EXHIBIT 4.30
EXECUTION COPY
EIGHTH AMENDMENT AND CONSENT
EIGHTH AMENDMENT AND CONSENT dated as of January 6, 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. ("CANTEEN") proposes to sell IM Parks, Inc. and its
Subsidiary pursuant to a Stock Purchase Agreement dated November 2, 1994 (the
"PURCHASE AGREEMENT"), the principal terms of which are described on the
attached Schedule A (the "SALE TRANSACTION").
3. 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 apply the proceeds of the Sale
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 Sale Transaction to make additional Capital
Expenditures.
4. The Borrowers have requested that certain Subsidiaries of Flagstar be
released from their obligations under the Guaranty.
5. 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 CONCERNING THE SALE 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 B hereto
other than the Letter of Credit marked with an asterisk on Schedule B (the "NY
LETTER OF CREDIT"), PROVIDED that within 60 days after the consummation of the
Sale 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 Sale
Transaction is consummated upon substantially the terms described in the
attached Schedule A.
SECTION 2. 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) Section 1.01 is amended as follows:
(i) The definition of "Adjusted Cash Capital Expenditures" 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 opposite such fiscal quarter:
FISCAL QUARTER ENDED AMOUNT
December 31, 1994 $ 75,000,000
March 31, 1995 105,000,000
June 30, 1995 125,000,000
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 March 31, 1995 through
March 31, 1996, an amount equal to $110,000,000 less the aggregate amount
as of the end of such fiscal quarter used by the Borrowers to prepay,
redeem, purchase, defease or otherwise satisfy Funded Debt in reliance on
Section 5.02(n)(i)(G).
(ii) The definition of "Spardee's" is amended in full as follows:
"SPARDEE'S" means Flagstar Enterprises, Inc., an Alabama
corporation and a direct, wholly owned Subsidiary of Spartan.
(b) Section 5.02(e)(viii) is amended by deleting the word "March"
therefrom and substituting therefor the word "December".
(c) 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 $110,000,000, PROVIDED that, both before and after giving effect
to any transaction permitted by this clause (G), no Default shall have
occurred and be continuing.
(d) Section 5.04(d) is amended by (i) deleting the amount set opposite
the Fiscal Year Ending In December 1995 and substituting therefor the
amount set opposite such period as set forth below:
FISCAL YEAR ENDING IN AMOUNT
December 1995 $285,000,000
and (ii) by adding to the end thereof the following:
PROVIDED, FURTHER, that the amount set opposite the Fiscal Year Ending In
December 1995 shall be reduced by an amount equal to the amount used during
such fiscal year to prepay, redeem, purchase, defease or otherwise satisfy
Funded Debt in reliance on Section 5.02(n)(i)(G).
SECTION 3. RELEASE OF CERTAIN GUARANTORS. The Lenders hereby agree that
Denny's Realty, Quincy's Realty and Spardee's Realty are released from their
respective obligations under the Guaranty.
SECTION 4. 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:
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(A) The representations and warranties contained in each Loan Document
and in Section 5 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 2(a)(i), (c) and (d) hereof shall become effective when,
and only when (i) the conditions set forth in Section 4(a) above have been
satisfied or waived and (ii) the Sale Transaction shall have been
consummated on substantially the terms described on the attached Schedule
A.
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, 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 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 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 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 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
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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 Waiver 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
[Print or type name of institution]
By
TITLE:
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CONSENT
DATED AS OF JANUARY 6, 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
Eighth Amendment and Consent, hereby consents to said Eighth Amendment and
Consent 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 Eighth Amendment and Consent, 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 Eighth Amendment and
Consent, 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 Eighth 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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