Overview

Mayer Brown's Food & Agribusiness team acts for a range of financial institutions, commodity producers, traders and blue-chip corporates, and is well-qualified to address the challenges that arise in the agricultural sector. Above and beyond our industry understanding, we recognize that practice style is critical to the success of our clients in the food and agribusiness sector.

We have a long track record of providing creative advice without over-lawyering and of obtaining buy-in from clients and their customers in a cooperative, low-key manner. We set out below some of the key areas in which we can be of assistance to clients in this sector.

Agrifinance

With more than 200 finance lawyers, Mayer Brown has one of the largest banking and finance practices in the world. We represent most of the world’s largest banks, both domestic and international. The majority of the firm’s 100 largest clients include leading commercial and investment banks, insurance companies, leasing companies and asset-based lenders.

Our financing experience covers the full range of agribusiness activities, including input supply, processing, value-added manufacturing, wholesale distribution and retail. We have also worked on financings involving the full range of agricultural commodities, including grain, sugar, coffee, dairy, chicken, beef, pork, seafood, soybeans, fruits and vegetables, as well as cotton, oilseeds and forest products. This experience includes working with borrowers operating on both a cooperative and noncooperative basis.

Our lending experience with agricultural companies includes acquisition financing, cash flow loans, asset-based loans (ABL) and “borrowing base” loans with limited ABL dominion and control concepts. Our ABL and borrowing base deal experience includes establishing eligibility criteria for those assets forming a part of the borrowing base (both domestic and pre-export finance) and standards for imposing appropriate reserves for such matters as PACA liens, non-performance, landlord liens and the like.

Many of our deals involve detailed lock-box and cash concentration mechanics that provide lenders control over cash receipts. We have substantial experience with the management of security interests in a variety of commodities. This includes detailed knowledge as to taking security interests with respect to in-transit agricultural products, whether being shipped by train, truck, barge or international oceangoing vessel. Work in this area has included the treatment of tangible bills of lading and warehouse receipts, both negotiable and non-negotiable, as well as electronic bills of lading and warehouse receipts, which are increasingly the norm in grain, cotton and other commodities. In the last few years, our real estate lawyers have filed hundreds of mortgages in connection with our agrifinance deals and have extensive knowledge of the unique issues arising from securing rural real estate and processing facilities.

Our Agrifinance practice is global in scope, having closed transactions in the United States and countries throughout Europe, Asia, and Central and South America. We are one of the leading law firms in the world for cross-border lending and have substantial experience in structuring cross-border financings.

Derivatives

Whether a matter involves equity and index derivatives, derivatives-linked securities, fund-linked derivatives, commodity-linked derivatives, structured products or other exotic derivatives, our lawyers have experience across all the credit, equity and commodity asset classes. Our team understands the hedging strategies commonly employed for agricultural commodities and how they can be managed as part of larger capital markets financing. Our team has experience across all of the major documentation platforms, including ISDA, FOA, EFET and specific commodity trading documentation, such as for the Zeebrugge Hub and Forward Freight Association.

Corporate and Capital Markets

Mayer Brown represents many of the largest food and agricultural companies in the world. We regularly represent issuers, underwriters, placement agents and selling shareholders in a wide variety of equity capital markets transactions, including public offerings and private placements, stock exchange listings, rights offerings, open offers, offerings of depositary receipts, private investments in public equities, spinoffs, exchange offers, capital reorganizations, share buy-backs and de-mergers. In addition, we regularly advise corporate issuers in connection with debt regulation B issuances that are listed on the major UK, other European, Asian and US exchanges.

Mergers & Acquisitions and Antitrust

Our M&A practice regularly advises food industry and agriculture clients around the world on M&A transactions, including investments, joint ventures, divestitures, management and other buyouts, and reorganizations. We routinely handle transactions ranging in size and complexity from multibillion dollar, cross-border transactions to mid-sized and smaller transactions within a single national or regional market.

We have substantial experience advising food and agricultural companies in antitrust and competition issues around the world. Our antitrust and competition lawyers are a critical component of our ability to provide a full range of services to our M&A clients, and they enable us to provide “one-stop” advice in connection with complex, multi-jurisdictional M&A matters.

Government & Global Trade

With long-standing relationships with policymakers in capitals around the world, lawyers in our Government & Global Trade group assist multinational companies in identifying promising foreign markets and developing entry strategies that overcome market obstacles. We work closely with bilateral, regional and multilateral institutions, including the World Trade Organization, the World Customs Organization, the European Union, the Asia-Pacific Economic Cooperation forum and the Organization for Economic Cooperation and Development, to address unfair or illegal trade barriers, build international business coalitions and promote business-friendly trade practices.

Among the internationally recognized lawyers on our team are a former United States Secretary of Commerce, two former United States Trade Representatives, a former European Union Ambassador to the United States and a former Member of the United States Congress, as well as former senior United States trade negotiators and senior trade officials. Such credentials give us the kind of credibility with senior government officials that can help clients open markets, comply with trade laws and resolve trade disputes.

Food Industry False Advertising

The food and beverage industry is currently facing a tidal wave of class actions lawsuits attacking food labeling and advertising. Our nationally recognized false advertising practice is at the forefront in this area and has a successful track record in defending against such claims. We accomplish this by creating a unified strategy to handle copycat class actions or private claims piggybacking on a government investigation. We also regularly advise our clients on how to minimize exposure to future false advertising claims.

Litigation/Dispute Resolution

Our litigation and dispute resolution teams have substantial experience in handling complex-high-stakes litigation matters for agribusiness client around the world. We also advise on systems and controls to combat corporate corruption and comply with the relevant legislation, including the US FCPA and the UK Bribery Act, and conduct internal investigations into allegations of corruption for our clients.

Food & Drug Administration (FDA) Regulatory

We provide a broad range of regulatory and legislative services to agribusiness clients on issues related to US Food and Drug Administration (FDA) and U.S. Department of Agriculture (USDA) compliance. Our team counsels clients in all areas of agribusiness law including product development, product safety, labeling requirements, promotion and advertising, Generally Recognized as Safe (GRAS) standards, product and facility inspections, recalls and other agency enforcement. We work closely with our clients to ensure compliance, including the audit and establishment of the full range of compliance programs, in order to mitigate the risk of enforcement actions or litigation.

Our food and drug team includes lawyers who have decades of experience managing bet-the-company crises such as recalls, and have successfully secured the release of goods in every FDA district and removed numerous domestic and international clients from Import Alert.

Our FDA practitioners have represented food and agricultural clients on compliance, administrative and litigation issues involving nutrition and labeling; meat; poultry; perishable products; animal feed; organic agriculture; transgenic crops; plant pest; animal welfare; various permitting questions; product development; recalls; and international regulation. We leverage our experience working with the FDA and the FTC in order to provide our clients a holistic approach to assessing and managing the complexities of a multi-agency regulatory regime in order to achieve their business objectives.

We develop strategies to advocate our clients’ positions with regard to legislation and proposed rulemakings that affect the food industry, and have been instrumental over many years in shaping legislative and agency policies in numerous areas for the benefit of our clients. With our industry understanding and insight, we anticipate trends and advise our clients on how to remain ahead of the regulatory and policy curves.

Restructuring, Bankruptcy & Insolvency

The global reach of our restructuring, bankruptcy and insolvency team, together with our extensive knowledge regarding PACA lien and other lien perfection and priority issues, enable us to efficiently represent clients in financially distressed agricultural-related situations. We have extensive bankruptcy experience with respect to cash collateral and adequate protection motions, debtor-in-possession financings, exit financings, adversary proceedings and contested plan confirmation hearings, should a consensual resolution not prove practicable. We have also represented successful purchasers of food and agribusiness assets via Section 363 sales in bankruptcy.

Experience

Finance

  • Allens Inc. Represented the administrative agent and lead arranger in a $235 million senior secured credit facility to Allens Inc., a family-owned and operated vegetable packaging company.
  • Archer Daniels Midland. Represented the underwriter in the issuance of $750 million of notes on $1.1 billion debentures due 2041.
  • Bahia Specialty Cellulose. Represented the lead arrangers on a $470 million pre-export financing for Bahia Specialty Cellulose S.A., the Brazilian pulp maker. Trade & Forfaiting Review named this transaction Deal of the Year 2010 for its innovative structure, which combined both preexport financing and project financing features.
  • Bunge Limited. Represented the administrative agent in a $700 million unified, global trade
    receivables securitization for Bunge Limited. This deal won Trade & Forfaiting Review’s Deal of the Year 2011.
  • California Dairies, Inc. Represented the administrative agent in $375 million secured financing.
  • Carolina Beverage Group. Represented the administrative agent in a $60 million revolving credit facility.
  • Cheesecake Factory. Represented the administrative agent in a $200 million financing.
  • Country Pure Foods. Represented the administrative agent in a $52 million secured financing.
  • CPM Holdings, Inc. Represented CPM Holdings, Inc., a supplier of equipment used for oilseed processing and animal feed production, as issuer of $200 million in notes.
  • Del Monte Corporation. Represented the administrative agent in a $740 million senior secured financing.
  • Dr. Pepper Snapple Group. Represented the underwriter in the placement of $3.6 billion of senior notes.
  • Farmers Cooperative. Represented the administrative agent in the refinancing of an $805 million term and revolving credit facility to Farmers Cooperative Company, the largest farmer-owned agriculture cooperative in Iowa.
  • Growmark. Represented the administrative agent in a $600 million revolving credit facility, with assets of Growmark being secured on a ratable basis with $200 million of private placement notes held by a syndicate of insurance companies.
  • Hain Celestial Group, Inc. Represented the lead arrangers in an $850 million senior secured financing.
  • Harris Moran Seed Company. Represented the administrative agent in a $30 million revolving financing.
  • Holsum de Puerto Rico, Inc. Represented the administrative agent in a $178 million first, second and third lien and mezzanine financing to the largest bakery in Puerto Rico.
  • J.R. Simplot. Represented the administrative agent in a $400 million revolving credit and letter of credit financing.
  • Kellogg Company. Represented the underwriter in the placement of $4 billion of senior notes. Land O’ Lakes. Represented the administrative agent in a $1.15 billion senior secured credit facility and pro rata private placement of notes.
  • Lyme Timber Company. Represented the company in $250 million financing secured by 100,000 acres of timberland.
  • Mercon Coffee Corporation. Represented the administrative agent in a $240 million financing with security in various European countries and Vietnam.
  • Monsanto Company. Represented the underwriter in $2.5 billion of various issuances of notes.
  • Multigrain S.A. Represented Multigrain S.A. in a $500 million senior secured export finance facility.
  • Ocean Spray Cranberries, Inc. Represented the administrative agent in $900 million of various term and revolving credit facilities.
  • Peck Foods. Represented the senior lenders in a Chapter 11 proceeding.
  • Pilgrim’s Pride Corporation. Represented the administrative agent in a $1.85 billion asset based financing that was entered into in connection with Pilgrim’s exit from a Chapter 11 bankruptcy proceeding. This transaction was featured as the lead article in The Deal.
  • Pilgrim’s Pride Corporation. Represented the administrative agent and the consortium of lenders in a $1.1 billion syndicated term and revolving credit facility.
  • Purina Mills. Represented the administrative agent in an $800 million senior secured financing and restructuring.
  • Rayonier Inc. Represented the underwriter in the issuance of $325 million of senior notes to Rayonier Inc., a global forest products company.
  • Southern Quality Meats. Represented the administrative agent in a $47 million senior, secured credit facility.
  • Southwest Cheese Company, LLC. Represented the administrative agent in a $205 million term and revolving loan secured by, among other things, an industrial bond issuance of the City of Clovis, New Mexico.
  • Starbucks Corporation. Represented the issuer in $1.5 billion of various issuances of notes.
  • Sucden Americas Corporation. Represented the administrative agent in a $200 million domestic and export financing secured by sugar assets located in several South and Central American countries. This deal was named 2010 Deal of the Year by Trade Finance magazine.
  • SUPERVALU. Represented the administrative agent in the financing for the $17.4 billion purchase of Albertson’s grocery and drug stores.
  • Technology Crops Limited. Represented the administrative agent in a $22.5 million U.S., Canadian and English financing for a sponsor-owned company.
  • TEMCO LLC. Represented the administrative agent in $370 million revolving and term credit facilities to TEMCO LLC, a grain exporter and joint venture between CHS Inc. and Cargill, Incorporated.
  • Wells Timberland REIT. Represented the administrative agent in a $450 million first lien, second lien and mezzanine financing for 300,000 acres of timberland.
  • Weyerhaeuser Forest Products. Represented the lender in a $50 million letter of credit facility.
  • World Kitchen, LLC. Represented the administrative agent in a $161 million revolving credit and term loan financing.
  • Yum! Brands Inc. Represented the borrower in a $1.3 billion revolving credit facility.

Corporate, Capital Markets and Mergers & Acquisitions

  • Africa Oil Palm. Represented Unilever on the sale of a Ghana oil palm plantation business and the Frytol brand to Wilmar Africa Limited.
  • AgroFinanzas S.A. Represented Société Générale in the acquisition of a 50 percent equity interest in AgroFinanzas SA de CV, a specialized financial institution focused on agricultural financing in Mexico.
  • Bestfoods Baking Company. Represented George Weston Limited in its $1.765 billion acquisition of Bestfoods Baking Company, a subsidiary of Unilever.
  • Cargill Crop Nutrition. Represented Cargill in the combination of Cargill Crop Nutrition and IMC Global Inc. to create The Mosaic Company, a producer of phosphate and potash crop nutrients.
  • Cargill Inc. Represented Cargill on the AUD 870 million acquisition from Agrium Inc. of grain marketing, trading and distribution assets.
  • Cargill Inc. Represented Cargill in its acquisition of Degussa Food Ingredients.
  • Dow AgroSciences. Represented Dow AgroSciences on the acquisition of the soybean production assets of Renze Hybrids, Inc.
  • Dow AgroSciences. Represented Dow AgroSciences in numerous divestures of agricultural products, including the sales of Dow AgroSciences’ European Dithane fungicide business, the M-Pede insecticide business, the Scythe herbicide business and tebufenozide insecticide and thifluzamide fungicide business.
  • Dow AgroSciences. Represented Dow AgroSciences in several strategic joint ventures with plant breeding and agricultural R&D companies around the world, including in the corn, wheat and soybean sectors. These transactions involved, among other things, complex supply, collaboration and license agreements.
  • Dow AgroSciences. Represented Dow AgroSciences in dozens of seed company acquisitions, including Brodbeck Seed, Dairyland Seed, Grand Valley Hybrid, Hyland Seeds, Northwest Plant Breeding Co., Pfister Seed, Prairie Brand Seed, Renze Seeds, Schillinger Seed and Triumph Seed.
  • Dow AgroSciences. Represented Dow AgroSciences in an exclusive supply and distribution agreement with Syngenta covering crop protection products in 12 countries in the Commonwealth of Independent States region.
  • Dow Chemical. Represented Dow Chemical in the formation of a joint venture with Mitsui & Co. for the production of biopolymers in Brazil.
  • European Dithane. Represented Dow AgroSciences in the divestment of its European Dithane fungicide business to India-based Indofil Industries Ltd., a fully integrated agribusiness and agrichemicals company.
  • Fresh Del Monte. Represented the underwriter in the issuance of $10.5 million ordinary shares to Fresh Del Monte Produce.
  • George Weston Limited. Represented George Weston Limited in the $2.5 billion divestiture of its US fresh bread and baked goods business.
  • JBS S.A. Represented JBS S.A. on the acquisition by a 50 percent equity interest of Weddel Limited, a
    Canada-based privately owned meat producer.
  • Mitsui & Co., Ltd. Represented Mitsui in its $275 million acquisition of Multigrain AG, an agricultural production and grain distribution company.
  • Natumi AG. Represented Hain Celestial Group on the acquisition of the German soy milk producer Natumi AG.
  • Nestlé S.A. Represented Nestlé in its $11.5 billion acquisition of the global infant formula business of Pfizer, Inc.; Chef America ($2.6 billion); Jenny Craig ($600 million); Novartis Medical Nutrition ($2.5 billion); and Gerber Products Company and Gerber Life Insurance Company ($5.5 billion).
  • Nestlé S.A. Represented Nestlé in the formation of a joint venture (Dairy Partners of America) with Fonterra Cooperative Group of New Zealand for the manufacture and distribution of milk powder and liquid milk products in Latin America.
  • Potbelly Corporation. Represented the issuer in initial public offering of 7.5 million shares of common stock.
  • Senoble. Represented Senoble in its acquisition of a dairy plant from Mliekoservis Slovakia AS, a Slovakia-based manufacturer of milk powder.
  • Syngenta Crop Protection. Represented Syngenta in its acquisition of Pasteuria Bioscience, Inc., a biotechnology company engaged in the development of nematicides for agricultural and specialty crops.
  • Syngenta. Represented Syngenta in the purchase of the chrysanthemum and asters business of Yoder Brothers Inc.
  • Syngenta. Represented Syngenta in its $125 million acquisition of the DuPont Professional Products insecticide business.
  • Unilever Plc. Represented Unilever on the disposal of its seed oils and cooking fats business in the United Kingdom to Princes Limited.
  • Unilever Plc. Represented Unilever on the sale of its refined oils business and boxed fats business to Pura Foods Limited, a subsidiary of Archer Daniels Midland Company.
  • Unilever Ventures. Represented Unilever Ventures in its investment in SNOG Pure Frozen Yogurt Limited, a producer and retailer of frozen yogurt.
  • VION Food Group. Represented VION Food Group on the sale of its Thai chicken business, Grampian Foods Siam Ltd., to Navis Capital Partners.

Government & Global Trade

  • Baby Food Company. Represented a company manufacturing breast milk substitutes before various
    European agencies.
  • Bilateral Trade Agreements. Represented numerous countries around the world, including China, Colombia, Peru, South Korea, Ukraine and Vietnam, in numerous bilateral and multinational trade agreements.
  • European Customs. Represented a feedstuff manufacturer and banana importers regarding various customs determinations before the European Union.
  • Free Trade Agreement. Represented the Central American poultry and sugar industries on negotiations of a free trade agreement with the European Union.
  • Multinational Trade Agreements. Lead representation in the NAFTA 117-nation Uruguay Round and WTO Doha Round free trade agreements.
  • Nutrition Company. Represented a producer of nutritional complements regarding consumer protection legislation before various European institutions.
  • Tax Dispute. Obtained a presidential decree in Brazil regarding the discriminatory tax treatment of a US F&A company.

Business & Technology Sourcing

  • Canadian Food Processing Company. Represented client in licensing SAP enterprise resource planning system worldwide, and engaging IBM to execute implementation.
  • Frozen Food Producer. Represented client regarding global arrangements for travel services and purchase cards for its employees.
  • Multinational Agribusiness Company. Represented client in multiple matters, including an agreement for global implementation of SAP enterprise resource planning, agreements for outsourcing IT help desk services in the U.S. and South America and an agreement to provide application development and maintenance services for accounting systems in Europe and the Americas.
  • Packaged Food Company. Represented client in an outsourcing of global HR functions located in 33 countries, including payroll, HR IT systems, work force administration, learning, talent development
    and contact center services.
  • Packaged Food Company. Represented client in the negotiation of a master professional services agreement, along with a supplement for finance and accounting services.
  • Packaged Food Company. Represented client in the outsourcing of all IT infrastructure services globally, including servers, mainframe, end user, telecom and associated help desk services.
  • Packaged Food Company. Represented client in a North American infrastructure outsourcing deal.

Antitrust and Competition

  • Cargill Inc. Represented Cargill in antitrust class action claims involving citric acid and high fructose corn syrup.
  • Cargill Sorbitol and Starch. Represented Cargill on an IDR 2.72 billion acquisition of a majority stake in Indonesia-based PT Sorini Agro Asia Corporindo Tbk, a producer and supplier of sorbitol
    and other starch products.
  • European Union. Represented the European Union regarding the regulation of tobacco.
  • Financiere Turenne Lafayette. Represented Financiere Turenne Lafayette in its acquisition of Madrange S.A., a France-based producer of packaged meat products.
  • Franchises and Franchise Associations. Represented numerous franchises and franchise associations, including Burger King, Taco Bell, Perkins Restaurants, Friendly’s Ice Cream, Pizza Hut, Nutrisystem and Subway, in connection with numerous competition and antitrust matters.
  • German Company. Represented a German food company in a cartel investigation by the German Bundeskartellamt, the German competition authority.
  • Monsanto and Cargill. Represented the joint venture for the development of transgenic seed.
  • Provimi. Represented the purchaser in the €1.5 billion acquisition of Provimi, a Netherlandsbased animal nutrition company.

False Advertising Litigation

  • Chobani, Inc. Represented Chobani, Inc., in a nationwide consumer class action alleging false advertising with respect to Greek yogurt products marketed as having “only natural ingredients.”
  • Dreyer’s Grand Ice Cream. Represented Dreyer’s Grand Ice Cream in a nationwide consumer class action alleging false advertising with respect to frozen dessert products labeled “0g trans fat.”
  • Gerber. Represented Gerber’s probiotics sales practices in a nationwide consumer class action alleging false advertising with respect to baby formula and cereal products labeled as containing immune-supporting probiotics, digestion-supporting prebiotics, and brain and eye development supporting DHA.
  • Mott’s LLP. Represented Mott’s in a nationwide consumer class action alleging false advertising with respect to nutritional claims of Yoo-hoo chocolate drinks.
  • Nestlé USA. Represented Nestlé in various consumer class actions alleging false advertising with respect to Hot Pockets and Coffee-mate products labeled “0g trans fat”; juice products marketed as supporting brain development, immunity and digestive health; juice products marketed as “Juicy Juice 100% Juice Blend”; and nutritional and immunity claims of Carnation Instant Breakfast.

Biomass

  • Adkins Energy. Represented NICOR Energy in connection with the design, engineering and construction of the Adkins Energy ethanol plant in Lena, Illinois.
  • Alliant Biomass Plant. Represented Alliant Energy in connection with its investment in, and financing of, a biomass plant in Cedar Rapids, Iowa.
  • Colombian Ethanol Plant. Represented Ecopetrol S.A. in connection with a $203 million ethanol plant in Puerto Lopez, Colombia, the largest ethanol plant in Colombia, having a capacity to produce 480,000 liters per day.
  • Craton Equity Partners. Represented Craton Equity Partners as the developer of alternative energy and biofuel development projects in Sub-Saharan Africa, including a vertically integrated sugarcane-based ethanol operation in Mozambique generating more than 60 million gallons of ethanol and more than 30 MW of electricity per year.
  • Eagle Valley Clean Energy. Represented Deutsche Bank in connection with the financing of the construction of an 11.5 MW biomass-fired power plant and associated fuel supply infrastructure located in Eagle County, Colorado.
  • Emerald Ethanol. Represented Cargill, Inc. in connection with the development and financing of four 100 Mmgy ethanol plants for Emerald Ethanol, having a total value of approximately $650 million.
  • Ensyn Group, Inc. Represented Ensyn Group, Inc. in connection with its $85 million merger with Ivanhoe Energy Inc., an owner and operator of a biomass processing business.
  • National Biodiesel Board. Advised the National Biodiesel Board in connection with antidumping and countervailing duty complaints against US exports.
  • National Biodiesel Board. Represented the National Biodiesel Board and several US biodiesel producers in anti-dumping and anti-subsidy investigations initiated by the European Union.