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EXHIBIT 4.3(F)
FIFTH AMENDMENT TO CREDIT AGREEMENT
BETWEEN U.S. BANCORP AG CREDIT, INC., AS AGENT, THE OTHER LENDERS
AND
PREMIUM STANDARD FARMS, INC.
DATED AUGUST 27, 1997
(INCLUDING REVISIONS TO TERMS OF THE FOURTH AMENDMENT TO CREDIT AGREEMENT)
This Fifth Amendment to Credit Agreement (this "AMENDMENT") is made as
of the 22nd day of September, 2000 among PREMIUM STANDARD FARMS, INC., a
Delaware corporation and a wholly owned subsidiary of the Guarantor ("PREMIUM"),
CGC ASSET ACQUISITION CORP., a Delaware corporation and a wholly owned
subsidiary of Premium ("ASSET SUB A"), 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"), the following corporations
and limited liability company, TOMAHAWK FARMS, INC., a North Carolina
corporation, BONELESS HAMS, INC., a North Carolina corporation, XXXXX
INTERNATIONAL, INC., a North Carolina corporation, DOGWOOD FARMS, INC., a North
Carolina corporation, and DOGWOOD FARMS II, LLC, a North Carolina limited
liability company, all to be wholly owned subsidiaries of Asset Sub B
(collectively the "XXXXX SUBSIDIARIES"), PREMIUM STANDARD FARMS OF NORTH
CAROLINA, INC., a Delaware corporation, and a wholly-owned subsidiary of Premium
("ASSET SUB C" and collectively with Premium, Asset Sub A, Asset Sub B and the
Xxxxx Subsidiaries, the "BORROWER"), the financial institutions listed on the
signature pages hereof (collectively the "LENDERS" and individually a "LENDER",
which terms shall hereafter include each other financial institution that may
hereafter become a party to the Credit Agreement in accordance with its terms)
and U.S. BANCORP AG CREDIT, INC., a Colorado corporation (the "AGENT"), in its
capacity as Agent for the Lenders under the Credit Agreement (hereinafter
defined).
RECITALS
A. The Xxxxx Acquisition Agreement, as described in the Fourth
Amendment to Credit Agreement dated as of August 21, 2000 (the "FOURTH
AMENDMENT") has been completed.
B. At the time of the closing of the Fourth Amendment, Premium and
ContiGroup Companies, Inc., successor by merger to Continental Grain Company, a
Delaware corporation ("CGC") had tentatively agreed to enter into an Asset
Purchase Agreement which was described in the Fourth Amendment as the Second
Asset Purchase Agreement, pursuant to which Premium planned to purchase certain
assets from CGC generally described as the North Carolina pork operations.
Premium and CGC have agreed that assets described as the North Carolina pork
operations will be acquired through the acquisition of a new subsidiary of CGC
which will own said assets. Therefore, instead of the Second Asset Purchase
Agreement, PSF Group Holdings, Inc., Premium and CGC have entered into a Stock
Purchase Agreement dated as of September 22, 2000 (the "XXXXX ACQUISITION
AGREEMENT"), pursuant to which one
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hundred percent of the stock of Premium Standard Farms of North Carolina, Inc.,
which will own the North Carolina pork operations, shall be sold to Premium (at
that time becoming Asset Sub C as referred to herein).
C. The Credit Agreement dated as of August 27, 1997 among Premium,
Asset Sub A, Asset Sub B, the Xxxxx Subsidiaries, 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") currently prohibits Premium from
consummating the Xxxxx Acquisition Agreement.
D. The Agent and the Lenders are willing to consent to the Xxxxx
Acquisition Agreement, to permit Asset Sub C to become a borrower under the
Credit Agreement, and to agree to the other changes in the terms of the Credit
Agreement, but only on the terms and conditions herein contained.
E. 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. Representation and Warranty as to the Xxxxx Acquisition Agreement,
and Consent to the Xxxxx Acquisition Agreement. The Borrower represents and
warrants to the Agent and the Lenders that the factual information taken as a
whole in the materials furnished by or on behalf of the Borrower to the Agent or
any Lender for purposes of or in connection with the Xxxxx Acquisition
Agreement, does not contain any untrue statement of a material fact or omit to
state any material fact necessary to keep the statements contained therein from
being misleading as of the date of this Amendment. The Borrower further
represents and warrants to the Agent and the Lenders that the financial
projections and other financial information furnished to the Agent or any Lender
by the Borrower in connection with the Xxxxx Acquisition Agreement were prepared
in good faith on the basis of information and assumptions that the Borrower
believed to be reasonable as of the date of such information, provided however,
that the Agent and the Lenders acknowledge that financial projections are not a
guaranty of future results. In reliance on the foregoing representation and
warranties, the Agent and the Lenders consent to the Xxxxx Acquisition Agreement
notwithstanding anything contained in the Credit Agreement prohibiting the Xxxxx
Acquisition Agreement. Without limiting the generality of the foregoing, the
Agent and the Lenders acknowledge that Premium and/or Asset Sub C, subject to
the satisfaction of conditions as set forth herein, intends to use Term Loans
and Revolving Loans of up to $20,000,000 in connection with the consummation of
the Xxxxx Acquisition Agreement, and the Agent and the Lenders consent to the
same.
2. Amendment of Purpose. Any term of the Credit Agreement
notwithstanding,
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including Section 2.5 of the Credit Agreement, Purpose, the purpose of the
Revolving Loans shall be (i) to provide working capital for the Borrower's hog
production and processing operations, (ii) to provide funds for the Xxxxx
Acquisition Agreement, but limited as set forth in paragraph 1 of this
Amendment, and (iii) to fund the Texas Construction and the Xxxxx Capital
Improvements, but limited as set forth in the Fourth Amendment. Any term of the
Credit Agreement notwithstanding, including Section 2.5 of the Credit Agreement,
Purpose, the purpose of the Term Loans shall be (i) to provide funds for the
Xxxxx Acquisition Agreement, but limited as set forth in paragraph 1 of this
Amendment, and (ii) to fund the Texas Construction and the Xxxxx Capital
Improvements, but limited as set forth in the Fourth Amendment. In all cases the
available Term Loan Commitments shall be fully funded and shall be used to pay
down the Revolving Loans to the extent Term Loans are not needed for other
purposes. The parties acknowledge and agree that this is a technical amendment
of purpose inasmuch as the Xxxxx Acquisition Agreement is substantially the same
transaction as the Second Asset Purchase Agreement and inasmuch as there has
been no change with respect to the proposed Texas Construction or the Xxxxx
Capital Improvements.
3. Limitation of Commitments Pending General Syndication and
Additional Appraisals. The limitation of Commitments as set forth in Paragraph 6
of the Fourth Amendment shall continue in effect, it being acknowledged that the
General Syndication has not yet been completed and the additional appraisals
referred to in Exhibit 8E have not yet been received.
4. 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 C", "Borrower", "Fourth Amendment" and "Xxxxx Acquisition
Agreement".
5. 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:
"EURODOLLAR RATE" shall mean, with respect to each day during
each Interest Period applicable to a Eurodollar Rate Loan, the
following rate adjusted as set forth below: the lower of (x) the lower
of the average offered rate for deposits in United States dollars
(rounded upward, if necessary, to the nearest 1/16 of 1%) for delivery
of such deposits on the first day of such Interest Period, for the
number of days in such Interest Period, which appears on the Reuters
Screen or the Telerate Screen, as of 11:00 a.m., London time (or such
other time as of which such rate appears) two Business Days prior to
the first day of such Interest Period, or (y) the rate for such
deposits determined by U.S. Bank at such time based on such other
published service of general application as shall be selected by U.S.
Bank for such purpose; provided, however, if the Reuters Screen, the
Telerate Screen or such other service does not report such rates or
such rates do not, in the judgment of U.S. Bank, accurately reflect the
rates of interest applicable to U.S. Bank in the relevant markets, the
rate for such Interest
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Period shall be determined by U.S. Bank based on the rates at which
United States dollar deposits are offered to U.S. Bank in the interbank
Eurodollar market at such time for delivery in Immediately Available
Funds on the first day of such Interest Period in an amount
approximately equal to the Advance by U.S. Bank to which such Interest
Period is to apply (rounded upward, if necessary, to the nearest 1/16
of 1%). "Reuters Screen" means the display designated as page "LIBO" on
the Reuters Monitor Money Rate Screen (or such other page as may
replace the LIBO page on such service for the purpose of displaying
London interbank offered rates of major banks for United States dollar
deposits). "Telerate Screen" means page 3750 on the Telerate Screen (or
such other page as may replace page 3750 on such service for the
purpose of displaying London interbank offered rates of major banks for
United States dollar deposits). The Eurodollar Rate as described above
shall be adjusted as follows: The Eurodollar Rate shall be the rate per
annum (rounded up to the next whole multiple of 1/100 of 1%) equal to
the rate obtained by dividing (a) the Eurodollar Rate, as described
above; by (b) a percentage equal to 100% minus the maximum reserve rate
in effect from time to time during such Interest Period at which
reserves (including any marginal, supplemental or emergency reserves)
would be required to be maintained by U.S. Bank under Regulation D
against "Eurocurrency Liabilities" (as such term is defined in
Regulation D); provided, that the Eurodollar Rate for the applicable
Interest Period shall be adjusted automatically on and as of the
effective date of any change in such maximum reserve rate.
"PROPERTY" shall mean: (a) the land, the improvements, the
fixtures and the Equipment of Premium located in Xxxxxx, Xxxxxx and
Xxxxxxxx Counties, Missouri and in Dallam and Xxxxxxx Counties, Texas
as legally described on Exhibit 1E to the Credit Agreement, provided
however, that the Property specifically includes Premium's processing
facility located in Milan, Missouri; (b) the land, the improvements,
the fixtures and the Equipment of Asset Sub A located in Gentry,
Grundy, Xxxxxxxx and Worth Counties, Missouri including those acquired
from CGC pursuant to the Asset Purchase Agreement, including without
limitation, Asset Sub A's feed mill and office located in Davies
County; (c) the land, the improvements, the fixtures and the Equipment
of Asset Sub B and the Xxxxx Subsidiaries located in Sampson, Harnett,
Xxxx and Duplin Counties, North Carolina including those acquired
pursuant to the Xxxxx Acquisition Agreement; and (d) the land, the
improvements, the fixtures and the Equipment of Asset Sub C located in
Pitt and Edgecombe Counties, North Carolina and Crisp County, Georgia,
including those acquired from CGC pursuant to the Xxxxx Acquisition
Agreement.
6. Restated Revolving Notes. Section 2.1(h) of the Credit Agreement is
amended to read in full as follows:
(h) The Borrower shall execute and deliver to the Agent for
each
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Lender to evidence the Revolving Loans made by each Lender under such
Lender's Revolving Loan Commitment, a restated revolving credit note
(each such note, a "REVOLVING NOTE" and collectively the "REVOLVING
NOTES"), which shall be (i) dated the date of the Amendment #4 Closing
Date; (ii) in the principal amount of such Lender's maximum Revolving
Loan Commitment; and (iii) in substantially the form attached as
Exhibit 2G, appropriately completed. Each Lender shall post (iv) the
date and principal amount of each Revolving Loan made under such
Revolving Note; (v) the rate of interest each such Revolving Loan will
bear; and (vi) each payment of principal thereon; provided however,
that any failure of such Lender to so post shall not affect the
Borrower's obligations thereunder.
7. Term Loans. Section 2.3 of the Credit Agreement is amended to read
in full as follows:
2.3 TERM LOAN.
(a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender severally
agrees to make a term loan (each a "TERM LOAN" and collectively the
"TERM LOAN") to the Borrower on any one Business Day for the purpose of
funding the Xxxxx Acquisition Agreement, and, if necessary to fully
fund the Term Loan Commitment, to pay down outstanding Revolving Loans,
in aggregate amounts up to the principal amount of such Lender's Term
Loan Commitment and in accordance with each Lenders Pro Rata
Percentage. Once repaid, no portion of the Term Loan may be reborrowed.
(b) The Borrower shall execute and deliver to the Agent for
each Lender to evidence the Term Loan made by each Lender under such
Lender's Term Loan Commitment, a promissory note (each such note, a
"TERM NOTE" and collectively the "TERM NOTES"), which shall be (i)
dated the date of the Amendment #4 Closing Date; (ii) in the principal
amount of such Lender's maximum Term Loan Commitment; and (iii) in
substantially the form attached as Exhibit 2H, appropriately completed.
Each Lender shall post (iv) the date and principal amount of the Term
Loan made under such Term Note; (v) the rate of interest the Term Loan
will bear; and (vi) each payment of principal thereon; provided
however, that any failure of such Lender to so post shall not affect
the Borrower's obligations thereunder. The outstanding principal
balance of each Term Note shall be payable as set forth therein.
8. General Provisions Regarding Loans. Sections 2.4(a) and 2.4(b) of
the Credit Agreement are amended to read in full as follows:
(a) Each Revolving Loan to be made by the Agent in accordance
with
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the terms of Section 2.1(b) shall be a Reference Rate Loan and shall be
made upon prior written notice from the Borrower to the Agent delivered
not later than 11:00 a.m. (Denver time) on the same Business Day as the
proposed Loan. Other Revolving Loans and Term Loans shall be subject to
the following terms. Each Reference Rate Loan shall be made upon prior
written notice from the Borrower to the Agent delivered not later than
11:00 a.m. (Denver time) on the first Business Day prior to the
proposed Loan. Each Eurodollar Rate Loan shall be made upon prior
written notice from the Borrower to the Agent delivered not later than
11:00 a.m. (Denver time) on the third Business Day prior to the
proposed Loan. Each Eurodollar Rate Loan shall be in an aggregate
amount of not less than $3,000,000 or in integral multiples of
$1,000,000 in excess thereof. The Borrower may not have more than five
(5) Eurodollar Rate Loans outstanding at any one time under the
Revolving Loan and five (5) Eurodollar Rate Loans outstanding at any
one time under the Term Loan. Each notice of borrowing with respect to
the Loans shall be irrevocable and shall specify (iii) the amount of
the proposed borrowing; (iv) the date of the proposed borrowing; (v)
the Type of each such Loan; (vi) whether the proposed borrowing is a
Revolving Loan or the Term Loan; and (vii) with respect to any
Eurodollar Rate Loan, the Interest Period with respect to each such
Loan and the expiration date of each such Interest Period. The Borrower
shall give the Agent written (including facsimile) notice by the
required time of any proposed borrowing. Neither the Agent nor any
Lender shall incur any liability to the Borrower in acting upon any
facsimile notice referred to above which the Agent believes in good
faith to have been given by the Borrower, or for otherwise acting in
good faith under this Section 2.4(a).
(b) Except with regard to Revolving Loans to be made by the
Agent in accordance with the terms of Section 2.1(b), the Agent shall
notify each Lender of any notice received by the Agent from the
Borrower pursuant to Section 2.4(a) promptly after it is received from
the Borrower. Each Lender shall, before 11:00 a.m. (Denver time) on the
date for the proposed Loan, make available for the account of the Agent
at its address set forth in Section 13.18, in same day funds, its Pro
Rata Percentage of such borrowing. After the Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in
Article 8, on the date for the proposed Loan, the Agent shall make the
borrowing available to the Borrower in immediately available funds. Any
Loan made by the Agent pursuant to a request believed by the Agent to
be an authorized request by the Borrower for a Loan pursuant to Section
2.4(e) shall be deemed to be a Loan for all purposes with the same
effect as if the Borrower had in fact requested the Agent to make such
Loan.
9. 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
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any other name, except as disclosed on Part 7 of Exhibit 7 to the
Credit Agreement. Asset Sub A, Asset Sub B, the Xxxxx Subsidiaries and
Asset Sub C have not, during the preceding five years, been known by or
used any other name.
10. Affiliates. Section 7.8 of the Credit Agreement is amended to read
in full as follows:
The Borrower has no Affiliates, except for other co-borrowers,
directors, officers, agents and employees and other than those Persons
disclosed on Exhibit 7J (attached to the Fourth Amendment). The legal
relationships of the Borrower to each such Affiliate listed on Exhibit
7J are accurately and completely described thereon.
11. Existence. Section 7.12 of the Credit Agreement is amended to read
in full as follows:
Each Borrower is a corporation or limited liability company
duly incorporated or organized, in existence and in good standing under
the laws of the state in which it was incorporated or organized and is
duly licensed to do business in all states where the nature and extent
of the business transacted by it or the ownership of its assets makes
such licensing necessary, except for those jurisdictions in which the
failure to be so licensed would not, in the aggregate, have a Material
Adverse Effect.
12. Ownership of Subsidiaries. Section 9.17 of the Credit Agreement is
amended to read in full as follows:
9.17 OWNERSHIP OF SUBSIDIARIES.
Asset Sub A, Asset Sub B and Asset Sub C shall at all times be
wholly owned subsidiaries of Premium except as allowed in Section
10.2(a). The Xxxxx Subsidiaries shall at all times be wholly owned
subsidiaries of Asset Sub B except as allowed in Section 10.2(a).
13. Consolidations, Mergers, Acquisitions or Change in Ownership.
Section 10.2 of the Credit Agreement is amended by striking the phrase "Second
Asset Purchase Agreement" and inserting in its place the phrase "Xxxxx
Acquisition Agreement." Section 10.2 of the Credit Agreement is further amended
by adding a new subsection (c) to read in full as follows:
(c) The recapitalizations, consolidations, mergers and
acquisitions permitted in accordance with Section 10.2(a) shall be
permitted notwithstanding any terms or conditions to the contrary set
forth in Sections 7.8, 7.12 , 8.1(c), 9.2 and 9.10.
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14. Capital Investment Limitations. Section 10.7 of the Credit
Agreement is amended by striking the phrase "Second Asset Purchase Agreement"
and inserting in its place the phrase "Xxxxx Acquisition Agreement."
15. Amendments and Waivers Requiring Unanimous Consent. Section
13.30(b) of the Credit Agreement is amended to read in full as follows:
(b) Notwithstanding clause (a) of this Section 13.30, no
amendment or waiver that does not have the consent in writing of the
holders of all outstanding Notes or of all Lenders if no Loans are
outstanding, shall: (i) change the amount or postpone the date of
payment of any scheduled payment or required payment of principal of
the Notes or reduce the rate or extend the time of payment of interest
on the Notes, or reduce the amount of principal thereof, or modify any
of the provisions of the Notes with respect to the payment or
prepayment thereof, (ii) give to any Term Note any preference over any
other Term Note or give to any Revolving Note any preference over any
other Revolving Note, (iii) alter, modify or amend the definition of
Required Lenders, (iv) alter, modify or amend the provisions of this
Section 13.30, (v) change the amount or term of any of the Commitments
or the fees required under Section 6, (vi) alter, modify or amend the
provisions of Section 8 of this Agreement, (vii) alter, modify or amend
any Lender's right hereunder to consent to any action, make any request
or give any notice, (viii) alter, modify or amend Exhibit 1A, (ix)
release any Collateral having an aggregate value in excess of twenty
percent (20%) of the aggregate book value of all Collateral, unless
such release is permitted or contemplated by the Financing Agreements
or release any guarantor of the Liabilities; or (x) alter, modify or
amend the provisions of Section 2.1(b) or 2.1(g) requiring the consent
of all Lenders. Any such amendment or waiver shall apply equally to all
Lenders and all the holders of the Notes and shall be binding upon
them, upon each future holder of any Note and upon the Borrower,
whether or not such Note shall have been marked to indicate such
amendment or waiver. No such amendment or waiver shall extend to or
affect any obligation not expressly amended or waived.
16. Remediation of Environmental Concerns. Section 13.32 of the Credit
Agreement is amended to read in full as follows:
13.32 REMEDIATION OF ENVIRONMENTAL CONCERNS.
(a) The Borrower shall complete the remediation of the
environmental concerns raised in the Phase I Environmental Assessment
Reports with regard to the Properties of Asset Sub B and the Xxxxx
Subsidiaries according to the attached Exhibit 13B (attached to the
Fourth Amendment) and shall deliver to the Agent copies of all reports
and documents related thereto.
(b) The Borrower shall complete the remediation of the
environmental
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concerns raised in the Phase I Environmental Assessment Reports with
regard to the Properties of Asset Sub C according to the attached
Exhibit 13C and shall deliver to the Agent copies of all reports and
documents related thereto.
17. Exhibit 2E to the Credit Agreement, the Form of Revolving Notes, is
replaced with Exhibit 2G to this Agreement.
18. Exhibit 2F to the Credit Agreement, the Form of Term Notes, is
replaced with Exhibit 2H to this Amendment.
19. Part 4 of Exhibit 7 to the Credit Agreement, Security Interests,
Liens, Claims and Encumbrances, is replaced with Exhibit 7N to this Amendment.
20. Part 6 of Exhibit 7 to the Credit Agreement, Other Indebtedness, is
replaced with Exhibit 7O to this Amendment.
21. Part 9 of Exhibit 7 to the Credit Agreement, Environmental Matters,
is replaced with Exhibit 7P to this Amendment.
22. Part 11 of Exhibit 7 to the Credit Agreement, EFS Central Filing
System Registrations, is replaced with Exhibit 7Q to this Amendment.
23. Assumption of Indebtedness by Asset Sub C; Obligations and
Covenants. Asset Sub C hereby assumes all indebtedness of Premium, Asset Sub A,
Asset Sub B and the Xxxxx Subsidiaries to the Agent and the Lenders pursuant to,
and as a co-borrower joins in the Credit Agreement. Asset Sub C 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 A, Asset Sub B and
the Xxxxx Subsidiaries, all as if Asset Sub C was an original obligor thereof.
Asset Sub C 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.
Asset Sub C 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 C. Premium, Asset Sub A, Asset Sub B and the Xxxxx
Subsidiaries 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 C.
24. 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, each and every
representation and warranty set forth in
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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.
25. Representations and Warranties Regarding Location of Collateral.
Borrower represents and warrants to the Agent and the Lenders that only Asset
Sub B, Asset Sub C and the Xxxxx Subsidiaries presently own Collateral in North
Carolina, South Carolina and Georgia, and that Asset Sub B, Asset Sub C and the
Xxxxx Subsidiaries, do not presently own Collateral outside of North Carolina,
South Carolina and Georgia. 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
A, Asset Sub B, the Xxxxx Subsidiaries, 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).
26. Conditions to Advances; Documentation. The effectiveness of this
Amendment and the consent of the Lenders to the Xxxxx Acquisition Agreement
shall be conditioned upon the execution and/or delivery of the agreements,
instruments and/or documents listed on Exhibit 8E attached hereto, all in form
and substance acceptable to the Agent and its legal counsel.
27. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
PREMIUM STANDARD FARMS, INC.,
A DELAWARE CORPORATION
ATTEST:
BY: /s/ Xxxxxx Xxxxxxx BY: /s/Xxxxxxx Xxxxxxxxxx
------------------------- ------------------------
ITS: Secretary ITS: Executive Vice President
------------------------ ------------------------
CGC ASSET ACQUISITION CORP.,
A DELAWARE CORPORATION
ATTEST:
BY: /s/ Xxxxxx Xxxxxxx BY: /s/Xxxxxxx Xxxxxxxxxx
------------------------- ------------------------
ITS: Secretary ITS: Executive Vice President
------------------------ ------------------------
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THE XXXXX PACKING COMPANY, A
NORTH CAROLINA CORPORATION
AND SUCCESSOR BY MERGER TO
PSF ACQUISITION CORP.
ATTEST:
BY: /s/ Xxxxxx Xxxxxxx BY: /s/Xxxxxxx Xxxxxxxxxx
------------------------- ------------------------
ITS: Secretary ITS: Executive Vice President
------------------------ ------------------------
TOMAHAWK FARMS, INC., A NORTH
CAROLINA CORPORATION
ATTEST:
BY: /s/ Xxxxxx Xxxxxxx BY: /s/Xxxxxxx Xxxxxxxxxx
------------------------- ------------------------
ITS: Secretary ITS: Executive Vice President
------------------------ ------------------------
BONELESS HAMS, INC., A NORTH
CAROLINA CORPORATION
ATTEST:
BY: /s/ Xxxxxx Xxxxxxx BY: /s/Xxxxxxx Xxxxxxxxxx
------------------------- ------------------------
ITS: Secretary ITS: Executive Vice President
------------------------ ------------------------
XXXXX INTERNATIONAL, INC., A
NORTH CAROLINA CORPORATION
ATTEST:
BY: /s/ Xxxxxx Xxxxxxx BY: /s/Xxxxxxx Xxxxxxxxxx
------------------------- ------------------------
ITS: Secretary ITS: Executive Vice President
------------------------ ------------------------
DOGWOOD FARMS, INC., A NORTH
CAROLINA CORPORATION
ATTEST:
BY: /s/ Xxxxxx Xxxxxxx BY: /s/Xxxxxxx Xxxxxxxxxx
------------------------- ------------------------
ITS: Secretary ITS: Executive Vice President
------------------------ ------------------------
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DOGWOOD FARMS II, LLC, A
NORTH CAROLINA LIMITED
LIABILITY COMPANY
BY: /s/Xxxxxxx Xxxxxxxxxx
------------------------
ITS: Executive Vice President
------------------------
PREMIUM STANDARD FARMS OF
NORTH CAROLINA, INC., A
DELAWARE CORPORATION
ATTEST:
BY: /s/ Xxxxxx Xxxxxxx BY: /s/Xxxxxxx Xxxxxxxxxx
------------------------- ------------------------
ITS: Secretary ITS: Executive Vice President
------------------------ ------------------------
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U.S. BANCORP AG CREDIT, INC.,
AS AGENT AND AS A LENDER 000
00XX XXXXXX, XXXXX 000
XXXXXX, XXXXXXXX 00000
BY: /s/
------------------------
ITS: Vice President
------------------------
FARM CREDIT SERVICES OF
WESTERN MISSOURI, PCA
BY: /s/
------------------------
ITS: Senior Vice President
------------------------
FIRSTAR BANK, N.A. (F/K/A
MERCANTILE BANK NATIONAL
ASSOCIATION)
BY: /s/ Xxxxx X. Xxxxx
------------------------
ITS: Vice President
------------------------
XXXXXX TRUST AND SAVINGS BANK
BY: /s/
------------------------
ITS: Vice President
------------------------
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