EXECUTION COPY
AMENDMENT NO. 3 and WAIVER, dated as of July 16, 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, and as further amended by
Amendment No. 2 and Waiver dated as of May 21, 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.,
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 and waive compliance
by Parent and the Borrowers with certain other provisions of the Credit
Agreement as provided herein.
C. The Required Lenders are willing to agree to such amendments and
grant such waiver, 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.
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. Waiver. The Lenders hereby waive compliance by Parent and
the Borrowers with the provisions of Section 6.08 of the Credit Agreement to the
extent, but only to the extent, necessary to permit the Borrowers and Parent (a)
to make a Net Proceeds Offer (as defined in the New Senior Notes Indenture) with
respect to an aggregate principal amount of New Senior Notes not to exceed the
lesser of (i) $100,000,000 and (ii) the aggregate amount of the Net Cash
Proceeds of the Enterprises Sale that occurred on April 1, 1998, and of the
Quincy's Sale that occurred on June 10, 1998, that have not previously been
applied to incur Consolidated Capital Expenditures (or investments in lieu
thereof permitted under Section 6.04(k) of the Credit Agreement), pay
Indebtedness, effect the SRT Defeasance or make investments or for any other
purpose (such lesser amount, the "Maximum Purchase Amount") and (b) to
purchase New Senior Notes in an aggregate principal amount not to exceed the
Maximum Purchase Amount pursuant to such Net Proceeds Offer at a purchase price
of 100% of the principal amount thereof plus accrued but unpaid interest
thereon, all in accordance with Section 3.13 of the New Senior Notes Indenture
and otherwise on terms reasonably satisfactory to the Administrative Agent.
SECTION 2. Amendment. Section 1.01 is hereby amended by amending
the definition of the term "Permitted Investments" as follows:
(a) by deleting the phrase in clause (a) thereof "to the extent such
obligations are backed by the full faith and credit of the United States
of America" in the parenthetical and
(b) by inserting the following text after the words "Moody's Investors
Service, Inc." at the end of clause (b) thereof :
"or investments in other corporate debt securities maturing within one
year from the date of the acquisition thereof and having, at such date of
acquisition, a rating of at least 'A' or the equivalent thereof from
Standard & Poor's Rating Service or of at least 'A2' or the equivalent
thereof from Moody's Investors Service, Inc".
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.
SECTION 4. Conditions to Effectiveness. This Amendment shall become
effective as of the date first above written when 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.
SECTION 5. 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. After the date
hereof, any reference to the Credit Agreement shall mean the Credit Agreement as
amended hereby.
SECTION 6. Loan Document. This Amendment shall be a Loan Document
for all purposes.
SECTION 7. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. 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 9. 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 & Moore, 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/ 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
EL POLLO LOCO, INC.,
by /s/ KENNETH E. JONES
-------------------------
Name: Kenneth E. Jones
Title: Vice President
and Treasurer
FLAGSTAR SYSTEMS, INC.,
by /s/ KENNETH E. JONES
-------------------------
Name: Kenneth E. Jones
Title: Vice President
and Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent, Collateral Agent, Swingline
Lender and Issuing Bank,
by
-------------------------
Name:
Title:
FLAGSTAR SYSTEMS, INC.,
by
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent, Collateral Agent, Swingline
Lender and Issuing Bank,
by /s/ WILLIAM P. RINDFUSS
--------------------------
Name: William P. Rindfuss
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 3,
DATED AS OF
July 16, 1998
To approve the Amendment:
Name of Institution AT&T Commercial Finance Corporation
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by /s/ PAUL SEIDENUAL
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Name: Paul Seidenual
Title: AVP
SIGNATURE PAGE TO
AMENDMENT NO. 3,
DATED AS OF
July 16, 1998
To approve the Amendment:
Name of Institution BHF-BANK Aktiengenellschafe
------------------------------------------
by /s/ THOMAS J. SCIPO JOHN SYKES
----------------------------------
Name: Thomas J. Scipo John Sykes
Title: AVP VP
SIGNATURE PAGE TO
AMENDMENT NO. 3,
DATED AS OF
July 16, 1998
To approve the Amendment:
Name of Institution Green Tree Financial Servicing Corp.
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by /s/ CHRISTOPHER A. GOUSKOS
--------------------------------
Name: Christopher A. Gouskos
Title: Senior Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 3,
DATED AS OF
July 16, 1998
To approve the Amendment:
Name of Institution KZH CRESCENT CORPORATION
------------------------------------------
by /s/ DENNIS KILDEA
--------------------------------
Name: Dennis Kildea
Title: Authorized Agent
SIGNATURE PAGE TO
AMENDMENT NO. 3,
DATED AS OF
July 16, 1998
To approve the Amendment:
Name of Institution KZH HOLDING CORPORATION III
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by /s/ DENNIS KILDEA
--------------------------------
Name: Dennis Kildea
Title: Authorized Agent
SIGNATURE PAGE TO
AMENDMENT NO. 3,
DATED AS OF
July 16, 1998
To approve the Amendment:
Name of Institution The Long-Term Credit Bank of Japan, Limited, New York Branch
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by /s/ KOJI SASAYAMA
--------------------------------
Name: Koji Sasayama
Title: Deputy General Manager
SIGNATURE PAGE TO
AMENDMENT NO. 3,
DATED AS OF
July 16, 1998
To approve the Amendment:
Name of Institution PAM CAPITAL FUNDING L.P.
By: Highland Capital Management, L.P.
as Collateral Management
------------------------------------------
by /s/ JAMES DONDERO, CFA, CPA
--------------------------------
Name: James Dondero, CFA, CPA
Title: President
Highland Capital Management L.P.
SIGNATURE PAGE TO
AMENDMENT NO. 3,
DATED AS OF
July 16, 1998
To approve the Amendment:
Name of Institution SANWA BUSINESS CREDIT CORPORATION
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by /s/ MARK FLAMM
--------------------------------
Name: Mark Flamm
Title: Vice President