AMENDMENT NO. 1 TO THE AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
99.1
EXECUTION
VERSION
AMENDMENT
NO. 1
TO
THE AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT
NO. 1 (this “Amendment”),
dated
as of March 8, 2007 to that Amended and Restated Credit Agreement dated as
of
December 15, 2006 (as amended, supplemented, waived or otherwise modified from
time to time, the “Credit
Agreement”),
by
and among Denny’s, Inc. a California corporation, Xxxxx’x Realty, LLC, a
Delaware limited liability company (each of the foregoing, individually, a
“Borrower”
and,
jointly and severally, and collectively, the “Borrowers”),
Xxxxx’x Corporation, a Delaware corporation (“Parent”),
Denny’s Holdings, Inc., a New York corporation (“Denny’s
Holdings”),
DFO,
LLC, a Delaware limited liability company (“DFO”),
the
Lenders from time to time party thereto and Bank of America, N.A., as
administrative agent (in such capacity, the “Administrative
Agent”)
and as
collateral agent (in such capacity, the “Collateral
Agent”)
for
the Lenders. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
PRELIMINARY
STATEMENTS:
(1) The
Borrowers, Parent, Denny’s Holdings and DFO have requested that the Lenders
amend the Credit Agreement to effect the changes described in this Amendment,
and the Lenders that are parties to this Amendment have agreed, subject always
to the terms and conditions hereinafter set forth, to amend the Credit Agreement
as set forth below in this Amendment. Subject to the terms and conditions
hereof, in the event that all of the Term Lenders and all of the LC Facility
Lenders approve this Amendment, the Credit Agreement shall be amended as set
forth in Section
1
below,
and in the event that less than all of the Term Lenders or less than all of
the
LC Facility Lenders approve this Amendment, the Credit Agreement shall be
amended as set forth in Sections
1
and
2
below.
(2) In
the
event that less than all of the Term Lenders or less than all of the LC Facility
Lenders approve this Amendment, the Borrowers desire to refinance and replace
(a) all of the outstanding Term Loans under the Credit Agreement with a new
class of Term A Loans under the Credit Agreement (collectively, “Term
A Loans”)
in the
aggregate original principal amount of $260,000,000 (with the aggregate
outstanding principal amount of $242,982,702.00 as of the First Amendment
Effective Date) and (b) all of the outstanding Credit-Linked Deposits under
the
Credit Agreement with a new class of Credit-Linked A Deposits under the Credit
Agreement (collectively, “Credit-Linked
A Deposits”)
in the
aggregate original principal amount of $40,000,000, in each case, having
identical terms with, and having the same rights and obligations under the
Credit Agreement and the other Loan Documents, as the Term Loans and
Credit-Linked Deposits, except as such terms, rights and obligations are
otherwise expressly amended by this Amendment.
(3) In
connection with the transactions described in paragraph (2) above, each Term
Lender and each LC Facility Lender that executes and delivers this Amendment
as
a Term Lender and/or LC Facility Lender on or prior to the First Amendment
Effective Date (as herein defined) shall be deemed, on and as of the First
Amendment Effective Date, to have exchanged each of its Term Loans and/or
Credit-Linked Deposits (which Term Loans and/or Credit-Linked Deposits shall
thereafter be deemed terminated and refinanced in full; it being understood
and
agreed, however, that the Term A Loans and Credit-Linked A Deposits are in
substitution for the Term Loans and/or Credit-Linked Deposits, respectively)
for
Term A Loans or Credit-Linked A Deposits, as applicable, in the same aggregate
initial principal amount as the outstanding amount of such Term Lender’s Term
Loans or such LC Facility Lender’s Credit-Linked Deposit, as the case may be,
immediately prior to the First Amendment Effective Date, and each such Term
Lender shall thereafter become a Term A Lender (each, in such capacity, a
“Term
A Lender”)
and
each such LC Facility Lender shall thereafter become a LC Facility A Lender
(each, in such capacity, a “LC
Facility A Lender”),
in
each case, under the Credit Agreement.
