SEVENTH AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.58
SEVENTH AMENDMENT TO CREDIT AGREEMENT
This
Seventh Amendment (“Amendment”) is made as of the February 2, 2006 to the Credit
Agreement dated as of March 31, 1998 (as amended, supplemented, restated or otherwise modified and
in effect from time to time, the “Credit Agreement”), by and among XXXX X. XXXXXXXXXX & SON, INC.,
a Delaware corporation (and successor in interest to Sunshine Nut Co., Inc. and Quantz Acquisition
Co., Inc., “Xxxxxxxxxx” or the “Borrower”), and JBS INTERNATIONAL, INC., a Barbados corporation
which has been dissolved prior to the date of this Amendment (“JBS”), the financial institutions
party thereto (collectively “Lenders” and
individually a “Lender”) and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, in its capacity as successor Agent for the Lenders to
U.S. Bancorp Ag Credit, Inc., a Colorado corporation (the “Agent”).
RECITAL
Except as defined herein, all capitalized terms used in this Amendment shall have
meaning assigned to them in the Credit Agreement.
Sun
Trust Bank, N.A.(“Sun Trust”) has declined to continue as a Lender under the Credit
Agreement as amended by this Amendment. U.S. Bank and LaSalle Bank National Association
(“LaSalle”) have agreed to continue as Lenders under the Credit Agreement as amended by this
Amendment. Sun Trust will be paid in full and shall have no further obligations under the Credit
Agreement on the date of this Amendment.
Borrower has requested certain waivers of the terms of the Credit Agreement and has requested
to borrow increased sums under the Credit Agreement, and the Agent and the Lenders have agreed to
such waivers and amendments upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing and of the terms and conditions contained in
the Credit Agreement and this Amendment, and of any loans or extensions of credit or other
financial accommodations at any time made to or for the benefit of the Borrower by Lenders, the
Borrower, the Agent and the Lenders agree as follows:
1. The following definitions as set forth in Section 1.1 of the Credit Agreement,
General Definitions, shall be amended to add, delete or modify such definitions as
follows:
“Loan
Commitment” shall mean as to any Lender, such Lender’s Pro Rata
Percentage of $100,000,000 through and including April 30, 2006 and $80,000,000
thereafter as set forth opposite such Lender’s name under the heading “Loan
Commitments” on Exhibit 1A-4, as such amount may be reduced or terminated
from time to time pursuant to Section 4.4 or 11.1, and
“Loan
Commitments” shall mean, collectively, the Loan Commitments for all the
Lenders.
Page 1 of 7
2. The Notes referred to in Subsection (h) of Section 2.1 of the Credit
Agreement, Loans, shall be in the form attached hereto as Exhibit 2A-4.
3. Payments of principal, interest, non-use fees and letter of credit fees by Borrower
and Equalization Transfers between the Lenders, shall be made on the date of this Amendment:
(i) to cause the payment in full of Sun Trust under the Credit Agreement (including the
payment of all interest, non-use fees and letter of credit fees to said date), (ii) to cause the
payment of interest, non-use fees and letter of credit fees to said date to the U.S. Bank and LaSalle
under the Credit Agreement; and (iii) to cause the Loans to be held by U.S. Bank and LaSalle according
to their respective Pro Rata Percentages as set forth in this Amendment. Borrower acknowledges
that, as a result of payment in full of Sun Trust pursuant to this Amendment, Borrower may
have reimbursement obligations under Section 5.3 of the Credit Agreement. LaSalle
acknowledges that it may hold a greater percentage in existing LIBOR Rate Loans in the amount of its new
Pro Rata Percentage.
4. In addition to the fees owed by Borrower to the Agent and the Lenders pursuant
to Section 6 of the Credit Agreement, Borrower agrees to pay to the Agent, for
distribution to the Lenders, a fee of $25,000 for the temporary increase of the Loan Commitment as provided for
herein (based on their respective pro rata share of the $20,000,000 temporary increase). Such
fee shall be due upon execution of this Amendment and shall be fully earned on such date.
5. At December 29, 2005, Borrower failed to obtain the required EBITDA and failed
to maintain the required Leverage Ratio, in violation of Section 9.6 of the Credit
Agreement, Financial Covenants and Ratios, (the “Financial Covenants Violation”).In addition, as
a result of the failure to meet such financial covenants, Borrower is also in default (the “Note
Default”) under the terms of that certain Note Purchase Agreement dated as of December 16, 2004 relating
to those certain 4.67% Senior Notes due December 1, 2014 (the
“Notes”), which default is a
Matured Default in accordance with Subsection (1) of the definition of “Matured Default” as
set forth in Section 1 of the Credit Agreement (the “Cross Default”). The Financial Covenants
Violation is also a Matured Defaut in accordance with Subsection (p) of the definition of
“Matured Default” as set forth in Section 1 of the Credit Agreement. The Lenders hereby
consent to the Financial Covenants Violation and, subject to the proviso below, the Cross
Default, and waive their rights powers and remedies with respect to the Financial Covenants
Violation and, subject to the proviso below, the Cross Default; provided however that it is
acknowledged and agreed that the aforementioned waiver hereunder of the Cross Default shall
immediately cease to be effective upon the acceleration, if any, by the holders of the Notes
as a result of the Note Default, whereupon the Agent and the Lenders shall thereafter be entitled
to exercise all rights and remedies relating to the Cross Default as are provided for or
permitted under the Credit Agreement and applicable law. Notwithstanding the foregoing waiver and
consent, it is expressly understood and agreed that the Lenders shall have the right at all
times hereafter to require strict performance by Borrower of all terms of the Credit Agreement or
any other Financing Agreement, including without limitation, the terms of the aforementioned
Section of the Credit Agreement, that the Lenders do not waive, affect or diminish any right,
power or remedy of the Lenders under the Credit Agreement or any other Financing Agreement
Page 2 of 7
except as expressly set forth herein and that except as expressly set forth herein, the Credit
Agreement and each other Financing Agreement shall continue in full force and effect in accordance
with their respective terms.
6. Exhibits.
Exhibit 1A-3 to the Credit Agreement, Lenders’ Commitments,
shall hereafter be replaced by Exhibit 1A-4; and Exhibit 2A-3 to the Credit
Agreement, Form of Notes, shall hereafter be replaced by Exhibit 2A-4.
7. The effectiveness of this Amendment is conditioned on the execution and delivery
to Agent of the items listed on Exhibit A attached to this Amendment in form and substance
reasonably acceptable to Agent.
8. This Amendment shall be an integral part of the Credit Agreement, as amended,
and all of the terms set forth therein are hereby incorporated in this Amendment by reference,
and all terms of this Amendment are hereby incorporated into said Credit Agreement, as if made
an original part thereof. All of the terms and provisions of the Agreement, as amended, which
are not modified in this Amendment shall remain in full force and effect.
{Signature Page Follows}
Page 3 of 7
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first
above written.
XXXX X. XXXXXXXXXX & SON, INC., a | ||||||||||
Delaware corporation | ||||||||||
ATTEST: | ||||||||||
By
|
/s/ Xxxxxxx Xxxxxxxxxx | By | /s/ Xxxxxxx X. Xxxxxxxxx | |||||||
Its Exec. Vice President | Its CFO | |||||||||
U.S. BANK NATIONAL ASSOCIATION | ||||||||||
as Agent and as a Lender | ||||||||||
By | /s/ Xxxx Xxxx | |||||||||
Its Vice President | ||||||||||
LASALLE BANK NATIONAL | ||||||||||
ASSOCIATION (f/k/a LaSalle National | ||||||||||
Bank), as a Lender | ||||||||||
By | /s/ Xxxxx Xxxxx | |||||||||
Its Loan Officer |
{Signature Page to Seventh Amendment to Credit Agreement Dated February 2, 2006}
Page 4 of 7
EXHIBIT 1A-4
TO
CREDIT AGREEMENT
TO
CREDIT AGREEMENT
Lenders’ Commitments
Loan | Pro Rata | Maximum $ Through | ||||
Commitments | Percentage | And Including 4/30/06 | ||||
U.S. Bank |
50.000000% | $ | 50,000,000 | |||
LaSalle Bank |
50.000000% | $ | 50,000,000 | |||
TOTAL: |
100% | $ | 100,000,000 |
Loan | Pro Rata | Maximum $ After | ||||
Commitments | Percentage | 4/30/06 | ||||
U.S. Bank |
50.00000% | $ | 40,000,000 | |||
LaSalle Bank |
50.00000% | $ | 40,000,000 | |||
TOTAL: |
100% | $ | 80,000,000 |
LC | Pro Rata | ||||||
Commitments | Percentage | Maximum $ | |||||
U.S. Bank |
50.00000% | $ | 10,000,000 | ||||
LaSalle Bank |
50.00000% | $ | 10,000,000 | ||||
TOTAL: |
100% | $ | 20,000,000 |
Page 5 of 7
EXHIBIT 2A-3
TO
CREDIT AGREEMENT
TO
CREDIT AGREEMENT
Form of Notes
Attached
Page 6 of 7
Exhibit A to
Seventh Amendment to
Credit Agreement
Seventh Amendment to
Credit Agreement
List of Closing Documents
1.
|
This Seventh Amendment executed by the Borrower and all of the Lenders | |
2.
|
Revolving Note in favor of U.S. Bank National Association | |
3.
|
Revolving Note in favor of LaSalle Bank National Association |
Page 7 of 7