EXHIBIT 10.31
EXECUTION COPY
AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT
dated as of
October 11, 2001,
as amended by amendments
dated as of
November 6, 2001,
February 15, 2002
and December 8, 2003
as further amended and restated as of
January 13, 2004
among
LAND O'LAKES, INC.,
as Borrower
The Lenders Party Hereto
JPMORGAN CHASE BANK,
as Administrative Agent and Collateral Agent
COBANK, ACB,
as Co-Administrative Agent
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Collateral Agent
X.X. XXXXXX SECURITIES INC.
as Sole Lead Arranger and Bookrunner
FOURTH AMENDMENT AND RESTATEMENT dated as of
January 13, 2004 (this "Amendment"), to the AMENDED
AND RESTATED FIVE-YEAR CREDIT AGREEMENT dated as of
October 11, 2001, as amended by amendments dated as
of November 6, 2001, February 15, 2002, and December
8, 2003 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"),
among LAND O'LAKES, INC., a cooperative corporation
organized under the laws of the State of Minnesota
(the "Borrower"), the several banks and other
financial institutions and entities from time to time
party thereto (the "Lenders"), JPMORGAN CHASE BANK
(formerly known as "The Chase Manhattan Bank"), as
administrative agent (in such capacity, the
"Administrative Agent") and as collateral agent (in
such capacity, the "Collateral Agent"), COBANK, ACB,
as co-administrative agent (in such capacity, the
"Co-Administrative Agent"), and General Electric
Capital Corporation, as co-collateral agent (in such
capacity, the "Co-Collateral Agent").
A. The Borrower has requested that the Credit Agreement be
amended and restated to provide for (i) new Loans thereunder (the "New Loans"),
the proceeds of which will be utilized to refinance all currently outstanding
Loans and (ii) new Commitments thereunder (the "New Commitments") as set forth
on Schedule A hereto, which will replace all currently existing Commitments and
which, in each case, except as revised hereby, will have the same terms as the
currently outstanding Loans and existing Commitments under the Credit Agreement.
B. The Borrower has also requested that, in connection with
such amendment and restatement, the Lenders modify certain provisions of the
Credit Agreement, among other things, to increase the LC Exposure amount, adjust
the Applicable Rate with respect to the Loans and commitment fees payable,
extend the Maturity Date and modify the Borrower's Leverage Ratio covenant.
C. Each existing Lender (an "Existing Lender") that executes
and delivers this Amendment (a "Renewing Lender") will be deemed, upon the
Amendment Effective Date (as defined below) to have (i) made a commitment to (x)
make New Loans in an aggregate principal amount up to, but not in excess of, the
aggregate principal amount of such Existing Lender's outstanding Loans
immediately prior to such effectiveness ("Existing Loans") and (y) provide New
Commitments in an aggregate principal amount up to, but not in excess of, the
aggregate principal amount of such Existing Lender's existing Commitments
immediately prior to such effectiveness ("Existing Commitments") and (ii) made
such New Loans by exchanging its Existing Loans for New Loans in an equal
principal amount.
D. Each Person that executes and delivers this Amendment as an
Additional Lender (an "Additional Lender", including any Existing Lender
undertaking a commitment in respect of Loans or Commitments in excess of the
amount of its Existing Loans and Existing Commitments, to the extent of such
excess) will (i) make New Loans
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to the Borrower on the Amendment Effective Date ("Additional Loans"), the
proceeds of which will be used by the Borrower, to repay in full the outstanding
principal amount of Loans of Existing Lenders that are not Renewing Lenders and
(ii) if applicable, extend Commitments to the Borrower on the Amendment
Effective Date ("Additional Commitments"), which will replace the Commitments of
Lenders that are not Renewing Lenders.
E. The Lenders are willing to effect such amendment and
restatement on the terms and subject to the conditions of this Amendment.
F. The Renewing Lenders and the Additional Lenders
(collectively, the "New Lenders") are severally willing to make the New Loans
and New Commitments as contemplated hereby, in each case, subject to the terms
and conditions set forth in this Amendment.
G. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Credit Agreement, as amended and
restated hereby.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment and Restatement of the Credit Agreement.
The Credit Agreement is hereby amended and restated, effective as of the
Amendment Effective Date (as defined below), in the form of the Credit Agreement
immediately prior to the Amendment Effective Date with the following changes and
revisions:
(a) Amendment of Section 1.01. Section 1.01 is hereby revised
by:
(i) Inserting the following definitions in the appropriate
alphabetical order therein:
"'Accession Agreement' shall mean an Accession
Agreement substantially in the form of Exhibit H hereto among
a Prospective Lender, the Borrower and the Administrative
Agent.
'Borrowing Base' means, at any time (subject to
adjustment as provided in Section 5.09(d)), the result of: (a)
65% (or such other percentage determined in accordance with
Section 5.09(d)) of the amount by which the aggregate amount
of Eligible Inventory (valued at the lower of (i) cost, on a
first-in first-out basis or (ii) fair market value, except
that dairy inventory shall be valued at net book value)
exceeds, without duplication, the amount of Inventory Reserves
at such time, plus (b) 80% (or such other percentage
determined in accordance with Section 5.09(d)) of the amount
by which the aggregate amount of Eligible Receivables exceeds
reserves maintained by the Borrower and the Subsidiary Loan
Parties in respect of Eligible Receivables relating to
discounts, advertising, allowances and similar items at such
time, plus (c) the lesser of (i)
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$175,000,000 and (ii) (A) if no appraisal has been conducted
pursuant to Section 5.09(c), 40% (or such other percentage
determined in accordance with Section 5.09(d)) of the net book
value of Eligible Property Plant and Equipment at such time,
or (B) if an appraisal has been conducted pursuant to Section
5.09(c), (x) the sum of (1) 80% (or such other percentage
determined in accordance with Section 5.09(d)) of the net
orderly liquidation value of Eligible Property Plant and
Equipment (other than real property and improvements thereon)
plus (2) if not otherwise included in the net orderly
liquidation value calculation reflected in such appraisal, 60%
(or such other percentage determined in accordance with
Section 5.09(d)) of the fair market value, if reflected in
such appraisal, of real property and improvements thereon, and
such other items deemed appropriate for appraisal at fair
market value by the Security Agents in accordance with Section
5.09(d), that constitute Eligible Property Plant and
Equipment, in each case as determined by such appraisal and
(y) if deemed appropriate by the Security Agents in accordance
with Section 5.09(d), 40% (or such other percentage determined
in accordance with Section 5.09(d)) of the net book value of
any items or classes of items of Eligible Property Plant and
Equipment that are not included in the appraised value of
Eligible Property Plant and Equipment, plus (d) 50% (or such
other percentage determined in accordance with Section
5.09(d)) of the Residual Value of the Receivables
Securitization SPE at such time, minus (e) the aggregate
principal amount of loans outstanding under the Related Credit
Facility, minus (f) such other reserves as are deemed
appropriate by the Security Agents in accordance with Section
5.09(d). The Borrowing Base at any time shall be determined by
reference to the most recent Borrowing Base Certificate
delivered to the Collateral Agent in accordance with Section
5.01(f), absent any error in such Borrowing Base Certificate;
provided that within five Business Days after the disposition
of any Subsidiary Loan Party or line or lines of business
operated by the Borrower or any Subsidiary Loan Party
involving in the aggregate assets in excess of 2% of the total
consolidated assets of the Borrower and the Subsidiary Loan
Parties following the delivery of any Borrowing Base
Certificate, the Borrower shall deliver to the Collateral
Agent a good faith estimate of the reduction to the Borrowing
Base resulting from such disposition or dispositions and the
Borrowing Base shall be reduced by such amount until the
delivery of a new Borrowing Base Certificate in accordance
with Section 5.01(f).
'Borrowing Base Certificate' means a certificate
substantially in the form of Exhibit G hereto, or any other
form approved by the Collateral Agent, signed by a Financial
Officer.
'Co-Collateral Agent' means General Electric Capital
Corporation in its capacity as co-collateral agent for the
Lenders hereunder.
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'Eligible Inventory' means, on any date, all
inventory of the Borrower and the Subsidiary Loan Parties at
the time of such determination, other than any inventory that
is ineligible for inclusion in the calculation of the
Borrowing Base pursuant to any of clauses (a) through (p)
below. Without limiting the foregoing, to qualify as "Eligible
Inventory", the inventory must be usable in the manufacturing
process or saleable in the ordinary course of business of the
Borrower or the Subsidiary Loan Parties and no Person other
than the Borrower or any Subsidiary Loan Party shall have any
direct or indirect ownership, interest (other than Liens
permitted by clause (f) below) or title to such inventory and
no person other than the Borrower or any Subsidiary Loan Party
shall be indicated on any purchase order or invoice with
respect to such inventory as having or purporting to have, at
the time of determination, an interest therein. Unless
otherwise from time to time approved by each Security Agent,
no inventory shall be deemed Eligible Inventory if, without
duplication:
(a) it is not owned solely by the Borrower or one or
more Subsidiary Loan Parties or the Borrower or one or more
Subsidiary Loan Parties do not have sole lawful and absolute
title thereto;
(b) it is not located in a jurisdiction of the United
States;
(c) it is not located on property owned by the
Borrower or a Subsidiary Loan Party, unless it (i) is in the
possession of a warehouseman or other bailee (including any
outside processor) or a customer and the Collateral Agent has
received a bailee waiver (or comparable customer waiver) in
form and substance reasonably satisfactory to the Collateral
Agent from such warehouseman, bailee or customer or (ii) is
located at a premises leased to the Borrower or a Subsidiary
Loan Party and the Collateral Agent has received a landlord's
waiver in form and substance reasonably satisfactory to the
Collateral Agent from the landlord of such premises; provided
that despite any failure to obtain any such waiver required
pursuant to either of clauses (i) or (ii), inventory otherwise
satisfying the requirements of clauses (i) and (ii) shall
nonetheless not be deemed ineligible pursuant to this
paragraph (c) during the period ending 90 days after the
Fourth Amendment Effective Date.
(d) it constitutes goods returned or rejected due to
quality issues by customers or goods in transit to third
parties;
(e) it constitutes operating supplies, packaging or
shipping materials, cartons, repair parts, labels or
miscellaneous spare parts or other such materials not used in
the manufacturing process or held for sale in the ordinary
course of business;
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(f) it is not subject to a valid and perfected first
priority security interest in favor of the Collateral Agent
subject to no other Liens other than Liens created under the
Loan Documents, Permitted Encumbrances described in clauses
(a), (b), (e) or (f) of the definition of "Permitted
Encumbrances", the junior priority security interests created
pursuant to the Second Lien Security Documents securing the
Senior Second Lien Notes and other junior priority Liens
permitted by Section 6.02 that are subordinated to the Liens
securing the Obligations on terms reasonably satisfactory to
each Security Agent;
(g) it is consigned but still accounted for in the
Borrower's or a Subsidiary Loan Party's perpetual inventory
balance;
(h) it is stale or it is obsolete or slow moving or
unmerchantable or is identified as overstock or excess by the
Borrower or a Subsidiary Loan Party;
(i) it is inventory used as a sample or prototype or
displays or display items;
(j) it is a discontinued product or component
thereof;
(k) except in the case of profit on dairy inventory
due to xxxx to market adjustments, any portion of the value
thereof is attributable to intercompany profit among the
Borrower or its Affiliates;
(l) it is damaged, defective, not in good condition,
or returned or marked for return to vendor;
(m) it does not meet all material standards imposed
by any Governmental Authority having regulatory authority over
it;
(n) it is located on property where the value of all
inventory of the Borrower and the Subsidiary Loan Parties
located thereon is less than $500,000;
(o) except in the case of dairy inventory, it is
classified as work in process by the Borrower or a Subsidiary
Loan Party or requires further manufacturing or processing by
the Borrower or a Subsidiary Loan Party; or
(p) it is otherwise deemed ineligible by the Security
Agents in accordance with Section 5.09(d).
'Eligible Property Plant and Equipment' means, on any
date, all property, plant and equipment of the Borrower and
the Subsidiary Loan Parties at the time of such determination,
other than computer software and other items of property,
plant or equipment that are ineligible for
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inclusion in the calculation of the Borrowing Base pursuant to
any of clauses (a) through (g) below. Without limiting the
foregoing, to qualify as "Eligible Property Plant and
Equipment" no Person other than the Borrower or any Subsidiary
Loan Party shall have any direct or indirect ownership,
interest (other than Liens permitted by clause (d) below) or
title to such property, plant or equipment and neither the
Borrower nor any Subsidiary Loan Party shall have acquired
such property, plant or equipment pursuant to a contract or
other agreement that indicates that any Person other than the
Borrower or any Subsidiary Loan Party has or purports to have,
at the time of determination, an interest therein. Unless
otherwise from time to time approved by each Security Agent,
no item of property, plant or equipment shall be deemed
Eligible Property Plant and Equipment if, without duplication:
(a) it is not owned solely by the Borrower or one or
more Subsidiary Loan Parities or the Borrower or one or more
Subsidiary Loan Parties does not have sole lawful and absolute
title thereto;
(b) it is not located in a jurisdiction of the United
States;
(c) it is, in the case of any machinery or equipment,
not located on property owned by the Borrower or a Subsidiary
Loan Party, unless it is located at a premises leased to the
Borrower or a Subsidiary Loan Party and the Collateral Agent
has received a landlord's waiver in form and substance
reasonably satisfactory to the Collateral Agent from the
landlord of such premises; provided that despite any failure
to obtain any such waiver, machinery or equipment located on
leased premises otherwise deemed Eligible Property Plant and
Equipment shall nonetheless not be deemed ineligible pursuant
to this paragraph (c) during the period ending 90 days after
the Fourth Amendment Effective Date;
(d) it is not subject to a valid and perfected first
priority security interest, mortgage or deed of trust in favor
of the Collateral Agent subject to no other Liens other than
Liens created under the Loan Documents, Permitted Encumbrances
described in clauses (a), (b), (e) or (f) of the definition of
"Permitted Encumbrances", the junior priority security
interests created pursuant to the Second Lien Security
Documents securing the Senior Second Lien Notes, and other
junior priority Liens permitted by Section 6.02 that are
subordinated to the Liens securing the Obligations on terms
reasonably satisfactory to each Security Agent;
(e) it constitutes construction-in-process or, in the
case of any plant or other facility or any machinery or
equipment, is otherwise not operational;
(f) it is, in the case of any machinery or equipment,
obsolete or not in good working order or condition, ordinary
wear and tear excepted; or
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(g) it is otherwise deemed ineligible by the Security
Agents in accordance with Section 5.09(d).
'Eligible Receivables' means, on any date, the
aggregate amount of all Accounts (as defined in the Collateral
Agreement) of the Borrower and the Subsidiary Loan Parties at
the time of determination, owned solely by the Borrower or one
or more Subsidiary Loan Parties and arising from the
completed, outright and lawful sale by the Borrower or a
Subsidiary Loan Party of inventory in the ordinary course of
its business other than the following (determined without
duplication):
(a) any Account not payable in dollars;
(b) any Account to which the Borrower or one or more
Subsidiary Loan Parties do not have sole lawful and absolute
title;
(c) any Account that (i) is not subject to a valid
and perfected first priority security interest in favor of the
Collateral Agent subject to no other Liens other than Liens
created under the Loan Documents, Permitted Encumbrances
described in clauses (a), (b), (e) or (f) of the definition of
"Permitted Encumbrances", the junior priority security
interests created pursuant to the Second Lien Security
Documents securing the Senior Second Lien Notes and other
junior priority liens permitted by Section 6.02 that are
subordinated to the Liens securing the Obligations on terms
reasonably satisfactory to each Security Agent or (ii) does
not otherwise conform in all material respects to the
representations and warranties contained in the Collateral
Agreement relating to Accounts;
(d) any Account that is not paid within 60 days after
the date of the invoice for the related inventory;
(e) any Account owing from an account debtor that is
a Governmental Authority;
(f) any Account owing from a subsidiary, employee,
officer, agent, director or Affiliate of the Borrower or a
Subsidiary Loan Party;
(g) the Account is a non-trade Account, or relates to
payments for interest;
(h) any Account (other than an LC-Backed Receivable)
owing from an account debtor whose principal place of business
is located outside of the United States of America; provided
that the aggregate amount of Accounts that are not excluded
from the definition of "Eligible Receivables" pursuant to this
clause (h) by virtue of their constituting LC-Backed
Receivables (other than LC-Backed Receivables the related
letter of credit for which has been delivered to the
Collateral Agent in pledge
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under the Collateral Agreement) may not exceed 10% of the
Borrowing Base;
(i) any Account owing from an account debtor that is
insolvent or the subject of a bankruptcy case or is unable to
pay creditors generally,
(j) any Account that is more than 30 days past due;
(k) all Accounts of any account debtor if more than
30% of the aggregate amount of the accounts owing from such
account debtor are more than 30 days past due;
(l) all Accounts owing from any account debtor if the
accounts owing from such account debtor and its Affiliates at
the time exceed 10% of all accounts then payable to the
Borrower and the Subsidiary Loan Parties;
(m) if an Account owing from any account debtor is
not paid within 60 days after the date of invoice or is more
than 30 days past due, the amount of any net credit balances
relating to all Accounts due from such account debtor with
invoice dates more than 60 days after the date of invoice or
more than 30 days from the due date;
(n) any Account as to which there is any unresolved
dispute with the respective account debtor (but only to the
extent of the amount thereof in dispute);
(o) any Account invoiced in advance of goods or
services provided;
(p) any Account as to which the associated income has
not been earned;
(q) any Account that does not constitute an "account"
or an "instrument" within the meaning of the Uniform
Commercial Code in the State in which the Account is located;
(r) any Account that is not in full force and effect
or that does not constitute a legal, valid and binding
obligation of the applicable account debtor enforceable in
accordance with its terms;
(s) any Account that does not comply in all material
respects with the requirements of all applicable laws and
regulations, whether Federal, State or local;
(t) any Account (i) evidenced by an Instrument (as
defined in the Uniform Commercial Code) not in the possession
of the Collateral Agent and containing all necessary
endorsements or (ii) constituting any, or a
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portion of, Chattel Paper (as defined in the Uniform
Commercial Code) not in the possession of the Collateral
Agent;
(u) any Account representing an obligation for goods
sold (other than seed) on consignment, approval or a
sale-or-return basis or subject to any other repurchase or
return arrangement (other than policies permitting the return
of damaged or defective goods);
(v) any Account as to which the sale to the account
debtor is on a xxxx-and-hold, or other similar basis;
(w) any Account as to which the goods giving rise to
such Account have not been shipped and title has not been
transferred to the account debtor, or the Account represents a
progress-billing or otherwise does not represent a complete
sale; for purposes hereof, `progress-billing' means any
invoice for goods sold or leased or services rendered under a
contract or agreement pursuant to which the account debtor's
obligation to pay such invoice is conditioned upon the
completion by the seller of any further performance under the
contract or agreement;
(x) any Account not paid in full, and for which the
Borrower or any Subsidiary Loan Party created a new receivable
for the unpaid portion of the Account, and other Accounts
constituting chargebacks, debit memos and other adjustments
for unauthorized deductions;
(y) any Account if a check, promissory note, draft,
trade acceptance or other Instrument (as defined in the
Uniform Commercial Code) for the payment of money has been
received or presented for payment for such Account or any
portion thereof and has been returned uncollected for any
reason;
(z) any Account for goods that have been acquired by
the Borrower or any Subsidiary Loan Party under a purchase
order or pursuant to the terms of a contract or other
agreement or understanding (written or oral) that indicates
that any Person other than the Borrower or any Subsidiary Loan
Party has or purports to have, at the time of determination,
an ownership interest in such goods;
(aa) any Account created on cash on delivery terms;
(ab) any Account subject to any adverse security
deposit, progress payment, retainage or other similar advance
made by or for the benefit of the applicable account debtor,
in each case to the extent thereof;
(ac) any amount as to which there is an offsetting
liability from the Borrower, any Subsidiary Loan Party or any
Affiliate of the Borrower (but only to the extent of the
amount of such offsetting liability); and
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(ad) other Accounts deemed ineligible by the Security
Agents in accordance with Section 5.09(d).
'Eligible Securitization Receivables' means, on any
date, the aggregate amount of all Accounts (as defined in the
Collateral Agreement, but without giving effect to the
specific exclusion of particular accounts from such
definition) (a) originated by the Borrower or any Subsidiary
Loan Party in the ordinary course of its business, (b)
purchased or otherwise acquired by a Securitization Vehicle in
a Securitization and (c) that qualify as "Eligible
Receivables" (or any comparable defined term) pursuant to and
as defined in any receivables purchase agreement (or
comparable document) in connection with the sale of Third
Party Securities by such Securitization Vehicle.
'Fourth Amendment' means the Fourth Amendment and
Restatement, dated as of January 13, 2004, to this Agreement.
'Fourth Amendment Effective Date' means the date on
which the Fourth Amendment became effective in accordance with
Section 4 thereof.
'Inventory Reserves' means reserves against inventory
equal to the sum of the following:
(a) a reserve for shrink, or discrepancies that arise
pertaining to inventory quantities on hand between the
Borrower's or the Subsidiary Loan Party's perpetual accounting
system and physical counts of the inventory, which will be
equal to the greater of 1% of the aggregate amount of Eligible
Inventory and a percentage of the aggregate amount of Eligible
Inventory equal to the average shrinkage or discrepancies
evidenced by the physical inventory counts taken over the past
12 months with the variance expressed as a percentage of
Eligible Inventory;
(b) to the extent included in Eligible Inventory, a
reserve determined by the Security Agents in accordance with
Section 5.09(d) for inventory that is aged, discontinued or
slow-moving;
(c) to the extent included in Eligible Inventory, a
reserve determined by the Security Agents in accordance with
Section 5.09(d) for inventory which is recognized as a
damaged, off quality, or not to customer specifications by the
Borrower or a Subsidiary Loan Party;
(d) a revaluation reserve whereby capitalized
favorable variances shall be deducted from Eligible Inventory
and unfavorable variances shall not be added to Eligible
Inventory;
(e) a reserve determined by the Security Agents in
accordance with Section 5.09(d) for seed sold on a
use-or-return arrangement;
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(f) a reserve equal to the reserve, if any,
maintained by the Borrower and the Subsidiary Loan Parties for
any Permitted Encumbrances applicable to Eligible Inventory
that are not, as a matter of law, subordinate to the Liens on
such Eligible Inventory in favor of the Collateral Agent; and
(g) any other reserve as deemed appropriate by the
Security Agents in accordance with Section 5.09(d), from time
to time.
'LC-Backed Receivable' means an account (as defined
in the Uniform Commercial Code) to the extent that the payment
thereof is backed by a letter of credit issued for account of
the related account debtor, or confirmed, by a domestic office
of a commercial bank organized under the laws of the United
States of America or any state thereof the short term deposits
of which are rated A-l or better by S&P or P-1 or better by
Xxxxx'x.
'PPE Reliance Amount' means, on any date of
determination, the amount, if any, by which the sum of the
Revolving Exposures exceeds the result of (a) the sum of the
amounts determined pursuant to clauses (a), (b) and (d) of the
definition of "Borrowing Base" minus (b) the sum of the
amounts determined pursuant to clauses (e) and (f) of the
definition of "Borrowing Base".
'Prospective Lender' has the meaning assigned to such
term in Section 2.18.
"Residual Value of the Receivables Securitization
SPE' means with respect to the Securitization Vehicles deemed
eligible for inclusion in the Borrowing Base calculation by
the Security Agents in accordance with Section 5.09(d) (it
being understood that Farmland Feed SPV or any other
Securitization Vehicle formed in accordance with the terms of
the Land O'Lakes Receivables Purchase Agreement Summary of
Principal Terms and Conditions (the "Receivables Term Sheet")
dated as of September 23, 2003, shall be deemed eligible for
inclusion, provided that it conducts operations, in the case
of Farmland Feed SPV, in a manner substantially consistent
with the definitive receivables purchase documentation for the
Securitization existing on the Fourth Amendment Effective Date
delivered to the Collateral Agent prior to the Fourth
Amendment Effective Date or, in the case of Farmland Feed SPV
or any such other Securitization Vehicle, in a manner
substantially consistent with the Receivables Term Sheet and
any draft definitive receivables purchase documentation
delivered to the Collateral Agent prior to the Fourth
Amendment Effective Date), on any date, the lesser of (a) the
amount by which (i) the aggregate amount of Eligible
Securitization Receivables of such Securitization Vehicle at
such time exceeds (ii) the sum of (A) reserves deemed
appropriate by the Security Agents in accordance with Section
5.09(d)
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(which reserves shall be not less than the "Required Reserves"
(or any comparable defined term) pursuant to and as defined in
any receivables purchase agreement (or comparable document) in
connection with the sale of Third Party Securities by such
Securitization Vehicle) and (B) the capital, yield, fees and
all other accrued and unpaid amounts owed by such
Securitization Vehicle to the purchasers of its Third Party
Securities at such time and (b) the amount of Seller's
Retained Interest in such Securitization Vehicle that is
subject to a valid and perfected first priority security
interest in favor of the Collateral Agent subject to no other
Liens other than Liens created under the Loan Documents,
Permitted Encumbrances described in clauses (a), (b), (e) or
(f) of the definition of "Permitted Encumbrances", the junior
priority security interests created pursuant to the Second
Lien Security Documents securing the Senior Second Lien Notes
and other junior priority liens permitted by Section 6.02 that
are subordinated to the Liens securing the Obligations on
terms reasonably satisfactory to each Security Agent.
'Security Agents' means the Collateral Agent and the
Co-Collateral Agent."
(ii) revising the definition of "Agents" to read as follows:
"'Agents' means, JPMorgan Chase Bank in its
capacities as Administrative Agent and Collateral Agent under
the Loan Documents, CoBank in its capacity as
Co-Administrative Agent under the Loan Documents and General
Electric Capital Corporation in its capacity as Co-Collateral
Agent hereunder."
(iii) revising the definition of "Applicable Rate" to read as
follows:
"'Applicable Rate' means, for any day with respect to
any Eurodollar Loan, ABR Loan, or with respect to the
commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption
"Eurodollar Spread", "ABR Spread" or "Commitment Fee", as the
case may be, based upon the Leverage Ratio as of the most
recent date of determination:
LEVERAGE EURODOLLAR COMMITMENT
RATIO SPREAD ABR SPREAD FEE
----------------- ---------- ---------- ----------
Category 1 greater than 3.50 2.75% 1.75% 0.500%
to 1.00
Category 2 greater than 2.50 2.50% 1.50% 0.500%
to 1.00 but less
than or equal to
3.50 to 1.00
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Category 3 greater than 2.00 2.25% 1.25% 0.375%
to 1.00 but less
than or equal to
2.50 to 1.00
Category 4 less than or equal 2.00% 1.00% 0.250%
to 2.00 to 1.00
For purposes of the foregoing, (i) the Leverage Ratio
shall be determined as of the end of each fiscal quarter of
the Borrower's fiscal year based upon the combined financial
statements delivered pursuant to Section 5.01(a) or (b) and
(ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the
period commencing on and including the date of delivery of
such combined financial statements indicating such change and
ending on the date immediately preceding the effective date of
the next such change; provided that the Leverage Ratio shall
be deemed to be in Category 2 until such time as the Borrower
delivers the first combined financial statements after the
Fourth Amendment Effective Date required to be delivered by
Section 5.01(a) or (b); provided, however, that
notwithstanding the foregoing, the Leverage Ratio shall be
deemed to be in Category 1 (A) at any time that an Event of
Default has occurred and is continuing or (B) if the Borrower
fails to deliver the combined financial statements required to
be delivered by it pursuant to Section 5.01(a) or (b), during
the period from the expiration of the time for delivery
thereof until such combined financial statements are
delivered."
(iv) revising the definition of "Availability Period" to read
as follows:
'"Availability Period' means the period from and
including the Fourth Amendment Effective Date to but excluding
the earlier of the Maturity Date and the date of termination
of the Commitments."
(v) revising the definition of "Commitment" by (A) deleting
"and (b)" and inserting in place thereof", (b) increased pursuant to
Section 2.18 and (c)", (B) replacing "Schedule 2.01" with "Schedule A
to the Fourth Amendment" and (C) revising the last sentence thereof to
read as follows:
"The aggregate amount of the Lenders' Commitments as
of the Fourth Amendment Effective Date is $180,000,000."
(vi) revising the definition of "Consolidated Cash Interest
Expense" by inserting the following as a new clause (b)(iv) thereof:
", plus (iv) to the extent included in such
consolidated interest expense for such period, interest
expense of the Borrower and the
14
Restricted Subsidiaries with respect to Indebtedness incurred
in connection with any Securitization and permitted by Section
6.01(x)".
(vii) revising the definition of "Lenders" to read as follows:
"'Lenders' means the Persons listed on Schedule A to
the Fourth Amendment, any other Person that shall have become
a party hereto pursuant to Section 2.18 and any other Person
that shall have become a party hereto pursuant to an
Assignment and Acceptance, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and
Acceptance."
(viii) revising the definition of "Loans" to read as follows:
"'Loans' means the loans made by the Lenders to the
Borrower pursuant to this Agreement, including Loans made
pursuant to the Fourth Amendment."
(ix) revising the definition of "Maturity Date" to read as
follows:
"'Maturity Date' means January 13, 2007."
(x) revising the definition of "Permitted Encumbrances" such
that clause (b) thereof reads as follows:
"(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's, growers', producers', farmers' and
other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not
overdue by more than 30 days or are being contested in
compliance with Section 5.05;".
(xi) revising the definition of "Total Indebtedness" such that
the proviso contained therein reads as follows:
"provided that 'Total Indebtedness' shall not include
(i) the Capital Securities or (ii) Indebtedness of the
Borrower or any Restricted Subsidiary incurred in connection
with any Securitization in amounts permitted by Section
6.01(x)."
(b) Amendment of Section 2.01. The first sentence of Section
2.01 is revised to read as follows:
"Subject to the terms and conditions set forth
herein, each Lender agrees to make Loans to the Borrower from
time to time during the Availability Period in an aggregate
principal amount that will not result in (a) such Lender's
Revolving Exposure exceeding such Lender's Commitment or (b)
the sum of the Revolving Exposures exceeding the Borrowing
Base then in effect."
15
(c) Amendment of Section 2.04. Section 2.04 is revised by:
(i) revising the last sentence of Section 2.04(b) to read as
follows:
"A Letter of Credit shall be issued, amended, renewed
or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $75,000,000, (ii) the sum of the
Revolving Exposures shall not exceed the total Commitments and
(iii) the sum of the Revolving Exposures shall not exceed the
Borrowing Base then in effect."
(ii) revising Section 2.04(j) by inserting a new second
sentence thereof that reads as follows:
"The Borrower also shall deposit cash collateral
pursuant to this paragraph as and to the extent required by
Section 2.09(b), and any such cash collateral so deposited and
held by the Co-Administrative Agent hereunder shall constitute
part of the Borrowing Base for purposes of determining
compliance with Section 2.09(b)."
(iii) revising Section 2.04(j) by inserting a new final
sentence thereof that reads as follows:
"If the Borrower is required to provide an amount of
cash collateral hereunder pursuant to Section 2.09(b), such
amount (to the extent not applied as aforesaid) shall be
returned to the Borrower as and to the extent that, after
giving effect to such return, the Borrower would remain in
compliance with Section 2.09(b) and no Event of Default shall
have occurred and be continuing."
(d) Amendment of Section 2.09(b). Section 2.09(b) is revised
to read as follows:
"In the event and on each occasion that the sum of
the Revolving Exposures exceeds either the total Commitments
or the Borrowing Base then in effect, the Borrower shall
prepay Borrowings (or, if no such Borrowings are outstanding,
deposit cash collateral in an account with the
Co-Administrative Agent pursuant to Section 2.04(j)) in an
aggregate amount equal to such excess."
(e) Amendment of Section 2.10. Section 2.10 is revised by
replacing each reference to "Effective Date" in paragraphs (a) and (b) thereof
with "Fourth Amendment Effective Date".
(f) Section 2.18. A new Section 2.18 is inserted to read as
follows:
16
"SECTION 2.18. Increase in Commitments. At any time
after the Fourth Amendment Effective Date the Borrower may, by
written notice to the Administrative Agent, executed by the
Borrower and one or more financial institutions (any such
financial institution referred to in this Section being called
a 'Prospective Lender'), which may include any existing
Lender, cause the Commitments of the Prospective Lenders to be
increased (or cause Commitments to be extended by the
Prospective Lenders, as the case may be) in an amount for each
Prospective Lender set forth in such notice, provided,
however, that (a) the aggregate amount of the Lenders'
Commitments after giving effect to such increase shall in no
event exceed $250,000,000, (b) each Prospective Lender, if not
already a Lender hereunder, shall be subject to the approval
of the Administrative Agent (not to be unreasonably withheld)
and (c) each Prospective Lender, if not already a Lender
hereunder, shall become a party to this Agreement by
completing and delivering to the Administrative Agent a duly
executed Accession Agreement. Increases and new Commitments
created pursuant to this Section shall become effective (A) in
the case of Prospective Lenders already parties hereunder, on
the date specified in the notice delivered pursuant to this
Section and (B) in the case of Prospective Lenders not already
parties hereunder, on the effective date of the Accession
Agreement. Upon the effectiveness of any Accession Agreement
to which any Prospective Lender is a party, (i) such
Prospective Lender shall thereafter be deemed to be a party to
this Agreement and shall be entitled to all rights, benefits
and privileges accorded a Lender hereunder and subject to all
obligations of a Lender hereunder and (ii) Schedule A to the
Fourth Amendment shall be deemed to have been amended to
reflect the Commitment of the Prospective Lender as provided
in such Accession Agreement. Upon the effectiveness of any
increase pursuant to this Section in the Commitment of a
Lender already a party hereunder, Schedule A to the Fourth
Amendment shall be deemed to have been amended to reflect the
increased Commitment of such Lender. Notwithstanding the
foregoing, no increase in the aggregate Commitments (or in the
Commitment of any Lender) shall become effective under this
Section unless, on the date of such increase, the conditions
set forth in paragraphs (a) and (b) of Section 4.02 shall be
satisfied (with all references in such paragraphs to a
Borrowing being deemed to be references to such increase) and
the Administrative Agent shall have received a certificate to
that effect dated such date and executed by a Financial
Officer of the Borrower. Following any increase of a Lender's
Commitment or any extension of a new Commitment pursuant to
this paragraph, any Loans outstanding prior to the
effectiveness of such increase or extension shall continue
outstanding until the ends of the respective Interest Periods
applicable thereto, and shall then be repaid or refinanced
with new Loans made pursuant to Sections 2.01 and 2.02;
provided that upon the occurrence of any Default, each
Prospective Lender shall purchase (for cash at face value)
participations in the Loans
17
of other Lenders to the extent necessary so that all Loans
outstanding are owned by the Lenders ratably in accordance
with their respective Commitments."
(g) Amendment of Section 4.02. Section 4.02 is revised by
inserting a new paragraph (c) thereof that reads as follows:
"(c) After giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, the sum of the Revolving Exposures
shall not exceed the Borrowing Base then in effect."
(h) Amendment of Section 5.01. Section 5.01 is revised by (i)
deleting the word "and" at the end of clause (e), (ii) making paragraph (f) a
new paragraph (g) and (iii) inserting a new paragraph (f) that reads as follows:
"(f) (i) on or prior to the Fourth Amendment
Effective Date and as soon as available and in any event
within 15 Business Days (or such earlier time, not to be less
than 10 Business Days, as the Collateral Agent may reasonably
determine, based on its initial collateral field audit, with
the consent of the Borrower (not to be unreasonably withheld))
after the end of each calendar month, a completed Borrowing
Base Certificate, which shall also be delivered to each
Security Agent at such time, calculating and certifying the
Borrowing Base as of the last day of such calendar month
accompanied by supporting documentation and other supplemental
reports as reasonably requested by the Collateral Agent,
signed on behalf of the Borrower by a Financial Officer and
(ii) such other supplemental reports at such dates and with
such frequency as are reasonably requested by either Security
Agent; and".
(i) Amendment of Section 5.09. Section 5.09 is revised to read
as follows:
"(a) The Borrower will, and will cause each of its
Restricted Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of
all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its
Restricted Subsidiaries to, permit (subject to the provisions
of Section 9.12) any representatives designated by the
Co-Administrative Agent, the Collateral Agent, the
Co-Collateral Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as
often as reasonably requested.
(b) The Borrower will, and will cause each of its
Restricted Subsidiaries to, cooperate in the completion by the
Collateral Agent (or, at
18
the option of the Co-Collateral Agent, by the Security Agents
together) within 90 days following the Fourth Amendment
Effective Date of a collateral field audit with respect to the
Borrowing Base components and the conduct of the monthly
collateral services performed by each Security Agent and from
time to time, upon the request of either Security Agent or the
Required Lenders, permit either Security Agent or
professionals retained by either Security Agent (including
consultants, accountants, lawyers and appraisers) to conduct
evaluations and appraisals of the Borrower's practices in the
computation of the Borrowing Base and the assets included in
the Borrowing Base at such reasonable times and as often as
reasonably requested, which the Borrower acknowledges and
agrees may be on at least an annual basis. Notwithstanding
anything to the contrary stated in this Agreement, the
Borrower shall not be required to pay, or reimburse either
Security Agent for the payment of, any fees or expenses
incurred by either Security Agent (including any fees or
expenses of any professionals retained by either Security
Agent) in connection with any such field audit, evaluation or
appraisal, except (i) in respect of one such field audit,
evaluation or appraisal performed by the Collateral Agent (or,
at the option of the Co-Collateral Agent, by the Security
Agents together) during any calendar year and (ii) in respect
of any such field audit, evaluation or appraisal performed by
either Security Agent if an Event of Default has occurred and
is continuing. The Collateral Agent will provide the
Co-Administrative Agent, which shall provide the Lenders, with
reports of the evaluations and appraisals it completes under
this Section 5.09(b).
(c) At such time as either Security Agent may
reasonably specify after (i) the PPE Reliance Amount has
exceeded $50,000,000 either (A) based upon the calculations
set forth in Borrowing Base Certificates delivered for two
consecutive months and the applicable Revolving Exposures as
of the date of such Borrowing Base Certificates or (B) based
upon the calculations set forth in any single Borrowing Base
Certificate and the average daily Revolving Exposures for a
period of 30 consecutive days ending on the date of such
Borrowing Base Certificate or (ii) the PPE Reliance Amount as
reflected on the most recent Borrowing Base Certificate is a
positive amount and the sum of the Revolving Exposures either
(A) has exceeded $200,000,000 for a period of five consecutive
days or (B) has equaled the total Commitments for a period of
five consecutive days, the Borrower will, and will cause each
of its Restricted Subsidiaries to, cooperate in the completion
of and permit (i) a collateral appraisal by an independent
collateral appraiser (which shall not be, or be affiliated
with, a Lender without the consent of the Borrower (given in
its sole discretion)) retained by either Security Agent with
the consent of the other Security Agent and the Borrower (in
each case, not to be unreasonably withheld), with respect to
the Eligible Property Plant and Equipment included in the
calculation of the Borrowing Base and (ii) the preparation of
a collateral valuation report by such appraiser with respect
19
to the Eligible Property Plant and Equipment included in the
calculation of the Borrowing Base. The scope of the appraisal
conducted pursuant to this Section 5.09(c) shall be as
reasonably determined by such appraiser with the consent of
the Borrower (not to be unreasonably withheld).
(d) From time to time at the direction of the
Security Agents or the Required Lenders, the computation of
the Borrowing Base will be modified or adjusted to revise or
establish eligibility criteria, reserves or advance rates used
in determining the Borrowing Base and to make such other
adjustments and reconciliations as the Security Agents or the
Required Lenders may, in each case in their reasonable
discretion, deem appropriate and consistent with those
customary for credit facilities and collateral of the kind
included in this Agreement and involving companies with
operating characteristics similar to those of the Borrower or
the applicable Subsidiary Loan Party or otherwise based on the
creditworthiness of Borrowing Base items or on the results of
Collateral or Borrowing Base evaluations conducted by either
Security Agent or professionals retained by either Security
Agent, as contemplated by Section 5.09(b); provided that (i)
the Security Agents will not take any action inconsistent with
any determination of the Required Lenders absent a subsequent
change in the relevant facts or circumstances, (ii) any such
modification or adjustment that would increase any Borrowing
Base advance rate to a percentage greater than that
specifically set forth in the definition of "Borrowing Base"
or increase the Borrowing Base in a manner not contemplated by
the express terms of this Agreement shall be effective only
upon approval by Lenders having Revolving Exposures and unused
Commitments representing 80% or more of the sum of the total
Revolving Exposures and unused Commitments at such time and
(iii) no such change shall be effective upon less than five
Business Days' notice. In furtherance of and not in limitation
of the foregoing, it is understood and agreed that the
Collateral Agent (or, at the option of the Co-Collateral
Agent, the Security Agents together) and its or their
representatives will conduct a collateral field audit and
evaluation and appraisal of the Borrowing Base within 90 days
following the Fourth Amendment Effective Date and, upon
completion of such evaluation, the Security Agents may modify
or adjust the computation of the Borrowing Base as provided in
the preceding sentence. Any modification or adjustment
pursuant to this Section 5.09(d) may be proposed by either
Security Agent and the other Security Agent shall respond to
such proposal within three Business Days. In the event that
the Security Agents do not reach express agreement on any such
proposed modification or adjustment, the Security Agents agree
to defer to the Security Agent asserting either the more
conservative credit judgment or the position which permits the
least amount of credit to be available to the Borrower."
(j) Amendment of Section 5.11 Section 5.11 is revised to read
as follows:
20
"SECTION 5.11. Use of Proceeds and Letters of Credit. Except
as set forth below, the proceeds of the Loans made after the Effective
Date will be used only for working capital and other general corporate
purposes. The proceeds of the Loans made on the Fourth Amendment
Effective Date will be used only to repay Loans outstanding on the
Fourth Amendment Effective Date and to pay fees and expenses incurred
in connection with the repayment of Loans outstanding on the Fourth
Amendment Effective Date, the Fourth Amendment, the issuance of the
Senior Second Lien Notes and the amendment of the Related Credit
Facility. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations U and X. Letters
of Credit will be used only to support the activities of the Borrower
and its Affiliates in the ordinary course of their business."
(k) Amendment of Section 6.07. Section 6.07 is revised to read
as follows:
"SECTION 6.07. Hedging Agreements. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, enter into any
Hedging Agreement, other than (a) Hedging Agreements entered into in
the ordinary course of business to hedge or mitigate risks to which the
Borrower or any Restricted Subsidiary is exposed in the conduct of its
business or the management of its liabilities and (b) Hedging
Agreements entered into in order to effectively cap, collar or exchange
interest rates (from fixed to floating rates, from one floating rate to
another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any
Restricted Subsidiary."
(1) Amendment of Section 6.13. Section 6.13 is revised so that
the table set forth therein reads as follows:
"Period Ratio
-------------------------------- --------------
October 11, 2003 through 4.75 to 1.00
December 15, 2004
December 16, 2004 through 4.50 to 1.00
December 15, 2005
December 16, 2005 and thereafter 4.00 to 1.00."
(m) Amendment of Article VIII. Article VIII is revised by
inserting the following new sentence a the end of the third paragraph thereof:
"Notwithstanding anything contained herein or otherwise to the
contrary, (i) the Co-Collateral Agent shall have no duties or
obligations to the Borrower, any Lender, any Agent or any other Person
or under or pursuant to any Loan
21
Document or otherwise and (ii) the Co-Collateral Agent may resign as
Co-Collateral Agent at any time upon notice to the Borrower."
(n) Amendment of Section 9.01. Section 9.01 is revised by (i)
deleting "and" at the end of paragraph (b) thereof, (ii) making paragraph (d)
thereof a new paragraph (e) and (iii) inserting the following as a new paragraph
(d):
"(d) if to the Co-Collateral Agent, to General Electric
Capital Corporation, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention of Xxxxxx Xxxx (Telecopy No. (000) 000-0000); and"
(o) Amendment of Section 9.02. The first sentence of Section
9.02(b) is revised by (i) replacing the word "or" at the end of clause (vi)
thereof with a comma and (ii) inserting the following new clause (viii)
immediately preceding the proviso at the end of such sentence:
"or (viii) amend the definition of "Borrowing Base" to
increase the specified advance rate percentages stated therein or
otherwise amend or waive any express term of this Agreement in a manner
that would increase the Borrowing Base (excluding, for the avoidance of
doubt, any modification or adjustment to the computation of the
Borrowing Base that by the express terms of this Agreement may be given
or made by the Security Agents), without the written consent of Lenders
having Revolving Exposures and unused Commitments representing 80% or
more of the sum of the total Revolving Exposures and unused Commitments
at such time;"
(p) Amendment of Section 9.03. Section 9.03 is revised by:
(i) revising paragraph (a) of Section 9.03 by deleting "and
(iii)" and inserting in place thereof the following:
", (iii) subject to the limitation set forth in Section
5.09(b), all reasonable fees and expenses (including internally
allocated fees and expenses) of each Security Agent, and any
professionals retained by either Security Agent as contemplated by
Section 5.09(b), relating to any monitoring of the Borrowing Base and
related examinations and evaluations, (iv) all reasonable fees and
expenses of any appraiser retained by either Security Agent pursuant to
Section 5.09(c)and(v)".
(ii) revising paragraph (b) of Section 9.03 by inserting the
following immediately following "respective obligations thereunder" in
clause (i) thereof:
", the monitoring of the Borrowing Base and related
examinations, evaluations, audits and appraisals".
(q) Amendment of Section 9.04. Section 9.04(b) is revised such
that clause (i) contained in the proviso thereof reads as follows:
22
"(i)(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the Borrower and the Co-Administrative
Agent and (B) in the case of an assignment of all or a portion of a
Commitment or any Lender's obligation in respect of its LC Exposure,
each Issuing Bank, must give their prior written consent to any such
assignment (which consent shall not be unreasonably withheld),".
(r) A new Exhibit G shall be added to the Credit Agreement in
the form of Exhibit G hereto.
(s) A new Exhibit H shall be added to the Credit Agreement in
the form of Exhibit H hereto.
SECTION 2. Representations and Warranties. To induce the other
parties hereto to enter into this Amendment, the Borrower represents and
warrants to each of the Lenders and each of the Agents that, as of the Amendment
Effective Date:
(a) This Amendment has been duly authorized, executed and
delivered by it and this Amendment and the Credit Agreement as amended and
restated hereby, constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(b) The representations and warranties set forth in Article
III of the Credit Agreement are, after giving effect to this Amendment and the
making of the New Loans, true and correct in all material respects on and as of
the Amendment Effective Date with the same effect as though made on and as of
the Amendment Effective Date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case they were true and
correct in all material respects as of such earlier date).
(c) No Default or Event of Default has occurred and is
continuing.
(d) After giving effect to this Amendment, the Collateral and
Guarantee Requirement has been satisfied.
SECTION 3. New Loans. (a) Subject to the terms and conditions
set forth herein, (i) each Renewing Lender agrees to make New Loans to the
Borrower on the Amendment Effective Date by exchanging its Existing Loans for
New Loans in an equal principal amount and (ii) each Additional Lender agrees to
make Additional Loans to the Borrower on the Amendment Effective Date in the
principal amount necessary such that all New Loans made on the Amendment
Effective Date are made by the New Lenders ratably in accordance with their
respective Commitments; provided that such commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make New Loans.
23
(b) The obligation of each New Lender to make New Loans on the
Amendment Effective Date is subject to the satisfaction of the following
conditions:
(i) The conditions set forth in Section 4.02 of the Credit
Agreement, as amended hereby, shall be satisfied on and as of the
Amendment Effective Date, and the New Lenders shall have received a
certificate of a Financial Officer, dated the Amendment Effective Date,
to such effect;
(ii) The Administrative Agent shall have received favorable
legal opinions of (A) Faegre & Xxxxxx LLP, outside counsel for the
Borrower and (B) Xxxx Xxxxxx, Vice President and General Counsel for
the Borrower, in each case addressed to the New Lenders and dated the
Amendment Effective Date, covering such matters relating to the New
Loans, this Amendment, the Credit Agreement as amended and restated
hereby, and the other Loan Documents and security interests thereunder
as the Administrative Agent may reasonably request, which opinions
shall be reasonably satisfactory to the Administrative Agent, including
an opinion of such outside counsel, subject only to qualifications
reasonably satisfactory to the Administrative Agent, that all
guarantees, pledges and grants of security interests of each Loan Party
(other than with respect to real property) continue to be valid and
binding obligations of such Loan Party;
(iii) The Administrative Agent shall have received, for the
Borrower and each other Loan Party, to the extent deemed necessary or
appropriate by the Administrative Agent, a certificate of the Secretary
or an Assistant Secretary of such Loan Party, dated the Amendment
Effective Date and certifying that attached thereto are true and
complete copies of such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to
the organization, existence and good standing of such Loan Party and
resolutions (or consent by members or partners, where applicable, to
the extent required) duly adopted by the board of directors (or members
or partners, where applicable) of such Loan Party authorizing the
execution, delivery and performance of this Amendment and the Credit
Agreement as amended hereby, and the amendment of any other Loan
Documents to which it is party required to be amended hereby, all in
form and substance reasonably satisfactory to the Administrative Agent;
(iv) To the extent deemed necessary or appropriate by the
Administrative Agent, each Security Document shall have been amended to
provide the benefits thereof to the New Loans and the obligations of
the Loan Parties in connection therewith on the same basis as such
benefits are provided to the Existing Loans;
(v) Each Loan Party that has not executed and delivered this
Amendment shall have entered into a written instrument reasonably
satisfactory to the Administrative Agent pursuant to which it confirms
that it consents to this Amendment and that the Security Documents to
which it is party will continue to apply in respect of the Credit
Agreement, as amended and restated hereby, and the Obligations
thereunder; and
24
(vi) The conditions to effectiveness of this Amendment set
forth in Section 4 hereof shall have been satisfied.
(c) All new Borrowings made on the Amendment Effective Date
shall have initial Interest Periods ending on the same dates as the Interest
Periods applicable to the existing Borrowings being refinanced with such new
Borrowings, and the Adjusted LIBO Rates applicable to such new Borrowings during
such initial Interest Periods shall be the same as those applicable to the
existing Borrowings being refinanced. For purposes of the foregoing, such
Interest Periods and Adjusted LIBO Rates shall be assigned to the Additional
Loans of each Additional Lender in the same proportion that such Interest
Periods and Adjusted LIBO Rates applied to the Existing Loans on the Amendment
Effective Date. The Borrower will not be required to make any payments to
Renewing Lenders under Section 2.14 of the Credit Agreement in connection with
the exchange of their Existing Loans for New Loans.
(d) On the Amendment Effective Date, the Borrower shall (i)
apply the proceeds of the Additional Loans to prepay in full all Existing Loans
(after giving effect to New Loans made by Renewing Lenders to repay their
Existing Loans) and (ii) use such other amounts as may be necessary to (A) pay
all accrued and unpaid commitment fees and Letter of Credit participation fees
on all Existing Commitments pursuant to Section 2.10(a) and (b) of the Credit
Agreement, (B) pay all accrued and unpaid interest on all Existing Loans, and
(C) pay to each Lender other than Renewing Lenders all amounts payable pursuant
to Section 2.14 of the Credit Agreement as a result of the repayment of such
Lender's Loans and pay all other Obligations then due and owing to such Lenders
under the Credit Agreement in their capacities as such.
(e) On and after the Amendment Effective Date, (i) each
reference in the Credit Agreement to "Loans" shall be deemed a reference to the
New Loans contemplated hereby and to Loans made thereunder after the Fourth
Amendment Effective Date and (ii) each reference in the Credit Agreement to
"Commitments" shall be deemed a reference to the New Commitments contemplated
hereby. Notwithstanding the foregoing, the provisions of the Credit Agreement
with respect to indemnification, reimbursement of costs and expenses, increased
costs and break funding payments (other than as set forth in Section 3(c) above)
shall continue in full force and effect with respect to, and for the benefit of,
each Lender that was a Lender prior to the Amendment Effective Date in respect
of such Lender's Loans and Loan Commitments under the Credit Agreement prior to
the Amendment Effective Date.
SECTION 4. Effectiveness. This Amendment and the amendment and
restatement of the Credit Agreement effected hereby shall become effective as of
the first date (the "Amendment Effective Date") on which the following
conditions have been satisfied:
(a) The Administrative Agent (or its counsel) shall have
received duly executed counterparts hereof that, when taken together, bear the
signatures of (i) the Borrower, (ii) the Required Lenders, (iii) each Renewing
Lender and (iv) each Additional Lender.
25
(b) The conditions to the making of the New Loans set forth in
Section 3(b) hereof shall have been satisfied.
(c) The Third Amendment dated as of December 8, 2003, to the
Credit Agreement shall have become effective in accordance with its terms.
(d) The Borrower shall have delivered to the Collateral Agent
a completed Borrowing Base Certificate as of November 30, 2003, reflecting debt
of the Borrower and the Subsidiary Loan Parties on a pro forma basis after
giving effect to the issuance and the use of proceeds of the Senior Second Lien
Notes, signed on behalf of the Borrower by a Financial Officer.
(e) The Administrative Agent or the Co-Administrative Agent,
as applicable, shall have received all fees and other amounts due from any Loan
Party hereunder or under the Credit Agreement or any other Loan Document on or
prior to the Amendment Effective Date and, to the extent invoiced on or prior to
the Amendment Effective Date, reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under the Credit Agreement or
any other Loan Document.
(f) The Administrative Agent or the Co-Administrative Agent,
as applicable, shall have received evidence that the Borrower has made the
payments referred to in Section 3(d) or is making such payments on the Amendment
Effective Date with the proceeds of the Additional Loans and such other funds as
may be required.
The Administrative Agent shall notify the Borrower and the Lenders of the
Amendment Effective Date, and such notice shall be conclusive and binding.
SECTION 5. Effect of Amendment. (a) Except as expressly set
forth herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of or otherwise affect the rights and remedies of
the Lenders, the Administrative Agent, the Co-Administrative Agent or the
Collateral Agent under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other provision of the Credit Agreement or of any other Loan
Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Without limiting the generality of the
foregoing, the Borrower hereby confirms its pledges and grants of security
interests under each of the Security Documents and agrees that, upon the
effectiveness of this Amendment, such pledges and grants shall continue in full
force and effect as security for the New Loans contemplated hereby, any Loans
made under the Credit Agreement after the Amendment Effective Date and all other
Obligations under and as defined in such Security Document (subject, in the case
of each Mortgage, to any limitation on the amounts secured thereby expressly set
forth therein). Nothing herein shall be deemed to entitle the Borrower to a
consent to, or a waiver, amendment, modification or other change of, any of the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances.
26
(b) On and after the Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof, "herein", or
words of like import, and each reference to the Credit Agreement in any Loan
Document shall be deemed a reference to the Credit Agreement as amended and
restated hereby. This Amendment shall constitute a "Loan Document" for all
purposes of the Credit Agreement and the other Loan Documents.
(c) Changes in the Applicable Rate effected by this Amendment
shall be effective for all periods (or portions thereof) on and after the
Amendment Effective Date. Any interest, fees or other amounts accruing on the
basis of the Applicable Rate during periods (or portions thereof) prior to the
Amendment Effective Date will accrue on the basis of the Applicable Rate in
effect for such periods prior to the Amendment Effective Date.
SECTION 6. Costs and Expenses. The Borrower agrees to
reimburse the Administrative Agent for its reasonable out of pocket expenses in
connection with this Amendment, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent.
SECTION 7. Indemnity. It is agreed that for all purposes of
Section 9.03(b) of the Credit Agreement, the offering of the Senior Second Lien
Notes, the execution, delivery and performance of this Amendment and of the
Intercreditor Agreement, the amendment of the Security Documents as contemplated
by Section 3 hereof and the other transactions contemplated hereby shall all be
deemed to be transactions contemplated by the Credit Agreement.
SECTION 8. Uniform Commercial Code Filings. The Borrower
authorizes the Collateral Agent at any time and from time to time to file in any
relevant jurisdiction financing statements and amendments thereto describing the
Collateral pledged by the Borrower under the Collateral Agreement as "all
assets", "all personal property" or in any other manner deemed appropriate by
the Collateral Agent, and the Borrower hereby confirms and ratifies the filing
by the Collateral Agent prior to the date hereof of any financing statements
containing such a description.
SECTION 9. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 10. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 11. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date and year first above written.
LAND O'LAKES, INC.
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior VP and CFO
JPMORGAN CHASE BANK,
individually, as a Renewing Lender and an
Additional Lender, and as Administrative
Agent and Collateral Agent
By
------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date and year first above written.
LAND O'LAKES, INC.
By
------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
individually, as a Renewing Lender and an
Additional Lender, and as Administrative
Agent and Collateral Agent
By /s/ X.X.XXXXXXXX
------------------------------------
NAME: X.X.XXXXXXXX
TITLE: VICE PRESIDENT
AGFIRST, FCB,
as a Renewing Lender
By /s/ Xxxx X Xxxxxxxx Xx
------------------------------------
Name: Xxxx X Xxxxxxxx Xx
Title: Vice President
CO-BANK, ACB,
individually, as a Renewing Lender and an
Additional Lender, and as
Co-Administrative Agent
By /s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION,
individually, as an Additional Lender,
and as Co-Collateral Agent
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
as a Renewing Lender
By /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
By /s/ Xxxxxxxx Xxxxxxx
------------------------------------
Name:Xxxxxxxx Xxxxxxx
Title: Vice President
Schedule A
to Fourth Amendment
and Restatement
Commitments
Lender Commitment
------ ----------
GENERAL ELECTRIC CAPITAL CORPORATION $ 75,000,000
JPMORGAN CHASE BANK $ 40,000,000
COBANK, ACB $ 40,000,000
XXXXX FARGO BANK, NATIONAL ASSOCIATION $ 15,000,000
AGFIRST, FCB $ 10,000,000
