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CONFORMED COPY
AMENDMENT NO. 4 dated as of November 12, 1998 (this
"Amendment"), to the Credit Agreement dated as of January 7,
1998, as amended by Amendment No. 1 and Waiver dated as of
March 16, 1998, Amendment No. 2 and Waiver dated as of May 21,
1998, and Amendment No. 3 and Waiver dated as of July 16, 1998
(the "Credit Agreement"), among DENNY'S, INC., a California
corporation, EL POLLO LOCO, INC., a Delaware corporation,
FLAGSTAR ENTERPRISES, INC., an Alabama corporation, FLAGSTAR
SYSTEMS, INC., a Delaware corporation, QUINCY'S RESTAURANTS,
INC., an Alabama corporation (each of the foregoing, except
for FLAGSTAR ENTERPRISES, INC. and QUINCY'S RESTAURANTS, INC.,
for purposes of this Amendment and the Credit Agreement,
individually, a "Borrower" and, collectively, the
"Borrowers"), ADVANTICA RESTAURANT GROUP, INC., a Delaware
corporation ("Parent"), the Lenders (as defined in Article I
of the Credit Agreement) and THE CHASE MANHATTAN BANK, a New
York banking corporation, as swingline lender (in such
capacity, the "Swingline Lender"), as issuing bank, as
administrative agent (in such capacity, the "Administrative
Agent") and as collateral agent (in such capacity, the
"Collateral Agent") for the Lenders.
A. The Lenders have extended credit to the Borrowers, and have agreed
to extend credit to the Borrowers, in each case pursuant to the terms and
subject to the conditions set forth in the Credit Agreement.
B. Parent and the Borrowers have requested that the Required Lenders
agree to amend certain provisions of the Credit Agreement.
C. The Required Lenders are willing to agree to such amendments, on the
terms and subject to the conditions set forth herein.
D. Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Credit Agreement after giving effect to this
Amendment.
Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment. (a) Section 1.01 of the Credit Agreement is
hereby amended as follows:
(i) by inserting the following definitions in the appropriate
alphabetical order:
"'FRD Restructuring' shall mean, collectively: (a) the
consummation of the exchange of FRD Senior Notes for New Senior Notes
(Series II) and/or cash pursuant to the FRD Senior Notes Exchange
Offer; (b) the effectiveness of the New Senior Notes (Series II)
Indenture upon consummation of the FRD Senior Notes Exchange Offer; (c)
FRD's receipt in response to the FRD Senior Notes Consent Solicitation
of consents from holders representing at least a majority in aggregate
principal amount of the FRD Senior Notes approving the FRD Senior Notes
Supplemental Indenture; (d) the effectiveness of such FRD Senior Notes
Supplemental Indenture; and (e) the payment in full of all principal,
interest, fees and other amounts due under, the discharge of all
obligations (other than indemnification obligations that would
customarily survive termination) and security interests related to, and
the permanent termination of, the FRI-M Credit Agreement."
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"'FRD Restructuring Offering Memorandum' shall mean the
Offering Memorandum and Solicitation Statement, dated as November 12,
1998, of Parent and FRD with respect to the FRD Senior Notes Exchange
Offer and the FRD Senior Notes Consent Solicitation."
"'FRD Senior Notes' shall mean FRD's 12-1/2% Senior Notes due
2004."
"'FRD Senior Notes Consent Solicitation' shall mean FRD's
solicitation of consents from holders of the FRD Senior Notes to the
amendments to the FRD Senior Notes Indenture set forth in the FRD
Senior Notes Supplemental Indenture and as more particularly described
in the FRD Restructuring Offering Memorandum."
"'FRD Senior Notes Documents' shall mean the FRD Senior Notes,
the FRD Senior Notes Indenture, the FRD Senior Notes Supplemental
Indenture and all material agreements, documents and instruments
related thereto, in each case as amended, supplemented or otherwise
modified from time to time in accordance with the terms hereof and
thereof."
