EXHIBIT 10.1
SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of October 18, 2002 (this "Amendment") is
among XXXXXX'X GRAND ICE CREAM, INC. (the "Company"), various financial
institutions and BANK OF AMERICA, N.A., as Agent for the Banks (in such
capacity, the "Agent").
WHEREAS, the Company, various financial institutions (the "Banks") 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 desire to amend the Credit Agreement as
hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto agree as
follows:
1.1 AMENDMENTS. Effective on (and subject to the occurrence of) the
Amendment Effective Date (as defined below), the Credit Agreement is amended as
set forth below:
(a) The definition of "EBITDA" is amended in its entirety to read as
follows:
"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 the
Company for any period commencing with the fiscal quarter ended June 29,
2002, all merger-related transaction expenses (as so captioned on the
Company's financial statements and not to exceed $12,000,000 in the
aggregate) incurred in connection with the acquisition by the Company of
Nestle Ice Cream Company, LLC, to the extent deducted in determining
EBITDA for such period.
(b) The definition of "A" in Section 8.14(b) is amended in its
entirety to read as follows:
"A" means the sum for such period of EBITDA of the Company plus
operating lease expenses plus, without duplication, all payments
under Synthetic Leases; and.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Banks that (a) the representations and warranties
made in Article VI of the Credit Agreement are true and correct on and as of the
Amendment Effective Date with the same effect as if made on and as of the
Amendment Effective 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 Amendment Effective Date
(and after giving effect hereto), no Default or Event of Default will exist; (c)
no event or circumstance has occurred since the Closing Date that has resulted,
or would reasonably be expected to result, in a Material Adverse Effect; (d) the
execution and delivery by the Company of this Amendment and the performance by
the Company of its obligations under the Credit Agreement as amended hereby (as
so amended, the "Amended Credit Agreement") (i) are within the corporate powers
of the Company, (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; and (e) the Amended Credit Agreement is the legal, valid and
binding obligation of the Company, enforceable against the Company 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 2. EFFECTIVENESS. The amendments set forth in Section 1 shall
become effective, as of the day and year first above written, on the date (the
"Amendment Effective Date") on which the Agent shall have received counterparts
of this Amendment executed by the Company 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).
SECTION 3. MISCELLANEOUS.
(a) Continuing Effectiveness, etc. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the 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.
(b) 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.
(c) 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.
(d) 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.
(e) Successors and Assigns. This Amendment shall be binding upon the
Company, 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.
Delivered at Chicago, Illinois, as of the day and year first above
written.
XXXXXX'X GRAND ICE CREAM, INC.
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Treasurer
BANK OF AMERICA, N.A., as Agent
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Vice President
BANK OF AMERICA, N.A., as a Bank
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Vice President
UNION BANK OF CALIFORNIA, N.A.
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XXXXX FARGO BANK, NATIONAL
ASSOCIATION
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Vice President
/s/ Xxxxx Xxxxxxxxxxx
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Xxxxx Xxxxxxxxxxx
Senior Vice President
XXXXXX TRUST SAVINGS BANK
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Vice President
COBANK, ACB
/s/ S. Xxxxxxx Xxxx
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S. Xxxxxxx Xxxx
Vice President
SUNTRUST BANK
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Director
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND" NEW YORK
BRANCH
/s/ Xxx Xxxxx
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Xxx Xxxxx
Managing Director
/s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
Executive Director
AGSTAR FINANCIAL SERVICES, PCA
Dba FCS Commercial Finance Group
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
SVP-Syndicated Finance
THE BANK OF NEW YORK
/s/ Xxxxxxxxx X. Xxxx
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Xxxxxxxxx X. Xxxx
Vice President
