EXHIBIT 10.1
AMENDMENT NO. 1 dated as of July 2, 2004
(this "Amendment"), to the CREDIT AGREEMENT dated as
of December 16, 2002, as amended and restated as of
September 26, 2003 (the "Credit Agreement"), among
DENNY'S, INC., ▇▇▇▇▇'▇ REALTY, INC. (each of the
foregoing, individually, a "Borrower" and,
collectively, the "Borrowers"), ▇▇▇▇▇'▇ CORPORATION
("Parent"), ▇▇▇▇▇'▇ HOLDINGS, INC. ("Denny's
Holdings"), DFO, INC. ("DFO"), the LENDERS from time
to time party thereto, JPMORGAN CHASE BANK, as
Administrative Agent (in such capacity, the
"Administrative Agent"), and ▇▇▇▇▇ FARGO FOOTHILL,
INC. (f/k/a FOOTHILL CAPITAL CORPORATION), as
Syndication Agent.
A. Pursuant to the Credit Agreement, 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 therein.
B. The Borrowers have requested that the Lenders agree to
amend certain provisions of the Credit Agreement as set forth herein.
C. The undersigned Lenders are willing so to amend the Credit
Agreement, pursuant to the terms and subject to the conditions set forth herein.
D. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned thereto in the Credit Agreement.
SECTION 1. Amendments to Section 1.01. Section 1.01 of the
Credit Agreement is hereby amended as follows:
(a) by inserting the following definitions in appropriate
alphabetical order:
"Permitted Offerings" shall mean the Permitted Private
Placement and the Permitted Rights Offering.
"Permitted Private Placement" shall mean the private placement
offering and sale of shares of common stock of Parent for consideration
consisting solely of cash, Old Senior Notes or New Senior Notes (or any
combination thereof).
"Permitted Rights Offering" shall mean the distribution to
shareholders of Parent of rights to purchase shares of common stock of
Parent, and the purchase of such shares of common stock of Parent by
shareholders or their transferees upon the exercise of such rights for
consideration consisting solely of cash, Old Senior Notes or New Senior
Notes (or any combination thereof).
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(b) by amending the definition of "Change in Control" to delete
the reference to "25%" in clause (a) thereof and insert the text "50%"
in lieu thereof; and
(c) by amending clause (c) of the definition of "Reduction
Event" to (i) replace the word "and" at the end of subclause (i) thereof
with the text "," and (ii) replace the text "; or" at the end of
subclause (ii) thereof with the following text:
and (iii) any such issuance by Parent of Equity Interests in
Parent pursuant to any Permitted Offering; or
SECTION 2. Amendments to Section 6.04. Clause (h) of Section
6.04 is hereby replaced in its entirety with the following text:
(h) investments by Parent and Denny's Holdings in Old Senior
Notes and New Senior Notes to the extent permitted by Section
6.08(a), provided that any Old Senior Notes and New Senior
Notes repurchased or acquired by Parent or Denny's Holdings
pursuant to Section 6.08(a) shall be permanently retired and
may not be reissued;
SECTION 3. Amendments to Section 6.06. Clause (a) of Section
6.06 of the Credit Agreement is hereby amended by inserting the text ", or
pursuant to the Permitted Rights Offering" immediately before the word "and" at
the end of clause (A) of the second proviso thereof.
SECTION 4. Amendments to Section 6.08. Clause (a) of Section
6.08 is hereby amended by (a) deleting the word "and" at the end of subclause
(ii) thereof, (b) inserting the word "and" at the end of subclause (iii) thereof
and (c) inserting the following subclause after subclause (iii) thereof:
(iv) Parent and Denny's Holdings shall be permitted to pay,
prepay, redeem, repurchase, acquire, or retire for value Old
Senior Notes and New Senior Notes with Net Cash Proceeds
received by Parent in respect of any Permitted Offering (or in
exchange for common stock of Parent or rights to purchase such
common stock issued pursuant to a Permitted Offering);
SECTION 5. Representations and Warranties. Each of Parent,
Denny's Holdings, DFO and the Borrowers represents and warrants to the
Administrative Agent and to each of the Lenders that:
(a) this Amendment has been duly authorized, executed and
delivered by each of Parent, Denny's Holdings, DFO and the Borrowers and
constitutes a legal, valid and binding obligation of each of Parent,
Denny's Holdings, DFO and the Borrowers, enforceable against each of
Parent, Denny's Holdings, DFO and the Borrowers in accordance with its
terms;
(b) after giving effect to this Amendment, the representations
and warranties set forth in Article III of the Credit Agreement are true
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and correct on and as of the date hereof with the same effect as if made
on and as of the date hereof, except to the extent such representations
and warranties expressly relate to an earlier date, including those with
a corresponding schedule, in which case the representations and
warranties that expressly relate to an earlier date shall have been true
and correct as of such earlier date; and
(c) after giving effect to this Amendment, the Borrowers and
each other Loan Party shall be in compliance with all the terms and
provisions set forth in the Credit Agreement and in each other Loan
Document, and no Event of Default or Default shall have occurred and be
continuing.
SECTION 6. Conditions to Effectiveness. This Amendment shall
become effective when (a) the Administrative Agent shall have received
counterparts of this Amendment that, when taken together, bear the signatures of
each of Parent, Denny's Holdings, DFO, the Borrowers and the Required Lenders,
(b) the representations and warranties set forth in Section 5 hereof are true
and correct and the Administrative Agent shall have received an officer's
certificate to such effect and (c) all fees and expenses required to be paid or
reimbursed by the Borrowers and the other Loan Parties pursuant hereto or the
Credit Agreement or otherwise, including all invoiced fees and expenses of
counsel to the Administrative Agent, shall have been paid or reimbursed, as
applicable.
SECTION 7. 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. This Amendment shall be a Loan Document for all
purposes.
SECTION 8. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. 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 signature page to this Amendment by facsimile transmission shall be
effective as delivery of a manually signed counterpart of this Amendment.
SECTION 10. Expenses. The Borrowers agree to reimburse the
Administrative Agent for out-of-pocket expenses in connection with this
Amendment, including the fees, charges and disbursements of Cravath, Swaine &
▇▇▇▇▇ LLP, counsel for the Administrative Agent.
SECTION 11. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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.
DENNY'S, INC.,
By
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
\ ▇▇▇▇▇'▇ REALTY, INC.,
By
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇▇'▇ CORPORATION,
By
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇▇'▇ HOLDINGS, INC.,
By
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
DFO, INC.,
By
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
JPMORGAN CHASE BANK,
By
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1 DATED AS OF
July 2, 2004
To Approve the Amendment:
Name of Institution ▇▇▇▇▇ Fargo Foothill, Inc.
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by /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1 DATED AS OF
July 2, 2004
To Approve the Amendment:
Name of Institution The Foothill Group, Inc.
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by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1 DATED AS OF
July 2, 2004
To Approve the Amendment:
Name of Institution The CIT Group/Business Credit, Inc.
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by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1 DATED AS OF
July 2, 2004
T To Approve the Amendment:
Name of Institution Transamerica Business Capital Corporation
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by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
Title: Duly Authorized Signatory