"'FRD Senior Notes Exchange Offer' shall mean the offer by
Parent to holders of FRD Senior Notes to exchange such FRD Senior Notes
for (i) a specified cash payment, (ii) a specified principal amount of
New Senior Notes (Series II) or (iii) a combination of cash and New
Senior Notes (Series II), at each holder's option in such proportion as
the holder shall determine, subject to (A) the condition, among others,
that at least a majority of the aggregate principal amount of FRD
Senior Notes must be tendered and not withdrawn and (B) Advantica's
right to reallocate tenders of FRD Senior Notes for New Senior Notes
(Series II) or cash in order to cause the aggregate principal amount of
FRD Senior Notes tendered for cash to be not less than $60,000,000 and
not more than $80,000,000, all as more particularly described in the
FRD Restructuring Offering Memorandum."
"'FRD Senior Notes Indenture' shall mean the Indenture with
respect to the FRD Senior Notes between FRD and The Bank of New York,
as trustee, as amended, supplemented or otherwise modified from time to
time in accordance with the terms hereof and thereof."
"'FRD Senior Notes Supplemental Indenture' shall mean the
Supplemental Indenture to the FRD Senior Notes Indenture to be entered
into by FRD and The Bank of New York, as trustee, to effect the
amendments to the FRD Senior Notes Indenture contemplated by the FRD
Senior Notes Consent Solicitation, as amended, supplemented or
otherwise modified from time to time in accordance with the terms
hereof and thereof."
"'FRI-M' shall mean FRI-M Corporation, a Delaware corporation
and a direct, wholly owned subsidiary of FRD."
"'FRI-M Credit Agreement' shall mean the Credit Agreement
dated as of May 23, 1996, as heretofore amended, among FRD, FRI-M,
certain financial institutions and Credit Lyonnais New York Branch, as
administrative agent."
"'New Senior Notes (Series I)' shall mean Parent's 11-1/4%
Senior Notes due 2008 issued as part of the Emergence Transactions."
"'New Senior Notes (Series I) Indenture' shall mean the
Indenture with respect to the New Senior Notes (Series I) between
Parent and the New Senior
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Notes Trustee, as amended, supplemented or otherwise modified from time
to time in accordance with the terms hereof and thereof."
"'New Senior Notes (Series II)' shall mean Parent's 11-1/4%
Senior Notes due 2008 to be issued as part of the FRD Senior Notes
Exchange Offer or any senior notes of Parent ("New Senior Exchange
Notes") issued in exchange for New Senior Notes (Series II) and having
terms substantially identical to the terms of the New Senior Notes
(Series II) (with certain additional provisions relating to
restrictions on transfers of New Senior Notes (Series II) issued as
part of the FRD Senior Notes Exchange Offer and certain registration
rights in respect thereof), all as contemplated by the FRD
Restructuring Offering Memorandum."
"'New Senior Notes (Series II) Indenture' shall mean the
Indenture with respect to the New Senior Notes (Series II) (including
any New Senior Exchange Notes) between Parent and the New Senior Notes
Trustee, as amended, supplemented or otherwise modified from time to
time in accordance with the terms hereof and thereof."
"'Remaining H&Q Net Cash Proceeds' shall mean, at any time,
(a) $245,000,000 less (b) the aggregate amount of the Net Cash Proceeds
of the Enterprise Sale and the Quincy's Sale that prior to such time
has been applied to (i) pay Indebtedness (including the repayment of
all amounts due under the FRI- M Credit Agreement in connection with
the FRD Restructuring), (ii) purchase New Senior Notes and/or FRD
Senior Notes (including pursuant to any Net Proceeds Offer (as defined
in the New Senior Notes Indenture) and in connection with the FRD
Restructuring), (iii) incur Capital Expenditures (or investments in
lieu thereof permitted under Section 6.04(k)), (iv) make investments or
(v) for any other purpose other than to effect the SRT Defeasance.";
(ii) by substituting the following new definitions for the existing
definitions of the terms "Excluded Subsidiaries", "New Senior Notes" and "New
Senior Notes Indenture":
"'Excluded Subsidiaries' shall mean FRD and its subsidiaries;
provided that upon and after the consummation of the FRD Restructuring
and the effectiveness of Amendment No. 4 to this Agreement, Parent
shall not have any Excluded Subsidiaries."
"'New Senior Notes' shall mean collectively the New Senior
Notes (Series I) and the New Senior Notes (Series II) (including any
New Senior Exchange Notes)."
