NINTH AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit
10.1(f)
NINTH
AMENDMENT TO SECOND AMENDED
AND
RESTATED REVOLVING CREDIT AGREEMENT
THIS
NINTH AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"Amendment"),
dated
as of October 13, 2005, is among CAL-MAINE FOODS, INC. ("Borrower"),
FIRST
SOUTH
FARM
CREDIT, ACA ("First
South"),
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND,"
NEW
YORK BRANCH (who is sometimes referred to as Rabobank International),
individually and as Administrative Agent for itself and the other Banks (in
such
capacity, the "Administrative
Agent"
and
individually, herein "Rabobank"),
and
XXXXXX X.X., successor in interest by merger to XXXXXX TRUST AND SAVINGS BANK
("Xxxxxx"
and
collectively with Rabobank and First South, herein the "Banks").
RECITALS:
A. Borrower,
the Administrative Agent, and the Banks have entered into that certain Second
Amended and Restated Revolving Credit Agreement dated as of
February 6, 2002 (such Second Amended and Restated Revolving Credit
Agreement, as the same has been amended, and as the same may be further amended
or otherwise modified, herein referred to as the "Revolving
Credit Agreement").
B. Borrower
has entered into that certain Agreement to Form a Limited Liability Company,
Transfer Assets Thereto, and Purchase Units of Membership Therein dated July
28,
2005 (the "Hillandale
Agreement")
with
Hillandale Farms of Florida, Inc. and Hillandale Farms, Inc. (together the
"Hillandale
Companies")
and
Xxxx X. Xxxxx, Xxxx X. Xxxxx, Xx., Xxxxx X. Xxxxxxxx, Xx., Xxxxxx X. Xxxxxx
and
Xxxxxx X. Xxxxxx. Pursuant to the Hillandale Agreement:
1. A
new
Florida limited liability company has been formed by the Hillandale Companies
named "Hillandale, LLC" (herein "New
Co");
2. Each
of
the Hillandale Companies have contributed certain assets and liabilities
identified in the Hillandale Agreement to New Co in return for the issuance
of
membership interests in New Co (the "Contribution");
3. The
Borrower has acquired from the Hillandale Companies fifty one percent of the
membership interest issued by New Co for cash (the "Initial
Equity Acquisition")
and
has agreed pursuant to the Hillandale Agreement to acquire the remaining forty
nine percent of the membership interest issued by New Co over a period of four
years; and
4. Prior
to
the Initial Equity Acquisition, the Borrower owned approximately forty four
percent of American Egg Products LLC and the Hillandale Companies owned
approximately twenty seven percent of American Egg Products LLC. As a result
of
the Initial Equity Acquisition, American Egg Products LLC has become a
"Subsidiary" of the Borrower (the transaction described in clauses 1., 2.,
3 and
4., herein the "Hillandale
Transactions").
C. As
of the
date of this Amendment, the Borrower has repaid in full the amounts outstanding
under the Xxxxxx Term Agreement.
D. As
a
result of the Hillandale Transactions, the Borrower and the Guarantors have
requested that the Revolving Credit Agreement be amended and the Administrative
Agent and the Banks have agreed to amend the Revolving Credit Agreement on
the
terms and conditions herein set forth.
58
NOW,
THEREFORE, in consideration of the premises herein contained and other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows effective as of the date
hereof:
Definitions
Definitions.
Capitalized terms used in this Amendment, to the extent not otherwise defined
herein, shall have the same meanings as in the Revolving Credit
Agreement.
Amendments
Amendment
to Paragraphs (h), (k), (l) and (m) of Section
4.01- Representations
and Warranties of the Borrower.
Paragraphs
(h), (l) and (m)
of
Section 4.01 of the Revolving Credit Agreement are amended in their respective
entireties to read as follows:
(h) The
Guarantors are the only Subsidiaries of, and are wholly-owned by, the Borrower
except: (i) CM Partnership whose 99% limited partnership interest is owned
by Cal-Maine Farms, Inc. and whose 1% general partnership is owned by Borrower;
(ii) CMF of Kansas whose is owned 99% by Borrower and 1% by Cal-Maine
Farms, Inc.; (iii) as of October 13, 2005, Borrower owns 51% of Hillandale,
LLC and Hillandale, LLC is not a Guarantor and (iv) as of October 13, 2005,
Borrower owns approximately 71% of American Egg Products LLC and American Egg
Products LLC is not a Guarantor.
(k) As
of
October 13, 2005, neither Borrower nor any Pledgor maintains any commodity
futures margin accounts.
(l) The
present fair salable value of the Assets of the Borrower and each Pledgor is
greater than the amount that will be required to pay its probable liability
for
its existing Debts as they become absolute and matured. For the purposes of
this
clause (l), "Assets" means any property of the party in question not exempt
from liability for its Debts, and "Debts" means any legal liability, including
the liability under the Loan Documents, whether matured or unmatured, liquidated
or unliquidated, absolute, fixed or contingent. Neither the Borrower nor any
Pledgor intends to, or believes that it will, incur Debts beyond its ability
to
pay as they mature.
(m) Neither
the Borrower nor any Pledgor is "insolvent" (as defined in
11 U.S.C. 101(32)). Neither the Borrower nor any Pledgor is engaged,
nor does it intend to engage, in any business or transaction for which its
property, excluding an amount equal to the Obligations, is an unreasonably
small
capital. Neither the Borrower nor any Pledgor intends through the transactions
contemplated by the Loan Documents to hinder, delay, or defraud either present
or future creditors.
Amendment
to Paragraph (k) of Section 5.01 - Affirmative
Covenants.
Paragraph
(k)
of
Section 5.01 of the Revolving Credit Agreement is amended to add the following
to the definition of the term "Operating Cash Flow":
For
purposes of this definition of Operating Cash Flow and the definition of the
term "EBITDA"
(which
is set out in the definition of the term "Debt to EBITDA Ratio"), net income
of
Borrower and the Subsidiaries shall be calculated to exclude minority interests
in Subsidiary earnings and the income of any Subsidiary to the extent the
payment of such income in the form of a distribution or repayment of any Debt
to
the Borrower or a Subsidiary is not permitted, whether on account of any charter
or by-law restriction, any agreement, instrument, deed or lease or any law,
statute, judgment, decree or governmental order, rule or regulation applicable
to such Subsidiary.
Amendment
to Paragraphs (a), (b) and (c) of Section 5.02
-Negative
Covenants.
Paragraphs
(a), (b) and (c)
of
Section 5.02 of the Revolving Credit Agreement are amended in their respective
entireties to read as follows:
59
Guaranteed
Indebtedness.
Create,
incur, assume or suffer to exist, or permit any Subsidiary to create, incur,
assume or suffer to exist, any Contingent Liabilities in respect of any Debt
of
any other Person except: (i) pursuant to the Amended Guaranty Agreement;
(ii) by reason of endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(iii) for a guaranty executed by Borrower guaranteeing the Debt of Delta
Egg Farm LLC, provided the liability under such guaranty does not exceed
$10,800,000 in the aggregate at any time, (iv) for a guaranty executed by
the Borrower guaranteeing the obligations for borrowed money of Hillandale,
LLC,
provided the liability under such guaranty does not exceed at any time the
aggregate principal amount of $2,000,000 and (v) for the obligations of the
Borrower as a guarantor or a co-borrower in respect of the Hillandale Term
Loan.
Dividends,
etc.
Declare
or pay any dividends, purchase, or otherwise acquire for value any of its
capital stock now or hereafter outstanding, or make any distribution of assets
to its stockholders as such, or permit any of its Subsidiaries to purchase
or
otherwise acquire for value any stock of the Borrower; provided that the
Borrower may:
as
long
as no Event of Default nor any event that with the giving of notice or lapse
of
time or both would be an Event of Default exists or would result, declare and
pay quarterly dividends on its common stock in an aggregate amount not to exceed
$500,000 per calendar quarter; and
repurchase
shares of its common stock as long as: (A) no Event of Default nor any
event that with the giving of notice or lapse of time or both would be an Event
of Default exists or would result and (B) the aggregate amount paid in any
Fiscal Year to repurchase such shares shall not exceed $500,000.
Capital
Expenditures.
Make,
nor will it permit any Subsidiary to make, any expenditures for fixed or capital
assets (but excluding, to the extent included, the expenditures for rolling
stock and expenditures made to acquire the membership interest in Hillandale,
LLC) which would cause the aggregate of all such expenditures made by the
Borrower and its Subsidiaries in any period of four (4) consecutive Fiscal
Quarters to exceed the consolidated depreciation of the Borrower and the
Subsidiaries for such period.
Amendment
to Paragraph (e) of Section 5.02- Mergers,
ect. Clauses
(i) and (ii) of Paragraph (e) of Section 5.02 of the Revolving Credit Agreement
are amended in their respective entireties to read as follows:
(i) any
Subsidiary may merge or consolidate with any Guarantor and any Subsidiary may
transfer assets to any Guarantor; (ii) the Borrower or any Guarantor may
acquire all or substantially all of the assets of or the securities or other
ownership interests issued by any party engaged in the production and
distribution of eggs; provided
that
upon or within thirty days of the acquisition of all the securities or other
ownership interests issued by such a party or, if the Borrower establishes
a
Subsidiary to acquire all or substantially all the assets of such a party,
within thirty days of such asset acquisition, the Borrower shall cause such
party (in the case of the acquisition of ownership interests) or, if applicable,
such new Subsidiary to execute and deliver a Subsidiary Joinder Agreement and
such other documentation as the Administrative Agent may request to cause such
Subsidiary to evidence, perfect, or otherwise implement the guaranty and pledge
of collateral contemplated by the Amended Guaranty Agreement and Consolidated
Security Agreement (except that neither Hillandale, LLC nor American Egg
Products LLC shall be required to execute and deliver a Subsidiary Joinder
Agreement or otherwise implement the guaranty and pledge of collateral
contemplated by the Amended Guaranty Agreement and Consolidated Security
Agreement under the terms of this proviso) ; and
Additions
to Section 5.02 - Negative
Covenants
. The
following Paragraphs are added to Section
5.02
of
the Revolving Credit Agreement to read as follows:
60
(i) Investments
in Non-Guarantor Subsidiaries.
Make or
permit to remain outstanding any advance, loan, extension of credit, or capital
contribution to or investment in Hillandale, LLC or American Egg Products
LLC or any affiliate thereof, or purchase or own any equity interests, notes,
debentures, or other securities issued by Hillandale, LLC or American Egg
Products LLC (each of the foregoing, an "Investment"),
except:
(i) the
Borrower may acquire 100% of the membership interests in Hillandale, LLC
pursuant to the terms of that certain Agreement to Form a Limited Liability
Company, Transfer Assets Thereto, and Purchase Units of Membership Therein
dated
July 28, 2005 (the "Hillandale
Agreement")
among
Borrower, Hillandale Farms of Florida, Inc. and Hillandale Farms, Inc. and
Xxxx
X. Xxxxx, Xxxx X. Xxxxx, Xx., Xxxxx X. Xxxxxxxx, Xx., Xxxxxx X. Xxxxxx and
Xxxxxx X. Mizellas (as the same exists as of October 13, 2005 without giving
effect to any amendment or other modification thereof after October 13, 2005
unless modified with the consent of the Banks);
(ii) advances,
loans and extensions of credit to Hillandale, LLC as long as: (A) no Event
of Default exists or would result therefrom; (B) the aggregate outstanding
principal amount of all such advances, loans and extensions of credit shall
never exceed $10,000,000 at any time; and (C) Hillandale, LLC's obligations
to repay such advances, loans and extensions of credit shall be evidenced by
a
promissory note in form and substance acceptable to the Administrative Agent
which shall be delivered to the Agent, endorsed payable to the order of the
Agent and pledged to the Agent (for the benefit of the Banks) to secure the
Obligations; and
(iii) the
Borrower may acquire and own the membership interests in American Egg Products
LLC that it owns on October 13, 2005 after giving effect to the acquisition
of
51% of the membership interests in Hillandale, LLC; and
(iv) advances,
loans and extensions of credit to American Egg Products LLC as long as:
(A) no Event of Default exists or would result therefrom; and (B) the
aggregate outstanding principal amount of all such advances, loans and
extensions of credit shall never exceed $2,000,000 at any time.
(j) Indebtedness
of Hillandale, LLC.
Permit
Hillandale, LLC to create, incur, assume or suffer to exist, any Debt except:
(i) Debt for borrowed money owed to the Borrower and incurred under the
permissions of clause (ii) of paragraph (i) of Section 5.02; (ii) the
obligations of Hillandale, LLC as a guarantor or co-borrower in respect of
the
Hillandale Term Loan; (iii) Debt for borrowed money or incurred under
capital leases as long as the aggregate outstanding principal amount of the
Debt
incurred under the permissions of this clause (iii) shall never exceed
$2,000,000; and (iv) the following Debt outstanding as of October 13,
2005:
|
Payee
|
Principal
Amount
|
|
Farm
Credit
|
$3,000,524
|
|
Columbia
Grain
|
$2,000,000
|
|
Mercantile
|
$688,802
|
|
Xxxx
Xxxxxxx
|
$100,000
|
|
Xx
Xxxx
|
$309,367
|
(k) Indebtedness
of American Egg Products LLC.
Permit
American Egg Products LLC to create, incur, assume or suffer to exist, any
Debt
except: (i) Debt for borrowed money owed to the Borrower and incurred under
the permissions of clause (iv) of paragraph (i) of Section 5.02;
(ii) Debt owed to Ford Motor Credit Company in an amount equal to $6,000
incurred to finance the purchase of an automobile; and (iii) other Debt for
borrowed money or incurred under capital leases as long as the aggregate
outstanding principal amount of the Debt incurred under the permissions of
this
clause (ii) shall never exceed $100,000.
61
(l) Liens
of Hillandale, LLC.
Permit
Hillandale, LLC to incur, create, assume, or permit to exist any Lien upon
any
of its property, assets, or revenues, whether now owned or hereafter acquired,
except: (i) Liens granted to the Administrative Agent to secure the
Obligations; (ii) Liens on real estate and the improvements, equipment and
fixtures located thereon and the other assets specifically related thereto
securing the Hillandale Term Loan; (iii) Lien on equipment and other assets
specifically related thereto securing the Debt permitted by clauses (iii) and
(iv) of paragraph (j) of Section 5.02; (iv) Encumbrances
consisting of minor easements, zoning restrictions, or other restrictions on
the
use of real property that do not (individually or in the aggregate) materially
affect the value of the assets encumbered thereby or materially impair the
ability of Parent or the Subsidiaries to use such assets in their respective
businesses, and none of which is violated in any material respect by existing
or
proposed structures or land use;
(v) Liens
(other than Liens relating to environmental liabilities or ERISA) for taxes,
assessments, or other governmental charges that are not delinquent or which
are
being contested in good faith and for which adequate reserves have been
established;
(vi) Liens
of mechanics, materialmen, warehousemen, carriers, landlords, or other similar
statutory Liens securing obligations that are not yet due and are incurred
in
the ordinary course of business or which are being contested in good faith
and
for which adequate reserves have been established;
and
(vii) Liens
resulting from good faith deposits to secure payments of workmen's compensation
or other social security programs or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, and contracts (other
than
for payment of Debt).
(m) Liens
of American Egg Products LLC.
Permit
American Egg Products LLC to incur, create, assume, or permit to exist any
Lien
upon any of its property, assets, or revenues, whether now owned or hereafter
acquired, except: (i) Liens on equipment and other assets specifically
related thereto securing the Debt permitted by clauses (ii) and (iii) of
paragraph (k) of Section 5.02; (ii) Encumbrances consisting of minor
easements, zoning restrictions, or other restrictions on the use of real
property that do not (individually or in the aggregate) materially affect the
value of the assets encumbered thereby or materially impair the ability of
Parent or the Subsidiaries to use such assets in their respective businesses,
and none of which is violated in any material respect by existing or proposed
structures or land use; (iii) Liens (other than Liens relating to
environmental liabilities or ERISA) for taxes, assessments, or other
governmental charges that are not delinquent or which are being contested in
good faith and for which adequate reserves have been established;
(iv) Liens of mechanics, materialmen, warehousemen, carriers, landlords, or
other similar statutory Liens securing obligations that are not yet due and
are
incurred in the ordinary course of business or which are being contested in
good
faith and for which adequate reserves have been established; and (v) Liens
resulting from good faith deposits to secure payments of workmen's compensation
or other social security programs or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, and contracts (other
than
for payment of Debt).
(n) Liens
of Borrower.
Incur,
create, assume, or permit to exist any Lien upon any right, title or interest
it
has in or to the following assets: (i) any membership or other equity
interest it owns in Hillandale, LLC or American Egg Products LLC,
(ii) any loan, advance or other extensions of credit it has made to
Hillandale, LLC or to American Egg Products LLC and (iii) the proceeds
of the property described in the foregoing clauses (i) and (ii) and all other
property rights and general intangibles relating to the property described
in
the foregoing clauses (i) and (ii).
(o) Limitation
on Restrictions on Subsidiaries.
Create
or otherwise cause or suffer to exist or become effective, nor permit any
Subsidiary to create or otherwise cause or suffer to exist or become effective,
any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary to: (1) pay dividends or make any other distribution on any of
such Subsidiary's equity interests owned by the Borrower or any Subsidiary;
(2) pay any Debt owed to the Borrower or any other Subsidiary;
(3) make loans or advances to the Borrower or any other Subsidiary; or
(4) transfer any of its property or assets to the Borrower Parent or any
other Subsidiary.
62
(p) Affiliate
Transactions.
Enter
into any transaction (including, without limitation, the purchase, sale, or
exchange of property or the rendering of any service) with any Affiliate
(including any Non-Guarantor Subsidiary) of the Borrower or any Subsidiary
and
will not permit any Guarantor to enter into any such transaction with any such
Affiliate, except, in each case in the ordinary course of and pursuant to the
reasonable requirements of Borrower's or such Guarantor's business and upon
fair
and reasonable terms no less favorable to Borrower or such Guarantor than would
be obtained in a comparable arms-length transaction with a Person not an
Affiliate of Borrower or such Guarantor.
Amendment
to Existing Definitions in Section 7.01 - Definitions
and Accounting Terms.
The
definition of the following terms set forth in Section
7.01
of the
Revolving Credit Agreement are amended in their respective entireties to read as
follows:
"Eligible
Egg and Egg Product Inventory"
means
all eggs and egg products of Borrower and the other Pledgors including shell
eggs (both processed and unprocessed), liquid, dried and frozen eggs, and all
ingredients used in egg products, such as salt, sugar and syrup, and all packing
and other supplies used in the production of eggs and processing of shell eggs,
in which Agent has a perfected first priority security interest.
"Eligible
Feed Inventory"
means
all feed of Borrower and the other Pledgors, including shelled corn and other
feed grains, soybean meal, feed additives and chemicals used in the manufacture
of feed, and processed "finished" feed, in which Agent has a perfected first
priority security interest. Eligible Feed Inventory shall not include any
silage.
"Eligible
Livestock"
means
all grazing cattle on pasture and cattle of Borrower and the other Pledgors
in a
feedlot and all dairy cattle of Borrower and the other Pledgors of whatsoever
age, in which Agent has a perfected first priority security
interest
"Eligible
Poultry Inventory"
means
all live poultry and chickens of Borrower and the other Pledgors, including
broilers, pullets, layers, breeders and recycles, in which Administrative Agent
has a perfected first priority security interest.
"Eligible
Receivable"
means
the indebtedness arising out of a sale of goods or the performance of services
by the Borrower or another Pledgor to a third party in the ordinary course
of
business (i.e.,
not
including any non-trade accounts receivable or those accounts receivable that
do
not otherwise arise from goods sold or services performed in the ordinary course
of business) in which Agent has a perfected first priority security interest,
and may include the right to payment of any interest or finance charges and
other obligations of such third party with respect thereto:
(i) which
is
required to be paid in full within 60 days of the original billing date
therefor;
(ii) as
to
which any payment, or part thereof, does not remain unpaid for more than 60
days
from the original due date for such payment and which would, in the ordinary
course of business of the Borrower or a Pledgor, not be written off as
uncollectible;
(iii) which
is
an account receivable representing all or part of the sales price of goods
or
services;
(iv) which
is
an "account" within the meaning of the UCC of the State of New
York;
63
(v) which
is
denominated and payable only in United States dollars in the United States;
and
(vi) which
complies, on and after the 30th day following notice by any Bank to the Borrower
of any other criteria or requirements, with such other criteria and requirements
as any Bank shall have specified in such notice.
"Guarantors"
means
each of Cal-Maine Farms, Inc., a Delaware corporation, CM Partnership, CMF
of
Kansas, South Texas Applicators, Inc., Southern Equipment Distributors, Inc.,
and each Subsidiary that hereafter executes and delivers a Subsidiary Joinder
Agreement, and any reference to either or both Guarantors in any Loan Documents
shall mean a reference to any or all of the Guarantors, as applicable. The
term
"Guarantor" shall not include Hillandale, LLC nor American Egg Products
LLC.
"Loan
Documents"
means
this Agreement (as it may be amended or otherwise modified from time to time),
the Notes, the Amended Guaranty Agreement, the Consolidated Security Agreement,
the Hillandale Security Agreement, the Borrower Pledge Agreement, the
Intercreditor Agreement, and all other certificates and documents delivered
by
the Borrower or any of its Subsidiaries hereunder or under the terms of any
of
the foregoing documents.
"Revolving
Credit Commitment"
means,
as to each Bank, the obligation of such Bank to make the Advances to be made
pursuant to Section 1.01
in a
principal amount not exceeding Twenty-Two Million Eight Hundred Fifty Seven
Thousand One Hundred Forty Two and 86/100 Dollars ($22,857,142.86) with respect
to Rabobank, a principal amount not exceeding Eleven Million Four Hundred Twenty
Eight Thousand Five Hundred Seventy One and 43/100 Dollars ($11,428,571.43)
with
respect to Xxxxxx and a principal amount not exceeding Five Million Seven
Hundred Fourteen Thousand Two Hundred Eighty Five and 71/100 Dollars
($5,714,285.71) respect to First South, as the same may be reduced or terminated
pursuant to Section 1.04
or
Section 6.02.
"Termination
Date"
means
December 31, 2007 or the date of the earlier termination in whole of the
Revolving Credit Commitment pursuant to Sections 1.04
or
6.02.
Addition
of New Definitions in Section 7.01
- Definitions
and Accounting Terms.
The
following definitions are hereby added to Section
7.01
of the
Revolving Credit Agreement:
"Affiliate"
means,
as to any party, any other party: (a) that directly or indirectly, through
one or more intermediaries, controls or is controlled by, or is under common
control with, such party; (b) that directly or indirectly beneficially owns
or holds five percent (5%) or more of any class of voting equity of such party;
or (c) five percent (5%) or more of the voting equity of which is directly
or indirectly beneficially owned or held by the party in question. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause direction of the management and policies of a party, whether through
the ownership of voting securities, by contract, or otherwise; provided,
however,
in no
event shall Administrative Agent, Agent or any Bank be deemed an Affiliate
of
the Borrower or any Subsidiaries.
"Borrower
Pledge Agreement"
means
that certain Pledge Agreement dated as of October 13, 2005 between the
Borrower and the Agent for the benefit of the Banks and all amendments,
supplements and other modifications thereto.
"Hillandale
Security Agreement"
means
that certain Security Agreement dated as of October 13, 2005 between Hillandale,
LLC and the Agent for the benefit of the Banks and all amendments, supplements
and other modifications thereto.
"Hillandale
Term Loan"
means a
term loan originally extended in 2005 in an original principal amount not to
exceed $28,000,000 secured by real property owned by Hillandale, LLC and the
improvements, fixtures and equipment located thereon and related thereto and
certain other assets specifically related thereto, the proceeds of which were
or
are to be used to refinance the then existing Debt of
Hillandale, LLC.
64
"Lien"
means
any lien, mortgage, security interest, tax lien, financing statement, pledge,
charge, hypothecation, assignment, preference, priority, or other encumbrance
of
any kind or nature whatsoever (including, without limitation, any conditional
sale or title retention agreement), whether arising by contract, operation
of
law, or otherwise.
"Pledgors"
means
Borrower, the Guarantors and Hillandale, LLC.
Amendment
to Exhibit
- Compliance
Certificate.
Exhibit C
to the
Revolving Credit Agreement is amended in its entirety to read as set forth
on
Exhibit A hereto.
Conditions
Precedent
Conditions.
The
effectiveness of Article II of this Amendment is subject to the
satisfaction of the following conditions precedent:
The
Administrative Agent shall have received a fully executed complete copy of
the
Hillandale Agreement (including all schedules and exhibits thereto) together
with copies of all bills of sale, assignments, UCC, Tax and Judgment Lien
searches, legal opinions, closing certificates and other documentation delivered
in connection therewith (collectively the "Hillandale
Documents")
excluding however, the real property deeds and title insurance documents and
the
environmental reports;
The
Administrative Agent shall have received the Borrower Pledge Agreement in
substantially the form of Exhibit B hereto executed by the Borrower and
such other documentation as the Administrative Agent may request to cause the
Borrower to evidence, perfect, or otherwise implement the pledge of collateral
contemplated by the Borrower Pledge Agreement;
The
Administrative Agent shall have received the Hillandale Security Agreement
in
substantially the form of Exhibit C hereto executed by Hillandale, LLC
and such other documentation as the Administrative Agent may request to cause
Hillandale, LLC to evidence, perfect, or otherwise implement the pledge of
collateral contemplated by the Hillandale Security Agreement;
The
Administrative Agent shall have received the First Amendment to Third Amended
and Restated Intercreditor Agreement in substantially the form attached hereto
as Exhibit D executed by all the parties thereto;
The
Administrative Agent shall have received the promissory note executed by
Hillandale, LLC and payable to the order of the Borrower in substantially the
form attached hereto as Exhibit E and endorsed by the Borrower payable to
the order of the Agent;
The
Administrative Agent shall have received a Note for each of the Banks in the
amount of its Revolving Credit Commitment after giving effect to this
Amendment;
The
Administrative Agent shall have received such evidence of the existence and
good
standing of the Borrower and the other Pledgors (including, without limitation,
Hillandale, LLC) and of their authority to execute, deliver and perform this
Amendment, the other Loan Documents and Hillandale Documents to which each
is a
party as the Administrative Agent may require, each dated (unless otherwise
indicated) the date of this Amendment, in form and substance satisfactory to
the
Administrative Agent;
The
Administrative Agent shall have received an opinion of counsel to the Borrower
and the other Pledgors in form and substance acceptable to the Administrative
Agent;
65
Each
Bank
shall have received its pro rata portion (calculated based on the Revolving
Credit Commitments) of an upfront fee paid by the Borrower which aggregates
for
all Banks to an amount equal to $100,000;
The
Administrative Agent shall have received evidence that the lenders under the
Note Agreement shall have agreed that neither Hillandale, LLC nor American
Egg
Products LLC are required to be added as guarantors under the terms of the
Note
Agreement, which evidence shall include an amendment to or waiver of Section
2.9
of the Note Agreement;
The
Administrative Agent shall have received such additional documentation and
information as it or its legal counsel may request;
The
representations and warranties contained herein and in all other Loan Documents,
as amended hereby, and in the Hillandale Documents shall be true and correct
as
of the date hereof as if made on the date hereof, except for such
representations and warranties limited by their terms to a specific
date;
No
Event
of Default nor any event or condition that with the giving of notice or lapse
of
time or both would be such an Event of Default shall exist or will result from
the Hillandale Transactions; and
All
proceedings taken in connection with the transactions contemplated by this
Amendment and the Hillandale Documents and all documentation and other legal
matters incident thereto shall be satisfactory to the Administrative Agent
and
its legal counsel.
Ratifications,
Representations and Warranties
Ratifications.
The
terms and provisions set forth in this Amendment shall modify and supersede
all
inconsistent terms and provisions set forth in the Revolving Credit Agreement
and except as expressly modified and superseded by this Amendment, the terms
and
provisions of the Loan Documents (including all amendments thereto which
include, without limitation, that certain First Amendment and Waiver to Second
Amended and Restated Revolving Credit Agreement dated
October 14, 2002, that certain Second Amendment to Second Amended and
Restated Revolving Credit Agreement dated January 31, 2003, that
certain Third Amendment to Second Amended and Restated Revolving Credit
Agreement dated September 12, 2003, that certain Fourth Amendment to
Second Amended and Restated Revolving Credit Agreement dated December 1, 2003,
that certain Fifth Amendment to Second Amended and Restated Revolving Credit
Agreement dated March 31, 2004, that certain Sixth Amendment to Second Amended
and Restated Revolving Credit Agreement dated April 14, 2004, that certain
Seventh Amendment to Second Amended and Restated Revolving Credit Agreement
dated August 6, 2004 and that certain Eight Amendment to Second Amended and
Restated Revolving Credit Agreement dated March 15, 2004 (collectively, the
"Previous
Amendments"))
are
ratified and confirmed and shall continue in full force and effect. The liens,
security interests, and assignments created and evidenced by the Loan Documents
are valid and existing liens, security interests, and assignments of the
respective priority recited in the Loan Documents. Each of the parties hereto
agrees that: (i) the Loan Documents, as amended hereby and by the Previous
Amendments, shall continue to be legal, valid, binding, and enforceable in
accordance with their respective terms and (ii) this Amendment is a Loan
Document as such term is defined in and used in the Revolving Credit Agreement
and the other Loan Documents.
Representations
and Warranties.
To
induce the Administrative Agent and the Banks to modify the Revolving Credit
Agreement as herein set forth, Borrower and each Guarantor represents and
warrants to the Administrative Agent and the Banks that:
The
representations and warranties of Borrower and each Guarantor contained in
the
Loan Documents, as amended hereby, are true and correct on and as of the date
hereof as though made on and as of the date hereof, except for such
representations and warranties limited by their terms to a specific
date;
66
No
Event
of Default has occurred and is continuing or will occur as a result of the
Hillandale Transactions and no event or condition has occurred (or will occur
as
a result of the Hillandale Transaction) that with the giving of notice or lapse
of time or both would be an Event of Default, and the Borrower and each
Guarantor is in full compliance with all covenants and agreements binding on
them contained in the Loan Documents, as amended hereby;
No
default nor any event of default has occurred and is continuing or will occur
as
a result of the Hillandale Transactions under the terms of the Note Agreement
and no event or condition has occurred (or will occur as a result of the
Hillandale Transaction) that with the giving of notice or lapse of time or
both
would be such a default or event of default, and the Borrower and each Guarantor
is in full compliance with all covenants and agreements binding on them
contained in the Note Agreement;
All
Hillandale Documents are in full force and effect, no material term or condition
thereof has been amended, modified or waived, the Contribution and Initial
Equity Acquisition has occurred, the Hillandale Transactions are permitted
by
the terms of the Note Agreement and each party to the Hillandale Documents
has
performed all material obligations required thereby as of the date hereof;
and
AS
OF THE
DATE OF ITS EXECUTION OF THIS AMENDMENT THERE ARE NO CLAIMS, RIGHTS OF
RECOUPMENT OR OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS TO ITS OBLIGATIONS
UNDER THE LOAN DOCUMENTS AND IN ACCORDANCE THEREWITH IT WAIVES ANY AND ALL
SUCH
CLAIMS, OFFSETS, DEFENSES, RIGHTS OF RECOUPMENT OR COUNTERCLAIMS, WHETHER KNOWN
OR UNKNOWN, ARISING PRIOR TO THE DATE OF ITS EXECUTION OF THIS
AMENDMENT.
Miscellaneous
Survival
of Representations and Warranties.
All
representations and warranties made in this Amendment shall survive the
execution and delivery of this Amendment, and no investigation by the
Administrative Agent or any Bank or any closing shall affect the
representations and warranties or the right of the Administrative Agent and
each
Bank to rely upon them.
Reference
to Revolving Credit Agreement.
Each of
the Loan Documents are hereby amended so that any reference in such Loan
Documents to the Revolving Credit Agreement shall mean a reference to the
Revolving Credit Agreement, as amended hereby.
Severability.
Any
provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provision so held
to
be invalid or unenforceable.
Applicable
Law.
THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
Successors
and Assigns.
This
Amendment is binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns, except neither Borrower nor any
Guarantor may assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Banks.
Counterparts.
This
Amendment may be executed in one or more counterparts and on telecopy
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
agreement.
Effect
of Waiver.
No
consent or waiver, express or implied, by the Administrative Agent or any Bank
to or for any breach of or deviation from any covenant, condition, or duty
by
Borrower or any Guarantor shall be deemed a consent or waiver to or of any
other
breach of the same or any other covenant, condition, or duty.
67
Headings.
The
headings, captions, and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
Entire
Agreement.
THIS
AMENDMENT EMBODIES THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER OF
THIS
AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO.
Executed
as of the date first written above.
| CAL-MAINE FOODS, INC. | ||
| |
|
|
| By: | ||
|
Xxxxxxx Xxxxxx, Vice President and Chief Financial
Officer
|
||
| COÖPERATIEVE CENTRALE | ||
| RAIFFEISEN-BOERENLEENBANK B.A. | ||
|
"RABOBANK
NEDERLAND," NEW YORK BRANCH (sometimes referred to as
Rabobank International), as the Administrative Agent and a
Bank
|
||
| |
|
|
| By: | ||
|
Xxxxxxx X. Xxxxx, Executive Director |
||
| |
|
|
| By: | ||
|
Xxxxx Xxxxxxx, Executive Director |
||
| FIRST SOUTH FARM CREDIT, ACA | ||
| |
|
|
| By: | ||
|
J. Xxxxxx Xxxxxxxxxxx, Vice President |
||
| Xxxxxx X.X. (successor in interest by merger to Xxxxxx Trust and Savings Bank) | ||
| |
|
|
| By: | ||
|
Xxxxx X. Xxxxxxxxx, Vice President |
||
68
GUARANTOR
CONSENT
Each
Guarantor: (i) consents and agrees to this Ninth Amendment to Second
Amended and Restated Revolving Credit Agreement; (ii) agrees that the
Intercreditor Agreement, the Amended Guaranty Agreement and the Consolidated
Security Agreement to which it is a party shall remain in full force and effect
and shall continue to be the legal, valid, and binding obligation of such
Guarantor enforceable against it in accordance with its terms; and
(iii) agrees and acknowledges that the obligations, indebtedness and
liability secured or guaranteed by the Amended Guaranty Agreement and the
Consolidated Security Agreement to which it is a party include the "Obligations"
as defined in the Second Amended and Restated Revolving Credit Agreement, as
amended by this Amendment.
| GUARANTORS | ||
| CAL-MAINE FARMS, INC. | ||
| SOUTHERN EQUIPMENT DISTRIBUTORS, INC. | ||
| SOUTH TEXAS APPLICATORS, INC. | ||
| |
|
|
| By: | ||
|
Xxxxxxx Xxxxxx, Vice President and Chief Financial Officer of each of the foregoing companies |
||
| CAL-MAINE PARTNERSHIP, LTD. | ||
| |
|
|
| By: | Cal-Maine Foods, Inc., | |
| its general partner | ||
| By: _________________________________________________ | ||
|
Xxxxxxx
Xxxxxx,
Vice President and Chief Financial Officer
|
||
| CMF OF KANSAS - LLC | ||
| |
|
|
| By: | Cal-Maine Foods, Inc. | |
| its managing member | ||
| By: _______________________________________________ | ||
|
Xxxxxxx
Xxxxxx, Vice President and Chief Financial
Officer
|
||
69
