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.C — Second Amendment to Credit Agreement
| EX-4.3.C | 1st Page of 8 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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Exhibit 4.3(c)
SECOND AMENDMENT TO CREDIT AGREEMENT
BETWEEN U.S. BANCORP AG CREDIT, INC.
AS AGENT FOR ITSELF AND CERTAIN OTHER LENDERS
AND
PREMIUM STANDARD FARMS, INC.
DATED AUGUST 27, 1997
This Second Amendment to Credit Agreement (this "AMENDMENT") is made this
26th day of February, 1999 among PREMIUM STANDARD FARMS, INC., a Delaware
corporation ("PREMIUM"), CGC ASSET ACQUISITION CORP., a Delaware corporation
("ASSET SUB" and collectively with Premium, the "BORROWER"), the financial
institutions listed on the signature pages hereof (collectively the "LENDERS"
and individually a "LENDER") 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. The Borrower, the Agent and the Lenders have each acknowledged the
existence of breaches or violations of certain of the provisions of the Credit
Agreement dated as of August 27, 1997 among the Borrower, the Agent and the
Lenders (as amended, extended, replaced, restated and/or supplemented from time
to time, the "CREDIT AGREEMENT"). The Agent and the Lenders have agreed to waive
these particular breaches or violations and continue to make revolving credit
advances under the Credit Agreement on the terms and conditions herein
contained.
B. The Borrower desires to enter into the following transactions (the
"TRANSACTIONS"):
(i) The Borrower proposes to convey to the City of Gallatin, Missouri,
Daviess County Missouri and/or the State of Missouri, the Borrower's office
building complex in exchange for a release by the City of Gallatin and
Daviess County and/or the Missouri Department of Economic Development of
the Borrower's commitments to complete the infrastructure of the business
park surrounding the office building (the "OFFICE BUILDING TRANSACTION");
and
(ii) The Borrower proposes to sell approximately 915 acres of real
property known as the Green Hills property to Dave Perkins for $300 per
acre (this transaction is hereinafter referred to as the "PERKINS
TRANSACTION" and shall be referred to collectively with the Office Building
Transaction as the "TRANSACTIONS").
C. The Credit Agreement currently prohibits the Borrower from entering into
the Transactions. The Borrower has requested that the Agent and the Lenders
consent to the Borrower entering into the Transactions, and the Agent and the
Lenders are willing to do so on the terms and conditions herein contained.
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 at any time made
to or for the benefit of the Borrower by Agent and the Lenders, the Borrower,
the Agent and the Lenders agree as follows:
1. Definitions. Capitalized terms used and not defined in this Amendment
shall have the meanings given to such terms in the Credit Agreement.
2. Representation and Warranty as to Transactions, and Consent to
Transactions. 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 with the Transactions, does not contain any untrue statement of
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
Agreement. In reliance on the foregoing representation and warranties, the Agent
and the Lenders consent to the Transactions notwithstanding anything contained
in the Credit Agreement prohibiting the Transactions.
3. Acknowledgment of Specific Defaults. The Borrower, the Agent and each of
the Lenders acknowledge the existence of the following Defaults and Matured
Defaults: (a) the Borrower's monthly financial statements and Borrowing Base
Certificate for the month ending September 26, 1998 were not delivered to the
Agent and the Lenders in a timely manner as required by Section 9.1 of the
Credit Agreement; (b) as of October 31, November 28 and December 26, 1998 and as
of January 30, 1999, the aggregate principal amount of all Revolving Loans, plus
the aggregate face amount of all outstanding LC's, exceeded the Borrowing Base,
and the Borrower failed to cure or otherwise eliminate such excess in the manner
required by Section 4.3 of the Credit Agreement; and (c) as of October 31,
November 28 and December 26, 1998 and as of January 30, 1999, the Borrower had a
Fixed Charge Coverage Ratio (calculated on a rolling twelve month basis) of less
than 0.80 to 1.0, the level required by Section 9.6 of the Credit Agreement.
4. Acknowledgment of Anticipated Defaults. The Borrower, the Agent and each
of the Lenders acknowledge the likelihood of additional Defaults and Matured
Defaults occurring because, when the Borrower's February 27, March 27, April 24
and May 29, 1999 Borrowing Base Certificates are delivered to the Agent and the
Lenders, each such Borrowing Base Certificate is expected to show that the
aggregate principal amount of all Revolving Loans, plus the aggregate face
amount of all outstanding LC's, will then exceed the Borrowing Base. The
Borrower, the Agent and each of the Lenders further acknowledge, however, that
the amount by which the aggregate principal amount of all Revolving Loans, plus
the aggregate face amount of all outstanding LC's, exceeds the Borrowing Base
(an "EXCESS") shall not exceed: (a) $13,000,000 during February, 1999, (b)
$10,000,000 during March, 1999, (c) $7,000,000 during April, 1999, or (d)
$3,000,000 during May, 1999.
5. Waiver of Specific Defaults. The Agent and the Lenders waive the
specific Defaults and Matured Defaults acknowledged in Section 3 of this
Amendment, and the anticipated Defaults or Matured Defaults described in Section
4 of this Amendment. The foregoing waivers shall be automatically withdrawn and
rescinded without notice of any kind: (a) if any Borrowing Base Certificate is
not delivered to the Agent and the Lenders when the
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same is due; (b) if the Borrower's June 26, 1999 Borrowing Base Certificate,
when delivered to the Agent and the Lenders, shows the existence of an Excess;
or (c) if the Excess shown on any Borrowing Base Certificate delivered to the
Agent and the Lenders, exceeds the expected amount of such Excess as set forth
in Section 4. Except as expressly set forth in this Section 5, the Agent's or
the Lenders' failure, at any time or times hereafter, to require strict
performance by Borrower of any provision of the Credit Agreement, including
without limitation, Sections 9.1, 4.3 and 9.6, shall not waive, affect or
diminish any right of the Agent and/or the Lenders thereafter to demand strict
compliance therewith and performance thereof, and shall not suspend, waive or
affect any other Default or Matured Default, whether the same is prior or
subsequent thereto and whether of the same or a different kind or character.
6. New Defined Terms. Section 1.1 of the Credit Agreement, Defined Terms,
is amended to add the following new definitions which shall read in full as
follows:
"AMENDMENT #2 CLOSING DATE" shall mean February 26, 1999.
"TEMPORARY ADDITIONAL MARGIN" shall mean additional interest at the
rate of one eighth of one percent (0.125%), which additional interest rate
shall be in effect from February 1, 1999 until the first day of the fiscal
quarter following any fiscal quarter at the end of which the Borrower both
has a Fixed Charge Coverage Ratio of 1.0 to 1.0 or greater and is otherwise
in full compliance with all terms, provisions and covenants of this
Agreement.
7. Interest. Paragraphs (a) and (b) of Section 3.1 of the Credit Agreement,
Interest, are amended to read in full as follows:
(a) So long as no Matured Default has occurred or is continuing,
during such periods as such Loan is a Reference Rate Loan, a rate per annum
equal to the lesser of (i) the sum of the Reference Rate in effect from
time to time plus the Applicable Margin plus (if then in effect) the
Temporary Additional Margin, and (ii) the Highest Lawful Rate, payable
monthly in arrears on the first day of each month commencing September 1,
1997, and if such Loan is a Revolving Loan, on the Revolving Maturity Date,
and if such Loan is a Term Loan, on the Term Maturity Date. With respect to
each Reference Rate Loan, the rate of interest accruing shall change
concurrently with each change in the Reference Rate as announced by U.S.
Bank.
(b) So long as no Matured Default has occurred or is continuing,
during such periods as such Loan is a Eurodollar Rate Loan, a rate per
annum during each Interest Period for such Loan, equal to the lesser of (i)
the sum of the Eurodollar Rate for, such Interest Period for such Loan plus
the Applicable Margin plus (if then in effect) the Temporary Additional
Margin and (ii) the Highest Lawful Rate, payable in arrears on the first
day of each month during the applicable Interest Period, on the ninetieth
day of such Interest Period if such Interest Period
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exceeds three months, and on the last day of such Interest Period, and if
such Loan is a Revolving Loan, also on the Revolving Maturity Date, and if
such Loan is a Term Loan, also on the Term Maturity Date.
8. Financial Statements and Other Information. Clauses (b) and (c) of
Section 9.1 of the Credit Agreement are amended to read in full as follows:
(b) 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 and retained earnings 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 accurate by the chief financial officer or
controller of the Borrower, subject to changes resulting from normal
year-end adjustments, and (ii) statements of cash flow for such monthly
period; and as soon as practicable and in any event within thirty (30) days
after the end of each quarterly accounting period in each Fiscal Year of
the Borrower (other than the end of the quarterly accounting period which
is also the end of the Borrower's Fiscal Year): 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 fifteen (15) days
after the end of each month, a Borrowing Base Certificate for the Borrower
computed as of the last day of such month, and as soon as practicable and
in any event within two (2) days after a request therefor by the Required
Lenders, a Borrowing Base Certificate for the Borrower computed as of the
date specified by the Required Lenders, in all cases signed by the chief
financial officer of the Borrower, together with, to the Agent only: (i)
all Accounts owing by an Account Debtor that is a meat packer for the sale
of "livestock" (as defined in PASA) if any Account owing by such Account
Debtor is at that time unpaid for a period exceeding seven (7) days after
the delivery date related thereto; (b) all Accounts owing by an Account
Debtor that is not a meat packer or by an Account Debtor that is a meat
packer for the sale of inventory other than "livestock" (as defined in
PASA) if any Account owing by such Account Debtor is at that time unpaid
for a period exceeding twenty-one (21) days after the original invoice date
of the original invoice related thereto, (ii) a listing of the Borrower's
accounts payable indicating which accounts payable are more than thirty
(30) days past due, and (iii) a detailed listing of Inventory and other
goods;
9. Financial Covenants and Ratios. Section 9.6 of the Agreement is amended
to read in full as follows:
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The Borrower shall maintain:
(a) a consolidated Tangible Net Worth of not less than $220,000,000 at
all times;
(b) a consolidated ratio of total liabilities to Tangible Net Worth of
not more than 1.75 to 1.0 at all times;
(c) consolidated Working Capital of not less $20,000,000 at all times
through March 31, 2000 and not less than $30,000,000 thereafter,
(d) a Fixed Charge Coverage Ratio (calculated on a rolling twelve
month basis) as of the end of each fiscal quarter of the Borrower,
beginning as of June 24, 2000, of not less 1.0 to 1.0 at all times; and
(e) a consolidated EBITDA (calculated on a rolling four quarter basis)
of not less than: (i) $2,500,000 through December 26, 1998, (ii)
($12,300,000) through March 27, 1999, (iii) ($15,200,000) through June 26,
1999, (iv) ($2,200,000) through September 25, 1999, (v) $10,500,000 through
December 25, 1999, and (vi) $34,500,000 through March 25, 2000.
10. Capital Investment Limitations. Section 10.7 of the Agreement is
amended to read in full as follows:
Without the prior written consent of the Required Lenders, during the
period from January 1, 1999 through March 25, 2000, the Borrower shall not
purchase, invest in or otherwise acquire additional real estate, equipment
or other fixed assets in excess of $17,000,000 for maintenance (other than
the replacement of breeding animals in the ordinary course of business not
exceeding $10,000,000 during such period), and the Borrower shall not
purchase, invest in or otherwise acquire additional real estate, equipment
or other fixed assets for purposes other than maintenance. Beginning with
the Borrower's fiscal quarter ending in June 2000, the Borrower shall not
purchase, invest in or otherwise acquire additional real estate, equipment
or other fixed assets (other than the replacement of breeding animals in
the ordinary course of business and the replacement of obsolete and worn
out Equipment in the ordinary course of business) which would cause its
Capital Spending Amount in any one Fiscal Year to exceed the lesser of: (a)
the maximum amount that would maintain the Borrower's consolidated Fixed
Charge Coverage Ratio for such Fiscal Year at the level required in Section
9.6(d), (b) $43,000,000, or (c) the following specific limits: (i)
$36,000,000 during the Borrower's 2001 Fiscal Year, and (ii) $32,000,000
during the Borrower's 2002 Fiscal Year plus the amount (if any) by which
the Borrower's capital expenditures during its 2001 Fiscal Year were less
than the specific limit for that Fiscal Year.
5
11. Payment of Subordinated Debt. Section 10.14 of the Agreement is amended
to read in full as follows:
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 Premium, of Asset Sub or of
both, which is subordinated to the payment of any portion of the
Liabilities. Without limiting the generality of the foregoing: (a) through
the end of the Borrower's 2000 Fiscal Year, the Borrower shall not pay any
principal of or interest on the PIK Notes other than the payment of
interest through the issuance of additional PIK Notes unless otherwise
approved in writing by the Required Lenders, and (b) after the end of the
Borrower's 2000 Fiscal Year, the Borrower shall not pay any principal of or
interest on the PIK Notes unless no Default or Matured Default exists at
the time of such payment or would be created by such payment.
12. Construction of Hog Production Facilities. Section 10.16 of the Credit
Agreement, Construction of Hog Facilities, is amended to read in full as
follows:
The Borrower shall not construct any hog production facilities
(whether as part of its Texas expansion program or otherwise) without the
prior written consent of the Required Lenders.
13. Effective Date Adjustment Fee. In the event the Amendment #2 Closing
Date occurs on a date other than February 1, 1999, the changes made in the
definition of Applicable Margin shall be effective on February 1, 1999. In
addition, regardless of the date of the Amendment #2 Closing Date, the Borrower
agrees to pay to the Agent for the ratable benefit of the Lenders, an effective
date adjustment fee in the amount of Twenty Three Thousand Three Hundred Seventy
Five Dollars ($23,375.00). The effective date adjustment fee shall be due and
payable on the date of this Amendment, shall be fully earned on the date it
becomes payable, and at the option of the Agent shall be paid by Agent initiated
Revolving Loans.
14. Amendment Fee. In consideration of the other changes in terms made
pursuant to this Amendment, the Borrower agrees to pay to the Agent for the
ratable benefit of the Lenders, an amendment fee in the amount of One Hundred
Thirteen Thousand Five Hundred Fifty and No/100ths Dollars ($113,550.00). The
amendment fee shall be due and payable on the date of this Amendment, shall be
fully earned on the date it becomes payable, and at the option of the Agent
shall be paid by Agent initiated Revolving Loans.
15. Amendment of Exhibits. Exhibit 9B to the Credit Agreement, the Form of
Compliance Certificate, is replaced with Exhibit 9C to this Amendment.
16. 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 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.
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17. Conditions to Advances; Documentation. The effectiveness of this
Amendment shall be conditioned upon the execution and/or delivery of the
agreements, instruments and/or documents listed on Exhibit 8D attached hereto.
18. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
PREMIUM STANDARD FARMS, INC.,
A DELAWARE CORPORATION
BY: /s/ Stephen Lightstone
-------------------------------------
ITS: Executive Vice President
-------------------------------------
CGC ASSET ACQUISITION CORP.
A DELAWARE CORPORATION
BY: /s/ John Meyer
-------------------------------------
ITS: Vice President
-------------------------------------
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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: Senior Vice President
-------------------------------------
MERCANTILE BANK NATIONAL ASSOCIATION
BY: /s/ Wayne C. Lewis
-------------------------------------
ITS: Vice President
-------------------------------------
HARRIS TRUST AND SAVINGS BANK
BY: /s/
-------------------------------------
ITS: Vice President
-------------------------------------
CREDIT AGRICOLE INDOSUEZ
By: /s/ Katherine L. Abbott
-------------------------------------
ITS: First Vice Presisdent
-------------------------------------
By: /s/ W. Leroy Startz
-------------------------------------
ITS: First Vice President
-------------------------------------
HELLER FINANCIAL, INC.
BY: /s/
-------------------------------------
ITS: Senior Vice President
-------------------------------------
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 6/29/01 | | | | | | | None on these Dates |
| | 6/24/00 | | 5 |
| | 3/31/00 | | 5 |
| | 3/25/00 | | 5 |
| | 12/25/99 | | 5 |
| | 9/25/99 | | 5 |
| | 6/26/99 | | 3 | | 5 |
| | 5/29/99 | | 2 |
| | 3/27/99 | | 5 |
| | 2/26/99 | | 3 |
| | 2/1/99 | | 3 | | 6 |
| | 1/30/99 | | 2 |
| | 1/1/99 | | 5 |
| | 12/26/98 | | 2 | | 5 |
| | 9/26/98 | | 2 |
| | 9/1/97 | | 3 |
| | 8/27/97 | | 1 |
| List all Filings |
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