EXHIBIT 10.2
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this "Second
Amendment") is entered into as of April __, 2002 by and among XXXX FOODS COMPANY
(formerly known as Suiza Foods Corporation), a Delaware corporation (the
"Borrower"), those certain subsidiaries of the Borrower party to the Credit
Agreement defined below (the "Guarantors"), WACHOVIA BANK, NATIONAL ASSOCIATION
(successor to First Union National Bank), as Administrative Agent (the
"Administrative Agent") for the lenders party to the Credit Agreement defined
below (the "Lenders"), BANK ONE, NA, as Syndication Agent for the Lenders (the
"Syndication Agent"), FLEET NATIONAL BANK, XXXXXX TRUST AND SAVINGS BANK and
SUNTRUST BANK, as Co-Documentation Agents (the "Documentation Agents"), the
Required Lenders, and the Tranche B Term Loan Lenders.
RECITALS
WHEREAS, the Borrower, the Guarantors, the Administrative Agent, the
Syndication Agent, the Documentation Agents and the Lenders are parties to that
certain Credit Agreement dated as of July 31, 2001 (as amended, prior to the
date hereof, the "Credit Agreement"), which provides for the making of revolving
loans, term loans and other financial accommodations to the Borrower;
WHEREAS, the Credit Parties have requested that (i) the Required
Lenders and the Lenders providing Tranche B Term Loans agree to a modification
to the Credit Agreement to change the pricing of the Tranche B Term Loan, (ii)
the Required Lenders agree to amend the definition of "Equity Issuance" to
exclude the issuance of Capital Stock to directors, officers, employees, former
employees and their personal representatives, heirs and beneficiaries pursuant
to the exercise of options and (iii) the Required Lenders consent to the
acquisition by the Borrower of all or substantially all of the outstanding
Capital Stock of White Wave, Inc. (the "White Wave Acquisition"), and, in
connection therewith, agree that the White Wave Acquisition is a Permitted
Acquisition under the Credit Agreement; and
WHEREAS, the Required Lenders and the Lenders providing Tranche B Term
Loans, as applicable, have agreed to amend the Credit Agreement on the terms and
subject to the conditions set forth in this Second Amendment and the Required
Lenders have agreed to consent to the White Wave Acquisition subject to the
terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Except as otherwise defined in this Second
Amendment, terms defined in the Credit Agreement are used herein as defined
therein.
SECTION 2. AMENDMENT TO THE DEFINITION OF APPLICABLE PERCENTAGE IN THE
CREDIT AGREEMENT. Subject to the satisfaction of the conditions precedent set
forth in Section 6 hereof, the Required Lenders and the Lenders providing
Tranche B Term Loans hereby agree that Section 1.1 of the Credit Agreement shall
be amended effective as of the date hereof by deleting the definition of the
term "Applicable Percentage" set forth therein in its entirety and replacing it
with the following:
"Applicable Percentage" shall mean, for any day, the rate per
annum set forth below opposite the applicable level (the "Level") then
in effect, it being understood that the Applicable Percentage for (i)
Revolving Loans and Tranche A Term Loans which are Alternate Base Rate
Loans shall be the percentage set forth under the column "Alternate
Base Rate Margin for Revolving Loans and Tranche A Term Loans", (ii)
Revolving Loans and Tranche A Term Loans which are LIBOR Rate Loans
shall be the percentage set forth under the column "LIBOR Rate Margin
for Revolving Loans, Tranche A Term Loans and the Letter of Credit
Fee", (iii) Tranche B Term Loans which are Alternate Base Rate Loans
shall be the percentage set forth under the column "Alternate Base Rate
Margin for Tranche B Term Loan," (iv) Tranche B Term Loans which are
LIBOR Rate Loans shall be the percentage set forth under the column
"LIBOR Rate Margin for Tranche B Term Loans", (v) the Letter of Credit
Fee shall be the percentage set forth under the column "LIBOR Rate
Margin for Revolving Loans, Tranche A Term Loans and Letter of Credit
Fee" and (vi) the Commitment Fee shall be the percentage set forth
under the column "Commitment Fee":
LIBOR Rate
Alternate Margin for
Base Rate Revolving Loans, Alternate
Margin for Tranche A Base Rate LIBOR Rate
Revolving Loans Term Loans Margin for Margin for
Leverage and Tranche A and Letter of Tranche B Tranche B
Level Ratio Term Loans Credit Fee Term Loans Term Loans Commitment Fee
---------------- ---------------------- ----------------- ----------------- --------------- --------------- -----------------
I > or = to 4.00 to 1.0 1.50% 2.75% 1.50% 2.75% 0.50%
II < 4.00 to 1.0 1.25% 2.50% 1.25% 2.50% 0.50%
but
> or = to 3.50 to 1.0
III < 3.50 to 1.0 1.00% 2.25% 1.00% 2.25% 0.50%
but
> or = to 3.00 to 1.0
IV < 3.00 to 1.0 0.75% 2.00% 1.00% 2.25% 0.50%
but
> or = to 2.50 to 1.0
V < 2.50 to 1.0 0.50% 1.75% .75% 2.00% 0.375%
but
> or = to 2.00 to 1.0
VI < 2.00 to 1.0 0.25% 1.50% .75% 2.00% 0.375%
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The Applicable Percentage shall, in each case, be determined and
adjusted quarterly on the date (each an "Interest Determination Date") three (3)
Business Days after the earlier of the date on which the Borrower provides or is
required to provide to the Administrative Agent the annual or quarterly
financial information and certifications in accordance with the provisions of
Sections 5.1(a), 5.1(b) and 5.2(c). Such Applicable Percentage shall be
effective from such Interest Determination Date until the next such Interest
Determination Date. The initial Applicable Percentages on the Funding Date shall
be based on Level II (or Level I, if applicable) until June 21, 2002. After the
Funding Date, if the Borrower shall fail to provide the annual or quarterly
financial information and certifications in accordance with the provisions of
Sections 5.1(a), 5.1(b) and 5.2(c), the Applicable Percentage from such Interest
Determination Date shall, on the date five (5) Business Days after the date by
which the Borrower was so required to provide such financial information and
certifications to the Administrative Agent and the Lenders, be based on Level I
until such time as the date which is three (3) Business Days after the date such
information and certifications are provided, whereupon the Level shall be
determined by the then current Leverage Ratio.
SECTION 3. AMENDMENT TO THE DEFINITION OF EQUITY ISSUANCE IN THE CREDIT
AGREEMENT. Subject to the satisfaction of the conditions precedent set forth in
Section 6 hereof, the Required Lenders hereby agree that Section 1.1 of the
Credit Agreement shall be amended effective as of January 1, 2002, by deleting
the definition of the term "Equity Issuance" set forth therein in its entirety
and replacing it with the following:
"Equity Issuance" shall mean any issuance by the Borrower or
any of its Restricted Subsidiaries to any Person which is not a Credit
Party of (a) shares of its Capital Stock, (b) any shares of its Capital
Stock pursuant to the exercise of options (excluding for purposes
hereof the issuance of Capital Stock pursuant to the exercise of stock
options held by directors, officers or other employees or former
employees of the Credit Parties or personal representatives or heirs or
beneficiaries of any of them) or warrants or (C) any shares of its
Capital Stock pursuant to the conversion of any debt securities to
equity.
SECTION 4. CONSENT. The Required Lenders hereby (a) consent to the
White Wave Acquisition provided that such acquisition shall not exceed
$220,000,000 in the aggregate in total cash consideration and (b) agree that the
White Wave Acquisition constitutes a Permitted Acquisition under the Credit
Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Each of the Credit Parties
represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Second Amendment.
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(b) This Second Amendment has been duly executed and delivered
by such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Person of this Second Amendment.
(d) After giving effect to this Second Amendment, the
representations and warranties set forth in Article III of the Credit
Agreement are, subject to the limitations set forth therein, true and
correct in all respects as of the date hereof (except for those which
expressly relate to an earlier date).
SECTION 6. CONDITION PRECEDENT. The amendments to the Credit Agreement
set forth in Section 2 shall become effective on the date hereof upon receipt by
the Administrative Agent of executed counterparts to this Second Amendment from
the Borrower, the Guarantors, the Required Lenders and each Lender providing
Tranche B Term Loans.
SECTION 7. ACKNOWLEDGEMENT OF GUARANTORS. The Guarantors acknowledge
and consent to all of the terms of this Second Amendment and agree that this
Second Amendment and all documents executed in connection herewith do not
operate to reduce or discharge the Guarantors' obligations under the Credit
Agreement.
SECTION 8. MISCELLANEOUS. Except as expressly provided herein, the
Credit Agreement shall remain unmodified and in full force and effect.
References in the Credit Agreement (including references to such Credit
Agreement as amended hereby) to "this Agreement" (and indirect references such
as "hereunder", "hereby", "herein", and "hereof") and in any Credit Document to
the Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby. This Second Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Second Amendment by
signing any such counterpart. This Second Amendment shall be governed by, and
construed in accordance with, the law of the State of
North Carolina.
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IN WITNESS WHEREOF, each of the parties hereto have caused this Second
Amendment to be duly executed and delivered by its proper and duly authorized
officers as of the day and year first above written.
BORROWER: XXXX FOODS COMPANY,
a Delaware corporation
By:
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Name:
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Title:
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GUARANTORS:
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AGENTS AND LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION, in its
capacity as Administrative Agent and individually
in its capacity as a Lender
By:
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Name:
Title:
[signature pages continue]
LENDERS:
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[Lender]
By:
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Name:
Title:
