EXECUTION COPY
FOURTH AMENDMENT
FOURTH AMENDMENT dated as of March 6, 1997 (this "Amendment"),
among TWS FUNDING, INC., a Delaware corporation (the "Borrower"), FLAGSTAR
CORPORATION, a Delaware corporation ("Flagstar"), and each financial institution
executing this Amendment as a "Lender" (each, a "Lender").
PRELIMINARY STATEMENTS:
1. The Borrower, Flagstar and the Lender Parties, the
Co-Administrative Agents and the Funding Agent referred to therein have entered
into a Second Amended and Restated Credit Agreement dated as of April 10, 1996
(as amended to date, the "Credit Agreement"; the terms defined therein being
used herein as therein defined unless otherwise defined herein).
2. The Borrower and Flagstar have requested that the Lenders
agree to amend certain provisions of the Credit Agreement, the Security
Agreement and the Subordination Agreement as herein provided.
3. The Lenders have expressed their willingness to grant the
Borrower's and Flagstar's 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. 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 4 hereof, hereby amended as
follows:
(a) The definition of "Subsidiary Intercompany Debt" in
Section 1.01 of the Credit Agreement is amended by inserting the phrase
"consistent with past practice" immediately after the phrase "in the
ordinary course" in subparagraph (b) of such definition.
(b) Section 5.01(j) is amended by inserting the phrase
"consistent with past practice" immediately after the phrase "in the
exercise of its prudent business judgment" in clause (ii) and in clause
(iii) of such Section.
(c) Section 5.02(b) is amended by deleting the word "and" at
the end of clause (iv) thereof, replacing the period at the end thereof
with the word "; and" and adding to the end thereof a new clause (vi)
to read as follows:
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"(vi) in the case of Flagstar and its Restricted
Subsidiaries, Debt owed to NationsBank, N.A. or any of its
banking Affiliates in respect of any overdrafts and related
liabilities arising from treasury, depository and cash
management services or in connection with any automated
clearing house transfers of funds, provided that the aggregate
principal amount of such Debt shall not exceed $15,000,000 at
any time outstanding."
(d) Section 5.04(a) is amended by deleting therefrom the ratio
set opposite each of the Rolling Periods set forth below and
substituting therefor the ratio set forth below opposite each such
Rolling Period:
Rolling Periods Ending Ratio
March 31, 1997 9.50 : 1.00
June 30, 1997 9.95 : 1.00
(e) Section 5.04(b) is amended by deleting therefrom the ratio
set opposite each of the Rolling Periods set forth below and
substituting therefor the ratio set forth below opposite each such
Rolling Period:
Rolling Periods Ending Ratio
March 31, 1997 4.70 : 1.00
June 30, 1997 5.00 : 1.00
(f) Section 5.04(c) is amended by deleting therefrom the ratio
set opposite each of the Rolling Periods set forth below and
substituting therefor the ratio set forth below opposite each such
Rolling Period:
Rolling Periods Ending Ratio
March 31, 1997 0.95 : 1.00
June 30, 1997 0.92 : 1.00
(g) Section 6.01(f) is amended by inserting immediately before
the first semicolon the following proviso:
", provided, that the failure to pay interest payable on March
17, 1997 under Flagstar's 11.375% Senior Subordinated
Debentures due 2003, the failure to pay interest payable on
March 17, 1997 under Flagstar's 10.75% Senior Notes due 2001,
the failure to pay interest payable on May 1, 1997 under
Flagstar's 11.25% Senior Subordinated Debentures due 2004, the
failure to pay interest payable on May 1, 1997 under
Flagstar's 10% Junior Subordinated Debentures due 2014 and the
failure to pay interest payable on June 1, 1997 under
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Flagstar's 10.875% Senior Notes due 2002 shall not be an Event
of Default unless any such Debt is declared to be due and
payable as a result of the failure to pay any such interest"
SECTION 2. Amendments to the Security Agreement. The Security
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 4 hereof, hereby amended as
follows:
(a) Section 2 is amended by inserting after the Section
reference "5.02(b)(i)(F)" contained therein the Section reference "or
5.02(b)(vi)".
(b) Section 6(b)(ii) is amended by inserting the phrase
"consistent with past practice" immediately after the phrase "in the
exercise of its prudent business judgment".
