (all Obligations of
the Borrower, including all of the foregoing, being hereinafter
collectively referred to as the “ Guaranteed
Obligations ”).
(b)
Bankruptcy Limitations on Guarantors . Notwithstanding
anything to the contrary contained in paragraph (a) above, it
is the intention of each Guarantor and the Secured Parties that, in
any proceeding involving the bankruptcy, reorganization,
arrangement, adjustment of debts, relief of debtors, dissolution or
insolvency or any similar proceeding with respect to any Guarantor
or its assets, the amount of such Guarantor’s obligations
with respect to the
2
Guaranteed
Obligations shall be in, but not in excess of, the maximum amount
thereof not subject to avoidance or recovery by operation of
Applicable Insolvency Laws after giving effect to subsection
(c) below. To that end, but only in the event and to the
extent that after giving effect to subsection (c) below, such
Guarantor’s obligations with respect to the Guaranteed
Obligations or any payment made pursuant to the Guaranteed
Obligations would, but for the operation of the first sentence of
this subsection (b), be subject to avoidance or recovery in any
such proceeding under Applicable Insolvency Laws after giving
effect to subsection (c) below, the amount of such
Guarantor’s obligations with respect to the Guaranteed
Obligations shall be limited to the largest amount which, after
giving effect thereto, would not, under Applicable Insolvency Laws,
render such Guarantor’s obligations with respect to such
Guaranteed Obligations unenforceable or avoidable or otherwise
subject to recovery under Applicable Insolvency Laws. To the extent
any payment actually made pursuant to the Guaranteed Obligations
exceeds the limitation of first sentence of this subsection (b),
and is otherwise subject to avoidance and recovery in any such
proceeding under Applicable Insolvency Laws, the amount subject to
avoidance shall in all events be limited to the amount by which
such actual payment exceeds such limitation and the Guaranteed
Obligations as limited by the first sentence of this subsection
(b) shall in all events remain in full force and effect and be
fully enforceable against such Guarantor. The first sentence of
this subsection (b) is intended solely to preserve the rights
of the Administrative Agent and the Secured Parties hereunder
against such Guarantor in such proceeding to the maximum extent
permitted by Applicable Insolvency Laws and neither such Guarantor,
the Borrower, any other Guarantor nor any other Person shall have
any right or claim under such sentence that would not otherwise be
available under Applicable Insolvency Laws in such
proceeding.
(c)
Agreements for Contribution .
(i) To
the extent any Guarantor is required, by reason of its obligations
hereunder, to pay to any Secured Party an amount greater than the
amount of value (as determined in accordance with Applicable
Insolvency Laws) actually made available to or for the benefit of
such Guarantor on account of the Credit Agreement, this Guaranty or
any other Loan Document, such Guarantor shall have an enforceable
right of contribution against the Borrower and the remaining
Guarantors, and the Borrower and the remaining Guarantors shall be
jointly and severally liable, for repayment of the full amount of
such excess payment. Subject only to the subordination provided in
the following clause (iv) below, such Guarantor further shall
be subrogated to any and all rights of the Secured Parties against
the Borrower and the remaining Guarantors to the extent of such
excess payment.
(ii) To
the extent that any Guarantor would, but for the operation of this
subsection (c) and by reason of its obligations hereunder or
its obligations to other Guarantors under this subsection (c), be
rendered insolvent for any purpose under Applicable Insolvency
Laws, each of the Guarantors hereby agrees to indemnify such
Guarantor and commits to make a contribution to such
Guarantor’s capital in an amount at least equal to the amount
necessary to prevent such Guarantor from having been rendered
insolvent by reason of the incurrence of any such
obligations.
(iii) To
the extent that any Guarantor would, but for the operation of this
subsection (c), be rendered insolvent under any Applicable
Insolvency Law by reason of its
3
incurring of
obligations to any other Guarantors under the foregoing clauses
(i) and (ii) above, such Guarantor shall, in turn, have
rights of contribution and indemnity, to the full extent provided
in the foregoing clauses (i) and (ii) above, against the
Borrower and the remaining Guarantors, such that all obligations of
all of the Guarantors hereunder and under this subsection
(c) shall be allocated in a manner such that no Guarantor
shall be rendered insolvent for any purpose under Applicable
Insolvency Law by reason of its incurrence of such
obligations.
(iv) Notwithstanding
any payment or payments by any of the Guarantors hereunder, or any
set-off or application of funds of any of the Guarantors by the
Administrative Agent or any Secured Party, or the receipt of any
amounts by the Administrative Agent or any Secured Party with
respect to any of the Guaranteed Obligations, none of the
Guarantors shall be entitled to be subrogated to any of the rights
of the Administrative Agent or any Secured Party against the
Borrower or the other Guarantors or any other guarantors or against
any collateral security held by the Administrative Agent or any
Secured Party for the payment of the Guaranteed Obligations, nor
shall any of the Guarantors seek any reimbursement from the
Borrower or any of the other Guarantors in respect of payments made
by such Guarantor in connection with the Guaranteed Obligations,
until all amounts owing to the Administrative Agent and the Secured
Parties on account of the Guaranteed Obligations (other than any
contingent indemnification obligations) are paid in full and the
Commitments, are terminated. If any amount shall be paid to any
Guarantor on account of such subrogation rights at any time when
all of the Guaranteed Obligations shall not have been paid in full,
such amount shall be held by such Guarantor in trust for the
Administrative Agent, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be
turned over to the Administrative Agent in the exact form received
by such Guarantor (duly endorsed by such Guarantor to the
Administrative Agent, if required) to be applied against the
Guaranteed Obligations, whether matured or unmatured, in such order
as set forth in the Credit Agreement.
SECTION 3.
Nature of Guaranty .
(a) Each
Guarantor agrees that this Guaranty is a continuing, unconditional
guaranty of payment and performance and not of collection, and that
its obligations under this Guaranty shall be primary, absolute and
unconditional, irrespective of, and unaffected by:
(i) the
genuineness, validity, regularity, enforceability or any future
amendment of, or change in, the Credit Agreement or any other Loan
Document or any other agreement, document or instrument to which
the Borrower or any Subsidiary thereof is or may become a
party;
(ii) the absence
of any action to enforce this Guaranty, the Credit Agreement or any
other Loan Document or the waiver or consent by the Administrative
Agent or any Secured Party with respect to any of the provisions of
this Guaranty, the Credit Agreement or any other Loan
Document;
(iii) the
existence, value or condition of, or failure to perfect its Lien
against, any security for or other guaranty of the Guaranteed
Obligations or any action, or the absence of any action, by the
Administrative Agent or any Secured Party in respect of
4
such security
or guaranty (including, without limitation, the release of any such
security or guaranty); or
(iv) any other
action or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor;
it being agreed
by each Guarantor that, subject to the first sentence in Section
2(b) hereof, its obligations under this Guaranty shall not be
discharged until the final indefeasible payment and performance, in
full, of the Guaranteed Obligations and the termination of the
Commitments.
(b) Each
Guarantor represents, warrants and agrees that its obligations
under this Guaranty are not and shall not be subject to any
counterclaims, offsets or defenses of any kind against the
Administrative Agent, the Secured Parties or the Borrower whether
now existing or hereafter arising.
(c) Each
Guarantor hereby agrees and acknowledges that the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended
or waived, in reliance upon this Guaranty, and all dealings between
the Borrower and any of the Guarantors, on the one hand, and the
Administrative Agent and the Secured Parties, on the other hand,
likewise shall be conclusively presumed to have been had or
consummated in reliance upon this Guaranty.
SECTION 4.
Waivers . To the extent permitted by law, each Guarantor
expressly waives all of the following rights and defenses (and
agrees not to take advantage of or assert any such right or
defense):
(a) any
rights it may now or in the future have under any statute, or at
law or in equity, or otherwise, to compel the Administrative Agent
or any Secured Party to proceed in respect of the Guaranteed
Obligations against the Borrower or any other party or against any
security for or other guaranty of the payment and performance of
the Guaranteed Obligations before proceeding against, or as a
condition to proceeding against, such Guarantor;
(b) any
defense based upon the failure of the Administrative Agent or any
Secured Party to commence an action in respect of the Guaranteed
Obligations against the Borrower, such Guarantor, any other
guarantor or any other party or any security for the payment and
performance of the Guaranteed Obligations;
(c) any right
to insist upon, plead or in any manner whatever claim or take the
benefit or advantage of, any appraisal, valuation, stay, extension,
marshalling of assets or redemption laws, or exemption, whether now
or at any time hereafter in force, which may delay, prevent or
otherwise affect the performance by such Guarantor of its
obligations under, or the enforcement by the Administrative Agent
or the Secured Parties of, this Guaranty;
(d) any right
of diligence, presentment, demand, protest and notice (except as
specifically required herein) of whatever kind or nature with
respect to any of the Guaranteed
5
Obligations and
waives, to the extent permitted by Applicable Laws, the benefit of
all provisions of law which are or might be in conflict with the
terms of this Guaranty and
(e) any and
all right to notice of the creation, renewal, extension, or accrual
of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Secured Party upon, or acceptance of,
this Guaranty.
Each Guarantor
agrees that any notice or directive given at any time to the
Administrative Agent or any Secured Party which is inconsistent
with any of the foregoing waivers shall be null and void and may be
ignored by the Administrative Agent or such Secured Party, and, in
addition, may not be pleaded or introduced as evidence in any
litigation relating to this Guaranty for the reason that such
pleading or introduction would be at variance with the written
terms of this Guaranty, unless the Administrative Agent and the
Required Lenders have specifically agreed otherwise in writing. The
foregoing waivers are of the essence of the transaction
contemplated by the Credit Agreement and the other Loan Documents
and, but
|