EXHIBIT 10.1
EXECUTION COPY
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of April 5, 2004, by and among XXXX FOODS COMPANY (formerly known as
Suiza Foods Corporation), a Delaware corporation (the "Borrower"), those certain
subsidiaries of the Borrower party to the Credit Agreement referred to below
(the "Guarantors"), the lenders party to the Credit Agreement defined below (the
"Lenders") pursuant to the authorization (in the form attached hereto as Annex
I, the "Authorization"), WACHOVIA BANK, NATIONAL ASSOCIATION (formerly known as
First Union National Bank), as Administrative Agent for the Lenders (the
"Administrative Agent") and BANK ONE, NA, as Syndication Agent for the Lenders
(the "Syndication Agent"). Except as otherwise defined in this Amendment, terms
defined in the Credit Agreement referred to below are used herein as defined
therein.
RECITALS
WHEREAS, the Borrower, the Guarantors, the Administrative Agent, the
Syndication Agent, Fleet National Bank, Xxxxxx Trust and Savings Bank and
SunTrust Bank, as Co-Documentation Agents and the Lenders are parties to that
certain Credit Agreement dated as of July 31, 2001 (as amended by that certain
First Amendment to Credit Agreement dated as of December 19, 2001, that certain
Second Amendment to Credit Agreement dated as of April 30, 2002, that certain
Third Amendment to Credit Agreement dated as of December 13, 2002, that certain
Fourth Amendment to Credit Agreement dated as of August 29, 2003, and that
certain Fifth Amendment to Credit Agreement dated as December 31, 2003, the
"Credit Agreement"), pursuant to which the Lenders have extended certain credit
facilities to the Borrower;
WHEREAS, the Borrower has requested that the Lenders consent to certain
modifications to the Credit Agreement; and
WHEREAS, the Lenders party hereto have agreed to amend the Credit
Agreement on the terms and subject to the conditions set forth in this
Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction
of the conditions precedent set forth in Section 3 hereof, the parties hereby
agree that the Credit Agreement shall be amended as follows:
(A) Amendment to Add New Defined Terms. Section 1.1 ("Defined
Terms") of the Credit Agreement shall be amended effective as of the date hereof
by adding the following defined terms in appropriate alphabetical order:
"Sixth Amendment" shall mean the Sixth Amendment to this
Agreement dated as of April 5, 2004.
"Sixth Amendment Effective Date" shall mean the date upon
which all of the conditions precedent set forth in the Sixth Amendment
shall have been satisfied.
"Tranche C Term Loan" shall have the meaning set forth in
Section 2.5A(a).
"Tranche C Term Loan Commitment" shall mean, with respect to
each Lender, the commitment of such Lender to make its portion of the
Tranche C Term Loan in a principal amount equal to such Lender's
Tranche C Term Loan Commitment Percentage of the Tranche C Term Loan
Committed Amount (and for purposes of making determinations of Required
Lenders hereunder after the Closing Date, the principal amount
outstanding on the Tranche C Term Loan).
"Tranche C Term Loan Commitment Percentage" shall mean, for
any Lender, the percentage identified as its Tranche C Term Loan
Commitment Percentage on the Register, as such percentage may be
modified in connection with any assignment made in accordance with the
provisions of Section 9.6.
"Tranche C Term Loan Committed Amount" shall have the meaning
set forth in Section 2.5A(a).
"Tranche C Term Loan Maturity Date" shall mean the earlier to
occur of (a) July 15, 2008 and (b) the seventh anniversary of the
Closing Date.
"Tranche C Term Note" or "Tranche C Term Notes" shall mean the
promissory notes of the Borrower in favor of each of the Lenders
evidencing the portion of the Tranche C Term Loan provided pursuant to
Section 2.5A(c), individually or collectively, as appropriate, as such
promissory notes may be amended, modified, restated, supplemented,
extended, renewed or replaced from time to time.
(B) Amendment to Existing Defined Terms. Section 1.1 ("Defined
Terms") of the Credit Agreement shall be amended effective as of the date hereof
by:
(1) deleting the following defined terms in their
entirety and replacing them with the following, in each case in appropriate
alphabetical order:
"Applicable Percentage" shall mean, for any day, the rate per
annum set forth below opposite the applicable level (the "Level") then
in effect, it being understood that the Applicable Percentage for (a)
Revolving-1 Loans and Tranche A-1 Term Loans which are Alternate Base
Rate Loans shall be the percentage set forth under the column
"Alternate Base Rate Margin for Revolving-1 Loans and Tranche A-1 Term
Loans", (b) Revolving-1 Loans and Tranche A-1 Term Loans which are
LIBOR Rate Loans shall be the percentage set forth under the column
"LIBOR Rate Margin for Revolving-1 Loans, Tranche A-1 Term Loans and
the Letter of Credit Fee", (c) Tranche B-1 Term Loans which are
Alternate Base Rate Loans shall be the percentage set forth under the
column "Alternate Base Rate Margin for Tranche B-1 Term Loans", (d)
Tranche C Term Loans which are Alternate Base Rate Loans shall be the
percentage set forth under the column "Alternate Base Rate Margin for
Tranche C Term Loans", (e) Tranche B-1 Term
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Loans which are LIBOR Rate Loans shall be the percentage set forth
under the column "LIBOR Rate Margin for Tranche B-1 Term Loans", (f)
Tranche C Term Loans which are LIBOR Rate Loans shall be the percentage
set forth under the column "LIBOR Rate Margin for Tranche C Term
Loans", (g) the Letter of Credit Fee shall be the percentage set forth
under the column "LIBOR Rate Margin for Revolving-1 Loans, Tranche A-1
Term Loans and Letter of Credit Fee" and (h) the Commitment Fee shall
be the percentage set forth under the column "Commitment Fee":
LIBOR Rate
Margin for Alternate
Revolving-1 Base Rate
Loans, Margin for Alternate
Tranche LIBOR Rate LIBOR Rate Revolving-1 Base Rate Alternate
A-1 Term Margin for Margin for Loans and Margin for Base Rate
Loans and Tranche Tranche Tranche Tranche Margin for
Leverage Letter of X-0 Xxxx X Xxxx X-0 Xxxx X-0 Term Tranche C Commitment
Level Ratio Credit Fee Loans Loans Loans Loans Loans fee
------ ----------- ----------- ---------- ---------- ----------- ---------- ---------- ----------
I > or = 3.50
to 1.00 2.000% 2.000% 1.750% 0.750% 0.750% 0.500% 0.375%
II < 3.50 to
1.00 but
> or = 3.00
to 1.00 1.750% 2.000% 1.750% 0.500% 0.750% 0.500% 0.375%
III < 3.00 to
1.00 but
> or = 2.50
to 1.00 1.500% 2.000% 1.750% 0.250% 0.750% 0.500% 0.300%
IV < 2.50 to
1.00 1.250% 2.000% 1.750% 0.000% 0.750% 0.500% 0.250%
The Applicable Percentage shall, in each case, be determined and
adjusted quarterly on the date (each an "Interest Determination Date")
three (3) Business Days after the earlier of the date on which the
Borrower provides or is required to provide to the Administrative Agent
the annual or quarterly financial information and certifications in
accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(c).
Such Applicable Percentage shall be effective from such Interest
Determination Date until the next such Interest Determination Date. If
the Borrower shall fail to provide the annual or quarterly financial
information and certifications in accordance with the provisions of
Sections 5.1(a), 5.1(b) and 5.2(c), the Applicable Percentage from such
Interest Determination Date shall, on the date five (5) Business Days
after the date by which the Borrower was so required to provide such
financial information and certifications to the Administrative Agent
and the Lenders, be based on Level I until such time as the date which
is three (3) Business Days after the date such information and
certifications are provided, whereupon the Level shall be determined by
the then current Leverage Ratio; provided, that with respect to each
LIBOR Rate Loan denominated in an Alternative Currency, the Applicable
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Percentage shall be increased by an amount equal to the applicable
Mandatory Cost, as determined pursuant to the relevant formula set
forth on Schedule 1.1(d) hereto.
"Approved Fund" means with respect to any Lender under the
Tranche A-1 Term Loan, the Tranche B-1 Term Loan or the Tranche C Term
Loan that is a fund that invests in bank loans, any other fund that
invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Commitment" shall mean the Revolving-1 Commitment, the LOC
Commitment, the Swingline Commitment, the Tranche A-1 Term Loan
Commitment, the Tranche B-1 Term Loan Commitment and the Tranche C Term
Loan Commitment, individually or collectively, as appropriate.
"Commitment Percentage" shall mean the Dollar Revolving-1
Commitment Percentage, the Multi-currency Revolving-1 Commitment
Percentage, the Tranche A-1 Term Loan Commitment Percentage, the
Tranche B-1 Term Loan Commitment Percentage and/or Tranche C Term Loan
Commitment Percentage, as appropriate.
"Loan" shall mean a Revolving-1 Loan, a Swingline Loan, the
Tranche A-1 Term Loan, the Tranche B-1 Term Loan and/or the Tranche C
Term Loan, as appropriate.
"Maturity Date" shall mean (i) with respect to the Tranche A-1
Term Loan, the Tranche A-1 Term Loan Maturity Date, (ii) with respect
to the Tranche B-1 Term Loan, the Tranche B-1 Term Loan Maturity Date,
(iii) with respect to the Tranche C Term Loan, the Tranche C Term Loan
Maturity Date, and (iv) with respect to the Revolving-1 Loans and
Swingline Loans, the Revolving-1 Commitment Termination Date.
"Note" or "Notes" shall mean the Revolving-1 Notes, the
Swingline Note, the Tranche A-1 Term Notes, the Tranche B-1 Term Notes
and/or the Tranche C Term Notes, collectively, separately or
individually, as appropriate. From and after the Fourth Amendment
Effective Date, some or all of the Loans may not be evidenced by Notes,
and consequently, with respect to any Lender that has made Loans not
evidenced by Notes, any reference to a Revolving-1 Note, Tranche X-0
Xxxx Xxxx, Xxxxxxx X-0 Term Note, Tranche C Term Note, or Note, shall,
as applicable, be deemed to be a reference to the related Credit Party
Obligations that would be represented by such a Revolving-1 Note,
Tranche X-0 Xxxx Xxxx, Xxxxxxx X-0 Term Note, Tranche C Term Note or
Note had such Lender elected to have its Loans represented by Notes.
"Subordinated Indebtedness" shall mean any publicly issued
Indebtedness specifically subordinated in right of payment and priority
to the Credit Party Obligations, with customary payment blockage and
other provisions, having a maturity no earlier than the date which is
one year after the later of (a) the Tranche B-1 Term Loan Maturity Date
and (b) the Tranche C Term Loan Maturity Date, and
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which shall otherwise be on terms and conditions reasonably
satisfactory to the Agents.
"Term Loans" shall mean collectively, the Tranche A-1 Term
Loans, the Tranche B-1 Term Loans and the Tranche C Term Loans.
"Unrestricted Subsidiaries" shall mean (a) Xxxxx LLC, Colorado
ES LLC, Curan LLC, and Neptune Colorado, LLC, (b) Continental Can
Company, Inc., and its Subsidiaries (including Xxxxx Holding, Inc., and
Franklin Plastics, Inc.), (c) on and after the Funding Date, E.B.I
Foods, Ltd. and its Subsidiaries, (d) each Captive Insurance Company
and (e) any other Subsidiary of the Borrower designated as such in
writing, with the consent of the Agents (not to be unreasonably
withheld or delayed).
(2) deleting paragraph (D) of the proviso to the definition of
"Interest Period" in its entirety and replacing it with the following:
(D) no Interest Period in respect of any Loan shall otherwise
extend beyond the applicable Maturity Date for such Loan and, further
with regard to the Tranche A-1 Term Loans, the Tranche B-1 Term Loans
and the Tranche C Term Loans, no Interest Period shall extend beyond
any principal amortization payment date unless the portion of such
Tranche X-0 Xxxx Xxxx, Xxxxxxx X-0 Term Loan or Tranche C Term Loan
consisting of Alternate Base Rate Loans together with the portion of
such Tranche X-0 Xxxx Xxxx, Xxxxxxx X-0 Term Loan or Tranche C Term
Loan consisting of LIBOR Rate Loans with Interest Periods expiring
prior to or concurrently with the date such principal amortization
payment date is due, is at least equal to the amount of such principal
amortization payment due on such date; and
(C) Amendment to Section 2.1. Section 2.1 ("Revolving-1 Loans") of
the Credit Agreement shall be amended effective as of the date hereof by adding
a new subsection (e) as follows:
(e) Increases in Revolving-1 Committed Amount.
(i) At any time prior to the Revolving-1
Commitment Termination Date, the Borrower shall have the ability, in
consultation with the Agents, to request increases in the Revolving-1
Committed Amount; provided that (i) no Lender shall have any obligation
to increase its Revolving-1 Commitment, (ii) the Borrower shall only be
permitted to request such an increase on four (4) separate occasions,
(iii) each such requested increase shall be in a minimum principal
amount of $25,000,000, (iv) in no event shall the aggregate amount of
all such increases exceed $250,000,000, (v) no Default or Event of
Default shall have occurred and be continuing or would result from the
proposed increase, and (v) the Borrower shall have demonstrated pro
forma compliance with all financial covenants set forth in Section 5.9
before and after giving effect to such increase. The Borrower shall
specify in such notice whether the requested increase is to be applied
to the Dollar
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Revolving-1 Committed Amount, the Multi-currency Revolving-1 Committed
Amount or a combination thereof, and, if a combination thereof, the
amount allocable to each.
(ii) The Administrative Agent shall promptly give
notice of such requested increase to the Lenders. Each Lender shall
notify the Administrative Agent within ten (10) Business Days (or such
longer period of time which may be agreed upon by the Administrative
Agent and the Borrower and communicated to the Lenders) from the date
of delivery of such notice to the Lenders whether or not it agrees to
increase its Revolving-1 Commitment and, if so, by what amount. Any
Lender not responding within such time period shall be deemed to have
declined to increase its Revolving-1 Commitment. The Administrative
Agent shall notify the Borrower of the Lenders' responses to each
request made hereunder. To achieve the full amount of a requested
increase, the Borrower may also invite additional Purchasing Lenders
which meet the requirements set forth in Section 9.6(c) to become
Lenders pursuant to a joinder agreement in form and substance
reasonably satisfactory to the Administrative Agent.
(iii) The outstanding Revolving-1 Loans will be
reallocated on the effective date of such increase among the Lenders in
accordance with their revised Commitment Percentages (and the Lenders
agree to make all payments and adjustments necessary to effect the
reallocation and the Borrower shall pay any and all costs required
pursuant to Section 2.18 in connection with such reallocation as if
such reallocation were a repayment).
(D) Amendment to Add a New Section 2.5A. Article II ("The Loans;
Amount and Terms") of the Credit Agreement shall be amended effective as of the
date hereof by adding a new Section 2.5A after Section 2.5 as follows:
SECTION 2.5A TRANCHE C TERM LOAN FACILITY
(a) Tranche C Term Loan. Subject to the terms and
conditions hereof and in reliance upon the representations and
warranties set forth herein, each Lender severally agrees to make
available to the Borrower on the Sixth Amendment Effective Date such
Lender's Tranche C Term Loan Commitment Percentage of a term loan in
Dollars (the "Tranche C Term Loan") in the aggregate principal amount
of FOUR HUNDRED MILLION DOLLARS ($400,000,000) (the "Tranche C Term
Loan Committed Amount") for the purposes set forth in Section 3.11. The
Tranche C Term Loan may consist of Alternate Base Rate Loans or LIBOR
Rate Loans, or a combination thereof, as the Borrower may request.
LIBOR Rate Loans shall be made by each Lender at its LIBOR Lending
Office and Alternate Base Rate Loans at its Domestic Lending Office.
Amounts repaid on the Tranche C Term Loan may not be reborrowed.
(b) Repayment of Tranche C Term Loan. The principal
amount of the Tranche C Term Loan shall be repaid, unless accelerated
sooner pursuant to Section 7.2, in accordance with the following
schedule:
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Principal Amortization Tranche C Term Loan
Payment Date Principal Amortization Payment
------------------------- ------------------------------
June 30, 2004 $ 1,000,000
September 30, 2004 $ 1,000,000
December 31, 2004 $ 1,000,000
March 31, 2005 $ 1,000,000
June 30, 2005 $ 1,000,000
September 30, 2005 $ 1,000,000
December 31, 2005 $ 1,000,000
March 31, 2006 $ 1,000,000
June 30, 2006 $ 1,000,000
September 30, 2006 $ 1,000,000
December 31, 2006 $ 1,000,000
March 31, 2007 $ 1,000,000
June 30, 2007 $ 1,000,000
September 30, 2007 $ 1,000,000
December 31, 2007 $ 1,000,000
March 31, 2008 $192,500,000
Tranche C Term Loan
Maturity Date $192,500,000
(c) Tranche C Term Notes. Each Lender's Tranche C Term
Loan Commitment Percentage of the Tranche C Term Loan Committed Amount
may, at the election of such Lender, be evidenced by a duly executed
promissory note of the Borrower to such Lender in substantially the
form of Schedule 2.5A(c).
(d) Payments of Tranche C Term Loans. All payments (other
than prepayments) on account of principal and interest on the Tranche C
Term Loans shall be made to the pro rata benefit of the Lenders
according to the amounts owing first to Alternate Base Rate Loans and
then to LIBOR Rate Loans in the direct order of Interest Period
maturities.
(E) Amendment to Section 2.8. Section 2.8 ("Prepayments") of the
Credit Agreement shall be amended effective as of the date hereof by:
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(1) by deleting subsection (a) ("Optional Prepayments")
in its entirety and replacing it with the following:
(a) Optional Prepayments. The Borrower shall have the
right to prepay Loans in whole or in part from time to time; provided,
however, that (i) each partial prepayment of Loans (other than
Swingline Loans) shall be in a minimum principal amount of $5,000,000
and integral multiples of $1,000,000 (or the Alternative Currency
Amount thereof, as applicable) in excess thereof and (ii) each
prepayment of Swingline Loans shall be in a minimum principal amount of
$100,000 and integral multiples of $100,000 in excess thereof. The
Borrower shall give irrevocable written notice (or telephone notice
promptly confirmed in writing which confirmation may be by fax) of any
such voluntary prepayment to the Administrative Agent (which shall
notify the Lenders thereof as soon as practicable) not later than 1:30
P.M. (Charlotte, North Carolina time) on the Business Day prior to the
date of the requested prepayment in the case of Alternate Base Rate
Loans, on the third Business Day prior to the date of the requested
prepayment in the case of LIBOR Rate Loans denominated in Dollars and
on the fourth Business Day prior to the date of the requested
prepayment in the case of Alternative Currency Loans. Each such notice
of prepayment shall specify (A) the date of repayment, (B) the amount
of repayment, (C) whether the repayment is of Dollar Revolving-1 Loans,
Multi-currency Revolving-1 Loans (including the applicable Permitted
Currency), Swingline Loans, Tranche A-1 Term Loans, Tranche B-1 Term
Loans, Tranche C Term Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each and (D) whether the
repayment is of LIBOR Rate Loans or Alternate Base Rate Loans, or a
combination thereof, and, if of a combination thereof, the amount
allocable to each. Prepayments of the Tranche A-1 Term Loan, the
Tranche B-1 Term Loan or the Tranche C Term Loan under this Section
2.8(a) shall be applied ratably to the remaining principal installments
thereof (provided, however, promptly upon notification thereof, one or
more holders of the Tranche B-1 Term Loan and/or the Tranche C Term
Loan, as applicable, may decline to accept such prepayment to the
extent there are sufficient amounts under the Tranche A-1 Term Loan
outstanding to be paid with such prepayment, in which case, such
declined prepayments shall be allocated pro rata among the Tranche A-1
Term Loan, the Tranche B-1 Term Loan and/or the Tranche C Term Loan, as
applicable, held by Lenders accepting such pre-payments). Subject to
the foregoing terms, amounts prepaid under this Section 2.8(a) shall be
applied first to Alternate Base Rate Loans and then to LIBOR Rate Loans
in direct order of Interest Period maturities. All prepayments under
this Section 2.8(a) shall be without premium or penalty except that (i)
any voluntary prepayments of the Tranche B-1 Term Loan made during the
period commencing on the Fourth Amendment Effective Date and ending on
May 29, 2004 will require payment of a premium of 0.50% of the
principal amount being prepaid on such date and (ii) all prepayments
shall be subject to Section 2.18. Interest on the principal amount
prepaid shall be payable on the date of such prepayment. Amounts
prepaid on the Swingline Loans and the Revolving-1 Loans may be
reborrowed in accordance with the terms hereof. Amounts prepaid on the
Tranche A-1 Term Loan, the Tranche B-1 Term Loan and the Tranche C Term
Loan may not be reborrowed. In addition to any other voting
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requirement set forth in this Agreement, any amendment to this
Agreement that amends, modifies or waives the allocation of payments
(whether optional or mandatory) or the realization of proceeds of
Collateral among the Loans (or between any two or more of such Loans),
or the order of application of payments (whether optional or mandatory)
specified in this Section 2.8, shall require the consent of, if
affected thereby, Lenders holding greater than 50% of the outstanding
Tranche C Term Loans.
(2) by deleting paragraph (vi) of clause (b)
("Application of Mandatory Prepayments") in its entirety and replacing it with
the following:
(vi) Application of Mandatory Prepayments. All amounts
required to be paid pursuant to this Section 2.8(b) shall be applied as
follows: (A) with respect to all amounts prepaid pursuant to Section
2.8(b)(i)(A), to the Dollar Revolving-1 Loans and then (after all
Dollar Revolving-1 Loans have been repaid) to a cash collateral account
in respect of Dollar LOC Obligations, (B) with respect to all amounts
prepaid pursuant to Section 2.8(b)(i)(B), to the Multi-currency
Revolving-1 Loans and then (after all Multi-currency Revolving-1 Loans
have been repaid) to a cash collateral account in respect of
Multi-currency LOC Obligations, and (C) with respect to all amounts
prepaid pursuant to Sections 2.8(b)(ii) through (v), (1) first, pro
rata to the Tranche A-1 Term Loan, the Tranche B-1 Term Loan and the
Tranche C Term Loan (ratably to the remaining principal installments
thereof); provided, however, promptly upon notification thereof, one or
more holders of the Tranche B-1 Term Loan and/or the Tranche C Term
Loan, as applicable, may decline to accept a mandatory prepayment to
the extent there are sufficient amounts under the Tranche A-1 Term Loan
outstanding to be paid with such prepayment, in which case, such
declined payments shall be allocated pro rata among the Tranche A-1
Term Loan, the Tranche B-1 Term Loan and the Tranche C Term Loan held
by Lenders accepting such prepayments, and (2) second, pro rata to the
Dollar Revolving-1 Loans and the Multi-currency Revolving-1 Loans with
corresponding permanent pro rata reductions of the Dollar Revolving-1
Committed Amount and the Multi-currency Revolving-1 Committed Amount
and (after all Revolving-1 Loans have been repaid) to a cash collateral
account in respect of Dollar LOC Obligations and Multi-currency LOC
Obligations, pro rata. Within the parameters of the applications set
forth above, prepayments shall be applied first to Alternate Base Rate
Loans and then to LIBOR Rate Loans in direct order of Interest Period
maturities. All prepayments under this Section 2.8(b) shall be subject
to Section 2.18 and be accompanied by interest on the principal amount
prepaid through the date of prepayment. Any prepayments of the Tranche
B-1 Term Loan made during the period commencing on the Fourth Amendment
Effective Date and ending on May 29, 2004 pursuant to Section
2.8(b)(ii) will require payment of a premium of 0.50% of the principal
amount being prepaid on such date.
(F) Amendment to Section 6.1. Section 6.1 ("Indebtedness") of the
Credit Agreement shall be amended effective as of the date hereof by amending
and restating subsection (f) thereof in its entirety as follows:
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(f) additional unsecured Indebtedness of the Borrower and
its Restricted Subsidiaries; provided that both before and after giving
effect to the incurrence of such Indebtedness, the Borrower and its
Restricted Subsidiaries shall be in pro forma compliance with the
financial covenants set forth in Section 5.9;
(G) Amendment to Section 9.6. Section 9.6 ("Successors and
Assigns; Participations; Purchasing Lenders") shall be amended effective as of
the date hereof by:
(1) deleting each reference to the words "Tranche A-1
Term Loan or the Tranche B-1 Term Loan" and replacing such references with the
words "Tranche A-1 Term Loan, the Tranche B-1 Term Loan or the Tranche C Term
Loan".
(2) deleting each reference to the words "Tranche A-1
Term Loan or Tranche B-1 Term Loan" and replacing such references with the words
"Tranche X-0 Xxxx Xxxx, Xxxxxxx X-0 Term Loan or Tranche C Term Loan".
(3) Deleting each reference to the words "Tranche A-1
Term Note or its Tranche B-1 Term Note" and replacing such references with the
words "Tranche A-1 Term Note, its Tranche B-1 Term Note or its Tranche C Term
Note".
(H) Amendment to Schedules. The Credit Agreement shall be amended
effective as of the date hereof by adding a new Schedule 2.5A(c) (Form of
Tranche C Term Note) thereto in the form of Annex II hereto.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each of the Credit Parties
represents and warrants as follows:
(A) It has taken all necessary action to authorize the execution,
delivery and performance of this Amendment and each other document executed in
connection herewith to which it is a party in accordance with their respective
terms.
(B) This Amendment and each other document executed in connection
herewith has been duly executed and delivered by such Person and constitutes
such Person's legal, valid and binding obligation, enforceable in accordance
with its terms, except as such enforceability may be subject to: (1) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (2) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
at law or in equity).
(C) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority or third
party is required in connection with the execution, delivery or performance by
such Person of this Amendment, other than filings required to comply with
applicable securities laws.
(D) After giving effect to this Amendment, the representations and
warranties set forth in the Credit Agreement are, subject to the limitations set
forth therein, true and correct in all material respects as of the date hereof
(except for those which expressly relate to an earlier date).
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(E) No Default or Event of Default has occurred and is continuing
as of the date hereof.
SECTION 3. CONDITIONS PRECEDENT. This Amendment shall become effective
on the date hereof upon satisfaction (or waiver) of each of the following
conditions precedent:
(A) This Amendment. The Administrative Agent shall have received
(1) a duly executed counterpart of this Amendment from the Administrative Agent
and each Credit Party, (2) Authorizations from the Required Lenders, (3)
Authorizations from Lenders constituting more than 50% of each of (i) the
Revolving-1 Committed Amount, (ii) the outstanding Tranche A-1 Term Loan and
(iii) the outstanding Tranche B-1 Term Loans, and (4) Authorizations from each
of the Lenders with a Tranche C Term Loan Commitment.
(B) Costs, Expenses and Fees. The Borrower shall have paid any and
all out-of-pocket costs (to the extent invoiced on or prior to the date hereof)
incurred by the Agents or the Arrangers (including the reasonable fees and
expenses of each Agent's legal counsel and other advisors and professionals
engaged by the Agents or the Arrangers in connection with this Amendment) and
fees and other amounts payable to either Agent in connection with the
arrangement, negotiation, execution and delivery of this Amendment.
(C) Opinion of Counsel. The Administrative Agent shall have
received a legal opinion of counsel to the Borrower and its Subsidiaries,
addressed to the Lenders and the Administrative Agent and dated as of the date
hereof which shall be in form and substance to the Administrative Agent, as to
the due authorization, execution, delivery and enforceability of this Amendment
and such other matters as reasonably requested by the Administrative Agent.
(D) Certificate of Secretary of the Borrower. The Administrative
Agent shall have received a certificate of the secretary or assistant secretary
of the Borrower dated as of the date hereof (i) certifying as to the incumbency
and genuineness of the signature of each officer of the Borrower executing
Credit Documents to which it is a party (or containing a representation that
each authorized signatory provided in the certificate of secretary which was
delivered to the Administrative Agent in connection with the Credit Agreement
remains unchanged as of the date hereof), (ii) certifying that the articles or
certificate of incorporation or formation of the Borrower and all amendments
thereto and the bylaws or other governing document of the Borrower and all
amendments thereto which were delivered to the Administrative Agent in
connection with the Credit Agreement have not been repealed, revoked, rescinded
or further amended in any respect and that each remains in full force and effect
as of the date hereof and (iii) certifying that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of the
Borrower authorizing the borrowings contemplated hereunder and the execution,
delivery and performance of this Amendment and the other Credit Documents.
