Exhibit 4.3(g)
SIXTH AMENDMENT TO CREDIT AGREEMENT
Between U.S. BANK NATIONAL ASSOCIATION, as Agent, the Other Lenders
and
PREMIUM STANDARD FARMS, INC.
Dated August 27, 1997
This Sixth Amendment to Credit Agreement (this "Amendment") is made
as of the 31st day of March, 2002 by and among PREMIUM STANDARD FARMS, INC., a
Delaware corporation and a wholly owned subsidiary of the Guarantor
("Premium"), THE XXXXX PACKING COMPANY, a North Carolina corporation,
successor by merger to PSF ACQUISITION CORP. and a wholly-owned subsidiary of
Premium ("Asset Sub B"), PREMIUM STANDARD FARMS OF NORTH CAROLINA, INC.,
a Delaware corporation, and a wholly-owned subsidiary of Premium ("Asset Sub
C"), XXXXX INTERNATIONAL, INC., a North Carolina corporation and a wholly
owned subsidiary of Asset Sub C ("Xxxxx International"), and LPC
TRANSPORT, INC., a Delaware corporation and a wholly-owned subsidiary of Asset
Sub B ("Asset Sub D" and collectively with Premium, Asset Sub B, Asset
Sub C, and Xxxxx International, the "Borrower"), the financial
institutions listed on the signature pages hereof (being at least the "Required
Lenders") and U.S. BANK NATIONAL ASSOCIATION, a national banking association
(as successor by assignment to U.S. Bancorp Ag Credit, Inc., [f/k/a FBS Ag
Credit, Inc.] a Colorado corporation)(the "Agent"), in its capacity as
Agent for the Lenders under the Credit Agreement dated as of August 27, 1997
among Premium, Asset Sub B, Asset Sub C, Xxxxx International, the Agent and the
Lenders (as the same has been and may be amended, replaced, restated and/or
supplemented from time to time, the "Credit Agreement").
RECITALS
A. On or before March 31, 2002, Premium and Asset Sub B desire to
merge, with Premium being the surviving corporation ("Asset Sub B Merger").
Prior to the Asset Sub B Merger, Asset Sub B will form and transfer certain
transportation-related assets to Asset Sub D (hereafter referred to as the
"LPC Asset Transfer").
B. Prior to the effective date of the Asset Sub B Merger, Asset
Sub D will be a wholly-owned subsidiary of Asset Sub B. After the effective date
of the Asset Sub B Merger, Asset Sub D will be a wholly-owned subsidiary of
Premium.
C. Borrower has represented and warranted to the Agent and the
Lenders that the value of the assets to be transferred pursuant to the LPC Asset
Transfer does not create an aggregate transfer of Borrower's assets for fiscal
year ending 2002 in excess of $250,000 and therefore, the LPC Asset Transfer
does not require the consent of the Required Lenders pursuant to the Credit
Agreement.
Notwithstanding the foregoing, Borrower, the Agent and the Lenders desire Asset
Sub D to become a party to the Credit Agreement and the Financing Agreements
related thereto at this time.
D. Capitalized terms used and not defined in this Amendment
shall have the meanings given to such terms in the Credit Agreement, as amended
by this Amendment.
NOW THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in the Credit Agreement and this Amendment, and of any
loans or extensions of credit or other financial accommodations heretofore, now
or hereafter made to or for the benefit of Borrower by the Agent and the
Lenders, Borrower, the Agent and the Lenders agree as follows:
1. Assumption of Indebtedness by Asset Sub D; Obligations and
Covenants. Asset Sub D hereby assumes all indebtedness of Premium, Asset
Sub B, Asset Sub C, and Xxxxx International to the Agent and the Lenders pursuant
to, and as a co-borrower joins in, the Credit Agreement. Asset Sub D also agrees
to pay all indebtedness to the Agent and the Lenders under all promissory notes
issued pursuant to the Credit Agreement, and agrees that its liability to the
Agent and the Lenders with respect to all indebtedness thereunder shall be
primary as well as joint and several with Premium, Asset Sub B, Asset Sub C, and
Xxxxx International, all as if Asset Sub D was an original obligor thereof.
Asset Sub D also agrees to abide by and observe all of the covenants, terms and
conditions to be observed and performed by Borrower as contained in the Credit
Agreement, and the agreements, instruments and/or documents related thereto,
including but not limited to the Financing Agreements. Asset Sub D shall be and
is hereby added as a party to the Credit Agreement and as a party to all of the
agreements, instruments and/or documents related thereto, and any and all
references to Borrower set forth in the Credit Agreement, or in any agreement,
instrument or document related thereto, including without limitation this
Amendment, shall hereafter include and pertain in all respects to Asset Sub D.
Premium, Asset Sub B, Asset Sub C, and Xxxxx International acknowledge and
consent to the foregoing, and agree that their liability to the Agent and the
Lenders with respect to all indebtedness under the Credit Agreement shall be
primary as well as joint and several with Asset Sub D.
2. Section 1.2 of the Credit Agreement, is amended to add or
amend the following capitalized terms which are defined in the preambles to this
Amendment: "Asset Sub D", "Borrower", "Asset Sub B Merger" and "LPC Asset
Transfer".
3. New and Amended Defined Terms. Section 1.1 of the
Credit Agreement, Defined Terms, is amended to add or amend the following
definitions,
which shall read in full as follows:
"Applicable Margin" shall mean with respect to
Revolving Loans or Term Loans, which are Base Rate Loans or LIBOR Rate
Loans, or with respect to fees for non-use of the Revolving Loan
Commitments, the rates per annum set forth below for the then
applicable Financial Performance Level:
Revolving Loans:
------------------------------ ----------------------
Financial
Performance Level Base Rate LIBOR Rate Non-Use Fee
----------------- --------- ---------- -----------
Xxxxx 0 1.00% 2.50% 0.375%
------------------ ---------- ----------- ------------
Xxxxx 0 0.75% 2.25% 0.375%
------------------ ---------- ----------- ------------
Xxxxx 0 0.50% 2.00% 0.250%
------------------ ---------- ----------- ------------
Xxxxx 0 0.25% 1.75% 0.250%
------------------ ---------- ----------- ------------
Xxxxx 0 0.00% 1.50% 0.250%
------------------ ---------- ----------- ------------
Term Loans:
------------------ ---------- -----------
Financial
Performance Level Base Rate LIBOR Rate
------------------ ---------- -----------
Xxxxx 0 1.125% 2.625%
------------------ ---------- -----------
Xxxxx 0 0.875% 2.375%
------------------ ---------- -----------
Xxxxx 0 0.625% 2.125%
------------------ ---------- -----------
Xxxxx 0 0.375% 1.875%
------------------ ---------- -----------
Xxxxx 0 0.125% 1.625%
------------------ ---------- -----------
The Agent will review the Borrower's financial performance as
of each fiscal quarter end after its receipt of the Borrower's
financial statements and compliance certificate for such fiscal
quarter, and will confirm the Borrower's determination as to whether
the Borrower's Financial Performance Level for such fiscal quarter was
Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 4 or Level 5. As so confirmed by the
Agent, the Borrower's Financial Performance Level will determine the
Applicable
Margin effective for Revolving Loans, Term Loans and the
fees for non-use of the Revolving Loan Commitments for the three month
period beginning on the tenth day of the month following the month in
which the Agent receives such quarterly financial statements if the
Agent receives such quarterly financial statements prior to the last
five (5) Business Days of the month following the end of such fiscal
quarter. If the Agent receives such quarterly financial statements
during the last five (5) Business Days of the month following the end
of such fiscal quarter, any reduction in the Applicable Margin will be
delayed until the tenth day of the second month following the month in
which the Agent receives such quarterly financial statements, but any
increase in the Applicable Margin will be effective retroactively to
the tenth day of the month following the month in which the Agent
receives such quarterly financial statements. If the Agent does not
receive such quarterly statements prior to the end of the month
following the end of such fiscal quarter, the Borrower's Financial
Performance Level shall be deemed to be Xxxxx 0 retroactively beginning
with the tenth day of the second month following the end of such fiscal
quarter.
"Base Rate" shall mean the greater of (a) the
Prime Rate or (b) the Federal Funds Rate plus one half of one percent
(.5%).
"Base Rate Loan" shall mean any Loan which bears
interest at the Base Rate plus the Applicable Margin.
"Eligible Inventory" shall mean at the time of
any determination thereof, all Inventory that met the following
criteria at the time of creation or acquisition and continue to meet
the same at the time of such determination:
(a) such Inventory is Inventory not deemed to be
out-of-condition or otherwise unmerchantable by the United States
Department of Agriculture, any state's Department of Agriculture, or
any other Governmental Authority having regulatory authority over
Borrower or any of Borrower's assets or activities;
(b) such Inventory is not Inventory for which a prepayment has
been received;
(c) such Inventory is not in the possession of third parties,
unless it is: (i) Inventory at a location disclosed to the Agent in
accordance with Sections 3.3 and 4 of the Security Agreement (as
that term is defined herein) or (ii) Inventory covered by negotiable
warehouse receipts or negotiable bills of lading issued by either (A) a
warehouseman licensed and bonded by the United States Department of
Agriculture or any state's Department of Agriculture, or (B) a
recognized carrier having an office in the United States and in a
financial condition reasonably acceptable to the Agent, which receipts
or bills of lading designate the Agent directly or by endorsement as
the only Person to which or to the order of which the warehouseman or
carrier is legally obligated to deliver such Inventory;
(d) such Inventory is owned solely by the Borrower and is
subject to a perfected first priority interest in favor of the Agent
for the ratable benefit of the Lenders; and
(e) such Inventory complies in all material respects with the
requirements of all applicable laws and regulations, whether federal,
state or local.
"Eurodollar Rate" / Deleted.
"Eurodollar Rate Loan" / Deleted.
"LIBOR Rate" shall mean, with respect to each
day during each Interest Period applicable to a LIBOR Rate Advance, the
one, two, three or six month LIBOR rate quoted by the Agent from
Telerate Page 3750 or any successor thereto (which shall be the LIBOR
rate in effect two Business Days prior to the LIBOR Rate Loan) rounded
up to the nearest one sixteenth of one percent.
"LIBOR Rate Loan" shall mean any Loan, which
bears interest at the LIBOR Rate plus the Applicable Margin.
"Prime Rate" shall mean the prime rate announced
by the Agent from time to time, which is a base rate that the Agent
from time to time establishes and which serves as the basis upon which
effective rates of interest are calculated for those loans which make
reference thereto. The Prime Rate is not necessarily the lowest rate
offered by the Agent. With respect to Base Rate Loans, each change in
the rate of interest hereunder shall become effective on the date each
Prime Rate change is announced by the Agent or with each change in the
Federal Funds Rate, as the case may be.
"Reference Rate" / Deleted.
"Reference Rate Loan" / Deleted.
4. Each and every reference in the Credit Agreement or any
Financing Agreements to the Reference Rate shall be to the Prime Rate as defined
herein. Each and every reference in the Credit Agreement or any Financing
Agreements to the Reference Rate Loan shall be to the Base Rate Loan as defined
herein. Each and every reference in the Credit Agreement or any Financing
Agreements to the Eurodollar Rate and the Eurodollar Rate Loan shall be to the
LIBOR Rate and the LIBOR Rate Loan, respectively, as defined herein.
5. Other Names. Section 7.7 of the Credit Agreement
is amended to read in full as follows:
Premium has not, during the preceding five years, been known
by or used any other name, except as disclosed on Part 7 of Exhibit 7
to the Credit Agreement. Asset Sub C, Xxxxx International and Asset Sub
D have not, during the preceding five years, been known by or used any
other name.
6. Section 9.1 of the Credit Agreement, Financial
Statements and Other Information, shall be amended to add a subparagraph
(d), which shall read as follows:
(d) as soon as practicable and in any event within thirty (30)
days after the end of each fiscal quarter of the Borrower, together
with a compliance certificate as required by subparagraphs (a) and (b)
of this Section 9.1, an amendment to Schedule 3.3A of the
Security Agreement, which identifies, among other things, the locations
of all Collateral in the hands of third parties that has not been
previously disclosed to the Agent in writing, which amendment shall
state, at a minimum (i) the name of the third party who has possession
of the Collateral, (ii) the address of such third party location, (iii)
the name of a contact person at such third party location, (iv) the
telephone number of such contact person, and (v) the total capacity of
the facility where the Collateral is located.
7. Any compliance certificate required to be submitted by
Borrower pursuant to Section 9.1 of the Credit Agreement, Financial
Statements and Other Information, shall be substantially in the form
attached as Exhibit 9D.
8. The seventh sentence of Section 9.5 of the Credit
Agreement, Property Insurance, shall read as follows:
If the payment as a result of any insurance loss is less than
$12,000,000 in the absence of a Matured Default, the Borrower may apply
the payment to the cost of restoring or replacing the Collateral or the
portions thereof so damaged or destroyed, provided, however,
that if and to the extent such payment is not so used, the Borrower
shall use the payment first to repay any Revolving Loan outstanding,
and then as a prepayment of the Term Loans.
9. Section 9.17 of the Credit Agreement, Ownership of
Subsidiaries, is amended to read in full as follows:
9.17 Ownership of Subsidiaries.
Prior to the effective date of the Asset Sub B Merger, Asset
Sub B, and Asset Sub C shall at all times be wholly owned subsidiaries
of Premium, and Asset Sub D shall at all times be a wholly-owned
subsidiary of Asset Sub B, except as allowed in Section 10.2(a). From
and after the effective date of the Asset Sub B Merger, Asset Sub C and
Asset Sub D shall at times be wholly owned subsidiaries of Premium
except as allowed in Section 10.2(a). Xxxxx International shall at all
times be a wholly owned subsidiary of Asset Sub C except as allowed in
Section 10.2(a).
10. In addition to the remedies otherwise stated in Section 11.2
of the Credit Agreement, Other Remedies, upon a Matured Default, the
Agent shall have the right to deliver to each Person at such address as is
provided to the Agent on Schedule 3.3-A to the Security Agreement by and
between Borrower and Agent dated as of August 27, 1997 (as the same has been or
may be amended, replaced, restated and/or supplemented from time to time, the
"Security Agreement"), as it is amended from time to time in accordance
with Section 3.3 of the Security Agreement, the Notice Letter (as that term is
defined in the Security Agreement).
11. Maximum Interest. Section 13.19 of the Credit
Agreement is amended to read in full as follows:
13.19 Maximum Interest. No agreements,
conditions, provisions or stipulations contained in this Agreement or
in any of the other Financing Agreements, or any Default or Matured
Default, or any exercise by the Agent of the right to accelerate the
payment of the maturity of principal and interest, or to exercise any
option whatsoever, contained in this Agreement or any of the other
Financing
Agreements, or the arising of any contingency whatsoever, shall entitle
the Agent to collect, in any event, interest exceeding the maximum
authorized by law, and in no event shall Borrower be obligated to pay
interest exceeding such rate, and all agreements, conditions or
stipulations, if any, which may in any event or contingency whatsoever
operate to bind, obligate or compel Borrower to pay a rate of interest
exceeding the maximum allowed by law, shall be without binding force or
effect, at law or in equity, to the extent only of the excess of
interest over such maximum interest allowed by law. In the event any
interest is charged in excess of the maximum allowed by law ("Excess"),
Borrower acknowledges and stipulates that any such charge shall be the
result of an accidental and bona fide error, and such Excess shall be,
first, applied to reduce the principal of any Liabilities due, and,
second, returned to Borrower, it being the intention of the parties not
to enter at any time into a usurious or otherwise illegal relationship.
Borrower and the Agent both recognize that, with fluctuations of index
rates and applicable margins, such an unintentional result could
inadvertently occur. By the execution of this Agreement, Borrower
covenants that: (a) the credit or return of any Excess shall constitute
the acceptance by Borrower of such Excess; and (b) Borrower shall not
seek or pursue any other remedy, legal or equitable, against the Agent
based, in whole or in part, upon the charging or receiving of any
interest in excess of the maximum authorized by law. For the purpose of
determining whether or not any Excess has been contracted for, charged
or received by the Agent, all interest at any time contracted for,
charged or received by the Agent in connection with the Liabilities
shall be amortized, prorated, allocated and spread in equal parts
during the entire term of this Agreement.
12. Representations and Warranties. To induce the Agent and
the Lenders to enter into this Amendment, the Borrower represents and warrants
to the Agent and the Lenders that except as described in this Amendment or
previously disclosed to the Agent in writing pursuant to the Credit Agreement,
each and every representation and warranty set forth in the Credit Agreement is
true and correct as of the date hereof, and shall be deemed remade by the
Borrower as of the date hereof.
13. Representations and Warranties Regarding Location of
Collateral. Borrower represents and warrants to the Agent and the Lenders
that prior to the effective date of the Asset Sub B Merger, only Asset Sub B,
Asset Sub C, Asset Sub D and Xxxxx International own Collateral in North
Carolina, South Carolina and Georgia, and that Asset Sub B, Asset Sub C, Asset
Sub D and Xxxxx International, do not own Collateral outside of North Carolina,
South Carolina and Georgia. After
the effective date of the Asset Sub B Merger, Premium will also own Collateral
in North Carolina heretofore owned by Asset Sub B. The Borrower acknowledges
that any change in this status of location of Collateral shall be subject to the
terms of Section 2.14 of the Security Agreement dated as of August 27, 1997
among Premium, Asset Sub B, Xxxxx International, Asset Sub C, the Agent and the
Lenders (as the same has been and may be amended, replaced, restated and/or
supplemented from time to time).
14. Exhibit 9C to the Credit Agreement, Form of Compliance
Certificate, is replaced with Exhibit 9D to this Amendment.
15. Conditions to Advances; Documentation. The effectiveness
of this Amendment shall be conditioned upon the execution and/or delivery of the
agreements, instruments and/or documents listed on Exhibit 8F attached hereto,
all in form and substance acceptable to the Agent and its legal counsel.
16. Incorporation of Credit Agreement. The parties agree that
this Amendment shall be an integral part of the Credit Agreement, that all of
the terms set forth therein are incorporated in this Amendment by reference, and
that all terms of this Amendment are incorporated therein as of the date of this
Amendment. All of the terms and conditions of the Credit Agreement, which are
not modified in this Amendment, shall remain in full force and effect. To the
extent the terms of this Amendment conflict with the terms of the Credit
Agreement, the terms of this Amendment shall control.
17. Counterpart and Facsimile Signatures. This Amendment
may be executed in several counterparts, each of which shall be deemed to be an
original (whether such counterpart is originally executed or an electronic or
facsimile copy of an original) and all of which shall constitute together but
one and the same document.
[The rest of this page is intentionally left blank - Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have executed this Sixth
Amendment to Credit Agreement as of the day and year first above written.
PREMIUM STANDARD FARMS, INC.,
a Delaware corporation
ATTEST:
By: By:
---------------------------- --------------------------
Its: Its:
---------------------------- --------------------------
THE XXXXX PACKING COMPANY, a
North Carolina corporation
and successor by merger to
PSF ACQUISITION CORP.
ATTEST:
By: By:
---------------------------- ---------------------------
Its: Its:
---------------------------- ---------------------------
XXXXX INTERNATIONAL, INC., a
North Carolina corporation
ATTEST:
By: By:
---------------------------- -----------------------------
Its: Its:
---------------------------- -----------------------------
PREMIUM STANDARD FARMS OF NORTH
CAROLINA, INC., a Delaware
corporation
ATTEST:
By: By:
---------------------------- -----------------------------
Its: Its:
---------------------------- -----------------------------
LPC TRANSPORT, INC., a Delaware
corporation
ATTEST:
By: By:
---------------------------- -----------------------------
Its: Its:
---------------------------- -----------------------------
U.S. BANK NATIONAL
ASSOCIATION, as Agent and as a
Lender 000 00xx Xxxxxx, Xxxxx
000 Xxxxxx, Xxxxxxxx 00000
By:
--------------------------------
Its:
--------------------------------
FARM CREDIT SERVICES OF WESTERN
MISSOURI, PCA
By:
--------------------------------
Its:
--------------------------------
XXXXXX TRUST AND SAVINGS BANK
By:
--------------------------------
Its:
--------------------------------
FARM CREDIT SERVICES OF AMERICA,
FLCA
By:
--------------------------------
Its:
--------------------------------
FIRST NATIONAL BANK OF OMAHA
By:
--------------------------------
Its:
--------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:
--------------------------------
Its:
--------------------------------
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK INTERNATIONAL",
NEW YORK BRANCH
By:
--------------------------------
Its:
--------------------------------
By:
--------------------------------
Its:
--------------------------------
ACKNOWLEDGMENT OF GUARANTOR
The undersigned Guarantor acknowledge the foregoing Sixth Amendment to
Credit Agreement and consents to all of the terms and provisions thereof.
PSF GROUP HOLDINGS, INC., a
Delaware corporation
ATTEST:
By: By:
---------------------------- -----------------------------
Its: Its:
-------------------------- -----------------------------
Exhibit 8F
to
Sixth Amendment to Credit Agreement
List of Closing Documents Required as a Condition of the Amendment
1. Sixth Amendment to Credit Agreement.
2. Fourth Amendment to Security Agreement.
3. Secretary's Certificate as to Directors' Resolutions and Incumbency as
to LPC Transport, Inc., including Articles and Bylaws as Exhibits.
4. A Certificate of Good Standing for LPC Transport, Inc. in Delaware and
North Carolina.
5. UCC-1 Financing Statement as required by the Agent for LPC Transport,
Inc.
6. Opinion of Legal Counsel as to matters generally regarding LPC
Transport, Inc.
7. Updated or New Certificates of Insurance and Loss Payable Endorsements
showing coverage for Asset Sub D.
8. Five (5) duplicate originals of the Notice Letter provided to Borrower
in conjunction with the Fourth Amendment to the Security Agreement,
executed by Borrower.
9. Certified Corporate Resolutions of PSF Group Holdings, Inc.
10. Certified Corporate Resolutions of Premium Standard Farms, Inc.
11. Certified Corporate Resolutions of The Xxxxx Packing Company
12. Certified Corporate Resolutions of Premium Standard Farms of North
Carolina, Inc.
13. Certified Corporate Resolutions of Xxxxx International, Inc.
14. Certified Corporate Resolutions of LPC Transport, Inc.
Exhibit 9D
to
Sixth Amendment to Credit Agreement
Compliance Certificate
Attached
