EXHIBIT 4.14
EXECUTION COPY
THIRD AMENDMENT dated as of December 8, 2003
(this "Amendment"), to the CREDIT AGREEMENT dated as
of October 11, 2001, as amended as of November 6,
2001, as further amended as of February 14, 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"), and JPMORGAN CHASE BANK (formerly known
as "The Chase Manhattan Bank"), as administrative
agent (in such capacity, the "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, a majority in interest of the Tranche
B Lenders and a majority in interest of the Tranche A 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
dated December 3, 2003, made available to the Lenders with
such changes as shall have been approved by the Administrative
Agent.
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`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' (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 Senior 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."
(iii) revising the definition of "Net Proceeds" by inserting
"other than in the case of the issuance of the Senior Second Lien
Notes," in clause (b)(i) thereof immediately preceding "all reasonable
fees and out-of-pocket expenses".
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(iv) revising the definition of "Prepayment Event" by (A)
deleting the word "or" at the end of clause (d), (B) replacing the
period at the end of clause (e) with "; or" and (C) inserting the
following clause (f):
"(f) the incurrence by the Borrower or any Restricted
Subsidiary of Indebtedness from the issuance of the Senior
Second Lien Notes."
(b) Amendment of Section 2.08. Section 2.08(d) is amended to
read as follows:
"(d) Any prepayment of a Tranche A Term Borrowing (other than
with the Net Proceeds of the issuance of the Senior Second Lien Notes)
or Tranche B Term Borrowing shall be applied to reduce the subsequent
scheduled repayments of the Borrowings of such Class to be made
pursuant to this Section ratably; provided that (i) any prepayment made
pursuant to Section 2.09(b) or (c) shall, if the Borrower so elects in
its notice given pursuant to Section 2.09(f), be applied, first, to
reduce all or any portion of the scheduled repayments of the Borrowings
of such Class to be made pursuant to this Section during the 12-month
period commencing on the prepayment date, ratably or in direct order of
maturity at the Borrower's option, until such scheduled repayments have
been eliminated, and, thereafter ratably to the remaining scheduled
repayments of Borrowings of such Class, and (ii) any prepayment of
Tranche A Term Borrowings with any portion of the Net Proceeds of the
issuance of the Senior Second Lien Notes shall be applied to reduce
scheduled repayments of such Tranche A Term Borrowings in direct order
of maturity. If the initial aggregate amount of the Lenders' Term
Commitments of any Class exceeds the aggregate principal amount of Term
Loans of such Class that are made on the Effective Date, then the
scheduled repayments of Borrowings of such Class to be made pursuant to
this Section shall be reduced ratably by an aggregate amount equal to
such excess. Repayments and prepayments of Borrowings shall be
accompanied by accrued interest on the amount repaid or prepaid, plus
amounts due under Section 2.14, if any."
(c) Amendment of Section 2.09. Section 2.09 is amended by:
(i) revising paragraph (d) thereof to read as follows:
"(d) Each mandatory and voluntary prepayment will be allocated
first to the Tranche C Term Borrowings, until such Borrowings have been
paid in full, and then to the Tranche A Term Borrowings and the Tranche
B Term Borrowings, pro rata in accordance with the outstanding amounts
thereof; provided, however, that notwithstanding the foregoing, the Net
Proceeds of the issuance of the Senior Second Lien Notes shall be
allocated to the prepayment of the Tranche A Term Borrowings and the
Tranche B Term Borrowings such that 70% of any such Net Proceeds are
allocated to the prepayment of Tranche A Term Borrowings and 30% of any
such Net Proceeds are allocated to the prepayment of Tranche B Term
Borrowings, and subject to the provisions of
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Section 2.09(e) regarding the rights of Tranche B Lenders to turn down
mandatory prepayments under certain circumstances."
(ii) revising paragraph (e) thereof to read as follows:
"(e) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the Borrower shall select (subject to paragraph
(d) above) the Borrowing or Borrowings to be prepaid and shall specify
such selection in the notice of such prepayment pursuant to paragraph
(f) of this Section. In the event of any optional or mandatory
prepayment of Borrowings made at a time when Borrowings of more than
one Class remain outstanding, other than in the case of any prepayment
of Tranche A Term Borrowings and Tranche B Term Borrowings with the Net
Proceeds of the issuance of the Senior Second Lien Notes, the Borrower
shall select Borrowings to be prepaid so that the aggregate amount of
such prepayment is allocated first, to Tranche C Term Borrowings, until
all such Borrowings have been paid in full, and thereafter to the
Tranche A Term Borrowings and the Tranche B Term Borrowings pro rata
based on the aggregate principal amount of outstanding Borrowings of
each such Class; provided that, to the extent Tranche A Term Borrowings
are outstanding, any Tranche B Lender may elect, by notice to the
Administrative Agent by telephone (confirmed by telecopy) at least one
Business Day prior to the prepayment date, to decline all or any
portion of any prepayment of its Tranche B Term Loans pursuant to this
Section (other than an optional prepayment pursuant to paragraph (a) of
this Section, which may not be declined), in which case the aggregate
amount of the prepayment that would have been applied to prepay Tranche
B Term Borrowings but was so declined shall be applied to prepay
Tranche A Term Borrowings (provided that such elections will be
effective only to the extent of the outstanding Tranche A Term
Borrowings available to be prepaid)."
(d) 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):
"(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."
(e) 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
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to the Liens securing the Obligations on the terms set forth in the
Intercreditor Agreement."
(f) 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)".
(g) 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 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, the Administrative Agent and the Collateral
Agent that, as of the Amendment Effective Date:
(a) This Amendment and the Intercreditor Agreement have 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
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(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, (ii) the Required Lenders, (iii) Tranche B
Lenders holding a majority in interest of the outstanding Tranche B Term Loans
and (iv) Tranche A Lenders holding a majority in interest of the outstanding
Tranche A Term Loans.
(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
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.
(d) The Administrative Agent shall have received counterparts
of the Intercreditor Agreement, executed on behalf of each party thereto.
(e) The Borrower shall have prepaid Tranche A Term Loans in an
aggregate principal amount equal to 70% of the Net Proceeds from the issuance
and sale of the Senior Second Lien Notes and prepaid Tranche B Term Loans in an
aggregate principal amount equal to 30% of the Net Proceeds from the issuance
and sale of the Senior Second Lien Notes.
(f) The Related Credit Facility shall have been or shall
simultaneously be amended in a manner reasonably satisfactory to the
Administrative Agent to permit the
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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.
(g) The Administrative Agent shall have received all fees and
other amounts due from any Loan Party hereunder, under the Credit Agreement or
any other Loan Document or as separately agreed upon between the Borrower and
the Administrative Agent 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, 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.
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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:
SIGNATURE PAGE TO
THIRD AMENDMENT
TO THE LAND O'LAKES CREDIT AGREEMENT
DATED AS OF OCTOBER 11, 2001, AS AMENDED
To approve Third Amendment:
Name of Institution:
____________________________________
by _________________________________
Name:
Title: