EX-3 3 exhibit3_972032.txt EXHIBIT 3 TO 13D 2ND AMEND TO RECAP AGMT EXHIBIT 3 SECOND AMENDMENT TO RECAPITALIZATION AGREEMENT THIS SECOND AMENDMENT TO RECAPITALIZATION AGREEMENT ("Second Amendment") is entered into effective as of April 29, 2002, among DARLING INTERNATIONAL INC., a Delaware corporation, as Borrower ("Borrower"), CREDIT LYONNAIS NEW YORK BRANCH, as Agent ("Agent"), and the other Banks party to the hereinafter defined Recapitalization Agreement (the "Banks"). Reference is made to the Recapitalization Agreement dated effective as of March 15, 2002, by and among Borrower, Agent and the Banks as amended by that certain First Amendment to Recapitalization Agreement dated as of April 1, 2002 (the "Recapitalization Agreement"). RECITALS A. Borrower, Agent and the Banks are party to the Recapitalization Agreement which, among other things, modified that certain Amended and Restated Credit Agreement dated effective as of January 22, 1999 (as the same may have been heretofore amended, supplemented, or modified, the "Original Agreement") and provides for the amendment and restatement of the Original Agreement in accordance with the terms and provisions of the New Credit Agreement (as defined in the Recapitalization Agreement), subject to the other terms and conditions contained in the Recapitalization Agreement. B. Borrower has requested that Agent and the Banks modify and amend certain terms and provisions of the Recapitalization Agreement, and Agent and the Banks are agreeable to so modify and amend the Recapitalization Agreement subject to the terms and conditions set forth herein. Accordingly, for adequate and sufficient consideration, the parties hereto agree as follows: Paragraph 1. Definitions. Unless otherwise defined in this Second Amendment, capitalized terms used herein shall have the meaning set forth in the Recapitalization Agreement. Paragraph 2 Second Amendment. The Recapitalization Agreement is hereby amended by: (a) replacing each reference to the date "April 30, 2002" in Section 9.1 of the Recapitalization Agreement and in subparagraphs 2(a) and 2(f) of Exhibit B to the Recapitalization Agreement with the date "May 31, 2002". (b) adding the following to the end of the table set forth in subparagraph 2(e) of Exhibit B to the Recapitalization Agreement: "May 31, 2002 $9,200,000" (c) supplementing Exhibit B-1 to Exhibit B of the Recapitalization Agreement by adding Annex B-1 attached hereto to such Exhibit B-1. (d) replacing Exhibits F-2 and F-3 to the Recapitalization Agreement, in their respective entireties, with Exhibits F-2 and F-3 attached hereto. (e) deleting subsection 7.1(d) of Exhibit L of the Recapitalization Agreement, in its entirety, and renumbering subsection 7.1(e) of such Exhibit L as subsection 7.1(d). (f) replacing section 9.13 of Exhibit L to the Recapitalization Agreement, in its entirety, with the following: "Section 9.13 Payment of Adjusted Existing Accrued Interest. Borrower shall pay to the Agent, for the ratable benefit of the Term Banks, in immediately -1- available funds, an amount equal to the Adjusted Existing Accrued Interest on the thirtieth (30th) day after the Closing Date." (g) adding the following proviso to the end of the second sentence in Section 9.5 of Exhibit L to the Recapitalization Agreement: "; provided, however, that any such insurance policy may be cancelable for non-payment of applicable premiums upon not less than ten (10) days prior written notice to the Agent." (h) adding the following sentence to the end of Section 9.7 of the Recapitalization Agreement: "Upon any assignment by a Bank of its rights under this Agreement in accordance with this Section 9.7 prior to the Consummation Date, all references in this Agreement to the Banks, their respective percentages of the Exchange Debt, and their commitments under the New Credit Agreement (including, without limitation, on Schedule 2.2B and the signature pages to Exhibits E and L to this Agreement) shall be and be deemed to be modified and supplemented to reflect such assignment." Paragraph 3. Effective Date. This Second Amendment shall be effective on the date (the "Effective Date") Agent shall have received (i) counterparts of this Second Amendment, executed by Borrower, Agent and the Holders, and (ii) an updated financial budget and projection by week for the months of May and June of 2002, substantially similar in format to the Cash Budget (as defined in the Forbearance Agreement) and otherwise in form and substance satisfactory to the Holders. Paragraph 4. Acknowledgment and Ratification. As a material inducement to Agent and the Banks to execute and deliver this Second Amendment, Borrower (a) consents to the agreements in this Second Amendment and (b) agrees and acknowledges that the execution, delivery, and performance of this Second Amendment shall in no way release, diminish, impair, reduce, or otherwise affect the respective obligations of Borrower under the Recapitalization Agreement, which shall remain in full force and effect, and all rights thereunder are hereby ratified and confirmed. Paragraph 5. Representations. As a material inducement to Agent and the Banks to execute and deliver this Second Amendment, Borrower represents and warrants to Agent and the Banks that as of the Effective Date of this Second Amendment and as of the date of execution of this Second Amendment, (a) all representations and warranties in the Recapitalization Agreement are true and correct in all material respects as though made on the date hereof, except to the extent that any of them speak to a different specific date, and (b) no default or event or condition exists which, with the passage of time or the giving of notice, or both, would constitute a default under the Recapitalization Agreement. Paragraph 6. Expenses. Borrower shall pay all costs, fees, and expenses paid or incurred by Agent incident to this Second Amendment, including, without limitation, the fees and expenses of Agent's counsel in connection with the negotiation, preparation, delivery, and execution of this Second Amendment and any related documents. Paragraph 7. Miscellaneous. Unless stated otherwise (a) the singular number includes the plural and vice versa and words of any gender include each other gender, in each case, as appropriate, (b) headings and captions may not be construed in interpreting provisions, (c) this Second Amendment shall be governed by Delaware law, (d) if any part of this Second Amendment is for any reason found to be unenforceable, all other portions of it nevertheless remain enforceable, and (e) this Second Amendment may be executed in any number of counterparts with the same effect as if all signatories had signed the same document, and all of those counterparts must be construed together to constitute the same document. Paragraph 8. ENTIRE AGREEMENT. THIS SECOND AMENDMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS SECOND AMENDMENT AND MAY NOT BE -2- CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. Paragraph 9. Parties. This Second Amendment binds and inures to the benefit of Borrower, Agent, Banks, and their respective successors and assigns. The parties hereto have executed this Second Amendment in multiple counterparts to be effective as of the Effective Date. Remainder of Page Intentionally Blank. Signature Pages to Follow -3- COMPANY: DARLING INTERNATIONAL INC. By: /s/ Brad Phillips -------------------------- Name: Brad Phillips Title: Treasurer ADDRESS FOR NOTICES: 251 O'Connor Ridge Blvd., Suite 300 Irving, Texas 75038 Fax No.: 972-717-1588 Telephone No.: 972-717-0300 Attention: Treasurer AGENT: CREDIT LYONNAIS NEW YORK BRANCH individually as a Bank and as the Agent By: /s/ James B. Hallock -------------------------- Name: James B. Hallock Title: Vice President ADDRESS FOR NOTICES: Credit Lyonnais New York Branch 1301 Avenue of the Americas New York, New York 10019 Telephone No.: 212-261-3259 Facsimile No.: 212-261-7861 Attention: Mr. James Hallock WITH A COPY TO: Credit Lyonnais Dallas Branch 2200 Ross Avenue, Suite 4400 West Dallas, Texas 75201 Telephone No.: 214-220-2304 Facsimile No.: 214-220-2323 Attention: David Cagle BANKS: ARK CLO 2000-1, LIMITED By: Patriarch Partners, LLC, its Collateral Manager By: /s/ Lynn Tilton -------------------------- Name: Lynn Tilton Title: Manager ADDRESS FOR NOTICES: Ark CLO 2000-1, Limited c/o Patriarch Partners, LLC 40 Wall Street, 25th Floor New York, New York 10005 Telephone No.: (212) 825-0550 Facsimile No.: (212) 825-2038 Attention: Dennis Dolan/Lynn Tilton And Woodside Capital Management, LLC 36 Woodland Street 2nd Floor Hartford, CT 06105 Telephone No.: (860) 547-1761 Facsimile No.: (860) 547-1870 Attention: Anthony Varone BANK ONE N.A. By: /s/ Phillip D. Martin -------------------------- Name: Phillip D. Martin Title: Senior Vice President ADDRESS FOR NOTICES: Bank One N.A. Mail Code IL1-0631 1 Bank One Plaza Chicago, IL 60670 CERBERUS PARTNERS, L.P. By: Cerberus Associates, L.L.C., its general partner By: /s/ Kevin Genda -------------------------- Name: Kevin Genda Title: Attorney in Fact ADDRESS FOR NOTICES: 450 Park Avenue, 28th Floor New York, New York 10022 Attn: Kevin Genda AVENUE SPECIAL SITUATIONS FUND II L.P. By: Avenue Capital Management II, LLC Its General Partner By: GLS Partners II, LLC, Managing Member Of General Partner By: /s/ Marc Lasry -------------------------- Name: Marc Lasry Title: Managing Member ADDRESS FOR NOTICES: Avenue Special Situations Fund II 535 Madison Avenue, 15th Floor New York, New York 10022 CREDIT AGRICOLE INDOSUEZ By: /s/ Kathleen M. Sweeney -------------------------- Name: Kathleen M. Sweeney Title: Vice President By: /s/ Leo von Reissig -------------------------- Name: Leo von Reissig Title: Vice President ADDRESS FOR NOTICES: Credit Agricole Indosuez, New York Branch 666 Third Avenue New York, NY 10017-4011 Telephone No.: 646-658-2058 Facsimile No.: 646-658-2051 Attention: Kathleen Sweeney PPM AMERICA SPECIAL INVESTMENTS FUND, LP By: PPM America, Inc., as its attorney-in-fact By: /s/ Ronnie Kaplan -------------------------- Name: Ronnie Kaplan Title: Vice President ADDRESS FOR NOTICES: PPM America, Inc. 225 West Wacker Drive, 9th Floor Chicago, IL 60606 Tel No.: 312-634-2572 Fax No.: 312-634-0053 Attention: Brian Schinderle Senior Managing Director WELLS FARGO BANK (TEXAS) NATIONAL ASSOCIATION By: /s/ Nipul V. Patel -------------------------- Name: Nipul V. Patel Title: Vice President Address for Notices: Wells Fargo Bank (Texas) National Association 1000 Louisiana Avenue, Suite 4300 Houston, TX 77002 EXHIBITS (OMITTED)