Exhibit 10.1

 

EXECUTION VERSION

 

SECOND AMENDMENT TO CREDIT AGREEMENT

 

THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “ Amendment ”) , dated as of January 4, 2017 (the “ Effective Date ”), is entered into by and among Dean Foods Company, a Delaware corporation (the “ Borrower ”), each of the Guarantors listed on the signature pages hereto (collectively with the Borrower, the “ Loan Parties ” and each, a “ Loan Party ”), Bank of America, N.A., as Administrative Agent (in such capacity, the “ Administrative Agent ”) and the Consenting Lenders (as defined below).

 

PRELIMINARY STATEMENTS:

 

WHEREAS, the Borrower, the Administrative Agent and the financial institutions and other persons party thereto as lenders from time to time (the “ Lenders ”) entered into that certain Credit Agreement, originally dated as of March 26, 2015 (as amended by that certain First Amendment to Credit Agreement and Limited Waiver, dated as of November 23, 2015, and as otherwise amended from time to time prior to the date hereof, the “ Credit Agreement ”; capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement);

 

WHEREAS, the Borrower, the other Loan Parties and the Administrative Agent have agreed to amend the Credit Agreement to, among other changes, extend the Maturity Date of the Loans to January 4, 2022 and make such other changes as hereinafter set forth; and

 

WHEREAS, certain Lenders are prepared to become parties hereto for the purpose of consenting to the amendments set forth in Section 1 below (such Lenders, the “ Consenting Lenders ”, and each a “ Consenting Lender ”);

 

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 hereby agree as follows:

 

SECTION 1.         Amendments to Credit Agreement .

 

(a)           The Credit Agreement is, effective as of the Second Amendment Effective Date (as defined below), and subject to the satisfaction of the conditions precedent set forth in Section 3 , hereby amended to delete the struck text (indicated textually in the same manner as the following example: struck text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text ), as set forth in the Amended Credit Agreement attached as Annex A hereto, except that any Schedule, Exhibit or other attachment to the Credit Agreement not amended pursuant to the terms of this Amendment or otherwise included as part of said Annex A shall remain in effect without any amendment or other modification thereto (other than as provided in Section 3 below).

 

(b)           If any existing Lender declines or fails to consent to this Amendment by returning an executed counterpart of this Amendment to the Administrative Agent prior to the Consent Deadline (as defined below), then pursuant to and in compliance with the terms of Section

 

Dean Foods — Second Amendment to

Credit Agreement

 

1

 

2.20(a)  of the Credit Agreement, such Lender may be replaced and its Loans and Commitments purchased and assumed by either a new lender (a “ New Lender ”) or a Consenting Lender (in such capacity, an “ Increasing Lender ” and, together with any New Lenders, the “ Replacement Lenders ”) upon such Replacement Lender’s execution of this Amendment (which will also be deemed to be the execution of an Assignment and Assumption substantially in the form of Exhibit A to the Credit Agreement, and the execution of this Amendment by the Administrative Agent and the Borrower shall be deemed to be the consent of the Administrative Agent and the Borrower (to the extent such consent is required under the Credit Agreement) thereto) and payment by such Replacement Lender of the purchase price required by Section 2.20(a)  of the Credit Agreement.

 

(c)           From and after the Second Amendment Effective Date, the Loans and Commitments made to the Borrower on or after, as applicable, the Effective Date and the Second Amendment Effective Date shall constitute Loans and Commitments (which shall be set forth in an updated Schedule 1.01 to the Amended Credit Agreement (as defined below)), as applicable, of the same class for all purposes under the Credit Agreement.

 

SECTION 2.         Reference to and Effect on the Loan Documents . (a) This Amendment shall constitute a Loan Document for purposes of the Credit Agreement and the other Loan Documents, and on and after the Second Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the “Credit Agreement”, shall mean and be a reference to the Credit Agreement, as amended by this Amendment (the “ Amended Credit Agreement ”).

 

(b)           The Credit Agreement, as specifically amended by this Amendment, and the other Loan Documents are, and shall continue to be, in full force and effect, and are hereby in all respects ratified and confirmed.

 

(c)           Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under the Credit Agreement or any other Loan Document, nor shall it constitute a waiver of any provision of the Credit Agreement or any other Loan Document.

 

(d)           Each of the Loan Parties hereby consents to the amendments to the Credit Agreement effected hereby, and hereby confirms, acknowledges and agrees that, (i) notwithstanding the effectiveness of this Amendment, the obligations of such Loan Party contained in any of the Loan Documents to which it is a party are, and shall remain, in full force and effect and are hereby ratified and confirmed in all respects, except that, on and after the Second Amendment Effective Date, each reference in the Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Amended Credit Agreement, (ii) the pledge and security interest in the Collateral granted by it pursuant to the Security Agreement (including any and all supplements thereto), to which it is a party shall continue in full force and effect and (iii) such pledge and security interest in the Collateral granted by it pursuant to such Security Agreement (including any and all supplements thereto), shall continue to secure the Obligations purported to be secured thereby, as amended or otherwise affected hereby.

 

2

 

SECTION 3.         Conditions of Effectiveness .  This Amendment shall become effective as of the date (the “ Second Amendment Effective Date ”) on which the following conditions shall have been satisfied (or waived):

 

(a)           the Administrative Agent (or its counsel) shall have received counterparts to this Amendment, duly executed by (i) the Borrower and the other Loan Parties, (ii) Consenting Lenders constituting the Required Lenders under, and as defined in, the Credit Agreement (as determined as of the Second Amendment Effective Date, immediately prior to giving effect to this Amendment) and (iii) the New Lenders, and in the case of clauses (ii) and (iii) hereof, prior to 3:00 p.m., New York City time, on December 23, 2016 (the “ Consent Deadline ”);

 

(b)           after giving effect to this Amendment and the transactions contemplated hereby, the representations and warranties set forth in (i)  Section 4 of this Amendment and (ii) Article III of the Amended Credit Agreement shall be true and correct in all material respects as of the Second Amendment Effective Date (provided that, in each case such materiality qualifier shall not be applied to any representations or warranties that pursuant to their terms are already qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects), with the same effect as though made on and as of such date, 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 as of such earlier date);

 

(c)           immediately prior to and after giving effect to the transactions contemplated herein, no Default or Event of Default shall have occurred and be continuing;

 

(d)           since December 31, 2015, there has been no Material Adverse Effect;

 

(e)           the Administrative Agent shall have received a certificate, dated as of the Second Amendment Effective Date, signed by a Responsible Officer of the Borrower certifying as to compliance with the conditions precedent set forth in clauses (b), (c) and (d) of this Section 3 ;

 

(f)            the Administrative Agent shall have received (i) a certified copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors, other managers, members or general partner of each Loan Party (or a duly authorized committee thereof) authorizing the execution, delivery and performance of this Amendment, and the performance of the Amended Credit Agreement and the other Loan Documents after giving effect to this Amendment, certified as of the Second Amendment Effective Date by a Responsible Officer of such Loan Party as being in full force and effect without modification or amendment, (ii) the certificate of incorporation or formation and the bylaws of each Loan Party or, as to any such Loan Party, a certificate that such constituent documents of such Loan Party have not changed since the most recent date such documents were delivered to the Administrative Agent and (iii) good standing certificates for each Loan Party, dated reasonably near the Second Amendment Effective Date, for each jurisdiction in which such Loan Party is organized;

 

(g)           the Administrative Agent shall have received such incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent

 

3

 

may reasonably require evidencing the identity, authority and capacity of each Responsible Officer of such Loan Party authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party;

 

(h)           the Administrative Agent shall have received the legal opinion of Wilmer Cutler Pickering Hale and Dorr LLP in form and substance reasonably satisfactory to the Administrative Agent;

 

(i)            the Borrower shall have paid to the Administrative Agent, on or prior to the Second Amendment Effective Date, for the ratable account of the applicable Lenders, in immediately available funds denominated in U.S. Dollars, an amendment fee in an amount equal to (i) for each Consenting Lender that is not an Increasing Lender, 0.075% of the aggregate principal amount of all of such Lender’s Commitments under the Credit Agreement after giving effect to this Amendment, (ii) for each New Lender, 0.20% of the aggregate principal amount of all of such Lender’s Commitments under the Credit Agreement after giving effect to this Amendment and (iii) for each Consenting Lender that is an Increasing Lender, 0.075% of such Lender’s Commitments under the Credit Agreement prior to giving effect to this Amendment and 0.20% of such Lender’s increased commitments after giving effect to this Amendment (collectively, the “ Amendment Fee ”), it being understood that the Borrower shall have no liability to pay any of the Amendment Fee if the Second Amendment Effective Date does not occur;

 

(j)            the Borrower shall have paid all reasonable, documented and invoiced out-of-pocket expenses of the Administrative Agent and the “Lead Arrangers” (as defined in the Amended Credit Agreement) (including the reasonable fees, disbursements and other charges of Shearman & Sterling LLP, counsel to the Administrative Agent and the Lead Arrangers, in an amount not to exceed $199,000) required to be paid by the Borrower and incurred in connection with the preparation and negotiation of this Amendment;

 

(k)           the Administrative Agent shall have received updated forecasts of the financial performance of the Borrower and its Subsidiaries on a combined consolidated basis on an annual basis, for the fiscal year through 2017; and

 

(l)            the Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, that the Administrative Agent has requested in writing at least five (5) Business Days prior to the Second Amendment Effective Date.

 

SECTION 4.         Representations and Warranties .  The Borrower hereby represents and warrants to the Administrative Agent and the Lenders party hereto that:

 

(a)           on and as of the date hereof (i) it has all requisite corporate power and authority to enter into, execute, deliver and perform its obligations under this Amendment and the Amended Credit Agreement, and (ii) this Amendment has been duly authorized, executed and delivered by it; and

 

(b)           this Amendment, and the Amended Credit Agreement, constitute legal, valid and binding obligations of the Borrower, enforceable against it in accordance with their

 

4

 

respective terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.

 

SECTION 5.         Execution in Counterparts .  This Amendment may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Delivery of an executed counterpart of a signature page to this Amendment by facsimile or electronic .pdf shall be effective as delivery of a manually executed counterpart of this Amendment.

 

SECTION 6.         GOVERNING LAW .  THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

SECTION 7.         WAIVER OF RIGHT OF TRIAL BY JURY .  EACH PARTY TO THIS AMENDMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AMENDMENT, OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE AMENDED CREDIT AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 7 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

5

 

IN WITNESS WHEREOF, the parties have caused this Second Amendment to Credit Agreement to be executed by their respective authorized officers or other authorized signatories as of the date first above written.

 

	DEAN FOODS COMPANY,
	as Borrower
	By: /S/ JAMES V. KENWOOD
	Name: James V. Kenwood
	Title: Vice President and Treasurer

 

[SIGNATURE PAGE]

 

 

	ALTA-DENA CERTIFIED DAIRY, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	BERKELEY FARMS, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	COUNTRY FRESH, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	DEAN DAIRY HOLDINGS, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	DEAN EAST, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary

 

[SIGNATURE PAGE]

 

 

	DEAN EAST II, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	DEAN FOODS NORTH CENTRAL, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	DEAN FOODS OF WISCONSIN, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	DEAN HOLDING COMPANY,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	DEAN INTELLECTUAL PROPERTY SERVICES II, INC.,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary

 

[SIGNATURE PAGE]

 

 

	DEAN MANAGEMENT, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: President and Secretary
	DEAN SERVICES, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: President and Secretary
	DEAN TRANSPORTATION, INC.,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	DEAN WEST, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	DEAN WEST II, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary

 

[SIGNATURE PAGE]

 

 

	DIPS LIMITED PARTNER II,
	as a Guarantor
	By: /S/ ALAN HALPERN
	Name: Alan Halpern
	Title: Vice President
	FRESH DAIRY DELIVERY, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	FRIENDLY’S ICE CREAM HOLDINGS CORP.,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	FRIENDLY’S MANUFACTURING & RETAIL, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	GARELICK FARMS, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary

 

[SIGNATURE PAGE]

 

 

	MAYFIELD DAIRY FARMS, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	MIDWEST ICE CREAM COMPANY, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	MODEL DAIRY, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	REITER DAIRY, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	SAMPSON VENTURES, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary

 

[SIGNATURE PAGE]

 

 

	SHENANDOAH’S PRIDE, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	SOUTHERN FOODS GROUP, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	SUIZA DAIRY GROUP, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	TUSCAN/LEHIGH DAIRIES, INC.,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary
	VERIFINE DAIRY PRODUCTS OF SHEBOYGAN, LLC,
	as a Guarantor
	By: /S/ KRISTY N. WATERMAN
	Name: Kristy N. Waterman
	Title: Vice President, Chief Counsel —
	Corporate and Secretary

 

[SIGNATURE PAGE]

 

 

	BANK OF AMERICA, N.A.,
	as Administrative Agent
	By: /S/ JOAN MOK
	Name: Joan Mok
	Title: Vice President

 

[SIGNATURE PAGE]

 

 

	BANK OF AMERICA, N.A.,
	as Lender
	By: /S/ NICHOLAS CHENG
	Name: Nicholas Cheng
	Title: Director

 

[SIGNATURE PAGE]

 

 

	JPMORGAN CHASE BANK, N.A.,
	as Lender
	By: /S/ DANA J. MORAN
	Name: Dana J. Moran
	Title: Executive Director

 

[SIGNATURE PAGE]

 

 

	COBANK, ACB,
	as Lender
	By: /S/ ZACHARY CARPENTER
	Name: Zachary Carpenter
	Title: Vice President

 

[SIGNATURE PAGE]

 

 

	COOPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
	as Lender
	By: /S/ LINA A. GARCIA
	Name: Lina A. Garcia
	Title: Executive Director
	By: /S/ PAMELA BEAL
	Name: Pamela Beal
	Title: Executive Director

 

[SIGNATURE PAGE]

 

 

	PNC BANK, NATIONAL ASSOCIATION,
	as Lender
	By: /S/ MADELINE L. MORAN
	Name: Madeline L. Moran
	Title: Assistant Vice President

 

[SIGNATURE PAGE]

 

 

	SUNTRUST BANK,
	as Lender
	By: /S/ GARRETT O’MALLEY
	Name: Garrett O’Malley
	Title: Director

 

[SIGNATURE PAGE]

 

 

	FIFTH THIRD BANK,
	as Lender
	By: /S/ FRANCISCO GONZALEZ
	Name: Francisco Gonzalez
	Title: Assistant Vice President

 

[SIGNATURE PAGE]

 

 

	BANK OF THE WEST,
	as Lender
	By: /S/ TEMPLE H. ABNEY
	Name: Temple H. Abney
	Title: Director

 

[SIGNATURE PAGE]

 

 

	BRANCH BANKING AND TRUST COMPANY,
	as Lender
	By: /S/ ROGER ERIC SEARLS
	Name: Roger Eric Searls
	Title: Senior Vice President

 

[SIGNATURE PAGE]

 

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION,
	as Lender
	By: /S/ PETER KIEDROWSKI
	Name: Peter Kiedrowski
	Title: Director

 

[SIGNATURE PAGE]

 

 

	REGIONS BANK,
	as Lender
	By: /S/ CLAIRE HARRISON
	Name: Claire Harrison
	Title: Vice President

 

[SIGNATURE PAGE]

 

 

	AGFIRST FARM CREDIT BANK,
	as Lender
	By: /S/ NEDA BEAL
	Name: Neda Beal
	Title: Vice President

 

[SIGNATURE PAGE]

 

 

	AGSTAR FINANCIAL SERVICES, PCA,
	as Lender
	By: /S/ TIMOTHY F. MCNAMARA
	Name: Timothy F. McNamara
	Title: Associate Vice President
	Capital Markets

 

[SIGNATURE PAGE]

 

 

	FARM CREDIT BANK OF TEXAS,
	as Lender
	By: /S/ LUIS M. H. REQUEJO
	Name: Luis M. H. Requejo
	Title: Director Capital Markets

 

[SIGNATURE PAGE]

 

 

	UNITED FCS, PCA D/B/A FCS COMMERCIAL FINANCE GROUP,
	as Lender
	By: /S/ WARREN SHOEN
	Name: Warren Shoen
	Title: Senior Vice President

 

[SIGNATURE PAGE]

 

 

	AMERICAN AGCREDIT, PCA,
	as Lender
	By: /S/ BRADLEY K. LEAFGREN
	Name: Bradley K. Leafgren
	Title: Vice President

 

[SIGNATURE PAGE]

 

 

	1 ST  FARM CREDIT SERVICES, PCA,
	as Lender
	By: /S/ LEE FUCHS
	Name: Lee Fuchs
	Title: Vice President
	Capital Markets Group

 

[SIGNATURE PAGE]

 

 

	FARM CREDIT MID AMERICA, PCA,
	as Lender
	By: /S/ TABATHA HAMILTON
	Name: Tabatha Hamilton
	Title: Vice President Capital Markets

 

[SIGNATURE PAGE]

 

 

	THE NORTHERN TRUST COMPANY,
	as Lender
	By: /S/ WICKS BARKHAUSEN
	Name: Wicks Barkhausen
	Title: Vice President

 

[SIGNATURE PAGE]

 

 

ANNEX A

 

AMENDED CREDIT AGREEMENT

 

[Attached On Following Pages]

 

 

EXECUTION VERSION

 

[CONFORMED FOR CHANGES PURSUANT TO SECOND AMENDMENT TO

 

CREDIT AGREEMENT, DATED AS OF JANUARY 4, 2017]

 

Published CUSIP Numbers:

DEAL CUSIP: 242369AT3

REVOLVER CUSIP: 242369AU0

 

CREDIT AGREEMENT

 

dated as of

 

March 26, 2015 ,
as amended as of November 23, 2015
and as further amended as of January 4, 2017

 

among

 

DEAN FOODS COMPANY

 

The Lenders Party Hereto

 

and

 

BANK OF AMERICA, N.A.,
as Administrative Agent

 

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

J.P. MORGAN SECURITIES LLC,

MORGAN STANLEY SENIOR FUNDING, INC JPMORGAN CHASE BANK, N.A .,
COBANK COBANK , ACB ACB ,
SUNTRUST ROBINSON HUMPHREY, INC SUNTRUST ROBINSON HUMPHREY, INC .,
COÖPERATIEVE CENTRALE RAIFFEISEN — BOERENLEENBANK, B.A. “RABOBANK NEDERLAND,” RABOBANK U.A., NEW YORK BRANCH,

CREDIT AGRICOLE CORPORATE & INVESTMENT BANK

and

PNC CAPITAL MARKETS LLC,
as Joint Lead Arrangers and Joint Bookrunners

 

JPMORGAN CHASE BANK, N.A.

and

MORGAN STANLEY SENIOR FUNDING, INC.,
COBANK, ACB,
as Syndication Co-Syndication Agents

 

COBANK, ACB,

SUNTRUST ROBINSON HUMPHREY, INC SUNTRUST ROBINSON HUMPHREY, INC .,

 

COÖPERATIEVE CENTRALE RAIFFEISEN — BOERENLEENBANK, B.A. “RABOBANK NEDERLAND,” RABOBANK U.A., NEW YORK BRANCH,

CREDIT AGRICOLE CORPORATE & INVESTMENT BANK

and

PNC BANK, NATIONAL ASSOCIATION,
 as Co-Documentation Agents

 

 

TABLE OF CONTENTS

 

		Page
	ARTICLE I
	Definitions
SECTION 1.01.	Defined Terms	1
SECTION 1.02.	Classification of Loans and Borrowings	33 35
SECTION 1.03.	Terms Generally	33 35
SECTION 1.04.	Accounting Terms; GAAP	34 35
SECTION 1.05.	Letter of Credit Amounts	35 36
SECTION 1.06.	Times of Day; Rates	35 36
	ARTICLE II
	The Credits
SECTION 2.01.	Commitments	35 36
SECTION 2.02.	Loans and Borrowings	35 36
SECTION 2.03.	Requests for Revolving Borrowings	36 37
SECTION 2.04.	Expansion Option	37 38
SECTION 2.05.	Swingline Loans	38 41
SECTION 2.06.	Letters of Credit	40 42
SECTION 2.07.	Funding of Borrowings	47 49
SECTION 2.08.	Interest Elections	48 50
SECTION 2.09.	Termination and Reduction of Commitments	49 52
SECTION 2.10.	Repayment of Loans; Evidence of Debt	50 52
SECTION 2.11.	Prepayment of Loans	50 53
SECTION 2.12.	Fees	53 55
SECTION 2.13.	Interest	54 56
SECTION 2.14.	Alternate Rate of Interest	55 57
SECTION 2.15.	Increased Costs	55 58
SECTION 2.16.	Break Funding Payments	57 59
SECTION 2.17.	Taxes	57 60
SECTION 2.18.	Payments Generally; Allocation of Proceeds; Sharing of Set-offs	61 63
SECTION 2.19.	Mitigation Obligations	63 66
SECTION 2.20.	Departing Lenders; Replacement of Lenders	63 66
SECTION 2.21.	Defaulting Lenders	64 67
	ARTICLE III
	Representations and Warranties
SECTION 3.01.	Organization; Powers	66 69
SECTION 3.02.	Authorization; Enforceability	66 69
SECTION 3.03.	Governmental Approvals; No Conflicts	67 69
SECTION 3.04.	Financial Condition; No Material Adverse Change	67 69

 

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SECTION 3.05.	Properties	67 70
SECTION 3.06.	Litigation and Environmental Matters	68 70
SECTION 3.07.	Compliance with Laws	68 70
SECTION 3.08.	Investment Company Status	68 71
SECTION 3.09.	Taxes	69 71
SECTION 3.10.	ERISA	69 71
SECTION 3.11.	Disclosure	69 71
SECTION 3.12.	Solvency	69 71
SECTION 3.13.	Security Interest in Collateral	69 71
SECTION 3.14.	Labor Disputes	70 72
SECTION 3.15.	No Default	70 72
SECTION 3.16.	Federal Reserve Regulations	70 72
SECTION 3.17.	Business Locations; Taxpayer Identification Number	70 72
SECTION 3.18.	OFAC	70 72
SECTION 3.19.	Anti-Corruption Laws	71 72
SECTION 3.20.	Insurance	71 73
SECTION 3.21.	EEA Financial Institutions	73
	ARTICLE IV
	Conditions
SECTION 4.01.	Effectiveness	71 [Reserved] 73
SECTION 4.02.	Each Credit Event	73
SECTION 4.03.	Conditions to Second Amendment Effective Date	73
	ARTICLE V
	Affirmative Covenants
SECTION 5.01.	Financial Statements and Other Information	74
SECTION 5.02.	Notices of Material Events	76
SECTION 5.03.	Existence; Conduct of Business	76
SECTION 5.04.	Payment of Obligations	76
SECTION 5.05.	Maintenance of Properties	77
SECTION 5.06.	Books and Records; Inspection Rights	77
SECTION 5.07.	Compliance with Laws	77
SECTION 5.08.	Use of Proceeds	77
SECTION 5.09.	Insurance	77
SECTION 5.10.	Subsidiary Guarantors; Pledges; Collateral; Further Assurances	78
SECTION 5.11.	Post-Closing Deliveries	80
	ARTICLE VI
	Negative Covenants
SECTION 6.01.	Indebtedness	80 79
SECTION 6.02.	Liens	82 81
SECTION 6.03.	Fundamental Changes	84 83
SECTION 6.04.	Investments, Loans, Advances and Acquisitions	85 83

 

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SECTION 6.05.	Asset Sales	87 85
SECTION 6.06.	Sale and Leaseback Transactions	88 86
SECTION 6.07.	Restricted Payments	88 87
SECTION 6.08.	Transactions with Affiliates	89 87
SECTION 6.09.	Restrictive Agreements	89 88
SECTION 6.10.	Subordinated Indebtedness and Amendments to Subordinated Indebtedness	91 89
SECTION 6.11.	Financial Covenants	91 90
SECTION 6.12.	Sanctions	91 90
SECTION 6.13.	Anti-Corruption Laws	91 90
	ARTICLE VII
	Events of Default
	ARTICLE VIII
	The Administrative Agent
	ARTICLE IX
	Miscellaneous
SECTION 9.01.	Notices	101
SECTION 9.02.	Waivers; Amendments	104
SECTION 9.03.	Expenses; Indemnity; Damage Waiver	106
SECTION 9.04.	Successors and Assigns	107 108
SECTION 9.05.	Survival	112
SECTION 9.06.	Counterparts; Integration; Effectiveness	112
SECTION 9.07.	Severability	113
SECTION 9.08.	Right of Setoff	113
SECTION 9.09.	Governing Law; Jurisdiction; Consent to Service of Process	113
SECTION 9.10.	WAIVER OF JURY TRIAL	114
SECTION 9.11.	Headings	114
SECTION 9.12.	Confidentiality	114 115
SECTION 9.13.	Several Obligations; Nonreliance; Violation of Law	115 116
SECTION 9.14.	USA PATRIOT Act	116
SECTION 9.15.	Disclosure	116
SECTION 9.16.	Appointment for Perfection	116
SECTION 9.17.	Interest Rate Limitation	116 117
SECTION 9.18.	No Advisory or Fiduciary Responsibility	116 117
SECTION 9.19.	Release of Subsidiary Guarantors	117
SECTION 9.20.	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	118

 

SCHEDULES :

Schedule 1.01 — Commitment Schedule

 

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Schedule 1.01(b) — Mortgaged Property

Schedule 1.01(c) — Unrestricted Subsidiaries

Schedule 2.06 — Existing Letters of Credit

Schedule 3.01 — Subsidiaries

Schedule 3.05(c) — Real Property

Schedule 3.17(a) — Locations of Tangible Personal Property

Schedule 3.17(b) — Location of Chief Executive Office, Taxpayer Identification Number, Etc.

Schedule 3.20 — Insurance

Schedule 5.11 — Post-Closing Deliveries

Schedule 5.11(b) — Title Insurance Amounts

Schedule 6.01 — Existing Indebtedness

Schedule 6.02 — Existing Liens

Schedule 6.04 — Existing Investments

Schedule 6.09 — Existing Restrictive Agreements

EXHIBITS :

Exhibit A — Form of Assignment and Assumption

Exhibit B-1 — Form of Increasing Lender Supplement

Exhibit B-2 — Form of Augmenting Lender Supplement

Exhibit C — Form of Compliance Certificate

Exhibit D-1 — Form of Borrowing Request

Exhibit D-2 — Form of Interest Election Request

Exhibit E — Form of Note

Exhibit F-1 — Form of U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships)

Exhibit F-2 — Form of U.S. Tax Certificate (Foreign Participants That Are Not Partnerships)

Exhibit F-3 — Form of U.S. Tax Certificate (Foreign Participants That Are Partnerships)

Exhibit F-4 — Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships)

Exhibit H — Form of Mortgage

 

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CREDIT AGREEMENT dated as of March 26, 2015 (as amended by the First Amendment (as defined below), dated as of November 23, 2015 and the Second Amendment (as defined below), dated as of January 4, 2017 and as it may be amended or modified from time to time, this “ Agreement ”), among DEAN FOODS COMPANY, the Lenders party hereto, BANK OF AMERICA, N.A., as Administrative Agent.

 

The parties hereto agree as follows:

 

The Borrower has requested that the Lenders extend credit in the form of (a) Commitments to make Revolving Loans on the Second Amendment Effective Date (as defined below), which shall be available as Revolving Loans at any time on and after the Second Amendment Effective Date and from time to time prior to the Maturity Date in an aggregate principal amount at any time outstanding not in excess of $450,000,000, subject to the Expansion Option described in Section 2.04 hereof.  The Borrower has requested that the Swingline Lender extend credit at any time on and after the Second Amendment Effective Date and from time to time prior to the Maturity Date, in the form of Swingline Loans, in an aggregate principal amount at any time outstanding not in excess of $100,000,000.  The Borrower has requested that the Issuing Banks issue Letters of Credit on and after the Second Amendment Effective Date in an aggregate face amount at any time outstanding not in excess of $75,000,000, to support payment obligations incurred in the ordinary course of business by the Borrower and the Restricted Subsidiaries.

 

The Lenders are willing to extend such credit to the Borrower, and the Issuing Banks are willing to issue Letters of Credit for the account of the Borrower, in each case on the terms and subject to the conditions set forth herein.  Accordingly, the parties hereto agree as follows:

 

a)            Definitions

 

Defined Terms .  As used in this Agreement, the following terms have the meanings specified below:

 

“ ABR ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

 

“ Administrative Agent ” means Bank of America, N.A., in its capacity as administrative agent for the Lenders hereunder.

 

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth in Section 9.01, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

 

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common

 

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Control with the Person specified.  Notwithstanding the foregoing, (a) no individual shall be an Affiliate solely by reason of his or her being a director, officer or employee of the Borrower or any of its Subsidiaries, and (b) none of the Restricted Subsidiaries of the Borrower shall be considered Affiliates.  For purposes hereof, all Unrestricted Subsidiaries shall be considered Affiliates of the Borrower and its Restricted Subsidiaries.

 

“ Aggregate Commitment ” means the aggregate of the Commitments of all of the Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof.  As of the Second Amendment Effective Date, the Aggregate Commitment is $450,000,000.

 

“ Alternate Base Rate ” means, for any day, a rate per annum equal to the greatest of (a) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, and if the Alternate Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

 

“Annual Investment Limitation” means $100,000,000 for any fiscal year of the Borrower; provided that the Annual Investment Limitation shall mean $40,000,000 for such fiscal year if, at the time of the making of such investment and immediately after giving effect thereto on a Pro Forma Basis, the (i) Total Net Leverage Ratio (including the aggregate outstanding amount of any Permitted Receivables Financing) is greater than 3.50 to 1.00 and (ii)   Liquidity of the Borrower and its Restricted Subsidiaries is less than $200,000,000.

 

“ Anti-Corruption Laws ” has the meaning in Section 3.19.

 

“ Applicable Percentage ” means, with respect to any Lender, a percentage equal to a fraction the numerator of which is such Lender’s Commitment and the denominator of which is the Aggregate Commitment; provided that, in the case of Section 2.21 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the Aggregate Commitment (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s Commitment.  If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments and to any Lender’s status as a Defaulting Lender at the time of determination.

 

“ Applicable Pledge Percentage ” means (i) 100% in the case of a pledge of Equity Interests of a Material Restricted Subsidiary which is a Domestic Subsidiary and (ii) 65% of the voting Equity Interests and 100% of the nonvoting Equity Interests in the case of a pledge of Equity Interests of a Material Restricted Subsidiary which is a Foreign Subsidiary; provided , that no Receivables Financing SPC shall be required to pledge its Equity Interest in any Person.

 

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“ Applicable Rate ” means, for any day, with respect to any ABR Loan or LIBOR Loan, or with respect to the commitment fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “ABR Spread”, “LIBOR Spread” or “Commitment Fee Rate”, as the case may be, based upon the Borrower’s Total Net Leverage Ratio as of the most recent determination date:

 

Total Net Leverage Ratio		LIBOR Spread		ABR Spread		Commitment Fee Rate
Category 1 < 4.00 2.00 to 1.00		2.25 1.75 %		1.25 0.75 %		0.40 0.375 %
Category 2 > 4.00 2.00 to 1.00 but < 5.00 3.00 to 1.00		2.50 2.00 %		1.50 1.00 %		0.45 0.400 %
Category 3 > 5.00 to 3.00 to 1.00 but < 4.00 to 1.00		2.75 2.25 %		1.75 1.25 %		0.45 0.400 %
Category 4 > 4.00 to 1.00		2.50%		1.50%		0.450%

 

For purposes of the foregoing, (i) the Applicable Rate shall be determined as of the end of each fiscal quarter of the Borrower based upon the Borrower’s annual or quarterly consolidated financial statements delivered pursuant to Section 5.01 and (ii) each change in the Applicable Rate resulting from a change in the Total Net Leverage Ratio shall be effective during the period commencing on and including the date of delivery of such consolidated financial statements indicating such change and ending on the date immediately preceding the effective date of the next such change; provided that the Total Net Leverage Ratio shall be deemed to be in Category 3 4  at the request of the Required Lenders if the Borrower fails to deliver the annual or quarterly consolidated financial statements required to be delivered by it pursuant to Section 5.01, during the period from the expiration of the time for delivery thereof until such consolidated financial statements are delivered. The Applicable Rate in effect from the Second Amendment Effective Date through the date of receipt by the Administrative Agent of a Compliance Certificate with respect to the fiscal quarter ending June 30, 2015 shall be determined July 4, 2017 shall be based upon the pricing level set forth as Category 2 on the above pricing grid and, thereafter, based upon the Total Net Leverage Ratio set forth in the most recently-delivered Compliance Certificate .

 

“ Approved Fund ” means any Person (other than a natural person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

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“ Arrangers ” mean Merrill Lynch, Pierce, Fenner & Smith Incorporated , J.P. Morgan Securities LLC, Morgan Stanley Senior Funding, Inc (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), JPMorgan Chase Bank, N.A ., CoBank, ACB, SunTrust Suntrust Robinson Humphrey, Inc., Coöperatieve Centrale Raiffeisen — Boerenleenbank, B.A. “Rabobank Nederland,” Rabobank U.A., New York Branch, Credit Agricole Corporate & Investment Bank and PNC Capital Markets LLC, each in their respective capacities as joint lead arrangers and joint bookrunners.

 

“ Asset Sale ” means any sale, transfer or other disposition (including pursuant to a sale and leaseback transaction) of any property or asset of the Borrower or any Material Restricted Subsidiary, other than (i) Excluded Dispositions and Specified Sales, (ii) sales, transfers or dispositions described in Section 6.05(b), 6.05(c), 6.05(d), 6.05(f), 6.05(g) or 6.05(h) and (iii) any Equity Issuance of the Borrower or any of its Restricted Subsidiaries.

 

“ Assignment and Assumption ” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

 

“ Attributed Principal Amount ” means, on any day, with respect to any Permitted Receivables Financing entered into by a Subsidiary of the Borrower, the aggregate amount (with respect to any such transaction, the “ Invested Amount ”) paid to, or borrowed by, such Person as of such date under such Permitted Receivables Financing, minus the aggregate amount received by the applicable Receivables Financier and applied to the reduction of the Invested Amount under such Permitted Receivables Financing.

 

“ Augmenting Lender ” has the meaning assigned to such term in Section 2.04.

 

“Augmenting Revolving Lender” has the meaning assigned to such term in Section 2.04.

 

“Augmenting Term Lender” has the meaning assigned to such term in Section 2.04.

 

“ Auto-Extension Letter of Credit ” has the meaning assigned to such term in Section 2.06(b)(viii).

 

“ Availability Period ” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.

 

“ Available Revolving Commitment ” means, at any time, the Aggregate Commitment then in effect minus the Revolving Exposure of all Lenders at such time; it being understood and agreed that any Lender’s Swingline Exposure shall not be deemed to be a component of the Revolving Exposure for purposes of calculating the commitment fee under Section 2.12(a).

 

4

 

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

“ Bank of America ” means Bank of America, N.A. and its successors.

 

“ Banking Services ” means each and any of the following bank services provided to the Borrower or any Restricted Subsidiary by any Lender or any of its Affiliates:  (a) credit cards or debit cards for commercial customers (including, without limitation, commercial credit cards, debit cards and purchasing cards), (b) stored value cards and (c) treasury or other cash management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services).

 

“ Banking Services Agreement ” means any agreement entered into by the Borrower or any Subsidiary in connection with Banking Services.

 

“ Banking Services Obligations ” means any and all obligations of the Borrower or any Restricted Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Banking Services (including any “Banking Services” (as defined in the Existing Prior Credit Agreement)).

 

“ Bankruptcy Event ” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided , further , that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

 

“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

 

“ Borrower ” means Dean Foods Company, a Delaware corporation.

 

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“ Borrowing ” means (a) Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of LIBOR Loans, as to which a single Interest Period is in effect or (b) a Swingline Loan.

 

“ Borrowing Request ” means a request by the Borrower for a Borrowing in accordance with Section 2.02 substantially in the form attached hereto as Exhibit D-1; or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

 

“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any LIBOR Loan, means any day that is also a day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

 

“ Capital Lease ” means any lease of property, real or personal, the obligations with respect to which are required to be capitalized on a balance sheet of the lessee in accordance with GAAP.

 

“ Capital Lease Obligations ” means the aggregate principal component of capitalized lease obligations relating to a Capital Lease determined in accordance with GAAP.

 

“ Captive Insurance Company ” means any Subsidiary of the Borrower that is organized and subject to regulation as an insurance company, or the principal purpose of which is to procure insurance for the benefit of the Borrower and/or its Restricted Subsidiaries.

 

“ Cash Equivalents ” means:

 

(a)           direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States), in each case maturing within one year from the date of acquisition thereof;

 

(b)           investments in (1) commercial paper and variable or fixed rate notes issued by (A) any domestic commercial bank of recognized standing having capital and surplus in excess of $250,000,000 or (B) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank described in this clause (b) being an “ Approved Bank ”) (or by the parent company thereof) or (2) any commercial paper or variable rate notes issued by, or guaranteed by any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s, and in each case maturing within 270 days from the date of acquisition thereof;

 

(c)           investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any Approved Bank;

 

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(d)           repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (b) above;

 

(e)           auction preferred stock rated in the highest short-term credit rating category by S&P or Moody’s with a maximum maturity of one year, for which the reset date will be used to determine the maturity date; and

 

(f)            money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

 

“ CFC ” means a “controlled foreign corporation” as defined in section 957 of the Code.

 

“ Change in Control ” means (a) the acquisition of record or beneficial ownership by any Person or group (as such terms are used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee or director benefit plan or stock plan of the Borrower or a Subsidiary or any trustee or fiduciary with respect to any such plan when acting in that capacity or any trust related to any such plan), of Equity Interests representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Borrower; or (b)  occupation of during any period of 12 consecutive months, a majority of the seats (other than vacant seats) on members of the board of directors or other equivalent governing body of the Borrower by Persons who are not Continuing Directors ceases to be individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above (or individuals previously approved under this clause (iii)) constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (such approval, in the case of clauses (ii) or (iii), either by a specific vote or by approval of the Borrower’s proxy statement in which such member was named as a nominee for election as a director) . As used herein, (i) “ “ beneficial ownership” shall have the meaning provided in Rule 13d-3 of the SEC under the Securities Act of 1934 and (ii) “Continuing Directors” means, as of any date of determination, any member of the board of directors of the Borrower who (A) was a member of such board of directors on the Effective Date, or (B) was nominated for election, elected or appointed to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination, election or appointment and represented a majority of such board of directors. .

 

“ Change in Law ” means the occurrence, after the date of this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rules, guideline,

 

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requirement or directive (whether or not having the force of law) by any Governmental Authority; provided however , that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” regardless of the date enacted, adopted, issued or implemented.

 

“ Class ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.

 

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

 

“ Co-Documentation Agent ” means each of CoBank, ACB, SunTrust Suntrust Robinson Humphrey, Inc., Coöperatieve Centrale Raiffeisen — Boerenleenbank, B.A. “Rabobank Nederland,” Rabobank U.A., New York Branch, Credit Agricole Corporate & Investment Bank and PNC Bank, National Association, each in its capacity as co-documentation agent for the credit facility evidenced by this Agreement.

 

“ Collateral ” means any and all property owned, leased or operated by a Person, which property is covered by the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be or become subject to a security interest or Lien in favor of Administrative Agent, on behalf of itself and the Holders of Secured Obligations, to secure the Secured Obligations, other than the Excluded Property.

 

“ Collateral Documents ” means, collectively, the Security Agreement , the Mortgages and all other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, loan agreements, mortgages, notes, guarantees, subordination agreements, pledges, powers of attorney, consents, assignments, contracts, fee letters, notices, leases, financing statements and all other written matter whether heretofore, now, or hereafter executed by the Borrower or any of its Material Restricted Subsidiaries and delivered to the Administrative Agent.

 

“ Commitment ” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced or terminated from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.04 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Commitment is set forth on Schedule 1.01 , or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable.

 

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To the extent that a Term Loan Facility includes a delayed draw feature and the context so requires, the term “Commitment” shall also refer to the undrawn commitment, if any, of a Lender to make Loans under such Term Loan Facility, as such commitment may be (a) reduced or terminated from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.04 or (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Commitment with respect to a Term Loan Facility will be set forth in the applicable Term Loan Amendment, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable.

 

“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

“ Communications ” has the meaning assigned to such term in Section 9.01(d).

 

“ Compliance Certificate ” means a certificate substantially in the form of Exhibit C .

 

“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

“ Consolidated EBITDA ” means, for any period, for the Borrower and its Restricted Subsidiaries on a consolidated basis, an amount equal to:  (a) Consolidated Net Income for such period plus (b) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for, without duplication:  (i) Consolidated Interest Expense, (ii) provision for taxes based on income, profits or capital of the Borrower and its Restricted Subsidiaries, including, without limitation, federal, state, franchise, excise and similar taxes and foreign withholding taxes paid or accrued during such period including penalties and interest related to such taxes or arising from any tax examinations, (iii) depreciation and amortization expense and other non-cash charges, expenses or losses (except for any such expense that requires accrual of a reserve for anticipated future cash payments for any period), (iv)  pro forma cost savings add-backs resulting from non-recurring charges related to Permitted Acquisitions or dispositions as permitted pursuant to Regulation S-X of the Securities Exchange Act of 1934 or as approved by the Administrative Agent, (v)  non-recurring, cash charges, expenses or losses (including, for the avoidance of doubt, non-recurring, cash charges, expenses or losses constituting restructuring charges or reserves, costs related to the closure and/or consolidation of facilities, contract termination costs and severance expenses) not exceeding $15,000,000 in any four fiscal quarter period, ( vi v ) any contingent or deferred payments (including earn-out payments, non-compete payments and consulting payments but excluding ongoing royalty payments) made in connection with any Permitted Acquisition, ( vii vi ) any extraordinary or unusual charges or expenses (including amounts paid on early terminations of Swap Agreements), ( viii vii ) non-cash losses from foreign exchange translation adjustments or Swap Agreements during such period and ( ix viii ) the fees and expenses paid to third parties during such period that directly arise out of and are incurred in connection with any Permitted Acquisition, investment, asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing transaction or amendment or other modification of any debt instrument (in each case, including any such transaction consummated prior to the Second Amendment Effective Date and any such transaction undertaken but not completed, and

 

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including transaction expenses incurred in connection therewith) or early extinguishment of Indebtedness to the extent such items were subject to capitalization prior to the effectiveness of Financial Accounting Standards Board Statement No. 141R “Business Combinations” but are required under such statement to be expensed currently, minus plus (c)  (x)  pro forma cost-savings add-backs resulting from non-recurring charges related to Permitted Acquisitions or dispositions as permitted pursuant to Regulation S-X of the Securities Exchange Act of 1934 or as approved by the Administrative Agent and (y) the amount of “run rate” net cost savings and operating expense reductions related to any acquisition, disposition, asset sale, divestiture or investment after the Second Amendment Effective Date and projected by the Borrower in good faith to result from actions actually taken during the period that is, or expected to be taken no later than, 12 months after the date of such transaction (which “run rate” net cost savings and operating expense reductions shall be calculated on a pro forma basis as though such cost savings and operating expense reductions had been realized on the first day of the period for which Consolidated EBITDA is being determined and realized during the entirety of such period, without duplication of any pro forma adjustment for any such subsequent period that would otherwise be permitted under this clause (c)), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings and operating expense reductions under this clause (c) are reasonably identifiable and factually supportable (in the good faith determination of the Borrower) and (B) the aggregate amount of such add-backs under this clause (c) shall not exceed 10% of Consolidated EBITDA for the applicable four-quarter period (calculated after giving pro forma effect to the full-year impact of the relevant acquisition, disposition, asset sale, divestiture or investment, but prior to inclusion of any such add-backs), minus (d)  the following to the extent included in the determination of Consolidated Net Income for such period, without duplication:  (i) non-cash credits, income or gains, including non-cash gains from foreign exchange translation adjustments or Swap Agreements during such period, (ii) any extraordinary or unusual income or gains (including amounts received on early terminations of Swap Agreements), and (iii) any federal, state, local and foreign income tax credits , plus (d) other adjustments to Consolidated EBITDA reasonably acceptable to the Administrative Agent .  “Consolidated EBITDA” shall not include income (or loss) attributable to non-controlling interests in Restricted Subsidiaries that are not Subsidiary Guarantors, but shall include income (or loss) attributable to non-controlling interests in Restricted Subsidiaries that are Subsidiary Guarantors.  In addition, to the extent that for any period the portion of Consolidated EBITDA attributable to Material Restricted Subsidiaries that are Domestic Subsidiaries but that are not Subsidiary Guarantors exceeds 10% of Consolidated EBITDA (such amount in excess of 10% of Consolidated EBITDA, the “ Excess EBITDA ”), then such Excess EBITDA shall be excluded from the calculation of Consolidated EBITDA.

 

Notwithstanding anything to the contrary herein, it is agreed that for the purpose of calculating the Total Net Leverage Ratio and the Interest Coverage Ratio for any period that includes the fiscal quarters ended September 30, 2016, June 30, 2016, March 31, 2016 or December 31, 2015, (i) Consolidated EBITDA for the fiscal quarter ended September 30, 2016 shall be deemed to be $112,000,000,  (ii) Consolidated EBITDA for the fiscal quarter ended June 30, 2016 shall be deemed to be $118,000,000, (iii) Consolidated EBITDA for the fiscal quarter ended March 31, 2016 shall be deemed to be $128,000,000 and (iv) Consolidated EBITDA for the fiscal quarter ended December 31, 2015 shall be deemed to be $115,000,000, in each case, as adjusted on a Pro Forma Basis, as applicable.

 

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“ Consolidated Funded Indebtedness ” means, as of any date of determination with respect to the Borrower and its Restricted Subsidiaries on a consolidated basis, without duplication, the sum of:  (a) the outstanding principal amount of all obligations for borrowed money, whether current or long-term (including the Obligations) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments or upon which interest payments are customarily made; (b) all obligations arising under letters of credit (including standby and commercial but excluding letters of credit to the extent such letters of credit have been cash collateralized) and bankers’ acceptances, but only to the extent consisting of unpaid reimbursement obligations in respect of drawn amounts under letters of credit or bankers’ acceptance facilities; (c) all attributable indebtedness under Capital Leases, synthetic leases, account receivables securitization programs ( including excluding any Permitted Receivables Financings), off-balance sheet loans or similar off-balance sheet financing products; (d) all obligations under conditional sale or other title retention agreements relating to assets purchased (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business); (e) all obligations issued or assumed as the deferred purchase price of assets or services purchased (other than contingent earn-out payments and other contingent deferred payments to the extent not fixed and payable, and trade debt incurred in the ordinary course of business and due within six (6) months of the incurrence thereof) which would appear as liabilities on a balance sheet; (f) all preferred Equity Interests issued and which by the terms thereof could be (at the request of the holders thereof or otherwise) subject to mandatory sinking fund payments, redemption or other acceleration; (g) all Guarantees with respect to outstanding Indebtedness of the type specified in clauses (a) through (f) above of another Person; (h) all Indebtedness of the type specified in clauses (a) through (f) above of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, assets owned or acquired by the Borrower or a Restricted Subsidiary, whether or not the obligations secured thereby have been assumed; and (i) all Indebtedness of the types referred to in clauses (a) through (h) above of any partnership or joint venture (other than a joint venture that is itself a corporation, limited liability company or similar limited liability entity organized under the Laws of a jurisdiction other than the United States or a state thereof) in which the Borrower or any of its Restricted Subsidiaries is a general partner or joint venturer, except to the extent that Indebtedness is expressly made non-recourse to such Person.  For the avoidance of doubt, Consolidated Funded Indebtedness shall exclude (i)  Hybrid Equity Securities issued by the Borrower or any Subsidiary and (ii) the aggregate outstanding amount of any Permitted Receivables Financing .  For purposes hereof, the definition of “Consolidated Funded Indebtedness” shall exclude any Indebtedness under the Contingent Subordinated Obligation until such Indebtedness is reflected as a liability or contingent obligation on the consolidated balance sheet of the Borrower.

 

“ Consolidated Interest Expense ” means, for any period, for the Borrower and its Restricted Subsidiaries on a consolidated basis without duplication, the following (in each case as determined in accordance with GAAP):  (a) all interest in respect of Indebtedness (including the interest component of synthetic leases, account receivables securitization programs, off-balance sheet loans or similar off-balance sheet financing products) accrued during such period (whether or not actually paid during such period) and costs of surety bonds, in each case determined after giving effect to any net payments made or received under interest rate Swap Agreements minus

 

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(b) the sum of (i) all interest income during such period and (ii) to the extent included in clause (a) above, the amount of write-offs or amortization of deferred financing fees, commissions, fees and expenses, and amounts paid (or plus any amounts received) on early terminations of Swap Agreements.

 

“ Consolidated Net Income ” means, for any period, net income after taxes for such period of the Borrower and its Restricted Subsidiaries on a consolidated basis, as determined in accordance with GAAP.  Except as otherwise provided herein, the applicable period shall be for the four (4) consecutive quarters ending most recently ended as of the date of computation.

 

“ Consolidated Net Tangible Assets ” means, as of any date, Consolidated Total Assets, excluding goodwill, patents, trademarks, trade names, organization expense, unamortized debt discount and expense, capitalized or deferred research and development costs, deferred marketing expenses, and other intangible assets.

 

“ 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.

 

“ Consolidated Total Assets ” means, as of any date, the total assets of the Borrower and its Restricted Subsidiaries on a consolidated basis , calculated on a Pro Forma Basis .

 

“ Contingent Subordinated Obligation ” means the contingent subordinated obligation described on Schedule 6.01 .

 

“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “ Controlling ” and “ Controlled ” have meanings correlative thereto.

 

“Co-Syndication Agent” means each of JPMorgan Chase Bank, N.A. and CoBank, ACB, each in its capacity as co-syndication agent for the Lenders hereunder, and its successors and assigns in such capacity.

 

“Credit Bid Provisions” has the meaning assigned to such term in Article VIII.

 

“ Credit Party ” means the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender.

 

“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States, any applicable State thereof or other applicable jurisdictions from time to time in effect.

 

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“ Default ” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

 

“ Defaulting Lender ” means , subject to the last paragraph of Section 2.21, any Lender , as reasonably determined by the Administrative Agent, that has (a) failed to fund any portion of its Loans or participations in Letters of Credit or Swingline Loans within three Business Days of the date required to be funded by it hereunder unless such Lender’s failure to fund is based on such Lender’s good faith determination that the conditions precedent to each funding under this Agreement have not been satisfied and such Lender has notified the Administrative Agent in writing of such determination (each of which conditions precedent shall be specifically identified in such writing), (b) notified the Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or any Lender in writing that it does not intend or expect to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend or expect to comply with its funding obligations (i) under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or (ii) under other agreements in which it is obligated to extend credit unless, in the case of this clause (ii), such obligation is subject to a good faith dispute, (c) failed, within three Business Days after request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans unless subject to a good faith dispute based on such Lender’s good faith determination that the conditions precedent to funding under this Agreement have not been satisfied and such Lender has notified the Administrative Agent in writing of such determination, provided that any such Lender shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Administrative Agent, (d) otherwise failed to pay over to the Administrative Agent, any Issuing Bank or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute, or (e) has, or has a direct or indirect parent company that has, become the subject of a Bankruptcy Event or (f) become the subject of a Bail-In Action .

 

“ Departing Lender ” has the meaning set forth in Section 2.20(a).

 

“ Designated Jurisdiction ” means any country or territory to the extent that such country or territory itself is targeted by any Sanction.

 

“ dollars ” or “ $ ” refers to lawful money of the United States of America.

 

“ Domestic Subsidiary ” means any Subsidiary that is incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia.

 

“ ECP ” means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC.

 

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“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

“ Effective Date ” means March 26, 2015, the date on which the conditions specified in Section 4.01  are were satisfied (or waived in accordance with Section 9.02).

 

“ Electronic Signature ” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.

 

“ Electronic System ” means any electronic system, including e-mail, e-fax, Intralinks®, ClearPar®, FpML messaging, and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other security system.

 

“ Environmental Laws ” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, or the management, release or threatened release of any Hazardous Material.

 

“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

“ Equity Interests ” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other

 

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interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

 

“ Equity Issuance ” means any issuance by the Borrower or any of its Restricted Subsidiaries to any Person which is not the Borrower or a Subsidiary of (a) shares of its Equity Interests or Hybrid Equity Securities (excluding issuances of Equity Interests to directors, officers, consultants or other employees under any equity award program, employee stock purchase plan or other employee benefit plan in existence from time to time), (b) any shares of its Equity Interests pursuant to the exercise of options (excluding for purposes hereof the issuance of Equity Interests pursuant to the exercise of stock options held by directors, officers, consultants or other employees or former employees of the Loan Parties or personal representatives or heirs or beneficiaries of any of them) or warrants or (c) any shares of its Equity Interests or Hybrid Equity Securities pursuant to the conversion of any debt securities to equity.

 

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

 

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

“ ERISA Event ” means (a) the occurrence of any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the notice is waived or otherwise not required); (b) the occurrence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or other governmental entity of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

 

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

“ Event of Default ” has the meaning assigned to such term in Article VII.

 

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“ Excluded Property ” means the collective reference to (a) the Equity Interests in, and any assets of, any Unrestricted Subsidiary, (b)  any Real Property all real property of the Borrower and the Guarantors below an individual net book value of $10,000,000 , (c) all capital stock of any direct or indirect subsidiary of Dean Holding Company which owns one or more “Principal Properties”, as defined in the indenture pursuant to which the Senior 2017 Notes were issued, (d) all Equity Interests in excess of the Applicable Pledge Percentage in any Foreign Subsidiary that is a CFC and a Pledge Subsidiary, (e) the Equity Interests owned by any Receivables Financing SPC, (f) any Equity Interests in any Foreign Subsidiary which is not a Pledge Subsidiary, (g) any leased Real Property real property interest or other leasehold interest, (h) any corporate aircraft, (i) any property the pledge of which would require consent, approval or authorization from any Governmental Authority (to the extent such consent, approval or authorization has not been obtained or waived), (j) motor vehicles or other assets the attachment or perfection of a lien thereon is subject to a certificate of title statute, (k) any property which, subject to the terms of Section 6.09, is subject to a Lien of the type described in Section 6.02(e) pursuant to documents which prohibit such Loan Party from granting any other Liens in such property, (l) unless requested by the Administrative Agent or the Required Lenders, any intellectual property rights for which a perfected Lien thereon is not effected either by filing of a Uniform Commercial Code financing statement or by appropriate evidence of such Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, and (m) any General Intangible (as defined in the UCC), permit, lease, license, contract or other Instrument (as defined in the UCC) of such Loan Party or Equity Interest in any Person that is not wholly-owned by one or more of the Loan Parties to the extent that the grant of a security interest in such General Intangible, permit, lease, license, contract or other Instrument or Equity Interest in the manner contemplated by the Collateral Documents, under the terms thereof, under any agreement applicable thereto, or under applicable Law, is prohibited and would result in the termination thereof or give the other parties thereto the right to terminate, accelerate or otherwise alter such Loan Party’s rights, titles and interests thereunder (including upon the giving of notice or the lapse of time or both); provided that (i) any such limitation described in this clause (m) on the security interests granted hereunder shall only apply to the extent that any such prohibition could not be rendered ineffective pursuant to the UCC or any other applicable Law or principles of equity and (ii) in the event of the termination or elimination of any such prohibition or the requirement for any consent contained in any applicable Law, General Intangible, permit, lease, license, contract or other Instrument, to the extent sufficient to permit any such item to become Collateral, or upon the granting of any such consent, or waiving or terminating any requirement for such consent, a security interest in such General Intangible, permit, lease, license, contract or other Instrument shall be automatically and simultaneously granted hereunder and shall be included as Collateral.  In addition, (1) other assets may be designated as “Excluded Property” if the Administrative Agent determines that the cost of obtaining a perfected security interest therein is excessive in relation to the value afforded thereby and (2) upon the sale, conveyance or contribution thereof to a Receivables Financing SPC in connection with a Permitted Receivables Financing, the Accounts (as defined in the Security Agreement) and related Transferred Assets shall be automatically released from the security interests created pursuant to the Collateral Documents (and the Administrative Agent shall, at the expense of the Borrower, execute such documentation reasonably necessary to evidence such release).

 

“ Excluded Disposition ” means the sale, transfer, or other disposition of (a) any motor vehicles or other equipment no longer used or useful in the business of the Borrower or any

 

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of its Restricted Subsidiaries, (b) any inventory, materials and other assets in the ordinary course of business and on ordinary business terms, and (c) Cash Equivalents described in clause (a) of the definition thereof.

 

“ Excluded Swap Obligation ” means, with respect to any Loan Party, any Specified Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Specified Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (a) by virtue of such Loan Party’s failure for any reason to constitute an ECP at the time the guarantee of such Loan Party or the grant of such security interest becomes or would become effective with respect to such Specified Swap Obligation or (b) in the case of a Specified Swap Obligation subject to a clearing requirement pursuant to Section 2(h) of the Commodity Exchange Act (or any successor provision thereto), because such Loan Party is a “financial entity,” as defined in Section 2(h)(7)(C)(i) of the Commodity Exchange Act (or any successor provision thereto), at the time the guarantee of such Loan Party becomes or would become effective with respect to such related Specified Swap Obligation.  If a Specified Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Specified Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal.

 

“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.20) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f) and (d) any U.S. Federal withholding Taxes imposed under FATCA.

 

“ Existing Credit Agreement ” means that certain Credit Agreement, dated as of July 2, 2013 (as amended from time to time), among the Borrower, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.

 

“ Existing Letters of Credit ” is defined has the meaning assigned to such term in Section 2.06.

 

“Expansion Event” has the meaning assigned to such term in Section 2.04.

 

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“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code.

 

“ Federal Funds Effective Rate ” means, for any day, the rate per annum equal to the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers , as published on the next succeeding Business Day by the Federal Reserve Bank of New York , or, if such rate is not so published for any day that is a Business Day, on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

 

“ Financial Officer ” means the chief executive officer, chief financial officer, principal accounting officer, treasurer or controller of the Borrower.

 

“First Amendment” means that certain First Amendment to Credit Agreement and Limited Waiver, dated as of November 23, 2015, among the Borrower, the Administrative Agent, the Lenders party thereto and the other parties thereto.

 

“ First Tier Foreign Subsidiary ” means each Foreign Subsidiary with respect to which any one or more of the Borrower and its Domestic Subsidiaries directly owns or Controls more than 50% of such Foreign Subsidiary’s issued and outstanding Equity Interests.

 

“ Flood Certificate ” means a “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency and any successor Governmental Authority performing a similar function.

 

“ Flood Program ” means the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004, in each case as amended from time to time, and any successor statutes.

 

“ Flood Zone ” means areas having special flood hazards as described in the National Flood Insurance Act of 1968, as amended from time to time, and any successor statute.

 

“ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is located and any other Lender that is not a United States person within the meaning of Section 7701(a)(30) of the Code.  For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

“ Foreign Subsidiary ” means any Subsidiary which is not a Domestic Subsidiary.

 

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“ Fronting Exposure ” means, at any time there is a Defaulting Lender, with respect to the Issuing Banks, such Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure other than LC Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof.

 

“ Funding Account ” means the deposit account of the Borrower to which the Administrative Agent is authorized by the Borrower to transfer the proceeds of any Borrowings requested or authorized pursuant to this Agreement.

 

“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied and as in effect from time to time.

 

“ Governmental Authority ” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting regulatory capital rules or standards (including, without limitation, the Basel Committee on Banking Supervision or any successor or similar authority thereto).

 

“ Guarantee ” means, with respect to any Person, without duplication, any obligations of such Person (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any Indebtedness of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting security therefor, (b) to advance or provide funds or other support for the payment or purchase of any such Indebtedness or to maintain working capital, solvency or other balance sheet condition of such other Person (including without limitation keep well agreements, maintenance agreements or similar agreements or arrangements) for the benefit of any holder of Indebtedness of such other Person, (c) to lease or purchase assets, securities or services primarily for the purpose of assuring the holder of such Indebtedness, or (d) to otherwise assure or hold harmless the holder of such Indebtedness against loss in respect thereof.  The amount of any Guarantee hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

 

“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

 

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“ Holders of Secured Obligations ” means the holders of the Secured Obligations from time to time and shall include (i) each Lender and each Issuing Bank in respect of its Loans and LC Exposure respectively, (ii) the Administrative Agent, the Issuing Banks and the Lenders in respect of all other present and future obligations and liabilities of the Borrower and each Loan Party of every type and description arising under or in connection with this Agreement or any other Loan Document, (iii) each Lender and affiliate of such Lender in respect of Swap Agreements and Banking Services Agreements entered into with such Person by the Borrower or any Subsidiary, (iv) each indemnified party under Section 9.03 in respect of the obligations and liabilities of the Borrower to such Person hereunder and under the other Loan Documents, and (v) their respective successors and (in the case of a Lender, permitted) transferees and assigns.

 

“ Hybrid Equity Securities ” means any securities issued by the Borrower, any Subsidiary or a financing vehicle of the Borrower or any Subsidiary that (i) are classified as possessing a minimum of “intermediate equity content” by S&P and Basket C equity credit by Moody’s and (ii) other than solely through the issuance of Equity Interests, (A) require no repayments or prepayments and no redemptions, repurchases, sinking fund payments or defeasement and (B) do not otherwise provide for (1) any obligations thereunder or in connection therewith to become due prior to their scheduled maturity or (2) an ability (with or without the giving of notice, the lapse of time or both) for the holder or holders of any such securities or any trustee or agent on its or their behalf to cause any such obligations to become due, in each case, prior to at least 91 days after the Maturity Date.

 

“ Increasing Lender ” has the meaning assigned to such term in Section 2.04.

 

“ Indebtedness ” means, as of any date of determination with respect to any Person, without duplication:  (a) the outstanding principal amount of all obligations for borrowed money, whether current or long-term and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments or upon which interest payments are customarily made; (b) the maximum amount of all letters of credit (including standby and commercial) and bankers’ acceptances, including unpaid reimbursement obligations in respect of drawn amounts under letters of credit or bankers’ acceptance facilities; (c) all attributable indebtedness under Capital Leases, synthetic leases, account receivables securitization programs (including Permitted Receivables Financings), off-balance sheet loans or similar off-balance sheet financing products; (d) all obligations of such Person under conditional sale or other title retention agreements relating to assets purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business); (e) all obligations issued or assumed as the deferred purchase price of assets or services purchased (other than contingent earn-out payments and other contingent deferred payments to the extent not fixed and payable, and trade debt incurred in the ordinary course of business and due within six (6) months of the incurrence thereof) which would appear as liabilities on a balance sheet; (f) all preferred Equity Interests issued by such Person and which by the terms thereof could be (at the request of the holders thereof or otherwise) subject to mandatory sinking fund payments, redemption or other acceleration; (g) all obligations of such Person under take-or-pay or similar arrangements; (h) all net obligations of such Person under Swap Agreements; (i) all Guarantees with respect to outstanding Indebtedness of the type specified in clauses (a) through (h) above of another person; (j) all Indebtedness of the type specified in clauses (a) through (i) above of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to

 

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be secured by) any Lien on, or payable out of the proceeds of production from, assets owned or acquired by such Person, whether or not the obligations secured thereby have been assumed; and (k) the Indebtedness of any partnership or unincorporated joint venture in which such Person is a general partner or a joint venture, except to the extent that Indebtedness is expressly made non-recourse to such Person.

 

“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

 

“ Ineligible Institution ” means (a) a natural person, (b) a Defaulting Lender, (c) the Borrower, any of its Subsidiaries or any of its Affiliates, or (d) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof.

 

“ Intercreditor Agreement ” means that certain Intercreditor Agreement dated as of the Effective Date (including any and all supplements thereto) and executed between the Administrative Agent and Coöperatieve Centrale Raiffeisen — Boerenleenbank, B.A. “Rabobank,” New York Branch, a national banking association, and as amended, restated, supplemented or otherwise modified from time to time.

 

“ Interest Coverage Ratio ” means, the ratio, determined as of the end of each of fiscal quarter of the Borrower for the most-recently ended four fiscal quarters, of (a) Consolidated EBITDA to (b) Consolidated Interest Expense paid or payable in cash, all calculated for the Borrower and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP ; provided that Consolidated EBITDA and Consolidated Interest Expense for such four fiscal quarter period or other applicable period shall be determined on a Pro Forma Basis .

 

“ Interest Election Request ” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.08 in the form attached hereto as Exhibit D-2 ; or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

 

“ Interest Payment Date ” means (a) with respect to any ABR Loan (other than a Swingline Loan), the last day of each March, June, September and December and the Maturity Date, (b) with respect to any LIBOR Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a LIBOR Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and the Maturity Date and (c) with respect to any Swingline Loan, the day that such Loan is required to be repaid and the Maturity Date.

 

“ Interest Period ” means with respect to any LIBOR Borrowing, the period commencing on the date such LIBOR Loan is disbursed, converted to or continued and ending on the date that is one, two, three or six months thereafter, as the Borrower may elect; provided , that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a LIBOR Borrowing only,

 

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such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period pertaining to a LIBOR Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (iii) no Interest Period shall extend beyond the Maturity Date.

 

“ IRS ” means the United States Internal Revenue Service.

 

“ Issuing Bank ” means each of Bank of America, N.A. and JPMorgan Chase Bank, National Association, each in its individual capacity as an issuer of Letters of Credit hereunder and its successors in such capacity as provided in Section 2.06(i) and any Lender appointed by the Borrower (with the consent of such Lender and the Administrative Agent) as such by notice to the Lenders as a replacement for any Issuing Bank who is at the time of such appointment a Defaulting Lender.  Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

 

“ Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case having the force of law.

 

“ LC Collateral Account ” has the meaning assigned to such term in Section 2.06(j).

 

“ LC Commitment ” means, with respect to each Issuing Bank, the commitment, if any, of such Issuing Bank to issue Letters of Credit, expressed as an amount representing the maximum possible aggregate amount of such Issuing Bank’s LC Exposure hereunder, as such commitment may be reduced, terminated or increased from time to time pursuant to the provisions of this Agreement.  The initial amount of each Issuing Bank’s LC Commitment is set forth on Schedule 1.01 , or in the Assignment and Assumption pursuant to which such Issuing Bank shall have assumed its LC Commitment, as applicable.

 

“ LC Disbursement ” means a payment made by an Issuing Bank pursuant to a Letter of Credit.

 

“ LC Exposure ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate amount of all unreimbursed LC Disbursements, including all Letter of Credit Borrowings.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.05.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

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“ Lender Parent ” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.

 

“ Lenders ” means the Persons listed on the Schedule 1.01  and any other Person that shall have become a Lender hereunder pursuant to Section 2.04 or pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.

 

“ Letter of Credit ” means any letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder and shall include the Existing Letters of Credit.  A Letter of Credit may be a commercial letter of credit or a standby letter of credit.

 

“ LIBO Rate ” means:

 

i.                                           with respect to any LIBOR Borrowing for any applicable Interest Period, the London interbank offered rate or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and if the LIBO Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement; and

 

ii.                                        for any interest calculation with respect to the Alternate Base Rate on any date, the rate per annum equal to the LIBO Rate, at or about 11:00 a.m., London time determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;

 

provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided , further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent ; provided, further, that in no event shall the LIBO Rate be less than 0.00% .

 

“ LIBOR ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the LIBO Rate.

 

“ Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, Capital Lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

 

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“ Liquidity ” means, as of any time, the sum of (a) the Available Revolving Commitment at such time, but only to the extent available to be drawn as Loans under this Agreement in compliance (including compliance on a Pro Forma Basis) with Section 6.11 and the other provisions of this Agreement, plus (b) amounts available to be drawn under any Permitted Receivables Financing in compliance (including compliance on a Pro Forma Basis) with Section 6.11 and the other provisions of this Agreement, plus (c) the 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, to the extent held by the Borrower and the Restricted Subsidiaries on a consolidated basis as of such time.

 

“ Loan Documents ” means this Agreement, any promissory notes issued pursuant to this Agreement, any Letter of Credit applications, the Collateral Documents, the Subsidiary Guaranty, the Intercreditor Agreement and all other agreements, instruments, documents and certificates identified in Section 4.01 executed and delivered to, or in favor of, the Administrative Agent or any Lenders and including all other pledges, powers of attorney, consents, assignments, contracts, notices, letter of credit agreements and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Loan Party, or any employee of any Loan Party, and delivered to the Administrative Agent or any Lender in connection with this Agreement or the transactions contemplated hereby.  Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.

 

“ Loan Parties ” means the Borrower and the Subsidiary Guarantors.

 

“ Loans ” means the loans and advances made by the Lenders pursuant to this Agreement, including Swingline Loans . and any loans made under any Term Loan Facility (it being understood and agreed that, as provided in Section 2.04, certain terms applicable to the loans made under any Term Loan Facility shall be more particularly set forth in the applicable Term Loan Amendment).

 

“ Material Adverse Effect ” means (A) a material adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent) or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole; (B) a material impairment of the rights and remedies of the Administrative Agent, any Issuing Bank or any Lender under any Loan Document, or of the ability of the Borrower or any Subsidiary Guarantor to perform its obligations under any Loan Document to which it is a party; or (C) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower or any Subsidiary Guarantor of any Loan Document to which it is a party.

 

“ Material Indebtedness ” means (i) the Contingent Subordinated Obligation and (ii) Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and its Restricted Subsidiaries in an aggregate principal amount exceeding $50,000,000.  For purposes of determining Material Indebtedness, the “obligations” of the Borrower or any Restricted Subsidiary in respect of any

 

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Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.

 

“ Material Restricted Subsidiary ” means (i) each Restricted Subsidiary that is a borrower or guarantor of any Material Indebtedness or a guarantor of any Indebtedness under the Senior Notes, (ii) any other Restricted Subsidiary (other than a Receivables Financing SPC) with assets of $500,000 or more and (iii) any other Restricted Subsidiary that owns any material domestic intellectual property; provided , however , if the aggregate assets of Restricted Subsidiaries (other than Receivables Financing SPCs) that are not Material Restricted Subsidiaries at any time exceeds $10,000,000, the Borrower shall designate one or more of such Restricted Subsidiaries as Material Restricted Subsidiaries such that, after giving effect to such designations, the aggregate assets of Restricted Subsidiaries (other than Receivables Financing SPCs) that are not Material Restricted Subsidiaries shall be less than $10,000,000.

 

“ Maturity Date ” means March 26, 2020 January 4, 2022  or any earlier date on which the Commitments are reduced to zero or otherwise terminated pursuant to the terms hereof.

 

“ Moody’s ” means Moody’s Investors Service, Inc.

 

“ Mortgage ” shall mean an agreement, including a fee and/or leasehold mortgage, deed of trust or any other document, creating and evidencing a first priority Lien (subject to Permitted Liens) on an owned or leased Mortgaged Property, as applicable, which shall be substantially in the form of Exhibit H or other form reasonably satisfactory to the Administrative Agent, with such schedules and including such provisions as shall be necessary to conform such document to applicable local or foreign law or as shall be customary under applicable local or foreign Law; provided that so long as the Senior 2017 Notes are outstanding, any Mortgage on any “Principal Property”, as defined in the indenture pursuant to which the Senior 2017 Notes were issued, will only secure an aggregate principal amount of Indebtedness such as will not trigger the equal and ratable sharing provision in Section 3.5 of such indenture.

 

“ Mortgaged Property ” shall mean (a) each Real Property identified on Schedule 1.01(b) hereto and (b) each parcel or related parcels of Real Property, if any, which shall be subject to a Mortgage delivered after the Effective Date pursuant to Section 5.11.

 

“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

“Multiple Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and at least one Person other than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of which the Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

 

“ Net Cash Proceeds ” means, with respect to any Asset Sale, (a) the cash proceeds received in respect of such Asset Sale including (i) any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but

 

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excluding any interest payments), but only as and when received, net of (b) the sum of (i) all fees and out-of-pocket expenses paid to third parties (other than Affiliates) in connection with such Asset Sale, (ii) the amount of all payments required to be made as a result of such Asset Sale to repay Indebtedness (other than Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such Asset Sale and (iii) the amount of all taxes paid (or reasonably estimated to be payable) and the amount of any reserves established to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such Asset Sale occurred or the next succeeding year and that are directly attributable to such Asset Sale (as determined reasonably and in good faith by a Financial Officer).

 

“ Non-Extension Notice Date ” has the meaning assigned to such term in Section 2.06(b)(viii).

 

“ Obligations ” means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations of the Loan Parties to the Lenders or to any Lender, the Administrative Agent, the Issuing Banks or to any Issuing Bank or any indemnified party arising under the Loan Documents.

 

“ OFAC ” means the Office of Foreign Assets Control of the United States Department of the Treasury.

 

“ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19 or 2.20).

 

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“ Participant ” has the meaning set forth in Section 9.04.

 

“ Participant Register ” has the meaning assigned to such term in Section 9.04(c).

 

“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

“ Permitted Acquisition ” means an acquisition by the Borrower or any of its Restricted Subsidiaries which (i) is an acquisition of a Person or assets of a Person in a line of business permitted by Section 6.03(b), (ii) both immediately before and immediately after giving effect to such acquisition, no Default exists, (iii) after giving effect to such acquisition on a Pro Forma Basis, (x)  the Borrower and its Restricted Subsidiaries shall be in compliance with a Total Capitalization Ratio of no more than 0.75 to 1.00 and (y) the Borrower and its Restricted Subsidiaries are in compliance with each of the financial covenants set forth in Section 6.11, (iv) is approved by the board of directors (or similar governing body) or the requisite shareholders (or other equityholders) of the Person being acquired or Person transferring the assets being acquired, (v) if an acquisition of Equity Interests of a Person, greater than fifty percent (50%) of all issued and outstanding Equity Interests of such Person is acquired, (vi) after giving effect to such acquisition, the Liquidity of the Borrower and its Restricted Subsidiaries shall not be less than $200,000,000 , and (vii)  unless otherwise agreed to by the Administrative Agent, each Person acquired shall become a Restricted Subsidiary , unless such Person is designated as an Unrestricted Subsidiary, in compliance with this Agreement .

 

“ Permitted Encumbrances ” means:

 

(a)                                  Liens imposed by law for Taxes that are not yet delinquent or are being contested in compliance with Section 5.04;

 

(b)                                  carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04;

 

(c)                                   pledges and deposits under workers’ compensation, unemployment insurance and other social security laws or regulations;

 

(d)                                  deposits or pledges to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

 

(e)                                   judgment Liens in respect of judgments (or appeal or surety bond relating to such judgments) that do not constitute an Event of Default under clause (k) of Article VII;

 

(f)                                    easements, zoning restrictions, licenses, title restrictions, rights-of-way and similar encumbrances on Real Property real property imposed by law or incurred or granted by the Borrower or any Subsidiary in the ordinary course of business that do not secure any material monetary obligations and do not materially detract from the value of the affected

 

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property or materially interfere with the ordinary conduct of business of the Borrower or any Subsidiary; and

 

(g)                                   minor imperfections in title that do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of Borrower or any Subsidiary;

 

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

 

“ Permitted Liens ” means, at any time, Liens in respect of property of the Borrower or any Restricted Subsidiary permitted to exist at such time pursuant to the terms of Section 6.02.

 

“ Permitted Receivables Financing ” means any one or more receivables financings in which (a) any Loan Party or any Restricted Subsidiary (i) sells (as determined in accordance with GAAP) any accounts (as defined in the Uniform Commercial Code as in effect in the State of New York), payment intangibles (as defined in the Uniform Commercial Code as in effect in the State of New York), notes receivable, rights to future lease payments or residuals (collectively, together with certain property relating thereto and the right to collections thereon, being the “ Transferred Assets ”) to any Person that is not a Subsidiary or Affiliate of the Borrower (with respect to any such transaction, the “ Receivables  Financier ”), (ii) borrows from such Receivables Financier and secures such borrowings by a pledge of such Transferred Assets and/or (iii) otherwise finances its acquisition of such Transferred Assets and, in connection therewith, conveys an interest in such Transferred Assets to the Receivables Financier or (b) any Loan Party or any Restricted Subsidiary sells, conveys or otherwise contributes any Transferred Assets to a Receivables Financing SPC, which Receivables Financing SPC then (i) sells (as determined in accordance with GAAP) any such Transferred Assets (or an interest therein) to any Receivables Financier, (ii) borrows from such Receivables Financier and secures such borrowings by a pledge of such Transferred Assets or (iii) otherwise finances its acquisition of such Transferred Assets and, in connection therewith, conveys an interest in such Transferred Assets to the Receivables Financier; provided that (A) the aggregate Attributed Principal Amount for all such financings shall not at any time exceed $625,000,000 and (B) such financings shall not involve any recourse to any Loan Party or any Restricted Subsidiary for any reason other than (x) repurchases of non-eligible assets or (y) indemnifications for losses other than credit losses related to the Transferred Assets.

 

“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

“ Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

“ Pledge Subsidiary ” means (i) each Domestic Subsidiary which is a Restricted Subsidiary, (ii) each First Tier Foreign Subsidiary which is a Material Restricted Subsidiary and

 

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(iii) each Domestic Subsidiary which is a Receivables Financing SPC, but, in the case of the foregoing clauses (i) and (iii), excluding any Equity Interests owned by a Receivables Financing SPC or, so long as the Senior 2017 Notes are outstanding, any direct or indirect subsidiary of Dean Holding Company which owns one or more “Principal Properties”, as defined in the indenture pursuant to which the Senior 2017 Notes were issued.

 

“ Premises ” shall have the meaning assigned thereto in the applicable Mortgage.

 

“Prior Credit Agreement” means that certain Credit Agreement, dated as of July 2, 2013 (as amended from time to time), among the Borrower, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.

 

“ Pro Forma Basis ” means, with respect to any transaction Specified Transaction , that for purposes of calculating the financial covenants set forth in Section 6.11, such transaction shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of the first financial statements following the Second Amendment Effective Date pursuant to Section 5.01, as of the first day of the most recent four fiscal quarter period ending on the last day of the most recent quarter for which financial statements have been delivered to the Administrative Agent prior to the Second Amendment Effective Date).  In connection with the foregoing, (a) with respect to the incurrence of any Indebtedness, such Indebtedness shall be deemed to have been incurred as of the first day of the applicable period, (b) with respect to the retirement, repayment or refinancing of any Indebtedness, such Indebtedness shall be deemed to have been retired, repaid or refinanced, as the case may be, as of the first day of the applicable period, (c) with respect to any Asset Sale or Recovery Event, (i) income statement and cash flow statement items (whether positive or negative) attributable to the property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction and (ii) Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of the applicable period, and ( c d ) with respect to any Permitted Acquisition, (i) income statement and cash flow statement items attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement and cash flow statement items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and (B) such items are supported by financial statements or other information reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed by any Loan Party or any Subsidiary (including the Person or property acquired) in connection with such transaction and any Indebtedness of the Person or property acquired which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of the first day of the applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination.

 

“ Public Lender ” has the meaning assigned to such term in Section 5.01.

 

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“ Real Property ” shall mean, collectively, all right, title and interest in and to any and all parcels of or interests in real property owned or leased by any person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof, and proceeds of the same.

 

“ Receivables Financier ” shall have the meaning set forth in the definition of Permitted Receivables Financing.

 

“ Receivables Financing SPC ” means, in respect of any Permitted Receivables Financing, any Subsidiary or Affiliate of the Borrower to which any Restricted Subsidiary sells, contributes or otherwise conveys Transferred Assets in connection with such Permitted Receivables Financing and each general partner of any such Subsidiary or Affiliate.

 

“ Recipient ” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.

 

“ Recovery Event ” means the receipt by the Borrower or any of its Restricted Subsidiaries of any cash insurance proceeds or condemnation award payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of their respective property or assets.

 

“ Register ” has the meaning set forth in Section 9.04.

 

“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees, administrators, managers, representatives, partners, agents and advisors of such Person and such Person’s Affiliates.

 

“ Replacement Lender ” has the meaning set forth in Section 2.20(a).

 

“ Required Lenders ” means, at any time, Lenders having Revolving Exposures and unused Commitments representing more than 50% of the sum of the total Revolving Exposures and unused Commitments at such time, subject to Section 2.21.

 

“ Requirement of Law ” means, as to any Person, the Certificate of Incorporation and By Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

“ Resignation Effective Date ” has the meaning assigned to such term in Article VIII.

 

“ Responsible Officer ” means the chief executive officer, president, vice president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party, and, solely for purposes of the delivery of incumbency and secretary certificates, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other

 

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officer of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent .  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests and Hybrid Equity Securities in (or of) the Borrower or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests and Hybrid Equity Securities in (or of) the Borrower or any Restricted Subsidiary or any option, warrant or other right to acquire any such Equity Interests and Hybrid Equity Securities in (or of) the Borrower or any Restricted Subsidiary.

 

“ Restricted Subsidiaries ” means the Subsidiaries of the Borrower other than the Unrestricted Subsidiaries.

 

“ Revolving Exposure ” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline Exposure at such time.

 

“ Revolving Loan ” means a Loan made pursuant to Section 2.01.

 

“ S&P ” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business.

 

“ Sanction(s) ” means any international economic sanction or trade embargo imposed, administered or enforced by OFAC, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

 

“ SEC ” means the United States Securities and Exchange Commission.

 

“Second Amendment” means that certain Second Amendment to Credit Agreement, dated as of the Second Amendment Effective Date, among the Loan Parties, the Administrative Agent, the Consenting Lenders (as defined therein) and the other parties thereto.

 

“Second Amendment Effective Date” means January 4, 2017.

 

“ Secured Obligations ” means all Obligations, together with all Swap Obligations and Banking Services Obligations owing to one or more Lenders or their respective Affiliates (or a Person that was a Lender or Affiliate of a Lender at the time the Swap Obligation or Banking Services Obligation was entered into); provided that the definition of “Secured Obligations” shall not create any guarantee by any Loan Party of (or grant of security interest by any Loan Party to support, as applicable) any Excluded Swap Obligations of such Loan Party for purposes of determining any obligations of any Loan Party.

 

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