AMENDMENT NO. 1
Exhibit 10.22
EXECUTION VERSION
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of February 18, 2011 (this “Amendment”), to the Credit Agreement dated as of November 23, 2010 (as amended, supplemented, amended and restated or otherwise modified from time to time) (the “Credit Agreement”) among DUNKIN’ BRANDS, INC., a Delaware corporation (the “Borrower”), DUNKIN’ BRANDS HOLDINGS, INC., a Delaware corporation (“Holdings”), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”), BARCLAYS BANK PLC, as Administrative Agent (in such capacity, the “Administrative Agent”), Swing Line Lender (in such capacity, the “Swing Line Lender”), L/C Issuer (in such capacity, the “L/C Issuer”) and Collateral Agent (in such capacity, the “Collateral Agent”) and the other Agents named therein. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
WHEREAS, Section 10.01 of the Credit Agreement permits amendment of the Credit Agreement with consent of the Administrative Agent, the Borrower and the Lenders providing the relevant replacement term loan tranche to permit the refinancing of all outstanding Term Loans of any Class with a replacement term loan tranche thereunder;
WHEREAS, pursuant to the third paragraph of Section 10.01 of the Credit Agreement, the Borrower desires to create a new Class of Term B-1 Loans under the Credit Agreement having identical terms with, having the same rights and obligations under the Loan Documents as and in the same aggregate principal amount as the Term B Loans, as set forth in the Credit Agreement and Loan Documents, except as such terms are amended hereby;
WHEREAS, each Term B Lender that executes and delivers a consent to this Amendment substantially in the form of Exhibit A hereto (a “Consent”) shall be deemed, upon effectiveness of this Amendment, to have exchanged all (or such lesser amount allocated to it by the Arrangers) of its Term B Loans for Term B-1 Loans, and such Lender shall thereafter become a Term B-1 Lender;
WHEREAS, each Person that executes and delivers a joinder to this Amendment substantially in the form of Exhibit B (a “Joinder”) as an Additional Term B-1 Lender will make Term B-1 Loans in the amount set forth on the signature page of such Person’s Joinder on the effective date of this Amendment to the Borrower, the proceeds of which will be used by the Borrower to repay in full the outstanding principal amount of Non-Exchanged Term B Loans (as defined herein);
WHEREAS, the Borrower shall pay to each Term B Lender immediately prior to the effectiveness of this Amendment (i) all accrued and unpaid interest on its Term B Loans to, but not including, the date of effectiveness of this Amendment and (ii) a prepayment premium of 1% of the amount of Term B Loans held by such Term B Lender;
WHEREAS, the Loan Parties and Required Lenders wish to make certain other amendments set forth in Section 2 below pursuant to amendments authorized by Section 10.01 of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Amendments Relating to Term B-1 Loans.
Effective as of the Amendment No. 1 Effective Date, the Credit Agreement is hereby amended as follows (to the extent necessary to permit the borrowing of the Senior Notes Refinancing Amount, such amendments are made with the consent of the Required Lenders after giving effect to the exchange of Term B Loans into Term B-1 Loans and the borrowing of the Additional Term B-1 Loans excluding the Senior Notes Refinancing Amount):
(a) The following defined terms shall be added to Section 1.01 of the Credit Agreement in alphabetical order:
“Additional Term B-1 Commitment” means, with respect to an Additional Term B-1 Lender, the commitment of such Additional Term B-1 Lender to make an Additional Term B-1 Loan on the Amendment No. 1 Effective Date, in the amount set forth on the joinder agreement of such Additional Term B-1 Lender to Amendment No. 1. The aggregate amount of the Additional Term B-1 Commitments of all Additional Term B-1 Lenders shall equal (i) the outstanding aggregate principal amount of Non-Exchanged Term B Loans plus (ii) $150,000,000 (the amount in this clause (ii), the “Senior Notes Refinancing Amount”) (it being understood that the Senior Notes Refinancing Amount shall not count towards the basket set forth in clause (ii) of Section 2.14(a) of the Credit Agreement).
“Additional Term B-1 Lender” means a Person with an Additional Term B-1 Commitment to make Additional Term B-1 Loans to the Borrower on the Amendment No. 1 Effective Date, which for the avoidance of doubt may be an existing Term B Lender.
“Additional Term B-1 Loan” means a Loan that is made pursuant to Section 2.01(c)(ii) of the Credit Agreement on the Amendment No. 1 Effective Date.
“Amendment No. 1” means Amendment No. 1 to this Agreement dated as of February 18, 2011.
“Amendment No. 1 Effective Date” means February 18, 2011, the date on which all conditions precedent set forth in Section 4 of Amendment No. 1 are satisfied.
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“Exchanged Term B Loans” means each Term B Loan (or portion thereof) as to which the Lender thereof has consented to exchange into a Term B-1 Loan and the Arrangers have allocated into a Term B-1 Loan.
“Non-Exchanged Term B Loan” means each Term B Loan (or portion thereof) other than an Exchanged Term B Loan.
“Senior Notes Refinancing Amount” has the meaning given to such term in the definition of “Additional Term B-1 Commitment.”
“Term B-1 Commitment” means, with respect to a Term B Lender, the agreement of such Term B Lender to exchange the entire principal amount of its Term B Loans (or such lesser amount allocated to it by the Arrangers) for an equal principal amount of Term B-1 Loans on the Amendment No. 1 Effective Date.
“Term B-1 Loan” means an Additional Term B-1 Loan or a Loan that is deemed made pursuant to Section 2.01(c)(i).
(b) The definitions of “Term B Commitment” and “Term B Loans” in Section 1.01 of the Credit Agreement shall be deleted in their entirety.
(c) All references to “Term B Loan,” “Term B Commitment,” “Term B Loan Facility” and “Term B Lender” in the Credit Agreement and the Loan Documents shall be deemed to be references to “Term B-1 Loan,” “Term B-1 Commitment,” “Term B-1 Loan Facility” and “Term B-1 Lender,” respectively (unless the context otherwise requires).
(d) The definition of “Applicable Rate” in Section 1.01 of the Credit Agreement is hereby amended by deleting such definition and replacing it with the following:
““Applicable Rate” means a percentage per annum equal to
(a) with respect to the Term B-1 Loans (i) for Eurodollar Rate Loans, 3.00% and (ii) for Base Rate Loans, 2.00%; and
(b) with respect to the Revolving Credit Loans, unused Revolving Credit Commitments, Letter of Credit fees and Revolving Credit Commitment Fees, the following percentages per annum, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02:
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| Pricing Level |
Total Leverage Ratio |
Eurocurrency Rate and Letter of Credit Fees |
Base Rate | Revolving Credit Commitment Fee Rate |
||||||||||||
| 1 |
>6.00:1 | 4.25 | % | 3.25 | % | 0.500 | % | |||||||||
| 2 |
|
< 6.00:1 but > 5.00:1 |
|
4.00 | % | 3.00 | % | 0.500 | % | |||||||
| 3 |
< 5.00:1 | 3.75 | % | 2.75 | % | 0.500 | % | |||||||||
Any increase or decrease in the Applicable Rate resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02; provided that Pricing Level 1 shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply) and (y) at the option of the Administrative Agent or the Required Revolving Lenders, as of the first Business Day after an Event of Default shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply); provided, further, that prior to delivery of the Compliance Certificate with respect to the first fiscal quarter beginning after the Closing Date, Pricing Level 1 shall apply.”
(e) The definition of “Base Rate” in Section 1.01 of the Credit Agreement is hereby amended by changing the proviso to the first sentence thereof to read: “provided that in no event shall the Base Rate be less than (i) 2.50% in the case of Revolving Credit Loans and Swing Line Loans or (ii) 2.25% in the case of Term B-1 Loans.”
(f) The definition of “Eurodollar Rate” in Section 1.01 of the Credit Agreement is hereby amended by changing the proviso to read: “provided that in no event shall the Eurodollar Rate be less than (i) 1.50% in the case of Revolving Credit Loans and Swing Line Loans or (ii) 1.25% in the case of Term B-1 Loans.”
(g) The definition of “Loan Documents” in Section 1.01 of the Credit Agreement is hereby amended by deleting the word “and” prior to clause (g) thereof and replacing it with a comma and adding immediately prior to the period therein “and (h) amendments and joinders to this Agreement”.
(h) Section 2.01 of the Credit Agreement is hereby amended by adding the following paragraph (c) to such Section:
“(c) (i) Subject to the terms and conditions hereof and of Amendment No. 1, each Term B Lender severally agrees to exchange its
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Exchanged Term B Loans for a like principal amount of Term B-1 Loans on the Amendment No. 1 Effective Date.
(ii) Subject to the terms and conditions hereof and of Amendment Xx. 0, xxxx Xxxxxxxxxx Xxxx X-0 Lender severally agrees to make an Additional Term B-1 Loan to the Borrower on the Amendment No. 1 Effective Date in the principal amount equal to its Additional Term B-1 Commitment on the Amendment No. 1 Effective Date. The Borrower shall prepay the Non-Exchanged Term B Loans with a like amount of the gross proceeds of the Additional Term B-1 Loans, concurrently with the receipt thereof.
(iii) The Borrower shall pay to the Term B Lenders immediately prior to the effectiveness of Amendment No. 1 (x) all accrued and unpaid interest on the Term Loans to, but not including, the Amendment No. 1 Effective Date on such Amendment No. 1 Effective Date and (y) the prepayment premium pursuant to Section 2.05(a)(iv).
(iv) The Term B-1 Loans shall have the same terms as the Term B Loans as set forth in the Credit Agreement and Loan Documents before giving effect to Amendment No. 1, except as modified by Amendment No. 1; it being understood that the Term B-1 Loans (and all principal, interest and other amounts in respect thereof) will constitute “Obligations” under the Credit Agreement and the other Loan Documents and shall have the same rights and obligations under the Credit Agreement and Loan Documents as the Term B Loans prior to the Amendment No. 1 Effective Date.”
(i) Section 2.05(a) of the Credit Agreement is hereby amended by deleting subclause (iv) thereof in its entirety and replacing it with the following; provided that the amendment in this clause (i) shall be effective solely as it relates to the Revolving Credit Loans, only upon the consent of each Revolving Credit Lender:
“(iv) At the time of the effectiveness of any Repricing Transaction that (x) makes any prepayment of the Term Loans or Revolving Credit Loans (with a corresponding reduction of Revolving Credit Commitments) in connection with any Repricing Transaction, or (y) effects any amendment of this Agreement resulting in a Repricing Transaction and is consummated prior to the first anniversary of the Amendment No. 1 Effective Date, with respect to the Term Loans and prior to the first anniversary of the Closing Date, with respect to the Revolving Credit Loans, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each applicable Lender, a fee in an amount equal to, (I) in the case of clause (x), a prepayment premium of 1% of the amount of the Term Loans or Revolving Credit Loans (with a corresponding reduction of Revolving Credit
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Commitments) being prepaid and (II) in the case of clause (y), a payment equal to 1% of the aggregate amount of the applicable Term Loans or Revolving Credit Commitments outstanding immediately prior to such amendment; provided that no such payment shall be required with respect to a Repricing Transaction that is consummated substantially concurrently with or after a Qualified IPO. Such fees shall be due and payable upon the date of the effectiveness of such Repricing Transaction.”
(j) Section 2.06(b) of the Credit Agreement is hereby amended by adding the following clause (iv) to such Section:
“(iv) The Term B-1 Commitment of each Additional Term B-1 Lender shall be automatically terminated on the Amendment No. 1 Effective Date upon the borrowing of the Additional Term B-1 Loans on such date.”
(k) Section 2.07(a) of the Credit Agreement is hereby amended by replacing the amortization table therein with the following:
| Interest Payment Date |
Amortization Payment | |||
| March 2011 |
$ | 3,500,000 | ||
| June 2011 |
$ | 3,500,000 | ||
| September 2011 |
$ | 3,500,000 | ||
| December 2011 |
$ | 3,500,000 | ||
| March 2012 |
$ | 3,500,000 | ||
| June 2012 |
$ | 3,500,000 | ||
| September 2012 |
$ | 3,500,000 | ||
| December 2012 |
$ | 3,500,000 | ||
| March 2013 |
$ | 3,500,000 | ||
| June 2013 |
$ | 3,500,000 | ||
| September 2013 |
$ | 3,500,000 | ||
| December 2013 |
$ | 3,500,000 | ||
| March 2014 |
$ | 3,500,000 | ||
| June 2014 |
$ | 3,500,000 | ||
| September 2014 |
$ | 3,500,000 | ||
| December 2014 |
$ | 3,500,000 | ||
| March 2015 |
$ | 3,500,000 | ||
| June 2015 |
$ | 3,500,000 | ||
| September 2015 |
$ | 3,500,000 | ||
| December 2015 |
$ | 3,500,000 | ||
| March 2016 |
$ | 3,500,000 | ||
| June 2016 |
$ | 3,500,000 | ||
| September 2016 |
$ | 3,500,000 | ||
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| December 2016 |
$ | 3,500,000 | ||
| March 2017 |
$ | 3,500,000 | ||
| June 2017 |
$ | 3,500,000 | ||
| September 2017 |
$ | 3,500,000 |
(l) Section 6.11 of the Credit Agreement is hereby amended by adding the following paragraph (d) to such Section:
“(d) Use the proceeds of all Term B-1 Loans (other than the Senior Notes Refinancing Amount) to refinance the Term B Loans. Use the proceeds of the Term B-1 Loans in an amount equal to the Senior Notes Refinancing Amount to redeem an equal aggregate principal amount of outstanding Senior Notes.”
Section 2. Other Amendments to Credit Agreement.
Effective as of the Amendment No. 1 Effective Date, the Required Lenders after giving effect to the exchange of Term B Loans into Term B-1 Loans and the borrowing of the Additional Term B-1 Loans hereby agree as follows:
(a) Section 7.06(f) of the Credit Agreement is hereby amended by replacing it with the following:
“(f) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that does not exceed the sum of (i) the greater of (x) $60,000,000 and (y) 2.00% of Total Assets as of the end of the Test Period last ended (such amount to be reduced on a dollar for dollar basis by any use of this Section 7.06(f)(i) reallocated to prepayments of Junior Financings pursuant to Section 7.13(i)) and (ii) the Cumulative Amount as in effect immediately prior to the time of making of such Restricted Payment; provided that (A) in the case of any Restricted Payment under this clause (f) made with the Cumulative Amount, the Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenants set forth in Section 7.10 after giving effect to such Restricted Payment and the use of proceeds thereof and (B) upon a Qualifying IPO, the references to $60,000,000 and 2.00% in clauses (x) and (y) above shall be increased to $115,000,000 and 3.75%, respectively, with the additional amounts resulting from such increase available only to the extent that the Senior Secured Leverage Ratio would be not greater than 5.00 to 1.00 after giving pro forma effect to such Restricted Payment;”.
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(b) Section 7.13 of the Credit Agreement is hereby amended by (1) replacing clause (i) with the following:
“(i) so long as no Event of Default shall have occurred and be continuing or would result therefrom, for an aggregate purchase price, or in an aggregate prepayment amount, not to exceed the greater of (x) $60,000,000 and (y) 2.00% of Total Assets as of the end of the Test Period last ended, plus (A) unused amounts available to make Restricted Payments under Section 7.06(f)(i) and (B) an amount equal to the Cumulative Amount as in effect immediately prior to the time of making such purchase or prepayment; provided that (I) in the case of any prepayment, redemption, purchase, defeasement or other satisfaction of any Junior Financing under this Section 7.13 made with the Cumulative Amount, the Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenants set forth in Section 7.10 after giving effect to such payment, prepayment, redemption, purchase, defeasance or satisfaction and (II) upon a Qualifying IPO, the references to $60,000,000 and 2.00% in clauses (x) and (y) above shall be increased to $115,000,000 and 3.75%, respectively; with the additional amounts resulting from such increase available only to the extent that the Senior Secured Leverage Ratio would be not greater than 5.00 to 1.00 after giving pro forma effect to such payment, prepayment, redemption, purchase, defeasance or satisfaction;”
and (2) by replacing the “and” before “(iv)” with a comma and adding the following before the period:
“and (v) the redemption of Senior Notes in an aggregate principal amount equal to the Senior Notes Refinancing Amount, and the payment of any applicable redemption premium and accrued and unpaid interest thereon”.
Section 3. Representations and Warranties.
Each of Holdings and the Borrower represents and warrants to the Lenders as of the date hereof and the Amendment No. 1 Effective Date that:
(a) Before and after giving effect to this Amendment, the representations and warranties of the Borrower and each other Loan Party contained in Article 5 of the Credit Agreement or any other Loan Document shall be true and correct in all material respects (and in all respects if qualified by materiality) on and as of the date of such Credit Extension, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if qualified by materiality) as of such earlier date and (ii) that for purposes of this Section 3, the representations and warranties contained in Section 5.05(a) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished prior to the Amendment No. 1 Effective Date or pursuant to Section 6.01(a) and Section 6.01(b) of the Credit Agreement.
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(b) At the time of and after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
Section 4. Conditions to Effectiveness.
This Amendment shall become effective on the date on which each of the following conditions is satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified, and each executed by a Responsible Officer of the Borrower:
(1) executed counterparts of this Amendment; and
(2) a Note executed by the Borrower in favor of each Lender requesting a Note at least two (2) Business Days prior to the Amendment No. 1 Effective Date, if any.
(b) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified;
(1) an opinion of Ropes & Xxxx LLP, special counsel to the Borrower, dated the Amendment No. 1 Effective Date and addressed to each L/C Issuer, Arranger, the Administrative Agent and the Lenders, substantially in the form previously provided to the Administrative Agent;
(2) (A) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of the state of its organization or a similar Governmental Authority and (B) a certificate of a Responsible Officer of each Loan Party dated the Amendment No. 1 Effective Date and certifying (I) to the effect that (w) attached thereto is a true and complete copy of the certificate or articles of incorporation or organization such Loan Party certified as of a recent date by the Secretary of State of the state of its organization, or in the alternative (other than in the case of the Borrower), certifying that such certificate or articles of incorporation or organization have not been amended since the Escrow Release Date, and that such certificate or articles are in full force and effect, (x) attached thereto is a true and complete copy of the by-laws or operating agreements of each Loan Party as in effect on the Amendment No. 1 Effective Date, or in the alternative (other than in the case of the Borrower), certifying that such by-laws or operating agreements have not been amended since the Escrow Release Date and (y) attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers or member, as the case may be, of each Loan Party authorizing the execution, delivery and performance of the Loan Documents
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to which such Loan Party is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (II) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and signed by another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to this clause (B); and
(3) a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in paragraphs (f) and (g) of this Section 4 and that the Term B-1 Loans meet the requirements and conditions to be Replacement Term Loans.
(c) (i) The aggregate principal amount of the Exchanged Term B Loans plus the aggregate principal amount of the Additional Term B-1 Commitments shall equal the aggregate principal amount of the outstanding Term B Loans immediately prior to the effectiveness of this Amendment plus the Senior Notes Refinancing Amount and (ii) with respect to Section 1(i) solely as it relates to Revolving Credit Loans, each Revolving Credit Lender has delivered to the Administrative Agent a Consent to this Amendment.
(d) The Borrower shall have paid to the Administrative Agent, for the ratable account of the Term B Lenders immediately prior to the Amendment No. 1 Effective Date, (x) all accrued and unpaid interest on the Term B Loans to, but not including, the Amendment No. 1 Effective Date on the Amendment No. 1 Effective Date and (y) the prepayment premium pursuant to Section 2.05(a)(iv) of the Credit Agreement.
(e) All fees and expenses due to the Administrative Agent, the Arrangers and the Lenders required to be paid on the Amendment No. 1 Effective Date shall have been paid.
(f) No Default shall exist, or would result from the Amendment and related Credit Extension or from the application of the proceeds therefrom.
(g) The representations and warranties of the Borrower and each other Loan Party contained in Article 5 of the Credit Agreement and Section 3 of this Amendment or any other Loan Document shall be true and correct in all material respects (and in all respects if qualified by materiality) on and as of the date hereof, except (A) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if qualified by materiality) as of such earlier date and (B) that for purposes of this Section 4, the representations and warranties contained in Section 5.05(a) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished prior to the Amendment No. 1 Effective Date or pursuant to Section 6.01(a) and Section 6.01(b) of the Credit Agreement.
(h) To the extent requested by an Additional Term B-1 Lender in writing not less than three (3) Business Days prior to the Amendment No. 1 Effective Date, the
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Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Borrower required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(i) The Administrative Agent shall have received a Request for Credit Extension not later than 1:00 p.m. on the Business Day prior to the date of the proposed Credit Extension.
The Administrative Agent shall notify the Borrower and the Lenders of the Amendment No. 1 Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendments effected hereby shall not become effective, and the obligations of the Additional Term B-1 Lenders hereunder to make Additional Term B-1 Loans will automatically terminate, if each of the conditions set forth or referred to in this Section 4 has not been satisfied at or prior to 5 p.m., New York City time, on February 25, 2011.
Section 5. Notice of Redemption.
No later than three Business Days following the Amendment No. 1 Effective Date, the Borrower shall deliver a notice of redemption to the holders of the Senior Notes pursuant to the terms of the Senior Notes Indenture for the redemption of Senior Notes in an aggregate principal amount no less than the Senior Notes Refinancing Amount.
Section 6. Waivers.
The Required Lenders and Administrative Agent agree that the Borrower may deliver a Request for Credit Extension pursuant to Section 4.02 of the Credit Agreement not later than 1:00 p.m. on the Business Day prior to the date of the proposed Credit Extension (in lieu of three Business Days). The Required Lenders and Administrative Agent waive the requirement for delivery of a Prepayment Notice pursuant to Section 2.05 of the Credit Agreement. The Lenders party hereto waive the payment of any breakage loss or expense under Section 3.05 of the Credit Agreement in connection with the exchange of Term B Loans into Term B-1 Loans.
Section 7. Expenses.
The Borrower agrees to reimburse the Administrative Agent for its reasonable out-of-pocket expenses incurred by them in connection with this Amendment, including the reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Administrative Agent.
Section 8. Counterparts.
This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be
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deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
Section 9. Governing Law and Waiver of Right to Trial by Jury.
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The jurisdiction and waiver of right to trial by jury provisions in Section 10.16 and 10.17 of the Credit Agreement are incorporated herein by reference mutatis mutandis.
Section 10. Headings.
The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
Section 11. Reaffirmation.
Each Loan Party hereby expressly acknowledges the terms of this Amendment and reaffirms, as of the date hereof, (i) the covenants and agreements contained in each Loan Document to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated hereby and (ii) its guarantee of the Obligations under the Guaranty, as applicable, and its grant of Liens on the Collateral to secure the Obligations pursuant to the Collateral Documents.
Section 12. Effect of Amendment.
Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Agents under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
| DUNKIN’ BRANDS, INC. | ||
| By: | /s/ Xxxxxxxxx X. Xxxxx III | |
| Name: Xxxxxxxxx X. Xxxxx III Title: Chief Financial Officer | ||
| DUNKIN’ BRANDS HOLDINGS, INC. | ||
| By: | /s/ Xxxxxxxxx X. Xxxxx III | |
| Name: Xxxxxxxxx X. Xxxxx III Title: Chief Financial Officer and Treasurer | ||
[SIGNATURE PAGE TO AMENDMENT NO.1]
| XXXXXX-XXXXXXX FLAVORS LLC XXXXXX-XXXXXXX FRANCHISED SHOPS LLC XXXXXX-XXXXXXX FRANCHISING LLC XXXXXX-XXXXXXX INTERNATIONAL LLC XXXXXX-XXXXXXX LLC XXXXXX-XXXXXXX USA LLC BR IP HOLDER LLC BR JAPAN HOLDINGS LLC DB CANADIAN HOLDING COMPANY INC. DB CANADIAN SUPPLIER INC. DB FRANCHISING HOLDING COMPANY LLC DB INTERNATIONAL FRANCHISING LLC DB MASTER FINANCE LLC DB MEXICAN FRANCHISING LLC DB REAL ESTATE ASSETS I LLC DB REAL ESTATE ASSETS II LLC DB UK FRANCHISING LLC DBI STORES LLC DD IP HOLDER LLC DUNKIN’ DONUTS FRANCHISED RESTAURANTS LLC DUNKIN’ DONUTS FRANCHISING LLC DUNKIN’ DONUTS LLC DUNKIN’ DONUTS REALTY INVESTMENT LLC DUNKIN’ DONUTS USA LLC DUNKIN’ VENTURES LLC MISTER DONUT OF AMERICA LLC THIRD DUNKIN’ DONUTS REALTY LLC | ||
| By: | /s/ Xxxxxxxxx X. Xxxxx III | |
| Name: Xxxxxxxxx X. Xxxxx III Title: Chief Financial Officer | ||
| BARCLAYS BANK PLC, as Administrative Agent, L/C Issuer and Swing Line Lender | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx Title: Director | ||
EXHIBIT A
CONSENT TO AMENDMENT NO. 1
CONSENT TO AMENDMENT NO. 1 (this “Consent”) to Amendment No. 1 (“Amendment”) to that certain Credit Agreement, dated as of November 23, 2010 (the “Credit Agreement”), by and among Dunkin’ Brands, Inc. (the “Borrower”), Dunkin’ Brands Holdings, Inc., Barclays Bank PLC, as Administrative Agent (the “Administrative Agent”), the Lenders from time to time party thereto and the other parties thereto. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Amendment.
Existing Term B Lenders
The undersigned Term B Lender hereby irrevocably and unconditionally approves the Amendment and consents as follows (check ONE option):
Cashless Settlement Option
| ¨ | to convert 100% of the outstanding principal amount of the Term B Loan held by such Lender (or such lesser amount allocated to such Lender by the Arrangers) into a Term B-1 Loan in a like principal amount. |
Post-Closing Settlement Option
| ¨ | to have 100% of the outstanding principal amount of the Term B Loan held by such Lender prepaid on the Amendment No. 1 Effective Date and purchase by assignment the principal amount of Term B-1 Loans committed to separately by the undersigned (or such lesser amount allocated to such Lender by the Arrangers). |
Revolving Credit Lenders
| ¨ | The undersigned Revolving Credit Lender hereby irrevocably and unconditionally consents to the Amendment. |
IN WITNESS WHEREOF, the undersigned has caused this Consent to be executed and delivered by a duly authorized officer.
| Date: | February , 2011 | |
| , | ||
| as a Lender (type name of the legal entity) | ||
| By: |
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| Name: | ||
| Title: | ||
| If a second signature is necessary: | ||
| By: |
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| Name: | ||
| Title: | ||
EXHIBIT B
JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of February 18, 2011 (this “Agreement”), by and among [ADDITIONAL TERM B-1 LENDER] (each, an “Additional Term B-1 Lender” and, collectively, the “Additional Term B-1 Lenders”), Dunkin’ Brands, Inc. (the “Borrower”), and BARCLAYS BANK PLC (the “Administrative Agent”).
RECITALS:
WHEREAS, reference is hereby made to the Credit Agreement, dated as of November 23, 2010 and amended by Amendment No. 1 dated as of February 18, 2011 (as further amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among the Borrower, Dunkin’ Brands Holdings, Inc., a Delaware corporation (“Holdings”), each lender from time to time party thereto and Barclays Bank PLC, as Administrative Agent, Swing Line Lender and L/C Issuer (capitalized terms used but not defined herein having the meaning provided in the Credit Agreement);
WHEREAS, subject to the terms and conditions of the Credit Agreement, the Borrower may establish Additional Term B-1 Commitments (the “Additional Term B-1 Commitments”) with existing Term B Lenders and/or Additional Term B-1 Lenders; and
WHEREAS, subject to the terms and conditions of the Credit Agreement, Additional Term B-1 Lenders shall become Lenders pursuant to one or more Joinder Agreements;
NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
Each Additional Term B-1 Lender hereby agrees to provide the Additional Term B-1 Commitment set forth on its signature page hereto pursuant to and in accordance with Section 2.01(c) of the Credit Agreement. The Additional Term B-1 Commitments provided pursuant to this Agreement shall be subject to all of the terms in the Credit Agreement and to the conditions set forth in the Credit Agreement, and shall be entitled to all the benefits afforded by the Credit Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents
Each Additional Term B-1 Lender, the Borrower and the Administrative Agent acknowledge and agree that the Additional Term B-1 Commitments provided pursuant to this Agreement shall constitute Term B-1 Commitments for all purposes of the Credit Agreement and the other applicable Loan Documents. Each Additional Term B-1 Lender hereby agrees to make an Additional Term B-1 Loan to the Borrower in an amount equal to its Additional Term B-1 Commitment on the Amendment No. 1 Effective Date in accordance with Section 2.01(c) of the Credit Agreement.
Each Additional Term B-1 Lender (i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Arrangers or any other Additional Term B-1 Lender or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.
Upon (i) the execution of a counterpart of this Agreement by each Additional Term B-1 Lender, the Administrative Agent and the Borrower and (ii) the delivery to the Administrative Agent of a fully executed counterpart (including by way of telecopy or other electronic transmission) hereof, each of the undersigned Additional Term B-1 Lenders shall become Lenders under the Credit Agreement and shall have the respective Additional Term B-1 Commitment set forth on its signature page hereto, effective as of the Amendment No. 1 Effective Date.
For each Additional Term B-1 Lender, delivered herewith to the Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Additional Term B-1 Lender may be required to deliver to the Administrative Agent pursuant to Section 10.15 of the Credit Agreement.
This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.
This Agreement, the Credit Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.
THIS AGREEMENT 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.
Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this
B-2
Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.
B-3
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Joinder Agreement as of February 18, 2011.
| [NAME OF ADDITIONAL TERM B-1 LENDER] | ||
| By: |
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| Name: | ||
| Title: | ||
| If a second signature is necessary: | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Additional Term B-1 Commitments: | ||
| $ | ||
| DUNKIN’ BRANDS, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
B-4
| Accepted: | ||
| BARCLAYS BANK PLC, as Administrative Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
B-5
