Unassociated Document


    EXHIBIT
      10.1(a)

    
 

    FOURTH
      AMENDMENT AND WAIVER AGREEMENT

    


    TO

     

    AMENDED
      AND RESTATED NOTE

    PURCHASE
      AGREEMENT

    DATED
      AS OF SEPTEMBER 30, 2003

     

    THIS
      FOURTH AMENDMENT AND WAIVER AGREEMENT (this “Agreement”),
      dated
      as of March 1, 2007, among Cal-Maine Foods, Inc. (the “Company”)
      and
      Cal-Maine Partnership, LTD (the “Partnership”
and
      with the Company, the “Borrowers”)
      and
      John Hancock Life Insurance Company and John Hancock Variable Life Insurance
      Company (collectively, the “Purchasers”)
      is
      with respect to the Amended and Restated Note Purchase Agreement dated as of
      September 30, 2003 (as amended by the First Amendment and Waiver Agreement
      dated
      as of November 30, 2003, a Second Amendment Agreement dated as of
      January 26, 2004, a Third Amendment Agreement dated as of August 2, 2004
      and a letter agreement dated August 24, 2005, the “Note
      Agreement”)
      pursuant to which the Borrowers have outstanding their Series A Secured Notes
      due September 1, 2014, their Series B Secured Notes due September 1, 2014 and
      their Series C Secured Notes due September 1, 2014 (collectively, the
“Notes”).
      As of
      the date of this Agreement, the Purchasers are the holders of 100% of the
      outstanding principal amount of the Notes.

     

    The
      Borrowers have requested that the Purchasers consent to the amendments and
      waivers to the Note Agreement set forth in this Agreement.

     

    The
      Purchasers are willing to do so on, and subject to, the terms and conditions
      of
      this Agreement.

     

    Terms
      not
      otherwise defined in this Agreement have the meanings given therefor in the
      Note
      Agreement.

     

    NOW,
      THEREFORE, the parties agree:

     

    1.  AMENDMENTS
      TO NOTE AGREEMENT.
      Subject
      to the satisfaction of the conditions set forth in
      Section 3,
      from
      and after the date of this Agreement:

     

    (a)  Consolidated
      Capital Expenditure to Depreciation Ratio. Clause
      (v) of paragraph 6A of the Note Agreement is amended and restated as
      follows:

     

    “(v)
      Consolidated
      Capital Expenditure to Depreciation Ratio. Permit,
      as of the last day of any Fiscal Quarter, the ratio of (a) the aggregate
      Consolidated Capital Expenditures for the four Fiscal Quarters then ended less
      any Excluded Capital Expenditures made in such period to (b) the aggregate
      amount of depreciation of the Company and its Subsidiaries determined on a
      consolidated basis in accordance with GAAP for such four Fiscal Quarters, to
      exceed 1.25 to 1.00.”

    


    (b)  Debt;
      Guaranties of Debt. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (i)  Clause
      (i) of paragraph 6H of the Note Agreement is amended and restated as
      follows:

     

    “(i)
      The
      Borrowers will not, and will not permit any Subsidiary to, create, incur or
      assume any Debt after the Closing Date or issue any Equity Interest convertible
      or exchangeable into Debt of a Borrower or any Subsidiary unless (a) no Default
      or Event of Default has then occurred which is then continuing, (b) no Default
      or Event of Default would reasonably be anticipated to result therefrom, and
      (c)
      on a pro forma basis, after giving effect to the incurrence of such Debt, the
      Borrowers would be in compliance with their financial covenants set forth in
      paragraph
      6A,
      provided,
      however,
      (1) in
      no event will Hillandale be permitted to incur or permit to remain outstanding
      any Debt after the date of the Fourth Amendment other than (A) Debt owed to
      a
      Borrower or another Subsidiary provided
      the
      aggregate principal amount of all Debt owed to the Borrowers and the
      Subsidiaries shall not at any time exceed $10,000,000, (B) the Hillandale Term
      Loan, (C) Debt owed to Farm Credit of North Florida in an aggregate principal
      amount not exceeding $2,625,000, (D) Debt owed to Mercantile Bank in an
      aggregate principal amount not exceeding $258,476.38 and (E) other Debt not
      exceeding at any time $2,000,000 in the aggregate, and (2) in no event will
      American Egg be permitted to incur or permit to remain outstanding any Debt
      after the date of the Fourth Amendment other than (A) debt owed to a Borrower
      or
      another Subsidiary provided
      the
      aggregate principal amount of all Debt owed to the Borrowers and the
      Subsidiaries shall not at any time exceed $2,000,000 and (B) other Debt not
      exceeding at any time $100,000 in the aggregate.”; and 

    


    (ii)  A
      new
      clause (iii) is added to paragraph 6H of the Note Agreement as
      follows:

     

    “(iii)
       Notwithstanding
      clause (i) above, the Borrowers will not, and will not permit any Subsidiary
      to,
      create, incur, assume or permit to remain outstanding any Guarantee of any
      obligations of Person not a Wholly-Owned Subsidiary which has executed a
      Subsidiary Guarantee other than (a) by reason of endorsement of negotiable
      instruments for deposit or collection or similar transactions in the ordinary
      course of business; (b) the Hillandale Term Loan; (c) a Guaranty by the Company
      of Debt of Delta Egg Farm LLC provided the aggregate liability of the Company
      under such Guaranty shall not at any time exceed $10,800,000 and (d) Guarantees
      by the Company of obligations of Hillandale for borrowed money provided the
      aggregate liability of the Company under such Guarantees shall not at any time
      exceed $2,000,000.”

    


    (c)  Definitions.

     

    (i)  The
      following definitions are added to paragraph 10B of the Note Agreement in
      correct alphabetical order:

     

    “American
      Egg”
means
      American Egg Products LLC, a Georgia limited liability company. 

    


    “Excluded
      Capital Expenditures”
means
      the following expenditures to the extent they would otherwise be included in
      Consolidated Capital Expenditures: (i) expenditures for rolling stock; (ii)
      expenditures in an aggregate amount not to exceed $50,000,000 made to acquire
      the membership interest in Hillandale; (iii) expenditures in an aggregate amount
      not to exceed $15,000,000 made to construct and acquire: (A) a plant constructed
      by the Company for the processing and disposal of spent hens in Waelder, Texas
      and (B) a plant constructed by the Company for the breaking and processing
      of
      shell eggs in Waelder, Texas; and (iv) expenditures by Green Forest Foods,
      LLC
      in an aggregate amount not to exceed $10,500,000 made to acquire certain assets
      which were previously leased by Green Forest Foods, LLC under one or more
      operating leases.”

    


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

       

    

    “Fourth
      Amendment”
means
      the Fourth Amendment and Waiver Agreement to this Agreement dated as of March
      1,
      2007.

    


    “Hillandale”
means
      Hillandale LLC, a Florida limited liability company.

    


    “Hillandale
      Term Loan”
means
      the term loan in the aggregate principal amount of $28,000,000 made to the
      Company and Hillandale as co-borrowers by Metropolitan Life Insurance Company
      pursuant to a loan agreement dated as of October 12, 2005.

    


    (ii)  the
      following definitions in paragraph 10B are amended and restated:

     

    “Collateral”
means
      the “Collateral” as defined in each Security Agreement executed or required to
      be executed pursuant to this Agreement and the “Mortgaged Property” as defined
      in each Mortgage executed or required to be executed pursuant to this
      Agreement.

    


    “Consolidated
      Net Income”
means
      for any period for which it is to be determined, the Net Income of the
      Consolidated Group for such period, determined on a consolidated basis in
      accordance with GAAP; provided,
      however,
      Net
      Income of the Consolidated Group shall exclude any minority interest in
      Subsidiary earnings and the income of any Subsidiary to the extent the payment
      of such income in the form of a distribution or repayment of any Debt to a
      Borrower or another Subsidiary (not similarly restricted) is not permitted,
      whether on account of any charter or by-law-law restriction, any agreement,
      instrument, deed or lease or any law, statue, judgment, decree or governmental
      order, rule or regulation applicable to such Subsidiary.

     

    2.  WAIVERS.
      Subject
      to the conditions set forth in Section
      3
      the
      Purchasers hereby waive:

     

    (a)  the
      requirements of paragraph 5L of the Note Agreement with respect to Hillandale
      and American Egg but only for so long as such Subsidiary is not a Wholly-Owned
      Subsidiary;

     

    (b)  the
      requirements of paragraph 5N of the Note Agreement requiring the Borrowers
      to
      provide the Purchasers with a mortgage on any real property acquired by the
      Borrowers or any Subsidiary after the Closing Date but solely with respect
      to
      (i) the plants constructed by the Company in Waelder, Texas and described in
      the
      definition of Excluded Capital Expenditures, (ii) real property owned by
      Hillandale and subject to a mortgage securing the Hillandale Term Loan as of
      the
      date hereof, (iii) real estate formerly leased by Green Forest Foods, LLC,
      and
      (iv) other real estate acquired prior to the date of this Agreement to the
      extent such real estate is not adjacent to, or used in connection with, real
      estate currently subject to a Mortgage; and

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    (c)  the
      restrictions set forth in clause (c) of paragraph 6G(ii) of the Note Agreement
      as to the aggregate amount of Restricted Payments and Restricted Investments
      that may be made by the Borrowers and their Subsidiaries in any Fiscal Year
      but
      solely to the extent necessary to permit (i) the making of Excluded Capital
      Expenditures; (ii) capital contributions in respect of the Company’s membership
      interests in Texas Egg Products, LLC, a Texas limited liability company and
      Texas Egg, LLC, a Texas limited liability company, provided the aggregate amount
      of such capital contributions does not exceed $2,000,000; (iii) capital
      contributions in respect of the Company’s membership interest in Green Forest
      Foods, LLC made prior to the date of this Agreement in an aggregate amount
      not
      exceeding $ 4,078,282.26; and
      (iv)
      loans and advances to Hillandale and American Egg to the extent such loans
      and
      advances are otherwise permitted by clause (i) of paragraph 6H of the Note
      Agreement, and solely, in each case, so long as the requirements of clauses
      (a)
      and (b) are otherwise met in connection with such Restricted
      Investment.

     

    In
      addition, the Purchasers waive any Default or Event of Default now existing
      solely as a result of the failure of the Borrowers to have previously complied
      with provisions of the Note Agreement waived pursuant to this Section
      2.

    


    3.  CONDITIONS.
      The
      amendments granted in Section
      1
      and the
      waivers granted in Section
      2 are
      subject to the satisfaction of the following:

     

    (a)  Instruments
      to be Delivered. (i)
      Each
      of the Borrowers shall have executed and delivered this Agreement to the
      Purchasers and (ii) Green Forest Foods LLC shall have executed and delivered
      a
      Subsidiary Guaranty to the Purchasers and the Borrowers shall have otherwise
      complied with Paragraph 5L of the Note Agreement.

     

    (b)  Payment
      of Expenses.
      All
      Expenses, including those of Special Counsel, shall have been paid by the
      Borrowers in full.

     

    4.  REPRESENTATIONS
      AND WARRANTIES.
      The
      Borrowers, jointly and severally, represent and warrant to the
      Purchasers:

     

    (a)  Continuing
      Representations.
      Subject
      to any disclosure set forth on Schedule
      1
      attached, each of the representations and warranties set forth in paragraphs
      8A
      through 8K, 8M, 8N, 8P and 8S of the Note Agreement is true and correct in
      all
      material respects on and as if made as of the date hereof after giving effect
      to
      this Agreement.

     

    (b)  Debt
      of Hillandale and American Egg.
      Except
      as described in clauses (i)(1) and (i)(2) of paragraph 6H of the Note Agreement
      (as amended by this Agreement), as of the date of this Agreement, neither
      Hillandale nor American Egg has any Debt. Except as described in clause (iii)
      of
      paragraph 6H of the Note Agreement (as amended by this Agreement), as of the
      date of this Agreement, neither a Borrower nor any other Subsidiary has a
      Guaranty of any obligations of Hillandale, American Egg or any other Person
      not
      a Wholly-Owned Subsidiary which has executed a Subsidiary Guaranty.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    (c)  No
      Defaults.
      As of
      the date hereof, and after giving effect to this Agreement, no Default or Event
      of Default will exist. 

     

    (d)  Consents
      Etc.
      No
      consent, approval or authorization of, or registration, filing or declaration
      with, any Governmental Authority or any other Person (including without
      limitation, any creditor, lessor, or stockholder of any Borrower) is required
      in
      connection with execution, delivery or performance by any Borrower of this
      Agreement or the Note Agreement as amended by this Agreement.

     

    (e)  Solvency.
      As of
      the date hereof, (i) the aggregate present fair saleable value of the assets
      of
      each Borrower will, to the knowledge of the Borrowers in their reasonable
      business judgment be greater than the amount that will be required to pay the
      probable liabilities of each Borrower on its debts, including contingent
      liabilities, as they become absolute and mature; (ii) such Borrower has (and
      has
      no reason to believe that it will not have) sufficient capital for the conduct
      of its business as presently conducted; and (iii) no Borrower intends to incur,
      or believes it has incurred, beyond its ability to pay as they
      mature.

     

    5.  NO
      OTHER AMENDMENTS OR WAIVERS.
      Except
      as expressly set forth in Section
      1,
      the
      Note Agreement and the other Transaction Documents shall continue in full force
      and effect without alteration or amendment. No term or provision of the
      Transaction Documents is waived by this Agreement except for the waivers
      expressly provided for in Section
      2.

     

    6.  GOVERNING
      LAW.
      THIS
      AGREEMENT IS TO BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS
      OF
      THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
      (WITHOUT GIVING EFFECT TO ANY LAWS OR RULES RELATING TO CONFLICTS OF LAWS THAT
      WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
      COMMONWEALTH OF MASSACHUSETTS).

     

    7.  COUNTERPARTS.
      This
      Agreement may be executed simultaneously in two or more counterparts, each
      of
      which shall be deemed an original, and it shall not be necessary in making
      proof
      of this Agreement to produce or account for more than one such
      counterpart.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    IN
      WITNESS WHEREOF, this Fourth Amendment Agreement is executed under seal as
      of
      the date first above written.

     

    
      	 	 	 
	BORROWERS: 	CAL-MAINE
              FOODS,
              INC.
	 
 	 
 	 
 
	 	By:  	 
	 	
              
Name:
	 	Title:


      	 	 	 
	 	 	 
	 	CAL-MAINE
              PARTNERSHIP, LTD.
	 
 	 
 	 
 
	 	By:  	CAL-MAINE
              FOODS,
              INC.
	 	(its General Partner)
	 	 


      	 	 	 
	 	By:  	 
	 	
              
Name:
	 	Title:


      	 	 	 
	 	 	 
	PURCHASERS: 	JOHN
              HANCOCK LIFE
              INSURANCE COMPANY
	 
 	 
 	 
 
	Date: 	By:  	 
	 	
              
Name:
              Kenneth L. Warlick
	 	Title:
              Managing Director


    

    
      	 	 	 
	 	
              JOHN
                HANCOCK VARIABLE LIFE INSURANCE COMPANY

            
	 
 	 
 	 
 
	Date: 	By:  	 
	 	
              
Name:
              Kenneth L. Warlick
	 	Title:
              Authorized Signatory


    

     

    
 

    Signature
      Page to Fourth Amendment Agreement

    to
      Amended and Restated Note Purchase
      Agreement

     

     

    
      
        
        

      

      
        6