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EXHIBIT 10.41
AMENDMENT AGREEMENT dated as of December 7,
1998 (this "Amendment"), to the Credit Agreement
dated as of September 4, 1997, as amended through
September 9, 1998 (the "Credit Agreement"), among
Southern Foods Group, L.P., a Delaware limited
partnership (the "Borrower"), Dairy Farmers of
America, Inc. (formerly known as Mid-America
Dairymen, Inc.) ("DFA"), the lenders party thereto
and The Chase Manhattan Bank, as Administrative
Agent.
A. The Borrower has requested that the Required Lenders agree
to amend certain provisions of the Credit Agreement as provided herein.
B. The Required Lenders are willing to so amend the Credit
Agreement pursuant to the terms and subject to the conditions set forth herein.
C. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment to Section 1.01 of the Credit Agreement.
Section 1.01 of the Credit Agreement is hereby amended as follows:
(a) by deleting the figure "50%" from clause (a) of the
definition of the term "Change in Control" and substituting therefor
the figure "40%";
(b) by deleting the figure "50%" from clause (b)(i) of the
definition of the term "Change in Control" and substituting therefor
the figure "40%";
(c) by deleting the figure "50.1%" from clause (b)(ii) of the
definition of the term "Change in Control" and substituting therefor
the figure "40%"; and
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(d) by deleting the word "or" immediately before clause (d) of
the definition of the term "Change in Control" and adding the following
new clause (e) to such definition immediately before the phrase
"provided, however":
or (e) the Initial Borrower and Xx. Xxxx Xxxxxxxx, in the
aggregate, shall cease to own or control, directly or
indirectly, beneficially or of record, at least 80% of the
aggregate economic or voting equity ownership of the Borrower
or the General Partner, free and clear of all Liens
SECTION 2. Amendment to Article III of the Credit Agreement.
Article III of the Credit Agreement is hereby amended by adding the following
new Section 3.22:
SECTION 3.22 Year 2000. The Borrower is undertaking procedures
necessary to permit the proper functioning, in and beyond the year
2000, of (a) the Borrower's and the Subsidiaries' computer systems and
(b) equipment containing embedded microchips (including systems and
equipment supplied by others). All such procedures (and all testing
necessary to confirm that such procedures will permit such proper
functioning) will be completed by September 30, 1999, except to the
extent that the failure to complete such procedures and testing could
not reasonably be expected to result in a Default or have a Material
Adverse Effect. The cost to the Borrower and the Subsidiaries of such
reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to the Borrower and the Subsidiaries
(including, without limitation, reprogramming errors and the failure of
others' systems or equipment) is not reasonably likely to result in a
Default or have a Material Adverse Effect. Except for such of the
reprogramming referred to in the preceding sentences as may be
necessary, the computer and management information systems of the
Borrower and the Subsidiaries are, and, with ordinary course upgrading
and maintenance, will continue for the term of this Agreement to be,
sufficient to permit the Borrower and the Subsidiaries to conduct their
business without a Default or Material Adverse Effect.
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SECTION 3. Representations and Warranties. The
Borrower represents and warrants to each of the other
parties hereto that:
(a) Before and after giving effect to this Amendment, the
representations and warranties set forth in Article III of the Credit
Agreement are true and correct in all material respects with the same
effect as if made on the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
(b) Before and after giving effect to this Amendment, no Event
of Default or Default has occurred and is continuing.
SECTION 4. Conditions to Effectiveness. This Amendment shall
become effective on the date on which the Administrative Agent shall have
received counterparts of this Amendment that, when taken together, bear the
signatures of the Borrower and the Required Lenders.
SECTION 5. Credit Agreement; Loan Document. Except as
specifically amended hereby, the Credit Agreement shall continue in full force
and effect in accordance with the provisions thereof as in existence on the date
hereof. After the date hereof, any reference to the Credit Agreement shall mean
the Credit Agreement as amended hereby. This Amendment shall be a Loan Document
for all purposes.
SECTION 6. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Amendment may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract. Delivery of an executed signature page to this
Amendment by facsimile transmission shall be effective as delivery of a manually
signed counterpart of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first written above.
SOUTHERN FOODS GROUP, L.P.,
by /s/
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Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent and Collateral Agent,
by /s/
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Name:
Title:
