Exhibit 10.36
THIRD AMENDMENT TO CREDIT AGREEMENT
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This Third Amendment ("Amendment") is made as of the 20th day of
May, 2002 to the Credit Agreement dated as of March 31 1998 (as
amended, supplemented, restated or otherwise modified and in effect
from time to time, the "Credit Agreement"), by and among XXXX X.
XXXXXXXXXX & SON, INC., a Delaware corporation (and successor in
interest to Sunshine Nut Co., Inc. and Quantz Acquisition Co., Inc.),
and JBS INTERNATIONAL, INC., a Barbados corporation, (collectively,
the "Borrower"), the financial institutions party thereto
(collectively "Lenders" and individually a "Lender") and U.S. BANK
NATIONAL ASSOCIATION, a national banking association, in its capacity
as successor Agent for the Lenders to U.S. Bancorp Ag Credit, Inc., a
Colorado corporation (the "Agent").
RECITAL
Except as defined herein, all capitalized terms used in this
Amendment shall have meaning assigned to them in the Credit Agreement.
Borrower and the Lenders desire that the Credit Agreement be amended
to allow the extension of the expiration date of the Xxxxxxxxxx XX (an
Extended LC issued hereunder by LaSalle Bank National Association)
from June 1, 2002 to June 1, 2006 and to otherwise amend the Credit
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
terms and conditions contained in the Credit Agreement and this
Amendment, and of any loans or extensions of credit or other financial
accommodations at any time made to or for the benefit of the Borrower
by Lenders, the Borrower and Lenders agree as follows:
1. Section 1.1 of the Credit Agreement, General Definitions,
is amended by deleting, adding or amending the following definitions
which, in the case of added or amended definitions, shall read in full
as follows:
"Business Day" shall mean any day of the year on which
commercial banks in New York, New York are not required or
authorized to close.
"Eurodollar Rate" / Deleted. Each and every
reference in any Financing Agreement to "Eurodollar Rate"
shall be deemed to be a reference to "LIBOR Rate".
"Eurodollar Rate Loan" / Deleted. Each and every
reference in any Financing Agreement to "Eurodollar Rate
Loan" shall be deemed to be a reference to "LIBOR Rate
Loan".
"Interest Period" shall mean: (a) with respect to
LIBOR Rate Loans, the period of time for which the LIBOR
Rate shall be in effect as to
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any LIBOR Rate Loan and which shall be a one, two, three
or six month period of time, commencing with the borrowing
date of the LIBOR Rate Loan or the expiration date of the
immediately preceding Interest Period, as the case may be,
applicable to and ending on the effective date of any rate
change or rate continuation made as provided herein as the
Borrower may specify in a notice of borrowing or a notice of
interest conversion; provided however: (b) any Interest Period
which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month,
in which case such Interest Period shall end on the next
preceding Business Day, (c) no Interest Period shall extend
beyond the applicable Maturity Date, and (d) there shall be
no more than 5 Interest Periods at any one time.
"LIBOR Rate" shall mean, with respect to each day
during each Interest Period applicable to a LIBOR Rate
Advance, the one, two, three or six month LIBOR rate quoted
by the Agent from Telerate Page 3750 or any successor
thereto (which shall be the LIBOR rate in effect two
Business Days prior to the LIBOR Rate Loan) rounded up to
the nearest one sixteenth of one percent.
"LIBOR Rate Loan" shall mean any Loan which bears
interest at the LIBOR Rate plus the Applicable Margin.
"Prime Rate" shall mean the prime rate announced by
the Agent from time to time, which is a base rate that the
Agent from time to time establishes and which serves as the
basis upon which effective rates of interest are calculated
for those loans which make reference thereto. The Prime
Rate is not necessarily the lowest rate offered by the
Agent.
"Prime Rate Loan" shall mean any Loan which bears
interest at the Prime Rate plus the Applicable Margin.
"Reference Rate" / Deleted. Each and every reference
in any Financing Agreement to "Reference Rate" shall be
deemed to be a reference to "Prime Rate".
"Reference Rate Loan" / Deleted. Each and every
reference in any Financing Agreement to "Reference Rate
Loan" shall be deemed to be a reference to "Prime Rate
Loan".
"U.S. Bank" / Deleted. Each and every reference in
any Financing Agreement to "U.S. Bank" shall be deemed to
be a reference to the Agent.
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2. The outside expiry date for Extended LC's set forth in
Section 2.2(b)(iii) of the Credit Agreement, shall be amended to read
"June 1, 2006".
3. Subsection (j) of Section 2.2 of the Credit Agreement,
LC's, shall be amended to read as follows:
(j) If any LC is issued and outstanding on the
Maturity Date, Borrower shall deposit with the Agent, for
the ratable benefit of the Lenders and the Issuer, cash
collateral in an amount equal to the LC Obligations
relating to such LC.
4. Section 6.2 of the Credit Agreement, Additional Fees with
Respect to LC's, shall be amended to read as follows:
6.2 Additional Fees with Respect to LC's. The
Borrower agrees to pay to the Agent for distribution to the
Lenders (based on their respective Pro Rata Percentages) a
quarterly fee in respect of each LC issued hereunder from
the Closing Date to the Maturity Date, on the face amount
of such LC (accrued on the basis of a 360 day year, and
charged for actual days elapsed). The rate at which the LC
fee is calculated during any quarter shall be the rate set
forth below for the then applicable Financial Performance
Level:
Financial Rate for LC's Expiring Within Rate for LC's Expiring
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Performance Xxxxx 00 Months of Issuance More Than 12 Months
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After Issuance*
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Xxxxx 0 2.50% 2.75%
Xxxxx 0 2.00% 2.25%
Xxxxx 0 1.75% 2.00%
Xxxxx 0 1.50% 1.75%
Xxxxx 0 1.25% 1.50%
*Does not include the Xxxxxxxxxx XX. The rate at which the
LC fee is calculated during any quarter for the Xxxxxxxxxx
XX shall be 2.00%.
The quarterly LC fee shall be due and payable in arrears on
the first day of each January, April, July and October
hereafter through the Maturity Date, unless the Borrower
has fully terminated the Commitment in accordance with
Section 4.4 and there are then no outstanding Letter of
Credit Obligations. A pro-rated LC fee shall also be due
and payable on the Maturity Date and on any date on which
the Borrower terminates the Commitment in full in
accordance with Section 4.4. Each quarterly LC fee
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shall be earned as it accrues and, at the option of the Agent,
shall be paid by Agent initiated Loans. The Borrower shall
also pay to the Agent for the account of the Affiliate of
the Agent issuing any LC, the normal and customary
processing fees charged by such Affiliate in connection
with the issuance of or drawings under each such LC.
5. The effectiveness of this Amendment is conditioned on the
execution and delivery of this Amendment.
6. This Amendment shall be an integral part of the Credit
Agreement, as amended, and all of the terms set forth therein are
hereby incorporated in this Amendment by reference, and all terms of
this Amendment are hereby incorporated into said Credit Agreement, as
if made an original part thereof. All of the terms and provisions of
the Agreement, as amended, which are not modified in this Amendment
shall remain in full force and effect.
IN WITNESS WHEREOF, this Amendment has been duly executed as of
the day and year first above written.
XXXX X. XXXXXXXXXX & SON, INC.,
a Delaware corporation
ATTEST:
By /s/ Xxxxxx X. Xxxxxxxxxx, Xx. By /s/ Xxxxxxx X. Xxxxxxxxx
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Its Assistant Secretary Its Chief Financial Officer
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JBS INTERNATIONAL, INC., a
Barbados corporation
ATTEST:
By /s/ Xxxxxx X. Xxxxxxxxxx, Xx. By /s/ Xxxxxxx X. Xxxxxxxxx
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Its Vice President Its President
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U.S. BANK NATIONAL ASSOCIATION
as Agent and as a Lender
By /s/ Xxxxxx Xxxxx
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Its Vice President
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SUN TRUST BANK, N.A., as a Lender
By /s/ Xxxx X. Xxxxxx
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Its Director
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LASALLE BANK NATIONAL ASSOCIATION
(f/k/a LaSalle National Bank), as
a Lender
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Its Assistant Vice President
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