EXHIBIT 4.31
NINTH AMENDMENT, WAIVER AND CONSENT
NINTH AMENDMENT, WAIVER AND CONSENT dated as of August 24, 1995 (this
"AMENDMENT"), among FLAGSTAR CORPORATION, a Delaware corporation formerly known
as TW Services, Inc. ("FLAGSTAR"), TWS FUNDING, INC., a Delaware corporation
("FUNDING"), and each financial institution executing this Amendment as a
"Lender" (each, a "LENDER").
PRELIMINARY STATEMENTS:
1. Flagstar, Funding, the Lenders and the Co-Agents and Managing Agent
referred to therein have entered into an Amended and Restated Credit Agreement
dated as of October 26, 1992 (as amended to date, the "CREDIT AGREEMENT"; the
terms defined therein being used herein as therein defined unless otherwise
defined herein).
2. In accordance with Section 5.02(e)(viii) of the Credit Agreement,
Canteen Holdings, Inc. proposes to sell its direct and indirect Subsidiaries
listed on Schedule A hereto (the "IM PARKS SUBSIDIARIES") pursuant to a Stock
Purchase Agreement dated July 14, 1995, the principal terms of which are
described on the attached Schedule B (the "IM PARKS TRANSACTION").
3. Denny's Holdings, Inc. proposes to sell its direct and indirect
Subsidiaries listed on Schedule C hereto (the "PROFICIENT FOOD SUBSIDIARIES")
pursuant to a Stock Purchase Agreement dated July 7, 1995, the principal terms
of which are described on the attached Schedule D (the "PROFICIENT FOOD
TRANSACTION" and collectively with the IM Parks Transaction, the
"TRANSACTIONS"). In anticipation of the Proficient Food Transaction, the
Borrowers have requested the amendment of Section 5.02(e) of the Credit
Agreement.
4. The Borrowers have requested that the Lenders agree (a) to clarify the
application of proceeds of the Transactions to the Obligations under the Loan
Documents and (b) waive, at the election of the Lenders, the required reduction
of the Working Capital Facility.
5. The Borrowers have requested that the Lenders agree (a) to permit the
Borrowers, following the reduction of the Working Capital Facility pursuant to
Section 2.04(b) of the Credit Agreement to the extent such reduction has not
been waived hereunder by the Lenders, to apply the proceeds of the Proficient
Food Transaction and the IM Parks Transaction to either prepay Funded Debt or to
make additional Cash Capital Expenditures and (b) to adjust the financial
covenants to allow the Borrowers to apply the proceeds of the Proficient Food
Transaction and the IM Parks Transaction to make additional Capital
Expenditures.
6. The Lenders have expressed their willingness to grant the Borrowers'
request as set forth above on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1. CONSENT TO IM PARKS TRANSACTION. (a) The Lenders hereby agree
that the condition set forth in Section 5.02(e)(viii)(i) of the Credit Agreement
shall be satisfied if Flagstar shall have returned to the Issuing Banks for
cancellation all Letters of Credit set forth on Schedule E hereto other than the
Letter of Credit marked with an asterisk on Schedule E (the "NY LETTER OF
CREDIT"), PROVIDED that within 60 days after the consummation of the IM Parks
Transaction, the Borrowers shall have returned to the applicable Issuing Bank
for cancellation the NY Letter of Credit or shall have deposited cash collateral
with such Issuing Bank in an amount equal to the Available Amount of the NY
Letter of Credit.
(b) The Lenders hereby agree that the conditions set forth in Section
5.02(e)(viii)(ii) of the Credit Agreement shall be satisfied if the IM Parks
Transaction is consummated upon substantially the terms described in the
attached Schedule B.
(c) The Lenders hereby agree that the condition set forth in Section
5.02(e)(viii)(iii) of the Credit Agreement shall be satisfied if, as a result of
the closing of the IM Parks Transaction, the Working Capital Facility is reduced
by an amount equal to the Net Proceeds (as defined below) from such Transaction
less the IM Parks Extension Amount (as defined below).
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SECTION 2. CONSENT TO PROFICIENT FOOD TRANSACTION. (a) The Lenders hereby
agree that the condition set forth in Section 5.02(e)(ix)(i) of the Credit
Agreement (as amended hereby) shall be satisfied if Flagstar shall have returned
to the Issuing Banks for cancellation all Letters of Credit set forth on
Schedule F hereto.
(b) The Lenders hereby agree that the conditions set forth in Section
5.02(e)(ix)(ii) of the Credit Agreement (as amended hereby) shall be satisfied
if the Proficient Food Transaction is consummated upon substantially the terms
described in the attached Schedule D.
