ex10_1.htm


     

    Exhibit 10.1


    AMENDMENT
      NO. 2 TO CREDIT AGREEMENT, dated as of January 23, 2008 (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
      (as
      amended by Amendment No. 1 to Credit Agreement, dated as of June 21, 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 certain
      provisions of the Credit Agreement, and the Required Lenders have agreed,
      subject to the terms and conditions hereinafter set forth to such
      amendments.

     

    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.  Amendments.  As
      of the Amendment Effective Date:

     

    (a)           
      The definition of "Applicable Margin" in Section 1.01 of the Credit Agreement
      is
      deleted in its entirety and replaced with the following:

     

    "'Applicable
      Margin'
      means:  (a) with respect to any ABR Loan, 2.50% per annum;
      and (b) with respect to any Eurodollar Loan, 3.50% per
      annum.  The Applicable Margin for the Incremental Loans of any Series
      shall be determined at the time such Series of Loans is established pursuant
      to
      Section 2.01(c); and (a) if the Applicable Margin for Incremental Facility
      Term Loans of any Series would otherwise be more than 25 basis points higher
      than the Applicable Margin for Term Loans, then the Applicable Margin for Term
      Loans shall be automatically increased to a rate per annum equal to 25 basis
      points less than the Applicable Margin for such Series of Incremental Facility
      Term Loans from and after the earlier of the initial date of borrowing of such
      Incremental Facility Term Loans or the date that the related Incremental
      Facility Term Loan Commitments are established and (b) if the Applicable Margin
      for Incremental Revolving Credit Loans of any Series would otherwise be more
      than 25 basis points higher than the Applicable Margin for Revolving Credit
      Loans, then the Applicable Margin for Revolving Credit Loans shall be
      automatically increased to a rate per annum equal to 25 basis points less than
      the Applicable Margin for such Series of Incremental Facility Revolving Credit
      Loans from and after the date that the related Incremental Facility Revolving
      Credit Commitments are established.

     

    


     (b)           
      The second paragraph of Section 7.03 of the Credit Agreement is amended
      by

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    deleting
      "and" at the end of clause (k) thereof, replacing the period at the end of
      clause (l) thereof with "and" and adding a new clause (m) at the end thereof
      reading as follows:

     

    "(m)
      The
      property referred to as Item 124 of Schedule VIII (the property located at
      1200
      Stevens Avenue in Effingham, IL) may be disposed of (i) in accordance with
      the
      Real Property Purchase Agreement, dated December 21, 2007, between the Borrower
      and Harlan Bakeries, Inc. or (ii) in any other transaction for fair market
      value; provided
      that, notwithstanding anything to the contrary in Section 2.10(c)(iv), 100%
      of
      the Net Available Proceeds therefrom shall be applied within five Business
      Days
      after such disposition to prepay Term Loans and Incremental Facility Loans
      in
      accordance with Section 2.10(c)(vi)."

     

    SECTION 3.  Representations
      and
      Warranties.  The Borrower hereby represents and warrants to the
      undersigned Lenders that, after giving effect to the amendments 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 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, and the Required
      Lenders; and

     

    (b) the
      Administrative Agent shall have received payment of fees and expenses of the
      Administrative Agent set forth in the Fee Letter, dated January 10, 2008,
      between the Administrative Agent and the Borrower (including the reasonable
      and
      accrued fees of counsel to the Administrative Agent).

     

    
      	
               

            	
              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.  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, 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 7.  GOVERNING
      LAW.  THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
      WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

     

    SECTION 8.  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/ Douglas
                R.
                Muir

            
	
                    Name:
                Douglas R. Muir

            
	
                    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 MANAGEMENT III, LLC

            
	 
	
              By:  KRISPY
                KREME DOUGHNUT CORPORATION,

            
	
              as
                authorized Member

            
	 
	
              SOUTHERN
                DOUGHNUTS, LLC

            
	 
	
              By:  KRISPY
                KREME MANAGEMENT I, LLC,

            
	
              as
                authorized Manager

            
	 
	
              By:  KRISPY
                KREME DOUGHNUT CORPORATION,

            
	
              as
                authorized Member

            


    

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


    
      	
              SOUTHWEST
                DOUGHNUTS, LLC

            
	 
	
              By:  KRISPY
                KREME MANAGEMENT I, LLC,

              as
                authorized Manager

            
	 
	
              By:  KRISPY
                KREME DOUGHNUT CORPORATION,

            
	
              as
                authorized Member

            
	 
	
              NORTHEAST
                DOUGHNUTS, LLC

            
	 
	
              By:  KRISPY
                KREME MANAGEMENT I, LLC,

              as
                authorized Manager

            
	 
	
              By:  KRISPY
                KREME DOUGHNUT CORPORATION,

            
	
              as
                authorized Member

            
	 
	 
	
              By:  /s/
                Douglas R.
                Muir

            
	
              Name:
                Douglas R. Muir

            
	
              Title:
                Authorized Officer

            
	 
	
              KRISPY
                KREME MOBILE STORE COMPANY

              
              

            
	
              KRISPY
                KREME BRAND FUND CORPORATION

            
	 
	 
	
              By:  /s/
                Stanley L.
                Parker

            
	
              Name:
                Stanley L. Parker

            
	
              Title:
                President

            
	 
	
              KRISPY
                KREME CANADA, INC.

            
	 
	 
	
              By:  /s/
                Charles W. Bruton,
                III

            
	
              Name:
                Charles W. Bruton, III

            
	
              Title:
                President

            
	 
	 
	
              HD
                CAPITAL CORPORATION

            
	 
	
              HDN
                DEVELOPMENT CORPORATION

            
	 
	 
	
              By:  /s/
                H. Clark Beeson,
                III

            
	
              Name:
                H. Clark Beeson, III

            
	
              Title:
                President

            


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
 

    
      


      
        	
                LENDER

              
	 
	 
	
                Consent
                  of Required Lenders Received