EXHIBIT 10.27
THIRD AMENDMENT
THIS THIRD AMENDMENT dated as of April 14, 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, 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);
WHEREAS, pursuant to an Agreement and Plan of Merger and Contribution,
dated as of June 16, 2002 and amended as of October 25, 2002, as of February 5,
2003 and as of June 16, 2003 (as so amended the "Transaction Agreement") among,
the Company, New Dreyer's (then known as New December, Inc.), December Merger
Sub, Inc., Nestle Holdings, Inc. and Nestle Ice Cream Company, LLC ("NICC"), the
Company and NICC will become wholly-owned subsidiaries of New Dreyer's; and
WHEREAS, the parties hereto have agreed to amend the Credit Agreement
to, among other things, add New Dreyer's as a party to the Credit Agreement and
revise various provisions of the Credit Agreement to account for the
consummation of the Transaction;
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
conditions precedent set forth in Section 3, the Company, New Dreyer's, the
Majority Banks and the Agent agree that, on the Third Amendment Effective Date
(as defined below), the Credit Agreement shall be amended in its entirety to
read as set forth on the attached Exhibit A.
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 Third 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 Third 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 judgment,
order or decree, which is binding upon the Company or New Dreyer's; (e) 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; (f) the Transaction will comply in all material
respects with all applicable legal requirements; and (g) the consummation of the
Transaction will not violate any statute or regulation of the United States or
any other applicable jurisdiction, or any order, judgment or decree of any court
or other Governmental Authority, or result in a breach of, or constitute a
default under, any material agreement, indenture, instrument or other document,
or any judgment, order or decree, binding upon or affecting New Dreyer's, the
Company or any other Subsidiary of New Dreyer's (including any entity which will
be a Subsidiary of New Dreyer's after giving effect to the Transaction).
SECTION 3. EFFECTIVENESS. The amendments set forth in Section 1
shall become effective if, and only if, (a) all required approvals (including
approval under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976) for the
Transaction have been received on or before July 31, 2003 and (b) all of the
following conditions precedent have been satisfied on or before August 29, 2003
(and the date on which all such conditions precedent have been satisfied is
called the "Third Amendment Effective Date").
3.1 Amendment. The Agent shall have received 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).
3.2 Guaranty. The Agent shall have received a guaranty
substantially in the form of Exhibit B (the "Guaranty") duly executed by each
Guarantor (as defined in the Amended Credit Agreement).
3.3 Corporate Documents. The Agent shall have received a
certificate of the secretary of assistant Secretary of the Company, New Dreyer's
and each other Guarantor as to (a) resolutions of the Board of Directors or
other governing body of such Person authorizing the execution and delivery by
such Person of this Amendment and/or the Guaranty, as applicable, and the
performance by such Person of its obligations under the Amended Credit Agreement
and/or the Guaranty, as applicable; and (b) the incumbency and signatures of the
officers of such Person who are authorized to execute and deliver this Amendment
and/or the Guaranty, as applicable.
3.4 Opinion(s). The Agent shall have received
satisfactory opinions of counsel to the Company and the Guarantors.
3.5 Officer's Certificate. The Agent shall have received
a certificate of a Responsible Officer (as defined in the Amended Credit
Agreement) to the effect that (a) there has been no material adverse change in
the operations, business, properties, assets, liabilities, condition (financial
or otherwise) or prospects of the Company and its Subsidiaries taken as a whole
since December 29, 2001 or of NICC and its Subsidiaries taken as a whole since
September 29, 2002; (b) there is no action, suit, investigation or proceeding
pending or, to the knowledge of New Dreyer's or the Company, threatened in any
court or before any arbitrator or
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governmental authority that (x) is reasonably likely to materially and adversely
affect New Dreyer's and its Subsidiaries taken as a whole or (y) purports to
affect the Amendment or any transaction contemplated thereby or the ability of
the Company or any Guarantor to perform its obligations under the Credit
Agreement or the Guaranty, as applicable; (c) all required consents and
approvals (including approval under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976) for the (i) the consummation of the Transaction, (ii) the execution
and delivery by New Dreyer's and the Company of this Amendment, (iii) the
execution and delivery by the Guarantors of the Guaranty and (iv) the
performance by the Company, New Dreyer's and the other Guarantors of their
respective obligations under the Amended Credit Agreement and the Guaranty, as
applicable, have been obtained and are in full force and effect; and (d) the
obligations of the Company under the Amended Credit Agreement and the
obligations of the Guarantors under the Guaranty will not be structurally
subordinated to any other material debt of the Company or any Guarantor.
3.6 Nestle Credit Arrangements. The Agent shall have
received evidence that the Nestle Credit Arrangements (as defined in the Amended
Credit Agreement) are in full force and effect.
3.7 Transaction. The Transaction shall have been
consummated in accordance with the Transaction Agreement (without any amendment
or other modification thereto unless approved in writing by the Majority Banks).
3.8 Payment of Fees and Expenses.
(a) The Company shall have paid to the Agent for
the account of each Bank which executed this Amendment on or before the close of
business on April 14, 2003, an amendment fee equal to 0.125% of the amount of
such Bank's Commitment; and
(b) The Company shall have paid all other
accrued and unpaid fees, costs and expenses related to the Credit Agreement and
this Amendment, in each case to the extent then due.
3.9 Accuracy of Statements. Each of the representations
and warranties in Section 2, and each of the statements in the certificate
delivered pursuant to Section 3.5, shall be true and correct in all material
respects as of such date (except to the extent any such representation, warranty
or statement expressly refers to an earlier date, in which case it shall have
been true and correct as of such earlier date).
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 Third 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.
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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.
4.6 Waivers by Majority Banks. The Majority Banks waive
any Default or Event of Default which occurs prior to the Third Amendment
Effective Date and results solely from (i) the Company or any of its
Subsidiaries entering into any agreement related to the Transaction or (ii) the
Company or any of its Subsidiaries entering into any agreement to dispose of any
assets (so long as the actual disposition of such assets is permitted by the
Credit Agreement or permitted by the Amended Credit Agreement).
4.7 Intercreditor Agreement. Each Bank hereby consents to
the execution and delivery by the Agent of an Intercreditor Agreement
substantially in the form of Exhibit C and agrees, on behalf of itself and any
of its Affiliates which may at any time enter into a Swap Contract with the
Company, that the Agent is authorized to execute and deliver, and otherwise
represent such Bank and any such Affiliate in connection with, such
Intercreditor Agreement.
[SIGNATURES TO FOLLOW]
Delivered at Chicago, Illinois, as of the day and year first above written.
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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
BANK OF AMERICA, N.A., as Agent
By: /S/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
BANK OF AMERICA N.A., as a Bank
By: /S/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /S/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /S/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
COBANK, ACB
By: /S/ S. Xxxxxxx Xxxx
Name: S. Xxxxxxx Xxxx
Title: Vice President
SUNTRUST BANK
By: /S/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Director
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: /S/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: SVP Syndicated Finance
THE BANK OF NEW YORK
By: /S/ Xxxxxxxxx X. Xxxx
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
EXHIBIT A
CREDIT AGREEMENT
A-1
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of July 25, 2000, 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"), the
several financial institutions from time to time party to this Agreement
(collectively, the "Banks"; individually, a "Bank"), Bank of America, N.A., as
letter of credit issuing bank, and Bank of America, N.A., as agent for the
Banks.
WHEREAS, the Company, certain financial institutions party thereto,
ABN-AMRO Bank N.V., San Francisco International Branch as Co-Agent, and Bank of
America, N.A. (then known as Bank of America National Trust and Savings
Association), as agent for the Banks, entered into an Amended and Restated
Credit Agreement dated as of March 27, 1998 (as amended as of the date of this
Agreement, the "Prior Credit Agreement");
WHEREAS, the Banks have agreed to make available to the Company a
revolving credit facility upon the terms and conditions set forth in this
Agreement, the initial borrowings of which will be used to repay principal,
interest, and all other sums then due and payable under the Prior Credit
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the following
meanings:
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of any
business or division of a Person, (b) the acquisition of in excess of 50% of the
capital stock, partnership interests, membership interests, or equity of any
Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger
or consolidation or any other combination with another Person (other than a
Person that is a Subsidiary).
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another Person if
the controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"Agent" means BofA in its capacity as agent for the Banks
hereunder, and any successor agent arising under Section 10.9.
"Agent-Related Persons" means BofA, any successor agent
arising under Section 9.9 and any successor to BofA as letter of credit issuing
bank hereunder, together with
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their respective Affiliates (including, in the case of BofA, the Arranger), and
the officers, directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.
"Agent's Payment Office" means the address for payments set
forth on Schedule 10.2 in relation to the Agent, or such other address as the
Agent may from time to time specify.
"Agreement" means this Credit Agreement as in effect from time
to time.
"Arranger" means Banc of America Securities LLC.
"Assignee" has the meaning specified in subsection 11.8(a).
"Attorney Costs" means and includes all fees and disbursements
of any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"Bank" has the meaning specified in the introductory clause
hereto. References to the "Banks" shall include BofA in its capacity as Swing
Line Bank and Issuing Bank; for purposes of clarification only, to the extent
that the Swing Line Bank or the Issuing Bank may have any rights or obligations
in addition to those of the other Banks due to its status as a Swing Line Bank
or Issuing Bank, as the case may be, its status as such will be specifically
referenced.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per
annum above the Federal Funds Rate for such day; and (b) the rate of interest in
effect for such day as publicly announced from time to time by BofA in
Charlotte, North Carolina, as its "Prime Rate." (The "Prime Rate" is a rate set
by BofA based upon various factors including BofA's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate.) Any change in the Prime Rate announced by BofA shall take effect at the
opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on the
Base Rate.
"Base Rate Margin" - see Schedule 1.1.
"BofA" means Bank of America, N.A., a national banking
association.
"Borrowing" means a borrowing hereunder consisting of Loans of
the same Type made to the Company on the same day under Article II and, other
than in the case of Base Rate Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs
under Section 2.3 or a Swing Line Loan is made under Section 2.14.
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"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in Chicago, Illinois, Dallas, Texas,
Charlotte, North Carolina, New York, New York, or San Francisco, California are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other law,
rule or regulation, whether or not having the force of law, in each case,
regarding capital adequacy of any bank or of any corporation controlling a bank.
"Cash Collateralize" means to pledge and deposit with or
deliver to the Agent, for the benefit of the Agent, the Issuing Banks and the
Banks, as collateral for the L/C Obligations, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to the Agent and
the Majority Banks. Derivatives of such term shall have corresponding meanings.
Cash collateral shall be maintained in blocked accounts at BofA or, with BofA's
consent, the applicable Issuing Bank.
"Cash Equivalents" means:
(a) securities issued or fully guaranteed or insured
by the United States Government or any agency thereof and backed by the full
faith and credit of the United States having maturities of not more than six
months from the date of acquisition;
(b) certificates of deposit, time deposits,
Eurodollar time deposits, repurchase agreements, reverse repurchase agreements,
or bankers' acceptances, having in each case a tenor of not more than six
months, issued by any Bank, or by any U.S. commercial bank or any branch or
agency of a non-U.S. bank licensed to conduct business in the U.S. having
combined capital and surplus of not less than $100,000,000 whose short term
securities are rated at least A-1 by Standard & Poor's Corporation and P-1 by
Xxxxx'x Investors Service, Inc.;
(c) commercial paper of an issuer (other than an
Affiliate of New Dreyer's) rated at least A-1 by Standard & Poor's Corporation
or P-1 by Xxxxx'x Investors Service, Inc. and in either case having a tenor of
not more than three months.
"Closing Date" means the date on which all conditions
precedent set forth in Section 5.1 are satisfied or waived by all Banks (or, in
the case of subsection 5.1(d), waived by the Person entitled to receive such
payment), which date must occur before July 25, 2000.
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Commitment", as to each Bank, has the meaning specified in
Section 2.1.
"Commitment Fee Rate" - see Schedule 1.1.
"Company" has the meaning specified in the introductory clause
hereto.
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"Compliance Certificate" means a certificate substantially in
the form of Exhibit A.
"Consolidated Net Worth" means the consolidated stockholders'
equity of New Dreyer's (including the account related to the Class A Callable
Puttable Common Shares of New Dreyer's) minus any treasury stock.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or without
recourse, (a) with respect to any Indebtedness, lease, dividend, letter of
credit or other obligation (the "primary obligations") of another Person (the
"primary obligor"), including any obligation of that Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any security
therefor, (ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, or (iv)
otherwise to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof (each, a "Guaranty Obligation"); (b) with
respect to any Surety Instrument issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of drawings or payments;
(c) to purchase any materials, supplies or other property from, or to obtain the
services of, another Person if the relevant contract or other related document
or obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether delivery of
such materials, supplies or other property is ever made or tendered, or such
services are ever performed or tendered, or (d) in respect of any Swap Contract.
The amount of any Contingent Obligation shall, in the case of Guaranty
Obligations, be deemed equal to the stated or determinable amount of the primary
obligation in respect of which such Guaranty Obligation is made or, if not
stated or if indeterminable, the maximum reasonably anticipated liability in
respect thereof, and in the case of other Contingent Obligations other than in
respect of Swap Contracts, shall be equal to the maximum reasonably anticipated
liability in respect thereof and, in the case of Contingent Obligations in
respect of Swap Contracts, shall be equal to the Swap Termination Value.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or any of
its property is bound.
"Conversion/Continuation Date" means any date on which, under
Section 2.4, the Company (a) converts Loans of one Type to another Type, or (b)
continues as Loans of the same Type with a new Interest Period, Loans of the
same Type with Interest Periods expiring on such date.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
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"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"Domestic Subsidiary" means each Subsidiary other than a
Foreign Subsidiary.
"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, the first
$110,000,000 of merger-related expenses incurred in connection with the
Transaction and 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.
"Effective Amount" means, with respect to any outstanding L/C
Obligations on any date, the amount of such L/C Obligations on such date after
giving effect to any Issuances of Letters of Credit occurring on such date, any
other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid drawings under
any Letter of Credit or any reduction in the maximum amount available for
drawing under Letters of Credit taking effect on such date.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (ii) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political subdivision of
any such country, and having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is also
a member of the OECD; or (iii) a Person that is primarily engaged in the
business of commercial banking with total assets of at least $100,00,000.
"Environmental Claims" means all written claims received by
New Dreyer's or any Subsidiary, however asserted, by any Governmental Authority
or other Person alleging potential liability or responsibility for violation of
any Environmental Law, or for release or injury to the environment.
"Environmental Laws" means all federal, state, local, or
foreign laws and regulations, relating to pollution or protection of public
health and the environment (including ambient air, surface water, ground water,
land surface or subsurface strata), including laws and regulations relating to
emissions, discharges, releases or threatened releases of Materials of
Environmental Concern, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
Materials of Environmental Concern.
"ERISA" means the Employee Retirement Income Security Act of
1974, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with New Dreyer's within the meaning of
Section 414(b) or (c) of the
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Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by New Dreyer's or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by New Dreyer's or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon New Dreyer's or any ERISA Affiliate.
"Event of Default" means any of the events or circumstances
specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"Existing Letter of Credit" means the Letters of Credit listed
on Schedule 4.1.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds transactions in New
York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.9(a).
"Foreign Subsidiary" means each Subsidiary of the Company
which is organized under the laws of any jurisdiction other than, and which is
conducting the majority of its business outside of, the United States or any
state thereof.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its principal
functions.
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"Funded Debt" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on ordinary terms); (c)
all obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses; (d) all indebtedness created or arising under
any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the Person (even
though the rights and remedies of the seller or bank under such agreement in the
event of default are limited to repossession or sale of such property); (e) all
obligations with respect to capital leases; and (f) all Synthetic Lease
Obligations of such Person.
"Funded Debt/EBITDA Ratio" means, with respect to any Person
at any time, the ratio of (i) Funded Debt of such Person and its Subsidiaries
determined on a consolidated basis at such time to (ii) EBITDA for the most
recent period of four fiscal quarters of such Person for which financial
statements have been delivered pursuant to Section 7.1.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of the
date of determination.
"Governance Agreement" means a governance agreement among
Nestle Holdings, Inc., Nestle S.A. and New Dreyer's, substantially in the form
provided to the Banks prior to the Third Amendment Effective Date.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Grand Soft Capital Company" means Grand Soft Capital Company,
a California corporation.
"Grand Soft Equipment Company" means Grand Soft Equipment
Company, a Kentucky corporation.
"Grand Soft Program" means (i) all sales by Grand Soft Capital
Company or Grand Soft Equipment Company of leases covering machinery
manufactured for or by Grand Soft Equipment Company; (ii) all sales and
leasebacks by Grand Soft Capital Company or Grand Soft Equipment Company of
machinery manufactured for or by Grand Soft Equipment Company; and (iii) all
leases of equipment manufactured for or by Grand Soft Equipment Company leased
by Grand Soft Equipment Company or Grand Soft Capital Company.
7
"Guarantor" means each of New Dreyer's, NICC and each other
Domestic Subsidiary of New Dreyer's (other than any Immaterial Subsidiary).
"Guaranty" means the Guaranty, dated as of the Third Amendment
Effective Date, of the Guarantors in favor of the Agent and the Banks.
"Guaranty Obligation" has the meaning specified in the
definition of "Contingent Obligation."
"Honor Date" has the meaning specified in subsection 3.03(b).
"Immaterial Subsidiary" means a Subsidiary of New Dreyer's
which owns less than 5% of the assets of New Dreyer's and its Domestic
Subsidiaries taken as a whole and had, during the most recently ended fiscal
quarter, less than 5% of the revenues of New Dreyer's and its Domestic
Subsidiaries taken as a whole.
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on ordinary terms); (c)
all non-contingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all indebtedness
created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to property
acquired by the Person (even though the rights and remedies of the seller or
bank under such agreement in the event of default are limited to repossession or
sale of such property); (f) all obligations with respect to capital leases; (g)
all indebtedness referred to in clauses (a) through (f) above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including accounts
and contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; (h) all Guaranty
Obligations in respect of indebtedness or obligations of others of the kinds
referred to in clauses (a) through (g) above; and all Synthetic Lease
Obligations of such Person.
"Indemnified Liabilities" has the meaning specified in Section
11.05.
"Indemnified Person" has the meaning specified in Section
11.05.
"Independent Auditor" has the meaning specified in subsection
7.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any court or
other Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
8
"Interest Payment Date" means, as to any Loan other than a
Base Rate Loan or Swing Line Loan, the last day of each Interest Period
applicable to such Loan and, as to any Base Rate Loan or Swing Line Loan, the
last Business Day of each calendar quarter and each date such Loan is converted
into another Type of Loan, provided that if any Interest Period for an Offshore
Rate Loan exceeds three months, the date that falls three months after the
beginning of such Interest Period and after each Interest Payment Date
thereafter is also an Interest Payment Date.
"Interest Period" means, as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or continued as
an Offshore Rate Loan, and ending on the date one, two, three or six months
thereafter, as selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation; provided that:
(i) if any Interest Period would otherwise end
on a day that is not a Business Day, that Interest Period shall be extended to
the following Business Day unless, in the case of an Offshore Rate Loan, the
result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the preceding
Business Day;
(ii) any Interest Period pertaining to an
Offshore Rate Loan that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of
the calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend
beyond the scheduled Revolving Termination Date.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Issuance Date" has the meaning specified in subsection
3.01(a).
"Issue" means, with respect to any Letter of Credit, to issue
or to extend the expiry of, or to renew or increase the amount of, such Letter
of Credit; and the terms "Issued," "Issuing" and "Issuance" have corresponding
meanings.
"Issuing Bank" means BofA in its capacity as issuer of one or
more Letters of Credit hereunder, together with (i) any replacement letter of
credit issuer arising under subsection 10.1(c) or Section 10.9 and (ii) any
other Bank or any Affiliate of a Bank which the Agent and the Company have
approved in writing as an "Issuing Bank" hereunder.
"Joint Venture" means a single-purpose corporation,
partnership, limited liability company, joint venture or other similar legal
arrangement (whether created by contract or conducted through a separate legal
entity) now or hereafter formed by New Dreyer's or any of its Subsidiaries with
another Person in order to conduct a common venture or enterprise with such
Person.
9
"L/C Advance" means each Bank's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
"L/C Amendment Application" means an application form for
amendment of an outstanding standby letter of credit as shall at any time be in
use by the applicable Issuing Bank, as such Issuing Bank shall request.
"L/C Application" means an application form for issuance of a
standby letter of credit as shall at any time be in use by the applicable
Issuing Bank, as such Issuing Bank shall request.
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed on the
date when made nor converted into a Borrowing of Loans under subsection 3.3(d).
"L/C Commitment" means the commitment of the Issuing Banks to
Issue, and the commitment of the Banks severally to participate in, Letters of
Credit from time to time Issued or outstanding under Article III in an aggregate
amount not to exceed on any date the lesser of $25,000,000 and the combined
Commitments; it being understood that the L/C Commitment is a part of the
combined Commitments rather than a separate, independent commitment.
"L/C Fee Rate" - see Schedule 1.1.
"L/C Obligations" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit, including all
outstanding L/C Borrowings.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating to
any Letter of Credit, including any of the applicable Issuing Bank's standard
form documents for letter of credit issuances.
"Letter of Credit" means any Existing Letter of Credit and any
standby letter of credit Issued by an Issuing Bank pursuant to Article III.
"Lending Office" means, as to any Bank, the office or offices
of such Bank specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on Schedule 11.2, or such other
office or offices as such Bank may from time to time notify the Company and the
Agent.
"Lien" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance,
lien (statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising under
or evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the foregoing, or the filing of
any financing statement naming the owner of the asset to which such lien relates
as debtor, under the Uniform
10
Commercial Code or any comparable law) and any contingent or other agreement to
provide any of the foregoing, but not including the interest of a lessor under
an operating lease.
"Loan" means an extension of credit by a Bank to the Company
under Article II or Article III (excluding the issuance of a Letter of Credit),
and may be a Base Rate Loan, an Offshore Rate Loan or a Swing Line Loan (each, a
"Type" of Loan), or an L/C Advance.
"Loan Documents" means this Agreement, any Notes, the
L/C-Related Documents, the Fee Letter, and all other documents delivered to the
Agent or any Bank in connection herewith.
"Majority Banks" means (a) at any time when there are more
than two Banks, Banks then holding more than 50% of the then aggregate unpaid
principal amount of the Loans; provided that if and so long as any Bank fails to
fund any Loan when required by Section 3.3 or a participation in an L/C
Borrowing pursuant to Section 3.3, as the case may be, such Bank's Pro Rata
Share shall be deemed for purposes of this definition to be reduced by the
percentage which the defaulted amount constitutes of the combined Commitments
(or, if the Commitments have terminated, the sum of the aggregate principal
amount of all outstanding Loans plus the Effective Amount of all L/C
Obligations, and the Pro Rata Share of the applicable Issuing Bank shall be
deemed for purposes of this definition to be increased by such percentage), or,
if no such principal amount is then outstanding, Banks then having more than 50%
of the combined Commitments of the Banks; or (b) at any time when there are only
two Banks, both Banks.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business, properties,
assets, liabilities (actual or contingent), condition (financial or otherwise)
or prospects of New Dreyer's or of New Dreyer's and its Subsidiaries taken as a
whole; (b) a material impairment of the ability of New Dreyer's, the Company or
any other Subsidiary to perform under any Loan Document and to avoid any Event
of Default; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against New Dreyer's, the Company or any other
Subsidiary of any Loan Document.
"Materials of Environmental Concern" means chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum, and petroleum products.
"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which New Dreyer's or any ERISA
Affiliate makes, is making, or is obligated to make contributions or, during the
preceding three calendar years, has made, or been obligated to make,
contributions.
"Nestle Credit Arrangements" means credit arrangements
pursuant to which New Dreyer's has outstanding and/or access to not less than
$400,000,000 of financing pursuant to committed credit facilities provided by
Nestle Holdings, Inc. or an affiliate thereof and/or the
11
guarantee by Nestle Holdings, Inc. or an affiliate thereof of commercial paper
issued by New Dreyer's, in each case on terms and conditions satisfactory to the
Administrative Agent. Such terms and conditions shall include (a) a termination
date which is not less than, or which is extendible at the sole option of New
Dreyer's to a date which is not less than, 91 days after the scheduled Revolving
Termination Date and (b) no covenants or defaults which are more restrictive
than the covenants and defaults in the Credit Agreement.
"Net Issuance Proceeds" means, in respect of any offering of
equity or debt securities or debt instruments, cash proceeds and non-cash
proceeds received or receivable in connection therewith, net of reasonable
out-of-pocket costs and expenses paid or incurred in connection therewith in
favor of any Person not an Affiliate of New Dreyer's or in favor of Xxxxxxx &
Xxxxxx, such costs and expenses not to exceed 5% of the gross proceeds of such
issuance.
"New Dreyer's" has the meaning specified in the introductory
clause hereto.
"NICC" means Nestle Ice Cream Company, LLC, a Delaware limited
liability company.
"Note" means any promissory note issued at the request of a
Bank pursuant to subsection 2. 2(b) in the form of Exhibit H.
"Notice of Borrowing" means a notice in substantially the form
of Exhibit B.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit C.
"Notice of Swing Line Loan" means a notice substantially in
the form of Exhibit D.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing by the
Company to any Bank, the Agent or any Indemnified Person, whether direct or
indirect (including those acquired by assignment), absolute or contingent, due
or to become due, now existing or hereafter arising.
"Offshore Rate Margin" - see Schedule 1.1.
"Offshore Rate" means, for any Interest Period, with respect
to Offshore Rate Loans comprising part of the same Borrowing:
(a) the rate per annum (carried out to the fifth
decimal place) determined by the Agent to be the offered rate that appears on
the page of the Telerate Screen that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
12
(b) if the rate referenced in the preceding
clause (a) does not appear on such page or service or such page or service shall
cease to be available, the rate per annum (carried out to the fifth decimal
place) determined by the Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, or
(c) if the rates referenced in the preceding
clauses (a) and (b) are not available, the rate per annum determined by the
Agent as the rate of interest at which deposits in Dollars (for delivery on the
first day of such Interest Period) in same day funds in the approximate amount
of the applicable Offshore Rate Loan of BofA (or such other Lender as the
Borrower and the Agent shall agree) and with a term equivalent to such Interest
Period would be offered by BofA's (or such Lender's) London branch to major
banks in the offshore Dollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period.
"Offshore Rate (Reserve Adjusted)" means, with respect to any
Offshore Rate Loan for any Interest Period applicable thereto, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined pursuant
to the following formula:
Offshore Rate (Reserve Adjusted) = Offshore Rate
-------------
1-Offshore Reserve
Percentage
"Offshore Rate Loan" means a Loan that bears interest based on
the Offshore Rate (Reserve Adjusted).
"Offshore Reserve Percentage" means, with respect to each
Interest Period for a Offshore Rate Loan, a percentage (expressed as a decimal)
equal to the daily average during such Interest Period of the percentages in
effect on each day of such Interest Period, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor), for determining
reserve requirements applicable to "Eurocurrency liabilities" pursuant to
Regulation D or any other then applicable regulation of the Board of Governors
which prescribes reserve requirements applicable to "Eurocurrency liabilities,"
as presently defined in Regulation D. For purposes of this definition, any
Offshore Rate Loans hereunder shall be deemed to be "Eurocurrency liabilities"
as defined in Regulation D.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred shareholders of
such corporation, any shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee thereof) of such
corporation.
"Other Agent" has the meaning specified in Section 10.11.
"Other Taxes" means any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made
13
hereunder or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection 11.8(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which New Dreyer's sponsors,
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five (5) plan years.
"Permitted Acquisition" means an Acquisition (a) which has
been authorized by the board of directors or other governing body of the Person
that is the object of such Acquisition, (b) which occurs when no Default or
Event of Default exists or will result therefrom, (c) after giving effect to
which no Default or Event of Default will exist on a pro forma basis (assuming
that such Acquisition had occurred on the last day of the fiscal quarter most
recently ended after the date which is one year prior to the date of such
Acquisition), as demonstrated by Borrower in writing to the Agent and the Banks,
(d) which is of a Person in the same general line of business as the Borrower
and its Subsidiaries, and (e) if (i) total cash consideration (including assumed
Indebtedness) for such Acquisition exceeds $50,000,000, or (ii) after giving
effect to such Acquisition the total cash consideration (including assumed
Indebtedness) for all Acquisitions for the current fiscal year of New Dreyer's
exceed $75,000,000, or (iii) the Person or assets of the Person being acquired
do not have positive EBITDA for the most recent twelve-month period for which
financial statements are available (it being understood that such calculation of
EBITDA may be adjusted upwards for (x) non-recurring owners compensation, to the
extent deducted in determining such EBITDA and (y) other reasonably estimated
cost savings as a result of such Acquisition, in each case as set forth in a
certificate signed by an authorized officer of New Dreyer's and delivered to the
Agent), which has been consented by the Majority Banks.
