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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:
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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
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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.
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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
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Name: William M. Luegers
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Bank and Administrative Agent
By /s/ Bruce Borden
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Name: Bruce Borden
Title: Vice President
BANK OF AMERICA, N.A.
By /s/ William F. Sweeney
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Name: William F. Sweeney
Title: Managing Director
WACHOVIA BANK, N.A.
By /s/ Debra L. Coheley
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Name: Debra L. Coheley
Title: Senior Vice President
HARRIS TRUST & SAVINGS BANK
By /s/ Michael L. Laurie
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Name: Michael L. Laurie
Title: Vice President
THE NORTHERN TRUST COMPANY
By /s/ Henry B. Gay
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Name: Henry B. Gay
Title: Vice President
MELLOM BANK, N.A.
By /s/ Daniel J. Lenckus
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Name: Daniel J. Lenckus
Title: Vice President
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MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ Bruce Borden
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Name: Bruce Borden
Title: Vice President
AmSouth Bank
By /s/ Peter S. Lee
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Name: Peter S. Lee
Title: Vice President
LASALLE NATIONAL BANK
By /s/ Richard P. Bott
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Name: Richard P. Bott
Title: Senior Vice President
SUNTRUST BANK, ATLANTA
By /s/ Kurt A. Morris
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Name: Kurt A. Morris
Title: Vice President
BANKERS TRUST COMPANY
By /s/ Thomas A. Foley / Alexander Karow
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Name: Thomas A. Foley / Alexander Karow
Title: Vice President / Vice President
THE BANK OF NEW YORK
By /s/ Mark O' Connor
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Name: Mark O' Connor
Title: Vice President
BANK ONE, NA
By /s/ Diane M. Faunda
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Name: Diane M. Faunda
Title: Director
FIRST UNION NATIONAL BANK
By /s/ Stephen T. Dorush
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Name: Stephen T. Dorush
Title: Vice President
BNP PARIBUS
By /s/ Christine L. Howatt
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Name: Christine L. Howatt
Title: Vice President
By /s/ JoEllen Bender
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Name: JoEllen Bender
Title: Director
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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:
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Level 1 Level 2 Level 3 Level 4
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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%
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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
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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.
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