Exhibit 10.2


    Exhibit
      10.2

     

    EXECUTION
      COPY

     

    WAIVER
      AND AMENDMENT NO. 4 TO SECOND LIEN CREDIT AGREEMENT dated as of March 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 up to 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 and Westward Dough Operating Company, LLC (the “Buyer”)
      are
      expected to enter into an assignment agreement, pursuant to which the Borrower
      will assign all of its interest in KK Wyotona, LLC (the “Equity
      Interests”)
      to the
      Buyer (the “Assignment”)
      in
      consideration for the Buyer entering into a sales purchase agreement with Glazed
      Investments, LLC (“Glazed
      Investments”)
      to
      purchase certain of Glazed Investments’ properties (the “Assets”)
      for
      approximately $10,000,000 in cash;

     

    WHEREAS,
      Glazed Investments made a voluntary filing of a case under Chapter 11 of the
      United States Bankruptcy Code, and the Borrower may make a debtor-in-possession
      loan of up to $3,000,000 (the “DIP
      Loan”)
      to
      Glazed Investments provided
      that
      upon receipt of the cash proceeds from any sale of the Assets, Glazed
      Investments shall repay the obligations of Glazed Investments guaranteed by
      the
      Borrower in an amount at least equal to the amount of the DIP Loan;
      and

     

    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 waiver.

     

    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.  Waiver.
      As of
      the Amendment Effective Date (as defined below), the undersigned Lenders hereby
      (i) waive the conditions set forth in Section 7.03(f) of the Credit Agreement
      with respect to the Assignment, (ii) agree that the Assignment be deemed to
      be a
      sale permitted by Section 7.03(f) of the Credit Agreement and (iii) agree that
      the Assignment shall not be deemed to be a Disposition.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    SECTION
      3.  Amendments.
      As of
      the Amendment Effective Date:

     

    (a)  Section
      1.01 of the Credit Agreement is hereby amended by inserting the following new
      defined terms therein in the appropriate alphabetical locations:

     

    “Glazed
      Investments DIP Loan”
means
      a
      debtor-in-possession loan of up to $3,000,000 made by the Borrower to Glazed
      Investments, LLC.

     

    “Glazed
      Investments Sale”
means
      the sale of assets of Glazed Investments, LLC for cash consideration of
      approximately $10,000,000 in a transaction approved in a bankruptcy proceeding
      under Chapter 11 of the United States Bankruptcy Code.

     

    (b)  Section
      7.05 of the Credit Agreement is hereby amended by adding the following sentence
      at the end thereof:

     

    “Notwithstanding
      anything to the contrary in this Agreement, the Glazed Investments DIP Loan
      shall be deemed to be an Investment in a Joint Venture permitted by Section
      7.05(k); provided
      that the
      Glazed Investments DIP Loan shall no longer be deemed to be an Investment
      permitted by Section 7.05(k) unless a Glazed Investments Sale is consummated
      and
      the proceeds are applied to the permanent repayment of the obligations of Glazed
      Investments, LLC guaranteed by the Borrower in an amount at least equal to
      the
      amount of the Glazed Investments DIP Loan, and such repayment occurs on or
      before the earlier of (a) the date which is six months after the disbursement
      of
      the Glazed Investments DIP Loan and (b) August 15, 2006. In the event that
      the
      Glazed Investments DIP Loan is no longer deemed to be an Investment permitted
      by
      Section 7.05(k) by operation of the proviso in the immediately preceding
      sentence, the Glazed Investments DIP Loan shall be deemed to be a utilization
      of
      the amount of Investments permitted under Section 7.05(i) to the extent
      permitted under Section 7.05(i) and, to the extent not so permitted, would
      constitute a violation of Section 7.05. ”

     

    SECTION
      4.  Representations
      and Warranties.
      The
      Borrower hereby represents and warrants to the undersigned Lenders that the
      fair
      market value of the Equity Interests does not exceed $80,000.

     

    SECTION
      5.  Conditions
      to Effectiveness.
      The
      waivers and agreements set forth in Section 2 hereof and the amendments 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 (other
      than
      Freedom Rings, LLC) and the Required Lenders (b) all the conditions to the
      effectiveness of the Waiver and Amendment No. 4 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).

     


    
      
        
        

      

      
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    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 amendments set forth in Section 3 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.

     


    
      
        
        

      

      
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    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:

           Title:

     

    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 COFFEE COMPANY, LLC

     

    By: KRISPY
      KREME DOUGHNUT
       CORPORATION,
      an authorized Member

     

    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

     


    
      
        
        

      

      
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    LENDER

     

    Consent
      of Required Lenders Received

    
 

     

     

     

     

     

     

     

     

     

     

     

     

     

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