EXHIBIT 10.28
FIRST AMENDMENT
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FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
February 10, 1999, among DOMINO'S INC. ("Company"), BLUEFENCE, INC. ("Subsidiary
Borrower" and, together with Company, each, a "Borrower" and, collectively,
"Borrowers"), TISM, INC. ("Holdings"), X.X. XXXXXX SECURITIES INC., as arranger
(in such capacity, "Arranger"), THE FINANCIAL INSTITUTIONS party to the Credit
Agreement referred to below (each individually referred to therein as a "Lender"
and collectively as "Lenders"), XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
("Xxxxxx Guaranty"), as administrative agent for Lenders (in such capacity,
"Administrative Agent"), NBD BANK ("NBD Bank"), as syndication agent (in such
capacity, "Syndication Agent"), and COMERICA BANK ("COMERICA"), as documentation
agent (in such capacity, "Documentation Agent"). All capitalized terms used
herein and not otherwise defined herein shall have the respective meanings
provided such terms in the Credit Agreement.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Borrowers, Holdings, the Arranger, Lenders, the
Administrative Agent, the Syndication Agent and the Documentation Agent are
party to a Credit Agreement, dated as of December 21, 1998; and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto agree as follows;
NOW, THEREFORE, it is agreed:
1. Nothwithstanding anything to the contrary contained in Section
6.1(i) of the Credit Agreement, the Lenders hereby agree that the financial
statements referred to in such section for the Accounting Periods ended January
3, 1999, January 31, 1999 and February 28, 1999 will not be required to be
delivered to the Administrative Agent and the Lenders until the submission of
the audited year-end financial statements pursuant to Section 6.1(iii) of the
Credit Agreement.
2. Notwithstanding anything to the contrary contained in Section
6.1(ii) of the Credit Agreement, the Lenders hereby agree that the financial
statements and narrative report referred to in such section for the Accounting
Quarter ended January 3, 1999 will not be required to be delivered to the
Administrative Agent and the Lenders until the submission of the audited year-
end financial statements pursuant to Section 6.1(iii) of the Credit Agreement.
3. In order to induce the Lenders to enter into this Amendment, each
Borrower hereby represents and warrants that (i) no Default or Event of Default
exists as of the Amendment Effective Date (as defined below), both before and
after giving effect to this Amendment and (ii) on the Amendment Effective Date,
both before and after giving effect to this Amendment, all representations and
warranties contained in the Credit Agreement and in the other Credit Documents
are true and correct in all material respects.
4. This Amendment shall become effective on the date (the "Amendment
Effective Date") when each Borrower and the Requisite Lenders shall have signed
a counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the
Administrative Agent at its notice address.
5. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Loan Document.
6. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with each Borrower and the Administrative Agent.
7. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
* * *
-2-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
hereof.
TISM, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Title: President
DOMINO'S, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Title: President
BLUEFENCE, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------
Title: President
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Administrative Agent
By: /s/
------------------------------
Title:
X.X. XXXXXX SECURITIES INC., as Arranger
By: /s/
------------------------------
Title:
COMERICA BANK, individually and as Documentation
Agent
By: /s/
---------------------------------
Title:
NBD BANK, individually and as Syndication Agent
By: /s/
----------------------------------
Title:
THE BANK OF NOVA SCOTIA
By: /s/
----------------------------------
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/
----------------------------------
Title:
MICHIGAN NATIONAL BANK
By: /s/
----------------------------------
Title:
COMPAGNIE FINANCIERE de CIC et de l'UNION
EUROPEENNE
By: /s/
---------------------------------
Title:
CITY NATIONAL BANK
By: /s/
---------------------------------
Title:
XXXX CAPITAL FUND SANKATY
By: /s/
---------------------------------
Title:
OSPREY INVESTMENTS PORTFOLIO
By: Citibank, N.A., as Manager
By: /s/
---------------------------------
Title:
KZH CNC LLC
By: /s/
---------------------------------
Title:
FLEET NATIONAL BANK
By: /s/
---------------------------------
Title:
KZH ING - 1 LLC
By: /s/
---------------------------------
Title:
KZH ING - 2 LLC
By: /s/
---------------------------------
Title:
KZH ING - 3 LLC
By: /s/
---------------------------------
Title:
ARCHIMEDES FUNDING, L.L.C.,
By: ING Capital Advisors, Inc., as Collateral
Manager
By: /s/
---------------------------------
Title:
ARCHIMEDES FUNDING II, LTD
By: ING Capital Advisors, Inc., as Collateral
Manager
By: /s/
---------------------------------
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By: /s/
---------------------------------
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
By: /s/
---------------------------------
Title:
DEBT STRATEGIES FUND II, INC.
By: /s/
---------------------------------
Title:
OAK HILL SECURITIES FUND, L.P.
By: /s/
---------------------------------
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
By: /s/
---------------------------------
Title:
XXX XXXXXX SENIOR FLOATING RATE FUND
By: /s/
---------------------------------
Title:
XXX XXXXXX SENIOR INCOME TRUST
By: /s/
---------------------------------
Title:
XXXXX FARGO N.A.
By: /s/
---------------------------------
Title:
XXXXX XXXXX SENIOR INCOME TRUST
By: /s/
---------------------------------
Title:
SENIOR DEBT PORTFOLIO
By: /s/
---------------------------------
Title:
OXFORD STRATEGIC INCOME FUND
By: /s/
---------------------------------
Title:
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: /s/
---------------------------------
Title:
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: /s/
---------------------------------
Title:
TCW LEVERAGED INCOME TRUST
By: /s/
---------------------------------
Title:
TCW LEVERAGED INCOME TRUST II
By: /s/
---------------------------------
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: /s/
---------------------------------
Title:
TEACHERS' RETIREMENT SYSTEM OF LOUISIANA
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/
---------------------------------
Title:
MAINSTAY VP SERIES FUND, INC., ON BEHALF OF
ITS HIGH YIELD CORPORATE BOND PORTFOLIO
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/
---------------------------------
Title:
THE 1199 HEALTHCARE EMPLOYEES PENSION FUND
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/
---------------------------------
Title:
THE XXXXX AND XXXXXXXXXX MASTER RETIREMENT TRUST
By: Xxxxxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/
---------------------------------
Title:
POLICE OFFICERS PENSION SYSTEM OF THE CITY
OF HOUSTON
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/
---------------------------------
Title:
THE MAINSTAY FUNDS, INC., ON BEHALF OF ITS
STRATEGIC VALUE FUND
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/
---------------------------------
Title:
THE MAINSTAY FUNDS, INC., ON BEHALF OF ITS
STRATEGIC INCOME FUND
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/
---------------------------------
Title:
THE MAINSTAY FUNDS, INC., ON BEHALF OF ITS
HIGH YIELD CORPORATE BOND FUND SERIES
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/
---------------------------------
Title:
Mellon Bank N.A. solely in its capacity as
Trustee (or Custodian) for the Employees
Retirement Fund of the City of Fort Forth
as directed by XxxXxx-Xxxxxxx Financial
Corporation, and not in its individual
capacity.
By: /s/
---------------------------------
Title:
CREDIT AGRICOLE INDOSUEZ
By: /s/
---------------------------------
Title:
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By: /s/
---------------------------------
Title:
BANK OF NEW YORK
By: /s/
---------------------------------
Title:
