Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 170 804K
Business-Combination Transaction
2: EX-1.1 Placement Agreement 26 97K
3: EX-2.1 Articles of Merger 6 33K
4: EX-3.1.A Certificate of Incorporation 17 70K
5: EX-3.1.B Certificate of Amendment 2 17K
14: EX-3.10 Restated By-Laws 20 80K
6: EX-3.2.A Certificate of Incorporation 2 19K
7: EX-3.2.B Certificate of Correction 1 16K
8: EX-3.4 Articles of Incorporation 3 20K
9: EX-3.5 Certificate of Incorporation 3 19K
10: EX-3.6 Amended and Restated By-Laws 22 88K
11: EX-3.7 Amended and Restated By-Laws 20 84K
12: EX-3.8 Restated By-Laws 23 94K
13: EX-3.9 Restated By-Laws 23 94K
15: EX-4.1.A Indenture 106 411K
16: EX-4.1.B Specimen Certificate 12 47K
17: EX-4.2 Registration Rights Agreement 21 82K
18: EX-4.3.A Credit Agreement 73 278K
19: EX-4.3.B First Amendment to Credit Agreement 15 59K
20: EX-4.3.C Second Amendment to Credit Agreement 8 41K
21: EX-4.3.D Third Amendment to Credit Agreement 5 28K
22: EX-4.3.E Fourth Amendment to Credit Agreement 27 102K
23: EX-4.3.F Fifth Amendment to Credit Agreement 13 55K
24: EX-4.3.G Guaranty Agreement 7 39K
25: EX-5.1 Opinion of Blackwell Sanders Peper Martin LLP 2 20K
26: EX-10.1 1999 Equity Incentive Plan 20 77K
36: EX-10.10 Stock Purchase Agreement 47 184K
37: EX-10.11 Market Hog Contract Grower Agreement 9 44K
27: EX-10.2 Long-Term Incentive Plan 9 32K
28: EX-10.3 Executive Level Severance Plan 13 54K
29: EX-10.4 Vice President Level Severance Plan 13 54K
30: EX-10.5 Special Executive Retirement Plan 16 69K
31: EX-10.6.A Premium Standard Farms Deferred Compensation Plan 17 71K
32: EX-10.6.B Amendment No.1 Psf Deferred Compensation Plan 2 17K
33: EX-10.7 Consulting Agreememt 8 36K
34: EX-10.8 Services Agreement 10 47K
35: EX-10.9 Consulting Agreement 4 22K
38: EX-12.1 Statement Re Computation of Ratio of Earnings 1 17K
39: EX-21.1 Subsidiaries 1 14K
40: EX-23.2 Consent of Arthur Andersen LLP 1 14K
41: EX-23.3 Consent of Kpmg LLP 1 14K
42: EX-25.1 Form T-1 29 98K
43: EX-25.2 Statement of Eligibility and Qualification on T-1 30 100K
44: EX-99.1 Form of Letter 2 22K
45: EX-99.2 Form of Letter of Transmittal 9 42K
46: EX-99.3 Form of Notice of Guaranteed Delivery 4 24K
47: EX-99.4 Form of Instructions 2 20K
48: EX-99.5 Form of Letter to Clients 2± 16K
49: EX-99.6 Guidelines 4± 23K
EX-4.3.E — Fourth Amendment to Credit Agreement
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EXHIBIT 4.3(e)
FOURTH AMENDMENT TO CREDIT AGREEMENT
BETWEEN U.S. BANCORP AG CREDIT, INC., AS AGENT, THE OTHER LENDERS
AND
PREMIUM STANDARD FARMS, INC.
DATED AUGUST 27, 1997
This Fourth Amendment to Credit Agreement (this "AMENDMENT") is made as
of the 21st day of August, 2000 among PREMIUM STANDARD FARMS, INC., a Delaware
corporation and a wholly owned subsidiary of the Guarantor ("PREMIUM"), CGC
ASSET ACQUISITION CORP., a Delaware corporation and a wholly owned subsidiary of
Premium ("ASSET SUB A"), THE LUNDY PACKING COMPANY, a North Carolina
corporation, successor by merger to PSF ACQUISITION CORP. and a wholly-owned
subsidiary of Premium ("ASSET SUB B"), the following corporations and limited
liability company, TOMAHAWK FARMS, INC., a North Carolina corporation, BONELESS
HAMS, INC., a North Carolina corporation, LUNDY INTERNATIONAL, INC., a North
Carolina corporation, DOGWOOD FARMS, INC., a North Carolina corporation, and
DOGWOOD FARMS II, LLC, a North Carolina limited liability company, all to be
wholly owned subsidiaries of Asset Sub B (collectively the "LUNDY SUBSIDIARIES"
and collectively with Premium, Asset Sub A and Asset Sub B, the "BORROWER"), the
financial institutions listed on the signature pages hereof (collectively the
"LENDERS" and individually a "LENDER", which terms shall hereafter include each
other financial institution that may hereafter become a party to the Credit
Agreement in accordance with its terms) and U.S. BANCORP AG CREDIT, INC., a
Colorado corporation (the "AGENT"), in its capacity as Agent for the Lenders
under the Credit Agreement (hereinafter defined).
RECITALS
A. Premium, PSF Acquisition Corp. and The Lundy Packing Company
("LUNDY") have entered into an Acquisition Agreement dated as of July 12, 2000
(the "LUNDY ACQUISITION AGREEMENT"), pursuant to which PSF Acquisition Corp.
shall be merged with and into Lundy, the separate existence of PSF Acquisition
Corp. shall cease, and Lundy (at that time becoming Asset Sub B as referred to
herein), shall continue as the surviving corporation under the corporate name
The Lundy Packing Company.
B. Premium and ContiGroup Companies, Inc., successor by merger to
Continental Grain Company, a Delaware corporation ("CGC") have tentatively
agreed to enter into an Asset Purchase Agreement which is expected to close
within two months after the date hereof (the "SECOND ASSET PURCHASE AGREEMENT"),
pursuant to which Premium will definitively agree to purchase certain assets
from CGC generally described as the North Carolina pork operations.
C. The Credit Agreement dated as of August 27, 1997 among Premium,
Asset Sub A, the Agent and the Lenders (as the same has been and may be amended,
replaced, restated and/or supplemented from time to time, the "CREDIT
AGREEMENT") currently prohibits Premium
from consummating the transactions described in paragraphs A and B above and
certain other related transactions (collectively the "ACQUISITION
TRANSACTIONS"). In addition, Premium has requested that the Agent and the
Lenders agree to increase their Revolving Loan Commitments from $90,000,000 in
the aggregate to $100,000,000 in the aggregate and to increase their Term Loan
Commitments from $30,000,000 in the aggregate to $125,000,000 in the aggregate.
In connection with the Lundy Acquisition Agreement, Asset Sub B and the Lundy
Subsidiaries will require Term Loans of up to $70,000,000 and will require up to
$43,000,000 of Revolving Loans. After the closing of the Lundy Acquisition
Agreement Asset Sub B and the Lundy Subsidiaries will require up to $40,000,000
of Revolving Loans to make capital improvements to the facilities acquired in
connection therewith (the "LUNDY CAPITAL IMPROVEMENTS"). In connection with the
Second Asset Purchase Agreement, Premium will require Term Loans and Revolving
Loans of up to $20,000,000. The increased Term Loan Commitments will also be
used to refinance the existing balance outstanding thereunder of approximately
$13,000,000. Subject to approval of the Lenders of more definitive plans, the
Revolving Loans will be used to provide funds in the approximate amount of
$24,000,000 during Borrower's fiscal years 2001 and 2002 for the construction of
new hog production facilities in Texas on property which is subject to a Deed of
Trust in favor of the Agent on behalf of the Lenders and which is subject to a
Deed of Trust in favor of the trustee on behalf of the holders of the PIK Notes
(the "TEXAS CONSTRUCTION"). Accordingly, Premium and Asset Sub A have requested
that the Agent and the Lenders permit Asset Sub B and the Lundy Subsidiaries to
become borrowers under the Credit Agreement. Premium and Asset Sub A have
further requested certain other changes in the terms of the Credit Agreement.
D. The Agent and the Lenders are willing to consent to the Acquisition
Transactions, to increase the Revolving Loan Commitments to $100,000,000, to
increase the Term Loan Commitments to $125,000,000 (subject to Assignment and
Acceptance of 33.335% of those increased Commitments as described herein), to
permit Asset Sub B and the Lundy Subsidiaries to become borrowers under the
Credit Agreement, and to agree to the other changes in the terms of the Credit
Agreement, but only on the terms and conditions herein contained.
E. Capitalized terms used and not defined in this Amendment shall have
the meanings given to such terms in the Credit Agreement, as amended by this
Amendment.
NOW THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in the Credit Agreement and this Amendment, and of any
loans or extensions of credit or other financial accommodations heretofore, now
or hereafter made to or for the benefit of Borrower by the Agent and the
Lenders, Borrower, the Agent and the Lenders agree as follows:
1. Representation and Warranty as to the Lundy Acquisition Agreement,
and Consent to the Lundy Acquisition Agreement. The Borrower represents and
warrants to the Agent and the Lenders that the factual information taken as a
whole in the materials furnished by or on behalf of the Borrower to the Agent or
any Lender for purposes of or in connection
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with the Lundy Acquisition Agreement, does not contain any untrue statement of a
material fact or omit to state any material fact necessary to keep the
statements contained therein from being misleading as of the date of this
Amendment. The Borrower further represents and warrants to the Agent and the
Lenders that the financial projections and other financial information furnished
to the Agent or any Lender by the Borrower in connection with the Lundy
Acquisition Agreement were prepared in good faith on the basis of information
and assumptions that the Borrower believed to be reasonable as of the date of
such information, provided however, that the Agent and the Lenders acknowledge
that financial projections are not a guaranty of future results. In reliance on
the foregoing representation and warranties, the Agent and the Lenders consent
to the Lundy Acquisition Agreement notwithstanding anything contained in the
Credit Agreement prohibiting the Lundy Acquisition Agreement. Without limiting
the generality of the foregoing, the Agent and the Lenders acknowledge that
Asset Sub B, subject to the satisfaction of conditions as set forth herein,
intends to use up to $70,000,000 of Term Loans and up to $43,000,000 of the
Revolving Loans in connection with the consummation of the Lundy Acquisition
Agreement, and the Agent and the Lenders consent to the same. It is acknowledged
and agreed by the Borrower, the Agent and the Lenders that Asset Sub B shall
also continue to own directly or indirectly, less than 100% interests in the
following partnership and limited liability companies, L&S Farms, a North
Carolina general partnership, L&H Farms, LLC, a North Carolina limited liability
company, and Quality Pork, LLC, a North Carolina limited liability company
(collectively the "NON-BORROWER LUNDY SUBSIDIARIES"). The operations of the
Non-Borrower Lundy Subsidiaries shall not be funded with proceeds of the
Revolving Loans to Borrower. None of the property of the Non-Borrower Lundy
Subsidiaries will be Collateral and notwithstanding any term of the Credit
Agreement, as amended hereby, the value of such property of the Non-Borrower
Lundy Subsidiaries shall not, directly or indirectly, be included in the
determination of the Borrowing Base.
2. Consent to the Second Asset Purchase Agreement. The Agent and the
Lenders acknowledge that Premium intends to use Term Loans and Revolving Loans
of up to $20,000,000 in connection with the consummation of the Second Asset
Purchase Agreement. Subject to the satisfaction of conditions as set forth
herein, which include the delivery of an acceptable Asset Purchase Agreement and
written representations and warranties in the form set forth in the preceding
paragraph 1 hereof the Lenders consent to the same. Borrower acknowledges and
agrees, however, that an additional condition to this consent is the Assignment
and Acceptance by the Lenders existing at the time of this Amendment, of not
less than 33.335% of the Commitments, as increased by this Amendment
($33,335,000 of the Revolving Loan Commitments and $41,668,750 of Term Loan
Commitments), to additional Lenders (the "GENERAL SYNDICATION"). The existing
Lenders agree to make such assignments on the basis that the new Lenders will
join, subject to the satisfaction of conditions as set forth herein, the consent
set forth in this paragraph 2.
3. Consent to the Texas Construction. The Agent and the Lenders
acknowledge that Premium intends to use up to $24,000,000 of Revolving Loans to
fund the Texas Construction. Subject to the satisfaction of conditions as set
forth herein, which are: (i) receipt of more definitive plans with regard
thereto and approval thereof by the Required Lenders; and
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(ii) the satisfaction of any and all conditions set forth by the Required
Lenders in their sole and absolute discretion, the Lenders consent to the Texas
Construction. The existing Lenders agree to make assignments under the General
Syndication on the basis that the new Lenders will join, subject to the
satisfaction of conditions as set forth herein, the consent set forth in this
paragraph 3.
4. Refinancing of Existing Debt to the Lenders. On the Date of this
Amendment the Agent and the Lenders shall make Equalization Transfers as set
forth in Section 2.1(c) with regard to any outstanding Revolving Loans. On the
Date of this Amendment the Agent and the Lenders shall make such transfers of
funds as are necessary to cause any outstanding Term Loans to be held in
accordance with the Lender's Pro Rata Percentages.
5. Amendment of Purpose. Any term of the Credit Agreement
notwithstanding, including Section 2.5 of the Credit Agreement, Purpose, the
purpose of the Revolving Loans shall be to provide working capital for the
Borrower's hog production and processing operations, to provide funds for the
Lundy Acquisition Agreement, to provide funds for the Second Asset Purchase
Agreement and to fund the Lundy Capital Improvements, but limited as set forth
in paragraphs 1 through 4 of this Amendment, and the Purpose of the Term Loans
shall be as set forth in Sections 1 through 4 of this Amendment. In all cases
the available Term Loan Commitments shall be fully funded and shall be used to
pay down the Revolving Loans to the extent Term Loans are not needed for other
purposes.
6. Limitation of Commitments Pending General Syndication and Additional
Appraisals. Any term of the Credit Agreement notwithstanding, including the
definitions of Commitments, LC Commitments, Revolving Loan Commitments and Term
Loan Commitments as set forth in Section 1.1 of the Credit Agreement, General
Definitions, as amended by this Amendment, unless and until the General
Syndication has been completed and the additional appraisals received as set
forth in Exhibit 8D, item 25, the total Commitments are and shall be limited to
$149,996,250, of which the Revolving Loan Commitments are and shall be limited
to $66,665,000 and of which the Term Loan Commitments are and shall be limited
to $83,331,250, which, based upon the existing Lenders Pro Rata Percentages as
of the time of this Amendment, results in limited Commitments as follows:
[Download Table]
Revolving Loan Commitments:
--------------------------
Name of Lender Pro Rata Percentage Maximum $
-------------- ------------------- ---------
U.S. Bancorp Ag Credit, Inc. 30.000750019% $20,000,000
Farm Credit Services of Western Missouri, PCA 23.333083327% $15,555,000
Harris Trust and Savings Bank 23.333083327% $15,555,000
Firstar Bank, N.A. 23.333083327% $15,555,000
------------- -----------
TOTAL: 100% $66,665,000
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[Download Table]
Term Loan Commitments:
---------------------
Name of Lender Pro Rata Percentage Maximum $
-------------- ------------------- ---------
U.S. Bancorp Ag Credit, Inc. 30.000750019% $25,000,000
Farm Credit Services of Western Missouri, PCA 23.333083327% $19,443,750
Harris Trust and Savings Bank 23.333083327% $19,443,750
Firstar Bank, N.A. 23.333083327% $19,443,750
------------- -----------
TOTAL: 100% $83,331,250
7. Section 1.2 of the Credit Agreement, is amended to add or amend the
following capitalized terms which are defined in the preambles to and in
paragraphs 1 and 2 of this Amendment: "Asset Sub A", "Asset Sub B", the "Lundy
Subsidiaries", "Borrower", "Lenders", "Lender", "Lundy", the "Lundy Acquisition
Agreement", the "Lundy Capital Improvements", "CGC", the "Second Asset Purchase
Agreement", "Credit Agreement", "Acquisition Transactions", "Texas
Construction", the "Non-Borrower Lundy Subsidiaries" and the "General
Syndication".
8. New and Amended Defined Terms. Section 1.1 of the Credit Agreement,
Defined Terms, is amended to add or amend the following definitions which shall
read in full as follows:
"AMENDMENT #4 CLOSING DATE" shall mean August 21, 2000.
"ANNIVERSARY DATE" shall mean the Amendment #4 Closing Date
and each anniversary thereof.
"APPLICABLE MARGIN" shall mean with respect to Revolving Loans
or Term Loans which are Reference Rate Loans or Eurodollar Rate Loans,
or with respect to fees for non-use of the Revolving Loan Commitments,
the rates per annum set forth below for the then applicable Financial
Performance Level:
Revolving Loans:
[Download Table]
Financial
---------
Performance Level Base Rate Eurodollar Rate Non-Use Fee
----------------- --------- --------------- -----------
Level 1 1.00% 2.50% 0.375%
Level 2 0.75% 2.25% 0.375%
Level 3 0.50% 2.00% 0.250%
Level 4 0.25% 1.75% 0.250%
Level 5 0.00% 1.50% 0.250%
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Term Loans:
[Download Table]
Financial
---------
Performance Level Base Rate Eurodollar Rate
----------------- --------- ---------------
Level 1 1.125% 2.625%
Level 2 0.875% 2.375%
Level 3 0.625% 2.125%
Level 4 0.375% 1.875%
Level 5 0.125% 1.625%
The initial Financial Performance Level shall be Level 2. The
Agent will review the Borrower's financial performance as of each
fiscal quarter end, beginning with fiscal quarter end December 31,
2000, after its receipt of the Borrower's financial statements and
compliance certificate for such fiscal quarter, and will confirm the
Borrower's determination as to whether the Borrower's Financial
Performance Level for such fiscal quarter was Level 1, Level 2, Level
3, Level 4 or Level 5. As so confirmed by the Agent, the Borrower's
Financial Performance Level will determine the Applicable Margin
effective for Revolving Loans, Term Loans and the fees for non-use of
the Revolving Loan Commitments for the three month period beginning on
the tenth day of the month following the month in which the Agent
receives such quarterly financial statements if the Agent receives such
quarterly financial statements prior to the last five (5) Business Days
of the month following the end of such fiscal quarter. If the Agent
receives such quarterly financial statements during the last five (5)
Business Days of the month following the end of such fiscal quarter,
any reduction in the Applicable Margin will be delayed until the tenth
day of the second month following the month in which the Agent receives
such quarterly financial statements, but any increase in the Applicable
Margin will be effective retroactively to the tenth day of the month
following the month in which the Agent receives such quarterly
financial statements. If the Agent does not receive such quarterly
statements prior to the end of the month following the end of such
fiscal quarter, the Borrower's Financial Performance Level shall be
deemed to be Level 1 retroactively beginning with the tenth day of the
second month following the end of such fiscal quarter.
"BASE RATE" shall mean the greater of (a) the Reference Rate
or (b) the Federal Funds Rate plus one half of one percent (.5%).
"BORROWING BASE" shall mean an amount determined as follows:
85% of Eligible Accounts as reported on Borrower's monthly and
fiscal year end consolidated financial statements; plus
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80% of Eligible Inventory (including breeding stock) as
reported on Borrower's monthly and fiscal year end consolidated
financial statements valued at the lower of cost or market in
accordance with GAAP; minus
100% of all accounts payable and all uncleared checks related
to Eligible Accounts and Eligible Inventory.
"CASH INTEREST COVERAGE RATIO" shall mean for any period of
determination, the ratio of: (a) EBITDA for such period; over (b) the
amount of interest paid (including interest paid in cash but excluding
interest paid in kind under the PIK Notes) during such period.
"EBITDA" shall mean the net combined income of the Borrower
before provision for income taxes, interest expense (including without
limitation, implicit interest expense on capitalized leases),
depreciation (including, without limitation, depreciation of breeding
stock), amortization and other noncash expenses or charges, excluding
(to the extent included): (a) nonoperating gains (including without
limitation, extraordinary or nonrecurring gains, gains from
discontinuance of operations and gains arising from the sale of assets
other than Inventory) during the applicable period; and (b) similar
nonoperating losses during such period.
"EURODOLLAR RATE" shall mean, with respect to each day during
each Interest Period applicable to a Eurodollar Rate Loan, the
following rate adjusted as set forth below: the lower of (x) the
average offered rate for deposits in United States dollars (rounded
upward, if necessary, to the nearest 1/16 of 1%) for delivery of such
deposits on the first day of such Interest Period, for the number of
days in such Interest Period, which appears on the Reuters Screen or
the Telerate Screen (the selection of the Reuters Screen or the
Telerate Screen to be at the discretion of U.S. Bank), as of 11:00
a.m., London time (or such other time as of which such rate appears)
three Business Days prior to the first day of such Interest Period, or
(y) the rate for such deposits determined by U.S. Bank at such time
based on such other published service of general application as shall
be selected by U.S. Bank for such purpose; provided, however, if the
Reuters Screen, the Telerate Screen or such other service does not
report such rates or such rates do not, in the judgment of U.S. Bank,
accurately reflect the rates of interest applicable to U.S. Bank in the
relevant markets, the rate for such Interest Period shall be determined
by U.S. Bank based on the rates at which United States dollar deposits
are offered to U.S. Bank in the interbank Eurodollar market at such
time for delivery in Immediately Available Funds on the first day of
such Interest Period in an amount approximately equal to the Advance by
U.S. Bank to which such Interest Period is to apply (rounded upward, if
necessary, to the nearest 1/16 of 1%). "Reuters Screen" means the
display designated as page
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"LIBO" on the Reuters Monitor Money Rate Screen (or such other page as
may replace the LIBO page on such service for the purpose of displaying
London interbank offered rates of major banks for United States dollar
deposits). "Telerate Screen" means page 3750 on the Telerate Screen (or
such other page as may replace page 3750 on such service for the
purpose of displaying London interbank offered rates of major banks for
United States dollar deposits). The Eurodollar Rate as described above
shall be adjusted as follows: The Eurodollar Rate shall be the rate per
annum (rounded up to the next whole multiple of 1/100 of 1%) equal to
the rate obtained by dividing (a) the Eurodollar Rate, as described
above; by (b) a percentage equal to 100% minus the maximum reserve rate
in effect from time to time during such Interest Period at which
reserves (including any marginal, supplemental or emergency reserves)
would be required to be maintained by U.S. Bank under Regulation D
against "Eurocurrency Liabilities" (as such term is defined in
Regulation D); provided, that the Eurodollar Rate for the applicable
Interest Period shall be adjusted automatically on and as of the
effective date of any change in such maximum reserve rate.
"FINANCIAL PERFORMANCE LEVEL" shall mean the applicable level
of the Borrower's financial performance determined in accordance with
the table set forth below.
[Download Table]
Financial Leverage Ratio
--------- --------------
Performance
-----------
Level
-----
Level 1 Greater than or equal to 3.50 to 1.0
Level 2 Less than 3.50 to 1 but greater than or equal to 3.00 to 1
Level 3 Less than 3.00 to 1 but greater than or equal to 2.50 to 1
Level 4 Less than 2.50 to 1 but greater than or equal to 2.00 to 1
Level 5 Less than 2.00 to 1.0
"LC COMMITMENT" shall mean as to any Lender, such Lender's Pro
Rata Percentage of $10,000,000 using the percentage set forth opposite
such Lender's name under the heading "Revolving Loan Commitments" on
Exhibit 1H, as such amount may be reduced or terminated from time to
time pursuant to Section 4.4 or 11.1, less such Lender's Pro Rata
Percentage of the LC Obligations, and "LC COMMITMENTS" shall mean
collectively, the LC Commitments for all the Lenders.
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"LEVERAGE RATIO" shall mean for any period of determination,
the ratio of: (a) the amount of interest bearing debt (including the
debt outstanding under the PIK Notes) outstanding at the end of such
period; over (b) EBITDA for the prior four fiscal quarters.
"MATURED DEFAULT" shall mean the occurrence or existence of
any one or more of the following events: (a) the Borrower fails to pay
any principal or interest pursuant to any of the Financing Agreements
at the time such principal or interest becomes due or is declared due
and such failure continues for a period of three (3) Business Days; (b)
the Borrower fails to pay any of the Liabilities (other than principal
and interest) on or before ten (10) Business Days after the Agent has
notified the Borrower of the existence and amount of such Liabilities;
(c) the Borrower fails or neglects to perform, keep or observe any of
the covenants, conditions, promises or agreements contained in Sections
9.6, 10.1, 10.2, 10.3, 10.4, 10.5 or 10.10; (d) the Borrower fails or
neglects to perform, keep or observe any of the covenants, conditions,
promises or agreements contained in this Agreement or in any of the
other Financing Agreements (other than those covenants, conditions,
promises and agreements referred to or covered in (a), (b), (c), or (e)
of this definition), and such failure or neglect continues for more
than thirty (30) days after the earlier of the date the Agent gives the
Borrower written notice thereof or the date the Borrower first learns
of such failure or neglect, provided however, that such grace period
shall not apply, and a Matured Default shall be deemed to have occurred
and to exist immediately if such failure or neglect may not, in the
Required Lenders' reasonable determination, be cured by the Borrower
during such thirty (30) day grace period; (e) the Borrower fails to
comply with the provisions of Section 4.3(a); (f) any warranty or
representation at any time made by or on behalf of the Borrower in
connection with this Agreement or any of the other Financing Agreements
is untrue or incorrect in any material respect when made, or any
schedule, certificate, statement, report, financial data, notice, or
writing furnished at any time by or on behalf of the Borrower to the
Agent or the Lenders is untrue or incorrect in any material respect on
the date as of which the facts set forth therein are stated or
certified; (g) a judgment in excess of $3,000,000 is rendered against
the Borrower and such judgment remains unsatisfied or undischarged and
in effect for thirty (30) consecutive days without a stay of
enforcement or execution, provided however, that this clause (g) shall
not apply to any judgment for which the Borrower is fully insured and
with respect to which the insurer has admitted liability in writing for
such judgment; (h) all or any part of the Borrower's assets come within
the possession of any receiver, trustee, custodian or assignee for the
benefit of creditors; (i) a proceeding under any bankruptcy,
reorganization, arrangement of debt, insolvency, readjustment of debt
or receivership law or statute is filed against the Borrower or the
Guarantor and such proceeding is not dismissed within sixty (60) days
of the date of its filing, or
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a proceeding under any bankruptcy, reorganization, arrangement of debt,
insolvency, readjustment of debt or receivership law or statute is
filed by the Borrower or the Guarantor, or the Borrower or the
Guarantor makes an assignment for the benefit of creditors; (j) the
Borrower or the Guarantor voluntarily or involuntarily dissolves or is
dissolved, terminates or is terminated or dies; (k) the Borrower is
enjoined, restrained, or in any way prevented by the order of any court
or any administrative or regulatory agency or by the termination or
expiration of any permit or license, from conducting all or any
material part of the Borrower's business affairs; (l) the Borrower or
the Guarantor fails to make any payment due or otherwise defaults on
any other obligation for borrowed money and the effects of such failure
or default are to cause or permit the holder of such obligation or a
trustee to cause such obligation to become due prior to its date of
maturity and to cause a Material Adverse Effect; (m) the Guarantor
purports to terminate its guaranty or to limit the application thereof
to then existing Liabilities; (n) the Agent makes an expenditure under
Section 13.3 and such amount shall not have been reimbursed to the
Agent upon demand therefor; (o) the occurrence of a default, an event
of default or a matured default under any other agreement, instrument
or document at any time entered into between the Borrower or the
Guarantor and the Agent, which default, event of default or matured
default has had or in the opinion of the Required Lenders is likely to
have a Material Adverse Effect; or (p) a notice is received by the
Agent regarding the termination of future optional advances in
accordance with North Carolina G.S. Section 45-72.
"PROPERTY" shall mean: (a) the land, the improvements, the
fixtures and the Equipment of Premium located in Mercer, Putnam and
Sullivan Counties, Missouri and in Dallam and Hartley Counties, Texas
as legally described on Exhibit 1E to the Credit Agreement, provided
however, that the Property specifically includes Premium's processing
facility located in Milan, Missouri; (b) the land, the improvements,
the fixtures and the Equipment of Asset Sub A located in Gentry,
Grundy, Harrison and Worth Counties, Missouri including those acquired
from CGC pursuant to the Asset Purchase Agreement, including without
limitation, Asset Sub A's feed mill and office located in Davies
County; (c) the land, the improvements, the fixtures and the Equipment
of Asset Sub B and the Lundy Subsidiaries located in Sampson, Harnett,
Hoke and Duplin Counties, North Carolina including those acquired
pursuant to the Lundy Acquisition Agreement; and (d) the land, the
improvements, the fixtures and the Equipment of Premium located in Pitt
and Edgecombe Counties, North Carolina and Crisp County, Georgia,
including those acquired from CGC pursuant to the Second Asset Purchase
Agreement.
"REFERENCE RATE LOAN" shall mean any Loan which bears interest
at the Base Rate.
10
"REGULATION D" shall mean Regulation D (or any substitute
regulations) of the Board of Governors of the Federal Reserve System
(or any successor thereto), as amended from time to time.
"REQUIRED LENDERS" shall mean at any time, the Lenders having
at least fifty one percent (51%) of the aggregate amount of all of the
Lenders' Pro Rata Percentages.
"REVOLVING LOAN COMMITMENT" shall mean as to any Lender, such
Lender's Pro Rata Percentage of $100,000,000 as set forth opposite such
Lender's name under the heading "Revolving Loan Commitments" on Exhibit
1H, as such amount may be reduced or terminated from time to time
pursuant to Section 4.4 or 11.1, and "REVOLVING LOAN COMMITMENTS" shall
mean collectively, the Revolving Loan Commitments for all the Lenders.
"REVOLVING MATURITY DATE" shall mean the earlier of: (i)
August 21, 2003; (ii) the date that is 30 days prior to the maturity of
the PIK Notes (which maturity date is presently September 17, 2003); or
(iii) the date of the termination in whole of the Commitments pursuant
to Section 4.4 or 11.1.
"TERM LOAN COMMITMENT" shall mean as to any Lender, such
Lender's Pro Rata Percentage of $125,000,000, as set forth opposite
such Lender's name under the heading "Term Loan Commitments" on Exhibit
1H, as such amount may be reduced or terminated from time to time
pursuant to Section 4.4 or 11.1, less such Lender's Pro Rata Percentage
of principal payments received with respect to the Term Loan, and "Term
Loan Commitments" shall mean collectively, the Term Loan Commitments
for all the Lenders.
"TERM MATURITY DATE" shall mean the earlier of: (i) August 21,
2005; (ii) the date that is 30 days prior to the maturity of the PIK
Notes (which maturity date is presently September 17, 2003); or (iii)
the date of the termination in whole of the Commitments pursuant to
Section 4.4 or 11.1.
9. Deleted Defined Terms. Section 1.1 of the Credit Agreement, Defined
Terms, is amended to delete: the defined term "A Revolving Loan" and its
definition; the defined term "A Revolving Loan Commitment" and its definition;
the defined term "A Revolving Note" and its definition; the defined term "Asset
Sub" and its definition; the defined term "B Revolving Loan" and its definition;
the defined term "B Revolving Loan Commitment" and its definition; the defined
term "B Revolving Note" and its definition; the defined term "Fixed Charge
Pricing Ratio" and its definition; the defined term "Fixed Charge Coverage
Ratio" and its definition; the defined term "Interest Expense" and its
definition; the defined term "Leverage Pricing Ratio" and its definition; and
the defined term "Unallocated Cash Flow" and its definition.
10. Amount Requiring Equalization Transfer. Section 2.1(b) of the
Credit
11
Agreement is amended as follows: The amount of "$3,000,000" shall be amended to
read "$10,000,000."
11. Restated Revolving Notes. Section 2.1(h) of the Credit Agreement is
amended to read in full as follows:
(h) The Borrower shall execute and deliver to the Agent for
each Lender to evidence the Revolving Loans made by each Lender under
such Lender's Revolving Loan Commitment, a restated revolving credit
note (each such note, a "REVOLVING NOTE" and collectively the
"REVOLVING NOTES"), which shall be (i) dated the date of the Amendment
#4 Closing Date; (ii) in the principal amount of such Lender's maximum
Revolving Loan Commitment; and (iii) in substantially the form attached
as Exhibit 2E, appropriately completed. Each Lender shall post (iv) the
date and principal amount of each Revolving Loan made under such
Revolving Note; (v) the rate of interest each such Revolving Loan will
bear; and (vi) each payment of principal thereon; provided however,
that any failure of such Lender to so post shall not affect the
Borrower's obligations thereunder.
11. Sublimit for LC's. Section 2.2(a) of the Credit Agreement is
amended as follows: The amount of "$5,000,000" shall be amended to read
"$10,000,000."
12. Term Loans. Section 2.3 of the Credit Agreement is amended to read
in full as follows:
2.3 TERM LOAN.
(a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender severally
agrees to make a term loan (each a "TERM LOAN" and collectively the
"TERM LOAN") to the Borrower: (i) on the Amendment #4 Closing Date for
the purpose of repaying existing term indebtedness hereunder and for
the purpose of funding the Lundy Acquisition Agreement; and (ii) on any
one Business Day prior to October 1, 2000 for the purpose of funding
the Second Asset Purchase Agreement, and, if necessary to fully fund
the Term Loan Commitment, to pay down outstanding Revolving Loans, in
aggregate amounts up to the principal amount of such Lender's Term Loan
Commitment and in accordance with each Lenders Pro Rata Percentage.
Once repaid, no portion of the Term Loan may be reborrowed.
(b) The Borrower shall execute and deliver to the Agent for
each Lender to evidence the Term Loan made by each Lender under such
Lender's Term Loan Commitment, a promissory note (each such note, a
"TERM NOTE" and collectively the "TERM NOTES"), which shall be (i)
dated the date of the Amendment #4 Closing Date; (ii) in the principal
amount of such Lender's
12
maximum Term Loan Commitment; and (iii) in substantially the form
attached as Exhibit 2F, appropriately completed. Each Lender shall post
(iv) the date and principal amount of the Term Loan made under such
Term Note; (v) the rate of interest the Term Loan will bear; and (vi)
each payment of principal thereon; provided however, that any failure
of such Lender to so post shall not affect the Borrower's obligations
thereunder. The outstanding principal balance of each Term Note shall
be payable as set forth therein.
13. General Provisions Regarding Eurodollar Rate Loans. Section 2.4(a)
of the Credit Agreement is amended as follows: The minimum amount of a
Eurodollar Rate Loan of "$1,000,000" shall be amended to read "$3,000,000" and
the maximum amount of Eurodollar Rate Loans outstanding at one time shall be
changed from six (6) to five (5) under the Revolving Loan and five (5) under the
Term Loan.
14. Persons Authorized to Request Advances. Section 2.4(e) of the
Credit Agreement is amended by striking the phrase "William R. Patterson or
Dennis W. Harms" and inserting in its place the phrase "Stephen A. Lightstone,
John M. Meyer or Dennis D. Rippe."
15. Interest. Section 3.1(a) and Section 3.1(c) of the Credit Agreement
is amended by striking the phrase "Reference Rate" and inserting in its place
the phrase "Base Rate."
16. Mandatory Payments on the Loans. Section 4.3 of the Credit
Agreement is amended to read in full as follows:
4.3 MANDATORY PAYMENTS ON THE LOANS.
(a) If at any time the aggregate principal amount of all
Revolving Loans, plus the aggregate face amount of all outstanding
LC's, exceeds the lesser of the Borrowing Base or the Revolving Loan
Commitments, then the Borrower shall within three (3) Business Days,
either (i) pay to the Agent for the ratable account of each Lender the
amount of such excess as a payment on the Revolving Loans, or (ii)
otherwise eliminate such excess by providing to the Agent an updated
borrowing base certificate.
(b) The Borrower shall pay to the Agent for the ratable
account of each Lender as payment on the Term Loans, quarterly payments
in the amount of $6,250,000 each, payable on the last day of each
quarter, commencing on December 31, 2000.
(c) Anything herein or in any other Financing Agreement to the
contrary notwithstanding, all principal and interest remaining unpaid
on the Revolving Loans on the Revolving Maturity Date, shall be
immediately due and payable. Anything herein or in any other Financing
Agreement to the contrary notwithstanding, all principal and interest
remaining unpaid on the Term Loans
13
on the Term Maturity Date, shall be immediately due and payable.
17. Termination of the Commitments. Section 4.4 of the Credit Agreement
is amended to read in full as follows:
4.4 TERMINATION OF THE COMMITMENTS.
(a) The Agent shall have the right, with the consent of the
Required Lenders and without notice to the Borrower, to terminate the
Commitments immediately upon a Matured Default. The Revolving Loan
Commitments and the LC Commitments shall be deemed immediately
terminated and all of the Liabilities relating to the Revolving Loans
shall be immediately due and payable, without notice to the Borrower,
on the Revolving Maturity Date. The Term Loan Commitments shall be
deemed immediately terminated and all of the Liabilities relating to
the Term Loans shall be immediately due and payable, without notice to
the Borrower, on the Term Maturity Date. In the event any of the
Commitments are terminated, the remainder of this Agreement shall
remain in full force and effect until the indefeasible full payment and
full satisfaction of the Liabilities. Notwithstanding the foregoing, in
the event that a Default of the type described in clause (i) of the
definition of Matured Default occurs, then this Agreement shall be
deemed to be terminated immediately, all of the Liabilities shall
automatically become immediately due and payable, and the obligations
of the Lenders to make Loans and the Commitments shall automatically
terminate in accordance with Section 11.1, provided however, that if
such Default is cured within the time period (if applicable) set forth
in clause (i) of the definition of Matured Default, then this Agreement
shall be deemed to be reinstated as of the date that the Agent is given
written notice of a final court order effecting such cure.
(b) The Borrower shall have the right, upon at least five
Business Days' notice to the Agent to terminate the Commitments in
whole, provided however, that subject to Section 2.4(a), any such
termination prior to February 21, 2002 shall be accompanied by the
payment of an early termination fee equal to one percent (1%) of the
Commitments. The Borrower shall not have the right to terminate the
Commitments in part.
18. Fees. Section 6 of the Credit Agreement is amended to read in full
as follows:
6. FEES.
(a) AGENT'S FEES. The Borrower agrees to pay to the Agent, in
respect of its administrative duties hereunder: a one time syndication
and arranger fee on the Amendment #4 Closing Date; an annual Agent's
administration fee on the Amendment #4 Closing Date and on each
Anniversary
14
Date; and one time fronting fees from time to time in respect of the
initial issuance of LC's all in amounts set forth in the Agent's
Letter. The annual Agent's administration fee shall be due and payable
in advance on the Amendment #4 Closing Date and on each Anniversary
Date hereafter through the later of the Revolving Maturity Date or the
Term Maturity Date, unless the Borrower has fully terminated the
Commitments in accordance with Section 4.4 and there are then no
outstanding LC Obligations. Fronting fees shall be payable to the Agent
at the issuance of each LC, computed at the rate set forth in the
Agent's Letter on the face amount of such LC. Each of the Agent's fees
shall be fully earned on the date they become payable and, at the
option of the Agent, shall be paid by Agent initiated Loans. The
Agent's Letter also covers the annual audit fee referred to in Section
13.6. No Persons other than the Agent shall have any interest in any
such Agent's fees. The Borrower also agrees to reimburse the Agent, for
the account of U.S. Bank, for fees and expenses incurred in connection
with the syndication of the Loans as set forth in the Agent's Letter.
(b) INITIAL COMMITMENT FEES. Borrower agrees to pay to the
Agent for distribution to the Lenders who are Lenders as of the date of
this Amendment, including the Agent, fees equal to the percentage set
forth in the Agent's Letter on their Commitments as set forth in
Paragraph 6 of the Fourth Amendment to the Credit Agreement as of the
Amendment 4 Closing Date. Borrower agrees to pay to the Agent for
distribution to the Lenders who become Lenders after the date of this
Amendment, fees equal to such percentages on their Commitments after
the General Syndication as is agreed to by the Agent with Borrower's
written consent, said fees to be payable as of the date the General
Syndication is completed. The fees provided for in this Section 6(b)
shall be paid within three Business days after the date they are due in
accordance herewith. Each of the foregoing fees shall be fully earned
as they accrue and, at the option of the Agent, shall be paid by Agent
initiated Loans.
(c) NON-USE FEE. The Borrower agrees to pay to the Agent for
distribution to the Lenders (based on their respective Pro Rata
Percentages) a quarterly non-use fee from the Amendment #4 Closing Date
to the Revolving Maturity Date, unless the Borrower has fully
terminated the Commitments in accordance with Section 4.4 and there are
then no outstanding LC Obligations, at the applicable rate per annum
set forth in the definition of Applicable Margin under the heading of
Non-Use Fee on the daily average unused amount of the Revolving Loan
Commitments. The quarterly non-use fee shall be due and payable in
arrears on the first day of each January, April, July and October with
respect to the prior fiscal quarter. A pro-rated non-use fee shall be
due and payable on October 1, 2000, on the Revolving Maturity Date and
on any date on which the Borrower terminates the Commitment in full in
accordance with
15
Section 4.4. Each quarterly non-use fee shall be earned as it accrues
and, at the option of the Agent, shall be paid by Agent initiated
Loans.
(d) LC FEES. The Borrower agrees to pay to the Agent, for
distribution to the Lenders (based on their respective Pro Rata
Percentages), a quarterly fee, payable in arrears on the first day of
each January, April, July and October with respect to the prior fiscal
quarter, in respect of each LC issued hereunder, computed at the
applicable rate per annum set forth in the definition of Applicable
Margin under the heading of Eurodollar Rate for Revolving Loans on the
face amount of such LC for the period for which it is issued. A
pro-rated LC fee shall be due and payable on October 1, 2000 for the
period from the Amendment 4 Closing Date through September 30, 2000
adjusted by the amount of any fees already paid by Borrower in respect
to any LCs outstanding on the Amendment 4 Closing Date. Each quarterly
letter of credit fee shall be fully earned as it accrues and, at the
option of the Agent, shall be paid by Agent initiated Loans. The
Borrower shall also pay to the Agent for the account of the Issuer
issuing any LC, the normal and customary processing fees charged by
such Issuer in connection with the issuance of or drawings under each
such LC.
(e) CALCULATION OF FEES. The fees payable under this Section 6
which are based on an annual percentage rate shall be calculated by the
Agent on the basis of a 360-day year, for the actual days (including
the first day but excluding the last day) occurring in the period for
which such fee is payable. Each determination by the Agent of fees
payable under this Section 6 shall be conclusive and binding for all
purposes, absent manifest error.
(f) FEES NOT INTEREST. The fees described in this Agreement
represent compensation for services rendered and to be rendered
separate and apart from the lending of money or the provision of credit
and do not constitute compensation for the use, detention, or
forbearance of money, and the obligation of the Borrower to pay each
fee described herein shall be in addition to, and not in lieu of, the
obligation of the Borrower to pay interest, other fees described in
this Agreement, and expenses otherwise described in this Agreement.
Fees shall be payable when due in Dollars and in immediately available
funds. All fees shall be non-refundable.
19. Additional Trademarks. In addition to the trademarks listed in Part
3 of Exhibit 7 to the Credit Agreement, as referred to in Section 7.3 of the
Credit Agreement Borrower will acquire the following under the Lundy Acquisition
Agreement: Carolinian Trademark, Lundy's Trademark, Tomahawk Farms Trademark and
Gold Banner Trademark.
20. Other Names. Section 7.7 of the Credit Agreement is amended to read
in full as follows:
16
Premium has not, during the preceding five years, been known
by or used any other name, except as disclosed on Part 7 of Exhibit 7
to the Credit Agreement. Asset Sub A, Asset Sub B and the Lundy
Subsidiaries have not, during the preceding five years, been known by
or used any other name.
21. Affiliates. Section 7.8 of the Credit Agreement is amended to read
in full as follows:
The Borrower has no Affiliates, except for other co-borrowers,
directors, officers, agents and employees and other than those Persons
disclosed on Exhibit 7H. The legal relationships of the Borrower to
each such Affiliate listed on Exhibit 7H are accurately and completely
described thereon.
22. Financial Statements and Other Financial Information. Section 9.1
of the Credit Agreement is amended to read in full as follows:
9.1 FINANCIAL STATEMENTS AND OTHER INFORMATION.
Except as otherwise expressly provided for in this Agreement,
the Borrower shall keep proper books of record and account in which
full and true entries will be made of all dealings and transactions of
or in relation to the business and affairs of the Borrower, in
accordance with GAAP consistently applied, and the Borrower shall cause
to be furnished to the Agent and the Lenders, from time to time and in
a form reasonably acceptable to the Agent, such information as the
Agent may reasonably request, including without limitation, the
following:
(a) as soon as practicable and in any event within ninety (90)
days after the end of each Fiscal Year of the Borrower: (i) audited
consolidated statements of income, retained earnings and cash flow of
the Borrower for such year, and a consolidated balance sheet of the
Borrower for such year, setting forth in each case, in comparative
form, corresponding figures as of the end of the preceding Fiscal Year,
all in reasonable detail and satisfactory in scope to the Agent and
certified to the Borrower by such independent public accountants as are
selected by the Borrower and satisfactory to the Agent, whose opinion
shall be in scope and substance satisfactory to the Required Lenders,
(ii) a management discussion and analysis of operations as included in
the annual report (iii) a compliance certificate of the chief financial
officer or controller of the Borrower in the form attached as Exhibit
9C, and (iv) detailed month-by-month annual operating and capital
budgets for the next (then current) Fiscal Year, commencing with Fiscal
Year 2002;
(b) as soon as practicable and in any event within forty five
(45) days after the end of each fiscal quarter of the Borrower except
the last fiscal quarter of each Fiscal Year of the Borrower, a
management discussion and analysis of
17
operations, and as soon as practicable and in any event within thirty
(30) days after the end of each fiscal quarter of the Borrower except
the last fiscal quarter of each Fiscal Year of the Borrower, a
compliance certificate of the chief financial officer or controller of
the Borrower in the form attached as Exhibit 9C;
(c) as soon as practicable and in any event within thirty (30)
days after the end of each monthly accounting period in each Fiscal
Year of the Borrower: (i) consolidated statements of income, retained
earnings and cash flow of the Borrower for such monthly period and for
the period from the beginning of the then current Fiscal Year to the
end of such monthly period, and a consolidated balance sheet of the
Borrower as of the end of such monthly period, setting forth in each
case, in comparative form, figures for the corresponding periods in the
preceding Fiscal Year, all in reasonable detail and certified as
materially accurate by the chief financial officer or controller of the
Borrower, subject to changes resulting from normal year-end
adjustments, and (ii) a Borrowing Base Certificate for the Borrower
computed as of the last day of such month, signed by the chief
financial officer or controller of the Borrower.
23. Liability Insurance Deductible. Section 9.4 of the Credit Agreement
is amended by increasing the amount "$25,000" to "$100,000"
24. Financial Covenants and Ratios. Section 9.6 of the Credit Agreement
is amended to read in full as follows:
9.6 FINANCIAL COVENANTS AND RATIOS.
The Borrower shall maintain as of the end of each fiscal
quarter of Borrower:
(a) minimum consolidated Tangible Net Worth of not less than
$220,000,000, plus 50% of the positive cumulative fiscal year end
audited net income for Fiscal Year 2001 and each Fiscal Year
thereafter;
(b) minimum consolidated Working Capital of not less than
$35,000,000;
(c) minimum rolling four quarter EBITDA, as of the end of each
of Borrower's fiscal quarters as follows: second quarter 2001 /
$70,000,000; third quarter 2001 / $75,000,000; fourth quarter 2001 and
first quarter 2002 / $80,000,000; second quarter 2002 / $85,000,000;
third quarter 2002 / $90,000,000; fourth quarter 2002 and first quarter
2003 / $105,000,000; and each quarter thereafter / $110,000,000;
provided, however, that for each period tested, there shall be
subtracted from the target amount the amount of interest paid in kind
in that period on the PIK Notes;
18
(d) a maximum Leverage Ratio as of the end of each of
Borrower's fiscal quarters as follows: second quarter 2001 / 4.2 to
1.0; third quarter 2001 through second quarter 2002 / 4.0 to 1.0; third
quarter 2002 / 3.8 to 1.0; fourth quarter 2002 and first quarter 2003 /
3.2 to 1.0; and each quarter thereafter / 3.0 to 1.0; and
(e) a minimum Cash Interest Coverage Ratio as of the end of
each of Borrower's fiscal quarters as follows: second quarter 2001
through first quarter 2002 / 2.5 to 1.0; second quarter 2002 / 2.4 to
1.0; third quarter 2002 / 2.6 to 1.0; fourth quarter 2002 and first
quarter 2003 / 3.1 to 1.0; second quarter 2003 / 3.3 to 1.0; third
quarter 2003 / 3.5 to 1.0; and each quarter thereafter / 3.7 to 1.0.
25. Ownership of Subsidiaries. Section 9.17 of the Credit Agreement is
amended to read in full as follows:
9.17 OWNERSHIP OF SUBSIDIARIES.
Asset Sub A and Asset Sub B shall at all times be wholly owned
subsidiaries of Premium except as allowed in Section 10.2(a). The Lundy
Subsidiaries shall at all times be wholly owned subsidiaries of Asset
Sub B except as allowed in Section 10.2(a).
26. Encumbrances and Indebtedness. Sections 10.1 and 10.4 of the Credit
Agreement shall be amended to provide that Borrower shall be allowed to incur,
in addition to the indebtedness to be assumed pursuant to the Lundy Acquisition
Agreement and in addition to the Encumbrances and Indebtedness presently allowed
by said Sections 10.1 and 10.4, secured or unsecured indebtedness owing to
Persons other than the Lenders up to the cumulative amount of $10,000,000 for
capital expenses, provided, however, such indebtedness, if secured, shall be
secured by property other than the Collateral.
27. Consolidations, Mergers, Acquisitions or Change in Ownership.
Section 10.2 of the Credit Agreement is amended to read in full as follows:
10.2 CONSOLIDATIONS, MERGERS, ACQUISITIONS OR CHANGE IN
OWNERSHIP.
(a) No Borrower shall recapitalize or consolidate with, merge
with, or otherwise acquire all or substantially all of the assets or
properties of any other Person, except that: (i) Premium may enter into
any transaction to raise equity capital which transaction does not
result in a change of ownership of Premium by CGC as described below,
(ii) Premium may merge with any Affiliate of Premium provided that
Premium is the survivor of the merger, (iii) subject to the foregoing,
any Borrower may merge with any other Borrower, and (iv) any
19
Borrower may enter into acquisition transactions (other than the
transactions under the Lundy Acquisition Agreement and the Second Asset
Purchase Agreement) not exceeding $10,000,000 in aggregate purchase
price, provided however, (i) that all of such purchase price is paid in
cash or debt permitted under Section 10.4, and provided further, (ii)
that Premium demonstrates to the reasonable satisfaction of the Agent
that each such acquisition transaction will not result in a violation
of Section 9.6, and (iii) that all documentation reasonably required by
the Agent to maintain the Lenders in the same debt and collateral
structure as provided for herein is properly executed and delivered to
the Agent; and
(b) CGC shall at all times maintain, directly or indirectly,
ownership of not less than 35% of Premium's stock.
28. Disposition of Property. Section 10.6 of the Credit Agreement is
amended to read in full as follows:
10.6 DISPOSITION OF PROPERTY.
The Borrower shall not sell, lease, transfer or otherwise
dispose of any of the Borrower's properties, assets or rights
(including Collateral), to any Person in excess of the cumulative
amount of $250,000 in any Fiscal Year of Borrower, except (a) in the
ordinary course of the Borrower's business, or (b) as permitted in the
Security Documents.
29. Capital Investment Limitations. Section 10.7 of the Credit
Agreement is amended to read in full as follows:
10.7 CAPITAL INVESTMENT LIMITATIONS.
The Borrower shall not purchase, invest in or otherwise
acquire additional real estate, equipment or other fixed assets (other
than: (i) the replacement of breeding animals in the ordinary course of
business, (ii) in accordance with the Lundy Acquisition Agreement and
(iii) in accordance with the the Second Asset Purchase Agreement) which
would cause its Capital Spending Amount in any one Fiscal Year to
exceed: (i) $65,000,000 during the Borrower's 2001 Fiscal Year, (ii)
$55,000,000 during the Borrower's 2002 Fiscal Year, and (iii)
$30,000,000 during the Borrower's 2003 Fiscal Year and each Fiscal Year
thereafter. Provided, however: (i) 100% of the unused amount of the
limit for Borrower's 2001 Fiscal Year may be carried forward into the
Borrower's 2002 Fiscal Year; (ii) 100% of the unused amount of the
limit for Borrower's 2002 Fiscal Year may be carried forward into the
Borrower's 2003 Fiscal Year; and (iii) 35% of the unused amount of the
limit for Borrower's 2003 Fiscal Year and the Borrower's Fiscal Years
thereafter may be carried forward
20
into the Borrower's 2003 Fiscal Year and into the following Fiscal
Years, respectively. The Lundy Capital Improvements and the $10,000,000
of additional financed capital expenses allowed under Sections 10.1 and
10.4 are subject to the application of this Section 10.7 and shall not
be allowed (even though permitted elsewhere) except to the extent
compliance with this Section 10.7 is maintained.
30. Loans to Affiliates. Section 10.9 of the Credit Agreement is
amended by increasing the amount "$5,000,000" to "$10,000,000" and by amending
the last sentence thereof to read as follows:
Nothing in this Section 10.9 shall limit the amount of loans from any
one Borrower to another Borrower which may be outstanding at any one
time.
31. Issuance of Equity; Amendment of Organization Documents. Section
10.11 of the Credit Agreement is amended to read in full as follows:
10.11 ISSUANCE OF EQUITY; AMENDMENT OF ORGANIZATION DOCUMENTS.
Premium shall not issue or distribute any of Premium's capital
stock or membership interests for consideration or otherwise, except
that Premium may enter into any transaction to raise equity capital as
long as such transaction does not result in a violation of Section
10.2(b). No other Borrower shall issue or distribute any of its capital
stock or membership interests for consideration or otherwise. No
Borrower shall amend its articles or certificate of incorporation or
organization or bylaws, except upon prior written notice to the Agent,
provided however, that any such amendment shall not result in a
violation of Sections 9.17 or 10.2(b). The foregoing prohibitions shall
not apply to any of the foregoing actions which is necessary to
accomplish any transaction that is otherwise permitted under Section
10.2(a).
32. Lease Limitations. Section 10.12 of the Credit Agreement is amended
by increasing the amount "$3,600,000" to $10,000,000.
33. Payment of Subordinated Debt. Section 10.14 of the Credit Agreement
is amended to read in full as follows:
10.14 PAYMENT OF SUBORDINATED DEBT.
The Borrower shall not directly or indirectly, pay, prepay,
redeem or purchase, or deposit funds or property for the payment,
prepayment, redemption or purchase of the indebtedness of any Borrower,
which is subordinated to the payment of any portion of the Liabilities,
except that the Borrower may prepay subordinated debt in whole or in
part at any time, as long as: (a) there is no
21
Default or Matured Default at the time of such prepayment, (b) no
Default or Matured Default would occur as a result of such prepayment,
and (c) the Borrower has delivered to the Agent and the Lenders not
less than five (5) Business Days before the date of any such proposed
prepayment, pro forma financial statements demonstrating to the
satisfaction of the Required Lenders, that the Borrower will be in
compliance with the requirements of Section 9.6 immediately following
any such prepayment and at the end of the then current fiscal quarter.
34. Maximum Interest. Section 13.19 of the Credit Agreement is amended
by striking the phrase "Reference Rate" and inserting in its place the phrase
"Base Rate."
35. Processing Fees for Assignment and Acceptance. Section 13.24 of the
Credit Agreement is amended by decreasing the amount "$5,000" to "$3,500".
36. Consent to Disposition of Collateral by Agent. Section 13.30(c) of
the Credit Agreement is amended by increasing the amount "$250,000" to
"$2,000,000".
37. Remediation of Environmental Concerns. A new Section 13.32 shall be
added to the Credit Agreement to read in full as follows:
13.32 REMEDIATION OF ENVIRONMENTAL CONCERNS.
The Borrower shall complete the remediation of the
environmental concerns raised in the Phase I Environmental Assessment
Reports with regard to the Properties of Asset Sub B and the Lundy
Subsidiaries according to the attached Exhibit 13B and shall deliver to
the Agent copies of all reports and documents related thereto.
38. Exhibit 1G to the Credit Agreement, Lenders' Commitments, is
replaced with Exhibit 1H to this Amendment.
39. Exhibit 2C to the Credit Agreement, the Form of Revolving Notes, is
replaced with Exhibit 2E to this Agreement.
40. Exhibit 2D to the Credit Agreement, the Form of Term Notes, is
replaced with Exhibit 2F to this Amendment.
41. Part 1 of Exhibit 7 to the Credit Agreement, Judgments, Litigation,
Claims and Proceedings, is replaced with Exhibit 7C to this Amendment.
42. Part 2 of Exhibit 7 to the Credit Agreement, Events of Default and
Other Material Disputes, is replaced with Exhibit 7D to this Amendment.
22
43. Part 3 of Exhibit 7 to the Credit Agreement, Licenses, Patents,
Copyrights, Trademarks, Trade Names and Applications, is replaced with Exhibit
7E to this Amendment.
44. Part 4 of Exhibit 7 to the Credit Agreement, Security Interests,
Liens, Claims and Encumbrances, is replaced with Exhibit 7F to this Amendment.
45. Part 5 of Exhibit 7 to the Credit Agreement, Tax Liability Claims,
is replaced with Exhibit 7G to this Amendment.
46. Part 6 of Exhibit 7 to the Credit Agreement, Other Indebtedness, is
replaced with Exhibit 7H to this Amendment.
47. Part 7 of Exhibit 7 to the Credit Agreement, Other Names Used by
the Borrower, is replaced with Exhibit 7I to this Amendment.
48. Part 8 of Exhibit 7 to the Credit Agreement, Borrower's Affiliates,
is replaced with Exhibit 7J to this Amendment.
49. Part 9 of Exhibit 7 to the Credit Agreement, Environmental Matters,
is replaced with Exhibit 7K to this Amendment.
50. Part 10 of Exhibit 7 to the Credit Agreement, Bank Accounts, is
replaced with Exhibit 7L to this Amendment.
51. Part 11 of Exhibit 7 to the Credit Agreement, EFS Central Filing
System Registrations, is replaced with Exhibit 7M to this Amendment.
52. Exhibit 9B to the Credit Agreement, Form of Compliance Certificate,
is replaced with Exhibit 9C to this Amendment.
53. Assumption of Indebtedness by Asset Sub B and the Lundy
Subsidiaries; Obligations and Covenants. Asset Sub B and the Lundy Subsidiaries
hereby assume all indebtedness of Premium and Asset Sub A to the Agent and the
Lenders pursuant to, and as a co-borrowers join in the Credit Agreement. Asset
Sub B and the Lundy Subsidiaries also agree to pay all indebtedness to the Agent
and the Lenders under all promissory notes issued pursuant to the Credit
Agreement, and agree that its liability to the Agent and the Lenders with
respect to all indebtedness thereunder shall be primary as well as joint and
several with Premium and Asset Sub A, all as if Asset Sub B and the Lundy
Subsidiaries were original obligors thereof. Asset Sub B and the Lundy
Subsidiaries also agree to abide by and observe all of the covenants, terms and
conditions to be observed and performed by Borrower as contained in the Credit
Agreement, and the agreements, instruments and/or documents related thereto.
Asset Sub B and the Lundy Subsidiaries shall and are hereby added as a parties
to the Credit Agreement, and as parties to all of the agreements, instruments
and/or documents related thereto, and any and all
23
references to Borrower set forth in the Credit Agreement, or in any agreement,
instrument or document related thereto, including without limitation this
Amendment, shall hereafter include and pertain in all respects to Asset Sub B
and the Lundy Subsidiaries. Premium and Asset Sub A acknowledge and consent to
the foregoing, and agree that their liability to the Agent and the Lenders with
respect to all indebtedness under the Credit Agreement shall be primary as well
as joint and several with Asset Sub B and the Lundy Subsidiaries.
54. Representations and Warranties. To induce the Agent and the Lenders
to enter into this Amendment, the Borrower represents and warrants to the Agent
and the Lenders that except as described in this Amendment, each and every
representation and warranty set forth in the Credit Agreement is true and
correct as of the date hereof, and shall be deemed remade by the Borrower as of
the date hereof.
55. Conditions to Advances; Documentation. The effectiveness of this
Amendment and the consent of the Lenders to the Second Asset Purchase Agreement
shall be conditioned upon the execution and/or delivery of the agreements,
instruments and/or documents listed on Exhibit 8D attached hereto, all in form
and substance acceptable to the Agent and its legal counsel.
56. Incorporation of Credit Agreement. The parties agree that this
Amendment shall be an integral part of the Credit Agreement, that all of the
terms set forth therein are incorporated in this Amendment by reference, and
that all terms of this Amendment are incorporated therein as of the date of this
Amendment. All of the terms and conditions of the Credit Agreement which are not
modified in this Amendment shall remain in full force and effect. To the extent
the terms of this Amendment conflict with the terms of the Credit Agreement, the
terms of this Amendment shall control.
57. Return of Notes. After the new Notes required to be delivered
pursuant to this Amendment have been delivered to the Agent and the Lenders,
each Lender shall return to the Borrower, the Notes replaced by the new Notes
required to be delivered pursuant to this Agreement. Each Lender (including the
Agent in its capacity as a Lender) agrees to return such replaced Notes to the
Borrower as promptly as practicable after receiving the new Notes required to be
delivered pursuant to this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
24
PREMIUM STANDARD FARMS, INC.,
A DELAWARE CORPORATION
ATTEST:
BY: /s/ Gerald Schulte BY: /s/ Stephen Lightstone
------------------------ -----------------------
ITS: Secretary ITS: Executive Vice President
----------------------- -----------------------
CGC ASSET ACQUISITION CORP.,
A DELAWARE CORPORATION
ATTEST:
BY: /s/ Gerald Schulte BY: /s/ Stephen Lightstone
------------------------ -----------------------
ITS: Secretary ITS: Executive Vice President
------------------------ -----------------------
THE LUNDY PACKING COMPANY, A
NORTH CAROLINA CORPORATION
AND SUCCESSOR BY MERGER TO
PSF ACQUISITION CORP.
ATTEST:
BY: /s/ Gerald Schulte BY: /s/ Stephen Lightstone
------------------------ -----------------------
ITS: Secretary ITS: Executive Vice President
------------------------ -----------------------
TOMAHAWK FARMS, INC., A NORTH
CAROLINA CORPORATION
ATTEST:
BY: /s/ Gerald Schulte BY: /s/ Stephen Lightstone
------------------------ -----------------------
ITS: Secretary ITS: Executive Vice President
------------------------ -----------------------
BONELESS HAMS, INC., A NORTH
CAROLINA CORPORATION
ATTEST:
BY: /s/ Gerald Schulte BY: /s/ Stephen Lightstone
------------------------ -----------------------
ITS: Secretary ITS: Executive Vice President
------------------------ -----------------------
25
LUNDY INTERNATIONAL, INC., A
NORTH CAROLINA CORPORATION
ATTEST:
BY: /s/ Gerald Schulte BY: /s/ Stephen Lightstone
------------------------ -----------------------
ITS: Secretary ITS: Executive Vice President
------------------------ -----------------------
DOGWOOD FARMS, INC., A NORTH
CAROLINA CORPORATION
ATTEST:
BY: /s/ Gerald Schulte BY: /s/ Stephen Lightstone
------------------------ -----------------------
ITS: Secretary ITS: Executive Vice President
------------------------ -----------------------
DOGWOOD FARMS II, LLC, A
NORTH CAROLINA LIMITED
LIABILITY COMPANY
BY: /s/ Stephen Lightstone
------------------------
ITS: Executive Vice President
------------------------
26
U.S. BANCORP AG CREDIT, INC.,
AS AGENT AND AS A LENDER
950 17TH STREET, SUITE 350
DENVER, COLORADO 80202
BY: /s/
-----------------------
ITS: Vice President
-----------------------
FARM CREDIT SERVICES OF
WESTERN MISSOURI, PCA
BY: /s/
-----------------------
ITS: Vice President
-----------------------
FIRSTAR BANK, N.A. (F/K/A
MERCANTILE BANK NATIONAL
ASSOCIATION)
BY: /s/
-----------------------
ITS: Vice President
-----------------------
HARRIS TRUST AND SAVINGS BANK
BY: /s/
-----------------------
ITS: Vice President
-----------------------
27
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 8/21/05 | | 11 | | | | | None on these Dates |
| | 9/17/03 | | 11 |
| | 8/21/03 | | 11 |
| | 2/21/02 | | 14 |
| Filed on: | | 6/29/01 |
| | 12/31/00 | | 6 | | 13 |
| | 10/1/00 | | 12 | | 16 |
| | 9/30/00 | | 16 |
| | 8/21/00 | | 5 |
| | 7/12/00 | | 1 |
| | 8/27/97 | | 1 |
| List all Filings |
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