"Permitted Liens" has the meaning specified in Section 8.1.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section
3(3) of ERISA) which New Dreyer's sponsors or maintains or to which New Dreyer's
makes, is making, or is obligated to make contributions and includes any Pension
Plan.
"Prior Credit Agreement" has the meaning ascribed in the first
"WHEREAS" clause of this Agreement.
14
"Pro Rata Share" means, as to any Bank at any time, the
proportion (expressed as a decimal, rounded to the ninth decimal place) which
such Bank's Commitment constitutes of the combined Commitments (or, after the
Commitments have terminated, which (i) the principal amount of such Bank's Loans
plus (without duplication) the participation of such Bank in (or in the case of
a Swing Line Bank or an Issuing Bank, as the case may be, the unparticipated
portion of) the principal amount of all Swing Line Loans and the Effective
Amount of all L/C Obligations constitutes of (ii) the aggregate principal amount
of all Loans plus (without duplication) the principal amount of all Swing Line
Loans and the Effective Amount of all L/C Obligations).
"Reportable Event" means, any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to or binding
upon the Person or any of its property or to which the Person or any of its
property is subject.
"Responsible Officer" means the chief executive officer, the
president, the chief financial officer or the treasurer of New Dreyer's or any
other officer of New Dreyer's having substantially the same authority and
responsibility as one of the foregoing.
"Revolving Termination Date" means the earlier to occur of:
(a) July 25, 2005; and
(b) the date on which the Commitments terminate
in accordance with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Senior Notes" means, collectively, the following unsecured
notes of the Company which are not subordinated to but are of equal rank with
the Obligations: (a) the $15,000,000 8.06% Series B Senior Notes Due June 1,
2006 and (b) the $20,000,000 8.34% Series C Senior Notes Due June 1, 2008.
"Subsidiary" of a Person means any corporation, limited
liability company, association, partnership, joint venture or other business
entity of which more than 50% of the voting stock, membership interests, or
other equity interests (in the case of Persons other than corporations), is
owned or controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of New Dreyer's.
15
"Surety Instruments" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index swap
or option, bond, note or xxxx option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or any
combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined by the Company
based upon one or more mid-market or other readily available quotations provided
by any recognized dealer in such Swap Contracts (which may include any Bank).
"Swing Line Bank" means BofA in its capacity as swing line
bank hereunder, together with any replacement swing line bank arising under
Section 10.9.
"Swing Line Commitment" means the commitment of the Swing Line
Bank to make Swing Line Loans hereunder.
"Swing Line Loan" has the meaning specified in Section 2.14.
"Synthetic Lease" means a lease transaction under which the
parties intend that (i) the lease will be treated as an "operating lease" by the
lessee pursuant to Statement of Financial Accounting Standards No. 13, as
amended, and (ii) the lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like property.
"Synthetic Lease Obligations" means, with respect to any
Person, the sum of (a) all remaining rental obligations of such Person as lessee
under Synthetic Leases which are attributable to principal and, without
duplication, (b) all rental and purchase price payment obligations of such
Person under Synthetic Leases assuming such Person exercises the option to
purchase the leased property at the end of the lease term.
"Taxes" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Agent, such taxes
(including income taxes or franchise taxes) as are imposed on or measured by
each Bank's net income by the jurisdiction (or any political subdivision
thereof) under the laws of which such Bank or the Agent, as the case may be, is
organized or maintains a lending office.
16
"Third Amendment" means the Third Amendment to this Agreement
dated as of April 14, 2003.
"Third Amendment Effective Date" is defined in the Third
Amendment.
"Transaction" means, collectively, the transactions
contemplated by the Agreement and Plan of Merger and Contribution, dated as of
June 16, 2002 and amended as of October 25, 2002, as of February 5, 2003 and as
of June 16, 2003, among the Company, New Dreyer's (then known as New December,
Inc.), December Merger Sub, Inc., Nestle Holdings, Inc. and NICC pursuant to
which both the Company and NICC will become Wholly-Owned Subsidiaries of New
Dreyer's.
"Type" has the meaning specified in the definition of "Loan."
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." each means the United States of
America.
"Wholly-Owned Subsidiary" means any corporation in which
(other than directors' qualifying shares required by law) 100% of the capital
stock of each class having ordinary voting power, and 100% of the capital stock
of every other class, in each case, at the time as of which any determination is
being made, is owned, beneficially and of record, by New Dreyer's, or by one or
more of the other Wholly-Owned Subsidiaries, or both.
1.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable
to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar
words refer to this Agreement as a whole and not to any particular provision of
this Agreement; and subsection, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified:
(c) (1) The term "documents" includes any and
allinstruments, documents, agreements, certificates, indentures, notices and
other writings, however evidenced.
(2) The term "including" is not limiting and
means "including without limitation."
(3) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding", and the
word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other contractual
instruments shall be deemed to include all
17
subsequent amendments and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by the terms of any
Loan Document, and (ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and other Loan Documents may use
several different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are cumulative and
shall each be performed in accordance with their terms.
(g) This Agreement and other Loan Documents may use
several different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are cumulative and
shall each be performed in accordance with their terms. Unless otherwise
expressly provided, any reference to any action of the Agent or the Banks by way
of consent, approval or waiver shall be deemed modified by the phrase "in
its/their sole discretion."
1.3 Accounting Principles.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
(b) Unless the context otherwise clearly requires,
references herein to "fiscal year" and "fiscal quarter" refer to such fiscal
periods of New Dreyer's.
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments.
(a) The Revolving Credit. Each Bank severally agrees, on
the terms and conditions set forth herein, to make Loans to the Company from
time to time on any Business Day during the period from the Closing Date to the
Revolving Termination Date, in an aggregate amount not to exceed at any time
outstanding, for the relevant period, the amount set forth opposite such Bank's
name on Schedule 2.1 under the heading "Commitment" (such amount, as the same
may be reduced under subsection 2.5(a) or as a result of one or more assignments
under Section 11.8, or increased under subsection 2.5(b), the Bank's
"Commitment"); provided that, after giving effect to any Borrowing, the
aggregate principal amount of all outstanding Loans shall not at any time exceed
the combined Commitments; and provided, further, that the aggregate principal
amount of the Loans of any Bank plus the participation of such Bank in the
Effective Amount of all L/C Obligations and the principal amount of all
outstanding Swing Line Loans shall not exceed at any time such Bank's
Commitment. Within the limits of each Bank's
18
Commitment, and subject to the other terms and conditions hereof, the Company
may borrow under this subsection, prepay under Section 2.6 and reborrow under
this subsection.
2.2 Loan Accounts; Noteless Agreement.
(a) The Loans made by each Bank and the Letters of Credit
issued by each Issuing Bank as the case may be, shall be evidenced by one or
more loan accounts or records maintained by such Bank in the ordinary course of
business. The loan accounts or records maintained by the Agent, each Issuing
Bank and each Bank shall be conclusive, absent manifest error, of the amount of
the Loans made by the Banks to the Company and the Letters of Credit Issued for
the account of the Company, and the interest and payments thereon. Any failure
so to record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Company hereunder to pay any amount owing with
respect to the Loans or any Letter of Credit.
(b) Upon the request of any Bank made through the Agent,
the Loans made by such Bank may be evidenced by one or more Notes, instead of or
in addition to loan accounts. Each such Bank shall endorse on the schedules
annexed to its Note(s) the date, amount and maturity of each Loan made by it and
the amount of each payment of principal made by the Company with respect
thereto. Each such Bank is irrevocably authorized by the Company to endorse its
Note(s) and each Bank's record shall be conclusive absent manifest error;
provided that the failure of a Bank to make, or an error in making, a notation
thereon with respect to any Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under any such Note to such Bank.
2.3 Procedure for Borrowing.
(a) Each Borrowing shall be made upon the Company's
irrevocable written notice delivered to the Agent in accordance with Section
11.02 in the form of a Notice of Borrowing which notice must be received by the
Agent prior to 9:00 a.m. (San Francisco, California time) three Business Days
prior to the requested Borrowing Date, in the case of Offshore Rate Loans; and
9:00 a.m. (San Francisco, California time) on the requested Borrowing Date, in
the case of Base Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be
in an aggregate minimum principal amount of $1,000,000 or any multiple of
$100,000 in excess thereof;
(B) the requested Borrowing Date, which shall be
a Business Day;
(C) whether the Borrowing is to be comprised of
Offshore Rate Loans or Base Rate Loans;
(D) the duration of the Interest Period
applicable to such Loans included in such notice. If the Notice of Borrowing
shall fail to specify the duration of the Interest Period for any Borrowing
comprised of Offshore Rate Loans, such Interest Period shall be three months;
19
provided that with respect to any Borrowing to be made on the Closing Date, the
Notice of Borrowing shall be delivered to the Agent not later than 9:00 a.m.
(San Francisco, California time) on the Closing Date or three Business Days
before the Closing Date if the Borrowing is to consist of Base Rate or Offshore
Rate Loans, respectively.
(b) The Agent will promptly notify each Bank of its
receipt of any Notice of Borrowing and of the amount of such Bank's Pro Rata
Share of that Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share
of each Borrowing available to the Agent for the account of the Company at the
Agent's Payment Office by 11:00 a.m. (San Francisco, California time) on the
Borrowing Date requested by the Company in funds immediately available to the
Agent. The proceeds of all such Loans will then be made available to the Company
by the Agent at such office by crediting an account specified by the Company
with the aggregate of the amounts made available to the Agent by the Banks and
in like funds as received by the Agent.
(d) After giving effect to any Borrowing, unless the
Agent shall otherwise consent, there may not be more than 10 different Interest
Periods in effect.
2.4 Conversion and Continuation Elections.
(a) The Company may, upon irrevocable written notice to
the Agent in accordance with subsection 2.4(b):
(1) elect, as of any Business Day, in the case
of Base Rate Loans, or as of the last day of the applicable Interest Period, in
the case of any other Type of Loans, to convert any such Loans (or any part
thereof in an amount not less than $1,000,000, or that is in an integral
multiple of $100,000 in excess thereof) into Loans of any other Type; or
(2) elect, as of the last day of the applicable
Interest Period, to continue any Loans having Interest Periods expiring on such
day (or any part thereof in an amount not less than $1,000,000, or that is in an
integral multiple of $100,000 in excess thereof);
provided that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $1,000,000, such Offshore Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Company to continue such Loans as, and convert such Loans into, Offshore
Rate Loans shall terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later than 9:00 a.m. San
Francisco, California time) at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or continued
as Offshore Rate Loans; and (ii) one Business Day in advance of the
Conversion/Continuation Date, if the Loans are to be converted into Base Rate
Loans, specifying:
(A) the proposed Conversion/Continuation Date;
20
(B) the aggregate amount of Loans to be
converted or continued;
(C) the Type of Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into
Base Rate Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to Offshore Rate Loans, the Company has failed to select timely a new
Interest Period to be applicable to such Offshore Rate Loans, or if any Default
or Event of Default then exists, the Company shall be deemed to have elected to
convert such Offshore Rate Loans into Base Rate Loans bearing interest at the
Base Rate plus the applicable Base Rate Margin then in effect as of the
expiration date of such Interest Period.
(d) The Agent will promptly notify each Bank of its
receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the Company, the Agent will promptly notify each Bank of the details
of any automatic conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts of the Loans
with respect to which the notice was given held by each Bank.
(e) Unless the Majority Banks otherwise consent, during
the existence of a Default or Event of Default, the Company may not elect to
have a Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation
of Loans, unless the Agent shall otherwise consent, there may not be more than
six different Interest Periods in effect.
2.5 Change in Combined Commitments.
(a) Voluntary Termination or Reduction of Commitments.
The Company may, upon not less than five Business Days' prior notice to the
Agent, terminate the Commitments, or permanently reduce the Commitments by an
aggregate minimum amount of $3,000,000 or any multiple of $1,000,000 in excess
thereof; unless, after giving effect thereto and to any prepayments of Loans
made on the effective date thereof, the then outstanding principal amount of the
Loans would exceed the amount of the combined Commitments then in effect. Once
reduced in accordance with this subsection, the Commitments may not be
increased, except as provided in subsection 2.5(b). Any reduction of the
Commitments shall be applied to each Bank according to its Pro Rata Share. All
accrued commitment fees to, but not including the effective date of any
reduction or termination of Commitments, shall be paid on the effective date of
such reduction or termination.
(b) Optional Increase in Combined Commitments. The
Company may, on one occasion, by means of a letter to the Agent substantially in
the form of Exhibit E, request that the combined Commitments be increased by (a)
increasing the Commitment of one or more Banks which have agreed to such
increase and/or (b) adding one or more commercial banks or other Persons as a
party hereto with a Commitment in an amount agreed to by any such
21
commercial bank or other Person; provided that (i) no commercial bank or other
Person shall be added as a party hereto without the written consent of the Agent
(which shall not be unreasonably withheld), (ii) at the time of the proposed
increase in the combined Commitments no Default or Event of Default will exist
or result from such increase, (iii) after giving effect to the funding of any
Loan or portion thereof which constitutes part of the increase in the combined
Commitments, no Default or Event of Default on a pro forma basis will exist or
result from any such funding, and (iv) in no event shall the combined
Commitments exceed $250,000,000 less the aggregate amount of any permanent
reduction(s) of the Commitments effected pursuant to subsection 2.5(a), during
the term of this Agreement. The increase in the combined Commitments pursuant to
this subsection 2.5(b) shall be effective three Business Days after the date on
which the Agent has received and accepted the applicable increase letter in the
form of Annex 1 to Exhibit E (in the case of an increase in the Commitment of an
existing Bank) or assumption letter in the form of Annex 2 to Exhibit E (in the
case of the addition of a commercial bank or other Person as a new Bank). The
Agent shall promptly notify the Company and the Banks of the increase in the
amount of the combined Commitments pursuant to this subsection 2.5(b) and of the
Commitment and Pro Rata Share of each Bank after giving effect thereto. The
Company acknowledges that, in order to maintain Loans in accordance with each
Bank's Pro Rata Share, a reallocation of the Commitments as a result of a
non-pro-rata increase in the combined Commitments may require prepayment of all
or portions of certain Loans on the date of such increase (and any such
prepayment shall be subject to the provisions of Section 4.4, but shall not be
subject to the restrictions on the amount of prepayments set forth in Section
2.6). The Agent shall promptly notify all Banks of the increase in the combined
Commitments pursuant to this subsection 2.5(b).
2.6 Optional Prepayments. Subject to Section 4.4, the Company may
at any time or from time to time ratably prepay any Loans in whole or in part in
minimum amounts of $1,000,000 or any multiple of $100,000 in excess thereof.
Each prepayment shall be made upon not less than three Business Days'
irrevocable notice to the Agent with respect to Offshore Rate Loans and not less
than same day irrevocable notice of prepayment with respect to Base Rate Loans.
Such notice of prepayment shall specify the date and amount of such prepayment
and the Type(s) of Loans to be prepaid. The Agent will promptly notify each Bank
of its receipt of any such notice, and of such Bank's Pro Rata Share of such
prepayment. If such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued interest to each
such date on the amount prepaid and any amounts required pursuant to Section
4.4.
2.7 Repayment. The Company shall on the Revolving Termination Date
repay the aggregate principal amount of Loans outstanding (including any
outstanding Swing Line Loans) on such date.
2.8 Interest.
(a) Each Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to (i) the Offshore Rate (Reserve Adjusted) plus the applicable Offshore
Rate Margin from time to time in effect or (ii) the Base Rate plus the
applicable Base Rate Margin from time to time in effect, as the case may be (and
22
subject to the Company's right to convert to other Types of Loans under Section
2.4), provided that each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Base Rate plus the applicable Base Rate Margin from time to time in
effect or such other rate as may be agreed to from time to time by the Company
and the Swing Line Bank; provided that after any purchase by the Banks of a
participation in a Swing Line Loan, the rate of interest on such Swing Line Loan
shall not be less than the Base Rate plus the applicable Base Rate Margin from
time to time in effect.
(b) Interest on each Loan shall be paid in arrears on
each Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Loans under Section 2.6 for the portion of the Loans so prepaid
and upon payment (including prepayment) in full thereof and, during the
existence of any Event of Default, interest shall be paid on demand of the Agent
at the request or with the consent of the Majority Banks.
(c) Notwithstanding subsection (a) of this Section, while
any Event of Default exists or after acceleration, the Company shall pay
interest (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Obligations, at a
rate per annum which is determined by adding 2% per annum to (i) the applicable
interest rate then in effect for each such Loan, in the case of Obligations
consisting of Loans and (ii) the Base Rate plus the applicable Base Rate Margin,
in the case of Obligations other than Loans which are not paid when due;
provided that, on and after the expiration of any Interest Period applicable to
any Offshore Rate Loan outstanding on the date of occurrence of such Event of
Default or acceleration, the principal amount of such Loan shall, during the
continuation of such Event of Default or after acceleration, bear interest at a
rate per annum equal to the Base Rate plus the applicable Base Rate Margin from
time to time in effect.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Bank hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Bank would be contrary to
the provisions of any law applicable to such Bank limiting the highest rate of
interest that may be lawfully contracted for, charged or received by such Bank,
and in such event the Company shall pay such Bank interest at the highest rate
permitted by applicable law.
2.9 Fees. In addition to certain fees described in Section 3.8:
(a) Arrangement, Agency Fees. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account, and shall pay an
agency fee to the Agent for the Agent's own account, as required by the letter
agreement ("Fee Letter") between the Company, the Arranger, and Agent dated June
14, 2000.
(b) Closing Fees. On the Closing Date, the Company shall
pay to the Banks, through Agent, closing fees in the amount set forth in BofA's
commitment letter and term sheet dated June 14, 2000 and agreed to by the
Company.
23
(c) Commitment Fees.
(1) The Company shall pay to the Agent for the
account of each Bank a commitment fee on the actual daily unused portion of such
Bank's Commitment, computed on a quarterly basis in arrears on the last Business
Day of each calendar quarter, based upon the daily utilization for that quarter
as calculated by the Agent, at a rate per annum equal to the Commitment Fee Rate
in effect from time to time. For purposes of computing the commitment fee, Swing
Line Loans shall not constitute utilization of any Bank's Commitment.
(2) Such commitment fee shall accrue from the
Closing Date to the Revolving Termination Date and shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter
commencing on September 30, 2000 through the Revolving Termination Date, with
the final payment to be made on the Revolving Termination Date; provided that,
in connection with any increase, reduction or termination of Commitments under
Section 2.5(a), the accrued commitment fee calculated for the period ending on
such date shall also be paid on the date of such increase, reduction or
termination, with the following quarterly payment being calculated on the basis
of the period from such increase, reduction or termination date to such
quarterly payment date.
(3) The commitment fees provided in this
subsection shall accrue at all times after the above-mentioned commencement
date, including at any time during which one or more conditions in Article V are
not met.
2.10 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when
the Base Rate is determined by the Prime Rate shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue during
each period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent
shall be conclusive and binding on the Company and the Banks in the absence of
manifest error.
2.11 Payments by the Company.
(a) All payments (including prepayments) to be made by
the Company on account of principal, interest, fees, and other amounts required
hereunder shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Company shall be made
to the Agent for the account of the Banks at the Agent's Payment Office, and
shall be made in dollars and in immediately available funds, no later than 10:00
a.m. (San Francisco, California time) on the date specified herein. The Agent
will promptly distribute to each Bank its Pro Rata Share (or other applicable
share as expressly provided herein) of such payment in like funds as received.
Any payment received by the Agent
24
later than 1:00 p.m. (San Francisco, California time) shall be deemed to have
been received on the following Business Day and any applicable interest or fee
shall continue to accrue.
(b) Subject to the provisions set forth in the definition
of "Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Agent receives notice from the Company
prior to the date on which any payment is due to the Banks that the Company will
not make such payment in full as and when required, the Agent may assume that
the Company has made such payment in full to the Agent on such date in
immediately available funds and the Agent may (but shall not be so required), in
reliance upon such assumption, distribute to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent the Company
has not made such payment in full to the Agent, each Bank shall repay to the
Agent on demand such amount distributed to such Bank, together with interest
thereon at the Federal Funds Rate for each day from the date such amount is
distributed to such Bank until the date repaid.
2.12 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on or
prior to the Closing Date or, with respect to any Borrowing after the Closing
Date, at least one Business Day prior to the date of such Borrowing, that such
Bank will not make available as and when required hereunder to the Agent for the
account of the Company the amount of that Bank's Pro Rata Share of the
Borrowing, the Agent may assume that each Bank has made such amount available to
the Agent in immediately available funds on the Borrowing Date and the Agent may
(but shall not be so required), in reliance upon such assumption, make available
to the Company on such date a corresponding amount. If and to the extent any
Bank shall not have made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made available to the
Company such amount, that Bank shall on the Business Day following such
Borrowing Date make such amount available to the Agent, together with interest
at the Federal Funds Rate for each day during such period. A notice of the Agent
submitted to any Bank with respect to amounts owing under this subsection shall
be conclusive, absent manifest error. If such amount is so made available, such
payment to the Agent shall constitute such Bank's Loan on the date of Borrowing
for all purposes of this Agreement. If such amount is not made available to the
Agent on the Business Day following the Borrowing Date, the Agent will notify
the Company of such failure to fund and, upon demand by the Agent, the Company
shall pay such amount to the Agent for the Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any
Borrowing Date shall not relieve any other Bank of any obligation hereunder to
make a Loan on such Borrowing Date, but no Bank shall be responsible for the
failure of any other Bank to make the Loan to be made by such other Bank on any
Borrowing Date.
25
2.13 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Bank shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Banks such participations in the
Loans made by them as shall be necessary to cause such purchasing Bank to share
the excess payment pro rata with each of them; provided that if all or any
portion of such excess payment is thereafter recovered from the purchasing Bank,
such purchase shall to that extent be rescinded and each other Bank shall repay
to the purchasing Bank the purchase price paid therefor, together with an amount
equal to such paying Bank's ratable share (according to the proportion of (i)
the amount of such paying Bank's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. The
Company agrees that any Bank so purchasing a participation from another Bank
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 11.10) with respect to
such participation as fully as if such Bank were the direct creditor of the
Company in the amount of such participation. The Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Banks following any such purchases or repayments.
2.14 Swing Line Commitment. Subject to the terms and conditions of
this Agreement, the Swing Line Bank agrees to make loans to the Company on a
revolving basis (each such loan, a "Swing Line Loan") from time to time on any
Business Day during the period from the Closing Date to the Revolving
Termination Date in an aggregate principal amount at any one time outstanding
not to exceed $10,000,000; provided that after giving effect to any proposed
Swing Line Loan, the aggregate principal amount of all outstanding Loans shall
not at any time exceed the combined Commitments.
2.15 Borrowing Procedures for Swing Line Loans. The Company shall
provide a Notice of Swing Line Loan or telephonic notice (followed by a
confirming Notice of Swing Line Loan) of a proposed Swing Line Loan to the Agent
and the Swing Line Bank not later than 11:00 a.m. (San Francisco, California
time) on the proposed Borrowing Date. Each such notice shall be effective upon
receipt by the Agent and the Swing Line Bank and shall specify the date and the
principal amount of such Swing Line Loan. Unless the Swing Line Bank has
received written notice prior to 11:00 a.m. (San Francisco, California time) on
the proposed Borrowing Date from the Agent or any Bank that one or more of the
conditions precedent set forth in Article V with respect to such Swing Line Loan
is not then satisfied, the Swing Line Bank shall pay over the requested
principal amount to the Company on the requested Borrowing Date in immediately
available funds. Each Swing Line Loan shall be made on a Business Day and shall
be in the amount of $100,000 or a higher integral multiple of $25,000. The Swing
Line Bank will promptly notify the Agent of the making and amount of each Swing
Line Loan.
2.16 Prepayment or Refunding of Swing Line Loans.
(a) The Company may, at any time and from time to time,
prepay any Swing Line Loan in whole or in part, in an amount equal to $100,000
or a higher integral multiple of
26
$25,000. The Company shall deliver a notice of prepayment in accordance with
Section 11.2 to be received by the Agent and the Swing Line Bank not later than
11:00 a.m. (San Francisco, California time) on the Business Day of such
prepayment, specifying the date and amount of such prepayment. If such notice is
given by the Company, the payment amount specified in such notice shall be due
and payable on the date specified therein.
(b) The Swing Line Bank may, at any time in its sole and
absolute discretion, on behalf of the Company (which hereby irrevocably directs
the Swing Line Bank to act on its behalf), request each Bank to make a Loan in
an amount equal to such Bank's Pro Rata Share of the principal amount of the
Swing Line Loans outstanding on the date such notice is given. Unless any of the
events described in subsection 9.1(f) or (g) shall have occurred (in which event
the procedures of Section 2.17 shall apply), and regardless of whether the
conditions precedent set forth in this Agreement to the making of Loans are then
satisfied or the aggregate amount of such Loans is not in the minimum or
integral amount otherwise required hereunder, each Bank shall make the proceeds
of its Loan available to the Agent for the account of the Swing Line Bank at the
Agent's Payment Office prior to l1:00 a.m. (San Francisco, California time) in
immediately available funds on the Business Day next succeeding the date such
notice is given. The proceeds of such Loans shall be immediately applied to
repay the outstanding Swing Line Loans. All Loans made pursuant to this Section
2.16 shall be Base Rate Loans (but, subject to the other provisions of this
Agreement, may be converted to Offshore Rate Loans).
2.17 Participations in Swing Line Loans. If an event described in
subsection 9.1(f) or (g) exists (or for any reason the Banks may not make Loans
pursuant to Section 2.18), each Bank will, upon notice from the Agent, purchase
from the Swing Line Bank (and the Swing Line Bank will sell to each Bank) an
undivided participation interest in all outstanding Swing Line Loans in an
amount equal to its Pro Rata Share of the outstanding principal amount of the
Swing Line Loans (and each Bank will immediately transfer to the Agent, for the
account of the Swing Line Bank, in immediately available funds, the amount of
its participation).
Whenever, at any time after the Swing Line Bank has received payment
for any Bank's participation interest in the Swing Line Loans pursuant to
subsection 2.17(a), the Swing Line Bank receives any payment on account thereof,
the Swing Line Bank will distribute to the Agent for the account of such Bank
its participation interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Bank's
participation interest was outstanding and funded) in like funds as received;
provided that in the event that such payment received by the Swing Line Bank is
required to be returned, such Bank will return to the Agent for the account of
the Swing Line Bank any portion thereof previously distributed by the Swing Line
Bank to it in like funds as such payment is required to be returned by the Swing
Line Bank.
2.18 Participation Obligations Unconditional.
(a) Each Bank's obligation to make Loans pursuant to
Section 2.16 and/or to purchase participation interests in Swing Line Loans
pursuant to Section 2.17 shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against the Swing Line Bank, the Company or any other Person for any reason
whatsoever; (ii) the
27
occurrence or continuance of a Default or Event of Default; (iii) any adverse
change in the condition (financial or otherwise) of the Company or any other
Person; (iv) any breach of this Agreement or any other Loan Document by the
Company or any other Person; (v) any inability of the Company to satisfy the
conditions precedent to borrowing set forth in this Agreement on the date upon
which any such Loan is to be made or any participation interest therein is to be
purchased; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(b) Notwithstanding the provisions of subsection 2.18(a),
no Bank shall be required to make any Loan to the Company to refund a Swing Line
Loan pursuant to Section 2.16 or to purchase a participation interest in a Swing
Line Loan pursuant to Section 2.17 if, prior to the making by the Swing Line
Bank of such Swing Line Loan, the Swing Line Bank received written notice from
any Bank specifying that such Bank believed in good faith that one or more of
the conditions precedent to the making of such Swing Line Loan were not
satisfied and, in fact, such conditions precedent were not satisfied at the time
of the making of such Swing Line Loan; provided that the obligation of such Bank
to make such Loans and to purchase such participation interests shall be
reinstated upon the earlier to occur of (i) the date on which such Bank notifies
the Swing Line Bank that its prior notice has been withdrawn and (ii) the date
on which all conditions precedent to the making of such Swing Line Loan have
been satisfied (or waived by the Majority Banks or all Banks, as applicable).
2.19 Conditions to Swing Line Loans. Notwithstanding any other
provision of this Agreement, the Swing Line Bank shall not be obligated to make
any Swing Line Loan if a Default or an Event of Default exists or would result
therefrom.
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility.
(a) On the terms and conditions set forth herein (i) each
Issuing Bank agrees, (A) from time to time on any Business Day during the period
from the date hereof to the Revolving Termination Date to issue Letters of
Credit for the account of the Company (including Letters of Credit issued
jointly for the account of the Company and any Affiliate), and to amend or renew
Letters of Credit previously issued by it, in accordance with subsections 3.2(c)
and 3.02(d), and (B) to honor properly drawn drafts under the Letters of Credit
issued by it; and (ii) the Banks severally agree to participate in Letters of
Credit Issued for the account of the Company; provided that no Issuing Bank
shall be obligated to Issue, and no Bank shall be obligated to participate in,
any Letter of Credit if as of the date of Issuance of such Letter of Credit (the
"Issuance Date") (1) the sum of the aggregate principal amount of all
outstanding Loans plus the Effective Amount of all L/C Obligations exceed the
combined Commitments, (2) the Effective Amount of all L/C Obligations would
exceed the L/C Commitment or (3) the participation of any Bank in the Effective
Amount of all L/C Obligations plus the outstanding principal amount of the Loans
of such Bank would exceed such Bank's Commitment. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Company's ability to
obtain Letters of Credit shall be fully revolving, and, accordingly, the Company
may, during
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the foregoing period, obtain Letters of Credit to replace Letters of Credit
which have expired or which have been drawn upon and reimbursed.
(b) No Issuing Bank shall be under any obligation to
Issue any Letter of Credit if:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to enjoin or
restrain such Issuing Bank from Issuing such Letter of Credit, or any
Requirement of Law applicable to such Issuing Bank or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing
Bank refrain from, the Issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon such Issuing Bank with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which such
Issuing Bank is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost
or expense which was not applicable on the Closing Date and which such Issuing
Bank in good xxxxx xxxxx material to it (it being understood that the applicable
Issuing Bank shall promptly notify the Company and the Agent of any of the
foregoing events or circumstances);
(ii) such Issuing Bank has received written
notice from any Bank, the Agent or the Company, on or prior to the Business Day
prior to the requested date of Issuance of such Letter of Credit, that one or
more of the applicable conditions contained in Article V is not then satisfied;
(iii) the expiry date of such requested Letter of
Credit is after the scheduled Revolving Termination Date, unless all of the
Banks have approved such expiry date in writing;
(iv) such Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable to such Issuing
Bank, or the Issuance of a Letter of Credit shall violate any applicable
policies of such Issuing Bank; or
(v) such Letter of Credit is denominated in a
currency other than Dollars.
(c) On and after the Closing Date, the Existing Letters
of Credit shall be deemed for all purposes to be Letters of Credit outstanding
under this Agreement. Each Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank on the Closing Date a
participation in each Existing Letter of Credit and each drawing thereunder in
an amount equal to the product of (i) such Bank's applicable Pro Rata Share
times (ii) the maximum amount available to be drawn under such Letter of Credit
and the amount of each drawing thereunder, respectively.
3.2 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the
irrevocable written request of the Company received by the applicable Issuing
Bank (with a copy sent by the Company to
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the Agent) at least one Business Day (or such shorter time as the applicable
Issuing Bank and the Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of issuance. Each such request for
issuance of a Letter of Credit shall be by facsimile, confirmed immediately (by
messenger or overnight courier) in an original writing, in the form of an L/C
Application, and shall specify in form and detail satisfactory to the applicable
Issuing Bank: (i) the face amount of the Letter of Credit; (ii) the expiry date
of the Letter of Credit; (iii) the name and address of the beneficiary thereof;
(iv) the documents to be presented by the beneficiary of the Letter of Credit in
case of any drawing thereunder; (v) the full text of any certificate to be
presented by the beneficiary in case of any drawing thereunder; and (vi) such
other matters as such Issuing Bank may require.
(b) Promptly upon receipt of any L/C Application or L/C
Amendment Application, the applicable Issuing Bank will confirm with the Agent
(by telephone or in writing) that the Agent has received a copy of such L/C
Application or L/C Amendment Application from the Company and, if not, such
Issuing Bank will provide the Agent with a copy thereof. Unless the applicable
Issuing Bank has received on or before the Business Day immediately preceding
the date such Issuing Bank is to issue a requested Letter of Credit, (A) notice
from the Agent directing such Issuing Bank not to issue such Letter of Credit
because such issuance is not then permitted under subsection 3. 1(a) as a result
of the limitations set forth in clauses (1) through (3) thereof or (B) a notice
described in subsection 3.1(b)(ii), then, subject to the terms and conditions
hereof, such Issuing Bank shall, on the requested date, issue a Letter of Credit
for the account of the Company in accordance with such Issuing Bank's usual and
customary business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Revolving Termination Date, the applicable Issuing
Bank will, upon the written request of the Company received by such Issuing Bank
(with a copy sent by the Company to the Agent) at least one Business Day (or
such shorter time as the applicable Issuing Bank and the Agent may agree in a
particular instance in their sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made by facsimile, confirmed
immediately (by messenger or overnight courier) in an original writing, made in
the form of an L/C Amendment Application and shall specify in form and detail
satisfactory to such Issuing Bank: (i) the Letter of Credit to be amended; (ii)
the proposed date of amendment of such Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed amendment; and (iv) such other
matters as such Issuing Bank may require. No Issuing Bank shall have any
obligation to amend any Letter of Credit if: (A) such Issuing Bank would have no
obligation at such time to issue such Letter of Credit in its amended form under
the terms of this Agreement; or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit. The Agent will
promptly notify the Banks of any Issuance or amendment of a Letter of Credit.
(d) The Issuing Banks and the Banks agree that, while a
Letter of Credit is outstanding and prior to the Revolving Termination Date, at
the option of the Company and upon the written request of the Company received
by the applicable Issuing Bank (with a copy sent by the Company to the Agent) at
least one Business Day (or such shorter time as the applicable Issuing Bank and
the Agent may agree in a particular instance in their sole discretion) prior to
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the proposed date of notification of renewal, the applicable Issuing Bank shall
be entitled to authorize the automatic renewal of any Letter of Credit issued by
it. Each such request for renewal of a Letter of Credit shall be made by
facsimile, confirmed immediately in an original writing, in the form of an L/C
Amendment Application, and shall specify in form and detail satisfactory to the
applicable Issuing Bank: (i) the Letter of Credit to be renewed; (ii) the
proposed date of notification of renewal of such Letter of Credit (which shall
be a Business Day); (iii) the revised expiry date of such Letter of Credit
(which, unless all Banks otherwise consent in writing, shall be prior to the
Revolving Termination Date); and (iv) such other matters as such Issuing Bank
may require. No Issuing Bank shall be under any obligation to renew any Letter
of Credit if: (A) such Issuing Bank would have no obligation at such time to
issue or amend such Letter of Credit in its renewed form under the terms of this
Agreement; or (B) the beneficiary of such Letter of Credit does not accept the
proposed renewal of such Letter of Credit. If any outstanding Letter of Credit
shall provide that it shall be automatically renewed unless the beneficiary
thereof receives notice from the applicable Issuing Bank that such Letter of
Credit shall not be renewed, and if at the time of renewal such Issuing Bank
would be entitled to authorize the automatic renewal of such Letter of Credit in
accordance with this subsection 3.2(d) upon the request of the Company but such
Issuing Bank shall not have received any L/C Amendment Application from the
Company with respect to such renewal or other written direction by the Company
with respect thereto, such Issuing Bank shall nonetheless be permitted to allow
such Letter of Credit to renew, and the Company and the Banks hereby authorize
such renewal, and, accordingly, such Issuing Bank shall be deemed to have
received an L/C Amendment Application from the Company requesting such renewal.
(e) Each Issuing Bank may, at its election (or as
required by the Agent at the direction of the Majority Banks), deliver any
notice of termination or other communication to any Letter of Credit beneficiary
or transferee, and take any other action as necessary or appropriate, at any
time and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Revolving Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of Credit).
(g) Each Issuing Bank will deliver to the Agent and the
Company, concurrently or promptly following its delivery of a Letter of Credit,
or amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of such Letter of Credit or of such
amendment or renewal.
3.3 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of
Credit on or after the date on which all conditions are satisfied under Section
5.1, each Bank shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the applicable Issuing Bank a participation in such
Letter of Credit and each drawing thereunder in an amount equal to the product
of (i) such Bank's Pro Rata Share times (ii) the maximum amount available to be
drawn under such Letter of Credit and the amount of such drawing, respectively.
For purposes of Section 2.1, each Issuance of a Letter of Credit shall be deemed
to utilize the Commitment of each Bank by an amount equal to the amount of such
participation.
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(b) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the applicable
Issuing Bank will promptly notify the Company and the Agent. The Company shall
(subject, if applicable, to its right to obtain Base Rate Loans as provided
below) reimburse the applicable Issuing Bank prior to 11:00 a.m. San Francisco,
California time on each date that any amount is paid by such Issuing Bank under
any Letter of Credit (each such date, an "Honor Date") in an amount equal to the
amount so paid by such Issuing Bank; provided that, to the extent that any
Issuing Bank accepts a drawing under a Letter of Credit after 11:00 a.m. San
Francisco, California time, the Company will not be obligated to reimburse such
Issuing Bank until the next Business Day and the "Honor Date" for such Letter of
Credit shall be such next Business Day. If the Company fails to reimburse an
Issuing Bank for the full amount of any drawing under any Letter of Credit by
11:00 a.m. San Francisco, California time on the Honor Date, such Issuing Bank
will promptly notify the Agent and the Agent will promptly notify each Bank
thereof (no later than 12:00 noon San Francisco, California time on such Honor
Date), and the Company shall be deemed to have requested that Base Rate Loans be
made by the Banks to be disbursed on the Honor Date under such Letter of Credit,
subject to the amount of the unutilized portion of the combined Commitments and
subject to the conditions set forth in Section 5.2 other than subsection 5.2(a).
Any notice given by an Issuing Bank or the Agent pursuant to this subsection
3.3(b) may be oral if immediately confirmed in writing (including by facsimile);
provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(c) Each Bank shall upon any notice pursuant to
subsection 3.3(b) make available to the Agent for the account of the applicable
Issuing Bank an amount in Dollars and in immediately available funds equal to
its Pro Rata Share of the amount of the drawing, whereupon the Banks shall
(subject to subsection 3.3(d)) each be deemed to have made a Loan consisting of
a Base Rate Loan to the Company in such amount. If any Bank so notified fails to
make available to the Agent for the account of the applicable Issuing Bank the
amount of such Bank's Pro Rata Share of the amount of such drawing by no later
than 2:00 p.m. San Francisco, California time on the Honor Date, then interest
shall accrue on such Bank's obligation to make such payment, from the Honor Date
to the date such Bank makes such payment, at a rate per annum equal to the
Federal Funds Rate in effect from time to time during such period. The Agent
will promptly give notice of the occurrence of the Honor Date, but failure of
the Agent to give any such notice on the Honor Date or in sufficient time to
enable any Bank to effect such payment on such date shall not relieve such Bank
from its obligations under this Section 3.3 (but shall relieve any such Bank
from its obligation to pay such interest so long as it makes such payment on the
next Business Day following the date such notice is given by the Agent).
(d) With respect to any unreimbursed drawing that is not
converted into Base Rate Loans in whole or in part, because of the Company's
failure to satisfy the conditions set forth in Section 5.2 (other than
subsection 5.2(a) which need not be satisfied) or for any other reason, the
Company shall be deemed to have incurred from the applicable Issuing Bank an L/C
Borrowing in the amount of such drawing, which L/C Borrowing shall be due and
payable on demand and shall bear interest (payable on demand) at a rate per
annum equal to the sum of the Base Rate plus the Base Rate Margin plus 2%, and
each Bank's payment to such Issuing Bank pursuant to subsection 3.3(c) shall be
deemed payment in respect of its participation in such L/C
32
Borrowing and shall constitute an L/C Advance from such Bank in satisfaction of
its participation obligation under this Section 3.3.
(e) Each Bank's obligation in accordance with this
Agreement to make the Loans or L/C Advances, as contemplated by this Section
3.3, as a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to any Issuing Bank and shall not be affected
by any circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right which such Bank may have against the applicable Issuing
Bank, the Company or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of a Default, an Event of Default or a Material
Adverse Effect; or (iii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided that each Bank's
obligation to make Loans under this Section 3.3 is subject to the conditions set
forth in Section 5.2 (other than subsection 5.2(a)).
3.4 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the
account of an Issuing Bank of immediately available funds from the Company (i)
in reimbursement of any payment made by such Issuing Bank under a Letter of
Credit with respect to which any Bank has paid the Agent for the account of such
Issuing Bank for such Bank's participation in such Letter of Credit pursuant to
Section 3.3 or (ii) in payment of interest thereon, the Agent will pay to each
Bank, in the same funds as those received by the Agent for the account of such
Issuing Bank, the amount of such Bank's Pro Rata Share of such funds, and such
Issuing Bank shall receive the amount of the Pro Rata Share of such funds of any
Bank that did not so pay the Agent for the account of such Issuing Bank.
(b) If the Agent or an Issuing Bank is required at any
time to return to the Company, or to a trustee, receiver, liquidator or
custodian, or to any official in any Insolvency Proceeding, any portion of any
payment made by the Company to the Agent for the account of an Issuing Bank
pursuant to subsection 3.4(a) in reimbursement of a payment made under a Letter
of Credit or interest or fee thereon, each Bank shall, on demand of the Agent,
forthwith return to the Agent or the applicable Issuing Bank the amount of its
Pro Rata Share of any amount so returned by the Agent or such Issuing Bank plus
interest thereon from the date such demand is made to the date such amount is
returned by such Bank to the Agent or such Issuing Bank, at a rate per annum
equal to the Federal Funds Rate in effect from time to time.
3.5 Role of the Issuing Banks.
(a) Each Bank and the Company agree that, in paying any
drawing under a Letter of Credit, the applicable Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft and
certificate expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.
(b) No Issuing Bank or Agent-Related Person, nor any of
their respective correspondents, participants or assignees, shall be liable to
any Bank for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Banks (including the
33
Majority Banks, as applicable); (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; provided that this assumption is not intended to, and shall not,
preclude the Company's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. No Issuing
Bank or Agent-Related Person, nor any of their respective correspondents,
participants or assignees, shall be liable or responsible for any of the matters
described in clauses (i) through (vii) of Section 3.6; provided that, anything
in such clauses to the contrary notwithstanding, the Company may have a claim
against an Issuing Bank, and such Issuing Bank may be liable to the Company, to
the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by the Company which the Company proves were
caused by such Issuing Bank's willful misconduct or gross negligence or such
Issuing Bank's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing: (i) an Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) no Issuing Bank shall be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
3.6 Obligations Absolute. The obligations of the Company under
this Agreement and any L/C-Related Document to reimburse the applicable Issuing
Bank for a drawing under a Letter of Credit, and to repay any L/C Borrowing and
any drawing under a Letter of Credit converted into Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C-Related Document under all
circumstances, including the following:
(i) any lack of validity or enforceability of
this Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations of the
Company in respect of any Letter of Credit or any other amendment or waiver of
or any consent to departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense
or other right that the Company may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the applicable Issuing Bank
or any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by any L/C-Related Document or any unrelated transaction;
(iv) any draft, demand, certificate or other
document presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any
34
statement therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit;
(v) any payment by an Issuing Bank under any
Letter of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment made by
an Issuing Bank under any Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of any Letter of Credit, including any arising in
connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of
any collateral, or any release or amendment or waiver of or consent to departure
from any other guarantee, for all or any of the obligations of the Company in
respect of any Letter of Credit; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Company or a guarantor.
3.7 Cash Collateral Pledge. If any Letter of Credit remains
outstanding and partially or wholly undrawn as of the Revolving Termination
Date, then the Company shall immediately Cash Collateralize the L/C Obligations
in an amount equal to the maximum amount then available to be drawn under all
Letters of Credit.
3.8 Letter of Credit Fees.
(a) The Company shall pay to the Agent for the account of
each Bank a letter of credit fee with respect to each Letter of Credit equal to
the L/C Fee Rate per annum of the average daily maximum amount available to be
drawn on such Letter of Credit, computed on a quarterly basis in arrears on the
last Business Day of each calendar quarter and on the Revolving Termination Date
(or such later date on which such Letter of Credit shall expire or be fully
drawn).
(b) The letter of credit fees payable under subsection
3.8(a) shall be due and payable quarterly in arrears on the last Business Day of
each calendar quarter during which Letters of Credit are outstanding, commencing
on the first such quarterly date to occur after the Closing Date through the
Revolving Termination Date (or such later date upon which all outstanding
Letters of Credit shall expire or be fully drawn), with the final payment to be
made on the Revolving Termination Date (or such later date).
(c) The Company shall pay to each Issuing Bank a letter
of credit fronting fee at such times and in such amounts as are mutually agreed
to from time to time by the Company and such Issuing Bank.
(d) The Company shall pay to each Issuing Bank from time
to time on demand the normal issuance, presentation, amendment and other
processing fees, and other
35
standard costs and charges, of such Issuing Bank relating to each Letter of
Credit as from time to time in effect.
3.9 Uniform Customs and Practice. The Uniform Customs and Practice
for Documentary Credits as published by the International Chamber of Commerce
("UCP") most recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in such Letter of Credit) apply to such
Letter of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes.
(a) Any and all payments by the Company to each Bank or
the Agent under this Agreement and any other Loan Document shall be made free
and clear of, and without deduction or withholding for any Taxes. In addition,
the Company shall pay all Other Taxes.
(b) The Company agrees to indemnify and hold harmless
each Bank and the Agent for the full amount of Taxes or Other Taxes (including
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under
this Section) paid by the Bank or the Agent and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Payment under this indemnification shall be made within 30
days after the date the Bank or the Agent makes written demand therefor.
(c) If the Company shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, then:
(1) the sum payable shall be increased as
necessary so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums payable
under this Section) such Bank or the Agent, as the case may be, receives an
amount equal to the sum it would have received had no such deductions or
withholdings been made;
(2) the Company shall make such deductions and
withholdings;
(3) the Company shall pay the full amount
deducted or withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(4) the Company shall also pay to each Bank or
the Agent for the account of such Bank, at the time interest is paid, all
additional amounts which the respective Bank specifies as necessary to preserve
the after-tax yield the Bank would have received if such Taxes or Other Taxes
had not been imposed.
(d) Within 30 days after the date of any payment by the
Company of Taxes or Other Taxes, the Company shall furnish the Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Agent.
36
(e) If the Company is required to pay additional amounts
to any Bank or the Agent pursuant to subsection (c) of this Section, then such
Bank shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Company which may thereafter
accrue, if such change in the judgment of such Bank is not otherwise
disadvantageous to such Bank.
4.2 Illegality.
(a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office to make
Offshore Rate Loans, then, on notice thereof by the Bank to the Company through
the Agent, any obligation of that Bank to make Offshore Rate Loans shall be
suspended until the Bank notifies the Agent and the Company that the
circumstances giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain
any Offshore Rate Loan, the Company shall, upon its receipt of notice of such
fact and demand from such Bank (with a copy to the Agent), prepay in full such
Offshore Rate Loans of that Bank then outstanding, together with interest
accrued thereon and amounts required under Section 4.04, either on the last day
of the Interest Period thereof, if the Bank may lawfully continue to maintain
such Offshore Rate Loans to such day, or immediately, if the Bank may not
lawfully continue to maintain such Offshore Rate Loan. If the Company is
required to so prepay any Offshore Rate Loan, then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount of
such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or maintain
Offshore Rate Loans has been so terminated or suspended, the Company may elect,
by giving notice to the Bank through the Agent that all Loans which would
otherwise be made by the Bank as Offshore Rate Loans shall be instead Base Rate
Loans.
(d) Before giving any notice to the Agent under this
Section, the affected Bank shall designate a different Lending Office with
respect to its Offshore Rate Loans if such designation will avoid the need for
giving such notice or making such demand and will not, in the judgment of the
Bank, be illegal or otherwise disadvantageous to the Bank.
4.3 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the
introduction of or any change (other than any change by way of imposition of or
increase in reserve requirements included in the calculation of the Offshore
Rate) in or in the interpretation of any law or regulation or (ii) the
compliance by that Bank with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Bank of agreeing to make or making,
funding or maintaining any Offshore Rate Loans or participating in any Letter of
Credit, or, in the case of an Issuing Bank, any increase in the cost to such
Issuing Bank of agreeing to issue, issuing or maintaining any
37
Letter of Credit or of agreeing to make or making, funding or maintaining any
unpaid drawing under any Letter of Credit, then the Company shall be liable for,
and shall from time to time, upon demand (with a copy of such demand to be sent
to the Agent), pay to the Agent for the account of such Bank, additional amounts
as are sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by the Bank (or its Lending Office) or any corporation controlling
the Bank with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by the Bank or any
corporation controlling the Bank and (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy and such Bank's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Commitment, loans, credits or obligations
under this Agreement, then, upon demand of such Bank to the Company through the
Agent, the Company shall pay to the Bank, from time to time as specified by the
Bank, additional amounts sufficient to compensate the Bank for such increase.
4.4 Funding Losses. The Company shall reimburse each Bank and
hold each Bank harmless from any loss or expense which the Bank may sustain or
incur as a consequence of:
(a) the failure of the Company to make on a timely basis
any payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or
convert a Loan after the Company has given (or is deemed to have given) a Notice
of Borrowing or a Notice of Conversion/Continuation;
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under Section 2.6;
(d) the prepayment or other payment (including after
acceleration thereof) of an Offshore Rate Loan on a day that is not the last day
of the relevant Interest Period; or
(e) the automatic conversion under Section 2.4 of any
Offshore Rate Loan or to a Base Rate Loan on a day that is not the last day of
the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Banks under this Section and
under subsection 4.04(a), each Offshore Rate Loan made by a Bank (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the LIBOR used in determining the Offshore Rate
for such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank
38
eurodollar market for a comparable amount and for a comparable period, whether
or not such Offshore Rate Loan is in fact so funded.
4.5 Inability to Determine Rates. If the Agent determines that for
any reason adequate and reasonable means do not exist for determining the
Offshore Rate for any requested Interest Period with respect to a proposed
Offshore Rate Loan or that the Offshore Rate applicable for any requested
Interest Period with respect to a proposed Offshore Rate Loan does not
adequately and fairly reflect the cost to the Banks of funding such Loan, the
Agent will promptly so notify the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans hereunder shall
be suspended until the Agent upon the instruction of the Majority Banks revokes
such notice in writing. Upon receipt of such notice, the Company may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Company does not revoke such Notice, the Banks shall make, convert or
continue the Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans shall be made,
converted or continued as Base Rate Loans instead of Offshore Rate Loans.
4.6 Reserves on Offshore Rate Loans. The Company shall pay to each
Bank, as long as such Bank shall be required under regulations of the FRB to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional costs on the unpaid principal amount of each Offshore
Rate Loan equal to the actual costs of such reserves allocated to such Loan by
the Bank (as determined by the Bank in good faith, which determination shall be
conclusive), payable on each date on which interest is payable on such Loan,
provided the Company shall have received at least 15 days' prior written notice
(with a copy to the Agent) of such additional interest from the Bank. If a Bank
fails to give notice 15 days prior to the relevant Interest Payment Date, such
additional interest shall be payable 15 days from receipt of such notice.
4.7 Survival. The agreements and obligations of the Company in
this Article IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions of Initial Loans Etc. The obligation of each Bank
to make its initial Loan hereunder (including the obligation of the Swing Line
Bank to make any Swing Line Loan and the Issuing Bank to Issue any Letter of
Credit) or to convert or continue any Loan outstanding on the Closing Date is
subject to the condition that the Agent have received on or before the Closing
Date all of the following, in form and substance satisfactory to the Agent and
each Bank, and in sufficient copies for each Bank:
(a) Agreement. This Agreement executed by each party
thereto;
(b) Resolutions; Incumbency.
39
(1) Copies of the resolutions of the board of
directors of the Company authorizing the transactions contemplated hereby,
certified as of the Closing Date by the Secretary or an Assistant Secretary of
the Company; and
(2) A certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true signatures of the
officers of the Company authorized to execute, deliver and perform, as
applicable, this Agreement, and all other Loan Documents to be delivered by it
hereunder.
(c) Legal Opinion. An opinion of Freeland, Cooper,
LeHockey & Hamburg, counsel to the Company and addressed to the Agent and the
Banks, substantially in the form of Exhibit F;
(d) Payment of Fees. Evidence of payment by the Company
of all accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date, together with Attorney Costs of BofA to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute BofA's reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude final settling of accounts between
the Company and BofA); including any such costs, fees and expenses arising under
or referenced in Sections 2.09 and 11.04;
(e) Prior Credit Agreement; Payment of Sums Due and
Termination of Commitment to Lend Under the Prior Credit Agreement. Evidence of:
(1) Payment by the Company of all amounts
payable (including principal, interest and commitment fees through the Closing
Date under the Prior Credit Agreement) under the Prior Credit Agreement, except
for any break-funding fees associated with the prepayment of outstanding Loans
under the Prior Credit Agreement in connection with payment and prepayment of
such Loans under this clause. These fees are due and payable upon demand; and
(2) Termination of the various commitments to
extend credit under the Prior Credit Agreement.
(f) Certificate. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that:
(1) the representations and warranties contained
in Article VI are true and correct on and as of such date, as though made on and
as of such date;
(2) no Default or Event of Default exists or
would result from execution and performance of this Agreement by the Company;
and
(3) there has occurred since December 31, 1999
no event or circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
40
(g) Other Documents. Such other approvals, opinions,
documents or materials as the Agent or any Bank may reasonably request.
5.2 Conditions to All Borrowings. The obligation of each Bank to
make any Loan to be made by it (including its initial Loan, and the obligation
of the Swing Line Bank to make any Swing Line Loan and Issuing Bank to Issue any
Letter of Credit) or to continue or convert any Loan under Section 2.04
(including continuations or conversions of Loans outstanding on the Closing
Date) is subject to the satisfaction of the following conditions precedent on
the relevant Borrowing Date, Issuance Date or Conversion/Continuation Date:
(a) Notices Regarding Loans and Letters of Credit. The
Agent shall have received a Notice of Borrowing, a Notice of
Conversion/Continuation or a Notice of Swing Line Loan, as applicable or, in the
case of the Issuance of any Letter of Credit, the applicable Issuing Bank and
the Agent shall have received an L/C Application or L/C Amendment Application,
as required under Section 3.2;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct on and as
of such Borrowing Date, Issuance Date or Conversion/Continuation Date with the
same effect as if made on and as of such Borrowing Date, Issuance Date or
Conversion/Continuation Date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default
exists or shall result from such Borrowing or continuation or conversion.
Each Notice of Borrowing, Notice of Swing Line Loans, notice of acceptance of an
L/C Application and L/C Amendment Application and Notice of
Conversion/Continuation submitted by the Company hereunder shall constitute a
representation and warranty by the Company hereunder, as of the date of each
such notice and as of each Borrowing Date, Issuance Date or
Conversion/Continuation Date, as applicable, that the conditions in this Section
5.02 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
New Dreyer's and, with respect to itself and its Subsidiaries to the
extent applicable, the Company represent and warrant to the Agent and each Bank
that:
6.1 Corporate Existence and Power. New Dreyer's and each of its
Subsidiaries, other than Dreyer's International, Inc.:
(a) is a corporation or limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization;
41
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals necessary (i) to own its assets
and carry on its business and (ii) to execute, deliver and perform its
obligations under the Loan Documents to which it is a party;
(c) is duly qualified as a foreign corporation or limited
liability company and is licensed and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification or license; and
(d) is in compliance with all Requirements of Law;
except, in the case of clauses (b)(i), (c) and (d) above, to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.2 Corporate Authorization; No Contravention. The execution,
delivery and performance by New Dreyer's and the Company of this Agreement, and
by New Dreyer's, the Company and each other Subsidiary of each other Loan
Document to which such Person is a party, have been duly authorized by all
necessary corporate or member action, and do not and will not:
(a) contravene the terms of any Organization Document of
New Dreyer's, the Company or any other Subsidiary;
(b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document evidencing any
Contractual Obligation to which New Dreyer's, the Company or any other
Subsidiary is a party or any order, injunction, writ or decree of any
Governmental Authority to which New Dreyer's, the Company or any other
Subsidiary or its property is subject; or
(c) violate any Requirement of Law.
6.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, New Dreyer's, the Company or any other Subsidiary of this Agreement or
any other Loan Document.
6.4 Binding Effect. Each Loan Document (including this Agreement)
to which New Dreyer's, the Company or any other Subsidiary is a party
constitutes the legal, valid and binding obligation of such Person, enforceable
against such Person 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.
6.5 Litigation. There are no actions, suits, proceedings, claims
or disputes pending or, to the best knowledge of New Dreyer's and the Company,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, against New Dreyer's or any Subsidiary or any of their
respective properties which:
42
(a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated hereby or thereby;
or
(b) if determined adversely to New Dreyer's or the
applicable Subsidiary, would reasonably be expected to have a Material Adverse
Effect. No injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
6.6 No Default. No Default or Event of Default exists or would
result from the incurring of any Obligations by the Company. As of the Third
Amendment Effective Date, none of New Dreyer's, the Company or any other
Subsidiary is in default under or with respect to any Contractual Obligation in
any respect which, individually or together with all such defaults, could
reasonably be expected to have a Material Adverse Effect, or that would, if such
default had occurred after the Third Amendment Effective Date, create an Event
of Default under subsection 9.01(e).
6.7 ERISA Compliance. Except as specifically disclosed in Schedule
6.07:
(a) Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or state
law. Each Plan which is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS and, to the best
knowledge of New Dreyer's and the Company, nothing has occurred which would
cause the loss of such qualification. New Dreyer's and its ERISA Affiliates have
made all required contributions to any Plan subject to Section 412 of the Code,
and no application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code has been made with respect to any
Plan.
(b) There are no pending or, to the best knowledge of New
Dreyer's and the Company, threatened claims, actions or lawsuits, or action by
any Governmental Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with
respect to any Plan which has resulted or could reasonably be expected to result
in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither New Dreyer's nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) neither New Dreyer's nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither New Dreyer's nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
43
6.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans
are to be used solely for the purposes set forth in and permitted by Section
7.12 and Section 8.7. None of New Dreyer's, the Company or any other Subsidiary
is generally engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin Stock.
6.9 Title to Properties. New Dreyer's and each Subsidiary have
good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of their
respective businesses, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As of the
Third Amendment Effective Date, the properties of New Dreyer's and its
Subsidiaries are subject to no Liens, other than Permitted Liens.
6.10 Taxes. New Dreyer's and its Subsidiaries have filed all
Federal and other material tax returns and reports required to be filed, and
have paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
New Dreyer's or any Subsidiary that would, if made, have a Material Adverse
Effect.
6.11 Financial Condition.
(a) (i) The audited consolidated financial statements of
the Company and its Subsidiaries dated December 28, 2002, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for the fiscal year then ended:
(1) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein;
(2) fairly present the financial condition of
the Company and its Subsidiaries as of the date thereof and the results of their
operations for the period covered thereby; and
(3) except as specifically disclosed in Schedule
6.11, show all material indebtedness and other liabilities, direct or
contingent, of the Company and its consolidated Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Contingent
Obligations.
(ii) Since December 28, 2002, there has been no material adverse
change in, or material adverse effect upon, the operations, business,
properties, assets, liabilities (actual or contingent), condition (financial or
otherwise) or prospects of the Company and its Subsidiaries taken as a whole.
(b) (i) The audited consolidated financial statements of
NICC and its Subsidiaries dated September 29, 2002, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
period then ended:
44
(1) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein;
(2) fairly present the financial condition of
NICC and its Subsidiaries as of the date thereof and the results of their
operations for the period covered thereby; and
(3) except as specifically disclosed in Schedule
6.11, show all material indebtedness and other liabilities, direct or
contingent, of NICC and its consolidated Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Contingent
Obligations.
(ii) Since September 29, 2002, there has been no material adverse
change in, or material adverse effect upon, the operations, business,
properties, assets, liabilities (actual or contingent), condition (financial or
otherwise) or prospects of NICC and its Subsidiaries taken as a whole.
(c) Since the Third Amendment Effective Date, no event
has occurred which has had, or is reasonably likely to have, a Material Adverse
Effect.
6.12 Environmental Matters. Except where non-compliance is not
reasonably likely to have a Material Adverse Effect, New Dreyer's and its
Subsidiaries are in compliance with all Environmental Laws. Except in cases or
circumstances not reasonably likely to have a Material Adverse Effect, there is
no Environmental Claim pending or, to the knowledge of New Dreyer's and the
Company, threatened against New Dreyer's or any Subsidiary.
6.13 Regulated Entities. None of New Dreyer's, any Person
controlling New Dreyer's or any Subsidiary is an "Investment Company" within the
meaning of the Investment Company Act of 1940. Neither the Company nor any
Guarantor is subject to regulation under the Public Utility Holding Company Act
of 1935, the Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other Federal or state statute or regulation limiting its
ability to incur Indebtedness.
6.14 No Burdensome Restrictions. Neither New Dreyer's nor any
Subsidiary is a party to or bound by any Contractual Obligation, or subject to
any restriction in any Organization Document, or any Requirement of Law, which
could reasonably be expected to have a Material Adverse Effect.
6.15 Labor Relations. There are no strikes, lockouts or other labor
disputes against New Dreyer's or any Subsidiary, or, to the best of New Dreyer's
and the Company's knowledge, threatened against or affecting New Dreyer's or any
Subsidiary and, except as specifically disclosed in Schedule 6.15, no
significant unfair labor practice complaint is pending against New Dreyer's or
any Subsidiary or, to the best knowledge of New Dreyer's and the Company,
threatened against any of them before any Governmental Authority.
6.16 Copyrights, Patents, Trademarks and Licenses, etc. New
Dreyer's and its Subsidiaries own or are licensed or otherwise have the right to
use all of the patents, trademarks, service marks, trade names, copyrights,
contractual franchises, distribution rights, authorizations
45
and other rights that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person. To
the best knowledge of New Dreyer's and the Company, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by New Dreyer's or any
Subsidiary infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or threatened, and no
patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of New Dreyer's and
the Company, proposed, which, in either case, could reasonably be expected to
have a Material Adverse Effect.
6.17 Subsidiaries. As of the Third Amendment Effective Date (and
after giving effect to the Transaction), New Dreyer's has no Subsidiaries other
than those specifically disclosed in part (a) of Schedule 6.17 hereto and has no
equity investments in any other corporation or entity other than those
specifically disclosed in part (b) of Schedule 6.17.
6.18 Insurance. New Dreyer's and its Subsidiaries have a
self-insurance program covering types of risks and/or properties in amounts
consistent with the practices of other companies in the same or similar business
and of similar size. The properties of New Dreyer's and its Subsidiaries are,
consistent with the self-insurance program, insured with financially sound and
reputable insurance companies not Affiliates of New Dreyer's, in such amounts,
with such deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in
localities where New Dreyer's or the applicable Subsidiary operates.
6.19 Full Disclosure. None of the representations or warranties
made by New Dreyer's, the Company or any other Subsidiary in the Loan Documents
as of the date such representations and warranties are made or deemed made, and
none of the statements contained in any exhibit, report, statement or
certificate furnished by or on behalf of New Dreyer's, the Company or any other
Subsidiary in connection with the Loan Documents, contains any untrue statement
of a material fact or omits any material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they are made, not misleading as of the time when made or delivered.
6.20 Disclosure re Margin Stock. On the Closing Date, New Dreyer's
and the Company own no Margin Stock.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Majority Banks (or, in the case of the
second sentence of Section 7.13, all Banks) waive compliance in writing:
7.1 Financial Statements. New Dreyer's shall deliver to the Agent,
in form and detail satisfactory to the Agent and the Majority Banks, with
sufficient copies for each Bank:
46
(a) as soon as available, but not later than 100 days
after the end of each fiscal year, a copy of the audited consolidated balance
sheet of New Dreyer's and its Subsidiaries as at the end of such year and the
related consolidated statements of income or operations, shareholders' equity
and cash flows for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, and accompanied by the opinion of
PriceWaterhouseCoopers or another nationally-recognized independent public
accounting firm ("Independent Auditor") which report shall state 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 (which opinion shall not be qualified or
limited because of a restricted or limited examination by the Independent
Auditor of any material portion of New Dreyer's or any Subsidiary's records);
(b) as soon as available, but not later than 60 days
after the end of each of the first three fiscal quarters of each fiscal year, a
copy of the unaudited consolidated balance sheet of New Dreyer's and its
Subsidiaries' as of the end of such quarter and the related 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
certified by a Responsible Officer as fairly presenting, in all material
respects, in accordance with GAAP (subject to ordinary, good faith year-end
audit adjustments), the financial position and the results of operations of New
Dreyer's and its Subsidiaries;
7.2 Certificates; Other Information. New Dreyer's shall furnish to
the Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a), a certificate of the Independent
Auditor stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 7.1(a) and (b), a Compliance Certificate
executed by a Responsible Officer;
(c) promptly, copies of all financial statements and
reports that New Dreyer's sends to its shareholders, and copies of all financial
statements and regular, periodical or special reports (including Forms 10-K,
10-Q and 8-K) that New Dreyer's or any Subsidiary may make to, or file with, the
SEC; and
(d) promptly, such additional information regarding the
business, financial or corporate affairs of New Dreyer's, the Company or any
other Subsidiary as the Agent, at the request of any Bank, may from time to time
request.
7.3 Notices. New Dreyer's shall promptly notify the Agent and each
Bank:
(a) of the occurrence of any Default or Event of Default,
and of the occurrence or existence of any event or circumstance that foreseeably
will become a Default or Event of Default;
47
(b) of any matter that has resulted or may result in a
Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a Contractual Obligation of New Dreyer's, the Company or any
other Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between New Dreyer's, the Company or any other Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting New Dreyer's, the Company
or any other Subsidiary, including pursuant to any applicable Environmental
Laws;
(c) of the occurrence of any of the following events
affecting New Dreyer's or any ERISA Affiliate (but in no event more than 10 days
after such event), and deliver to the Agent and each Bank a copy of any notice
with respect to such event that is filed with a Governmental Authority and any
notice delivered by a Governmental Authority to New Dreyer's or any ERISA
Affiliate with respect to such event:
(1) an ERISA Event;
(2) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(3) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code by New Dreyer's or
any ERISA Affiliate; or
(4) the adoption of any amendment to a Plan
subject to Section 412 of the Code, if such amendment results in a material
increase in contributions or Unfunded Pension Liability.
(d) of any material change in accounting policies or
financial reporting practices by New Dreyer's or any consolidated Subsidiary of
New Dreyer's;
(e) upon the request from time to time of the Agent, the
Swap Termination Values, together with a description of the method by which such
values were determined, relating to any then-outstanding Swap Contracts to which
New Dreyer's or any Subsidiary is party.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action New Dreyer's or the affected
Subsidiary proposes to take with respect thereto and at what time. Each notice
under subsection 7.3(a) shall describe with particularity any and all clauses or
provisions of this Agreement or other Loan Document that have been (or
foreseeably will be) breached or violated.
7.4 Preservation of Corporate Existence, Etc. Except where failure
to do so could not reasonably be expected to have a Material Adverse Effect,
and, in the case of clause (b), except as permitted by Section 8.2 or 8.3, New
Dreyer's shall, and shall cause each Subsidiary (including the Company) to:
48
(a) preserve and maintain in full force and effect its
corporate or limited liability company existence and good standing under the
laws of its state or jurisdiction of incorporation or organization;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks.
7.5 Maintenance of Property. New Dreyer's shall maintain, and
shall cause each Subsidiary to maintain, and preserve all its property which is
used or useful in its business in good working order and condition, ordinary
wear and tear excepted and make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
7.6 Insurance. New Dreyer's shall, and shall cause each Subsidiary
to, maintain (in accordance with New Dreyer's self-insurance program), with
financially sound and reputable independent insurers, insurance with respect to
its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such
types and in such amounts as are customarily carried under similar circumstances
by such other Persons.
7.7 Payment of Obligations. New Dreyer's shall, and shall cause
each Subsidiary to, pay and discharge as the same shall become due and payable,
all their respective obligations and liabilities, including:
(a) interest, principal, fees, and all other sums
outstanding under or in respect of this Agreement, the Fee Letter, and any other
instrument required hereunder in accordance with the terms hereof and thereof;
(b) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by New Dreyer's or such Subsidiary;
(c) all lawful claims which, if unpaid, would by law
become a Lien upon its property; and
(d) all indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
49
7.8 Compliance with Laws. New Dreyer's shall comply, and shall
cause each Subsidiary to comply, (a) in all material respects with all
Requirements of Law of any Governmental Authority having jurisdiction over it or
its business (including the Federal Fair Labor Standards Act), except such as
may be contested in good faith or as to which a bona fide dispute may exist, and
(b) with any contract or agreement to which New Dreyer's or any Subsidiary is a
party where a failure to so comply would have a Material Adverse Effect.
7.9 Compliance with ERISA. New Dreyer's shall, and shall cause
each of its ERISA Affiliates to, (a) maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law; (b) cause each Plan which is qualified under Section
401(a) of the Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Code.
7.10 Inspection of Property and Books and Records. New Dreyer's
shall, and shall cause each Subsidiary to, maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of New Dreyer's and such Subsidiary. New
Dreyer's shall permit, and shall cause each Subsidiary to permit,
representatives and independent contractors of the Agent or any Bank to visit
and inspect any of their respective properties, to examine their respective
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, and independent public accountants, all at
the expense of New Dreyer's and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice
to New Dreyer's; provided when an Event of Default exists the Agent or any Bank
may do any of the foregoing at the expense of New Dreyer's at any time during
normal business hours and without advance notice.
7.11 Environmental Laws. New Dreyer's shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws.
7.12 Use of Proceeds.
(a) The Company shall use the proceeds of the Loans made
on the Closing Date to repay (to the extent of such proceeds) principal,
interest, fees, and all other sums due and payable under the Prior Credit
Agreement and thereafter for working capital, for Permitted Acquisitions, to
purchase, redeem or otherwise acquire capital stock to the extent permitted by
Section 8.11 and for other general corporate purposes not in contravention of
any Requirement of Law or of any Loan Document.
(b) The Company shall not, directly or indirectly, use
any portion of the Loan proceeds (i) knowingly to purchase Ineligible Securities
from the Arranger during any period in which the Arranger makes a market in such
Ineligible Securities, (ii) knowingly to purchase during the underwriting or
placement period Ineligible Securities being underwritten or privately placed by
the Arranger, or (iii) to make payments of principal or interest on Ineligible
Securities underwritten or privately placed by the Arranger and issued by or for
the benefit of New Dreyer's or any Affiliate of New Dreyer's. The Arranger is a
registered broker-dealer and
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permitted to underwrite and deal in certain Ineligible Securities; and
"Ineligible Securities" means securities which may not be underwritten or dealt
in by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.
7.13 Cooperation; Further Assurances. New Dreyer's and the Company
shall perform, on request of the Agent or the Majority Banks and at New Dreyer's
and the Company's expense, such acts as may be necessary or advisable to
otherwise carry out the intent of this Agreement. Without limiting the
foregoing, New Dreyer's shall take such actions as are necessary, or as the
Agent may reasonably request, to ensure that (a) the Obligations are at all
times guaranteed by New Dreyer's and all of its Domestic Subsidiaries (other
than the Company and any Immaterial Subsidiary) pursuant to the Guaranty; and
(b) Immaterial Subsidiaries will not at any time have (i) total (gross) revenues
for the preceding four fiscal quarter period in excess of 10% of the total
(gross) revenues of New Dreyer's on a consolidated basis; or (ii) total assets,
as of the last day of the preceding fiscal quarter, with a net book value in
excess of $50,000,000, in each case based upon New Dreyer's most recent annual
or quarterly financial statements delivered to the Agent under Section 7.01.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding, unless the Majority Banks waive compliance in writing:
8.1 Limitation on Liens. New Dreyer's shall not, and shall not
suffer or permit any Subsidiary to, directly or indirectly, make, create, incur,
assume or suffer to exist any Lien upon or with respect to any part of its
property, whether now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) any Lien existing on property of New Dreyer's or any
Subsidiary on the Third Amendment Effective Date and set forth in Schedule 8.1
securing Indebtedness outstanding on such date and any Lien associated with
operating leases of New Dreyer's or any Subsidiary existing as of the Third
Amendment Effective Date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable without penalty,
or to the extent that non-payment thereof is permitted by Section 7.7, provided
that no notice of lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business which are not delinquent or remain payable without penalty or which
are being contested in good faith and by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the property
subject thereto;
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(e) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other social
security legislation;
(f) Liens on the property of New Dreyer's or any
Subsidiary securing (i) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, (ii) contingent
obligations on surety and appeal bonds, and (iii) other non-delinquent
obligations of a like nature; in each case, incurred in the ordinary course of
business, provided that all such Liens in the aggregate would not (even if
enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment
liens, provided that the enforcement of such Liens is effectively stayed and all
such liens in the aggregate at any time outstanding for New Dreyer's and its
Subsidiaries do not exceed $5,000,000;
(h) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of New Dreyer's and its
Subsidiaries;
(i) Liens on assets of corporations which become
Subsidiaries after the Third Amendment Effective Date, provided that such Liens
existed at the time the respective corporations became Subsidiaries and were not
created in anticipation thereof and the principal amount of the obligations
secured by such Liens does not exceed $10,000,000;
(j) purchase money security interests on any property
acquired or held by New Dreyer's or any Subsidiary in the ordinary course of
business, securing Indebtedness incurred or assumed for the purpose of financing
all or any part of the cost of acquiring such property; provided that (i) any
such Lien attaches to such property concurrently with or within 20 days after
the acquisition thereof, (ii) such Lien attaches solely to the property so
acquired in such transaction, (iii) the principal amount of the debt secured
thereby does not exceed 100% of the cost of such property, and (iv) the
principal amount of the Indebtedness secured by any and all such purchase money
security interests shall not at any time exceed $15,000,000;
(k) Liens securing obligations in respect of capital
leases and operating leases on assets subject to such leases, provided that such
capital leases and operating leases are otherwise permitted hereunder;
(l) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by New Dreyer's in excess of those set forth by regulations promulgated
by the FRB, and (ii) such deposit account is not intended by New Dreyer's or any
Subsidiary to provide collateral to the depository institution; and
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(m) Liens, in addition to those described in clauses (a)
through (l) above, securing obligations not exceeding, in the aggregate at any
time, $2,000,000.
8.2 Disposition of Assets. New Dreyer's shall not, and shall not
suffer or permit any Subsidiary to, directly or indirectly, sell, assign, lease,
convey, transfer or otherwise dispose of (whether in one or a series of
transactions) any property (including accounts and notes receivable, with or
without recourse), except:
(a) dispositions of inventory, or used, worn-out or
surplus equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such
equipment is exchanged for credit against the purchase price of similar
replacement equipment, or the proceeds of such sale are reasonably promptly
applied to the purchase price of such replacement equipment;
(c) the sale by Grand Soft Capital Company or Grand Soft
Equipment Company of leases and/or machinery pursuant to the Grand Soft Program;
(d) the lease, by New Dreyer's, of its real and personal
property which is not needed by New Dreyer's for its current business
operations, for fair market value;
(e) the sale, assignment, lease, conveyance, transfer or
other disposition by New Dreyer's or the applicable Subsidiary, of the following
assets:
(1) any interest in the existing Lindenhurst and
Gaithersburg, Maryland facilities, including all assets related thereto; and
(2) any interests in the following Wholly-Owned
Subsidiaries: Grand Soft Equipment Company and Grand Soft Capital Company
including, without limitation, all assets related thereto;
(3) any interest in the existing manufacturing
facility in Union City, California;
(f) any sale, assignment, lease, conveyance, transfer or
other disposition to the Company or a Guarantor;
(g) the sale or other disposition of any of the assets
described in the Company's press release dated March 4, 2003 and other
distribution assets of NICC that are not material to its business; and
(h) dispositions not otherwise permitted hereunder which
are made for fair market value; provided that (i) at the time of any
disposition, no Event of Default shall exist or shall result from such
disposition, (ii) the aggregate sales price from such disposition shall be paid
in cash, and (iii) the aggregate value of all assets so sold by New Dreyer's and
its Subsidiaries, together, shall not exceed in any fiscal year $10,000,000.
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8.3 Consolidations and Mergers. New Dreyer's shall not, and shall
not suffer or permit any Subsidiary to, merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with New Dreyer's; provided
that New Dreyer's shall be the continuing or surviving corporation; and any
Subsidiary may merge with any one or more Subsidiaries, provided that (i) if
such transaction involves the Company, the Company shall be the continuing or
surviving corporation and (ii) if such transaction is between a Subsidiary and a
Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the continuing or
surviving corporation;
(b) any Subsidiary may sell all or substantially all of
its assets (upon voluntary liquidation or otherwise), to New Dreyer's or another
Wholly-Owned Subsidiary (other than Grand Soft Equipment Company and Grand Soft
Capital Company); and
(c) any merger necessary to complete the Transaction.
8.4 Loans and Investments. New Dreyer's shall not purchase or
acquire, or suffer or permit any Subsidiary to purchase or acquire, any capital
stock, equity interest, or any obligations or other securities of, or any
interest in, any Person, or make any Acquisitions or make any advance, loan,
extension of credit or capital contribution to or any other investment in, any
Person including any Affiliate of New Dreyer's, except for:
(a) investments in Cash Equivalents;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of goods or
services in the ordinary course of business;
(c) investments (including loans and other extensions of
credit) by New Dreyer's in any Wholly-Owned Subsidiary or by any Wholly-Owned
Subsidiary to New Dreyer's or another Wholly-Owned Subsidiary;
(d) investments (other than those permitted by the other
subsections of this Section 8.4) after the Third Amendment Effective Date in an
aggregate amount not exceeding $75,000,000, provided that the aggregate amount
(without giving effect to any write-offs or write-downs, but giving effect to
returns of capital) of all investments made after the Third Amendment Effective
Date in businesses which are not substantially similar to the businesses engaged
in by New Dreyer's and its Subsidiaries on the Third Amendment Effective Date
shall not exceed $15,000,000;
(e) investments existing as of the Third Amendment
Effective Date as set forth in Schedule 8.4;
(f) Permitted Acquisitions; and
(g) investments in connection with the Transaction.
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8.5 Limitation on Indebtedness. New Dreyer's shall not, and shall
not suffer or permit any Subsidiary to, create, incur, assume, suffer to exist,
or otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) accounts payable to trade creditors for goods and
services and current operating liabilities (not the result of the borrowing of
money) incurred in the ordinary course of business of New Dreyer's or such
Subsidiary in accordance with customary terms and paid within the specified
time, unless contested in good faith by appropriate proceedings and reserved for
in accordance with GAAP;
(c) Indebtedness consisting of Contingent Obligations
permitted pursuant to Section 8.8;
(d) Indebtedness existing on the Third Amendment
Effective Date and set forth in Schedule 8.5;
(e) Indebtedness secured by Liens permitted pursuant to
subsections 8.1(i) and 8.1(j);
(f) Indebtedness incurred in connection with leases
permitted pursuant to Section 8.10;
(g) Indebtedness under the Senior Notes as reduced from
time to time pursuant to the amortization schedules for the Senior Notes in
effect on the date hereof;
(h) Unsecured Indebtedness of Subsidiaries in an
aggregate amount outstanding not to exceed $15,000,000;
(i) Synthetic Lease Obligations, provided that the
aggregate amount of all Synthetic Lease Obligations shall not at any time exceed
$30,000,000;
(j) Indebtedness of New Dreyer's which ranks pari passu
with the Obligations under this Agreement in an aggregate amount outstanding not
to exceed $100,000,000; provided that the covenants, amortization schedule,
collateral position and maturity with respect to any such Indebtedness shall at
all times be no more favorable to any lender thereunder, as reasonably
determined by the Majority Banks, than the comparable provisions contained in
this Agreement;
(k) Indebtedness arising out of loans and other
extensions of credit permitted by subsection 8.04(c); and
(l) Indebtedness in connection with the Nestle Credit
Arrangements.
8.6 Transactions with Affiliates. New Dreyer's shall not, and
shall not suffer or permit any Subsidiary to, enter into any transaction with
any Affiliate of New Dreyer's (other than New Dreyer's and its Subsidiaries),
except upon fair and reasonable terms no less favorable
55
to New Dreyer's or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of New Dreyer's or such
Subsidiary.
8.7 Use of Proceeds. The Company shall not, and shall not suffer
or permit New Dreyer's or any other Subsidiary to, use any portion of the Loan
proceeds or any Letter of Credit, directly or indirectly, (i) to purchase or
carry Margin Stock, (ii) to repay or otherwise refinance any indebtedness
incurred to purchase or carry Margin Stock, (iii) to extend credit for the
purpose of purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any transaction that is subject to Section 13 or 14 of the Exchange
Act, provided that New Dreyer's may purchase shares of its own stock to the
extent permitted by Section 8.11 so long as such shares are immediately retired.
8.8 Contingent Obligations. New Dreyer's shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Contingent Obligations of New Dreyer's and its
Subsidiaries existing as of the Third Amendment Effective Date and listed in
Schedule 8.08;
(c) Guaranty Obligations in respect of Indebtedness of a
Subsidiary which is permitted under this Agreement;
(d) Contingent Obligations of Grand Soft Capital Company
and Grand Soft Equipment Company with respect to leases each sells or enters
into pursuant to the Grand Soft Program up to an aggregate amount of
$10,000,000; and Guaranty Obligations of New Dreyer's and/or the Company with
respect to such Contingent Obligations of Grand Soft Capital Company and Grand
Soft Equipment Company up to an aggregate amount of $10,000,000;
(e) Guaranty Obligations arising under the Guaranty;
(f) Guaranty Obligations in respect of the Senior Notes;
and
(g) in addition to Contingent Obligations permitted by
the preceding subsections of this Section 8.08, Guaranty Obligations covering up
to $10,000,000 of principal of primary obligations.
8.9 Joint Ventures. Except for investments in a Joint Venture
permitted under Section 8.4, New Dreyer's shall not, and shall not suffer or
permit any Subsidiary to, enter into any Joint Venture, other than in the
ordinary course of business.
8.10 Lease Obligations. New Dreyer's shall not, and shall not
suffer or permit any Subsidiary to, create or suffer to exist any obligations
for the payment of rent for any property under lease or agreement to lease,
except for:
(a) leases of New Dreyer's and its Subsidiaries in
existence on the Third Amendment Effective Date and any renewal, extension or
refinancing thereof.
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(b) operating leases other than those permitted under
other subsections of this Section entered into by New Dreyer's or any Subsidiary
after the Third Amendment Effective Date in the ordinary course of business as
conducted as of the Third Amendment Effective Date; provided that the aggregate
amount of rent and other charges to be paid under such leases (without
discounting to present value and without regard to any options to extend) does
not exceed $20,000,000.
(c) leases other than those permitted by the other
subsections of this Section entered into by New Dreyer's or any Subsidiary after
the Third Amendment Effective Date, provided that:
(1) immediately prior to giving effect to such
lease, the Property subject to such lease was sold by New Dreyer's or a
Subsidiary to the lessor pursuant to a transaction permitted under Section 8.02;
(2) no Default or Event of Default exists or
would occur as a result of such sale and subsequent lease; and
(3) the aggregate amount of rent and other
charges to be paid under all such leases (without discounting to present value
and without regard to any options to extend) does not exceed $5,000,000.