(c) Section 6(d)(ii) is amended by inserting the phrase
"consistent with past practice" immediately after the phrase "in the
exercise of its prudent business judgment".
(d) Section 6(e) is amended by inserting the phrase
"consistent with past practice" immediately after the phrase "in the
exercise of its prudent business judgment" in clause (i) and in clause
(ii)(y) of such Section.
(e) Section 8(a) is amended by inserting after the Section
reference "5.02(b)(i)(F)" contained therein the Section reference "or
5.02(b)(vi)".
SECTION 3. Amendment to the Subordination Agreement. The
Subordination Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 4 hereof, hereby
amended by deleting from Section 3(c) thereof the reference to "Section 6.01"
and substituting therefor a reference to "Section 6.01(a)".
SECTION 4. Conditions of Effectiveness. This Amendment shall
become effective when, and only when (a) the Funding Agent shall have received
counterparts of this Amendment executed by the Borrower, Flagstar and the
Required Lenders or, as to any of the Lenders, advice satisfactory to the
Funding Agent that such Lenders have executed this Amendment, (b) the Funding
Agent shall have received the Consent attached hereto, signed by each Guarantor
and Grantor (as such term is defined in the Security Agreement), (c) the Funding
Agent shall have received a certificate, dated the date of receipt thereof by
the Funding Agent, in form and substance satisfactory to the Funding Agent,
signed by a duly authorized officer of Flagstar, to the effect that (i) the
representations and warranties set forth in Section 5 hereof are correct on and
as of the date of such certificate as though made
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on and as of such date and (ii) no event has occurred and is continuing that
constitutes a Default and (d) Flagstar shall have paid all accrued and unpaid
fees and out-of-pocket expenses of Shearman & Sterling, counsel to the Agents.
SECTION 5. 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, the Security Agreement and
the Subordination Agreement, each 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 on the part of such Loan Party, 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,
the Credit Agreement, as amended hereby, the Security Agreement, as
amended hereby, or the Subordination Agreement, as amended hereby,
except those authorizations, approvals, actions, notices and filings
which have been duly obtained, take, given, or made and are in full
force and effect.
(c) This Amendment and the Consent have been duly executed and
delivered by each Loan Party party thereto. The Credit Agreement, the
Security Agreement and the Subordination Agreement, each 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).
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SECTION 6. 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, the Security Agreement or the Subordination Agreement to
"this Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement, the Security Agreement or the Subordination Agreement, as the
case may be, and each reference in the other Loan Documents to the Credit
Agreement, the Security Agreement or the Subordination Agreement, "thereunder",
"thereof" or words of like import referring to the Credit Agreement, the
Security Agreement or the Subordination Agreement, as the case may be, shall
mean and be a reference to the Credit Agreement, the Security Agreement or the
Subordination Agreement, respectively, as amended hereby.
(b) Except as specifically provided, each of the Credit
Agreement, the Security Agreement and the Subordination 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-Administrative Agent or the
Funding Agent under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents.
SECTION 7. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 8. 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.
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
TWS FUNDING, INC.
By: Xxxxxx X. Xxxxxxxxx
___________________________
Title: Vice President and Treasurer
FLAGSTAR CORPORATION
By: Xxxxxx X. Xxxxxxxxx
___________________________
Title: Vice President and Treasurer
Lenders
------------------------------
[Print or type name of institution]
By:___________________________
Title:
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
TWS FUNDING, INC.
By:___________________________
Title: Vice President and Treasurer
FLAGSTAR CORPORATION
By:___________________________
Title: Vice President and Treasurer
Lenders
NationsBank, N.A.
------------------------------
[Print or type name of institution]
By:___/s/ Xxxxxxx X. Ke _________________
Title:
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
TWS FUNDING, INC.
By:___________________________
Title: Vice President and Treasurer
FLAGSTAR CORPORATION
By:___________________________
Title: Vice President and Treasurer
Lenders
Citibank, N.A.
------------------------------
[Print or type name of institution]
By:___________________________
Title: Attorney-in-fact
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
TWS FUNDING, INC.
By:___________________________
Title: Vice President and Treasurer
FLAGSTAR CORPORATION
By:___________________________
Title: Vice President and Treasurer
Lenders
Bankers Trust Company
------------------------------
[Print or type name of institution]
By:__/s/ Xxxx Jo Jolly______________________
Title: Assistant Vice President
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
TWS FUNDING, INC.
By:___________________________
Title: Vice President and Treasurer
FLAGSTAR CORPORATION
By:___________________________
Title: Vice President and Treasurer
Lenders
THE BANK OF NOVA SCOTIA
------------------------------
[Print or type name of institution]
By:__/s/ J. Xxxx Edwards_________________
Title: Authorized Signatory
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
TWS FUNDING, INC.
By:___________________________
Title: Vice President and Treasurer
FLAGSTAR CORPORATION
By:___________________________
Title: Vice President and Treasurer
Lenders
The Chase Manhattan Bank
------------------------------
[Print or type name of institution]
By:_/s/ Xxxxxxx Rindfuss_________________
Title: Vice President
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
TWS FUNDING, INC.
By:___________________________
Title: Vice President and Treasurer
FLAGSTAR CORPORATION
By:___________________________
Title: Vice President and Treasurer
Lenders
The Long-Term Credit Bank of Japan,
Limited, New York Branch
------------------------------
[Print or type name of institution]
By:___________________________
Title: Deputy General Manager
CONSENT
Dated as of March 6, 1997
The undersigned, each a Guarantor under the Second Amended and
Restated Guaranty dated as of April 10, 1996 (the "Guaranty") and a Grantor
under the Second Amended and Restated Security Agreement dated as of April 10,
1996 (as amended to date, the "Security Agreement") in favor of the Funding
Agent for the Lender Parties party to the Credit Agreement referred to in the
foregoing Fourth Amendment, hereby consents to said Fourth 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
Fourth 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 Fourth 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
through the date hereof and each reference in the Security Agreement to "this
Agreement", "hereunder", "hereof" or words of like import shall mean and be a
reference to the Security Agreement as amended through the date hereof and (ii)
the Security Agreement and all of the Collateral described therein do, and shall
continue to, secure the payment of all of the Secured Obligations (as defined
therein).
FLAGSTAR CORPORATION
By Xxxxxx X. Xxxxxxxxx
_____________________
Vice President
SIGNIFICANT SUBSIDIARIES
DENNY'S HOLDINGS, INC.
SPARTAN HOLDINGS, INC.
By ______________________________
Attorney-in-fact of each of
the corporations listed above
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DENNY'S SUBSIDIARY GROUP
C-B-R DEVELOPMENT CO., INC.
DENNY'S, INC.
DFO, INC.
EL POLLO LOCO, INC.
By Xxxxxx X. Xxxxxxxxx
______________________________
President or Vice President of each of
the corporations listed above
XXXXXX XXXXXX ENTERPRISES #607, INC.
XXXXXX XXXXXX ENTERPRISES #611, INC.
XXXXXX XXXXXX ENTERPRISES #718, 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.
By Xxxxxx X. Xxxxxxxxx
______________________________
President or Vice President of each of
the corporations listed above
TWS 300 CORP.
TWS 500 CORP.
TWS 600 CORP.
TWS 700 CORP.
TWS 800 CORP.
By Xxxxxx X. Xxxxxxxxx
_______________________________
President or Vice President of each of
the corporations listed above
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DENNY'S OF CANADA LTD.
DENNY'S RESTAURANTS OF CANADA, LTD.
By Xxxxxx X. Xxxxxxxxx
______________________________
President or Vice President
of each of the corporations listed above
SPARTAN SUBSIDIARY GROUP
QUINCY'S RESTAURANTS, INC.
FLAGSTAR ENTERPRISES, INC.
FLAGSTAR SYSTEMS, INC.
SPARTAN REALTY, INC.
By Xxxxxx X. Xxxxxxxxx
______________________________
Treasurer of each of the
corporations listed above
SPARTAN MANAGEMENT, INC.
By Xxxxxx X. Xxxxxxxxx
______________________________
Treasurer
ADDITIONAL GUARANTOR:
CANTEEN HOLDINGS, INC.
By ______________________________
President or Vice-President
of each of the corporations
listed above
