THIRD AMENDMENT TO THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

Reference is made to that certain Second Amended and Restated Credit Agreement dated as of January 6, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”) among the Parent Borrower, the other Borrowers party thereto, the Lenders party thereto from time to time, the Administrative Agent and the other agents part thereto. The Borrowers, the Administrative Agent and the Required Lenders party hereto now desire to amend the Credit Agreement as herein set forth.

Section 1. Definitions. Capitalized terms used in this Amendment, to the extent not otherwise defined herein, shall have the same meanings as in the Credit Agreement, as amended hereby.

Section 2. Amendment to the Credit Agreement. Clause (b) of the definition of “Change in Control” set forth in the Credit Agreement is hereby amended and restated in its entirety as follows:

Section 3.1.    Representations and Warranties. The Borrowers represent and warrant that:

(b) at the time of and immediately after giving effect to this Amendment and any extension of credit to be made on the Amendment Effective Date, no Default has occurred and is continuing;

(c) the execution, delivery and performance of this Amendment and the transactions contemplated hereby are within each Borrower’s organizational power and have been duly authorized by all necessary corporate or other organizational action. This Amendment has been duly executed and delivered by each Borrower and constitutes a legal, valid and binding obligation of such Borrower (as the case may be), enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, capital impairment, recognition of judgments, recognition of choice of law, enforcement of judgments or other laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;

Section 4.1. Conditions. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) when each of the following conditions shall have been satisfied:

(a)the Administrative Agent (or its counsel) shall have received from each party hereto (including the Required Lenders) either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy, portable document format (.pdf) or email transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;

(b)no Default or Event of Default shall have occurred and be continuing or shall result from any extension of credit requested to be made on the Amendment Effective Date;

(c)the Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Responsible Officer of the Parent Borrower, confirming compliance with the conditions set forth in clause (b) of this Section 4.1 and that each of the representations and warranties made by any Loan Party contained in Section 3.1 above shall be true and correct on and as of the Amendment Effective Date after giving effect to the Amendment and to any extension of credit requested to be made on the Amendment Effective Date with the

same effect as though such representations and warranties had been made on and as of such date; and

(d)     to the extent invoiced at least one (1) Business Day prior to the Amendment Effective Date, the Administrative Agent shall have received all amounts due and payable to it or its Affiliates on or prior to the Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all of such Persons’ reasonable out‑of‑pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.

Section 5.1.    Confirmation of Guarantees and Security Interests. By signing this Amendment, each Borrower hereby confirms on behalf of itself and its Subsidiaries that are Loan Parties that (a) the obligations of the Loan Parties under the Credit Agreement as modified hereby and the other Loan Documents (i) are entitled to the benefits of the guarantees and the security interests set forth or created in the Guarantee Agreement, the relevant Security Documents delivered prior to the date hereof and the other Loan Documents, and (ii) constitute Obligations for purposes of the Credit Agreement, the Guaranty Agreements and the Security Agreement and all other relevant Security Documents delivered prior to the date hereof and (b) notwithstanding the effectiveness of the terms hereof, the Guaranty Agreements, the relevant Security Documents delivered prior to the date hereof and the other Loan Documents are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects. Each Borrower ratifies and confirms on behalf of itself and its Subsidiaries that are Loan Parties that all Liens granted, conveyed, or assigned to the Administrative Agent by such Person pursuant to each relevant Loan Document delivered prior to the date hereof to which it is a party remain in full force and effect, are not released or reduced, and continue to secure full payment and performance of the Obligations, as may be increased hereby.

Section 5.2.    Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Credit Agreement and except as expressly modified and superseded by this Amendment, the terms and provisions of the Credit Agreement and the other relevant Loan Documents delivered prior to the date hereof are ratified and confirmed and shall continue in full force and effect. The Parent Borrower, each other Borrower, the Lenders party hereto and the Administrative Agent agree that the Credit Agreement as amended hereby and the other relevant Loan Documents delivered prior to the date hereof shall continue to be legal, valid, binding and enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, capital impairment, recognition of judgments, recognition of choice of law, enforcement of judgments or other laws affecting creditors rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in law or equity. For all matters arising prior to the effective date of this Amendment, the terms of the Credit Agreement (as unmodified by this Amendment) shall control and are hereby ratified and confirmed.

Section 5.3.    Reference to Credit Agreement. Each of the Loan Documents, including the Credit Agreement and any and all other agreements, documents, or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Credit Agreement as amended hereby, are hereby amended so that any reference in such Loan Documents to the Credit Agreement shall mean a reference to the Credit Agreement, as amended hereby. This Amendment is a “Loan Document” as defined in the Credit Agreement. For purposes of determining withholding Taxes imposed under FATCA, from and after the Amendment Effective Date, the Lenders and the Borrowers agree that the

Section 5.4.    Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

Section 5.5.    Applicable Law. This Amendment shall be construed in accordance with and governed by the law of the State of New York.

Section 5.6.    Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of the Lenders, the Administrative Agent and each Borrower and their respective successors and assigns, except the Borrowers may not assign or transfer any of their rights or obligations hereunder except in compliance with the Credit Agreement, as amended hereby.

Section 5.7.    Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. THIS AMENDMENT EMBODIES THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL PREVIOUS COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO. This Amendment shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of the Borrowers and each of the Required Lenders. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or in "pdf', “.tif” or similar format by electronic mail shall be effective as delivery of a manually executed counterpart of this Amendment.

Section 5.8.    Effect of Waiver. No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.

Section 5.9.    Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.

Executed as of the date first written above.

DARLING INGREDIENTS INC.

DARLING INTERNATIONAL

CANADA INC.

By: /s/ John O. Muse            

Name:    John O. Muse

Title:    Executive Vice President and Chief Financial

Officer

DARLING INTERNATIONAL NL

HOLDINGS B.V.

By: /s/ John O. Muse            

Name:    John O. Muse

Title:    Director

By: /s/ Johan Roijmans            

Name:    Johan Roijmans

Title:    Director

DARLING INGREDIENTS

INTERNATIONAL HOLDING B.V.

By: /s/ Johan Roijmans            

Name:    Johan Roijmans

Title:    Proxyholder

DARLING INGREDIENTS

INTERNATIONAL FINANCIAL

SERVICES B.V.

By: /s/ Johan Roijmans            

Name:    Johan Roijmans

Title:    Director

CTH GERMANY GMBH

By: /s/ Erwin Werner            

Name:    Erwin Werner

Title:    Director

JPMORGAN CHASE BANK, N.A, as Administrative

Agent and as a Lender

By: /s/ Gregory T. Martin        

Name:    Gregory T. Martin

Title:    Executive Director

        

    

1st Farm Credit Services, PCA

By: /s/ Corey J. Waldinger        

Name:    Corey J. Waldinger

Title:    Vice President, Capital Markets Group

Amegy Bank N.A.

By: /s/ Daniel L. Cox            

Name:    Daniel L. Cox

Title:    Senior Vice President

AZB Funding 4 Limited

By: /s/ Masaki Onuma            

Name:    Masaki Onuma

Title:    Authorized Signatory

Bank of America, N.A. (Canada branch)

By: /s/ Medina Sales de Andrade    

Name:    Medina Sales de Andrade

Title:    Vice President

BANK OF AMERICA, N.A.

By: /s/ Allison W. Connally        

Name:    Allison W. Connally

Title:    Senior Vice President

Bank of Montreal

By: /s/ Sean P. Gallaway        

Name:    Sean P. Gallaway

Title:    Vice President

By: /s/ Mark Piekos            

Name:    Mark Piekos

Title:    Managing Director

BANK OF THE WEST

By: /s/ Mitchell Sanders        

Name:    Mitchell Sanders

Title:    Vice President

Branch Banking and Trust Company

By: /s/ Bradford F. Scott        

Name:    Bradford F. Scott

Title:    Senior Vice President

Citibank, N.A.

By: /s/ Patrick R. Keller        

Name:    Patrick R. Keller

Title:    MCD

COBANK, ACB

By: /s/ Zachary Carpenter        

Name:    Zachary Carpenter

Title:    Vice President

COMERICA BANK

By: /s/ Jason Baker            

Name:    Jason Baker

Title:    Vice President

Commerce Bank

By: /s/ Nick R. Warren            

Name:    Nick R. Warren

Title:    Senior Vice President

Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A.

"Rabobank Nederland", New York Branch

By: /s/ Pamela Beal            

Name:    Pamela Beal

Title:    Executive Director

By: /s/ Robert M. Mandula        

Name:    Robert M. Mandula

Title:    Managing Director

FARM CREDIT BANK OF TEXAS

By: /s/ Ria Estrada            

Name:    Ria Estrada

Title:    Manager

Farm Credit East, ACA

By: /s/ Justin A. Brown            

Name:    Justin A. Brown

Title:    Vice President

FCCI Insurance Company

By: /s/ Kathleen News            

Name:    Kathleen News

Title:    Sr. Portfolio Manager

Fifth Third Bank

By: /s/ Francisco Gonzalez            

Name:    Francisco Gonzalez

Title:    Assistant Vice President

GOLDMAN SACHS BANK USA

By: /s/ Jamie Minieri            

Name:    JAMIE MINIERI

Title:    AUTHORIZED SIGNATORY

GOLDMAN SACHS LENDING PARTNERS LLC

By: /s/ Jamie Minieri            

Name:    JAMIE MINIERI

Title:    AUTHORIZED SIGNATORY

Hastings Mutual Insurance Company

By: /s/ Kathleen News            

Name:    Kathleen News

Title:    Sr. Portfolio Manager

ING Capital LLC

By: /s/ W. Leroy Startz            

Name:    W. Leroy Startz

Title:    Director

By: /s/ Daniel Lamprecht        

Name:    Daniel Lamprecht

Title:    Managing Director

JPMORGAN CHASE BANK, N.A., TORONTO

BRANCH, as a Lender

By: /s/ Michael N. Tam            

Name:    Michael N. Tam

Title:    Senior Vice President

MEDIOBANCA INTERNATIONAL (LUXEMBOURG) S.A.

By: /s/ Livio Winteler            

Name:    Livio Winteler

Title:    Director

By: /s/ Stefano Biondi            

Name:    Stefano Biondi

Title:    Managing Director

MUFG Union Bank, N.A., formerly known as Union Bank, NA

By: /s/ Mark Maloney            

Name:    Mark Maloney

Title:    Authorized Signatory

PNC BANK CANADA BRANCH

By: /s/ Caroline Stade            

Name:    Caroline Stade

Title:    Senior Vice President

PNC Bank Canada Branch

PNC BANK, NATIONAL ASSOCIATION

By: /s/ Christian S. Brown            

Name:    Christian S. Brown

Title:    Managing Director

STIFEL BANK & TRUST

By: /s/ Matthew L. Diehl            

Name:    Matthew L. Diehl

Title:    Senior Vice President

    

SUMITOMO MITSUI BANKING CORPORATION

By: /s/ David W. Kee            

Name:    David W. Kee

Title:    Managing Director

    

Sumitomo Mitsui Trust Bank, Limited, New York Branch

By: /s/ Mark Bodie            

Name:    Mark Bodie

Title:    Senior Director

    

TD Bank, N.A.

By: /s/ Alan Garson            

Name:    Alan Garson

Title:    Senior Vice President

    

UNION BANK, CANADA BRANCH

By: /s/ Anne Collins            

Name:    Anne Collins

Title:    Director

    

UNITED FCS, PCA, d/b/a FCS COMMERCIAL

FINANCE GROUP

By: /s/ Dan Best            

Name:    Dan Best

Title:    Vice President