-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SjKO1I2CSD9sTKpr26wZQCWsJa0EYVgiqH0UtGbBLEqcjQqa2DDdzQq3MR6+4Scs ed2luAzMGwCOJRShu4aJDw== 0000950150-96-000205.txt : 19960401 0000950150-96-000205.hdr.sgml : 19960401 ACCESSION NUMBER: 0000950150-96-000205 CONFORMED SUBMISSION TYPE: 10-K405 PUBLIC DOCUMENT COUNT: 8 CONFORMED PERIOD OF REPORT: 19951230 FILED AS OF DATE: 19960329 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: DREYERS GRAND ICE CREAM INC CENTRAL INDEX KEY: 0000352305 STANDARD INDUSTRIAL CLASSIFICATION: ICE CREAM & FROZEN DESSERTS [2024] IRS NUMBER: 942967523 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K405 SEC ACT: 1934 Act SEC FILE NUMBER: 000-14190 FILM NUMBER: 96541662 BUSINESS ADDRESS: STREET 1: 5929 COLLEGE AVE CITY: OAKLAND STATE: CA ZIP: 94618 BUSINESS PHONE: 5106528187 10-K405 1 FORM 10-K FOR THE YEAR ENDED DECEMBER 30, 1995 1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM 10-K (MARK ONE) /X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 30, 1995* OR / / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO COMMISSION FILE NUMBER: 0-14190 DREYER'S GRAND ICE CREAM, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE NO. 94-2967523 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5929 COLLEGE AVENUE, OAKLAND, CALIFORNIA 94618 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (510) 652-8187 SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: NONE
NAME OF EACH EXCHANGE TITLE OF EACH CLASS ON WHICH REGISTERED - -------------------------------------------------------------------------------------------- NOT APPLICABLE NOT APPLICABLE
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: COMMON STOCK, $1.00 PAR VALUE PREFERRED STOCK PURCHASE RIGHTS Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ X ] The aggregate market value (based on the average of the high and low sales prices on March 21, 1996, as reported by NASDAQ) of the Common Stock held by non-affiliates was approximately $359,064,105. (Such amount excludes the aggregate market value of shares beneficially owned by the executive officers and members of the Board of Directors of the registrant.) As of March 21, 1996, the latest practicable date, 13,011,279 shares of Common Stock were outstanding. DOCUMENTS INCORPORATED BY REFERENCE Portions of the Dreyer's Grand Ice Cream, Inc. Proxy Statement for the 1996 Annual Meeting of Stockholders to be filed with the Commission on or before April 29, 1996 are incorporated by reference into Part III of this Annual Report on Form 10-K. With the exception of those portions which are specifically incorporated by reference in this Annual Report on Form 10-K, the Dreyer's Grand Ice Cream, Inc. Proxy Statement for the 1996 Annual Meeting of Stockholders is not to be deemed filed as part of this Report. ------------------------ * The following disclosure item has been omitted and will be filed no later than the 15th calendar day following the prescribed due date: a financial statement schedule required under Part IV, Item 14 of this Form 10-K for a 50% or less owned company that was a significant subsidiary of the registrant for the fiscal year ended December 30, 1995. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 PART I ITEM 1. BUSINESS GENERAL Dreyer's Grand Ice Cream, Inc. and its consolidated subsidiaries are, unless the context otherwise requires, sometimes referred to herein as "Dreyer's" or the "Company." The Company, successor to the original Dreyer's Grand Ice Cream business, was originally incorporated in California on February 23, 1977 and reincorporated in Delaware on December 28, 1985. Dreyer's manufactures and distributes premium ice cream and other frozen dessert products. Since 1977, Dreyer's Grand Ice Cream has developed from a specialty ice cream sold principally in selected San Francisco Bay Area grocery and ice cream stores to a broad line of frozen dairy and other frozen desserts sold under the Dreyer's and Edy's brand names in retail outlets serving more than 85% of the households in the United States. The Dreyer's line of products are available in the thirteen western states, parts of Texas and certain markets in the Far East. The Company's products are sold under the Edy's brand name generally throughout the remaining regions of the United States. The Dreyer's and Edy's line of products are distributed through a direct-store-delivery system further described below under the caption "Marketing, Sales and Distribution." The Company also distributes and, in certain instances, manufactures branded ice cream and frozen dessert products of other companies. The Dreyer's and Edy's line of ice cream and related products is relatively expensive and is sold by the Company and its independent distributors to grocery stores, convenience stores, club stores, ice cream parlors, restaurants, hotels and certain other accounts. The Dreyer's and Edy's brands enjoy strong consumer recognition and loyalty. MARKETS Ice cream was traditionally supplied by dairies as an adjunct to their basic milk business. Accordingly, ice cream was marketed like milk, as a fungible commodity, and manufacturers competed primarily on the basis of price. This price competition motivated ice cream producers to seek economies in their formulations. The resulting trend to lower quality ice cream created an opportunity for the Company and other producers of premium ice creams, whose products can be differentiated on the basis of quality, technological sophistication and brand image, rather than price. Moreover, the market for all packaged ice creams was influenced by the steady increase in market share of "private label" ice cream products owned by the major grocery chains and the purchase or construction by the chains of their own milk and ice cream plants. The resulting reduction in the market for milk and the "regular" ice cream brands produced by the independent dairies has caused many such dairies to withdraw from the market. Manufacturing and formulation complexities, broader flavor requirements, consumer preference and brand identity, however, make it more difficult for the chains' private label brands to compete effectively in the premium market segment. As a result, independent premium brands such as the Company's are normally stocked by major grocery chains. While many foodservice operators, including hotels, schools, hospitals and other institutions, buy ice cream primarily on the basis of price, there are also those in the foodservice industry who purchase ice cream based on its quality. Operators of ice cream shops wanting to feature a quality brand, restaurants that include an ice cream brand on their menu and clubs or chefs concerned with the quality of their fare are often willing to pay for Dreyer's quality, image and brand identity. PRODUCTS The Company and its predecessors have always been innovators of flavor, package development and formulation. William A. Dreyer, the creator of Dreyer's Grand Ice Cream, is credited with inventing many popular flavors including Rocky Road. Dreyer's was among the first ice creams in the West packaged in round containers with window lids that allow consumers to see the actual product they are buying. The Company was also the first to produce an ice cream lower in calories. The Company's Grand Light(R) formulation was a precursor to the reduced fat, reduced sugar and low cholesterol products in the Company's current product line. 1 3 The Company uses only the highest quality ingredients in its products. The Company's management philosophy is to resist changes in its formulations or production processes that compromise quality for cost even though the industry in general may adopt such new formulation or process compromises. Dreyer's and Edy's Grand Ice Cream is the Company's flagship product. This brand of ice cream utilizes traditional formulations with all natural flavorings and is characterized by premium quality taste and texture, and diverse flavor selection. The flagship product is complimented by the Company's successful reduced fat, low cholesterol products such as Frozen Yogurt; Grand Light, No Sugar Added, Low Fat and Fat Free ice creams; and the Company's Sherbet product. The Company believes these products are well positioned in the segments of the market where products are characterized by lower levels of fat, sugar and cholesterol than those of regular ice cream. The Company also produces a premium soft serve product, Grand SoftTM, which is available as ice cream or frozen yogurt. The Company's novelty line features Dreyer's and Edy's Grand Ice Cream Bars, Tropical Fruit Bars, and Grand Cones. The Dreyer's and Edy's Grand Ice Cream Bars and Grand Cones incorporate proprietary technology which allows the Company to offer flavors that are not available in any other bar or cone. The Company also distributes and, in some instances, manufactures selected branded frozen dessert products of other companies. The Company's product lines now includes over 120 flavors that are selected both on the basis of general popularity and on the intensity of consumer response. Some flavors are seasonal and are produced only as a featured flavor during particular months. The Company operates a continuous flavor development and evaluation program. The Company holds registered trademarks on many of its products. Dreyer's believes that consumers associate the Company's trademarks, distinctive packaging and trade dress with its high quality products. The Company does not own any patents that are material to its business. Historically, research and development expenses have not been significant. MARKETING, SALES AND DISTRIBUTION The Company's marketing strategy is based upon management's belief that a significant number of people prefer a quality product and quality image in ice cream just as they do in other product categories. A quality image is communicated in many ways - taste, packaging, flavor selection, price and often through advertising and promotion. If consistency in the product's quality and image are strictly maintained, a brand can develop a clearly defined and loyal consumer following. It is the Company's goal to develop such a consumer following in each major market in which it does business. During the second quarter of 1994, the Company embarked on a five year plan (the Strategic Plan) to accelerate the sales of its brand throughout the country. This plan includes three primary strategies: a quadrupling of advertising and consumer promotion spending, rapid expansion and development of the Company's direct-store-delivery system, and introduction of innovative new products. Under the Strategic Plan, the Company increased the amount of its spending for advertising and consumer promotion from 1993 levels to approximately $40,000,000 in 1994 and 1995, and plans to spend approximately $40,000,000 annually on these marketing activities from 1996 through 1998. The Company anticipates that the Strategic Plan will continue to reduce earnings during 1996 below levels that would have been attained under the former business plan. The potential benefits of the new strategy are increased market share and future earnings above those levels that would be attained in the absence of the strategy. No assurance can be given that the anticipated benefits of the strategy will be achieved. For additional information regarding the Strategic Plan see the discussion set forth under the caption "Management's Discussion and Analysis" which appears on pages 28-30 of this Form 10-K. Unlike many other ice cream manufacturers, the Company uses a direct-store-delivery system which allows distribution of the Company's products directly to the retail ice cream cabinet by either the Company's own personnel or independent distributors who primarily distribute the Company's products. This store level distribution allows service to be tailored to the needs of each store. Dreyer's believes this service ensures proper product handling, quality control, flavor selection and retail display. The implementation of this system has resulted in an ice cream distribution network capable of providing frequent direct service to grocery stores 2 4 in every market where the Company's products are sold. Under the Strategic Plan, the Company's distribution network has been significantly expanded to where the Company's products are available to grocery stores serving approximately 85% of the United States. This distribution system is considerably larger than any other direct-store-delivery system for ice cream products currently operating in the United States. Each distributor, whether company-owned or independent, is primarily responsible for sales of all products within its respective market area. However, the Company provides sales and marketing support to its independent distributors, including training seminars, sales aids of many kinds, point of purchase materials, assistance with promotions and other sales support. The distribution network in the West now includes ten distribution centers operated by the Company in large metropolitan areas such as Los Angeles, the San Francisco Bay Area, Phoenix, San Diego and Denver. The remaining metropolitan areas throughout the thirteen western states, Texas and the Far East are served through independent distributors. Distribution in the remainder of the United States is under the Edy's brand name with most of the distribution handled through eighteen Company-owned distribution centers, including centers in New York, Chicago, Washington, D.C., Tampa and Milwaukee. The Company also has independent distributors handling the Company's products in certain market areas east of the Rocky Mountains. Taken together, independent distributors accounted for approximately 23% of consolidated net sales in 1995. The Company's agreements with its independent distributors are generally terminable upon 30 days notice by either party. For fiscal 1995, no customer accounted for more than 10% of consolidated net sales of the Company. The Company's export sales were about 2% of 1995 consolidated net sales. The Company experiences a seasonal fluctuation in sales, with more demand for its products during the spring and summer than during the fall and winter. MANUFACTURING The Company manufactures its products at its plants in Union City, California; City of Commerce, California; and Fort Wayne, Indiana. Subsequent to year end, the Company acquired an additional manufacturing plant in Houston, Texas. In order to serve high altitude markets, the Company has manufacturing agreements with two ice cream manufacturers to produce Dreyer's line of products in accordance with specifications and quality control provided by Dreyer's. Of the approximately 68 million gallons of the Company's products sold in 1995, approximately four million gallons were manufactured under these arrangements. The Company also has manufacturing agreements with two different facilities to produce a portion of its novelty products. During 1995, these facilities produced approximately three million cases of Dreyer's and Edy's Ice Cream Bars and Tropical Fruit Bars. In addition, the Company has agreements to produce products for other manufacturers. In 1995, the Company manufactured approximately eight million gallons of product under these agreements. The primary factor in the Company's product costs is the price of basic dairy ingredients (cream, milk and skim milk) and sugar. The minimum prices paid for dairy ingredients are established by the market under the Federal Milk Price Support Program. In order to ensure consistency of flavor, each of the Company's manufacturing plants purchases, to the extent practicable, all of its required dairy ingredients from one local supplier. These dairy products and most other ingredients or their equivalents are available from multiple sources. The Company maintains a rigorous process for evaluating qualified alternative suppliers of its key ingredients. COMPETITION The Company's manufactured products compete on the basis of brand image, quality and breadth of flavor selection. The ice cream industry is highly competitive and most ice cream manufacturers, including full line dairies, the major grocery chains and the other independent ice cream processors, are capable of 3 5 manufacturing and marketing high quality ice creams. Furthermore, there are relatively few barriers to new entrants in the ice cream business. Reduced fat, reduced sugar and low cholesterol ice cream products, however, generally require technologically sophisticated formulations in comparison to standard or "regular" ice cream products. Much of the Company's competition comes from the "private label" brands produced by or for the major supermarket chains and which generally sell at prices below those charged by the Company for its products. Because these brands are owned by the retailer, they often receive preferential treatment when the retailers allocate available freezer space. The Company's competition also includes premium ice creams produced by other ice cream manufacturers, some of whom are owned by parent companies much larger than Dreyer's. EMPLOYEES On December 30, 1995, the Company had approximately 2,500 employees. The Company's Union City manufacturing and distribution employees are represented by the Milk Drivers & Dairy Employees Union, Local 302 whose contract with the Company expired in December 1995 and the International Union of Operating Engineers, Stationary Local No. 39 whose contract with the Company expires in August 1996. The Sacramento distribution employees are represented by the Chauffeurs, Teamsters and Helpers Union, Local 150 whose contract with the Company expires in August 1999. The St. Louis distribution employees are represented by the United Food & Commercial Workers Union, Local 655 whose contract with the Company expires in December 1997. The expired union contract is currently under negotiation. The Company has never experienced a strike by any of its employees. ITEM 2. PROPERTIES The Company owns its headquarters located at 5929 College Avenue in Oakland, California. The headquarters buildings include 54,000 square feet of office space utilized by the Company and 10,000 square feet of retail space leased to third parties. The Company owns a manufacturing and distribution facility in Union City, California. This facility has approximately 60,000 square feet of manufacturing and dry storage space, 40,000 square feet of cold storage warehouse space and 15,000 square feet of office space. The plant has the current production capacity of 28 million gallons per year. During 1995, the facility produced approximately 19 million gallons of ice cream and related products. The Company leases an ice cream manufacturing plant with an adjoining cold storage warehouse located in the City of Commerce, California. This facility has approximately 76,000 square feet of manufacturing and dry storage space, 25,000 square feet of cold storage space and 19,000 square feet of office space. The lease on this property, including renewal options, expires in 2022. The plant has the current production capacity of 20 million gallons per year. During 1995, the facility produced approximately 18 million gallons of ice cream and related products. In 1994, the Company completed construction of a cold storage warehouse facility located on property acquired in the City of Industry, California. This facility includes 52,000 square feet of cold and dry storage warehouse space and 13,000 square feet of office space. This facility supplements the cold storage warehouse and office space leased in the City of Commerce. The Company owns a manufacturing plant with an adjoining cold storage warehouse in Fort Wayne, Indiana. This facility has approximately 116,000 square feet of manufacturing and storage space and 6,000 square feet of office space. In addition, the Company leases approximately 55,000 square feet of cold storage and 8,000 square feet of office space near the Fort Wayne facility. The plant has the current production capacity of 50 million gallons per year. During 1995, the facility produced approximately 40 million gallons of ice cream and related products. The Company's original purchase and development of the Fort Wayne facility was financed by industrial development bonds and the property is pledged as collateral to secure payment of the Company's obligations to the issuer of the irrevocable letter of credit established for the benefit of the bondholders. 4 6 Subsequent to year end, the Company completed the purchase of an additional manufacturing and distribution facility in Houston, Texas. This facility is being renovated and, upon completion, will have approximately 69,000 square feet of manufacturing and dry storage space, 46,000 square feet of cold storage warehouse space and 20,000 square feet of office space. At that time the plant's production capacity will be approximately 26 million gallons per year. The Company intentionally acquires, designs and constructs its manufacturing and distribution facilities with a capacity greater than current needs require. This is done to facilitate growth and expansion and minimize future capital outlays. The cost of carrying this excess capacity is not significant. The Company also leases or rents various local distribution and office facilities with leases expiring through the year 2011 (including options to renew). ITEM 3. LEGAL PROCEEDINGS Not applicable. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS Not applicable. EXECUTIVE OFFICERS OF THE REGISTRANT The Company's executive officers and their ages are as follows:
NAME POSITION AGE T. Gary Rogers Chairman of the Board and Chief Executive Officer 53 William F. Cronk, III President 53 Edmund R. Manwell Secretary 53 Thomas M. Delaplane Vice President -- Sales 51 Robert P. Johnson Vice President -- Marketing 52 J. Tyler Johnston Vice President -- New Business 42 William R. Oldenburg Vice President -- Operations 49 Paul R. Woodland Vice President -- Finance and Administration, Chief Financial Officer & Assistant Secretary 45
All officers hold office at the pleasure of the Board of Directors. There is no family relationship among the above officers. Mr. Rogers has served as Dreyer's Chairman of the Board and Chief Executive Officer since its incorporation in February 1977. Mr. Cronk has served as a director of the Company since its incorporation in February 1977 and has been the Company's President since April 1981. Mr. Manwell has served as Secretary of the Company since its incorporation and as a director of the Company since April 1981. Since March 1982, Mr. Manwell has been a partner in the law firm of Manwell & Milton, general counsel to the Company. Mr. Delaplane has served as Vice President -- Sales of the Company since May 1987. Mr. Johnson has served as Vice President -- Marketing of the Company since May 1990. Mr. Johnston has served as Vice President -- New Business of the Company since September 1995. From May 1988 to August 1995, he served as the Company's Director of Marketing. Mr. Oldenburg has served as Vice President -- Operations of the Company since September 1986. Mr. Woodland has served as Vice President -- Finance and Administration and Chief Financial Officer of the Company since September 1981 and as Assistant Secretary since December 1985. 5 7 PART II ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS The information set forth in Note 17 under the caption "Price Range (NASDAQ)" which appears on page 26 of this Form 10-K is incorporated herein by reference. The bid and asked quotations for the Company's Common Stock are as reported by NASDAQ. On March 21, 1996, the number of holders of record of the Company's common stock was 4,098. The Company paid a regular quarterly dividend of $.06 per share of common stock for each quarter of 1995. On March 5, 1996, the Board of Directors, subject to compliance with law, contractual restrictions and future review of the condition of the Company, declared its intention to issue regular quarterly dividends of $.06 per share of common stock for each quarter of 1996. Also on March 5, 1996, the Board of Directors declared a dividend of $.06 per share of common stock for the first quarter of 1996 for stockholders of record on March 29, 1996. ITEM 6. SELECTED FINANCIAL DATA The information set forth under the caption "Five Year Summary of Significant Financial Data" which appears on page 27 of this Form 10-K is incorporated herein by reference. ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The information set forth under the caption "Management's Discussion and Analysis" which appears on pages 28-30 of this Form 10-K is incorporated herein by reference. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA The consolidated financial statements, together with the report thereon of Price Waterhouse LLP dated February 8, 1996, appearing on pages 14-26 of this Form 10-K are incorporated herein by reference. ITEM 9. DISAGREEMENTS ON ACCOUNTING AND FINANCIAL DISCLOSURE Not applicable. PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT The information set forth under the captions "Matters Submitted to the Vote of Stockholders -- Election of Directors" and "Compliance With Section 16(a) of the Securities Exchange Act of 1934" in the Company's Proxy Statement for the 1996 Annual Meeting of Stockholders to be filed with the Commission on or before April 29, 1996, and the information contained in Part I of this Annual Report on Form 10-K under the caption "Executive Officers of the Registrant," is incorporated herein by reference. ITEM 11. EXECUTIVE COMPENSATION The information set forth under the caption "Executive Compensation" in the Company's Proxy Statement for the 1996 Annual Meeting of Stockholders to be filed with the Commission on or before April 29, 1996 is incorporated herein by reference. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The information set forth under the caption "Security Ownership of Certain Beneficial Owners and Management" in the Company's Proxy Statement for the 1996 Annual Meeting of Stockholders to be filed with the Commission on or before April 29, 1996 is incorporated herein by reference. 6 8 ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS The information set forth under the captions "Compensation Committee Interlocks and Insider Participation" and "Certain Transactions" in the Company's Proxy Statement for the 1996 Annual Meeting of Stockholders to be filed with the Commission on or before April 29, 1996 is incorporated herein by reference. PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a) FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES: The following documents are filed as part of this report:
PAGE(S) ------ 1. Financial Statements: Report of Independent Accountants........................................ 14 Consolidated Statement of Income for the three years ended December 30, 1995..................................................................... 14 Consolidated Balance Sheet at December 30, 1995 and December 31, 1994.... 15 Consolidated Statement of Changes in Stockholders' Equity for the three years ended December 30, 1995............................................ 16 Consolidated Statement of Cash Flows for the three years ended December 30, 1995................................................................. 17 Notes to Consolidated Financial Statements............................... 18-26 2. Financial Statement Schedules: Report of Independent Accountants on Financial Statement Schedule........ 31 For the three years ended December 30, 1995 II. Valuation and Qualifying Accounts................................. 32 All other schedules are omitted because they are not applicable or the required information is shown in the financial statements or notes thereto. The separate financial statements of M-K-D Distributors, Inc., a 49.7% owned subsidiary of the Registrant accounted for under the equity method, will be filed by amendment, together with the report of independent accountants on such financial statements as of and for the year ended December 30, 1995. Financial statements of any other 50% or less owned company have been omitted because the Registrant's proportionate share of the income from continuing operations before income taxes, and total assets is less than 20% of the respective consolidated amounts, and the investment in and advances to any such company is less than 20% of consolidated total assets. 3. List of Management Compensation Agreements (i) Dreyer's Grand Ice Cream, Inc. Incentive Stock Option Plan (1982) referenced in Exhibit 10.3 herein. (ii) Indemnification Agreements by and between Dreyer's Grand Ice Cream, Inc. and each of its directors, executive officers and certain other officers referenced in Exhibit 10.11 herein. (iii) Dreyer's Grand Ice Cream, Inc. Stock Option Plan (1992) referenced in Exhibit 10.19 herein. (iv) Dreyer's Grand Ice Cream, Inc. Incentive Bonus Plan referenced in Exhibit 10.22 herein. (v) Dreyer's Grand Ice Cream, Inc. Stock Option Plan (1993) referenced in Exhibit 10.23 herein. (vi) Dreyer's Grand Ice Cream, Inc. Income Swap Plan referenced in Exhibit 10.24 herein.
7 9 (b) REPORTS ON FORM 8-K Not applicable. (c) EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------ ---------------------------------------------------------------------------------- 2.1 Asset Purchase Agreement dated as of November 20, 1992 by and between Edy's Grand Ice Cream and Calip Dairies, Inc. (Exhibit 2.1(11)). 2.2 Securities Purchase Agreement dated June 24, 1993 by and among Dreyer's Grand Ice Cream, Inc., Trustees of General Electric Pension Trust, GE Investment Private Placement Partners, I and General Electric Capital Corporation (Exhibit 2.1(13)). 2.3 Amendment to Securities Purchase Agreement dated May 6, 1994 by and among Dreyer's Grand Ice Cream, Inc., Trustees of General Electric Pension Trust, GE Investment Private Placement Partners, I and General Electric Capital Corporation, amending Exhibit 2.2 (Exhibit 2.1(16)). 2.4 Stock and Warrant Purchase Agreement dated as of May 6, 1994 by and between Dreyer's Grand Ice Cream, Inc. and Nestle Holdings, Inc. (Exhibit 2.1(17)). 2.5 First Amendment to Stock and Warrant Purchase Agreement dated as of June 14, 1994 by and between Dreyer's Grand Ice Cream, Inc. and Nestle Holdings, Inc., amending Exhibit 2.4 (Exhibit 2.1(18)). 2.6 Second Amendment to Securities Purchase Agreement dated July 28, 1995 and effective as of June 1, 1995 by and among Dreyer's Grand Ice Cream, Inc., Trustees of General Electric Pension Trust, GE Investment Private Placement Partners, I and General Electric Capital Corporation, amending Exhibit 2.3 (Exhibit 10.2(20)). 2.7 Third Amendment to Securities Purchase Agreement dated October 30, 1995 and effective as of September 30, 1995 by and among Dreyer's Grand Ice Cream, Inc., Trustees of General Electric Pension Trust, GE Investment Private Placement Partners, I and General Electric Capital Corporation, amending Exhibit 2.3 (Exhibit 10.1(21)). 2.8 Amended and Restated Fourth Amendment to Securities Purchase Agreement dated March 12, 1996 and effective as of October 1, 1995 by and among Dreyer's Grand Ice Cream, Inc., Trustees of General Electric Pension Trust, GE Investment Private Placement Partners, I and General Electric Capital Corporation, amending Exhibit 2.3. 3.1 Certificate of Incorporation of Dreyer's Grand Ice Cream, Inc., as amended, including the Certificate of Designation of Series A Convertible Preferred Stock, as amended, setting forth the Powers, Preferences, Rights, Qualifications, Limitations and Restrictions of such series of Preferred Stock and the Certificate of Designation of Series B Convertible Preferred Stock, as amended, setting forth the Powers, Preferences, Rights, Qualifications, Limitations and Restrictions of such series of Preferred Stock (Exhibit 3.1(18)). 3.2 Certificate of Designation, Preferences and Rights of Series A Participating Preference Stock (Exhibit 3.2(19)). 3.3 By-laws of Dreyer's Grand Ice Cream, Inc., as last amended May 2, 1994 (Exhibit 3.2(18)). 4.1 Amended and Restated Rights Agreement dated March 4, 1991 between Dreyer's Grand Ice Cream, Inc. and Bank of America, NT & SA (Exhibit 10.1(6)). 4.2 Registration Rights Agreement dated as of June 30, 1993 among Dreyer's Grand Ice Cream, Inc., General Electric Capital Corporation, Trustees of General Electric Pension Trust, and GE Investment Private Placement Partners, I (Exhibit 4.1(14)). 4.3 Amendment to Registration Rights Agreement dated May 6, 1994 by and among Dreyer's Grand Ice Cream, Inc., Trustees of General Electric Pension Trust, GE Investment Private Placement Partners, I and General Electric Capital Corporation, amending Exhibit 4.2 (Exhibit 4.1(16)).
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EXHIBIT NUMBER DESCRIPTION - ------ ---------------------------------------------------------------------------------- 4.4 First Amendment to Amended and Restated Rights Agreement dated as of June 14, 1994 between Dreyer's Grand Ice Cream, Inc. and First Interstate Bank of California (as successor Rights Agent to Bank of America NT & SA), amending Exhibit 4.1 (Exhibit 4.1(18)). 4.5 Registration Rights Agreement dated as of June 14, 1994 between Dreyer's Grand Ice Cream, Inc. and Nestle Holdings, Inc. (Exhibit 4.2(18)). 4.6 Warrant Agreement dated as of June 14, 1994 between Dreyer's Grand Ice Cream, Inc. and Nestle Holdings, Inc. (Exhibit 4.3(18)). 10.1 Agreement dated September 18, 1978 between Dreyer's Grand Ice Cream, Inc. and Kraft, Inc. (Exhibit 10.8(1)). 10.2 Agreement and Lease dated as of January 1, 1982 and Amendment to Agreement and Lease dated as of January 27, 1982 between Jack and Tillie Marantz and Dreyer's Grand Ice Cream, Inc., as amended (Exhibit 10.2(19)). 10.3 Dreyer's Grand Ice Cream, Inc. Incentive Stock Option Plan (1982), as amended. (Exhibit 10.6(15)). 10.4 Loan Agreement between Edy's and City of Fort Wayne, Indiana dated September 1, 1985 and related Letter of Credit, Letter of Credit Agreement, Mortgage, Security Agreement, Pledge and Security Agreement and General Continuing Guaranty of Dreyer's Grand Ice Cream, Inc. (Exhibit 10.33(2)). 10.5 Distribution Agreement between Dreyer's Grand Ice Cream, Inc. and Ben & Jerry's Homemade, Inc. dated January 6, 1987 (Exhibit 10.1(3)). 10.6 Amendment and Waiver dated July 17, 1987 between Dreyer's Grand Ice Cream, Inc. and Security Pacific National Bank, amending the General Continuing Guaranty referenced in Exhibit 10.4 (Exhibit 10.44(7)). 10.7 Amendment and Waiver dated December 24, 1987 between Dreyer's Grand Ice Cream, Inc. and Security Pacific National Bank, amending the General Continuing Guaranty referenced in Exhibit 10.4 (Exhibit 10.45(7)). 10.8 Master Lease dated September 28, 1988 between Dreyer's Grand Ice Cream, Inc. and Security Pacific Equipment Leasing, Inc., as amended (Exhibit 10.53(7)). 10.9 Agreement for Amendments to Distribution Agreement dated as of January 20, 1989 among Dreyer's Grand Ice Cream, Inc., Edy's Grand Ice Cream, Edy's of New York, Inc., and Ben & Jerry's Homemade, Inc., amending Exhibit 10.5 (Exhibit 10.46 (4)). 10.10 Amendment to the Distribution Agreement dated as of April 11, 1989 by and among Dreyer's Grand Ice Cream, Inc., Edy's Grand Ice Cream, Edy's of New York, Inc., and Ben & Jerry's Homemade, Inc., amending Exhibit 10.5 (Exhibit 10.46(5)). 10.11 Form of Indemnification Agreement between Dreyer's Grand Ice Cream, Inc. and each officer and director of Dreyer's Grand Ice Cream, Inc. (Exhibit 10.47(4)). 10.12 Assignment of Lease dated as of March 31, 1989 among Dreyer's Grand Ice Cream, Inc., Smithway Associates, Inc. and Wilsey Foods, Inc. (Exhibit 10.52(5)). 10.13 Amendment of Lease dated as of March 31, 1989 between Dreyer's Grand Ice Cream, Inc. and Smithway Associates, Inc., as amended by letter dated April 17, 1989 between Dreyer's Grand Ice Cream, Inc. and Wilsey Foods, Inc., amending Exhibit 10.12 (Exhibit 10.53(5)). 10.14 Manufacturing and Warehouse Agreement dated as of April 5, 1989 by and between Edy's Grand Ice Cream and Ben & Jerry's Homemade, Inc. and Agreement for First Amendment to Manufacturing and Warehouse Agreement dated as of January 3, 1990 (Exhibit 10.45(5)).
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EXHIBIT NUMBER DESCRIPTION - ------ ---------------------------------------------------------------------------------- 10.15 Third Amendment to General Continuing Guaranty and Waiver dated January 29, 1991 between Dreyer's Grand Ice Cream, Inc. and Security Pacific National Bank, amending the General Continuing Guaranty referenced in Exhibit 10.4 (Exhibit 10.46(7)). 10.16 $25,000,000 9.3% Senior Notes: Form of Note Agreement dated as of March 15, 1991, and executed on April 12, 1991 between Dreyer's Grand Ice Cream, Inc. and each of Massachusetts Mutual Life Insurance Company, Massachusetts Mutual Life Pension Insurance Company, Connecticut Mutual Life Insurance Company, The Equitable Life Assurance Society of the United States, and Transamerica Occidental Life Insurance Company (Exhibit 19.1(8)). 10.17 Second Amendment to Distribution Agreement dated as of August 31, 1992 between Dreyer's Grand Ice Cream, Inc. and Ben & Jerry's Homemade, Inc., amending Exhibit 10.5 (Exhibit 19.6(10)). 10.18 Letter Agreement dated February 4, 1992 between Dreyer's Grand Ice Cream, Inc. and Ben & Jerry's Homemade, Inc., amending Exhibit 10.14 (Exhibit 10.61(9)). 10.19 Dreyer's Grand Ice Cream, Inc., Stock Option Plan (1992) (Exhibit 10.35(15)). 10.20 Agreement of Amendment and Waiver, dated as of September 30, 1992, between Dreyer's Grand Ice Cream, Inc. and each of Massachusetts Mutual Life Insurance Company, MML Pension Insurance Company, the Connecticut Mutual Life Insurance Company, the Equitable Life Assurance Society of the United States, and Transamerica Occidental Life Insurance Company (together, the "Lenders") regarding the Note Agreements dated as of March 15, 1991 between Dreyer's Grand Ice Cream, Inc. and each of the Lenders, which Note Agreements are referenced in Exhibit 10.16 (Exhibit 19.5(10)). 10.21 Second Amendment to Note Agreements dated as of September 30, 1992, between Dreyer's Grand Ice Cream, Inc. and each of Massachusetts Mutual Life Insurance Company, MML Pension Insurance Company, the Connecticut Mutual Life Insurance Company, the Equitable Life Assurance Society of the United States, and Transamerica Occidental Life Insurance Company (together, the "Lenders") regarding the Note Agreements dated as of March 15, 1991 between Dreyer's Grand Ice Cream, Inc. and each of the Lenders, which Note Agreements are referenced in Exhibit 10.16 (Exhibit 10.58(12)). 10.22 Description of Dreyer's Grand Ice Cream, Inc. Incentive Bonus Plan (Exhibit 10.57(12)). 10.23 Dreyer's Grand Ice Cream, Inc. Stock Option Plan (1993) (Exhibit 10.9(15)). 10.24 Dreyer's Grand Ice Cream, Inc. Income Swap Plan (Exhibit 10.38 (15)). 10.25 Distribution and Customer Base Agreement by and between Dreyer's Grand Ice Cream, Inc. and Sunbelt Distributors, Inc. dated January 4, 1994 (Exhibit 10.37(15)). 10.26 Amendment to Distribution Agreement dated April 18, 1994, and Letter Agreement modifying such Amendment to Distribution Agreement dated April 18, 1994 between Dreyer's Grand Ice Cream, Inc. and Ben & Jerry's Homemade, Inc., amending Exhibit 10.5 (Exhibit 10.3(16)). 10.27 Amendment to Distribution Agreement dated December 12, 1994 between Dreyer's Grand Ice Cream, Inc. and Ben & Jerry's Homemade, Inc., amending Exhibit 10.5 (Exhibit 10.27(19)). 10.28 Third Amendment to Note Agreement dated as of June 5, 1995 between Dreyer's Grand Ice Cream, Inc. and each of Massachusetts Mutual Life Insurance Company, MML Pension Insurance Company, the Connecticut Mutual Life Insurance Company, the Equitable Life Assurance Society of the United States, and Transamerica Occidental Life Insurance Company (together, the "Lenders"), regarding the Note Agreements dated as of March 15, 1991 between Dreyer's Grand Ice Cream, Inc. and each of the Lenders, which Note Agreements are referenced in Exhibit 10.16 (Exhibit 10.3(20)). 10.29 Letter Agreement dated August 4, 1995 between Dreyer's Grand Ice Cream, Inc. and Smithway Associates, Inc., amending Exhibits 10.2 and 10.12.
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EXHIBIT NUMBER DESCRIPTION - ------ ---------------------------------------------------------------------------------- 10.30 Credit Agreement dated as of December 22, 1995 among Dreyer's Grand Ice Cream, Inc., Bank of America NT & SA (as a Bank and as Agent), ABN-AMRO Bank N.V. (as a Bank and as Co-Agent), Credit Suisse and The Bank of California. 11 Computation of Net Income Per Share. 21 Subsidiaries of Registrant. 23 Consent of Independent Accountants. 27 Financial Data Schedule
- --------------- (1) Incorporated by reference to designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Registration Statement on Form S-1 and Amendment No. 1 thereto, filed under Commission File No. 2-71841 on April 16, 1981 and June 11, 1981, respectively. (2) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Annual Report on Form 10-K and Amendment No. 1 thereto for the fiscal year ended December 28, 1985 filed under Commission File No. 0-10259 on March 28, 1986 and April 14, 1986, respectively. (3) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Current Report on Form 8-K filed under Commission File No. 0-10259 on January 23, 1987. (4) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31, 1988 filed under Commission File No. 0-10259 on March 31, 1989. (5) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 30, 1989 filed under Commission File No. 0-10259 on March 30, 1990. (6) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Current Report on Form 8-K filed under Commission File No. 0-10259 on March 20, 1991. (7) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 29, 1990 filed under Commission File No. 0-10259 on March 29, 1991. (8) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Quarterly Report on Form 10-Q for the quarterly period ended on June 29, 1991 filed under Commission File No. 0-10259 on August 13, 1991. (9) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 28, 1991 filed under Commission File No. 0-10259 on March 27, 1992. (10) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Quarterly Report on Form 10-Q for the quarterly period ended on September 26, 1992 filed under Commission File No. 0-10259 on November 10, 1992. (11) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Current Report on Form 8-K filed under Commission File No. 0-10259 on December 4, 1992. (12) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 26, 1992 filed under Commission File No. 0-10259 on March 26, 1993. (13) Incorporated by reference to designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Current Report on Form 8-K filed under Commission File No. 0-10259 on June 25, 1993. (14) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Quarterly Report on Form 10-Q for the quarterly period ended on June 26, 1993 filed under Commission File No. 0-10259 on August 10, 1993. 11 13 (15) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 25, 1993 filed under Commission File No. 0-14190 on March 25, 1994. (16) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Quarterly Report on Form 10-Q for the quarterly period ended March 26, 1994 filed under Commission File No. 0-14190 on May 10, 1994. (17) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Current Report on Form 8-K filed under Commission File No. 0-14190 on May 9, 1994. (18) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Quarterly Report on Form 10-Q for the quarterly period ended June 25, 1994 filed under Commission File No. 0-14190 on August 9, 1994. (19) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31, 1994 filed under Commission File No. 0-14190 on March 30, 1995. (20) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Quarterly Report on Form 10-Q for the quarterly period ended July 1, 1995 filed under Commission File No. 0-14190 on August 15, 1995. (21) Incorporated by reference to the designated exhibit to Dreyer's Grand Ice Cream, Inc.'s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 1995 filed under Commission File No. 0-14190 on November 14, 1995. 12 14 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Date: March 28, 1996 DREYER'S GRAND ICE CREAM, INC. By: /s/ PAUL R. WOODLAND ----------------------- (Paul R. Woodland) Vice President -- Finance and Administration, Chief Financial Officer and Assistant Secretary Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - --------------------------------------------- ----------------------------- /s/ T. GARY ROGERS Chairman of the Board and March 28, 1996 ------------------- Chief Executive Officer and (T. Gary Rogers) Director (Principal Executive Officer) /s/ WILLIAM F. CRONK, III President and Director March 28, 1996 --------------------------- (William F. Cronk, III) /s/ EDMUND R. MANWELL Secretary and Director March 28, 1996 ---------------------- (Edmund R. Manwell) /s/ PAUL R. WOODLAND Vice President -- Finance and March 28, 1996 ----------------------- Administration, Chief (Paul R. Woodland) Financial Officer and Assistant Secretary (Principal Financial Officer) /s/ JEFFREY P. PORTER Corporate Controller March 28, 1996 ------------------------ (Principal Accounting (Jeffrey P. Porter) Officer) /s/ TIMM F. CRULL Director March 28, 1996 ---------------------- (Timm F. Crull) /s/ MERRIL M. HALPERN Director March 28, 1996 ------------------------ (Merril M. Halpern) /s/ JEROME L. KATZ Director March 28, 1996 ---------------------- (Jerome L. Katz) /s/ JOHN W. LARSON Director March 28, 1996 --------------------- (John W. Larson) /s/ ANTHONY J. MARTINO Director March 28, 1996 ----------------------- (Anthony J. Martino) /s/ JACK O. PEIFFER Director March 28, 1996 --------------------- (Jack O. Peiffer)
SUPPLEMENTAL INFORMATION TO BE FURNISHED WITH REPORTS FILED PURSUANT TO SECTION 15(D) OF THE ACT BY REGISTRANTS WHICH HAVE NOT REGISTERED SECURITIES PURSUANT TO SECTION 12 OF THE ACT: Not applicable. 13 15 CONSOLIDATED STATEMENT OF INCOME
YEAR ENDED ------------------------------------------------- DECEMBER 30, DECEMBER 31, DECEMBER 25, 1995 1994 1993 ------------- ------------- ------------- ($ IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) Revenues: Net sales....................................... $ 678,797 $ 564,372 $ 470,665 Other income.................................... 2,255 2,230 1,125 -------- -------- -------- 681,052 566,602 471,790 -------- -------- -------- Costs and expenses: Cost of goods sold.............................. 530,561 428,779 356,237 Selling, general and administrative............. 143,090 126,945 79,779 Interest, net of interest capitalized........... 9,912 9,243 7,803 -------- -------- -------- 683,563 564,967 443,819 -------- -------- -------- (Loss) income before income taxes................. (2,511) 1,635 27,971 Income tax (benefit) provision.................... (987) 634 11,182 -------- -------- -------- Net (loss) income................................. (1,524) 1,001 16,789 Accretion of preferred stock to redemption value........................................... 168 Preferred stock dividends......................... 1,804 -------- -------- -------- Net (loss) income applicable to common stock...... $ (3,496) $ 1,001 $ 16,789 ======== ======== ======== Net (loss) income per common share................ $ (.26) $ .07 $ 1.15 ======== ======== ========
See accompanying Notes to Consolidated Financial Statements REPORT OF INDEPENDENT ACCOUNTANTS To the Board of Directors and Stockholders of Dreyer's Grand Ice Cream, Inc. In our opinion, the accompanying consolidated balance sheet and the related consolidated statements of income, of changes in stockholders' equity and of cash flows present fairly, in all material respects, the financial position of Dreyer's Grand Ice Cream, Inc. and its subsidiaries at December 30, 1995 and December 31, 1994, and the results of their operations and their cash flows for each of the three years in the period ended December 30, 1995, in conformity with generally accepted accounting principles. These financial statements are the responsibility of the Company's management; our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with generally accepted auditing standards which require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for the opinion expressed above. Price Waterhouse LLP San Francisco, California February 8, 1996 14 16 CONSOLIDATED BALANCE SHEET ASSETS
DECEMBER 30, DECEMBER 31, 1995 1994 ------------ ------------ ($ IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) Current Assets: Cash and cash equivalents.......................................... $ 3,051 $ 6,334 Trade accounts receivable, net of allowance for doubtful accounts of $698 in 1995 and $635 in 1994................................ 59,298 47,519 Other accounts receivable.......................................... 19,072 6,243 Inventories........................................................ 33,201 29,081 Prepaid expenses and other......................................... 12,487 9,657 -------- -------- Total current assets............................................... 127,109 98,834 Property, plant and equipment, net................................... 182,757 160,322 Goodwill and distribution rights, net of accumulated amortization of $13,414 in 1995 and $10,443 in 1994................................ 86,812 87,825 Other assets......................................................... 17,427 15,045 -------- -------- Total assets......................................................... $414,105 $362,026 ======== ======== LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Accounts payable and accrued liabilities........................... $ 35,514 $ 30,130 Accrued payroll and employee benefits.............................. 18,634 15,801 Current portion of long-term debt.................................. 3,600 4,500 -------- -------- Total current liabilities.......................................... 57,748 50,431 Long-term debt, less current portion................................. 134,000 46,100 Convertible subordinated debentures.................................. 100,752 Deferred income taxes................................................ 31,712 28,822 -------- -------- Total liabilities.................................................... 223,460 226,105 -------- -------- Commitments and contingencies Redeemable convertible Series B preferred stock, $1 par value -- 1,008,000 shares authorized; 1,008,000 shares and no shares issued and outstanding in 1995 and 1994, respectively..................... 98,382 -------- -------- Stockholders' Equity: Preferred stock, $1 par value -- 8,992,000 shares authorized; no shares issued or outstanding in 1995 and 1994 Common stock, $1 par value -- 30,000,000 shares authorized; 12,929,000 shares and 14,064,000 shares issued and outstanding in 1995 and 1994, respectively.................................. 12,929 14,064 Capital in excess of par........................................... 39,370 75,257 Retained earnings.................................................. 39,964 46,600 -------- -------- Total stockholders' equity......................................... 92,263 135,921 -------- -------- Total liabilities and stockholders' equity........................... $414,105 $362,026 ======== ========
See accompanying Notes to Consolidated Financial Statements 15 17 CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
COMMON STOCK CAPITAL ------------------ IN EXCESS RETAINED SHARES AMOUNT OF PAR EARNINGS TOTAL ------ ------- --------- --------- -------- (IN THOUSANDS) Balance at December 26, 1992............. 14,563 $14,563 $56,329 $ 36,677 $107,569 Net income for 1993.................... 16,789 16,789 Common stock dividends declared........ (3,513) (3,513) Common stock issued as contingent payment in acquisition of Cervelli Distributors, Inc................... 18 18 501 519 Employee stock plans and other......... 90 90 2,315 (735) 1,670 ------- ------- ------- ------- -------- Balance at December 25, 1993............. 14,671 14,671 59,145 49,218 123,034 Net income for 1994.................... 1,001 1,001 Common stock dividends declared........ (3,619) (3,619) Common stock and warrants issued to an affiliate of Nestle USA, Inc........ 3,000.. 3,000 99,487 102,487 Repurchases and retirements of common stock..................... (3,753) (3,753) (85,608) (89,361) Employee stock plans and other......... 146 146 2,233 2,379 ------- ------- ------- ------- -------- Balance at December 31, 1994............. 14,064 14,064 75,257 46,600 135,921 Net loss for 1995...................... (1,524) (1,524) Accretion of preferred stock to redemption value.................... (168) (168) Preferred stock dividends declared..... (1,804) (1,804) Common stock dividends declared........ (3,140) (3,140) Repurchases and retirements of common stock..................... (1,319) (1,319) (39,202) (40,521) Employee stock plans and other......... 184 184 3,315 3,499 ------- ------- ------- ------- -------- Balance at December 30, 1995............. 12,929 $12,929 $39,370 $ 39,964 $ 92,263 ======= ======= ======= ======= ========
See accompanying Notes to Consolidated Financial Statements 16 18 CONSOLIDATED STATEMENT OF CASH FLOWS
YEAR ENDED -------------------------------------------- DECEMBER 30, DECEMBER 31, DECEMBER 25, 1995 1994 1993 ------------ ------------ ------------ ($ IN THOUSANDS) Cash flows from operating activities: Net (loss) income..................................... $ (1,524) $ 1,001 $ 16,789 Adjustments to reconcile net (loss) income to cash (used in) provided from operations: Depreciation and amortization...................... 20,568 18,986 14,592 Deferred income taxes.............................. 2,058 (420) 3,485 Changes in assets and liabilities, net of amounts acquired: Trade accounts receivable........................ (11,779) (711) (3,587) Other accounts receivable........................ (12,829) (917) 1,283 Inventories...................................... (4,120) (684) (1,810) Prepaid expenses and other....................... (1,998) 1,237 (1,272) Accounts payable and accrued liabilities......... 5,470 882 6,357 Accrued payroll and employee benefits............ 2,833 6,547 872 -------- --------- --------- (1,321) 25,921 36,709 -------- --------- --------- Cash flows from investing activities: Acquisition of property, plant and equipment.......... (39,437) (31,568) (34,036) Retirement of property, plant and equipment........... 590 547 399 Increase in goodwill and distribution rights.......... (1,959) (556) (5,228) Purchase of distribution rights of Sunbelt Distributors, Inc.................................. (11,321) Increase in other assets, net......................... (6,104) (1,128) (511) -------- --------- --------- (46,910) (44,026) (39,376) -------- --------- --------- Cash flows from financing activities: Decrease in short-term bank borrowings................ (29,000) Proceeds from long-term debt.......................... 91,500 20,200 51,800 Reductions in long-term debt.......................... (4,500) (10,160) (117,123) Proceeds from convertible subordinated debentures..... 100,752 Net proceeds from issuance of common stock and warrants to an affiliate of Nestle USA, Inc........ 102,487 Issuance of common stock under employee stock plans... 3,499 2,379 1,670 Repurchases of common stock........................... (40,521) (89,361) Cash dividends paid................................... (5,030) (3,638) (3,506) -------- --------- --------- 44,948 21,907 4,593 -------- --------- --------- (Decrease) increase in cash and cash equivalents........ (3,283) 3,802 1,926 Cash and cash equivalents, beginning of year............ 6,334 2,532 606 -------- --------- --------- Cash and cash equivalents, end of year.................. $ 3,051 $ 6,334 $ 2,532 ======== ========= ========= Supplemental Cash Flow Information -- Cash paid during the year for: Interest (net of amounts capitalized).............. $ 9,738 $ 10,810 $ 6,360 Income taxes (net of refunds)...................... 2,172 (2,264) 6,581 Non-cash transaction: Conversion of convertible subordinated debentures into redeemable convertible Series B preferred stock............................................ 100,752
See accompanying Notes to Consolidated Financial Statements. 17 19 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS NOTE 1. OPERATIONS Dreyer's Grand Ice Cream, Inc. and its subsidiaries (the Company) is a single segment industry company engaged primarily in the business of manufacturing and selling premium ice cream and other frozen dairy products to grocery and convenience stores, foodservice accounts and independent distributors in the United States. NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Consolidation The consolidated financial statements include the accounts of Dreyer's Grand Ice Cream, Inc. and its subsidiaries. All material intercompany transactions have been eliminated. Fiscal Year The Company's fiscal year is a fifty-two or fifty-three week period ending on the last Saturday in December. Fiscal years 1995 and 1993 each consisted of fifty-two weeks and fiscal year 1994 consisted of fifty-three weeks. Use of Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Financial Statement Presentation Certain reclassifications have been made to prior years' financial statements to conform to the 1995 presentation. Cash Equivalents The Company classifies financial instruments as cash equivalents if the original maturity of such investments is three months or less. Inventories Inventories are stated at the lower of cost (determined by the first-in, first-out method) or market. Cost includes materials, labor and manufacturing overhead. Impairment of Long-Lived Assets Effective as of the beginning of fiscal 1995, the Company adopted the provisions of Statement of Financial Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of" (SFAS 121), on a prospective basis. SFAS 121 requires the Company to review long-lived assets and certain identifiable intangibles, including goodwill and distribution rights, for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. The assessment of impairment is based on the estimated undiscounted future cash flows from operating activities compared with the carrying value of the assets. If the undiscounted future cash flows of an asset are less than the carrying value, a write-down would be recorded measured by the amount of the 18 20 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS difference between the carrying value of the asset and the fair value of the asset. The adoption of SFAS 121 did not have any effect on the Company's Consolidated Financial Statements. Property, Plant and Equipment The cost of additions and major improvements and repairs are capitalized, while maintenance and minor repairs are charged to expense as incurred. Depreciation of fixed assets is computed using the straight-line method over the assets' estimated useful lives, generally ranging from three to thirty-five years. Interest costs relating to capital assets under construction are capitalized. Goodwill and Distribution Rights Goodwill and distribution rights are amortized using the straight-line method over thirty to thirty-six years. Product Formulations The cost of product formulations purchased from others is amortized using the straight-line method over the period of minimum expected benefit, approximately twelve years. Advertising Costs The Company defers production costs for media advertising and expenses these costs in the period the advertisement is first run. All other advertising costs are expensed in the period incurred. Advertising expense, including consumer promotion spending, was $39,971,000, $40,287,000 and $11,486,000 in 1995, 1994 and 1993, respectively. Income Taxes Income taxes are accounted for using the liability method. Under this method, deferred tax liabilities and assets are recognized for the tax consequences of temporary differences between the financial reporting and tax basis of assets and liabilities. Accounting for Stock-Based Compensation In October 1995, Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based Compensation," was issued which establishes accounting and reporting standards for stock-based compensation plans. The Company is required to adopt this standard in fiscal 1996. This standard encourages the adoption of the fair value-based method of accounting for employee stock options or similar equity instruments, but continues to allow the Company to measure compensation cost for those equity instruments using the intrinsic value-based method of accounting prescribed by Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees." Under the fair value-based method, compensation cost is measured at the grant date based on the value of the award. Under the intrinsic value-based method, compensation cost is the excess, if any, of the quoted market price of the stock at the grant date or other measurement date over the amount the employee must pay to acquire the stock. The Company intends to continue the use of the intrinsic value-based method. As a result, adoption of this standard will not have any effect to the Company's consolidated financial statements other than to require disclosure of the pro forma effect on net income of using the fair value-based method of accounting. Net (Loss) Income Per Common Share Net (loss) income per common share is computed using the weighted average number of shares of common stock outstanding during the period which were 13,285,000, 14,731,000, and 14,624,000 shares in 1995, 1994 and 1993, respectively. The potentially dilutive effect of the Company's redeemable convertible 19 21 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS preferred stock, convertible subordinated debentures and other common stock equivalents was anti-dilutive for each fiscal year. Accordingly, fully diluted earnings per share are not presented. NOTE 3. INVENTORIES Inventories at December 30, 1995 and December 31, 1994 consisted of the following:
1995 1994 -------- -------- (IN THOUSANDS) Raw materials.......................................... $ 3,291 $ 3,153 Finished goods......................................... 29,910 25,928 ------ ------ $ 33,201 $ 29,081 ====== ======
NOTE 4. PROPERTY, PLANT AND EQUIPMENT The cost and accumulated depreciation of property, plant and equipment at December 30, 1995 and December 31, 1994 were as follows:
1995 1994 -------- -------- (IN THOUSANDS) Buildings and improvements............................. $ 67,626 $ 64,913 Machinery and equipment................................ 145,023 118,958 Office furniture and fixtures.......................... 5,629 5,399 -------- -------- 218,278 189,270 Accumulated depreciation............................... (77,453) (64,254) -------- -------- 140,825 125,016 Land................................................... 11,019 11,019 Construction in progress............................... 30,913 24,287 -------- -------- $182,757 $160,322 ======== ========
Interest capitalized was $2,288,000, $1,788,000 and $1,271,000 in 1995, 1994 and 1993, respectively. Depreciation expense for property, plant and equipment was $16,412,000, $13,194,000 and $11,309,000 in 1995, 1994 and 1993, respectively. Construction in progress at December 30, 1995 and December 31, 1994 included $19,046,000 and $19,265,000, respectively, of costs associated with the enhancement of management information systems. NOTE 5. DISTRIBUTION RIGHTS On January 4, 1994, the Company entered into a long-term distribution agreement with Sunbelt Distributors, Inc. (Sunbelt), the leading independent direct-store-delivery ice cream distributor in Texas. Under the agreement, the Company paid Sunbelt $10,970,000 in cash to secure the long-term exclusive right to have its products distributed by Sunbelt in Texas and certain parts of Louisiana and Arkansas. In conjunction with this transaction, the Company recorded $11,321,000 in distribution rights, including $351,000 in transaction costs. 20 22 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS NOTE 6. INCOME TAXES The (benefits) provisions for federal and state income taxes consisted of the following:
1995 1994 1993 ------- ------ ------- (IN THOUSANDS) Current: Federal...................................................... $(3,045) $ 890 $ 6,110 State........................................................ 164 1,587 ------- ------ ------- (3,045) 1,054 7,697 ------- ------ ------- Deferred: Federal...................................................... 2,127 (422) 2,943 State........................................................ (69) 2 542 ------- ------ ------- 2,058 (420) 3,485 ------- ------ ------- $ (987) $ 634 $11,182 ======= ====== =======
The deferred income tax liability as of December 30, 1995 and December 31, 1994 consisted of the following:
1995 1994 ------- ------- (IN THOUSANDS) Intangible assets and related amortization............................... $12,855 $12,541 Depreciation............................................................. 14,671 13,187 Deferred costs........................................................... 2,621 2,968 Other.................................................................... 1,565 126 ------- ------- $31,712 $28,822 ======= =======
The federal statutory income tax rate is reconciled to the Company's effective income tax rate as follows:
1995 1994 1993 ----- ---- ---- Federal statutory income tax rate................................. (35.0)% 35.0% 35.0% State income taxes, net of federal tax benefit.................... (1.7) 6.6 5.0 Effect of tax rate increase on prior years' deferred income taxes........................................................... 2.1 Reversal of income taxes provided in prior periods................ (5.8) (1.4) Other............................................................. 3.2 (2.8) (0.7) ----- ---- ---- (39.3)% 38.8% 40.0% ===== ==== ====
NOTE 7. EMPLOYEE BENEFIT PLANS The Company maintains a defined contribution retirement plan for employees not covered by collective bargaining agreements. The plan provides retirement and other benefits based upon the assets of the plan held by the trustee. The Company contributes 7% of the eligible participants' annual compensation to the plan. The Company also maintains a salary deferral plan under which it may make a matching contribution of a percentage of each participant's deferred salary amount. Pension expense and matching contributions under these plans were approximately $7,202,000, $5,776,000, and $4,035,000 in 1995, 1994 and 1993, respectively. The Company's liability for accrued pension contributions and salary deferrals was $7,186,000 and $5,996,000 at December 30, 1995 and December 31, 1994, respectively. Pension expense for employees covered by multi-employer retirement plans under collective bargaining agreements was $848,000, $677,000, and $586,000 in 1995, 1994 and 1993, respectively. 21 23 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS NOTE 8. DESCRIPTION OF LEASING ARRANGEMENTS The Company conducts certain of its operations from leased facilities, which include land and buildings, production equipment, and certain vehicles. All of these leases are classified as operating leases and expire over a period of twenty-seven years including renewal options. Certain of these leases include non-bargain purchase options. The minimum rental payments required under non-cancelable operating leases at December 30, 1995 are as follows:
(IN THOUSANDS) -------------- Year ending: 1996......................................... $ 3,318 1997......................................... 1,888 1998......................................... 1,740 1999......................................... 1,493 2000......................................... 1,102 Thereafter................................... 4,814 -------- $ 14,355 ========
Rental expense for operating leases was $12,824,000, $11,474,000, and $9,804,000 in 1995, 1994, and 1993, respectively. NOTE 9. LONG-TERM DEBT Long-Term Debt Long-term debt at December 30, 1995 and December 31, 1994 consisted of the following:
1995 1994 -------- ------- (IN THOUSANDS) Revolving line of credit with banks due 1999 with interest payable at three different rate options.......................................... $111,700 $20,200 Senior notes with principal due through 2001 and interest payable semiannually at 9.3%............................................................... 21,400 25,000 Industrial revenue bonds with principal due through 2001 and interest payable quarterly at a floating rate based upon a tax-exempt note index................................................................. 4,500 5,400 -------- ------- 137,600 50,600 Less -- current portion................................................. 3,600 4,500 -------- ------- $134,000 $46,100 ======== =======
The aggregate annual maturities of long-term debt as of December 30, 1995 are as follows:
(IN THOUSANDS) -------------- Year ending: 1996......................................... $ 3,600 1997......................................... 3,600 1998......................................... 3,600 1999......................................... 115,300 2000......................................... 3,600 Thereafter................................... 7,900 -------- $137,600 ========
22 24 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS During 1995, the Company entered into a new credit agreement with certain banks for a total revolving line of credit of $175,000,000. This agreement replaced the Company's previous revolving line of credit agreement. The total available line of credit decreases by $25,000,000 on December 31, 1997 and December 31, 1998, and expires on December 31, 1999. This line is available at three different interest rate options which are defined as the agent bank's offshore rate, same day funding rate, plus an applicable margin, or the agent bank's reference rate. At December 30, 1995, there was $111,700,000 outstanding under the line. Convertible Subordinated Debentures In June 1993, the Company issued in a private placement $100,752,000 of 6 1/4% convertible subordinated debentures, due June 30, 2001. These debentures were converted into redeemable convertible Series B preferred stock during 1995. (See Note 10.) Fair Value of Financial Instruments As of December 30, 1995 and December 31, 1994, the fair value of the Company's long-term debt was determined to be the same as the carrying amount. The fair value was based on quoted market prices for the same or similar issues or on the current rates offered to the Company for a term equal to the same remaining maturities. It is not practicable to estimate the fair value of the redeemable convertible Series B preferred stock due to the unique terms and conditions of these securities. (See Note 10.) The Company is subject to the requirements of various financial covenants, including dividend restrictions, under its long-term debt obligations and the redeemable convertible Series B preferred stock. NOTE 10. REDEEMABLE CONVERTIBLE SERIES B PREFERRED STOCK On August 8, 1995, the Company converted $100,752,000 of 6 1/4% convertible subordinated debentures into 1,008,000 shares of redeemable convertible Series B preferred stock (Series B), redeemable on June 30, 2001. On the conversion date, $2,538,000 of unamortized debenture issuance costs were charged against the carrying value of the debentures to arrive at the carrying value of $98,214,000 for this preferred stock. The Company is recording accretion to increase the carrying value to the redemption value of $100,752,000 by June 30, 2001, the redemption date. The Series B preferred stock is convertible, under certain conditions, into a total of 1,008,000 shares of Series A Convertible Preferred Stock (Series A), redeemable on June 30, 2001. Additionally, both the Series A preferred stock and Series B preferred stock are convertible, under certain conditions, at an initial conversion price of $34.74 into a total of 2,900,000 shares of common stock. Series B preferred stock can be called by the Company for early redemption, subject to certain limitations. In preference to shares of common stock, shares of both the Series A preferred stock and the Series B preferred stock are entitled to receive cumulative cash dividends, payable quarterly in arrears. The Company pays dividends for the Series B preferred stock of approximately $1,143,000 per quarter. Dividends on the Series A preferred stock are payable at a dividend rate equal to the amount they would receive as if the shares were converted into comparable shares of common stock. NOTE 11. COMMON STOCK The Company paid a regular quarterly dividend of $.06 per share for each quarter of 1995, 1994 and 1993. During 1987, the Board of Directors declared a dividend of one Preferred Stock Purchase Right (the Rights) for each outstanding share of common stock. Under certain conditions, the Rights become exercisable for the purchase of the Company's preferred or common stock. 23 25 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Nestle Equity Issuance On June 14, 1994, The Company completed a transaction (the "Nestle Agreement") with an affiliate of Nestle USA, Inc. ("Nestle"), whereby Nestle purchased 3,000,000 newly issued shares of common stock of the Company for $32 per share and warrants to purchase an additional 2,000,000 shares at an exercise price of $32 per share. Warrants for 1,000,000 shares will expire on June 14, 1997 and warrants for the other 1,000,000 shares will expire on June 14, 1999. Nestle paid an aggregate of $10,000,000 for the 2,000,000 warrants. Total proceeds from the issuance of the initial 3,000,000 shares and the 2,000,000 warrants were $106,000,000. In connection with the Nestle Agreement, the Company incurred transaction costs of $3,513,000 which were recorded as a charge against capital in excess of par. The Company has the right to cause Nestle to exercise the warrants at $24 per share subject to certain conditions at any time before June 14, 1997. The Company also has the right to cause Nestle to exercise the warrants at any time through the warrant expiration dates at $32 per share if the average trading price of the common stock exceeds $60 during a 130 trading day period preceding the exercise, subject to certain conditions. Furthermore, if the average trading price of the common stock equals or exceeds $60 during a 130 trading day period before June 14, 1999, Nestle will be required to pay an additional $2 for each share purchased and each share purchased upon exercise of the warrants. In connection with the Nestle Agreement, the Company entered into a distribution agreement with Nestle Ice Cream Company to distribute Nestle's frozen novelty and ice cream products in certain markets. Common Stock Repurchases During 1995, the Company repurchased and retired 1,291,000 shares of its common stock at prices ranging from $25.38 to $34.25 through open market purchases and negotiated transactions thereby completing the plan implemented in 1994 to repurchase up to 5,000,000 shares of common stock (the Stock Repurchase Plan). In addition, the Company repurchased and retired 28,000 shares of its common stock at prices ranging from $24.50 to $38.50 from employees who previously acquired shares under employee stock plans. During 1994, the Company repurchased and retired 3,709,000 shares of its common stock at prices ranging from $21.38 to $25.75 per share under the Stock Repurchase Plan. In addition, the Company repurchased and retired 44,000 shares of its common stock at prices ranging from $22.00 to $28.69 per share from employees who previously acquired shares under employee stock plans. Since the beginning of fiscal 1994, the Company charged the excess over par value for shares repurchased to capital in excess of par rather than the previous practice of charging the excess to retained earnings. NOTE 12. SIGNIFICANT CUSTOMERS For fiscal 1995, 1994 and 1993, no customer accounted for more than 10% of consolidated net sales. NOTE 13. EMPLOYEE STOCK PLANS The Company has three stock option plans under which options may be granted for the purchase of the Company's common stock at a price not less than 100% of the fair market value at the date of grant. The incentive stock option plan (the 1982 Plan) provides that options are not exercisable until after two years from the date of grant and generally expire six years from the date of grant. The non-qualified stock option plan (the 1992 Plan) provides that options are not exercisable until after two years from the date of grant and expire upon death or termination of employment. In 1994, the stockholders approved a stock option plan (the 1993 Plan) under which granted options may be either incentive stock options or non-qualified stock options. This plan provides that options expire no later than ten years from the date of grant. This plan also provides that most of the terms of the options, such as vesting, are within the discretion of the compensation committee, 24 26 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS comprising of certain members of the Board of Directors of the Company. Changes in stock options under all three plans in the aggregate were as follows:
OPTIONS AVAILABLE OPTIONS OPTIONS PRICE FOR GRANT OUTSTANDING PER SHARE --------- ------------- ----------------- (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) Balance, December 26, 1992.......................... 224 502 $ 6.78 to $30.25 Authorized........................................ 200 Granted........................................... (358) 358 24.75 to 30.13 Exercised......................................... (82) 6.78 to 14.44 ----- ----- ---------------- Balance, December 25, 1993.......................... 66 778 $ 7.19 to $30.25 Authorized........................................ 1,200 Granted........................................... (387) 387 21.75 to 29.38 Exercised......................................... (99) 7.19 to 19.50 Canceled.......................................... 12 (12) ----- ----- ---------------- Balance, December 31, 1994.......................... 891 1,054 $ 9.63 to $30.25 Authorized Granted........................................... (446) 446 25.63 to 38.63 Exercised......................................... (120) 9.63 to 29.50 Canceled.......................................... 15 (15) ----- ----- ---------------- Balance, December 30, 1995.......................... 460 1,365 $ 13.63 to $38.63 ===== ===== ================
At December 30, 1995, options to purchase 277,000 shares of the Company's common stock were exercisable. The Company has two plans under which employees may purchase shares of the Company's common stock: the section 423 employee stock purchase plan (the 423 Plan) and the employee secured stock purchase plan (the Secured Plan). Under the 423 Plan, employees may authorize payroll deductions up to 10% of their compensation for the purpose of acquiring shares at 85% of the market price determined at the beginning of a specified twelve month period. Under this plan, employees purchased 40,000 shares at prices ranging from $20.29 to $21.67 per share in 1995, 20,000 shares at prices ranging from $20.61 to $23.16 per share in 1994, and 25,000 shares at prices ranging from $16.69 to $29.75 per share in 1993. Under the Secured Plan, on specified dates, employees may purchase shares at fair market value by paying 20% of the purchase price in cash and the remaining 80% of the purchase price in the form of a non-recourse promissory note with a term of 30 years. Under this plan, employees purchased 23,000 shares at prices ranging from $25.38 to $39.50 per share in 1995, 27,000 shares at prices ranging from $24.25 to $25.13 per share in 1994, and 10,000 shares at prices ranging from $22.50 to $27.25 per share in 1993. NOTE 14. INVESTMENT IN AFFILIATE The Company's 49.7% ownership of M-K-D Distributors, Inc. (MKD), a company engaged in manufacturing and direct-store-distribution of ice cream in the states of Washington, Oregon, Utah and Alaska, is accounted for under the equity method. The investment included in other assets, is stated at cost adjusted for the Company's equity in undistributed earnings and was $5,517,000 and $4,738,000 at December 30, 1995 and December 31, 1994, respectively. The Company's equity in the earnings of MKD were $779,000, $1,063,000, and $695,000 in 1995, 1994, and 1993, respectively. The Company's sales of its branded products to MKD were $25,174,000, $22,583,000, and $18,360,000 in 1995, 1994 and 1993, respectively. 25 27 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Summarized financial information for MKD at December 30, 1995 and December 31, 1994, was as follows:
1995 1994 ------- ------- (IN THOUSANDS) Current assets................................................. $ 7,756 $ 8,433 Non-current assets............................................. 9,688 7,717 ------- ------- $17,444 $16,150 ======= ======= Current liabilities............................................ $ 3,960 $ 5,937 Non-current liabilities........................................ 2,084 500 Stockholder's equity........................................... 11,400 9,713 ------- ------- $17,444 $16,150 ======= =======
1995 1994 1993 ------- ------- ------- (IN THOUSANDS) Net sales..................................................... $74,219 $62,817 $43,385 Gross profit.................................................. 15,316 14,492 11,251 Net income.................................................... 1,687 2,146 1,517
NOTE 15. CONTINGENCIES The Company is engaged in various legal actions as both plaintiff and defendant. Management believes that the outcome of these actions, either individually or in the aggregate, will not have a material adverse effect on the Company's financial position or results of operations. NOTE 16. SUBSEQUENT EVENTS On February 2, 1996, the Company signed a letter of intent to purchase the remaining 50.3% of the outstanding common stock of MKD. After the purchase, the Company will own 100% of the outstanding common stock of MKD. Separately, the Company is in the process of negotiating an agreement for the private placement of $50,000,000 of senior notes. NOTE 17. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
PER SHARE ------------------------------------- NET (LOSS) INCOME NET (LOSS) INCOME NET GROSS APPLICABLE TO APPLICABLE TO PRICE RANGE SALES MARGIN COMMON STOCK COMMON STOCK(1) (NASDAQ) -------- -------- ----------------- ------------------ -------------- (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) 1995 1st Quarter............... $141,255 $ 29,025 $ 322 $ .02 $24.25 - 28.25 2nd Quarter............... 188,083 43,045 3,664 .27 25.50 - 37.50 3rd Quarter............... 205,226 50,453 893 .07 36.00 - 40.00 4th Quarter............... 144,233 25,713 (8,375) (.65) 30.00 - 39.00 -------- -------- ------- $678,797 $148,236 $(3,496) (.26)(2) ======== ======== ======= 1994 1st Quarter............... $112,001 $ 23,249 $ 1,582 $ .11 $21.50 - 29.50 2nd Quarter............... 147,727 38,068 (1,435) (.10) 21.25 - 28.25 3rd Quarter............... 168,704 45,058 2,260 .15 21.75 - 26.00 4th Quarter............... 135,940 29,218 (1,406) (.09) 24.25 - 28.25 -------- -------- ------- $564,372 $135,593 $ 1,001 .07(2) ======== ======== =======
- --------------- (1) Fully diluted net (loss) income per share for each quarter of 1995 and 1994 is equivalent to primary net (loss) income per share since the potentially dilutive effect of the redeemable convertible Series B preferred stock, convertible subordinated debentures and warrants was anti-dilutive. (2) The number of weighted average shares outstanding used in the computation of net (loss) income per common share increases and decreases as shares are issued or repurchased during the year. For this reason, the sum of net (loss) income per common share for the quarters may not be the same as the net (loss) income per common share for the year. 26 28 FIVE YEAR SUMMARY OF SIGNIFICANT FINANCIAL DATA
FISCAL YEAR ENDED DECEMBER 1995 1994 1993 1992 1991 -------- -------- -------- -------- -------- (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) Operations: Net sales and other income........ $681,052 $566,602 $471,790 $407,946 $355,779 (Loss) income before cumulative effect of change in accounting principle...................... (1,524) 1,001 16,789 13,973 15,850 Net (loss) income................. (1,524) 1,001 16,789 15,694(2) 15,850 Net (loss) income applicable to common stock................... (3,496) 1,001 16,789 15,694(2) 15,850 Per Common Share: (Loss) income before cumulative effect of change in accounting principle...................... (.26) .07 1.15 .94 1.05 Net (loss) income................. (.26)(1) .07(1) 1.15(1) 1.05(1)(2) 1.05(1) Dividends declared................ .24 .24 .24 .24 .20 Balance Sheet: Total assets...................... 414,105 362,026 322,275 289,051 224,042 Working capital................... 69,361 48,403 57,397 25,768 19,412 Long-term debt, including convertible subordinated debentures..................... 134,000 146,852 139,627 102,160 44,289 Redeemable convertible Series B preferred stock................ 98,382 Stockholders' equity.............. 92,263 135,921 123,034 107,569 113,129
- --------------- (1) Fully diluted net (loss) income per share for each fiscal year is equivalent to primary net (loss) income per share. In 1995 the potentially dilutive effect of the stock warrants and redeemable convertible Series B preferred stock was anti-dilutive, in 1994 the potentially dilutive effect of the stock warrants and the convertible subordinated debentures was anti-dilutive, in 1993 the potentially dilutive effect of the convertible subordinated debentures was anti-dilutive, and in 1992 and 1991 no potentially dilutive securities were outstanding. (2) Includes the cumulative effect of change in method of accounting for income taxes of $1,721,000, or $.11 per share. 27 29 MANAGEMENT'S DISCUSSION AND ANALYSIS RESULTS OF OPERATIONS Fiscal 1995 Compared with Fiscal 1994 The Company embarked on a five year plan (the Strategic Plan) during the second quarter of 1994 to accelerate the sales of its brand throughout the country. This plan includes three primary strategies: 1) a quadrupling of advertising and consumer promotion spending, 2) rapid expansion and development of the Company's direct-store-delivery system, and 3) introduction of innovative new products. As originally announced, the Company anticipated that the cost of implementing the Strategic Plan would materially reduce earnings during the fiscal years of 1994 and 1995. In fact, these development activities resulted in a net income of $1,001,000 for 1994, as compared with net income of $16,789,000 in 1993, and a net loss of $1,524,000 for 1995. One of the potential benefits of the Strategic Plan is increased market share above those levels that would have been attained under the former business plan. In response to the Strategic Plan, dollar market share grew from 11.7% at the end of 1994 to 13.4% for the fourth quarter of 1995. Consolidated net sales for fiscal 1995 increased 20% (net sales increased 23% when adjusting for 52 weeks in fiscal 1995 and 53 weeks in 1994) to $678,797,000 from the $564,372,000 achieved in 1994. Sales of the Company's branded products increased 20% in all markets. This growth was led by Dreyer's and Edy's Fat Free Ice Cream and Grand Ice Cream as well as the new products of Low Fat Ice Cream and the revitalized Sherbet line introduced in 1995. Sales of branded products purchased from other companies (partner brands) increased 22%, led by sales of frozen novelty and ice cream products from Nestle Ice Cream Company introduced in 1995. Sales of partner brands represented 34% of consolidated net sales in both 1995 and 1994. During 1995, the Company expanded its direct-store-delivery system into 16 new markets. The expenses associated with this expansion effort were the primary cause of a decrease in gross margin from 24.0% in 1994 to 21.8% for 1995, resulting in a 24%, or $101,782,000, increase in cost of goods sold over 1994. The gross margin was affected to a lesser extent by the Company's continued development of its new Grand Soft business including significantly enhanced manufacturing, equipment service, and financing capabilities. Advertising and consumer promotion spending continued at the annual rate of approximately $40,000,000 during 1995. The Strategic Plan anticipates continued expenditures at approximately this level of marketing spending during a period of increasing sales. The Company increased its level of trade promotion spending during 1995 by approximately $14,000,000 due principally to the initial introduction of the Company's products in new markets. This increase in promotion spending was the primary factor in the $16,145,000 growth in selling, general, and administrative expenses between 1994 and 1995. The Company regularly monitors its levels of advertising and promotion spending in an effort to enhance long-term profitability. Interest expense increased $669,000, or 7%, principally due to higher borrowings under the Company's revolving line of credit. In addition to increased market share, the potential benefits of the Strategic Plan include future earnings in excess of those levels that would have been achieved in the absence of this plan. The Company anticipates an improvement in earnings during 1996 and that the earnings benefits expected under the Strategic Plan will be achieved in 1997 and future years. However, no assurance can be given that these expectations relative to future market share and earnings benefits of the strategy will be achieved. The success of the strategy will depend upon, among other things, consumer purchase responsiveness to the increased marketing expenditures, competitors' marketing responses, market conditions affecting the price of the Company's products, commodity costs, and efficiencies achieved in manufacturing and distribution operations. Fiscal 1994 Compared with Fiscal 1993 In the first partial year of the implementation of the Strategic Plan, the Company's consolidated net sales for 1994 increased 20% (net sales increased 18% when adjusting for 53 weeks in fiscal 1994 and 52 weeks in 1993) to $564,372,000, compared with $470,665,000 in 1993. Driven by substantially higher advertising and consumer promotion spending in the Strategic Plan, sales of the Company's branded products increased 22%. 28 30 Dreyer's and Edy's Frozen Yogurt and Grand Ice Cream led this increase followed by the contribution from the Company's new novelty products. The increase in sales of Healthy Choice(R) low fat ice cream from ConAgra, Inc. was the primary factor in a partner brand sales increase of 12% over the prior year. Partner brands represented 34% of consolidated net sales as compared to 36% in 1993. Cost of goods sold increased $72,542,000, or 20%, over 1993. Gross margin, however, decreased slightly from 24.3% to 24.0% primarily due to the additional expenses associated with introducing the Company's product line and expansion of the distribution system in the Texas and New England markets as well as in several cities in the southern United States. The effect of these expenses on gross margin was partially offset by a higher proportion of Company products, which carry a higher margin than partner brands. The implementation of the Strategic Plan required an increase in overall marketing expenses of $40,501,000, leading to a 59%, or $47,166,000, increase in selling, general and administrative expenses over those incurred in 1993. Interest expense was $1,440,000, or 18%, higher than in 1993 due primarily to the issuance of the convertible subordinated debentures in the second quarter of 1993. (See Note 9 of Notes to Consolidated Financial Statements.) As anticipated and announced, the implementation of the Strategic Plan detailed above resulted in a net income of $1,001,000 for 1994 as compared with $16,789,000 for 1993. Fiscal 1993 Compared with Fiscal 1992 A 27% increase in the sales of Company brands was the primary factor in the growth of consolidated net sales from $407,045,000 in 1992 to $470,665,000 in 1993, representing a 16% increase. The improvement was generated principally by established products and the introduction of Dreyer's and Edy's Ice Cream Bars and Tropical Fruit Bars. Partner brand sales represented 36% of consolidated sales as compared with 42% for 1992. The higher proportion of Dreyer's and Edy's products in the sales mix was the primary cause of the increase in gross margin from 22.7% in 1992 to 24.3% in 1993, resulting in a 13%, or $41,475,000, increase in cost of goods sold over 1992. In addition to this improvement in the sales mix, the gross margin was benefited by lower manufacturing costs per unit offset in part by higher distribution expenses. Selling, general and administrative expenses were $14,329,000, or 22%, higher than in 1992 resulting primarily from an increase in marketing expenses in an effort to enhance the Company's long-term competitive position and increase its market share. Interest expense was $2,570,000, or 49%, higher than in 1992 due largely to the issuance of the previously mentioned convertible subordinated debentures. (See Note 9 of Notes to Consolidated Financial Statements.) Price Increases The effect of price increases for both Company and partner brands was not significant for each of the comparative periods. Tax Provisions The Company's income tax provisions differ from the expected tax provisions calculated at the federal statutory tax rate primarily due to the reversal of income taxes provided in prior periods and state income taxes. (See Note 6 of Notes to Consolidated Financial Statements.) Seasonality The Company experiences more demand for its products during the spring and summer than during the fall and winter. (See Note 17 of Notes to Consolidated Financial Statements.) Effects of Inflation and Changing Prices Management believes that the effects of inflation and changing prices are successfully managed, with both margins and earnings being protected through a combination of cost control programs and productivity 29 31 gains. The largest component of the Company's cost of production is raw materials, principally dairy products and sugar. Historically, the Company has been able to compensate for increases in the price level of these commodities through manufacturing and distribution productivity gains. Other cost increases such as labor and general and administrative costs have also been offset by productivity gains and other operating efficiencies. Liquidity and Capital Resources Working capital at December 30, 1995 was $20,958,000 higher than at year-end 1994 due primarily to increases in trade accounts receivable and other accounts receivable. Working capital at December 31, 1994 was $8,994,000 lower than at year-end 1993 due primarily to increases in trade accounts payable and accrued liabilities, and accrued payroll and employee benefits. Working capital at December 25, 1993 was $31,629,000 higher than at year-end 1992 due primarily to the decrease in short-term bank borrowings. Refer to the Consolidated Statement of Cash Flows for the components of increases and decreases in cash and cash equivalents for the three-year period ended December 30, 1995. The Company's inventory is maintained at the same general level relative to sales throughout the year by changing production and purchasing schedules to meet demand. The ratio of inventory to sales typically does not vary significantly from year to year. On August 8, 1995, the Company converted $100,752,000 of 6 1/4% convertible subordinated debentures into 1,008,000 shares of redeemable convertible Series B preferred stock, redeemable on June 30, 2001. (See Note 10 of Notes to Consolidated Financial Statements.) On June 14, 1994, the Company completed a transaction with an affiliate of Nestle USA, Inc., whereby Nestle purchased 3,000,000 newly issued shares of common stock of the Company for $32 per share and warrants to purchase an additional 2,000,000 shares at an exercise price of $32 per share. Total proceeds from the issuance of the initial 3,000,000 shares and the 2,000,000 warrants was $106,000,000. (See Note 11 of Notes to Consolidated Financial Statements.) During 1995, the Company repurchased and retired 1,291,000 shares of its common stock at prices ranging from $25.38 to $34.25 through open market purchases and negotiated transactions thereby completing the plan implemented in 1994 to repurchase up to 5,000,000 shares of common stock (the Stock Repurchase Plan). During 1994, the Company repurchased and retired 3,709,000 shares of its common stock at prices ranging from $21.38 to $25.75 per share under the Stock Repurchase Plan. (See Note 11 of Notes to Consolidated Financial Statements.) On February 2, 1996, the Company signed a letter of intent to purchase the remaining 50.3% of the outstanding common stock of M-K-D Distributors, Inc. (MKD), a company engaged in manufacturing and direct-store-distribution of ice cream in the states of Washington, Oregon, Utah and Alaska. After the purchase, the Company will own 100% of the outstanding common stock of MKD. Separately, the Company is in the process of negotiating an agreement for the private placement of $50,000,000 of senior notes. On January 4, 1994, the Company entered into a long-term distribution agreement with Sunbelt Distributors, Inc., the leading direct-store-delivery ice cream distributor in Texas. (See Note 5 of Notes to Consolidated Financial Statements.) Capital expenditures for property, plant and equipment in 1996 are currently estimated to be approximately $64,000,000, primarily for the expansion of manufacturing capacity and the construction of distribution facilities. It is anticipated that these additions will be largely financed through internally generated funds and borrowings. As of year-end 1995, the Company had $3,051,000 in cash and cash equivalents, and an unused credit line of $63,300,000. The Company believes that its credit line, along with its liquid resources, internally generated cash and financing capacity are adequate to meet anticipated operating and capital requirements. 30 32 REPORT OF INDEPENDENT ACCOUNTANTS ON FINANCIAL STATEMENT SCHEDULE To the Board of Directors of Dreyer's Grand Ice Cream, Inc. Our audits of the consolidated financial statements referred to in our report dated February 8, 1996 appearing on page 14 of this Form 10-K also included an audit of the Financial Statement Schedule listed in Item 14(a)2 of this Form 10-K. In our opinion, this Financial Statement Schedule presents fairly, in all material respects, the information set forth therein when read in conjunction with the related consolidated financial statements. PRICE WATERHOUSE LLP San Francisco, California February 8, 1996 31 33 SCHEDULE II DREYER'S GRAND ICE CREAM, INC. VALUATION AND QUALIFYING ACCOUNTS (IN THOUSANDS)
ADDITIONS BALANCE AT CHARGED TO BALANCE AT BEGINNING COSTS AND END CLASSIFICATIONS OF PERIOD EXPENSES DEDUCTIONS OF PERIOD - ------------------------------------------------ ---------- ---------- ---------- ---------- Fiscal year ended December 25, 1993: Allowance for doubtful accounts............... $ 513 $1,397 $1,375(1) $ 535 Amortization of goodwill and distribution rights..................................... 5,268 2,304 -- 7,572 Amortization of other assets.................. 2,530 979 -- 3,509 ------- ------ ------ ------- $ 8,311 $4,680 $1,375 $ 11,616 ======= ====== ====== ======= Fiscal year ended December 31, 1994: Allowance for doubtful accounts............... $ 535 $1,672 $1,572(1) $ 635 Amortization of goodwill and distribution rights..................................... 7,572 2,871 -- 10,443 Amortization of other assets.................. 3,509 2,921 208(2) 6,222 ------- ------ ------ ------- $ 11,616 $7,464 $1,780 $ 17,300 ======= ====== ====== ======= Fiscal year ended December 30, 1995: Allowance for doubtful accounts............... $ 635 $1,234 $1,171(1) $ 698 Amortization of goodwill and distribution rights..................................... 10,443 2,971 -- 13,414 Amortization of other assets.................. 6,222 1,184 3,209(2) 4,197 ------- ------ ------ ------- $ 17,300 $5,389 $4,380 $ 18,309 ======= ====== ====== =======
- --------------- (1) Write-off of receivables considered uncollectible. (2) Removal of fully-amortized assets. 32 34 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION - ------ ---------------------------------------------------------------------------------- 2.8 Amended and Restated Fourth Amendment to Securities Purchase Agreement dated March 12, 1996 and effective as of October 1, 1995 by and among Dreyer's Grand Ice Cream, Inc., Trustees of General Electric Pension Trust, GE Investment Private Placement Partners, I and General Electric Capital Corporation, amending Exhibit 2.3. 10.29 Letter Agreement dated August 4, 1995 between Dreyer's Grand Ice Cream, Inc. and Smithway Associates, Inc., amending Exhibits 10.2 and 10.12. 10.30 Credit Agreement dated as of December 22, 1995 among Dreyer's Grand Ice Cream, Inc., Bank of America NT & SA (as a Bank and as Agent), ABN-AMRO Bank N.V. (as a Bank and as Co-Agent), Credit Suisse and The Bank of California. 11 Computation of Net Income Per Share 21 Subsidiaries of Registrant. 23 Consent of Independent Accountants. 27 Financial Data Schedule.
EX-2.8 2 AMENDMENT TO SECURITIES PURCHASE AGREEMENT 1 Exhibit 2.8 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, 1995 by and among Dreyer's 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 Place ment 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: 1. 2 "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: "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. 2. 3 (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 B 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 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 3. 4 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. [THIS SPACE INTENTIONALLY LEFT BLANK] 4. 5 IN WITNESS WHEREOF, the Company and the Purchasers have caused this Amendment to be executed and delivered as of the date first above written. DREYER'S GRAND ICE CREAM, INC. TRUSTEES OF GENERAL ELECTRIC PENSION TRUST By: /s/ Paul R. Woodland By: /s/ John H. Myers -------------------------- ------------------------- Title: CFO Title: Trustee ----------------------- ---------------------- GENERAL ELECTRIC CAPITAL GE INVESTMENT PRIVATE CORPORATION PLACEMENT PARTNERS, I, L.P. By: GE Investment Management By: /s/ Incorporated, its -------------------------- General Partner Title: Department Operations Manager By: /s/ John H. Myers --------------------- Title: Executive Vice President 5. EX-10.29 3 LETTER AGREEMENT BETWEEN DREYER'S AND SMITHWAY 1 Exhibit 10.29 SMITHWAY ASSOCIATES, INC. 5743 SMITHWAY STREET COMMERCE, CA 90040 August 4, 1995 Dreyer's Grand Ice Cream, Inc. 5929 College Avenue Oakland, CA 94618 Gentlemen: The purpose of this letter is to amend, effective as of August 1, 1995, the Commerce Lease (as herein after defined) between Smithway Associates, Inc. ("Smithway") and Dreyer's Grand Ice Cream, Inc. ("Dreyer's"). Jack and Tillie Marantz, predecessor of Smithway, and Dreyer's previously entered into that certain Agree ment and Lease dated July 1, 1982, as amended, with respect to cer tain improved real and personal property located at 5743 E. Smithway Street, Commerce, California (the "Smithway Property") (the "Original Lease"). By that certain Assignment of Lease dated March 31, 1989, Wilsey, Bennett Co. ("Wilsey") assigned and trans ferred, and Dreyer's assumed, all the provisions of that certain Agreement and Lease dated August 1, 1986 between Wilsey and Tillie Marantz, as Trustee of the Tillie Marantz Revocable Trust, dba TJ Investments (the "Wilsey Lease"). Dreyer's and Smithway subsequently amended the Wilsey Lease to, among other things, make it coterminous with the Original Lease (the Wilsey Lease, as amended to date, and the Original Lease, as amended to date, taken together shall be referred to herein as the "Commerce Lease"). In consideration of this amendment letter, and in consideration of the mutual promises contained herein, the following is hereby agreed upon: 1. Smithway hereby waives any claims it may have against Dreyer's for rent or common area expenses ("CAM") unbilled under the Commerce Lease up to and including the date of this amendment letter and Dreyer's hereby waives any claims it may have against Smithway for refund of CAM, taxes or insurance under the Commerce Lease up to and including the date of this amendment letter. 2. The Commerce Lease is hereby amended as follows: A. Lease Term: 12 years, commencing August 1, 1995 and terminating July 31, 2007, subject to Paragraph 2B hereof. B. Options: 3 options, each option to extend the lease term for 5 additional years. 1 2 C. (i)Rent: The aggregate amount of $59,000 per month, plus CAM (as defined in Paragraph 2D hereof), taxes and insurance, for Dreyer's occupancy of the spaces in the Smithway Property identified in Exhibit B, attached hereto and made a part hereof. (ii)Additional Rent: Dreyer's shall pay additional rent for August 1995 of $14,153 (plus CAM, taxes and insurance related to, and Dreyer's may occupy during such month as additional space identified in Exhibit B attached hereto, the cooler portion of the B Box space (the "B Cooler") and the freezer portion of the B Box space (the "B Freezer")). Dreyer's shall pay additional rent for the B Freezer for September 1995 of $9,000 (plus CAM, taxes and insurance related to the B Freezer). Dreyer's shall pay additional rent for the B Freezer for October 1995 through December 1996 of $9,000 per month (plus CAM, taxes and insurance related to the B Freezer) unless the B Freezer is to be sub-subleased by Smithway to a third party, at which time (upon not less than thirty (30) days prior notice from Smithway) Dreyer's will vacate the B Freezer, sublease the B Freezer to Smithway in accordance with Paragraph 2H hereof, and the additional rent to be paid by Dreyer's for the B Freezer thereafter shall be reduced to $1 per month. In any event, Dreyer's will not sublease to Smithway, and vacate, the B Freezer earlier than September 30, 1995 or later than December 31, 1996. Dreyer's obligation to pay additional rent of $9,000 per month shall cease on the earlier to occur of (x) Smithway sub-subleasing the B Freezer or (y) the payment of $9,000 additional rent for December 1996, provided Dreyer's has vacated the B Freezer, and made the sublease described in Paragraph 2H hereof available to Smithway, by the end of such month. (iii) Payment Date: Rent and Additional Rent is due on the first day of each month. D. CAM: The CAM to be paid by Dreyer's to Smithway shall be defined as set out in Exhibit A, attached hereto and made a part hereof, titled "Southwest Operations Center, CAM Expense Definition." E. CPI: Any CPI change shall not exceed 0.75% per year. Rent (as set out in Paragraph 2C(i) hereof) will be adjusted based upon the increase in CPI over the base year 1995 on August 1, 2000 and 2005, and, to the extent lease 2 3 extension options are exercised, on August 1 of 2010, 2015, and 2020, as applicable. The rent of $59,000 shall be used as the basis for each CPI calculation. A CPI index for the California area shall be chosen by Dreyer's. F. Fee: A fee of $15,000 shall be paid by Dreyer's to Smithway on January 1, 1996 if both the B Cooler and the B Freezer portions of the B Box have been rented by Smithway to third-parties by December 31, 1995. It is understood that Dreyer's will not vacate the B Freezer earlier than September 30, 1995. G. Tanks: Smithway hereby assumes ownership of Dreyer's underground tanks subject to Smithway (i) receiving from Dreyer's, at Dreyer's expense, a certification of underground storage tank closure from the L.A. County Public Works (for the previously removed tanks) and (ii) obtaining at no cost to Smithway a permit to own and use the tanks (a "Permit"). Smithway agrees that any renewal or reissuance of the Permit after initial issuance shall be at Smithway's expense. Dreyer's will provide right-of-way to access the tanks/pumps for as long as Dreyer's or its successor in interest occupies the Smithway Property. H. Depreciation: At such time as Dreyer's vacates the B Freezer as described in Paragraph 2C(ii) hereof, Dreyer's will sublease the B Freezer to Smithway for $1 per month so that Dreyer's will be able to legally maintain its current depreciation schedule for the B Freezer (approximately 5 years); provided however, that the efficacy of such sublease for depreciation purposes shall not be a condition to Dreyer's obligations under the Commerce Lease (or the restated Commerce Lease to be negotiated pursuant to Paragraph 3 hereof). Smithway agrees that under such sublease all obligations of Dreyer's under the Commerce Lease for the B Freezer shall cease except Dreyer's obligation to pay additional rent to Smithway of $1 per month for Dreyer's continued lease of the B Freezer for the period of the depreciation schedule. I. Surrender of Space: Dreyer's will surrender, on August 1, 1995, the Sales Office space to Smithway; provided that Dreyer's will continue to occupy the small storage room in the Sales Office Space where its telephone system is currently installed and Dreyer's will be permitted reasonable access to such storage room for so long as Dreyer's occupies such storage room under the Commerce Lease. The B Cooler will be surrendered to Smithway on September 1, 3 4 1995. Smithway is relying on Dreyer's agreement to surrender these spaces so a lease can be negotiated and signed with Malibu Farms for the Sales Office space and the B Cooler. Smithway agrees that Dreyer's may have reasonable access to the Sales Office space during the month of August, 1995 so that Dreyer's may remove certain equipment. J. Other Space: Dreyer's will continue to occupy various dry storage space for the rental rate set out in Paragraph 2C(i) above until such time as the space is rented to a third-party or Dreyer's additional rent obligation of $9,000 per month terminates (as described in Paragraph 2C(ii)above), at which time Dreyer's will vacate such dry storage space. 3. Smithway and Dreyer's agree that promptly following the execution of this amendment letter they shall negotiate in good faith regarding all other necessary and appropriate terms and conditions to be included in a complete and definitive restatement of the Commerce Lease containing the terms set out in this amendment letter. 4. This amendment letter shall be deemed to be a contract made under the laws of the State of California and for all purposes shall be governed and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State. If any term or provision of this amendment letter is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms and provisions of this amendment letter shall in no way be affected, impaired or invalidated. The language of this amendment letter shall be construed as a whole and in accordance with the fair meaning of the language used. The language of this amendment letter shall not be strictly construed for or against either of the parties hereto based upon who drafted or was principally responsible for drafting the amendment letter or any specific term or condition hereof. This amendment letter shall be deemed to have been drafted by each party hereof, and no party may urge otherwise. 4 5 5. The existing terms and conditions of the Commerce Lease shall remain in full force and effect except as such terms and conditions are specifically amended by this amendment letter. Sincerely, /s/ Aaron Cohen - ----------------------------- Aaron Cohen, President SMITHWAY ASSOCIATES, INC. Agreed and Accepted this 4th day of August, 1995: DREYER'S GRAND ICE CREAM, INC. By: /s/ Paul R. Woodland -------------------------- Paul R. Woodland Title: Vice President - Finance 5 6 EXHIBIT A Southwest Operations Center CAM Expense Definition I. It is understood and agreed that "common area expenses" ("CAM") as used herein, shall mean the reasonable costs and expenses incurred by Smithway in connection with the upkeep, maintenance and repair of the common areas of the Smithway Property. Dreyer's shall pay the percentage of CAM determined by dividing: (x) 85,000 square feet of the space occupied by Dreyer's in the Smithway building (excluding the B Cooler and the B Freezer) by (y) the total Smithway building square footage (total Smithway building square footage as of August 1, 1995 is 220,795 square feet). If Smithway, subsequent to August 1, 1995, leases to Dreyer's additional internal space in the Smithway building, the square footage of such space shall be added to Dreyer's 85,000 square feet for purposes of determining Dreyer's percentage of CAM applicable after such change; provided that, if Smithway leases to Dreyer's additional space external to the Smithway building it shall have no effect on the determination of Dreyer's percentage of CAM. Smithway agrees that any single expenditure in excess of $2,500 that will be included in CAM must have prior written approval of Dreyer's, which approval will not be unreasonably withheld. CAM may include but is not limited to the following: - Electricity - Water & Sewer - Trash - Landscaping, Gardening (Both Exterior & Interior) - Walkway Maintenance - Parking Lot Maintenance & Repair - Electrical Repair - Pest Control, Exterminator - Dreyer's percentage of CAM determined as set out above multiplied by 50.0% of one Building Engineer's salary - Secretarial Services & Record Keeping - Dreyer's shall be subject to pay for such services only Dreyer's percentage of CAM determined as set out above multiplied by 50.0% of Karen Worthy's salary - Fire Protection System, Fire Department - Security - Exterior Lighting Maintenance & Repair - Janitorial Services - Miscellaneous Painting - Property Taxes - Insurance - Miscellaneous Taxes - Elevator Permits & Maintenance - Capital Expenditures (Per above single item expenditure guidelines) 1 7 Exhibit A cont. It is further understood and agreed that CAM may include the reasonable costs and expenses incurred by Smithway for a property tax consultant to challenge the assessed amount of real estate taxes attributable to the Smithway Property. II. Smithway agrees that any costs and expenses incurred in connection with the following items, regardless of whether such costs and expenses might otherwise fall within the definition of CAM set out in part I. of this Exhibit A, may not be included in CAM to be paid by Dreyer's under the Commerce Lease and that Dreyer's shall have no obligation to pay any portion of any costs and expenses related to such items: - Leasing Commission or Other Commissions - Property Tax Consultant (Except as noted above) - Property Management Fees - Marketing & Promotional Expenses - Architectural Or General Engineering - Other Consultants - Legal Fees - Business Licenses - Debt Services - Tenant Improvements by tenants other than Dreyer's - Health Permits 2 8 EXHIBIT B Southwest Operations Center Area Measurements and Space Definition
[Reference] Definition of Space Subject to Rent [Square Feet] - ---------------------------------------------------------------------------------------------- A1 A Box Freezer 13,801 A2 A Box Ante-Room 640 A3 A Box Truck Loadout 2,340 ======= Total Refrigerated Space & Cooler 16,781 E Package Prod. 7,781 F Snack & Novelty Prod. 7,621 G Mix Room (Receiving & Storage) 2,580 ======= Total Production 17,982 H1 Telephone Switching Equipt. Room 300 H2 Offices 18,283 ======= Total Offices 18,583 I Charger Room 1,305 J Basement 4,219 ======= Total Other Space (Internal) 5,524 K1 Dry Storage 5,586 K2 Dry Storage 7,350 K3 Dry Storage 6,556 K4 Dry Storage 722 K5 Dry Storage (Aisle) 1,150 ======= Total Warehouse Area (Dry Storage) 21,364 ======= Total Square Footage 80,234 ======= C1 Boiler Room 784 C2 Engine Room 2,080 C3 S/R Box 2,300 C4 Other External Space 28,694 ======= Total Other Space (External Incl. S/R Box) 39,858 ======= Total Square Footage Subject To Rent 120,092 ======= Definition of Space Subject to Additional Rent [Square Feet] - ---------------------------------------------------------------------------------------------- D1 W/B Cooler (B Cooler) 3,168 D2 W/B Freezer (B Freezer) 6,458 ======= Total B Cooler & Freezer 9,636 ======= Total Square Footage Subject To Rent & Additional Rent 129,728 =======
EX-10.30 4 CREDIT AGREEMENT 1 Exhibit 10.30 =============================================================================== CREDIT AGREEMENT DATED AS OF DECEMBER 22, 1995 AMONG DREYER'S GRAND ICE CREAM, INC. THE BANKS PARTY TO THIS AGREEMENT AND BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION AS AGENT FOR THE BANKS AND ABN-AMRO BANK N.V. AS CO-AGENT =============================================================================== 2 List of Exhibits and Schedules 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 Legal Opinion Exhibit E - Form of Assignment and Acceptance SCHEDULES Schedule 2.01 - Commitments Schedule 5.07 - ERISA Schedule 5.11 - Indebtedness Schedule 5.15 - Labor Schedule 5.17 - Subsidiaries Schedule 7.01 - Liens Schedule 7.04 - Investments Schedule 7.05 - Indebtedness Schedule 7.08 - Contingent Obligations Schedule 10.02 - Addresses for Notices, etc. 3 TABLE OF CONTENTS ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . 1 1.02 Other Interpretive Provisions . . . . . . . . . . . . . . . . . 16 1.03 Accounting Principles . . . . . . . . . . . . . . . . . . . . . 17 ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 2.01 Amounts and Terms of Commitments . . . . . . . . . . . . . . . . 18 (a) The Revolving Credit . . . . . . . . . . . . . . . . . . . 18 (b) The Same Day Rate Loans . . . . . . . . . . . . . . . . . . 18 2.02 Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . . 19 2.03 Procedure for Borrowing . . . . . . . . . . . . . . . . . . . . 19 2.04 Conversion and Continuation Elections . . . . . . . . . . . . . 20 2.05 Voluntary Termination or Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . 22 2.06 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . 22 2.07 Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 2.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 2.09 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 (a) Arrangement, Agency Fees . . . . . . . . . . . . . . . . . 23 (b) Closing Fees . . . . . . . . . . . . . . . . . . . . . . . 23 (c) Commitment 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 ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY . . . . . . . . . . . . . . . . . . . . 26 3.01 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 3.02 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 3.03 Increased Costs and Reduction of Return . . . . . . . . . . . . 28 3.04 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . 29 3.05 Inability to Determine Rates . . . . . . . . . . . . . . . . . . 29 3.06 Reserves on Offshore Rate Loans . . . . . . . . . . . . . . . . 30 3.07 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 ARTICLE IV CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4.01 Conditions of Initial Loans Etc. . . . . . . . . . . . . . . . . 30 (a) Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 30 (b) Resolutions; Incumbency . . . . . . . . . . . . . . . . . . 30 (c) Legal Opinion . . . . . . . . . . . . . . . . . . . . . . . 31 (d) Payment of Fees . . . . . . . . . . . . . . . . . . . . . . 31 (e) Prior Credit Agreement; Payment of Sums Due and Termination of Commitment to Lend Under the Prior Credit Agreement . . . . . . . . . . . . . . . . 31 (f) Certificate . . . . . . . . . . . . . . . . . . . . . . . . 31 (g) Other Documents . . . . . . . . . . . . . . . . . . . . . . 31 4.02 Conditions to All Borrowings . . . . . . . . . . . . . . . . . . 32 (a) Notice of Borrowing or Conversion/Continuation . . . . . . . . . . . . . . . . . . 32
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Section Page (b) Continuation of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . 32 (c) No Existing Default . . . . . . . . . . . . . . . . . . . . 32 ARTICLE V REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . 32 5.01 Corporate Existence and Power . . . . . . . . . . . . . . . . . 32 5.02 Corporate Authorization; No Contravention . . . . . . . . . . . 33 5.03 Governmental Authorization . . . . . . . . . . . . . . . . . . . 33 5.04 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . 33 5.05 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 5.06 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 5.07 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . 34 5.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . 34 5.09 Title to Properties . . . . . . . . . . . . . . . . . . . . . . 35 5.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 5.11 Financial Condition . . . . . . . . . . . . . . . . . . . . . . 35 5.12 Environmental Matters . . . . . . . . . . . . . . . . . . . . . 35 5.13 Regulated Entities . . . . . . . . . . . . . . . . . . . . . . . 36 5.14 No Burdensome Restrictions . . . . . . . . . . . . . . . . . . . 36 5.15 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . 36 5.16 Copyrights, Patents, Trademarks and Licenses, etc. . . . . . . . 36 5.17 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 36 5.18 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 5.19 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . 37 5.20 Disclosure re Margin Stock . . . . . . . . . . . . . . . . . . . 37 ARTICLE VI AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 6.01 Financial Statements . . . . . . . . . . . . . . . . . . . . . . 37 6.02 Certificates; Other Information . . . . . . . . . . . . . . . . 38 6.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 6.04 Preservation of Corporate Existence, Etc . . . . . . . . . . . . 39 6.05 Maintenance of Property . . . . . . . . . . . . . . . . . . . . 39 6.06 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 6.07 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . 40 6.08 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . 40 6.09 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . 40 6.10 Inspection of Property and Books and Records . . . . . . . . . . 40 6.11 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . 41 6.12 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . 41 6.13 Senior Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 41 6.14 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . 42 ARTICLE VII NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 7.01 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . 42 7.02 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . 43 7.03 Consolidations and Mergers . . . . . . . . . . . . . . . . . . . 44 7.04 Loans and Investments . . . . . . . . . . . . . . . . . . . . . 44 7.05 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . 45 7.06 Transactions with Affiliates . . . . . . . . . . . . . . . . . . 46 7.07 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . 46
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Section Page 7.08 Contingent Obligations . . . . . . . . . . . . . . . . . . . . . 46 7.09 Joint Ventures . . . . . . . . . . . . . . . . . . . . . . . . . 47 7.10 Lease Obligations . . . . . . . . . . . . . . . . . . . . . . . 47 7.11 Restricted Payments . . . . . . . . . . . . . . . . . . . . . . 48 7.12 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 7.13 Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . 49 7.14 Minimum Fixed Charge Coverage Ratio . . . . . . . . . . . . . . 49 7.15 Funded Debt/EBITDA Ratio . . . . . . . . . . . . . . . . . . . . 50 7.16 Change in Business . . . . . . . . . . . . . . . . . . . . . . . 50 7.17 Accounting Changes . . . . . . . . . . . . . . . . . . . . . . . 50 7.18 Other Contracts . . . . . . . . . . . . . . . . . . . . . . . . 51 ARTICLE VIII EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 8.01 Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 51 (a) Non-Payment . . . . . . . . . . . . . . . . . . . . . . . . 51 (b) Representation or Warranty . . . . . . . . . . . . . . . . 51 (c) Specific Defaults . . . . . . . . . . . . . . . . . . . . . 51 (d) Other Defaults . . . . . . . . . . . . . . . . . . . . . . 51 (e) Cross-Default . . . . . . . . . . . . . . . . . . . . . . . 51 (f) Insolvency; Voluntary Proceedings . . . . . . . . . . . . . 52 (g) Involuntary Proceedings . . . . . . . . . . . . . . . . . . 52 (h) ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 (i) Monetary Judgments . . . . . . . . . . . . . . . . . . . . 53 (j) Non-Monetary Judgments . . . . . . . . . . . . . . . . . . 53 (k) Change of Control . . . . . . . . . . . . . . . . . . . . . 53 (l) Loss of Licenses . . . . . . . . . . . . . . . . . . . . . 53 (m) Adverse Change . . . . . . . . . . . . . . . . . . . . . . 53 (n) Invalidity of Subordination Provisions . . . . . . . . . . 54 8.02 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 8.03 Rights Not Exclusive . . . . . . . . . . . . . . . . . . . . . . 54 ARTICLE IX THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 9.01 Appointment and Authorization . . . . . . . . . . . . . . . . . 54 9.02 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . 55 9.03 Liability of Agent . . . . . . . . . . . . . . . . . . . . . . . 55 9.04 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . 55 9.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . 56 9.06 Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . 56 9.07 Indemnification of Agent . . . . . . . . . . . . . . . . . . . . 57 9.08 Agent in Individual Capacity . . . . . . . . . . . . . . . . . . 57 9.09 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . 58 9.10 Withholding Tax . . . . . . . . . . . . . . . . . . . . . . . . 58 9.11 Co-Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 10.01 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . 60 10.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 10.03 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . 61 10.04 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . 61 10.05 Company Indemnification . . . . . . . . . . . . . . . . . . . . 62 10.06 Payments Set Aside . . . . . . . . . . . . . . . . . . . . . . 62
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Section Page 10.07 Successors and Assigns . . . . . . . . . . . . . . . . . . . . 63 10.08 Assignments, Participations, etc. . . . . . . . . . . . . . . . 63 10.09 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 64 10.10 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 10.11 Notification of Addresses, Lending Offices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 10.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 66 10.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 66 10.14 No Third Parties Benefitted . . . . . . . . . . . . . . . . . . 66 10.15 Commitment Letter . . . . . . . . . . . . . . . . . . . . . . . 66 10.16 Termination of Commitments to Lend Under the Prior Credit Agreement . . . . . . . . . . . . . . . . . . . . 66 10.17 Governing Law and Jurisdiction . . . . . . . . . . . . . . . . 66 10.18 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . 67
7 CREDIT AGREEMENT This CREDIT AGREEMENT is entered into as of December 22, 1995 among Dreyer's 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. WHEREAS, the Company, certain financial institutions party thereto, 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 entered into an Amended and Restated Credit Agreement dated as of December 13, 1994 (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 1.01 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) provided that the Company or the Subsidiary is the surviving entity. 1 8 "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. Each of General Electric Capital Corporation, the Trustees of General Electric Pension Trust, GE Investment Private Placement Partners I, and Nestle Holdings, Inc. and its Affiliates shall not be deemed an Affiliate of the Company by reason of such Person's equity holdings in the Company as of the date of this Agreement. "Agent" means BofA in its capacity as agent for the Banks hereunder, and any successor agent arising under Section 9.09. "Agent-Related Persons" means BofA and any successor agent arising under Section 9.09, together with 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 10.02 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. "Applicable Margin" means: (a) For each Loan made, converted, or continued during the period from the date of this Agreement through the date which is two Business Days after the date on which the Agent first receives a Compliance Certificate pursuant to Section 6.02(b): 0.625% if such Loan is an Offshore Rate Loan 0.000% if such Loan is a Base Rate Loan 0.625% if such Loan is a Same Date Rate Loan; and 2 9 (b) Thereafter: For each period from the date which is three Business Days after the date the Agent receives a Compliance Certificate pursuant to Section 6.02(b) (the "Current Compliance Certificate") through the date which is two Business Days after the Agent receives the next such Compliance Certificate, and for each Loan made, converted, or continued during such period, if the Current Compliance Certificate shows the Company's Funded Debt/EBITDA Ratio is:
2.50 or 3.00 or 3.50 or 4.00 or For Below above and above and above and above and 4.50 or each: 2.50 below 3.00 below 3.50 below 4.00 below 4.50 above Offshore Rate Loan 0.500% 0.625% 0.750% 0.875% 1.000% 1.250% Base Rate Loan 0.000% 0.000% 0.000% 0.000% 0.000% 0.250% Same Day Rate Loan 0.500% 0.625% 0.750% 0.875% 1.000% 1.250%
"Arranger" means BA Securities, Inc., a Delaware corporation. "Assignee" has the meaning specified in subsection 10.08(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. "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 San Francisco, California, as its "Reference Rate." (The "Reference Rate" is a rate set by BofA based upon various 3 10 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 Reference 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. "BofA" means Bank of America National Trust and Savings Association, 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 2.03. "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in 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 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 Moody's Investors Service, Inc.; (c) commercial paper of an issuer rated at least A-1 by Standard & Poor's Corporation or P-1 by Moody's Investors 4 11 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 4.01 are satisfied or waived by all Banks (or, in the case of subsection 4.01(d), waived by the Person entitled to receive such payment), which date must occur before December 31, 1995. "Code" means the Internal Revenue Code of 1986, and regulations promulgated thereunder. "Commitment", as to each Bank, has the meaning specified in Section 2.01. "Compliance Certificate" means a certificate substantially in the form of Exhibit A. "Consolidated Net Worth" of the Company means stockholders' equity plus subordinated debt existing on the Closing Date, plus subordinated debt subsequently incurred which is acceptable to the Majority Banks, plus Series A Preferred Stock, plus Series B Preferred Stock, minus the current portion of mandatory redeemable Series B Preferred Stock, minus any treasury stock. Each Bank agrees not to unreasonably refuse or withhold its consent to subordinated debt which the Company wishes to incur after the date of this Agreement. "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, 5 12 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 2.04, 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. "Dollars", "dollars" and "$" each mean lawful money of the United States. "EBITDA" means earnings before interest, taxes, depreciation and amortization of non-cash charges, all determined on a consolidated basis and in accordance with GAAP. "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; and (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a Subsidiary of a Bank, (B) a Subsidiary of a Person of which a Bank is a 6 13 Subsidiary, or (C) a Person of which a Bank is a Subsidiary. "Environmental Claims" means all written claims received by the Company, 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, without limitation, ambient air, surface water, ground water, land surface or subsurface strata), including, without limitation, 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 the Company within the meaning of Section 414(b) or (c) of the 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 the Company 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 the Company 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 the Company or any ERISA Affiliate. "Event of Default" means any of the events or circumstances specified in Section 8.01. 7 14 "Exchange Act" means the Securities Exchange Act of 1934, and regulations promulgated thereunder. "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 2.09(a). "FRB" means the Board of Governors of the Federal Reserve System, and any Governmental Authority succeeding to any of its principal functions. "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; and (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); and (e) in the case of the Company, the current portion of mandatory redeemable Series B Preferred Stock. Obligations arising from capital leases shall not be deemed Funded Debt. "Funded Debt/EBITDA Ratio" of any Person means the ratio of such Person's Funded Debt to its EBITDA; with EBITDA calculated on a rolling four quarter basis. "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 8 15 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. "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. "Guaranty Obligation" has the meaning specified in the definition of "Contingent Obligation." "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 9 16 rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness; and (h) all Guaranty Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (g) above. "Indemnified Liabilities" has the meaning specified in Section 10.05. "Indemnified Person" has the meaning specified in Section 10.05. "Independent Auditor" has the meaning specified in subsection 6.01(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. "Interest Payment Date" means, as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and, as to any Base Rate Loan, the last Business Day of each calendar quarter and each date such Loan is converted into another Type of Loan, provided, however, 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, (a) as to any Same Day Rate Loan, the period commencing on the Borrowing Date of such Loan, or the date such Same Day Rate Loan is continued as a Same Day Rate Loan through the date agreed upon between the Company and BofA, except that the Interest Period for a Same Day Rate Loan shall not exceed 30 days; and (b) 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 10 17 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 December 31, 1999. "IRS" means the Internal Revenue Service, and any Governmental Authority succeeding to any of its principal functions under the Code. "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 the Company or any of its Subsidiaries with another Person in order to conduct a common venture or enterprise with such Person. "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 10.02, 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 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, and may be a Base Rate Loan, an Offshore Rate Loan, or a Same Day Rate Loan (each, a "Type" of Loan). "Loan Documents" means this Agreement, the Fee Letter, and all other documents delivered to the Agent or any Bank in connection herewith. 11 18 "Majority Banks" means (a) at any time when there are more than two Banks, Banks then holding 60% or more of the then aggregate unpaid principal amount of the Loans, or, if no such principal amount is then outstanding, Banks then having 60% or more 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, condition (financial or otherwise) or prospects of the Company or the Company and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Company or any 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 the Company of any Loan Document. "Material Subsidiary" means Edy's Grand Ice Cream and, at any time, any other Subsidiary of the Company having at such time either (i) total (gross) revenues for the preceding four fiscal quarter period in excess of 10% of the total (gross) revenues of the Company on a consolidated basis, or (ii) total assets, as of the last day of the preceding fiscal quarter, having a net book value in excess of $50,000,000 in each case, based upon the Company's most recent annual or quarterly financial statements delivered to the Agent under Section 6.01. "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 the Company 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. "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 the Company or in favor of Manwell & Milton, such costs and expenses not to exceed 5% of the gross proceeds of such issuance. "Notice of Borrowing" means a notice in substantially the form of Exhibit B. 12 19 "Notice of Conversion/Continuation" means a notice in substantially the form of Exhibit C. "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" means, for any Interest Period, with respect to Offshore Rate Loans comprising part of the same Borrowing, the rate of interest per annum at which dollar deposits in the approximate amount of BofA's Offshore Rate Loan for such Interest Period would be offered by BofA's Grand Cayman Branch, Grand Cayman, B.W.I. (or such other office as may be designated for such purpose by BofA), to major banks in the offshore dollar interbank market upon request of such banks at approximately 11:00 a.m. (New York City time) two Business Days prior to the commencement of such Interest Period. "Offshore Rate Loan" means a Loan that bears interest based on the Offshore Rate. "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 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 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 10.08(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 the Company 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. 13 20 "Permitted Liens" has the meaning specified in Section 7.01. "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 the Company sponsors or maintains or to which the Company 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. "Pro Rata Share" means, as to any Bank at any time, the percentage equivalent (expressed as a decimal, rounded to the ninth decimal place) at such time of such Bank's Commitment divided by the combined Commitments of all Banks. "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 or the president of the Company, or any other officer having substantially the same authority and responsibility; or, with respect to compliance with financial covenants and the Compliance Certificate, the chief financial officer or the treasurer of the Company, or any other officer having substantially the same authority and responsibility. "Revolving Termination Date" means the earlier to occur of: (a) December 31, 1999; and (b) the date on which the Commitments terminate in accordance with the provisions of this Agreement. "Same Day Rate" means the rate specified by BofA to the Company prior to the making of the Same Day Rate Loan to which such rate will apply and agreed to by the Company. "Same Day Rate Loan" means a Loan that bears interest at the Same Day Rate. 14 21 "SEC" means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions. "Senior Notes" means the Company's unsecured notes which are not subordinated to but are of equal rank with the Obligations, issued in favor of institutional investors through a private placement arranged by the Arranger. "Series A Certificate of Designation" means the Company's Certificate of Designation of Series A Convertible Preferred Stock as in effect on the date hereof. "Series B Certificate of Designation" means the Company's Certificate of Designation of Series B Convertible Preferred Stock as in effect on the date hereof. "Series A Preferred Stock" means the Company's Series A Convertible Preferred Stock issued pursuant to the Series A Certificate of Designation. "Series B Preferred Stock" means the Company's Series B Convertible Preferred Stock issued pursuant to the Series B Certificate of Designation. "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 the Company. "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 bill 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 15 22 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 mark-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). "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. "Truck Lease Program" means (i) the sale and leaseback, the acquisition financing, or the secured financing by the Company or any of its Subsidiaries of trucks up to an aggregate of $30,000,000 for such transactions and (ii) the lease of trucks by the Company or any of its Subsidiaries for use in the ordinary course of business of the Company or such Subsidiary, which trucks are not leased pursuant to a sale and leaseback. "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 the Company, or by one or more of the other Wholly-Owned Subsidiaries, or both. 1.02 Other Interpretive Provisions. (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. 16 23 (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 all instruments, 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 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." 1.03 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. 17 24 (b) References herein to "fiscal year" and "fiscal quarter" refer to such fiscal periods of the Company. ARTICLE II THE CREDITS 2.01 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 2.01 under the heading "Commitment" (such amount, as the same may be reduced under Section 2.05 or as a result of one or more assignments under Section 10.08, the Bank's "Commitment"); provided, however, that, after giving effect to any Borrowing (including those of Same Day Rate Loans), the aggregate principal amount of all outstanding Loans shall not at any time exceed the combined Commitments. Within the limits of each Bank's Commitment, and subject to the other terms and conditions hereof, the Company may borrow under this subsection, prepay under Section 2.06 and reborrow under this subsection. (b) The Same Day Rate Loans. (1) The Revolving Credit provided for in subsection (a) of this Section shall contain a facility providing for Same Day Rate Loans. If the Company wishes to borrow under this facility, (a "Same Day Rate Loan"), it shall so notify the Agent, with a copy to BofA, in its Notice of Borrowing. Same Day Rate Loans shall be subject to the following: (A) The aggregate principal amount of outstanding Same Day Rate Loans shall not exceed $10,000,000 at any one time. (B) Same Day Rate Loans shall be made by BofA on behalf of all the Banks except that the other Banks shall not fund their share of the Same Day Rate Loans except as specified in this subsection. (C) A Bank's Pro Rata Share of outstanding Same Day Rate Loans (i) shall be subtracted from a Bank's Commitment when computing the unused Commitment of such Bank, and (ii) so long as such Pro Rata Share is unfunded, shall be deemed part of such Bank's unused Commitment for purposes of computing the commitment fees due such Bank. (2) Each Bank hereby promises BofA that it shall, upon demand by BofA made from time to time, purchase from BofA such Bank's Pro Rata Share of all Same Day Rate Loans outstanding at such times, regardless of whether at such times a Default or 18 25 an Event of Default has occurred. Each Bank agrees that its commitment to BofA under the preceding sentence is irrevocable, unconditional, and unqualified. Each Bank agrees that it shall not be entitled to any portion of principal and interest accrued and/or paid on a Same Day Loan until such Bank purchases from BofA such Bank's Pro Rata Share of such Same Day Rate Loan; prior to such purchase, principal and interest accrued and/or paid on such Loan shall be for the account of BofA and those Banks (if any) which have purchased their Pro Rata Shares in such Loan. (3) BofA shall furnish Agent, weekly, with a report showing the Same Day Rate Loan outstandings and payments made on each Business Day of the week covered by such report. 2.02 Loan Accounts. The Loans made by each Bank 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 and each Bank shall be conclusive, absent manifest error, of the amount of the Loans made by the Banks to 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. 2.03 Procedure for Borrowing. (a) Each Borrowing shall be made upon the Company's irrevocable written notice delivered to the Agent in accordance with Section 10.02 in the form of a Notice of Borrowing (which notice must be received by the Agent prior to: (1) 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 (2) 9:00 a.m. (San Francisco, California time) on the requested Borrowing Date, in the case of Base Rate Loans or Same Day Rate Loans, specifying: (A) the amount of the Borrowing, which shall be in an aggregate minimum principal amount of $3,000,000 or any multiple of $1,000,000 in excess thereof; except that a Borrowing consisting of a Same Day Rate Loan shall be in a 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, Base Rate Loans, or Same Day Rate Loans; (D) the duration of the Interest Period applicable to such Loans included in such notice. If the Notice of 19 26 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; provided, however, 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 one or three Business Days before the Closing Date if the Borrowing is to consist of Base Rate or Same Day Loans 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; except that if the Borrowing consists of Same Day Rate Loans, the Agent need notify the Banks of such Borrowings only on the last Business Day of each week, setting forth the amount of Same Day Rate Loans made and/or paid during such week. (c) Each Bank will make the amount of its Pro Rata Share of each Borrowing (except for a Borrowing consisting of Same Day Rate Loans made by BofA) 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 the account of the Company on the books of BofA 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 six different Interest Periods in effect (excluding Interest Periods for Same Day Rate Loans). 2.04 Conversion and Continuation Elections. (a) The Company may, upon irrevocable written notice to the Agent in accordance with subsection 2.04(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 $3,000,000, or that is in an integral multiple of $1,000,000 in excess thereof) into Loans of any other Type (except that Same Day Rate Loans may not be converted); 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 $3,000,000, or that is in an integral multiple of $1,000,000 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, 20 27 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; (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 or Same Day Rate Loans, the Company has failed to select timely a new Interest Period to be applicable to such Offshore Rate Loans or has failed to agree with BofA on a new Same Day Rate and Interest Period applicable to such Same Day Rate Loans, as the case may be, or if any Default or Event of Default then exists, the Company shall be deemed to have elected to convert (i) such Offshore Rate Loans into Base Rate Loans, or (ii) such Same Day Rate Loans bearing interest at the Base Rate plus the Applicable Margin, effective 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 21 28 effect (excluding Interest Periods for Same Day Rate Loans). 2.05 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 Section, the Commitments may not be increased. 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. 2.06 Optional Prepayments. Subject to Section 3.04, the Company may at any time or from time to time ratably prepay Loans in whole or in part in minimum amounts of $3,000,000 or any multiple of $1,000,000 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 and Same Day 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 3.04. 2.07 Repayment. The Company (a) shall make principal payments of the Loans as set forth in Schedule 2.01 and (b) on the Revolving Termination Date repay the aggregate principal amount of Loans outstanding on such date. 2.08 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 the Offshore Rate, the Base Rate, or the Same Day Rate as the case may be (and subject to the Company's right to convert to other Types of Loans under Section 2.04), plus the Applicable Margin. (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 2.06 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, 22 29 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 the Applicable Margin then in effect for such Loans and, in the case of Obligations not subject to an Applicable Margin, at a rate per annum equal to the Base Rate plus 2%; provided, however, that, on and after the expiration of any Interest Period applicable to any Offshore Rate Loan or Same Day 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 2%. (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. 2.09 Fees. (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 October 23, 1995. (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 October 23, 1995 and agreed to by the Company. (c) Commitment Fees. (1) The Company shall pay to the Agent for the account of each Bank a commitment fee on the average daily unused portion of such Bank's Commitment (subject to Section 2.01(b)(1)(C)), 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, equal to the rate per annum as follows: (A) For the period from the date of this Agreement through the date which is two Business Days after the date on which the Agent first receives a Compliance Certificate pursuant to Section 6.02(b): 0.250% per annum; (B) Thereafter and for each period commencing on the date which is three Business Days after the date on which the Agent receives a Compliance Certificate pursuant to Section 6.02(b) (the "Current Compliance Certificate") 23 30 through the date which is two Business Days after the Agent receives the next such Compliance Certificate, if the Current Compliance Certificate shows the Company's Funded Debt/EBITDA Ratio is: Below 3.00 0.250% per annum 3.00 or above and below 4.00 0.375% per annum 4.00 or above 0.500% per annum (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 March 31, 1996 through the Revolving Termination Date, with the final payment to be made on the Revolving Termination Date; provided that, in connection with any reduction or termination of Commitments under Section 2.05, the accrued commitment fee calculated for the period ending on such date shall also be paid on the date of such reduction or termination, with the following quarterly payment being calculated on the basis of the period from such 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 IV 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 Reference 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 24 31 payment in like funds as received. Any payment received by the Agent 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. 25 32 (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. 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, however, 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 10.10) 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. ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 3.01 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 26 33 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. (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. 3.02 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. 27 34 (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 3.04, 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. 3.03 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, 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 28 35 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. 3.04 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 or Same Day 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 2.06; (d) the prepayment or other payment (including after acceleration thereof) of an Offshore Rate Loan or a Same Day Rate Loan on a day that is not the last day of the relevant Interest Period; or (e) the automatic conversion under Section 2.04 of any Offshore Rate Loan or Same Day Rate Loan 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 Same Day 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 3.03(a), (i) 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 eurodollar market for a comparable amount and for a comparable period, whether or not such Offshore Rate Loan is in fact so funded, and (ii) each Same Day Rate Loan (and each related reserve, special deposit or similar requirement) shall be conclusively deemed to have been funded at the rate used in determining the Same Day Rate for such Same Day Rate Loan, whether or not such Same Day Rate Loan is in fact so funded. 3.05 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 29 36 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. 3.06 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. 3.07 Survival. The agreements and obligations of the Company in this Article III shall survive the payment of all other Obligations. ARTICLE IV CONDITIONS PRECEDENT 4.01 Conditions of Initial Loans Etc. The obligation of each Bank to make its initial Loan hereunder 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. (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 30 37 (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 Manwell & Milton, counsel to the Company and addressed to the Agent and the Banks, substantially in the form of Exhibit D; (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 10.04; (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 sums due unpaid (including but not limited to principal, interest, 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; (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 V 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 September 30, 1995 no event or circumstance that has resulted or could reasonably be expected to result in a Material Adverse Effect; and (g) Other Documents. Such other approvals, opinions, 31 38 documents or materials as the Agent or any Bank may reasonably request. 4.02 Conditions to All Borrowings. The obligation of each Bank to make any Loan to be made by it (including its initial Loan) 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 or Conversion/Continuation Date: (a) Notice of Borrowing or Conversion/Continuation. The Agent shall have received a Notice of Borrowing or a Notice of Conversion/Continuation, as applicable; (b) Continuation of Representations and Warranties. The representations and warranties in Article V shall be true and correct on and as of such Borrowing Date or Conversion/Continuation Date with the same effect as if made on and as of such Borrowing 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 shall exist or shall result from such Borrowing or continuation or conversion. Each Notice of Borrowing 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 or Conversion/Continuation Date, as applicable, that the conditions in this Section 4.02 are satisfied. ARTICLE V REPRESENTATIONS AND WARRANTIES The Company represents and warrants to the Agent and each Bank that: 5.01 Corporate Existence and Power. The Company and each of its Subsidiaries, other than Dreyer's International, Inc.: (a) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; (b) has the power and authority and all governmental licenses, authorizations, consents and approvals to own its assets, carry on its business and to execute, deliver, and perform its obligations under the Loan Documents; (c) is duly qualified as a foreign corporation and is 32 39 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. 5.02 Corporate Authorization; No Contravention. The execution, delivery and performance by the Company of this Agreement and each other Loan Document to which the Company is party, have been duly authorized by all necessary corporate action, and do not and will not: (a) contravene the terms of any of the Company's Organization Documents; (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 the Company is a party or any order, injunction, writ or decree of any Governmental Authority to which the Company or its property is subject; or (c) violate any Requirement of Law. 5.03 Governmental Authorization. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Company or any of its Subsidiaries of the Agreement or any other Loan Document. 5.04 Binding Effect. This Agreement and each other Loan Document to which the Company is a party constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective 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. 5.05 Litigation. There are no actions, suits, proceedings, claims or disputes pending, or to the best knowledge of the Company, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, against the Company, or its Subsidiaries or any of their respective properties which: (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 the Company or its Subsidiaries, 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 33 40 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. 5.06 No Default. No Default or Event of Default exists or would result from the incurring of any Obligations by the Company. As of the Closing Date, neither the Company nor any 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 Closing Date, create an Event of Default under subsection 8.01(e). 5.07 ERISA Compliance. Except as specifically disclosed in Schedule 5.07: (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 the Company, nothing has occurred which would cause the loss of such qualification. The Company and each ERISA Affiliate has 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 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 the Company 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 the Company 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 the Company nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA. 5.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to be used solely for the purposes set forth in and 34 41 permitted by Section 6.12 and Section 7.07. Neither the Company nor any 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. 5.09 Title to Properties. The Company 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 Closing Date, the property of the Company and its Subsidiaries is subject to no Liens, other than Permitted Liens. 5.10 Taxes. The Company 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 the Company or any Subsidiary that would, if made, have a Material Adverse Effect. 5.11 Financial Condition. (a) The unaudited consolidated financial statements of the Company and its Subsidiaries dated September 30, 1995, and the related consolidated statements of income or operations, shareholders' equity and cash flows for the fiscal period ended on that date: (1) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, subject to ordinary, good faith year end audit adjustments; (2) fairly present the financial condition of the Company and its Subsidiaries as of the date thereof and results of operations for the period covered thereby; and (3) except as specifically disclosed in Schedule 5.11, 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. (b) Since September 30, 1995 there has been no Material Adverse Effect. 5.12 Environmental Matters. Except where non-compliance is not reasonably likely to have a Material Adverse Effect, the Company 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 the Company, threatened against the Company or any Subsidiary. 35 42 5.13 Regulated Entities. None of the Company, any Person controlling the Company, or any Subsidiary, is an "Investment Company" within the meaning of the Investment Company Act of 1940. The Company is not 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. 5.14 No Burdensome Restrictions. Neither the Company 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. 5.15 Labor Relations. There are no strikes, lockouts or other labor disputes against the Company or any of its Subsidiaries, or, to the best of the Company's knowledge, threatened against or affecting the Company or any of its Subsidiaries and, except as specifically disclosed in Schedule 5.15, no significant unfair labor practice complaint is pending against the Company or any of its Subsidiaries or, to the best knowledge of the Company, threatened against any of them before any Governmental Authority. 5.16 Copyrights, Patents, Trademarks and Licenses, etc. The Company or 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, authorizations 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 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 the Company 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 the Company, proposed, which, in either case, could reasonably be expected to have a Material Adverse Effect. 5.17 Subsidiaries. The Company has no Subsidiaries other than those specifically disclosed in part (a) of Schedule 5.17 hereto and has no equity investments in any other corporation or entity other than those specifically disclosed in part (b) of Schedule 5.17. 5.18 Insurance. The Company has 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 the Company and its Subsidiaries are, consistent with its self-insurance program, insured with financially sound and reputable insurance companies not Affiliates of the Company, in such amounts, with such 36 43 deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Company or such Subsidiary operates. 5.19 Full Disclosure. None of the representations or warranties made by the Company or any 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 the Company or any 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. 5.20 Disclosure re Margin Stock. On the Closing Date, the Company owns no Margin Stock. ARTICLE VI AFFIRMATIVE COVENANTS So long as any Bank shall have any Commitment hereunder, or any Loan or other Obligation shall remain unpaid or unsatisfied, unless the Majority Banks waive compliance in writing: 6.01 Financial Statements. The Company shall deliver to the Agent, in form and detail satisfactory to the Agent and the Majority Banks, with sufficient copies for each Bank: (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 the Company 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 Price Waterhouse 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. Such opinion shall not be qualified or limited because of a restricted or limited examination by the Independent Auditor of any material portion of the Company'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 the Company 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 37 44 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 the Company and the Subsidiaries; 6.02 Certificates; Other Information. The Company shall furnish to the Agent, with sufficient copies for each Bank: (a) concurrently with the delivery of the financial statements referred to in subsection 6.01(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 6.01(a) and (b), a Compliance Certificate executed by a Responsible Officer; (c) promptly, copies of all financial statements and reports that the Company 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 the Company 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 the Company or any Subsidiary as the Agent, at the request of any Bank, may from time to time request. 6.03 Notices. The Company 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; (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 the Company or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Company or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Company or any Subsidiary; including pursuant to any applicable Environmental Laws; (c) of the occurrence of any of the following events affecting the Company 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 the Company or any ERISA Affiliate with respect to such event: 38 45 (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 the Company 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 the Company or any of its consolidated Subsidiaries; (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 the Company or any of its Subsidiaries 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 the Company or any affected Subsidiary proposes to take with respect thereto and at what time. Each notice under subsection 6.03(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. 6.04 Preservation of Corporate Existence, Etc. The Company shall, and shall cause each Subsidiary to: (a) preserve and maintain in full force and effect its corporate existence and good standing under the laws of its state or jurisdiction of incorporation; (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 except in connection with transactions permitted by Section 7.03 and sales of assets permitted by Section 7.02; (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, the non-preservation of which could reasonably be expected to have a Material Adverse Effect. 6.05 Maintenance of Property. The Company shall maintain, 39 46 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. 6.06 Insurance. The Company shall maintain (in accordance with its self-insurance program), and shall cause each Subsidiary to maintain (in accordance with the Company'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. 6.07 Payment of Obligations. The Company 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 the Company 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. 6.08 Compliance with Laws. The Company shall comply, and shall cause each Subsidiary to comply, 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. 6.09 Compliance with ERISA. The Company 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. 6.10 Inspection of Property and Books and Records. The 40 47 Company shall maintain 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 the Company and such Subsidiary. The Company 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 the Company and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Company; provided, however, when an Event of Default exists the Agent or any Bank may do any of the foregoing at the expense of the Company at any time during normal business hours and without advance notice. 6.11 Environmental Laws. The Company shall, and shall cause each Subsidiary to, conduct its operations and keep and maintain its property in compliance with all Environmental Laws. 6.12 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 and 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 the Company or any Affiliate of the Company. The Arranger is a registered broker-dealer and 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. 6.13 Senior Notes. The Company shall place $50,000,000 in Senior Notes with a maturity of not less than five years, and with terms and conditions acceptable to the Majority Banks, on or before February 28, 1996; this date may be extended to March 31, 1996 by the Majority Banks if the Majority Banks are satisfied (in their sole discretion) that such Senior Notes will be placed on or before March 31, 1996. 41 48 6.14 Cooperation. The Company shall perform, on request of the Agent or the Majority Banks and at the Company's expense, such acts as may be necessary or advisable to otherwise carry out the intent of this Agreement. ARTICLE VII NEGATIVE COVENANTS So long as any Bank shall have any Commitment hereunder, or any Loan or other Obligation shall remain unpaid or unsatisfied, unless the Majority Banks waive compliance in writing: 7.01 Limitation on Liens. The Company 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 the Company or any Subsidiary on the Closing Date and set forth in Schedule 7.01 securing Indebtedness outstanding on such date and any Lien associated with operating leases of the Company and any Subsidiary existing as of the Closing 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 6.07, 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; (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 the Company or its 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 all such Liens in the aggregate would not (even if enforced) cause a Material Adverse Effect; 42 49 (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 the Company 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 the Company and its Subsidiaries; (i) Liens on assets of corporations which become Subsidiaries after the date of this Agreement, provided, however, 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 the Company or its Subsidiaries 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 $10,000,000; (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 the Company in excess of those set forth by regulations promulgated by the FRB, and (ii) such deposit account is not intended by the Company or any Subsidiary to provide collateral to the depository institution; and (m) Liens arising solely by reason of the Truck Lease Program. 7.02 Disposition of Assets. The Company 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 43 50 property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, 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 sale by the Company or any Subsidiary of trucks pursuant to the Truck Lease Program; and (e) the lease, by the Company, of its real and personal property which is not needed by the Company for its current business operations, for fair market value; (f) 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 the Company and its Subsidiaries, together, shall not exceed in any fiscal year $5,000,000. 7.03 Consolidations and Mergers. The Company 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 the Company, provided that the Company shall be the continuing or surviving corporation, or with any one or more Subsidiaries, provided that if any transaction shall be between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the continuing or surviving corporation; and (b) any Subsidiary may sell all or substantially all of its assets (upon voluntary liquidation or otherwise), to the Company or another Wholly-Owned Subsidiary. 7.04 Loans and Investments. The Company shall not purchase or acquire, or suffer or permit any Subsidiary to purchase or acquire, or make any commitment therefor, any capital stock, equity interest, or any obligations or other securities of, or any interest in, any Person, or make or commit to make any 44 51 Acquisitions, or make or commit to make any advance, loan, extension of credit or capital contribution to or any other investment in, any Person including any Affiliate of the Company, except for: (a) investments by the Company or Subsidiary 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) extensions of credit by the Company to any of its Wholly-Owned Subsidiaries or by any of its Wholly-Owned Subsidiaries to another of its Wholly-Owned Subsidiaries; (d) investments (other than those permitted under subsections (a), (b), (c), (e), and (f) of this Section) subject to the following additional limitations: (1) the following amounts may be invested in Persons engaged in businesses substantially similar to the businesses currently engaged in by the Company and/or any of its Subsidiaries: (A) up to an aggregate amount of $50,000,000 prior to the first anniversary of this Agreement; and (B) up to an aggregate amount of $60,000,000 (including investments made prior to the first anniversary of this Agreement) during the term of this Agreement; (2) up to an aggregate amount of $15,000,000 may be invested in Persons engaged in businesses not covered by clause (1) of this subsection; and (3) the aggregate amount of investments under clauses (1) and (2) of this subsection may not exceed $60,000,000 during the term of this Agreement; (e) investments acquired in exchange for stock of the Company; and (f) investments existing as of the Closing Date as set forth in Schedule 7.04. 7.05 Limitation on Indebtedness. The Company 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 45 52 borrowing of money) incurred in the Ordinary Course of Business of the Company 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 7.08; (d) Indebtedness existing on the Closing Date and set forth in Schedule 7.05; (e) Indebtedness secured by Liens permitted by subsections 7.01(i) and (j) in an aggregate amount outstanding not to exceed $20,000,000; (f) Indebtedness incurred in connection with leases permitted pursuant to Section 7.10; and (g) The Senior Notes required under Section 6.13. 7.06 Transactions with Affiliates. The Company shall not, and shall not suffer or permit any Subsidiary to, enter into any transaction with any Affiliate of the Company, except upon fair and reasonable terms no less favorable to the Company or such Subsidiary than would obtain in a comparable arm's-length transaction with a Person not an Affiliate of the Company or such Subsidiary. 7.07 Use of Proceeds. The Company shall not, and shall not suffer or permit any Subsidiary to, use any portion of the Loan proceeds, directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise refinance indebtedness of the Company or others 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. 7.08 Contingent Obligations. The Company 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 the Company and its Subsidiaries existing as of the Closing Date and listed in Schedule 7.08; and (c) Guaranty Obligations in respect of Indebtedness of a Subsidiary which is permitted under this Agreement; (d) The 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 46 53 to an aggregate amount of $10,000,000; and the Company's Guaranty Obligations, if any, 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; and (e) In addition to that permitted under the preceding subsections, Guaranty Obligations covering up to $5,000,000 principal of primary obligations. 7.09 Joint Ventures. Except for investments in a Joint Venture permitted under Section 7.04, the Company shall not, and shall not suffer or permit any Subsidiary to, enter into any Joint Venture, other than in the ordinary course of business. 7.10 Lease Obligations. The Company 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 the Company and of Subsidiaries in existence on the Closing Date and any renewal, extension or refinancing thereof; (b) leases entered into by the Company or any of its Subsidiaries pursuant to the Truck Lease Program; (c) leases entered into by Grand Soft Capital Company and Grand Soft Equipment Company pursuant to the Grand Soft Program; (d) operating leases other than those permitted under other subsections of this Section entered into by the Company or any of its Subsidiaries after the Closing Date in the ordinary course of business as conducted as of the Closing 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 $10,000,000; (e) leases other than those permitted under other subsections of this Section entered into by the Company or any of its Subsidiaries after the Closing Date, provided, that: (1) immediately prior to giving effect to such lease, the Property subject to such lease was sold by the Company or any such Subsidiary to the lessor pursuant to a transaction permitted under Section 7.02; (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 such leases (without discounting to present value and without regard to any options to extend) does not exceed $5,000,000. 47 54 (f) capital leases other than those permitted under other subsections of this Section, entered into by the Company or any of its Subsidiaries after the Closing Date to finance the acquisition of equipment; provided that the aggregate for all such capital leases included in the Company's most current consolidated balance sheet furnished to the Agent pursuant to Section 6.01 to the Agent shall not exceed $15,000,000. 7.11 Restricted Payments. The Company 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 the Company and any Wholly-Owned Subsidiary may: (a) declare and make dividend payments or other distributions to: (1) its common stockholders, payable in cash or in its common stock; and (2) its preferred stockholders, up to an annual aggregate amount of $4,600,000 payable in cash or in its common stock. The amount by which $4,600,000 exceeds the aggregate dividend payments and other distributions made in any fiscal year (commencing with 1996) to preferred stockholders may be added, on a cumulative basis, to the amount available for dividend payments to preferred stockholders in subsequent fiscal years; (b) 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; (c) with respect to the Company: (1) convert all or part of its Series B Preferred Stock into its (y) Series A Preferred Stock or (z) common stock; (2) convert all or part of its Series A Preferred Stock into its common stock; (3) redeem its Series B Preferred Stock for cash so long as such redemption is a mandatory redemption; (d) purchase shares of its common stock pursuant to: (1) the Company's "Employee Secured Stock Purchase Plan (1990)" and the Company's "Section 423 Employee Stock Purchase Plan (1990)" both as in effect on 48 55 the Closing Date and as amended to comply with applicable tax, securities, or other laws, and (2) the Company's "Stock Option Plan (1992)", the Company's "Incentive Stock Option Plan (1982)", and the Company's "Stock Option Plan (1993)", all as in effect on the Closing Date and as amended to comply with applicable tax, securities, or other laws or to increase the number of shares authorized to be issued under such plans as approved by the stockholders of the Company. 7.12 ERISA. The Company 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 the Company 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. 7.13 Consolidated Net Worth. The Company shall not permit its Consolidated Net Worth at any time during any fiscal quarter to be less than the sum of (i) $175,000,000; plus (ii) 75% of the Company's consolidated net income for each fiscal quarter beginning with the first fiscal quarter of 1996 (with no deduction for losses); plus (iii) 100% of Net Issuance Proceeds of any stock offerings or subordinated debt incurred since December 31, 1995. 7.14 Minimum Fixed Charge Coverage Ratio. (a) The Company shall not permit its Fixed Charge Coverage Ratio:
================================================================================ For the period consisting of the four consecutive fiscal quarters To be less than: ending on the last day of its: - -------------------------------------------------------------------------------- 1.55 fourth fiscal quarter of 1995 - -------------------------------------------------------------------------------- 1.65 first and second fiscal quarters of 1996 - -------------------------------------------------------------------------------- 1.75 third fiscal quarter of 1996 - -------------------------------------------------------------------------------- 2.00 fourth fiscal quarter of 1996 and each of the first three fiscal quarters of 1997 - -------------------------------------------------------------------------------- 2.50 fourth fiscal quarter of 1997 and each fiscal quarter thereafter ================================================================================
(b) For purposes of this Section, Fixed Charge Coverage Ratio means the ratio of "A" to "B" where: 49 56 "A" means the sum of earnings before taxes plus current operating lease expenses plus interest expense; and "B" means interest expense plus current operating lease expense; in all cases computed on a consolidated basis and measured at the end of the relevant fiscal quarter for the four successive fiscal quarters ending on the last day of such fiscal quarter. 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; and (6) 3.00 for 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:
================================================================================ Fiscal quarter each year after 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 ================================================================================
7.16 Change in Business. The Company 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 the Company and its Subsidiaries on the date hereof. 7.17 Accounting Changes. The Company 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 the fiscal year of the Company or of any Subsidiary. 50 57 7.18 Other Contracts. The Company 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. ARTICLE VIII EVENTS OF DEFAULT 8.01 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 (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 the Company or any Subsidiary made or deemed made herein, in any other Loan Document, or which is contained in any certificate, document or financial or other statement by the Company, any Subsidiary, or any Responsible Officer, furnished at any time under this Agreement, or in or under any other Loan Document, is incorrect in any material respect on or as of the date made or deemed made; or (c) Specific Defaults. The Company fails to perform or observe any term, covenant or agreement contained in any of Sections 6.03, 6.10, or 6.13 or in Article VII other than Sections 7.01, 7.05, 7.06, 7.12, 7.16, 7.17, or 7.18; or (d) Other Defaults. The Company fails to perform or observe: (1) any term, covenant or agreement contained in any of Sections 6.01, 6.02, 7.01, or 7.05 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. The Company 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 51 58 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. The Company or any Material 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 the Company or any Material Subsidiary, or any writ, judgment, warrant of attachment, execution or similar process, is issued or levied against a substantial part of the Company's or any Material Subsidiary's properties, 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) the Company or any Material Subsidiary admits the material allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) the Company or any Material 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 (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 the Company under Title IV of ERISA to the Pension Plan, 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) the Company 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 52 59 (i) Monetary Judgments. One or more non-interlocutory judgments, non-interlocutory orders, decrees or arbitration awards is entered against the Company 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 the Company's 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 the Company or any Subsidiary which does 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) Any person acquires beneficial ownership of 40% or more of the combined voting power of the Company's outstanding securities immediately after such acquisition (which 40% shall be calculated after including the dilutive effect of the conversion or exchange of any outstanding securities of the Company convertible into or exchangeable for voting securities), (ii) a change occurs in the composition of majority membership of the Company's Board of Directors over any two year period, (iii) a change of ownership of the Company such that the Company becomes subject to the delisting of its common stock from the NASDAQ National Market System, (iv) the Company's Board of Directors approves the sale of all or substantially all of the assets of the Company, or (v) the Company's Board of Directors approves any merger, consolidation, issuance of securities, or purchase of assets, the result of which would be the occurrence of any event described in clause (i), (ii), or (iii) of this subsection. Notwithstanding anything to the contrary in this subsection, acquisitions by any person (or any group of which such a person is a member) who as of the date of this Agreement is a member of the Board of Directors of the Company, of beneficial ownership of 40% or more of the combined voting power of the Company's outstanding securities immediately after such acquisition (calculation of such 40% being made as described above) shall not be deemed subject to this subsection; (l) Loss of Licenses. Any Governmental Authority revokes or fails to renew any material license, permit or franchise of the Company or any Subsidiary, or the Company or any Subsidiary for any reason loses any material license, permit or franchise, or the Company 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 Majority Banks, (1) will 53 60 adversely affect the ability of the Company to perform 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 of any Loan Document; or (n) Invalidity of Subordination Provisions. The subordination provisions of any agreement or instrument governing any subordinated debt is 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 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. 8.02 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 to be terminated, whereupon such commitments shall be terminated; (b) 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 the Company; and (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, however, that upon the occurrence of any event specified in subsection (f) or (g) of Section 8.01 (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 shall automatically terminate and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable without further act of the Agent or any Bank. 8.03 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 IX THE AGENT 9.01 Appointment and Authorization. Each Bank hereby irrevocably (subject to Section 9.09) appoints, designates and 54 61 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. 9.02 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 Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects with reasonable care. 9.03 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 the Company or any Subsidiary or Affiliate of the Company, 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 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 the Company or any of the Company's Subsidiaries or Affiliates. For purposes of this Section, "Affiliates" of the Company include the entities mentioned in the last sentence of the definition of "Affiliates". 9.04 Reliance by Agent. (a) The Agent shall be entitled to rely, and shall be fully protected in relying, upon any 55 62 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 the Company), 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 4.01, 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. 9.05 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 or the Company referring to this Agreement, describing such Default or Event of Default and stating that such 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, however, 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. 9.06 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 the Company 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 56 63 of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Company 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 and its Subsidiaries 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 the Company. 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 the Company which may come into the possession of any of the Agent-Related Persons. 9.07 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, however, 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 hereunder and the resignation or replacement of the Agent. 9.08 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 the Company and its Subsidiaries and Affiliates as though BofA were not the Agent 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 the Company or its Affiliates (including information that may be subject to 57 64 confidentiality obligations in favor of the Company or such Subsidiary) 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, and the terms "Bank" and "Banks" include BofA in its individual capacity. For purposes of this Section, "Affiliates" of the Company include the entities mentioned in the last sentence of the definition of "Affiliates". 9.09 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. 9.10 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 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 58 65 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 subsection shall survive the payment of all Obligations and the resignation or replacement of the Agent. 59 66 9.11 Co-Agent. The Bank identified on the facing page or signature pages of this Agreement as a "co-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 Bank so identified as a "co-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 Bank so identified in deciding to enter into this Agreement or in taking or not taking action hereunder. ARTICLE X MISCELLANEOUS 10.01 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 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 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, however, that no such waiver, amendment, or consent shall, unless in writing and signed by all the Banks 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 8.02); (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; or (e) amend this Section, or Section 2.13, or any provision herein providing for consent or other action by all Banks; and, provided further, that (i) 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 (ii) the Fee Letter may be amended, or 60 67 rights or privileges thereunder waived, in a writing executed by the parties thereto. 10.02 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 the Company by facsimile (i) shall be immediately confirmed by a telephone call to the recipient at the number specified on Schedule 10.02, 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 10.02; or, as directed to 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 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 Article II or IX to the Agent shall not be effective until actually received by the Agent. (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 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 the Company to give such notice and the Agent and the Banks shall not have any liability to 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. 10.03 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. 10.04 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) and the Arranger within five Business Days 61 68 after demand (subject to subsection 4.01(d)) for all costs and expenses incurred by BofA (including in its capacity as Agent) 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) 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 4.01(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). 10.05 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, 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 relating 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 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. 10.06 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 62 69 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. 10.07 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 the Company may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agent and each Bank. 10.08 Assignments, Participations, etc. (a) Any Bank may, with the written consent of the Company (which consent of the Company shall not be unreasonably withheld) at all times other than during the existence of an Event of Default and the Agent at any time, assign and delegate to one or more Eligible Assignees (provided that no written consent of the Company or the Agent 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 and the other rights and obligations of such Bank hereunder, in a minimum amount of $10,000,000; provided, however, 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 an Assignment and Acceptance in the form of Exhibit E ("Assignment and Acceptance"); and (iii) the assignor Bank or Assignee has paid to the Agent a processing fee in the amount of $3,000 (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) 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 63 70 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, however, 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 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 10.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 3.01, 3.03 and 10.05 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 U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. 10.09 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 the Company and provided to it by the Company or any Subsidiary, or 64 71 by the Agent on such Company's or Subsidiary's behalf, 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 the Company 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 the Bank, or (ii) was or becomes available on a non-confidential basis from a source other than the Company, provided that such source is not bound by a confidentiality agreement with the Company known to the Bank; provided, however, 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 Affiliate, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Company or any Subsidiary is party or is deemed party with such Bank or such Affiliate; and (I) to its Affiliates. 10.10 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, however, that the failure to give such notice shall not affect the validity of such set-off and application. 10.11 Notification of Addresses, Lending Offices, Etc. Each Bank shall notify the Agent in writing of any changes in the address to which notices to the Bank should be directed, of addresses of any Lending Office, of payment instructions in respect of all payments to be made to it hereunder and of such 65 72 other administrative information as the Agent shall reasonably request. 10.12 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. 10.13 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. 10.14 No Third Parties Benefitted. This Agreement is made and entered into for the sole protection and legal benefit of 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. 10.15 Commitment Letter. This is the Credit Agreement referred to in the October 23, 1995 letter (and accompanying term sheet) to the Company from the Arranger and BofA (the "Commitment Letter") and contains the terms and conditions relating to the credit facility described in the Commitment Letter. These terms and conditions are modified, as set forth in this Agreement. The terms and conditions of the October 23, 1995 Fee Letter remain in full force and effect and are not amended or modified by this Agreement. 10.16 Termination of Commitments to Lend Under the Prior Credit Agreement. The Company and each of the Banks party to the Prior Credit Agreement agree that: (a) the commitment of each of such Banks to extend credit under the Prior Credit Agreement terminates upon execution of this Agreement without necessity of further act of the parties; and (b) principal, interest, and fees due under the Prior Credit are immediately due and payable upon execution of this Agreement and all sums due under Section 3.04 of the Prior Credit Agreement by reason of payment of such items shall be due and payable on demand. 10.17 Governing Law and Jurisdiction. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; 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 66 73 NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF 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. 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. 10.18 Waiver of Jury Trial. 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 PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered in San Francisco, California by their proper and duly authorized officers as of the day and year first above written. DREYER'S GRAND ICE CREAM, INC. By: /s/ William C. Collett --------------------------- Name: William C. Collett ------------------------- Title: Treasurer ------------------------ 67 74 BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent By: /s/ Christine Corti --------------------------- Name: Christine Corti ------------------------- Title: Vice President 68 75 ABN AMRO BANK N.V., as Co-Agent By: /s/ Gina M. Brusatori ---------------------------- Name: Gina M. Brusatori -------------------------- Title: Vice President ------------------------- By: /s/ R. Clay Jackson ---------------------------- Name: R. Clay Jackson -------------------------- Title: Senior Vice President ------------------------- 69 76 BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as a Bank By: /s/ Michael J. Dasher ------------------------------- Name: Michael J. Dasher ----------------------------- Title: Vice President ---------------------------- 70 77 ABN AMRO BANK N.V., as a Bank By: /s/ Gina M. Brusatori ---------------------------- Name: Gina M. Brusatori -------------------------- Title: Vice President ------------------------- By: /s/ R. Clay Jackson ---------------------------- Name: R. Clay Jackson -------------------------- Title: Senior Vice President ------------------------- 71 78 CREDIT SUISSE By: /s/ David J. Worthington ------------------------------- Name: David J. Worthington ----------------------------- Title: Member of Senior Management ---------------------------- By: /s/ Marilou Palenzuela ------------------------------- Name: Marilou Palenzuela ----------------------------- Title: Member of Senior Management ---------------------------- 72 79 THE BANK OF CALIFORNIA, N.A. By: /s/ Wanda Headrick ------------------------- Name: Wanda Headrick ----------------------- Title: Vice President ---------------------- By: ------------------------- Name: ----------------------- Title: ---------------------- 73 80 EXHIBIT A DREYER'S GRAND ICE CREAM, INC. COMPLIANCE CERTIFICATE Financial Statement Date:___________, 199_ Reference is made to that certain Credit Agreement dated as of December 22, 1995, (as extended, renewed, amended or restated from time to time, the "Agreement") among Dreyer's Grand Ice Cream, Inc., a Delaware corporation (the "Company"), the several financial institutions from time to time parties to the Credit Agreement (the "Banks"), Bank of America National Trust and Savings Association, as agent for the Banks (in such capacity, the "Agent"), and ABN-AMRO Bank N.V., San Francisco International Branch as Co-Agent. Unless otherwise defined herein, capitalized terms used herein have the respective meanings assigned to them in the Agreement. The undersigned Responsible Officer of the Company, hereby certifies as of the date hereof that he/she is the _____________ of the Company, and that, as such, he/she is authorized to execute and deliver this Certificate to the Banks and the Agent on the behalf of the Company and its consolidated Subsidiaries, and that: [Use the following paragraph if this Certificate is delivered in connection with the financial statements required by subsection 6.01(a) of the Agreement.] 1. Attached as Schedule 1 hereto are (a) a true and correct copy of the audited consolidated balance sheet of the Company and its consolidated 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 Company's or any Subsidiary's records. OR [Use the following paragraph if this Certificate is delivered in A-1 81 connection with the financial statements required by subsection 6.01(b) of the Agreement.] 1. Attached as Schedule 1 hereto are (a) a true and correct copy of the unaudited consolidated balance sheet of the Company and its consolidated 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 the Company and its consolidated Subsidiaries. 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 the Company during the accounting period covered by the attached financial statements. 3. To the best of the undersigned's knowledge, the Company, during such period, has observed, performed or satisfied all of its covenants and other agreements, and satisfied every condition in the Agreement to be observed, performed or satisfied by the Company, and the undersigned has no knowledge of any Default or Event of Default. 4. The following 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___________________,_____. DREYER'S GRAND ICE CREAM, INC. By: --------------------------- Name: Title: A-2 82 Date: ------------------------------------- For the fiscal quarter ended ------------------------------------- Schedule 2 to the Compliance Certificate Financial Covenant Analyses and Information "7.01 Limitation on Liens. The Company 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"): "(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 the Company and its Subsidiaries do not exceed $5,000,000;"
ACTUAL PERMITTED - -------------------------------------------------------------------------------- AGGREGATE PRINCIPAL AMOUNT SECURED BY JUDGMENT AND JUDICIAL ATTACHMENT LIENS UNDER SECTION 7.01(g) $ $5,000,000 ----------------
2-1 83 "(i) Liens on assets of corporations which become Subsidiaries after the date of this Agreement, provided, however, 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;"
ACTUAL PERMITTED - ---------------------------------------------------------------------------------- AGGREGATE PRINCIPAL AMOUNT SECURED BY LIENS ON ASSETS OF CORPORATIONS WHICH BECAME SUBSIDIARIES AFTER THE DATE OF THE CREDIT $ $10,000,000 AGREEMENT --------------------
2-2 84 "(j) purchase money security interests on any property acquired or held by the Company or its Subsidiaries 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 $10,000,000;"
ACTUAL PERMITTED - -------------------------------------------------------------------------------------- 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 $ $10,000,000 --------------------
2-3 provided 85 "7.02 Disposition of Assets. The Company 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) or enter into any agreement to do any of the foregoing, except: "(f) 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 the Company and its Subsidiaries, together, shall not exceed in any fiscal year $5,000,000."
ACTUAL PERMITTED - ------------------------------------------------------------------------------------ DISPOSITION OF ASSETS COVERED BY SECTION 7.02(f) DURING THE FISCAL YEAR ENDING WITH THE PERIOD COVERED BY THIS COMPLIANCE CERTIFICATE $ $5,000,000 --------------------
2-4 86 "7.04 Loans and Investments. The Company shall not purchase or acquire, or suffer or permit any Subsidiary to purchase or acquire, or make any commitment therefor, any capital stock, equity interest, or any obligations or other securities of, or any interest in, any Person, or make or commit to make any Acquisitions, or make or commit to make any advance, loan, extension of credit or capital contribution to or any other investment in, any Person including any Affiliate of the Company, except for: "(d) investments (other than those permitted under subsections (a), (b), (c), (e), and (f) of this Section) subject to the following additional limitations: "(1) the following amounts may be invested in Persons engaged in businesses substantially similar to the businesses currently engaged in by the Company and/or any of its Subsidiaries: "(A) up to an aggregate amount of $50,000,000 prior to the first anniversary of this Agreement; and "(B) up to an aggregate amount of $60,000,000 (including investments made prior to the first anniversary of this Agreement) during the term of this Agreement; "(2) up to an aggregate amount of $15,000,000 may be invested in Persons engaged in businesses not covered by clause (1) of this subsection; and "(3) the aggregate amount of investments under clauses (1) and (2) of this subsection may not exceed $60,000,000 during the term of this Agreement;" 2-5 87
FROM THE DATE OF THE CREDIT AGREEMENT THROUGH THE LAST DAY OF THE FISCAL QUARTER COVERED BY THIS COMPLIANCE CERTIFICATE: ACTUAL PERMITTED - -------------------------------------------------------------------------------------------------------- (1) INVESTMENTS UNDER CLAUSE (1)(A) OF SECTION 7.04(d) $ ----------------- $50,000,000 - -------------------------------------------------------------------------------------------------------- $50,000,000 PRIOR TO THE FIRST ANNIVERSARY OF THE CREDIT AGREEMENT, THEREAFTER A CUMULATIVE AGGREGATE OF $60,000,000 FOR THE TERM OF THE CREDIT AGREEMENT (INCLUDING INVESTMENTS DURING (2) INVESTMENTS UNDER CLAUSE THE FIRST YEAR OF THE CREDIT (1)(B) OF SECTION 7.04(d) $ AGREEMENT), BUT SUBJECT TO ----------------- LIMIT IN SECTION 7.04(d)(3) - -------------------------------------------------------------------------------------------------------- (3) INVESTMENTS UNDER CLAUSE (2) $ UP TO $15,000,000 BUT OF SECTION 7.04(d) ----------------- SUBJECT TO LIMIT IN SECTION 7.04(d)(3) - -------------------------------------------------------------------------------------------------------- $50,000,000 PRIOR TO THE FIRST ANNIVERSARY OF THE CREDIT AGREEMENT, THEREAFTER A CUMULATIVE AGGREGATE OF $60,000,000 FOR THE TERM OF THE CREDIT AGREEMENT (INCLUDING INVESTMENTS DURING SUM OF (1) PLUS (2) PLUS (3) $ THE FIRST YEAR OF THE CREDIT ----------------- AGREEMENT)
2-6 88 "7.05 Limitation on Indebtedness. The Company 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: "(e) Indebtedness secured by Liens permitted by subsections 7.01(i) and (j) in an aggregate amount outstanding not to exceed $20,000,000;"
ACTUAL PERMITTED - ------------------------------------------------------------------------------------------- ACTUAL INDEBTEDNESS INCURRED SUBJECT TO SECTION 7.05(e) FROM THE DATE OF THE CREDIT AGREEMENT THROUGH THE LAST DAY OF THE FISCAL QUARTER COVERED BY THIS COMPLIANCE CERTIFICATE $ $20,000,000 -------------------
2-7 89 "7.08 Contingent Obligations. The Company shall not, and shall not suffer or permit any Subsidiary to, create, incur, assume or suffer to exist any Contingent Obligations except: "(d) The 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 the Company's Guaranty Obligations, if any, 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; and"
ACTUAL PERMITTED - --------------------------------------------------------------------------------- (1) CONTINGENT OBLIGATIONS OF GRAND SOFT CAPITAL COMPANY AND GRAND SOFT EQUIPMENT $ $10,000,000 COMPANY COVERED BY SECTION 7.08(d) ----------------- - --------------------------------------------------------------------------------- (2) COMPANY'S GUARANTY OBLIGATIONS COVERED BY SECTION 7.08(d) $ $10,000,000 -----------------
2-8 90 "(e) In addition to that permitted under the preceding subsections, Guaranty Obligations covering up to $5,000,000 principal of primary obligations."
ACTUAL PERMITTED - ---------------------------------------------------------------------------------------------------- GUARANTY OBLIGATIONS COVERED BY SECTION 7.08(e) FROM THE DATE OF THE CREDIT AGREEMENT THROUGH THE LAST DAY OF THE FISCAL QUARTER COVERED BY THIS COMPLIANCE CERTIFICATE $ $5,000,000 -------------------
2-9 91 "7.10 Lease Obligations. The Company 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: "(d) operating leases other than those permitted under other subsections of this Section entered into by the Company or any of its Subsidiaries after the Closing Date in the ordinary course of business as conducted as of the Closing 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 $10,000,000;"
ACTUAL PERMITTED - ----------------------------------------------------------------------------------------------------------- AGGREGATE AMOUNT OF RENT AND OTHER CHARGES COVERED BY OPERATING LEASES COVERED BY SECTION 7.10(d) ENTERED INTO AFTER THE DATE OF THE CREDIT AGREEMENT AND THROUGH THE LAST DAY OF THE FISCAL QUARTER COVERED BY THIS COMPLIANCE CERTIFICATE (WITHOUT DISCOUNTING TO PRESENT VALUE AND WITHOUT REGARD TO ANY OPTIONS TO EXTEND) $ $10,000,000 ----------
2-10 92 "(e) leases other than those permitted under other subsections of this Section entered into by the Company or any of its Subsidiaries after the Closing Date, provided, that: "(1) immediately prior to giving effect to such lease, the Property subject to such lease was sold by the Company or any such Subsidiary to the lessor pursuant to a transaction permitted under Section 7.02; "(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 such leases (without discounting to present value and without regard to any options to extend) does not exceed $5,000,000."
ACTUAL PERMITTED - -------------------------------------------------------------------------------------------------------------- AGGREGATE AMOUNT OF RENT AND OTHER CHARGES TO BE PAID UNDER LEASES (WITHOUT DISCOUNTING TO PRESENT VALUE AND WITHOUT REGARD TO ANY OPTIONS TO EXTEND) COVERED BY SECTION 7.10(e) ENTERED INTO AFTER THE DATE OF THE CREDIT AGREEMENT AND THROUGH THE LAST DAY OF THE FISCAL QUARTER COVERED BY THIS COMPLIANCE CERTIFICATE $ $5,000,000 -------------------
2-11 93 "(f) capital leases other than those permitted under other subsections of this Section, entered into by the Company or any of its Subsidiaries after the Closing Date to finance the acquisition of equipment; provided that the aggregate for all such capital leases included in the Company's most current consolidated balance sheet furnished to the Agent pursuant to Section 6.01 to the Agent shall not exceed $15,000,000."
ACTUAL PERMITTED - -------------------------------------------------------------------------------------------- AGGREGATE FOR CAPITAL LEASES COVERED BY SECTION 7.10(f) AS OF THE LAST DAY OF THE FISCAL QUARTER COVERED BY THIS COMPLIANCE CERTIFICATE $ $15,000,000 -------------------
2-12 94 "7.11 Restricted Payments. The Company 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 the Company and any Wholly-Owned Subsidiary may: "(a) declare and make dividend payments or other distributions to: "(2) its preferred stock holders, up to an annual aggregate amount of $4,600,000 payable in cash or in its common stock. The amount by which $4,600,000 exceeds the aggregate dividend payments and other distributions made in any fiscal year (commencing with 1996) to preferred stock holders may be added, on a cumulative basis, to the amount available for dividend payments to preferred stock holders in subsequent fiscal years;"
ACTUAL PERMITTED - ------------------------------------------------------------------------------------- DIVIDEND PAYMENTS OR OTHER DISTRIBUTIONS MADE IN CASH OR $4,600,000 FOR FISCAL YEAR COMMON STOCK TO PREFERRED STOCK 1996; THE AMOUNT DETERMINED HOLDERS FOR THE YEAR ENDING ON THE AS SET FORTH BELOW FOR DATE OF THIS COMPLIANCE CERTIFICATE $ SUBSEQUENT FISCAL YEARS ----------
FOR ALL FISCAL YEARS AFTER FISCAL 1996: 1. $4,600,000 MINUS DIVIDEND PAYMENTS OR OTHER DISTRIBUTIONS TO PREFERRED STOCK HOLDERS IN FISCAL 1996: $________ (ADD TO $4,600,000 TO DETERMINE AMOUNT AVAILABLE FOR DIVIDEND PAYMENTS OR OTHER DISTRIBUTIONS TO PREFERRED STOCK HOLDERS IN FISCAL 1997. INSERT AMOUNT IN FIRST BLANK IN LINE 2.) 2. $_________ MINUS DIVIDEND PAYMENTS OR OTHER DISTRIBUTIONS TO PREFERRED STOCK HOLDERS IN FISCAL 1997: $________ (ADD TO $4,600,000 TO DETERMINE AMOUNT AVAILABLE FOR DIVIDEND PAYMENTS OR OTHER DISTRIBUTIONS TO PREFERRED STOCK HOLDERS IN FISCAL 1998. INSERT AMOUNT IN FIRST BLANK IN LINE 3.) 3. $_________ MINUS DIVIDEND PAYMENTS OR OTHER DISTRIBUTIONS TO PREFERRED STOCK HOLDERS IN FISCAL 1998: $_________ (ADD TO $4,600,000 TO DETERMINE AMOUNT AVAILABLE FOR DIVIDEND PAYMENTS OR OTHER DISTRIBUTIONS TO PREFERRED STOCK HOLDERS IN FISCAL 1999. INSERT AMOUNT IN FIRST BLANK IN LINE 4.) 2-13 95 "7.13 Consolidated Net Worth. The Company shall not permit its Consolidated Net Worth at any time during any fiscal quarter to be less than the sum of (i) $175,000,000; plus (ii) 75% of the Company's consolidated net income for each fiscal quarter beginning with the first fiscal quarter of 1996 (with no deduction for losses); plus (iii) 100% of Net Issuance Proceeds of any stock offerings or subordinated debt incurred since December 31, 1995. 1. (a) BASE AMOUNT $175,000,000 - -------------------------------------------------------------------------------------------- (b) 75% OF THE COMPANY'S CONSOLIDATED NET INCOME FOR EACH FISCAL QUARTER BEGINNING WITH FIRST QUARTER 1996 (WITH NO DEDUCTION FOR LOSSES) $ - -------------------------------------------------------------------------------------------- (c) 100% OF NET ISSUANCE PROCEEDS OF ANY STOCK OFFERINGS SINCE DECEMBER 31, 1995 $ - -------------------------------------------------------------------------------------------- (d) 100% OF NET ISSUANCE PROCEEDS OF SUBORDINATED DEBT INCURRED SINCE DECEMBER 31, 1995 $ - -------------------------------------------------------------------------------------------- 2. SUM OF 1(a), (b), (c) AND (d) OR REQUIRED CONSOLIDATED NET WORTH $ - -------------------------------------------------------------------------------------------- 3. ACTUAL CONSOLIDATED NET WORTH $
2-14 96 "7.14 Minimum Fixed Charge Coverage Ratio. (a) The Company shall not permit its Fixed Charge Coverage Ratio: For the period consisting of the four "To be less than: consecutive fiscal quarters ending on the last day of its: "1.55 fourth fiscal quarter of 1995 "1.65 first and second fiscal quarters of 1996 "1.75 third fiscal quarter of 1996 "2.00 fourth fiscal quarter of 1996 and each of the first three fiscal quarters of 1997 "2.50 fourth fiscal quarter of 1997 and each fiscal quarter thereafter "(b) For purposes of this Section, Fixed Charge Coverage Ratio means the ratio of "A" to "B" where: 'A' means the sum of earnings before taxes plus current operating lease expenses plus interest expense; and 'B' means interest expense plus current operating lease expense; "in all cases computed on a consolidated basis and measured at the end of the relevant fiscal quarter for the four successive fiscal quarters ending on the last day of such fiscal quarter."
A = - ------------------------------------------------- 1. EARNINGS BEFORE TAXES $ - ------------------------------------------------- 2. CURRENT OPERATING LEASE EXPENSES $ - ------------------------------------------------- 3. INTEREST EXPENSE $ - ------------------------------------------------- A = 1 + 2 + 3 $
2-15 97
B = ------------------------------------------------- 1. INTEREST EXPENSE $ ------------------------------------------------- 2. CURRENT OPERATING LEASE EXPENSES $ ------------------------------------------------- B = 1 + 2 $
RATIO OF A TO B =__________ REQUIRED RATIO AS SET FORTH IN SECTION 7.14(a): NOT LESS THAN________ 2-16 98 "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; and "(6) 3.00 for 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:
Fiscal quarter each year after 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. FUNDED DEBT $______ 2. MINUS AMOUNT AS DETERMINED ACCORDING TO THE TABLE IN SECTION 7.15(b): ______ 3. FUNDED DEBT FOR PURPOSES OF SECTION 7.15 (1 MINUS 2) $______ 4. EBITDA = ______ 5. RATIO OF FUNDED DEBT TO EBITDA = ______ 6. REQUIRED RATIOS AS SET FORTH IN SECTION 7.15(a): NOT LESS THAN ______ 2-17 99 EXHIBIT B NOTICE OF BORROWING Date:__________________, _____ To: Bank of America National Trust and Savings Association, as agent for the Banks (in such capacity, the "Agent") under that certain Credit Agreement dated as of December 22, 1995, (as extended, renewed, amended or restated from time to time, the "Agreement") among Dreyer's Grand Ice Cream, Inc., a Delaware corporation (the "Company"), the several financial institutions from time to time parties to the Credit Agreement (the "Banks"), Bank of America National Trust and Savings Association, as the Agent and ABN-AMRO Bank N.V., San Francisco International Branch as Co-Agent. Ladies and Gentlemen: The undersigned, Dreyer's Grand Ice Cream, Inc. (the "Company"), 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 _____________________, 19___. 2. The aggregate amount of the proposed Borrowing is $_________________________. 3. The Borrowing is to be comprised of $____________ of [Base Rate] [Offshore Rate] [Same Day Rate] Loans. 4. The duration of the Interest Period for the [Offshore Rate Loans] [Same Day Rate] included in the Borrowing shall be [_____ days] [_____ 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 V 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-1 100 (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. DREYER'S GRAND ICE CREAM, INC. By: --------------------------- Name: Title: By: --------------------------- Name: Title: B-2 101 EXHIBIT C NOTICE OF CONVERSION/CONTINUATION Date:__________________, _____ To: Bank of America National Trust and Savings Association, as agent for the Banks (in such capacity, the "Agent") under that certain Credit Agreement dated as of December 22, 1995, (as extended, renewed, amended or restated from time to time, the "Agreement") among Dreyer's Grand Ice Cream, Inc., a Delaware corporation (the "Company"), the several financial institutions from time to time parties to the Credit Agreement (the "Banks"), the Agent, and ABN-AMRO Bank N.V., San Francisco International Branch as Co-Agent. Ladies and Gentlemen: The undersigned, Dreyer's Grand Ice Cream, Inc. (the "Company"), 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 is ________________, 19__. 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 [____ days] [_____ 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 V 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); C-1 102 (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. DREYER'S GRAND ICE CREAM, INC. By: --------------------------- Name: Title: By: --------------------------- Name: Title: C-2 103 EXHIBIT D December 22, 1995 Bank of America N.T. & S.A. 555 California Street San Francisco, CA 94104 ABN AMRO Bank N.V. 101 California Street, Suite 4550 San Francisco, CA 94111-5812 Credit Suisse 633 West Fifth Street Los Angeles, CA 90071 The Bank of California, N.A. 400 California Street, 17th Floor San Francisco, CA 94104 Gentlemen: We have acted as counsel to Dreyer's Grand Ice Cream, Inc., a Delaware corporation (the "Company"), in connection with the Credit Agreement dated as of December 22, 1995, among the Company, Bank of America N.T. & S.A., as one of the Banks and as Agent, ABN AMRO Bank N.V., as one of the Banks and as Co-Agent, Credit Suisse and The Bank of California, N.A. (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 4.10(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. 104 Bank of America NT & SA ABN AMRO Bank N.V. Credit Suisse The Bank of California, N.A. December 22, 1995 Page 2 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. Except Dreyer's International, Inc. which is not in good standing in the United States Virgin Islands for failure to file its 1995 Annual Report and Franchise Tax Report, 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. 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. 3. The Credit Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company. 4. The Credit Agreement is a valid and binding obligation of the Company, enforceable in accordance with its terms. 5. Execution and delivery of the Credit Agreement and performance by the Company of its obligations thereunder does not violate the Certificate of Incorporation or By-laws of the Company, or any applicable law or regulation or any order of court or 105 Bank of America NT & SA ABN AMRO Bank N.V. Credit Suisse The Bank of California, N.A. December 22, 1995 Page 3 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 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 is 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 express no opinion on the laws of any 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. 106 Bank of America NT & SA ABN AMRO Bank N.V. Credit Suisse The Bank of California, N.A. December 22, 1995 Page 4 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. This opinion is rendered solely for your use in connection with the transaction described above and may not be relied upon by any other person for any purpose without our prior written consent. Very truly yours MANWELL & MILTON By Denise B. Milton 107 EXHIBIT E 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 December 22, 1995 (as amended, amended and restated, modified, supplemented or renewed, the "Agreement") among Dreyer's Grand Ice Cream, Inc. a Delaware corporation (the "Company"), the several financial institutions from time to time party thereto (including the Assignor, the "Banks"), Bank of America National Trust and Savings Association, as agent for the Banks (the "Agent"), and ABN-AMRO Bank N.V., San Francisco International Branch as Co-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: 1. Assignment and Acceptance. (a) Subject to the terms and conditions of this Assignment and Acceptance, (i) the Assignor hereby sells, E-1 108 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. [If appropriate, add paragraph specifying payment to Assignor by Assignee of outstanding principal of, accrued interest on, and fees with respect to Loans.] (b) With effect 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 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, however, the Assignor shall not relinquish its rights under Sections 10.04 and 10.05 of the Agreement to the extent such rights relate to the time prior to the Effective Date. (c) After giving effect to the assignment and assumption set forth herein, on the Effective Date the Assignee's Commitment will be $__________. (d) After giving effect to the assignment and assumption set forth herein, on the Effective Date the Assignor's Commitment will be $__________. 2. Payments. (a) 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. (b) The [Assignor] [Assignee] further agrees to pay to the Agent a processing fee in the amount specified in Section 10.08(a)(iii) of the Agreement. 3. Reallocation of Payments. Any interest, fees and other payments accrued to the E-2 109 Effective Date with respect to the Commitment[,] [and] Loans 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. 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 6.01 of the Agreement, and such other documents and information as it has 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. 5. Effective Date; Notices. (a) 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: (i) this Assignment and Acceptance shall be executed and delivered by the Assignor and the Assignee; (ii) 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 10.08(a) of the Agreement shall have been duly obtained and shall be in full force and effect as of the Effective Date; (iii) the Assignee shall pay to the Assignor all amounts due to the Assignor under this Assignment and Acceptance; [(iv) the Assignee shall have complied with Section 9.10 of the Agreement (if applicable);] (v) the processing fee referred to in Section 2(b) hereof and in Section 10.08(a)(iii) of the Agreement shall have been paid to the Agent; and (vi) the Assignor shall have assigned and the Assignee shall have assumed a percentage equal to the Assignee's E-3 110 Percentage Share of the rights and obligations of the Assignor under the Agreement (if such agreement exists). (b) Promptly following the execution of this Assignment and Acceptance, the Assignor shall deliver to the Company and the Agent for acknowledgement by the Agent, a Notice of Assignment substantially in the form attached hereto as Schedule 1. [6. Agent. [INCLUDE ONLY IF ASSIGNOR IS AGENT] (a) 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. (b) The Assignee shall assume no duties or obligations held by the Assignor in its capacity as Agent under the Agreement.] 7. 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. 8. Representations and Warranties. (a) The Assignor represents and warrants that (i) 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; (ii) 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; (iii) no notices to, or consents, authorizations or approvals of, any Person are required (other than any already E-4 111 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 (iv) 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. (b) 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. (c) 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 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. 9. 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 E-5 112 instruments to the Company or the Agent, which may be required in connection with the assignment and assumption contemplated hereby. 10. Miscellaneous. (a) 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. (b) All payments made hereunder shall be made without any set-off or counterclaim. (c) 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. (d) 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. (e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA. 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. (f) 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.] IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Assignment and Acceptance to be executed and E-6 113 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: E-7 114 SCHEDULE 1 NOTICE OF ASSIGNMENT AND ACCEPTANCE _______________, 19__ Bank of America National Trust and Savings Association, as Agent 1455 Market Street, 12th Floor San Francisco, CA 94103 Attn: Agency Management Services #5596 Dreyer's Grand Ice Cream, Inc. 5929 College Ave. Oakland, CA 94618 Attn: Treasurer Ladies and Gentlemen: We refer to the Credit Agreement dated as of December 22, 1995 (as amended, amended and restated, modified, supplemented or renewed from time to time the "Agreement") among Dreyer's Grand Ice Cream, Inc. (the "Company"), the Banks referred to therein, Bank of America National Trust and Savings Association as agent for the Banks (the "Agent") and ABN-AMRO Bank N.V., San Francisco International Branch as Co-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, Dreyer's 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. E-8 115 3. The following administrative details apply to the Assignee: (A) Notice Address: Assignee name: ---------------------------------------- Address: ---------------------------------------------- ---------------------------------------------- ---------------------------------------------- Attention: -------------------------------------------- Telephone: ( ) --- -------------------------------------- Telecopier: ( ) --- ------------------------------------- (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 E-9 116 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: By: Name: Title: ACKNOWLEDGED AND ASSIGNMENT CONSENTED TO: DREYER'S GRAND ICE CREAM, INC. By: ----------------------------------- Name: Title: By: ----------------------------------- Name: Title: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent By: ----------------------------------- Name: Title: Vice President E-10 117 Schedule 2.01 Commitments
==================================================================================================== Bank Commitment to Commitment from Commitment from Pro Rata Share 12/31/97* 12/31/97 and to 12/31/98 and to 12/31/98* the Revolving Termination Date - ---------------------------------------------------------------------------------------------------- BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION $ 65,000,000 $ 55,714,285.72 $ 46,428,571.43 37.142857143% - ---------------------------------------------------------------------------------------------------- ABN AMRO BANK N.V. 60,000,000 51,428,571.43 42,857,142.86 34.285714286% - ---------------------------------------------------------------------------------------------------- CREDIT SUISSE 30,000,000 25,714,285.71 21,428,571.43 17.142857143% - ---------------------------------------------------------------------------------------------------- THE BANK OF CALIFORNIA 20,000,000 17,142,857.14 14,285,714.28 11.428571428% - ---------------------------------------------------------------------------------------------------- TOTAL $175,000,000 $150,000,000.00 $125,000,000.00 100.000000000% ============ =============== =============== ============== ====================================================================================================
* On which dates the Company shall repay the amount, if any, by which the aggregate principal of outstanding Loans exceeds the combined Commitments. 118 SCHEDULE 5.07 ERISA The Company has been advised that the participation of the employees of Dreyer's Grand Ice Cream Charitable Foundation and Edy's Grand Ice Cream Charitable Foundation (the "Charitable Foundations") in the Dreyer's Grand Ice Cream, Inc. Savings Plan (the "Savings Plan") may be construed as the Charitable Foundations "maintaining" the Savings Plan contrary to Internal Revenue Code Section 401(k)(4)(B). The Company has discontinued the Charitable Foundations employees' active participation in the Savings Plan. The Company has also prepared a Voluntary Compliance Resolution ("VCR") application to obtain a compliance certificate from the Internal Revenue Service on the discontinuance of participation by the Charitable Foundations employees and the disposition of contributions and earnings related to that participation. The Company filed the VCR application on December 22, 1994 and the application is presently pending before the Internal Revenue Service. 119 SCHEDULE 5.11 SPECIAL DISCLOSURES OF FINANCIAL CONDITION None. 120 SCHEDULE 5.15 LABOR RELATIONS 1. Edy's Grand Ice Cream and United Food and Commercial Workers Union Local 700, Ft. Wayne, Indiana, NLRB Case No. 25-CA-23065; and 25-CA-23141. In January of 1994, United Food and Commercial Workers Union Local 700 ("UFCW") filed a representation petition seeking to represent all employees working at Edy's Ft. Wayne Manufacturing Facility. An election was subsequently held in March 1994 which was won by the employer. Subsequent to the election, a number of employees were discharged. The UFCW, in turn, filed Unfair Labor Practice Charges with Region 25 of the National Labor Relations Board ("NLRB") alleging that these terminations were motivated by Edy's intent to retaliate against these employees for having participated in union organizing activities. Originally, two separate Charges were filed and subsequently consolidated by order of the Regional Director. After investigation, the Regional Director issued a Complaint against Edy's alleging that the following individuals were terminated in violation of the National Labor Relations Act for having engaged in union organizing activities: Joe Troendly - Date of Termination: March 31, 1994 Steve Leatherman - Date of Termination: March 31, 1994 Robert Byanskie - Date of Termination: April 4, 1994 Lois Jones - Date of Termination: April 22, 1994 Amy Wickensheimer - Date of Termination: Oct. 10, 1994 The Complaint in the matter also alleges that Edy's engaged in certain other violations of the National Labor Relations Act, such as interrogating employees about their union membership activities and issuing verbal warnings to other employees. In addition, an Amended Complaint was issued in September 1994 alleging that Edy's had removed certain union supporters from employee committees in retaliation for their having engaged in union organizing activities. If successful, the claimants in the present case would be entitled to reinstatement, back pay and compensation for any and all lost benefits. At the time of his termination, Mr. Troendly was earning approximately $50,000 a year. The other claimants were earning approximately $30,000 to $35,000 per year. The other, non-economic allegations would require the Company to reinstate certain employees to the committees they were removed from and to post a notice agreeing to refrain from interrogating employees and/or issuing warnings in retaliations for their participation in union organizing activities. 1 121 Edy's believes it has significant defenses to each and every of these claims. These defenses include the fact that certain of these individuals were supervisors under Section 2(11) of the National Labor Relations Act and, accordingly, were prohibited from engaging in union organizing activities. In addition, the record reflects that there were legitimate business reasons for the termination of certain of these individuals related to their violation of the Company's policies and/or for failure to adequately perform their job duties. Edy's intends to vigorously defend these claims. At the present time, no trial of the matter has been set, although it is anticipated that the case will proceed to trial in the spring of 1995. 2. Edy's Grand Ice Cream and Marvin Stanley, NLRB Case No. 22-CA-20245. Stanley was employed by Edy's Rockaway, New Jersey Distribution Facility in approximately July of 1994. On or about September 20, 1994, Edy's extended Stanley's probationary period due to performance-related problems. On or about October 20, 1994, Stanley was terminated for poor performance. Stanley subsequently filed an unfair labor practice charge with the National Labor Relations Board alleging that he was terminated in retaliation for his union organizing activities and/or his support of the union. The National Labor Relations Board conducted an investigation into Stanley's termination. On or about November 30, 1995, the NLRB issued a complaint against Edy's alleging that Stanley had been terminated in retaliation for his union organizing activities and support of the union. If successful, Stanley would be entitled to reinstatement, back pay and compensation for any and all lost benefits. At the time of his termination, Stanley was earning approximately $35,000 a year. At this time, Stanley had made an offer to settle his claim fully and completely, including waiving any reinstatement, for a gross payment of $10,000. Edy's believes it has significant defenses to each and every of Stanley's claims. These defenses include the fact that he was terminated for legitimate work-related problems, and that his termination was in no way based on his union organizing activities and/or support of the union. At the present time, Edy's intends to vigorously defend these claims. The matter has not been scheduled for trial, although it is anticipated that the case will proceed to trial some time during the spring of 1996. 2 122 SCHEDULE 5.17 SUBSIDIARIES (a) Subsidiaries Edy's Grand Ice Cream, a California corporation Edy's of Illinois, Inc., an Illinois corporation Dreyer's International [FSC], a Virgin Islands corporation Grand Soft Capital Company, a California corporation Grand Soft Equipment Company, a Kentucky corporation (formerly named Polar Express Systems International, Inc.) (b) Ownership Interests M-K-D Distributors, Inc., a Texas corporation DSD Partnership, a California general partnership Kabushiki Kaisha Dreyer's Japan, a Japanese limited liability stock company (in liquidation) Yadon Enterprises, Inc., dba Rainbo Distribution Company, a California corporation Starbucks/Dreyer's Ice Cream Partnership, a California general partnership 123 SCHEDULE 7.01 EXISTING LIENS 1. Security Agreement dated as of September 1, 1985 between Edy's Grand Ice Cream ("Edy's") and Security Pacific National Bank ("Security Pacific") pursuant to which Edy's granted Security Pacific a lien on certain fixtures and equipment located at Edy's City of Fort Wayne, Indiana facility to secure Edy's obligations to Security Pacific under a Letter of Credit Agreement dated September 1, 1985. The obligations secured total $9,450,000, as reduced from time to time as the outstanding principal balance of the $9,000,000 City of Ft. Wayne, Indiana Industrial Revenue Bonds (Edy's Grand Ice Cream) 1985 Series is reduced from time to time. 2. Mortgage in favor of Security Pacific dated August 22, 1985 on Edy's City of Fort Wayne, Indiana real property given to secure Edy's obligations to Security Pacific referred to in paragraph 1 above. 3. Combination Mortgage, Security Agreement and Fixture Financing Statement in favor of the Northern Trust Company dated December 31, 1985 on Tivoli Distributing Company, Inc. real property (and the fixtures located on such real property) given to secure Tivoli's obligation to the Northern Trust Company. A release of said mortgage is to be prepared in connection with the obligation's satisfaction on December 1, 1994. 4. Those liens set forth on Exhibit A to this Schedule attached hereto and incorporated herein by reference. 124 EXHIBIT A TO SCHEDULE 7.01
UCC-1 UCC-2 UCC-2 Date of Secured Date of Type of State of Filing Filing Party Debtor File No. Filing Filing - --------------- ------ ----- ------ -------- ------ ------ Arizona (1) 05/01/91 Handling Cervelli 662555 Systems, Inc. Distributors, Inc. (2) 06/18/86 IBM Credit Cervelli 442068 Corporation Distributors, California (3) 07/17/78 Crocker Dreyer's 78-112136 04/18/83 Continuation Equipment Grand Ice 04/19/88 Continuation Leasing, Inc. Cream, Inc. 10/18/88 Release (4) 10/03/88 Crown Dreyer's 88-245423 Credit Co. Grand Ice Cream, Inc. (5) 02/02/89 Bell Atlantic Dreyer's 89-029475 Tricon Leasing Grand Ice Corp. Cream, Inc. (6) 12/31/85 Chancellor Dreyer's 85-316802 05/19/86 Assignment Corp. Grand Ice 11/20/90 Continuation Cream, Inc. (7) 05/28/92 Crown Credit Dreyer's 92-118060 Co. Grand Ice Cream, Inc. (8) 11/17/88 Security Dreyer's 88-288896 Pacific Equip. Grand Ice Leasing,Inc. Cream, Inc. (9) 12/05/88 Wells Fargo Dreyer's 88-301804 Leasing Corp. Grand Ice Cream, Inc. (10) 06/19/89 Security Dreyer's 89-165683 Pacific Equip. Grand Ice Leasing, Inc. Cream, Inc. (11) 06/22/89 Crown Credit Dreyer's 89-170433 Co. Grand Ice Cream, Inc. (12) 07/10/89 Crown Credit Dreyer's 89-185126 Co. Grand Ice Cream, Inc. (13) 09/27/89 Crown Credit Dreyer's 89-253881 Co. Grand Ice Cream, Inc. (14) 11/13/89 Security Dreyer's 89-292168 Pacific Equip. Grand Ice Leasing, Inc. Cream, Inc.
1 125
UCC-1 UCC-2 UCC-2 Date of Secured Date of Type of State of Filing Filing Party Debtor File No. Filing Filing - --------------- ------ ----- ------ -------- ------ ------ California (15) 11/13/89 Security Dreyer's 89-293877 Pacific Equip. Grand Ice Leasing, Inc. Cream, Inc. (16) 02/13/90 Leasenu Inc. Dreyer's 90-041016 Grand Ice Cream, Inc. (17) 02/13/90 Leasenu Inc. Dreyer's 90-041017 Grand Ice Cream, Inc. (18) 06/11/90 Security Dreyer's 90-147098 11/26/90 Assignment Pacific Equip. Grand Ice Leasing, Inc. Cream, Inc. (19) 07/12/90 1989-Oakland Dreyer's 90-170505 Housing Part- Grand Ice nership Asso- Cream, Inc. ciates (20) 01/17/91 Bay Area Oil Dreyer's 91-010037 Company Grand Ice Cream, Inc. (21) 02/11/91 American Dreyer's 91-029566 National Grand Ice Leasing Corp. Cream, Inc. (22) 03/18/91 Security Dreyer's 91-059056 Pacific Equip. Grand Ice Leasing, Inc. Cream, Inc. (23) 04/11/91 JM Lift Dreyer's 91-079844 Trucks Inc. Grand Ice Cream, Inc. (24) 05/24/91 Security Dreyer's 91-113571 Pacific Equip. Grand Ice Leasing, Inc. Cream, Inc. (25) 03/05/92 Clark Rental Dreyer's 92-044615 System Grand Ice Cream, Inc. (26) 04/06/92 1991-Oakland Dreyer's 92-062835 Housing Part- Grand Ice nership Asso- Cream, Inc. ciates, a California Ltd. Partnership (27) 05/08/92 Clark Rental Dreyer's 92-104147 System Grand Ice Cream, Inc. (28) 07/09/92 Pitney Dreyer's 92-150874 Bowes Credit Grand Ice Corp. Cream, Inc. (29) 01/10/90 Security Edy's Grand 90-008059 Pacific Equip. Ice Cream, Leasing, Inc.
2 126
UCC-1 UCC-2 UCC-2 Date of Secured Date of Type of State of Filing Filing Party Debtor File No. Filing Filing - --------------- ------ ----- ------ -------- ------ ------ California (30) 10/23/87 Security Edy's Grand 87-258452 Pacific Equip. Ice Cream, Leasing, Inc. (31) 07/14/88 Security Edy's Grand 88-169938 Pacific Equip. Ice Cream, Leasing, Inc. (32) 09/30/85 Security Edy's Grand 85-237915 06/01/90 Continuation Pacific Equip. Ice Cream Leasing, Inc. Illinois (33) 05/05/92 Pitney Edy's Grand 2982060 Bowes Credit Ice Cream Indiana (34) 07/18/88 Security Edy's Grand 1508312 Pacific Equip. Ice Cream Leasing, Inc. (35) 10/26/87 Security Edy's Grand 1420961 Pacific Equip. Ice Cream Leasing, Inc. (36) 10/02/85 Security Edy's Grand 1184458 06/29/90 Continuation Pacific Equip. Ice Cream Leasing, Inc. (37) 08/28/85 Security Edy's Grand 1175113 08/28/90 Continuation Pacific Ice Cream National Bank Minnesota (38)* 01/31/86 The Northern Tivoli 866154 10/12/90 Continuation Trust Company Distributing Company, Inc.
* Underlying obligation has been satisfied, termination statement to be prepared and filed. 3 127 SCHEDULE 7.04 INVESTMENTS 1. Promissory Note of Don Redican Distributing, Inc. dated December 15, 1993 in the principal amount of $70,436.35 payable to Dreyer's Grand Ice Cream, Inc. 2. Promissory Note of Don Redican Distributing, Inc. dated March 5, 1994 in the principal amount of $21,657.05 payable to Dreyer's Grand Ice Cream, Inc. 3. Promissory Note of Don Redican Distributing, Inc. dated May 3, 1994 in the principal amount of $4,203.30 payable to Dreyer's Grand Ice Cream, Inc. 4. Promissory Note of Don Redican Distributing, Inc. dated June 3, 1994 in the principal amount of $22,005.20 payable to Dreyer's Grand Ice Cream, Inc. 5. Promissory Note of Joseph Saker dated July 17, 1995 in the principal amount of $317,491.44 payable to Dreyer's Grand Ice Cream, Inc. 6. Promissory Note of Sunbelt Distributors, Inc. dated November 30, 1994 in the principal amount of $1,999,998.31, payable to Dreyer's Grand Ice Cream, Inc. 7. Option to purchase outstanding stock of Sunbelt Distributors, Inc. (option extension payment due January 4, 1996), and in the event the option is exercised by the Company, payment of the purchase price and any subsequent earnout payments to the former shareholders of Sunbelt. 8. Earnout payment to the former shareholders of Polar Express Systems International, Inc. 9. Promissory Note of Rutledge Distribution Inc. dated July 21, 1994 in the principal amount of $328,754.88 payable to Dreyer's Grand Ice Cream, Inc. 10. Promissory Note of the Yadon Family Partnership dated _____________________, 1994 in the principal amount of $460,000.00 payable to Dreyer's Grand Ice Cream, Inc. 11. Promissory Note of David and Ann Kottler dated November 28, 1986 in the principal amount of $350,000 payable to National City Bank ("NCB"), which was assigned to Edy's Grand Ice Cream on January 4, 1995 upon payment to NCB of $26,575.85. 128 12. Promissory Note of Sunbelt Distributors, Inc. dated March 31, 1995 in the principal amount of $1,999,998.56 payable to Dreyer's Grand Ice Cream, Inc. 13. Promissory Note of Seward's Ice Cream Distributors, Inc. dated November 2, 1995 in the principal amount of $792,528.91 payable to Edy's Grand Ice Cream. 129 SCHEDULE 7.05 INDEBTEDNESS That amount of indebtedness reflected on the attached balance sheet plus any bank borrowings which may have occurred from September 30, 1995 through the Closing Date. 130 DREYER'S GRAND ICE CREAM CONSOLIDATED BALANCE SHEET
September 30, December 31, ($ in thousands, except per share amounts) 1995 1994 ------------- ------------ (unaudited) Liabilities and Stockholders' Equity Current Liabilities: Accounts payable and accrued liabilities $ 37,795 $ 30,130 Accrued payroll and employee benefits 14,396 15,801 Current portion of long-term debt 3,600 4,500 -------- -------- Total current liabilities 55,791 50,431 Long-term debt, less current portion 137,300 46,100 Convertible subordinated debentures 100,752 Deferred income taxes 30,214 28,822 -------- -------- Total liabilities 223,306 226,105 -------- -------- Redeemable convertible Series B preferred stock, $1 par value - 1,008,000 shares authorized; 1,008,000 shares and no shares issued and outstanding in 1995 and 1994, respectively 98,214 -------- -------- Commitments and contingencies Stockholders' Equity: Preferred stock, $1 par value - 8,992,000 shares authorized; no shares issued or outstanding in 1995 and 1994 Common stock, $1 par value - 30,000,000 shares authorized; 12,900,000 shares and 14,064,000 shares issued and outstanding in 1995 and 1994, respectively 12,900 14,064 Capital in excess of par 38,635 75,257 Retained earnings 49,115 46,600 -------- -------- Total stockholders' equity 100,650 135,921 -------- -------- Total liabilities and stockholders' equity $422,169 $362,026 ======== ========
See accompanying Notes to Consolidated Financial Statements 3 131 SCHEDULE 7.08 CONTINGENT OBLIGATIONS 1. General Continuing Guaranty of Dreyer's Grand Ice Cream, Inc. dated February 10, 1994 in favor of West One Bank, Idaho (guaranteeing the obligations of Don Redican Distributing, Inc. in the principal amount of $50,573.00). 2. General Continuing Guaranty of Dreyer's Grand Ice Cream, Inc. dated April 6, 1994 in favor of Seattle First National Bank (guaranteeing obligations of Williams Inland Distributors, Inc. in the aggregate amount of $850,000). 3. Guaranty by Dreyer's Grand Ice Cream, Inc. of certain loans of employees in connection with their relocation in the aggregate amount of $499,350.00. 132 Schedule 10.02 Addresses for Notices, etc. ADDRESSES FOR NOTICES DREYER'S GRAND ICE CREAM, INC. 5929 College Avenue Oakland, CA 94618 Attention: William C. Collett, Treasurer Telephone: 510/601-4339 Facsimile: 510/450-4592 BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent Bank of America National Trust and Savings Association Agency Management Services #5596 1455 Market Street, 12th Floor San Francisco, California 94103 Attention: Christine Cordi Vice President Telephone: 415/436-2790 Facsimile: 415/436-2700 10 133 BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as a Bank DOMESTIC AND OFFSHORE LENDING OFFICE: Bank of America National Trust and Savings Association 1850 Gateway Boulevard, Fourth Floor Concord, California 94520 Attention: Shireen Watson Telephone: 510/675-7148 Facsimile: 510/675-7531 NOTICES (OTHER THAN NOTICES OF BORROWING AND NOTICES OF CONVERSION/CONTINUATION): Bank of America National Trust and Savings Association Credit Products #3838 555 California Street - 41st Floor San Francisco, CA 94137 Attention: Michael J. Dasher Vice President Telephone: 415/622-2126 Facsimile: 415/622-4584 11 134 ABN AMRO BANK N.V. DOMESTIC AND OFFSHORE LENDING OFFICE: ABN AMRO BANK N.V. 101 California Street - Suite 4550 San Francisco, CA 94111-5812 Attention: Gloria C. Lee Telephone: 415/984-3720 Facsimile: 415/363-3524 NOTICES (OTHER THAN NOTICES OF BORROWING AND NOTICES OF CONVERSION/CONTINUATION): ABN AMRO BANK N.V. 101 California Street - Suite 4550 San Francisco, CA 94111-5812 Attention: Gina Brusatori Vice President Telephone: 415/984-3702 Facsimile: 415/363-3524 12 135 CREDIT SUISSE DOMESTIC AND OFFSHORE LENDING OFFICE: CREDIT SUISSE 633 West Fifth Street, 64th Floor Los Angeles, CA 90071 Attention: Rita Asa Loan Administrator Telephone: 213/955-8284 Facsimile: 213/955-8245 NOTICES (OTHER THAN NOTICES OF BORROWING AND NOTICES OF CONVERSION/CONTINUATION): CREDIT SUISSE 633 West Fifth Street, 64th Floor Los Angeles, CA 90071 Attention: Maria Gaspara Associate Telephone: 213/955-8256 Facsimile: 213/955-8245 With a copy to: CREDIT SUISSE 50 California Street - Suite 2940 San Francisco, CA 94111 Attention: Andrew Tammen Associate Telephone: 415/391-9590 Facsimile: 415/362-1175 13 136 THE BANK OF CALIFORNIA, N.A. DOMESTIC AND OFFSHORE LENDING OFFICE: THE BANK OF CALIFORNIA, N.A. 400 California Street - 17th Floor San Francisco, CA 94104 Attention: Kathy Simien Telephone: 415/765-3641 Facsimile: 415/765-2634 NOTICES (OTHER THAN NOTICES OF BORROWING AND NOTICES OF CONVERSION/CONTINUATION): THE BANK OF CALIFORNIA, N.A. 400 California Street - 17th Floor San Francisco, CA 94104 Attention: Wanda Headrick Telephone: 415/765-3003 Facsimile: 415/765-2634 14 EX-11 5 COMPUTATION OF NET INCOME PER SHARE 1 EXHIBIT 11 DREYER'S GRAND ICE CREAM, INC. COMPUTATION OF NET INCOME PER COMMON SHARE (unaudited)
Year Ended ---------------------------------------------- (in thousands, except per share amounts) Dec. 30, 1995 Dec. 31, 1994 Dec. 25, 1993 ------------- ------------- ------------- PRIMARY Net (loss) income applicable to common stock $(3,496) $ 1,001 $16,789 Weighted average number of shares of common stock outstanding 13,285 14,731 14,624 ------- ------- ------- Net (loss) income share, as reported $ (.26) $ .07 $ 1.15 ======= ======= ======= Weighted average number of shares of common stock outstanding 13,285 14,731 14,624 Common stock equivalent--assumed exercise of common stock options and warants 334 99 148 ------- ------- ------- Weighted average number of shares of common stock outstanding, including common stock equivalents 13,619 14,830 14,772 ======= ======= ======= Net (loss) income per common share $ (.26)(1) $ .07(1) $ 1.14(1) ======= ======= ======= FULLY DILUTED Net (loss) income applicable to common stock $(3,496) $ 1,001 $16,789 Add preferred dividends on redeemable convertible Series B preferred stock, due June 2001, and accretion of preferred stock to redemption value 1,972 Add interest expense on convertible subordinated debentures issued June 1993 and amortization of related issuance costs, net of tax 2,571 4,103 1,993 ------- ------- ------- Adjusted net income $ 1,047 $ 5,104 $18,782 ======= ======= ======= Weighted average number of shares of common stock outstanding 13,285 14,731 14,624 Common stock equivalent--assumed exercise of common stock options and warrants 412 105 204 Assumed conversion of debentures 2,900 1,426 Assumed conversion of preferred stock 2,900 ------- ------- ------- Adjusted shares 16,597 17,736 16,254 ======= ======= ======= Net income per common share $ .06(2) $ .29(2) $ 1.16(2) ======= ======= =======
(1) This calculation is submitted in accordance with Regulation S-K item 601 (b) (11) although it is not required by footnote 2 to paragraph 14 of APB Opinion No. 15 because it results in dilution of less than 3%. (2) This calculation is submitted in accordance with Regulation S-K item 601 (b) (11) although it is contrary to APB Opinion No. 15 because it produces an anti-dilutive effect. EX-21 6 SUBSIDIARIES OF REGISTRANT 1 EXHIBIT 21 SUBSIDIARIES OF DREYER'S GRAND ICE CREAM, INC.
Name Jurisdiction - ---- ------------ Edy's Grand Ice Cream California *Edy's of Illinois, Inc. Illinois Dreyer's International, Inc. U.S. Virgin Islands Grand Soft Capital Company California Grand Soft Equipment Company Kentucky (formerly Polar Express Systems International, Inc.) Portofino Company California M-K-D Distributors, Inc. Texas
* Subsidiary of Edy's Grand Ice Cream EX-23 7 CONSENT OF INDEPENDENT ACCOUNTANTS 1 EXHIBIT 23 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (Nos. 33-7350, 33-8418, 33-35561, 33-36092, 33-40275, 33-56417, 33-56411 and 33-56413) of Dreyer's Grand Ice Cream, Inc. of our report dated February 8, 1996 appearing on page 14 of this Form 10-K. We also consent to the incorporation by reference of our report on the Financial Statement Schedule, which appears on page 31 of this Form 10-K. PRICE WATERHOUSE LLP San Francisco, California March 28, 1996 EX-27 8 FINANCIAL DATA SCHEDULE
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEET AND THE CONSOLIDATED STATEMENT OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 1,000 12-MOS DEC-30-1995 DEC-30-1995 3,051 0 59,996 (698) 33,201 127,109 260,210 (77,453) 414,105 57,748 134,000 98,382 0 12,929 79,334 414,105 678,797 681,052 530,561 530,561 141,856 1,234 9,912 (2,511) (987) (1,524) 0 0 0 (1,524) (.26) .06
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