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EXHIBIT 10.1
SECOND AMENDMENT TO STANDBY REIMBURSEMENT AGREEMENT
This Second Amendment is made and entered into as of this 25th day of
June, 1994, by and between DREYER'S GRAND ICE CREAM, INC., a Delaware
corporation (the "Borrower") and SANWA BANK CALIFORNIA (the "Bank") with
reference to the following facts, which shall constitute recitals within the
meaning of California Evidence Code Section 622 and which shall be conclusively
presumed to be true as between the parties.
RECITALS
A. On or about July 1, 1988 Borrower made, executed and delivered to Bank
that certain Standby Reimbursement Agreement dated as of July 1, 1988 (the
"Agreement"). The Agreement was subsequently amended by a First Amendment To
Standby Reimbursement Agreement dated as of July 14, 1993 (the "First
Amendment") and the Agreement as amended by the First Amendment the ("Amended
Agreement"). Capitalized terms used in this Amendment and not otherwise
defined herein shall have the meanings given to such terms in the Amended
Agreement.
B. Borrower has requested that Bank amend certain financial covenants as
described below.
C. The Bank has agreed to so amend the financial covenants on the terms
and conditions stated in this Amendment.
AGREEMENT
NOW THEREFORE, for value received and hereby acknowledged, the
Borrower and the Bank agree as follows:
1. RECITALS. The Recitals are incorporated herein by this reference, as
are all exhibits and schedules, and the parties agree that the information
received above is true and correct.
2. AMENDMENTS. As of the Effective Date, the first full paragraph of
Subsection (a)(3) of Section 9 of the Amended Agreement is deleted in its
entirety and the following is substituted in its place:
"(3) a minimum Fixed Charge Coverage of 1,250 to 1.0 at the end of
each fiscal quarter ending on or after June, 1994, through and
including December, 1994, and 2.50 to 1 at the end of each fiscal
quarter ending on or after March, 1995;"
3. CONDITIONS PRECEDENT. The Bank's obligations under this Amendment are
subject to the condition precedent that no event shall have occurred or would
result from this Amendment which con-
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stitutes and Event of Default under the Amended Agreement, the Indenture, the
Loan Agreement or the Bonds, or would constitute and Event of Default but for
the requirement that notice be given or time elapse or both.
4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
as follows:
(a) That the representations and warranties made by the Borrower
contained in Section 8 of the Amended Agreement or in any instrument
delivered pursuant to or in connection with the Amended Agreement are
true and correct in all material respects on and as of the date of
this Amendment and as of the Effective Date as though made on and as
of such dates;
(b) That the execution, delivery and performance of this Amendment
is within Borrower's corporate powers, has been duly authorized by all
necessary corporate action, and (i) does not contravene any law or any
contractual restrictions binding on the Borrower, and (ii) will not
violate any provision of law or regulation or any order of any
governmental authority, court, arbitration board or tribunal, or
Borrower's articles of incorporation or by-laws, or result in the
breach of, constitute a default under, contravene any provisions of,
or result in the creation of any security interest, lien charge, or
encumbrance upon, any of the property or assets of Borrower pursuant
to any indenture or agreement to which Borrower or any of its
properties are bound:
(c) That the Amended Agreement as amended by this Amendment is the
legal, valid and binding obligation of the borrower, enforceable
against the Borrower in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws or equitable principles
relating to or limiting creditors' rights generally or the
availability of equitable remedies; and
(d) That no event has occurred and is continuing or would result
from this Amendment which constitutes an Event of Default under the
Amended Agreement, the Indenture, the Loan Agreement or the Bonds, or
would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
5. REFERENCES. As of the Effective Date, each reference in the Amended
Agreement to "this Agreement," "the Agreement," "hereunder", "herein",
"hereof", or words of like import referring to the Amended Agreement, shall
mean and be a reference to the Amended Agreement, as amended by this Amendment.
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6. AFFIRMATION. Except as specifically amended above, the Amended
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
7. CHOICE OF LAW. THIS AMENDMENT SHALL BE DEEMED TO BA A CONTRACT UNDER
AND SUBJECT TO AND SHALL BE CONSTRUED FOR ALL PURPOSES AND IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
8. INTEGRATION. This Amendment and the documents and instruments
referred to herein constitute a single, integrated written contract expressing
the entire agreement of the parties hereto relative to the subject matter
hereof. No covenants, agreements, representations or warranties of any kind
whatsoever have been made by any party hereto, except as specifically set forth
in this Amendment.
9. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the date and year first written above.
BANK BORROWER:
SANWA BANK CALIFORNIA DREYER'S GRAND ICE CREAM, INC.
a Delaware corporation
/s/ Mark Brody By: /s/ William C. Collett
____________________________ _______________________
Mark Brody, Vice President William C. Collett,
and Manager Treasurer
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