SECOND AMENDMENT
SECOND AMENDMENT, dated as of September 28, 1998 (this "Amendment"), to the
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Amended and Restated Credit Agreement, dated as of December 22, 1997 (as
heretofore and hereafter amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among Imperial Xxxxx Corporation (the
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"Borrower"), the several Lenders from time to time parties thereto, Xxxxxx
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Commercial Paper, Inc., as Syndication Agent, Xxxxxx Brothers Inc., as Arranger
and Xxxxxx Trust and Savings Bank, as Administrative Agent and Collateral Agent.
W I T N E S S E T H
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WHEREAS, the Borrower has requested that the Lenders amend certain
provisions of the Credit Agreement;
WHEREAS, the Lenders have agreed to such amendments only upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, capitalized
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terms which are defined in the Credit Agreement are used herein as therein
defined.
SECTION 2. Amendments to the Credit Agreement.
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(a) Section 1.1 of the Credit Agreement is hereby further amended by
amending the definition of AConsolidated Total Debt" to provide as
follows:
"Consolidated Total Debt": at any date, the
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sum of (a) the aggregate principal amount
of all Funded Debt of the Borrower and its
Subsidiaries at such date minus (b) the
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excess of (i) the aggregate principal
amount of all Revolving Credit Loans, Swing
Line Loans and Indebtedness incurred
pursuant to Section 7.2(k) outstanding at
such date over (ii) the lesser of (A) the
Acquisition Debt and (B) the lowest amount
described in the
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foregoing clause (i) to be outstanding
during any consecutive 30 days occurring
within the 12 months ending on such date
(or, if less, since the Acquisition Date),
all determined on a consolidated basis in
accordance with GAAP; provided that for
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the purposes of calculating Consolidated
Total Leverage Ratio for its use in
determining the Applicable Margin and the
Commitment Fee Rate in the Pricing Grid,
AConsolidated Total Debt" shall mean, at
any date, the aggregate principal amount of
all Funded Debt of the Borrower and its
Subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP.
(b) Section 1.1 of the Credit Agreement is hereby further amended by
amending the definition of "Disposition" by inserting after the
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word "thereof" the phrase "(provided that the cancellation of shares
of IHK Acquisition Corp. as contemplated in the DSLT Merger Agreement
shall not be a "Disposition" hereunder)."
(c) Section 1.1 of the Credit Agreement is hereby further amended by
inserting therein in proper alphabetical order the following
definitions:
"Acquisition Date" means the "Effective
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Time", as such term is defined in the DSLT
Merger Agreement.
"Acquisition Debt" means the outstanding
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principal amount of Revolving Loans, the
proceeds of which are used to pay the
adjusted "Merger Price", as such term is
defined in the DSLT Merger Agreement; not
to exceed $115,300,000.
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"Consolidated Current Ratio": as of any
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date, the ratio of (a) all amounts which
would, in conformity with GAAP, be
attributable to and reflected as accounts
receivable, inventory and deferred costs
on a consolidated balance sheet of the
Borrower and its Subsidiaries at such
date, to (b) the sum of (i) all amounts
which would, in conformity with GAAP, be
attributable to and reflected as accounts
payable on a consolidated balance sheet of
the Borrower and its Subsidiaries and (ii)
the aggregate principal amount of all
Indebtedness consisting of Revolving
Credit Loans, Swing Line Loans or
Indebtedness of the Borrower and its
Subsidiaries incurred pursuant to Section
7.2(k) on such date.
"DSLT Merger": shall mean the
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"Merger," as such term is
defined in the DSLT Merger
Agreement.
"DSLT" Merger Agreement": means
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the Agreement and Plan of Merger
dated September 2, 1998, among
the Borrower, IHK Acquisition
Corp. and DSLT Inc., as amended
from time to time.
"WF": means Wholesome Foods
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L.L.C., a Florida limited
liability company.
"WF Acquisition": means the
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acquisition of WF pursuant to
the WF Purchase Agreement.
"WF Purchase Agreement": means
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the Stock Purchase Agreement
dated as of September 1, 1998
among the Borrower, the Xxxxx X.
Xxxx Revocable Trust and the
1992 Root Children's Business
Trust as amended from time to
time.
(d) Section 2.5 of the Credit Agreement is hereby amended by deleting from
the sixth line thereof the phrase "one Business Day prior to" and
inserting in lieu thereof the phrase "no later than the".
(e) Section 2.12(a) of the Credit Agreement is hereby amended by inserting
at the end thereof the following phrase:
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The Lenders hereby agree that
this Section 2.12(a) shall not
apply to the issuance of up to
$40,000,000 of Capital Stock to
be issued in connection with the
DSLT Merger.
(f) The Credit Agreement is hereby amended by inserting therein the
following new Section 2.25:
2.25. Cleandown Periods. As of each fiscal year end, the
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aggregate principal amount of Revolving Loans
and Swing Line Loans outstanding at such date
must be reduced to at least the following
amounts for 30 consecutive days:
Fiscal Year End Outstandings
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September 30, 1999 $ 100 million
September 30, 2000 $ 85 million
September 30, 2001 $ 70 million
September 30, 2002 $ 55 million
The application of any prepayment pursuant to
Section 2.25 shall be made first to Base Rate
Loans and second to Eurodollar Loans. Each
prepayment of the Loans under Section 2.25
(except in the case of Revolving Credit Loans
that are Base Rate Loans and Swing Line
Loans) shall be accompanied by accrued
interest to the date of such prepayment on
the amount prepaid and any amounts owing
pursuant to Section 2.21.
(g) Section 7.1(b) of the Credit Agreement is hereby amended by
revising the schedule therein to provide as follows:
Consolidated Senior
Fiscal Quarter Leverage Ratio
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September 30, 1998 3.30 to 1.00
December 31, 1998 3.30 to 1.00
March 31, 1999 3.30 to 1.00
June 30, 1999 3.00 to 1.00
September 30, 1999 2.75 to 1.00
December 31, 1999 2.50 to 1.00
March 31, 2000 2.50 to 1.00
June 30, 2000 2.50 to 1.00
September 30, 2000 2.50 to 1.00
December 31, 2000 2.25 to 1.00
March 31, 2001 2.25 to 1.00
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June 30, 2001 2.25 to 1.00
September 30, 2001 2.25 to 1.00
December 31, 2001 2.00 to 1.00
Thereafter 2.00 to 1.00
(h) Section 7.1(e) of the Credit Agreement is hereby deleted and the
following inserted in lieu thereof:
Consolidated Current Ratio. Permit the
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Consolidated Current Ratio as of the
last day of any fiscal quarter of the
Borrower to be less than 1.30 to 1.00.
(i) Section 7.4 of the Credit Agreement is hereby amended by (i) deleting
the word "and" at the end of Section 7.4(a), (ii) deleting the period
at the end of Section 7.4(b) and inserting "; and" in lieu thereof and
(iii) inserting at the end thereof the following new subsection:
(c) any Person may be merged or
consolidated with or into the Borrower
or any Subsidiary so long as (i) the
Borrower or such Subsidiary shall be the
surviving corporation, and (ii) after
giving effect to such events, no Default
or Event of Default shall have resulted
therefrom.
(j) Section 7.7 is hereby amended by inserting at the end thereof the
following provision:
and (iii) to the extent the payment of such
purchase prices constitute a Capital
Expenditure, Capital Expenditures in the
amount of the purchase prices paid in
connection with the acquisition of DSLT Inc.
and WF.
(k) Section 7.8 of the Credit Agreement is hereby amended by (i) deleting
the word "and" at the end of Section 7.8(l), (ii) deleting the period
at the end of subsection (m) and inserting "; and" in lieu thereof and
(iii) inserting the following new subsection:
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(n) as contemplated under (i)
the DSLT Merger Agreement in
connection with the DSLT
Merger, for an aggregate
consideration of not more than
$163,000,000, of which not
less than $40,000,000 are
proceeds from the issuance of
equity securities of the
Borrower and (ii) the WF
Purchase Agreement in
connection with the WF
Acquisition.
(l) Section 7.10 is hereby amended by amending the last sentence thereof
by inserting after the phrase "and the Merger" the phrase "and the
DSLT Merger and the WP Acquisition."
(m) Notwithstanding anything in the Credit Agreement to the contrary, the
Lenders hereby consent to the performance of the Borrower"s
obligations under Sections 2.4 and 2.5 of the WF Purchase Agreement.
SECTION 3. Conditions to Effectiveness. This Amendment shall become
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effective as of the date hereof (the "Effective Date") upon satisfaction of the
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following conditions precedent:
(a) The execution and delivery of this Amendment by a duly authorized
officer of each of the Borrower, the Agents and the Required Lenders;
(b) Delivery to the Administrative Agent of true, correct and complete
copies of the executed DSLT Merger Agreement and the WF Purchase Agreement,
together with copies of any legal opinions delivered in connection therewith;
(c) Delivery to the Administrative Agent of the DSLT Financial
Statements (as defined below);
(d) Delivery to the Administrative Agent of the tax return of WF and
its subsidiary as of and for the year ended December 31, 1997; and
(e) Payment of an amendment fee of 12.50 basis points on each Lender's
existing Commitment to those Lenders which have approved the Amendment on or
prior to September 28, 1998.
SECTION 4. Representation and Warranties. The Borrower represents
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and warrants to each Agent and each Lender that as of the Effective Date, before
and after giving effect to this Amendment: (i) no Default or Event of Default
has occurred and is continuing; (ii) the representations and warranties made by
the Borrower in or pursuant to the Credit Agreement or any
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Loan Documents are true and correct in all material respects on and as of the
Effective Date as if made on such date (except to the extent that any such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties were true and correct in all material
respects on and as of such earlier date); (iii) this Amendment constitutes the
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except as such enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law); and (iv) the Borrower has delivered to the Lenders the audited
financial statements for DSLT as of and for the year ended March 31, 1997, the
audited financial statements for DSLT as of and for the year ended March 31,
1998 and the unaudited financial statements for DSLT Inc. as of and for the
three months ended June 30, 1998 (collectively, the " DSLT Financial"
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Statements"), and based on the Borrower"s review of the DSLT Financial
Statements and other financial information obtained by the Borrower in
connection with the DSLT Merger, nothing has come to the Borrower's attention as
of the Effective Date that would cause it to believe that the DSLT Financial
Statements are inaccurate in any material respect or that the DSLT Financial
Statements do not present fairly, in all material respects, the consolidated
financial position of DSLT and its subsidiaries as at the date of the DSLT
Financial Statements in conformity with generally accepted accounting
principles, consistently applied, except (A) as otherwise indicated in the DSLT
Financial Statements, and (B) for such matters as would not individually or in
the aggregate have a material adverse effect on the business, operations or
financial condition of the Borrower and its Subsidiaries taken as a whole; (v)
except as reflected, reserved against or otherwise disclosed in the DSLT
Financial Statements, based on the Borrower's review of the DSLT Financial
Statements and other financial information obtained by the Borrower in
connection with the DSLT Merger, nothing has come to the Borrower's attention as
of the Effective Date that would cause it to believe that either DSLT or any of
its subsidiaries had, as of the date of the DSLT Financial Statements, any
material liabilities or obligations that would have been required to be
reflected on the DSLT Financial Statements (including disclosures required in
any notes thereto) in accordance with generally accepted accounting principles,
consistently applied, except for such matters as would not individually or in
the aggregate have a material adverse effect on the business, operations or
financial condition of the Borrower and its Subsidiaries taken as a whole.
SECTION 5. Continuing Effect of Credit Agreement. This Amendment
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shall not constitute an amendment or waiver of or consent to any provision of
the Credit Agreement not expressly referred to herein and shall not be construed
as an amendment, waiver or consent to any action on the part of the Borrower
that would require an amendment, waiver or consent of the Agents or the Lenders
except as expressly stated herein. Except as expressly consented to hereby, the
provisions of the Credit Agreement are and shall remain in full force and
effect.
SECTION 6. Expenses. The Borrower agrees to pay and reimburse the
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Agents for all of their reasonable costs and out-of-pocket expenses incurred in
connection with the preparation, execution and delivery of this Amendment and
ancillary documents, including, without limitation, the reasonable fees and
disbursements of counsel to the Agents.
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SECTION 7. Counterparts. This Amendment may be executed in any
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number of counterparts by the parties hereto, each of which counterparts when so
executed shall be an original, but all counterparts taken together shall
constitute one and the same instrument.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective duly authorized officers as of the
date first above written.
IMPERIAL XXXXX CORPORATION
/s/ XXXX X. XXXXX
By:________________________________
Xxxx X. Xxxxx
Name:______________________________
CFO
Title:_____________________________
XXXXXX COMMERCIAL PAPER, INC., as
Syndication Agent and as a Lender
/s/ XXXXXXX X. X'XXXXX
By:________________________________
Xxxxxxx X. X'Xxxxx
Name:______________________________
Authorized Signatory
Title:_____________________________
XXXXXX TRUST AND SAVINGS BANK, as
Administrative Agent, Collateral Agent,
Issuing Lender and as a Lender
/s/ XXXXX X. XXXXXXX
By:________________________________
Xxxxx X. Xxxxxxx
Name:______________________________
Vice President
Title:_____________________________
WACHOVIA BANK, N.A.
/s/
By:________________________________
Name:______________________________
Title:_____________________________
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By:_________________________________
Name:_______________________________
Title:______________________________
FBS AG CREDIT, INC.
/s/ XXXX X. XXXXXXX
By:_________________________________
Xxxx X. Xxxxxxx
Name:_______________________________
Vice President
Title:______________________________
THE BANK OF NEW YORK
/s/ XXXXX X. XXXXX
By:_________________________________
Xxxxx X. Xxxxx
Name:_______________________________
Assistant Vice President
Title:______________________________
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
ARABOBANK NEDERLAND" NEW
YORK BRANCH
/s/ XXXXXX X. XXXXXX
By:_________________________________
Xxxxxx X. Xxxxxx
Name:_______________________________
Senior Vice President
Title:______________________________
/s/ XXXXX X. XXXX
By:_________________________________
Xxxxx X. Xxxx
Name:_______________________________
Vice President
Title:______________________________
ST. XXXX BANK FOR COOPERATIVES
/s/ XXXXXX XXXXX
By:_________________________________
Xxxxxx Xxxxx
Name:_______________________________
Senior Vice President
Title:______________________________
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FROST NATIONAL BANK
/s/ W. XXXX XXXXXX
By:________________________________
W. Xxxx Xxxxxx
Name:______________________________
Vice President
Title:_____________________________
CREDIT AGRICOLE INDOSUEZ
/s/ XXXXXX X. XXXXXX W. XXXXX XXXXXX
By:_____________________________________________
Xxxxxx X. Xxxxxx W. Xxxxx Xxxxxx
Name:___________________________________________
Senior Vice President First Vice President
Title:__________________________________________
XXXXX FARGO BANK (TEXAS), N.A.
/s/ XXXXX X. XXXXXXX
By:________________________________
Xxxxx X. Xxxxxxx
Name:______________________________
Vice President
Title:_____________________________
BALANCED HIGH YIELD FUND I LTD.,
By: BHF-BANK AKTIENGESELLSCHAFT,
acting through its New York Branch
By:________________________________
Name:______________________________
Title:_____________________________
GCB INVESTMENT PORTFOLIO
By:________________________________
Name:______________________________
Title:_____________________________
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XXXXXXX XXXXX DEBT STRATEGIES
PORTFOLIO
By:________________________________
Name:______________________________
Title:_____________________________
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:________________________________
Name:______________________________
Title:_____________________________
XXXXXXX XXXXX INCOME STRATEGIES
PORTFOLIO
By:__________________________________
Name:________________________________
Title:_______________________________
METROPOLITAN LIFE INSURANCE
COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
OSPREY INVESTMENTS PORTFOLIO
By:________________________________
Name:______________________________
Title:_____________________________
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PEOPLES SECURITY LIFE INSURANCE
COMPANY
c/o AEGON USA INVESTMENT
MANAGEMENT
By:________________________________
Name:______________________________
Title:_____________________________
PILGRIM AMERICA PRIME RATE TRUST
By:________________________________
Name:______________________________
Title:_____________________________
PAMCO CAYMAN LTD.
By: PROTECTIVE ASSET MANAGEMENT
COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
XXXXXX DIVERSIFIED INCOME TRUST
By:________________________________
Name:______________________________
Title:_____________________________
XXXXXX VT HIGH YIELD FUND
By:________________________________
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Name:______________________________
Title:_____________________________
THE TRAVELERS INSURANCE COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
XXX XXXXXX AMERICAN CAPITAL
/s/ XXXXXXX X. XXXXXX
By:_____________________________________
Xxxxxxx X. Xxxxxx
Name:___________________________________
Senior Vice President & Director
Title:__________________________________
XXX XXXXXX AMERICAN CAPITAL
SENIOR INCOME TRUST
/s/ XXXXXXX X. XXXXXX
By:_____________________________________
Xxxxxxx X. Xxxxxx
Name:___________________________________
Senior Vice President & Director
Title:__________________________________
XXX XXXXXX CLO I, LIMITED
BY: XXX XXXXXX AMERICAN
CAPITAL MANAGEMENT INC.,
as Collateral Manager
/s/ XXXXXXX X. XXXXXX
By:________________________________
Xxxxxxx X. Xxxxxx
Name:______________________________
Senior Vice President
Title:_____________________________
TORONTO DOMINION
By:________________________________
Name:______________________________
Title:_____________________________
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