FIRST LIEN AMENDMENT NO. 1


    Exhibit
      10.1

    EXECUTION
      COPY

     

    

       

      FIRST
        LIEN AMENDMENT NO. 1 (this “Amendment”)
        dated
        as of July 14, 2006, to the Credit Agreement dated as of September 21, 2004
        (as
        amended, supplemented or otherwise modified from time to time, the “First
        Lien Credit Agreement”),
        among
        DENNY’S, INC., a California corporation, DENNY’S REALTY, LLC (f/k/a Denny’s
        Realty, Inc.), a Delaware limited liability company (each of the foregoing,
        individually, a “Borrower”
and,
        jointly and severally, and collectively, the “Borrowers”),
        DENNY’S CORPORATION, a Delaware corporation (“Parent”),
        DENNY’S HOLDINGS, INC., a New York corporation (“Denny’s
        Holdings”),
        DFO,
        LLC (f/k/a DFO, Inc.), a Delaware limited liability company (“DFO”),
        the
        Lenders (as defined in the First Lien Credit Agreement), 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, and UBS SECURITIES LLC, as syndication agent (in such capacity,
        the
“Syndication
        Agent”)
        for
        the Lenders.
        Capitalized terms used herein and not otherwise defined shall have the meanings
        assigned to such terms in the First Lien Credit Agreement, as amended
        hereby.

       

      WHEREAS,
        pursuant to the First Lien Credit Agreement, the Lenders have extended credit
        to
        the Borrowers;

       

      WHEREAS
        the Borrowers, Parent, Denny’s Holdings and DFO have requested that certain
        provisions of the First Lien Credit Agreement be amended as set forth herein;
        and

       

      WHEREAS
        the Required Lenders are willing to amend such provisions of the First Lien
        Credit Agreement on the terms and subject to the conditions set forth
        herein;

       

      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. As used in this Amendment:

       

       “Second
        Lien Amendment No. 1”
means
        the Second Lien  Amendment
        No. 1 dated as of July 14, 2006, among the Borrowers, Parent,
        Denny’s Holdings, DFO,
        the
        Lenders party thereto, the Administrative
        Agent and the other Agents party thereto.

       

      SECTION
        2. Amendments
        to Section 1.01.
        (a)
        Section 1.01 of the First Lien Credit Agreement is hereby amended by adding
        the
        following definitions in the appropriate alphabetical order:

       

      “First
        Lien Amendment No. 1”
means
        the First Lien Amendment No. 1 dated as of July 14, 2006, among the Borrowers,
        Parent, Denny’s Holdings, DFO, the Lenders party thereto, the Administrative
        Agent and the other Agents party thereto.

       

      “Restaurant
        Businesses”
shall
        have the meaning assigned to such term in Section 6.05(e).

       

      “Specified
        Properties”
shall
        mean the properties listed on Schedule 1 to First Lien Amendment No.
        1.

       

      (b)
        The
        definition of the term “Act” in Section 1.01 of the First Lien Credit Agreement
        is hereby amended by replacing the text “9.17” with the text “9.18”

       

      (c)
        The
        definition of the term “Consolidated Total Debt” in Section 1.01 of the First
        Lien Credit Agreement is hereby amended as follows:

       

      (i)
        by
        replacing, in clause (c) of such definition, the text “aggregate
        amount not to exceed $45,000,000” with the text “aggregate amount
        not to exceed $55,000,000”

       

      (ii)
        by
        replacing, in clause (c) of such definition, the text “of
        which up
        to (i)
        $45,000,000” with the text “of which up to (i) $55,000,000”

       

      (d)
        The
        definition of the term “Reduction Event” in Section 1.01 of the First Lien
        Credit Agreement is hereby amended by inserting, immediately after the text
        “Sale” in clause (a) of such definition, the text “, provided
        that,
        other than for purposes of clause (a) of the definition of “Excess Cash Flow”,
        no sale of any of the Specified Properties shall constitute a Reduction
        Event”

       

      SECTION
        3. Amendment
        to Section 2.04.
        Section
        2.04(a)(i) of the First Lien Credit Agreement is hereby amended by replacing
        the
        text “45,000,000” with the text “55,000,000”

       

      SECTION
        4. Amendments
        to Section 6.05.
        Section
        6.05 of the First Lien Credit Agreement is hereby amended as
        follows:

      


      (a)
        by
        deleting clause (e) of such Section in its entirety and replacing
        it with the following text:

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

      “(e)
        Parent, any Borrower or any Subsidiary Loan Party may sell, transfer,
        sell a franchise in or otherwise dispose of restaurants or property
        (including real property, improvements, fixtures and equipment)
        relating to current or former restaurants of such person (such
        restaurants and property are collectively referred to as  “Restaurant
        Businesses”) for consideration determined by the board
        of
        directors of the person that owns such Restaurant Businesses
        to be equal to the Fair Market Value of the Restaurant
        Businesses sold, transferred or otherwise disposed of, provided
        that the
        aggregate Fair Market Value of all assets disposed
        of pursuant to this clause (e) shall not exceed $15,000,000
        in any fiscal year;”

       

      (b)
        by
        deleting the text “and” at the end of clause (i) of such  Section
        and inserting the following new text immediately after the semicolon
        at the end of clause (j) of such Section:

       

      “and

       

      
        	 	 	
                (k)
                  Parent, any Borrower or any Subsidiary Loan Party may sell the
                  Specified
                  Properties; provided
                  that 100% of the Net Cash Proceeds of each sale of any of the Specified
                  Properties shall be used to prepay Term Loans and, if applicable,
                  to
                  prepay Revolving Loans and cash collateralize Letters of Credit
                  as if such
                  sale was a Reduction Event described in clause (a) of the definition
                  of
                  the term “Reduction Event”, except that any such prepayment and, if
                  applicable, cash collateralization shall occur on the fifth
                  Business Day of the month following the month in which such sale
                  occurs;
                  provided
                  further
                  that, notwithstanding anything in this Agreement to the contrary,
                  (i) none
                  of the Net Cash Proceeds of any sale of any of the Specified Properties
                  shall be used to acquire Reinvestment Assets and (ii) Parent shall
                  deliver
                  to the Administrative Agent a certificate of a Financial Officer
                  promptly
                  following receipt of any Net Cash Proceeds (and
                  in any event no later than the fifth Business Day of the month
                  following
                  the month in which such Net Cash Proceeds were received) of
                  a sale of any of the Specified Properties setting forth a reasonably
                  detailed calculation of the amount of such Net Cash
                  Proceeds;”

              


      

       

      (c)
        by
        replacing, in the proviso at the end of such Section, the text “(b)
        or
        (c)” with the text “(b), (c) or (k)”

       

      (d)
        by
        replacing, just before clause (B) of the proviso at the end of such
        Section, the text “ and” with the text “,”

       

      (e)
        by
        replacing the text “.” at the end of the proviso at the end of such
        Section with the text “ and (C) $500,000 for all such sales, transfers,

        exchanges or other dispositions permitted by clause (k) shall
        not be
        permitted unless such disposition is for at least 90% cash consideration.”

       

      SECTION
        5. Amendments
        to Article IX.
        Article
        IX of the First Lien Credit Agreement is hereby amended as follows:

       

      (a)
        by
        deleting the text “and” at the end of clause (b)(ii)(C) of Section
        9.04 and replacing the text “.” at the end of clause (b)(ii)(D)
        of Section
        9.04 with the following new text:

       

      “;

       

      (E)
        the
        consent of the Issuing Bank (such consent not to be unreasonably
        withheld or delayed) shall be required for any assignment
        that increases the obligation of the assignee to participate
        in exposure under one or more Letters of Credit (whether
        or not then outstanding);

       

      (F)
        no
        assignment shall be made to either Borrower or any of either
        Borrower’s Affiliates or subsidiaries; and

       

      (G)
        no
        assignment shall be made to a natural person.”

       

      (b)
        by
        renumbering Section 9.17 as Section 9.18 and inserting the following
        Section immediately after Section 9.16:

       

      “SECTION
        9.17. No
        Advisory or Fiduciary Responsibility. In
        connection with all aspects of each transaction contemplated hereby,
        each Borrower and each other Loan Party acknowledges and
        agrees, and acknowledges its Affiliates’ understanding, that: (i)
        the
        credit facilities provided for hereunder and any related arranging
        or other services in connection therewith (including in connection
        with any amendment, waiver or other modification hereof
        or
        of any other Loan Document) are an arm’s-length commercial
        transaction between each Borrower, each other Loan Party
        and
        their respective Affiliates, on the one hand, and the Administrative
        Agent and the Arrangers, on the other hand, and     each
        Borrower and each other Loan Party is capable of evaluating and
        understanding and understands and accepts the terms, risks
        and conditions
        of the transactions contemplated
        hereby and by the other
        Loan Documents (including any amendment, waiver or other modification
        hereof or thereof); (ii) in connection with the process leading
        to such transaction, each of the Administrative Agent and the
        Arrangers is and has been acting solely
        as
        a principal and is not
        the
        financial advisor, agent or fiduciary, for any Borrower, any other
        Loan Party or any of their respective Affiliates,
        stockholders, creditors
        or employees or any other person; (iii) neither the Administrative
        Agent nor any Arranger has assumed or will assume
        an
        advisory, agency or fiduciary responsibility in favor of any
        Borrower or any other Loan Party with respect to any of the transactions
        contemplated hereby or the process leading thereto, including
        with respect to any amendment, waiver or other modification
        hereof or of any other Loan Document (irrespective of
        whether the Administrative Agent or any Arranger has advised or
        is
        currently advising any Borrower, any other Loan Party or any of
        their
        respective Affiliates on other matters) and neither the Administrative
        Agent nor any Arranger has any obligation to any Borrower,
        any other Loan Party or any of their respective Affiliates
        with respect to the transactions contemplated hereby except
        those obligations expressly set forth herein and in the other Loan
        Documents; (iv) the Administrative Agent, the Arrangers and their
        respective Affiliates may be engaged in a broad range of  transactions
        that involve interests that differ from those of the Borrowers,
        the other Loan Parties and their respective Affiliates, and
        neither the Administrative Agent nor any Arranger has any obligation
        to disclose any of such interests by virtue of any advisory,
        agency or fiduciary relationship; and (v) the Administrative
        Agent and the Arrangers have not provided and  will
        not
        provide any legal accounting, regulatory or tax advice with respect
        to any of the transactions contemplated hereby (including any
        amendment, waiver or other modification hereof or of any other
        Loan Document) and each of the Borrowers and the other
        Loan Parties has consulted its own legal, accounting, regulatory
        and tax advisors to the extent it has deemed appropriate. Each
        of
        the Borrowers and the other Loan Parties hereby waives
        and releases to the fullest extent permitted by law, any claims
        that it may have against the Administrative Agent and the Arrangers
        with respect to any breach or alleged breach of agency or
        fiduciary duty with respect to the transactions contemplated hereby.”

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      SECTION
        6. Amendment
        to Exhibit B.
        Exhibit
        B of the First Lien Credit Agreement is hereby amended and restated in its
        entirety by Exhibit B attached hereto.

       

      SECTION
        7. Representations
        and Warranties.
        Each of
        Parent, Denny’s Holdings, DFO and the Borrowers 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 Parent, Denny’s Holdings, DFO and each
        Borrower, enforceable against each of them in accordance with its
        terms.

       

      (b)
        The
        representations and warranties of each Loan Party set forth in the Loan
        Documents are true and correct in all material respects on and as of the
        Effective Date (as defined below), except to the extent such representations
        and
        warranties expressly relate to an earlier date (in which case such
        representations and warranties were true and correct in all material respects
        as
        of such earlier date).

