NINTH AMENDMENT TO CREDIT AGREEMENT
This Ninth Amendment to Credit Agreement (“ Amendment
”) is made as of May 14, 2009, by and among U.S. PREMIUM
BEEF, LLC, a Delaware limited liability company (together with its
successors and assigns, the “ Borrower ”), and
COBANK, ACB, an agricultural credit bank (“ CoBank
”), as Agent (in such capacity, the “ Agent
”) and as the sole Syndication Party as of the date of this
Amendment.
RECITAL
This Amendment is made with respect to the Credit Agreement (Term
Loan) dated as of November 25, 1997 (as 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 parties desire to re-advance amounts of
the Loan from time to time up to $13,000,000 in the aggregate
outstanding and to otherwise amend certain provisions of the
Agreement.
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 Borrower, the
parties agree as follows:
1. Borrower is
presently indebted under the Loan in the amount $2,316,763.34 (said
existing indebtedness may sometimes be referred to herein as
“ Tranche A ” of the Loan). All terms of
the Agreement relating to Tranche A of the Loan, including but not
limited to the accrual and repayment of interest and the repayment
of principal shall not be affected by this Amendment.
2. Subject to the
conditions set forth in Section 9 hereof and Sections 11.1.12,
11.1.23, 11.2.1, 11.2.9 and 11.2.10 and 11.3 of the Agreement, but
otherwise the terms of the Agreement to the contrary
notwithstanding, the Syndication Parties agree, each as to their
Syndication Share to, in addition to Tranche A of the Loan, to
re-advance amounts of the Loan previously repaid, from time to time
through the Maturity Date, up to the initial amount of $13,000,000,
reducing to $10,000,000 on May 31, 2010, in the aggregate
outstanding (said re-advances may sometimes be referred to herein
as “ Tranche B ” of the Loan). Amounts
re-advanced and repaid under Tranche B of the Loan may be again
re-advanced, provided that at no time shall the aggregate amount
outstanding under Tranche B of the Loan exceed in the initial
amount of $13,000,000, reducing to $10,000,000 on May 31,
2010. As of the date of this Amendment the Syndication Share
of CoBank is 100%. Amounts re-advanced and repaid under
Tranche B of the Loan may be used by Borrower for working capital
and for general corporate purposes. Notwithstanding the
foregoing, during at least 30 consecutive days during each calendar
year the amount outstanding under Tranche B of the Loan shall be
$0. The Aggregate Commitment shall be in the initial amount
of $15,316,763.34, reducing to $11,287,090.78 on May 31,
2010. The amount set forth in the Note payable to CoBank
shall be deemed to read $15,316,763.34 and the Agreement (as
amended by this Amendment) shall govern and control over any
contrary terms of the Note.
3. Terms of the
Agreement to the contrary notwithstanding, as to Tranche B of the
Loan the Maturity Date shall be July 1, 2011. If not due
sooner by reason of acceleration, the principal amount outstanding
under Tranche B of the Loan together with any unpaid interest
accrued thereon, shall be due and payable on said Maturity
Date.
4. Terms of the
Agreement to the contrary notwithstanding, as to Tranche B of the
Loan, interest shall accrue and be payable as follows:
(a) Advances may be
maintained as Base Rate Advances or LIBOR Rate Advances according
to the same terms and procedures as are set forth in the Sixth
Amended and Restated Credit Agreement made as of the 25th day of
July, 2007, as amended by the First and Second Amendments thereto
(but not as may be subsequently amended unless agreed by the
appropriate parties to this Agreement) by and among National Beef
Packing Company, LLC, a Delaware limited liability company (“
National Beef ”), and the other financial institutions
signatory thereto (the “ National Beef Agreement
”), except (a) each request for an advance shall be in a
minimum amount of $25,000 and an integral multiple of $25,000 and
(b) any request for a LIBOR Rate Advance must be given by Borrower
no later than 11:00 a.m. mountain time on the Business Day prior to
the date of any proposed LIBOR Rate Advance;
(b) For purposes of
determining Applicable Margin (but for no other purpose), Borrowing
Base Availability shall have the meaning assigned to it in the
National Beef Agreement;
(c) Applicable Margin
shall have the meaning assigned to it in the National Beef
Agreement for Line of Credit Loans to National Beef with reference
to the Borrowing Base Availability of National Beef, plus, in each
case one quarter of one percent (0.25%) ;
(d) Interest on Advances
that are maintained as Base Rate Advances shall be accrued and
shall be payable in the same manner and according to the same terms
as set forth for Base Rate Advances under the National Beef
Agreement (making reference to the Base Rate as defined in the
National Beef Agreement and the Applicable Margin), except (a) it
shall be calculated with the interest rate being converted to a
daily rate on the basis of a year consisting of 360 day
