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EXHIBIT 10.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment") is executed
as of June 30, 2000, to be effective for all purposes as of the Effective Date
(as hereinafter defined). Reference is made to the Credit Agreement, dated as of
January 4, 2000 (as amended, modified, supplemented and in effect on the date
hereof, the "Credit Agreement"), among Suiza Foods Corporation, a Delaware
corporation (the "Borrower"), certain Subsidiaries of Borrower, the lenders
party thereto (collectively, the "Lenders"), First Union National Bank, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), Bank One, NA, as syndication agent for the Lenders, and Bank of
America, N.A., and Fleet National Bank, as co-documentation agents for the
Lenders.
WHEREAS, the Borrower, the Lenders and the Administrative Agent desire
to amend certain provisions of the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment,
terms defined in the Credit Agreement are used herein as defined therein.
Section 2. Amendments to Credit Agreement and Schedules Thereto.
Subject to the satisfaction of the conditions precedent set forth in Section 5
hereof, the Lenders hereby agree that the Credit Agreement shall be amended as
follows:
A. From and after the Effective Date, the definitions set
forth in Section 1.1 are amended by (i) amending and restating the definitions
of the terms "Leverage Ratio", "Permitted Acquisition" and "SFDG" in their
entirety to read as set forth below and (ii) adding the following other defined
terms thereto in the appropriate alphabetical order:
"Leverage Ratio" shall mean, with respect to the Borrower and
its Restricted Subsidiaries on a consolidated basis for the twelve
month period ending on the last day of any fiscal quarter, the ratio of
(a) Funded Debt of the Borrower and its Restricted Subsidiaries on a
consolidated basis on the last day of such period minus cash held on a
consolidated basis on such day to (b) Consolidated EBITDA for such
period.
"Permitted Acquisition" shall mean an acquisition by the
Borrower or any of its Subsidiaries which (i) is an acquisition of a
Person or assets of a Person in a line of business permitted by Section
6.3 hereof, (ii) is in an amount not greater than $100,000,000 in total
cash consideration (after deducting cash on the balance sheet of the
Person acquired or included in the assets being acquired) for any
single acquisition; provided, however, the total cash consideration
(after deducting cash on the balance sheet of the Person acquired or
included in the assets being acquired) for any single acquisition may
exceed $100,000,000 with the consent of the Required Lenders or if the
funds for such acquisition are provided by SFDG by a loan and the
assets of the entity acquired or the assets acquired are transferred to
SFDG to extinguish such loan or in exchange for a preferred ownership
interest with terms matching such loan's terms, (iii) is approved by
the Board of Directors or the requisite shareholders of the Person
being acquired or Person transferring the assets being acquired,
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(iv) if an acquisition of Capital Stock of a Person, at least 51% of
all issued and outstanding Capital Stock of such Person is acquired,
and (v) after giving effect to such acquisition on a Pro Forma Basis,
the Borrower and its Restricted Subsidiaries are in compliance with
each of the financial covenants set forth in Section 5.9.
"SFDG" shall mean Suiza Dairy Group, L.P., a Delaware limited
partnership and Subsidiary of Borrower.
B. From and after the Effective Date, paragraphs (c) and (l)
in the definition of "Permitted Investment" are hereby amended and
restated to read in their entirety as follows and a new paragraph (o)
is hereby added to the definition of "Permitted Investment" to read as
follows:
"(c) investments of any Subsidiary of the Borrower in the
Borrower, investments of any Restricted Subsidiary of the Borrower in
any other Restricted Subsidiary of the Borrower or investments by the
Borrower in any of its Restricted Subsidiaries, or investments of the
Borrower and/or any of its Restricted Subsidiaries in any of its
Unrestricted Subsidiaries in connection with a Permitted Acquisition;
(l) additional investments up to but not exceeding $50,000,000
in the aggregate during each fiscal year, including investments in
Unrestricted Subsidiaries; provided, however, that notwithstanding the
foregoing, the Borrower shall be permitted to make additional
investments in Unrestricted Subsidiaries during any fiscal year in an
amount equal to the aggregate amount of dividends and other
distributions received by the Borrower or its Restricted Subsidiaries
from such Unrestricted Subsidiaries and payments of Indebtedness by an
Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries
during such fiscal year;
(o) to the extent no Default or Event of Default exists at
such time or would result therefrom, loans by the Borrower or its
Subsidiaries to SFDG or its Subsidiaries up to but not exceeding
$100,000,000 in the aggregate principal amount at any one time
outstanding."
C. From and after the Effective Date, paragraph (c) of Section
2.2 of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
"(c) Interest on Swingline Loans. Subject to the provisions of
Section 2.8(b), Swingline Loans shall bear interest at a per annum rate
equal to the lesser of (i) Alternate Base Rate plus the Applicable
Percentage for Revolving Loans that are Alternate Base Rate Loans, or
(ii) the rate agreed upon by the Borrower and the Swingline Lender with
respect to the portion of the Swingline Loans held by the Swingline
Lender. Interest on Swingline Loans shall be payable in arrears on each
Interest Payment Date."
D. From and after the Effective Date, a new paragraph (i) is
added to Section 6.1 of the Credit Agreement to read as follows:
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"(i) to the extent no Default or Event of Default exists at
such time or would result therefrom, additional Indebtedness of the
Borrower and its Restricted Subsidiaries to SFDG or its Subsidiaries up
to but not exceeding $100,000,000 in the aggregate principal amount at
any one time outstanding."
E. From and after the Effective Date, paragraph (c) of Section
6.4 of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
(c) convey, sell, lease, transfer or otherwise dispose of, in
one transaction or a series of transactions, any part of its business
or assets, whether now owned or hereafter acquired (including, without
limitation, receivables and leasehold interests), but excluding:
(i) any Excluded Disposition;
(ii) obsolete or worn-out Property, tools or
equipment no longer used or useful in its business (other than
any Excluded Disposition) or real Property no longer used or
useful in its business;
(iii) any sale, lease or transfer of assets from a
Credit Party to another Credit Party;
(iv) any sale of Transferred Assets by such Person to
a Receivables Financier in connection with a Permitted
Receivables Financing;
(v) other assets so long as the aggregate amount
thereof sold or otherwise disposed of in any single fiscal
year by the Borrower and its Restricted Subsidiaries shall not
have a book value in excess of ten percent of the book value
of the total assets of the Borrower and its Restricted
Subsidiaries owned on the first day of such fiscal year; and
(vi) any sale or lease of assets (A) to SFDG or its
Subsidiaries in connection with a business realignment to the
extent permitted under Section 6.3 in an aggregate amount, so
long as the Borrower and its Restricted Subsidiaries remain in
compliance with the provisions of Section 5.9, not to exceed
(1) $100,000,000 from the date hereof through June 30, 2001,
(2) $75,000,000 for the period beginning July 1, 2001 through
June 30, 2002 and (3) $50,000,000 on an annual basis for the
period beginning July 1, 2002 through the Maturity Date or (B)
in connection with a Permitted Receivables Financing;
provided, that in each case with respect to subsection (v) above at
least 85% of the consideration received therefor by the Borrower or any
such Restricted Subsidiary is in the form of cash or Cash Equivalents;
and"
F. Schedules 3.6, 3.12, 3.16 and 3.19 to the Credit Agreement
are hereby replaced by Revised Schedules 3.6, 3.12, 3.16 and 3.19 attached to
this Amendment, as of the Effective Date hereof.
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G. 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") shall be
deemed to be references to the Credit Agreement as amended hereby.
Section 3. Representations and Warranties. The Credit Parties hereby
represent and warrant to the Administrative Agent and the Lenders that (i) the
representations and warranties in Article 3 of the Credit Agreement are true and
correct on the date hereof as if made on and as of the date hereof as if each
reference (whether direct or indirect) therein to "this Agreement" included
reference to this Amendment and the Credit Agreement as amended hereby and (ii)
no Default has occurred and is continuing as of the date hereof.
Section 4. Guarantors. Each of the Guarantors (i) acknowledges and
consents to all of the terms and conditions of this Amendment, (ii) affirms all
of its obligations under the Credit Documents and (iii) agrees that this
Amendment and all documents executed in connection herewith do not operate to
reduce or discharge such Guarantor's obligations under the Credit Agreement or
the other Credit Documents.
Section 5. Conditions Precedent. The amendments to the Credit Agreement
set forth in Section 2 shall become effective as of June 30, 2000 on the date
(the "Effective Date") that this Amendment shall have been executed by the
Borrower, the Guarantors and the Required Lenders.
Section 6. Miscellaneous. Except as expressly provided herein, the
Credit Agreement shall remain unmodified and in full force and effect. This
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 Amendment by signing any such counterpart. This
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, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
BORROWER:
SUIZA FOODS CORPORATION
By:
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Name:
---------------------------------
Title:
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GUARANTORS: MORNINGSTAR FOODS INC.
MORNINGSTAR SERVICES INC.
NEPTUNE DELAWARE CORPORATION
XXXX PLASTICS MANUFACTURING CORP.
SUIZA DAIRY CORPORATION
SUIZA FRUIT CORPORATION
SUIZA MANAGEMENT CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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AGREED AND ACCEPTED:
FIRST UNION NATIONAL BANK, in its
capacity as Administrative Agent and
individually in its capacity as a Lender
By:
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Name:
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Title:
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BANK ONE, NA, in its capacity as
Syndication Agent and individually in
its capacity as a Lender
By:
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Name:
---------------------------------
Title:
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BANK OF AMERICA, N.A., in its capacity
as Documentation Agent and individually
in its capacity as a Lender
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
FLEET NATIONAL BANK, in its capacity as
Documentation Agent and individually in
its capacity as a Lender
By:
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Name:
---------------------------------
Title:
--------------------------------
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COBANK, ACB, in its capacity as Managing
Agent and individually in its capacity
as a Lender
By:
-----------------------------------
Name:
---------------------------------
Title:
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CREDIT AGRICOLE INDOSUEZ, in its
capacity as Managing Agent and
individually in its capacity as a Lender
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
in its capacity as Managing Agent and
individually in its capacity as a Lender
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
XXXXX FARGO BANK (TEXAS), N.A., in its
capacity as Managing Agent and
individually in its capacity as a Lender
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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BANCO POPULAR DE PUERTO RICO, in its
capacity as Co-Agent and individually in
its capacity as a Lender
By:
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Name:
---------------------------------
Title:
--------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
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THE BANK OF TOKYO-MITSUBISHI, LTD., in
its capacity as Co-Agent and
individually in its capacity as a Lender
By:
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Name:
---------------------------------
Title:
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THE BANK OF NOVA SCOTIA, in its capacity
as Co-Agent and individually in its
capacity as a Lender
By:
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Name:
---------------------------------
Title:
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SUNTRUST BANK, ATLANTA, in its capacity
as Co-Agent and individually in its
capacity as a Lender
By:
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Name:
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Title:
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CITIBANK, N.A.
By:
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Name:
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Title:
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