"'New Senior Notes Indenture' shall mean collectively the New
Senior Notes (Series I) Indenture and the New Senior Notes (Series II)
Indenture.";
(iii) by substituting the words "U.S. Bank Trust" for the words "First
Trust" in the definition of the term "New Senior Notes Trustee";
(iv) by deleting after the words "the lesser of" in the definition of
the term "Consolidated Total Debt" the remaining text of such definition and
substituting in its place the following:
"(x) the Remaining H&Q Net Cash Proceeds as of such date and (y) the
aggregate amount of all cash and cash equivalents of Parent, the
Borrowers and the Specified Subsidiaries (excluding the Defeasance
Eligible Investments (as defined in the Real Estate Financing
Documents) acquired in connection with the SRT Defeasance) that would
be set forth on a consolidated balance sheet of Parent, the
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Borrowers and the Specified Subsidiaries prepared as of such date in
accordance with GAAP.";
(v) by (A) substituting the words "(or other similar property
or assets of a Real Estate Subsidiary that have been substituted for
such specific property or assets)" for the parenthetical phrase in
clause (f) of the definition of the term "Real Estate Refinancing", (B)
substituting the word "and" for the comma at the end of clause (g) of
such definition and (C) deleting all the text beginning with the word
"and" at the end of clause (h) of such definition up to (but not
including) the period at the end of such definition; and
(vi) by deleting the definition of the term "Significant
Subsidiary Group".
(b) Section 3.08 of the Credit Agreement is hereby amended by
substituting (i) the words "(other than the shares of the capital stock of the
Real Estate Subsidiaries)" for the parenthetical phrase in Section 3.08(a) and
(ii) a new Schedule 3.08(a) attached to this Amendment for the existing Schedule
3.08(a) to the Credit Agreement.
(c) Section 5.11 of the Credit Agreement is hereby amended by deleting
the words "(other than a subsidiary of FRD)".
(d) Section 6.01 of the Credit Agreement is hereby amended as follows:
(i) by substituting a new Schedule 6.01 attached to this
Amendment for the existing Schedule 6.01 to the Credit Agreement;
(ii) by substituting the words ", (iv) the FRD Senior Notes
Documents and (v)" for the words "and (iv)" in Section 6.01(b); and
(iii) by inserting at the end of Section 6.01(b) before the
semicolon the following:
", provided that (i) Indebtedness evidenced by the New Senior
Notes (Series II) and the New Senior Notes (Series II)
Indenture (A) shall be incurred only pursuant to the
consummation of the FRD Senior Notes Exchange Offer or the
exchange offer of unregistered New Senior Notes (Series II)
for New Senior Exchange Notes as contemplated by the FRD
Restructuring Offering Memorandum and (B) shall not exceed an
aggregate principal amount of $101,742,000 and (ii)
Indebtedness evidenced by the FRD Senior Notes Documents shall
not exceed an aggregate principal amount of $78,292,000.".
(e) Section 6.02 of the Credit Agreement is hereby amended as follows:
(i) by deleting (A) after the words "subject to the Lien of a
Loan Document, so long as" in the last proviso to Section 6.02(a), the
word "(i)" and (B) after the words "made is fully and effectively
released from such Lien" in such proviso, the remaining text of such
proviso up to (but not including) the semicolon at the end of such
proviso; and
(ii) by deleting after the words "arising in connection with
intercompany transactions among Borrowers or Subsidiary Guarantors" in
Section 6.02(f) the remaining text of such Section 6.02(f) up to (but
not including) the semicolon.
(f) Section 6.04 of the Credit Agreement is hereby amended (i) by
deleting after the words "in the ordinary course of business" in Section 6.04(c)
the comma and the entire proviso up to (but not including) the semicolon at the
end of Section 6.04(c) and (ii) by substituting the following new Section
6.04(l) for the existing Section 6.04(l):
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"(l) investments by Parent in FRD Senior Notes to the extent
that Parent is permitted to repurchase such FRD Senior Notes pursuant
to Section 6.08(a); and".
