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EXHIBIT 10.33
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), is
entered into as of December 26, 1997 among Xxxxxx'x Grand Ice Cream, Inc., a
Delaware corporation (the "Company"), the several financial institutions from
time to time party to this Agreement (collectively, the "Banks"; individually,
a "Bank"), ABN-AMRO Bank N.V., San Francisco International Branch as Co-Agent,
and Bank of America National Trust and Savings Association, as agent for the
Banks.
RECITALS
A. The Company, Banks, and Agent are parties to a Credit
Agreement dated as of December 22, 1995, as amended by a First Amendment to
Credit Agreement dated as of April 15, 1996 (as so amended, the "Credit
Agreement"), pursuant to which the Agent and the Banks have extended certain
credit facilities to the Company.
B. The Company has requested that the Banks agree to certain
amendments of the Credit Agreement.
C. The Banks are willing to amend the Credit Agreement subject to
the terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings, if any, assigned to them in the
Credit Agreement.
2. Amendments to Credit Agreement.
(a) Section 7.15 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
7.15 FUNDED DEBT/EBITDA RATIO. (a) THE COMPANY SHALL NOT
PERMIT ITS FUNDED DEBT/EBITDA RATIO TO BE GREATER THAN:
(1) 5.25 FOR THE PERIOD FROM THE CLOSING DATE
THROUGH ITS FOURTH FISCAL QUARTER IN 1995;
(2) 4.75 FOR ITS FIRST FISCAL QUARTER IN 1996;
(3) 4.50 FOR ITS SECOND FISCAL QUARTER IN 1996;
(4) 4.00 FOR ITS THIRD FISCAL QUARTER IN 1996;
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(5) 3.50 FOR ITS FOURTH FISCAL QUARTER IN 1996;
(6) 3.00 FOR THE FIRST THREE FISCAL QUARTERS IN
1997; AND
(7) 3.50 FOR ITS FOURTH FISCAL QUARTER IN 1997 AND
EACH OF ITS FISCAL QUARTERS THEREAFTER.
(b) IN DETERMINING COMPLIANCE WITH THIS SECTION, THE
COMPANY'S FUNDED DEBT AT EACH QUARTERLY MEASUREMENT PERIOD SHALL BE REDUCED BY
THE AMOUNTS SHOWN IN THE FOLLOWING TABLE TO ACCOMMODATE INCREASES IN THE
COMPANY'S SEASONAL DEBT:
EACH YEAR AFTER
FISCAL QUARTER ENDING IN: 1996 1996
MARCH $10,000,000 $10,000,000
JUNE $45,000,000 $50,000,000
SEPTEMBER $35,000,000 $40,000,000
DECEMBER $0 $0
(b) The portion of Schedule 2 of the Compliance
Certificate relating to Section 7.15 is amended in its entirety to provide as
follows:
7.15 FUNDED DEBT/EBITDA RATIO. (a) THE COMPANY SHALL NOT
PERMIT ITS FUNDED DEBT/EBITDA RATIO TO BE GREATER THAN:
(1) 5.25 FOR THE PERIOD FROM THE CLOSING DATE
THROUGH ITS FOURTH FISCAL QUARTER IN 1995;
(2) 4.75 FOR ITS FIRST FISCAL QUARTER IN 1996;
(3) 4.50 FOR ITS SECOND FISCAL QUARTER IN 1996;
(4) 4.00 FOR ITS THIRD FISCAL QUARTER IN 1996;
(5) 3.50 FOR ITS FOURTH FISCAL QUARTER IN 1996;
(6) 3.00 FOR THE FIRST THREE FISCAL QUARTERS IN
1997; AND
(7) 3.50 FOR ITS FOURTH FISCAL QUARTER IN 1997 AND
EACH OF ITS FISCAL QUARTERS THEREAFTER.
