EXHIBIT 10.30
EXECUTION COPY
THIRD AMENDMENT dated as of December 8, 2003
(this "Amendment"), to the AMENDED AND RESTATED
FIVE-YEAR CREDIT AGREEMENT dated as of October 11,
2001, as amended as of November 6, 2001, as further
amended as of February 15, 2002 (as amended,
supplemented or otherwise modified from time to time,
the "Credit Agreement"), among LAND O'LAKES, INC., a
cooperative corporation organized under the laws of
the State of Minnesota (the "Borrower"), the several
banks and other financial institutions and entities
from time to time party thereto (the "Lenders"),
JPMORGAN CHASE BANK (formerly known as "The Chase
Manhattan Bank"), as administrative agent (in such
capacity, the "Administrative Agent"), and COBANK,
ACB, as co-administrative agent (in such capacity,
the "Co-Administrative Agent").
A. The Borrower has requested that the Lenders agree to amend
certain provisions of the Credit Agreement as set forth herein.
B. The Required Lenders are willing to effect such amendment
on the terms and subject to the conditions of this Amendment.
C. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Credit Agreement, as amended hereby.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment of the Credit Agreement. The Credit
Agreement is hereby amended effective as of the Amendment Effective Date (as
defined below) as follows:
(a) Amendment of Section 1.01. Section 1.01 is hereby amended
by:
(i) Inserting the following definitions in the appropriate
alphabetical order therein:
"`Intercreditor Agreement' means the lien
subordination and intercreditor agreement entered into among
the Borrower, the Subsidiary Loan Parties, the Collateral
Agent and the trustee under the Senior Second Lien Note
Indenture (or any other trustee or agent to which Liens are
granted under the Second Lien Security Documents), providing
for, among other things, (a) the priority of the Liens granted
pursuant to the Security Documents over the Liens granted
pursuant to the Second Lien Security Documents and (b)
restrictions on the exercise of remedies under the Second Lien
Security Documents, in substantially the form of the draft
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dated December 3, 2003, made available to the Lenders with
such changes as shall have been approved by the Administrative
Agent.
`Second Lien Security Documents' means any and all
security agreements, pledge agreements, mortgages and other
agreements and documents pursuant to which any Liens are
granted to secure any Senior Second Lien Note Obligations.
`Senior Second Lien Note Documents' means the Senior
Second Lien Notes, the Senior Second Lien Note Indenture,
agreements evidencing the Guarantees of the Senior Second Lien
Notes by the Subsidiary Loan Parties, the Second Lien Security
Documents, the Intercreditor Agreement and all other
instruments, agreements and documents evidencing, guaranteeing
or otherwise governing the terms of the Senior Second Lien
Notes.
`Senior Second Lien Note Indenture' means the
indenture pursuant to which the Senior Second Lien Notes are
issued.
`Senior Second Lien Notes' means senior secured notes
issued on or before March 31, 2004, by the Borrower and having
terms substantially as described under the heading
"Description of Notes" in the Preliminary Offering Memorandum
for such notes dated December 7, 2003, except for (a) changes
related to the amount of Senior Second Lien Notes to be issued
or the pricing of the Senior Second Lien Notes and (b) changes
that shall have been approved by the Administrative Agent;
provided that (i) no Subsidiary or subsidiary of Farmland Feed
will Guarantee such notes unless it also Guarantees the
Obligations, (ii) such notes bear interest at a rate of
interest that is a market rate at the time of issuance thereof
and (iii) the maturity date of such notes is at least one year
after the Tranche B Term Loan Maturity Date.
`Senior Second Lien Note Obligations' means (a) the
principal of and all premium or make-whole amounts, if any,
and interest payable in respect of the Senior Second Lien
Notes, (b) any amounts payable under Guarantees of the Senior
Second Lien Notes by Restricted Subsidiaries and (c) all other
amounts payable by the Borrower or any Restricted Subsidiary
under the Senor Second Lien Notes or the Senior Second Lien
Note Indenture."
(ii) revising the definition of "Loan Documents" to read as
follows:
"`Loan Documents' means this Agreement, the
Intercreditor Agreement, the Collateral Agreement and the
other Security Documents."
(b) Amendment of Section 6.01. Section 6.01(a) is amended by
(i) deleting the word "and" at the end of clause (x), (ii) replacing the period
at the end of clause (xi) with "; and" and (iii) inserting the following clause
(xii):
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"(xii) the Senior Second Lien Notes in an aggregate principal
amount outstanding not exceeding $150,000,000 and related Guarantees by
the Subsidiary Loan Parties; provided that no Subsidiary or subsidiary
of Farmland Feed shall Guarantee the Senior Second Lien Notes unless it
also Guarantees the Obligations."
(c) Amendment of Section 6.02. Section 6.02(a) is amended by
(i) deleting the word "and" at the end of clause (ix), (ii) replacing the period
at the end of clause (x) with "; and" and (iii) inserting the following clause
(xi):
"(xi) Liens created under the Second Lien Security Documents
to secure the Senior Second Lien Note Obligations; provided that (A)
such Liens do not apply to any asset other than Collateral that is
subject to a prior Lien granted under a Security Document and (B) all
such Liens shall be subordinate and junior to the Liens securing the
Obligations on the terms set forth in the Intercreditor Agreement."
(d) Amendment of Section 6.08. Section 6.08 is amended by:
(i) inserting "or Senior Second Lien Notes" in clause
(a)(ii)(x)(II) thereof immediately after "Senior Notes".
(ii) inserting "or Senior Second Lien Notes" in clause (b)(iv)
thereof immediately after "Senior Notes".
(iii) changing the reference to "Section 6.08(a)(ii)(II)"
contained in Section 6.08(b)(iv) to be a reference to "Section
6.08(a)(ii)(x)(II)".
(e) Amendment of Section 6.10. Section 6.10 is amended by (i)
replacing the word "and" at the end of clause (vi) of the proviso contained
therein with a comma and (ii) inserting the following clause (viii) immediately
following the existing clause (vii):
"and (viii) the foregoing shall not apply to restrictions and
conditions imposed by the Senior Second Lien Note Documents".
SECTION 2. Amendment to the Collateral Agreement. (a) The
undersigned Lenders authorize and direct the Collateral Agent to execute and
deliver an instrument amending the Collateral Agreement so as to effect such
changes to the Collateral Agreement and the other Security Documents as the
Collateral Agent shall deem appropriate in connection with the issuance of the
Senior Second Lien Notes, the creation of the Liens securing such Notes and the
subordination of such Liens to the Liens created by the Collateral Agreement.
(b) The undersigned Lenders further authorize and direct the
Collateral Agent, on the Amendment Effective Date, to execute and deliver the
Intercreditor Agreement. Each Lender party to the Credit Agreement from time to
time will be
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deemed to have agreed to be bound by the provisions of the Intercreditor
Agreement to the same extent as if it had executed such Agreement as a party
thereto.
SECTION 3. Representations and Warranties. To induce the other
parties hereto to enter into this Amendment, the Borrower represents and
warrants to each of the Lenders and each of the Agents that, as of the Amendment
Effective Date:
(a) This Amendment and the Intercreditor Agreement have has
been duly authorized, executed and delivered by it and this Amendment, the
Credit Agreement as amended hereby and the Intercreditor Agreement, constitutes
its legal, valid and binding obligation, enforceable against it in accordance
with its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity).
(b) The representations and warranties set forth in Article
III of the Credit Agreement are, after giving effect to this Amendment, true and
correct in all material respects on and as of the Amendment Effective Date with
the same effect as though made on and as of the Amendment Effective Date, except
to the extent such representations and warranties expressly relate to an earlier
date (in which case they were true and correct in all material respects as of
such earlier date).
(c) No Default or Event of Default has occurred and is
continuing.
(d) After giving effect to this Amendment, the Collateral and
Guarantee Requirement has been satisfied.
SECTION 4. Effectiveness. This Amendment and the amendment of
the Credit Agreement effected hereby shall become effective as of the first date
(the "Amendment Effective Date") on which the following conditions have been
satisfied:
(a) The Administrative Agent (or its counsel) shall have
received duly executed counterparts hereof that, when taken together, bear the
signatures of (i) the Borrower and (ii) the Required Lenders.
(b) The Administrative Agent shall have received a certificate
of a Financial Officer to the effect that the representations and warranties set
forth in Section 3 hereof are true and correct on and as of the Amendment
Effective Date.
(c) The Borrower shall have issued and sold Senior Second Lien
Notes for gross proceeds in an aggregate amount not less than $125,000,000. The
terms of the Senior Second Lien Notes shall be consistent in all material
respects with those described in the Preliminary Offering Memorandum for such
Notes dated December 7, 2003, except for (i) changes related to the amount of
the Senior Second Lien Notes to be issued or to the pricing of the Senior Second
Lien Notes and (ii) changes that shall have been approved by the Administrative
Agent.
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(d) The Administrative Agent shall have received counterparts
of the Intercreditor Agreement, executed on behalf of each party thereto.
(e) The Related Credit Facility shall have been or shall
simultaneously be amended in a manner reasonably satisfactory to the
Administrative Agent to permit the issuance and sale of the Senior Second Lien
Notes and the other transactions contemplated hereby, in each case in a manner
substantially corresponding to the amendments to the Credit Agreement effected
hereby, to the extent applicable.
(f) The Administrative Agent or the Co-Administrative Agent,
as applicable, shall have received all fees and other amounts due from any Loan
Party hereunder or under the Credit Agreement or any other Loan Document on or
prior to the Amendment Effective Date and, to the extent invoiced on or prior to
the Amendment Effective Date, reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under the Credit Agreement or
any other Loan Document.
The Administrative Agent shall notify the Borrower and the Lenders of the
Amendment Effective Date, and such notice shall be conclusive and binding.
SECTION 5. Effect of Amendment. (a) Except as expressly set
forth herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of or otherwise affect the rights and remedies of
the Lenders, the Administrative Agent or the Collateral Agent under the Credit
Agreement or any other Loan Document, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other provision of the
Credit Agreement or of any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle the Borrower to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
other Loan Document in similar or different circumstances.
(b) On and after the Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein", or
words of like import, and each reference to the Credit Agreement in any Loan
Document shall be deemed a reference to the Credit Agreement as amended hereby.
This Amendment shall constitute a "Loan Document" for all purposes of the Credit
Agreement and the other Loan Documents.
SECTION 6. Costs and Expenses. The Borrower agrees to
reimburse the Administrative Agent for its reasonable out of pocket expenses in
connection with this Amendment, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent.
SECTION 7. Indemnity. It is agreed that for all purposes of
Section 9.03(b) of the Credit Agreement, the offering of the Senior Second Lien
Notes,
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the execution, delivery and performance of this Amendment and of the
Intercreditor Agreement, the amendment of the Collateral Agreement as
contemplated by Section 2 hereof and the other transactions contemplated hereby
shall all be deemed to be transactions contemplated by the Credit Agreement.
SECTION 8. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 9. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 10. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date and year first above written.
LAND O'LAKES, INC.,
By ______________________________
Name:
Title:
JPMORGAN CHASE BANK,
individually and as Agent
By ______________________________
Name:
Title:
CO-BANK, ACB,
individually and as Co-Administrative
Agent
By ______________________________
Name:
Title:
SIGNATURE PAGE TO
THIRD AMENDMENT
TO THE LAND O'LAKES
AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT
DATED AS OF OCTOBER 11, 2001, AS AMENDED
To approve Third Amendment:
Name of Institution:
___________________________
by ___________________________
Name:
Title:
