EXHIBIT 10.50
Amendment No. 13, dated as of August 1, 1999 to Credit Agreement dated as
of February 10, 1993 among Di Giorgio Corporation, as Borrower, the
financial institutions parties thereto, as Lenders, BT Commercial
Corporation, as Agent for the Lenders, and Bankers Trust Company, as
Issuing Bank.
EXECUTION
COPY
AMENDMENT NO. 13, dated as of August 1, 1999 ("Amendment No. 13")
to CREDIT AGREEMENT dated as of February 10, 1993 (as amended through the date
hereof, the "Credit Agreement") among DI GIORGIO CORPORATION, as Borrower, the
financial institutions parties thereto, as LENDERS, BT COMMERCIAL CORPORATION,
as Agent for the Lenders, and the Issuing Bank. Terms which are capitalized
herein and not otherwise defined shall have the meanings given to such terms in
the Credit Agreement.
WHEREAS, the Borrower has requested that the Lenders, among other
things, (i) extend the Expiration Date, (ii) reduce the interest rates payable
on Loans, (iii) reduce the rate on which Letter of Credit Fees payable under the
Credit Agreement are calculated and (iv) modify certain covenants contained in
the Credit Agreement; and
WHEREAS, the Lenders have agreed to the foregoing on the terms
and subject to the fulfillment of the conditions set forth in this Amendment No.
13;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the Lenders
hereby agree as follows:
Section One. Amendment. Upon the fulfillment of the conditions
precedent set forth in Section Three hereof, effective as of August 1, 1999, the
Credit Agreement is amended as follows:
(a) Section 1.1 of the Credit Agreement is amended by deleting
the definition of the term Applicable Margin in its entirety and by substituting
the following in lieu thereof:
"Applicable Margin" shall mean 1.625% in the case of Eurodollar
Rate Loans and zero in the case of Prime Rate Loans."
(b) Section 1.1 of the Credit Agreement is amended by deleting
the definition of the term Expiration Date in its entirety and by substituting
the following in lieu thereof:
"Expiration Date" shall mean June 30, 2004."
(c) Section 5.7 (a) of the Credit Agreement is amended in its
entirety to read as follows:
"5.7 Letter of Credit Fee. (a) The Agent, for the ratable benefit
of the Lenders, shall be entitled to charge to the account of the
Borrower (i) on the first business day of each month, a fee (the
"Letter of Credit Fee"), in an amount equal to (A) one and
one-half percent (1.50%) per annum of the daily average amount of
outstanding documentary
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Letter of Credit Obligations during the immediately preceding
month and (B) one and one-half percent (1.50%) per annum of the
daily average amount of outstanding standby Letter of Credit
Obligations during the immediately preceding month, and (ii) as
and when incurred by the Agent or any Lender, any charges, fees,
costs and expenses charged to the Agent or any Lender for the
Borrower's account by any Issuing Bank (other than any fees
charged to the Agent or any Lender which would be duplicative of
the Letter of Credit Fee paid to the Agent for the benefit of the
Lenders) (the "Issuing Bank Fees") in connection with the
issuance of any Letters of Credit by the Issuing Bank. Each
determination by the Agent of Letter of Credit Fees hereunder
shall be conclusive and binding for all purposes, absent manifest
error."
(d) Section 8.1 of the Credit Agreement is deleted in its
entirety.
(e) Section 8.2 of the Credit Agreement is amended by deleting
the introductory portion thereof, and by deleting subsections (aa) through (dd)
thereof, and substituting in lieu thereof the introductory portion of Section
8.2 set forth below and subsections (aa) through (dd) set forth below, so that
subsections (aa) through (dd) thereof, together with the introductory portion of
Section 8.2, shall read as follows:
"8.2 Interest Coverage Ratio. The Borrower shall not permit its
ratio of EBITDA to Interest Expense as of the end of each of the
following periods to be less than the applicable ratio set forth
below opposite each such period:
Minimum Interest
Period Coverage Rates
------ --------------
(aa) the fiscal quarter ending in June, 1.60 to 1.00
1999, together with the three
preceding fiscal quarters
(bb) the fiscal quarter ending in 1.65 to 1.00
September, 1999, together with the
three preceding fiscal quarters
(cc) the fiscal quarter ending in 1.70 to 1.00
December, 1999, together with the
three preceding fiscal quarters
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(dd) the fiscal quarter ending in 1.75 to 1.00" Xxxxx, 0000, and each
fiscal quarter thereafter, in each case together with the three preceding
fiscal quarters
(f) Subsection (a) (iii) of Section 8.10 of the Credit Agreement
is amended in its entirety to read as follows:
"(iii) the Borrower may declare and pay ratably dividends with
respect to its capital stock to its stockholders each fiscal
year, during the sixty day period commencing on the date of the
Agent's receipt of the Borrower's audited Financial Statements
for the prior fiscal year, in an aggregate amount not to exceed
in any fiscal year fifty percent (50%) of Net Income for such
prior fiscal year; provided that (1) no Default or Event of
Default shall have occurred and then be continuing or would
result therefrom, (2) immediately after giving effect to any such
proposed dividend, there shall be an aggregate amount of Unused
Availability of at least $30,000,000, (3) the ratio of EBITDA to
the sum of Interest Expense, dividends and taxes paid in cash,
and Capital Expenditures made, in each case with respect to the
Borrower, on a consolidated basis, for the fiscal year
immediately prior to the fiscal year during which such proposed
dividend shall be paid, shall be no less than 1.25 to 1.00, such
ratio to be calculated as if such dividend shall have been paid
on the last day of such preceding fiscal year and (4) at least
ten Business Days prior to the date on which the Borrower
proposes to pay such dividend, the Agent shall have received a
certificate prepared under the direction of and executed by the
Borrower's chief executive officer or chief financial officer (x)
pursuant to which such officer shall certify to the Lenders that
in determining Unused Availability for the purpose of clause (2)
hereof, the Borrower's trade payables have been paid in a manner
consistent with the Borrower's historical practices and (y)
setting forth in reasonable detail the calculation of the ratio
described in clause (3) hereof; and"
(g) Section 8.11 of the Credit Agreement is amended by deleting
the word "and" at the end of subsection (l) thereof, re-lettering subsection (m)
as subsection (n), and by adding a new subsection (m) thereof as set forth
below, so that such subsection (m), together with the introductory portion of
Section 8.11, shall read as follows:
"8.11 No Investments. The Borrower will not, and shall not permit
any of the Restricted Subsidiaries to, directly or indirectly,
make any Investment in any Person, whether in cash, securities,
or other property of any kind, including, without limitation, any
Subsidiary or Affiliate of the Borrower, other than:
(m) Investments in a Subsidiary, not to exceed $5,000,000 in the
aggregate principal amount outstanding at any one time, provided
that (i) the business of such Subsidiary is directly related to
and is intended to benefit the Borrower's primary business, and
(ii) immediately after giving effect to any such proposed
Investment,
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there shall be an aggregate amount of Unused
Availability of at least $30,000,000; and"
Section Two. Representations and Warranties. To induce the
Lenders to enter into this Amendment No. 13, the Borrower warrants and
represents to the Lenders as follows:
(a) the recitals contained in this Amendment No. 13 are true and
correct in all respects;
(b) after giving effect to this Amendment No. 13, all of the
representations and warranties contained in the Credit Agreement and each other
Credit Document to which the Borrower is a party continue to be true and correct
in all material respects as of the date hereof, as if repeated as of the date
hereof, except for such representations and warranties which, by their terms,
are only made as of a previous date;
(c) the execution, delivery and performance of this Amendment No.
13 by the Borrower is within its corporate powers, has been duly authorized by
all necessary corporate action, the Borrower has received all necessary consents
to and approvals for the execution, delivery and performance of this Amendment
No. 13 (if any shall be required) and this Amendment No. 13 does not and will
not contravene or conflict with any provision of law or of the charter or
by-laws of the Borrower or with the terms or provisions of any other document or
agreement to which the Borrower is a party or by which the Borrower or its
property may be bound; and
(d) upon its execution, this Amendment No. 13 shall be a legal,
valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its terms.
Section Three. Conditions Precedent. This Amendment No. 13 shall
become effective when the last of the following events shall have occurred:
(a) the Agent shall have received a fully executed counterpart of
this Amendment No. 13;
(b) no Default shall have occurred and be continuing which
constitutes an Event of Default or would constitute an Event of Default upon the
giving of notice or lapse of time or both, and no event or development which has
had or is reasonably likely to have a Material Adverse Effect shall have
occurred, in each case since the date of delivery to the Agent and the Lenders
of the Borrower's most recent financial statement, and the Agent and the Lenders
shall have received a certificate from the Borrower, executed by its Chief
Financial Officer, as to the truth and accuracy of this paragraph (b);
(c) the Borrower shall have paid in cash to the Agent, for the
ratable benefit of each of the Lenders, a non-refundable fee in the amount of
$225,000;
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(d) the Borrower shall have delivered to the Agent a copy of the
corporate resolutions of the Borrower's Board of Directors authorizing the
execution, delivery and performance of this Amendment No. 13 by the Borrower;
and
(e) the Agent and the Lenders shall have received such additional
documents to further effectuate the purpose of this Amendment No. 13 as any of
them or their respective counsel may reasonably request.
Section Four. General Provisions.
(a) Except as herein expressly amended, the Credit Agreement and
all other agreements, documents, instruments and certificates executed in
connection therewith are ratified and confirmed in all respects and shall remain
in full force and effect in accordance with their respective terms.
(b) All references to the Credit Agreement shall mean the Credit
Agreement as amended as of the effective date hereof, and as amended hereby and
as hereafter amended, supplemented and modified from time to time.
(c) This Amendment No. 13 may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which shall
be an original and all which shall constitute one and the same agreement.
(d) This Amendment No. 13 shall be governed by, construed and
interpreted in accordance with the internal laws of the State of New York,
without regard to the conflicts of law principles thereof.
IN WITNESS WHEREOF, each of the Borrower, the Lenders, the
Issuing Bank and the Agent has signed below to indicate its agreement with the
foregoing and its intent to be bound thereby.
DI GIORGIO CORPORATION
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
BT COMMERCIAL CORPORATION, as
Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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LASALLE NATIONAL BANK, as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
BANCO POPULAR, as a Lender
By: /s/ Xxxxxx X. LoMonsco
---------------------------------
Name: Xxxxxx X. LoMonsco
Title: Vice President
CONGRESS FINANCIAL
CORPORATION, as a Lender
By: /s/ Xxxxxx XxXxxxxx
---------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
PNC BANK, as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
SUMMIT COMMERCIAL/GIBRALTAR
CORP., as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
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