Contract
Exhibit
10.2
EXECUTION
COPY
AMENDMENT
NO. 6 TO SECOND LIEN CREDIT AGREEMENT dated as of July 31, 2006 (this
“Amendment
Agreement”)
among
KRISPY KREME DOUGHNUT CORPORATION, a North Carolina corporation (the
“Borrower”),
the
GUARANTORS (as defined in the Credit Agreement referred to below) signatory
hereto and the LENDERS (as defined in the Credit Agreement referred to below)
signatory hereto.
WHEREAS,
the Borrower is party to a Second Lien Credit Agreement dated as of April 1,
2005 (as amended, amended and restated, supplemented or otherwise modified
through the date hereof, the “Credit
Agreement”)
among
the Borrower, the Parent Guarantor, the Subsidiary Guarantors, the Lenders,
and
Credit Suisse (formerly known as Credit Suisse First Boston), as Administrative
Agent, Paying Agent, Fronting Bank, and Collateral Agent.
Accordingly,
in consideration of the premises and for other good and valuable consideration,
the sufficiency and receipt of all of which are hereby acknowledged, the parties
hereto hereby agree as follows:
SECTION 1.
Defined
Terms.
Capitalized terms used but not herein shall be used herein as defined in the
Credit Agreement.
SECTION 2.
Amendment.
As of
the Amendment Effective Date, paragraph (t) of Article VIII of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
“(t)
the
Restatement Date shall not have occurred on or before October 31, 2006; or”.
SECTION 3.
Representations
and Warranties.
The
Borrower hereby represents and warrants to the undersigned Lenders that (a)
the
representations and warranties of the Borrower and the Parent Guarantor set
forth in the Credit Agreement, and of each Obligor in each of the other Loan
Documents to which it is a party, is true and correct in all material respects
on and as of the date hereof (except to the extent that any such representation
or warranty expressly relates to an earlier date), with each reference therein
to the Credit Agreement being deemed for purposes hereof to be a reference
to
the Credit Agreement as modified hereby and (b) no Default has occurred and
is
continuing.
SECTION 4.
Conditions
to Effectiveness.
The
amendment set forth in Section 2 hereof shall become effective when, and only
when, and as of the date (the “Amendment
Effective Date”)
on
which:
(a)
the
Administrative Agent shall have received counterparts of this Amendment
Agreement executed by the Borrower, each of the Guarantors (other than Freedom
Rings, LLC) and the Required Lenders;
(b)
all
the conditions to the effectiveness of the Amendment No. 6 to the First
Lien Credit Agreement of even date herewith, substantially in the form
heretofore delivered to the
2
Lenders,
shall have occurred other than the effectiveness of this Amendment Agreement;
and
(c) the
Administrative Agent shall have received payment of all accrued fees and
expenses of the Administrative Agent (including the reasonable and accrued
fees
of counsel to the Administrative Agent invoiced on or prior to the date
hereof).
(a)
On
and
after the Amendment Effective Date, each reference in the Credit Agreement
to
“this Agreement”, “hereunder”, “hereof” or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to “the Credit
Agreement”, “thereunder”, “thereof”, or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement as
modified hereby.
(b) The
Credit
Agreement and each of the other Loan Documents, as specifically modified by
this
Amendment Agreement, are and shall continue to be in full force and effect
and
are hereby in all respects ratified and confirmed.
(c) The
execution, delivery and effectiveness of this Amendment Agreement shall not,
except as expressly provided herein, operate as a waiver of any right, power
or
remedy of the Credit Agreement or the other Loan Documents, nor constitute
a
waiver of any provision of the Credit Agreement or the other Loan
Documents.
SECTION
6.
Fees.
The
Borrower shall pay to the Administrative Agent for the account of each Lender
that executes and delivers to the Administrative Agent a counterpart of this
Amendment Agreement on or before 12:00 noon (New York time) on July 31, 2006
an
amendment fee equal to 0.05% of the sum of the Tranche A Funding Amounts (or,
if
the Tranche A Funding Amounts have been reduced to zero, Tranche A Exposures)
and the outstanding Tranche B Loans of such Lender, such fee to be payable
(i)
in the case of Lenders that execute and deliver this Amendment Agreement on
or
before the Amendment Effective Date, on the Amendment Effective Date and (ii)
in
the case of all other Lenders entitled to receive such fee, not later than
August 4, 2006.
SECTION 7.
Affirmation
of Guarantors.
Each
Guarantor signatory hereto hereby consents to the amendments to the Credit
Agreement effected hereby, and hereby confirms and agrees that, notwithstanding
the effectiveness of the amendments set forth in Section 2 hereof (and
notwithstanding the failure of Freedom Rings, LLC to be a party hereto), the
obligations of such Guarantor contained in Article III of the Credit
Agreement or in any other Loan Documents to which it is a party are, and shall
remain, in full force and effect and are hereby ratified and confirmed in all
respects, except that, on and after the effectiveness of such amendments, each
reference in Article III of the Credit Agreement and in each of the other
Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of
like import shall mean and be a reference to the Credit Agreement as modified
by
this Amendment Agreement.
SECTION 8.
GOVERNING
LAW.
THIS
AMENDMENT AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
SECTION 9.
Execution
in Counterparts.
This
Amendment Agreement may be executed by one or more of the parties to this
Amendment Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
3
Delivery
of an executed counterpart of a signature page to this Amendment Agreement
by
telecopier shall be effective as delivery of a manually executed counterpart
of
this Amendment Agreement.
KRISPY
KREME DOUGHNUT CORPORATION
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
CFO
GUARANTORS:
KRISPY
KREME DOUGHNUTS, INC.
KRISPY
KREME DISTRIBUTING COMPANY, INCORPORATED
KRISPY
KREME CANADA, INC.
HD
CAPITAL
CORPORATION
HDN
DEVELOPMENT CORPORATION
KRISPY
KREME BRAND FUND CORPORATION
KK
CANADA
HOLDINGS, INC.
NORTHEAST
DOUGHNUTS, LLC
KRISPY
KREME MANAGEMENT I, LLC
KRISPY
KREME MANAGEMENT II, LLC
KRISPY
KREME MANAGEMENT III, LLC
KRISPY
KREME COFFEE COMPANY, LLC
By:
|
KRISPY
KREME DOUGHNUT CORPORATION, an
authorized Member |
GOLDEN
GATE DOUGHNUTS, LLC
By:
|
KRISPY
KREME DOUGHNUT CORPORATION, an
authorized Member |
PANHANDLE
DOUGHNUTS, LLC
By:
|
KRISPY
KREME DOUGHNUT CORPORATION, an
authorized Member |
NORTH
TEXAS DOUGHNUTS, L.P.
By:
|
KRISPY
KREME DOUGHNUT CORPORATION, its
General Partner |
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Authorized Officer
LENDER
Consent
of
Required Lenders Received