EXHIBIT 10.44
FOURTH AMENDMENT
THIS FOURTH AMENDMENT dated as of September 5, 2003 (this "Amendment") is
among XXXXXX'X GRAND ICE CREAM, INC. (the "Company"), XXXXXX'X GRAND ICE CREAM
HOLDINGS, INC. ("New Dreyer's"), and each of the institutions which is a
signatory to this Amendment (collectively, the "Noteholders").
WHEREAS, the Company, New Dreyer's and the Noteholders are parties to an
Amended and Restated Note Purchase Agreement dated June 6, 1996, as amended and
restated as of June 27, 2003 (the "Note Purchase Agreement"; capitalized terms
used but not otherwise defined herein have the respective meanings given to them
in the Note Purchase Agreement); and
WHEREAS, the parties hereto have agreed to amend the Note Purchase
Agreement as more fully set forth below;
NOW, THEREFORE, for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto agree as
follows:
SECTION 1. AMENDMENTS. Subject to the satisfaction of the applicable
conditions precedent set forth in Section 3, the Company, New Dreyer's, and the
Required Holders agree that, on the Fourth Amendment Effective Date (as defined
below), the Note Purchase Agreement shall be amended as set forth below.
1.1 Addition of definition of Adjusted EBITDA. The following definition of
"Adjusted EBITDA" is added to Schedule B in appropriate alphabetical sequence:
"Adjusted EBITDA" means, for any Person for any period, such
Person's consolidated earnings before interest, taxes, depreciation and
amortization of non-cash charges, all determined on a consolidated basis
and in accordance with GAAP for such period, plus, in the case of New
Dreyer's and the Company, to the extent deducted in determining
consolidated earnings for such period, (a) the first $110,000,000 of
merger-related expenses incurred in connection with the Transaction, (b)
the first $103,000,000 of non-cash expenses related to management stock
option expense and the accretion of management and employee stock options
in connection with the Transaction, (c) the first $70,000,000 goodwill
impairment charges taken by NICC in the quarter ending September 29, 2002,
(d) the first $23,300,000 of asset write-downs taken by NICC in the six
months ended June 28, 2003 in connection with, among other things, the
sale of assets to CoolBrands International, Inc. and (e) the first
$14,400,000 in non-cash charges taken by the Company in the quarter ended
June 28, 2003 related to the expensing of "in-process" research and
development costs or to losses on brands sold to CoolBrands International,
Inc.
1.2 Effect of Transaction on Accounting Principles. The following clause
(e) is added at the end of Section 10.4.
(e) Notwithstanding any other provision of this Agreement to the
contrary, all financial computations and similar requirements in this
Agreement relating to the second quarter of 2003 and any prior periods
shall be made based upon the combined results of the Company and NICC
(with appropriate intercompany eliminations).
1.3 Replacement of EBITDA with Adjusted EBITDA. The term "EBITDA" is
replaced by the term "Adjusted EBITDA" in the following places:
(a) Twice in the definition of "Funded Debt/EBITDA Ratio" (including in
the defined term itself).
(b) Twice in Section 10.4(b) (including in the caption).
(c) Once in Section 10.4(d).
1.4 Replacement of "Funded Debt/EBITDA Ratio" with "Funded Debt/Adjusted
EBITDA Ratio". Each reference in the Notes to the term "Funded Debt/EBITDA
Ratio" is replaced by the term "Funded Debt/Adjusted EBITDA Ratio."
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Company and New Dreyer's
represent and warrant to the Noteholders that (a) the representations and
warranties made in Section 5 of the Note Purchase Agreement as amended hereby
(as so amended, the "Amended Note Purchase Agreement") are true and correct on
and as of the Fourth Amendment Effective Date with the same effect as if made on
and as of such date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they were true and correct as
of such earlier date); (b) on and as of the Fourth Amendment Effective Date (and
after giving effect hereto), no Default or Event of Default will exist; (c) the
execution and delivery by the Company and New Dreyer's of this Amendment and the
performance by the Company and New Dreyer's of their respective obligations
under the Amended Note Purchase Agreement (i) are within the corporate powers of
the Company and New Dreyer's, (ii) have been duly authorized by all necessary
corporate action, (iii) have received all necessary governmental approval and
(iv) do not and will not contravene or conflict with any provision of law or of
any agreement or other contract, or any judgment, order or decree, which is
binding upon the Company or New Dreyer's; and (d) upon the effectiveness hereof,
the Amended Note Purchase Agreement will be the legal, valid and binding
obligation of the Company and New Dreyer's, enforceable against the Company and
New Dreyer's in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability.
SECTION 3. EFFECTIVENESS. The amendments set forth in Section 1 shall
become effective on the date (the "Fourth Amendment Effective Date") on which
the Noteholders have received (a) counterparts of this Amendment executed by the
Company, New Dreyer's and the Required Holders (it being understood that any
party hereto may rely on facsimile confirmation of the execution of a
counterpart hereof by any other party hereto); and (b) a confirmation signed by
all Guarantors.
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SECTION 4. MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. As amended hereby, the Note Purchase
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the Fourth Amendment Effective Date, all
references in the Note Purchase Agreement, the Notes and any similar document to
the "Note Purchase Agreement" or similar terms shall refer to the Amended Note
Purchase Agreement.
4.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
4.3 Expenses. The Company agrees to pay the reasonable costs and expenses
of the Noteholders (including reasonable attorneys' fees) in connection with the
preparation, execution and delivery of this Amendment.
4.4 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of California applicable to contracts made and
to be performed entirely within such State.
4.5 Successors and Assigns. This Amendment shall be binding upon the
Company, New Dreyer's and the Noteholders and their respective successors and
assigns, and shall inure to the benefit of the Company and the Noteholders and
the successors and assigns of the Noteholders.
[SIGNATURES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
XXXXXX'X GRAND ICE CREAM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
XXXXXX'X GRAND ICE CREAM HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
S-1
GUARANTOR CONFIRMATION
The undersigned Guarantors hereby agree and consent, as of the date first
above written, to the terms and provisions of the above Fourth Amendment, and
agree that the Guaranty, dated as of June 27, 2003, executed by the undersigned
Guarantors shall remain in full force and effect notwithstanding the provisions
of such Fourth Amendment.
XXXXXX'X GRAND ICE CREAM HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
NESTLE ICE CREAM COMPANY, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
EDY'S GRAND ICE CREAM
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
