Contract
Exhibit 10.1
AMENDMENT
NO. 2 TO CREDIT AGREEMENT, dated as of January 23, 2008 (this "Amendment
Agreement"), among KRISPY KREME DOUGHNUT CORPORATION, a North Carolina
corporation (the "Borrower"), KRISPY
KREME DOUGHNUTS, INC., a North Carolina corporation (the "Parent Guarantor"),
the SUBSIDIARY 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.
PRELIMINARY
STATEMENTS
WHEREAS,
the Borrower is party to a Credit Agreement, dated as of February 16, 2007
(as
amended by Amendment No. 1 to Credit Agreement, dated as of June 21, 2007,
the
"Credit
Agreement"), among the Borrower, the Parent Guarantor, the Subsidiary
Guarantors, the Lenders, and Credit Suisse, Cayman Islands Branch, as
Administrative Agent, Collateral Agent, Issuing Lender, and Swingline
Lender.
WHEREAS,
the Borrower has requested that the Required Lenders agree to amend certain
provisions of the Credit Agreement, and the Required Lenders have agreed,
subject to the terms and conditions hereinafter set forth to such
amendments.
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 defined herein shall be
used herein as defined in the Credit Agreement.
SECTION 2. Amendments. As
of the Amendment Effective Date:
(a)
The definition of "Applicable Margin" in Section 1.01 of the Credit Agreement
is
deleted in its entirety and replaced with the following:
"'Applicable
Margin'
means: (a) with respect to any ABR Loan, 2.50% per annum;
and (b) with respect to any Eurodollar Loan, 3.50% per
annum. The Applicable Margin for the Incremental Loans of any Series
shall be determined at the time such Series of Loans is established pursuant
to
Section 2.01(c); and (a) if the Applicable Margin for Incremental Facility
Term Loans of any Series would otherwise be more than 25 basis points higher
than the Applicable Margin for Term Loans, then the Applicable Margin for Term
Loans shall be automatically increased to a rate per annum equal to 25 basis
points less than the Applicable Margin for such Series of Incremental Facility
Term Loans from and after the earlier of the initial date of borrowing of such
Incremental Facility Term Loans or the date that the related Incremental
Facility Term Loan Commitments are established and (b) if the Applicable Margin
for Incremental Revolving Credit Loans of any Series would otherwise be more
than 25 basis points higher than the Applicable Margin for Revolving Credit
Loans, then the Applicable Margin for Revolving Credit Loans shall be
automatically increased to a rate per annum equal to 25 basis points less than
the Applicable Margin for such Series of Incremental Facility Revolving Credit
Loans from and after the date that the related Incremental Facility Revolving
Credit Commitments are established.
(b)
The second paragraph of Section 7.03 of the Credit Agreement is amended
by
deleting
"and" at the end of clause (k) thereof, replacing the period at the end of
clause (l) thereof with "and" and adding a new clause (m) at the end thereof
reading as follows:
"(m)
The
property referred to as Item 124 of Schedule VIII (the property located at
0000
Xxxxxxx Xxxxxx in Effingham, IL) may be disposed of (i) in accordance with
the
Real Property Purchase Agreement, dated December 21, 2007, between the Borrower
and Xxxxxx Bakeries, Inc. or (ii) in any other transaction for fair market
value; provided
that, notwithstanding anything to the contrary in Section 2.10(c)(iv), 100%
of
the Net Available Proceeds therefrom shall be applied within five Business
Days
after such disposition to prepay Term Loans and Incremental Facility Loans
in
accordance with Section 2.10(c)(vi)."
SECTION 3. Representations
and
Warranties. The Borrower hereby represents and warrants to the
undersigned Lenders that, after giving effect to the amendments herein, (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 amendments 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, and the Required
Lenders; and
(b) the
Administrative Agent shall have received payment of fees and expenses of the
Administrative Agent set forth in the Fee Letter, dated January 10, 2008,
between the Administrative Agent and the Borrower (including the reasonable
and
accrued fees of counsel to the Administrative Agent).
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SECTION 5. Reference
to and
Effect on the Financing Documents.
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(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. 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, 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 7. GOVERNING
LAW. THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 8. 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. 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.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to
be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
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KRISPY
KREME DOUGHNUT CORPORATION
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By:
/s/ Xxxxxxx
X.
Xxxx
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Name:
Xxxxxxx X. Xxxx
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Title:
Chief Financial Officer
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GUARANTORS:
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KRISPY
KREME DOUGHNUTS, INC.
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GOLDEN
GATE DOUGHNUTS, LLC
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By: KRISPY
KREME DOUGHNUT CORPORATION,
as
authorized Manager
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PANHANDLE
DOUGHNUTS, LLC
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By: KRISPY
KREME MANAGEMENT I, LLC,
an
authorized Manager
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By: KRISPY
KREME MANAGEMENT II, LLC,
an
authorized Manager
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By: KRISPY
KREME DOUGHNUT CORPORATION,
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as
authorized Member of Krispy Kreme Management I,
LLC and Krispy Kreme Management II, LLC |
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NORTH
TEXAS DOUGHNUTS, L.P.
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By: KRISPY
KREME DOUGHNUT CORPORATION,
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its
General Partner
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KK
CANADA HOLDINGS, INC.
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KRISPY
KREME MANAGEMENT I, LLC
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By: KRISPY
KREME DOUGHNUT CORPORATION,
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as
authorized Member
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KRISPY
KREME MANAGEMENT II, LLC
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By: KRISPY
KREME DOUGHNUT CORPORATION,
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as
authorized Member
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KRISPY
KREME MANAGEMENT III, LLC
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By: KRISPY
KREME DOUGHNUT CORPORATION,
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as
authorized Member
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SOUTHERN
DOUGHNUTS, LLC
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By: KRISPY
KREME MANAGEMENT I, LLC,
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as
authorized Manager
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By: KRISPY
KREME DOUGHNUT CORPORATION,
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as
authorized Member
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SOUTHWEST
DOUGHNUTS, LLC
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By: KRISPY
KREME MANAGEMENT I, LLC,
as
authorized Manager
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By: KRISPY
KREME DOUGHNUT CORPORATION,
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as
authorized Member
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NORTHEAST
DOUGHNUTS, LLC
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By: KRISPY
KREME MANAGEMENT I, LLC,
as
authorized Manager
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By: KRISPY
KREME DOUGHNUT CORPORATION,
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as
authorized Member
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By: /s/
Xxxxxxx X.
Xxxx
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Name:
Xxxxxxx X. Xxxx
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Title:
Authorized Officer
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KRISPY
KREME MOBILE STORE COMPANY
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KRISPY
KREME BRAND FUND CORPORATION
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By: /s/
Xxxxxxx X.
Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title:
President
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KRISPY
KREME CANADA, INC.
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By: /s/
Xxxxxxx X. Xxxxxx,
III
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Name:
Xxxxxxx X. Xxxxxx, III
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Title:
President
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HD
CAPITAL CORPORATION
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HDN
DEVELOPMENT CORPORATION
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By: /s/
H. Xxxxx Xxxxxx,
III
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Name:
H. Xxxxx Xxxxxx, III
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Title:
President
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LENDER
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Consent
of Required Lenders Received
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