EXHIBIT 10.1
FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT
This FIRST AMENDMENT (this "Amendment"), dated as of March 21, 2007 (the
"First Amendment Closing Date"), is by and between NATIONAL BEEF PACKING
COMPANY, LLC, a Delaware limited liability company (the "Borrower"), the lenders
party to the Original Agreement referenced below (collectively, the "Lenders"
and individually, a "Lender"), U.S. AGBANK, FCB, as Co-Syndication Agent,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL",
NEW YORK BRANCH, as Documentation Agent, and COBANK, ACB, an agricultural credit
bank ("CoBank"), as Lead Arranger, Co-Syndication Agent, Swing Line Lender and
Administrative Agent for the Lenders, the Issuers and the Swing Line Lender
hereunder (in its capacity as Administrative Agent, together with its successors
and assigns in such capacity, the "Agent").
RECITALS
The parties described above are parties to a Fifth Amended and Restated
Credit Agreement dated as of May 30, 2006 (as modified to date, the "Original
Agreement").
The Borrower has requested that certain amendments be made with respect to
the Original Agreement and the Lenders have agreed to accommodate such requests
on the terms and subject to the conditions set forth in this Amendment.
ACCORDINGLY, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Original Agreement Definitions. Terms defined in the Original Agreement
shall have the same meaning when used herein unless otherwise expressly
indicated.
ARTICLE II
AMENDMENTS
2.1 Amendments to Section 1.2 of the Original Agreement.
(a) The definition of "Commitment" set forth in Section 1.2 of the Original
Agreement is hereby amended in its entirety to read as follows:
"`Commitment' means, as to any Lender, such Lender's (a) Line of
Credit Loan Commitment, (b) obligation to purchase participations in LC
Obligations, and/or (c) obligation to purchase participations in Swing Line
Loans, and, as the context requires "Commitments" shall mean, collectively,
such Commitments for all the Lenders."
(b) The definition of "Line of Credit Loan Commitment" set forth in Section
1.2 of the Original Agreement is hereby amended by replacing the number
"$160,000,000" with the number "$170,000,000".
(c) The definition of "Pro Rata Percentage" set forth in Section 1.2 of the
Original Agreement is hereby amended in its entirety to read as follows:
"`Pro Rata Percentage' means, with respect to any Lender at any time,
a fraction (expressed as a percentage), the numerator of which shall be
such Lender's Line of Credit Loan Commitment at such time, and the
denominator of which shall be the aggregate Line of Credit Commitments of
all of the Lenders at such time."
(d) The definition of "Regular Swing Line Sublimit" set forth in Section
1.2 of the Original Agreement is hereby amended by replacing the number
"$20,000,000" with the number "$30,000,000".
(e) The definition of "Term Loan Commitment" set forth in Section 1.2 of
the Original Agreement is hereby deleted.
2.2 Additional Amendments to Definitions. Section 1.2 of the Original
Agreement is hereby amended by adding the following definitions in the
appropriate alphabetical position:
"`First Amendment Closing Date' means March 21, 2007."
"`Total Percentage' means with respect to any Lender at any time, a
fraction (expressed as a percentage), the numerator of which shall be the
combined amount of such Lender's outstanding Term Loan principal balance
and Line of Credit Loan Commitment, respectively, at such time and the
denominator of which shall be the combined amount of all the outstanding
Term Loan principal balances and Line of Credit Commitments of all the
Lenders at such time."
2.3 Amendment to Section 2.1.1 of the Original Agreement. Section 2.1.1 of
the Original Agreement is hereby amended by replacing the reference "Section
2.1.3" with the reference "Section 2.1.4", and by inserting the following phrase
after the words "Exhibit 2A" in the fourth sentence thereof:
National Beef Packing Company, LLC
First Amendment to Fifth Amended and Restated Credit Agreement
2
"(in the case of Lenders who are not increasing their Line of Credit
Loan Commitment on the First Amendment Closing Date) or as Exhibit 2A-2 (in
the case of Lenders who are increasing their Line of Credit Loan Commitment
on the First Amendment Closing Date)".
2.4 Amendment to Section 2.1.2 of the Original Agreement. Section 2.1.2 of
the Original Agreement is hereby amended in its entirety to read as follows:
"2.1.2 Term Loans. The Borrower acknowledges that, as of the First
Amendment Closing Date, term loans are outstanding under this Section 2.1.2
and owed by the Borrower in the principal amounts set forth opposite the
respective Lenders' names under the heading "Amount of Term Loan
Outstanding immediately before First Amendment Closing Date" on Exhibit 1A.
Each of CoBank and Rabobank severally agrees to make an additional term
loan to the Borrower on the First Amendment Closing Date (through the Agent
as set forth in Section 2.1.4) in the principal amount set forth opposite
the relevant Lender's name under the heading "Amount of Additional Term
Loan to be Made on First Amendment Closing Date" on Exhibit 1A (which loan
shall initially be disbursed as a Base Rate Advance). Each Lender's
cumulative loans to the Borrower under this Section 2.1.2 on and after the
Effective Date (including the "Term Advances" under the Existing Credit
Agreement that were deemed to be Term Loans on the Effective Date) are
herein collectively called such Lender's "Term Loan", and all such loans of
all of the Lenders are herein collectively called the "Term Loans". The
Term Loans may be made as LIBOR Rate Advances or Base Rate Advances. The
Term Loans shall be evidenced by and repayable in accordance with the terms
of the Borrower's promissory notes to each of the Lenders (as the same may
be amended, supplemented or otherwise modified from time to time, together
with any replacements thereof or substitutions therefor, the "Term Notes"),
the form of which is attached as Exhibit 2B (in the case of Lenders who
made a Term Loan only on the Effective Date) or as Exhibit 2B-2 (in the
case of Lenders who made a Term Loan on the Effective Date and on the First
Amendment Closing Date). Amounts representing Term Loans which have been
repaid by the Borrower may not be reborrowed.
2.5 Amendment to Section 2.1.4 of the Original Agreement. Section 2.1.4(b)
of the Original Agreement is hereby amended in its entirety to read as follows:
"(b) Procedures for Term Loans. The Agent disbursed the initial Term
Loans on the Effective Date. The Agent will make the proceeds of additional
Term Loans available to the Borrower on the First Amendment Closing Date to
the extent received from the Lenders."
National Beef Packing Company, LLC
First Amendment to Fifth Amended and Restated Credit Agreement
3
2.6 Amendment to Section 2.1.5(b) of the Original Agreement. Section
2.1.5(b) of the Original Agreement is hereby amended by replacing the phrase
"Pro Rata Percentage" both times it occurs in such Section with the phrase "pro
rata share".
2.7 Amendment to Section 4.3 of the Original Agreement. Section 4.3 of the
Original Agreement is hereby amended by replacing the number "$2,833,333" with
the number "$3,500,133".
2.8 Amendment to Section 12.6 of the Original Agreement. Section 12.6 of
the Original Agreement is hereby amended by replacing the phrase "Pro Rata
Percentage" each time it occurs in such Section with the phrase "Total
Percentage".
2.9 Amendment to Section 13.13(a)(i) of the Original Agreement. Section
13.13(a)(i) of the Original Agreement is hereby amended by replacing the phrase
"Term Loan Commitment" with the phrase "the outstanding principal amount of each
Lender's respective Term Loan".
2.10 Amendment to Section 13.26 of the Original Agreement. Section 13.26 is
hereby amended in its entirety to read as follows:
"All Loans under, and all payments and other amounts received in connection
with this Agreement for application to the Loans (including, without
limitation, amounts received as a result of the exercise by any Lender of
any right of set-off) shall be effectively shared by the Lenders ratably in
accordance with their respective pro rata shares of the relevant type of
Loan. If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of the principal of, or interest on, or fees in respect of, any
Note held by it (other than pursuant to Section 5.2, 5.3 or 5.4) in excess
of its pro rata share of payments on account of similar Notes obtained by
all the Lenders, such Lender shall purchase from the other Lenders such
participation in the Notes or Loans made by them as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each
of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase
from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to
the proportion of (a) the amount of such Lender's required repayment to (b)
the total amount so recovered from the purchasing Lender) of any interest
or other amount paid or payable by the purchasing Lender in respect of the
total amount so recovered. Disproportionate payments of interest shall be
shared by the purchase of separate participation in unpaid interest
obligations, disproportionate payments of fees shall be shared by the
National Beef Packing Company, LLC
First Amendment to Fifth Amended and Restated Credit Agreement
4
purchase of separate participation in unpaid fee obligations, and
disproportionate payments of principal shall be shared by the purchase of
separate participation in unpaid principal obligations. The Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant
to this Section 13.26 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect to
such participation as fully as if such Lender were the direct creditor of
the Borrower in the amount of such participation. Notwithstanding the
foregoing, a Lender may receive and retain an amount in excess of its pro
rata share of the relevant type of Loan to the extent, but only to the
extent, that such excess results from such Lender's Highest Lawful Rate
exceeding another Lender's Highest Lawful Rate."
2.11 Amendment to Section 13.29 of the Original Agreement. The penultimate
sentence of Section 13.29 of the Original Agreement is hereby amended by
replacing both references to the phrase "Term Loan Commitment" with the phrase
"the aggregate outstanding principal amount of the Term Loans".
2.12 Amendment to Exhibit 1A to the Original Agreement. Exhibit 1A to the
Original Agreement is hereby amended in its entirety to read as set forth on
Annex A to this Amendment.
2.13 Amendment to Exhibit 1C to the Original Agreement. Exhibit 1C to the
Original Agreement is hereby amended to replace after "CREDIT LINE" and in Item
3. L the number "$160,000,000" with the number "$170,000,000".
2.14 Amendment to Exhibit 2C to the Original Agreement. Exhibit 2C to the
Original Agreement is hereby amended in its entirety to read as set forth on
Annex B to this Amendment.
2.15 New Exhibits to the Original Agreement. The Original Agreement is
hereby amended by adding new Exhibits 2A-2 and 2B-2 in the forms set forth on
Annex C and Annex D, respectively, to this Amendment.
ARTICLE III
CONDITIONS PRECEDENT
3.1 Conditions to Effectiveness of this Amendment. This Amendment shall
become effective when the Agent shall have received the following:
(a) This Amendment, duly executed by the Borrower, the Agent and the
Lenders;
National Beef Packing Company, LLC
First Amendment to Fifth Amended and Restated Credit Agreement
5
(b) a replacement Line of Credit Note, duly executed by the Borrower
and in substantially the form of Annex C attached hereto for each Lender
who is increasing its Line of Credit Loan Commitment in connection with
this Amendment;
(c) a replacement Term Note, duly executed by the Borrower and in
substantially the form of Annex D attached hereto for each Lender who is
making an additional Term Loan in connection with this Amendment;
(d) a replacement Swing Line Note, duly executed by the Borrower and
in substantially the form of Annex B attached hereto for the Swing Line
Lender;
(e) an arrangement fee (for the account of the Administrative Agent)
in the amount separately agreed by the Borrower and the Administrative
Agent, together with a facility fee (for the account of each Lender that is
increasing its Line of Credit Loan Commitment in connection with this
Amendment) in an amount equal to 0.25% of the amount of each such increase;
and
(f) the reasonable fees and expenses of counsel to the Agent payable
pursuant to Section 5.5 below to the extent then invoiced.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties. To induce the Agent, the Swing Line
Lender, the Issuers and the Lenders to enter into this Amendment, the Borrower
hereby represents and warrants to such Persons as follows:
(a) The Borrower's execution and delivery of this Amendment and the
performance of its obligations hereunder and under the Original Agreement
as amended by this Amendment, (i) are within the Borrower's powers; (ii)
are duly authorized by the Borrower's managers and, if necessary, the
Borrower's members; (iii) are not in contravention of any material law or
laws, or the terms of the Borrower's operating agreement, or other
organizational documents, or of the Senior Notes or any other indenture,
agreement or undertaking to which the Borrower or NBC is a party or by
which the Borrower, NBC, or any of the Borrower's or NBC's property is
bound; (iv) do not require any governmental consent, registration or
approval; (v) do not contravene any contractual or Governmental Requirement
binding upon the Borrower or NBC; and (vi) will not, except as contemplated
or permitted by this Agreement, result in the imposition of any lien or
security interest upon any of the Borrower's or NBC's property under any
the Senior
National Beef Packing Company, LLC
First Amendment to Fifth Amended and Restated Credit Agreement
6
Notes or any other existing indenture, mortgage, deed of trust, loan or
credit agreement or other material agreement or instrument to which the
Borrower or NBC is a party or by which the Borrower, NBC or any of their
respective properties may be bound or affected; and
(b) This Amendment and the Original Agreement as amended by this
Amendment set forth the legal, valid and binding obligations of the
Borrower and are enforceable against the Borrower in accordance with their
respective terms.
ARTICLE V
MISCELLANEOUS
5.1 Post-Closing Deliveries. On or before March 30, 2007, the Borrower
shall deliver to the Agent (a) resolutions of its board of managers approving or
ratifying this Amendment and the transactions contemplated herein, (b) one or
more opinions of counsel to the Borrower relating to this Amendment in form and
substance reasonably satisfactory to the Agent and (c) amendments to the Kansas
Mortgage and/or the Pennsylvania Mortgage to reflect the transactions
contemplated by this Amendment, to the extent requested by the Agent.
5.2 Reference to and Effect on the Original Agreement and the other
Financing Documents.
(a) The Original Agreement, as hereby amended, and the other Financing
Documents remain in full force and effect and are hereby ratified and
confirmed.
(b) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of the Agent, the
Swing Line Lender, the Issuers or the Lenders under the Original Agreement
or any of the other Financing Documents, nor constitute a waiver of any
provision thereof.
(c) This Amendment constitutes a Financing Document as such term is
used in the Original Agreement as amended hereby.
5.3 Continuation of Representations and Warranties. The Borrower represents
and warrants to the Agent, the Swing Line Lender, the Issuers and the Lenders
that on and as of the date hereof and after giving effect to this Amendment, (i)
all of the representations and warranties contained in the Original Agreement
are correct and complete in all material respects as of the date hereof, as
though made on and as of the date hereof, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true and correct as of
National Beef Packing Company, LLC
First Amendment to Fifth Amended and Restated Credit Agreement
7
such earlier date, and (ii) no Default or Matured Default has occurred and is
continuing.
5.4 Merger and Integration, Superseding Effect. This Amendment, together
with the Original Agreement as amended by this Amendment and the other Financing
Documents, from and after the date hereof, embodies the entire agreement and
understanding between the parties hereto and supersedes and has merged into it
all prior oral and written agreements on the same subjects by and between the
parties hereto with the effect that the Original Agreement, as amended by this
Amendment, shall control.
5.5 Expenses. The Borrower agrees to pay, promptly upon being invoiced, all
of the expenses, including reasonable attorney's fees and expenses, incurred by
the Agent in connection with this Amendment.
5.6 Counterparts. This Amendment may be executed in several counterparts
and by the different parties on separate counterparts, each of which together
shall be construed as one original and all of which shall constitute together
but one and the same Amendment. Facsimile signatures on this Amendment shall be
considered as original signatures.
5.7 Successors. Whenever in this Agreement there is reference made to any
of the parties hereto, such reference shall be deemed to include, wherever
applicable, a reference to the respective successors and assigns of the
Borrower, the Agent, the Swing Line Lender, the Lenders and the Issuers.
5.8 Headings. The headings of various sections of this Amendment have been
inserted for reference only and shall not be deemed to be a part of this
Amendment.
5.9 Governing Law. This Agreement shall be construed in all respects in
accordance with, and governed by, the laws and decisions of the State of
Colorado without regard to the application of conflict of laws principles.
[Signature Page Follows]
National Beef Packing Company, LLC
First Amendment to Fifth Amended and Restated Credit Agreement
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
NATIONAL BEEF PACKING
COMPANY, LLC
By: /s/ Xxx Xxxxxxx
-------------------------------------
Its: Chief Financial Officer
------------------------------------
COBANK, ACB, individually and as Lead
Arranger, Co-Syndication Agent, Swing
Line Lender and Administrative Agent
By: /s/ Xxx Xxxxxxxx
-------------------------------------
Its: Vice President
------------------------------------
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
individually and as Documentation Agent
By: /s/ D. Xxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- -------------------------------------
Its: Vice President Its: Branch Executive Director
-------------------------------- ------------------------------------
U.S. AGBANK, F.C.B.,
individually and as
Co-Syndication Agent
By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------------------
Its: Vice President
------------------------------------
[Signature Page to First Amendment]
9