(d) capital leases other than those permitted under other
subsections of this Section, entered into by New Dreyer's or any Subsidiary
after the Third Amendment Effective Date to finance the acquisition of
equipment; provided that the aggregate for all such capital leases included in
New Dreyer's most current consolidated balance sheet furnished to the Agent
pursuant to Section 7.1 to this Agreement shall not exceed $30,000,000.
8.11 Restricted Payments. New Dreyer's shall not, and shall not
suffer or permit any Subsidiary to, declare or make any dividend payment or
other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of its capital stock, or
purchase, redeem or otherwise acquire for value any shares of its capital stock
or any warrants, rights or options to acquire such shares, now or hereafter
outstanding; except that:
(a) Any Subsidiary may pay dividends to New Dreyer's or a
Wholly-Owned Subsidiary.
(b) So long as no Default or Event of Default exists or
would result therefrom, New Dreyer's may declare and pay cash dividends on its
common stock in any fiscal year in an amount not exceeding the greater of (i)
$0.24 per share (without giving effect to any stock split, material issuance of
stock or similar event after the Third Amendment Effective Date) or (ii) 30% of
New Dreyer's consolidated net income for the preceding fiscal year.
(c) New Dreyer's may purchase, redeem or otherwise
acquire shares of its common stock or warrants or options to acquire any such
shares with the proceeds received from the substantially concurrent issue of new
shares of its common stock.
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8.12 ERISA. New Dreyer's shall not, and shall not suffer or permit
any of its ERISA Affiliates to, (a) engage in a prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably be expected to result in liability of New
Dreyer's in an aggregate amount in excess of $10,000,000; or (b) engage in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
8.13 Consolidated Net Worth. New Dreyer's shall not permit its
Consolidated Net Worth at any time to be less than the total of:
(a) $2,000,000,000; plus
(b) 75% of New Dreyer's consolidated net income for each
fiscal quarter beginning with the first fiscal quarter ending after the Third
Amendment Effective Date (with no deduction for losses in any such quarter);
plus
(c) 75% of the Net Issuance Proceeds of any equity
offering after the Third Amendment Effective Date (excluding stock issuances
under Section 8.11(c)).
8.14 Minimum Fixed Charge Coverage Ratio.
(a) New Dreyer's shall not permit the Fixed Charge
Coverage Ratio (as defined below), for any period of four consecutive fiscal
quarters ending on the last day of a fiscal quarter, to be less than (i) as of
the last day of the first six fiscal quarters ending after the Third Amendment
Effective Date, 2.25 to 1.0; or (ii) as of the last day of any fiscal quarter
ending thereafter, 3.00 to 1.0.
(b) For purposes of this Section 8.14, Fixed Charge
Coverage Ratio means, for any period, the ratio of "A" to "B" where:
"A" means the sum for such period of the EBITDA of New
Dreyer's 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 New Dreyer's plus (ii)
the current portion, as of the last day of such period, of all principal of
Indebtedness (excluding, to the extent applicable, intercompany Indebtedness and
Indebtedness under (x) the Loan Documents and (y) the Nestle Credit
Arrangements).
8.15 Funded Debt/EBITDA Ratio. New Dreyer's shall not permit its
Funded Debt/EBITDA Ratio to be greater than (i) 4.00 at any time prior to the
sixth fiscal quarter end following the Third Amendment Effective Date or (ii)
3.00 at any time thereafter.
8.16 Change in Business. New Dreyer's shall not, and shall not
suffer or permit any Subsidiary to, engage in any material line of business
substantially different from those lines of business carried on by New Dreyer's
and its Subsidiaries on the date of the consummation of the Transaction.
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8.17 Accounting Changes. New Dreyer's shall not, and shall not
suffer or permit any Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change its
fiscal year (other than changes required so that New Dreyer's and its
Subsidiaries shall all have the same fiscal year end).
8.18 Other Contracts.
(a) New Dreyer's shall not enter into any employment
contracts or other employment or service-retention arrangements whose terms,
including salaries, benefits and other compensation, are not normal and
customary (other than those entered into in connection with the Transaction).
(b) New Dreyer's shall not permit to exist or permit any
Subsidiary to be a party to any other agreement that would prohibit or restrict
the ability of any Subsidiary to make loans to New Dreyer's or to make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any share of any class of its capital
stock now or hereafter outstanding, provided that the foregoing provisions of
this Section 8.18(b) shall not apply to any Subsidiary created or acquired after
the Third Amendment Effective Date until 90 days after the date such Subsidiary
first became a Subsidiary.
8.19 Negative Pledge. Except for the Senior Notes, New Dreyer's
shall not, and shall not suffer or permit any Subsidiary to, enter into any
agreement containing any provision which would prohibit New Dreyer's or any
Subsidiary from granting to the Agent, for the benefit of the Banks, a Lien on
any of its assets.
ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when and
as required to be paid herein, any amount of principal of any Loan or of any L/C
Obligation, or (ii) within five days after the same becomes due, any interest,
fee or any other amount payable hereunder or under any other Loan Document; or
(b) Representation or Warranty. Any representation or
warranty by New Dreyer's, the Company or any other Subsidiary made or deemed
made herein or in any other Loan Document, or which is contained in any
certificate, document or financial or other statement by New Dreyer's, the
Company, any other Subsidiary or any Responsible Officer, furnished at any time
under this Agreement or any other Loan Document, is incorrect in any material
respect on or as of the date made or deemed made; or
(c) Specific Defaults. New Dreyer's fails to perform or
observe any term, covenant or agreement contained in Section 7.3 or 7.10 or in
Article VIII (other than Sections 8.1, 8.5, 8.6, 8.12, 8.16, 8.17, or 8.18); or
(d) Other Defaults. New Dreyer's fails to perform or
observe:
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(1) any term, covenant or agreement contained in
Section 7.1, 7.2, 8.1 or 8.5 and such default shall continue unremedied for a
period of five Business Days after notice from the Agent or any Bank that such
failure to comply constitutes an Event of Default; or
(2) any other term or covenant contained in this
Agreement or any other Loan Document, and such default shall continue unremedied
for a period of 30 days after its occurrence; or
(e) Cross-Default. New Dreyer's or any Subsidiary (i)
fails to make any payment in respect of any Indebtedness or Contingent
Obligation having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than $1,000,000 when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) and such failure continues after the applicable grace or notice
period, if any, specified in the document relating thereto on the date of such
failure; or (ii) fails to perform or observe any other condition or covenant, or
any other event shall occur or condition exist, under any agreement or
instrument relating to any such Indebtedness or Contingent Obligation, and such
failure continues after the applicable grace or notice period, if any, specified
in the document relating thereto on the date of such failure if the effect of
such failure, event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Contingent Obligation to become payable or
cash collateral in respect thereof to be demanded; or
(f) Insolvency; Voluntary Proceedings. New Dreyer's or
any Subsidiary (other than an Immaterial Subsidiary) (i) ceases or fails to be
solvent, or generally fails to pay, or admits in writing its inability to pay,
its debts as they become due, subject to applicable grace periods, if any,
whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency Proceeding with
respect to itself; or (iv) takes any action to effectuate or authorize any of
the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against New Dreyer's or any
Subsidiary (other than an Immaterial Subsidiary), or any writ, judgment, warrant
of attachment, execution or similar process is issued or levied against a
substantial part of the properties of New Dreyer's or any Subsidiary (other than
an Immaterial Subsidiary), and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded, within 60 days after
commencement, filing or levy; (ii) New Dreyer's or any Subsidiary (other than an
Immaterial Subsidiary) admits the material allegations of a petition against it
in any such Insolvency Proceeding, or an order for relief (or similar order
under non-U.S. law) is ordered in any such Insolvency Proceeding; or (iii) New
Dreyer's or any Subsidiary (other than an Immaterial Subsidiary) acquiesces in
the appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor) or other similar Person for itself
or a substantial portion of its property or business; or
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(h) ERISA. (i) An ERISA Event shall occur with respect to
a Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of New Dreyer's under Title IV of ERISA to such
Pension Plan, such Multiemployer Plan or the PBGC in an aggregate amount in
excess of $5,000,000; (ii) the aggregate amount of Unfunded Pension Liability
among all Pension Plans at any time exceeds $5,000,000; or (iii) New Dreyer's or
any ERISA Affiliate shall fail to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of $5,000,000; or
(i) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is entered
against New Dreyer's or any Subsidiary involving in the aggregate a liability
(to the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, in an aggregate amount equal to 5% or
more of Consolidated Net Worth, and the same shall remain unsatisfied, unvacated
and unstayed pending appeal for a period of 30 days after the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment,
order or decree is entered against New Dreyer's or any Subsidiary which has had
or would reasonably be expected to have a Material Adverse Effect, and there
shall be any period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(k) Change of Control. (i) New Dreyer's fails at any time
to own 100% of the equity interests in the Company and NICC, (ii) Nestle S.A.
shall fail to own (directly or indirectly) shares of voting stock of New
Dreyer's having at least 60% of the shares of New Dreyer's entitled to vote in
any election of members of the Board of Directors of New Dreyer's, or (iii) the
Governance Agreement is amended or modified in any material respect or fails at
any time to be in full force and effect; or
(l) Loss of Licenses. Any Governmental Authority revokes
or fails to renew any material license, permit or franchise of New Dreyer's or
any Subsidiary, or New Dreyer's or any Subsidiary for any reason loses any
material license, permit or franchise, or New Dreyer's or any Subsidiary suffers
the imposition of any restraining order, escrow, suspension or impound of funds
in connection with any proceeding (judicial or administrative) with respect to
any material license, permit or franchise; or
(m) Adverse Change. There occurs a Material Adverse
Effect which, in the opinion of the Majority Banks, (1) will materially
adversely affect the ability of the Company or any Guarantor to perform its
obligations under any Loan Document or to avoid any Event of Default or (2) will
have a material adverse effect upon the legality, validity, binding effect or
enforceability against the Company or any Guarantor of any Loan Document; or
(n) Invalidity of Subordination Provisions. The
subordination provisions of any agreement or instrument governing any
subordinated debt of New Dreyer's or any Subsidiary are for any reason revoked
or invalidated, or otherwise cease to be in full force and effect, or any Person
contests in any manner the validity or enforceability thereof or denies that it
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has any further liability or obligation thereunder, or the Indebtedness
hereunder is for any reason subordinated or does not have the priority
contemplated by this Agreement or such subordination provisions; or
(o) Nestle Credit Arrangements. The Nestle Credit
Arrangements shall fail to be in full force and effect, the amount of committed
credit outstanding or available to New Dreyer's under the Nestle Credit
Arrangements shall at any time be less than $400,000,000, any event shall occur
or condition shall exist which prevents New Dreyer's from obtaining credit under
the Nestle Credit Arrangements (other than full utilization thereof by New
Dreyer's) or any party to the Nestle Credit Arrangements (other than New
Dreyer's) shall fail to perform its obligations thereunder or shall be the
subject of an Insolvency Proceeding; or
(p) Invalidity of Guaranty, etc. The Guaranty is for any
reason revoked or invalidated, or otherwise ceases to be in full force and
effect, by or with respect to any Guarantor, or any Guarantor (or any Person
acting on behalf of any Guarantor) contests in any manner the validity or
enforceability of the Guaranty against such Guarantor or denies that such
Guarantor has any further liability under the Guaranty (except, in each case
described above, as result of a Guarantor ceasing to be an Affiliate of New
Dreyer's pursuant to a transaction permitted hereunder).
9.2 Remedies. If any Event of Default occurs, the Agent shall at
the request of, or may with the consent of, the Majority Banks:
(a) declare the commitment of each Bank to make Loans
(including the commitment of the Swing Line Bank to make Swing Line Loans) and
any obligation of each Issuing Bank to Issue Letters of Credit to be terminated,
whereupon such commitments shall be terminated;
(b) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become available for drawing under
all outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due
and payable, and/or declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by New Dreyer's; and/or
(c) exercise on behalf of itself and the Banks all rights
and remedies available to it and the Banks under the Loan Documents or
applicable law;
provided that upon the occurrence of any event specified in subsection (f) or
(g) of Section 9.1 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each Bank
to make Loans and any obligation of an Issuing Bank to issue Letters of Credit
shall automatically terminate and the unpaid principal amount of all outstanding
Loans and unreimbursed drawings under all outstanding Letters of Credit, and all
interest and other amounts as aforesaid, shall automatically become due and
payable without further act of the Agent, the Issuing Bank or any Bank.
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9.3 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not exclusive of
any other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or hereafter
arising.
ARTICLE X
THE AGENT
10.1 Appointment and Authorization.
(a) Each Bank hereby irrevocably (subject to Section
10.09) appoints, designates and authorizes the Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any other Loan
Document, the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
Without limiting the generality of the foregoing sentence, the use of the term
"agent" in this Agreement with reference to the Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) The Swing Line Bank shall have all of the benefits
and immunities (i) provided to the Agent in this Article X with respect to any
acts taken or omissions suffered by the Swing Line Bank in connection with Swing
Line Loans made or proposed to be made by it as fully as if the term "Agent", as
used in this Article X, included the Swing Line Bank with respect to such acts
or omissions and (ii) as additionally provided in this Agreement with respect to
the Swing Line Bank.
(c) Each Issuing Bank shall act on behalf of the Banks
with respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Agent may agree at the
request of the Majority Banks to act for such Issuing Bank with respect thereto;
provided that each Issuing Bank shall have all of the benefits and immunities
(i) provided to the Agent in this Article X with respect to any acts taken or
omissions suffered by such Issuing Bank in connection with Letters of Credit
Issued by it or proposed to be Issued by it and the application and agreements
for letters of credit pertaining to the Letters of Credit as fully as if the
term "Agent", as used in this Article X, included such Issuing Bank with respect
to such acts or omissions, and (ii) as additionally provided in this Agreement
with respect to such Issuing Bank.
10.2 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The
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Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.3 Liability of Agent. None of the Agent-Related Persons shall
(i) be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Banks for any
recital, statement, representation or warranty made by New Dreyer's or any
Subsidiary or Affiliate of New Dreyer's, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of New Dreyer's, the
Company or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Bank to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of New
Dreyer's or any of its Subsidiaries or Affiliates.
10.4 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to New
Dreyer's or any Subsidiary), independent accountants and other experts selected
by the Agent. The Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Banks as it deems appropriate
and, if it so requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Majority Banks and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the
conditions specified in Section 4.1, each Bank that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter either sent by the Agent to such Bank for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Bank.
10.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Agent for the account of the Banks, unless the Agent shall
have received written notice from a Bank, New Dreyer's or the Company referring
to this Agreement, describing such Default or Event of Default and stating that
such
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notice is a "notice of default". The Agent will notify the Banks of its receipt
of any such notice. The Agent shall take such action with respect to such
Default or Event of Default as may be requested by the Majority Banks in
accordance with Article VIII; provided that unless and until the Agent has
received any such request, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of the
Banks.
10.6 Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of New
Dreyer's and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of New
Dreyer's and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Company hereunder. Each Bank also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of New Dreyer's, the Company or any
other party to any Loan Document. Except for notices, reports and other
documents expressly herein required to be furnished to the Banks by the Agent,
the Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of New Dreyer's, the
Company or any Affiliate of the foregoing which may come into the possession of
any of the Agent-Related Persons.
10.7 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), pro rata,
from and against any and all Indemnified Liabilities; provided that no Bank
shall be liable for the payment to the Agent-Related Persons of any portion of
such Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each Bank
shall reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Company. The undertaking in
this Section shall survive the payment of all Obligations and the resignation or
replacement of the Agent.
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10.8 Agent in Individual Capacity. BofA and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with New Dreyer's and its
Subsidiaries and Affiliates as though BofA were not the Agent, the Swing Line
Bank or an Issuing Bank hereunder and without notice to or consent of the Banks.
The Banks acknowledge that, pursuant to such activities, BofA or its Affiliates
may receive information regarding New Dreyer's or any of its Affiliates
(including information that may be subject to confidentiality obligations in
favor of New Dreyer's or such Affiliate) and acknowledge that the Agent shall be
under no obligation to provide such information to them. With respect to its
Loans, BofA shall have the same rights and powers under this Agreement as any
other Bank and may exercise the same as though it were not the Agent, the Swing
Line Bank or an Issuing Bank, and the terms "Bank" and "Banks" include BofA in
its individual capacity. For purposes of this Section, "Affiliates" of New
Dreyer's include the entities mentioned in the last sentence of the definition
of "Affiliates".
10.9 Successor Agent. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days' notice to the Banks. If the
Agent resigns under this Agreement, the Majority Banks shall appoint from among
the Banks a successor agent for the Banks. If no successor agent is appointed
prior to the effective date of the resignation of the Agent, the Agent may
appoint, after consulting with the Banks and the Company, a successor agent from
among the Banks. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article and Sections 10.04 and 10.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent by
the date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Agent hereunder until such
time, if any, as the Majority Banks appoint a successor agent as provided for
above. Notwithstanding the foregoing, however, BofA may not be removed as the
Agent at the request of the Majority Banks unless BofA and any applicable
Affiliate thereof shall also simultaneously be replaced as "Swing Line Bank" and
"Issuing Bank" hereunder pursuant to documentation in form and substance
reasonably satisfactory to BofA.
10.10 Withholding Tax.
(a) If any Bank is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Bank claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such
Bank agrees with and in favor of the Agent, to deliver to the Agent:
(1) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty, two properly
completed and executed copies of IRS Form 1001 before the payment of any
interest in the first calendar year and before the
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payment of any interest in each third succeeding calendar year during which
interest may be paid under this Agreement;
(2) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such Bank, two
properly completed and executed copies of IRS Form 4224 before the payment of
any interest is due in the first taxable year of such Bank and in each
succeeding taxable year of such Bank during which interest may be paid under
this Agreement; and
(3) such other form or forms as may be required
under the Code or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Company to such Bank, such Bank agrees to
notify the Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Company to such Bank. To the extent of
such percentage amount, the Agent will treat such Bank's IRS Form 1001 as no
longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of the
Company to such Bank, such Bank agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Bank is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any interest payment to
such Bank an amount equivalent to the applicable withholding tax after taking
into account such reduction. However, if the forms or other documentation
required by subsection (a) of this Section are not delivered to the Agent, then
the Agent may withhold from any interest payment to such Bank not providing such
forms or other documentation an amount equivalent to the applicable withholding
tax imposed by Sections 1440 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered or was not properly executed, or
because such Bank failed to notify the Agent of a change in circumstances which
rendered the exemption from, or reduction of, withholding tax ineffective, or
for any other reason) such Bank shall indemnify the Agent fully for all amounts
paid, directly or indirectly, by the Agent as tax or otherwise, including
penalties and interest, and including any taxes imposed by any jurisdiction on
the amounts payable to the Agent under this Section, together with all costs and
expenses (including Attorney Costs). The obligation of the Banks under this
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subsection shall survive the payment of all Obligations and the resignation or
replacement of the Agent.
10.11 Other Agent. The Bank identified on the facing page or
signature pages of this Agreement as "Syndication Agent" (the "Other Agent"),
shall have no right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Banks as such. Without
limiting the foregoing, the Other Agent shall not have and shall not be deemed
to have any fiduciary relationship with any Bank. Each Bank acknowledges that it
has not relied, and will not rely, on the Other Agent in deciding to enter into
this Agreement or in taking or not taking action hereunder.
10.12 Guaranty Matters. The Banks irrevocably authorize the Agent
to, without any further authorization by or consent from any Bank, release any
Guarantor from its obligations under the Guaranty (a) if such entity ceases to
be an Affiliate of the Company as a result of a transaction permitted hereunder
or (b) upon the request of the Company if, after giving effect to such release,
the Company will be in compliance with Section 7.13 (and the Agent may rely on a
certificate from the Company in determining such compliance). Upon request by
the Agent at any time, the Majority Banks will confirm in writing the Agent's
authority to release any Guarantor from its obligations under the Guaranty
pursuant to this Section 10.12
ARTICLE XI
MISCELLANEOUS
11.1 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent with
respect to any departure by the Company or any Guarantor therefrom, shall be
effective unless the same shall be in writing and signed by the Majority Banks
(or by the Agent at the written request of the Majority Banks) and New Dreyer's
and the Company and acknowledged by the Agent, and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Banks, New Dreyer's and the
Company and acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to Section 9.2);
(b) postpone or delay any date fixed by this Agreement or
any other Loan Document for any payment of principal, interest, fees or other
amounts due to the Banks (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or (subject to clause (ii) below) any fees or
other amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Banks
or any of them to take any action hereunder;
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(e) amend this Section, or Section 2.13, or any provision
herein providing for consent or other action by all Banks;
(f) amend or waive the requirements of the second
sentence of Section 7.13; or
(g) other than with respect to any sale, assignment,
lease, conveyance, transfer or other disposition permitted by Section 8.2,
release any Guarantor from its obligations under the Guaranty if, after giving
effect to such release, the aggregate book value of all assets of all Guarantors
released after the Third Amendment Effective Date would exceed 10% of the total
consolidated assets of New Dreyer's;
and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable Issuing Bank in addition to the Majority
Banks or all Banks, as the case may be, affect the rights or duties of such
Issuing Bank under this Agreement or any L/C-Related Document relating to any
Letter of Credit Issued or to be Issued by it, (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Majority Banks or all the Banks, as the case may be, affect the rights or duties
of the Agent under this Agreement or any other Loan Document, and (iii) the Fee
Letter may be amended, or rights or privileges thereunder waived, in a writing
executed by the parties thereto.
11.2 Notices.
(a) All notices, requests, consents, approvals, waivers,
and other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by New Dreyer's or the Company by facsimile (i) shall be
immediately confirmed by a telephone call to the recipient at the number
specified on Schedule 11.2, and (ii) shall be followed promptly by delivery of a
hard copy original thereof) and mailed, faxed or delivered, to the address or
facsimile number specified for notices on Schedule 11.2; or, as directed to New
Dreyer's or the Company or the Agent, to such other address as shall be
designated by such party in a written notice to the other parties, and as
directed to any other party, at such other address as shall be designated by
such party in a written notice to New Dreyer's, the Company and the Agent.
(b) All such notices, requests and communications shall,
when transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Articles II, III or V to the Agent or the Swing Line Bank,
as the case may be, shall not be effective until actually received by the Agent,
and notices pursuant to Article III to the applicable Issuing Bank shall not be
effective until actually received by such Issuing Bank at the address specified
for such "Issuing Bank" on Schedule 11.2.
(c) Any agreement of the Agent and the Banks herein to
receive certain notices by telephone or facsimile is solely for the convenience
and at the request of New Dreyer's or the Company. The Agent and the Banks shall
be entitled to rely on the authority of any Person purporting to be a Person
authorized by New Dreyer's or the Company to give such
69
notice and the Agent and the Banks shall not have any liability to New Dreyer's
or the Company or other Person on account of any action taken or not taken by
the Agent or the Banks in reliance upon such telephonic or facsimile notice. The
obligation of the Company to repay the Loans shall not be affected in any way or
to any extent by any failure by the Agent and the Banks to receive written
confirmation of any telephonic or facsimile notice or the receipt by the Agent
and the Banks of a confirmation which is at variance with the terms understood
by the Agent and the Banks to be contained in the telephonic or facsimile
notice. The obligation of the Company to repay the Loans and L/C Obligations
shall not be affected in any way or to any extent by any failure by the Agent
and the Lenders to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Agent and the Lenders of a confirmation which is at
variance with the terms understood by the Agent and the Lenders to be contained
in the telephonic or facsimile notice.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
11.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby
are consummated, pay or reimburse BofA (including in its capacity as Agent,
Swing Line Bank and Issuing Bank) and the Arranger within five Business Days
after demand (subject to subsection 5.1(d)) for all costs and expenses incurred
by BofA (including in its capacity as Agent, Swing Line Bank and Issuing Bank)
and the Arranger in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement, any
Loan Document and any other documents prepared in connection herewith or
therewith (including assignments and delegations by any Bank or Banks of their
rights and obligations under this Agreement), and the consummation of the
transactions contemplated hereby and thereby, including reasonable Attorney
Costs incurred by BofA (including in its capacity as Agent, Swing Line Bank and
Issuing Bank) and the Arranger with respect thereto; and
(b) pay or reimburse the Agent, the Arranger, and each
Bank within five Business Days after demand (subject to subsection 5.1(d)) for
all costs and expenses (including Attorney Costs) incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or any other Loan Document during the existence of
an Event of Default or after acceleration of the Loans (including in connection
with any "workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding).
11.5 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend, and
hold the Agent-Related Persons, and each Bank and each of its respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges,
70
expenses and disbursements (including Attorney Costs) of any kind or nature
whatsoever which may at any time (including at any time following repayment of
the Loans and the termination, resignation or replacement of the Agent or
replacement of any Bank) be imposed on, incurred by or asserted against any such
Person in any way related to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions contemplated hereby,
or any action taken or omitted by any such Person under or in connection with
any of the foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding) related
to or arising out of this Agreement or the Loans or the Letters of Credit or the
use of the proceeds thereof, whether or not any Indemnified Person is a party
thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided that the Company shall have no obligation hereunder to any Indemnified
Person with respect to Indemnified Liabilities resulting solely from the gross
negligence or willful misconduct of such Indemnified Person. The agreements in
this Section shall survive payment of all other Obligations.
11.6 Payments Set Aside. To the extent that the Company makes a
payment to the Agent or the Banks, or the Agent or the Banks exercise their
right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any Insolvency Proceeding or otherwise, then (a)
to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Bank severally agrees to pay to the Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Agent.
11.7 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that neither New Dreyer's nor the
Company may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Agent and each Bank.
11.8 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the
Company, the Agent and each Issuing Bank (which consents shall not be
unreasonably withheld and, in the case of the Company, shall not be required
during the existence of an Event of Default) at any time, assign and delegate to
one or more Eligible Assignees (provided that no written consent of the Company
or the Agent or any Issuing Bank shall be required in connection with any
assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate
of such Bank) (each an "Assignee") all, or any ratable part of all, of the
Loans, the Commitments, the L/C Obligations and the other rights and obligations
of such Bank hereunder, in a minimum amount of $10,000,000; provided that the
Company and the Agent may continue to deal solely and directly with such Bank in
connection with the interest so assigned to an Assignee until (i) written notice
of such assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the Company
and the Agent by such Bank and the Assignee; (ii) such Bank and its Assignee
shall have delivered to the Company and the Agent
71
an Assignment and Acceptance in the form of Exhibit G ("Assignment and
Acceptance"); and (iii) the assignor Bank or Assignee has paid to the Agent a
processing fee in the amount of $3,500 (except as set forth in a separate
agreement between the Agent and the Co-Agent).
(b) From and after the date that the Agent notifies the
assignor Bank that it has received (and provided its consent with respect to
and, to the extent required, received the consent of the Issuing Bank and the
Company) an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Bank under the Loan Documents, and (ii) the assignor Bank
shall, to the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Immediately upon each Assignee's making its
processing fee payment under the Assignment and Acceptance, this Agreement shall
be deemed to be amended to the extent, but only to the extent, necessary to
reflect the addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each Assignee shall
reduce such Commitments of the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company (a
"Participant") participating interests in any Loans, the Commitment of that Bank
and the other interests of that Bank (the "originating Bank") hereunder and
under the other Loan Documents; provided that (i) the originating Bank's
obligations under this Agreement shall remain unchanged, (ii) the originating
Bank shall remain solely responsible for the performance of such obligations,
(iii) the Company, the Swing Line Bank, each Issuing Bank and the Agent shall
continue to deal solely and directly with the originating Bank in connection
with the originating Bank's rights and obligations under this Agreement and the
other Loan Documents, and (iv) no Bank shall transfer or grant any participating
interest under which the Participant has rights to approve any amendment to, or
any consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or waiver would require
unanimous consent of the Banks as described in the first proviso to Section
11.1. In the case of any such participation, the Participant shall be entitled
to the benefit of Sections 4.1, 4.3 and 11.5 as though it were also a Bank
hereunder, and shall not have any other rights under this Agreement, or any of
the other Loan Documents, and all amounts payable by the Company hereunder shall
be determined as if such Bank had not sold such participation; except that, if
amounts outstanding under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement.
Notwithstanding any other provision in this Agreement, any Bank may at
any time create a security interest in, or pledge, all or any portion of its
rights under and interest in this Agreement in favor of any Federal Reserve Bank
in accordance with Regulation A of the FRB or
72
U.S. Treasury Regulation 31 CFR Section 203.14 or in favor of the Farm Credit
Funding Corp. or any other entity organized under the Farm Credit Act, and such
secured party or pledgee may enforce such security interest or pledge in any
manner permitted under applicable law.