       

      (c)
        Immediately before and after giving effect to this Amendment, no Default
        shall
        have occurred and be continuing.

       

      SECTION
        8. Conditions.
        This
        Amendment shall become effective as of the date first above written (the
        “Effective
        Date”)
        when
        (a) the Administrative Agent shall have received counterparts of this Amendment
        that, when taken together, bear the signatures of the Borrowers, Parent,
        Denny’s
        Holdings, DFO and the Required Lenders, (b) Second Lien Amendment No.1 shall
        have become or shall simultaneously become effective in accordance with its
        terms and (c) all fees and, to the extent invoiced prior to the date
        hereof, expenses required to be paid or reimbursed by the Borrowers under
        or in
        connection with this Amendment or the First Lien Credit Agreement (including
        all
        reasonable invoiced fees, charges and disbursements of Cravath, Swaine &
Moore LLP, counsel to the Administrative Agent) shall have been paid or
        reimbursed.

       

      SECTION
        9. First
        Lien Credit Agreement.
        Except
        as expressly set forth herein, this Amendment (a) 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 First Lien Credit Agreement or any
        other Loan Document and (b) shall not alter, modify, amend or in any way
        affect any of the terms, conditions, obligations, covenants or agreements
        contained in the First Lien 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 First Lien 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 First Lien Credit Agreement shall
        mean the First Lien Credit Agreement as modified hereby.

       

      SECTION
        10. 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 FIRST
        LIEN
        CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL
        HEREIN.

       

      SECTION
        11. 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 shall be effective as delivery of a manually executed
        counterpart of this Amendment. Except as otherwise permitted by Section 9.02
        of
        the First Lien Credit Agreement, this Amendment may not be amended nor may
        any
        provision hereof be waived except pursuant to a writing signed by the Borrowers,
        Parent, Denny’s Holdings, DFO and the Required Lenders.

       

      SECTION
        12. Headings.
        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.

      


      


      


      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

         

        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/
                  F. Mark Wolfinger

              
	 	
                Name: F.
                  Mark Wolfinger

              
	 	
                Title: SVP
                  & CFO

              


      

      


      


      
        	
                DENNY’S
                  REALTY, LLC, f/k/a
                  Denny’s Realty, Inc.,

                 

              
	
                By

              
	 	
                /s/
                  F. Mark Wolfinger

              
	 	
                Name: F.
                  Mark Wolfinger

              
	 	
                Title: SVP
                  & CFO

              


      

      


      


      
        	
                DENNY’S
                  CORPORATION,

                 

              
	
                By

              
	 	
                /s/
                  F. Mark Wolfinger

              
	 	
                Name: F.
                  Mark Wolfinger

              
	 	
                Title: SVP
                  & CFO

              


      

      


      


      
        	
                DENNY’S
                  HOLDINGS, INC.,

                 

              
	
                By

              
	 	
                /s/
                  Nicholas Fortuna

              
	 	
                Name: Nicholas
                  Fortuna

              
	 	
                Title: Vice
                  President

              


      

      


      


      
        	
                DFO,
                  LLC, f/k/a
                  DFO,
                  Inc.,

                 

              
	
                By

              
	 	
                /s/
                  F. Mark Wolfinger

              
	 	
                Name: F.
                  Mark Wolfinger

              
	 	
                Title: SVP
                  & CFO

              


      

      


      


      



      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      


      


      
        	
                BANK
                  OF AMERICA, N.A., individually
                  and as Administrative Agent, as Issuing Bank, as Collateral Agent
                  and a
                  Lender,

                 

              
	
                By

              
	 	
                /s/
                  John Schmidt

              
	 	
                Name: John
                  Schmidt

              
	 	
                Title: Vice
                  President

              


      

       

       

       

      
 

      
        
           

        

        
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