Contoh-cover-table-of-contents-pembukaan.pdf

$1,350,000,000

CREDIT AGREEMENT Dated as of November 23, 2010 among DUNKIN’ FINANCE CORP. as the Initial Borrower DUNKIN’ BRANDS HOLDINGS, INC. as Holdings upon the effectiveness of its joinder to this Agreement DUNKIN’ BRANDS, INC. as the Borrower upon the Assumption BARCLAYS BANK PLC as Administrative Agent, Swing Line Lender and L/C Issuer THE OTHER LENDERS PARTY HERETO

BARCLAYS CAPITAL J.P. MORGAN SECURITIES LLC MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED GOLDMAN SACHS LENDING PARTNERS LLC as Lead Arrangers and Joint Bookrunners J.P. Morgan Securities LLC as Syndication Agent and Merrill Lynch, Pierce, Fenner & Smith Incorporated Goldman Sachs Lending Partners LLC Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch as Co-Documentation Agents

TABLE OF CONTENTS

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ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS Section 1.01 Defined Terms Section 1.02 Other Interpretive Provisions Section 1.03 Accounting Terms Section 1.04 Pro Forma Calculations Section 1.05 Rounding Section 1.06 References to Agreements and Laws Section 1.07 Times of Day Section 1.08 Timing of Payment or Performance

2 56 57 58 59 59 60 60 ARTICLE 2

THE COMMITMENTS AND CREDIT EXTENSIONS Section 2.01 The Loans Section 2.02 Borrowings, Conversions and Continuations of Loans Section 2.03 Letters of Credit Section 2.04 Swing Line Loans Section 2.05 Prepayments Section 2.06 Termination or Reduction of Commitments Section 2.07 Repayment of Loans Section 2.08 Interest Section 2.09 Fees Section 2.10 Computation of Interest and Fees Section 2.11 Evidence of Indebtedness Section 2.12 Payments Generally Section 2.13 Sharing of Payments Section 2.14 Incremental Facilities Section 2.15 Extensions of Term Loans and Revolving Credit Commitments Section 2.16 Refinancing Amendments Section 2.17 Defaulting Lenders

60 60 62 71 74 79 80 81 81 82 82 83 85 86 90 93 94

ARTICLE 3 TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY Section 3.01 Taxes Section 3.02 Illegality Section 3.03 Inability to Determine Rates Section 3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans Section 3.05 Funding Losses Section 3.06 Matters Applicable to All Requests for Compensation Section 3.07 Replacement of Lenders Under Certain Circumstances

97 99 99 99 101 101 102

Section 3.08 Survival

103 -iARTICLE 4 CONDITIONS PRECEDENT

Section 4.01 Section 4.02

Conditions to Initial (Closing Date) Credit Extension Conditions to All Credit Extensions After the Escrow Release Date

104 105

ARTICLE 5 REPRESENTATIONS AND WARRANTIES Section 5.01 Section 5.02 Section 5.03 Section 5.04 Section 5.05 Section 5.06 Section 5.07 Section 5.08 Section 5.09 Section 5.10 Section 5.11 Section 5.12 Section 5.13 Section 5.14 Section 5.15 Section 5.16 Section 5.17 Section 5.18 Section 5.19 Section 5.20

Existence, Qualification and Power; Compliance with Laws Authorization; No Contravention Governmental Authorization; Other Consents Binding Effect Financial Statements; No Material Adverse Effect Litigation Ownership of Property; Liens Environmental Compliance Taxes ERISA Compliance Subsidiaries; Equity Interests Margin Regulations; Investment Company Act Disclosure Intellectual Property; Licenses, Etc. Solvency Perfection, Etc. Compliance with Laws Generally Labor Matters Senior Debt Escrow Release Date

106 107 107 107 108 108 109 109 110 110 111 111 111 111 112 112 112 112 112 112

ARTICLE 6 AFFIRMATIVE COVENANTS Section 6.01 Section 6.02 Section 6.03 Section 6.04 Section 6.05 Section 6.06 Section 6.07 Section 6.08 Section 6.09 Section 6.10 Section 6.11 Section 6.12 Section 6.13 Section 6.14 Section 6.15 Section 6.16

Financial Statements Certificates; Other Information Notices Payment of Obligations Preservation of Existence, Etc. Maintenance of Properties Maintenance of Insurance Compliance With Laws Books and Records Inspection Rights Use of Proceeds Covenant to Guarantee Obligations and Give Security Compliance with Environmental Laws Further Assurances Designation of Subsidiaries Maintenance of Ratings

113 114 116 117 117 117 117 118 118 118 118 119 121 121 122 122

Section 6.17 Section 6.18

Escrow Release Credit Documents Post-Closing Matters

122 124

LIST OF EXHIBITS AND SCHEDULES

SCHEDULES Schedule 1.1 Schedule 1.2 Schedule 1.3 Schedule 4.5 Schedule 4.15(h) Schedule 5.1 Schedule 5.2(a) Schedule 5.2(b) Schedule 5.4 Schedule 5.6 Schedule 5.8(b) Schedule 5.8(d) Schedule 5.9 Schedule 5.10 Schedule 5.27 Schedule 5.30

Permitted Indebtedness Permitted Encumbrances Permitted Investments Equipment and Inventory Locations; Place of Business, Chief Executive Office, Real Property Deposit and Investment Accounts Consents States of Qualification and Good Standing Subsidiaries Federal Tax Identification Number Prior Names Litigation Plans Intellectual Property, Source Code Escrow Agreements Licenses and Permits Equity Interests Material Contracts

EXHIBITS A-1 A-2 A-3 B C-1 C-2 D E F G H I J K L M N O P Q R S-1 S-2 S-3

Form of Committed Loan Notice Form of Prepayment Notice Form of Request for L/C Issuance Form of Swing Line Loan Notice Form of Term Note Form of Revolving Credit Note Form of Compliance Certificate Form of Assignment and Assumption Form of Guaranty Form of Security Agreement Form of Joinder Agreement Form of L/C Issuer Agreement Form of Administrative Questionnaire Form of Specified Discount Prepayment Notice Form of Specified Discount Prepayment Response Form of Discount Range Prepayment Notice Form of Discount Range Prepayment Offer Form of Solicited Discounted Prepayment Notice Form of Solicited Discounted Prepayment Offer Form of Acceptance and Prepayment Notice Form of Affiliated Lender Assignment and Assumption US Tax Certificate (For Non-US Lenders that are not Partnerships For US Federal Income Tax Purposes) US Tax Certificate (For Non-US Lenders that are Partnerships For US Federal Income Tax Purposes) US Tax Certificate (For Non-US Participants that are not Partnerships For US Federal Income Tax Purposes)

CREDIT AGREEMENT This CREDIT AGREEMENT (this “Agreement”) is entered into as of November 23, 2010, among Dunkin’ Finance Corp., a Delaware corporation (the “Initial Borrower”), and, upon the effectiveness of its joiner to this Agreement, Dunkin’ Brands Holdings, Inc., a Delaware corporation (“Holdings”), and, upon the Assumption, Dunkin’ Brands, Inc., a Delaware corporation (“DBI”), each lender from time to time party hereto (collectively, the “Lenders” and individually, each a “Lender”), and Barclays Bank PLC, as Administrative Agent, Swing Line Lender and L/C Issuer. PRELIMINARY STATEMENTS The Initial Borrower has requested that (a) the Term B Lenders make Term B Loans to the Initial Borrower in an aggregate principal amount of $1,250,000,000, and (b) from time to time, the Revolving Credit Lenders lend to the Initial Borrower and the Borrower and the L/C Issuer issue Letters of Credit for the account of the Borrower and its Restricted Subsidiaries under a $100,000,000 Revolving Credit Facility. Concurrently with the initial funding under this Agreement on the Closing Date, the Initial Borrower will enter into the Senior Secured Credit Facilities Escrow and Security Agreement with the Administrative Agent and the Escrow Agent, pursuant to which (i) the Lenders will deposit with the Escrow Agent into the Escrow Account the proceeds of the Term Loans made on the Closing Date and (ii) the Initial Borrower will deposit with the Escrow Agent into the Escrow Account certain additional amounts necessary to pay accrued and unpaid interest to, but excluding, the Special Mandatory Prepayment Date. The funds in the Escrow Account will be released in accordance with the terms of the Senior Secured Credit Facilities Escrow and Security Agreement, and together with (i) a portion of DBI’s cash on hand, (ii) the proceeds of the issuance of the Senior Notes and (iii) the proceeds of Revolving Credit Loans made on the Escrow Release Date, will be used by the Borrower to finance the repayment of all amounts outstanding under the Securitization Notes, to pay a special dividend to Holdings (the proceeds of which will then be used by Holdings to pay a subsequent special dividend to Parent) and pay the Transaction Expenses. The proceeds of Revolving Credit Loans made after the Closing Date will be used for working capital and other general corporate purposes of the Borrower and its Subsidiaries, including the financing of Permitted Acquisitions. Swing Line Loans and Letters of Credit will be used for general corporate purposes of the Borrower and its Subsidiaries. Concurrently with the release of funds from the Escrow Account on the Escrow Release Date, the Initial Borrower and the Borrower shall execute and deliver the Borrower Assignment and Assumption Agreement pursuant to which, among other things, the Initial Borrower shall assign and transfer to DBI all of its rights and obligations as the Borrower under the Loan Documents (such assignment, the “Assumption”). Immediately following the Assumption and upon the redemption of the Existing Securitization Notes and discharge of the Existing Securitization Indenture on the Escrow Release Date, the Initial Borrower will be merged with and into DBI, with DBI being the surviving entity.

The applicable Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to so issue Letters of Credit, in each case, on the terms and subject to the conditions set forth in this Agreement. In consideration of the mutual covenants and agreements contained in this Agreement, the parties hereto covenant and agree as follows: ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “Acceptable Discount” has the meaning specified in Section 10.07(l)(iv)(B). “Acceptable Prepayment Amount” has the meaning specified in Section 10.07(l)(iv)(C). “Acceptance and Prepayment Notice” means an irrevocable written notice from a Company Party accepting Solicited Discounted Prepayment Offers to make a Discounted Term Loan Prepayment at the Acceptable Discount specified therein pursuant to Section 10.07(l)(iv) substantially in the form of Exhibit Q. “Acceptance Date” has the meaning specified in Section 10.07(l)(iv)(B). “Accepting Lender” has the meaning specified in Section 2.05(b)(vii). “Ad Fund Cash” means all amounts held in segregated accounts established solely for advertising activities pursuant to agreements with franchisees, including by Ad Fund Special Subsidiaries. “Ad Fund Special Subsidiary” means any Subsidiary that (a) is an administrator or holder of cash held in segregated accounts established solely for advertising activities pursuant to agreements with franchisees and (b) holds no assets other than the accounts described in clause (a) and conducts no activities other than administering and holding such accounts and activities reasonably related to the foregoing, including DB AdFund Administrator LLC. “Administrative Agent” means the United States branch of Barclays Bank PLC in its capacity as administrative agent under any of the Loan Documents, or any permitted successor administrative agent, provided that, in all events, any payments from the Loan Parties to the Administrative Agent shall be made to a “U.S. branch” of the Administrative Agent that is treated as a “U.S. person” for purposes of Treasury Regulations 1.1441-1. “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify in writing to the Borrower, the Lenders and the L/C Issuers. 2

“Borrower Offer of Specified Discount Prepayment” means the offer by a Company Party to make a voluntary prepayment of Term Loans at a specified discount to par pursuant to Section 10.07(l)(ii). “Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by a Company Party of offers for, and the corresponding acceptance by a Company Party to make, a voluntary prepayment of Term Loans at a specified range at a discount to par pursuant to Section 10.07(l)(iii). “Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by a Company Party of offers for, and the subsequent acceptance, if any, by the Company Party to make, a voluntary prepayment of Term Loans at a discount to par pursuant to Section 10.07(l)(iv). “Borrowing” means a Revolving Credit Borrowing, a New Revolving Credit Borrowing, a Swing Line Borrowing, a Term Borrowing, or a New Term Borrowing, as the context may require. “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in when used in relation to the Borrower, the state where the Administrative Agent’s Office is located, and if such day relates to any interest rate settings as to a Eurodollar Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market. “Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP. “Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases on a balance sheet of the lessee. “Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) during such period in respect of licensed or purchased software or internally developed software and software enhancements that are or are required to be reflected as capitalized costs on the consolidated balance sheet in accordance with GAAP. “Cash Collateral” has the meaning specified in Section 2.03(g). “Cash Collateral Account” means a deposit account at a commercial bank selected by the Administrative Agent in the name of the Administrative Agent and under the sole dominion and control of the Administrative Agent, and otherwise established in a manner satisfactory to the Administrative Agent. 6

“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests of Holdings), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable, the termination of the Commitments and the termination of, or backstop on terms reasonably satisfactory to the Administrative Agent of, all outstanding Letters of Credit), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests of Holdings), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninetyone (91) days after the Latest Maturity Date; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Holdings, the Borrower or the Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by Holdings, the Borrower or the Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations. “Dollar” and “$” mean lawful money of the United States. “Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia. “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) an Affiliated Lender to the extent contemplated by Section 10.07(k); and (e) any other Person (other than a natural person) approved by (i) the Administrative Agent, (ii) in the case of any assignment of a Revolving Credit Commitment, the L/C Issuer and the Swing Line Lender, and (iii) unless an Event of Default has occurred and is continuing under Section 8.01(a), Section 8.01(f) or Section 8.01(g)(i), the Borrower (each such approval not to be unreasonably withheld or delayed); provided, that under no circumstances shall any Competitor be an assignee without the prior written consent of the Borrower (which may be withheld in the Borrower’s sole discretion). “Eligible Equity Proceeds” means the Net Cash Proceeds received by Holdings or any direct or indirect parent thereof from any sale or issuance of any Equity Interests (other than Disqualified Equity Interests) or from any capital contributions in respect of Equity Interests (other than Disqualified Equity Interests) to the extent such Net Cash Proceeds or capital contributions are directly or indirectly contributed to, and actually received by, the Borrower as cash common equity (or, if only a portion thereof is so contributed and received, to the extent of such portion). “Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil and subsurface strata, and natural resources, such as wetlands, flora and fauna. 20

ARTICLE 2 THE COMMITMENTS AND CREDIT EXTENSIONS Section 2.01 The Loans. (a) The Term Borrowings. Subject to the terms and conditions set forth herein, each Term B Lender severally agrees to make a loan on the Closing Date to the Borrower (each, a “Term B Loan” and, collectively, the “Term B Loans”) in an amount in US Dollars equal to such Term B Lender’s Term B Commitment. Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. (b) The Revolving Credit Borrowings. Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans in US Dollars to the Borrower (each such loan, a “Revolving Credit Loan”) from time to time, on any Business Day during the Revolving Credit Commitment Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided that after giving effect to any Revolving Credit Borrowing, (i) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans, shall not exceed such Lender’s Revolving Credit Commitment and (ii) the aggregate amount of Revolving Credit Loans made on the Escrow Release Date shall not exceed $25,000,000. Within the limits of each Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(b), prepay under Section 2.05, and reborrow under this Section 2.01(b). Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type. Section 2.02 Borrowings, Conversions and Continuations of Loans. (a) Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Type to the other, and each continuation of 60