-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VI3rJdNWd0ZxkGzDhS8VXWkrZI7TJfS/1FzkQnZV5G6sgao5iD4fhspFJ1MD0Hmx g3Rh9Y/3I0K/BV2j0cVDsA== 0000807882-01-000004.txt : 20010308 0000807882-01-000004.hdr.sgml : 20010308 ACCESSION NUMBER: 0000807882-01-000004 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20010121 FILED AS OF DATE: 20010307 FILER: COMPANY DATA: COMPANY CONFORMED NAME: JACK IN THE BOX INC /NEW/ CENTRAL INDEX KEY: 0000807882 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 952698708 STATE OF INCORPORATION: DE FISCAL YEAR END: 1003 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 001-09390 FILM NUMBER: 1562523 BUSINESS ADDRESS: STREET 1: 9330 BALBOA AVE CITY: SAN DIEGO STATE: CA ZIP: 92123-1516 BUSINESS PHONE: 6195712121 MAIL ADDRESS: STREET 1: 9330 BALBOA AVENUE CITY: SAN DIEGO STATE: CA ZIP: 92123-1516 FORMER COMPANY: FORMER CONFORMED NAME: FOODMAKER INC /DE/ DATE OF NAME CHANGE: 19920703 10-Q 1 0001.txt FORM 10-Q FOR FIRST QUARTER OF FY 2001 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended January 21, 2001 ---------------- Commission file no. 1-9390 ------ JACK IN THE BOX INC. ---------------------------------------------------------------- (Exact name of registrant as specified in its charter) DELAWARE 95-2698708 - ---------------------------------------- -------------------------------------- (State of Incorporation) (I.R.S. Employer Identification No.) 9330 BALBOA AVENUE, SAN DIEGO, CA 92123 - ---------------------------------------- -------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (858) 571-2121 -------------- Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No --- --- Number of shares of common stock, $.01 par value, outstanding as of the close of business February 26, 2001 - 38,652,684. 1 JACK IN THE BOX INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (In thousands) January 21, October 1, 2001 2000 - --------------------------------------------------- ------------ ----------- (Unaudited) ASSETS Current assets: Cash and cash equivalents....................... $ 5,277 $ 6,836 Accounts receivable, net........................ 13,373 13,667 Inventories..................................... 28,012 25,722 Prepaid expenses................................ 14,782 19,329 Assets held for sale and leaseback.............. 32,948 33,855 ----------- ---------- Total current assets.......................... 94,392 99,409 ----------- ---------- Property and equipment, at cost.................... 1,000,576 967,832 Accumulated depreciation and amortization....... (302,274) (288,474) ----------- ---------- Property and equipment, net................... 698,302 679,358 ----------- ---------- Trading area rights, net........................... 70,731 71,565 Lease acquisition costs, net....................... 13,273 13,746 Other assets, net.................................. 43,448 42,750 ----------- ---------- TOTAL......................................... $ 920,146 $ 906,828 =========== ========== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Current maturities of long-term debt............ $ 2,097 $ 2,034 Accounts payable................................ 43,952 53,082 Accrued expenses................................ 150,330 153,356 ----------- ---------- Total current liabilities..................... 196,379 208,472 ----------- ---------- Deferred income taxes.............................. 12,922 12,468 Long-term debt, net of current maturities.......... 279,048 282,568 Other long-term liabilities........................ 89,700 86,968 Stockholders' equity: Common stock.................................... 417 415 Capital in excess of par value.................. 296,583 294,380 Retained earnings............................... 85,856 61,817 Treasury stock.................................. (40,759) (40,260) ----------- ---------- Total stockholders' equity.................... 342,097 316,352 ----------- ---------- TOTAL......................................... $ 920,146 $ 906,828 =========== ========== See accompanying notes to consolidated financial statements. 2 JACK IN THE BOX INC. AND SUBSIDIARIES UNAUDITED CONSOLIDATED STATEMENTS OF EARNINGS (In thousands, except per share data) Sixteen Weeks Ended --------------------------- January 21, January 23, 2001 2000 - -------------------------------------------------- ------------ ----------- Revenues: Restaurant sales................................ $ 506,537 $ 448,226 Distribution and other sales.................... 19,292 15,528 Franchise rents and royalties................... 13,362 12,640 Other........................................... 1,551 412 ----------- ---------- 540,742 476,806 ----------- ---------- Costs and expenses: Costs of revenues: Restaurant costs of sales.................... 156,167 139,988 Restaurant operating costs................... 252,053 221,234 Costs of distribution and other sales........ 18,800 15,332 Franchised restaurant costs.................. 6,205 6,142 Selling, general and administrative............. 60,770 53,533 Interest expense................................ 8,008 8,285 ----------- ---------- 502,003 444,514 ----------- ---------- Earnings before income taxes....................... 38,739 32,292 Income taxes....................................... 14,700 11,900 ----------- ---------- Net earnings....................................... $ 24,039 $ 20,392 =========== ========== Net earnings per share: Basic........................................... $ .63 $ .53 Diluted......................................... $ .61 $ .52 Weighted-average shares outstanding: Basic........................................... 38,429 38,256 Diluted......................................... 39,506 39,395 See accompanying notes to consolidated financial statements. 3 JACK IN THE BOX INC. AND SUBSIDIARIES UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS (In thousands) Sixteen Weeks Ended --------------------------- January 21, January 23, 2001 2000 - --------------------------------------------------------------- ----------- Cash flows from operations: Net earnings................................... $ 24,039 $ 20,392 Non-cash items included above: Depreciation and amortization............... 19,098 16,615 Deferred finance cost amortization.......... 639 637 Deferred income taxes....................... 454 300 Decrease in receivables........................ 294 3,334 Increase in inventories........................ (2,290) (2,621) Decrease in prepaid expenses................... 4,547 4,033 Decrease in accounts payable................... (9,130) (16,441) Increase (decrease) in other liabilities....... 828 (20,347) ----------- ---------- Cash flows provided by operations........... 38,479 5,902 ----------- ---------- Cash flows from investing activities: Additions to property and equipment............ (38,882) (24,492) Dispositions of property and equipment......... 1,773 1,096 Increase in trading area rights................ (453) (1,060) Increase in other assets....................... (1,507) (1,738) Decrease (increase) in assets held for sale and leaseback........................ 907 (5,231) ----------- ---------- Cash flows used in investing activities..... (38,162) (31,425) ----------- ---------- Cash flows from financing activities: Borrowings under revolving bank loans.......... 106,500 158,000 Principal repayments under revolving bank loans................................... (109,500) (134,000) Proceeds from issuance of long-term debt....... - 825 Principal payments on long-term debt, including current maturities................ (582) (508) Repurchase of common stock..................... (499) (2,436) Proceeds from issuance of common stock......... 2,205 197 ----------- ---------- Cash flows provided by (used in) financing activities...................... (1,876) 22,078 ----------- ---------- Net decrease in cash and cash equivalents.......... $ (1,559) $ (3,445) =========== ========== See accompanying notes to consolidated financial statements. 4 JACK IN THE BOX INC. AND SUBSIDIARIES NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS 1. The accompanying unaudited consolidated financial statements of Jack in the Box Inc. (the "Company") and its subsidiaries do not include all of the information and footnotes required by accounting principles generally accepted in the United States of America for complete financial statements. In our opinion, all adjustments, consisting only of normal recurring adjustments, considered necessary for a fair presentation of financial condition and results of operations for the interim periods have been included. Operating results for any interim period are not necessarily indicative of the results for any other interim period or for the full year. We report results quarterly with the first quarter having 16 weeks and each remaining quarter having 12 weeks. Certain financial statement reclassifications have been made in the prior year to conform to the current year presentation. These financial statements should be read in conjunction with the fiscal year 2000 financial statements. 2. We use interest rate derivative instruments to manage our exposure to variability in interest rates related to our bank credit facility, foreign currency exchange derivatives to manage our exposure to rising beef prices and commodity derivatives to manage our exposure to commodity price fluctuations. We do not speculate using derivative instruments and purchase derivative instruments only for the purpose of risk management. Effective October 2, 2000, we adopted Statement of Financial Accounting Standards ("SFAS") 133, Accounting for Derivative Instruments and Hedging Activities, as amended by SFAS 137 and 138, which establishes accounting and reporting standards for derivative instruments and hedging activities. SFAS 133 requires that entities recognize all derivatives as either assets or liabilities in the balance sheet and measure those instruments at fair value. Accounting for changes in the fair value of a derivative depends on the intended use and resulting designation of the derivative. For derivatives designated as hedges, changes in the fair value are either offset against the change in fair value of the assets or liabilities through earnings or recognized in other comprehensive income in the balance sheet until the hedged item is recognized in earnings. Upon the adoption of SFAS 133, we did not designate our interest rate swap, foreign currency exchange and commodity derivatives as hedge transactions. The transition adjustment recorded upon the adoption of SFAS 133 was not material to our consolidated statement of earnings. The changes in the fair value of our foreign currency exchange and commodity derivatives are included in costs of goods sold and the fair value of our interest rate swap is included in interest expense in the accompanying unaudited consolidated statement of earnings for the quarter ended January 21, 2001. 5 3. The 2001 income tax provision reflects the projected annual tax rate of 38% of earnings before income taxes. The income tax provision for the 16 weeks ended January 23, 2000 was 37% of earnings before income taxes and was subsequently adjusted in the fourth quarter of last year to the effective annual rate of 18% of pretax earnings, primarily due to a $22.9 million income tax benefit recognized as a result of the favorable settlement with the U.S. Internal Revenue Service of a tax case related to the disposition in November 1995 of our interest in Family Restaurants, Inc. The favorable income tax rates result from our ability to realize previously unrecognized tax benefits. The actual 2001 annual tax rate cannot be determined until the end of the fiscal year; thus the rate could differ from our current expectations. 4. We are subject to normal and routine litigation. The amount of liability from the claims and actions against us cannot be determined with certainty, but in the opinion of management, the ultimate liability from all pending legal proceedings, asserted legal claims and known potential legal claims which are probable of assertion should not materially affect our results of operations and liquidity. 6 JACK IN THE BOX INC. AND SUBSIDIARIES MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RESULTS OF OPERATIONS All comparisons under this heading between 2001 and 2000 refer to the 16-week periods ended January 21, 2001 and January 23, 2000, respectively, unless otherwise indicated. Company-operated restaurant sales increased $58.3 million, or 13.0%, to $506.5 million in 2001 from $448.2 million in 2000, reflecting increases in both the number of Company-operated restaurants and in per store average ("PSA") sales. The average number of Company-operated restaurants increased 10.1% to 1,325 in 2001 from 1,203 restaurants in 2000. PSA sales for comparable Company-operated restaurants, those open more than one year, grew 4.3% in 2001 compared with the same period in 2000. PSA sales growth, compared to a year ago, resulted from increases in average transaction amounts of 3.4% and average number of transactions of .9%. We believe that the sales growth is due to effective advertising and strategic initiatives, including our ongoing guest focus on food quality, service and promotions. Distribution and other sales increased $3.8 million to $19.3 million in 2001 from $15.5 million in 2000. Distribution sales of food and supplies to franchisees increased $3.0 million to $11.5 million in 2001 from $8.5 million in 2000, primarily due to increases in the number of restaurants serviced by our distribution division and PSA sales growth at franchise restaurants. Other sales from fuel and convenience store operations increased $.8 million to $7.8 million in 2001 from $7.0 million in 2000 as the number of locations we operate grew to eight at the end of the quarter compared with seven a year ago. Franchise rents and royalties increased $.8 million to $13.4 million in 2001 from $12.6 million in 2000, or 10.8% of franchise restaurant sales in 2001 and 10.5% in 2000. Franchise restaurant sales grew to $124.3 million in 2001 from $120.6 million in 2000, benefiting from our strategic initiatives. Franchise rents and royalties grew as a percentage of sales in 2001 primarily due to increases in rents at certain franchised restaurants. Other revenues, typically interest income from investments and notes receivable, increased to $1.6 million in 2001 from $.4 million in 2000. In 2001, other revenues also included franchising gains of $1.0 million which result from the conversion of Company-operated restaurants to franchises. Restaurant costs of sales, which include food and packaging costs, increased with sales growth and the addition of Company-operated restaurants to $156.2 million in 2001 from $140.0 million in 2000. As a percent of restaurant sales, costs of sales declined to 30.8% in 2001 from 31.2% in 2000, primarily due to lower ingredient costs, especially beef, cheese and poultry. Restaurant operating costs also increased with sales growth and additional restaurants to $252.1 million, or 49.8% of sales, in 2001 from $221.2 million, or 49.4% of sales, in 2000. The higher percentage of costs in 2001 reflects higher percentages of utilities, occupancy and labor-related expenses. 7 Costs of distribution and other sales increased to $18.8 million in 2001 from $15.3 million in 2000, reflecting an increase in the related sales. As a percent of distribution and other sales, these costs declined to 97.4% in 2001 compared to 98.7% a year ago, reflecting a slightly improved margin from our fuel and convenience store operations. Franchise restaurant costs, which consist principally of rents and depreciation on properties leased to franchisees and other miscellaneous costs, increased slightly to $6.2 million in 2001 from $6.1 million in 2000. Selling, general and administrative costs increased to $60.8 million in 2001 from $53.5 million in 2000. Advertising and promotion costs increased $3.0 million to $25.8 million in 2001 from $22.8 million in 2000, approximately 5.1% of restaurant sales in both quarters. General, administrative and other costs were approximately 6.5% of revenues in both quarters. Interest expense declined to $8.0 million in 2001 from $8.3 million in 2000 reflecting a reduction in total average debt outstanding. The 2001 income tax provision reflects the projected annual tax rate of 38% of earnings before income taxes. The income tax provision for the 16 weeks ended January 23, 2000 was 37% of earnings before income taxes and was subsequently adjusted in the fourth quarter of last year to the effective annual rate of 18% of pretax earnings, primarily due to a $22.9 million income tax benefit recognized as a result of the favorable settlement with the U.S. Internal Revenue Service of a tax case related to the disposition in November 1995 of our interest in Family Restaurants, Inc. The favorable income tax rates result from our ability to realize previously unrecognized tax benefits. The actual 2001 annual tax rate cannot be determined until the end of the fiscal year; thus the rate could differ from our current expectations. Net earnings increased $3.6 million, or $.09 per diluted share, to $24.0 million, or $.61 per diluted share, in 2001 from $20.4 million, or $.52 per diluted share, in 2000. Earnings improved nearly 18%, principally due to the impact of sales growth. LIQUIDITY AND CAPITAL RESOURCES Cash and cash equivalents decreased $1.5 million to $5.3 million at January 21, 2001 from $6.8 million at the beginning of the fiscal year. We expect to maintain low levels of cash and cash equivalents, reinvesting available cash flows from operations to develop new or enhance existing restaurants, and to reduce borrowings under the revolving credit agreement. Our working capital deficit decreased $7.1 million to $102.0 million at January 21, 2001 from $109.1 million at October 1, 2000, primarily due to a decline in current liabilities. The Company and the restaurant industry in general maintain relatively low levels of accounts receivable and inventories and vendors grant trade credit for purchases such as food and supplies. We also continually invest in our business through the addition of new units and refurbishment of existing units, which are reflected as long-term assets and not as part of working capital. Our revolving bank credit agreement provides for a credit facility expiring in 2003 of up to $175 million, including letters of credit of up to $25 million. At January 21, 2001, we had borrowings of $63 million and approximately $100.7 million of availability under the agreement. Total debt outstanding decreased slightly to $281.1 million at January 1, 2001 from $284.6 million at the beginning of the fiscal year. 8 We are subject to a number of covenants under our various debt instruments including limitations on additional borrowings, capital expenditures, lease commitments and dividend payments, and requirements to maintain certain financial ratios, cash flows and net worth. In September 1999, the collateral securing the bank credit facility was released. However, the real and personal property previously held as collateral for the bank credit facility cannot be used to secure other indebtedness of the Company. In addition, certain of our real and personal property secure other indebtedness. We require capital principally to grow the business through new restaurant construction, as well as to maintain, improve and refurbish existing restaurants, and for general operating purposes. Our primary sources of liquidity are expected to be cash flows from operations, the revolving bank credit facility, and the sale and leaseback of restaurant properties. Additional potential sources of liquidity include financing opportunities and the conversion of Company-operated restaurants to franchised restaurants. Based upon current levels of operations and anticipated growth, we expect that cash flows from operations, combined with other financing alternatives available, will be sufficient to meet debt service, capital expenditure and working capital requirements. Although the amount of liability from claims and actions against us cannot be determined with certainty, we believe the ultimate liability of such claims and actions should not materially affect our results of operations and liquidity. On December 3, 1999, our Board of Directors authorized the purchase of our outstanding common stock in the open market for an aggregate amount not to exceed $10 million. Through January 21, 2001, we had acquired 330,800 shares in connection with this authorization for an aggregate cost of $6.3 million. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK Our primary exposure relating to financial instruments is to changes in interest rates. We use interest rate swap agreements to reduce exposure to interest rate fluctuations. At January 21, 2001, we had a $25 million notional amount interest rate swap agreement expiring in June 2001. This agreement effectively converts a portion of our variable rate bank debt to fixed rate debt and has a pay rate of 6.4%. Our credit facility bears interest at an annual rate equal to the prime rate or the London Interbank Offered Rate ("LIBOR") plus an applicable margin based on a financial leverage ratio. As of January 21, 2001, our applicable margin was set at .625%. During the first quarter of fiscal year 2001, the average interest rate on the credit facility was 7.2%, including the impact of the interest rate swap. At January 21, 2001, a hypothetical one percentage point increase in short-term interest rates would result in a reduction of $.4 million in annual pre-tax earnings. The estimated reduction is based on holding the unhedged portion of bank debt at its January 21, 2001 level. At January 21, 2001, we had no other material financial instruments subject to significant market exposure. However, from time to time we enter into commodity and foreign currency contracts which could expose us to market risk. 9 CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING STATEMENTS This Quarterly Report on Form 10-Q contains forward-looking statements including, but not limited to, our expectations regarding our effective tax rate, our continuing investment in new restaurants and refurbishment of existing facilities and sources of liquidity. Forward-looking statements are generally identifiable by the use of the words "believe," "expect," "intend," "anticipate," "estimate," "project" and similar expressions. Forward-looking statements are subject to known and unknown risks and uncertainties which may cause actual results to differ materially from expectations. The following is a discussion of some of those factors. Our tax provision is highly sensitive to expected earnings and as expectations change our income tax provision may vary more significantly from quarter to quarter and year to year than companies which have been continuously profitable. However, our effective tax rates are expected to increase in the future. There can be no assurances that growth objectives in the regional domestic markets in which we operate will be met or that capital will be available for refurbishment of existing facilities. Multi-unit food service business such as JACK IN THE BOX restaurants can be materially and adversely affected by publicity about allegations of poor food quality, foreign objects in food, illness, injury or other health concerns with respect to the nutritional value of certain foods. We have experienced an increase in utility costs due to deregulations. We have also experienced power outages in certain areas and are uncertain if they will continue or spread to other areas. The deregulation of utilities and the continuation of power shortages or interruptions may adversely affect the profitability of our business in the areas in which they occur. Additional risk factors associated with our business are detailed in our most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission. NEW ACCOUNTING STANDARDS In December 1999, the Securities and Exchange Commission issued Staff Accounting Bulletin 101 ("SAB101"), Revenue Recognition in Financial Statements, summarizing their views for applying generally accepted accounting principles to revenue recognition in financial statements. Although we have determined that the adoption of SAB101 should not have a material effect on our annual results of operations, it will impact the reporting of our franchise percentage rent between quarters within the year. As permitted by SAB101, we plan to adopt the new standard in the fourth quarter of fiscal year 2001 at which time we will restate the earlier quarters within the year. 10 PART II - OTHER INFORMATION There is no information required to be reported for any items under Part II, except as follows: Item 4. Submission of Matters to a Vote of Security Holders. No matters were submitted to a vote of stockholders in the first quarter ended January 21, 2001. Our annual meeting was held February 23, 2001 at which the following matters were voted as indicated: For Withheld --- -------- 1. Election of the following directors to serve until the next annual meeting of stockholders and until their successors are elected and qualified. Michael E. Alpert.......................... 33,787,304 433,433 Jay W. Brown............................... 33,857,944 362,793 Paul T. Carter............................. 33,989,907 230,830 Charles W. Duddles......................... 34,005,621 215,116 Edward W. Gibbons.......................... 34,004,925 215,812 Alice B. Hayes, Ph.D....................... 34,002,728 218,009 Murray H. Hutchison........................ 34,004,150 216,587 Robert J. Nugent........................... 33,858,662 362,075 L. Robert Payne............................ 33,994,067 226,670 Kenneth R. Williams........................ 34,003,978 216,759 For Against Abstain Not Voted --- ------- ------- --------- 2. Approval of the Performance Bonus Plan...................... 32,751,539 657,379 704,583 107,236 3. Ratification of the appointment of KPMG LLP as independent accountants..................... 