SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment"), dated as of April 16, 1999, is among DARLING INTERNATIONAL INC., a
corporation duly organized and validly existing under the laws of the State of
Delaware (the "Borrower"), each of the banks or other lending institutions which
is a signatory hereto (individually, a "Bank" and, collectively, the "Banks"),
COMERICA BANK, CREDIT LYONNAIS NEW YORK BRANCH and XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, each individually as a Bank and as a co-agent and
BANKBOSTON, N.A., individually as a Bank and as agent for itself, the other
Banks and the other Secured Parties (in its capacity as agent, together with its
successors in such capacity, the "Agent").
RECITALS:
Borrower, the Agent, and the Banks have entered into that certain
Amended and Restated Credit Agreement dated as of January 22, 1999 (as the same
has been amended pursuant to that certain First Amendment to Amended and
Restated Credit Agreement dated March 1, 1999 and as the same may hereafter be
amended or otherwise modified, the "Agreement").
Since the execution of the Agreement: (a) The Fuji Bank Limited, New
York Branch ("Fuji") assigned its interests in, and obligations under, the
Agreement to NationsBank, N.A. and as a result, Fuji is no longer a Bank under
the Agreement and (b) the sale of the stock of International Processing
Corporation and International Transportation Service, Inc. contemplated by
Section 10.8 (f) of the Agreement has occurred and as a result, neither
International Processing Corporation nor International Transportation Service,
Inc. is an Obligated Party under the Agreement.
Borrower, the Agent and the Banks now desire to amend the Agreement as
herein set forth.
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 unless otherwise indicated:
ARTICLE 1
Definitions
Section 1.1 Definitions. Capitalized terms used in this Amendment, to the extent
not otherwise defined herein, shall have the same meanings as in the Agreement,
as amended hereby.
ARTICLE 2
Amendments
Section 1.2 Amendment to Section 3.2. The phrase "Subject to Section 10.8" in
the beginning of Section 3.2 is deleted therefrom.
Section 1.3 Amendment to Section 10.5. Clauses (h) and (k) of Section 10.5 are
amended in their respective entireties to read as follows:
(h) loans evidencing the deferred payment of
the purchase price of the assets disposed of pursuant to
subsections 10.8(e), (g), and (h);
(k) loans, advances, or investments in addition to
those described in clauses (a) through (j) of this Section
10.5 if the sum of (i) the aggregate principal amount of such
loans and advances outstanding, plus (ii) the aggregate
acquisition cost of the outstanding investments plus (iii) the
aggregate amount of the Net Out Flows (as defined in Section
10.8) from all Route Sales (as defined in Section 10.8), never
exceeds Five Hundred Thousand Dollars ($500,000).
Section 1.4 Amendment to Section 10.8. The last sentence of Section 10.8 is
deleted therefrom and clause (f) of Section 10.8 is amended in its entirety to
read as follows:
(f) the sale to third parties (each such third party or an
Affiliate of such third party, herein a "Route Purchaser") of lists of
customers who provide raw materials to the Borrower or a Subsidiary and
the containers utilized to collect and store such materials (each a
"Route Sale") if all the following conditions are satisfied with
respect to each Route Sale:
(i) No Event of Default exists as of the date of the
sale or would result therefrom, including without limitation,
any Event of Default that might result therefrom because of
the failure to comply with Section 11.1 (i.e., the
Consolidated Net Worth covenant) and Section 11.4 (i.e., the
Capital Expenditure covenant);
(ii) such sale is made in connection with a
corresponding purchase from the applicable Route Purchaser of
a list of customers who can provide raw materials to the
Borrower or a Subsidiary and a corresponding purchase of the
containers utilized to collect and store such materials (the
"Offsetting Purchase");
(iii) if the Net Cash Proceeds (calculated in
accordance with clause (2) of the definition of Net Cash
Proceeds) received from a Route Sale exceed the purchase price
for the corresponding Offsetting Purchase, then the amount of
the excess shall be delivered to the Agent for repayment of
the Loans in accordance with subsection 5.4(b)(i); provided
that for purposes of this Agreement (including for the purpose
of determining the amount to be applied to the repayment of
the Loans in connection with a Route Sale), the term "Net Cash
Proceeds" shall mean only the amount of such excess;
(iv) the sum of (A) the aggregate amount of the Net
Out Flows from all Route Sales plus (B) the aggregate
principal amount of all loans and advances outstanding under
the permissions of clause (k) of Section 10.5 plus (C) the
aggregate acquisition cost of all outstanding investments made
under the permissions of clause (k) of Section 10.5 shall
never exceeds Five Hundred Thousand Dollars ($500,000) (the
term "Net Out Flows" means, with respect to a Route Sale, the
amount by which the purchase price for the corresponding
Offsetting Purchase exceeds the amount received from the Route
Sale);
(v) the assets sold in connection with such Route
Sale are sold for fair value and the Borrower shall have
provided the Agent and each Bank with its calculation of the
sales price therefor and the value of the assets to be
purchased in connection with the corresponding Offsetting
Purchase;
(vi) the proposed Route Sale and corresponding
Offsetting Purchase shall comply, in all material respects,
with applicable laws, rules and regulations and any applicable
order, writ, injunction, or decree of any Governmental
Authority or arbitrator;
(vii) the aggregate weekly amount of pounds of raw
material inage attributable to all Route Sales made under the
permissions of this clause (f) shall not exceed 18,727,928
pounds with the weekly amount of pounds of raw material inage
attributable to a Route Sale being calculated based on the
most recent week preceding the date of sale; and
(viii) Borrower shall provide the Agent and each Bank
a certification as to the Borrower's compliance with the
matters set forth in the forgoing clauses (i) through (vii)
prior to or on the date of the closing of the proposed Route
Sale;
ARTICLE 3
Ratifications, Representations and Warranties
Section 1.5 Ratifications. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Agreement and except as expressly modified and superseded by this Amendment,
the terms and provisions of the Agreement and the other Loan Documents are
ratified and confirmed and shall continue in full force and effect. Borrower,
the Agent, and the Banks agree that the Agreement as amended hereby and the
other Loan Documents shall continue to be legal, valid, binding and enforceable
in accordance with their respective terms.
Section 1.6 Representations and Warranties. Borrower hereby represents and
warrants to Agent and the Banks as follows: (i) the execution, delivery and
performance of this Amendment has been authorized by all requisite action on the
part of Borrower and each Obligated Party and will not violate the articles of
incorporation or bylaws of Borrower or any Obligated Party; (ii) the
representations and warranties contained in the Agreement, as amended hereby,
and any other Loan Document 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; (iii) no Default has
occurred and is continuing; and (iv) Borrower and each Obligated Party are in
full compliance with all covenants contained in the Agreement, as amended
hereby, and each Loan Document.
ARTICLE 4
Miscellaneous
Section 1.7 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 Agent or any Bank shall affect the
representations and warranties or the right of Agent or any Bank to rely upon
them.
Section 1.8 Reference to Agreement. Each of the Loan Documents are hereby
amended so that any reference in such Loan Documents to the Agreement shall mean
a reference to the Agreement as amended hereby.
Section 1.9 Expenses of Bank. As provided in the Agreement, Borrower agrees to
pay on demand all costs and expenses incurred by Agent in connection with the
preparation, negotiation, and execution of this Amendment, including without
limitation, the reasonable costs and fees of Agent's legal counsel.
Section 1.10 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.
Section 1.11 Applicable Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Texas and the applicable laws of the
United States of America.
Section 1.12 Successors and Assigns. This Amendment is binding upon and shall
inure to the benefit of the Agent, each Bank and Borrower and their respective
successors and assigns, except Borrower may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of the Banks.
Section 1.13 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.
Section 1.14 Effect of Waiver. No consent or waiver, express or implied, by
Agent or any Bank to or for any breach of or deviation from any covenant,
condition or duty by Borrower or any Obligated Party shall be deemed a consent
or waiver to or of any other breach of the same or any other covenant, condition
or duty.
Section 1.15 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 1.16 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
Executed as of the date first written above.
BORROWER:
DARLING INTERNATIONAL INC.
By:
-------------------------
Xxxx Xxxxxxxx, Treasurer
AGENT AND BANKS:
BANKBOSTON, N.A.,as Agent and as a Bank
By:
Xxxxx Xxxxx
Vice President
CO-AGENTS:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Name:
Title:
COMERICA BANK
By:
Xxxxxxxx X. Xxxxxxxxx, III
Vice President
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
Xxxxx Xxxxxxx
Vice President
OTHER BANKS:
XXXXXX TRUST AND SAVINGS BANK
By:
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
Xxxxxxx X. Xxxxxx
Vice President
HIBERNIA NATIONAL BANK
By:
Xxxxx Xxxxxxx
Vice President
THE SUMITOMO BANK, LIMITED
By:
Name:
Title:
By:
Name:
Title:
SUNTRUST BANK, ATLANTA
By:
F. Xxxxxx Xxxxxxx
Vice President
By:
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
Name:
Title:
By:
Name:
Title:
NATIONSBANK, N.A., doing business as
Bank ofAmerica, National Association
By:
Xxxxxxx X. Xxxxxxxxxxx, XX
Senior Vice President
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
BANK ONE, TEXAS, N.A.
By:
Name:
Title:
Obligated Party Consent
Each of the undersigned Obligated Parties: (i) consent and agree to
this Amendment; and (ii) agree that the Loan Documents 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 Obligated Party enforceable against it in
accordance with their respective terms.
OBLIGATED
PARTIES:
DARLING RESTAURANT SERVICES INC.
ESTEEM PRODUCTS INC.
THE STANDARD TALLOW CORPORATION
By:
Xxxx Xxxxxxxx, Treasurer of each of
the forgoing companies
