TENTH AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
EXHIBIT
10.2(a)
TENTH
AMENDMENT TO SECOND AMENDED
AND
RESTATED REVOLVING CREDIT AGREEMENT
THIS
TENTH AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"Amendment"),
dated
as of March 15, 2007, 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
▇▇▇▇▇▇ ▇.▇., successor in interest by merger to ▇▇▇▇▇▇ TRUST AND SAVINGS BANK
("▇▇▇▇▇▇"
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. The
Pledgors 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.
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:
ARTICLE
I
Definitions
Section
1.01 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.
ARTICLE
II
Amendments
Section
2.01 Amendment
to Section 1.03 - Commitment
Fee.
Section
1.03 of the Revolving Credit Agreement is amended in its entirety to read as
follows:
Section
1.03 Commitment
Fee.
The
Borrower agrees to pay to the Administrative Agent for the account of each
Bank
a commitment fee on the average daily unused portion of the Revolving Credit
Commitments from the date hereof until the Termination Date, at a per annum
rate
equal to 0.30%, payable quarterly on the last day of each calendar quarter
during the term of the Revolving Credit Commitments, commencing on
March 31, 2007 and ending on the Termination Date.
Section
2.02 Amendment
to Paragraph (c) of Section 5.02 - Negative
Covenants.
Paragraph (c)
of
Section 5.02 of the Revolving Credit Agreement is amended in its entirety to
read as follows:
(c) Capital
Expenditures.
Make,
nor will it permit any Subsidiary to make, any expenditures for fixed or capital
assets which would cause the aggregate of all such expenditures (but not
including, to the extent included, the Excluded Capital Expenditures) made
by
the Borrower and its Subsidiaries in any period of four (4) consecutive Fiscal
Quarters to exceed the sum of (i) consolidated depreciation of the Borrower
and
the Subsidiaries for such period plus (ii) 25% of consolidated depreciation
of
the Borrower and the Subsidiaries for such period. The term "Excluded
Capital Expenditures"
means
the following expenditures to the extent they are for fixed or capital assets
and are incurred in the period of calculation:
(i) the
expenditures for rolling stock;
(ii) expenditures
made to acquire the membership interest in Hillandale, LLC;
(iii) expenditures
in an aggregate amount not to exceed $15,000,000 made to construct and acquire:
(A) a plant constructed by the Borrower for the processing and disposal of
spent hens in Waelder, Texas and (B) a plant constructed by the Borrower
for the breaking and processing of shelled eggs in Waelder, Texas;
and
(iv) expenditures
by Green Forest Foods, LLC in an aggregate amount not to exceed $10,500,000
made
to acquire certain assets which were previously leased by Green Forest Foods,
LLC under one or more operating leases.
Section
2.03 Amendment
to Existing Definitions in Section 7.01 - Definitions
and Accounting Terms.
The
definition of the term "Termination Date" set forth in Section
7.01
of the
Revolving Credit Agreement is amended in its entireties to read as
follows:
"Termination
Date"
means
December 31, 2008 or the date of the earlier termination in whole of the
Revolving Credit Commitment pursuant to Sections 1.04
or
6.02.
Section
2.04 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.
ARTICLE
III
Conditions
Precedent
Section
3.01 Conditions.
The
effectiveness of Article II of this Amendment is subject to the
satisfaction of the following conditions precedent:
(a) The
Administrative Agent shall have received the following, all in form and
substance acceptable to the Agent: (i) a fully executed complete copy of
the Subsidiary Joinder Agreement executed by Green Forest Foods, LLC (including
all schedules thereto); (ii) the results of the search of the Uniform
Commercial Code (or equivalent) and effective financing statement filings,
tax
Liens and judgment Liens made with respect to the Pledgors (including Green
Forest Foods, LLC) in each jurisdiction (A) in which a Pledgor is
organized, (B) where a Pledgor has its chief executive office or has had
its chief executive office within the last four months and (C) in which any
Collateral is located; and copies of the financing statements (or other
documents) disclosed by such search and evidence reasonably satisfactory to
the
Agent that the Liens indicated by such financing statements (or similar
documents) are permitted by the Agreement or have been released; (iii) a
legal opinion from counsel to Green Forest Food, LLC addressing such matters
relating to this Amendment and the documents executed pursuant hereto as the
Agent may request; (iv) such other documentation that is required to be
delivered under the terms of the Subsidiary Joinder Agreement and the
Consolidated Security Agreement; and (v) such other documentation as the
Administrative Agent may request to cause Green Forest Foods, LLC to create,
perfect, or otherwise implement the guaranty and pledge of collateral
contemplated by the Amended Guaranty Agreement and Consolidated Security
Agreement (collectively with the Subsidiary Joinder Agreement, herein the
"Joinder
Documents");
TENTH
AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT, Page 2
(b) The
Administrative Agent shall have received such evidence of the existence and
good
standing of the Pledgors (including Green Forest Foods, LLC) and of their
authority to execute, deliver and perform this Amendment and, with respect
to
Green Forest Foods, LLC, the Joinder 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;
(c) The
Administrative Agent shall have received such additional documentation and
information as it or its legal counsel may request;
(d) The
representations and warranties contained herein and in all other Loan Documents,
as amended hereby, 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;
(e) 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;
and
(f) All
proceedings taken in connection with the transactions contemplated by this
Amendment and all documentation and other legal matters incident thereto shall
be satisfactory to the Administrative Agent and its legal counsel.
