amend2ca.htm


     

    Exhibit
10.1

     

    

      SECOND AMENDMENT TO CREDIT
AGREEMENT

       

      


      THIS
SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of October 8, 2008 is among DARLING INTERNATIONAL INC., a Delaware
corporation (the "Borrower"), each of
the lending institutions which is a party hereto and JPMORGAN CHASE BANK, N.A.,
as administrative agent (the "Administrative
Agent").

       

       

      RECITALS:

      


      Borrower,
the Administrative Agent and the lending institutions party thereto have entered
into that certain Credit Agreement dated as of April 7, 2006 (as amended by that
certain First Amendment to Credit Agreement dated May 9, 2006 and that certain
Letter Agreement dated as of February 9, 2007, the "Agreement").  Borrower,
the Administrative Agent and the lenders party hereto now desire to amend the
Agreement as herein set forth.

       

      NOW,
THEREFORE, in consideration of the premises herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows effective as of the date
hereof unless otherwise indicated:

       

       

      ARTICLE
1.


       

      Definitions

       

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

       

       

       

      ARTICLE
2.


       

      Amendments

       

      Section
2.1. Amendment to Section
6.04(d).  Clause (d) of Section 6.04 is amended in its entirety
to read as follows:

       

      (d)           Investments
among the Borrower and its Subsidiaries; provided that the sum
of: (i) the aggregate amount of Investments by Loan Parties in or for the
benefit of Subsidiaries that are not Loan Parties (including any such
Investments described on Schedule 6.04 and any such Investments outstanding at a
time when a Subsidiary is designated as an Unrestricted Subsidiary in accordance
with the definition thereof) plus (ii) the aggregate amount of advances
made under the permissions of Section 6.04(t) shall not exceed $10,000,000 at
any time outstanding;

       

       

      Section
2.2. Amendment to Section
6.04(q).  Clause (q) of Section 6.04 is amended in its entirety
to read as follows:

       

      (q)           The
purchase, holding or other acquisition of Equity Interests in Persons who, after
giving effect to such Investment will not be a Subsidiary, as long
as:

       

      (i)           no
Default exists or would result at the time such Investment is committed to be
made and no Significant Default exists or would result at the time such
Investment is actually made (and for purposes hereof, a "Significant Default"
shall means any Event of Default arising under Section 8.01 other
than:

       

       

      

        
          
            
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      (A)           an
Event of Default under clause (e) of such Section arising as a result of the
failure to comply with any of the covenants covered thereby except the covenants
in Section 5.01(a), (b) and (c) (an Event of Default arising under Section
8.01 (e) as a result of the failure to comply with Section 5.01(a), (b) or
(c) being a "Significant Default"); and

       

      (B)           an
Event of Default under clause (c) of such Section arising as a result of false
representations, warranties or certifications if such representations,
warranties or certifications relate to the subject matter of the covenants
excluded as a Significant Default under clause (A) above (an Event of Default
arising under Section 8.01 (c) as a result of other false representations,
warranties or certifications being a "Significant Default"))

       

      provided that an
Event of Default arising under clauses (c) or (e) of Section 8.01 shall be a
Significant Default if the Required Lenders shall have determined that the
breach of the applicable covenant or the false representation, warranty or
certification has had or is reasonably likely to have a Material Adverse Effect
and shall have notified the Borrower of such fact; and

       

      (ii)           after
giving pro forma effect to each such Investment, the Leverage Ratio is less than
2.00 to 1.00, as calculated:  (A) for the most recent four (4)
fiscal quarter period then ended on a pro forma basis as if the Investment had
occurred as of the first day of such period, (B) to include any
Indebtedness incurred or assumed in connection therewith by the Borrower or any
of its Restricted Subsidiaries as if such Indebtedness had been incurred on the
first day of such period, (C) to the extent such Indebtedness bears
interest at a floating rate, using the rate in effect at the time of calculation
for the entire period of calculation and (D) as if any sale of Restricted
Subsidiaries or lines of business which occurred during such period occurred on
the first day of such period;

       

       

          Section
2.3. Additions to Section
6.04.  The word "and" at the end of clause (r) of
Section 6.04 is deleted, the period at the end of clause (s) is deleted and
"; and" inserted in lieu thereof and a new clause
(t) and a last paragraph is inserted to read as follows:

       

      (t)           any
advances in any Subsidiary or joint venture in connection with intercompany cash
management arrangements or related activities arising in the ordinary course of
business; provided that the sum
of: (i) the aggregate amount of Investments made or existing under the
permissions of Section 6.04(d) by Loan Parties in or for the benefit of
Subsidiaries that are not Loan Parties plus (ii) the aggregate amount of
advances made under the permissions of this clause (t) shall not exceed
$10,000,000 at any time outstanding.

      


      Notwithstanding
anything to the contrary contained herein, if any Person in which is an
Investment is made pursuant to clause (q) above subsequently becomes or is
deemed to be a Subsidiary of the Borrower but is less than wholly owned, such
Person shall be deemed to have been simultaneously designated by the Borrower as
an Unrestricted Subsidiary without regard to the requirements set forth in
clause (d) above and the definition of "Unrestricted Subsidiary".  Any
Investment in such Person on the date of such designation shall not be deemed to
have utilized any other amounts available under clause (d) above solely as a
result of such deemed designation.  Any Investment in such Person
after the date of such designation shall be subject to compliance with this
Section 6.04.

       

      
        
          
            
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      Section
2.4. Amendment to Section
6.05.  The last proviso in Section 6.05 is amended in its
entirty to read as follows:

       

      provided that
(i) all Dispositions permitted hereby (other than those permitted by
clauses (b), (c), (f), (g), (i), (m) and (n) above) shall be made for fair
value and all Dispositions permitted hereby (other than those permitted by
clauses (a), (b), (c), (d), (f), (g), (h), (i), (k), (m) and (n) above)
shall be made for at least 75% cash consideration and (ii) all Dispositions
permitted by clause (n) above shall be made for either (A) fair value and
for at least 75% cash consideration or (B) such other consideration as is
specified in any buy/sell or similar contractual arrangement entered into with
respect to such Investment as long as such arrangement was not entered into at
the time of the applicable Disposition.

       

       

      


      ARTICLE
3.


       

      Miscellaneous

       

      Section
3.1. Ratifications.  The
terms and provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions set forth in the Agreement and except as
expressly modified and superseded by this Amendment, the terms and provisions of
the Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect.  Borrower, the Lenders party hereto
and the Administrative Agent agree that the Agreement as amended hereby and the
other Loan Documents shall continue to be legal, valid, binding and enforceable
in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium 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 (including, without limitation, the compliance with Section 6.04(q)),
the terms of the Agreement (as unmodified by this Amendment) shall control and
are hereby ratified and confirmed.

       

       

      Section
3.2. Reference to
Agreement.  Each of the Loan Documents, including the 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 Agreement as amended hereby, are hereby amended so that any reference in
such Loan Documents to the Agreement shall mean a reference to the Agreement as
amended hereby.

       

       

      Section
3.3. 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
3.4. Applicable
Law.  This Amendment shall be construed in accordance with and
governed by the law of the State of Texas.

       

       

      Section
3.5. Successors and
Assigns.  This Amendment is binding upon and shall inure to the
benefit of the Lenders, the Administrative Agent and Borrower and their
respective successors and assigns, except Borrower may not assign or transfer
any of its rights or obligations hereunder without the prior written consent of
the Lenders.

       

       

      
        
          
            
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      Section
3.6. 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 each of the Borrower and the Required
Lenders.  Delivery of an executed counterpart of a signature page of
this Amendment by telecopy shall be effective as delivery of a manually executed
counterpart of this Amendment.

       

       

      Section
3.7. 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
3.8. 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.

       

       

      Section
3.9. Required
Lenders.  Pursuant to Section 10.02(b) of the Agreement, the
Agreement may be modified as provided in this Amendment with the agreement of
the Required Lenders which means, at any time, Lenders having Revolving
Exposures, outstanding Term Loans and unused Commitments representing more than
50% of the sum of the total Revolving Exposures, outstanding Term Loans and
unused Commitments at such time (the percentage applicable to a Lender, herein
such Lender's "Required Lender
Percentage").  For purposes of determining the effectiveness of
this Amendment, each Lender's Required Lender Percentage is set forth on Schedule 3.9
hereto.

       

       

      Executed
as of the date first written above.

       

      DARLING
INTERNATIONAL INC.


      


      By:   /s/     Brad
Phillips                
      

      Name: Brad
Phillips

      Title: Treasurer

       

      
 

      


      JPMORGAN
CHASE BANK, N.A.,

      individually
and as Administrative Agent


      


      By:   /s/   Laura
Simmons        
        

      Laura
Simmons, Senior Vice President

       

       

       

      
        
          
            
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      HARRIS
N.A.


      


      By:     /s/   Corey
Noland           

      Name: Corey
Noland

      Title: Vice
President

       

      


      COMERICA
BANK


      


      By:     /s/   Donald P.
Hellman         
     

      Name: Donald
P. Hellman

      Title: Senior
Vice President

       

      


      U S BANK
NATIONAL ASSOCIATION

      


      By:  

      Name:                                                                   

      Title:                                     

                                    

      


      COÖPERATIEVE
CENTRALE RAIFFEISEN–BOERENLEENBANK B.A. "RABOBANK INTERNATIONAL", NEW YORK
BRANCH


      


      By:     /s/  Rebecca O.
Morrow         

      Name: Rebecca
O. Morrow

      Title: Executive
Director

      


      


      By:     /s/  James V.
Kenwood           

      Name: James
V. Kenwood

      Title: Executive
Director

      


       

      CITIBANK
TEXAS, N.A.

      


      By:      /s/   
Deborah T. Purvin         

      Name: Deborah
T. Purvin

      Title: Vice
President

       

      


      KEYBANK
NATIONAL ASSOCIATION


      


      By:    /s/     Frank J.
Jancar      

      Name: Frank
J. Jancar

      Title: Vice
President

       

       

      
         

        
          
            
              
                5

                 

              

               


            

            
               


              
                

              

            

            
               


            

          

        

      

      


      COMMERCE
BANK, N.A.

       

       

      By:    /s/  Wayne C. Lewis  


      Name: Wayne
C. Lewis

      Title: Vice
President

      



      
        
          
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      Loan
Party Consent

       

       

      


      The
undersigned Loan Party:  (i) consents and agrees to this
Amendment; and (ii) agree that the Loan Documents to which it is a party
shall remain in full force and effect and shall continue to be the legal, valid
and binding obligation of such Loan Party enforceable against it in accordance
with their respective terms.

       

       

       

      LOAN
PARTIES:

      


      DARLING
NATIONAL LLC

      


      


      By:       /s/   
Brad Phillips  

      Name: Brad
Phillips

      Title: Treasurer


      
        
          
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      Schedule 3.9

      to

      Second
Amendment to Credit Agreement

       

       

      


      REQUIRED
LENDER PERCENTAGE

       

      


      


      
        	
                Lender

              	
                Required
      Lender

                Percentage
      Held

              	
                Lenders
      Agreeing to Amendment

                (insert
      % from prior column if Lender signs this 

                Amendment
      then total percentages in this column)

              
	
                JPMorgan
      Chase Bank, N.A.

              	
                14.29%

              	
                14.29%

              
	
                Harris
      N.A.

              	
                13.14%

              	
                13.14%

              
	
                Comerica
      Bank

              	
                13.14%

              	
                13.14%

              
	
                U.S.
      Bank National Association

              	
                13.14%

              	 
      
	
                Coöperatieve
      Centrale Raiffeisen-Boerenleenbank B.A., 

                    
      "Rabobank Nederland", New York Branch

              	
                13.14%

              	
                13.14%

              
	
                Citibank Texas,
      N.A.

              	
                12.29%

              	
                12.29%

              
	
                KeyBank
      National Association

              	
                12.29%

              	
                12.29%

              
	
                Commerce
      Bank, N.A.

              	
                8.58%

              	
                8.58%

              
	
                TOTAL

              	
                100.00%

              	
                86.87%

              


      

      



      
        
          
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