EXHIBIT 10.21
THIRD AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT is entered
into as of April 29, 2002 by and among PENFORD CORPORATION, a Washington
corporation, PENFORD PRODUCTS CO., a Delaware corporation, KEYBANK NATIONAL
ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION and THE BANK OF NOVA SCOTIA.
RECITALS
Borrowers, Administrative Lender and Lenders are parties to that certain
Amended and Restated Credit Agreement dated November 15, 2000 (as previously
amended, the "Agreement"). The parties desire to amend the Agreement in the
manner set forth herein. All capitalized terms used herein and not otherwise
defined herein shall have the meaning attributed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises of
the parties contained herein, Administrative Lender, Lenders and Borrowers
hereby agree as follows:
1. DEFINITIONS. The following definitions in Section 1.1 are amended
in their entirety to read as follows:
"EBITDA" means, as of the end of a fiscal quarter, Parent's
consolidated net income after taxes for the twelve months ending with
such quarter plus (A) the sum of the amounts for such twelve month
period included in determining such net income of (i) interest expense,
(ii) income tax expense, (iii) depreciation expense, (iv) amortization
expense, (v) unusual non-cash charges, extraordinary non-cash losses and
other non-recurring non-cash charges, and (vi) the portion of any
unusual cash charges, extraordinary cash losses and other non-recurring
cash charges accrued but not paid during such period less (B) the sum of
the following amounts for such twelve month period: (w) gains on sales
of assets (excluding sales of inventory in the ordinary course of
business); (x) unusual non-cash gains, extraordinary non-cash gains and
other non-recurring non-cash gains; and (y) all unusual cash charges,
extraordinary cash losses and other non-recurring cash charges paid
during such period that were accrued prior to such period.
"EBITDAR" means, as of the end of a fiscal quarter, the sum of
EBITDA plus Parent's consolidated rental expense for the twelve months
ending with such quarter.
"EXCESS CASH FLOW" means, with respect to any fiscal year of
Parent, EBITDA for such year, minus (A) cash interest expense paid
during such year, (B) cash taxes paid during such year, (C) capital
expenditures made during such year
PAGE 1
permitted under Section 10.5 and not financed with Debt (other than
Loans), (D) cash payments during such year of amounts described in
Section 9.3 and permitted by Section 9.3, (E) payments made during such
year under items (i) and (ii) of Section 3.2(b), (F) if during such year
Borrowers take action under Section 3.1(e), the amount by which the
Revolving Loan Commitment on the last day of such year (after being
reduced by such action) is less than the peak outstanding principal
balance of the Revolving Loans during such year, (G) payments made
during such year under Section 11.1 of that certain Debenture Trust Deed
dated November 15, 2000 between Penford Holdings and ANZ Capel Court
Limited ACN 004 768 807, and (H) if during such year Penford Australia
takes action under Section 13.2 of that certain Syndicated Facility
Agreement dated November 15, 2000 among Penford Australia, ANZ and
certain other lenders named therein, the amount by which the "Total
Commitment" (as defined in such agreement) on the last day of such year
(after being reduced by such action) is less than the peak outstanding
principal balance of the "Outstanding Bill Amount" (as defined in such
agreement) during such year.
"FIXED CHARGE COVERAGE RATIO" means, as of the end of a fiscal
quarter, the ratio of (A) EBITDAR, less the sum of the following for the
twelve month period ending with such quarter: (i) all expenses of Parent
and the Subsidiaries that were permitted under Sections 9.3 and 10.5 and
were paid in cash during such period; and (ii) taxes paid in cash by
Parent and the Subsidiaries during such period to (B) the sum of
Interest Expense, Rental Expense and scheduled principal payments of
Debt for such period.
"RENTAL EXPENSE" means, as of the end of a fiscal quarter,
Parent's consolidated cash rental expense for the twelve months ending
with such quarter.
2. EFFECTIVE DATA. This Third Amendment shall be effective as of
February 28, 2002.
3. RATIFICATION. Except as otherwise provided in this Third
Amendment, all of the provisions of the Agreement are hereby ratified and
confirmed and shall remain in full force and effect.
4. ONE AGREEMENT. The Agreement, as modified by the provisions of
this Third Amendment, shall be construed as one agreement.
5. COUNTERPARTS. This Third Amendment may be executed in any number
of counterparts, each of which when executed and delivered shall be deemed to be
an original, and all of which when taken together shall constitute one and the
same agreement. Delivery of an executed signature page of this Third Amendment
by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
PAGE 2
5. STATUTORY NOTICE.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR
FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
IN WITNESS WHEREOF, this Third Amendment to Amended and Restated Credit
Agreement has been duly executed as of the date first written above.
PENFORD CORPORATION PENFORD PRODUCTS CO.
By: /s/ Jeffrey T. Cook By: /s/ Jeffrey T. Cook
------------------------------ ------------------------------
Title: President Title: President
--------------------------- ---------------------------
KEYBANK NATIONAL ASSOCIATION U.S. BANK NATIONAL ASSOCIATION
By: /s/ Cheryl L. Ebner By: /s/ James R. Farmer
------------------------------ ------------------------------
Title: Senior Vice President Title: Vice President
--------------------------- ---------------------------
THE BANK OF NOVA SCOTIA
By: /s/ Patrik Norris
------------------------------
Title: Director
---------------------------
PAGE 3
CONSENT OF ANZ
Australian and New Zealand Banking Group Limited hereby consents to the
foregoing Third Amendment to Amended and Restated Credit Agreement.
Dated: April 29, 2002.
AUSTRALIAN AND NEW ZEALAND BANKING
GROUP LIMITED
By: /s/ Michael Stapleton
--------------------------------
Title: Analyst
-----------------------------
PAGE 4