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(b) IN DETERMINING COMPLIANCE WITH THIS SECTION, THE
COMPANY'S FUNDED DEBT AT EACH QUARTERLY MEASUREMENT PERIOD SHALL BE REDUCED BY
THE AMOUNTS SHOWN IN THE FOLLOWING TABLE TO ACCOMMODATE INCREASES IN THE
COMPANY'S SEASONAL DEBT:
EACH YEAR AFTER
FISCAL QUARTER ENDING IN: 1996 1996
MARCH $10,000,000 $10,000,000
JUNE $45,000,000 $50,000,000
SEPTEMBER $35,000,000 $40,000,000
DECEMBER $0 $0
1. CAPITALIZED LEASE OBLIGATIONS (FOR EACH QUARTER
COMMENCING AFTER MARCH 31, 1997) $
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2. OTHER FUNDED DEBT
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3. TOTAL FUNDED DEBT (1 + 2)
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4. MINUS AMOUNT AS DETERMINED ACCORDING TO THE
TABLE IN Section 7.15(b):
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5. FUNDED DEBT FOR PURPOSES OF Section 7.15
(3 MINUS 4)
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6. EBITDA = __________
7. RATIO OF FUNDED DEBT TO EBITDA = _____
8. REQUIRED RATIO AS SET FORTH IN Section 7.15(A): NOT GREATER THAN _____
FOR PURPOSES OF DETERMINING THE APPLICABLE MARGIN AND THE COMMITMENT FEE:
1. CAPITALIZED LEASE OBLIGATIONS (NOT APPLICABLE IF
ADDITIONAL CAPITAL HAS BEEN RAISED) $
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2. OTHER FUNDED DEBT
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3. TOTAL FUNDED DEBT (1 + 2)
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4. MINUS AMOUNT AS DETERMINED ACCORDING TO THE
TABLE IN Section 7.15(b):
===============
5. FUNDED DEBT FOR PURPOSES OF DETERMINING THE
APPLICABLE MARGIN AND THE COMMITMENT FEE
(3 MINUS 4)
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6. EBITDA = __________
7. RATIO OF FUNDED DEBT TO EBITDA TO BE USED IN
DETERMINING THE APPLICABLE MARGIN AND THE COMMITMENT FEE: _____
3. Representations and Warranties. The Company hereby
represents and warrants to the Agent and the Banks as follows:
(a) After giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the
Company of this Amendment have been duly authorized by all necessary corporate
and other action and do not and will not require any registration with, consent
or approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitutes the legal, valid and binding obligations
of the Company, enforceable against it in accordance with its respective terms,
without defense, counterclaim or offset.
(c) All representations and warranties of the Company
contained in the Credit Agreement are true and correct in all material
respects.
(d) The Company is entering into this Amendment on the
basis of its own investigation and for its own reasons, without reliance upon
the Agent and the Banks or any other Person.
4. Effective Date. This Amendment will become effective as of
December 26, 1997 (the "Effective Date"), provided that each of the following
conditions precedent is satisfied:
(a) The Agent has received from the Company and the
Majority Banks a duly executed original (or, if elected by the Agent, an
executed facsimile copy) of this Amendment.
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(b) The Agent has received from the Company a copy of a
resolution passed by the board of directors of such corporation, certified by
the Secretary or an Assistant Secretary of such corporation as being in full
force and effect on the date hereof, authorizing the execution, delivery and
performance of this Amendment.
(c) All representations and warranties contained herein
are true and correct as of the Effective Date.
5. Miscellaneous.
(a) Except as herein expressly amended, all terms,
covenants and provisions of the Credit Agreement are and shall remain in full
force and effect and all references therein to such Credit Agreement shall
henceforth refer to the Credit Agreement as amended by this Amendment. This
Amendment shall be deemed incorporated into, and a part of, the Credit
Agreement.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of California.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each
of the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Agent of a facsimile transmitted document purportedly
bearing the signature of a Bank or the Company shall bind such Bank or the
Company, respectively, with the same force and effect as the delivery of a hard
copy original. Any failure by the Agent to receive the hard copy executed
original of such document shall not diminish the binding effect of receipt of
the facsimile transmitted executed original of such document of the party whose
hard copy page was not received by the Agent.
(e) This Amendment, together with the Credit Agreement,
contains the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein and therein. This Amendment
supersedes all prior drafts and communications with respect thereto. This
Amendment may not be amended except in accordance with the provisions of
Section 10.01 of the Credit Agreement.
(f) If any term or provision of this Amendment shall be
deemed prohibited by or invalid under any applicable law, such provision shall
be invalidated without affecting the remaining provisions of this Amendment or
the Credit Agreement, respectively.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
XXXXXX'X GRAND ICE CREAM, INC.
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
ABN AMRO BANK N.V., as Co-Agent
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
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ABN AMRO BANK N.V., as a Bank
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
CREDIT SUISSE FIRST BOSTON
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
UNION BANK OF CALIFORNIA, N.A.
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
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