Exhibit 10.17
EXECUTION
COPY
FIRST AMENDMENT dated as of February 3, 2004 (this "Amendment")
executed in connection with RESTATED CREDIT AGREEMENT dated as of November 15,
1999 (the "Credit Agreement") among XXXXXXXXX CORPORATION, as Borrower (the
"Borrower"), each of the financial institutions party thereto from time to time
(each a "Lender" and collectively, the "Lenders"), BT COMMERCIAL CORPORATION, in
its capacity as agent for the Lenders (in such capacity, the "Agent"), and
DEUTSCHE BANK AG NEW YORK, as Issuing Bank. Terms which are capitalized in this
Amendment and not otherwise defined shall have the meanings ascribed to them in
the Credit Agreement.
WHEREAS, the Borrower has requested that the Lenders consider
extending the Expiration Date and modifying certain restrictions on the ability
of the Borrower to pay dividends during its current fiscal year, and the Lenders
have agreed to do so on the terms and subject to the satisfaction of the
conditions contained herein;
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 parties hereto hereby agree as
follows:
Section One. Amendment. Effective as of the date hereof, on the terms
and subject to the satisfaction of the conditions contained in Section Three
hereof, the Credit Agreement is hereby amended as follows:
(a) Section 1.1 General Definitions. Section 1.1 is amended by
deleting the definition of the term Expiration Date in its entirety, and by
substituting the following definition in lieu thereof:
Expiration Date shall mean February 1, 2007.
(b) Section 8.10. No Restricted Payments. Section 8.10 is amended by
deleting clause (ii) of subparagraph (a) thereof in its entirety, and by
substituting the following in lieu thereof:
"(ii) the Borrower may declare and pay ratably dividends
with respect to its capital stock to its stockholders each
fiscal year, during the sixty day period commencing on the
date of the Agent's receipt of the Borrower's audited
Financial Statements for the prior fiscal year, in an
aggregate amount not to exceed (A) in the fiscal year ending
on or about December 31, 2004, the lesser of (I) fifty
percent (50%) of Net Income for the fiscal year ended
December 27, 2003 plus $4,000,000 and (II) $10,000,000 and
(B) in any fiscal year other than the fiscal year ending on
or about December 31, 2004, fifty percent (50%) of Net
Income for the prior fiscal year; provided that (1) no
Default or Event of Default shall have occurred and then be
continuing or would result therefrom, (2) immediately after
giving effect to any such proposed dividend, there shall be
an aggregate amount of Unused Availability of at least
$50,000,000, in the case of any such proposed dividend paid
in the fiscal year ending on or about December 31, 2004, or
$30,000,000, in the case of any such proposed dividend paid
in any fiscal year other than the fiscal year ending on or
about December 31, 2004, (3) the ratio of EBITDA to the sum
of Interest Expense, dividends and taxes paid in cash, and
Capital Expenditures made, in each case with respect to the
Borrower, on a consolidated basis, for the fiscal year
immediately prior to the fiscal year during which such
proposed dividend shall have been paid, shall be no less
than 1.25 to 1.00, such ratio to be calculated as if such
dividend shall have been paid on the lst day of such
preceding fiscal year and (4) at least ten Business Days
prior to the date on which the Borrower proposes to pay such
dividend, the Agent shall have received a certificate
prepared under the direction of and executed by the
Borrower's chief executive officer or chief financial
officer, pursuant to which such officer shall certify to the
Lenders that in determining Unused Availability for the
purpose of clause (2) hereof, the Borrower's trade payables
have been paid in a manner consistent with the Borrower's
historical practices; and"
(c) Annex I. Lenders and Commitment Amounts. Annex I to the Credit
Agreement is deleted in its entirety, and Annex I to this Amendment is hereby
substituted in lieu thereof.
Section Two. Resignation of Agent; Appointment of Successor Agent. The
Agent hereby gives notice to the Lenders and the Borrower of its resignation as
Agent under the Credit Agreement, effective as of the date hereof, and the
Lenders and the Borrower hereby accept such resignation effective as of the date
hereof, notwithstanding the minimum notice requirement set forth in Section 10.9
(a) of the Credit Agreement. Notwithstanding the terms of such Section 10.9 (a),
Deutsche Bank AG New York shall continue to serve as Issuing Bank, and the
Lenders and the Borrower hereby confirm their agreement with the foregoing. The
Lenders, with the Borrower's approval, hereby appoint Deutsche Bank Trust
Company Americas, a New York banking corporation formerly known as Bankers Trust
Company, to serve as successor Agent, Deutsche Bank Trust Company Americas
hereby accepts such appointment, and at all times on and after the effective
date of this Amendment, Deutsche Bank Trust Company Americas shall be the Agent
for all purposes under the Credit Agreement, the Security Agreement and the
other Credit Documents.
Section Three. Conditions Precedent. This Amendment shall become
effective on the date when all of the following conditions, the satisfaction of
each of which is a condition precedent to the effectiveness of this Amendment,
shall have occurred or shall have been waived in writing by the Agent and the
Lenders.
(a) The Agent shall have received the following:
(i) a counterpart of this Amendment executed by the Borrower and
the Lenders;
(ii) an agreement executed by the Borrower with respect to the
payment of certain fees and expenses, as set forth therein;
(iii)an Assignment and Assumption Agreement duly executed by (x)
each assigning Lender that is selling a portion of its
Revolving Credit Commitment concurrently with the execution
and delivery of this Amendment, and (y) the applicable
assignee Lender; and
(iv) a duly executed replacement Revolving Note, payable to each
Lender, in a principal amount equal to the amount of such
Lender's Revolving Credit Commitment, calculated after
giving effect to the transactions contemplated to occur
under the Assignment and Assumption Agreements referenced in
clause (iii) above,
(b) Upon the effectiveness of this Amendment, all representations and
warranties set forth in the Credit Agreement (except for such inducing
representations and warranties that were only required to be true and correct as
of a prior date) shall be true and correct in all material respects on and as of
the effective date hereof, and no Default or Event of Default shall have
occurred and be continuing.
(c) No event or development shall have occurred since the date of
delivery of the audited Financial Statements for the fiscal year ended on or
about December 31, 2002 (the "Delivery Date") which event or development has had
or is reasonably likely to have a Material Adverse Effect.
(d) The Borrower shall have delivered to the Agent a certificate of
the Secretary of the Borrower (1) relating to the adoption of the resolutions of
the Borrower's Board of Directors approving this Amendment and the transactions
contemplated to occur hereunder and (2) certifying that no amendments have been
made to the Borrower's Certificate of Incorporation or the Borrower's by-laws
since the Delivery Date.
(e) All corporate and legal proceedings and all documents and
instruments executed or delivered in connection with this Amendment shall be
satisfactory in form and substance to the Agent and its counsel, and the Agent
and its counsel shall have received all information and copies of all documents
which the Agent and its counsel may have requested in connection herewith and
the matters contemplated hereunder.
(f) There shall be no action, suit or proceeding pending or threatened
against the Borrower before any court (including any bankruptcy court),
arbitrator or governmental or administrative body or agency which challenges or
relates to the consummation of this Amendment or the transactions contemplated
herein.
(g) The Agent shall have received such further agreements, Amendments,
instruments and documents as may be necessary or proper in the reasonable
opinion of the Agent and its counsel to carry out the provisions and purposes of
this Amendment.
Section Four. Representations and Warranties.
(a) The Borrower has the corporate power, authority and legal right to
execute, deliver and perform this Amendment, and any instruments, agreements,
documents and transactions contemplated hereby, and has taken all actions
necessary to authorize the execution, delivery and performance of this
Amendment, and any instruments, agreements, documents and transactions
contemplated hereby;
(b) No consent of any Person (including, without limitation,
shareholders or creditors of the Borrower, as the case may be) other than the
Agent and the Lenders, and no consent, waiver, permit, approval or authorization
of, exemption by, notice or report to, or registration, filing or declaration
with, any governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability of this Amendment;
(c) This Amendment has been duly executed and delivered on behalf of
the Borrower by the Borrower's duly authorized officer, and constitutes the
legal, valid and binding obligation of the Borrower, enforceable in accordance
with its terms;
(d) The Borrower is not in default under any indenture, mortgage, deed
of trust, material agreement or other material instrument to which it is a party
or by which it may be bound. Neither the execution and delivery of this
Amendment, nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof or thereof will (i) violate any law or
regulation applicable to the Borrower, or (ii) result in or cause a violation by
the Borrower of any order or decree of any court or government instrumentality,
or (iii) conflict with, or result in the breach of, or constitute a default
under, any indenture, mortgage, deed of trust, material agreement or other
material instrument to which the Borrower is a party or by which it may be
bound, or (iv) result in the creation or imposition of any lien, charge, or
encumbrance upon any of the property of the Borrower, except in favor of the
Agent, to secure the Obligations, or (v) violate any provision of the
Certificate of Incorporation, By-Laws or any capital stock provisions of the
Borrower;
(e) No Event of Default has occurred and is continuing;
(f) Since the Delivery Date, no change or event has occurred which has
had or is reasonably likely to have a Material Adverse Effect; and
(g) The recitals contained in this Amendment are true and correct in
all material respects.
Section Five. General Provisions.
(a) Counterparts. This Amendment may be executed by the parties hereto
individually or in any combination, in one or more counterparts, each of which
shall be an original and all of which shall constitute one and the same
agreement.
(b) Credit Agreement in Full Force and Effect. All of the provisions
of the Credit Agreement shall remain in full force and effect from and after the
date hereof.
(c) References to Credit Agreement. From and after the date hereof,
all references in the Credit Agreement to "this Agreement", "hereof", "herein"
or similar terms shall mean and refer to the Credit Agreement as amended
pursuant to this Amendment.
(d) Reliance on Representations and Warranties. The Borrower
acknowledges that the Agent and the Lenders have relied upon, and are entitled
to rely upon, the representations and warranties made by or on behalf of the
Borrower in connection with this Amendment as an inducement to the execution and
delivery of this Amendment by them.
(e) Governing Law. This Amendment and the rights and obligations of
the parties hereunder shall be construed in accordance with and be governed by
the internal substantive laws of the State of New York.
(f) Authorization to Filing Financing Statement; Legal Fees and
Expenses. The Borrower hereby authorizes the Agent to file a financing
statement, in each jurisdiction deemed appropriate by the Agent, to reflect the
transfer and assignment of the security interest in the Collateral by BT
Commercial Corporation, as Agent to Deutsche Bank Trust Company Americas, as
Agent. The Borrower agrees to be liable for all of the Agent's reasonable costs
and expenses (including reasonable fees and disbursements of the Agent's legal
counsel) paid or incurred in connection with the preparation of this Amendment
and the consummation of the transactions contemplated to occur hereunder.
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have
caused this Amendment to be duly executed by its respective officer thereunto
duly authorized as of the day and year first above written.
BORROWER:
---------
DI GIORGIO CORPORATION
By: /s/ Xxxxxx X. Xxxx
-----------------------
Name: Xxxxxx X. Xxxx
Title: EVP
FORMER AGENT:
------------
BT COMMERCIAL CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Director
SUCCESSOR AGENT:
---------------
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
LENDERS:
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxx Xxxx
------------------
Name: Xxxx Xxxx
Title: Vice President
FLEET CAPITAL CORPORATION, as successor
to Summit Business Capital Corp., d/b/a
Fleet Capital Business Finance, f/k/a
Summit Commercial Gibraltar Corp.
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
Fleet Capital Corporation
PNC BANK
By: /s/ Xxxxxxxxxx Xxxxxxxxxxxxxxxx
------------------------------------
Name: Xxxxxxxxxx Xxxxxxxxxxxxxxxx
Title: Assistant Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxx
---------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
BANCO POPULAR
By: /s/ Xxx Xxxxxxx
--------------------
Name: Xxx Xxxxxxx
Title: Vice President
ANNEX I
LENDERS AND COMMITMENT AMOUNTS
Name and Address of Lender Revolving Credit Commitment
-------------------------- ---------------------------
Deutsche Bank Trust Company Americas $20,000,000
Domestic and Eurodollar
Lending Office and Address
for Notices:
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Congress Financial Corporation $20,000,000
Domestic and Eurodollar
Lending Office and Address
for Notices:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Fleet Capital Corporation, as successor to
Summit Commercial/Gibraltar Corporation $15,000,000
Domestic and Eurodollar
Lending Office and Address
for Notices:
0000 Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
PNC Bank $12,500,000
Domestic and Eurodollar
Lending Office and Address
for Notices:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxx Xxxxxxxxxxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
LaSalle Bank National Associations $12,500,000
Domestic and Eurodollar
Lending Office and Address
for Notices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Banco Popular $10,000,000
Domestic and Eurodollar
Lending Office and Address
for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
TOTAL COMMITMENTS $90,000,000
