EXHIBIT 10.2
AMENDMENT NO. 2 dated as of July 27, 2004
(this "Amendment"), to the CREDIT AGREEMENT dated as
of December 16, 2002, as amended and restated as of
September 26, 2003 and as amended by Amendment No. 1
thereto dated of July 2, 2004 (the "Credit
Agreement"), among DENNY'S, INC., XXXXX'X REALTY,
INC. (each of the foregoing, individually, a
"Borrower" and, collectively, the "Borrowers"),
XXXXX'X CORPORATION ("Parent"), XXXXX'X 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 XXXXX
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 2.11. Clause (a) of Section
2.11 of the Credit Agreement is hereby amended by (a) replacing the text
"Subject to clause (iii) below," in clause (ii) thereof with the text "Subject
to clauses (iii) and (iv) below," and (b) inserting the following clause after
clause (iii) thereof:
(iv) Notwithstanding the foregoing or any other provision of
this Credit Agreement to the contrary, the Borrowers shall have the
right to prepay Term Borrowings with the Net Cash Proceeds received by
Parent in respect of any Permitted Offering (it being understood that
any such prepayment shall not require a prior or contemporaneous
repayment of Revolving Borrowings or termination or reduction of
Revolving Commitments).
SECTION 2. 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,
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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
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 3. 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, the Required Lenders
and each of the Revolving Lenders, (b) the representations and warranties set
forth in Section 2 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 4. 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 5. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. 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 7. 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 &
Xxxxx LLP, counsel for the Administrative Agent.
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SECTION 8. 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/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
XXXXX'X REALTY, INC.,
By
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
XXXXX'X CORPORATION,
By
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
XXXXX'X HOLDINGS, INC.,
By
/s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
DFO, INC.,
By
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
JPMORGAN CHASE BANK,
By
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 2 DATED AS OF
July 27, 2004
To Approve the Amendment:
Name of Institution Xxxxx Fargo Foothill, Inc.
-------------------------------------------
by /s/ X. Xxxxxxxxxxx
-------------------------------------
Name: X. Xxxxxxxxxxx
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 2 DATED AS OF
July 27, 2004
To Approve the Amendment:
Name of Institution The Foothill Group, Inc.
-------------------------------------------
by /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 2 DATED AS OF
July 27, 2004
To Approve the Amendment:
Name of Institution The CIT Group/Business Credit, Inc.
-------------------------------------------
by /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President / Team Leader
SIGNATURE PAGE TO
AMENDMENT NO. 2 DATED AS OF
July 27, 2004
To Approve the Amendment:
FARALLON DINING INVESTORS III, L.L.C.
BY: FARALLON CAPITAL MANAGEMENT, L.L.C., ITS MANAGER
by /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Member
SIGNATURE PAGE TO
AMENDMENT NO. 2 DATED AS OF
July 27, 2004
To Approve the Amendment:
FARALLON DINING INVESTORS IV, L.L.C.
BY: FARALLON CAPITAL MANAGEMENT, L.L.C., ITS MANAGER
by /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Member
SIGNATURE PAGE TO
AMENDMENT NO. 2 DATED AS OF
July 27, 2004
To Approve the Amendment:
Name of Institution Fortress Credit Opportunities I LP
-------------------------------------------
by /s/ Xxxxxxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Chief Credit Officer
SIGNATURE PAGE TO
AMENDMENT NO. 2 DATED AS OF
July 27, 2004
To Approve the Amendment:
Name of Institution Transamerica Business Capital Corporation
-------------------------------------------
by /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
