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EXHIBIT 10.1
FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of April 19, 2001 (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 (the
"Credit Agreement"; unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as defined in the Credit Agreement); and
WHEREAS, the parties hereto desire to amend the Credit Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. AMENDMENTS. Effective on (and subject to the occurrence of)
the Amendment Effective Date (as defined below), the Credit Agreement shall be
amended as set forth below:
1.1 Amendment to Consolidated Net Worth. Section 8.13 is amended in its
entirety to read as follows:
8.13 Consolidated Net Worth. The Company shall not permit its
Consolidated Net Worth at any time to be less than the total of:
(i) $42,000,000; plus
(ii) 75% of the Company's consolidated net income for each
fiscal quarter beginning with the fiscal quarter ending on June
30, 2000 (with no deduction for losses in any such quarter); plus
(iii) 75% of Net Issuance Proceeds of any stock offerings
issued (excluding stock issuances under Section 8.11(c)); minus
(iv) the book value of the Series A Preferred Stock (other
than any portion thereof which is mandatorily redeemable within
one year); plus
(v) the book value of any shares of Series A Preferred Stock
which are converted into common stock; minus
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(vi) the book value of any common stock referred to in clause
(v) which has been redeemed or repurchased by the Company from
the Person which held the Series A Preferred Stock immediately
prior to the conversion thereof.
1.2 Amendment to Minimum Fixed Charge Coverage Ratio. Section 8.14 is
amended in its entirety to read as follows:
8.14 Minimum Fixed Charge Coverage Ratio.
(a) The Company shall not permit its Fixed Charge Coverage Ratio:
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For the period consisting of the four consecutive
To be less than: fiscal quarters ending on the last day of its:
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2.00 First fiscal quarter of 2001
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1.75 Second fiscal quarter of 2001
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2.00 Third fiscal quarter of 2001
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2.00 Fourth fiscal quarter of 2001
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2.00 First fiscal quarter of 2002
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2.75 Second fiscal quarter of 2002
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3.00 Third fiscal quarter of 2002 and each fiscal quarter
thereafter
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(b) For purposes of this Section, Fixed Charge Coverage Ratio
means, computed on a consolidated basis for any period of four
consecutive fiscal quarters ending on the last day of any fiscal
quarter, the ratio of "A" to "B" where:
"A" means the sum for such period of EBITDA plus operating
lease expenses plus, without duplication, all payments
under Synthetic Leases; and
"B" means the sum for such period of (i) cash interest
expense, plus operating lease expenses, plus, without
duplication, all payments under Synthetic Leases, plus all
cash dividends paid by the Company plus (ii) the current
portion, as of the last day of such period, of all
principal of Indebtedness (excluding the Series A
Preferred Stock).
1.3 Amendment to Funded Debt/EBITDA Ratio. Section 8.15 is amended in
its entirety to read as follows:
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8.15 Funded Debt/EBITDA Ratio. The Company shall not permit its Funded
Debt/EBITDA Ratio:
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For the period consisting of the four consecutive
To be greater than: fiscal quarters ending on the last day of its:
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3.75 First fiscal quarter of 2001
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3.50 Second fiscal quarter of 2001
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3.50 Third fiscal quarter of 2001
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3.25 Fourth fiscal quarter of 2001
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3.25 First fiscal quarter of 2002
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3.00 Second fiscal quarter of 2002 and each fiscal quarter
thereafter
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1.4 Amendment to Pricing Schedule. The existing Pricing Schedule
attached to the Credit Agreement as Schedule 1.1 is replaced by Schedule 1.1
hereto.
SECTION 2. 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 3. 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 (a)
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) and (b) for the account
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of each Bank which delivers a signed counterpart hereof to the Agent on or
before 5:00 p.m. on April 19, 2001, an amendment fee equal to 0.125% of such
Bank's Commitment.
SECTION 4. 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.
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Delivered at Chicago, Illinois, as of the day and year first above
written.
XXXXXX'X GRAND ICE CREAM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Treasurer
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BANK OF AMERICA, N.A., as Agent
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------------
Title: Managing Director
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BANK OF AMERICA N.A., as Swing Line Bank, Letter of
Credit Issuing Bank and as a Bank
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
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Title: Managing Director
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Title: Vice President
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XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
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Title: Senior Vice President
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
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Title: Vice President
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COBANK, ACB
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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SUNTRUST BANK
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Managing Director
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND" NEW YORK BRANCH
By: /s/ Xxxx X. XxXxxx /s/ Xxxxxx X. Xxxxxx
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Name: Xxxx X. XxXxxx Xxxxxx X. Xxxxxx
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Title: Executive Director Managing Director
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CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxx
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Title: Vice President, Senior Relationship
Manager
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By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: First Vice President
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THE BANK OF NEW YORK
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
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Title: Vice President
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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.
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LEVEL I XXXXX XX XXXXX XXX 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%
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Offshore Rate 0.750% 1.000% 1.250% 1.500% 1.875% 2.125% 2.375%
Margin
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Commitment Fee Rate 0.250% 0.300% 0.350% 0.375% 0.450% 0.500% 0.500%
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LC Fee Rate 0.750% 1.000% 1.250% 1.500% 1.875% 2.125% 2.375%
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Level I applies when the Funded Debt to EBITDA Ratio is less than 1.0 to
1.
Level II applies when the Funded Debt to 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 to 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 to 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 to 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 to 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 to EBITDA Ratio is equal to or
greater than 3.5 to 1.
The applicable Level shall be adjusted, to the extent applicable, on the
date of the effectiveness of the First Amendment to this Agreement and,
thereafter, 60 days (or, in the case of the last fiscal quarter of any fiscal
year of the Company, 100 days) after the end of each fiscal
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quarter based on the Funded Debt to EBITDA Ratio as of the last day of such
fiscal quarter; provided that if the Company 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.
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