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EXHIBIT 10.29
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT made as of May 22,
1998, by and among UNIMARK FOODS, INC., a Texas corporation which is the
"BORROWER", and THE UNIMARK GROUP, INC., a Texas corporation ("GROUP") of which
the Borrower is a wholly-owned subsidiary, UNIMARK INTERNATIONAL, INC., a Texas
corporation and a wholly-owned subsidiary of Group, and SIMPLY FRESH FRUIT,
INC., a California corporation and a wholly-owned subsidiary of Borrower (each
of which shall be a "GUARANTOR" hereunder and which collectively shall be
"GUARANTORS"); and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND," NEW YORK BRANCH, a Netherlands Cooperative Banking
Organization which is the "LENDER".
R E C I T A L S:
A. The Borrower, the Guarantors and the Lender are parties to a
Revolving Credit Agreement dated as of February 12, 1997, as amended by that
First Amendment to Revolving Credit Agreement ("FIRST AMENDMENT") dated October
7, 1997, and the Second Amendment to Revolving Credit Agreement dated November
14, 1997 ("SECOND AMENDMENT") (collectively, the "CREDIT AGREEMENT"), and the
revolving loan now outstanding to Borrower from Lender under such Credit
Agreement matures on April 30, 1998;
B. Group, its Subsidiaries, and Lender, among others, are parties to an
Extension Agreement and Waiver of Defaults dated as of April 30, 1998, whereby
Lender extended the maturity of the Restated Revolving Note dated as of February
12, 1997 to May 22, 1998, and waived certain defaults existing under the Credit
Agreement.
C. Group and its Subsidiaries, including the Borrower, taken as a
whole, have now requested that the Lender renew and extend such revolving loan
under the Credit Agreement and also make certain changes in the terms and
conditions thereunder; and
D. The Lender has agreed to renew and extend the revolving loan now
outstanding under the Credit Agreement and to make certain changes in the terms
and conditions of the Credit Agreement, subject to the terms and conditions
hereinafter provided.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. SAME TERMS. All terms used herein which are defined in the Credit
Agreement shall have the same meanings when used herein, unless the context
hereof otherwise requires or provides. In addition, all references in the Loan
Documents to the "Agreement" shall mean the Credit Agreement as amended by the
First Amendment, the Second Amendment, and by this Third Amendment to Revolving
Credit Agreement ("THIRD AMENDMENT"), and as the same shall hereafter be amended
from time to time.
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT - PAGE 1
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2. AMENDMENTS TO CREDIT AGREEMENT. Effective as of the date above, the
following changes shall be made to the Credit Agreement:
a. The definition of "Capital Expenditures" shall be added to
the Appendix to the Credit Agreement by inserting the following
paragraph in verbatim after the definition of "Business Day" and before
the definition of "Capital Lease":
"Capital Expenditures" of a Person means
expenditures by such Person for assets which will be used in
the ordinary course of such Person's business in a year or
years subsequent to the year in which the expenditures are
made and which are properly classifiable in the Financial
Statements of such Person as property, equipment,
improvements, fixed assets, or a similar type of capitalized
asset in accordance with GAAP, provided that: (i) such term
shall include, whether or not such inclusion is in conformity
with GAAP: (A) the capitalized portion of each Capital Lease;
and (B) expenditures for equipment purchased simultaneously
with the trade-in of existing equipment owned by each Person
to the extent of the excess of the purchase price of the
equipment so purchased over the book value of the equipment
hereby traded in; and (ii) such term shall not include,
whether or not such exclusion is in conformity with GAAP,
expenditures for replacement or restoration of property to the
extent reimbursed with insurance or condemnation proceeds.
b. The definition of "Default Rate" in the Appendix to the
Credit Agreement shall be deleted and the following paragraph
containing the new definition of "Default Rate" in the Appendix is
substituted in verbatim therefor:
"Default Rate" means the lesser of: (i) the
Highest Lawful Rate; or (ii) the sum of the Base Rate from
time to time plus three percent (3%) per annum and thereafter
the Highest Lawful Rate.
c. The definition of "EBITDA" shall be added to the Appendix
to the Credit Agreement by inserting the following paragraph in
verbatim after the definition of "Dollar" and before the definition of
"Eligible Accounts":
"EBITDA" means for any period an amount
equal to the remainder of: (i) the sum of: (A) Net Income for
such period; plus (B) the aggregate amount in respect of
Interest Expense, depreciation, amortization, and other
non-cash charges which in accordance with GAAP were deducted
in determining Net Income for such period; plus (C) charges
for federal, state, local, and foreign income taxes for such
period; plus (D) any extraordinary losses which were deducted
in calculating Net Income; minus (ii) any extraordinary gains
which were included in calculating Net Income.
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT - PAGE 2
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d. The definition of "Expiration Date" in the Appendix to the
Credit Agreement is hereby deleted and the following paragraph
containing the new definition of "Expiration Date" in the Appendix is
substituted in verbatim therefor:
"Expiration Date" means January 1, 1999 or
any other date on which the Commitment terminates pursuant to
the terms hereof.
e. The definition of "Fixed Charges" shall be added to the
Appendix to the Credit Agreement by inserting the following paragraph
in verbatim after the definition of "Financial Statements" and before
the definition of "Foreign Benefit Law":
"Fixed Charges" for any period means the sum
of the following amounts for such period: (i) Interest
Expense; plus (ii) scheduled payments of principal of Debt
(including the principal component of Capital Lease
obligations); plus (iii) dividends paid on any class of
capital stock of such Person.
f. The definition of "Interest Expense" shall be added to the
Appendix to the Credit Agreement by inserting the following paragraph
in verbatim after the definition of "Intangible Assets" and before the
definition of "Interest Rate Option":
"Interest Expense" means for any period: (i)
the sum of: (a) aggregate interest expense for such period
determined in accordance with GAAP, in any event including all
bank fees, discounts, commissions, discounts, and other fees
and charges owed with respect to letters of credit and
banker's acceptances and net costs under interest rate
protection agreements and the portion of any obligation
allocable to interest expense under a Capital Lease; plus (b)
interest expense of the type described in clause (a) above
capitalized during such period (but excluding amortization of
discount interest paid in property other than cash or any
other interest expense not payable in cash); minus (ii) any
net payments received under interest rate protection
agreements.
g. The definitions of "Net Income" and "Non-Cash Items" shall
be added to the Appendix to the Credit Agreement by inserting the
following paragraphs in verbatim after the definition of "Multiemployer
Plan" and before the definition of "Notes":
"Net Income" means of a Person means such
Person's net earnings (after income taxes) determined in
accordance with GAAP but excluding: (i) any gain or loss
arising from the sale of capital assets; (ii) any gain arising
from any write-up of assets; (iii) earnings of any entity,
substantially all of the assets of which have been acquired by
such Person in any manner, to the extent that such earnings
were realized by such entity prior to the date of such
acquisition; (iv) earnings of any entity which has become a
Subsidiary of such Person to the extent such earnings were
realized prior to
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT - PAGE 3
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the date such entity became such a Subsidiary; (v) net
earnings of any entity in which such Person has an ownership
interest (unless such interest is greater than 50%), unless
such earnings have actually been received by such Person in
the form of cash distributions, and in the case of an
ownership interest greater than 50%, net earnings properly
allocable to minority interests; (vi) earnings of any entity
to which substantially all of the assets of such Person have
been sold, transferred, or disposed of, or into which such
Person has merged, to the extent that such earnings arise
prior to the date of such transaction; and (vii) any gain
arising from the acquisition of any securities of such Person.
"Non-Cash Items" means a Person's
depreciation, amortization and other non-cash items for any
period which in accordance with GAAP were deducted in
determining Net Income for such period.
h. The definition of "Revolving Note" in the Appendix to the
Credit Agreement is deleted and the following paragraph containing a
new definition of "Revolving Note" which includes the Renewal Revolving
Note of even date herewith shall be substituted in verbatim therefor:
"Revolving Note" means the completed and
executed Renewal Revolving Note payable to the Lender in the
form attached hereto as Exhibit 2.2B. and any renewals,
extensions, rearrangements or restatements thereof and any
substitutions or replacements therefor.
i. In Section 2.4(a)(i), the reference to the Margin for Base
Rate Tranches which is 0.00% shall be 1.00% and Section 2.4(a)(i) shall
now read in verbatim as follows:
(i) For the Base Rate Tranche, a fluctuating
rate per annum equal to the sum of the Base Rate plus the
appropriate Margin determined as follows:
Period Margin
Daily 1.00%
j. In Section 2.4(a)(ii), the reference to the Margin for
LIBOR Tranches which is 1.75% shall now be 2.75% and Section 2.4(a)(ii)
shall now read in verbatim as follows:
(ii) for LIBOR Tranches, a rate equal to the
sum of the LIBOR Rate plus the appropriate percentage
determined as follows:
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Period Margin
30, 60, 90 & 180 days 2.75%
k. In Section 2.4(a)(iii) the reference to the Margin for
Federal Funds Tranches which is now 1.75% shall be 2.75% and Section
2.4(a)(iii) shall now read in verbatim as follows:
(iii) for Federal Funds Tranches, a rate
equal to the sum of the Federal Funds Rate plus the
appropriate percentage determined as follows:
Period Margin
For any period which ends 2.75%
no later than the last Business
Day occurring before the
Expiration Date.
l. To require Borrower to provide Lender a listing of all aged
accounts receivable and accounts payable, Section 5.9(b) shall be
amended and restated and shall now read in verbatim as follows:
(b) The Borrower will deliver or cause to be
delivered to Lender as soon as available and in any event
within fifteen (15) days after the last day of each accounting
month in each fiscal year, unless requested more frequently by
Lender, a Borrowing Base Certificate substantially in the form
of Exhibit 5.9(b) executed by the Chief Financial Officer of
Borrower on behalf of himself and as authorized agent for each
of the Obligated Parties including information as at the end
of such month; and (ii) a monthly listing of all aged accounts
receivable and accounts payable of Borrower.
m. To require Group to inform Lender as to the status of the
progress of Group and its Subsidiaries, taken as a whole, in achieving
the planned restructuring of Group and its Subsidiaries, Section 5.9(d)
shall be added and shall read in verbatim as follows:
(d) Group will deliver or cause to be
delivered to Lender within ten (10) days after the end of each
calendar month a written status report certified and executed
by the Chief Executive Officer of Group as to the progress in
accomplishing the planned restructuring of Group and its
Subsidiaries, taken as a whole.
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT - PAGE 5
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n. The internally prepared unaudited individual Financial
Statements shall now be certified by the Chief Financial Officer of
Group, and therefore, Section 5.9(a)(i) shall be amended and restated
and shall now read in verbatim as follows:
(i) as soon as practicable, and in any event
within thirty (30) days after the end of each accounting month
in each fiscal year, internally prepared unaudited individual
Financial Statements of each of Borrower, Group and the other
Obligated Parties from the beginning of the current fiscal
year to the end of such month as at the end of such period,
certified by the Chief Financial Officer of Group;
o. To require Group to provide to Lender a budget of Group and
its Subsidiaries on a consolidated basis for each fiscal year beginning
with the 1998 fiscal year budget, Section 5.9(e) shall be amended and
restated and shall read in verbatim as follows:
(e) Group shall prepare and deliver or have
delivered to Lender a fiscal year budget for the current
fiscal year for Group and each of its Subsidiaries on a
consolidated basis, consisting of monthly balance sheets,
income statements, and statements of cash flow (excluding the
effects of intercompany transactions), as soon as available
but by no later than April 30, 1998 for fiscal year 1998, and
thereafter within ninety (90) days of the end of each fiscal
year.
p. To restrict the Obligated Parties from at any time to time
acquiring any other Person, Section 6.3 shall be amended and restated
and shall now read in verbatim as follows:
6.3 LIQUIDATION, MERGER, CONSOLIDATION,
ACQUISITION. No Obligated Party will wind up, liquidate, or
dissolve, or be a party to any merger or consolidation or any
partnership, nor purchase or otherwise acquire all or
substantially all of the assets of any Person or any shares of
stock of, or similar interest in, any Person, or change or
modify its existing structure."
q. Section 6.12 shall be amended and restated and shall read
in verbatim as follows:
6.12 MANAGEMENT CHANGES. Group will not fail
to maintain Xxxxxx Xxxxxxx Xxxxx as Chief Executive Officer of
Group, except in the instances of death or incapacity, in
which instances the substitute or replacement for Xxxxxx
Xxxxxxx Xxxxx will be satisfactory to Lender.
r. To restrict Group or any Subsidiary of Group from incurring
any Debt from any party other than Lender, Section 6.14 shall be added
and shall read in verbatim as follows:
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT - PAGE 6
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6.14 DEBT LIMITATIONS. None of the Group or
any of its Subsidiaries will individually or collectively
create, incur, assume, permit to exist or become liable for
any Debt, or advances or deposits from customers, except: (a)
the borrowings contemplated by this Agreement; (b) in
connection with Debt incurred prior to the date hereof in
connection with the Permitted Liens; (c) accounts payable
(other than for money borrowed) incurred in the ordinary
course of business and which mature on or before the date
ninety (90) days after the date incurred; (d) Debt incurred
directly to finance Capital Expenditures authorized under this
Agreement; provided, however, that any debt or other form of
financing of any nature obtained by any of Group or any of its
Subsidiaries for the development of 3,500 hectares of lemon
xxxxxx in the State of Tamaulipas, Mexico, which are to be
developed by Group or its Subsidiaries in accordance with
Group's 1998 fiscal year budget at a capital expenditure cost
of $7,671,000 pursuant to a production and processing
agreement with Coca-Cola (the "Lemon Project"), must be
satisfactory in all respects to Lender; and (e) that
indebtedness listed on Exhibit 4.25 (which includes any
indebtedness in existence on May 1, 1998) and renewals or
extensions of same (but no increases of any of same).
s. Section 7.1 shall be wholly replaced in verbatim by the
following:
7.1 MINIMUM TANGIBLE NET WORTH. Group and
its Subsidiaries will maintain a Tangible Net Worth on a
consolidated basis at all times of not less than $28,000,000.
t. Section 7.2 shall be wholly replaced in verbatim by the
following:
7.2 CURRENT RATIO. The ratio of the Current
Assets of Group and its Subsidiaries on a consolidated basis
to the Current Liabilities of Group and its Subsidiaries on a
consolidated basis shall be not less than 1.25 to 1.0 at any
time to time.
u. Section 7.3 shall be wholly replaced in verbatim by the
following:
7.3 MAXIMUM LEVERAGE. The ratio of the Debt
of the Group and its Subsidiaries on a consolidated basis to
Tangible Net Worth of the Group and its Subsidiaries on a
consolidated basis shall not be greater than 1.85 to 1.0 at
any time to time.
v. Section 7.4 shall be added and shall read in verbatim as
follows:
7.4 FIXED CHARGE COVERAGE RATIO. The ratio
of EBITDA to Fixed Charges of Group and its Subsidiaries on a
consolidated basis shall be no less than 1.0-to-1.0: (i) on
the last day of the period beginning January 1, 1998 to and
including June 30, 1998; (ii) on the last day of the period
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT - PAGE 7
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beginning January 1, 1998 to and including September 30, 1998;
(iii) on the last day of the period beginning January 1, 1998
to and including December 31, 1998; and (iv) thereafter, on
each of every March 31, June 30, September 30, and December 31
(separately, the "LAST DAY OF THE QUARTER") for the preceding
twelve (12) month period ending on each Last Day of the
Quarter.
w. To restrict Group and its Subsidiaries on a consolidated
basis from making capital expenditures in excess of the amounts set
forth in the fiscal year budgets of Group and its Subsidiaries to be
provided Lender hereunder, Section 7.5 shall be added and shall read in
verbatim as follows:
7.5 CAPITAL EXPENDITURES. Group and its
Subsidiaries on a consolidated basis will not make any Capital
Expenditures in excess of $2,720,000 in the aggregate,
excluding any capital expenditures on the Lemon Project, plus
amounts properly charged to depreciation and amortization on
the books of Group and its Subsidiaries on a consolidated
basis for the immediately preceding fiscal year, during any
fiscal year ending after the date hereof.
x. Exhibit 2.2A, Form of Restated Revolving Note, shall be
wholly replaced by Exhibit 2.2B, Form of Renewal Revolving Note, which
is attached hereto as Exhibit 2.2B and incorporated herein by
reference.
3. CERTAIN REPRESENTATIONS. Each Obligated Party, jointly and
severally, represents and warrants that, as of the date hereof:
a. the representations and warranties contained in the Credit
Agreement are true and correct on and as of the date hereof as made on
and as of such date;
b. no event has occurred and is continuing which constitutes a
Default or an Event of Default;
c. the Borrower and each of the Guarantors have full power and
authority to execute this Third Amendment and this Third Amendment
constitutes the legal, valid and binding obligation of the Borrower and
each of the Guarantors enforceable in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other similar laws affecting the
enforcement of creditors' rights generally;
d. no authorization, approval, consent or other action by,
notice to, or filing with, any governmental authority or other person
is required for the execution, delivery and performance by the Borrower
or any of the Guarantors of this Third Amendment; and
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT - PAGE 8
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e. there shall have occurred no change, in the aggregate, in
the financial condition of an Obligated Party or of Group or of any
Subsidiary of Group or any other Person, who is a party to any of the
Loan Documents from the facts represented in any such Loan Document,
including this Amendment, which would have a Material Adverse Effect on
an Obligated Party or on Group or any Subsidiary of Group or on the
Group and its Subsidiaries, taken as a whole.
4. GUARANTORS' ACKNOWLEDGMENT. By signing below, each of the
Guarantors: (i) acknowledges and consents to the execution, delivery and
performance of this Third Amendment; (ii) agrees that its obligations in respect
of its Guaranty are not released, modified, impaired or affected in any manner
by this Third Amendment or any of the provisions contemplated herein; and (iii)
acknowledges that it has no claims or offsets against, or defenses or
counterclaims to, its Guaranty.
5. CONDITIONS OF EFFECTIVENESS. This Third Amendment shall be effective
as of the date and year first above written, subject to the following:
a. The Lender shall have received this Third Amendment
executed by Borrower and each Guarantor;
b. The Lender shall have received the Renewal Revolving Note
executed by Borrower, such Renewal Revolving Note to be in renewal and
extension of the unpaid principal balance of the Restated Revolving
Note dated as of February 12, 1997;
c. The Borrower shall have duly executed and delivered to
Lender a Restated Borrowing Base Report in the form of Exhibit 5.9(b)A
to the Credit Agreement;
d. The Lender shall have received certificates of incumbency
and containing specimen signatures of all officers of each Obligated
Party who will be authorized to execute or attest to any of the
documents contemplated hereby on behalf of each Obligated Party
executed by the President and by the Secretary of each Obligated Party
on the date hereof, and such certification may be conclusively relied
upon by the Lender until the Lender receives notice in writing from
each Obligated Party to the contrary and providing a substitute
certificate conforming to the requirements hereof;
e. The Lender shall have received copies of resolutions of
each Obligated Party approving the execution, delivery, and performance
of each Loan Document to which it is a party and authorizing all
transactions contemplated in or in connection with this Agreement and
the other Loan Documents duly adopted by its Board of Directors,
accompanied by a certificate signed by the Secretary of the approving
entity certifying that such copies are true and correct copies of
resolutions duly adopted at a meeting of the Board of Directors and
that such resolutions have not been amended, modified, or revoked in
any respect and are in full force and effect on the date hereof;
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT - PAGE 9
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f. All of the conditions precedent set forth in Section 3.2,
Additional Conditions, of the Credit Agreement shall be satisfied;
g. The Lender shall have received an opinion of Xxxxxxx,
Xxxxxx & Xxxxxxxxxx, PLLC, counsel for each Obligated Party, dated the
date hereof, in form and substance satisfactory to the Lender and
covering such matters as the Lender or counsel to the Lender may
request, which opinion each Obligated Party hereby directs counsel to
deliver; and
h. The Lender shall have received such other documents,
opinions, certifications, consents, waivers, agreements, and evidence
as the Lender may reasonably request.
6. LIMITATION ON AGREEMENTS. The modifications set forth herein are
limited precisely as written and shall not be deemed: (a) to be a consent under
or a waiver of or an amendment to any other term or condition in the Credit
Agreement or any of the other Loan Documents; or (b) to prejudice any right or
rights which the Lender now has or may have in the future under or in connection
with the Credit Agreement and the other Loan Documents, each as amended hereby,
or any of the other documents referred to herein or therein. This Third
Amendment shall constitute a Loan Document for all purposes. The Credit
Agreement, as amended by this Third Amendment and all other Loan Documents
executed in connection therewith shall remain in full force and effect and are
each hereby ratified and confirmed.
7. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand all
costs and expenses of the Lender in connection with the preparation,
reproduction, execution and delivery of this Third Amendment and the other
instruments and documents to be delivered hereunder (including the reasonable
fees and out-of-pocket expenses of counsel for the Lender with respect thereto
and with respect to advising the Lender as to its rights and responsibilities
under the Revolving Credit Agreement, as amended by this Third Amendment).
8. EXECUTION IN COUNTERPARTS. This Third Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each which when so executed and delivered shall be deemed to be an
original and all of which taken together shall constitute but one and the same
instrument.
9. ENTIRETY, ETC. This instrument together with all of the other Loan
Documents embodies the entire agreement between the parties. THIS AGREEMENT AND
ALL OF THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT - PAGE 10
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IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment to Revolving Credit Agreement to be effective as of the date and year
first above written.
BORROWER AND OBLIGATED PARTY:
UNIMARK FOODS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Notice Address:
000 XxXxxxx Xxxx
Xxxxxxxxxxx, Xxxxx 00000
(000) 000-0000
OTHER OBLIGATED PARTIES:
THE UNIMARK GROUP, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
UNIMARK INTERNATIONAL, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
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THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT - PAGE 11
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SIMPLY FRESH FRUIT, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
LENDER:
COOPERATIEVE CENTRALE
RAIFFEISENBOERENLEENBANK B.A., "RABOBANK
NEDERLAND," NEW YORK BRANCH, a Netherlands
Cooperative Banking Organization
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
NOTICE ADDRESS:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Services
cc: Rabobank Nederland
00000 Xxxx Xxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT - PAGE 12
