FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.5
Execution Version
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of April 6, 2018 (this “Amendment”), by and among DFC Holdings, LLC, a Delaware limited liability company (“Holdings”), Xxxx Food Company, Inc., a North Carolina corporation (the “Company”), Solvest, Ltd. (the “Bermuda Borrower” and, together with the Company, the “Borrowers”), the other Loan Parties party hereto, the Lenders (as defined below) party hereto and Bank of America, N.A., as Administrative Agent.6
RECITALS:
WHEREAS, reference is hereby made to the Credit Agreement, dated as of April 6, 2017 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”; and the Credit Agreement as amended by this Amendment, the “Amended Credit Agreement”), among Holdings, the Borrowers, the lending institutions from time to time parties thereto (the “Lenders”) and Bank of America, N.A., as Administrative Agent (capitalized terms used but not defined herein having the meaning provided in the Credit Agreement); and
WHEREAS, Holdings and the Borrowers have requested that the Administrative Agent and Lenders party hereto amend certain provisions of the Credit Agreement in certain respects as more fully described herein, and the Administrative Agent and Lenders party hereto (which constitute Required Lenders) have agreed to permit such amendments, all subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
| 1. | Amendment. The Credit Agreement is, effective as of the First Amendment Effective Date, hereby amended
to delete the stricken text (indicated textually in the same manner as the following example: |
| 2. | Reaffirmation. |
| (a) | Each of the Loan Parties hereby expressly acknowledges the terms of this Amendment and reaffirms, as of the date hereof, the covenants and agreements contained in each Loan Document to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated hereby. |
| (b) | Each of the Loan Parties, by its signature below, hereby affirms and confirms (i) its obligations under each of the Loan Documents to which it is a party, and (ii) the pledge of and/or grant of a security interest in its assets which are Collateral to |
| secure such Obligations, all as provided in the Collateral Documents as originally executed, and acknowledges and agrees that such guarantee, pledge and/or grant continue in full force and effect in respect of, and to secure, such Obligations under the Credit Agreement and the other Loan Documents. |
| 3. | Amendment, Modification and Waiver. This Amendment may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto. |
| 4. | Representations and Warranties. Each Loan Party hereby represents and warrants as follows as of the date hereof: |
| (a) | Each Loan Party is duly authorized to execute, deliver and perform this Amendment. The execution, delivery and performance of this Amendment have been duly authorized by all necessary corporate or organizational action, and do not (i) violate any provision of the certificate of incorporation, by-laws, certificate of partnership, partnership agreement, certificate of limited liability company, limited liability company agreement or equivalent organizational document, as the case may be, of the Loan Parties; (ii) contravene any material provision of any applicable law, statute, rule or regulation, or any order, writ, injunction or decree of any court or governmental instrumentality; or (iii) result in or require the imposition of any Lien upon any of the material property or assets of the Company or any of its Restricted Subsidiaries, except with respect to contravention, violation or imposition of any Lien referred to in clauses (ii) and (iii) above, that could not reasonably be expected to result in a Material Adverse Effect. |
| (b) | Each of this Amendment and each other Loan Document, after giving effect to the amendments pursuant to this Amendment, is a legal, valid and binding obligation of each Loan Party party thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles. |
| (c) | The representations and warranties of the Loan Parties set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects (except to the extent that any representation and warranty that is qualified by materiality is true and correct in all respects) on and as of the date hereof, except where any representation and warranty is expressly made as of a specific earlier date, such representation and warranty is true in all material respects as of any such earlier date. |
| 5. | First Amendment Effective Date Conditions. This Amendment will become effective on the date (the “First Amendment Effective Date”) on which the conditions set forth on Schedule I hereto are satisfied or waived. |
| 6. | Entire Agreement. This Amendment, the Amended Credit Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof. |
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| 7. | GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. |
| 8. | Severability. Any term or provision of this Amendment which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Amendment or affecting the validity or enforceability of any of the terms or provisions of this Amendment in any other jurisdiction. If any provision of this Amendment is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable. |
| 9. | Counterparts. This Amendment may be executed in counterparts (including by facsimile or other electronic transmission), each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. |
| 10. | WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10. |
| 11. | Loan Document. On and after the First Amendment Effective Date, this Amendment shall constitute a “Loan Document” for all purposes of the Amended Credit Agreement and the other Loan Documents (it being understood that for the avoidance of doubt this Amendment may be amended or waived solely by the parties hereto as set forth in Section 3 above). |
| 12. | Effect of Amendment. Except as expressly set forth herein, (i) this Amendment shall not by implication or otherwise limit, impair, constitute a novation or waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent, in each case under the Credit Agreement or any other Loan Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document. From and after the First Amendment Effective Date, all references to the Credit Agreement in any |
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| Loan Document and all references in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, shall, unless expressly provided otherwise, refer to the Amended Credit Agreement. |
[signature pages to follow]
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| XXXX FOOD COMPANY, INC., as Borrower | ||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: Xxxxx Xxxxxxxxx | ||||
| Title: Vice President, Chief Financial Officer and Treasurer | ||||
| By: | /s/ W. Xxxxx Xxxxxxxx | |||
| Name: W. Xxxxx Xxxxxxxx | ||||
| Title: Assistant Treasurer | ||||
| SOLVEST, LTD., as Bermuda Borrower | ||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: Xxxxx Xxxxxxxxx | ||||
| Title: Director, Vice President, and Treasurer | ||||
| By: | /s/ W. Xxxxx Xxxxxxxx | |||
| Name: W. Xxxxx Xxxxxxxx | ||||
| Title: Assistant Treasurer | ||||
| DFC HOLDINGS, LLC, as Holdings | ||||
| By: | /s/ Xxxx Xxxx | |||
| Name: Xxxx Xxxx | ||||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| By: | /s/ Xxxx Xxxxx | |||
| Name: Xxxx Xxxxx | ||||
| Title | Vice President, General Counsel and Secretary | |||
[Dole —First Amendment]
| AG 1972, INC. |
| BANANERA ANTILLANA (COLOMBIA), INC. |
| BLUE ANTHURIUM, INC. |
| XXX XXXXX, INC. |
| CALICAHOMES, INC. |
| CERULEAN, INC. |
| DB NORTH, LLC |
| DB SOUTH, LLC |
| DOLE ASSETS, INC. |
| XXXX XXXXX COMPANY |
| DOLE CITRUS |
| DOLE DRIED FRUIT AND NUT COMPANY |
| DOLE EUROPE COMPANY |
| XXXX FOODS FLIGHT OPERATIONS, INC. |
| DOLE FRESH FRUIT COMPANY |
| DOLE FRESH VEGETABLES, INC. |
| DOLE HOLDINGS, INC. |
| DOLE LAND COMPANY, INC. |
| DOLE NORTHWEST, INC. |
| DOLE OCEAN CARGO EXPRESS, INC. |
| XXXX XXXXXX, INC. |
| DOLE SUNFRESH EXPRESS, INC. |
| LA PETITE D’AGEN, INC. |
| LINDERO HEADQUARTERS COMPANY, INC. |
| XXXXXXX RANCH, LLC |
| OCEANVIEW PRODUCE LLC |
| RENAISSANCE CAPITAL CORPORATION |
| ROYAL PACKING LLC |
| STANDARD FRUIT AND STEAMSHIP COMPANY |
| STANDARD FRUIT COMPANY |
| WAHIAWA WATER COMPANY, INC., each as a Guarantor |
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxx | ||
| Title: Vice President and Treasurer | ||
| By: | /s/ W. Xxxxx Xxxxxxxx | |
| Name: W. Xxxxx Xxxxxxxx | ||
| Title: Assistant Treasurer | ||
[Dole —First Amendment]
| AGOURA, LIMITED |
| BALTIME, LIMITED |
| CAMARILLO, LIMITED |
| DOLE FOREIGN HOLDINGS II, LTD. |
| DOLE FOREIGN HOLDINGS, LTD. |
| DOLE FRESH FRUIT INTERNATIONAL, LIMITED |
| DOLE INTERNATIONAL, LTD. |
| INTERFRUIT COMPANY, LIMITED |
| MAHELE, LIMITED |
| REEFERSHIP MARINE SERVICES, LTD. |
| SOLAMERICA, LTD. |
| STANDARD FRUIT COMPANY (BERMUDA) LTD. |
| TRANSFRUT EXPRESS LIMITED |
| VENTURA TRADING LTD. |
| MENDOCINO LIMITED, each as a Guarantor |
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxx | ||
| Title: Vice President and Treasurer | ||
| By: | /s/ W. Xxxxx Xxxxxxxx | |
| Name: W. Xxxxx Xxxxxxxx | ||
| Title: Assistant Treasurer | ||
[Dole —First Amendment]
| BANK OF AMERICA. N.A., as the Administrative Agent and a Lender | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Title: Vice President | ||
[Dole —First Amendment]
| XXXXXX XXXXXXX SENIOR FUNDING, INC., as a Lender | ||
| By: | /s/ Xxxxxxxxxxx Xxxxxxxx | |
| Name: Xxxxxxxxxxx Xxxxxxxx | ||
| Title: Vice President | ||
[Dole —First Amendment]
| COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as a lender | ||
| By: | /s/ Xxxxxx xxx Xxxxx | |
| Name: Xxxxxx xxx Xxxxx | ||
| Title: Vice President | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxx Xxxxxxx | ||
| Title: Executive Director | ||
[Dole —First Amendment]
| THE BANK OF NOVA SCOTIA | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | ||
| Title: Managing Director | ||
[Dole —First Amendment]
| U.S. Bank National Association, as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: VP | ||
[Dole —First Amendment]