(g) Section 6.05 of the Credit Agreement is hereby amended
(i) by deleting after the words "its assets to any Subsidiary Guarantor" in
Section 6.05(d) the comma and the proviso to Section 6.05(d) up to (but not
including) the semicolon; and (ii) by substituting the following new Section
6.05(g) for the existing Section 6.05(g):
"(g) any Subsidiary Guarantor may merge or consolidate with or
transfer all or substantially all of its assets to any other Subsidiary
Guarantor and acquire by merger the assets of any person to the extent
permitted by Section 6.04(k), provided that no such merger,
consolidation, transfer or acquisition involving a Subsidiary Guarantor
results in any loss of ownership by Parent of such Subsidiary
Guarantor;".
(h) Section 6.08 of the Credit Agreement is hereby amended as
follows:
(i) by substituting the following new Section 6.08(a) for the
existing Section 6.08(a):
"(a) Make any voluntary or optional payments, prepayments or
redemptions of principal or premium or voluntarily repurchase, acquire
or retire for value prior to the stated maturity with respect to
Indebtedness (other than Indebtedness arising under the Loan
Documents); provided that:
(i) the Mortgage Notes may be repaid with the proceeds of the
Real Estate Refinancing,
(ii) Parent or the Subsidiaries may make up to an aggregate of
$2,000,000 in prepayments of Indebtedness of Enterprises
retained by Parent or any Subsidiary in connection with the
Enterprises Sale,
(iii) Parent shall be permitted to purchase voluntarily FRD
Senior Notes pursuant to the FRD Senior Notes Exchange Offer
in an aggregate principal amount of not more than
$156,897,000, provided that (A) Parent promptly contributes
such FRD Senior Notes to FRD and FRD promptly cancels such FRD
Senior Notes and (B) any cash purchase price of such FRD
Senior Notes, not to exceed in aggregate $82,400,000, shall be
funded from and shall reduce the Remaining H&Q Net Cash
Proceeds,
(iv) Parent shall be permitted to purchase voluntarily New
Senior Notes and/or FRD Senior Notes from time to time,
provided, that (A) the purchase price of any such New Senior
Note or FRD Senior Note, not to exceed the lesser of such
note's then current Fair Market Value and its unpaid principal
amount, shall be funded from and shall reduce the Remaining
H&Q Net Cash Proceeds, (B) immediately after giving effect to
such a purchase, (x) the Remaining H&Q Net Cash Proceeds shall
not be less than the sum of the aggregate principal amount of
the Loans outstanding at such time plus $40,000,000 and (y) no
Default or Event of Default shall have occurred or be
continuing or would result therefrom and (C) Parent promptly
cancels such New Senior Notes and/or contributes such FRD
Senior Notes to FRD and FRD promptly cancels such FRD Senior
Notes,
(v) Parent shall be permitted to acquire unregistered New
Senior Notes (Series II) pursuant to an exchange offer of such
New Senior Notes for New Senior Exchange Notes as contemplated
by the FRD Restructuring Offering Memorandum, and
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(vi) FRI-M shall be permitted to prepay all Indebtedness and
other amounts due under the FRI-M Credit Agreement pursuant to
the FRD Restructuring, provided that such payments shall be
funded from and shall reduce the Remaining H&Q Net Cash
Proceeds;
provided further that such payments shall be permitted to retire
Indebtedness to the extent required under a "due on sale" clause
applicable to any disposition of assets permitted under Section 6.05.";
and
(ii) by inserting at the end of Section 6.08 the following new section:
"(c) If, as a result of the receipt of any cash proceeds by
Parent or any Subsidiary in connection with an Asset Sale, Parent or
FRD would be required by the terms of the FRD Senior Notes Indenture or
the New Senior Notes Indenture to make an offer to repurchase FRD
Senior Notes or New Senior Notes, respectively, prior to the respective
maturity dates of such Notes, then Parent shall or shall cause one or
more of the Subsidiaries to invest such cash proceeds in assets or
businesses of Parent or the Subsidiaries in a manner that is permitted
by the other provisions of this Agreement and that will eliminate any
requirement under the FRD Senior Notes Indenture or the New Senior
Notes Indenture to offer to repurchase FRD Senior Notes or New Senior
Notes, respectively. Any such investment shall be made prior to the
first day on which FRD or Parent would be required to commence a tender
offer to repurchase with such cash proceeds FRD Senior Notes or New
Senior Notes, respectively, under the FRD Senior Notes Indenture or New
Senior Notes Indenture, respectively.".
(i) Section 6.10 of the Credit Agreement is hereby amended by (i)
deleting after the words "from time to time incur Consolidated Capital
Expenditures (or investments in lieu thereof permitted under Section 6.04(k))"
in the second proviso thereto the remaining text of Section 6.10 and
substituting in its place the following:
"to the extent that such additional Consolidated Capital Expenditures
or investments are funded solely from (and shall reduce) the Remaining
H&Q Net Cash Proceeds at such time (provided that immediately after
giving effect to any such additional Consolidated Capital Expenditure
or investment, the Remaining H&Q Net Cash Proceeds shall not be less
than the aggregate principal amount of the Loans outstanding at such
time)".
(j) Section 6.15 of the Credit Agreement is hereby amended by inserting
at the end of Section 6.15 the following:
"Parent shall not permit FRD to (i) own or acquire any assets (other
than shares of capital stock of FRD's subsidiaries, cash and Permitted
Investments, provided that the amount of such cash, together with the
Fair Market Value of such Permitted Investments, shall not at any time
exceed $500,000 other than on any day on which a payment is due in
respect of the FRD Senior Notes, in which event FRD may during such day
hold additional cash in an amount up to the aggregate amount of such
payment) or (ii) incur any liabilities (other than (A) liabilities
under the Loan Documents or the FRD Senior Notes Documents, (B)
liabilities imposed by law, including tax liabilities, and (C) other
liabilities incidental to its existence and permitted business and
activities).".
(k) Section 6.04 of the Credit Agreement is hereby amended by inserting
at the end of Section 6.04(e) before the semicolon the words ", or to the extent
that Parent transfers all or a portion of such capital stock to a Subsidiary
Guarantor, investments by such Subsidiary Guarantor in such capital stock".
(l) Section 6.06(a) of the Credit Agreement is hereby amended (i) by
substituting a comma for the word "and" immediately following the words "to
Parent, to the Borrowers or to
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the Subsidiary Guarantors" in the proviso to such Section 6.06(a) and (ii) by
inserting at the end of such Section 6.06(a) immediately before the period the
following:
"and (iii) Parent may declare and distribute to its stockholders a
dividend comprised of rights to purchase preferred stock and/or common
stock of Parent, provided that (A) such rights are issued and
distributed to Parent's stockholders pursuant to a stockholders' rights
plan, with substantially the same terms and conditions as described in
the form of Rights Agreement, between Parent and a Rights Agent (to be
determined), furnished to the Administrative Agent by Parent on or
prior to the date hereof, and have only nominal value at the time of
their issuance and distribution and (B) no Default or Event of Default
shall have occurred or be continuing or would result therefrom".
(m) Section 6.07 of the Credit Agreement is hereby amended by inserting
at the end of such Section 6.07 immediately before the period the following:
", provided that Parent may issue and distribute to its stockholders
that are Affiliates rights to purchase preferred stock and/or common
stock of Parent to the extent that such rights are permitted to be
issued and distributed to Parent's stockholders pursuant to Section
6.06(a)(iii)".
SECTION 2. Effectiveness Date. The "Effectiveness Date" shall be
specified by Parent and the Borrowers and shall be a date not later than
December 31, 1998, as of which all the conditions set forth or referred to in
Section 4 hereof shall be satisfied. Parent and the Borrowers shall give the
Administrative Agent not less than five Business Day's written notice proposing
a date as the Effectiveness Date to the Administrative Agent. Sections 1(a)
through 1(j) of this Amendment shall terminate at 5:00 p.m., New York City time,
on December 31, 1998, if the Effectiveness Date shall not have occurred at or
prior to such time.
SECTION 3. Representations and Warranties. Parent and the Borrowers
represent and warrant to the Administrative Agent and to each of the Lenders
that:
(a) This Amendment has been duly authorized, executed and
delivered by Parent and each of the Borrowers and constitutes their
legal, valid and binding obligations, enforceable in accordance with
its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(b) Before and after giving effect to this Amendment, the
representations and warranties set forth in Article III of the Credit
Agreement are true and correct in all material respects with the same
effect as if made on the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) Before and after giving effect to this Amendment, no Event
of Default or Default has occurred and is continuing.
(d) Immediately after the consummation of the FRD
Restructuring on the Effectiveness Date, (a) the fair value of the
assets of each Loan Party, at a fair valuation, will exceed its debts
and liabilities, subordinated, contingent or otherwise; (b) the present
fair saleable value of the property of each Loan Party will be greater
than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise,
as such debts and other liabilities become absolute and matured; (c)
each Loan Party will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which
it is engaged as such business is now conducted and is proposed to be
conducted following the Effectiveness Date.
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SECTION 4. Conditions to Effectiveness. Effectiveness of Sections 1(a)
through 1(j) of this Amendment shall be subject to satisfaction of all of the
following conditions:
(a) On or prior to the Effectiveness Date, the FRD
Restructuring shall have been consummated on terms and conditions
reasonably satisfactory to the Required Lenders (it being understood
that the terms and conditions of the FRD Restructuring that are
described in the FRD Restructuring Offering Memorandum shall, to the
extent specifically described in such FRD Restructuring Offering
Memorandum, be deemed satisfactory to the Required Lenders) and after
giving effect thereto and the other transactions contemplated hereby,
no default or event of default would exist under the FRD Senior Notes
Indenture (as amended by the FRD Senior Notes Supplemental Indenture),
the New Senior Notes Indenture or the Credit Agreement, as amended
hereby.
(b) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Bank, a favorable written opinion
of Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P., counsel for Parent and the
Borrowers, substantially to the effect set forth in Exhibit A hereto,
(A) dated the Effectiveness Date, (B) addressed to the Issuing Bank,
the Administrative Agent, the Collateral Agent and the Lenders and (C)
covering such other matters relating to the Loan Documents and the FRD
Restructuring as the Administrative Agent shall reasonably request, and
Parent and the Borrowers hereby request such counsel to deliver such
opinions.
(c) All legal matters incident to this Amendment and the other
Loan Documents to be entered into in connection herewith shall be
satisfactory to the Lenders, to the Issuing Bank and to Cravath, Swaine
& Xxxxx, counsel for the Administrative Agent.
(d) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation, including all amendments
thereto, of FRD and each of its subsidiaries (each, a "FRD Subsidiary
Guarantor"), certified as of a recent date by the Secretary of State of
the state of its organization, and a certificate as to the good
standing of each FRD Subsidiary Guarantor as of a recent date, from
such Secretary of State; (ii) a certificate of the Secretary or
Assistant Secretary of each FRD Subsidiary Guarantor dated the
Effectiveness Date and certifying (A) that attached thereto is a true
and complete copy of the by-laws of such FRD Subsidiary Guarantor as in
effect on the Effectiveness Date and at all times since a date prior to
the date of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such FRD Subsidiary Guarantor
authorizing the execution, delivery and performance of the Loan
Documents executed or to be executed in connection herewith and to
which such person is a party and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation of such FRD
Subsidiary Guarantor have not been amended since the date of the last
amendment thereto shown on the certificate of good standing furnished
pursuant to clause (i) above, and (D) as to the incumbency and specimen
signature of each officer executing any such Loan Document or any other
document delivered in connection herewith on behalf of such FRD
Subsidiary Guarantor; (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Lenders, the Issuing Bank or Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent, may reasonably
request.
(e) The representations and warranties set forth in Section 3
hereof shall be true and correct with the same effect as if made on the
Effectiveness Date, except to the extent such representations and
warranties expressly relate to an earlier date, and the Administrative
Agent shall have received a certificate, dated the Effectiveness Date
and signed by a Financial Officer of Parent, confirming compliance with
such condition.
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(f) A Pledge Agreement shall have been duly executed by FRD
and the Subsidiaries of FRD listed on Schedule 4(f) hereto and
delivered to the Collateral Agent and shall be in full force and
effect, and all the outstanding capital stock of each FRD Subsidiary
Guarantor shall have been duly and validly pledged thereunder to the
Collateral Agent for the ratable benefit of the Secured Parties and
certificates representing such shares, accompanied by instruments of
transfer and stock powers endorsed in blank, shall be in the actual
possession of the Collateral Agent; provided that to the extent to do
so would cause adverse tax consequences to Parent or FRD, (A) no
Domestic Subsidiary shall be required to pledge more than 65% of the
capital stock of any Foreign Subsidiary and (B) no Foreign Subsidiary
shall be required to pledge the capital stock of any of its
subsidiaries.
