Exhibit 10.43
FOURTH AMENDMENT
THIS FOURTH AMENDMENT dates as of August 27, 2003 (this "Amendment") is
among XXXXXX'X GRAND ICE CREAM, INC. (the "Company"), XXXXXX'X GRAND ICE CREAM
HOLDINGS, INC. ("New Dreyer's"), various financial institutions and BANK OF
AMERICA, N.A., as Agent (in such capacity, the "Agent").
WHEREAS, the Company, New Dreyer's, various financial institutions and the
Agent are parties to a Credit Agreement dated as of July 25, 2000 (as
previously amended, the "Credit Agreement"; capitalized terms used but not
otherwise defined herein have the respective meanings given to them in the
Credit Agreement); and
WHEREAS, the parties hereto have agreed to amend the Credit 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, the
Majority Banks and the Agent agree that, on the Fourth Amendment Effective Date
(as defined below), the Credit 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 Section 1.01 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 (c) is added at the end of Section 1.03.
(c) 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); provided that so long as the Agent has not received
(by facsimile or otherwise) counterparts this Amendment signed by all Banks, the
existing definition of Funded Debt/EBITDA Ratio shall continue to be used in
Schedule 1.1 (the Pricing Schedule) and for purposes of calculating pricing in
the Compliance Certificate.
(b) Once in Section 8.14.
(c) Twice in Section 8.15 (including in the caption).
1.4 Amendment of Pricing Schedule. Schedule 1.1 (the Pricing Schedule) is
amended by substituting Schedule 1.1 hereto therefore.
1.5 Amendment of Compliance Certificate. Exhibit A (the form of Compliance
Certificate) is amended by substituting Exhibit A hereto therefore.
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Company and New Dreyer's
represent and warrant to the Agent and the Banks that (a) the representations
and warranties made in Article VI of the Credit Agreement as amended hereby (as
so amended, the "Amended Credit 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 Credit 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 judgement,
order or decree, which is binding upon the Company or New Dreyer's; and (d)
upon the effectiveness hereof, the Amended Credit 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 Agent has received
2
(a) counterparts of this Amendment executed by the Company, New Dreyer's and the
Majority Banks (it being understood that the Agent may rely on facsimile
confirmation of the execution of a counterpart hereof by any party hereto); and
(b) a confirmation signed by all Guarantors.
SECTION 4. MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. As amended hereby, the Credit 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
Credit Agreement, the Notes, each other Loan Document and any similar document
to the "Credit Agreement" or similar terms shall refer to the Amended Credit
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 Agent (including Attorney Costs) 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 Illinois 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, the Banks and the Agent and their respective successors
and assigns, and shall inure to the benefit of the Company, the Banks and the
Agent and the successors and assigns of the Banks and the Agent.
[SIGNATURES TO FOLLOW]
3
Delivered at Chicago, Illinois, as of the day and year first above written.
XXXXXX'X GRAND ICE CREAM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------
Title: Treasurer
---------------------------------
XXXXXX'X GRAND ICE CREAM HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------
Title: Treasurer
---------------------------------
Fourth Amendment to Credit Agreement
BANK OF AMERICA, N.A., as Agent
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as a Bank
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Fourth Amendment to Credit Agreement
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxxx
--------------------------
Title: VP
--------------------------
XXXXXX TRUST AND SAVINGS BANK
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
COBANK, ACB
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
Fourth Amendment to Credit Agreement
UNION BANK OF CALIFORNIA, N.A.
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
--------------------------
Title: Vice President
--------------------------
COBANK, ACB
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
Fourth Amendment to Credit Agreement
UNION BANK OF CALIFORNIA, N.A.
By:
------------------------
Name:
------------------------
Title:
------------------------
XXXXXX TRUST AND SAVINGS BANK
By:
------------------------
Name:
------------------------
Title:
------------------------
COBANK, ACB
By: /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
------------------------
Title: Senior Vice President
------------------------
SUNTRUST BANK
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------
Title: Director
------------------------
COOPERATIEVE CENTRALE
RAIFFEISENBOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL" NEW YORK BRANCH
By:
------------------------
Name:
------------------------
Title:
------------------------
By:
------------------------
Name:
------------------------
Title:
------------------------
FARM CREDIT SERVICES OF MINNESOTA
VALLEY, PCA, dba FCS Commercial Finance
Group
By:
------------------------
Name:
------------------------
Title:
------------------------
THE BANK OF NEW YORK
By:
------------------------
Name:
------------------------
Title:
------------------------
SUNTRUST BANK
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL" NEW YORK BRANCH
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
----------------------------------
Title: Executive Director
---------------------------------
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
----------------------------------
Title: Managing Director
---------------------------------
FARM CREDIT SERVICES OF MINNESOTA
VALLEY, PCA, dba FCS Commercial Finance
Group
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE BANK OF NEW YORK
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Fourth Amendment to Credit Agreement
SUNTRUST BANK
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL" NEW YORK BRANCH
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FARM CREDIT SERVICES OF MINNESOTA
VALLEY, PCA, dba FCS Commercial Finance
Group
By: /s/ Xxxxx X. Grafling
------------------------------------
Name: Xxxxx X. Grafling
----------------------------------
Title: SVP - Syndicated Finance
---------------------------------
THE BANK OF NEW YORK
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Fourth Amendment to Credit Agreement
SUNTRUST BANK
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL" NEW YORK BRANCH
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FARM CREDIT SERVICES OF MINNESOTA
VALLEY, PCA, dba FCS Commercial Finance
Group
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
----------------------------------
Title: Managing Director
---------------------------------
Fourth Amendment to Credit Agreement
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
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Treasurer
---------------------------------
NESTLE ICE CREAM COMPANY, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Treasurer
---------------------------------
EDY'S GRAND ICE CREAM
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Treasurer
---------------------------------
Guarantor Confirmation
SCHEDULE 1.1
PRICING SCHEDULE
The Base Rate Margin, the Offshore Rate Margin, the Commitment Fee Rate and the
LC Fee Rate, respectively, shall be determined in accordance with the table
below and the other provisions of this Schedule 1.1.
LEVEL I LEVEL II LEVEL III XXXXX XX XXXXX X XXXXX XX XXXXX XXX
Base Rate
Margin.......... 0.000% 0.000% 0.250% 0.500% 0.875% 1.125% 1.375%
------ ------ ------ ------ ------ ------ ------
Offshore Rate
Margin.......... 0.750% 1.000% 1.250% 1.500% 1.875% 2.125% 2.375%
------ ------ ------ ------ ------ ------ ------
Commitment
Fee Rate........ 0.250% 0.300% 0.350% 0.375% 0.450% 0.500% 0.500%
------ ------ ------ ------ ------ ------ ------
LC Fee Rate....... 0.750% 1.000% 1.250% 1.500% 1.875% 2.125% 2.375%
------ ------ ------ ------ ------ ------ ------
Level I applies when the Funded Debt/EBITDA Ratio is less than 1.0 to 1.
Level II applies when the Funded Debt/EBITDA Ratio is equal to or greater
than 1.0 to 1 but less than 1.5 to 1.
Level III applies when the Funded Debt/EBITDA Ratio is equal to or greater
than 1.5 to 1 but less than 2.0 to 1.
Level IV applies when the Funded Debt/EBITDA Ratio is equal to or greater
than 2.0 to 1 but less than 2.5 to 1.
Level V applies when the Funded Debt/EBITDA Ratio is equal to or greater
than 2.5 to 1 but less than 3.0 to 1.
Level VI applies when the Funded Debt/EBITDA Ratio is equal to or greater
than 3.0 to 1 but less than 3.5 to 1.
Level VII applies when the Funded Debt/EBITDA Ratio is equal to or greater
than 3.5 to 1.