(c) The Lenders hereby agree that the condition set forth in Section
5.02(e)(ix)(iii) of the Credit Agreement (as amended hereby) shall be satisfied
if, as a result of the closing of the Proficient Food Transaction, the Working
Capital Facility is reduced by an amount equal to the Net Proceeds (as defined
below) from such Transaction less the PFC Extension Amount (as defined below).
SECTION 3. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 5 hereof, hereby amended as follows:
(a) The definition of "Adjusted Cash Capital Expenditures" in Section 1.01
is amended in full as follows:
"ADJUSTED CASH CAPITAL EXPENDITURES" means, for any period, Cash
Capital Expenditures less, for each of the Rolling Periods ending on the
last day of the fiscal quarters set forth below, an amount equal to the sum
of (i) the amount set forth opposite such fiscal quarter:
FISCAL QUARTER ENDED AMOUNT
September 30, 1995 $125,000,000
December 31, 1995 110,000,000
March 31, 1996 65,000,000
PLUS (ii) for each of the Rolling Periods ending September 30, 1995 through
March 31, 1996, an amount equal to the Available Cash Proceeds from any
Permitted Sale Transactions consummated prior to the end of the applicable
Rolling Period less the aggregate amount used by the Borrowers to prepay,
redeem, purchase, defease or otherwise satisfy Funded Debt in reliance on
Section 5.02(n)(i)(G) prior to the end of the applicable Rolling Period
less the aggregate amount of prepayments of Advances required to be made
pursuant to Section 2.05(b)(ii) prior to the end of the applicable Rolling
Period less the aggregate amount of cash paid to the Managing Agent for
deposit in the Funding Cash Collateral Account pursuant to Section
2.05(b)(vi) prior to the end of the applicable Rolling Period.
(b) The following new defined terms are added to Section 1.01 to be
inserted therein in alphabetical order:
"AVAILABLE CASH PROCEEDS" means (i) with respect to the disposition of
IM Parks, Inc. and its Subsidiaries permitted by Section 5.02(e)(viii),
$93,000,000 and (ii) with respect to disposition of the Proficient Food
Companies permitted by Section 5.02(e)(ix), $118,000,000.
"PERMITTED SALE TRANSACTIONS" means (i) the disposition of IM Parks,
Inc. and its Subsidiaries permitted by Section 5.02(e)(viii) and (ii) the
disposition of the Proficient Food Companies permitted by Section
5.02(e)(ix).
"PROFICIENT FOOD COMPANIES" means Proficient Food Company, TWS 200
Corp. and DFC Trucking Co.
(c) Section 5.02(e) is amended by deleting from the end of clause (vii)
thereof the word "and", adding to the end of clause (viii) thereof the word
"and" and adding a new clause (ix) thereto to read as follows:
"(ix) disposition of the Proficient Food Companies on or before December
31, 1995, PROVIDED that (i) on or prior to the date of disposition of the
Proficient Food Companies, Funding shall have returned to the Issuing Banks
for cancellation, or shall have made other arrangements satisfactory to the
requisite Lenders in respect of, the Letters of Credit issued in support of
obligations of any of the Proficient Food Companies, (ii) any such
disposition shall be for an amount not less than fair market value and on
other terms and conditions reasonable and customary in similar
transactions, in each case as determined in the reasonable judgment of the
Required Lenders and (iii) the Net Cash Proceeds of such dispositions are
used to prepay Advances in accordance with Section 2.05;"
(d) Section 5.02(e) is further amended by deleting from the proviso clause
at the end thereof the phrase "clauses (iv), (v) and (viii)" and substituting
therefor the phrase "clauses (iv), (v), (viii) and (ix)".
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(e) Section 5.02(n) is amended by deleting the word "and" at the end of
clause (i)(E) thereof and substituting a comma therefor, adding the word "and"
at the end of clause (i)(F) thereof and adding a new clause (i)(G) to read as
follows:
"(G) prepayments, redemptions, purchases, defeasances or other
satisfactions of Funded Debt, in an aggregate principal amount not to
exceed the Available Cash Proceeds from any Permitted Sale Transactions
consummated prior to such satisfaction of Funded Debt, PROVIDED that, both
before and after giving effect to any transaction permitted by this clause
(G), no Default shall have occurred and be continuing."
(f) Section 5.04(d) is amended by adding to the end thereof the following:
"PROVIDED, FURTHER, that the amount set opposite the Fiscal Year Ending In
December 1995 shall be (i) increased by an amount equal to the Available
Cash Proceeds from any Permitted Sale Transaction consummated prior to the
end of such Fiscal Year and (ii) reduced by the sum of (A) an amount equal
to the amount used to prepay, redeem, purchase, defease or otherwise
satisfy Funded Debt in reliance on Sections 5.02(n)(i)(G) prior to the end
of such Fiscal Year, (B) the aggregate amount of prepayments of Advances
required to be made pursuant to Section 2.05(b)(ii) prior to the end of
such Fiscal Year and (C) the aggregate amount of cash paid to the Managing
Agent for deposit in the Funding Cash Collateral Account pursuant to
Section 2.05(b)(vi) prior to the end of such Fiscal Year."
SECTION 4. EXTENSION OF WORKING CAPITAL COMMITMENTS. (a) DEFINITIONS. As
used in this Section 4, the following terms are defined as follows:
"EXTENSION AMOUNT" means, with respect to a Permitted Sale
Transaction, either the IM Parks Extension Amount or the PFC Extension
Amount, as the context may require.
"IM PARKS ELECTED COMMITMENT REDUCTION WAIVER" of a Lender means an
amount equal to (i) the amount of such Lender's Required Commitment
Reduction in respect of the IM Parks Transaction MULTIPLIED by (ii) such
Lender's Waiver Percentage.
"IM PARKS EXTENSION AMOUNT" means the aggregate amount of the IM Parks
Elected Commitment Reduction Waivers.
"NET PROCEEDS" means with respect to (i) the Proficient Food
Transaction, $90,000,000 and (ii) the IM Parks Transaction, $79,000,000.
"PFC ELECTED COMMITMENT REDUCTION WAIVER" of a Lender means an amount
equal to (i) the amount of such Lender's Required Commitment Reduction in
respect of the Proficient Food Transaction MULTIPLIED by (ii) such Lender's
Waiver Percentage.
"PFC EXTENSION AMOUNT" means the aggregate amount of the PFC Elected
Commitment Reduction Waivers.
"REQUIRED COMMITMENT REDUCTION" of a Lender means with respect to a
Permitted Sale Transaction the amount of the Net Proceeds from such
Permitted Sale Transaction that would be applied to reduce such Lender's
Commitment, determined by pro rating such Net Proceeds by reference to such
Lender's Working Capital Commitment as a percentage of the Working Capital
Facility on the date hereof.
"WAIVER PERCENTAGE" of a Lender means the percentage of such Lender's
aggregate Required Commitment Reductions in respect of the Permitted Sale
Transactions that such Lender elects to waive as indicated on such Lender's
signature page hereof.
(b) DETERMINATION OF IM PARKS AND PFC ELECTED COMMITMENT REDUCTION
WAIVERS. (i) On or before August 24, 1995, each Lender that elects a Waiver
Percentage shall deliver to the Managing Agent a copy of its signature page
to this Amendment, duly executed by such Lender and specifying in the space
provided on such page opposite the name of such Lender the Waiver
Percentage.
(ii) Promptly upon receipt of the signature pages as contemplated by
clause (i) above, the Managing Agent shall notify the Borrowers of the PFC
Extension Amount and the IM Parks Extension Amount, and shall promptly
notify each Lender that has a Waiver Percentage of the amounts of its IM
Parks Elected Commitment Reduction Waiver and its PFC Elected Commitment
Reduction Waiver. Promptly after the consummation of each Permitted Sale
Transaction, the Managing Agent shall notify each such Lender of its
Working Capital Commitment after giving effect to this Amendment, and shall
notify the Lenders and the Borrowers of the amount of the Working Capital
Facility after giving effect to this Amendment.
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(c) EXTENSION OF WORKING CAPITAL COMMITMENTS. (i) Subject to the
satisfaction of the conditions precedent set forth in Section 5(b) hereof, each
Lender that has a Waiver Percentage hereby waives Section 2.04(b) of the Credit
Agreement to the extent of the amount of such Lender's PFC Elected Commitment
Reduction Waiver, whereupon (A) that portion of the Working Capital Facility
equal to the PFC Extension Amount that would otherwise be reduced by application
of the Net Cash Proceeds of the Proficient Food Transaction shall instead remain
outstanding and (B) the amount of the Working Capital Facility shall be reduced
by the amount of the difference, if any, between the Net Proceeds from the
Proficient Food Transaction and the PFC Extension Amount.
(ii) Subject to the satisfaction of the conditions precedent set forth in
Section 5(c) hereof, each Lender that has a Waiver Percentage hereby waives
Section 2.04(b) of the Credit Agreement to the extent of the amount of such
Lender's IM Parks Elected Commitment Reduction Waiver, whereupon (A) that
portion of the Working Capital Facility equal to the IM Parks Extension Amount
that would otherwise be reduced by application of the Net Cash Proceeds of the
IM Parks Transaction shall instead remain outstanding, and (B) the amount of the
Working Capital Facility shall be reduced by the amount of the difference, if
any, between the Net Proceeds from the IM Parks Transaction and the IM Parks
Extension Amount.
SECTION 5. CONDITIONS OF EFFECTIVENESS. (a) This Amendment shall become
effective when, and only when (i) the Managing Agent shall have received
counterparts of this Amendment executed by Flagstar, Funding and the Required
Lenders or, as to any of the Lenders, advice satisfactory to the Managing Agent
that such Lenders have executed this Amendment, (ii) the Managing Agent shall
have received the Consent attached hereto, signed by each Subsidiary of Flagstar
and (iii) the Managing Agent shall have received a certificate, dated the date
of receipt thereof by the Managing Agent, in form and substance satisfactory to
the Managing Agent, signed by a duly authorized officer of each Loan Party,
stating that:
(A) The representations and warranties contained in each Loan Document and
in Section 6 hereof are correct on and as of the date of such certificate as
though made on and as of such date, and
(B) No event has occurred and is continuing that constitutes a Default.
(b) Section 4(c)(i) shall become effective on and as of the date on or
prior to December 31, 1995 when, in addition to the conditions set forth in
clause (a) above, (i) the Proficient Food Transaction shall have been
consummated and (ii) Flagstar shall have paid to the Managing Agent, in
accordance with Section 2.10 of the Credit Agreement and for the account of each
Lender who elected a Waiver Percentage, an extension fee equal to 0.125% of such
Lender's PFC Elected Commitment Reduction Waiver.
(c) Section 4(c)(ii) shall become effective on and as of the date on or
prior to December 31, 1995 when, in addition to the conditions set forth in
clause (a) above, (i) the IM Parks Transaction shall have been consummated and
(ii) Flagstar shall have paid to the Managing Agent, in accordance with Section
2.10 of the Credit Agreement and for the account of each Lender who elected a
Waiver Percentage, an extension fee equal to 0.125% of such Lender's IM Parks
Elected Commitment Reduction Waiver.
SECTION 6. REPRESENTATIONS AND WARRANTIES. Flagstar represents and warrants
as follows:
(a) The execution, delivery and performance by each Loan Party of this
Amendment and the Credit Agreement, as amended hereby, and the consummation
of the transactions contemplated hereby and thereby are within such Loan
Party's corporate powers, have been duly authorized by all necessary
corporate action and do not (i) contravene such Loan Party's charter or
by-laws, (ii) violate any law (including, without limitation, the
Securities Exchange Act of 1934, as amended), rule, regulation (including,
without limitation, Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time), order, writ, judgment,
injunction, decree, determination or award applicable to any Loan Party,
(iii) conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument binding on or affecting any Loan Party, any of
its Subsidiaries or any of their properties or (iv) result in or require
the creation or imposition of any Lien (other than Liens created by or
permitted under the Loan Documents) upon or with respect to any of the
properties of any Loan Party or any of its Subsidiaries except, as to (ii)
and (iii) above, as would not, and would not be reasonably likely to, have
a Material Adverse Effect.
(b) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery, recordation,
filing or performance by any Loan Party of this Amendment or the Credit
Agreement, as amended hereby, or for the consummation
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of the transactions contemplated hereby and thereby, except where the
failure to obtain, take, give or make such authorizations, approvals,
actions, notices or filings would not, and would not be reasonably likely
to, have a Material Adverse Effect.
(c) This Amendment and the Consent have been duly executed and
delivered by each Loan Party party thereto. Assuming that (i) this
Amendment is duly executed and delivered by, and is within the power and
authority of, the Required Lenders and (ii) the Credit Agreement has been
duly executed and delivered by, and is within the power and authority of
the Managing Agent, the Co-Agents and the Lenders, this Amendment and the
Credit Agreement, as amended hereby, are the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such Loan
Party in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting creditors' rights generally and subject to
general principles of equity (regardless of whether considered in a
proceeding in equity or at law).
SECTION 7. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) Upon the
effectiveness hereof, on and after the date hereof 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.
(b) Except as specifically amended above, the Credit Agreement is and shall
continue to be in full force and effect and is 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 or Co-Agent or the Agent under any of the Loan Documents,
nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 8. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 9. EXECUTION IN 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 by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment, Waiver and Consent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWERS
FLAGSTAR CORPORATION
By
TITLE: VICE PRESIDENT AND TREASURER
TWS FUNDING, INC.
