Exhibit 10
AMENDED AND RESTATED FOURTH AMENDMENT
TO SECURITIES PURCHASE AGREEMENT
This Amended and Restated Fourth Amendment to Securities Purchase
Agreement (the "Amendment") is entered into this 12th day of March, 1996 and is
effective as of October 1, 1996 by and among Xxxxxx'x Grand Ice Cream, Inc., a
Delaware corporation (the Company"), and Trustees of General Electric Pension
Trust, a New York common law trust ("GE Pension"), GE Investment Private
Placement Partners, I, a Delaware limited partnership ("GEIPPP"), and General
Electric Capital Corporation, a New York corporation (collectively the
"Purchasers").
Recitals
A. Company is a party to a Securities Purchase Agreement dated June 24, 1993,
with Purchasers (the "Purchase Agreement"), as amended by amendments dated May
6, 1994, July 28, 1995 and October 30, 1995, pursuant to which Purchasers
acquired various securities of Company.
B. The Company and Purchasers entered into a Fourth Amendment to Securities
Purchase Agreement dated February 1, 1996 and effective as of October 1, 1995
(the "Fourth Amendment").
C. Company and Purchasers now desire to amend and restate the Fourth Amendment
in its entirety and amend the Purchase Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, waiver
provisions, and covenants contained herein, the parties agree as follows:
1. Amendment and Restatement of Fourth Amendment.
The Fourth Amendment is amended and restated in its entirety as set
forth in this Amendment.
2. Amendments to Purchase Agreement.
2.1 Section 12.1 of the Purchase Agreement is hereby amended by
adding the following definition:
""Net Aggregate Stated Value" shall mean the aggregate Stated
Value of the outstanding shares of Preferred Stock net of unamortized issuance
costs associated with the Securities."
2.2 The definition of "Consolidated Net Worth" contained in Section
12.1 of the Purchase Agreement is hereby amended to read in its entirety as
follows:
"Consolidated Net Worth" shall mean the consolidated
stockholders' equity of the Company and its Subsidiaries (not
including the Net Aggregate Stated Value) determined in
accordance with generally accepted accounting principles
consistently applied plus the Net Aggregate Stated Value."
2.3 Section 6.1(a) of the Purchase Agreement is hereby amended to
read in its entirety as follows:
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"6.1. Financial Covenants. (a) The Company will not permit its
Consolidated Net Worth to be less than (i) $185,000,000 during
the Company's fourth fiscal quarter of 1995 or (ii)
$190,000,000 during each of the Company's four fiscal quarters
of 1996 or (iii) the sum of $100,000,000 plus the Net
Aggregate Stated Value at any time after the end of the
Company's 1996 fiscal year."
2.4 Section 6.1(c) of the Purchase Agreement is hereby amended to
read in its entirety as follows:
"(c) The Company will not permit its Fixed Charge Ratio
to be less than .75 to 1.00 on the last day of fiscal year
1995 and 1.5 to 1.0 on the last day of each fiscal year
thereafter."
2.5 Section 6.1 of the Purchase Agreement is hereby further amended
by adding the following paragraphs (d), (e) and (f):
"(d) In the event the Company's Fixed Charge Ratio on the last day
of the second fiscal quarter of 1996 is less than 1.25 to 1.0, then within ten
(10) business days after the Company's final calculation of such Fixed Charge
Ratio, the Company will pay to the holders of the outstanding shares of Series B
Preferred Stock, pro rata based on the number of shares held by each holder, out
of the assets of the Company legally available therefor, a special dividend in
the aggregate amount of Five Hundred Thousand Dollars ($500,000) cash.
(e) In the event the Company's Fixed Charge Ratio on the last day of
fiscal year 1996 is less than 1.5 to 1.0, then within ten (10) business days
after the Company's final calculation of such Fixed Charge Ratio, the Company
will pay to the holders of the outstanding shares of Series B Preferred Stock,
pro rata based on the number of shares held by each holder, out of the assets of
the Company legally available therefor, a special dividend in the aggregate
amount of Five Hundred Thousand dollars ($500,000) cash.
(f) The Purchasers agree that any special dividend payments made
pursuant to paragraphs (d) and (e) of this Section 6.1 shall not be considered
for purposes of calculating the Company's Fixed Charge Ratio. The Company agrees
that the provisions of Sections 6.17 and 6.18 of this Agreement shall be
applicable to any special dividend payments made pursuant to paragraphs (d) and
(e) of this Section 6.1."
3. Waiver of Rights under Certificate of Designation and
Interpretation.
3.1 Waiver of Rights. Notwithstanding their respective rights under
the Company's Certificate of Designation of Series B Convertible Preferred Stock
(the "Series B Certificate") the Company and the Purchasers agree to waive
certain of their respective rights thereunder and to agree as follows:
(a) The Purchasers agree to waive their right, as the holders of the
Company's Series 3 Convertible Preferred Stock (the "Series B Preferred Stock")
to receive dividends under Section 2(a) of the Series B Certificate (i) after
December 15, 1997, if the Company's Fixed Charge Ratio on the last day of fiscal
year 1996 is 1.5 to 1.0 or greater; or (ii) after June 15, 1999, if the
Company's Fixed Charge Ratio on the last day of fiscal year 1996 is less than
1.5 to 1.00.
(b) The Company agrees (i) after December 15, 1997, if the Company's
Fixed Charge Ratio on the last day of fiscal year 1996 is 1.5 to 1.0 or greater;
or (ii) after June 15, 1999, if the Company's Fixed Charge Ratio on the last day
of fiscal year 1996 is less than 1.5 to 1.0, that no dividend or distribution in
cash, shares of stock or other property on the Common Stock, par value $1.00 per
share, of the Company (the "Common Stock") shall be declared or paid or set
apart for payment unless, at the same time, the same dividend or distribution is
declared or paid or set apart, as the case may be, on the Series B Preferred
Stock payable on the same date, at the rate per share of Series B Preferred
Stock based upon the number of shares of Common Stock into which each share of
Series B Preferred
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Stock is convertible (as adjusted pursuant to Section 8 of the Series B
Certificate) on the record date for such dividend or distribution on the Common
Stock.
(c) The Company agrees that it will not exercise its right to redeem
the Series B Preferred Stock pursuant to clause (i) of the first paragraph of
Section 5(a) of the Series B Certificate until after June 15, 1999.
(d) The Purchasers agree that the Company's right to redeem the
Series B Preferred Stock pursuant to clause (ii) of the first paragraph of
Section 5(a) of the Series B Certificate shall be extended to on or prior to
June 15, 1999, such that the Company shall have the right to redeem the Series B
Preferred Stock on the same terms as set forth in such clause of the Series B
Certificate.
3.2 Interpretation. The parties hereto confirm and agree that it was
their intent at the time the Purchase Agreement was executed that the
definitions of "Agreement" in the Purchase Agreement and of "Purchase Agreement"
in the Series B Certificate would include any amendments to the Purchase
Agreement as made from time to time pursuant to the terms of the Purchase
Agreement.
4. Miscellaneous.
4.1 Except as expressly amended herein, all terms, covenants and
provisions of the Purchase Agreement are and shall remain in full force and
effect and all references therein to such Purchase Agreement shall henceforth
refer to the Purchase Agreement as amended by this Amendment. This Amendment
shall be deemed incorporated into, and a part of, the Purchase Agreement.
4.2 This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. The Purchasers
agree that they will not sell, transfer, pledge, assign or otherwise dispose of
(collectively, "Transfer") any of their shares of Series B Preferred Stock
unless, prior to such Transfer, the proposed transferee shall have agreed in
writing in form and substance reasonably satisfactory to the Company to be bound
by the terms of this Fourth Amendment. No third party beneficiaries are intended
in connection with this Amendment.
4.3 This Amendment shall be governed by and construed in accordance
with the law of the State of Delaware.
4.4 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.
IN WITNESS WHEREOF, the Company and the Purchasers have caused this
Amendment to be executed and delivered as of the date first above written.
XXXXXX'X GRAND ICE CREAM, TRUSTEES OF GENERAL ELECTRIC
INC. PENSION TRUST
By: By: /s/ Xxxx X. Xxxxx
------------------------------ ------------------------------
Name: Name: Xxxx X. Xxxxx
Title: Title: Trustee
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GENERAL ELECTRIC CAPITAL GE INVESTMENT PRIVATE
CORPORATION PLACEMENT PARTNERS I, L.P.
By: GE Investment Management
By: /s/ Incorporated, its General Partner
------------------------------
Name:
Title: Dept. Operations Manager
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
Page 38 of 38 Pages
