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EXHIBIT 10.2
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as
of July 15, 1994, is entered into by and among DREYER'S GRAND ICE CREAM, INC.
(the "Company"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
agent for itself and the Banks (the "Agent"), BANK OF AMERICA NATIONAL TRUST
AND SAVINGS, ABN AMRO BANK N.V., and CONTINENTAL BANK N.A. (collectively, the
"Banks").
RECITALS
A. The Company, Bank of America National Trust and Savings
Association, ABN AMRO Bank N.V., and Continental Bank N.A., and Agent are
parties to a Credit Agreement dated as of April 30, 1993 as amended by that
certain First Amendment to Credit Agreement dated as of May 24, 1993 and by
that certain Second Amendment to Credit Agreement dated as of May 6, 1994 (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 and the Banks agreed, prior to June 25, 1994, to
an amendment to Section 7.17 of the Credit Agreement as set forth this
Amendment.
C. The Company and Banks are executing this Amendment to formally
memorialize such agreement.
ACCORDINGLY, 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.
Section 7.17 of the Credit Agreement is amended by deleting it
in its entirety and restating it in full as follows:
"7.17 Minimum Fixed Charge Coverage Ratio. The Company shall
not permit its Fixed Charge Coverage Ratio (a) prior to its first
fiscal quarter of 1994 to be less than 2.50 to 1.00, (b) during its
first fiscal quarter of 1994 to be less than 2.40 to 1.00, and (c)
thereafter to be less than 1.25 to 1.00. For purposes of this
Section, Fixed Charge Coverage Ratio means the ratio of "A" to "B"
where:
"A" means the sum of earning before taxes plus current operating lease
expenses plus interest expense; and
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"B" means interest expense plus current operating lease expense;
in all cases computed on a consolidated basis and measured on the last
day of a fiscal quarter on a rolling four quarter basis."
3. Representations and Warranties. The Company hereby represents
and warrants to the Agent and the Banks as follows:
(a) 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.
(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
June 25, 1994 (the "Effective Date") when the Agent has received from the
Company and the Majority Banks a duly executed original of this Amendment.
5. Reservation of Rights. The Company acknowledges and agrees
that the execution and delivery by the Agent and the Banks of this Amendment
shall not be deemed to create a course of dealing or otherwise obligate the
Agent or the Banks to forbear or execute similar amendments under the same or
similar circumstances in the future.
6. 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
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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.
(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 10.1 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 provisions of
this Amendment or the Credit Agreement, respectively.
(g) Company covenants to pay or to reimburse the Agent
and the Banks, upon demand, for all costs and expenses (including allocated
costs of in-house counsel) incurred in connection with the development,
preparation, negotiation, execution and delivery of this amendment, including
without limitation appraisal, audit, search and filing fees incurred in
connection therewith.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
DREYER'S GRAND ICE CREAM, INC.
By: /s/ William C. Collett
_______________________________
Title: Treasurer
By: _______________________________
Title: ____________________________
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS
AGENT
By: /s/ Ivo Bakovic
_______________________________
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS
BANK
By: /s/ Michael J. Dasher
_______________________________
Title: Vice President
ABN AMRO BANK, N.V.
By: /s/ Carol A. Levine
_______________________________
Title: Vice President
By: /s/ R. Clay Jackson
_______________________________
Title: Senior Vice President
CONTINENTAL BANK N.A.
By: /s/ R. Guy Stapleton
_______________________________
Title: Vice President