EX-10.(N) 6 c64294ex10-n.txt AMENDMENT #2 TO CREDIT AGREEMENT 1 EXHIBIT 10(n) EXECUTION COPY AMENDMENT NO.2 TO CREDIT AGREEMENT AMENDMENT (this "Amendment") dated as of June 26,2001, and effective as of May 27,2001, to the Credit Agreement dated as of March 31,1998 among Dean Foods Company (the "Borrower"), the Banks parties thereto (the "Banks"), The Chase Manhattan Bank, as Administrative Agent (the "Administrative Agent"), Bank of America, N.A., as Syndication Agent, and Wachovia Bank, N.A., as Documentation Agent (as in effect immediately before this Amendment, the "Credit Agreement"). The Borrower has requested that the Banks agree to certain amendments relating to the definition of the Consolidated Fixed Charge Coverage Ratio, and the parties hereto are willing to do so on the terms and conditions set forth herein. The parties hereto therefore agree as follows: SECTION 1. Defined Terms. Unless otherwise specifically defined herein, each term used herein which is defined in the Credit Agreement has the meaning assigned to such term in the Credit Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and each other similar reference and each reference to "this Agreement" and each other similar reference contained in the Credit Agreement shall from and after the date hereof refer to the Credit Agreement as amended hereby. SECTION 2. Amendment. to FIxed Charge Coverage Ratio. (a) The definition of "Consolidated EBIT" in Section 1.01 of the Credit Agreement is hereby amended to read in full as follows: "Consolidated EBIT" means, for any fiscal period, Consolidated Net Income for such period plus, to the extent deducted in determining Consolidated Net Income for such period, the aggregate amount of (i) Consolidated Interest Expense, (ii) income tax expense and (iii) any Merger Expenses. (b) A new definition of "Merger Expenses" is added to Section 1.01 of the Credit Agreement, immediately after the definition of "Material Plan", to read in full as follows: "Merger Expenses" means, for any period, any one-time expenses of the Borrower and its Consolidated Subsidiaries (other than any interest expense), determined on a consolidated basis for such period, incurred during such period in connection with or related to the proposed merger between the Borrower and Suiza Foods Corporation, and separately identified as merger expenses (whether or not with that specific title) on the consolidated statements of income of the Borrower and its Consolidated Subsidiaries for such period. (c) Section 5.11 of the Credit Agreement is amended to read in full as follows: 2 SECTION 5.11. Fixed Charge Coverage Ratio. As of the last day of each fiscal quarter of the Borrower ending on the dates set forth below. the ratio of (i) Consolidated EBIT to (ii) Consolidated Interest Expense, in each case for the four consecutive fiscal quarters of the Borrower and its Consolidated Subsidiaries ending on such day, shall not be less than the ratio set forth opposite such fiscal quarter: Fiscal Quarter Ending Ratio --------------------- ----- May 27, 2001 2.4:1 August 26,2001 2.4:1 November 25,2001 2.4:1 February 24, 2002 2.4:1 May 26, 2002 2.4:1 August 25, 2002 and thereafter 3.0:1 SECTION 3. Amendments to Pricing Schedule. The Pricing Schedule attached to the Credit Agreement is hereby amended and restated to read in full as set forth in the Pricing Schedule attached to this Amendment. SECTION 4. Representations of Borrower. The Borrower represents and warrants that (i) the representations and warranties of the Borrower set forth in Article 4 of the Credit Agreement will be true on and as of the Amendment Effective Date (as defined below) and (ii) no Default will have occurred and be continuing on such date. SECTION 5. Governing Law .This Amendment shall be governed by and construed in accordance with the laws of the State of New York. SECTION 6. Counterparts; Effectiveness. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Amendment shall become effective on the date (the "Amendment Effective Date") on which the Administrative Agent shall have received the following: (a) from each of the Borrower and the Required Banks a counterpart hereof signed by such party or facsimile or other written confirmation (in form satisfactory to the Administrative Agent) that such party has signed a counterpart hereof; and (b) from the Borrower for the account of the Banks executing this Amendment, an amendment fee in the amount of 0.05% of the aggregate outstanding principal amount of each Bank's Loans under the Credit Agreement on the date hereof. 2 3 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written. DEAN FOODS COMPANY By /s/ William M. Luegers ------------------------------------- Name: William M. Luegers Title: Vice President and Treasurer THE CHASE MANHATTAN BANK, as Bank and Administrative Agent By /s/ Bruce Borden ------------------------------------- Name: Bruce Borden Title: Vice President BANK OF AMERICA, N.A. By /s/ William F. Sweeney ------------------------------------- Name: William F. Sweeney Title: Managing Director WACHOVIA BANK, N.A. By /s/ Debra L. Coheley ------------------------------------- Name: Debra L. Coheley Title: Senior Vice President HARRIS TRUST & SAVINGS BANK By /s/ Michael L. Laurie ------------------------------------- Name: Michael L. Laurie Title: Vice President THE NORTHERN TRUST COMPANY By /s/ Henry B. Gay ------------------------------------- Name: Henry B. Gay Title: Vice President MELLOM BANK, N.A. By /s/ Daniel J. Lenckus ------------------------------------- Name: Daniel J. Lenckus Title: Vice President 4 MORGAN GUARANTY TRUST COMPANY OF NEW YORK By /s/ Bruce Borden ------------------------------------- Name: Bruce Borden Title: Vice President AmSouth Bank By /s/ Peter S. Lee ------------------------------------- Name: Peter S. Lee Title: Vice President LASALLE NATIONAL BANK By /s/ Richard P. Bott ------------------------------------- Name: Richard P. Bott Title: Senior Vice President SUNTRUST BANK, ATLANTA By /s/ Kurt A. Morris ------------------------------------- Name: Kurt A. Morris Title: Vice President BANKERS TRUST COMPANY By /s/ Thomas A. Foley / Alexander Karow ------------------------------------- Name: Thomas A. Foley / Alexander Karow Title: Vice President / Vice President THE BANK OF NEW YORK By /s/ Mark O' Connor ------------------------------------- Name: Mark O' Connor Title: Vice President BANK ONE, NA By /s/ Diane M. Faunda ------------------------------------- Name: Diane M. Faunda Title: Director FIRST UNION NATIONAL BANK By /s/ Stephen T. Dorush ------------------------------------- Name: Stephen T. Dorush Title: Vice President BNP PARIBUS By /s/ Christine L. Howatt ------------------------------------- Name: Christine L. Howatt Title: Vice President By /s/ JoEllen Bender ------------------------------------- Name: JoEllen Bender Title: Director 5 PRICING SCHEDULE Each of "Euro-Dollar Margin" and "Facility Fee Rate" means, for any date, the rates set forth below in the row opposite such term and in the column corresponding to the .'Pricing Level" that applies at such date: -------------------------------------------------------------------------------- Level 1 Level 2 Level 3 Level 4 ------- ------- ------- ------- Euro-Dollar Margin Utilization < 25% 0.525% 0.625% 0.825% 1.000% Utilization >= 25% 0.650% 0.875% 1.075% 1.250% Facility Fee Rate 0.100% 0.125% 0.175% 0.250% -------------------------------------------------------------------------------- For purposes of this Schedule, the following terms have the following meanings: "Level l Pricing" applies at any date if, at such date, the Borrower's Credit Rating is higher than BBB/Baa2. "Level 2 Pricing" applies at any date if, at such date, the Borrower's Credit Rating is BBB/Baa2. "Level 3 Pricing" applies at any date if, at such date, the Borrower's Credit Rating is BBB-/Baa3. "Level 4 Pricing" applies at any date if, at such date, no other Pricing Level applies. "Moody's" means Moody's Investors Service, Inc. "Pricing Level" refers to the determination of which of Level 1, 2, 3 or 4 applies at any date. "S&P" means Standard & Poor's Ratings Services. "Utilization" means, on any date, the ratio (expressed as a percentage) of (i) the aggregate principal amount of Loans outstanding on such date (in each case after giving effect to any borrowing, issuance or payment on such date) to (ii) the aggregate amount of the Commitments on such date (after giving effect to any reduction of the Commitments on such date). If for any reason Loans remain outstanding following the termination of the Commitments, ".Utilization" sha11 be deemed to be in excess of 25%. "Credit Rating" shall mean, at any date, the rating assigned to the Borrower's senior unsecured long-term debt securities (without third-party credit enhancement) at such date by S&P and Moody's, expressed in the form of the long-term ratings currently used by such rating agencies. If the Borrower's long-term debt is split-rated and the 6 ratings differential is one level, the higher of the two ratings will apply (e.g., BBB/Baa3 shall be deemed to be a BBB/Baa2 rating by S&P and Moody's, and shall result in Level 2 pricing). If the Borrower is split-rated and the ratings differential is more than one level, the average of the two ratings (or the higher of two intermediate ratings) will apply, and the rating used for both S&P and Moody's will be such average (or higher of the two intermediate) ratings (e.g., BBB/Ba1 shall be deemed to be a BBB-/Baa3 rating, and shall result in Level 3 Pricing) .The rating in effect at any date is that in effect at the close of business on such date. 2