EXECUTION
COPY
AMENDMENT NO. 12, dated as of March 1, 1999 ("Amendment No.
12") to CREDIT AGREEMENT dated as of February 10, 1993 (as amended through the
date hereof, the "Credit Agreement") among DI GIORGIO CORPORATION, as Borrower,
the financial institutions parties thereto as LENDERS, BT COMMERCIAL
CORPORATION, as Agent for the Lenders, and BANKERS TRUST COMPANY, as Issuing
Bank. Terms which are capitalized herein and not otherwise defined shall have
the meanings given to such terms in the Credit Agreement.
WHEREAS, the Borrower has requested that the Lenders modify
certain covenants contained in the Credit Agreement; and
WHEREAS, the Lenders have agreed to the foregoing on the terms
and subject to the fulfillment of the conditions set forth in this Amendment No.
12;
NOW, THEREFORE, in consideration of the mutual promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the Lenders
hereby agree as follows:
Section One. Amendment. Upon the fulfillment of the conditions
precedent set forth in Section Three hereof, effective as of December 21, 1998,
the Credit Agreement is amended as follows:
(a) Section 7.16. Puerto Rico Collections. A new Section 7.16
to the Credit Agreement is hereby added thereto as follows:
"7.16 Puerto Rico Collections Received by Borrower. The
Borrower agrees that any checks, remittances,
collections or other payments in respect of Accounts
(collectively "Puerto Rico Collections") arising from
sales to account debtors located in the Commonwealth of
Puerto Rico ("Puerto Rico Customers") which are received
by the Borrower shall be promptly deposited by the
Borrower into (i) a Depositary Account maintained with a
Blocked Account Bank with which the Borrower and the
Agent have a Blocked Account Agreement which is in full
force and effect (an "Acceptable Depositary Account") or
(ii) a bank account (the "Puerto Rico Collection
Account") maintained by the Borrower with a bank located
in the Commonwealth of Puerto Rico (the "Puerto Rico
Collection Bank"). The Borrower further agrees that on
each day on which the Puerto Rico Collection Bank is
open for business and on which the available
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balances in the Puerto Rico Collection Account exceed
$25,000, in the aggregate, the Borrower shall instruct
the Puerto Rico Collection Bank to transfer at the end
of each such day the amount of such excess balance to
the Concentration Account, or an Acceptable Depositary
Account. The Borrower further agrees that if, at any
time, it shall have received notice from the Agent of
the Agent's intention to terminate the procedures set
forth in the preceding sentence (which the Agent may
elect to do in its sole and absolute discretion,
exercised in a commercially reasonable manner), then,
immediately upon receipt of such notice, the Borrower
shall cease depositing any Puerto Rico Collections
received by it into the Puerto Rico Collection Account
and shall instead promptly deposit all such Puerto Rico
Collections, on each day of receipt, into an Acceptable
Depositary Account."
(b) Section 8.11. No Investments. The introductory portion of
Section 8.11 is restated as follows, subsection (a) thereof is deleted in its
entirety, and the following is substituted in lieu thereof:
"8.11 No Investments. The Borrower will not, and shall
not permit any of the Restricted Subsidiaries to,
directly or indirectly, make any Investment in any
Person, whether in cash, securities or other property of
any kind, including without limitation any Subsidiary or
Affiliate of the Borrower, other than:
(a) Advances or loans evidenced by the Customer Notes,
provided that the sum of (i) the aggregate unpaid
principal balance of such Customer Notes outstanding at
any one time, plus (ii) the aggregate amount of the
Borrower's contingent liabilities in respect of the
guarantees permitted under Section 8.9(f) hereof, plus
(iii) the aggregate amount of all repurchase obligations
or other contingent liabilities of the Borrower in
respect of such Customer Notes outstanding at any one
time, may not exceed $35,000,000 at any one time,
provided further that the aggregate amount of any such
advances or loans outstanding at any one time to any
obligor on any single Customer Note, or series of
related Customer Notes, plus the amount of the
Borrower's contingent liabilities in respect of its
guarantees of such obligor's
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indebtedness, liabilities or other obligations, may not
exceed $5,000,000. Notwithstanding the foregoing, in
addition to the $5,000,000 limitation with regard to
both a single Customer Note, as well as a series of
related Customer Notes, set forth in the previous
sentence, but subject to the $35,000,000 limitation set
forth therein, (x) the Borrower may make advances or
loans to a New Jersey corporation known as Foodtown,
pursuant to a certain Customer Note dated as of December
23, 1998 in the original principal amount of $6,100,000
(the "Foodtown Note"), so long as the aggregate amount
of all advances or loans outstanding on the Foodtown
Note, plus the amount of the Borrower's contingent
liabilities in respect of its guaranty of the
indebtedness, liabilities or other obligations of
Foodtown, do not exceed $7,500,000 in the aggregate, at
any one time outstanding, and (y) the liability of any
affiliate of Foodtown, by virtue of such affiliate's
status as a co-maker, co-obligor or surety of the
Foodtown Note, shall not count against the $5,000,000
limitation on the aggregate loans and advances which the
Borrower may make to any such affiliate pursuant to a
Customer Note executed by such affiliate."
(c) Section 8.15. No Excess Cash. Section 8.15 is deleted in
its entirety, and the following is substituted in lieu thereof:
"8.15 No Excess Cash. The Borrower will not, and shall
not permit any of the Restricted Subsidiaries to,
directly or indirectly, maintain in the aggregate in all
of the checking, savings or other accounts of the
Borrower, total cash balances and investments permitted
by Section 8.11 hereof in excess of $500,000 at any time
during which any Revolving Loans are outstanding
hereunder, with the exception of (a) payroll accounts
and (b) the Puerto Rico Collection Account, unless the
Borrower shall have received a notice from the Agent in
accordance with the terms of Section 7.16, in which
case, upon such receipt, the exception set forth in this
clause (b) shall be of no further force or effect."
Section Two. Representations and Warranties. To induce the
Lenders to enter into this Amendment No. 12, the Borrower warrants and
represents to the Lenders as follows:
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(a) the recitals contained in this Amendment No. 12 are true
and correct in all respects;
(b) after giving effect to this Amendment No. 12, all of the
representations and warranties contained in the Credit Agreement and each other
Credit Document to which the Borrower is a party continue to be true and correct
in all material respects as of the date hereof, as if repeated as of the date
hereof, except for such representations and warranties which, by their terms,
are only made as of a previous date;
(c) the execution, delivery and performance of this Amendment
No. 12 by the Borrower is within its corporate powers, has been duly authorized
by all necessary corporate action, the Borrower has received all necessary
consents to and approvals for the execution, delivery and performance of this
Amendment No. 12 (if any shall be required) and this Amendment No. 12 does not
and will not contravene or conflict with any provision of law or of the charter
or by-laws of the Borrower or with the terms or provisions of any other document
or agreement to which the Borrower is a party or by which the Borrower or its
property may be bound; and
(d) upon its execution, this Amendment No. 12 shall be a
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms.
Section Three. Conditions Precedent. This Amendment No. 12
shall become effective when the last of the following events shall have
occurred:
(a) the Agent shall have received a fully executed counterpart
of this Amendment No. 12;
(b) no Default shall have occurred and be continuing which
constitutes an Event of Default or would constitute an Event of Default upon the
giving of notice or lapse of time or both, and no event or development which has
had or is reasonably likely to have a Material Adverse Effect shall have
occurred, in each case since the date of delivery to the Agent and the Lenders
of the Borrower's most recent financial statement, and the Agent and the Lenders
shall have received a certificate from the Borrower, executed by its Chief
Financial Officer, as to the truth and accuracy of this paragraph (b); and
(c) the Agent and the Lenders shall have received such
additional documents to further effectuate the purpose of this Amendment No. 12
as any of them or their respective counsel may reasonably request.
Section Four. General Provisions.
(a) Except as herein expressly amended, the Credit Agreement
and all other agreements, documents, instruments and certificates executed in
connection therewith are ratified and confirmed in all respects and shall remain
in full force and effect in accordance with their respective terms.
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(b) All references to the Credit Agreement shall mean the
Credit Agreement as amended as of the effective date hereof, and as amended
hereby and as hereafter amended, supplemented and modified from time to time.
(c) This Amendment No. 12 may be executed by the parties
hereto individually or in combination, in one or more counterparts, each of
which shall be an original and all which shall constitute one and the same
agreement.
(d) This Amendment No. 12 shall be governed by, construed and
interpreted in accordance with the internal laws of the State of New York,
without regard to the conflicts of law principles thereof.
IN WITNESS WHEREOF, each of the Borrower, the Lenders, the
Issuing Bank and the Agent has signed below to indicate its agreement with the
foregoing and its intent to be bound thereby.
DI GIORGIO CORPORATION
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
BT COMMERCIAL CORPORATION, as
Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
LASALLE NATIONAL BANK, as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
IBJ WHITEHALL BANK & TRUST
COMPANY (formerly IBJ Xxxxxxxx Bank and
Trust Company), as a Lender
By:
Name:
Title:
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CONGRESS FINANCIAL
CORPORATION, as a Lender
By: /s/ Xxxxxx XxXxxxxx
-------------------------------
Name: Xxxxxx XxXxxxxx
Title: Assistant Vice President
PNC BANK, as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
SUMMIT COMMERCIAL/GIBRALTAR
CORP., as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: PeterJ. Hollitscher
Title: Vice President
BANKERS TRUST COMPANY,
as Issuing Bank
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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