EXHIBIT 99
SAFE HARBOR UNDER THE PRIVATE SECURITIES LITIGATION
REFORM ACT OF 1995
The Private Securities Litigation Reform Act of 1995 (as used in this
Exhibit 99, the "Act") provides a "safe harbor" for forward-looking statements
to encourage companies to provide prospective information about their companies,
so long as those statements are identified as forward-looking and are
accompanied by meaningful cautionary statements identifying important factors
that could cause actual results to differ materially from those discussed in the
statement. Denny's Corporation desires to take advantage of the "safe harbor"
provisions of the Act. Certain information, particularly information regarding
future economic performance, finances and management's plans and objectives,
contained or incorporated by reference in the Company's 2002 Annual Report on
Form 10-K (the "Annual Report") is forward-looking. In some cases, information
regarding certain important factors that could cause actual results to differ
materially from any such forward-looking statement appear together with such
statement. The following factors, in addition to those set forth in the Annual
Report and other possible factors not listed, could also affect our actual
results and cause such results to differ materially from those expressed in
forward-looking statements:
OUR SUBSTANTIAL INDEBTEDNESS COULD ADVERSELY AFFECT OUR OPERATIONS.
We have now and will continue to have a significant amount of indebtedness.
As of December 25, 2002, we had total indebtedness of approximately $596.0
million, and a shareholders' deficit of $278.9 million.
Our substantial indebtedness could have important consequences. For
example, it could:
- - make it more difficult for us to satisfy our obligations with respect
to our indebtedness;
- - require us to continue to dedicate a substantial portion of our cash
flow from operations to payments on our indebtedness, which would
reduce the availability of our cash flow to fund future working
capital, capital expenditures, acquisitions and other general corporate
purposes;
- - increase our vulnerability to general adverse economic and industry
conditions;
- - limit our flexibility in planning for, or reacting to, changes in our
business and the industry in which we operate;
- - restrict us from making strategic acquisitions or pursuing business
opportunities;
- - place us at a competitive disadvantage compared to our competitors that
have relatively less indebtedness; and
- - limit, along with the financial and other restrictive covenants in our
indebtedness, among other things, our ability to borrow additional
funds. Failing to comply with those covenants could result in an event
of default which, if not cured or waived, could have a material adverse
effect on our business, financial condition and results of operations.
DESPITE CURRENT INDEBTEDNESS LEVELS, WE AND OUR SUBSIDIARIES MAY STILL INCUR
SUBSTANTIALLY MORE INDEBTEDNESS, INCLUDING SECURED INDEBTEDNESS. INCURRING MORE
INDEBTEDNESS COULD INTENSIFY THE RISKS DESCRIBED ABOVE.
Subject to the restrictions in our revolving credit facility and the
indentures governing our senior notes, we may incur significant additional
indebtedness. Although the terms of the indentures governing our senior notes
and our revolving credit facility contain restrictions on the incurrence of
additional indebtedness, these restrictions are subject to a number of
qualifications and exceptions, and additional indebtedness incurred in
compliance with these restrictions could be substantial. If new debt is added to
our current debt levels, the related risks that we and they now face could
intensify. As of December 25, 2002, we had $46.7 million of advances and $48.8
million of letters of credit outstanding under our revolving credit facility,
leaving $89.1 million of additional permitted borrowings available under our
revolving credit facility. At March 21, 2003, we had working capital advances of
$63.7 million and letters of credit outstanding of $48.4 million under the
credit facility, leaving a net availability of $12.9 million. We continue to
monitor our cash flow and liquidity needs. Although we believe that funds from
operations and amounts available under our working capital facility will be
adequate to cover those needs, we may seek additional sources of funds including
additional financing sources and continued selected asset sales, to maintain
sufficient cash flow to fund our ongoing operating needs, pay interest and
scheduled debt amortization and fund anticipated capital expenditures over the
next twelve months.
AS A HOLDING COMPANY, DENNY'S DEPENDS ON UPSTREAM PAYMENTS FROM ITS OPERATING
SUBSIDIARIES.
Denny's is a holding company, which currently conducts its operations
through consolidated subsidiaries. As such, substantially all of the assets of
Denny's are owned by Denny's subsidiaries. Accordingly, Denny's is dependent
upon dividends, loans and other intercompany transfers from its subsidiaries to
meet its debt service and other obligations. These transfers are subject to
contractual restrictions and are contingent upon the earnings of its
subsidiaries.
OUR ABILITY TO GENERATE CASH DEPENDS ON MANY FACTORS BEYOND OUR CONTROL, AND WE
MAY NOT BE ABLE TO GENERATE THE CASH REQUIRED TO SERVICE OR REPAY OUR
INDEBTEDNESS.
Our ability to pay or to refinance our indebtedness will depend upon
our future operating performance, which will be affected by general economic,
financial, competitive, legislative, regulatory and other factors that are
beyond our control. Our historical financial results have been, and our future
financial results are expected to be, subject to substantial fluctuations. We
cannot be sure that our business will generate sufficient cash flow from
operations, that currently anticipated revenue growth and operating improvements
will be realized or that future borrowings will be available to us under our
revolving credit facility (currently set to expire in December 2004) or any
refinancing thereof in amounts sufficient to enable us to service or reduce our
indebtedness or to fund our other liquidity needs. Our ability to maintain or
increase operating cash flow will depend upon:
- - consumer tastes;
- - the success of our marketing initiatives and other efforts by us to
increase customer traffic in our restaurants; and
- - prevailing economic conditions and other matters, many of which are
beyond our control.
If we are unable to meet our debt service obligations or fund other
liquidity needs, we may need to refinance all or a portion of our indebtedness
on or before maturity or seek additional equity capital. We cannot be sure that
we will be able to pay or refinance our indebtedness or obtain additional equity
capital on commercially reasonable terms, or at all.
RESTRICTIVE COVENANTS IN OUR DEBT INSTRUMENTS RESTRICT OR PROHIBIT OUR ABILITY
TO ENGAGE IN OR ENTER INTO A VARIETY OF TRANSACTIONS, WHICH COULD ADVERSELY
AFFECT US.
The indentures governing Denny's senior notes contain various covenants
that limit, among other things, our ability to:
- - incur additional indebtedness;
- - pay dividends or make distributions or certain other restricted
payments;
- - make certain investments;
- - create dividend or other payment restrictions affecting restricted
subsidiaries;
- - issue or sell capital stock of restricted subsidiaries;
- - guarantee indebtedness;
- - enter into transactions with stockholders or affiliates;
- - create liens;
- - sell assets and use the proceeds thereof;
- - engage in sale-leaseback transactions; and
- - enter into certain mergers and consolidations.
The revolving credit facility contains similar and additional
restrictive covenants, including financial maintenance requirements. These
covenants could have an adverse effect on our business by limiting our ability
to take advantage of financing, merger and acquisition or other corporate
opportunities and to fund our operations.
A BREACH OF A COVENANT IN OUR DEBT INSTRUMENTS COULD CAUSE ACCELERATION OF A
SIGNIFICANT PORTION OF OUR OUTSTANDING INDEBTEDNESS.
A breach of a covenant or other provision in any debt instrument
governing our current or future indebtedness could result in a default under
that instrument and, due to cross-default and cross-acceleration provisions,
could result in a default under our other debt instruments. In addition, our
revolving credit facility requires us to maintain certain financial ratios. Our
ability to comply with these covenants may be affected by events beyond our
control, and we cannot be sure that we will be able to comply with these
covenants. Upon the occurrence of
an event of default under the revolving credit facility or any other debt
instrument, the lenders could elect to declare all amounts outstanding to be
immediately due and payable and terminate all commitments to extend further
credit. If we were unable to repay those amounts, the lenders could proceed
against the collateral granted to them, if any, to secure the indebtedness. If
the lenders under our current or future indebtedness accelerate the payment of
the indebtedness, we cannot be sure that our assets would be sufficient to repay
in full our outstanding indebtedness.
THE RESTAURANT BUSINESS IS HIGHLY COMPETITIVE.
The restaurant business is highly competitive and the competition is
expected to increase. If we are unable to compete effectively, our business will
be adversely affected. The following are important aspects of competition:
- - price;
- - restaurant location;
- - food quality;
- - quality and speed of service;
- - attractiveness and repair and maintenance of facilities; and
- - the effectiveness of marketing and advertising programs.
Our restaurants compete with a wide variety of restaurants ranging from
national and regional restaurant chains (some of which have substantially
greater financial resources than we do) to locally owned restaurants. There is
also active competition for advantageous commercial real estate sites suitable
for restaurants.
FOOD SERVICE BUSINESSES MAY BE ADVERSELY AFFECTED BY CHANGES IN CONSUMER TASTES,
ECONOMIC CONDITIONS AND DEMOGRAPHIC TRENDS.
Food service businesses are often adversely affected by changes in:
- - consumer tastes;
- - national, regional and local economic conditions; and
- - demographic trends.
The performance of individual restaurants may be adversely affected by
factors such as:
- - traffic patterns;
- - demographic consideration; and
- - the type, number and location of competing restaurants.
Multi-unit food service chains such as ours can also be materially and
adversely affected by publicity resulting from:
- - poor food quality;
- - illness;
- - injury; and
- - other health concerns or operating issues.
Dependence on frequent deliveries of fresh produce and groceries
subjects food service businesses to the risk that shortages or interruptions in
supply caused by adverse weather or other conditions could adversely affect the
availability, quality and cost of ingredients. In addition, the food service
industry in general and our results of operations and financial condition in
particular may also be adversely affected by unfavorable trends or developments
such as:
- - inflation;
- - increased food costs;
- - labor and employee benefits costs (including increases in minimum
hourly wage and employment tax rates);
- - regional weather conditions; and
- - the availability of experienced management and hourly employees.
THE LOCATIONS WHERE WE HAVE RESTAURANTS MAY CEASE TO BE ATTRACTIVE AS
DEMOGRAPHIC PATTERNS CHANGE.
The success of our owned and franchised restaurants is significantly
influenced by location. Current locations may not continue to be attractive as
demographic patterns change. It is possible that the neighborhood or economic
conditions where our restaurants are located could decline in the future,
potentially resulting in reduced sales in those locations.
THERE ARE NUMEROUS RISKS RELATED TO FRANCHISING.
We have refranchised, and may continue to refranchise, a significant
portion of our company-owned restaurants. This franchising initiative may
ultimately not be successful due to a lack of franchisee interest or changing
economic conditions. In addition, even if our franchising initiative is
successful, there can be no assurance that this decision will prove advantageous
to us from an operational standpoint. The interests of franchisees might
sometimes conflict with our interests. For example, whereas franchisees are
concerned with their individual business strategies and objectives, we are
responsible for ensuring the success of the entire Denny's chain.
Franchising also presents certain financial risks for us. The family
dining industry is intensely competitive, and some of our franchisees are and
will be highly leveraged. Some of
our current franchisees have recently experienced financial difficulties.
Financial problems of our franchisees could result in store closures or
otherwise adversely affect our royalty income and the value of the Denny's
brand.
NUMEROUS GOVERNMENT REGULATIONS IMPACT OUR BUSINESS.
We and our franchisees are subject to federal, state and local laws and
regulations governing, among other things:
- - health;
- - sanitation;
- - environmental matters;
- - safety;
- - the sale of alcoholic beverages; and
- - hiring and employment practices, including minimum wage laws.
Restaurant operations are also subject to federal and state laws that
prohibit discrimination and laws regulating the design and operation of
facilities, such as the American With Disabilities Act of 1990. The operation of
our franchisee system is also subject to regulations enacted by a number of
states and rules promulgated by the Federal Trade Commission. If we or our
franchisees fail to comply with these laws and regulations, we could be
subjected to closure, fines, penalties, and litigation, which may be costly. We
cannot predict the effect on our operations, particularly on our relationship
with franchisees, caused by the future enactment of additional legislation
regulating the franchise relationship.
NEGATIVE PUBLICITY GENERATED BY INCIDENTS AT A FEW RESTAURANTS CAN ADVERSELY
AFFECT THE OPERATING RESULTS OF OUR ENTIRE CHAIN AND THE DENNY'S BRAND.
Food safety concerns, criminal activity, alleged discrimination or
other operating issues stemming from one restaurant or a limited number of
restaurants do not just impact that particular restaurant or a limited number of
restaurants. Rather, our entire chain of restaurants is at risk from negative
publicity generated by an incident at a single restaurant. This negative
publicity can adversely affect the operating results of our entire chain and the
Denny's brand.