AMENDMENT AND WAIVER
AMENDMENT AND WAIVER dated as of August 7, 1996, between: SUIZA FOODS
CORPORATION, a corporation duly organized and validly existing under the laws of
the State of Delaware (the "COMPANY"); each of the lenders that is a signatory
hereto (individually, a "LENDER" and, collectively, the "LENDERS"); and THE
CHASE MANHATTAN BANK, as agent for the Lenders (in such capacity, together with
its successors in such capacity, the "AGENT").
WHEREAS, the Company, the Lenders and the Agent are parties to an
Amended and Restated Credit Agreement dated as of July 17, 1996 (as in effect on
the date hereof, the "CREDIT AGREEMENT");
WHEREAS, the Company has announced that it proposes to acquire Swiss
Dairy Corporation, a California corporation, pursuant to terms and conditions to
be negotiated (the "SWISS DAIRY ACQUISITION");
WHEREAS, the Company is also proposing an Equity Issuance (as defined
in the Credit Agreement) in the amount of $10,000,000 (the "AUGUST 1996 EQUITY
ISSUANCE");
WHEREAS, in connection with the foregoing, the Company has requested
certain amendments to, and waivers of the effect of, certain provisions of the
Credit Agreement, and the Lenders and the Agent are willing to agree to such
amendments and waivers on the terms and conditions hereof,
Accordingly, the parties hereto agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this
Amendment and Waiver, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. AMENDMENTS. Subject to the satisfaction of the condition
precedent specified in Section 5 hereof, the
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Lenders hereby agree that the Credit Agreement shall be amended as follows:
A. References in the Credit Agreement (including references to the
Credit Agreement as amended hereby) to "this Agreement" (and indirect references
such as "hereunder", "hereby", "herein" and "hereof") shall be deemed to be a
reference to the Credit Agreement as amended hereby.
B. The date "August 12, 1996" in line 7 of Section 7.02 of the Credit
Agreement is hereby deleted and the date "September 30, 1996" is inserted in
place thereof.
C. The date "August 12, 1996" in lines 2 and 3 of clause (n) of
Section 10 of the Credit Agreement is hereby deleted and the date "September 30,
1996" is inserted in place thereof.
Section 3. WAIVER. Subject to the satisfaction of the conditions
precedent specified in Section 5 hereof, the Lenders hereby agree that, in the
event the August 1996 Equity Issuance is completed prior to September 30, 1996,
the following arrangements shall apply, the requirements of paragraphs (d) and
(f) of Section 2.09 of the Credit Agreement notwithstanding: (i) the Company
shall prepay outstanding Facility A Loans in an aggregate amount equal to 100%
of the Net Available Proceeds of the August 1996 Equity Issuance upon the date
of the August 1996 Equity Issuance and (ii) in the event that the Company has
not completed the Swiss Dairy Acquisition by September 30, 1996 on terms and
conditions satisfactory to the Lenders, then on September 30, 1996, the Company
will apply an amount equal to 100% of the Net Available Proceeds of the August
1996 Equity Issuance to the prepayment of the outstanding Facility B Loans in
accordance with paragraph (f) of Section 2.09 of the Credit Agreement. The
parties agree that nothing contained herein shall be deemed to be a present
consent by the Lenders to the Swiss Dairy Acquisition or any of the terms or
conditions thereof.
Section 4. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Agent and the Lenders that (a) no Default has occurred and
is continuing and (b) the representations and warranties set forth in Section 8
of the Credit Agreement and in each of the Security Documents are true
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and correct on the date hereof as if made on and as of the date hereof (or,
if stated to have been made solely as of an earlier date, were true and
correct as of such date) as if each reference (whether direct or indirect)
therein to "this Agreement" included reference to this Amendment and Waiver
and the Credit Agreement as amended hereby.
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Section 5. CONDITION PRECEDENT. The amendments to the Credit
Agreement set forth in Section 2 hereof and the waivers contained in Section 3
hereof shall become effective upon the condition precedent that the Agent shall
have received one or more counterparts of this Amendment and Waiver executed by
each of the Company and the Lenders and consented to by the Subsidiary
Guarantors listed on the signature pages hereof.
Section 6. MISCELLANEOUS. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
and Waiver may be executed in any number of counterparts, all of which taken
together shall constitute one and the same amendatory instrument and any of the
parties hereto may execute this Amendment and Waiver by signing any such
counterpart. This Amendment and Waiver shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be duly executed and delivered as of the day and year first above
written.
COMPANY
SUIZA FOODS CORPORATION
By
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Title:
LENDERS
THE CHASE MANHATTAN BANK
By
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Title:
THE FIRST NATIONAL BANK OF CHICAGO
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By
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Title:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By
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Title:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By
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Title:
THE BANK OF NOVA SCOTIA
By
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Title:
BANCO POPULAR DE PUERTO RICO
By
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Title:
BANK OF AMERICA ILLINOIS
By
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Title:
BANQUE PARIBAS
By
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Title:
By
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Title:
CHL HIGH YIELD LOAN PORTFOLIO (A UNIT OF
CHASE MANHATTAN BANK (FORMERLY KNOWN AS
CHEMICAL BANK))
By
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Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By
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Title:
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By
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Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
By
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Title:
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AGENT
THE CHASE MANHATTAN BANK, as Agent
By
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Title:
CONSENT AND AGREEMENT
Each of the undersigned Subsidiary Guarantors hereby (1) consents to the
amendments and waivers provided for in this Amendment and Waiver, (2) agrees
that each reference to the Credit Agreement in each Security Document (as
defined in the Credit Agreement) to which such Subsidiary Guarantor is a
party shall be a reference to the Credit Agreement as amended by this
Amendment and Waiver and (3) confirms its obligations under each Security
Document to which it is a party after giving effect to the amendments and
waivers set forth in this Amendment and Waiver.
REDDY ICE CORPORATION SUIZA FRUIT CORPORATION
By By
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Title: Title:
▇▇▇▇▇ FARMS, INC. ▇▇▇▇ PLASTICS MANUFACTURING CORP.
By By
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Title: Title:
SUIZA MANAGEMENT CORPORATION
By
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Title:
SUIZA DAIRY CORPORATION
By
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Title:
