Second Amendment to Credit Agreement

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EX-4.6 3 c24006exv4w6.htm SECOND AMENDMENT TO CREDIT AGREEMENT exv4w6
 

Exhibit 4.6
Execution Copy
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
     THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this “Amendment”), is made and entered into as of December 28, 2007, by and among CORN PRODUCTS INTERNATIONAL, INC., a Delaware corporation (the “U.S. Borrower”), CANADA STARCH OPERATING COMPANY INC., a company constituted under the federal laws of Canada (the “Canadian Borrower”; together with the U.S. Borrower, each individually a “Borrower” and collectively the “Borrowers”), the several banks and other financial institutions and lenders from time to time party hereto (collectively, the “Lenders”), BANK OF MONTREAL, as Canadian Funding Agent for the Canadian Lenders (the “Canadian Funding Agent”), as issuing bank under the Canadian Facility (the “Canadian Issuing Bank”) and as swing line lender under the Canadian Facility (the “Canadian Swing Line Lender”), and SUNTRUST BANK, in its capacity as administrative agent for the Lenders (the “Administrative Agent”), as issuing bank under the U.S. Facility (the “U.S. Issuing Bank”) and as swing line lender under the U.S. Facility (the “U.S. Swing Line Lender”).
WITNESSETH:
     WHEREAS, the Borrowers, the Lenders, the Canadian Funding Agent and the Administrative Agent are parties to a certain Revolving Credit Agreement, dated as of April 26, 2006, as amended by that First Amendment to Revolving Credit Agreement dated as of October 30, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement), pursuant to which the Lenders have made certain financial accommodations available to the Borrowers;
     WHEREAS, the Borrowers have requested that the Lenders and the Administrative Agent amend certain provisions of the Credit Agreement, and subject to the terms and conditions hereof, the Lenders are willing to do so;
     NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of all of which are acknowledged, the Borrowers, the Lenders and the Administrative Agent agree as follows:
     Amendments.
     Section 8.5 of the Credit Agreement is hereby amended by (i) renumbering the current subsection (v) as subsection (vi) and (ii) inserting the following new subsection (v) immediately prior to the subsection renumbered as subsection (vi):
     (v) non-recourse sales, transfers and other dispositions of accounts receivable at discounts reflective of prevailing local market rates provided the aggregate amount of all such sales, transfers and other dispositions of accounts

 


 

receivable in any month does not to exceed 25% of the prior month end consolidated accounts receivable of the Borrowers and their Subsidiaries, and
     Conditions to Effectiveness of this Amendment. Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective, and the Borrowers shall have no rights under this Amendment, until the Administrative Agent shall have received executed counterparts to this Amendment from the Borrowers and the Required Lenders.
     Representations and Warranties. To induce the Lenders and the Administrative Agent to enter into this Amendment, each Loan Party hereby represents and warrants to the Lenders and the Administrative Agent:
     (a) Each Borrower and each of its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite power and authority to carry on its business as now conducted;
     (b) The execution, delivery and performance by the Borrowers of this Agreement and the other Loan Documents, and the consummation of the transactions contemplated hereby, are within each Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) any Borrower’s charter or by-laws or (ii) any law or contractual restriction binding on or affecting any Borrower;
     (c) The execution, delivery and performance by each Borrower of this Agreement and of the other Loan Documents to which it is a party (a) do not require any consent or approval of, registration or filing with, or any action by, any governmental authority, except those as have been obtained or made and are in full force and effect, (b) will not violate any requirements of law applicable to any Borrower or any of its Subsidiaries or any judgment, order or ruling of any governmental authority, (c) will not violate or result in a default under any indenture, material agreement or other material instrument binding on any Borrower or any of its Subsidiaries or any of its assets or give rise to a right thereunder to require any payment to be made by any Borrower or any of its Subsidiaries and (d) will not result in the creation or imposition of any Lien on any asset of any Borrower or any of its Subsidiaries;
     (d) This Amendment has been duly executed and delivered and constitutes a legal, valid and binding obligation of each Borrower, enforceable against each Borrower in accordance with its terms except as the enforceability hereof may be limited by bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally; and
     (e) After giving effect to this Amendment, the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects, and no Default or Event of Default has occurred and is continuing as of the date hereof.
     Reaffirmation of Parent Guaranty. The U.S. Borrower consents to the execution and delivery by the Canadian Borrower of this Amendment and jointly and severally ratify and

 


 

confirm the terms of the Parent Guaranty Agreement with respect to the indebtedness now or hereafter outstanding under the Credit Agreement as amended hereby and all promissory notes issued thereunder. The U.S. Borrower acknowledges that, notwithstanding anything to the contrary contained herein or in any other document evidencing any indebtedness of the Canadian Borrower to the Lenders or any other obligation of the Canadian Borrower, or any actions now or hereafter taken by the Lenders with respect to any obligation of the Canadian Borrower, the Parent Guaranty Agreement (i) is and shall continue to be a primary obligation of the U.S. Borrower, (ii) is and shall continue to be an absolute, unconditional, joint and several, continuing and irrevocable guaranty of payment, and (iii) is and shall continue to be in full force and effect in accordance with its terms. Nothing contained herein to the contrary shall release, discharge, modify, change or affect the original liability of the U.S. Borrower under the Parent Guaranty Agreement.
     Effect of Amendment. Except as set forth expressly herein, all terms of the Credit Agreement, as amended hereby, and the other Loan Documents shall be and remain in full force and effect and shall constitute the legal, valid, binding and enforceable obligations of the Borrowers to the Lenders and the Administrative Agent. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement. This Amendment shall constitute a Loan Document for all purposes of the Credit Agreement.
     Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York and all applicable federal laws of the United States of America.
     No Novation. This Amendment is not intended by the parties to be, and shall not be construed to be, a novation of the Credit Agreement or an accord and satisfaction in regard thereto.
     Costs and Expenses. The Borrowers agree to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including, without limitation, the reasonable fees and out-of-pocket expenses of outside counsel for the Administrative Agent with respect thereto.
     Counterparts. This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be as effective as delivery of a manually executed counterpart hereof.
     Binding Nature. This Amendment shall be binding upon and inure to the benefit of the parties hereto, their respective successors, successors-in-titles, and assigns.

 


 

     Entire Understanding. This Amendment sets forth the entire understanding of the parties with respect to the matters set forth herein, and shall supersede any prior negotiations or agreements, whether written or oral, with respect thereto.

 


 

     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, under seal in the case of the Borrowers, by their respective authorized officers as of the day and year first above written.
         
  CORN PRODUCTS INTERNATIONAL, INC.,
as U.S. Borrower

 
 
  By:   /s/ CHERYL K. BEEBE    
    Name:   Cheryl K. Beebe   
    Title:   Vice President and Chief Financial Officer   
 
     
  By:   /s/ KIMBERLY A. HUNTER    
    Name:   Kimberly A. Hunter   
    Title:   Treasurer   
 
  CANADA STARCH OPERATING COMPANY
INC., as Canadian Borrower

 
 
  By:   /s/ CHERYL K. BEEBE    
    Name:   Cheryl K. Beebe   
    Title:   Vice President and Chief Financial Officer of Corn Products International, Inc., Authorized Signatory of Canada Starch Operating Company Inc.   
 
     
  By:   /s/ KIMBERLY A. HUNTER    
    Name:   Kimberly A. Hunter   
    Title:   Treasury of Corn Products International,
Inc., Authorized Signatory of Canada Starch Operating Company Inc. 
 
 
Signature Page to Second Amendment to Revolving Credit Agreement

 


 

         
  SUNTRUST BANK, as Lender, Administrative
Agent, U.S. Issuing Bank and U.S. Swing Line Lender

 
 
  By:   /s/ JEAN-PAUL PURDY    
    Name:   Jean-Paul Purdy   
    Title:   Director   
Signature Page to Second Amendment to Revolving Credit Agreement

 


 

         
  BANK OF MONTREAL, as Lender, Canadian Funding Agent, Canadian Issuing Bank and Canadian Swing Line Lender

 
 
  By:   /s/ MARTIN STEVENSON    
    Name:   Martin Stevenson   
    Title:   Vice President   
 
Signature Page to Second Amendment to Revolving Credit Agreement

 


 

         
  HARRIS N.A., as Lender and Syndication Agent

 
 
  By:   /s/ ROBERT H. WOLOHAN    
    Name:   Robert H. Wolohan   
    Title:   Vice President   
 
Signature Page to Second Amendment to Revolving Credit Agreement

 


 

         
  ING CAPITAL LLC, as Lender and Co-Documentation Agent

 
 
  By:   /s/ BILL REDMOND    
    Name:   Bill Redmond   
    Title:   Managing Director   
 
Signature Page to Second Amendment to Revolving Credit Agreement

 


 

         
  COÖPERATIEVE CENTRALE RAIFFEISEN BOERENLEENBANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK BRANCH, as Lender and Co-Documentation Agent

 
 
  By:   /s/ PETER GLAWE    
    Name:   Peter Glawe   
    Title:   Vice President   
 
     
  By:   /s/ ANDREW SHERMAN    
    Name:   Andrew Sherman   
    Title:   Executive Director   
 
  RABOBANK NEDERLAND CANADIAN BRANCH, as Lender

 
 
  By:   /s/ CRAIG SQUIRES    
    Name:   Craig Squires   
    Title:   Vice President   
 
     
  By:   /s/ JASON HOOGENBOOM    
    Name:   Jason Hoogenboom   
    Title:   Vice President   

 


 

         
         
  AGFIRST FARM CREDIT BANK, as Lender and Co-Documentation Agent

 
 
  By:   /s/ JOHN W. BURNSIDE, JR.    
    Name:   John W. Burnside, Jr.   
    Title:   Vice President   

 


 

         
         
  BANK OF AMERICA, N.A. as Lender

 
 
  By:   /s/ ROBERT STAPLETON    
    Name:   Robert Stapleton   
    Title:   Senior Vice President   

 


 

         
         
  BANK OF CHINA, NEW YORK BRANCH, as Lender

 
 
  By:   /s/ WILLIAM W. SMITH    
    Name:   William W. Smith   
    Title:   Deputy General Manager   

 


 

         
         
  BANK OF CHINA, LOS ANGELES BRANCH, as Lender

 
 
  By:   /s/ XIAO WANG    
    Name:   Xiao Wang   
    Title:   Branch Manager   

 


 

         
  THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND, as Lender

 
 
  By:   /s/ JENNIFER LYONS    
    Name:   Jennifer Lyons   
    Title:   Authorised Signatory   
 
     
  By:   /s/ ELAINE CROWLEY    
    Name:   Elaine Crowley   
    Title:   Authorised Signatory   

 


 

         
         
  COBANK, ACB, as Lender

 
 
  By:   /s/ JEFF NORTE    
    Name:   Jeff Norte   
    Title:   VP   

 


 

         
         
  FARM CREDIT BANK OF TEXAS, as Lender

 
 
  By:   /s/ ERIC J. PAUL    
    Name:   Eric J. Paul   
    Title:   Managing Director   

 


 

         
         
  LASALLE BANK N.A., as Lender

 
 
  By:   /s/ ROBERT STAPLETON    
    Name:   Robert Stapleton   
    Title:   Senior Vice President   

 


 

         
         
  MIZUHO CORPORATE BANK, LTD., as Lender

 
 
  By:   /s/ HIDEKATSU TAKE    
    Name:   Hidekatsu Take   
    Title:   Deputy General Manager   

 


 

         
         
  NATIONAL CITY BANK OF THE MIDWEST, as Lender

 
 
  By:   /s/ MICHAEL LEONG    
    Name:   Michael Leong   
    Title:   Vice President   

 


 

         
         
  U.S. BANK NATIONAL ASSOCIATION, as Lender

 
 
  By:   /s/ JAMES N. DEVRIES    
    Name:   James N. DeVries   
    Title:   Senior Vice President   

 


 

         
         
  THE BANK OF NEW YORK, as Lender

 
 
  By:   /s/ DANIEL J. LENCKOS    
    Name:   Daniel J. Lenckos   
    Title:   Vice President   

 


 

         
         
  FARM CREDIT SERVICES OF AMERICA, PCA, as Lender

 
 
  By:   /s/ BRUCE P. ROUSE    
    Name:   Bruce P. Rouse   
    Title:   Vice President   

 


 

         
         
  FIFTH THIRD BANK (CHICAGO), A MICHIGAN BANKING CORPORATION, as Lender

 
 
  By:   /s/ JOSEPH A. WEMHOFF    
    Name:   Joseph A. Wemhoff   
    Title:   Vice President   

 


 

         
         
  GREENSTONE FARM CREDIT SERVICES, ACA/FLCA, as Lender

 
 
  By:   /s/ BEN MAHLICH    
    Name:   Ben Mahlich   
    Title:   Assistant Vice President/Lending Officer   

 


 

         
         
  THE NORTHERN TRUST COMPANY, as Lender

 
 
  By:   /s/ KEITH BURSON    
    Name:   Keith Burson   
    Title:   Vice President   

 


 

         
         
  WELLS FARGO BANK, N.A., as Lender

 
 
  By:   /s/ DANIEL R. VAN ALEN    
    Name:   Daniel R. Van Alen   
    Title:   Vice President   

 


 

         
         
  1ST FARM CREDIT SERVICES, PCA, as Lender

 
 
  By:   /s/ DALE A RICHARDSON    
    Name:   Dale A. Richardson   
    Title:   VP Illinois Capital Markets Group   

 


 

         
         
  THE BANK OF NOVA SCOTIA, as Lender

 
 
  By:   /s/ PAUL ROSTRUP    
    Name:   Paul Rostrup   
    Title:   Senior Manager   

 


 

         
         
  THE BANK OF NOVA SCOTIA, as Lender

 
 
  By:   /s/ J.F. TODD    
    Name:   J. F. Todd   
    Title:   Managing Director   
 
Signature Page to Second Amendment to Revolving Credit Agreement