(E) Requested Notes. The Administrative Agent shall have received
original Tranche C Term Notes, duly executed by the Borrower, for each Lender
that requests that its Tranche C Term Loan be evidenced by a Tranche C Term Note
pursuant to Section 2.5A(c).
(F) Compliance Certificate. The Administrative Agent shall have
received an certificate of a Responsible Officer of the Borrower (substantially
in the form provided pursuant to Section 5.2(c) of the Credit Agreement) setting
forth in reasonable detail the computations necessary to
11
determine that after giving effect to the Tranche C Term Loans made on the
effective date of this Amendment the Borrower shall be in pro forma compliance
with the financial covenants set forth in Section 5.9 of the Credit Agreement.
(G) Other Documents. The Administrative Agent shall have received
any other documents, certificates or instruments reasonably requested thereby in
connection with the execution of this Amendment.
SECTION 4. ACKNOWLEDGEMENT OF GUARANTORS AND REAFFIRMATION OF SECURITY
DOCUMENTS.
(A) By their execution hereof, each of the Guarantors listed on
the signature pages to this Amendment hereby expressly (1) consents to the
modifications and amendments set forth in this Amendment, (2) reaffirms all of
its respective covenants, representations, warranties and other obligations set
forth in the Credit Agreement and the other Credit Documents to which it is a
party, (3) acknowledges that it has received a copy of the Credit Agreement (as
amended) and agrees to be bound to the terms and conditions set forth therein
and (4) acknowledges, represents and agrees that its respective covenants,
representations, warranties and other obligations set forth in the Credit
Agreement and the other Credit Documents to which it is a party remain in full
force and effect.
(B) Each Credit Party hereby confirms that each of the Security
Documents to which it is a party shall continue to be in full force and effect
and is hereby ratified and reaffirmed in all respects as if fully restated as of
the date hereof by this Amendment. In furtherance of the reaffirmations set
forth in this Section 4(B) each Credit Party hereby grants and assigns a
security interest in all Collateral (including, without limitation, any real
property or other Collateral) identified in any Security Document as collateral
security for the Credit Party Obligations.
SECTION 5. OTHER AGREEMENTS.
(A) Certain Name Changes. The Borrower has previously advised the
Administrative Agent, in writing, of changes to the legal name of certain of the
Guarantors. The Administrative Agent has requested, and the Borrower has agreed
to deliver, additional documents, certificates and confirmations in connection
with such name changes. The parties hereto agree and acknowledge that upon
receipt by the Administrative Agent of such requested documents, certificates
and confirmations, any breach resulting from the failure of the Borrower and its
Subsidiaries to comply with applicable deadlines in the Credit Documents with
respect to such name changes shall be deemed cured as of the date hereof.
(B) Reorganization of Morningstar Foods Entities. The Borrower has
previously advised the Administrative Agent in writing of certain corporate
organizational changes affecting certain of the Morningstar Foods entities (the
"Morningstar Reorganization"). Pursuant to the requirements of the Credit
Agreement, the Borrower and its Subsidiaries have delivered the applicable
Joinder Agreements and related documentation in connection with the Morningstar
Reorganization. Part of the Morningstar Reorganization involves the transfer of
certain owned real property for one Credit Party to another Credit Party. The
parties hereto agree that the Borrower and its Subsidiaries shall have sixty
(60) days from the date hereof (as such time period may be extended in the
reasonable discretion of the Administrative Agent) to provide such additional
12
documents, certificates and confirmations as are reasonably requested by the
Administrative Agent in connection with such transfers of owned real property.
SECTION 6. MISCELLANEOUS.
(A) Limited Amendment. Except as expressly provided herein, the
Credit Agreement shall remain unmodified and in full force and effect. This
Amendment shall not be deemed (1) to be a waiver of, or consent to, a
modification or amendment of, any other term or condition of the Credit
Agreement or any other Credit Document or (2) to prejudice any other right or
rights which the Administrative Agent or the Lenders may now have or may have in
the future under or in connection with the Credit Agreement or the other Credit
Documents or any of the instruments or agreements referred to therein, as the
same may be amended or modified from time to time. 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") and in any Credit Document to the Credit Agreement shall
be deemed to be references to the Credit Agreement as amended hereby.
(B) Counterparts. 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.
(C) Further Assurances. Upon the request of the Administrative
Agent and at the sole expense of the Borrower, the Borrower will promptly and
duly execute and deliver, and have recorded, such further instruments and
documents and take such further actions as the Administrative Agent may
reasonably request to effectuate the provisions and purposes of this Amendment.
(D) Fax Transmission. A facsimile, telecopy or other reproduction
of this Amendment may be executed by one or more parties hereto, and an executed
copy of this Amendment may be delivered by one or more parties hereto by
facsimile or similar instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Amendment as well as any facsimile, telecopy or
other reproduction hereof.
(E) Governing Law. This Amendment shall be governed by, and
construed in accordance with, the law of the State of North Carolina without
regard to the conflicts of law or choice of law provisions thereof.
[Signature Pages Follow]
13
IN WITNESS WHEREOF, each of the parties hereto have caused this Sixth
Amendment to be duly executed and delivered by its proper and duly authorized
officers as of the day and year first above written.
BORROWER: XXXX FOODS COMPANY, a Delaware corporation
By: /s/ Xxxx X. Xxxxx
----------------------------------------------------
Xxxx X. Xxxxx
Senior Vice President and Deputy General Counsel
GUARANTORS:
31 LOGISTICS, INC., a Delaware corporation
XXXX-XXXX CERTIFIED DAIRY, INC., a Delaware corporation
XXXXXX ICE CREAM, LLC, a Delaware limited liability
company
XXXXXX MILK, INC., a Delaware corporation (formerly
known as Xxxxxx Dairies, Inc., by change of name only)
BERKELEY FARMS, INC., a California corporation
XXXXXXXXX FOODS, LLC, a Delaware limited liability
company
COUNTRY DELITE FARMS, LLC, a Delaware limited liability
company
COUNTRY FRESH, LLC, a Michigan limited liability
company
CREAMLAND DAIRIES, INC., a New Mexico corporation
DAIRY FRESH, LLC, a Delaware limited liability company
XXXX DAIRY HOLDINGS, LLC, a Delaware limited liability
company
XXXX DAIRY PRODUCTS COMPANY, a Pennsylvania corporation
XXXX FOODS BUSINESS SERVICES COMPANY, a Delaware
corporation
Each of the above:
By: /s/ Xxxx X. Xxxxx
----------------------------------------------------
Xxxx X. Xxxxx
Authorized Agent
[Sixth Amendment to Credit Agreement - Xxxx Foods Company]
XXXX FOODS COMPANY OF CALIFORNIA, INC., a Delaware
corporation
XXXX FOODS COMPANY OF INDIANA, INC., a Delaware
corporation
XXXX FOODS NORTH CENTRAL, INC., a Delaware corporation
XXXX HOLDING COMPANY, a Delaware corporation (formerly
known as Blackhawk Acquisition Corp., successor by
merger to Xxxx Foods Company, a Delaware corporation)
XXXX ILLINOIS DAIRIES, LLC, a Delaware limited liability
company
XXXX MANAGEMENT CORPORATION, a Delaware corporation
(formerly known as Suiza Management Corporation, by
change of name only)
XXXX MIDWEST II, LLC, a Delaware limited liability
company
XXXX MIDWEST, LLC, a Delaware limited liability company
XXXX MILK COMPANY, INC., a Kentucky corporation
XXXX NATIONAL BRAND GROUP, INC., a Delaware corporation
(formerly known as Morningstar Foods Inc.)
XXXX NORTHEAST II, LLC, a Delaware limited liability
company
XXXX NORTHEAST, LLC, a Delaware limited liability
company (formerly known as Suiza GTL, LLC, by change of
name only)
XXXX XXXXXX AND SPECIALTY PRODUCTS COMPANY, a Wisconsin
corporation
XXXX PUERTO RICO HOLDINGS, LLC, a Delaware limited
liability company (formerly known as Suiza Dairy
Corporation by change of name only)
XXXX SOCAL, LLC, a Delaware limited liability company
(formerly known as Suiza SoCal, LLC by change of name
only)
XXXX SOUTHEAST II, LLC, a Delaware limited liability
company
XXXX SOUTHEAST, LLC, a Delaware limited liability
company (formerly known as Suiza Southeast, LLC, by
change of name only)
Each of the above:
By: /s/ Xxxx X. Xxxxx
----------------------------------------------------
Xxxx X. Xxxxx
Authorized Agent
[Sixth Amendment to Credit Agreement - Xxxx Foods Company]
XXXX SOUTHWEST II, LLC, a Delaware limited liability
company
XXXX SOUTHWEST, LLC, a Delaware limited liability
company (formerly known as Suiza Southwest, LLC, by
change of name only)
XXXX SPECIALTY FOODS GROUP, LLC, a Delaware limited
liability company
XXXX TRANSPORTATION, INC., an Ohio corporation
DIPS XX XX, INC., a Delaware corporation
DIPS GP, INC., a Delaware corporation
DIPS LIMITED PARTNER II, a Delaware statutory trust
(formerly known as DTMC, Inc.)
DIPS LIMITED PARTNER, a Delaware entity (formerly known
as Dips LP, Inc.)
ELGIN BLENDERS, INCORPORATED, an Illinois corporation
FAIRMONT DAIRY, LLC, a Delaware limited liability
company
XXXXX'X DAIRIES, INC., a Texas corporation
HORIZON ORGANIC DAIRY, CALIFORNIA FARM, INC., a Delaware
corporation
HORIZON ORGANIC DAIRY, IDAHO FARM, INC., a Colorado
corporation
HORIZON ORGANIC DAIRY, INC., a Colorado corporation
HORIZON ORGANIC DAIRY, MARYLAND FARM, INC., a Colorado
corporation
HORIZON ORGANIC HOLDING CORPORATION, a Delaware
corporation
HORIZON ORGANIC INTERNATIONAL, INC., a Delaware
corporation
KOHLER MIX SPECIALTIES OF MINNESOTA, LLC, a Delaware
limited liability company (formerly known as M-Foods
Dairy, LLC)
KOHLER MIX SPECIALTIES, LLC, a Delaware limited
liability company (formerly known as M-Foods Dairy TXCT)
LAND-O- SUN DAIRIES, LLC, a Delaware limited liability
company
Each of the above:
By: /s/ Xxxx X. Xxxxx
----------------------------------------------------
Xxxx X.Xxxxx
Authorized Agent
[Sixth Amendment to Credit Agreement - Xxxx Foods Company]
LIBERTY DAIRY COMPANY, a Michigan corporation
XXXXX XXXXXX DAIRY, LLC, a Delaware limited liability
company
MARATHON DAIRY INVESTMENT CORP., a Minnesota corporation
XXXXXXXX DAIRY FARMS, INC., a Delaware corporation
XXXXXXXX DAIRY, INC., a Florida corporation
MEADOW BROOK DAIRY COMPANY, a Pennsylvania corporation
MELODY FARMS, L.L.C., a Delaware limited liability
company
MIDWEST ICE CREAM COMPANY, a Delaware corporation
(formerly known as Xxxx Foods Ice Cream Company, by
change of name only)
MODEL DAIRY, LLC, a Delaware limited liability company
XXXXXXXXXXX XXXXXXXXX, INC., a Delaware corporation
MORNINGSTAR FOOD, LLC, a Delaware limited liability
company
MORNINGSTAR SERVICES INC., a Delaware corporation
NEW ENGLAND DAIRIES, LLC, a Delaware limited liability
company
PET X'XXXXXX, LLC, a Delaware limited liability company
PURITY DAIRIES, INCORPORATED, a Delaware corporation
RED OAK MILK, LLC, a Delaware limited liability company
XXXXXX DAIRY OF AKRON, INC., an Ohio corporation
(formerly known as Xxxxxx Akron, Inc.)
XXXXXX DAIRY OF SPRINGFIELD, LLC, a Delaware limited
liability company (formerly known as Xxxxxx Springfield,
LLC)
XXXXXXXX DAIRY, LLC, a Delaware limited liability
company
Each of the above:
By: /s/ Xxxx X. Xxxxx
----------------------------------------------------
Xxxx X. Xxxxx
Authorized Agent
[Sixth Amendment to Credit Agreement - Xxxx Foods Company]
XXXXXXXX'X ALL-STAR DAIRY, LLC, a Delaware limited
liability company
XXXXXXXX'X ALL-STAR DELIVERY, LLC, a Delaware limited
liability company
SFG MANAGEMENT LIMITED LIABILITY COMPANY, a Delaware
limited liability company
SHENANDOAH'S PRIDE, LLC, a Delaware limited liability
company
SOUTHERN FOODS HOLDINGS, a Delaware statutory trust
(formerly known as Southern Foods Holding Company, LLC)
SUIZA DAIRY GROUP HOLDINGS, INC., a Delaware corporation
(formerly known as Preferred Holdings, Inc.)
SUIZA DAIRY GROUP, INC., a Delaware corporation
(formerly known as Suiza Dairy Group, L.P.)
SULPHUR SPRINGS CULTURED SPECIALTIES, LLC, a Delaware
limited liability company
X.X. XXX FOODS, INC., a Florida corporation
TERRACE DAIRY, LLC, a Delaware limited liability company
TUSCAN/ LEHIGH DAIRIES, INC., A Delaware corporation
(formerly known as Tuscan/Lehigh Dairies, L.P.)
VERIFINE DAIRY PRODUCTS CORPORATION OF SHEBOYGAN, INC.,
a Wisconsin corporation
XXXXXXX'X DAIRY, INC., a Delaware corporation
WHITE WAVE, INC., a Colorado corporation
Each of the above:
By: /s/ Xxxx X. Xxxxx
----------------------------------------------------
Xxxx X. Xxxxx
Authorized Agent
[Sixth Amendment to Credit Agreement - Xxxx Foods Company]
XXXX SPECIALTY INTELLECTUAL PROPERTY SERVICES, L.P.,
a Delaware limited partnership
By: DIPS XX XX, INC., its general partner
By: /s/ Xxxx X. Xxxxx
----------------------------------------------------
Xxxx X. Xxxxx
Authorized Agent
XXXX INTELLECTUAL PROPERTY SERVICES II, L.P.,
a Delaware limited partnership
By: DIPS XX XX, INC., its general partner
By: /s/ Xxxx X. Xxxxx
----------------------------------------------------
Xxxx X. Xxxxx
Authorized Agent
XXXX INTELLECTUAL PROPERTY SERVICES, L.P.,
a Delaware limited partnership
BY: DIPS GP, INC., its general partner
By: /s/ Xxxx X. Xxxxx
----------------------------------------------------
Xxxx X. Xxxxx
Authorized Agent
SOUTHERN FOODS GROUP, L.P.,
a Delaware limited partnership
By: SFG MANAGEMENT LIMITED LIABILITY COMPANY,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxxx
----------------------------------------------------
Xxxx X. Xxxxx
Authorized Agent
[Sixth Amendment to Credit Agreement - Xxxx Foods Company]
AGENTS AND LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
in its capacity as Administrative
Agent and individually in its
capacity as a Lender, on behalf of
itself and the other Lenders (other
than the Syndication Agent) pursuant
to the Authorization
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: XXXXX X. XXXXXXXX
Title: Managing Director
[Sixth Amendment to Credit Agreement - Xxxx Foods Company]
BANK ONE, NA, in its capacity as
Syndication Agent and individually
in its capacity as a Lender
By: /s/ X. X. Xxxxx
---------------------------------
Name: X. X. XXXXX
Title: Managing Director
[Sixth Amendment to Credit Agreement - Xxxx Foods Company] S-16
ANNEX I
Form of Lender Authorization
AUTHORIZATION
April 5, 2004
Wachovia Bank, National Association,
as Administrative Agent
Attn: Syndication Agency Services
NC-0760
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Re: Sixth Amendment dated as of April 5, 2004 (the "Amendment") to that
certain Credit Agreement dated as of July 31, 2001 (as amended by
that certain First Amendment to Credit Agreement dated as of
December 19, 2001, that certain Second Amendment to Credit Agreement
dated as of April 30, 2002 and that certain Third Amendment to
Credit Agreement dated as of December 13, 2002, that certain Fourth
Amendment to Credit Agreement dated as of August 29, 2003, that
certain Fifth Amendment to Credit Agreement dated December 31, 2003
and as further amended, restated, modified or supplemented from time
to time) by and among Xxxx Foods Company (formerly known as Suiza
Foods Corporation), as borrower (the "Borrower"), certain
subsidiaries of the Borrower party thereto, as guarantors, the banks
and financial institutions party thereto, as lenders, Fleet National
Bank, Xxxxxx Trust and Savings Bank and SunTrust Bank, as
co-documentation agents, Bank One, NA, as syndication agent and
Wachovia Bank, National Association (formerly known as First Union
National Bank), as administrative agent (the "Administrative
Agent").
This letter acknowledges our receipt and review of the Amendment in the
form posted on the Xxxx Foods Intralinks Workspace. By executing this letter, we
hereby authorize the Administrative Agent to execute and deliver the Amendment
on our behalf.
Each financial institution executing this Authorization agrees or
reaffirms that it shall be a party to the Credit Agreement and the other Credit
Documents to which Lenders are parties and shall have the rights and obligations
of a Lender under each such agreement.
_________________________________________
[Insert name of applicable financial institution]
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
