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| 8-K - FORM 8K - NATIONAL BEEF PACKING CO LLC | form8k_120109.htm |
EXECUTION VERSION
EXHIBIT 10.1
FOURTH
AMENDMENT
TO SIXTH AMENDED AND
RESTATED CREDIT AGREEMENT
This
Fourth Amendment to Sixth Amended and Restated Credit Agreement (“Amendment”) is made
as of November 24, 2009, by and among NATIONAL BEEF PACKING COMPANY, LLC, a Delaware limited
liability company (together with its successors and assigns, the “Borrower”), COBANK,
ACB, an agricultural credit bank (“CoBank”), as Lead
Arranger, Syndication Agent, Swing Line Lender and Administrative Agent for the
Lenders (in such capacity, the “Agent”) and as one of
the Lenders, and the other financial institutions signatory hereto.
RECITALS
This
Amendment is made with respect to the Sixth Amended and Restated Credit
Agreement made as of the 25th day of July, 2007 (as the same has been and may
hereafter be amended, modified, supplemented, renewed or restated from time to
time, the “Agreement”). Capitalized
terms that are not defined in this Amendment shall have the meanings assigned to
them in the Agreement.
The
Borrower has requested that the Agent and the Lenders amend the Agreement in
certain respects, and the Agent and the Lenders have agreed to do so subject to
the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and of the terms and conditions
contained in 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 the Borrower, the parties agree as follows:
1. A
new definition of Annual Regular
Dividend shall be added to Section 1.2 of the
Agreement, Defined Terms,
in appropriate alphabetical order to read as follows:
“Annual
Regular Dividend” means an annual dividend
in an amount not to exceed two percent (2%) of the average daily stock price for
NB, Inc. during the twelve-month period ending two (2) Business Days prior to
the date of declaration of the proposed Equity Distribution; provided, that the
Annual Regular Dividend shall not exceed $25,000,000, calculated in respect of
Fiscal Year 2010 and payable in Fiscal Year 2011.
2. A
new definition of Change of Control
shall be added to Section 1.2 of the
Agreement, Defined
Terms, in appropriate alphabetical order to read as follows:
“Change
of Control” means the occurrence of any of the following events: (a) any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such
person or its subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities
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Exchange
Act of 1934, except that a person or group shall be deemed to have "beneficial
ownership" of all securities that such person or group has the right to acquire
(such right, an "option right"), whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of the equity
securities of NB, Inc. entitled to cast thirty-five percent (35%) or more of the
votes for members of the board of directors or equivalent governing body of NB,
Inc. on a fully-diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any option right),
other than the Existing Equity Holders, (b) during any period of 12 consecutive
months, a majority of the members of the board of directors or other equivalent
governing body of NB, Inc. ceases to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above constituting at
the time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any individual
whose initial nomination for, or assumption of office as, a member of that board
or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more
directors by any person or group other than a solicitation for the election of
one or more directors by or on behalf of the board of directors), (c) the
Existing Equity Holders cease to own, directly or indirectly, equity interests
representing a majority of the aggregate ordinary voting power represented by
the issued and outstanding equity interests in Holdings, or (d) NB, Inc. ceases
to be the sole manager of the Borrower.
3. A
new definition of Defaulting Lender
shall be added to Section 1.2 of the
Agreement, Defined
Terms, in appropriate alphabetical order to read as follows:
“Defaulting
Lender” means any Lender that (a) has failed to fund any portion of the Loans or
participations in LC Obligations or Swing Line Loans required to be funded by
such Lender within three (3) Business Days after the date required to be funded
by it, (b) has otherwise failed to pay over to the Agent or any other Lender any
other amount required to be paid by it within three (3) Business Days after the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of an insolvency proceeding (or such
parent or holding company of such Lender that has been deemed insolvent or
become the subject of an insolvency proceeding).
4. A
new definition of Draft Prospectus
shall be added to Section 1.2 of the
Agreement, Defined
Terms, in appropriate alphabetical order to read as follows:
“Draft
Prospectus” means that certain draft Preliminary Prospectus relating to the
initial public offering of shares of Class A common stock of
NB,
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Inc.
dated November 13, 2009.
5. A
new definition of Equity Distributions
Threshold shall be added to Section 1.2 of the
Agreement, Defined
Terms, in appropriate alphabetical order to read as follows:
“Equity
Distributions Threshold” means an amount equal to the sum of (a) (i) the
IPO Proceeds in an aggregate amount not to exceed $10,000,000, (ii) the
Overallotment Proceeds in an aggregate amount not to exceed $10,000,000,
(iii) $15,000,000 per Fiscal Year, and (iv) an amount not to exceed the
lesser of (A) fifty percent (50%) of any Unallocated Cash Flow for the most
recently ended Fiscal Year, or (B) $15,000,000 per Fiscal Year minus (b) the aggregate
amount of negative Unallocated Cash Flow (if any) for the most recently ended
Fiscal Year; provided, in the
event the aggregate amount of Equity Distributions made by the Borrower during
any Fiscal Year in accordance with the terms of clauses (b) and (c) of Section 10.10 is less
than the Equity Distributions Threshold for such Fiscal Year, the Equity
Distributions Threshold for the immediately succeeding Fiscal Year shall be
increased by such unutilized portion.
6. The
definition of Excess
Disposition Proceeds, set forth in Section 1.2 of the
Agreement, Defined
Terms, shall be amended and restated in its entirety to read as
follows:
“Excess
Disposition Proceeds” means the Borrower’s net cash proceeds, including
insurance or condemnation proceeds, from the sale or other disposition or loss
of assets (other than the sale of Inventory in the ordinary course of business
or the casualty loss of Inventory), which are not used by the Borrower for the
replacement of the assets sold, disposed of or lost or not used for the
acquisition of other assets with similar business utility within one hundred
eighty (180) days after such sale, disposition or loss, in excess of $100,000 in
the aggregate during any rolling twelve month period.
7. A
new definition of Existing Equity
Holders shall be added to Section 1.2 of
the Agreement, Defined
Terms, in appropriate alphabetical order to read as follows:
“Existing
Equity Holders” means, collectively, US Premium Beef, TKK Investments, LLC,
TMKCo, LLC and NBPCo Holdings, LLC.
8. The
definition of Financing Documents,
set forth in Section
1.2 of the Agreement, Defined Terms, shall
be amended and restated in its entirety to read as follows:
“Financing
Documents” means this Agreement, the Notes, the Agent’s Letter, the NB, Inc.
Acknowledgement, all Security Documents, and all documents, instruments,
certificates and agreements at any time executed or delivered by the Borrower to
any of the Agent or any one or more of the Lenders pursuant to or in connection
with any of the foregoing, and any and all amendments, modifications,
supplements, renewals, extensions, increases and rearrangements of, and
substitutions for, any of the foregoing.
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9. A
new definition of Fourth Amendment Effective
Date shall be added to Section 1.2 of the
Agreement, Defined Terms,
in appropriate alphabetical order to read as follows:
“Fourth
Amendment Effective Date” means ___________________, 2009.
10. A
new definition of Georgia Mortgage
shall be added to Section 1.2 of the
Agreement, Defined Terms,
in appropriate alphabetical order to read as follows:
“Georgia
Mortgage” means that certain Deed to Secure Debt and Security Agreement between
the Borrower and the Agent, together with any and all amendments, modifications,
supplements, renewals or restatements thereof.
11. A
new definition of Initial Public
Offering shall be added to Section 1.2 of the
Agreement, Defined
Terms, in appropriate alphabetical order to read as follows:
“Initial
Public Offering” means the initial public offering of shares of Class A common
stock of NB, Inc. on substantially the same terms and conditions set forth in
the Draft Prospectus.
12. A
new definition of IPO
Proceeds shall be added to Section 1.2 of the
Agreement, Defined
Terms, in appropriate alphabetical order to read as follows:
“IPO
Proceeds” means the Borrower’s net cash proceeds (excluding any Overallotment
Proceeds) received from the initial issuance of its equity interests to NB, Inc.
in connection with the Initial Public Offering and on substantially the same
terms and conditions set forth in the Draft Prospectus.
13. Clause
(c) of the definition of Matured Default
located in Section
1.2 of the Agreement, Defined Terms, shall
be amended and restated in its entirety to read as follows:
(c) the
Borrower fails or neglects to perform, keep or observe any of the covenants,
conditions, promises or agreements contained in Sections 2.2(a),
9.6, 9.16, 10.1, 10.2 or 10.4 of this
Agreement;
14. Clause
(p) of the definition of Matured Default
located in Section
1.2 of the Agreement, Defined Terms, shall
be amended and restated in its entirety to read as follows:
(p) the
occurrence of a Change of Control;
15. A
new clause (t) shall be added to the definition of Matured Default
located in Section
1.2 of the Agreement, Defined Terms, as
follows:
(t) NB,
Inc. fails to keep or observe any of the covenants, promises or agreements set
forth in the NB, Inc. Acknowledgement.
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16. A
new definition of NB,
Inc. shall be added to Section 1.2 of the
Agreement, Defined Terms,
in appropriate alphabetical order to read as follows:
“NB,
Inc.” means National Beef, Inc., a Delaware corporation.
17. A
new definition of NB,
Inc. Acknowledgement shall be added to Section 1.2 of the
Agreement, Defined Terms,
in appropriate alphabetical order to read as follows:
“NB, Inc.
Acknowledgement” means that certain Acknowledgement dated of even date herewith
by and between NB, Inc., and the Agent.
18. A
new definition of Overallotment Option
shall be added to Section 1.2 of the
Agreement, Defined
Terms, in appropriate alphabetical order to read as follows:
“Overallotment
Option” means, during the thirty (30) day period immediately following the
Initial Public Offering, the option of the underwriters to purchase additional
shares of Class A common stock of NB, Inc. at the initial public offering
price.
19. A
new definition of Overallotment
Proceeds shall be added to Section 1.2 of the
Agreement, Defined
Terms, in appropriate alphabetical order to read as follows:
“Overallotment
Proceeds” means the Borrower’s net cash proceeds received during the forty-five
(45) day period immediately following the Initial Public Offering from the
issuance of additional equity interests to NB, Inc. in connection with the
exercise of the Overallotment Option and on substantially the same terms and
conditions set forth in the Draft Prospectus.
20. The
definition of Security
Documents, set forth in Section 1.2 of the
Agreement, Defined
Terms, shall be amended and restated in its entirety to read as
follows:
“Security
Documents” means the Security Agreement, the Bond Pledge Agreement, the
Trademark License, the Kansas Mortgage, the Pennsylvania Mortgage, the Georgia
Mortgage, the letter agreement dated May 30, 2006, pursuant to which the
Borrower (in its capacity as a limited partner of NBC) consented, among other
things, to NCI’s pledge to the Borrower of NCI’s general partnership interest in
NBC, the Assignment dated as of May 20, 2006 of the Deed of Trust, Assignment of
Rents and Leases, Security Agreement and Fixture Filing from NBC to the Borrower
dated as of May 30, 2006, as each may be amended, modified, renewed or extended
from time to time in accordance with this Agreement, and any and all other
agreements, chattel mortgages, security agreements, pledges, guaranties,
assignments of proceeds, assignments of contract rights, assignments of
partnership interest, assignments of performance or other collateral
assignments, trademark license agreements, completion or surety bonds, standby
agreements, subordination agreements, undertakings and other similar documents,
agreements, instruments and financing statements at any time executed and
delivered by the Borrower or a third Person in connection with, or as security
for the payment or performance of, any of the Liabilities.
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21. The
definition of Unallocated Cash Flow
set forth in Section 1.2 of
the Agreement, Defined Terms, shall be amended and restated in its entirety to
read as follows:
“Unallocated
Cash Flow” means for any period of determination (a) EBITDA during such period,
minus (b) the amount of the Borrower’s consolidated cash income taxes paid
during such period, minus (c) the amount of the Borrower’s consolidated cash
dividends or distributions paid during such period allowed under Section
10.10(a), minus (d) the net amount of the Borrower’s consolidated capital
expenditures during such period (capital items purchased, minus capital items
sold, and minus financing for capital items purchased), minus (e) cash interest
paid, minus (f) scheduled and mandatory principal payments made; provided,
however, that no portion of the payments made by the Borrower under the Water
Services Agreement shall be considered to be interest expense for the purposes
of the calculation of Unallocated Cash Flow.
22. Clause
(b) of Section
4.4 of the Agreement, Mandatory Prepayments of
Notes, shall be amended and restated in its entirety to read as
follows:
(b) Other Mandatory
Prepayments. Additional mandatory prepayments of the Term
Notes and Line of Credit Notes shall be payable as follows: (i) on or before the
10th day after the receipt thereof, an amount equal to any Excess Disposition
Proceeds; (ii) on or before the 10th day after the receipt thereof, an amount
equal to any Excess Debt Proceeds; (iii) on or before the 10th day after the
receipt thereof, an amount equal to 50% of any Excess Equity Proceeds (excluding
any IPO Proceeds and Overallotment Proceeds); and (iv) on or before the 120th
day after the end of each of the Borrower’s Fiscal Years, an amount equal to
fifty percent (50%) of any Unallocated Cash Flow during such Fiscal
Year. All prepayments under this Section 4.4 shall be applied (pro rata among the
Lenders) first
to the unpaid installments due under the Term Notes in the inverse order of
their maturity until all such installments are paid, second to the outstanding
principal of the Line of Credit Notes, and third to the outstanding principal of
the Swing Line Loans.
23. Section 9.5 of the
Agreement, Property
Insurance, shall be amended and restated in its entirety to read as
follows:
9.5 Property
Insurance.
At the
Borrower’s own cost and expense, or at the cost and expense of a Subsidiary, in
the case of property owned by such Subsidiary, the Borrower shall keep all of
its and its Subsidiaries’ assets fully insured, with carriers, and in amounts
acceptable to the Agent, against the hazards of fire, theft, collision,
spoilage, hail, those covered by extended or all risk coverage insurance and
such others as may reasonably be required by the Agent. The Borrower
shall cause to be delivered to the Agent the proper certificates evidencing the
same. All such
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policies
covering the Borrower’s assets shall provide, in manner satisfactory to the
Agent, that any amounts in excess of $500,000 payable under such policies shall
be payable first to the Agent (for the ratable benefit of the Lenders), as the
Agent’s interest may appear. Each such policy covering the Borrower’s
assets shall include a provision for thirty (30) days’ prior written notice to
the Agent of any cancellation or expiration thereof and show the Agent as lender
loss payee as provided in a form of loss payable endorsement in form and
substance satisfactory to the Agent. In the event of any loss covered
by any such policy covering the Borrower’s assets, the Borrower shall direct the
carrier named in such policy to make payment for such loss to the Agent for
application to the Liabilities and not to the Borrower, or to the Borrower and
the Agent jointly. The Borrower irrevocably makes, constitutes and
appoints the Agent (and all officers, employees or agents designated by the
Agent) as the Borrower’s true and lawful attorney and agent-in-fact for the
purpose of making, settling or adjusting claims under such policies of insurance
after the occurrence of a Matured Default. If payment as a result of
any insurance losses under such policies of insurance covering the Borrower’s
assets shall be paid by check, draft or other instrument payable to the
Borrower, or to the Borrower and the Agent jointly, the Agent (for the ratable
benefit of the Lenders) may endorse the Borrower’s name on such check, draft or
other instrument, and may do such other things as the Agent may deem advisable
to reduce the same to cash. Subject to Section 4.4(b)(i),
all loss recoveries received by the Agent on account of any such insurance on
the Collateral up to $2,500,000 may be reinvested by the Borrower in the
Collateral. All loss recoveries received by the Agent on account of
any such insurance on the Collateral in excess of $2,500,000 may be applied and
credited by the Agent to the Liabilities, to the extent that there are at the
time Liabilities outstanding, or subject to Section 4.4(b)(i),
reinvested by the Borrower in the Collateral in the discretion of the
Agent. The Borrower hereby assigns all of the Borrower’s insurance
coverage proceeds to the Agent (for the ratable benefit of the Lenders) as
additional collateral security for the Liabilities. To the extent
actually received by the Agent in immediately available funds, the Agent shall
pay any surplus of insurance proceeds from such insurance policies in excess of
the Liabilities to the Borrower. If the Borrower fails to procure
insurance as provided in this Agreement, or to keep the same in force, or fails
to perform any of its other obligations hereunder, then the Agent may, at the
Agent’s option, and without obligation to do so, obtain such insurance and pay
the premium thereon for the account of the Borrower, or make whatever other
payments the Agent may deem appropriate to protect the Agent’s security for the
Liabilities. Any such payments shall be additional Liabilities of the
Borrower, each payable on demand and secured by the Collateral. Upon
the Agent’s written request, copies of the policies of insurance referred to in
this Section 9.5 and in Section 9.4, together with all amendments and schedules
thereto, shall be provided to the Agent by the Borrower. The Borrower’s
insurance policies are summarized on Exhibit 9B.
24. Section 9.16 of the
Agreement, Funded Debt
to EBITDA Ratio, shall be amended and restated in its entirety to read as
follows:
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9.16 Funded
Debt to EBITDA Ratio.
The
Borrower shall have a Funded Debt to EBITDA Ratio of not more than 3.50 to 1.00
as at the end of each fiscal quarter.
25. Section 10.2 of the
Agreement, Consolidations, Mergers or
Acquisitions, shall be amended by deleting the phrase “not to exceed
$25,000,000 in the aggregate in any Fiscal Year” and substituting in lieu
thereof the phrase “not to exceed $50,000,000 in the aggregate in any Fiscal
Year”.
26. Section 10.3 of the
Agreement, Deposits,
Investments, Advances or Loans, shall be amended by (a) deleting the
“and” located at the end of clause (r) therein, (b) deleting the period located
at the end of clause (s) therein and substituting in lieu thereof the phrase “;
and”, and (c) adding a new clause (t) immediately following clause (s) to read
as follows:
(t) in
the case of the Borrower, loans to NB, Inc. in an aggregate amount not to exceed
$5,000,000; provided that such loans shall be unsecured and otherwise on terms
and conditions reasonably satisfactory to the Agent.
27. Section 10.10 of the
Agreement, Equity
Distributions, shall be amended and restated in its entirety to read as
follows:
Section
10.10 Equity
Distributions.
The
Borrower shall not directly or indirectly, make any Equity Distributions, except
that (a) the Borrower may make quarterly distributions to its Members in respect
of Borrower’s taxable income, in amounts proportionate to the respective
percentage interests of each of such Member so that each such Member shall have
received an amount equal to 48% of such Member’s share of the Borrower’s net
taxable income for the relevant quarter (subject to any increase in accordance
with the terms of the Borrower’s Amended and Restated Limited Liability Company
Agreement) (the
“Permitted Taxable
Distribution Amount”), provided that if the
aggregate distribution made during any calendar year exceeds the Permitted
Taxable Distribution Amount, then the excess distribution for such tax year
shall be applied to the permitted distributions for the immediately subsequent
quarters, Dollar-for-Dollar, until all such excess has been applied to future
permitted distributions, (b) so long as no Default or Matured Default has
occurred and is continuing or would be caused thereby, the Borrower may make
distributions in respect of its outstanding equity interests to pay an Annual
Regular Dividend on such equity interests in an aggregate amount not to exceed
the Equity Distributions Threshold and (c) so long as (i) no Default or Matured
Default has occurred and is continuing or would be caused thereby and (ii) at
the time such distribution is made the Borrower’s Funded Debt to EBITDA Ratio as
at the most recently ended Fiscal Year is less than or equal to 2.00 to 1.00,
the Borrower may make additional distributions in respect of its outstanding
equity interests
in an aggregate amount not to exceed the Equity Distributions Threshold not
otherwise utilized under clause (b) above.
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28. Section 12.10 of the
Agreement, Actions
Upon Request of the Borrower, shall be amended and restated in its
entirety to read as follows:
Section
12.10 Actions Upon Request of the
Borrower.
If (a)
any of the events described in Sections 5.2, 5.3, 5.4 or 5.5 cause the Borrower
to be required to pay to any one of the Lenders other than the Agent, costs
associated with the LIBOR Rate Advances which are materially disproportionate to
such costs required to be paid to the other Lenders (each a “Non-Proportionate
Lender”, or (b) a Lender is a Defaulting Lender, then the Borrower or the
Agent may elect to replace such Non-Proportionate Lender or Defaulting Lender,
as the case may be, as a Lender party to this Agreement in accordance with and
subject to the restrictions contained in, and consents required by Section 13.23; provided that (a) if
such replacement is requested by the Borrower, the Borrower shall have received
the prior written consent of the Agent, and (b) such Lender shall have received
payment of an amount equal to the outstanding principal amount of its Loans
(including any Swing Line Loans) and participations in Swing Line Loans and LC
Obligations, accrued interest thereon, accrued fees and all other amounts
payable hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts). Notwithstanding the foregoing, under no circumstances
shall the Lender affected hereby be required to bear any of the costs or
expenses associated with the proposed assignment, all of which costs and
expenses shall be the sole responsibility of the Borrower and the proposed
assignee, and the Lender affected hereby may defer compliance with its
obligations under this Section 12.10 until the Borrower has deposited with such
Lender such amount as such Lender reasonably believes will be sufficient to
reimburse such Lender for such costs and expenses.
29. Clause
(b) of the penultimate sentence of Section 13.29 of the
Agreement, Amendments
and Waivers, shall be amended and restated in its entirety to read as
follows:
(b) the
cumulative increase in the sum of the Line of Credit Loan Commitment and the
Term Loan Commitment may not exceed $200,000,000 (taking into account, for the
avoidance of doubt, the $100,000,000 increase in the Commitments contemplated by
that certain Second Amendment to Sixth Amended and Restated Credit Agreement
made as of April 13, 2009, by and among the Borrower, the Agent and the
Lenders party thereto) and
30. Notwithstanding
the terms of Section
10.11 of the Agreement, Amendment of Organizational
Documents, Agent and each of the Lenders hereby consent to the amendment
of the Borrower’s organizational documents in connection with the purchase by
NB, Inc. of equity interests in the Borrower and the appointment of NB, Inc. as
the sole manager of the Borrower; provided
that any such amendment to the Borrower’s organizational documents shall be in
form and substance satisfactory to the Agent.
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31. This
Amendment shall be effective as of its date, conditioned upon (a) the execution
and delivery of this Amendment by the Borrower, the Agent and each of the
Lenders, (b) the execution and delivery of the NB, Inc. Acknowledgement by NB,
Inc., (c) Secretaries Certificates for NB, Inc. and the Borrower relating to
resolutions, incumbency, etc., (d) opinions of counsel for NB, Inc. and the
Borrower, (e) the payment to the Agent, for the ratable benefit of the Lenders,
of a fully earned and non-refundable amendment fee in an amount equal to .20% of
all of the Lenders’ Commitments, payable in equal installments on the date of
execution and delivery of this Amendment by the Agent and the Lenders, and on
the date all the other conditions are satisfied and this Amendment shall be
effective, (f) the payment to the Agent of the arrangement fee as set forth in
the separate Fee Letter, dated as of November 18, 2009, between the Agent and
the Borrower, (g) the payment to the Agent of all reasonable, out-of-pocket
fees and expenses of counsel incurred in connection with the preparation,
negotiation, execution or delivery of this Amendment and any other agreement,
document or instrument executed and/or delivered by NB, Inc. or the Borrower
with, to or in favor of the Agent or any Lender concurrently with the execution
or effectiveness of this Amendment, (h) the Initial Public Offering shall have
been consummated and all net cash proceeds thereof (other than any net cash
proceeds paid to the Existing Equity Holders) shall have been contributed to the
Borrower and (i) the delivery of such other information, documents, agreements
or instruments that Agent or Agent’s counsel may reasonably require in
connection with this Amendment.
32. The
Borrower hereby represents, warrants and covenants as follows:
(a) Each
of the representations and warranties made by or on behalf of the Borrower in
the Agreement or any of the other Financing Documents is true and correct on and
as of the date of this Amendment (unless stated to relate solely to an earlier
date, in which case the representations and warranties are true and correct on
and as of such earlier date) with the same full force and effect as if each of
such representations and warranties had been made by the Borrowers in this
Amendment.
(b) This
Amendment has been duly authorized, executed and delivered to the Agent by the
Borrower, is enforceable in accordance with its terms and is in full force and
effect, except as such enforcement may be limited by equitable principles or by
bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to
or limiting creditors' rights generally.
(c) The
execution, delivery and performance of this Amendment by the Borrower will not
violate any requirement of law or contractual obligation of Borrower and will
not result in, or require, the creation or imposition of any Lien on any of its
properties or revenues
33. This
Amendment shall be an integral part of the Agreement, and all of the terms set
forth therein are hereby incorporated in this Amendment by reference, and all
terms of this Amendment are hereby incorporated into said Agreement as if made
an original part thereof. Except as modified pursuant hereto, no
other changes or modifications to the Agreement are intended or implied and in
all other respects the Agreement is ratified, restated and confirmed by all
parties hereto as of the effective date hereof. To the extent the
terms of this Amendment conflict with the terms of the Agreement, the terms of
this Amendment shall control.
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34. This
Amendment may be executed in several counterparts, each of which shall be
construed together as one original. Facsimile signatures on this
Amendment shall be considered as original signatures.
35. This
Amendment shall be binding upon and inure to the benefit of each of the parties
hereto and their respective successors and permitted assigns
36. This
Amendment shall be a contract made under and governed by the internal laws of
the State of Colorado without regard to the application of conflict of laws
principles. Wherever possible, each
provision of the Amendment shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Amendment
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Amendment.
