Second Amendment to Credit Agreement among Domino's Inc., Bluefence, Inc., TISM, Inc., and Lenders

Summary

This amendment updates the existing credit agreement among Domino's Inc., Bluefence, Inc., TISM, Inc., and several financial institutions. It allows TISM, Inc. (Holdings) to repurchase up to $6 million of its stock from DP Transitory Corporation and immediately resell it to employees and managers as part of an employee stock purchase plan. The amendment also revises certain financial reporting requirements. The changes take effect once all required parties sign the amendment, and all other terms of the original credit agreement remain unchanged.

EX-10.29 3 dex1029.txt SECOND AMENDMENT TO CREDIT AGMT EXHIBIT 10.29 SECOND AMENDMENT SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of April 16, 1999, among DOMINO'S INC. ("Company"), BLUEFENCE, INC. ("Subsidiary Borrower" and, together with Company, each, a "Borrower" and, collectively, "Borrowers"), TISM, INC. ("Holdings"), J.P. MORGAN 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"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK ("Morgan 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 (as defined below). 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 (as amended, the "Credit Agreement"); WHEREAS, DP Transitory Corporation, a Delaware corporation, owns shares of Holdings Common Stock and Cumulative Preferred Stock (collectively, "DP Transitory Stock"); WHEREAS, Holdings desires to repurchase from DP Transitory Corporation, DP Transitory Stock in an aggregate amount not to exceed $6,000,000 in order to implement an employee stock purchase plan; WHEREAS, immediately upon the repurchase of such DP Transitory Stock, Holdings desires to sell such stock for cash consideration at least equal to the repurchase price to managers and employees of Holdings and its Subsidiaries; WHEREAS, Holdings and its Subsidiaries desire to amend certain of the financial reporting requirements in the Credit Agreement; and WHEREAS, subject to the terms and conditions of this Amendment, the parties hereto agree as follows; NOW, THEREFORE, it is agreed: 1. Subsection 1.1 of the Credit Agreement is hereby amended by inserting the following new definition of "DP Transitory Stock" in the appropriate alphabetical order: "DP Transitory Stock" means all Holdings Common Stock or Cumulative Preferred Stock acquired by DP Transitory Corporation on the Closing Date." 2. Subsection 1.1 of the Credit Agreement is hereby further amended by inserting in the definition of "Excess Proceeds Amount", the parenthetical "(other than Net Equity Proceeds of DP Transitory Stock acquired by Holdings and sold in a substantially contemporaneous transaction to employees and managers of Holdings and its Subsidiaries)" after the text "of any Net Equity Proceeds" appearing in clause (b) of such definition. 3. Subsection 2.4(B)(iii)(d) of the Credit Agreement is hereby amended by (i) deleting the word "and" appearing before clause (B) in the second parenthetical therein, and inserting "," in lieu thereof, and (ii) inserting at the end of clause (B) the following new clause (C): ", and (C) Net Equity Proceeds received from the sale of DP Transitory Stock to managers and employees of Holdings and its Subsidiaries" 4. Subsection 6.1 of the Credit Agreement is hereby amended by inserting in the first paragraph therein the text "and/or the Company, as the case may be", after the word "Holdings" appearing in the second sentence therein. 5. Subsection 6.1(i) of the Credit Agreement is hereby amended by deleting the word "Holdings" in each place where it appears therein and inserting in lieu thereof, the words "the Company". 6. Subsection 6.1(ii) of the Credit Agreement is hereby amended by (i) deleting the word "Holdings" appearing in clause (a) and inserting in lieu thereof, the words "the Company", (ii) relettering clause (b) as clause (c), (iii) inserting at the end of clause (a) the following new clause (b): "(b) the consolidating balance sheet, statements of income and cash flows consolidating the financial statements of Holdings with the consolidated financial statements of the Company and its Subsidiaries, and the related consolidated statement of stockholders' equity of Holdings and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such Accounting Quarter," 7. Subsection 6.1(iii) is hereby amended by inserting the parenthetical "(or, in the case of the report described in clause (c) in respect of Fiscal Year 1998, no later than June 30, 1999)" after the text "after the end of each Fiscal Year" appearing before clause (a) of such subsection. 8. Subsection 6.1(vi) is hereby amended by inserting the text "commencing with such financial statements delivered in respect of Fiscal Year 1999" after the text "pursuant to subdivision (iii) above," appearing before clause (a) of such subsection. -2- 9. Subsection 7.5 of the Credit Agreement is hereby amended by (i) deleting the word "and" appearing immediately before clause (xvi), and (ii) inserting at the end of clause (xvi) the following new clause (xvii): "and (xvii) so long as no Event of Default is then in existence or would result therefrom, Holdings may repurchase DP Transitory Stock from DP Transitory Corporation, provided that (i) the aggregate -------- repurchase price does not exceed $6,000,000 and (ii) the repurchase of DP Transitory Stock is contemporaneous with the sale of such stock to employees and managers of Holdings for consideration no less than the repurchase price thereof;" 10. 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 Second Amendment Effective Date (as defined below), both before and after giving effect to this Amendment and (ii) on the Second 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. 11. This Amendment shall become effective on the date (the "Second 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. 12. 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. 13. 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. 14. 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. * * * -3- 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/ Harry J. Silverman ----------------------- Title: Executive Vice President & CFO DOMINO'S, INC. By: /s/ Harry J. Silverman ----------------------- Title: Executive Vice President & CFO BLUEFENCE, INC. By: /s/ Harry J. Silverman ----------------------- Title: Executive Vice President & CFO MORGAN GUARANTY TRUST COMPANY OF NEW YORK, individually and as Administrative Agent 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: SANKATY HIGH YIELD ASSET PARTNERS, L.P. 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: SENIOR DEBT PORTFOLIO By: Boston Management and Research as Investment Advisor By: /s/ -------------------------------- Title: EATON VANCE SENIOR INCOME TRUST By: Eaton Vance Management as Investment Advisor By: /s/ -------------------------------- Title: OXFORD STRATEGIC INCOME FUND By: Eaton Vance Management as Investment Advisor By: /s/ -------------------------------- Title: OAK HILL SECURITIES FUND, L.P. By: Oak Hill Securities GenPar, L.P. By: Oak Hill Securities MGP, Inc., its General Partner By: /s/ -------------------------------- Title: VAN KAMPEN PRIME RATE INCOME TRUST By: /s/ -------------------------------- Title: VAN KAMPEN SENIOR FLOATING RATE FUND By: /s/ -------------------------------- Title: VAN KAMPEN SENIOR INCOME TRUST By: /s/ -------------------------------- Title: INDOSUEZ CAPITAL FUNDING IIA, LIMITED Indosuez Capital as Portfolio Advisor By: /s/ -------------------------------- Title: INDOSUEZ CAPITAL FUNDING IV, L.P. Indosuez Capital as Portfolio Advisor By: /s/ -------------------------------- Title: TEACHERS' RETIREMENT SYSTEM OF LOUISIANA By: MacKay-Shields Financial Corporation Its: Investment Advisor By: /s/ -------------------------------- Title: MAINSTAY VP SERIES FUND, INC., ON BEHALF OF ITS HIGH YIELD CORPORATE BOND PORTFOLIO By: MacKay-Shields Financial Corporation Its: Investment Advisor By: /s/ -------------------------------- Title: THE 1199 HEALTHCARE EMPLOYEES PENSION FUND By: MacKay-Shields Financial Corporation Its: Investment Advisor By: /s/ -------------------------------- Title: THE BROWN AND WILLIAMSON MASTER RETIREMENT TRUST By: Mackay-Shields Financial Corporation Its: Investment Advisor By: /s/ -------------------------------- Title: POLICE OFFICERS PENSION SYSTEM OF THE CITY OF HOUSTON By: MacKay-Shields Financial Corporation Its: Investment Advisor By: /s/ -------------------------------- Title: THE MAINSTAY FUNDS, ON BEHALF OF ITS STRATEGIC VALUE FUND SERIES By: MacKay-Shields Financial Corporation Its: Investment Advisor By: /s/ -------------------------------- Title: THE MAINSTAY FUNDS, ON BEHALF OF ITS STRATEGIC INCOME FUND SERIES By: MacKay-Shields Financial Corporation Its: Investment Advisor By: /s/ -------------------------------- Title: THE MAINSTAY FUNDS, ON BEHALF OF ITS HIGH YIELD CORPORATE BOND FUND SERIES By: MacKay-Shields Financial Corporation Its: Investment Advisor By: /s/ -------------------------------- Title: Mellon Bank N.A. solely in its capacity as Trustee for the Employees Retirement Fund of the City of Fort Forth as directed by MacKay-Shields Financial Corporation, and not in its individual capacity. By: /s/ -------------------------------- Title: THE BANK OF NEW YORK By: /s/ -------------------------------- Title: CREDIT AGRICOLE INDOSUEZ By: /s/ -------------------------------- Title: MERRILL LYNCH PRIME RATE PORTFOLIO By: /s/ -------------------------------- Title: TCW LEVERAGED INCOME TRUST By: /s/ -------------------------------- Title: TCW LEVERAGED INCOME TRUST II By: /s/ -------------------------------- Title: WELLS FARGO N.A. By: /s/ -------------------------------- Title: