AMENDMENT NO. 2 Dated as ofAugust 14, 2014 to CREDIT AGREEMENT dated as ofJuly 2, 2013
Exhibit 10.1
AMENDMENT NO. 2
Dated as of August 14, 2014
to
CREDIT AGREEMENT
dated as of July 2, 2013
THIS AMENDMENT NO. 2 (Amendment) is made as of August 14, 2014 by and among Dean Foods Company (the Borrower), the financial institutions listed on the signature pages hereof and JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the Lenders (the Administrative Agent), under that certain Credit Agreement dated as of July 2, 2013 by and among the Borrower, the Lenders party thereto and the Administrative Agent (as may be further amended, supplemented or otherwise modified from time to time, the Credit Agreement). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Credit Agreement.
WHEREAS, the Borrower, the Lenders party hereto and the Administrative Agent have agreed to make certain amendments to the Credit Agreement;
WHEREAS, the parties hereto have agreed to such amendments on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto have agreed to enter into this Amendment.
1. Amendments to Credit Agreement. Effective as of the date of satisfaction of the conditions precedent set forth in Section 2 below, the Credit Agreement is hereby amended as follows:
(a) The definition of Applicable Rate set forth in Section 1.01 of the Credit Agreement is hereby amended to (i) amend and restate the proviso appearing therein to read as provided that, from the Amendment No. 2 Effective Date until the delivery, pursuant to Section 5.01, of the Borrowers consolidated financial information for the Borrowers fiscal quarter ending on or about June 30, 2014, the Applicable Rate shall be the applicable rate per annum set forth below in Category 6 (unless the Borrowers financial statements for such fiscal quarter demonstrate that Category 7 should have been applicable during such period, in which case such other Category shall be deemed to be applicable during such period), (ii) delete the reference to Category 5 appearing in the final paragraph thereof and replace such reference with Category 7 and (iii) amend and restate the pricing grid appearing therein to read as follows:
Leverage Ratio | LIBOR Spread | ABR Spread | Commitment Fee Rate | |||||||||
Category 1 < 1.50 to 1.00 | 1.25 | % | 0.25 | % | 0.20 | % | ||||||
Category 2 ³ 1.50 to 1.00 but < 2.00 to 1.00 | 1.50 | % | 0.50 | % | 0.25 | % | ||||||
Category 3 ³ 2.00 to 1.00 but < 2.50 to 1.00 | 1.75 | % | 0.75 | % | 0.30 | % | ||||||
Category 4 ³ 2.50 to 1.00 but < 3.00 to 1.00 | 2.00 | % | 1.00 | % | 0.35 | % | ||||||
Category 5 ³ 3.00 to 1.00 but < 3.50 to 1.00 | 2.25 | % | 1.25 | % | 0.35 | % | ||||||
Category 6 ³ 3.50 to 1.00 but < 4.00 to 1.00 | 2.50 | % | 1.50 | % | 0.40 | % | ||||||
Category 7 ³ 4.00 to 1.00 | 2.75 | % | 1.75 | % | 0.45 | % |
(b) The definition of Permitted Acquisition set forth in Section 1.01 of the Credit Agreement is hereby amended to amend and restate clause (iii) thereof to read as follows:
(iii) after giving effect to such acquisition on a Pro Forma Basis, (x) the Leverage Ratio (1) is less than or equal to 3.50 to 1.00 or (2) if greater than 3.50 to 1.00, the cash consideration in such acquisition is permitted under the Annual Investment Limitation contained in Section 6.04(t), and (y) the Borrower and its Restricted Subsidiaries are in compliance with each of the financial covenants set forth in Sections 6.11(b) and 6.11(c),
(c) Section 1.01 of the Credit Agreement is hereby amended to add the following definitions thereto in the appropriate alphabetical order and, where applicable, replace the corresponding previously existing definitions:
Amendment No. 2 Effective Date means August 14, 2014.
Consolidated Senior Secured Indebtedness means, as of any date, Consolidated Funded Indebtedness that is secured by a Lien on any assets of the Borrower or any of its Restricted Subsidiaries.
Senior Secured Leverage Ratio means, on any date, the ratio of (a) Consolidated Senior Secured Indebtedness on such date, minus unrestricted cash and Cash Equivalents, after giving effect to any adjustments for international tax effects at an assumed withholding rate of 35% (or such lesser statutory rate as may be in effect from time to time), as applicable, in an aggregate amount not to exceed $100,000,000 to the extent held by the Borrower and the Restricted Subsidiaries on a consolidated basis on
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such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters ended on such date (or, if such date is not the last day of a fiscal quarter, ended on the last day of the fiscal quarter most recently ended prior to such date). For purposes of this Agreement, proceeds from Equity Issuances described in Section 6.04(r) shall be deemed not to be unrestricted cash and Cash Equivalents.
(d) Clause (t) of Section 6.04 of the Credit Agreement is hereby amended to add the proviso ; provided that the Annual Investment Limitation shall mean, for any fiscal year of the Borrower, the greater of (i) $40,000,000 and (ii) 3% of Consolidated Net Tangible Assets as of the first day of such fiscal year if, at the time of the making of such investment and immediately after giving effect (including giving effect on a Pro Forma Basis) thereto, the Leverage Ratio is greater than 3.50 to 1.00 to the final sentence thereof.
(e) Clause (a) of Section 6.11 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
(a) Leverage Ratio. The Borrower shall not permit the Leverage Ratio as of the end of each of its fiscal quarters set forth below to be greater than the ratio set forth opposite such fiscal quarter:
Fiscal Quarter Ending On or About | Leverage Ratio | |
June 30, 2014 | 4.00 to 1.00 | |
September 30, 2014 | 5.25 to 1.00 | |
December 31, 2014 | 5.25 to 1.00 | |
March 31, 2015 | 5.00 to 1.00 | |
June 30, 2015 | 4.50 to 1.00 | |
September 30, 2015 and thereafter | 4.00 to 1.00 |
(f) Section 6.11 of the Credit Agreement is hereby amended to add the following as a new clause (c) thereof:
(c) Senior Secured Leverage Ratio. The Borrower shall not permit the Senior Secured Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater than 2.50 to 1.00.
2. Conditions of Effectiveness. The effectiveness of this Amendment is subject to the conditions precedent that: (a) the Administrative Agent shall have received counterparts of (i) this Amendment duly executed by the Borrower, the Required Lenders and the Administrative Agent and (ii) the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors, (b) the Administrative Agent shall have received for the account of each Lender that delivers its executed signature page hereto by such time as is requested by the Borrower and the Administrative Agent, an amendment fee equal to 0.10% of such Lenders Commitment and (c) the Borrower shall have paid, to the extent invoiced, all reasonable out-of-pocket fees and expenses of the Agents and their applicable affiliates (including reasonable attorneys fees and expenses) in connection with the preparation, negotiation and execution of this Amendment and the other Loan Documents.
3. Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) This Amendment and the Credit Agreement, as amended hereby, constitute legal,
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valid and binding obligations of the Borrower, enforceable in accordance with their terms, subject to applicable Debtor Relief Laws and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law.
(b) As of the date hereof and after giving effect to the terms of this Amendment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the representations and warranties of the Borrower set forth in the Credit Agreement, as amended hereby, are true and correct in all material respects (or in all respects if the applicable representation or warranty is qualified by Material Adverse Effect or materiality) on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects if the applicable representation or warranty is qualified by Material Adverse Effect or materiality) as of such earlier date.
4. Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness hereof, each reference to the Credit Agreement in the Credit Agreement or any other Loan Document shall mean and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders, nor constitute a waiver of any provision of the Credit Agreement or any other documents, instruments and agreements executed and/or delivered in connection therewith.
5. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York, but giving effect to federal laws applicable to national banks.
6. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Signatures delivered by facsimile or PDF shall have the same force and effect as manual signatures delivered in person.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above written.
DEAN FOODS COMPANY, as the Borrower | ||||
By | /s/ Timothy A. Smith | |||
Name: | Timothy A. Smith | |||
Title: | Senior Vice President and Treasurer |
Signature Page to Amendment No. 2
Dean Foods Company
Credit Agreement
JPMORGAN CHASE BANK, N.A., individually as a Lender and as Administrative Agent | ||||
By | /s/ Dana J. Moran | |||
Name: | Dana J. Moran | |||
Title: | Vice President |
Signature Page to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
Bank of America, N.A. | ||||
By | /s/ David Catherall | |||
Name: | David Catherall | |||
Title: | Managing Director |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
American AgCredit, PCA | ||||
By | /s/ Bradley K. Leafgren | |||
Name: | Bradley K. Leafgren | |||
Title: | Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
FARM CREDIT BANK OF TEXAS | ||||
By | /s/ Luis M. H. Requejo | |||
Name: | Luis M. H. Requejo | |||
Title: | Director Capital Markets |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
SunTrust Bank | ||||
By | /s/ Tesha Winslow | |||
Name: | Tesha Winslow | |||
Title: | Director |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
PNC BANK, NATIONAL ASSOCIATION | ||||
By | /s/ Brett R. Schweikle | |||
Name: | Brett R. Schweikle | |||
Title: | Senior Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
UNITED FCS, PCA D/B/A FCS COMMERCIAL FINANCE GROUP, as a Lender | ||||
By | /s/ Warren Shoen | |||
Name: | Warren Shoen | |||
Title: | Senior Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A. RABOBANK NEDERLAND, NEW YORK BRANCH | ||||
By | /s/ Robert M. Mandula | |||
Name: | Robert M. Mandula | |||
Title: | Managing Director | |||
By | /s/ James V. Kenwood | |||
Name: | James V. Kenwood | |||
Title: | Managing Director |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
COBANK, ACB | ||||
By | /s/ Zachary Carpenter | |||
Name: | Zachary Carpenter | |||
Title: | Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
Farm Credit Mid-America, PCA, f/k/a Farm Credit Services of Mid-America, PCA | ||||
By | /s/ Ralph M. Bowman | |||
Name: | Ralph M. Bowman | |||
Title: | Vice President Capital Markets |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
AgFirst Farm Credit Bank | ||||
By | /s/ John Burnside, Jr. | |||
Name: | John Burnside, Jr. | |||
Title: | Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
AGSTAR FINANCIAL SERVICES, PCA | ||||
By | /s/ Troy Mostaert | |||
Name: | Troy Mostaert | |||
Title: | Vice President Capital Markets |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
The Bank of Nova Scotia | ||||
By | /s/ Rafael Tobon | |||
Name: | Rafael Tobon | |||
Title: | Director |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
The Bank of Tokyo-Mitsubishi UFJ, Ltd. | ||||
By | /s/ Harumi Kambara | |||
Name: | Harumbi Kambara | |||
Title: | Authorized Signatory |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
Bank of the West | ||||
By | /s/ Temple H. Abney | |||
Name: | Temple H. Abney | |||
Title: | Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
Branch Banking and Trust Company, as a Lender | ||||
By | /s/ Bradford F. Scott | |||
Name: | Bradford F. Scott | |||
Title: | Senior Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
COMPASS BANK, as a Lender | ||||
By | /s/ Daniel Feldman | |||
Name: | Daniel Feldman | |||
Title: | Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
Credit Agricole Corporate & Investment Bank | ||||
By | /s/ Blake Wright | |||
Name: | Blake Wright | |||
Title: | Managing Director | |||
By | /s/ James Austin | |||
Name: | James Austin | |||
Title: | Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH: | ||||
By | /s/ Michael Spaight | |||
Name: | Michael Spaight | |||
Title: | Authorized Signatory | |||
By | /s/ Vipul Dhadda | |||
Name: | Vipul Dhadda | |||
Title: | Authorized Signatory |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
The Northern Trust Company | ||||
By | /s/ Sara Bravo McCaulay | |||
Name: | Sara Bravo McCaulay | |||
Title: | Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
WELLS FARGO BANK, NATIONAL ASSOCIATION, individually as a Lender and as a Co-Documentation Agent | ||||
By | /s/ Andrew M. Widmer | |||
Name: | Andrew M. Widmer | |||
Title: | Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
HSBC Bank USA, National Association | ||||
By | /s/ Brian B. Myers | |||
Name: | Brian B. Myers | |||
Title: | Senior Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
Regions Bank | ||||
By | /s/ Robert L. Nelson | |||
Name: | Robert L. Nelson | |||
Title: | Senior Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
Name of Lender: | ||||
Sumitomo Mitsui Banking Corp. | ||||
By | /s/ Katsuyuki Kubo | |||
Name: | Katsuyuki Kubo | |||
Title: | Managing Director |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
CONSENT AND REAFFIRMATION
The undersigned hereby acknowledges receipt of a copy of the foregoing Amendment No. 2 to the Credit Agreement dated as of July 2, 2013 (the Credit Agreement) by and among Dean Foods Company (the Borrower), the financial institutions listed on the signature pages thereto and JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the Lenders (the Administrative Agent), which Amendment No. 2 is dated as of August 14, 2014 (the Amendment). Capitalized terms used in this Consent and Reaffirmation and not defined herein shall have the meanings given to them in the Credit Agreement. Without in any way establishing a course of dealing by the Administrative Agent or any Lender, each of the undersigned consents to the Amendment and reaffirms the terms and conditions of the Credit Agreement (including, but not limited to, the Security Agreement and the Subsidiary Guaranty) and any other Loan Document executed by it and acknowledges and agrees that such agreements and each and every such Loan Document executed by the undersigned in connection with the Credit Agreement remains in full force and effect and is hereby reaffirmed, ratified and confirmed. All references to the Credit Agreement contained in the above-referenced documents shall be a reference to the Credit Agreement as so modified by the Amendment.
Dated: August 14, 2014
[Signature Pages Follow]
ALTA-DENA CERTIFIED DAIRY, LLC | ||||
BERKELEY FARMS, LLC | ||||
COUNTRY FRESH, LLC | ||||
DEAN DAIRY HOLDINGS, LLC | ||||
DEAN EAST II, LLC | ||||
DEAN EAST, LLC | ||||
DEAN FOODS NORTH CENTRAL, LLC | ||||
DEAN FOODS OF WISCONSIN, LLC | ||||
DEAN HOLDING COMPANY | ||||
DEAN INTELLECTUAL PROPERTY SERVICES II, INC. | ||||
DEAN MANAGEMENT, LLC | ||||
DEAN SERVICES, LLC | ||||
DEAN TRANSPORTATION, INC. | ||||
DEAN WEST II, LLC | ||||
DEAN WEST, LLC | ||||
FRESH DAIRY DELIVERY, LLC | ||||
GANDYS DAIRIES, LLC | ||||
GARELICK FARMS, LLC | ||||
LAND-O-SUN DAIRIES, LLC | ||||
MAYFIELD DAIRY FARMS, LLC | ||||
MIDWEST ICE CREAM COMPANY, LLC | ||||
MODEL DAIRY, LLC | ||||
REITER DAIRY, LLC | ||||
SAMPSON VENTURES, LLC | ||||
SHENANDOAHS PRIDE, LLC | ||||
SOUTHERN FOODS GROUP, LLC | ||||
SUIZA DAIRY GROUP, LLC | ||||
TUSCAN/LEHIGH DAIRIES, INC. | ||||
VERIFINE DAIRY PRODUCTS OF SHEBOYGAN, LLC | ||||
By | /s/ Timothy A. Smith | |||
Name: | Timothy A. Smith | |||
Title: | Senior Vice President and Treasurer |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement
DIPS LIMITED PARTNER II | ||||
By: | CSC TRUST COMPANY OF DELAWARE, as Trustee | |||
By | /s/ Alan R. Halpern | |||
Name: | Alan R. Halpern | |||
Title: | Vice President |
Signature Page to Consent and Reaffirmation to Amendment No. 2
Dean Foods Company
Credit Agreement