EXHIBIT 10.2
EXECUTION COPY
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
This FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT (this "Amendment")
dated as of April 7, 2006, to be effective as of the First Amendment Effective
Date (hereinafter defined), to that certain Note Purchase Agreement, dated as of
December 31, 2003 (the "Note Purchase Agreement"), as entered into by and among
Darling International Inc., a Delaware corporation (the "Company"), the
Guarantors party thereto from time to time and the securities purchasers set
forth on Annex A thereto (the "Purchasers").
R E C I T A L S:
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WHEREAS, the Company has requested that the Noteholders agree to
amend the Note Purchase Agreement to, among other things (i) permit the
refinance of the existing Senior Credit Agreement and (ii) permit the
acquisition by the Company of National By-Products, LLC.
WHEREAS, the Noteholders are willing to agree to the requested
amendments on the terms and subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the mutual benefits hereunder and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and agreed, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Defined terms used herein, but not otherwise defined herein, shall
have their respective meanings as set forth in the Note Purchase Agreement.
ARTICLE II
ACKNOWLEDGMENT AND CONSENT
Each of the Noteholders hereby acknowledges that the Company intends
to enter into that certain Credit Agreement (the "Credit Agreement"), by and
among the Company, as borrower, the lenders signatory thereto from time to time
(the "Lenders") and JPMorgan Chase Bank, N.A., as administrative agent for the
Lenders ("Administrative Agent") to, among other things (i) provide for the
amounts payable under the Asset Purchase Agreement dated December 19, 2005 among
the Company, Darling National LLC and National By-Products, LLC, as
consideration for the NBP Acquisition (as defined below), (ii) refinance certain
existing indebtedness and (iii) finance the working capital needs and other
general corporate purposes of the Company and its Subsidiaries.
In connection with the Credit Agreement, each of the Noteholders
hereby acknowledges and agrees to the incurrence by the Company and its
Subsidiaries, as applicable, of its respective obligations under the Credit
Agreement and the other Loan Documents (as defined in the Credit Agreement) to
which it is a party and the granting of liens in favor of the Administrative
Agent to secure such obligations.
ARTICLE III
AMENDMENT TO NOTE PURCHASE AGREEMENT
3.1 The definition of "Senior Agent" set forth in Section 1.1 of the
Note Purchase Agreement shall be deleted in its entirety and the following shall
be substituted in lieu thereof:
"`Senior Agent' shall mean JPMorgan Chase Bank, N.A., acting in
its capacity as administrative agent for the Senior Lenders, or any successor or
replacement agent under the Senior Credit Agreement".
3.2 The definition of "Senior Credit Agreement" set forth in Section
1.1 of the Note Purchase Agreement shall be deleted in its entirety and the
following shall be substituted in lieu thereof:
"`Senior Credit Agreement' shall mean that certain Credit
Agreement, dated as of April 7, 2006, by and among the Company, the Senior
Lenders and the Senior Agent, as the same may be amended, modified, renewed,
replaced, refinanced, restated or substituted in whole or in part from time to
time, including any agreement extending the maturity of, refinancing, replacing
or otherwise restructuring all or any portion of the Indebtedness under such
agreement or any successor replacement agreement, whether pursuant to one or
more agreements, whether or not with the same or any other agent, lender or
group of lenders, and whether outstanding on the date hereof or incurred
hereafter. All references in this Agreement to Indebtedness under the Senior
Credit Agreement shall include the Obligations (as defined in the Senior Credit
Agreement)."
3.3 Section 1.1 of the Note Purchase Agreement shall be amended by
adding thereto each of the following new definitions in proper alphabetical
order:
"`NBP Acquisition' means the acquisition by Darling National
LLC, as Subsidiary of the Company, of substantially all the assets of National
By-Products, L.L.C. pursuant to the terms of the NBP Asset Purchase Agreement.
"`NBP Asset Purchase Agreement' shall mean that certain Asset
Purchase Agreement, dated as of December 19, 2005 among the Company, Darling
National LLC and National By-Products, L.L.C."
3.4 Section 9.1(a) of the Note Purchase Agreement shall be deleted in
its entirety and the following shall be substituted in lieu thereof:
"(a) Indebtedness under the Credit Facilities in principal
amount not to exceed $250,000,000 in the aggregate;"
3.5 Section 9.1 of the Note Purchase Agreement shall be amended to
delete the word "and" at the end of clause (r) thereof, to reletter clause (s)
as clause (t) and to add the following clause (s) in proper order:
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"(s) obligations, indebtedness and liabilities arising pursuant
to deposit, lock box or cash management arrangements entered into by the Company
or any of its Subsidiaries; and"
3.6 Section 9.2(a) of the Note Purchase Agreement shall be deleted in
its entirety and the following shall be substituted in lieu thereof:
"(a) Liens securing Indebtedness permitted to be incurred under
Section 9.1(a), (e), (g), (h), (i), (j), (k) and (s);"
3.7 Section 9.5 Of the note purchase agreement shall be amended to
delete the word "and" at the end of clause (o) thereof, to reletter clause (p)
as clause (q) and to add the following clause (p) in proper order:
"(p) the NBP Acquisition; and".
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Noteholders to enter into this Amendment, the
Company hereby represents and warrants to the Noteholders that the
representations and warranties contained in Article VI of the Note Purchase
Agreement shall be true and correct on and as of the date hereof, except to the
extent such representations and warranties are made or relate to a specified
prior date, in which case such representations and warranties are true and
correct on and as of such specified prior date. The Company acknowledges and
agrees that this Amendment is a "Purchase Document" under the Note Purchase
Agreement.
ARTICLE V
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective on and as of the date hereof
when the company and the noteholders shall have executed and delivered
counterparts hereof (the "First Amendment Effective Date").
ARTICLE VI
MISCELLANEOUS
6.1 Continuing effect. Except as expressly amended hereby, the Note
Purchase Agreement shall continue to be and shall remain in full force and
effect in accordance with its terms. This Amendment shall not constitute an
amendment or waiver of any provision of the Note Purchase Agreement not
expressly referred to herein and shall not be construed as an amendment, waiver
or consent to any action on the part of the company that would require an
amendment, waiver or consent of the Noteholders except as expressly stated
herein. Any reference to the "Note Purchase Agreement" or any related documents
shall be deemed to be a reference to the Note Purchase Agreement as amended by
this Amendment.
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6.2 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES.
6.3 Jurisdiction, Consent to Service of Process.
(a) EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR THEMSELVES AND THEIR PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT
OF THE UNITED STATES OF AMERICA SITTING IN THE STATE OF NEW YORK, AND
ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE NOTES OR ANY OTHER
PURCHASE DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT,
AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY
BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT THEY MAY LEGALLY AND
EFFECTIVELY DO SO, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AMENDMENT, THE NOTES OR ANY OTHER PURCHASE
DOCUMENT IN ANY NEW YORK OR FEDERAL COURT. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(c) EACH PARTY TO THIS AMENDMENT IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 13.6
OF THE NOTE PURCHASE AGREEMENT. NOTHING IN THIS AMENDMENT WILL AFFECT
THE RIGHT OF ANY PARTY TO THIS AMENDMENT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW.
6.4 JURY TRIAL WAIVER. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (A) TO ENFORCE OR DEFEND
ANY RIGHTS UNDER OR IN CONNECTION WITH THIS AMENDMENT, OR (B) ARISING FROM ANY
DISPUTE OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS AMENDMENT AND
AGREES THAT ANY SUCH ACTION OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
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6.5 Severability. Whenever possible, each provision of this Amendment
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment is held to be prohibited
by or invalid under applicable law in any jurisdiction, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating any other provision of this Amendment.
6.6 Headings. Article, Section and ubsection headings in this
Amendment are included for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.
6.7 Counterparts. This Amendment may be executed in any number of
counterparts and by either party hereto on separate counterparts, each of which,
when so executed and delivered, shall be an original, but all such counterparts
shall together constitute one and the same instrument.
6.8 Integration. This Amendment sets forth the entire understanding
of the parties hereto with respect to all matters contemplated hereby and
supersedes all previous agreements and understandings among them concerning such
matters. No statements or agreements, oral or written, made prior to or at the
signing hereof, shall vary, waive or modify the written terms hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
THE COMPANY:
DARLING INTERNATIONAL INC.
By: /s/ John O. Muse
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Name: John O. Muse
Title: Executive Vice President--
Finance and Administration
PURCHASERS:
SOF INVESTMENTS, L.P.
By:
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Name:
Title:
WHITE TIP INVESTMENTS, LLC
By:
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Name:
Title:
DONATELLO INVESTMENTS, LLC
By:
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Name:
Title:
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