Exhibit 10.2.3
THIRD AMENDMENT TO FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") dated as of March 1, 2005, is made
and entered into by and among GOLD XXXX INC. (formerly known as
Gold Xxxx Holdings Inc.), a Delaware corporation (the
"Borrower"), the various banks and other lending institutions and
institutional investors as are listed on the signature pages
hereof as Lenders (collectively, the "Lenders" and individually,
a "Lender"), and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as agent for the
Lenders (the "Agent"). All capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the
Credit Agreement (defined below).
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Agent, and the other
agents party thereto are parties to that certain Fourth Amended
and Restated Credit Agreement dated as of March 10, 2004, as
amended by that certain First Amendment to Fourth Amended and
Restated Credit Agreement dated as of July 16, 2004, and that
certain Second Amendment to Fourth Amended and Restated Credit
Agreement dated as of September 28, 2004 (as amended and as
otherwise amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower has requested that the Agent and the
Lenders amend Section 7.9 of the Credit Agreement and the Agent
and the Lenders have agreed to such amendment on the terms and
conditions set forth in this Amendment;
NOW THEREFORE, in consideration of the foregoing premises
and other good and valuable consideration paid by each party to
the other, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Amendment to Section 7.9 of the Credit Agreement.
Section 7.9 of the Credit Agreement, Hedging Contracts, is hereby
modified and amended by deleting such section in its entirety and
substituting the following in lieu thereof:
"Section 7.9. Hedging Contracts. The Borrower shall
not, and shall not permit any Subsidiary to, enter into any
Hedging Contract except: (a) bona fide hedging transactions
in commodities that represent production inputs or products
to be marketed, or in commodities needed in operations to
meet manufacturing or market demands, provided that (i) long
cash or futures positions and/or options strategies on corn,
soybean meal and wheat shall in no event cover more than
thirty-nine weeks of the Borrower's anticipated requirements
for feed ingredients, shall have been entered into in
compliance with the Borrower's Corporate Policy For Futures
Contracts approved by the Borrower's Board of Directors on
April 24, 1998, as amended by the Executive Committee of the
Borrower's Board of Directors on October 4, 2002 (and which
may be subsequently amended to comply with this Section),
and shall have been approved by the Borrower's Hedging
Committee, and (ii) short positions on corn, soybean meal
and wheat shall be restricted to those positions that at all
times relate in both amount and maturity to priced corn,
soybean meal and wheat owned or contracted for delivery by
the Borrower, either directly or by futures and/or options
positions; and (b) foreign exchange contracts, currency swap
agreements, interest rate exchange agreements, interest rate
cap agreements, interest rate collar agreements, and other
similar agreements and arrangements which are reasonably
related to existing indebtedness or to monies to be received
or paid in foreign currencies."
2. Strict Compliance. Except for the amendment set forth
above, the text of the Credit Agreement and the Loan Documents
shall remain in full force and effect. The Borrower acknowledges
and expressly agrees that the Lenders reserve the right to, and
do in fact, require strict compliance with all terms and
provisions of the Credit Agreement and the other Loan Documents.
3. Representations and Warranties. The Borrower hereby
represents and warrants in favor of the Agent and each Lender as
follows:
(a) the Borrower has the corporate power and
authority (i) to enter into this Amendment, and (ii) to
do all acts and things as are required or contemplated
hereunder to be done, observed and performed by it;
(b) this Amendment has been duly authorized,
validly executed and delivered by one or more authorized
signatories of the Borrower, and constitutes the legal,
valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms;
(c) the execution and delivery of this Amendment
and performance by the Borrower under the Credit
Agreement do not and will not require the consent or
approval of any regulatory authority or governmental
authority or agency having jurisdiction over the Borrower
which has not already been obtained, nor contravene or
conflict with the charter documents of the Borrower, or
the provisions of any statute, judgment, order,
indenture, instrument, agreement or undertaking, to which
the Borrower is a party or by which any of its properties
are or may become bound; and
(d) as of the date hereof, and after giving effect
to this Amendment (i) no Default or Event of Default
exists under the Credit Agreement, and (ii) each
representation and warranty set forth in Article 5 of the
Credit Agreement is true and correct in all material
respects.
4. Loan Document. This Amendment shall be deemed to be a
Loan Document for all purposes.
5. Expenses. The Borrower agrees to pay all reasonable
expenses of the Agent incurred in connection with this Amendment
and the other agreements, instruments and documents to be
delivered in connection therewith, including, without limitation,
all fees and expenses of counsel to the Agent.
6. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an
original and all of which, taken together, shall constitute one
and the same agreement. Any signatures delivered by a party by
facsimile transmission or by e-mail transmission of an adobe file
format document (also known as a PDF file) shall be deemed an
original signature hereto.
7. Governing Law. This Amendment shall be deemed to be
made pursuant to the laws of the State of New York applicable to
contracts made and performed in the State of New York without
regard to the conflict of laws principles thereof other than
Sections 5-1401 and 5-1402 of New York General Obligations Law.
8. Conditions to Effectiveness. This Amendment shall be
effective as of the date first written above upon the
satisfaction of the following conditions, which shall be
satisfactory in form and substance to the Agent:
(a) Execution. This Amendment shall have been duly
executed and delivered by the Borrower, the Agent and the
Required Lenders; and
(b) Other Matters. The Loan Parties shall have
provided such other information, documents, instruments and
approvals as the Agent or the Agent's counsel may reasonably
require.
9. Reference to and Effect on the Loan Documents. Upon
the effectiveness of this Amendment, on and after the date
hereof, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the
other Loan Documents to "the Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their duly
authorized officers as of the day and year first above written.
BORROWER:GOLD XXXX INC. (formerly known as Gold Xxxx Holdings
Inc.)
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Chief Financial
Officer, Vice President
By: /s/ J. Xxxxx Xxxxx
Name: J. Xxxxx Xxxxx
Title: Secretary
[CORPORATE SEAL]
AGENT, L/C ISSUER AND LENDER:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:/s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Director
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Executive Director
(SIGNATURES CONTINUE ON NEXT PAGE)
LENDERS: SUNTRUST BANK
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
ING CAPITAL LLC
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Vice President
COBANK, ACB
By: /s/ Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: Vice President
(SIGNATURES CONTINUE ON NEXT PAGE)
NATEXIS BANQUES POPULAIRES
By: /s/ Guilaume de Parscau
Name: Guilaume de Parscau
Title: Commodities Finance
Group
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
GREENSTONE FARM CREDIT SERVICES, FLCA
By:/s/ Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: VP/Sr. Lending Officer
CONSENT OF GUARANTORS
We, the undersigned, each as a Guarantor pursuant to that
certain Third Amended and Restated Subsidiary Guaranty dated as
of the 10th day of March, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the
"Guaranty"), hereby each (a) acknowledge receipt of a copy of the
foregoing Amendment, and (b) acknowledge, consent and agree that
(i) the Guaranty remains in full force and effect, and (ii) the
execution and delivery of the foregoing Amendment and any and all
documents executed in connection therewith shall not alter,
amend, reduce or modify our respective obligations and
liabilities under the Guaranty.
AGRATECH SEEDS INC. (SEAL)
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
AGRATRADE FINANCING, INC. (SEAL)
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
CROSS EQUIPMENT COMPANY, INC. (SEAL)
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
GK FINANCE CORPORATION (SEAL)
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
GK PEANUTS, INC. (SEAL)
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
GK PECANS, INC. (SEAL)
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
XXXXX INC. (SEAL)
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
AGVESTMENTS, INC. (SEAL)
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
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