34,063,365 33,982 123,390 - Item 6. Exhibits and Reports on Form 8-K. (a) Exhibits Number Description ------ ----------- 10.1 Sixth Amendment dated as of November 17, 2000 to the Revolving Credit Agreement dated as of April 1, 1998 by and between Jack in the Box Inc. and the Banks named therein. (b) Reports on Form 8-K - None. 11 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized and in the capacities indicated. JACK IN THE BOX INC. By: DARWIN J. WEEKS --------------- Darwin J. Weeks Vice President, Controller and Chief Accounting Officer (Duly Authorized Signatory) Date: March 7, 2001 EX-10.1 2 0002.txt SIXTH AMENDMENT TO BANK CREDIT AGREEMENT SIXTH AMENDMENT Dated as of November 17, 2000 This SIXTH AMENDMENT (this "Amendment") is among JACK IN THE BOX INC. (formerly Foodmaker, Inc.), a Delaware corporation (the "Borrower"), the financial institutions and other entities party to the Credit Agreement referred to below (the "Lenders"), and BANK OF AMERICA, N.A. (formerly NationsBank, N.A. (successor to NationsBank of Texas, N.A)), as L/C Bank (as defined in the Credit Agreement) and as agent (the "Agent") for the Lenders and the Issuing Banks thereunder. PRELIMINARY STATEMENTS: 1. The Borrower, the Lenders, the Arranger, the Documentation Agent and the Agent have entered into a Credit Agreement dated as of April 1, 1998, as amended by the First Amendment dated as of August 24, 1998, the Second Amendment dated as of February 27, 1999, the Third Amendment dated as of September 17, 1999, the Fourth Amendment dated as of December 6, 1999, and the Fifth Amendment dated as of May 3, 2000 (as so amended, the "Credit Agreement.") Capitalized terms used and not otherwise defined herein have the meanings assigned to such terms in the Credit Agreement. 2. The Borrower has requested that the Lenders amend certain provisions of the Credit Agreement to permit and facilitate (a) the Borrower's creation and capitalization of three new Subsidiaries, consisting of two wholly-owned Delaware limited liability companies (respectively, "General Partner" and "Limited Partner") and an indirectly wholly-owned Texas limited partnership ("Texas LP") (General Partner, Limited Partner and Texas LP, collectively, the "Jack East Subsidiaries"), (b) the Borrower's capital contribution of the Contributed Assets (as defined below) to Texas LP in exchange for a 99% limited partnership interest in Texas LP and Texas LP's assumption of certain liabilities of the Borrower (not to include any liabilities or obligations of the Borrower pursuant to the Credit Agreement except as and to the extent set forth in the Guaranty) and the Borrower's capital contribution of cash to the General Partner in exchange for a 100% equity interest in General Partner, (c) the General Partner's contribution of cash to the Texas LP in exchange for a 1% general partnership interest in Texas LP, (d) the Borrower's contribution of its limited partnership interest in Texas LP to Limited Partner in exchange for a 100% equity interest in Limited Partner, (e) the Borrower's entry into transactions and arrangements with the Jack East Subsidiaries pursuant to which the Jack East Subsidiaries, or some of them, would pay to the Borrower royalties with respect to the use of the "Jack in the Box" name and consulting, management, shared services and other fees, and (f) other agreements and arrangements ancillary to the transactions set forth in clauses (a) through (e) above (all such transactions and arrangements set forth in clauses (a) through (f) above, the "Jack East Transactions"). 3. The Required Lenders are, on the terms and conditions stated below, willing to grant the request of the Borrower. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1 SECTION 1. Amendments to Credit Agreement. Effective as of the date hereof and subject to satisfaction of the conditions precedent set forth in Section 2 hereof, the Credit Agreement is hereby amended as follows: (a) Section 1.01 of the Credit Agreement is hereby amended by adding thereto, in appropriate alphabetical order, the following defined terms: "Contributed Assets" means substantially all of the assets and operations of Jack in the Box in the states of Florida, Texas, Illinois, Missouri, Louisiana, North Carolina, Tennessee and South Carolina and certain related intangible assets. "General Partner" means JBX General Partner LLC, a Delaware limited liability company. "Jack East Subsidiary" means each of General Partner, Limited Partner, and Texas LP, and "Jack East Subsidiaries" is a collective reference to all of such Subsidiaries. "Jack East Transactions" means (a) the Borrower's creation and capitalization of the Jack East Subsidiaries, (b) the Borrower's capital contribution of the Contributed Assets (as defined below) to Texas LP in exchange for a 99% limited partnership interest in Texas LP and Texas LP's assumption of certain liabilities of the Borrower (not to include any liabilities or obligations of the Borrower pursuant to the Credit Agreement except as and to the extent set forth in the Guaranty) and the Borrower's capital contribution of cash to the General Partner in exchange for a 100% equity interest in General Partner, (c) the General Partner's contribution of cash to the Texas LP in exchange for a 1% general partnership interest in Texas LP, (d) the Borrower's contribution of its limited partnership interest in Texas LP to Limited Partner in exchange for a 100% equity interest in Limited Partner, (e) the Borrower's entry transactions and arrangements with the Jack East Subsidiaries pursuant to which the Jack East Subsidiaries, or some of them, would pay to the Borrower royalties with respect to the use of the "Jack in the Box" name and consulting, management, shared services and other fees, and (f) other agreements and arrangements ancillary to the transactions set forth in clauses (a) through (e) above (all such transactions and arrangements set forth in clauses (a) through (f) above, the "Jack East Transactions"). "Limited Partner" means JBX Limited Partner LLC, a Delaware limited liability company. "Texas LP" means Jack in the Box Eastern Division L.P., a Texas limited partnership. (b) Section 6.01(j) of the Credit Agreement is hereby amended and restated in its entirety to read as follows: 2 (j) Transactions with Affiliates. Conduct, and cause each of its Subsidiaries to conduct, all transactions otherwise permitted under the Loan Documents with any of their Affiliates on terms that are fair and reasonable and no less favorable to the Borrower or such Subsidiary than it would obtain in a comparable arm's-length transaction with a Person not an Affiliate, other than (i) payments for management advisory services not to exceed $375,000 in the aggregate, (ii) transactions permitted under Section 6.02(g), (iii) the CRC Leases, (iv) any Permitted CRC Transaction and (v) the Jack East Transactions; provided, however, that nothing in this Section 6.01(j) shall be construed to imply that any of the Jack East Transactions, or any of the other transactions referenced specifically herein, is not a transaction on terms that are fair and reasonable and no less favorable to the Borrower or such Subsidiary than it would obtain in a comparable arm's length transaction with a Person not an Affiliate; (c) Section 6.02(b)(iii)(B) of the Credit Agreement is hereby amended and restated in its entirety to read as follows: (B) the Surviving Debt and Permitted Subordinated Debt (including any guaranties of Permitted Subordinated Debt (provided that any guarantee of Permitted Subordinated Debt described in clause (B) of the definition thereof shall be on terms and conditions satisfactory to the Required Lenders)); (d) Section 6.02(i) of the Credit Agreement is hereby amended and restated in its entirety to read as follows: (i) Corporate Organization. (A) Create any Subsidiaries (other than Excluded Subsidiaries, Qualifying Subsidiaries and the Jack East Subsidiaries) not in existence on the date hereof; or (B) amend in any respect adverse to the Agent or any Lender, or permit any of its Subsidiaries (whether or not existing on the date hereof) to amend in any respect adverse to the Agent or any Lender, its certificate or articles of incorporation, bylaws or other organizational or charter documents. (e) Section 6.02(k)(iii) of the Credit Agreement is hereby amended and restated in its entirety to read as follows: (iii) amend, modify or change in any manner any term or condition of any Surviving Debt or Permitted Subordinated Debt in a manner adverse to the Agent or any Lender, or permit any of its Subsidiaries to do any of the foregoing other than to prepay any Debt permitted hereunder and payable to the Borrower or any other Loan Party. (f) Section 6.02(n) of the Credit Agreement is hereby amended and restated in its entirety to read as follows: (n) Partnerships. Become a general partner in any general or limited partnership (other than an Excluded Subsidiary or any of the Jack East Subsidiaries) or permit any of its Subsidiaries (other than an Excluded Subsidiary or any of the Jack East Subsidiaries) to become a general partner in any general or limited partnership, other than any Subsidiary the sole assets of which consist of its interest in such partnership. 3 SECTION 2. Conditions to Effectiveness. This Amendment shall not be effective until each of the following conditions precedent shall have been satisfied: (a) the Agent shall have executed this Amendment and shall have received counterparts of this Amendment executed by the Borrower and the Required Lenders and counterparts of the Consent appended hereto (the "Consent") executed by each of the Guarantors listed therein (such Guarantors, together with the Borrower, each a "Loan Party" and, collectively, the "Loan Parties"); (b) each Jack East Subsidiary shall have guaranteed all Obligations of the Borrower under the Credit Agreement and Notes by executing and delivering to the Agent an amendment to Guaranty in substantially the form required by Section 6.01(k) of the Credit Agreement; and (c) each of the representations and warranties in Section 3 below shall be true and correct. SECTION 3. Representations and Warranties. The Borrower represents and warrants as follows: (a) Authority. The Borrower and each other Loan Party has the requisite corporate power and authority to execute and deliver this Amendment and the Consent, as applicable, and to perform its obligations hereunder and under the Loan Documents (as amended hereby) to which it is a party. The execution, delivery and performance by the Borrower of this Amendment and by each other Loan Party of the Consent, and the performance by each Loan Party of each Loan Document (as amended hereby) to which it is a party have been duly approved by all necessary corporate action of such Loan Party and no other corporate proceedings on the part of such Loan Party are necessary to consummate such transactions. (b) Enforceability. This Amendment has been duly executed and delivered by the Borrower. The Consent has been duly executed and delivered by each Guarantor. This Amendment and each Loan Document (as amended hereby) is the legal, valid and binding obligation of each Loan Party party hereto and thereto, enforceable against such Loan Party in accordance with its terms, and is in full force and effect. (c) Representations and Warranties. The representations and warranties contained in each Loan Document (other than any such representations and warranties that, by their terms, are specifically made as of a date other than the date hereof) are true and correct on and as of the date hereof as though made on and as of the date hereof. (d) No Default. No event has occurred and is continuing that constitutes a Default or Event of Default. SECTION 4. Reference to and Effect on the Loan Documents. (a) Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended hereby. 4 (b) Except as specifically amended above, the Credit Agreement and the other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. (c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender, any Issuing Bank, the Arranger, the Documentation Agent or the Agent under any of the Loan Documents, nor constitute a waiver or amendment of any provision of any of the Loan Documents. SECTION 5. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment or the Consent by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment or such Consent. SECTION 6. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of California. [Signature Pages follow] 5 IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment to be executed by their respective officers thereunto duly authorized, as of the date first written above. JACK IN THE BOX INC. (successor to Foodmaker, Inc.), a Delaware corporation By: HAROLD L. SACHS ----------------------------------------- Name: Harold L. Sachs Title: Vice President and Treasurer BANK OF AMERICA, NA. as Agent By: RICHARD G. PARKHURST, JR. ----------------------------------------- Name: Richard G. Parkhurst, Jr. Title: Managing Director Lenders ------- BANK OF AMERICA, NA. By: RICHARD G. PARKHURST, JR. ----------------------------------------- Name: Richard G. Parkhurst, Jr. Title: Managing Director CREDIT LYONNAIS LOS ANGELES BRANCH By: DIANNE M. SCOTT ----------------------------------------- Name: Dianne M. Scott Title: First Vice President/Manager ROYAL BANK OF CANADA By: ----------------------------------------- Name: Title: UNION BANK OF CALIFORNIA, N.A. By: LINDA WELKER ----------------------------------------- Name: Linda Welker Title: Vice President S-1 thru S-6 U.S. BANK NATIONAL ASSOCIATION By: ----------------------------------------- Name: Title: BANK ONE TEXAS, NA. By: JOSEPH R. PERDENZA ----------------------------------------- Name: Joseph R. Perdenza Title: Assistant Vice President CIBC, INC. By: STEPHANIE E. DeVANE ----------------------------------------- Name: Stephanie E. DeVane Title: Executive Director CIBC World Markets Corp., As Agent MORGAN GUARANTY TRUST CO. By: ROBERT BOTTAMEDI ----------------------------------------- Name: Robert Bottamedi Title: Vice President SANWA BANK CALIFORNIA By: ----------------------------------------- Name: Title: NATEXIS BANQUE - BFCE By: GARY KANIA ----------------------------------------- Name: Gary Kania Title: Vice President By: JORDAN SADLER ----------------------------------------- Name: Jordan Sadler Title: Assistant Vice President S-7 thru S-12 CONSENT Dated as of November 17, 2000 The Undersigned, as Guarantors under the "Guaranty" (as much terms are defined in and under the Credit Agreement referred to in the foregoing Sixth Amendment), each hereby consents and agrees to the foregoing Sixth Amendment and hereby confirms and agrees that the Guaranty is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that, upon the effectiveness of, and on and after the date of, said Sixth Amendment, each reference in the Guaranty to the "Credit Agreement", "thereunder", "thereof" and words of like imports to the Credit Agreement shall mean and be a reference to the Credit Agreement as amended by said Sixth Amendment. CP DISTRIBUTION CO., a Delaware corporation, CP WHOLESALE CO., a Delaware corporation and JACK IN THE BOX, INC., a New Jersey corporation By: LAWRENCE E. SCHAUF -------------------------------------- Lawrence E. Schauf Executive Vice President and Secretary FOODMAKER INTERNATIONAL FRANCHISING,INC. a Delaware corporation By: HAROLD L. SACHS -------------------------------------- Harold L. Sachs Vice President and Treasurer S-13 -----END PRIVACY-ENHANCED MESSAGE-----