ARTICLE
IV
Ratifications,
Representations and Warranties
Section
4.01 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, that certain Eight Amendment to Second Amended and
Restated Revolving Credit Agreement dated March 15, 2004 and that certain Ninth
Amendment to Second Amended and Restated Revolving Credit Agreement dated
October 30, 2005 (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.
TENTH
AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT, Page 3
Section
4.02 Representations
and Warranties.
To
induce the Administrative Agent and the Banks to modify the Revolving Credit
Agreement as herein set forth, each Pledgor represents and warrants to the
Administrative Agent and the Banks that:
(a) The
representations and warranties of each Pledgor 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;
(b) No
Event
of Default has occurred and is continuing and no event or condition has occurred
that with the giving of notice or lapse of time or both would be an Event of
Default, and each Pledgor is in full compliance with all covenants and
agreements binding on them contained in the Loan Documents, as amended
hereby;
(c) No
default nor any event of default has occurred and is continuing or will occur
as
a result of the transactions contemplated hereby under the terms of the Note
Agreement and no event or condition has occurred (or will occur as a result
of
the transactions contemplated hereby) that with the giving of notice or lapse
of
time or both would be such a default or event of default, and each Pledgor
is in
full compliance with all covenants and agreements binding on them contained
in
the Note Agreement;
(d) 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.
ARTICLE
V
Miscellaneous
Section
5.01 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.
TENTH
AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT, Page 4
Section
5.02 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.
Section
5.03 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
5.04 Applicable
Law.
THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
Section
5.05 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 no Pledgor may assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Banks. Any assignment in violation of this Section 5.05 shall
be
void.
Section
5.06 Counterparts.
This
Amendment may be executed in one or more counterparts and on telecopy or other
electronically duplicated 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
5.07 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.
Section
5.08 Headings.
The
headings, captions, and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
Section
5.09 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. | ||
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| By: | ||
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President and Chief Financial Officer |
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TENTH
AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT, Page 5
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COÖPERATIEVE
CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A.
"RABOBANK
NEDERLAND," NEW YORK BRANCH (sometimes referred to as Rabobank
International), as the Administrative Agent and a Bank
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| By: | ||
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Director |
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By:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Director |
TENTH
AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT, Page ▇
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▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ CREDIT, ACA
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| By: | ||
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J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Vice President |
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TENTH
AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT, Page 7
| ▇▇▇▇▇▇ ▇.▇. (successor in interest by merger to ▇▇▇▇▇▇ Trust and Savings Bank) | ||
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By:
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Vice President
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TENTH
AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT, Page 8
GUARANTOR
CONSENT
Each
Guarantor: (i) consents and agrees to this Tenth 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 remain in full force and effect and
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 | ||
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CAL-MAINE
FARMS, INC.
SOUTHERN
EQUIPMENT DISTRIBUTORS, INC.
SOUTH
TEXAS APPLICATORS, INC.
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By:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇, Vice President and
Chief
Financial Officer of each of the foregoing companies
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CAL-MAINE
PARTNERSHIP, LTD.
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By:
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Cal-Maine Foods, Inc.,
its
general partner
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| By: | |||
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▇▇▇▇▇▇▇
▇▇▇▇▇▇, Vice President and
Chief
Financial Officer
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CMF
OF KANSAS - LLC
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By:
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Cal-Maine Foods, Inc.,
its
general partner
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| By: | |||
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▇▇▇▇▇▇▇
▇▇▇▇▇▇, Vice President and
Chief
Financial Officer
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TENTH
AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT, Page 9
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GREEN
FOREST FOODS, LLC
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By:
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Cal-Maine Foods, Inc., its sole member | |
| By: | |||
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▇▇▇▇▇▇▇
▇▇▇▇▇▇, Vice President and
Chief
Financial Officer
|
TENTH
AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT, Page 10
HILLANDALE
CONSENT
Hillandale:
(i) consents and agrees to this Tenth Amendment to Second Amended and
Restated Revolving Credit Agreement; (ii) agrees that the Intercreditor
Agreement and the Hillandale Security Agreement remain in full force and effect
and continue to be the legal, valid, and binding obligation of Hillandale
enforceable against it in accordance with its terms; and (iii) agrees and
acknowledges that the obligations, indebtedness and liability secured by the
Hillandale Security Agreement include the "Obligations" as defined in the Second
Amended and Restated Revolving Credit Agreement, as amended by this
Amendment.
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HILLANDALE,
LLC
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By:
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▇▇▇▇
▇. ▇▇▇▇▇, Chief Operating Officer
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TENTH
AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT, Page 11