(4) In
connection with the transactions described in paragraph (2) above, each Person
that executes and delivers this Amendment as a Term A Lender or a LC Facility
A
Lender on or prior to the First Amendment Effective Date, other than solely
pursuant to an exchange of Term Loans described in Section 2.01A(a) of the
Credit Agreement or an exchange of Credit-Linked Deposits described in
Section
2.01A(b)
of the
Credit Agreement, as amended hereby (each, in such capacity, an “Additional
Term A Lender”
with
respect to the Term A Loan and an “Additional
LC Facility A Lender”
with
respect to the Credit-Linked A Deposits), will make Term A Loans to the
Borrowers and/or deposit Credit-Linked A Deposits with the Administrative Agent,
in each case, on the First Amendment Effective Date (each, an “Additional
Term A Loan”
with
respect to the Term A Loan, and an “Additional
Credit-Linked A Deposit”
with
respect to the Credit-Linked A Deposits) in the aggregate initial principal
amount equal to the amount set forth opposite such Additional Term A Lender’s or
Additional LC Facility A Lender’s name under the caption “Additional
Term A Commitment”
and
“Additional
LC Facility A Commitment” on
Schedule
2.01
to the
Credit Agreement, as amended as of the First Amendment Effective Date. The
entire proceeds of (a) each Additional Term A Loan shall be used by the
Borrowers for the exclusive purpose of refinancing in full the outstanding
principal amount of the Term Loans of the Term Lenders, if any, that do not
execute and deliver this Amendment as Term A Lenders on or prior to the First
Amendment Effective Date and (b) each Additional Credit-Linked A Deposit shall
be deposited with the Administrative Agent on the First Amendment Effective
Date
for the exclusive purpose of replacing in full the outstanding amount of the
Credit-Linked Deposits of the LC Facility Lenders, if any, that do not execute
and deliver this Amendment as LC Facility A Lenders on or prior to the First
Amendment Effective Date; it being understood that (i) Additional Term A Lenders
may be Term Lenders prior to the First Amendment Effective Date and (ii)
Additional LC Facility A Lenders may be LC Facility Lenders prior to the First
Amendment Effective Date.
(5) In
connection with the transactions described in paragraph (2) above, the Term
A
Loans, including the Additional Term A Loans, shall be used by the Borrowers
for
the exclusive purpose of refinancing and replacing all of the Term Loans
outstanding on and as of the First Amendment Effective Date.
(6) In
connection with the transactions described in paragraph (2) above, the
Credit-Linked A Deposits, including the Additional Credit-Linked A Deposits,
shall be deposited with the Administrative Agent for the exclusive purpose
of
refinancing and replacing all of the Credit-Linked Deposits outstanding on
and
as of the First Amendment Effective Date.
(7) In
connection with the transactions described in paragraph (2) above, the Borrowers
shall, on the First Amendment Effective Date, pay to the Administrative Agent,
for the ratable account of each of the Term Lenders and LC Facility Lenders,
all
of the unpaid interest and fees accrued on each of the Term Loans and
Credit-Linked Deposits through the First Amendment Effective Date.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained and other
good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, and subject to the conditions set forth herein, the parties hereto
hereby agree as follows:
SECTION
1. Amendments
to the Credit Agreement. Subject
to the satisfaction of the conditions precedent set forth in
Section
3
below or, in the event that less than all of the Term Lenders or less than
all
of the LC Facility Lenders approve this Amendment, Section
4
below,
the
Credit Agreement is hereby amended as follows:
(a) Certain
Definitions.
Section
1.01 of the Credit Agreement is hereby amended by adding the following new
definitions in the appropriate alphabetical order:
“First
Amendment”
means
that certain Amendment No. 1 to this Agreement, dated as of March 8, 2007,
among
the Borrowers, the Parent, Denny’s Holdings, DFO, the Administrative Agent and
the Lenders party thereto (which Lenders constitute the Required
Lenders).
“First
Amendment Documents”
means,
collectively, the First Amendment and all other instruments, certificates or
other documents executed and/or delivered by the Borrowers, the Parent, Denny’s
Holdings and/or DFO pursuant to or in connection with the First Amendment and
the transactions contemplated thereby.
“First
Amendment Effective Date”
means
March 8, 2007.
(b) Repricing.
(i) Applicable
Rate.
The
definition of “Applicable Rate” set forth in Section 1.01 of the Credit
Agreement is hereby amended by deleting clause (a) thereof in its entirety
and
substituting the following new clause (a) in lieu thereof: “(a) with respect to
any Term Loan, (i) 0.50%
per
annum, in the case of an ABR Loan, or (ii) 2.00%
per
annum, in the case of a Eurodollar Loan and”
(ii) LC
Facility Participation Fee.
Section
2.10(c) of the Credit Agreement is hereby amended by deleting the text “2.25%”
set forth in the fourth line thereof and substituting in lieu thereof the text
“2.00%”.
(iii) Interim
Interest.
Section
2.19(g) of the Credit Agreement is hereby amended by deleting the text “2.25%”
set forth in the seventh line thereof and substituting in lieu thereof the
text
“2.00%”.
(c) Future
Repricing Consideration.
Section
2.10 of the Credit Agreement is hereby amended by (i) redesignating paragraph
(f) thereof as paragraph (g) and (ii) inserting the following new paragraph
(f)
therein immediately prior to such redesignated paragraph (g):
“(f) Notwithstanding
anything to the contrary contained herein (including the provisions of Section
2.09 hereof), any voluntary prepayment of the Term Loan or any voluntary
reduction of the Total Credit-Linked Deposits that results in the prepayment
or
reduction of all, but not less than all, of the outstanding Term Loans or Total
Credit-Linked Deposits, as the case may be, prior to the one year anniversary
of
the First Amendment Effective Date with the proceeds of new term loans or
credit-linked deposits that have an applicable margin or applicable fee rate,
as
the case may be, that is less than the Applicable Rate for the Term Loan or
the
LC Facility Participation Fee, as the case may be, as of the First Amendment
Effective Date, may only be made if each Term Lender and/or LC Facility Lender,
as the case may be, is paid a prepayment premium of 1.00% of the principal
amount of such Term Lender’s Term Loans or such LC Facility Lender’s
Credit-Linked Deposit, as the case may be.”
SECTION
2. Further
Amendments to the Credit Agreement. In
the event that less than all of the Term Lenders or less than all of the LC
Facility Lenders approve this Amendment, subject to the satisfaction of the
conditions precedent set forth in Section
4
below,
the
Credit Agreement is hereby further amended as follows (it being understood
that,
in the event that all of the Term Lenders and all of the LC Facility Lenders
approve this Amendment and upon the satisfaction of the conditions specified
in
Section
3
hereof,
the provisions of this Section
2
shall
not become effective):
(a) Certain
Definitions.
Section
1.01 of the Credit Agreement is hereby further amended by adding the following
new definitions in the appropriate alphabetical order:
“Additional
Credit-Linked A Deposit”
means
any credit-linked deposit deposited or to be deposited with the Administrative
Agent pursuant to Section 2.01A(d) of this Agreement on the First Amendment
Effective Date.
“Additional
LC Facility A Commitment”
means
the commitment of any Person to deposit Additional Credit-Linked A Deposits
with
the Administrative Agent on the First Amendment Effective Date in the aggregate
initial principal amount set forth opposite the name of such Person under the
caption “Additional
LC Facility A Commitment”
on
Schedule
2.01
(as
amended by the First Amendment).
“Additional
LC Facility A Lender”
means
any Person with an Additional LC Facility A Commitment to deposit Additional
Credit-Linked A Deposits with the Administrative Agent on the First Amendment
Effective Date; it being understood that any Additional LC Facility A Lender
may
be a LC Facility Lender prior to the First Amendment Effective
Date.
“Additional
Term A Loan Commitment”
means
the commitment of any Person to make Additional Term A Loans on the First
Amendment Effective Date in the aggregate initial principal amount set forth
opposite the name of such Person under the caption “Additional
Term A Commitment”
on
Schedule
2.01
(as
amended by the First Amendment).
“Additional
Term A Lender”
means
any Person with an Additional Term A Commitment to make Additional Term A Loans
to the Borrowers on the First Amendment Effective Date; it being understood
that
any Additional Term A Lender may be a Term Lender prior to the First Amendment
Effective Date.
“Additional
Term A Loan”
means
any term loan made or to be made to the Borrowers pursuant to Section 2.01A(c)
of this Agreement on the First Amendment Effective Date.
“Credit-Linked
A Deposit” shall
mean, as to each LC Facility A Lender, the cash deposit made by such LC Facility
A Lender pursuant to Sections 2.01, 2.01A and 2.19(d), as such deposit may
be
(1) reduced from time to time pursuant to Section 2.09(e), and (2) reduced
or
increased from time to time pursuant to assignments by or to such LC Facility
A
Lender pursuant to Section 9.04. The amount of each LC Facility A Lender’s
Credit-Linked A Deposit as of the First Amendment Effective Date is equal to
such LC Facility A Lender’s LC Facility A Commitment as set forth on Schedule
2.01 (as amended under the First Amendment). It is understood that the amount
of
a LC Facility A Lender’s Credit-Linked A Deposit will not be decreased by an
application thereof to fund such LC Facility A Lender’s Applicable Percentage of
an unreimbursed LC Facility LC Disbursement. No LC Facility A Lender shall
have
any obligation to deposit amounts in the Credit-Linked Deposit Account in excess
of such LC Facility A Lender’s LC Facility A Commitment.
“LC
Facility A Commitment”
means:
(a) as to each LC Facility Lender that executes and delivers the First Amendment
as a LC Facility Lender on or prior to the First Amendment Effective Date,
the
commitment and obligation of such LC Facility Lender to exchange, on and as
of
the First Amendment Effective Date, all of its Credit-Linked Deposits for
Credit-Linked A Deposits in the same aggregate original principal amount as
the
outstanding amount of such LC Facility Lender’s Credit-Linked Deposits
immediately prior to the First Amendment Effective Date; and (b) as to each
Additional LC Facility A Lender, the commitment and obligation of such LC
Facility A Lender to deposit Additional Credit-Linked A Deposits with the
Administrative Agent pursuant to Section 2.01A(d) in the aggregate initial
principal amount equal to the amount set forth opposite such Additional LC
Facility A Lender’s name under the caption “Additional
LC Facility A Commitment” on Schedule
2.01
(as
amended by the First Amendment).
“LC
Facility A Lender” shall
mean a Lender with a LC Facility A Commitment or any outstanding Credit-Linked
A
Deposits.
“Term
A Lender” shall
mean a Lender with a Term A Loan Commitment or an outstanding Term A
Loan.
“Term
A Loans” shall
mean the term loans made or converted by the Term A Lenders to the Borrowers
pursuant to clauses (a) and (c) of Section 2.01A. Each Term A Loan shall be
a
Eurodollar Loan or an ABR Loan.
“Term
A Loan Commitment”
means:
(a) as to each Term Lender that executes and delivers the First Amendment as
a
Term Lender on or prior to the First Amendment Effective Date, the commitment
and obligation of such Term Lender to exchange, on and as of the First Amendment
Effective Date, all of its Term Loans for Term A Loans in the same aggregate
original principal amount as the outstanding amount of such Term Lender’s Term
Loans immediately prior to the First Amendment Effective Date; and (b) as to
each Additional Term A Lender, the commitment and obligation of such Term A
Lender to make Additional Term A Loans to the Borrowers pursuant to Section
2.01A(c) in the aggregate initial principal amount not to exceed the amount
set
forth opposite such Additional Term A Lender’s name under the caption
“Additional
Term A Commitment” on Schedule
2.01
(as
amended under the First Amendment).
“Total
Credit-Linked A Deposits”
shall
mean, at any time, the sum of all the LC Facility A Lenders’ Credit-Linked A
Deposits, as the same may be reduced from time to time pursuant to Section
2.09(e).
(b) Amendments
to Section 2.01 of the Credit Agreement.
Section
2.01 of the Credit Agreement is hereby amended and restated in its entirety
as
follows:
“SECTION
2.01 Commitments
and Funding of Credit-Linked Deposits. Subject
to the terms and conditions set forth herein, (a) each Term A Lender agrees
to
make a Term A Loan to the Borrowers on the First Amendment Effective Date in
an
aggregate principal amount equal to such Lender’s Term A Loan Commitment in
accordance with Section 2.01A; (b) each LC Facility A Lender agrees to deposit
with the Administrative Agent on the First Amendment Effective Date, in
accordance with Sections 2.01A and 2.19(d), its Credit-Linked A Deposit in
an
aggregate amount equal to such LC Facility A Lender’s LC Facility A Commitment;
and (c) each Revolving Lender agrees to make Revolving Loans to any Borrower
from time to time during the Availability Period in an aggregate principal
amount that will not result in (i) such Lender’s Credit Exposure exceeding such
Lender’s Revolving Commitment or (ii) the Aggregate Credit Exposure exceeding
the Total Revolving Commitment. Within the foregoing limits and subject to
the
terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow Revolving Loans. Amounts prepaid or repaid in respect of Term A Loans
may not be reborrowed. The Borrowers shall have no right, title or interest
in
or to the Credit-Linked A Deposits as more fully provided in Section
2.20.”
(c) Section
2.01A of the Credit Agreement.
The
Credit Agreement is hereby amended by inserting the following new Section 2.01A
to the Credit Agreement immediately following existing Section 2.01 of the
Credit Agreement:
“SECTION
2.01A Term
A Loans and Credit-Linked A Deposits.
(a) Exchange
of Term Loans. Subject
to the terms and conditions hereof, each Term A Lender that has executed and
delivered the First Amendment as a Term Lender on or prior to the First
Amendment Effective Date severally agrees to exchange the outstanding amount
of
all of its Term Loans on and as of the First Amendment Effective Date for a
like
principal amount of Term A Loans on and as of the First Amendment Effective
Date, and, from and after the First Amendment Effective Date, all of such Term
Loans so exchanged shall be deemed to have been refinanced in full, and all
of
such Term A Loans shall be deemed to have been made to the Borrowers pursuant
to
this Agreement.
(b) Exchange
of Credit-Linked Deposits. Subject
to the terms and conditions hereof, each LC Facility A Lender that has executed
and delivered the First Amendment as a LC Facility Lender on or prior to the
First Amendment Effective Date severally agrees to exchange the outstanding
amount of all of its Credit-Linked Deposits on and as of the First Amendment
Effective Date for a like principal amount of Credit-Linked A Deposits on and
as
of the First Amendment Effective Date, and, from and after the First Amendment
Effective Date, all of such Credit-Linked Deposits so exchanged shall be deemed
to have been refinanced in full, and all of such Credit-Linked A Deposits shall
be deemed to have been deposited with the Administrative Agent pursuant to
this
Agreement. The Borrowers hereby direct the Administrative Agent to exchange
the
Credit-Linked Deposit of each LC Facility Lender that has executed and delivered
the First Amendment on or prior to the First Amendment Effective Date for the
Credit-Linked A Deposits of such LC Facility Lender for the purposes of
effectuating the refinancing and exchange thereof described above.
(c) Additional
Term A Loans.
Subject
to the terms and conditions hereof, each Additional Term A Lender severally
agrees to make Additional Term A Loans to the Borrowers on the First Amendment
Effective Date in an aggregate original principal amount equal to its Additional
Term A Commitment in effect on and as of the First Amendment Effective Date.
The
Borrowers shall, on and as of the First Amendment Effective Date, refinance
with
proceeds of the Additional Term A Loans all of the Term Loans of each of the
Term Lenders that do not execute and deliver the First Amendment as Term Lenders
on or prior to the First Amendment Effective Date.
(d) Additional
Credit-Linked A Deposits.
Subject
to the terms and conditions hereof, each Additional LC Facility A Lender
severally agrees to deposit Additional Credit-Linked A Deposits with the
Administrative Agent on the First Amendment Effective Date in an aggregate
original principal amount equal to its Additional LC Facility A Commitment
in
effect on and as of the First Amendment Effective Date. The Administrative
Agent
shall, on and as of the First Amendment Effective Date, deposit all Additional
Credit-Linked A Deposits in the Credit-Linked Deposit Account and return the
Credit-Linked Deposits of each of the LC Facility Lenders that do not execute
and deliver the First Amendment as LC Facility Lenders on or prior to the First
Amendment Effective Date to each such LC Facility Lender. The Borrowers hereby
direct the Administrative Agent to return the Credit-Linked Deposit of each
LC
Facility Lender that has not executed and delivered the First Amendment on
or
prior to the First Amendment Effective Date and to refinance and replace in
full
each such returned Credit-Linked Deposit with an Additional Credit-Linked A
Deposit of an Additional LC Facility A Lender for the purposes of effectuating
the refinancing and exchange thereof described above.
(e) Interest
and Fees.
On the
First Amendment Effective Date, the Borrowers shall pay to the Administrative
Agent, for the ratable account of all of the Term Lenders and LC Facility
Lenders and/or the Administrative Agent, as applicable, all unpaid interest
and
fees accrued on all of the Term Loans and Credit-Linked Deposits through the
First Amendment Effective Date. Any prepayment of the Term Loans shall be
accompanied by amounts due under Section 2.14, if any.
(f) Modification
of References Regarding Term A Loan, Etc..
From
and after the First Amendment Effective Date, the Term A Loans shall have the
same terms, rights and obligations as the Term Loans had immediately prior
to
the First Amendment Effective Date, all as set forth in the Credit Agreement
and
the other Loan Documents, except,
in each
case, as modified by the First Amendment, and all references from and after
the
First Amendment Effective Date to “Term Loans”, “Term Loan Commitment”, and
“Term Lender” in the Credit Agreement (including the reference in the amended
definitions to the Credit Agreement referred to in Section 1(b) of the First
Amendment and the amended Section 2.10(f) to the Credit Agreement referred
to in
Section 1(c) of the First Amendment) and the other Loan Documents shall (except
as the context shall otherwise require) be deemed to be references to “Term A
Loans”, “Term A Loan Commitment”, and “Term A Lender”, respectively. For the
avoidance of doubt, the Term A Loans, including the Additional Term A Loans,
shall constitute Obligations under the Loan Documents, shall be secured by
the
Collateral and shall be guarantied by the Guarantors pursuant to the terms
of
the Loan Documents.
(g) Modification
of References Regarding Credit-Linked A Deposits, Etc.
From
and after the First Amendment Effective Date, the Credit-Linked A Deposits
shall
have the same terms, rights and obligations as the Credit-Linked Deposits had
immediately prior to the First Amendment Effective Date, all as set forth in
the
Credit Agreement and the other Loan Documents, except,
in each
case, as modified by the First Amendment, and all references from and after
the
First Amendment Effective Date to “Credit-Linked Deposits”, “LC Facility
Commitment”, “LC Facility Lender” and “Total Credit-Linked Deposits” in the
Credit Agreement (including references in the amended Section 2.10(f) to the
Credit Agreement referred to in Section 1(c) of the First Amendment) and the
other Loan Documents shall (except as the context shall otherwise require)
be
deemed to be references to “Credit-Linked A Deposits”, “LC Facility A
Commitment”, “LC Facility A Lender” and “Total Credit-Linked A Deposits”,
respectively. For the avoidance of doubt, the Credit-Linked A Deposits,
including the Additional Credit-Linked A Deposits, shall constitute Obligations
under the Loan Documents, shall be secured by the Collateral and shall be
guarantied by the Guarantors pursuant to the terms of the Loan
Documents.”
(d) Amendment
to Section 2.07 of the Credit Agreement.
Section
2.07(a) of the Credit Agreement is hereby amended by deleting clause (i) of
such
Section 2.07(a) and substituting the following new clause (i) in lieu thereof:
“(i) the Term A Loan Commitments shall automatically terminate at 5:00 p.m.,
New
York City time, on the First Amendment Effective Date,”.
(e) Section
5.08A of the Credit Agreement.
The
Credit Agreement is hereby amended by inserting the following new Section 5.08A
to the Credit Agreement immediately following existing Section 5.08 of the
Credit Agreement:
“SECTION
5.08A Use
of Proceeds of Term A Loans and Credit-Linked A Deposits. Use
the
proceeds of the Term A Loans to refinance and replace the Term Loans made on
the
Closing Date under this Agreement. The Credit-Linked A Deposits shall be used
to
refinance and replace the Credit-Linked Deposits deposited on the Closing Date
under this Agreement. The Total Credit-Linked A Deposits are held by the
Administrative Agent to support the issuance of LC Facility Letters of
Credit.”
(f) Amendment
to Schedule 2.01 of the Credit Agreement.
Upon
the First Amendment Effective Date, Schedule
2.01
to the
Credit Agreement shall be amended by the Administrative Agent to reflect (i)
the
Term A Loan Commitments, including the Additional Term A Loan Commitments and
(ii) the LC Facility A Commitments, including the Additional LC Facility A
Commitments, in each case, on and as of the First Amendment Effective
Date.
SECTION
3. Conditions
Precedent to Section
1
Amendments.
The
amendments set forth in Section
1
of this
Amendment (but, for the avoidance of doubt, not
the
amendments set forth in Section
2
of this
Amendment) shall become effective as of the date first above written upon the
satisfaction of each of the following conditions precedent, provided,
however,
that
this Section
3
shall
only be applicable and the conditions precedent set forth herein shall be
conditions to the effectiveness of the amendments set forth in Section
1
of this
Amendment only in the event that all of the Term Lenders and all of the LC
Facility Lenders approve this Amendment:
(a) The
Administrative Agent shall have received counterparts of this Amendment, duly
executed and delivered on behalf of each of the (i) Borrowers, (ii) the Parent,
Denny’s Holdings and DFO, (iii) the Required Lenders, (iv) each of the Term
Lenders and (v) each of the LC Facility Lenders.
(b) The
Administrative Agent and the Lenders shall have received all fees and other
amounts due and payable on or prior to the First Amendment Effective Date,
including, to the extent invoiced, reimbursement or payment of all out of pocket
expenses required to be reimbursed or paid by the Borrowers hereunder or under
any other Loan Document to the Administrative Agent or the applicable Lenders,
as the case may be.
SECTION
4. Conditions
Precedent to Section
1
and
Section
2
Amendments.
The
amendments set forth in both Section
1
and
Section
2
of this
Amendment shall become effective as of the date first above written upon the
satisfaction of each of the following conditions precedent, provided,
however,
that
this Section
4
shall
only be applicable and the conditions precedent set forth herein shall be
conditions to the effectiveness of the amendments set forth in Section
1
of this
Amendment only in the event that less than all of the Term Lenders or less
than
all of the LC Facility Lenders approve this Amendment:
(a) The
Administrative Agent shall have received counterparts of this Amendment, duly
executed and delivered on behalf of each of the (i) Borrowers, (ii) the Parent,
Denny’s Holdings and DFO, (iii) the Required Lenders, (iv) certain of the Term
Lenders constituting less than all of the Term Lenders, (v) in lieu of any
one
or more Term Lenders, one or more Additional Term A Lenders providing Additional
Term A Loan Commitments in an aggregate initial amount sufficient to refinance
the outstanding amount of all of the Term Loans owed to all such non-executing
Term Lenders, (vi) certain LC Facility Lenders constituting less than all of
the
LC Facility Lenders, and (vii) in lieu of any one or more LC Facility Lenders,
one or more Additional LC Facility A Lenders providing Additional LC Facility
A
Commitments in an aggregate initial amount sufficient to replace the outstanding
amount of all of the Credit-Linked Deposits owed to all such non-executing
LC
Facility Lenders.
(b) A
promissory note in the form of Exhibit
D
to the
Credit Agreement executed by the Borrowers in favor of each Term A Lender
requesting such a promissory note.
(c) A
favorable written opinion of (i) Xxxxxx & Bird LLP, counsel for Parent,
Denny’s Holdings and the Borrowers and (ii) Xxxx & Xxxxxxx, California
counsel to Denny’s, Inc., in each case, in form and substance satisfactory to
the Administrative Agent and the Lenders.
(d) a
certificate of the Secretary or Assistant Secretary of each Loan Party
substantially as set forth in Exhibit
H
to the
Credit Agreement (with appropriate adjustments) dated the First Amendment
Effective Date and certifying that (i) there have been no changes with respect
to the certificates (or any of the attachments thereto) of each of the Loan
Parties delivered on the Closing Date, (ii) each of the Loan Parties continues
to be in good standing in its jurisdiction of organization and (iii)
resolutions, a true and complete copy of which are attached to the certificate,
have been duly adopted by the Board of Directors of such Loan Party authorizing
the execution, delivery and performance of the First Amendment Documents to
which such person is a party and such resolutions have not been modified,
rescinded or amended and are in full force and effect.
(e) A
Borrowing Request signed by the applicable Borrowers pursuant to Section 2.03
and in connection with the Term A Loans.
(f) The
Administrative Agent and the Lenders shall have received all fees and other
amounts due and payable on or prior to the First Amendment Effective Date,
including, to the extent invoiced, reimbursement or payment of all out of pocket
expenses required to be reimbursed or paid by the Borrowers hereunder or under
any other Loan Document to the Administrative Agent or the applicable Lenders,
as the case may be.
(g) Following
the satisfaction of the other conditions precedent in this Section 4, the
Credit-Linked A Deposits to be deposited on the First Amendment Effective Date
shall have been deposited with the Administrative Agent.
(h) The
representations and warranties set forth in Article III of the Credit Agreement
shall be true and correct on and as of the First Amendment Effective Date with
the same effect as though made on and as of such date (before and after giving
effect to any Borrowing or issuance of a Letter of Credit and to the application
of the proceeds therefrom), 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.
(i) The
Borrowers and each other Loan Party shall be in compliance with all the terms
and provisions set forth herein, in the Credit Agreement and in each other
Loan
Document on its part to be observed or performed, and on the First Amendment
Effective Date and immediately to this Amendment, no Event of Default or Default
shall have occurred and be continuing.
SECTION
5. Representations
and Warranties.
(a) Representations
and Warranties in Credit Agreement.
The
representations and warranties of the Loan Parties contained in the Credit
Agreement and the other Loan Documents were true and correct in all material
respects when made, and continue to be true and correct in all material respects
on the date hereof.
(b) Authority,
Etc.
The
execution and delivery by each of the Loan Parties of this Amendment and the
performance by each of the Loan Parties of all of its respective agreements
and
obligations of this Amendment and the other First Amendment Documents (as
amended hereby) (i) are within the corporate or company authority of such Loan
Party, (ii) have been duly authorized by all necessary corporate or company
proceedings by such Loan Party, (iii) do not conflict with or result in any
breach or contravention of any provision of law, statute, rule or regulation
to
which such Loan Party is subject or any judgment, order, writ, injunction,
license or permit applicable to such Loan Party, (iv) do not conflict with
any
provision of the charter documents of, or any agreement or other instrument
binding upon, such Loan Party, and (v) do not require the approval or consent
of, or filing with, any Person other than those already obtained.
(c) Enforceability
of Obligations.
This
Amendment and the other First Amendment Documents, the Credit Agreement and
the
other Loan Documents as amended hereby constitute the legal, valid and binding
obligations of each Loan Party, enforceable against such Loan Party in
accordance with their respective terms.
(d) No
Default.
Immediately before and after giving effect to this Amendment, no Default or
Event of Default exists under the Credit Agreement or any other Loan
Document.
SECTION
6. Reference
to and Effect on the Credit Agreement and Other Loan Documents. (a)
Except as expressly set forth herein, this Amendment (i) shall not by
implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights and remedies of the Lenders, the Administrative Agent, the
Borrowers, Parent, Denny’s Holdings or DFO under the Credit Agreement or any
other Loan Document and (ii) shall not alter, modify, amend or in any way affect
any of the terms, conditions, obligations, covenants or agreements contained
in
the Credit Agreement or any other Loan Document, all of which are ratified
and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle either Borrower, Parent, Denny’s Holdings or
DFO to a consent to, or a waiver, amendment, modification or other change of,
any of the terms, conditions, obligations, covenants or agreements contained
in
the Credit Agreement or any other Loan Document in similar or different
circumstances. From and after the date hereof, any reference in the Loan
Documents to the Credit Agreement shall mean the Credit Agreement as modified
hereby. For all purposes, this Amendment and all other First Amendment Documents
shall constitute the “Loan Documents” under the Credit Agreement.
(b) The
Credit Agreement and each of the other Loan Documents, as amended by this
Amendment, are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed by each of the Borrowers, Parent, Denny’s
Holdings and DFO. Without limiting the generality of the foregoing, the Security
Documents and all of the Collateral described therein do and shall continue
to
secure the payment of all Obligations of each of the Loan Parties under the
Loan
Documents, in each case as amended by this Amendment.
SECTION
7. Applicable
Law; Waiver of Jury Trial.
(a)
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF
THE STATE OF NEW YORK.
(b) EACH
PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.10 OF THE CREDIT AGREEMENT
AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.
SECTION
8. Counterparts;
Amendments.
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
a
single contract. Delivery of an executed counterpart of a signature page of
this
Amendment by telecopy or electronically shall be effective as delivery of a
manually executed counterpart of this Amendment.
SECTION
9. Headings,
Etc.
The
Section headings used herein are for convenience of reference only, are not
part
of this Amendment and are not to affect the construction of, or to be taken
into
consideration in interpreting, this Amendment. Whether or not any of the
transactions contemplated by the First Amendment are consummated, the Borrowers
shall pay, promptly after request by the Administrative Agent, all reasonable
out-of-pocket costs, expenses and fees incurred by the Administrative Agent,
the
Collateral Agent and its Affiliates (including the attorney fees and expenses)
in connection with the preparation, negotiation, execution, delivery and
administration of this Amendment and the other First Amendment Documents or
any
amendments, modifications or waivers of any of the provisions hereof or
thereof.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of
the
day and year first above written.
DENNY’S,
INC.
By:
/s/ Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title: Vice
President and Treasurer
XXXXX’X
REALTY, LLC
By: DFO,
LLC
Its: Sole
Member
By: Denny’s
Inc.
Its: Sole
Member
By:
/s/ Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title: Vice
President and Treasurer
XXXXX’X
CORPORATION
By:
/s/ Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title: Vice
President and Treasurer
XXXXX’X
HOLDINGS, INC.
By:
/s/ Xxxxxxxx
Xxxxxxx
Name:
Xxxxxxxx Xxxxxxx
Title:
Vice President
DFO,
LLC
By: Denny’s
Inc.
Its: Sole
Member
By:
/s/ Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title: Vice
President and Treasurer
[Signature
Page to Amendment No. 1 to Denny’s, Inc. Amended and Restated Credit
Agreement]
BANK
OF
AMERICA, N.A.,
as
Administrative Agent and
Collateral
Agent,
By:
/s/ Xxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Vice
President
[Signature
Page to Amendment No. 1 to Denny’s, Inc. Amended and Restated Credit
Agreement]
BANK
OF
AMERICA, N.A.,
as
Revolving Issuing Bank and
LC
Facility Issuing Bank
By:
/s/ Xxxx X.
Xxxxxxx
Name: Xxxx
X.
Xxxxxxx
Title: Vice
President
[Signature
Page to Amendment No. 1 to Denny’s, Inc. Amended and Restated Credit
Agreement]
BANK
OF
AMERICA, N.A.,
as
Lender
By:
/s/ Xxxx X.
Xxxxxxx
Name: Xxxx
X.
Xxxxxxx
Title: Vice
President
[Signature
Page to Amendment No. 1 to Denny’s, Inc. Amended and Restated Credit
Agreement]