Beginning on the Third Amendment Effective Date, Level VII shall apply.
The Level shall be adjusted (to the extent applicable), on November 26, 2003
and, thereafter, 60 days (or, in the case of the last fiscal quarter of any
fiscal year of New Dreyer's, 100 days) after the end of each fiscal quarter
based on the Funded Debt/EBITDA Ratio as of the last day of such fiscal
quarter; provided that if New Dreyer's fails to deliver the financial
statements required by Section 7.01(a) or 7.01(b), as applicable, and the
related certificate required by Section 7.02(b) by the 65th day (or, if
applicable, the 105th day) after any fiscal quarter, Level VII shall apply
until such financial statements are delivered.
1.1-1
After all Banks have signed the Fourth Amendment to the Credit Agreement,
"Funded Debt/EBITDA Ratio" will be changed to "Funded Debt/Adjusted EBITDA
Ratio" throughout this Schedule 1.1.
1.1-2
EXHIBIT A
XXXXXX'X GRAND ICE CREAM, INC.
COMPLIANCE CERTIFICATE
Financial Statement Date: _____________, 200__
Please refer to the Credit Agreement dated as of July 25, 2000 (as amended
through the Third Amendment thereto dated as of April 14, 2003 and as further
amended or otherwise modified from time to time, the "Agreement") among Xxxxxx'x
Grand Ice Cream, Inc., a Delaware corporation (the "Company"), Xxxxxx'x Grand
Ice Cream Holdings, Inc., a Delaware corporation ("New Dreyer's"), various
financial institutions (the "Banks"), Union Bank of California, N.A., as
syndication agent, and Bank of America, N.A., as administrative agent for the
Banks (in such capacity, the "Agent"). Unless otherwise defined herein,
capitalized terms used herein have the respective meanings assigned to them in
the Agreement.
The undersigned Responsible Officer hereby certifies as of the date hereof that
(i) he/she is the ______________ of New Dreyer's, (ii) as such, he/she is
authorized to execute and deliver this Certificate to the Banks and the Agent on
behalf of New Dreyer's and (iii):
[USE THE FOLLOWING PARAGRAPH IF THIS CERTIFICATE IS DELIVERED IN CONNECTION
WITH THE FINANCIAL STATEMENTS REQUIRED BY SUBSECTION 7.01(a) OF THE AGREEMENT.]
1. Attached as Schedule 1 hereto are (a) a true and correct copy of the
audited consolidated balance sheet of New Dreyer's and its Subsidiaries as at
the end of the fiscal year ended ____________________ and (b) the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, accompanied by the opinion of the
Independent Auditor which states that such consolidated financial statements
present fairly, in all material respects, the financial position for the periods
indicated in conformity with GAAP applied on a basis consistent with prior
years. Such opinion is not qualified or limited because of a restricted or
limited examination by the Independent Auditor of any material portion of the
records of New Dreyer's or any Subsidiary.
OR
[USE THE FOLLOWING PARAGRAPH IF THIS CERTIFICATE IS DELIVERED IN CONNECTION
WITH THE FINANCIAL STATEMENTS REQUIRED BY SUBSECTION 7.01(b) OF THE AGREEMENT.]
1. Attached as Schedule 1 hereto are (a) a true and correct copy of the
unaudited consolidated balance sheet of New Dreyer's and its Subsidiaries as of
the end of the fiscal quarter ended ___________________, _______, and (b) the
related unaudited consolidated statements of income, shareholders' equity and
cash flows for the period commencing on the first day and ending on the last day
of such quarter, and such financial statements were prepared in accordance with
GAAP (subject only to ordinary, good faith year-end audit adjustments and the
absence of footnotes) and fairly present, in all material respects, the
financial position and the results of operations of New Dreyer's and its
Subsidiaries.
A-1
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and conditions (financial or otherwise) of
New Dreyer's and its Subsidiaries during the accounting period covered by the
attached financial statements.
3. To the best of the undersigned's knowledge, New Dreyer's and its
Subsidiaries have, during such period, observed, performed or satisfied all of
the covenants and other agreements, and satisfied every condition in the
Agreement, to be observed, performed or satisfied by New Dreyer's and its
Subsidiaries, and the undersigned has no knowledge of any Default or Event of
Default.
4. The financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this Certificate.
All amounts and ratios refer to the financial statements attached as Schedule 1
hereto and are determined in accordance with the specifications set forth in
the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________, ____.
XXXXXX'X GRAND ICE CREAM HOLDINGS, INC.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Date:
-----------------------------------
A-2
Schedule 1
To
Compliance Certificate
[Attach applicable financial statements]
A-3
Schedule 2
to Compliance Certificate
Financial Covenant Analyses and Information
Date: ________________
For the fiscal quarter ended: __________
Section 8.01 - Limitation on Liens
1. Section 8.01(g) Aggregate amount of judgment or judicial attachment
liens falling within this Section:
Permitted: $5,000,000 Actual: $__________
2. Section 8.01(i) Aggregate principal amount secured by Liens on assets
of corporations which became Subsidiaries after the date of the Agreement and
falling within this Section:
Permitted: $10,000,000 Actual: $__________
3. Section 8.01(j) Principal amount of indebtedness secured by purchase
money security interests in property held by the Company and its Subsidiaries
in the ordinary course of business and falling within this Section:
Permitted: $15,000,000 Actual: $__________
4. Section 8.01(m) Principal amount of indebtedness secured by Liens
falling within this Section:
Permitted: $2,000,000 Actual: $__________
Section 8.02 Disposition of Assets
Section 8.02(h) Dispositions falling within this Section:
Permitted: $10,000,000 Actual: $__________
Section 8.04 Loans and Investments
1. Section 8.04(d) Investments under subsections 8.04(d) shall not at any
time exceed $75,000,000 during the term of this Agreement.
Actual: $____________
A-4
2. Section 8.04(d) Investments falling within the proviso:
Aggregate amount permitted at any time: $15,000,000
Actual: $
--------------
Section 8.05 Limitation on Indebtedness
1. Section 8.05(h) Aggregate amount of unsecured Indebtedness of
Subsidiaries
Permitted: $15,000,000 Actual: $
-------------
2. Section 8.05(i) Aggregate amount of Synthetic Lease Obligations
Permitted: $30,000,000 Actual: $
-------------
3. Section 8.05(j) Aggregate amount of Indebtedness which ranks pari
passu with the Obligations (excludes Nestle Credit Arrangements)
Permitted: $100,000,000 Actual: $
-------------
Section 8.08 Contingent Obligations
1. Section 8.08(d) Aggregate amount of Contingent Obligations of Grand
Soft Capital Company and Grand Soft Equipment Company with respect to leases
sold or entered into pursuant to the Grand Soft Program:
Permitted: $10,000,000 Actual: $
-------------
Company's Guaranty Obligations with respect to such Contingent
Obligations:
Permitted: $10,000,000 Actual: $
-------------
2. Section 8.08(g) Guaranty Obligations falling within this Section:
Permitted: $10,000,000 Actual: $
-------------
Section 8.10 Lease Obligations
1. Section 8.10(b) Aggregate amount of rent and other charges to be paid
under operating leases falling under Section 8.10(b) (without discounting to
present value and without regard to any options to extend):
A-5
Permitted: $20,000,000 Actual:$_________
2. Section 8.10(c)(3) Aggregate amount of rent and other charges to be
paid under leases falling under Section 8.10(c)(3) (without discounting to
present value and without regard to any options to extend):
Permitted: $5,000,000 Actual:$_________
3. Section 8.10(d) Capital leases falling under Section 8.10(d):
Permitted: $30,000,000 Actual:$_________
Section 8.11 Restricted Payments
1. Section 8.11(b) Aggregate amount of cash dividend payments to common
stockholders.
(i) $0.24 per share
$________________
(ii) 30% of New
Dryer's
consolidated net
income for the
preceding fiscal
year.
$_________________
Permitted: The greater of (i) Actual:$_________
and (ii)
$_________________
Section 8.13 Consolidated Net Worth
1. (a) Base amount $2,000,000,000
(b) 75% of New Dryer's consolidated net income
for each fiscal quarter beginning with the fiscal
quarter ending on __________, 2003 (with no
deduction for losses) $______________
(c) 75% of Net Issuance Proceeds of any stock
offerings (excluding stock issuances under
A-6
Section 8.11(c)) $_______________
2. Sum of 1(a) plus 1(b) plus 1(c) (minimum required
Consolidated Net Worth) $_______________
3. Actual Consolidated Net Worth) $_______________
A-7
Section 8.14 Minimum Fixed Charge Coverage Ratio
Minimum Fixed Charge Coverage Ratio cannot be less than (i) 2.25 as of the last
day of the first six fiscal quarters ending after the Third Amendment Effective
Date and (ii) 3.00 as of the last day of any fiscal quarter thereafter.
The following computations are to be made for the period consisting of
four consecutive fiscal quarters ending on the last day of the fiscal quarter
first above written on page 1 of this Schedule.
1. (a) Consolidated earnings $___________
(b) Interest $___________
(c) Taxes $___________
(d) Depreciation $___________
(e) Amortization $___________
(f) The first $110,000,000 of merger-related $___________
expenses incurred in connection with the
Transaction (to the extent deducted in
determining consolidated earnings for the
current period)
(g) The first $103,000,000 of non-cash $___________
expenses related to the accretion of
management and employee stock options in
connection with the Transaction to the extent
deducted in determining consolidated earnings
during the current period
(h) the first $70,000,000 of goodwill $___________
impairment charges taken by NICC in the
quarter ending September 29, 2002
(i) 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.
A-8
(j) 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.
(k) Adjusted EBITDA (total of 1(a) through $
1(j)) -----------
2. Operating lease expenses $
-----------
3. Synthetic Lease Payments $
(without duplication to 2 above) -----------
4. Sum of 1(k) + 2 + 3 $
-----------
5. Cash interest expense $
-----------
6. Operating lease expense $
-----------
7. Synthetic Lease Payments $
(without duplication to 6 above) -----------
8. Cash dividends $
-----------
9. Current portion, as of the last day of such $
period, of all principal of Indebtedness -----------
(excluding Indebtedness under (i) the Loan
Documents and (ii) the Nestle Credit
Arrangements)
10. Sum of 5 + 6 + 7 + 8 + 9 $
-----------
11. Ratio of 4 to 10 to
---- ----
12. Allowed to
---- ----
Section 8.15 - New Dreyer's Funded Debt/Adjusted EBITDA Ratio
-------------------------------------------------------------
New Dreyer's Funded Debt/Adjusted EBITDA Ratio cannot be greater than (i) 4.00
at any time during the first 18 months following the Third Amendment Effective
Date or (ii) 3.00 thereafter:
A-9
(a) Funded Debt of New Dreyer's (with $_______
adjustments permitted under definition of
Funded Debt)
(b) Adjusted EBITDA of New Dreyer's $_______
(c) Ratio of (a) to (b): ___ to ___
Pricing Schedule*
New Dreyer's Funded Debt/EBITDA Ratio as of the end of the fiscal quarter for
which financial statements are delivered herewith:
(a) Funded Debt of New Dreyer's (with $_______
adjustments permitted under definition of
Funded Debt)
(b) EBITDA of New Dreyer's (sum of items $_______
1(a) through 1(g) under Section 8.14
calculation)
(c) Ratio of (a) to (b): ___ to ___
*After all Banks have signed the Fourth Amendment to the Credit Agreement,
substitute "Adjusted EBITDA" for "EBITDA" in this calculation.
A-10