By
TITLE: TREASURER
LENDERS
Waiver Percentage: % of the [Print or type name of institution]
Aggregate Required Commitment
Reductions
By
TITLE:
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CONSENT
DATED AS OF AUGUST 24, 1995
The undersigned, each a Guarantor under the Amended and Restated Guaranty
dated as of November 16, 1992 (as amended to date, the "GUARANTY") and a Grantor
under the Amended and Restated Security Agreement dated as of November 16, 1992
(as amended to date, the "SECURITY AGREEMENT") in favor of the Managing Agent
for the Lenders parties to the Credit Agreement referred to in the foregoing
Ninth Amendment, Waiver and Consent (the "AMENDMENT") hereby consents to said
Amendment and hereby confirms and agrees that (i) each of the Guaranty and the
Security Agreement is, and shall continue to be, except as otherwise
specifically provided in said Amendment, 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, the Amendment, each reference in each of the
Guaranty and the Security Agreement to the Credit Agreement, "thereunder",
"thereof" or words of like import shall mean and be a reference to the Credit
Agreement as amended by said Ninth Amendment and (ii) the Security Agreement and
all of the Collateral described therein do, and shall continue to, secure the
payment of all of the Obligations (as defined therein).
SUBSIDIARIES
SIGNIFICANT SUBSIDIARIES
CANTEEN HOLDINGS, INC.
DENNY'S HOLDINGS, INC.
SPARTAN HOLDINGS, INC.
By
PRESIDENT OR VICE PRESIDENT OF EACH OF
THE CORPORATIONS LISTED ABOVE
CANTEEN SUBSIDIARY GROUP
CANTEEN MANAGEMENT SERVICES, INC.
IM PARKS, INC.
IM STADIUM, INC.
TW RECREATIONAL SERVICES, INC.
VOLUME SERVICES, INC. (A KANSAS CORPORATION)
VOLUME SERVICES, INC. (A DELAWARE CORPORATION)
By
VICE PRESIDENT OR TREASURER OF EACH
OF THE CORPORATIONS LISTED ABOVE
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DENNY'S SUBSIDIARY GROUP
CB DEVELOPMENT #6, INC.
C-B-R DEVELOPMENT CO., INC.
DANNY'S DO NUTS #10, INC.
DENNY'S, INC.
DENNY'S MANAGEMENT, INC.
DFC TRUCKING CO.
XXXXX PACKING COMPANY, INC.
EL POLLO LOCO, INC.
By
PRESIDENT OR VICE PRESIDENT OF EACH OF
THE CORPORATIONS LISTED ABOVE
DENNY'S RESTAURANTS OF IDAHO, INC.
By
TITLE: ASSISTANT TREASURER
XXXXXX XXXXXX ENTERPRISES #362, INC.
XXXXXX XXXXXX ENTERPRISES #607, INC.
LA MIRADA ENTERPRISES NO. 1, INC.
LA MIRADA ENTERPRISES NO. 5, INC.
LA MIRADA ENTERPRISES NO. 6, INC.
LA MIRADA ENTERPRISES NO. 7, INC.
LA MIRADA ENTERPRISES NO. 8, INC.
LA MIRADA ENTERPRISES NO. 9, INC.
LA MIRADA ENTERPRISES NO. 14, INC.
PORTIONTROL FOODS, INC.
PROFICIENT FOOD COMPANY
By
PRESIDENT OR VICE PRESIDENT OF EACH OF
THE CORPORATIONS LISTED ABOVE
TWS 200 CORP.
TWS 300 CORP.
TWS 500 CORP.
TWS 600 CORP.
TWS 700 CORP.
TWS 800 CORP.
WDH SERVICES, INC.
By
PRESIDENT OR VICE PRESIDENT OF EACH OF
THE CORPORATIONS LISTED ABOVE
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CB DEVELOPMENT #9, LTD.
DENNY'S OF CANADA LTD.
DENNY'S RESTAURANTS OF CANADA, LTD.
By
TITLE: VICE PRESIDENT
SPARTAN SUBSIDIARY GROUP
QUINCY'S RESTAURANTS, INC.
FLAGSTAR ENTERPRISES, INC.
FLAGSTAR SYSTEMS, INC.
SPARTAN REALTY, INC.
By
TREASURER OF EACH OF THE
CORPORATIONS LISTED ABOVE
SPARTAN MANAGEMENT, INC.
By
TITLE: TREASURER
ADDITIONAL GUARANTOR:
AMS HOLDINGS, INC.
By
TITLE: PRESIDENT OR VICE PRESIDENT
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