11.9 Confidentiality. Each Bank agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by New Dreyer's or any Subsidiary and provided to it by New Dreyer's or
such Subsidiary, or by the Agent on behalf of New Dreyer's or such Subsidiary,
under this Agreement or any other Loan Document, and neither it nor any of its
Affiliates shall use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in connection with
other business now or hereafter existing or contemplated with New Dreyer's or
any Subsidiary; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by such
Bank, or (ii) was or becomes available on a non-confidential basis from a source
other than New Dreyer's or a Subsidiary, so long as such source is not bound by
a confidentiality agreement with New Dreyer's or a Subsidiary known to such
Bank; provided that any Bank may disclose such information (A) at the request or
pursuant to any requirement of any Governmental Authority to which the Bank is
subject or in connection with an examination of such Bank by any such authority;
(B) pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D) to the
extent reasonably required in connection with any litigation or proceeding to
which the Agent, any Bank or their respective Affiliates may be party; (E) to
the extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (F) to such Bank's independent
auditors and other professional advisors; (G) to any Participant or Assignee,
actual or potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Banks hereunder; (H)
as to any Bank or its Affiliates, as expressly permitted under the terms of any
other document or agreement regarding confidentiality to which New Dreyer's or
any Subsidiary is party or is deemed party with such Bank or such Affiliate; and
(I) to its Affiliates.
11.10 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank is authorized at any time and from time to time, without
prior notice to the Company, any such notice being waived by the Company to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Bank to or for the credit or
the account of the Company against any and all Obligations owing to such Bank,
now or hereafter existing, irrespective of whether or not the Agent or such Bank
shall have made demand under this Agreement or any Loan Document and although
such Obligations may be contingent or unmatured. Each Bank agrees promptly to
notify the Company and the Agent after any such set-off and application made by
such Bank; provided that the failure to give such notice shall not affect the
validity of such set-off and application.
11.11 Notification of Addresses, Lending Offices, Etc. Each Bank
shall notify the Agent in writing of any change in the address to which notices
to such Bank should be directed, in the address of any Lending Office, of
payment instructions in respect of all payments to be
73
made to it hereunder and of such other administrative information as the Agent
shall reasonably request.
11.12 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.13 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
11.14 No Third Parties Benefitted. This Agreement is made and
entered into for the sole protection and legal benefit of New Dreyer's, the
Company, the Banks, the Agent and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents.
11.15 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED THAT THE AGENT AND
THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF NEW DREYER'S, THE
COMPANY, THE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF NEW
DREYER'S, THE COMPANY, THE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. NEW DREYER'S, THE COMPANY, THE AGENT AND THE BANKS EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
11.16 Waiver of Jury Trial. NEW DREYER'S, THE COMPANY, THE BANKS AND
THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
74
PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR
ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
NEW DREYER'S, THE COMPANY, THE BANKS AND THE AGENT EACH AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
75
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Chicago, Illinois by their proper and duly
authorized officers as of the day and year first above written.
XXXXXX'X GRAND ICE CREAM, INC.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
BANK OF AMERICA, N.A., as Agent
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
BANK OF AMERICA N.A., as Swing Line Bank,
Letter of Credit Issuing Bank and as a Bank
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
UNION BANK OF CALIFORNIA, N.A., as
Syndication Agent
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
UNION BANK OF CALIFORNIA, N.A., as
Syndication Agent
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
UNION BANK OF CALIFORNIA, N.A., as
Syndication Agent
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
76
XXXXXX TRUST AND SAVINGS BANK
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
COBANK, ACB
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
SUNTRUST BANK
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.,"RABOBANK INTERNATIONAL"
NEW YORK BRANCH
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: _____________________________________
77
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 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%
------------------------------------------------------------------------------------------
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 ______________ 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.
A-1
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 ____, 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 7.1(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 7.1(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 8.1 - 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: $10,000,000 Actual: $__________
Section 8.2 - Disposition of Assets
Section 8.02(g) Dispositions falling within this Section:
Permitted: $5,000,000 Actual: $__________
Section 8.4 Loans and Investments
1. Section 8.04(d) Investments under subsections 8.04(d) shall
not at any time exceed $60,000,000 during the term of this Agreement.
Actual: $______________
2. Section 8.04(d) Investments falling within the proviso:
Aggregate amount permitted at any time: $15,000,000
Actual: $_______________
A-4
Section 8.5 Limitation on Indebtedness
1. Section 8.5(h) Aggregate amount of unsecured Indebtedness of
Subsidiaries
Permitted: $10,000,000 Actual: $__________
2. Section 8.5(i) Aggregate amount of Synthetic Lease Obligations
Permitted: $30,000,000 Actual: $__________
3 Section 8.5(j) Aggregate amount of Indebtedness which ranks
pari passu with the Obligations (excludes Nestle Credit Arrangements)
Permitted: $100,000,000 Actual: $__________
Section 8.8 Contingent Obligations
1. Section 8.8(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 8.8(f) Guaranty Obligations falling within this
Section:
Permitted: $5,000,000 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):
Permitted: $10,000,000 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):
A-5
Permitted: $5,000,0000 Actual: $__________
3. Section 8.10(d) Capital leases falling under Section 8.10(e):
Permitted: $15,000,000 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
Dreyer'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 Dreyer'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
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-6
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 $104,500,000 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) EBITDA (total of 1(a) through 1(g)
2. Operating lease expenses $___________
3. Synthetic Lease Payments $___________
(without duplication to 2 above)
4. Sum of 1(h) + 2 + 3 $___________
5. Cash interest expense $___________
6. Operating lease expense $___________
A-7
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 & Pricing Schedule - New Dreyer's Funded Debt/EBITDA Ratio
New Dreyer's Funded Debt/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) Funded Debt of New Dreyer's (with adjustments $___________
permitted under definition of Funded Debt)
(b) EBITDA of New Dreyer's $___________
(c) Ratio of (a) to (b): ____ to ____
A-8
EXHIBIT B
NOTICE OF BORROWING
Date:____________, ____
To: Bank of America, N.A., as administrative agent for the Banks (in such
capacity, the "Agent"), under that certain Credit Agreement dated as of
July 25, 2000, (as amended or otherwise modified from time to time, the
"Agreement") among Xxxxxx'x Grand Ice Cream, Inc., a Delaware
corporation (the "Company"), the several financial institutions from
time to time parties to the Agreement (the "Banks"), Union Bank of
California, N.A., as syndication agent and the Agent.
Ladies and Gentlemen:
The undersigned refers to the Agreement, the terms defined therein
being used herein as therein defined, and hereby gives you notice irrevocably,
pursuant to Section 2.03 of the Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is__________, ____.
2. The aggregate amount of the proposed Borrowing is $__________.
3. The Borrowing is to be comprised of $__________________of
[BASE RATE] [OFFSHORE RATE] Loans.
[4. THE DURATION OF THE INTEREST PERIOD FOR THE OFFSHORE RATE
LOANS INCLUDED IN THE BORROWING SHALL BE ____ MONTHS.]
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the proposed Borrowing,
before and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties of the Company
contained in Article VI of the Agreement are true and correct as though made on
and as of such date (except to the extent such representations and warranties
relate to an earlier date, in which case they are true and correct as of such
date);
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Borrowing; and
(c) The proposed Borrowing will not cause the aggregate
principal amount of all outstanding Loans to exceed the combined Commitments of
the Banks.
B-1
XXXXXX'X GRAND ICE CREAM, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
B-2
EXHIBIT C
NOTICE OF CONVERSION/CONTINUATION
Date: _____________, ____
To: Bank of America, N. A., as administrative agent for the Banks (in such
capacity, the "Agent"), under that certain Credit Agreement dated as of
July 25, 2000, (as amended or otherwise modified from time to time, the
"Agreement") among Xxxxxx'x Grand Ice Cream, Inc., a Delaware
corporation (the "Company"), the several financial institutions from
time to time parties to the Agreement (the "Banks"), Union Bank of
California, N.A., as syndication agent and the Agent.
Ladies and Gentlemen:
The undersigned refers to the Agreement, the terms defined therein
being used herein as therein defined, and hereby gives you notice irrevocably,
pursuant to Section 2.04 of the Agreement, of the [CONVERSION] [CONTINUATION] of
the Loans specified herein, that:
1. The Conversion/Continuation Date_________,__________.
2. The aggregate amount of the Loans to be [CONVERTED]
[CONTINUED] is $____________________.
3. The Loans are to be [CONVERTED INTO] [CONTINUED AS]
[OFFSHORE RATE] [BASE RATE] Loans.
4. [IF APPLICABLE:] The duration of the Interest Period
for the Loans included in the [CONVERSION] [CONTINUATION] shall be [ MONTHS].
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the proposed [CONVERSION]
[CONTINUATION], before and after giving effect thereto and to the application of
the proceeds therefrom:
(a) the representations and warranties of the Company contained in
Article VI of the Agreement are true and correct as though made on and as of
such date (except to the extent such representations and warranties relate to an
earlier date, in which case they are true and correct as of such date);
(b) no Default or Event of Default has occurred and is continuing,
or would result from such proposed [CONVERSION] [CONTINUATION]; and
(c) the proposed [CONVERSION] [CONTINUATION] will not cause the
aggregate principal amount of all outstanding Loans to exceed the combined
Commitments of the Banks.
C-1
XXXXXX'X GRAND ICE CREAM, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
C-2
EXHIBIT D
NOTICE OF SWING LINE LOAN
Date:______________________, ____
To: Bank of America, N. A., as administrative agent for the Banks (in such
capacity, the "Agent"), under that certain Credit Agreement dated as of
July 25, 2000, (as amended or otherwise modified from time to time, the
"Agreement") among Xxxxxx'x Grand Ice Cream, Inc., a Delaware
corporation (the "Company"), the several financial institutions from
time to time parties to the Agreement (the "Banks"), Union Bank of
California, N.A., as syndication agent and the Agent.
Ladies and Gentlemen:
The undersigned refers to the Agreement, the terms defined therein
being used herein as therein defined, and hereby gives you notice irrevocably,
pursuant to Section 2.15 of the Agreement, of the Swing Line Loan specified
below:
1. The Business Day of the proposed Swing Line Loan is
_____________, _______.
2. The aggregate amount of the proposed Swing Line Loan is
$______________.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the proposed Swing Line
Loan, before and after giving effect thereto, and to the application of the
proceeds therefrom:
(a) the representations and warranties of the Company
contained in Article VI of the Agreement are true and correct as though made on
and as of such date (except to the extent such representations and warranties
relate to an earlier date, in which case they are true and correct as of such
date);
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Swing Line Loan; and
(c) The proposed Swing Line Loan will not cause the
aggregate principal amount of all outstanding Loans to exceed the combined
Commitments of the Banks.
XXXXXX'X GRAND ICE CREAM, INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
D-1
EXHIBIT E
FORM OF
REQUEST FOR INCREASE IN AGGREGATE COMMITMENT
[DATE]
Bank of America, N.A., as
Agent under the Credit
Agreement referred to below
000 Xxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Credit Services
Ladies/Gentlemen:
Please refer to the Credit Agreement dated as of July 25, 2000 (as
amended or otherwise modified from time to time, the "Credit Agreement"), among
Xxxxxx'x Grand Ice Cream, Inc. (the "Company"), various financial institutions,
Union Bank of California, N.A., as syndication agent and Bank of America, N.A.,
as Agent. Capitalized terms used but not defined herein have the respective
meanings set forth in the Credit Agreement.
In accordance with Section 2.05(b) of the Credit Agreement, the Company
hereby requests an increase in the combined Commitments from $240,000,000 to
$_______________. Such increase shall be made by [increasing the Commitment of
_______________from $_________________ to $_______________] [adding ____________
as a Bank under the Credit Agreement with a Commitment of $__________] as set
forth in the letter attached hereto. Such increase shall be effective three
Business Days after the date that the Agent accepts the letter attached hereto
or such other date as is agreed among the Company, the Agent and the increasing
Bank.
Very truly yours,
XXXXXX'X GRAND ICE CREAM, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
E-1
ANNEX I TO EXHIBIT E
[Date]
Bank of America, N.A., as
Agent under the Credit
Agreement referred to below
000 Xxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Credit Services
Ladies/Gentlemen:
Please refer to the letter dated __________________, 200_ from Xxxxxx'x
Grand Ice Cream, Inc. (the "Company") requesting an increase in the combined
Commitments from U.S.$________________ to U.S.$______________ pursuant to
Section 2.05 of the Credit Agreement dated as of July 25, 2000 (the "Credit
Agreement") among the Company, various financial institutions (including the
undersigned Bank), Union Bank of California, N.A., as syndication agent and Bank
of America, N.A., as Agent. Capitalized terms used but not defined herein have
the respective meanings set forth in the Credit Agreement.
The undersigned hereby confirms that it has agreed to increase its
Commitment under the Credit Agreement from $ ________________ to $______________
effective on the date which is three Business Days after the acceptance hereof
by the Agent or on such other date as may be agreed among the Company, the Agent
and the undersigned.
Very truly yours,
NAME OF INCREASING BANK]
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Accepted as of
__________________, _______
BANK OF AMERICA, N.A., as Agent
By: ____________________________
Name: __________________________
Title: _________________________
E-2
ANNEX II TO EXHIBIT E
[Date]
Bank of America, N.A., as Agent
000 Xxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Credit Services
Ladies/Gentlemen:
Please refer to the letter dated ________, 200 from Xxxxxx'x Grand Ice
Cream, Inc. (the "Company"), requesting an increase in the combined Commitments
from $240,000,000 to $____________________ pursuant to Section 2.05(b) of the
Credit Agreement dated as of July 25, 2000 (as amended or otherwise modified
from time to time, the "Credit Agreement") among the Company, various financial
institutions, Union Bank of California, N.A., as syndication agent and Bank of
America, N.A., as Agent. Capitalized terms used but not defined herein have the
respective meanings set forth in the Credit Agreement.
The undersigned hereby confirms that it has agreed to become a Bank
under the Credit Agreement with a commitment of $__________ effective on the
date which is three Business Days after the acceptance hereof, and consent
hereto, by the Agent or on such other date as may be agreed among the Company,
the Agent and the undersigned.
The undersigned (a) acknowledges that it has received a copy of the
Credit Agreement and the Schedules and Exhibits thereto, together with copies of
the most recent financial statements delivered by the Company pursuant to the
Credit Agreement, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to become a
Bank under the Credit Agreement; and (b) agrees that it will, independently and
without reliance upon the Agent or any other Bank and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit and legal decisions in taking or not taking action under the Credit
Agreement.
The undersigned represents and warrants that (i) it is duly organized
and existing and it has full power and authority to take, and has taken, all
action necessary to execute and deliver this letter and to become a Bank under
the Credit Agreement; and (ii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution and delivery of this letter and the performance of its
obligations as a Bank under the Credit Agreement.
The undersigned agrees to execute and deliver such other instruments,
and take such other actions, as the Agent may reasonably request in connection
with the transactions contemplated by this letter.
The following administrative details apply to the undersigned:
(A) Notice Address
E-3
Legal Name: _______________________
Address: _______________________
_______________________
_______________________
Attention: _______________________
Telephone: (___)____________________
Facsimile: (___)___________________
(B) Payment Instructions:
Account No.: _______________________
At: _______________________
_______________________
_______________________
Reference: _______________________
Attention: _______________________
The undersigned acknowledges and agrees that, on the date on which the
undersigned becomes a Bank under the Credit Agreement as set forth in the second
paragraph hereof, the undersigned will be bound by the terms of the Credit
Agreement as fully and to the same extent as if the undersigned were an original
Bank under the Credit Agreement.
Very truly yours,
[NAME OF NEW BANK]
By: ___________________________
Name: ___________________________
Title:___________________________
Accepted and consented to as of
________, 200
BANK OF AMERICA, N.A.,
as Agent
By: ____________________________
Name: __________________________
Title: _________________________
E-4
EXHIBIT F
July 25, 2000
To the Persons Listed On Schedule 1 Hereto
Gentlemen:
We have acted as counsel to Xxxxxx'x Grand Ice Cream, Inc., a Delaware
corporation (the "Company") , in connection with the Credit Agreement dated as
of July 25, 2000, among the Company, the financial institutions parties thereto,
Union Bank of California, N.A., as syndication agent and Bank of America, N.A.,
as one of the Banks and as Agent (the "Credit Agreement"). Capitalized terms
used herein and not defined herein shall have the meanings assigned to them in
the Credit Agreement. This opinion is rendered pursuant to Section 5.01(c) of
the Credit Agreement.
We have examined executed copies of the Credit Agreement. We have also
examined such other documents and certificates of public officials and
representatives of the Company as we have deemed necessary as a basis for the
opinions expressed herein. With respect to factual matters not within our actual
knowledge, we have made no independent investigation but have relied solely upon
factual recitals set forth in the Credit Agreement and in other documents which
we have reviewed and upon the officer's certificate and the certificates of
appropriate public officials referred to above.
We have assumed the genuineness of all signatures and documents
submitted as originals, that all copies submitted to us conform to the
originals, the legal capacity of all natural persons, and as to documents
executed by entities other than the Company or its Subsidiaries, that each such
entity has complied with any applicable requirement to file returns and pay
taxes under the California Franchise Tax law and had the power to enter into and
perform its obligations under such documents, and that such documents have been
duly authorized, executed and delivered by, and are binding upon and enforceable
against, such entities.
Based on the foregoing and subject to the qualifications set forth
below, it is our opinion that:
1. Each of the Company and its Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and is duly qualified as a foreign
corporation, licensed and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification (except in such jurisdiction or
jurisdictions where a failure to do any or all of the above would not have a
Material Adverse Effect on the applicable Subsidiary or the Company).
2. The Company has full corporate power and authority to execute,
deliver and perform its obligations under the Credit Agreement and the Notes.
Each of the Company and its Subsidiaries has full corporate power and authority
to own its property and to carry on its business in the manner currently
conducted.
F-1
3. The Credit Agreement and the Notes have been duly authorized
by all necessary corporate action on the part of the Company and have been duly
executed and delivered by the Company.
4. The Credit Agreement and the Notes are valid and binding
obligations of the Company, enforceable in accordance with their respective
terms.
5. Execution and delivery of the Credit Agreement and the Notes
and performance by the Company of its obligations thereunder do not violate the
Certificate of Incorporation or By-laws of the Company, or any applicable law or
regulation or any order of court or arbitrator known to us and specifically
directed to the Company or its Subsidiaries, or result in a material breach of,
or default under, the provisions of any material contract known to us by which
the Company or its Subsidiaries is bound.
6. To our knowledge, there are no actions, suits or proceedings
pending or overtly threatened against the Company or its Subsidiaries before any
court or administrative agency which (i) affect or pertain to the Credit
Agreement and the Notes or the transactions contemplated thereby, or (ii) if
determined adversely, would reasonably be expected to have a Material Adverse
Effect on the Company.
The opinions set forth above are subject to the following
qualifications:
(a) The enforceability of the Company's obligations under the
Credit Agreement and the Notes are subject to the effect of any applicable
bankruptcy, insolvency, reorganization, receivership, conservatorship,
arrangement, moratorium or similar laws affecting creditor's rights generally,
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), to the requirement that any
actions taken or determinations made by the Banks be consistent with the implied
covenant of good faith and fair dealing and the Banks' obligation to act in a
commercially reasonable manner in exercising any rights and remedies.
(b) Whenever a statement herein is qualified by "known to us," "to
our knowledge," or similar phrase, it indicates that in the course of our
representation of the Company no information that would give us current actual
knowledge of the inaccuracy of such statement has come to the attention of the
attorneys in this firm who have rendered legal services in connection with this
transaction. We have not made any independent investigation to determine the
accuracy of such statement, except as expressly described herein.
We express no opinion as to any matter other than as set forth above.
Further, we note that the Credit Agreement is governed by the laws of the State
of Illinois. We express no opinion on the laws of the state of Illinois or any
other jurisdiction, other than the State of California, the federal law of the
United States of America and the corporate law of the State of Delaware.
The opinions expressed herein are based upon the law in effect on the
date hereof, and we assume no obligation to revise or supplement this opinion.
Our opinion in section 1 with respect to due organization is based upon our
review of certified copies of the Certificates of
F-2
Incorporation of the Company and its Subsidiaries provided to us by DataSearch
and CT Corporation System, as outlined in the attachment hereto. Our opinion in
section 1 with respect to the qualification of the Company and its Subsidiaries
as foreign corporations is based upon certificates of good standing provided to
us by DataSearch and CT Corporation System, as outlined in the attachment
hereto, and upon the certification provided to us by the Company that, with
respect to any state not listed in the attachment hereto, the Company's
ownership, lease or operation of property or the Company's conduct of its
business in any such state does not require any such qualification.
This opinion is rendered solely for your use in connection with the
transactions described above and may not be relied upon by any other person
(other than your permitted successors, assigns and participants under the Credit
Agreement) for any purpose without our prior written consent.
Very truly yours
FREELAND, COOPER, XXXXXXX
& HAMBURG
Xxxxxx X. Xxxxxx
F-3
SCHEDULE 1
BANK OF AMERICA, N.A., as Agent
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
BANK OF AMERICA N.A., as Swing Line Bank,
Letter of Credit Issuing Bank and as a Bank
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
UNION BANK OF CALIFORNIA, N.A., as Syndication Agent
Two Walnut Creek Center
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
AGSTAR FINANCIAL SERVICES, PCA
dba FCS Commercial Finance Group
XXXXXX TRUST AND SAVINGS BANK
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
COBANK, ACB
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
SUNTRUST BANK
000 Xxxxxxxxx Xxxxxx, X.X.
0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
COOPERATIEVE CENTRALE RAIFFEISEN-BOERLEENBANK B.A.
"RABOBANK NEDERLAND" NEW YORK BRANCH
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
CREDIT AGRICOLE INDOSUEZ
00 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
THE BANK OF NEW YORK
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
F-4
EXHIBIT G
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of ________________, ______ is made between
__________________________________________________ (the "Assignor") and
__________________________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Credit Agreement (the
"Agreement") dated as of July __, 2000 (as amended or otherwise modified from
time to time, the "Agreement") among Xxxxxx'x Grand Ice Cream, Inc., a Delaware
corporation (the "Company"), the several financial institutions from time to
time party thereto (including the Assignor, the "Banks"), and Bank of America,
N.A., as agent for the Banks (the "Agent"). Any terms defined in the Agreement
and not defined in this Assignment and Acceptance are used herein as defined in
the Agreement;
WHEREAS, as provided under the Agreement, the Assignor has committed to
making Loans (the "Loans") to the Company in an aggregate amount not to exceed
$__________ (the "Commitment");
WHEREAS, [the Assignor has made Loans in the aggregate principal amount
of $____________ to the Company] [no Loans are outstanding under the Agreement];
WHEREAS, the Assignor wishes to assign to the Assignee [PART OF THE]
[all] rights and obligations of the Assignor under the Agreement in respect of
its Commitment, [together with a corresponding portion of each of its
outstanding Loans in an amount equal to $__________ (the "Assigned Amount") on
the terms and subject to the conditions set forth herein and the Assignee wishes
to accept assignment of such rights and to assume such obligations from the
Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
Section 1. Assignment and Acceptance.
Subject to the terms and conditions of this Assignment and Acceptance,
(i) the Assignor hereby sells, transfers and assigns to the Assignee, and (ii)
the Assignee hereby purchases, assumes and undertakes from the Assignor, without
recourse and without representation or warranty (except as provided in this
Assignment and Acceptance) __% (the "Assignee's Percentage Share") of (A) the
Commitment of the Assignor and (B) all related rights, benefits, obligations,
liabilities and indemnities of the Assignor under and in connection with the
Agreement and the Loan Documents.
G-1
[IF APPROPRIATE, ADD PARAGRAPH SPECIFYING PAYMENT TO ASSIGNOR BY
ASSIGNEE OF OUTSTANDING PRINCIPAL OF, ACCRUED INTEREST ON, AND FEES WITH RESPECT
TO LOANS.]
On and after the Effective Date (as defined in Section 5 hereof), the
Assignee shall be a party to the Agreement and succeed to all of the rights and
be obligated to perform all of the obligations of a Bank under the Agreement,
including the requirements concerning confidentiality and the payment of any
indemnification, with a Commitment in an amount equal to the Assigned Amount.
The Assignee agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Agreement are required to be performed
by it as a Bank. It is the intent of the parties hereto that the Commitment of
the Assignor shall, as of the Effective Date, be reduced by an amount equal to
the Assigned Amount and the Assignor shall relinquish its rights and be released
from its obligations under the Agreement to the extent such obligations have
been assumed by the Assignee; provided the Assignor shall not relinquish its
rights under Sections 11.04 and 11.05 of the Agreement to the extent such rights
relate to the time prior to the Effective Date.
After giving effect to the assignment and assumption set forth herein,
on the Effective Date the Assignee's Commitment will be $_______.
After giving effect to the assignment and assumption set forth herein,
on the Effective Date the Assignor's Commitment will be $_________.
Section 2. Payments.
As consideration for the sale, assignment and transfer contemplated in
Section 1 hereof, the Assignee shall pay to the Assignor on the Effective Date
in immediately available funds an amount equal to $_________, representing the
Assignee's Pro Rata Share of the principal amount of all Loans.
The [ASSIGNOR] [ASSIGNEE] further agrees to pay to the Agent a
processing fee in the amount specified in Section 11.08(a)(iii) of the
Agreement.
Section 3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective Date
with respect to the Commitment and Loans shall be for the account of the
Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Amount shall be for the account of
the Assignee. Each of the Assignor and the Assignee agrees that it will hold in
trust for the other party any interest, fees and other amounts which it may
receive to which the other party is entitled pursuant to the preceding sentence
and pay to the other party any such amounts which it may receive promptly upon
receipt.
Section 4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of the
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements referred to in Section 7.01 of the Agreement,
and such other documents and information as it has
G-2
deemed appropriate to make its own credit and legal analysis and decision to
enter into this Assignment and Acceptance; and (b) agrees that it will,
independently and without reliance upon the Assignor, the Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit and legal decisions in taking or not
taking action under the Agreement.
Section 5. Effective Date; Notices.
As between the Assignor and the Assignee, the effective date for this
Assignment and Acceptance shall be _________, _____ (the "Effective Date");
provided that the following conditions precedent have been satisfied on or
before the Effective Date:
(a) this Assignment and Acceptance shall be executed and delivered
by the Assignor and the Assignee;
(b) the consent of the Company and the Agent required for an
effective assignment of the Assigned Amount by the Assignor to the Assignee
under Section 11.08(a) of the Agreement shall have been duly obtained and shall
be in full force and effect as of the Effective Date;
(c) the Assignee shall pay to the Assignor all amounts due to the
Assignor under this Assignment and Acceptance;
(d) the Assignee shall have complied with Section 10.10 of the
Agreement (if applicable);
(e) the processing fee referred to in Section 2 hereof and in
Section 11.08(a)(iii) of the Agreement shall have been paid to the Agent; and
(f) the Assignor shall have assigned and the Assignee shall have
assumed a percentage equal to the Assignee's Percentage Share of the rights and
obligations of the Assignor under the Agreement (if such agreement exists).
Promptly following the execution of this Assignment and Acceptance, the
Assignor shall deliver to the Company and the Agent for acknowledgment by the
Agent, a Notice of Assignment substantially in the form attached hereto as
Schedule 1.
[SECTION __. AGENT. [INCLUDE ONLY IF ASSIGNOR IS AGENT]
The Assignee hereby appoints and authorizes the Assignor to take such
action as agent on its behalf and to exercise such powers under the Agreement as
are delegated to the Agent by the Banks pursuant to the terms of the Agreement.
The Assignee shall assume no duties or obligations held by the Assignor
in its capacity as Agent under the Agreement.]
G-3
Section 6. Withholding Tax.
The Assignee (a) represents and warrants to the Bank, the Agent and the
Company that under applicable law and treaties no tax will be required to be
withheld by the Bank with respect to any payments to be made to the Assignee
hereunder, (b) agrees to furnish (if it is organized under the laws of any
jurisdiction other than the United States or any State thereof) to the Agent and
the company prior to the time that the Agent or Company is required to make any
payment of principal, interest or fees hereunder, duplicate executed originals
of either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein the Assignee claims entitlement to the benefits of a
tax treaty that provides for a complete exemption from U.S. federal income
withholding tax on all payments hereunder) and agrees to provide new Forms 4224
or 1001 upon the expiration of any previously delivered form or comparable
statements in accordance with applicable U.S. law and regulations and amendments
thereto, duly executed and completed by the Assignee, and (c) agrees to comply
with all applicable U.S. laws and regulations with regard to such withholding
tax exemption.
Section 7. Representations and Warranties.
The Assignor represents and warrants that (a) it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any Lien or other adverse claim; (b) it is duly
organized and existing and it has the full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill
its obligations hereunder; (c) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Assignment and
Acceptance, and apart from any agreements or undertakings or filings required by
the Agreement, no further action by, or notice to, or filing with, any Person is
required of it for such execution, delivery or performance; and (d) this
Assignment and Acceptance has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles.
The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Agreement or
any other instrument or document furnished pursuant thereto. The Assignor makes
no representation or warranty in connection with, and assumes no responsibility
with respect to, the solvency, financial condition or statements of the Company,
or the performance or observance by the Company, of any of its respective
obligations under the Agreement or any other instrument or document furnished in
connection therewith.
The Assignee represents and warrants that (i) it is duly organized and
existing and it has full power and authority to take, and has taken, all action
necessary to execute and deliver this Assignment and Acceptance and any other
documents required or permitted to be executed or delivered by it in connection
with this Assignment and Acceptance, and to fulfill its obligations
G-4
hereunder; (ii) no notices to, or consents, authorizations or approvals of, any
Person are required (other than any already given or obtained) for its due
execution, delivery and performance of this Assignment and Acceptance; and apart
from any agreements or undertakings or filings required by the Agreement, no
further action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; (iii) this Assignment and
Acceptance has been duly executed and delivered by it and constitutes the legal,
valid and binding obligation of the Assignee, enforceable against the Assignee
in accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable principles;
and (iv) it is an Eligible Assignee.
Section 8. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to the Company or the Agent, which may be required in
connection with the assignment and assumption contemplated hereby.
Section 9. Miscellaneous.
Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No failure or
delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Assignment and Acceptance shall be without prejudice to any
rights with respect to any other or further breach thereof.
All payments made hereunder shall be made without any set-off or
counterclaim.
The Assignor and the Assignee shall each pay its own costs and expenses
incurred in connection with the negotiation, preparation, execution and
performance of this Assignment and Acceptance.
This Assignment and Acceptance may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS. The Assignor and the Assignee
each irrevocably submits to the non-exclusive jurisdiction of any State or
Federal court sitting in California over any suit, action or proceeding arising
out of or relating to this Assignment and Acceptance and irrevocably agrees that
all claims in respect of such action or proceeding may be heard and determined
in such California State or Federal court. Each party to this Assignment and
Acceptance hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding.
G-5
THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS ASSIGNMENT AND ACCEPTANCE, THE AGREEMENT, ANY RELATED DOCUMENTS AND
AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER
ORAL OR WRITTEN).
[OTHER PROVISIONS TO BE ADDED AS MAY BE NEGOTIATED BETWEEN THE ASSIGNOR
AND THE ASSIGNEE, PROVIDED THAT SUCH PROVISIONS ARE NOT INCONSISTENT WITH THE
AGREEMENT.]
G-6
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By: __________________________
Name: __________________________
Title: __________________________
By: __________________________
Name: __________________________
Title: __________________________
Address: ________________________
[ASSIGNEE]
By: __________________________
Name: __________________________
Title: __________________________
By: __________________________
Name: __________________________
Title: __________________________
Address: ________________________
G-7
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_____________, 20__
Bank of America, N.A., as Agent
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Agency Management Services #5596
Xxxxxx'x Grand Ice Cream, Inc.
0000 Xxxxxxx Xxx.
Xxxxxxx, XX 00000
Attn: Treasurer
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of July 25, 2000 (as amended
or otherwise modified from time to time the "Agreement") among Xxxxxx'x Grand
Ice Cream, Inc. (the "Company"), the Banks referred to therein, Union Bank of
California, N.A., as syndication agent and Bank of America, N.A., as agent for
the Banks (the "Agent"). Terms defined in the Agreement are used herein as
therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by _____________________ (the "Assignor") to _____________________
(the "Assignee") of ____% of the right, title and interest of the Assignor in
and to the Agreement (including, without limitation, the right, title and
interest of the Assignor in and to the Commitments of the Assignor[,] [AND] all
outstanding Loans made by the Assignor) pursuant to the Assignment and
Acceptance Agreement attached hereto (the "Assignment and Acceptance"). Before
giving effect to such assignment the Assignor's Commitment is $______________
[,] [and] the aggregate amount of its outstanding Loans is $______________.
2. The Assignee agrees that, upon receiving the consent of the
Agent[, THE ISSUING BANK] and, if applicable, Xxxxxx'x Grand Ice Cream, Inc. to
such assignment, the Assignee will be bound by the terms of the Agreement as
fully and to the same extent as if the Assignee were the Bank originally holding
such interest in the Agreement.
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name: ______________________________
Address: ______________________________
Attention: ______________________________
Telephone: (_______)______________________
Telecopier: (_______)______________________
G-8
(B) Payment Instructions:
Account No.: ______________________________
Address: ______________________________
Reference: ______________________________
Attention: ______________________________
Telephone: (_______)______________________
Telecopier: (_______)______________________
(C) Domestic Lending Office:
Address: ______________________________
Attention: ______________________________
Telephone: (_______)______________________
Telecopier: (_______)______________________
(D) Offshore Lending Office:
Address: ______________________________
Attention: ______________________________
Telephone: (_______)______________________
Telecopier: (_______)______________________
4. You are entitled to rely upon the representations, warranties
and covenants of each of the Assignor and Assignee contained in the Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By: _________________________
Name: _________________________
Title: _________________________
By: _________________________
Name: _________________________
Title: _________________________
[NAME OF ASSIGNEE]
By: _________________________
Name: _________________________
Title: _________________________
G-9
By: _________________________
Name: _________________________
Title: _________________________
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
XXXXXX'X GRAND ICE CREAM, INC.
By: _________________________
Name: _________________________
Title: _________________________
By: _________________________
Name: _________________________
Title: _________________________
BANK OF AMERICA, N.A., AS AGENT
By: _________________________
Name: _________________________
Title: _________________________
G-10
EXHIBIT H
FORM OF
NOTE
_____________________, ______
FOR VALUE RECEIVED, the undersigned, Xxxxxx'x Grand Ice Cream, Inc., a
Delaware corporation (the "Company"), hereby promises to pay to the order of
_______________ (the "Bank") the aggregate unpaid principal amount of all Loans
made by the Bank to the Company pursuant to the Credit Agreement dated as of
July 25, 2000 (as amended or otherwise modified from time to time, the "Credit
Agreement") among the Company, various financial institutions, Union Bank of
California, N.A., as Syndication Agent and Bank of America, N.A., as
Administrative Agent, on the dates and in the amounts specified pursuant to the
Credit Agreement. The Company further promises to pay interest on the unpaid
principal amount of the Loans evidenced hereby from time to time at the rates,
on the dates, and otherwise as provided in the Credit Agreement.
The Bank is authorized to endorse the amount and the date on which each
Loan is made and each payment of principal with respect thereto on the schedules
annexed hereto and made a part hereof, or on continuations thereof which shall
be attached hereto and made a part hereof; provided that any failure to endorse
such information on such schedule or continuation thereof shall not in any
manner affect any obligation of the Company under the Credit Agreement and this
Note.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events.
Terms defined in the Credit Agreement are, unless otherwise defined
herein, used herein as defined therein. This Note shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Illinois
applicable to contracts made and to be performed entirely within such State.
H-1
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed and delivered as of the day and year first above written.
XXXXXX'X GRAND ICE CREAM, INC.
By: _________________________
Name: _________________________
Title: _________________________
H-2
Schedule A to Note
BASE RATE LOANS AND REPAYMENTS OF
BASE RATE LOANS
(2) (3)
Amount of Amount of (4)
(1) Base Rate Base Rate Notation
Date Loan Loan Repaid Made By
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
----------- --------- ----------- --------
H-3
Schedule B to Note
OFFSHORE RATE LOANS AND REPAYMENTS
OF OFFSHORE RATE LOANS
(3)
(2) Interest (4)
Amount of Period for Amount of (5)
(1) Offshore Rate Offshore Rate Offshore Rate Notation
Date Loan Loan Loan Repaid Made By
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
H-4
Schedule C to Note
SWING LINE LOANS AND REPAYMENT OF SWING LINE LOANS
(3)
(2) Interest (4)
Amount of Period for Amount of (5)
(1) Swing Line Swing Line Swing Line Notation
Date Loan Loan Loan Repaid Made By
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
----------- ------------- ------------- ------------- ---------
H-5
SCHEDULE 2.1
COMMITMENTS
----------------------------------------------------------------------------------------------
PRO RATA
BANK COMMITMENT SHARE
----------------------------------------------------------------------------------------------
BANK OF AMERICA, N.A. $ 40,000,000.00 16.666666666666666
----------------------------------------------------------------------------------------------
UNION BANK OF CALIFORNIA, N.A. $ 35,000,000.00 14.583333333333334
----------------------------------------------------------------------------------------------
COBANK, ACB $ 37,500,000.00 15.625000000000000
----------------------------------------------------------------------------------------------
XXXXXX TRUST AND SAVINGS BANK $ 25,000,000.00 10.416666666666667
----------------------------------------------------------------------------------------------
SUNTRUST BANK $ 37,500,000.00 15.625000000000000
----------------------------------------------------------------------------------------------
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., $ 25,000,000.00 10.416666666666667
"RABOBANK-INTERNATIONAL" NEW YORK BRANCH
----------------------------------------------------------------------------------------------
FARM CREDIT SERVICES OF MINNESOTA VALLEY, PCA $ 25,000,000.00 10.416666666666667
----------------------------------------------------------------------------------------------
THE BANK OF NEW YORK $ 15,000,000.00 6.250000000000000
----------------------------------------------------------------------------------------------
TOTAL $240,000,000.00 100.000000000000000
----------------------------------------------------------------------------------------------
SCHEDULE 4.01
EXISTING LETTERS OF CREDIT
(A) Edy's Grand Ice Cream entered into an Industrial Revenue Bond agreement
with the City of Fort Xxxxx, Indiana on September 1, 1985 in the initial amount
of $9,000,000 for the cost of acquiring, constructing and improving an ice cream
production facility. Edy's Grand Ice Cream simultaneously entered into a Letter
of Credit Agreement with Security Pacific National Bank, which has since been
succeeded by Bank of America, N.A., as a backstop to the Industrial Revenue Bond
agreement.
SCHEDULE 6.7
ERISA
NONE
SCHEDULE 6.11
Special Disclosures of Financial Condition
NONE
SCHEDULE 6.15
LABOR RELATIONS
NONE
SCHEDULE 6.17
Subsidiaries
(a) Subsidiaries of Xxxxxx'x Grand Ice Cream Holdings, Inc.
Xxxxxx'x Grand Ice Cream Inc., a Delaware corporation
Xxxxxx'x Grand Ice Cream Holdings, Inc. owns 100%
Subsidiaries of Xxxxxx'x Grand Ice Cream, Inc.
Dreyer's International, Inc. [FSC], a US Virgin
Islands corporation
Xxxxxx'x Grand Ice Cream, Inc. owns 100%
Edy's Grand Ice Cream, a California corporation
Xxxxxx'x Grand Ice Cream, Inc. owns 100%
Edy's of Illinois, Inc., an Illinois corporation
Edy's Grand Ice Cream owns 100%
Grand Soft Capital Company, a California corporation
Xxxxxx'x Grand Ice Cream, Inc. owns 100%
Grand Soft Equipment Company, a Kentucky corporation
Xxxxxx'x Grand Ice Cream, Inc. owns 100%
Xxxxx Enterprises, Inc., a California corporation
Xxxxxx'x Grand Ice Cream, Inc. owns 100%
BRW Management Inc., a Utah corporation
Xxxxxx'x Grand Ice Cream, Inc. owns 100%
Xxxxxxxx Distributing, Inc., a California corporation
Xxxxxx'x Grand Ice Cream, Inc. owns 100%
Nestle Ice Cream Company, LLC, a Delaware limited liability
company.
Xxxxxx'x Grand Ice Cream Holdings, Inc. owns 100%
Subsidiaries of Nestle Ice Cream Company, LLC
Rock Island Foods, Inc., a California Corporation
Nestle Ice Cream Company, LLC owns 100%
(b) Ownership Interests
1. Xxxxxx'x Grand Ice Cream, Inc. and Starbucks Holding Company
entered into a Joint Venture and Partnership Agreement dated as of October 31,
1995.
2. Xxxxxx'x Grand Ice Cream, Inc. and M&M/Mars, a division of
Mars Incorporated, a Delaware corporation entered into an Operating Agreement to
create M&M/Mars/Xxxxxx'x Grand Ice Cream LLC dated as of September 15, 1999.
3. Xxxxxx'x Grand Ice Cream, Inc. and Xxxxxxxx Inland
Distributors, Inc., a Washington corporation, entered into an Agreement To Form
Limited Liability Company to create Xxxxxxxx Inland Distributors, LLC dated May
24, 2001. Xxxxxx'x Grand Ice Cream owns 45% interest in the LLC.
4. Xxxxxx'x Grand Ice Cream, Inc. has an investment in Oakland
Low-Income Housing valued at $50,198 as of March 2003.
2
SCHEDULE 8.1
EXISTING LIENS
NONE
SCHEDULE 8.4
INVESTMENTS
(a) Xxxxxx'x Grand Ice Cream, Inc. has loans to employees pursuant
to the Company's Employee Secured Stock Purchase Plan with an aggregate
principal amount of $2,070,000 as of March 29, 2003.
(b) Nestle Ice Cream Company, LLC has loans to employees with an
aggregate principal amount of $3,548,000 as of September 29, 2002.
SCHEDULE 8.5
Indebtedness
1. Dreyer's: That amount of indebtedness reflected on the balance
sheet liability statement below plus any bank borrowings which may have occurred
from March 29, 2003.
Condensed Consolidated Balance Sheet
(In thousands)
March 29, 2003 December 28, 2002
-------------- -----------------
(unaudited) (audited)
Liabilities and Stockholders' Equity
Current Liabilities:
Accounts payable and accrued liabilities $122,243 $131,362
Current portion of long-term debt $ 2,143 $ 2,143
Total Current liabilities $124,386 $133,505
Long-term debt less current portion $154,929 $118,529
Deferred income taxes $16,590 $ 16,550
Total liabilities $295,905 $268,584
Stockholders' equity $244,482 $243,988
Total liabilities and stockholders' equity $540,387 $512,572
2. Nestle Ice Cream Company: That amount of indebtedness
reflected on the balance sheet liability statement below plus any borrowings on
the Nestle USA Inc. Demand Notes which may have occurred from September 29,
2002.
Condensed Consolidated Balance Sheet
(In thousands)
September 29, 2002
------------------
(unaudited)
Liabilities and Stockholders' Equity
Current Liabilities:
Accounts payable, accrued liabilities, accrued payroll & benefits $ 92,850
Nestle USA Inc. Demand Notes $ 66,306
Total Current liabilities $159,156
Other Longterm Liabilities $ 2,462
Deferred income taxes
Total liabilities $161,618
Stockholders' equity $619,474
Total liabilities and stockholders' equity $781,092
2
SCHEDULE 8.8
Contingent Obligations
NONE
SCHEDULE 11.2
Addresses for Notices, etc.
ADDRESSES FOR NOTICES
XXXXXX'X GRAND ICE CREAM, INC.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Treasurer
Telephone: 510/000-0000
Facsimile: 510/450-4592
BANK OF AMERICA, N.A., as Agent
Bank of America, N.A.
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Principal
Telephone: 312/000-0000
Facsimile: 312/987-1276
BANK OF AMERICA, N.A., as a Bank
Domestic and Offshore Lending Office:
Bank of America, N.A.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx Xxxxx
Telephone: 214/000-0000
Facsimile: 214/290-9435
Wiring Instructions:
ABA No.: 000000000
Account No.: 1292000883
Reference: Xxxxxx'x Grand Ice Cream, Inc.
Notices (other than Notices of Borrowing and Notices of
Conversion/Continuation):
Bank of America, N.A.
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Principal
Telephone: 312/000-0000
Facsimile: 312/987-1276
UNION BANK OF CALIFORNIA, N.A.
Domestic and Offshore Lending Office:
Union Bank of California, N.A.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Gohar Karapervan
Telephone: 323/000-0000
Facsimile: 323/724-6198
Notices (other than Notices of Borrowing and Notices of
Conversion/Continuation)
Union Bank of California, N.A.
Two Walnut Creek Center
000 Xxxxxxx Xxx., Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Vice President
Telephone: 925/000-0000
Facsimile: 925/947-2424
COBANK, ACB
Domestic and Offshore Lending Office:
CoBank, ACB
X.X. Xxx 0000
Xxxxxx, XX 00000
0000 Xxxxx Xxxxxx Xxxxxx
0
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Agency Loan Accountant
Telephone: 303/000-0000
Facsimile: 303/740-4021
Notices (other than Notices of Borrowing and Notices of
Conversion/Continuation):
CoBank, ACB
X.X. Xxx 0000
Xxxxxx, XX 00000
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: S. Xxxxxxx Xxxx
Vice President
Telephone: 303/000-0000
Facsimile: 303/694-4366
CREDIT AGRICOLE INDOSUEZ
Domestic and Offshore Lending Office:
Credit Agricole Indosuez
00 X. Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Loan Administrator
Telephone: 312/000-0000
Facsimile: 312/372-4421
Notices (other than Notices of Borrowing and Notices of
Conversion/Continuation):
Credit Agricole Indosuez
00 X. Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Vice President, Sr. Relationship Manager
3
Telephone: 312/000-0000
Facsimile: 312/372-3455
XXXXXX TRUST AND SAVINGS BANK
Domestic and Offshore Lending Office:
Xxxxxx Trust and Savings Bank
000 X. Xxxxxx Xxxxxx, 00xx Xxxxx-Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Telephone: 312/000-0000
Facsimile: 312/293-4798
Notices (other than Notices of Borrowing and Notices of
Conversion/Continuation):
Xxxxxx Trust and Savings Bank
Xxx Xxxxxx, Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Vice President
Telephone: 415/000-0000
Facsimile: 415/397-1888
RABOBANK INTERNATIONAL
Domestic and Offshore Lending Office:
Rabobank International
00 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxxxx Dell'Xxxx
Xx. Customer Services Representative
Telephone: 201/000-0000
Facsimile: 201/499-5326
Notices (other than Notices of Borrowing and Notices of
Conversion/Continuation):
4
Rabobank International
0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Vice President
Telephone: 415/000-0000
Facsimile: 415/986-8349
SUNTRUST BANK
Domestic and Offshore Lending Office:
SunTrust Bank
00 Xxxx Xxxxx, 0xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
CBA
Telephone: 404/000-0000
Facsimile: 404/230-1940
Notices (other than Notices of Borrowing and Notices of
Conversion/Continuation):
SunTrust Bank
303 Peachtree Street, MC 0000, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Director
Telephone: 415/000-0000
Facsimile: 415/492-4558
Farm Credit Services of Minnesota Valley, PCA
dba FCS Commercial Finance Group
Domestic and Offshore Lending Office:
Commercial Finance Group
Xxxxxxxxxxx Xxxxx
Xxxxx 000
000 Xxxxx Xxxxxxx 169
5
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Senior Vice President
Syndicated Finance
Telephone: 952/000-0000 Ext. 303
Facsimile: 952/513-9956
Notices (other than Notices of Borrowing and Notices of
Conversion/Continuation):
THE BANK OF NEW YORK
Domestic and Offshore Lending Office:
The Bank of New York
Xxx Xxxx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Administrator
Telephone: 212/000-0000
Facsimile: 212/635-6399 or 6877
Notices (other than Notices of Borrowing and Notices of
Conversion/Continuation):
The Bank of New York
00000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxx
Vice President
Telephone: 310/000-0000
Facsimile: 310/996-8667
6
Credit Agreement
dated as of July 25, 2000
among
XXXXXX'X GRAND ICE CREAM, INC.
THE BANKS PARTY TO THIS AGREEMENT,
BANK OF AMERICA, N.A.
as Agent for the Banks, Swing Line Bank
and Letter of Credit Issuing Bank,
UNION BANK OF CALIFORNIA, N.A.
as Syndication Agent
and
BANC OF AMERICA SECURITIES LLC
as Lead Arranger and
Book Manager
1
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................... 1
1.1 Certain Defined Terms......................................... 1
1.2 Other Interpretive Provisions................................. 17
1.3 Accounting Principles......................................... 18
ARTICLE II THE CREDITS.......................................................... 18
2.1 Amounts and Terms of Commitments.............................. 18
2.2 Loan Accounts; Noteless Agreement............................. 19
2.3 Procedure for Borrowing....................................... 19
2.4 Conversion and Continuation Elections......................... 20
2.5 Change in Combined Commitments................................ 21
2.6 Optional Prepayments.......................................... 22
2.7 Repayment..................................................... 22
2.8 Interest...................................................... 22
2.9 Fees.......................................................... 23
2.10 Computation of Fees and Interest.............................. 24
2.11 Payments by the Company....................................... 24
2.12 Payments by the Banks to the Agent............................ 25
2.13 Sharing of Payments, Etc...................................... 26
2.14 Swing Line Commitment......................................... 26
2.15 Borrowing Procedures for Swing Line Loans..................... 26
2.16 Prepayment or Refunding of Swing Line Loans................... 26
2.17 Participations in Swing Line Loans............................ 27
2.18 Participation Obligations Unconditional....................... 27
2.19 Conditions to Swing Line Loans................................ 28
ARTICLE III THE LETTERS OF CREDIT............................................... 28
3.1 The Letter of Credit Subfacility.............................. 28
3.2 Issuance, Amendment and Renewal of Letters of Credit.......... 29
3.3 Risk Participations, Drawings and Reimbursements.............. 31
3.4 Repayment of Participations................................... 33
3.5 Role of the Issuing Banks..................................... 33
3.6 Obligations Absolute.......................................... 34
3.7 Cash Collateral Pledge........................................ 35
3.8 Letter of Credit Fees......................................... 35
3.9 Uniform Customs and Practice.................................. 36
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY............................... 36
4.1 Taxes......................................................... 36
4.2 Illegality.................................................... 37
4.3 Increased Costs and Reduction of Return....................... 37
4.4 Funding Losses................................................ 38
4.5 Inability to Determine Rates.................................. 39
4.6 Reserves on Offshore Rate Loans............................... 39
1
4.7 Survival...................................................... 39
ARTICLE V CONDITIONS PRECEDENT.................................................. 39
5.1 Conditions of Initial Loans Etc............................... 39
5.2 Conditions to All Borrowings.................................. 41
ARTICLE VI REPRESENTATIONS AND WARRANTIES....................................... 41
6.1 Corporate Existence and Power................................. 41
6.2 Corporate Authorization; No Contravention..................... 42
6.3 Governmental Authorization.................................... 42
6.4 Binding Effect................................................ 42
6.5 Litigation.................................................... 42
6.6 No Default.................................................... 43
6.7 ERISA Compliance.............................................. 43
6.8 Use of Proceeds; Margin Regulations........................... 44
6.9 Title to Properties........................................... 44
6.10 Taxes......................................................... 44
6.11 Financial Condition........................................... 44
6.12 Environmental Matters......................................... 45
6.13 Regulated Entities............................................ 45
6.14 No Burdensome Restrictions.................................... 45
6.15 Labor Relations............................................... 45
6.16 Copyrights, Patents, Trademarks and Licenses, etc............. 45
6.17 Subsidiaries.................................................. 46
6.18 Insurance..................................................... 46
6.19 Full Disclosure............................................... 46
6.20 Disclosure re Margin Stock.................................... 46
ARTICLE VII AFFIRMATIVE COVENANTS............................................... 46
7.1 Financial Statements.......................................... 46
7.2 Certificates; Other Information............................... 47
7.3 Notices....................................................... 47
7.4 Preservation of Corporate Existence, Etc...................... 48
7.5 Maintenance of Property....................................... 49
7.6 Insurance..................................................... 49
7.7 Payment of Obligations........................................ 49
7.8 Compliance with Laws.......................................... 50
7.9 Compliance with ERISA......................................... 50
7.10 Inspection of Property and Books and Records.................. 50
7.11 Environmental Laws............................................ 50
7.12 Use of Proceeds............................................... 50
7.13 Cooperation; Further Assurances............................... 51
ARTICLE VIII NEGATIVE COVENANTS................................................. 51
8.1 Limitation on Liens........................................... 51
8.2 Disposition of Assets......................................... 53
2
8.3 Consolidations and Mergers.................................... 54
8.4 Loans and Investments......................................... 54
8.5 Limitation on Indebtedness.................................... 55
8.6 Transactions with Affiliates.................................. 55
8.7 Use of Proceeds............................................... 56
8.8 Contingent Obligations........................................ 56
8.9 Joint Ventures................................................ 56
8.11 Restricted Payments........................................... 57
8.12 ERISA......................................................... 58
8.13 Consolidated Net Worth........................................ 58
8.14 Minimum Fixed Charge Coverage Ratio........................... 58
8.15 Funded Debt/EBITDA Ratio...................................... 58
8.16 Change in Business............................................ 58
8.17 Accounting Changes............................................ 59
8.18 Other Contracts............................................... 59
8.19 Negative Pledge............................................... 59
ARTICLE IX EVENTS OF DEFAULT.................................................... 59
9.1 Event of Default.............................................. 59
9.2 Remedies...................................................... 62
9.3 Rights Not Exclusive.......................................... 63
ARTICLE X THE AGENT............................................................. 63
10.1 Appointment and Authorization................................. 63
10.2 Delegation of Duties.......................................... 63
10.3 Liability of Agent............................................ 64
10.4 Reliance by Agent............................................. 64
10.5 Notice of Default............................................. 64
10.6 Credit Decision............................................... 65
10.7 Indemnification of Agent...................................... 65
10.8 Agent in Individual Capacity.................................. 66
10.9 Successor Agent............................................... 66
10.10 Withholding Tax............................................... 66
10.11 Other Agent................................................... 68
10.12 Guaranty Matters.............................................. 68
ARTICLE XI MISCELLANEOUS........................................................ 68
11.1 Amendments and Waivers........................................ 68
11.2 Notices....................................................... 69
11.3 No Waiver; Cumulative Remedies................................ 70
11.4 Costs and Expenses............................................ 70
11.5 Company Indemnification....................................... 70
11.6 Payments Set Aside............................................ 71
11.7 Successors and Assigns........................................ 71
11.8 Assignments, Participations, etc.............................. 71
11.9 Confidentiality............................................... 73
3
11.10 Set-off....................................................... 73
11.11 Notification of Addresses, Lending Offices, Etc............... 73
11.12 Counterparts.................................................. 74
11.13 Severability.................................................. 74
11.14 No Third Parties Benefitted................................... 74
11.16 Waiver of Jury Trial.......................................... 74
EXHIBITS
Exhibit A Form of Compliance Certificate
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Notice of Conversion/Continuation
Exhibit D Form of Notice of Swing Line Loan
Exhibit E Form of Request for Increase in Aggregate Commitment
Exhibit F Form of Opinion of Counsel
Exhibit G Form of Assignment and Acceptance Agreement
Exhibit H Form of Note
SCHEDULES
Schedule 1.1 Pricing Schedule
Schedule 2.01 Commitments
Schedule 4.01 Existing Letters of Credit
Schedule 6.07 ERISA Compliance
Schedule 6.11 Special Disclosures of Financial Condition
Schedule 6.15 Labor Relations
Schedule 6.17 Subsidiaries
Schedule 8.01 Existing Liens
Schedule 8.04 Investments
Schedule 8.05 Indebtedness
Schedule 8.08 Contingent Obligations
Schedule 11.02 Addresses for Notices
4
EXHIBIT B
FORM OF GUARANTY
B-1
GUARANTY
THIS GUARANTY dated as of June 27, 2003 is executed in favor of BANK OF
AMERICA, N.A. ("Bank of America"), individually and as Agent (as defined below),
and the Bank Parties (as defined below).
W I T N E S S E T H:
WHEREAS, Xxxxxx'x Grand Ice Cream, Inc. (the "Company"), various
financial institutions (the "Banks") and Bank of America, as Agent for the Banks
(in such capacity, the "Agent"), have entered into a Credit Agreement dated as
of July 25, 2000 (as amended, restated or otherwise modified from time to time,
the "Credit Agreement"); and
WHEREAS, each of the undersigned will benefit from the making of loans
and the issuance of letters of credit pursuant to the Credit Agreement and is
willing to guaranty the Obligations (as defined below) as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the undersigned agrees as
follows:
1. Definitions. Capitalized terms used but not defined herein
have the respective meanings assigned to such terms in the Credit Agreement.
2. Guaranty. Each of the undersigned hereby jointly and
severally, unconditionally and irrevocably, as primary obligor and not merely as
surety, guarantees the full and prompt payment when due, whether by acceleration
or otherwise, and at all times thereafter, of (a) all obligations of the
Company, howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due,
under the Credit Agreement or any other Loan Document, as the same may be
amended, modified, extended or renewed from time to time, and (b) all
obligations of the Company to any Bank Party under any Swap Contract, and each
of the undersigned further agrees to pay all costs and expenses (including
reasonable attorneys' fees and expenses) paid or incurred by the Agent or any
Bank Party in enforcing this Guaranty or any other applicable Loan Document
against such undersigned (all of the foregoing obligations, collectively, the
"Obligations"); provided that the liability of each of the undersigned hereunder
shall be limited to the maximum amount of the Obligations which such undersigned
may guaranty without rendering this Guaranty void or voidable under any
applicable fraudulent conveyance or fraudulent transfer law. As used herein,
"Bank Party" means each Bank and any Affiliate of a Bank which is a party to a
Swap Contract with the Company.
3. Acceleration of Obligations in certain Circumstances. Each of
the undersigned agrees that, if any Event of Default with respect to the Company
under Sections 9.01(f) and (g) of the Credit Agreement shall occur at a time
when any of the Obligations are not due and payable, such undersigned will pay
to the Agent for the account of the Bank Parties forthwith the full amount which
would be payable hereunder by such undersigned if all Obligations were then due
and payable.
4. Guaranty of Payment. This Guaranty shall in all respects be a
continuing, irrevocable, absolute and unconditional guaranty of payment and not
only collectibility, and shall remain in full force and effect (notwithstanding,
without limitation, the dissolution of any of the undersigned, that at any time
or from time to time no Obligations are outstanding or any other circumstance)
until all Commitments have terminated and all Obligations have been paid in
full.
5. Reinstatement. The undersigned further agree that if at any
time all or any part of any payment theretofore applied by the Agent or any Bank
Party to any of the Obligations is or must be rescinded or returned by the Agent
or such Bank Party for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of the Company or any of the
undersigned), such Obligations shall, for purposes of this Guaranty, to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence, notwithstanding such application by the Agent or such
Bank Party, and this Guaranty shall continue to be effective or be reinstated,
as the case may be, as to such Obligations, all as though such application by
the Agent or such Bank Party had not been made.
6. Permitted Actions by Agent and Bank Parties. The Agent or any
Bank Party may, from time to time, at its sole discretion and without notice to
any of the undersigned, take any or all of the following actions without
affecting the obligations of the undersigned hereunder: (a) retain or obtain a
security interest in any property to secure any of the Obligations or any
obligation hereunder, (b) retain or obtain the primary or secondary obligation
of any obligor or obligors, in addition to the undersigned, with respect to any
of the Obligations, (c) amend, modify or waive any provision of the Credit
Agreement, any other Loan Document or any applicable Swap Contract, (d) extend
or renew any of the Obligations for one or more periods (whether or not longer
than the original period), alter or exchange any of the Obligations, or release
or compromise any obligation of any of the undersigned hereunder or any
obligation of any nature of any other obligor with respect to any of the
Obligations, (e) release its security interest in, or surrender, release or
permit any substitution or exchange for, all or any part of any property
securing any of the Obligations or any obligation hereunder, and (f) resort to
any of undersigned for payment of any of the Obligations when due, whether or
not the Agent or such Bank Party shall have resorted to any property securing
any of the Obligations or shall have proceeded against any other of the
undersigned or any other obligor primarily or secondarily obligated with respect
to any of the Obligations.
7. Delay of Subrogation. Notwithstanding any payment made by or
for the account of any of the undersigned pursuant to this Guaranty, the
undersigned shall not be subrogated to any right of the Agent or any Bank Party
until such time as this Guaranty shall have been discontinued as to all of the
undersigned and the Agent and the Bank Parties shall have received payment in
cash of the full amount of all Obligations.
8. Certain Waivers. The undersigned hereby expressly waive: (a)
notice of the acceptance by the Agent or any Bank Party of this Guaranty, (b)
notice of the existence or creation or non-payment of all or any of the
Obligations, (c) presentment, demand, notice of dishonor, protest and all other
notices whatsoever, and (d) all diligence in collection or protection of or
realization upon any Obligations or any security for or guaranty of any
Obligations.
- 2 -
9. Additional Obligations. The creation or existence from time to
time of additional Obligations to the Agent or any Bank Party is hereby
authorized, without notice to any of the undersigned, and shall in no way affect
or impair the rights of the Agent or any Bank Party or the obligations of the
undersigned under this Guaranty.
10. Assignments by Bank Parties. The Agent and any Bank Party may
from time to time, without notice to any of the undersigned (but subject to the
terms of the Credit Agreement), assign or transfer any or all of the Obligations
or any interest therein; and, notwithstanding any such assignment or transfer or
any subsequent assignment or transfer thereof, such Obligations shall be and
remain Obligations for purposes of this Guaranty, and each and every immediate
and successive assignee or transferee of any of the Obligations or of any
interest therein shall, to the extent of the interest of such assignee or
transferee in the Obligations, be entitled to the benefits of this Guaranty to
the same extent as if such assignee or transferee were an original Bank Party.
11. No Implied Waivers; Amendments. No delay on the part of the
Agent or any Bank Party in the exercise of any right or remedy shall operate as
a waiver thereof, and no single or partial exercise by the Agent or any Bank
Party of any right or remedy shall preclude other or further exercise thereof or
the exercise of any other right or remedy; nor shall any modification or waiver
of any provision of this Guaranty be binding upon the Agent or any Bank Party
except as expressly set forth in a writing duly signed and delivered on behalf
of the Agent. For purposes of this Guaranty, Obligations shall include all
obligations of the Company to the Agent or any Bank Party arising under or in
connection with any Loan Document, notwithstanding any right or power of the
Company or anyone else to assert any claim or defense as to the invalidity or
unenforceability of any such obligation, and no such claim or defense shall
affect or impair the obligations of the undersigned hereunder.
12. Role of Agent. Pursuant to the Credit Agreement, (a) this
Guaranty has been delivered to the Agent and (b) the Agent has been authorized
to enforce this Guaranty on behalf of the Bank Parties. All payments by the
undersigned pursuant to this Guaranty shall be made to the Agent for ratable
application to the Obligations.
13. Successors and Assigns. This Guaranty shall be binding upon
the undersigned and the successors and assigns of the undersigned; and to the
extent that the Company or any of the undersigned is a partnership, corporation,
limited liability company or other entity, all references herein to such entity
shall be deemed to include any successor or successors, whether immediate or
remote, to such entity. The term "undersigned" as used herein shall mean all
parties executing this Guaranty and each of them, and all such parties shall be
jointly and severally obligated hereunder.
14. Section Captions. Section captions used in this Guaranty are
for convenience only and shall not affect the interpretation of this Guaranty.
15. Information Regarding the Company. Each of the undersigned (a)
represents and warrants that it has adequate means to keep itself informed of
the financial condition and creditworthiness of the Company and (b) acknowledges
and agrees that neither the Agent nor
- 3 -
any Bank Party shall have any obligation to provide to the undersigned any
information which the Agent or such Bank Party may have about the Company.
16. Governing Law, etc. This Guaranty shall be construed in
accordance with and governed by the laws of the State of Illinois applicable to
contracts made and to be performed entirely within such state. Wherever possible
each provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty.
17. Counterparts. This Guaranty may be executed in any number of
counterparts and by the different parties hereto 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 Guaranty. At any time
after the date of this Guaranty, one or more additional Persons may become
parties hereto by executing and delivering to the Agent a counterpart of this
Guaranty. Immediately upon such execution and delivery (and without any further
action), each such additional Person will become a party to, and will be bound
by all of the terms of, this Guaranty.
18. SUBMISSION TO JURISDICTION. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT TO WHICH ANY OF THE UNDERSIGNED IS A PARTY, MAY BE BROUGHT AND
MAINTAINED IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. EACH OF THE UNDERSIGNED EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION. EACH OF THE UNDERSIGNED FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, TO THE ADDRESS SET FORTH UNDER ITS NAME ON SCHEDULE I HERETO (OR SUCH
OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE AGENT AS ITS ADDRESS
FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
ILLINOIS. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
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19. WAIVER OF JURY TRIAL. EACH OF THE UNDERSIGNED (AND, BY
ACCEPTING THE BENEFITS HEREOF, EACH OF THE AGENT AND EACH BANK PARTY) HEREBY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AND ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
[Signatures to follow]
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IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered
as of the day and year first above written.
XXXXXX'X GRAND ICE CREAM HOLDINGS, INC.
By:
Name: Xxxxxxx X. Xxxxxxx
Title:. Treasurer
NESTLE ICE CREAM COMPANY, LLC
By:
Name: Xxxxxxx X. Xxxxxxx
Title:. Treasurer
EDY'S GRAND ICE CREAM
By:
Name: Xxxxxxx X. Xxxxxxx
Title:. Treasurer
Signature page for the Guaranty (the
"Guaranty") dated as of June 27, 2003 issued
by various affiliates of Xxxxxx'x Grand Ice
Cream, Inc. (the "Company") in favor of Bank
of America, N.A., as Agent under the Credit
Agreement with the Company and various other
parties.
The undersigned is executing a counterpart
hereof for purposes of becoming a party
hereto as of the date set forth below (and
the undersigned has attached hereto a
supplement to Schedule I to the Guaranty
setting forth the notice address of the
undersigned for purposes of the Guaranty):
[NEW GUARANTOR]
By: _________________________________________
Name: Printed: ______________________________
Title: ______________________________________
Date: ______________, ______
SCHEDULE I
ADDRESSES OF GUARANTORS
c/o Dreyer's Grand Ice Cream, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Treasurer
EXHIBIT C
FORM OF INTERCREDITOR AGREEMENT
C-1
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT dated as of June 27, 2003 is among the
holders of the Senior Notes (as defined below) listed on the attached Annex I
and each other holder of a Senior Note that may hereafter become a party to this
Agreement (each a "NOTEHOLDER" and collectively, the "NOTEHOLDERS"), and Bank of
America, N.A. ("BANK OF AMERICA") as administrative agent for and representative
of the Bank Lenders (as defined below) under the Bank Credit Agreement (as
defined below) and as representative of the Swap Providers (as defined below)
(in such capacity, the "BANK AGENT").
RECITALS
A. Pursuant to Note Purchase Agreements dated as of June 6, 1996
between Xxxxxx'x Grand Ice Cream, Inc., a Delaware corporation (the "COMPANY"),
and each of the Noteholders (as modified, amended, renewed or replaced,
collectively the "NOTE AGREEMENT"), the Company has issued and sold to the
Noteholders $15,000,000 aggregate principal amount (of which approximately
$8,500,000 is outstanding on the date hereof) of its 8.06% Senior Notes, Series
B, due June 1, 2006, and $20,000,000 aggregate principal amount of its 8.34%
Senior Notes, Series C, due June 1, 2008 (collectively the "SENIOR NOTES").
B. Pursuant to the Credit Agreement dated as of July 25, 2000 (as
modified, amended, renewed or replaced, including any increase in the amount
thereof, the "BANK CREDIT AGREEMENT") among the Company and each of the
financial institutions party thereto (collectively with the successors and
assigns thereof, the "BANK LENDERS"), the Bank Lenders have provided to the
Company certain credit facilities in a current aggregate principal amount of up
to $240,000,000.
C. The Company may from time to time enter into Swap Contracts
(as defined in the Bank Credit Agreement) with one or more Bank Lenders or
affiliates thereof (collectively with the successors and assigns thereof the
"SWAP PROVIDERS").
D. Pursuant to the Bank Credit Agreement each of the entities
listed on the attached Annex II (collectively, together with each other entity
that shall at any time be a Guarantor under a Guaranty, as hereinafter defined,
the "GUARANTORS") will enter into a guaranty agreement pursuant to which the
Guarantors will guaranty to the Bank Agent, the Bank Lenders and the Swap
Providers the payment of the Bank Obligations and the Swap Obligations and the
payment and performance of all other obligations of the Company under the Bank
Credit Agreement and any Swap Contract (as modified, amended, renewed or
replaced, the "BANK OBLIGATION GUARANTY").
E. Pursuant to the Note Agreement, the Guarantors will enter into
a guaranty agreement pursuant to which the Guarantors will guaranty to the
Noteholders the payment of the Noteholder Obligations and the payment and
performance of all other obligations of the Company under the Note Agreement and
the Senior Notes (as modified, amended, renewed or replaced, the "NOTE
OBLIGATION GUARANTY").
F. The Bank Obligation Guaranty and the Note Obligation Guaranty
are each hereinafter referred to as a "GUARANTY."
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
The following terms shall have the meanings assigned to them below in
this Section 1 or in the provisions of this Agreement referred to below:
"BANK AGENT" has the meaning assigned in the introductory paragraph.
"BANK CREDIT AGREEMENT" has the meaning assigned in the Recitals.
"BANK OF AMERICA" has the meaning assigned in the introductory
paragraph.
"BANK LENDERS" has the meaning assigned in the Recitals.
"BANK OBLIGATION GUARANTY" has the meaning assigned in the Recitals.
"BANK OBLIGATIONS" means all outstanding obligations of the Company
from time to time owing under the Bank Credit Agreement consisting of principal,
interest, letter of credit obligations (including Contingent L/C Obligations),
break-funding amounts, fees, expenses (including all reasonable costs of
collecting amounts payable under the Bank Credit Agreement, the Bank Obligation
Guaranty or any related document) and indemnities.
"BANKRUPTCY PROCEEDING" means, with respect to any Person, a general
assignment of such Person for the benefit of its creditors, or the institution
by or against such Person of any proceeding seeking relief as debtor, or seeking
to adjudicate such Person as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of such Person or its debts, under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for such Person or for any substantial part of its property.
"COMPANY" has the meaning assigned in the Recitals.
"CONTINGENT L/C OBLIGATIONS" means any and all contingent obligations
of the Company to reimburse the issuers of Letters of Credit for drawings under
such Letters of Credit.
"CREDITOR" means each Noteholder, each Bank Lender, each Swap Provider
and the Bank Agent.
"EXCESS GUARANTY PAYMENT" means, as to any Creditor, an amount equal to
the Guaranty Payment received by such Creditor less the Pro Rata Share of
Guaranty Payments to which such Creditor is then entitled.
2
"GUARANTORS" has the meaning assigned in the Recitals.
"GUARANTY" has the meaning assigned in the Recitals.
"GUARANTY PAYMENT" has the meaning assigned in Section 2.
"LETTER OF CREDIT" means a letter of credit issued by a Bank Lender, or
an issuing bank on behalf of a Bank Lender, for the account of the Company
pursuant to the Bank Credit Agreement.
"NOTE AGREEMENT" has the meaning assigned in the Recitals.
"NOTEHOLDER" has the meaning assigned in the introductory paragraph.
"NOTEHOLDER OBLIGATIONS" means all outstanding obligations of the
Company from time to time owing under the Note Agreement and the Senior Notes
consisting of principal, interest, make-whole amounts, fees, expenses (including
all reasonable costs of collecting amounts payable under the Note Agreement, the
Senior Notes, the Note Obligation Guaranty or any related document) and
indemnities.
"NOTE OBLIGATION GUARANTY" has the meaning assigned in the Recitals.
"PERSON" means any individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"PRO RATA SHARE OF GUARANTY PAYMENTS" means, as of the date any
Guaranty Payment is received by a Creditor, an amount equal to the product
obtained by multiplying (a) the amount of all Guaranty Payments received by all
Creditors on such date by (b) a fraction, the numerator of which is the
Specified Amount then owing to such Creditor and the denominator of which is the
aggregate amount of all outstanding Subject Obligations (without giving effect
in the denominator to the application of any such Guaranty Payment).
"RECEIVING CREDITOR" has the meaning assigned in Section 2.
"SENIOR NOTES" has the meaning assigned in the Recitals.
"SPECIFIED AMOUNT" means, as to any Creditor, the aggregate amount of
the Subject Obligations owed to such Creditor.
"SUBJECT OBLIGATIONS" means the Bank Obligations, the Swap Obligations
and the Noteholder Obligations.
"SWAP OBLIGATIONS" means all obligations of the Company arising under
or in connection with any Swap Contract entered into with any Swap Provider.
"SWAP PROVIDERS" has the meaning assigned in the Recitals.
3
"TRIGGERING EVENT" means (a) the occurrence and continuation of a
Bankruptcy Proceeding with respect to the Company or any Guarantor, (b) the
unpaid principal amount of the obligations under the Bank Credit Agreement or
the Note Agreement, as applicable, and all interest accrued and unpaid thereon
have been declared to be then due and payable or (c) the receipt or recovery of
any amounts by any Creditor through any exercise of any right of setoff or
banker's lien (whether by law, contract or otherwise).
SECTION 2. SHARING OF RECOVERIES.
(a) Each Creditor agrees with each other Creditor that
all payments received from or on behalf of a Guarantor in connection with a
Guaranty or pursuant to any Creditor's right of set-off or banker's lien against
any Guarantor (whether based on common law, statute, contract or otherwise) (any
of the foregoing, a "GUARANTY PAYMENT") (i) within 45 days prior to a Triggering
Event or (ii) following the occurrence of a Triggering Event, shall be shared so
that each Creditor shall receive its Pro Rata Share of Guaranty Payments.
Accordingly, each Creditor agrees that in the event (a) an event described in
clause (i) or (ii) above has occurred, (b) any Creditor receives an Excess
Guaranty Payment (a "RECEIVING CREDITOR"), and (c) any other Creditor does not
concurrently receive its Pro Rata Share of Guaranty Payments, then the Receiving
Creditor shall promptly remit such portion of the Excess Guaranty Payment to
each other Creditor who is then entitled thereto so that after giving effect to
such payment (and any other payments then being made by any other Receiving
Creditor pursuant to this Section 2) each Creditor shall have received its Pro
Rata Share of Guaranty Payments. In the event that any Guaranty Payment or part
thereof received by any Creditor is recovered thereafter from such Creditor by
any Guarantor (including any trustee in bankruptcy of any Guarantor or any
creditor thereof), then such Guaranty Payment or part thereof shall, for
purposes of this Section 2, be deemed to have not been received.
(b) Any such payments shall be deemed to be and shall be
made in consideration of the purchase for cash at face value, but without
recourse, ratably from the other Creditors such amount of Subject Obligations
(or interest therein) to the extent necessary to cause such Creditor to share
such Excess Guaranty Payment with the other creditors as hereinabove provided;
provided that if any such purchase or payment is made by any Receiving Creditor
and if such Excess Guaranty Payment or part thereof is thereafter recovered from
such Receiving Creditor by any Guarantor (including, without limitation, by any
trustee in bankruptcy of any Guarantor or any creditor thereof), the related
purchase from the other Creditors shall be rescinded ratably and the purchase
price restored to the Receiving Creditor as to the portion of such Excess
Guaranty Payment so recovered, but without interest; and provided further
nothing herein contained shall obligate any Creditor to resort to any setoff,
application of deposit balance or other means of payment under any Guaranty or
avail itself of any recourse by resort to any property of the Company or any
Guarantor, the taking of any such action to remain within the absolute
discretion of such Creditor without obligation of any kind to the other
Creditors to take any such action.
(c) Notwithstanding anything to the contrary set forth
herein, any Guaranty Payments which, pursuant to Section 2(a) above, are to be
remitted to the Bank Agent or any Bank Lender on account of Bank Obligations
which are Contingent L/C Obligations shall not be
4
remitted to the Bank Agent or such Bank Lender in accordance with Section 2(a),
but instead shall be remitted to the Bank Agent and held in a separate cash
collateral account (the "L/C ACCOUNT") by the Bank Agent and distributed by the
Bank Agent only in accordance with this Section 2(c). In the event, and upon the
condition that, any Contingent L/C Obligation becomes an absolute obligation of
the Company upon the honoring of a draw under any Letter of Credit, the Bank
Agent shall withdraw from the L/C Account and shall pay over to the Bank Lender
(or issuing bank on behalf of such Bank Lender) that honored such draw an amount
equal to the Withdrawal Amount with respect to the amount of such draw together
with interest on such Withdrawal Amount at the rate earned while on deposit in
the L/C Account. In the event that any Contingent L/C Obligation lapses on
account of the expiration or other termination of the applicable Letter of
Credit, an amount equal to the Withdrawal Amount with respect to such lapsed
Contingent L/C Obligation, together with interest on account of such amount at
the rate earned while on deposit in the Payment Account, shall be released from
the L/C Account and shall be distributed by the Bank Agent to the Creditors as a
Guaranty Payment in accordance with Section 2(a). As used herein "WITHDRAWAL
AMOUNT" means the product of (a) the quotient of (i) the amount of a Contingent
L/C Obligation which has then become an absolute obligation on account of a draw
or the amount of a Contingent L/C Obligation which has lapsed on account of the
expiration or termination of the applicable Letter of Credit, as the case may
be, over (ii) the total amount of all Contingent L/C Obligations and (b) the
total amount then deposited in the L/C Account.
SECTION 3. AGREEMENT AMONG THE CREDITORS.
SECTION 3.1 INDEPENDENT ACTIONS BY CREDITORS. Nothing contained
in this Agreement shall prohibit any Creditor from accelerating the maturity of,
or demanding payment from any Guarantor on, any Subject Obligation of the
Company to such Creditor or from instituting legal action against the Company or
any Guarantor to obtain a judgment or other legal process in respect of any
Subject Obligation, but any funds received from any Guarantor in connection with
any recovery therefrom shall be subject to the terms of this Agreement.
SECTION 3.2 RELATION OF CREDITORS. This Agreement is entered
into solely for the purposes set forth herein, and no creditor assumes any
responsibility to any other party hereto to advise such other party of
information known to such other party regarding the financial condition of the
Company or any Guarantor or of any other circumstance bearing upon the risk of
nonpayment of any Subject Obligation. Each Creditor specifically acknowledges
and agrees that nothing contained in this Agreement is or is intended to be for
the benefit of the Company or any Guarantor and nothing contained herein shall
limit or in any way modify any of the obligations of the Company or any
Guarantor to the Creditors.
SECTION 3.3 ACKNOWLEDGMENT OF GUARANTY. Each party expressly
acknowledges the existence and validity of the Note Obligation Guaranty and the
Bank Obligation Guaranty, agrees not to contest or challenge the validity of the
Note Obligation Guaranty or the Bank Obligation Guaranty and agrees that the
judicial or other determination of the invalidity of the Note Obligation
Guaranty or the Bank Obligation Guaranty shall not affect the provisions of this
Agreement.
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SECTION 3.4 NOTICE OF CERTAIN EVENTS. Each Creditor agrees that
upon (i) the occurrence of a Triggering Event or (ii) the receipt, or deemed
receipt, of a Guaranty Payment, it shall promptly notify each other Creditor (in
the case of notices to each Bank Lender and the Bank Agent, by notice to the
Bank Agent) of the occurrence of such Triggering Event or the receipt of such
Guaranty Payment. In addition, each Creditor agrees to provide to the other
Creditors (in the case of notices to each Bank Lender and the Bank Agent, by
notice to the Bank Agent) the amount of its Subject Obligations at such
reasonable times as may be necessary to determine such Creditor's Pro Rata Share
of Guaranty Payments.
SECTION 4. MISCELLANEOUS.
SECTION 4.1 ENTIRE AGREEMENT. This Agreement represents the
entire Agreement among the Creditors and, except as otherwise provided, this
Agreement may not be altered, amended, modified or terminated except in a
writing executed by all the parties to this Agreement.
SECTION 4.2 NOTICES. Notices hereunder shall be given to the
Creditors in the manner and at their addresses as set forth in the Note
Agreement, as to the Noteholders, and to the Bank Agent at the address set forth
below, as to the Bank Lenders and the Bank Agent, or at such other address as
may be designated by each Creditor in a written notice to the other parties
hereto.
SECTION 4.3 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of each of the Creditors and their
respective successors and assigns, whether so expressed or not, and, in
particular, shall inure to the benefit of and be enforceable against any future
holder or holders of any Subject Obligations, and the term "Creditor" shall
include any such subsequent holder of Subject Obligations, wherever the context
permits.
SECTION 4.4 CONSENTS, AMENDMENT, WAIVERS. All amendments and
waivers of or consents with respect to any provision of this Agreement shall be
effective only if the same shall be in writing and signed by all of the
Creditors.
SECTION 4.5 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 4.6 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
Agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
SECTION 4.7 SALE OF INTEREST. No Creditor will sell, transfer or
otherwise dispose of any interest in the Subject Obligations unless such
purchaser or transferee shall agree, in writing, to be bound by the terms of
this Agreement, other than (a) the sale of a participation in the Bank Credit
Agreement, and (b) the assignment and pledge of all or any portion of the
Subject Obligations of any Bank Lender to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank, but no such assignment shall release the assigning Bank
Lender from its obligations hereunder.
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SECTION 4.8 SEVERABILITY. In case any one or more of the
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
SECTION 4.9 CERTAIN EXPENSES. The Company agrees to pay directly
each Creditor's out-of-pocket expenses in connection with the preparation,
execution and delivery of this Agreement and the transactions contemplated
hereby and all such expenses of any Creditor relating to any proposed amendment,
waiver or consent, whether or not consummated, pursuant to the provisions
hereof.
SECTION 4.10 EFFECTIVENESS. Notwithstanding anything contained
herein to the contrary, this Agreement shall not be effective until it shall
have been executed and delivered by the Bank Agent and each of the Noteholders.
SECTION 4.11 HEADINGS. The headings of the sections and
subsections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
SECTION 4.12 EFFECT OF BANKRUPTCY OR INSOLVENCY. This Agreement
shall continue in effect notwithstanding the bankruptcy or insolvency of any
party hereto or the Company or any Guarantor.
SECTION 4.13 BANK AGENT REPRESENTATION. Bank of America hereby
represents and warrants that it has been duly authorized by each Person that is
a Bank Lender or Swap Provider as of the date hereof, and that it will be duly
authorized by each Person that becomes a Bank Lender or Swap Provider after the
date hereof, to execute and deliver this Agreement on behalf of such Bank Lender
or such Swap Provider and that the execution and delivery of this Agreement by
Bank of America on behalf of such Bank Lender or such Swap Provider binds such
Bank Lender and Swap Provider to the terms hereof with the same effect as if
such Bank Lender or such Swap Provider had itself executed and delivered this
Agreement.
[SIGNATURES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BANK OF AMERICA, N.A., as Bank Agent, on
behalf of itself, each Bank Lender and each Swap
Provider
By:
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Address:
Bank of America, N.A.
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
S-1
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
TRANSAMERICA LIFE INSURANCE AND
ANNUITY COMPANY
By:
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
S-2
Acknowledged and agreed to, including,
without limitation, as to the provisions of
Sections 2(b) and 4.9:
XXXXXX'X GRAND ICE CREAM, INC.
By:
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
XXXXXX'X GRAND ICE CREAM HOLDINGS, INC.
By:
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
NESTLE ICE CREAM COMPANY, LLC
By:
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
EDY'S GRAND ICE CREAM
By:
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
S-3
ANNEX I
Holders of Senior Notes
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY
Annex I-1
ANNEX II
Guarantors
XXXXXX'X GRAND ICE CREAM HOLDINGS, INC.
Nestle ICE CREAM COMPANY, LLC
EDY'S GRAND ICE CREAM
Annex II-1
