Exhibit 10.2
EXECUTION COPY
CONSENT, WAIVER and AGREEMENT dated as of
June 27, 2002 (this "Consent"), 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, Amendment No. 3 and
Waiver dated as of July 16, 1998, Amendment
No. 4 dated as of November 12, 1998, Amendment
No. 5 dated as of March 12, 1999, Amendment
No. 6 dated as of December 20, 1999, Amendment
No. 7 as of June 20, 2000, Amendment No. 8 and
Agreement dated as of December 26, 2000,
Amendment No. 9 dated as of October 18, 2001
and Waiver and Agreement dated as of June 17,
2002 (the "Credit Agreement"), among DENNY'S,
INC., a California corporation, EL POLLO LOCO,
INC., a Delaware corporation, FLAGSTAR
ENTERPRISES, INC., an Alabama corporation,
ADVANTICA SYSTEMS, INC. (formerly Flagstar
Systems, Inc.), a Delaware corporation,
QUINCY'S RESTAURANTS, INC., an Alabama
corporation (each of the foregoing, except for
FLAGSTAR ENTERPRISES, INC., QUINCY'S
RESTAURANTS, INC. and EL POLLO LOCO, INC., for
purposes of this Consent 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 JPMORGAN CHASE
BANK (formerly known as 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. Pursuant to a provision contained in certain Letters of
Credit with an aggregate outstanding face amount of $51,595,599 (the "Specified
Letters of Credit"), the expiration date of the Specified Letters of Credit was
automatically extended to a date no later than June 30, 2003.
C. Parent and the Borrowers have notified the Lenders that
Parent would like to merge with A D Merger Co., a newly formed Delaware
corporation ("A D Merger"), with Parent being the surviving corporation, solely
for the purposes of effecting a change of name of Parent (the "Name Change
Merger").
D. Parent and the Borrowers have requested that the Required
Lenders consent under the Loan Documents to, and agree to waive any Default or
Event of Default that might arise solely from, the extension of the expiration
date of the Specified Letters of Credit to a date no later than June 30, 2003.
E. Parent and the Borrowers have requested that the Required
Lenders consent under the Loan Documents to, and agree to waive any Default or
Event of Default that might arise solely from, the consummation of the Name
Change Merger.
F. The Required Lenders are willing to agree to such consent
and waiver, on the terms and subject to the conditions set forth herein.
G. Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Credit Agreement.
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. Consent and Waiver to Specified Letter of Credit
Extension. The Required Lenders hereby consent under the Loan Documents to, and
waive any Default or Event of Default that might arise solely from, the
extension of the expiration date of each of the Specified Letters of Credit to a
date no later than June 30, 2003, and agree that the reference to "but not more
than 91 days after March 31, 2000 or the Maturity Date, as applicable," in the
proviso to Section 2.20(c) of the Credit Agreement shall, solely with respect to
the Specified Letters of Credit, be deemed for all purposes of the Loan
Documents to mean "after June 30, 2003"; provided that nothing contained in this
Consent shall affect the obligation of the applicable Borrower to deposit cash
collateral in respect of the Specified Letters of Credit as contemplated by
Section 2.20(c).
SECTION 2. Consent and Waiver to Name Change Merger. The
Required Lenders hereby consent under the Loan Documents to, and waive any
Default or Event of Default that might solely arise from, the Name Change
Merger; provided in each case that (a) prior to the consummation of the Name
Change Merger, (i) A D Merger has not engaged in any activity and (ii) Parent, A
D Merger and the Borrowers have complied with all requirements of Section 3
hereof that are required to be satisfied prior to the consummation of the Name
Change Merger and (b) the consummation of the Name Change Merger (i) shall have
been duly authorized by all requisite corporate and, if required, stockholder
action, (ii) will not violate (A) any provision of law, statute, rule or
regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of Parent, A D Merger, any Borrower or any
other Subsidiary, (B) any order of any Governmental Authority or (C) any
provision of any indenture, agreement or other instrument to which Parent, any
Borrower or any other Subsidiary is a party or by which any of them or any of
their property is or may be bound and (iii) will not be in conflict with, result
in a breach of or constitute (alone or with notice or lapse of time or both) a
default under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any such indenture,
agreement or other instrument.
SECTION 3. Agreements. Parent and the Borrowers agree that,
(a) prior to the consummation of the Name Change Merger, Parent will, at its own
cost and expense, deliver an instrument in form and substance acceptable to the
Administrative Agent in which Parent confirms that, upon consummation of the
Name Change Merger, it will continue to be treated as Parent, and comply with
all obligations of Parent, under all Loan Documents and (b) prior to and after
the consummation of the Name Change Merger take such action, including but not
limited to executing and delivering such documents and cooperating in such
filings, as may be requested by the Administrative Agent or the Collateral Agent
in order to grant, preserve, protect and perfect the validity and first priority
of the security interests created or intended to be created by the Security
Documents in the assets of Parent following the consummation of the Name Change
Merger, including with respect to the pledge of the Collateral (as defined in
the Pledge Agreement) of Parent following the Name Change Merger.
SECTION 4. Representations and Warranties. Parent and the
Borrowers represent and warrant to the Administrative Agent and to each of the
Lenders that:
(a) This Consent 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) After giving effect to this Consent, 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) After giving effect to this Consent, no Event of Default
or Default has occurred and is continuing.
SECTION 5. Conditions to Effectiveness. This Consent shall
become effective as of the date (the "Effectiveness Date") on which all of the
following conditions are satisfied:
(a) The representations and warranties set forth in Section 2
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.
(b) The Administrative Agent shall have received counterparts
of this Consent that, when taken together, bear the signatures of
Parent, each of the Borrowers and the Required Lenders.
SECTION 6. Credit Agreement. Except as waived or modified
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 waived and otherwise modified hereby.
SECTION 7. Loan Document. This Consent shall be a Loan
Document for all purposes.
SECTION 8. Applicable Law. THIS CONSENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Counterparts. This Consent 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 Consent by telecopy shall be
effective as delivery of a manually executed counterpart of this Consent.
SECTION 10. Expenses. Parent and the Borrowers agree to
reimburse the Administrative Agent for its out-of-pocket expenses in connection
with this Consent, including the reasonable fees, charges and disbursements of
Cravath, Swaine & Moore, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Consent to be duly executed by their respective authorized officers as of the
day and year first written above.
ADVANTICA RESTAURANT GROUP, INC.,
by
/s/ Kenneth E. Jones
------------------------------
Name: Kenneth E. Jones
Title: Vice President and
Treasurer
DENNY'S, INC.,
by
/s/ Kenneth E. Jones
------------------------------
Name: Kenneth E. Jones
Title: Vice President and
Treasurer
ADVANTICA SYSTEMS, INC.,
by
/s/ Kenneth E. Jones
------------------------------
Name: Kenneth E. Jones
Title: Vice President and
Treasurer
JPMORGAN CHASE BANK (formerly known
as The Chase Manhattan Bank),
individually and as Administrative
Agent, Collateral Agent, Swingline
Lender and Issuing Bank,
by
------------------------------
Name:
Title: