Contract
Exhibit
10.1
AMENDMENT
NO. 1 TO CREDIT AGREEMENT, dated as of June 21, 2007 (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
(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 and waive
certain provisions of the Credit Agreement, and the Required Lenders have
agreed, subject to the terms and conditions hereinafter set forth to such
amendments and waivers.
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. Amendment. As
of the Amendment Effective Date, the definition of “Consolidated Interest
Expense” in Section 1.01 of the Credit Agreement is hereby amended to include
the following at the end thereof:
“For
the
purpose of determining the Consolidated Interest Coverage Ratio for any Test
Period that includes February 16, 2007, Consolidated Interest Expense shall
be
deemed to be equal to the Consolidated Interest Expense for the period from
February 16, 2007 through the end of such Test Period, with such amount
annualized for a full Fiscal Year.”
SECTION 3. Waivers. As
of the Amendment Effective Date, each of the Lenders that is a party hereto
hereby waives any Default that shall occur, or shall have occurred, and be
continuing as a result of the Borrower’s failure to comply with the requirements
of Section 7.09(b) of the Credit Agreement solely with respect to any portion
of
the 12-month period ending April 29, 2007, and any breach of any representation
or warranty made or deemed made by Borrower with respect to such compliance
solely with respect to any portion of such period.
SECTION 4. Representations
and Warranties. The Borrower hereby represents and warrants to
the undersigned Lenders that, after giving effect to the amendments and waivers
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 5. Conditions
to Effectiveness. The amendment set forth in Section 2
hereof
and
the
waiver set forth in Section 3 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 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).
|
SECTION 6. Reference
to and Effect on the Financing
Documents.
|
(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 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 amendment 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 8. GOVERNING
LAW. THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW 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. 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.
KRISPY
KREME DOUGHNUT CORPORATION
|
By:
/s/ Xxxxxxx X. Xxxx
|
Name: Xxxxxxx X. Xxxx
|
Title: Chief Financial Officer
|
GUARANTORS:
|
KRISPY
KREME DOUGHNUTS, INC.
|
GOLDEN
GATE DOUGHNUTS, LLC
|
By: KRISPY
KREME
DOUGHNUT CORPORATION,
as
authorized Manager
|
PANHANDLE
DOUGHNUTS, LLC
|
By:
KRISPY KREME MANAGEMENT I, LLC,
an
authorized Manager
|
By: KRISPY
KREME MANAGEMENT II, LLC,
an
authorized Manager
|
By: KRISPY
KREME DOUGHNUT CORPORATION,
|
as
authorized Member of Krispy Kreme Management I,
LLC
and
Krispy Kreme Management II, LLC
|
NORTH
TEXAS DOUGHNUTS, L.P.
|
By: KRISPY
KREME DOUGHNUT CORPORATION,
its
General Partner
|
KK
CANADA HOLDINGS, INC.
|
KRISPY
KREME MANAGEMENT I, LLC
|
By: KRISPY
KREME DOUGHNUT CORPORATION,
|
as
authorized Member
|
KRISPY
KREME MANAGEMENT II, LLC
|
By: KRISPY
KREME DOUGHNUT CORPORATION,
|
as
authorized Member
|
KRISPY
KREME CANADA, INC.
|
By: /s/
Xxxxxxx X. Xxxxxx, III
|
Name:
Xxxxxxx X. Xxxxxx, III
|
Title:
President
|
HD
CAPITAL CORPORATION
|
HDN
DEVELOPMENT CORPORATION
|
By: /s/
Xxx X. Xxxxxx
|
Name:
Xxx X. Xxxxxx
|
Title:
Vice President
|
LENDER
|
Consent
of Required Lenders Received
|