Exhibit 10.2
AMENDMENT No. 1 dated as of June 30, 2003 this "Amendment")
to the Credit Agreement dated as of December 16, 2002
(as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among DENNY'S, INC., a California
corporation, ▇▇▇▇▇'▇ REALTY, INC., a Delaware corporation (each
of the foregoing, individually, a "Borrower" and, jointly and
severally, and collectively, the "Borrowers"), ▇▇▇▇▇'▇
CORPORATION, a Delaware corporation ("Parent"), ▇▇▇▇▇'▇ HOLDINGS,
INC., a New York corporation ("Denny's Holdings"), DFO, INC., a
Delaware corporation ("DFO"), the financial institutions party to
the Credit Agreement as Lenders (the "Lenders"), JPMORGAN CHASE
BANK, as Issuing Bank, Administrative Agent and Collateral Agent,
and FOOTHILL CAPITAL CORPORATION, as Syndication Agent.
A. The Borrowers have requested that the Lenders agree to amend
certain provisions of the Credit Agreement as set forth herein.
B. The Lenders are willing so to amend the Credit Agreement pursuant
to the terms and subject to the conditions set forth herein.
C. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned thereto in the Credit Agreement, as amended hereby.
SECTION 1. Amendment to Section 6.01. Section 6.01(j) of the Credit
Agreement is hereby amended by restating clause (E) of such Section in its
entirety as follows:
(E) the proceeds of such Indebtedness are applied contemporaneously with
such incurrence solely (x) to repurchase Old Senior Notes in a principal amount
that is greater than the principal amount of such Indebtedness, (y) to repay
Loans (with or without a concurrent reduction in the Commitments) or (z) for
other general corporate purposes,
SECTION 2. Amendment to Section 6.11. The table set forth in Section
6.11 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
Date Ratio
---- -----
March 31, 2003 6.25 to 1.00
June 30, 2003 6.50 to 1.00
September 30, 2003 7.15 to 1.00
December 31, 2003 7.10 to 1.00
March 31, 2004 7.30 to 1.00
June 30, 2004 6.75 to 1.00
September 30, 2004 6.70 to 1.00
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SECTION 3. Amendment to Section 6.12. The table set forth in Section
6.12 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
Date Ratio
---- -----
March 31, 2003 1.50 to 1.00
June 30, 2003 1.50 to 1.00
September 30, 2003 1.60 to 1.00
December 31, 2003 1.60 to 1.00
March 31, 2004 1.75 to 1.00
June 30, 2004 1.65 to 1.00
September 30, 2004 1.65 to 1.00
SECTION 4. Amendment to Section 6.13. The table set forth in Section
6.13 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
Date Amount
---- ------
March 31, 2003 $105,000,000
June 30, 2003 $ 97,500,000
September 30, 2003 $ 90,000,000
December 31, 2003 $ 90,000,000
March 31, 2004 $ 90,000,000
June 30, 2004 $ 97,500,000
September 30, 2004 $100,000,000
SECTION 5. Amendment to Section 6.14. The table set forth in Section
6.14 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
Date Ratio
---- -----
March 31, 2003 1.25 to 1.00
June 30, 2003 1.20 to 1.00
September 30, 2003 1.15 to 1.00
December 31, 2003 1.15 to 1.00
March 31, 2004 1.15 to 1.00
June 30, 2004 1.20 to 1.00
September 30, 2004 1.20 to 1.00
SECTION 6. Appointment of New Independent Public Accountant. The
Required Lenders consent to the appointment of KPMG LLP as independent public
accountant of Parent and the Subsidiaries.
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SECTION 7. Representations and Warranties. Each of Parent, Denny's
Holdings, the Borrowers and DFO represents and warrants to the Administrative
Agent, the Collateral Agent, the Issuing Bank and each of the Lenders that:
(a) This Amendment has been duly authorized, executed and delivered by it
and constitutes a legal, valid and binding obligation of such party hereto,
enforceable against it 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 and correct
in all material respects 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.
(c) After giving effect to this Amendment, no Event of Default or Default
has occurred and is continuing.
SECTION 8. Amendment Fee. In consideration of the agreements of the
Lenders contained in this Amendment, the Borrowers agree to pay the
Administrative Agent, for the account of the Lenders (the "Approving Lenders")
that deliver executed counterparts of this Amendment prior to 12:00 pm (noon),
New York City time, on July 28, 2003, an aggregate amendment fee (the "Amendment
Fee") equal to .6875% of the amount of the Total Commitments. Each Approving
Lender shall receive a portion of the Amendment Fee equal to the product of
(a) the Amendment Fee multiplied by (b) the quotient obtained by dividing
(i) the Commitments of such Approving Lender by (ii) the Commitments of all
Approving Lenders.
SECTION 9. Conditions to Effectiveness. This Amendment shall become
effective as of June 30, 2003, when (a) the Administrative Agent shall have
received (i) counterparts of this Amendment that, when taken together, bear the
signatures of the Borrowers, Parent, Denny's Holdings, DFO and the Required
Lenders and (ii) the amount of the Amendment Fee, (b) the representations and
warranties set forth in Section 7 hereof are true and correct and (c) all fees
and expenses required to be paid or reimbursed by the Borrowers pursuant hereto,
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 10. 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 11. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
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SECTION 12. 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 13. Expenses. 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 & ▇▇▇▇▇ LLP, counsel for the Administrative Agent.
SECTION 14. 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: Secretary
DFO, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, individually and as
Administrative Agent, Collateral Agent
and Issuing Bank,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT DATED AS OF
July 28, 2003
To Approve the Amendment:
Name of Institution CIT GROUP/BUSINESS CREDIT, INC.
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Name of Institution FARALLON DINING INVESTORS
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Member
Name of Institution FORTRESS CREDIT OPPORTUNITIES I LP
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Operating Officer
Name of Institution TRANSAMERICA BUSINESS CAPITAL CORPORATION
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Name of Institution ▇▇▇▇▇ FARGO FOOTHILL, INC.
(FKA FOOTHILL CAPITAL CORP.)
by /s/ ▇▇▇ ▇▇▇▇▇▇
--------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Name of Institution FOOTHILL GROUP INC.
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
