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EXHIBIT 10.41
EXECUTION COPY
AMENDMENT NO. 10, dated as of June 11, 1997 ("Amendment No.
10") to CREDIT AGREEMENT dated as of February 10, 1993 (as amended through the
date hereof, the "Credit Agreement") among DI GIORGIO CORPORATION, as Borrower,
the financial institutions parties thereto as LENDERS, BT COMMERCIAL
CORPORATION, as Agent for the Lenders, and BANKERS TRUST COMPANY, as Issuing
Bank. Terms which are capitalized herein and not otherwise defined shall have
the meanings given to such terms in the Credit Agreement.
WHEREAS, the Borrower has requested that the Lenders, among
other things, (i) consent to the making of the Xxxxx Xxxx Advance,the issuance
of the New Senior Notes and the incurrence of Indebtedness in connection
therewith, the making of the Dividends and the consummation of the Xxxxx Xxxx
Merger, as such terms are defined in this Amendment No. 10 and (ii) modify
various terms and provisions of the Credit Agreements; and
WHEREAS, the Lenders have agreed to the foregoing on the terms
and subject to the fulfillment of the conditions set forth in this Amendment
No. 10;
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 Borrower and the Lenders
hereby agree as follows:
Section One. Consent. The Borrower has requested the Lenders'
consent to the following transactions:
(a) the making by the Borrower of an advance to
Xxxxx Xxxx Foods, Inc. ("Xxxxx Xxxx") in an amount not to exceed
$60 million (the "Xxxxx Xxxx Advance") simultaneously with the
repurchase by Xxxxx Xxxx (with such funds and other funds) of
outstanding Xxxxx Xxxx Notes, substantially upon the terms and
conditions (the "Xxxxx Xxxx Notes Repurchase Terms") set forth
in Annex A attached hereto;
(b) the incurrence of Indebtedness by the Borrower
in connection with the issuance of up to $160 million principal
amount of the Borrower's unsecured notes due ten years after
issuance (the "New Senior Notes"), the proceeds of which shall
be used by the Borrower (i) to make the Xxxxx Xxxx Advance, (ii)
to retire, purchase and cancel, or defease all or substantially
all of the outstanding Senior Notes substantially upon the terms
and conditions (the "Senior Notes Repurchase Terms") set forth
in Annex B attached hereto, (iii) after the Xxxxx Xxxx Merger,
as defined in subparagraph (d) hereof, to retire, purchase and
cancel, or defease all or substantially all of the remaining
outstanding Xxxxx Xxxx Notes substantially upon the Xxxxx Xxxx
Notes Repurchase Terms and (iv) for the
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other purposes set forth in the draft of the Borrower's Offering
Memorandum dated May 29, 1997 (the "Offering Memorandum") attached
hereto as Annex C:
(c) the making by the Borrower of a dividend or dividends, if
made prior to the Xxxxx Xxxx Merger (as defined in subparagraph (d)
below), to Xxxxx Xxxx, or if made on or after the Xxxxx Xxxx Merger,
to Rose Partners, of the following assets of the Borrower and, in
connection therewith, the release by the Lenders of all security
interests held by the Lenders on such assets: (i) the Las Plumas Note,
(ii) certain real property located in Xxxxx County, Colorado, and the
improvements located thereon, and (iii) a certain note receivable due
from J-Tex International Holdings, Ltd. (collectively, the
"Dividends"); and
(d) the merger of Xxxxx Xxxx with and into the Borrower (the
"Xxxxx Xxxx Merger"), substantially upon the terms attached hereto as
Annex D.
Effective upon the fulfillment of each of the conditions precedent set forth in
clauses (i) through (vi) below in this Section One and in Section Four, the
Lenders (1) hereby release their lien on and security interest in the Las
Plumas Note, and any collateral for the Las Plumas Note, reassign same to the
Borrower without recourse, representation or warranty of any kind and the Note
Pledge Agreement in respect of the Las Plumas Note executed as of February 10,
1993 by the Borrower in favor of the Agent is hereby terminated by mutual
consent and (2) hereby consent to (a) the Xxxxx Xxxx Advance, (b) the
incurrence by Borrower of Indebtedness in connection with the issuance of up to
$160 million principal amount of New Senior Notes (the "New Senior Notes
Offering") and (c) the making of the Dividends (each of the foregoing events, a
"Transaction Event"):
(i) Xxxxx Xxxx shall have made capital contributions to the
Borrower of certain promissory notes (collectively the "Rose Partner
Notes") executed in favor of Xxxxx Xxxx by Xxxx Partners, L.P. or
certain of its partners, in an aggregate amount of not less than
$8,674,000;
(ii) the Agent and the Lenders shall have received a true and
correct copy of an indenture between the Borrower and a trustee
pertaining to the issuance of the New Senior Notes, the terms of which
indenture shall not be inconsistent in any material respect with the
terms thereof described in the Offering Memorandum;
(iii) each of the Transaction Events shall have occurred and
shall be effective as of a date no later than the date occurring 180
days from the date of this Amendment No. 10;
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(iv) on or before the date upon which the New Senior Notes
Offering shall have been consummated, the Borrower shall have paid in
cash to the Agent, for the ratable benefit of each of the Lenders, a
non-refundable fee in the amount of $150,000;
(v) no Default shall have occurred and be continuing which
constitutes an Event of Default or would constitute an Event of
Default upon the giving of notice or lapse of time or both, and no
event or development which has had or is reasonably likely to have a
Material Adverse Effect shall have occurred, in each case since the
date of delivery to the Agent and the Lenders of the Borrower's most
recent financial statement, and the Agent and the Lenders shall have
received a certificate from the Borrower, executed by its Treasurer or
its Chief Financial Officer, as to the truth and accuracy of this
clause (v); and
(vi) the Agent and the Lenders shall have received such
additional documents to further effectuate the purpose of this Section
One as any of them or their respective counsel may reasonably request.
Effective upon the fulfillment of each of the conditions set forth in clauses
(vii) through (xiii) below in this Section One and in Section Four, the Lenders
hereby consent to the consummation of the Xxxxx Xxxx Merger:
(vii) the Borrower shall have made the Xxxxx Xxxx Advance and
received the proceeds of the issuance of up to $160 million principal
amount of the New Senior Notes;
(viii) the Borrower shall have received payment in full in cash
of the unpaid principal balance of and all accrued interest on the
Rose Partner Notes contributed as capital to the Borrower, as
described in clause (i) hereof and Xxxxx Xxxx shall have repurchased
Xxxxx Xxxx Notes which aggregate in principal amount not less than
that percentage of the aggregate principal amount of the Xxxxx Xxxx
Notes necessary for the holders thereof to effectively consent to the
elimination of certain covenants and events of default contained in
the indenture pursuant to which the Xxxxx Xxxx Notes were originally
issued, such repurchases to have been consummated substantially upon
the Xxxxx Xxxx Repurchase Terms;
(ix) the Borrower shall have repurchased Senior Notes which
aggregate in principal amount not less than that percentage of the
aggregate principal amount of the Senior Notes necessary for the
holders thereof to effectively consent to the elimination of certain
covenants and events of default contained in the Senior Note
Indenture, such repurchases to have been consummated substantially
upon the Senior Notes Repurchase Terms;
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(x) between the date of this Amendment No. 10 and the
consummation of the Xxxxx Xxxx Merger, Xxxxx Xxxx shall not have
incurred any liabilities or obligations, contingent or otherwise, or
transferred or otherwise disposed of any of its assets other than in
connection with the repurchase of Xxxxx Xxxx Notes and the making of a
dividend or dividends to the stockholders of Xxxxx Xxxx of the assets
received by Xxxxx Xxxx from the Borrower pursuant to the Dividends.
(xi) after giving effect to the Xxxxx Xxxx Merger, no
Default shall have occurred and be continuing which constitutes an
Event of Default or would constitute an Event of Default upon the
giving of notice or lapse of time or both, and no event or development
which has had or is reasonably likely to have a Material Adverse Effect
shall have occurred, in each case since the date of delivery to the
Agent and the Lenders of the Borrower's most recent financial
statement, and the Agent and the Lenders shall have received a
certificate from the Borrower, executed by its Treasurer or Chief
Financial Officer, as to the truth and accuracy of this clause (xi);
(xii) the Agent and the Lenders shall have received such
additional documents to further effectuate the purpose of this Section
One as any of them or their respective counsel may reasonably request;
and
(xiii) the Xxxxx Xxxx Merger shall have been consummated not
more than sixty (60) days after the first date upon which any Xxxxx
Xxxx Notes are repurchased by Xxxxx Xxxx pursuant to the Xxxxx Xxxx
Repurchase Terms.
Section Two. Amendment. Upon the effectiveness of the Consent contained
in Section One hereof and the fulfillment of the conditions precedent set forth
in Section Four hereof, the Credit Agreement is hereby amended as of the date
of Amendment No. 10 as follows:
(a) The following terms and the definitions thereof are added to
Section 1.1 in the appropriate alphabetical order:
"Xxxxx Xxxx Merger Consummation Date" shall mean the effective date of
consummation of the Xxxxx Xxxx Merger.
"Net Worth Base Amount" shall mean (i) at all times prior to the Merger
Consummation Date, the sum of $39,000,000 and (ii) on and after the Merger
Consummation Date, an amount equal to (A) the amount of the Borrower's opening
Net Worth, as set forth in the pro forma balance sheet of the Borrower, giving
effect to the consummation of the Xxxxx Xxxx Merger (which pro forma balance
sheet shall have been delivered to the Agent and the Lenders in accordance with
Section 5(e) of Amendment No. 10 to the Credit Agreement, dated
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as of June 11, 1997 among the Borrower, the Lenders, the Agent and the Issuing
Bank), minus (B) $3,000,000 minus (C) one half (1/2) of the aggregate amount of
cash used by the Borrower to purchase, redeem or acquire the shares of its
common stock permitted to be so purchased, redeemed or acquired pursuant to
Section 8.10 (a)(iv).
"New Senior Notes" shall mean the Borrower's senior unsecured notes due
ten years after issuance in the aggregate principal amount of up to $160
million, to be issued pursuant to the New Senior Note Indenture.
"New Senior Note Indenture" shall mean that certain Indenture, in form
and substance satisfactory to the Agent and the Lenders, pursuant to which the
New Senior Notes shall be issued.
"New Senior Note Issuance Date" shall mean the date of issuance of the
New Senior Notes pursuant to the New Senior Note Indenture.
"Xxxxx Xxxx" shall mean Xxxxx Xxxx Foods, Inc., a Delaware corporation.
"Xxxxx Xxxx Merger" shall mean a merger of Xxxxx Xxxx with and into the
Borrower on terms and conditions satisfactory to the Agent and the Lenders.
(b) Section 3.2(b) of the Credit Agreement is amended in its entirety
to read as follows:
"(b) The "Allowable Inventory Percentage" shall mean the maximum rate of
advance against Eligible Inventory, and shall equal seventy percent
(70%) on the Closing Date. Commencing as of the first Business Day of
the first fiscal quarter of fiscal 1994, and on the first Business Day
of every fiscal quarter thereafter, the Allowable Inventory Percentage
shall decrease by one and one quarter percent (1 and 1/4%), until the
Allowable Inventory Percentage shall be reduced to 60%. Commencing on
the New Senior Note Issuance Date, the Allowable Inventory Percentage
shall be increased to seventy percent (70%), and thereafter commencing
on the first Business Day of October, 1997, and on the first Business
Day of each succeeding fiscal quarter, the Allowable Inventory Percent-
age shall decrease by one percent (1%), until the Allowable Inventory
Percentage shall be permanently reduced to 60%."
(c) Section 3.4(d) of the Credit Agreement is amended by deleting
clause (i) thereof in its entirety.
(d) Section 8.1 of the Credit Agreement is amended by (i) deleting
subsections (r) and (s) thereof in their entirety, (ii) substituting the
following in lieu thereof and (iii) adding
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subsections (t) through (dd) thereto, so that subsections (r) through (dd),
together with the introductory portion of Section 8.1 shall read as follows:
"8.1 Net Worth. The Borrower shall not at any time during any
period set forth below permit its Net Worth to be less than the amount set
forth below opposite such period, provided that solely for purposes of
calculating such Net Worth: (a) the amount of all net losses of the Borrower,
on a consolidated basis, arising from the sale, transfer or other disposition
permitted hereunder of any fixed assets (such as plant, property, equipment,
land or other similar capital assets, including the Farmingdale Lease), up to
an aggregate amount of $5,000,000 of such net losses, shall be excluded from
such calculation: and (b) the cumulative amount of all dividends which have
been paid in cash after the Closing Date as permitted under Section
8.10(a)(iii) hereof as of the date of determination of Net Worth shall be added
to Net Worth, and provided further that solely for purposes of calculating Net
Income pursuant to this Section 8.1, Net Income of a negative amount shall be
deemed to be an amount equal to zero (0).
Period Amount
------ ------
(r) last day of fiscal March, Net Worth Base Amount
1997 through second-to-last
day of fiscal June, 1997
(s) last day of fiscal June, Net Worth Base Amount
1997 through second-to-last plus seventy-five percent
day of fiscal September, (75%) of the Net Income
1997 for the preceding fiscal
quarter
(t) last day of fiscal Net Worth Base Amount
September, 1997 through plus seventy-five (75%)
second-to-last day of fiscal of the Net Income for the
December, 1997 two preceding fiscal
quarters
(u) last day of fiscal Net Worth Base Amount
December, 1997 through plus seventy-five percent
second-to-last day of fiscal (75%) of the Net Income
March, 1998 for three preceding fiscal
quarters
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Period Amount
------ ------
(v) last day of fiscal March, Net Worth Base Amount
1998 through second-to-last plus seventy-five percent
day of fiscal June, 1998 (75%) of the Net Income
for the four preceding
fiscal quarters
(w) last day of fiscal June, Net Worth Base Amount
1998 through second-to-last plus seventy-five percent
day of fiscal September, 1998 (75%) of the Net Income
for the five preceding
fiscal quarters
(x) last day of fiscal Net Worth Base Amount
September, 1998 through plus seventy-five percent
second-to-last day of fiscal (75%) of the Net Income
December, 1998 for the six preceding
fiscal quarters
(y) last day of fiscal Net Worth Base Amount
December, 1998 through plus seventy-five percent
second-to-last day of fiscal (75%) of the Net Income
March, 1999 for the seven preceding
fiscal quarters
(z) last day of fiscal March, Net Worth Base Amount
1999 through second-to-last plus seventy-five percent
day of fiscal June, 1999 (75%) of the Net Income
for the eight preceding
fiscal quarters
(aa) last day of fiscal June, Net Worth Base Amount
1999 through second-to-last plus seventy-five (75%)
day of fiscal September, of the Net Income for the
1999 nine preceding fiscal
quarters
(bb) last day of fiscal Net Worth Base Amount
September, 1999 through plus seventy-five (75%)
second-to-last day of fiscal of the Net Income for the
December, 1999 ten preceding fiscal
quarters
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Period Amount
------ ------
(cc) last day of fiscal Net Worth Base Amount
December, 1999 through plus seventy-five (75%)
second-to-last day of fiscal of the Net Income for the
March, 2000 eleven preceding fiscal
quarters
(dd) last day of fiscal March, Net Worth Base Amount
2000 through the Expiration plus seventy-five percent
Date (75%) of the Net Income
for the twelve preceding
fiscal quarters."
(e) Section 8.2 of the Credit Agreement is amended by deleting
subsections (r) through (u) thereof, and adding subsections (r) through (dd)
thereof, so that such subsections (r) through (dd) thereof, together with the
introductory portion of Section 8.2, shall read as follows:
"8.2 Interest Coverage Ratio. The Borrower shall not permit its ratio
of EBITDA to Interest Expense as of the end of each of the following periods to
be less than the applicable ratio set forth below opposite each such period in
the applicable column:
Minimum Interest Minimum Interest
Coverage Ratio Coverage Ratio
Prior to the New On and After the
Senior Note New Senior Note
Period Issuance Date Issuance Date
------ ---------------- ----------------
(r) the fiscal quarter ending in June, 1.85 to 1.00 1.50 to 1.00
1997, together with the three preceding
fiscal quarters
(s) the fiscal quarter ending in 1.85 to 1.00 1.60 to 1.00
September, 1997, together with the
three preceding fiscal quarters
(t) the fiscal quarter ending in 1.85 to 1.00 1.60 to 1.00
December, 1997, together with the
three preceding fiscal quarters
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Minimum Interest Minimum Interest
Coverage Ratio Coverage Ratio
Prior to the New On and After the
Senior Note New Senior Note
Period Issuance Date Issuance Date
------ ---------------- ----------------
(u) the fiscal quarter ending in March, 2.00 to 1.00
1998, and each fiscal quarter thereafter,
in each case together with the three
preceding fiscal quarters
(v) the fiscal quarter ending in March, 1.65 to 1.00
1998, together with the three preceding
fiscal quarters
(w) the fiscal quarter ending in June, 1.70 to 1.00
1998, together with the three preceding
fiscal quarters
(x) the fiscal quarter ending in 1.70 to 1.00
September, 1998, together with the
three preceding fiscal quarters
(y) the fiscal quarter ending in 1.75 to 1.00
December, 1998, together with the
three preceding fiscal quarters
(z) the fiscal quarter ending in March, 1.80 to 1.00
1999, together with the three preceding
fiscal quarters
(aa) the fiscal quarter ending in June, 1.85 to 1.00
1999, together with the three preceding
fiscal quarters
(bb) the first quarter ending in 1.85 to 1.00
September, 1999, together with the
three preceding fiscal quarters
(cc) the fiscal quarter ending in 1.90 to 1.00
December, 1999, together with the
three preceding fiscal quarters
(dd) the fiscal quarter ending in March, 1.95 to 1.00
2000, together with the three preceding
fiscal quarters
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(f) Section 8.10 of the Credit Agreement is amended by (i) deleting
the word "or" at the end of clause (iii) of Section 8.10(a) and substituting
the word "and" in lieu thereof, and by adding a new clause (iv) thereafter as
follows and (ii) deleting Section 8.10(b) in its entirety and substituting the
following in lieu thereof:
"(iv) beginning after the date of issuance of the New Senior Notes, the
Borrower may purchase, redeem or acquire for cash shares of its common
stock for an aggregate price of up to $5,000,000, provided that (A) no
Default or Event of Default shall have occurred and then be continuing
or would result therefrom, (B) the condition set forth in clause (A)(i)
of the defined term "Shareholder Stock Repurchases" contained in the New
Senior Note Indenture (as in effect on the New Senior Note Issuance
Date) shall have occurred, (C) immediately after giving effect to any
such proposed purchase, redemption or acquisition, there shall be an
aggregate amount of Unused Availability of at least $15,000,000 and (D)
on a pro forma basis, the ratio of EBITDA to Interest Expense for the
period of four consecutive fiscal quarters (the "referenced period")
ending with the fiscal quarter immediately prior to the fiscal quarter
during which such proposed purchase, redemption or acquisition shall be
consummated (such ratio to be calculated as if such purchase, redemption
or acquisition shall have occurred at the beginning of such referenced
period), shall be no less than the minimum ratio of EBITDA to Interest
Expense set forth in Section 8.2 established for such referenced period,
provided further that in determining Unused Availability for the purpose
of this Section 8.10(a)(v), the Borrower shall certify to the Agent and
the Lenders that its trade payables have been paid in a manner
consistent with the Borrower's historical practices; or"
"(b) make any optional payment or prepayment on or redemption
(including, without limitation, by making payments to a sinking or analogous
fund) or repurchase of any Indebtedness (other than Indebtedness pursuant to
this Credit Agreement), including, without limitation, the Senior Notes and/or
New Senior Notes, as the case may be: provided that (i) the Borrower may
refinance Indebtedness permitted to be incurred under Section 8.5(e); (ii) the
Borrower may make mandatory redemptions of the Senior Notes with the net
proceeds of certain Asset Sales (as defined in the Senior Note Indenture), and
(iii) any Subsidiary may make payments on account of Indebtedness owing by it
to the Borrower or to any other Subsidiary, and provided further that the
Borrower may prepay, purchase or repurchase the Indebtedness in respect of (iv)
the Senior Notes at any time after the first anniversary of the Closing Date,
so long as (A) no Default or Event of Default has occurred and is continuing or
would result therefrom and (B) after giving effect to any such proposed
prepayment, purchase or repurchase,
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there shall be an aggregate amount of Unused Availability of at
least $15,000,000, and (v) the New Senior Notes so long as (A)
no Default or Event of Default has occurred and is continuing or
would result therefrom and (B) after giving effect to any such
proposed prepayment, purchase or repurchase, there shall be an
aggregate amount of Unused Availability of at least $15,000,000,
provided further that in determining Unused Availability for the
purpose of this Section 8.10(b), the Borrower shall certify to
the Agent and the Lenders that its trade payable have been paid
in a manner consistent with the Borrower's historical
practices."
(g) Section 9.1 of the Credit Agreement as amended by (i)
deleting clause (ii) of paragraph (f) thereof in its entirety and by
substituting the following in lieu thereof and (ii) deleting paragraph (b)
thereof in its entirety and substituting the following in lieu thereof:
"(ii) a change of control (as defined in the New Senior Note
Indenture, as in effect on the New Senior Note Issuance Date)
shall occur, or"
"(h) any material covenant, agreement or obligation of any
party contained in or evidenced by any of the Credit Documents
shall cease to be in full force and effect other than as a
result of actions taken or not taken by the Agent, the Issuing
Bank or the Lenders, or any Credit Document to which the
Borrower is a party shall be cancelled, terminated, revoked or
rescinded without the express prior written consent of the Agent
(other than as a result of actions taken or not taken by the
Agent, the Issuing Bank or the Lenders), or any action or
proceeding shall have been commenced by the Borrower, DIG
Holding, Xxxxx Xxxx Foods, Inc., or any of their Subsidiaries or
Affiliates, or by any member of the Xxxxxxxx Holders (as defined
in the Senior Note Indenture) or any member of the Permitted
Holders (as defined in the New Senior Note Indenture as in
effect on the New Senior Note Issuance Date), as the case may
be, seeking to cancel, revoke, rescind or disaffirm the
obligations of any party to any Credit Document, or any court or
other governmental authority shall issue a judgment, order,
decree or ruling to the effect that any of the obligations of
any party to any Credit Document are illegal, invalid or
unenforceable."
SECTION THREE. REPRESENTATIONS AND WARRANTIES. To induce the
Lenders to enter into this Amendment No. 10, the Borrower warrants and
represents to the Lenders as follows:
(a) the recitals contained in this Amendment No. 10 are
true and correct in all respects:
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(b) after giving effect to this Amendment No. 10, all of the
representations and warranties contained in the Credit Agreement and each other
Credit Document to which the Borrower is a party continue to be true and
correct in all material respects as of the date hereof, as if repeated as of
the date hereof, except for such representations and warranties which, by their
terms, are only made as of a previous date;
(c) the execution, delivery and performance of this Amendment No. 10 by
the Borrower is within its corporate powers, has been duly authorized by all
necessary corporate action, the Borrower has received all necessary consents to
and approvals for the execution, delivery and performance of this Amendment No.
10 (if any shall be required) and this Amendment No. 10 does not and will not
contravene or conflict with any provision of law or of the charter or by-laws
of the Borrower or with the terms or provisions of any other document or
agreement to which the Borrower is a party or by which the Borrower or its
property may be bound; and
(d) upon its execution, this Amendment No. 10 shall be a legal, valid
and binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
SECTION FOUR. CONDITIONS PRECEDENT. This Amendment No. 10 shall become
effective upon the date that the last of the following events shall have
occurred:
(a) the Agent shall have received a fully executed counterpart of this
Amendment No. 10;
(b) no Default shall have occurred and be continuing which constitutes
an Event of Default or would constitute an Event of Default upon the giving of
notice or lapse of time or both, and no event or development which has had or
is reasonably likely to have a Material Adverse Effect shall have occurred, in
each case since the date of delivery to the Agent and the Lenders of the
Borrower's most recent financial statement, and the Agent and the Lenders shall
have received a certificate from the Borrower, executed by its Chief Financial
Officer, as to the truth and accuracy of this paragraph (b):
(c) the Borrower shall have delivered to the Agent a copy of the
corporate resolutions of the Borrower's Board of Directors authorizing the
execution, delivery and performance of this Amendment No. 10 by the Borrower;
and
(d) the Agent and the Lenders shall have received such additional
documents to further effectuate the purpose of this Amendment No. 10 as any of
them or their respective counsel may reasonably request.
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SECTION FIVE. General Provisions.
(a) Except as herein expressly amended, the Credit Agreement and all
other agreements, documents, instruments and certificates executed in
connection therewith are ratified and confirmed in all respects and shall
remain in full force and effect in accordance with their respective terms.
(b) All references to the Credit Agreement shall mean the Credit
Agreement as amended as of the effective date hereof, and as amended hereby and
as hereafter amended, supplemented and modified from time to time.
(c) This Amendment No. 10 may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which
shall be an original and all which shall constitute one and the same agreement.
(d) This Amendment No. 10 shall be governed by, construed and
interpreted in accordance with the internal laws of the State of New York,
without regard to the conflicts of law principles thereof.
(e) The Borrower covenants and agrees that at least ten (10) Business
Days prior to the Xxxxx Xxxx Merger Consummation Date, the Borrower shall
prepare and deliver to the Agent and the Lenders a pro forma balance sheet of
the Borrower, giving effect to the consummation of the Xxxxx Xxxx Merger, which
balance sheet shall include a calculation in reasonable detail of the
components of the Borrower's opening Net Worth, such financial statement to be
certified by the Borrower's Chief Financial Officer as having been prepared in
accordance with GAAP, consistently applied.
(f) The Borrower hereby authorizes the Agent to charge the Borrower's
account with the amount of the fee described in Section One (iv) hereof on the
New Senior Note Issuance Date.
(g) The Borrower acknowledges and confirms its understanding and
agreement that the Agent has the authority and right under the Credit
Agreement, in the exercise of its reasonable discretion, to establish, as of
any date of determination, a reserve against Eligible Accounts Receivable and
Eligible Inventory in an amount equal to all or a portion of (as the Agent may
so determine) the aggregate (face amount of all Xxxxx Xxxx Notes and Senior
Notes outstanding as of such date of determination which have not been retired,
purchased, and cancelled or defeased.
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IN WITNESS WHEREOF, each of the Borrower, the Lenders, the Issuing Bank
and the Agent has signed below to indicate its agreement with the foregoing and
its intent to be bound thereby.
DI GIORGIO CORPORATION
By: Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President and
Treasurer
BT COMMERCIAL CORPORATION, as
Agent and as a Lender
By:
-----------------------------
Name:
Title:
LASALLE NATIONAL BANK, as a Lender
By:
-----------------------------
Name:
Title:
IBJ XXXXXXXX BANK & TRUST
COMPANY, as a Lender
By:
-----------------------------
Name:
Title:
CONGRESS FINANCIAL
CORPORATION, as a Lender
By:
-----------------------------
Name:
Title:
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IN WITNESS WHEREOF, each of the Borrower, the Lenders, the Issuing Bank
and the Agent has signed below to indicate its agreement with the foregoing and
its intent to be bound thereby.
DI GIORGIO CORPORATION
By:
-----------------------------
Name:
Title:
BT COMMERCIAL CORPORATION, as
Agent and as a Lender
By: Xxxxxxxx X. Xxxxxx, Xx.
-----------------------------
Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Vice President
LASALLE NATIONAL BANK, as a Lender
By:
-----------------------------
Name:
Title:
IBJ XXXXXXXX BANK & TRUST
COMPANY, as a Lender
By:
-----------------------------
Name:
Title:
CONGRESS FINANCIAL
CORPORATION, as a Lender
By:
-----------------------------
Name:
Title:
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IN WITNESS WHEREOF, each of the Borrower, the Lenders, the Issuing Bank
and the Agent has signed below to indicate its agreement with the foregoing and
its intent to be bound thereby.
DI GIORGIO CORPORATION
By:
-----------------------------
Name:
Title:
BT COMMERCIAL CORPORATION, as
Agent and as a Lender
By:
-----------------------------
Name:
Title:
LASALLE NATIONAL BANK, as a Lender
By: /s/Xxxxxxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
IBJ XXXXXXXX BANK & TRUST
COMPANY, as a Lender
By:
-----------------------------
Name:
Title:
CONGRESS FINANCIAL
CORPORATION, as a Lender
By:
-----------------------------
Name:
Title:
-14-
17
IN WITNESS WHEREOF, each of the Borrower, the Lenders, the Issuing Bank
and the Agent has signed below to indicate its agreement with the foregoing and
its intent to be bound thereby.
DI GIORGIO CORPORATION
By:
-----------------------------
Name:
Title:
BT COMMERCIAL CORPORATION, as
Agent and as a Lender
By:
-----------------------------
Name:
Title:
LASALLE NATIONAL BANK, as a Lender
By:
-----------------------------
Name:
Title:
IBJ XXXXXXXX BANK & TRUST
COMPANY, as a Lender
By: /s/Wing X. Xxxxx
-----------------------------
Name: Wing X. Xxxxx
Title: Vice President
CONGRESS FINANCIAL
CORPORATION, as a Lender
By:
-----------------------------
Name:
Title:
-14-
18
IN WITNESS WHEREOF, each of the Borrower, the Lenders, the Issuing Bank
and the Agent has signed below to indicate its agreement with the foregoing and
its intent to be bound thereby.
DI GIORGIO CORPORATION
By:
-----------------------------
Name:
Title:
BT COMMERCIAL CORPORATION, as
Agent and as a Lender
By:
-----------------------------
Name:
Title:
LASALLE NATIONAL BANK, as a Lender
By:
-----------------------------
Name:
Title:
IBJ XXXXXXXX BANK & TRUST
COMPANY, as a Lender
By:
-----------------------------
Name:
Title:
CONGRESS FINANCIAL
CORPORATION, as a Lender
By: /s/Xxxxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
-14-
19
PNC BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SUMMIT COMMERCIAL/GIBRALTAR
CORP., as a Lender
By:
-------------------------
Name:
Title:
BANKERS TRUST COMPANY, as Issuing
Bank
By:
-------------------------
Name:
Title:
-15-
20
PNC BANK, as a Lender
By:
-----------------------
Name:
Title:
SUMMIT COMMERCIAL/GIBRALTAR
CORP., as a Lender
By: Xxxxx X. Xxxxxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY, as Issuing
Bank
By:
-------------------------
Name:
Title:
-15-
21
PNC BANK, as a Lender
By:
-----------------------
Name:
Title:
SUMMIT COMMERCIAL/GIBRALTAR
CORP., as a Lender
By:
-------------------------
Name:
Title:
BANKERS TRUST COMPANY, as Issuing
Bank
By: Xxxxxxxx X. Xxxxxx, Xx.
-------------------------
Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Vice President
-15-