37. THE
BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL
COURT LOCATED WITHIN THE CITY AND COUNTY OF DENVER, COLORADO AND WAIVES ANY
OBJECTION WHICH THE BORROWER MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON
CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT, WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON THE BORROWER. THE BORROWER HEREBY CONSENTS
THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MAIL OR MESSENGER DIRECTED TO THE
BORROWER AT THE ADDRESS SET FORTH IN SECTION 13.18 OF THE
AGREEMENT. SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE
EARLIER OF ACTUAL RECEIPT OR THREE (3) DAYS AFTER THE SAME SHALL HAVE BEEN
POSTED TO THE BORROWER’S ADDRESS BY THE BORROWER’S AGENT AS SET FORTH
BELOW. THE BORROWER HEREBY IRREVOCABLY APPOINTS THE CORPORATION
COMPANY, WITH AN OFFICE ADDRESS LOCATED AT 1675 BROADWAY, DENVER, COLORADO
80202, AS THE BORROWER’S AGENT FOR THE PURPOSE OF ACCEPTING THE SERVICE OF ANY
PROCESS WITHIN THE STATE OF COLORADO. AT THE OPTION OF THE AGENT, THE
BORROWER WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY, AND WAIVES ANY
BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE
REQUIRED OF THE AGENT. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER FINANCING DOCUMENT TO WHICH IT IS A PARTY) AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT, EACH ISSUER, THE
SWING LINE LENDER AND THE LENDERS TO ENTER INTO THIS AMENDMENT AND EACH SUCH
OTHER FINANCING DOCUMENT.
[Signature
Pages Follows]
11
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment to Sixth
Amended and Restated Credit Agreement as of the day and year first herein above
written.
|
NATIONAL
BEEF PACKING
COMPANY,
LLC
|
|||
|
|
By:
|
/s/ Jay D. Nielsen | |
| Jay D. Nielsen | |||
| Chief Financial Officer | |||
|
COBANK,
ACB, individually and as Lead Arranger, Syndication Agent and
Administrative Agent
|
|||
|
|
By:
|
/s/ James Matzat | |
|
James
Matzat
|
|||
| Vice President | |||
|
COÖPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK
BRANCH, individually and as a Documentation Agent
|
|||
|
By:
/s/ Rebecca O. Morrow
|
By:
|
/s/ Robert K. Hughes | |
| Rebecca O. Morrow |
Robert
K. Hughes
|
||
| Executive Director | Executive Director | ||
{SIGNATURE
PAGE ONE OF THREE TO FOURTH AMENDMENT TO SIXTH AMENDED AND RESTATED CREDIT
AGREEMENT}
|
THE
CIT GROUP/BUSINESS CREDIT, INC.
|
|||
|
|
By:
|
/s/ Barbara Coffin | |
| Barbara Coffin | |||
| Vice President | |||
|
BANK
OF OKLAHOMA, N.A.
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
|
BMO
CAPITAL MARKETS FINANCING, INC.
|
|||
|
|
By:
|
/s/ Manuel Diaz | |
| Manuel Diaz | |||
| Vice President | |||
|
BANK
OF AMERICA, N.A. (successor by merger to LaSalle Bank National
Association)
|
|||
|
|
By:
|
/s/ Daniel J. Ricke | |
| Daniel J. Ricke | |||
| Vice President | |||
|
FIRST
NATIONAL BANK OF OMAHA
|
|||
|
|
By:
|
/s/ Wade A. Horton | |
| Wade A. Horton | |||
| Vice President | |||
{SIGNATURE
PAGE TWO OF THREE TO FOURTH AMENDMENT TO SIXTH AMENDED AND RESTATED CREDIT
AGREEMENT}
|
AMERICAN
AGCREDIT, PCA, formerly known as Pacific Coast Farm Credit Services,
ACA
|
|||
|
|
By:
|
/s/ Gary VanSchuyver | |
| Gary VanSchuyver | |||
| Vice President | |||
|
U.S.
BANK NATIONAL ASSOCIATION individually and as a Documentation
Agent
|
|||
|
|
By:
|
/s/ Thomas Martin | |
| Thomas Martin | |||
| Vice President | |||
{SIGNATURE
PAGE THREE OF THREE TO FOURTH AMENDMENT TO SIXTH AMENDED AND RESTATED CREDIT
AGREEMENT}