EXHIBIT 10.2
FIRST AMENDMENT
TO
REVOLVING CREDIT AND GUARANTY AGREEMENT
FIRST AMENDMENT, dated as of August 15, 1997 (the "Amendment"), to the
REVOLVING CREDIT AND GUARANTY AGREEMENT dated as of July 11, 1997 among FLAGSTAR
CORPORATION, a Delaware corporation (the "Borrower"), FLAGSTAR COMPANIES, INC.,
a Delaware corporation ("FCI") and FLAGSTAR HOLDINGS, INC., a New York
corporation ("Holdings", and together with the Borrower and FCI, each a debtor
and debtor-in-possession under Chapter 11 of the Bankruptcy Code) and each of
the Subsidiary Guarantors named therein (together with FCI and Holdings, the
"Guarantors"), THE CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), each of the other financial institutions party thereto (together with
Chase, the "Banks") and THE CHASE MANHATTAN BANK, as Agent for the Banks (in
such capacity, the "Agent"):
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, Chase and the Agent are parties to
that certain Revolving Credit and Guaranty Agreement, dated as of July 11, 1997
(as heretofore modified by that certain Amendment Letter Agreement dated as of
July 16, 1997, and as the same may be further amended, modified or supplemented
from time to time, the "Credit Agreement"); and
WHEREAS, Section 10.3(b) of the Credit Agreement provides that each Bank
may assign to one or more Eligible Assignees all or a portion of its interests,
rights and obligations under the Credit Agreement (including, without
limitation, all or a portion of its Commitment and the same portion of the
related Loans at the time owing to it and the related Note held by it) by
executing and delivering with such Eligible Assignee an Assignment and
Acceptance in substantially the form of Exhibit E to the Credit Agreement (a
copy of which is annexed hereto as Schedule I); and
WHEREAS, Chase wishes to assign to each of the financial institutions
(other than Chase) that is named on Annex A hereto (such financial institutions
other than Chase, collectively the "New Banks"), and each of the New Banks
wishes to assume, a pro rata portion of Chase's interests, rights and
obligations under the Credit Agreement; and
WHEREAS, the Borrower, the Guarantors, Chase, the New Banks and the Agent
have determined that the execution and delivery of this Amendment to effectuate
a reallocation of the Total Commitment among Chase and the New Banks will be
more expeditious and administratively efficient than the execution and delivery
of a separate Assignment and Acceptance between Chase and each of the New Banks;
and
WHEREAS, upon the occurrence of the Effective Date (as hereinafter defined)
of this Amendment, each of the New Banks shall become a party to the Credit
Agreement as a Bank and shall have the rights and obligations of a Bank
thereunder and the respective Commitment of Chase
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and each of the New Banks under the Credit Agreement shall be in the amount set
forth opposite its name on Annex A hereto, as the same may be reduced from time
to time pursuant to Section 2.9 of the Credit Agreement;
NOW, THEREFORE, it is agreed:
1. As used herein all terms that are defined in the Credit Agreement shall
have the same meanings herein.
2. Annex A to the Credit Agreement is hereby replaced in its entirety by
Annex A hereto.
3. The signature pages of the Credit Agreement are hereby amended to
conform to the signature pages hereto.
4. By its execution and delivery hereof, Chase shall be deemed to have made
each of the statements set forth in clauses (i) and (ii) of paragraph 2 of the
Assignment and Acceptance as if such statements were fully set forth herein at
length.
5. By its execution and delivery hereof, each of the New Banks shall be
deemed to have made each of the statements set forth in clauses (i), (ii),
(iii), (iv) and (v) of paragraph 3 of the Assignment and Acceptance as if such
statements were fully set forth herein at length.
6. On the Effective Date, (i) each New Bank will pay to the Agent (for the
account of Chase) such amount as represents such New Bank's pro rata portion of
the aggregate principal amount of the Loans, if any, that are outstanding on the
Effective Date and such New Bank's pro rata portion of the aggregate amount of
the then unreimbursed drafts, if any, that were theretofore drawn under Letters
of Credit, and (ii) the Agent shall pay to each of the New Banks such fees as
have been previously agreed to between the Agent and such New Bank. Promptly
following the occurrence of the Effective Date, the Borrower will execute and
deliver to the Agent in exchange for the Note presently held by Chase a new Note
payable to the order of each of the Banks in a principal amount equal to such
Bank's Commitment reflected on Annex A hereto.
7. By its execution and delivery hereof, each of the New Banks (i) agrees
that any interest, Commitment Fees and Letter of Credit Fees (pursuant to
Sections 2.7, 2.19 and 2.20 of the Credit Agreement) that accrued prior to the
Effective Date shall not be payable to such New Bank and authorizes and directs
the Agent to deduct such amounts from any interest, Commitment Fees or Letter of
Credit Fees paid after the date hereof and to pay such amounts to Chase (it
being understood that interest, Commitment Fees and Letter of Credit Fees
respecting the Commitment of Chase and each New Bank which accrue on or after
the Effective Date shall be payable to such Bank in accordance with its
Commitment), (ii) acknowledges that if such New Bank is organized under the laws
of a jurisdiction outside of the United States, such New Bank has heretofore
furnished
2
to the Agent the forms prescribed by the Internal Revenue Service of the United
States certifying as to such New Bank's exemption from United States withholding
taxes with respect to any payments to be made to such New Bank under the Credit
Agreement (or such other documents as are necessary to indicate that all such
payments are subject to such tax at a rate reduced by an applicable tax treaty)
and (iii) acknowledges that such New Bank has heretofore supplied to the Agent
the information requested on the administrative questionnaire which is attached
to the Assignment and Acceptance as Exhibit A.
8. This Amendment shall not become effective (the "Effective Date") until
(i) the date on which this Amendment shall have been executed by the Borrower,
the Guarantors, Chase, the New Banks and the Agent, and the Agent shall have
received evidence satisfactory to it of such execution and (ii) the payments
provided for in clauses (i) and (ii) of paragraph 6 hereof shall have been made.
9. The Borrower agrees that its obligations set forth in Section 10.5 of
the Credit Agreement shall extend to the preparation, execution and delivery of
this Amendment.
10. This Amendment shall be limited precisely as written and shall not be
deemed (a) to be a consent granted pursuant to, or a waiver or modification of,
any other term or condition of the Credit Agreement or any of the instruments or
agreements referred to therein or (b) to prejudice any right or rights which the
Agent or the Banks may now have or have in the future under or in connection
with the Credit Agreement or any of the instruments or agreements referred to
therein. Whenever the Credit Agreement is referred to in the Credit Agreement or
any of the instruments, agreements or other documents or papers executed or
delivered in connection therewith, such reference shall be deemed to mean the
Credit Agreement as modified by this Amendment.
11. This Amendment may be executed in any number of counterparts and by the
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 instrument.
12. This Amendment shall in all respects be construed in accordance with
and governed by the laws of the State of New York applicable to contracts made
and to be performed wholly within such State.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and the year first above written.
FLAGSTAR CORPORATION
By:
------------------------------------
Title:
3
GUARANTORS:
FLAGSTAR COMPANIES, INC.
By:
------------------------------------
Title:
FLAGSTAR HOLDINGS, INC.
By:
------------------------------------
Title:
TWS FUNDING, INC.
By:
------------------------------------
Title:
XXXXX'X HOLDINGS, INC.
By:
------------------------------------
Title:
SPARTAN HOLDINGS, INC.
By:
------------------------------------
Title:
DENNY'S OF CANADA, LTD.
By:
------------------------------------
Title:
DENNY'S RESTAURANTS OF CANADA, LTD.
By:
------------------------------------
Title:
C-B-R DEVELOPMENT CO., INC.
By:
------------------------------------
Title:
4
DENNY'S, INC.
By:
------------------------------------
Title:
DFO, INC.
By:
------------------------------------
Title:
EL POLLO LOCO, INC.
By:
------------------------------------
Title:
XXXXXX XXXXXX ENTERPRISES #607, INC.
By:
------------------------------------
Title:
XXXXXX XXXXXX ENTERPRISES #611, INC.
By:
------------------------------------
Title:
LA MIRADA ENTERPRISES NO. 5, INC.
By:
------------------------------------
Title:
LA MIRADA ENTERPRISES NO. 6, INC.
By:
------------------------------------
Title:
LA MIRADA ENTERPRISES NO. 7, INC.
By:
------------------------------------
Title:
5
LA MIRADA ENTERPRISES NO. 8, INC.
By:
------------------------------------
Title:
LA MIRADA ENTERPRISES NO. 9, INC.
By:
------------------------------------
Title:
TWS 300 CORP.
By:
------------------------------------
Title:
TWS 500 CORP.
By:
------------------------------------
Title:
TWS 600 CORP.
By:
------------------------------------
Title:
TWS 700 CORP.
By:
------------------------------------
Title:
TWS 800 CORP.
By:
------------------------------------
Title:
QUINCY'S RESTAURANTS, INC.
By:
------------------------------------
Title:
6
FLAGSTAR ENTERPRISES, INC.
By:
------------------------------------
Title:
FLAGSTAR SYSTEMS, INC.
By:
------------------------------------
Title:
SPARTAN REALTY, INC.
By:
------------------------------------
Title:
SPARTAN MANAGEMENT, INC.
By:
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Title:
IM PURCHASING, INC.
By:
------------------------------------
Title:
THE CHASE MANHATTAN BANK,
Individually and as Agent
By:
------------------------------------
Title:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
7
NEW BANKS:
BHF-BANK AKTIENGESELLSCHAFT
By:
------------------------------------
Title:
By:
------------------------------------
Title:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK BRANCH
By:
------------------------------------
Title:
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:
------------------------------------
Title:
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
SANWA BUSINESS CREDIT CORPORATION
By:
------------------------------------
Title:
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
8
KZH HOLDING CORPORATION III
By:
------------------------------------
Title:
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx-00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
KZH-CRESCENT CORPORATION
By:
------------------------------------
Title:
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx-00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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ANNEX A
to
REVOLVING CREDIT AND GUARANTY AGREEMENT
Dated as of July 11, 1997, as amended
-------------------------------------
COMMITMENT COMMITMENT
BANK AMOUNT PERCENTAGE
---- ------ ----------
The Chase Manhattan Bank $ 93,000,000 46.50%
BHF-BANK Aktiengesellschaft 24,000,000 12.00%
The Long-Term Credit Bank of 23,000,000 11.50%
Japan, Limited, New York Branch
Xxx Xxxxxx American Capital
Prime Rate Income Trust 20,000,000 10.00%
Sanwa Business Credit Corporation 20,000,000 10.00%
KZH Holding Corporation III 15,000,000 7.50%
KZH-Crescent Corporation 5,000,000 2.50%
------------ ------
TOTAL: $200,000,000 100.00%
============ ======
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SCHEDULE I
TO
FIRST AMENDMENT
[Copy of Exhibit E to Credit Agreement]
11