(g) A Security Agreement shall have been duly executed by each
FRD Subsidiary Guarantor and shall have been delivered to the
Collateral Agent and shall be in full force and effect on such date and
each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority security interest
in and lien on the Collateral of the FRD Subsidiary Guarantors (subject
to any Lien expressly permitted by Section 6.02 of the Credit
Agreement) described in such agreement shall have been delivered to the
Collateral Agent.
(h) The Collateral Agent shall have received the results of a
search of the Uniform Commercial Code filings (or equivalent filings)
made with respect to the FRD Subsidiary Guarantors in the states (or
other jurisdictions) in which the chief executive office of each such
person is located, any offices of such persons in which records have
been kept relating to Accounts (as defined in the Security Agreement)
of the FRD Subsidiary Guarantors and the other jurisdictions in which
Uniform Commercial Code filings (or equivalent filings) are to be made
pursuant to the preceding paragraph, together with copies of the
financing statements (or similar documents) disclosed by such search,
and accompanied by evidence satisfactory to the Collateral Agent that
the Liens indicated in any such financing statement (or similar
document) would be permitted under Section 6.02 or have been released
(or will be released pursuant to UCC termination statements which have
been received by, and are satisfactory to, the Collateral Agent).
(i) The Collateral Agent shall have received a Perfection
Certificate with respect to the FRD Subsidiary Guarantors dated the
Effectiveness Date and duly executed by a Responsible Officer of
Parent.
(j) A Subsidiary Guarantee Agreement shall have been duly
executed by each FRD Subsidiary Guarantor, shall have been delivered to
the Collateral Agent and shall be in full force and effect.
(k) An Indemnity, Subrogation and Contribution Agreement shall
have been duly executed by each FRD Subsidiary Guarantor, shall have
been delivered to the Collateral Agent and shall be in full force and
effect.
(l) The Administrative Agent shall have received with respect
to each FRD Subsidiary Guarantor a copy of, or a certificate as to
coverage under, the insurance policies required by Section 5.02 of the
Credit Agreement and the applicable provisions of the Security
Documents, each of which shall be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement
and to name the Collateral Agent as additional insured, in form and
substance satisfactory to the Administrative Agent.
(m) The Lenders shall have received a pro forma consolidated
balance sheet of Parent as of the Effectiveness Date, after giving
effect to the consummation of the FRD
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Restructuring and the other transactions contemplated hereby, which
shall not be materially inconsistent with the forecasts previously
provided to the Lenders.
(n) The Board of Directors of Parent shall have designated FRD
and its subsidiaries as "Subsidiaries" for purposes of the New Senior
Notes (Series I) Indenture and the New Senior Notes (Series II)
Indenture in accordance with the terms thereof, and the Administrative
Agent shall have received a copy of the resolutions of the Board of
Directors of Parent authorizing such designation together with a
reasonably detailed calculation of the Fixed Charge Coverage Ratio (as
defined in the New Senior Notes (Series I) Indenture), determined on a
pro forma basis to give effect to the FRD Restructuring.
(o) The terms and conditions of the New Senior Notes (Series
II) to be issued by Parent in connection with the FRD Senior Notes
Exchange Offer (including the terms and conditions thereof relating to
the interest rate, fees, amortization, maturity, prepayment
requirements, mandatory call or redemption features, sinking funds,
security, subordination (if any), covenants, events of default and
remedies) shall be substantially identical to the terms and conditions
of the New Senior Notes (Series I) with only certain additional
provisions relating to restrictions on transfer of New Senior Notes
(Series II) issued as part of the FRD Senior Notes Exchange Offer and
certain registration rights in respect thereof and such other changes
as shall be satisfactory to the Lenders.
(p) The terms and conditions of the FRD Senior Notes
Supplemental Indenture shall be satisfactory to the Lenders (it being
understood that the terms and conditions set forth in the form of FRD
Senior Notes Supplemental Indenture provided to the Administrative
Agent in connection with the FRD Restructuring Offering Memorandum
shall be deemed satisfactory to the Lenders).
(q) On or prior to the Effectiveness Date, (i) the principal,
interest, fees and other amounts due under the FRI-M Credit Agreement
shall have been repaid in full, (ii) all commitments to lend under the
FRI-M Credit Agreement shall have been permanently terminated, (iii)
all obligations under or relating to the FRI-M Credit Agreement (other
than indemnification obligations that would customarily survive
termination) and all security interests related thereto shall have been
discharged and (iv) the Administrative Agent shall have received
satisfactory evidence of such repayment, termination and discharge.
(r) The Lenders shall be satisfied with the capitalization,
structure and equity ownership of Parent and the Subsidiaries after
giving effect to the consummation of the FRD Restructuring (it being
understood that the post-FRD Restructuring capitalization and structure
of Parent and the Subsidiaries that are described in the FRD
Restructuring Offering Memorandum shall, to the extent specifically
described in such FRD Restructuring Offering Memorandum, be deemed
satisfactory to the Lenders).
(s) There shall be no litigation, arbitration or
administrative proceeding or consent decree that would reasonably be
expected to have a material adverse effect on the business, assets,
operations, properties, condition (financial or otherwise), prospects
or material agreements of Parent and the Subsidiaries, taken as a
whole, or on the ability of the parties to consummate the FRD
Restructuring.
(t) The Administrative Agent shall be reasonably satisfied
with the liquidity, and sufficiency of amounts available under the
Credit Agreement to meet the ongoing working capital and other cash
requirements, of Parent and the Subsidiaries following the consummation
of the FRD Restructuring and the other transactions contemplated
hereby.
(u) The consummation of the FRD Restructuring shall not (i)
violate any applicable law, statute, consent decree, rule or regulation
or (ii) conflict with, or result in a
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default or event of default under, or a termination or interruption of,
any material agreement of Parent or any of the Subsidiaries.
(v) The Administrative Agent shall have received counterparts
of this Amendment that, when taken together, bear the signatures of
Parent, each of the Borrowers and the Required Lenders.
Sections 1(k), 1(l) and 1(m) of this Amendment shall be
effective upon satisfaction of the condition set forth in Section 4(v)
notwithstanding any termination of the other provisions of Section 1
pursuant to Section 2.
SECTION 5. Additional Agreements. Parent and the Borrowers agree that
(i) their respective obligations pursuant to this Amendment to deliver to the
Collateral Agent Security Documents with respect to assets of the FRD Subsidiary
Guarantors shall not in any way affect their obligations under Section 5.11 of
the Credit Agreement and (ii) any Security Documents delivered to the Collateral
Agent pursuant to this Amendment shall be deemed for purposes of the Credit
Agreement also to have been delivered by the applicable Loan Party pursuant
Section 5.11 of the Credit Agreement.
SECTION 6. Credit Agreement. Except as specifically amended hereby, the
Credit Agreement shall continue in full force and effect in accordance with the
provisions thereof as in existence on the date hereof. On and after the
Effectiveness Date, any reference to the Credit Agreement shall mean the Credit
Agreement as amended hereby.
SECTION 7. Loan Document. This Amendment shall be a Loan Document for
all purposes.
SECTION 8. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one agreement. Delivery of an executed
counterpart of a signature page of this Amendment by telecopy shall be effective
as delivery of a manually executed counterpart of this Amendment.
SECTION 10. Expenses. Parent and the Borrowers agree to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
ADVANTICA RESTAURANT GROUP, INC.,
by
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
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XXXXX'X, INC.,
by
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
EL POLLO LOCO, INC.,
by
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
FLAGSTAR SYSTEMS, INC.,
by
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, individually and
as Administrative Agent, Collateral Agent,
Swingline Lender and Issuing Bank,
by
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
GREEN TREE FINANCIAL SERVICING
CORPORATION,
by
/s/ C. A. Gouskos
------------------------------------
Name: C. A. Gouskos
Title: Senior Vice President
XXXXXXX NATIONAL LIFE INSURANCE
COMPANY, as Assignee, by PPM Finance, Inc., its
attorney in fact,
by
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Managing Director
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KZH III LLC,
by
/s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Agent
KZH CNC LLC,
by
/s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Agent
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH,
by
/s/ Koji Sasayama
------------------------------------
Name: Koji Sasayama
Title: Deputy General Manager
SANWA BUSINESS CREDIT CORPORATION,
by
/s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
