EXECUTION COPY
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SUIZA FOODS CORPORATION
_____________________________
AMENDMENT NO. 2
Dated as of September 6, 1996
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of July 17, 1996
_____________________________
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Agent
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent
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AMENDMENT NO. 2 dated as of September 6, 1996, between: SUIZA FOODS
CORPORATION, a corporation duly organized and validly existing under the laws of
the State of Delaware (the "COMPANY"); each of the lenders that is a signatory
hereto (individually, a "LENDER" and, collectively, the "LENDERS"); and FIRST
UNION NATIONAL BANK OF NORTH CAROLINA, as agent for the Lenders (in such
capacity, together with its successors in such capacity, the "AGENT").
WHEREAS, the Company, the Lenders and the Agent (as successor to The
Chase Manhattan Bank in such capacity) are parties to an Amended and Restated
Credit Agreement dated as of July 17, 1996 (as amended by Amendment and Waiver
dated as of August 7, 1996 and as in effect on the date hereof, the "EXISTING
CREDIT AGREEMENT");
WHEREAS, the Company has requested that the Lenders provide financing
for acquisitions by the Company from time to time and, in connection therewith,
amend certain provisions of the Existing Credit Agreement, among other things,
to permit such acquisitions and the financing thereof and to change certain of
the covenants therein; and
WHEREAS, the Lenders and the Agent are willing to agree to such
amendments on the terms and conditions hereof and, simultaneously with the
execution and delivery hereof, to enter into a Supplemental Credit Agreement
dated as of the date hereof (as amended from time to time, the "SUPPLEMENTAL
CREDIT AGREEMENT") to provide, subject to the terms and conditions thereof, a
$90,000,000 credit facility for financing certain acquisitions by the Company
from time to time.
Accordingly, the parties hereto agree as follows:
1. DEFINITIONS. Except as otherwise defined in this Amendment No.
2, terms defined in the Existing Credit Agreement are used herein as defined
therein.
2. AMENDMENTS. Subject to the satisfaction of the conditions
precedent specified in Section 4 hereof, the Company, the Agent and the Lenders
hereby agree that the Existing Credit Agreement shall be amended as follows:
A. References in the Existing Credit Agreement (including references
to the Existing Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as
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"hereunder", "hereby", "herein" and "hereof") shall be deemed to be a reference
to the Existing Credit Agreement as amended hereby (as so amended, herein called
the "CREDIT AGREEMENT").
B. Section 1.01 of the Existing Credit Agreement is hereby amended
(a) by inserting the following definitions therein in appropriate alphabetical
order:
"AMENDMENT NO. 2" shall mean Amendment No. 2 to this Agreement dated
as of September 6, 1996 among the Company, the Lenders and the Agent.
"AMENDMENT NO. 2 TO SECURITY AGREEMENT" shall mean Amendment No. 2 to
the Security Agreement substantially in the form of Exhibit C-1 to the
Supplemental Credit Agreement.
"FACILITY C COMMITMENTS" shall have the meaning set forth in the
Supplemental Credit Agreement.
"FACILITY C COMMITMENT TERMINATION DATE" shall have the meaning set
forth in the Supplemental Credit Agreement.
"FACILITY C LOANS" shall mean the loans provided for in the
Supplemental Credit Agreement.
"FACILITY C NOTES" shall have the meaning set forth in the
Supplemental Credit Agreement.
"FIRST UNION" shall mean First Union National Bank of North Carolina.
"XXXXXXX NEGATIVE PLEDGE AGREEMENT" shall mean the Xxxxxxx Negative
Pledge Agreement between the Agent and Xxxxxxx in form and substance
satisfactory to the Agent, as the same shall be modified and supplemented
from time to time.
"GUARANTEE AGREEMENT" shall mean the Guarantee Agreement substantially
in the form of Exhibit C-3 to the Supplemental Credit Agreement, as the
same shall be modified and supplemented from time to time.
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"INVESTMENT TAX CREDIT" shall have the meaning set forth in the
Supplemental Credit Agreement.
"NET PURCHASE PRICE" shall have the meaning set forth in the
Supplemental Credit Agreement.
"PERMITTED ACQUISITION" shall have the meaning set forth in the
Supplemental Credit Agreement.
"SUPPLEMENTAL CREDIT AGREEMENT" shall have the meaning assigned
thereto in the recitals to Amendment No. 2.
"SUPPLEMENTAL GUARANTOR" shall mean each Subsidiary of the Company
party to a Supplemental Subsidiary Guarantee and Security Agreement.
"SUPPLEMENTAL SECURITY DOCUMENTS" shall mean, collectively, each
Supplemental Subsidiary Guarantee and Security Agreement between a
Supplemental Guarantor and the Agent, each amendment to the Security
Agreement and all Uniform Commercial Code financing statements and/or other
filings required hereby or thereby to be filed with respect to the security
interests in personal Property and fixtures created pursuant hereto or
thereto.
"SUPPLEMENTAL SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT" shall mean
a Supplemental Subsidiary Guarantee and Security Agreement, substantially
in the form of Exhibit C-2 to the Supplemental Credit Agreement, as the
same shall be modified and supplemented from time to time.
and (b) by deleting therefrom the definitions of "XXXXXXX FACTORS LIEN
AGREEMENT", "XXXXXXX MORTGAGES" and "NEW SUBSIDIARY GUARANTEE AND SECURITY
AGREEMENT" and (c) by amending the following definitions to read in their
entirety as follows:
"BASIC DOCUMENTS" shall mean, collectively, the Loan Documents and, except
for purposes of the definitions of "Secured Obligations" and "Guaranteed
Obligations" in any of the Security Documents, the Purchase Agreements and
the Subordinated Debt Documents.
"BUSINESS DAY" shall mean (a) any day on which commercial banks are
not authorized or required to
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close in North Carolina and (b) if such day relates to a borrowing of, a
payment or prepayment of principal of or interest on, a Conversion of or
into, or an Interest Period for, a Eurodollar Loan or a notice by the
Company with respect to any such borrowing, payment, prepayment, Conversion
or Interest Period, any day on which dealings in Dollar deposits are
carried out in the London interbank market.
"DEBT SERVICE" shall mean, for any period, the sum, for the Company and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all payments of principal of
Indebtedness (including, without limitation, the principal component of any
payments in respect of Capital Lease Obligations) scheduled to be made
during such period PLUS (b) all Interest Expense for such period, it being
understood that, if any installment of principal of the Facility C Loans,
or the Facility B Loans shall have been prepaid during or prior to such
period, the amount of principal of the Facility C Loans and the Facility B
Loans included in Debt Service for such period shall be equal to the
aggregate amount of principal of the Facility C Loans and the Facility B
Loans originally scheduled to be paid hereunder and under the Supplemental
Credit Agreement during such period.
"EXCLUDED DISPOSITION" shall mean the Disposition of (i) an Investment Tax
Credit or (ii) any motor vehicles or other equipment no longer used or
useful in the business of the Company or any of its Subsidiaries to the
extent the proceeds thereof are used to acquire similar replacement
Property within a period of 30 days after the end of the fiscal quarter in
which such Disposition was made.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Supplemental
Credit Agreement, the Notes, the Facility C Notes, the Letter of Credit
Documents and the Security Documents.
"MORTGAGES" shall mean, collectively, (a) the mortgages or deeds of trust
identified in Schedule VII hereto and (b) one or more mortgages or deeds of
trust, in the respective forms of Exhibits D-1 and D-2 hereto or of
Exhibits D-1 and D-2 to the Supplemental Credit Agreement (with such
modifications
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thereto requested by the Agent as may be appropriate to effect a lien on
real property in the state where the respective property to be covered by
such instrument is located), executed by the respective Obligors who own
or lease such property in favor of the Agent (or, in the case of a deed of
trust, in favor of the trustee for the benefit of the Agent and the
Lenders) pursuant to Section 9.19(c) and 9.19(d) hereof or Section 8.19(c)
and 8.19(d) of the Supplemental Credit Agreement covering the respective
Properties and/or leasehold interests identified in Schedule IV hereto or
subject to the requirements of said Section 9.19(c) and 9.19(d) or Section
8.19(c) and 8.19(d) of the Supplemental Credit Agreement, as the case may
be, in each case as the same shall be modified and supplemented and in
effect from time to time.
"OBLIGOR" shall mean the Company and each Subsidiary of the Company
party to any Security Document; PROVIDED that for the purposes of the
definition of the terms "Eligible Inventory", "Eligible Receivable",
and "Receivables", the term "Obligor" shall not include any
Supplemental Guarantor.
"SECURITY DOCUMENTS" shall mean, collectively, the Security Agreement, the
Amendment to Security Agreement, Amendment No. 2 to Security Agreement, the
Mortgages, each Supplemental Subsidiary Guarantee and Security Agreement,
the Existing Subsidiary Guarantee and Security Agreement, the Guarantee
Agreement, the Puerto Rico Security Documents, all Uniform Commercial Code
financing statements and/or other filings required hereby or thereby to be
filed with respect to the security interests in personal Property and
fixtures created pursuant hereto or thereto, and the Subordination
Agreement.
and (c) by the following: (1) the definition of "ELIGIBLE INVENTORY" is hereby
amended by replacing the percentage "50%" with the percentage "100%" in clause
(b) thereof, (2) the definition of "INTEREST EXPENSE" is hereby amended by
inserting the words "and by the Supplemental Credit Agreement" after "hereby" in
the eighth line thereof, (3) the definition of "MATERIAL ADVERSE EFFECT" is
hereby amended by inserting the words "or under the Loan Documents" after
"therewith" in the last line thereof, and (4) the definition of "SUBSIDIARY
GUARANTORS"
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is amended by deleting the words "Xxxxxxx, Guest Choice," in the first and
second lines thereof.
C. References to "Chase" in the definitions of "Federal Funds Rate",
"Issuing Bank", and "Prime Rate" and in Sections 2.02(b), 11.04 and 12.03 of
the Existing Credit Agreement are deleted and replaced by "First Union".
D. The references to "Xxxxxxx Factors Lien Agreement", "Xxxxxxx
Mortgages" and "New Subsidiary Guarantee and Security Agreement" in the Existing
Credit Agreement are hereby deleted.
E. Section 2.02(b) of the Existing Credit Agreement is hereby amended
by replacing the words "1:00 p.m. New York time" with the words "3:30 p.m.
Charlotte, North Carolina time" in the second line thereof and by replacing the
words "the Principal Office" with the words "its principal office" in the tenth
line thereof.
F. The second sentence of Section 2.06 of the Existing Credit
Agreement is hereby amended (1) by adding ", subject to the prior written
consent of the Majority Lenders," immediately after the word "entitled" and (2)
by deleting "consent to, or" in the penultimate line thereof.
G. Subsections (b) through (e) of Section 2.09 of the Existing
Credit Agreement are hereby amended to read in their entirety as follows:
"(b) CASUALTY EVENTS. Not later than 60 days following the receipt
by the Company or any of its Subsidiaries (other than a Supplemental
Guarantor) of the proceeds of insurance, condemnation award or other
compensation in respect of any Casualty Event affecting any Property of the
Company or any of its Subsidiaries (other than Property of a Supplemental
Guarantor or acquired with the proceeds of Facility C Loans under the
Supplemental Credit Agreement) (or upon such earlier date as the Person
owning such Property shall have determined not to repair or replace the
Property affected by such Casualty Event), the Company shall prepay the
Loans (and/or provide cover for Letter of Credit Liabilities as specified
in paragraph (h) below), and the Facility A Commitments shall be subject to
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automatic reduction, in an aggregate amount, if any, equal to 100% of the
Net Available Proceeds of such Casualty Event not theretofore applied to
the repair or replacement of such Property or prepayment of the Facility B
Loans, such prepayment and reduction to be effected in each such case in
the manner and to the extent specified in paragraph (f) below. Nothing in
this paragraph (b) shall be deemed to limit any obligation of the Company
or any of its Subsidiaries pursuant to any of the Security Documents to
remit to a collateral or similar account (including, without limitation,
the Collateral Account) maintained by the Agent pursuant to any of the
Security Documents the proceeds of insurance, condemnation award or other
compensation received in respect of any Casualty Event. Notwithstanding
the foregoing, in the event that a Casualty Event shall occur with respect
to Property of the Company or any of its Subsidiaries (other than Property
of a Supplemental Guarantor or acquired with the proceeds of Facility C
Loans under the Supplemental Credit Agreement) and covered by any Mortgage,
the Company shall prepay the Loans (and/or provide cover for Letter of
Credit Liabilities) on the dates and in the amounts to the extent specified
in such Mortgage. In the event of a Casualty Event involving Property of a
Supplemental Guarantor or acquired with the proceeds of Facility C Loans
under the Supplemental Credit Agreement, the Net Available Proceeds of such
Casualty Event shall be applied in accordance with the terms of the
Supplemental Credit Agreement.
(c) SALE OF ASSETS. Without limiting the obligation of the Company
to obtain the consent of the Majority Lenders pursuant to Section 9.05(c)
hereof to any Disposition not otherwise permitted hereunder, in the event
that the Net Available Proceeds of any Disposition of Property of the
Company or any of its Subsidiaries (other than Property of a Supplemental
Guarantor or acquired with the proceeds of Facility C Loans under the
Supplemental Credit Agreement) other than an Excluded Disposition (herein,
the "CURRENT DISPOSITION"), and of all prior Dispositions of Property of
the Company or any of its Subsidiaries (other than Property of a
Supplemental Guarantor or acquired with the proceeds of Facility C Loans
under the Supplemental Credit Agreement) as to which a prepayment has not
yet been made under this Section 2.09(c), shall exceed $500,000 then, no
later than 5
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Business Days prior to the occurrence of the Current Disposition, the
Company will deliver to the Lenders a statement, certified by a
Responsible Financial Officer of the Company, in form and detail
satisfactory to the Agent, of the amount of the Net Available Proceeds of
the Current Disposition and of all such prior Dispositions and the Company
will prepay the Loans (or cause the Loans to be prepaid) and the Facility A
Commitments shall be subject to automatic reduction, in an aggregate amount
equal to 100% of the Net Available Proceeds of the Current Disposition and
such prior Dispositions not theretofore used to prepay Facility B Loans
such prepayment and reduction to be effected in each case in the manner and
to the extent specified in paragraph (f) below; PROVIDED that with respect
to any Current Disposition that includes any Eligible Inventory or Eligible
Receivables, the Company shall deliver to the Agent a statement of a
Responsible Financial Officer of the Company specifying the portion of Net
Available Proceeds of the Current Disposition and of all prior Dispositions
as to which a prepayment has not yet been made hereunder relating to such
Inventory or Receivables and the Company shall prepay the Facility A Loans
(and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (h) below). In the case of all Dispositions of Property of a
Supplemental Guarantor or acquired with the proceeds of Facility C Loans
under the Supplemental Credit Agreement, the Company will make (or cause to
be made) prepayments of the Facility C Loans as required by the
Supplemental Credit Agreement.
(d) EQUITY ISSUANCE; INVESTMENT TAX CREDITS. Upon any Equity
Issuance or the issuance of any Indebtedness (other than Indebtedness
permitted under Section 9.07 hereof) or the Disposition of any Investment
Tax Credit after the Closing Date (as defined in the Supplemental Credit
Agreement), the Company shall (i) prepay the Facility C Loans or the
Facility B Loans in an aggregate amount equal to 100% of the Net Available
Proceeds thereof (after effecting any payments in respect of the
redemption, prepayment or retirement, as the case may be, of the
Subordinated Indebtedness to the extent permitted under Section 9.22(a)) or
(ii) in connection with a Disposition of any Investment Tax Credit, apply
any part of the Net Available Proceeds thereof to the purchase price of the
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Swiss Dairy Acquisition and use the balance of such Net Available Proceeds
to prepay the Facility C Loans or the Facility B Loans as contemplated in
clause (i) above. Promptly after each such Equity Issuance the Company
shall advise the Agent in writing of its designated application of such Net
Available Proceeds thereof. Any such prepayments of the Facility C Loans
shall be effected in the manner specified in the Supplemental Credit
Agreement. Any such prepayment of the Facility B Loans shall be effected
in the manner and to the extent specified in paragraph (f) below.
(e) EXCESS CASH FLOW. Not later than 90 days after the end of the
fiscal quarter ending December 31, 1996 and after the end of each fiscal
year of the Company, commencing with the fiscal year ending December 31,
1997, the Company shall prepay the Facility B Loans and Facility C Loans in
an aggregate amount equal to the excess of (A) 50% of Excess Cash Flow for
such fiscal quarter or year, as the case may be (or, if the Leverage Ratio
is less than 2.50 to 1, 25% of such Excess Cash Flow) over (B) the
aggregate amount of prepayments of Facility B Loans and Facility C Loans
made during such fiscal quarter or year, as the case may be, pursuant to
Section 2.08 hereof and Section 2.08 of the Supplemental Credit Agreement.
Mandatory prepayments arising from Excess Cash Flow required prior to the
Facility C Commitment Termination Date shall be applied to the Facility B
Loans in the manner and to the extent specified in paragraph (f) below.
Mandatory prepayments arising from Excess Cash Flow required on or after
the Facility C Commitment Termination Date shall be applied to the
Facility B Loans and the Facility C Loans pro rata based on the aggregate
principal amounts thereof then outstanding and such prepayments of Facility
B Loans shall be effected in each case in the manner and to the extent
specified in paragraph (f) below."
H. Section 2.10(e) of the Existing Credit Agreement is amended by
replacing the words "the Principal Office" with the words "its principal office"
in the third line thereof.
I. Section 3.01(b) of the Existing Credit Agreement is amended by
inserting the following aggregate amounts directly opposite the dates set forth
below in place of those set forth therein:
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"September 30, 2001 6,000,000
December 31, 2001 6,000,000
March 31, 2002 27,500,000"
J. Section 3.02 of the Existing Credit Agreement is hereby amended
(1) by replacing the comma immediately after the word "Dates" with the word
"and" in the third sentence thereof and (2) by deleting the words "and (iii) in
the case of any Loan, upon the payment or prepayment thereof or the Conversion
of such Loan to a Loan of another Type (but only on the principal amount so
paid, prepaid or Converted)" from the third sentence thereof.
K. Section 4.01(a) of the Existing Credit Agreement is hereby amended
by replacing the words "1:00 p.m. New York time" with the words "2:00 p.m.
Charlotte, North Carolina time" in the eighth line thereof.
L. Section 4.04 of the Existing Credit Agreement is hereby amended to
read in its entirety as follows:
"4.04 MINIMUM AMOUNTS. Except for mandatory prepayments made
pursuant to Section 2.09 hereof and Conversions or prepayments made
pursuant to Section 5.04 hereof, (a) each borrowing and Conversion of
principal of Base Rate Loans shall be in an aggregate amount at least
equal to $500,000 or a larger multiple of $100,000, (b) each borrowing
and Conversion of Eurodollar Loans shall be in an aggregate amount at
least equal to $2,000,000 or a larger multiple of $1,000,000, (c) each
partial prepayment of principal of Eurodollar Loans shall be in an
aggregate amount at least equal to $2,000,000 or a larger multiple of
$1,000,000 and each partial prepayment of principal of Base Rate Loans
shall be in an aggregate amount at least equal to $500,000 or a larger
multiple of $100,000 (borrowings, Conversions or prepayments of or
into Loans of different Types or, in the case of Eurodollar Loans,
having different Interest Periods at the same time hereunder to be
deemed separate borrowings, Conversions and prepayments for purposes
of the foregoing, one for each Type or Interest Period)."
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M. Section 4.05 of the Existing Credit Agreement is hereby amended by
replacing the words "12:00 noon New York time" with the words "1:30 p.m.
Charlotte, North Carolina time" in the first sentence thereof.
N. Section 4.07(a) of the Existing Credit Agreement is hereby amended
by adding the words "but with the prior written consent of the Majority Lenders"
immediately after the words "at its option" in the fourth line thereof.
O. Section 5.06(a) of the Existing Credit Agreement is hereby amended
by replacing the reference to "Section 5.01(a)" in the penultimate line thereof
with the reference to "Section 5.06(a)".
P. Section 7.02 of the Existing Credit Agreement is hereby amended to
read in its entirety as follows: "7.02 [Intentionally Omitted]".
Q. Section 9.01(f) of the Existing Credit Agreement is hereby amended
by replacing the number "10" with the number "20" in the first line thereof.
R. Section 9.05(b) of the Existing Credit Agreement is hereby amended
(i) by amending clause (iv) to read in its entirety as follows:
"(iv) Permitted Acquisitions and the acquisition of any capital stock,
business or Property of any Person with the proceeds of Facility A Loans
PROVIDED that unless otherwise consented to by the Majority Banks (w) no
more than $1,000,000 of the proceeds of Facility A Loans may be used,
directly or indirectly, to finance any single acquisition and no more
than $5,000,000 in the aggregate of the proceeds of Facility A Loans may
be used, directly or indirectly, to finance acquisitions in any fiscal
year, except in connection with the financing of the Swiss Dairy
Acquisition, in which case up to $10,000,000 in the aggregate of the
proceeds of Facility A Loans may be used for such financing, (x) the Net
Purchase Price of any such acquisition financed with the proceeds of
Facility A Loans (other than the Swiss Dairy Acquisition) shall not exceed
$1,000,000 in a single transaction (or
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series of related transactions) and $5,000,000 in the aggregate for any
fiscal year, (y) at the time of such acquisition no Default shall have
occurred and be continuing and (z) any future earn-out payments in
connection with any such acquisition shall be counted at the time such
earn-out payment is made in determining whether the dollar limitations
contained in this clause (iv) have been exceeded;"
S. Section 9.05(d) of the Existing Credit Agreement is hereby amended
by adding the words "and so long as the Liens created under the Security
Documents continue to be in effect" immediately before the semicolon therein.
T. Section 9.06(a) of the Existing Credit Agreement is hereby amended
by adding the words "and the Supplemental Security Documents" immediately prior
to the semicolon therein.
U. Section 9.07(a) of the Existing Credit Agreement is hereby amended
by replacing the word "and" with a comma and by adding the words "and under the
Supplemental Credit Agreement" immediately prior to the colon therein.
V. Section 9.07(c) of the Existing Credit Agreement is hereby amended
by adding the words "and Indebtedness outstanding on the date of Amendment No. 2
and listed on Part A of Schedule I to the Supplemental Credit Agreement"
immediately after the word "hereto".
W. Section 9.07(d) of the Existing Credit Agreement is hereby amended
by replacing the section reference to "Section 9.08(g)" with the section
references "Section 9.08(e) or (g)".
X. Section 9.08(e) of the Existing Credit Agreement is hereby amended
by adding the words "and indemnities executed in connection with the sale of
Investment Tax Credits" immediately before the semicolon therein.
Y. Section 9.10(b) of the Existing Credit Agreement is hereby amended
to read in its entirety as follows:
"(b) The Company will not permit the Senior Leverage Ratio to exceed the
following respective ratios at any time during the following respective
periods:
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PERIOD RATIO
------ -----
From the Effective Date
through and including
June 29, 1997 3.75 to 1
From June 30, 1997
through and including
June 29, 1998 3.25 to 1
From June 30, 1998
through and including
June 29, 1999 2.75 to 1
From June 30, 1999
and at all times
thereafter 2.25 to 1"
Z. Section 9.11 of the Existing Credit Agreement is hereby amended
to read in its entirety as follows:
"9.11 MINIMUM NET WORTH. The Company will not permit its Net Worth
(i) for the period from the date hereof to and including December 31,
1996 to be less than $63,000,000 and (ii) for each fiscal quarter
thereafter, to be less than $63,000,000 plus 50% of net income for all
preceding fiscal quarters (without including the results of any fiscal
quarter in respect of which there was a net loss) commencing with the
fiscal quarter beginning January 1, 1997. The amounts of Net Worth
set forth above shall be increased by 75% of the amount by which the
"total stockholders equity" of the Company is increased as a result of
any public or private offering of common stock of the Company after
September 1, 1996. Promptly upon consummation of each such public or
private offering, the Company shall notify the Agent in writing of the
amount of such increase in total stockholders equity."
AA. Section 9.14 of the Existing Credit Agreement is hereby amended
to read in its entirety as follows:
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"9.14 CAPITAL EXPENDITURES. The Company will not permit the
aggregate amount of Capital Expenditures by the Company and its
Subsidiaries to exceed the following respective amounts for the
following respective periods:
PERIOD AMOUNT
------ ------
From January 1, 1996 $13,000,000
through and including
December 31, 1996
From January 1, 1997 $14,000,000
through and including
December 31, 1997
From January 1, 1998 $15,000,000
through December 31, 1998,
and for each fiscal year
thereafter
If the aggregate amount of Capital Expenditures for any period set
forth in the schedule above shall be less than the amount set forth
opposite such period in the schedule above, then 50% of the shortfall
shall be added to the amount of Capital Expenditures permitted for the
immediately succeeding period (but not any other) period and, for the
purposes hereof, the amount of Capital Expenditures made during any
period shall be deemed to have been made first from the permitted
amount for such period set forth in the schedule above and last from
the amount of any carryover from any previous period. Notwithstanding
the foregoing, in addition to the Capital Expenditures permitted to be
incurred as provided above the Company may make the following
additional Capital Expenditures: (a) the acquisition of replacement
Property in respect of an Excluded Disposition; (b) the purchase price
paid by the Company or any of its Subsidiaries in respect of any
acquisition permitted under Section 9.05(b)(iv) hereof; (c) Capital
Expenditures not exceeding $6,000,000 during the period from and after
the Closing Date to and including December 31, 1997 in respect of the
expansion by Xxxxx Farms of its facilities at
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Winter Haven, Miami, Jacksonville and/or St. Petersburg, Florida;
(d) Capital Expenditures made with the proceeds of property or casualty
insurance for the purposes of repairing or replacing damaged or
destroyed fixed or capital assets; and (e) any acquisition permitted
under Section 9.05(b)(v) hereof."
BB. Section 9.15 of the Existing Credit Agreement is amended by
replacing the percentage "50%" with the percentage "75%" in the second sentence
thereof.
CC. Section 9.19(b) of the Existing Credit Agreement is hereby
amended by adding the words "(other than the Xxxxxxx Negative Pledge Agreement)"
after the word "arrangement" in the third line thereof.
DD. Section 9.19(c) of the Existing Credit Agreement is hereby
amended (1) by adding the words "(other than Xxxxxxx and Guest Choice)"
immediately after the word "Subsidiaries" and after the word "Company" in the
second and fourth lines thereof, respectively, (2) by replacing the words "the
New Subsidiary Guarantee and Security Agreement" with the words "a Supplemental
Subsidiary Guarantee and Security Agreement" in the fifth and sixth lines and in
the eleventh and twelfth lines thereof, and (3) by adding the words "or to the
Supplemental Credit Agreement" after the word "hereto" in the sixteenth line
thereof.
EE. Section 9.19(d) of the Existing Credit Agreement is hereby
amended (1) by adding the words "(other than Xxxxxxx)" immediately after the
word "Subsidiaries" in the third line thereof and (2) by adding the words "or to
the Supplemental Credit Agreement" after the word "hereto" in the seventh line
thereof.
FF. Section 10(a) of the Existing Credit Agreement is hereby amended
by adding the words "or under the Supplemental Credit Agreement" immediately
after the words "any other Loan Document" in the sixth line thereof.
GG. Section 10(b) of the Existing Credit Agreement is hereby amended
by adding the words "or any Event of Default (as defined in the Supplemental
Credit Agreement) shall occur and be continuing" after the word "liquidated" in
the last line thereof.
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HH. Section 10(n) of the Existing Credit Agreement is hereby deleted
in its entirety.
II. Section 11.05 of the Existing Credit Agreement is hereby amended
by replacing the words "the New Subsidiary Guarantee and Security Agreement"
with the words "each Supplemental Subsidiary Guarantee and Security Agreement"
in the eighth line and in the twenty-eighth and twenty-ninth lines thereof.
JJ. Section 11.08 of the Existing Credit Agreement is hereby amended
(1) by deleting the word "are" at the end of the twelfth line thereof and (2) by
deleting the words "that has an office in New York, New York" in the third
sentence thereof.
KK. Section 11.09 of the Existing Credit Agreement is hereby amended
to read in its entirety as follows:
"11.09 AGENCY FEE. So long as the Commitments are in effect and
until payment in full of the principal of and interest on the Loans
and all other amounts payable by the Company hereunder, the Company
will pay to the Agent an agency fee in the amount agreed in writing
between the Company and the Agent, payable quarterly in arrears
commencing on September 30, 1996 and on the last day of each calendar
quarter thereafter; PROVIDED that if the Commitments shall have been
terminated prior to such date, the agency fee shall be payable on the
date of such termination. Such fee, once paid, shall be
non-refundable."
LL. Section 12.03 of the Existing Credit Agreement is hereby amended
by replacing the words "the New Subsidiary Guarantee and Security Agreement"
with the words "each Supplemental Subsidiary Guarantee and Security Agreement"
in the third sentence thereof.
MM. Section 12.04 of the Existing Credit Agreement is hereby amended
(1) by adding the words, "or modify Section 12.06(b)(iii) hereof" immediately
after the word "hereof" in clause (a)(vii) thereof, (2) by replacing the words
"the New Subsidiary Guarantee and Security Agreement" with the words "any
Supplemental Subsidiary Guarantee and Security Agreement" in
17
clause (a)(viii) thereof, and (3) by deleting the words "or 7.02" in clause
(a)(ix) thereof.
NN. Section 12.06(b) of the Existing Credit Agreement is amended (1)
by amending clauses (iii) and (iv) of the first sentence thereof to read in
their entirety as follows:
"(iii) each assignment by any Facility A Lender or Facility B Lender
of any of its Loans (and related Note and Commitment) of a particular
Class and (in the case of a Facility A Lender) its Letter of Credit
Interest shall be made in such a manner so that (x) the same ratable
portion of all of its Loans to the Company under this Agreement of the
other Class (and related Notes and Commitments) and (if applicable)
its Letter of Credit Interest is assigned to the respective assignee
and (y) the same ratable portion of all of its Facility C Loans (and
related Facility C Note and Facility C Commitment) under and as
defined in the Supplemental Credit Agreement is assigned to the
respective assignee; and
(iv) any such assignment of less than all of such Xxxxxx's interests in
the Facility A Loans, Facility B Loans and Facility C Loans, Facility A
Notes, Facility B Notes and Facility C Notes, and Facility A Commitments,
Facility B Commitments and Facility C Commitments, as the case may be,
shall be in an aggregate amount at least equal to $10,000,000."
and (2) by replacing the words "Notice of Assignment" with the words "Assignment
and Acceptance" therein.
OO. Section 12.12(b) of the Existing Credit Agreement is hereby
amended by deleting the words "(or to Chase Securities, Inc.)" in clause (iv)
thereof.
PP. Schedules I through VII of the Existing Credit Agreement are
replaced with Schedules I through VII of the Supplemental Credit Agreement.
QQ. Exhibit D-3 of the Existing Credit Agreement is hereby deleted in
its entirety.
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3. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Lenders that, after giving effect to the
amendments to the Existing Credit Agreement set forth in Section 2 of this
Amendment No. 2, (a) no Default has occurred and is continuing and (b) the
representations and warranties set forth in Section 8 of the Credit Agreement
and in each of the Security Documents are true and correct on the date hereof as
if made on and as of the date hereof (or, if stated to have been made solely as
of an earlier date, were true and correct as of such date) as if each reference
(whether direct or indirect) therein to "this Agreement" included reference to
this Amendment No. 2 and the Credit Agreement as amended hereby.
4. CONDITIONS PRECEDENT. The amendments to the Existing Credit
Agreement set forth in Section 2 hereof shall become effective upon prior or
simultaneous satisfaction of the condition precedent that the Agent shall have
received the following, each of which shall be satisfactory to the Agent:
(a) one or more counterparts of this Amendment No. 2 executed by each
of the Company and the Lenders and consented to by the Subsidiary
Guarantors listed on the signature pages hereof.
(b) one or more counterparts of the Supplemental Credit Agreement
executed by each of the parties thereto, together with evidence that all
conditions precedent set forth in Section 6.01 of the Supplemental Credit
Agreement shall have been satisfied or waived.
(c) one or more counterparts of the Xxxxxxx Negative Pledge Agreement
executed by each of the parties thereto.
(d) certified copies of all corporate authority for each Obligor
(including, without limitation, board of director resolutions and evidence
of the incumbency of officers, together with specimen signatures of each
such officer) with respect to the execution, delivery and performance of
this Amendment No. 2, the Existing Credit Agreement as amended hereby and
each such other document to which such Obligor is intended to be a party by
the terms of this Amendment No. 2.
19
(e) opinions, appropriately dated, of Xxxxxx & Xxxx and Xxxxxxxx
Adsuar Xxxxx & Xxxxx, each as counsel to the Obligors, covering such
matters as the Agent or any Lender may reasonably request (and each Obligor
hereby instructs such counsel to deliver such opinion to the Lenders and
the Agent).
(f) new Facility A Notes and Facility B Notes, xxxx completed and
executed.
(g) such other documents as the Agent or any Lender or special New
York counsel to First Union may reasonably request.
5. MISCELLANEOUS. Except as herein provided, the Existing Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 2 may be executed in any number of counterparts, all of which taken together
shall constitute one and the same amendatory instrument and any of the parties
hereto may execute this Amendment No. 2 by signing any such counterpart. This
Amendment No. 2 shall be governed by, and construed in accordance with, the law
of the State of New York.
Section 6. INTENTION OF THE PARTIES. Notwithstanding anything
contained herein to the contrary, it is the intention of the parties hereto that
this Amendment No. 2 represents a modification of, but not a novation or
discharge of, the credit facilities provided by the Existing Credit Agreement.
Section 7. SYNDICATION AGENT. The Syndication Agent named on the
cover page of this Amendment No. 2 shall have no duties, obligations or
responsibilities under the Credit Agreement except in its capacity as a Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
2 to be duly executed and delivered as of the day and year first above written.
COMPANY
SUIZA FOODS CORPORATION
By
------------------------------------
Title:
LENDERS
THE FIRST NATIONAL BANK OF CHICAGO
By
------------------------------------
Title:
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By
------------------------------------
Title:
XXXXXX TRUST AND SAVINGS BANK
By
------------------------------------
Title:
THE BANK OF NOVA SCOTIA
By
------------------------------------
Title:
BANCO POPULAR DE PUERTO RICO
21
By
------------------------------------
Title:
22
BANK OF AMERICA ILLINOIS
By
------------------------------------
Title:
BANQUE PARIBAS
By
------------------------------------
Title:
By
------------------------------------
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By
------------------------------------
Title:
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By
------------------------------------
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By
------------------------------------
Title:
23
AGENT
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, as Agent
By
------------------------------------
Title:
CONSENT AND AGREEMENT
Each of the undersigned Subsidiary Guarantors hereby (1) consents to the
amendments provided for in this Amendment No. 2, (2) agrees that each
reference to the Credit Agreement in each Security Document (as defined in
the Credit Agreement) to which such Subsidiary Guarantor is a party shall be
a reference to the Credit Agreement as amended by this Amendment No. 2 and
(3) confirms its obligations under each Security Document to which it is a
party after giving effect to the amendments set forth in this Amendment No. 2.
REDDY ICE CORPORATION SUIZA FRUIT CORPORATION
By By
-------------------------------- --------------------------------
Title: Title:
XXXXX FARMS, INC. XXXX PLASTICS MANUFACTURING CORP.
By By
-------------------------------- --------------------------------
Title: Title:
SUIZA MANAGEMENT CORPORATION
By
--------------------------------
Title:
24
SUIZA DAIRY CORPORATION
By
--------------------------------
Title:
