PRELIMINARY STATEMENTS

EXECUTION COPY

AMENDMENT NO. 7 TO SECOND LIEN CREDIT AGREEMENT dated as of October 30, 2006 (this “Amendment Agreement”) among KRISPY KREME DOUGHNUT CORPORATION, a North Carolina corporation (the “Borrower”), the 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 Second Lien Credit Agreement dated as of April 1, 2005 (as amended, amended and restated, supplemented or otherwise modified through the date hereof, the “Credit Agreement”) among the Borrower, the Parent Guarantor, the Subsidiary Guarantors, the Lenders, and Credit Suisse (formerly known as Credit Suisse First Boston), as Administrative Agent, Paying Agent, Fronting Bank, and Collateral Agent.

 

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 amendment.

 

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 herein shall be used herein as defined in the Credit Agreement.

 

SECTION 2. Amendment. As of the Amendment Effective Date:

 

(a) Section 6.01(a) is amended by deleting the following language therein:

 

“(setting forth in a footnote or in a financial schedule thereto consolidating balance sheets and related statements of operations and cash flows for the Parent Guarantor, the Borrower, Freedom Rings, LLC, the other Consolidated Subsidiaries that are Guarantors and the Consolidated Subsidiaries that are not Guarantors; provided that if the separate listing of Freedom Rings, LLC is not acceptable to PricewaterhouseCoopers LLP (or other independent public accountants of recognized national standing of the Borrower), then Freedom Rings, LLC will be included with the other Consolidated Subsidiaries that are Guarantors)”

 

(b) Sections 6.01(b)(ii) and (c)(ii) are hereby amended by deleting the following language therein:

 

“(setting forth in a footnote or in a financial schedule thereto consolidating balance sheets and related statements of operations and cash flows in the same presentation as for the information presented pursuant to Section 5.01(a))”

 

(c) The table in Section 7.09(a) of the Credit Agreement is amended to read as follows:

 

 

Period		Ratio
Second, Third and Fourth Fiscal Quarters of 2006 Fiscal Year		4.50 to 1.00
First Fiscal Quarter of 2007 Fiscal Year		5.40 to 1.00
Second Fiscal Quarter of 2007 Fiscal Year		5.00 to 1.00
Third Fiscal Quarter of 2007 Fiscal Year		4.80 to 1.00
Fourth Fiscal Quarter of 2007 Fiscal Year		4.70 to 1.00
First Fiscal Quarter of 2008 Fiscal Year		4.40 to 1.00
Second Fiscal Quarter of 2008 Fiscal Year		4.45 to 1.00
Third Fiscal Quarter of 2008 Fiscal Year		4.35 to 1.00
Fourth Fiscal Quarter of 2008 Fiscal Year		4.25 to 1.00
First Fiscal Quarter of 2009 Fiscal Year and Thereafter		3.70 to 1.00

 

(d) The table in Section 7.09(b) of the Credit Agreement is amended to read as follows:

 

 

Period		Ratio
Second and Third Fiscal Quarters of 2006 Fiscal Year		3.15 to 1.00
Fourth Fiscal Quarter of 2006 Fiscal Year		2.50 to 1.00
First Fiscal Quarter of 2007 Fiscal Year		2.10 to 1.00
Second Fiscal Quarter of 2007 Fiscal Year		2.05 to 1.00
Third Fiscal Quarter of 2007 Fiscal Year		2.05 to 1.00
Fourth Fiscal Quarter of 2007 Fiscal Year		2.05 to 1.00
First Fiscal Quarter of 2008 Fiscal Year		2.20 to 1.00
Second Fiscal Quarter of 2008 Fiscal Year		2.25 to 1.00
Third Fiscal Quarter of 2008 Fiscal Year		2.30 to 1.00
Fourth Fiscal Quarter of 2008 Fiscal Year		2.30 to 1.00
First Fiscal Quarter of 2009 Fiscal Year and Thereafter		3.40 to 1.00

 

SECTION 3. Representations and Warranties. The Borrower hereby represents and warrants to the undersigned Lenders that (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 (other than Freedom Rings, LLC) and the Required Lenders;

 

 

(b) all the conditions to the effectiveness of the Amendment No. 7 to the First Lien Credit Agreement of even date herewith, substantially in the form heretofore delivered to the Lenders, shall have occurred other than the effectiveness of this Amendment Agreement; and

 

(c) 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 5. 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 6. Fees. The Borrower shall pay to the Administrative Agent for the account of each Lender that executes and delivers to the Administrative Agent a counterpart of this Amendment Agreement on or before 12:00 noon (New York time) on October 30, 2006 an amendment fee equal to 0.125% of the Commitment of such Lender, such fee to be payable (i) in the case of Lenders that execute and deliver this Amendment Agreement on or before the Amendment Effective Date, on the Amendment Effective Date and (ii) in the case of all other Lenders entitled to receive such fee, not later than October 30, 2006.

 

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 amendments set forth in Section 2 hereof (and notwithstanding the failure of Freedom Rings, LLC to be a party hereto), 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 LAWS 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/ Michael C. Phalen

 Name: Michael C. Phalen

 Title: CFO

 

GUARANTORS:

 

KRISPY KREME DOUGHNUTS, INC.

 

KRISPY KREME DISTRIBUTING COMPANY,
INCORPORATED

 

KRISPY KREME MOBILE STORE COMPANY

 

KRISPY KREME CANADA, INC.

 

HD CAPITAL CORPORATION

 

HDN DEVELOPMENT CORPORATION

 

KRISPY KREME BRAND FUND CORPORATION

 

KK CANADA HOLDINGS, INC.

 

NORTHEAST DOUGHNUTS, LLC

 

KRISPY KREME MANAGEMENT I, LLC

 

KRISPY KREME MANAGEMENT II, LLC

 

KRISPY KREME MANAGEMENT III, LLC

 

GOLDEN GATE DOUGHNUTS, LLC

 

By:

KRISPY KREME DOUGHNUT CORPORATION, an authorized Member

 

PANHANDLE DOUGHNUTS, LLC

 

By:

KRISPY KREME DOUGHNUT CORPORATION, an authorized Member

 

NORTH TEXAS DOUGHNUTS, L.P.

 

By:

KRISPY KREME DOUGHNUT CORPORATION, its General Partner

 

By: /s/ Michael C. Phalen

 Name: Michael C. Phalen

 Title: Authorized Officer

 

 

Consent of Required Lenders Received