Echibit 99.3
LIMITED WAIVER TO SENIOR SECURED, SUPER-PRIORITY DEBTOR-IN-
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POSSESSION CREDIT AGREEMENT
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This LIMITED WAIVER, dated as of October 31, 2003 (this "Waiver"), to the
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DIP Credit Agreement referred to below is by and among AGWAY, INC., a Delaware
corporation, FEED COMMODITIES INTERNATIONAL LLC, a Delaware limited liability
company, XXXXXXXX AGRONOMIC CONSULTING SERVICE LLC, a Delaware limited liability
company, AGWAY GENERAL AGENCY, INC., a New York corporation, COUNTRY BEST XXXXX,
LLC, a Delaware limited liability company, COUNTRY BEST-XXXXXXX LLC, a Delaware
limited liability company, AGWAY ENERGY PRODUCTS LLC, a Delaware limited
liability company, AGWAY ENERGY SERVICES-PA, INC. ("AESPA"), a Delaware
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corporation, and AGWAY ENERGY SERVICES, INC. ("AES"), a Delaware corporation, as
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Borrowers (the "Borrowers"), THE OTHER CREDIT PARTIES SIGNATORY THERETO (the
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"Credit Parties"), the lenders signatory thereto from time to time (the
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"Lenders"), and GENERAL ELECTRIC CAPITAL CORPORATION, as Agent ("Agent") and as
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a Lender.
W I T N E S S E T H
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WHEREAS, Borrowers, the Credit Parties, the Lenders and Agent are parties
to that certain Senior Secured, Super-Priority Debtor-in-Possession Credit
Agreement, dated as of October 4, 2002 (including all annexes, exhibits and
schedules thereto, and as amended, supplemented or otherwise modified from time
to time, the "DIP Credit Agreement"); and
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WHEREAS, the Agent and Requisite Lenders have agreed to waive certain
provisions of the DIP Credit Agreement, in the manner, and on the terms and
conditions, provided for herein.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have
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the meanings ascribed to them in the DIP Credit Agreement or Annex A thereto.
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2. Limited Waiver. The parties hereto acknowledge and agree that, pursuant
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to the Fourth Amendment dated as of October 16, 2003 to the DIP Credit Agreement
and subject to the conditions set forth therin, Agent and Requisite Lenders
waived, among other things, all Events of Default arising from Borrowers'
failure to deliver the reports and notices referenced in Section 4.1(a) of the
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DIP Credit Agreement and set forth in Annex E, clause (d) (Annual Audited
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Financials) thereof for the Fiscal Year ended June 30, 2003 on the condition
that Borrowers shall have delivered to Agent and Lenders such reports and
notices for such Fiscal Year on or prior to October 30, 2003 (the "Financial
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Statement Waiver"). Agent and Requisite Lenders hereby agree that,
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notwithstanding Borrowers' failure to deliver to Agent and Lenders such reports
and notices for such Fiscal Year on or prior to October 30, 2003, the Financial
Statement Waiver shall continue in effect following the Effective Date (as
defined below), provided that Borrowers shall have delivered to Agent and
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Lenders such reports and notices for such Fiscal Year on or prior to November
30, 2003.
3. Representations and Warranties. To induce Agent and Requisite Lenders to
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enter into this Waiver, Borrowers hereby represent and warrant that:
(a) The execution, delivery and performance by Borrowers of this
Waiver (i) are within Borrowers' respective corporate powers, (ii) has been duly
authorized by all necessary corporate and shareholder action, (iii) is not in
contravention of any provision of any Borrower's charter or bylaws or equivalent
organizational documents, (iv) does not violate any law or regulation, or any
order or decree of any court or Governmental Authority, (v) does not conflict
with or result in the breach or termination of, constitute a default under or
accelerate or permit the acceleration of any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which any Borrower is a party or by which any Borrower or any of its property is
bound; and (vi) does not require the consent or approval of any Governmental
Authority or any other Person.
(b) This Waiver has been duly executed and delivered by or on behalf
of Borrowers.
(c) This Waiver constitutes a legal, valid and binding obligation of
Borrowers, enforceable against each of them in accordance with its terms.
(d) No Default or Event of Default has occurred and is continuing
after giving effect to this Waiver.
(e) No action, claim or proceeding is now pending or, to the knowledge
of Borrowers, threatened against Borrowers, at law, in equity or otherwise,
before any court, board, commission, agency or instrumentality of any federal,
state, or local government or of any agency or subdivision thereof, or before
any arbitrator or panel of arbitrators, which challenges Borrowers' right,
power, or competence to enter into this Waiver or, to the extent applicable,
perform any of their obligations under this Waiver, the DIP Credit Agreement or
any other Loan Document, or the validity or enforceability of this Waiver, the
DIP Credit Agreement or any other Loan Document or an action taken under this
Waiver, the DIP Credit Agreement or any other Loan Document or except for items
on Disclosure Schedule (3.13) or notifications sent to Agent since the Closing
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Date, which if determined adversely, is reasonably likely to have or result in a
Material Adverse Effect after giving effect to this Waiver. Except for items on
Disclosure Schedule (3.13) or notifications sent to Agent since the Closing
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Date, to the knowledge of Borrowers, there does not exist a state of facts which
is reasonably likely to give rise to such proceedings.
(f) The representations and warranties of the Borrowers contained in
the DIP Credit Agreement and each other Loan Document shall be true and correct
on and as of the Effective Date (as hereinafter defined) with the same effect as
if such representations and warranties had been made on and as of such date,
except that any such representation or warranty which is expressly made only as
of a specified date need be true only as of such date.
4. No Other Amendments/Waivers. Except as expressly provided herein, (i)
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the DIP Credit Agreement shall be unmodified and shall continue to be in full
force and effect in accordance with its terms and (ii) this Waiver shall not be
deemed a waiver of any term or condition of any Loan Document and shall not be
deemed to prejudice any right or rights which the Agent or any Lender may now
have or may have in the future under or in connection with any Loan Document or
any of the instruments or agreements referred to therein, as the same may be
amended from time to time.
5. Outstanding Indebtedness. Each of the Borrowers and other Credit Parties
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hereby acknowledges and agrees that as of October 30, 2003 the aggregate
outstanding principal amount of the Revolving Loan is $35,813,781.08 and that
such principal amount is payable pursuant to the DIP Credit Agreement without
defense, offset, withholding, counterclaim or deduction of any kind.
6. Expenses. Borrowers hereby reconfirm their obligations pursuant to
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Sections 1.9 and 11.3 of the DIP Credit Agreement to pay and reimburse Agent and
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the Lenders for all reasonable costs and expenses (including, without
limitation, reasonable fees of counsel) incurred in connection with the
negotiation, preparation, execution and delivery of this Waiver and all other
documents and instruments delivered in connection herewith.
7. Effectiveness. This Waiver shall become effective as of the date hereof
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(the "Effective Date") only upon satisfaction in full in the judgment of Agent
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of each of the following conditions:
(a) Waiver. Agent shall have received six (6) original copies of this
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Waiver duly executed and delivered by Agent, the Requisite Lenders and
Borrowers.
(b) Payment of Fees and Expenses. Borrowers shall have paid to Agent
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all costs, fees and expenses invoiced and owing in connection with this Waiver
and the other Loan Documents and due to Agent (including, without limitation,
reasonable legal fees and expenses).
(c) Representations and Warranties. The representations and warranties
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of or on behalf of the Borrowers in this Waiver shall be true and correct on and
as of the Effective Date.
8. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND INTERPRETED IN
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ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9. Counterparts. This Waiver may be executed by the parties hereto on
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any number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed and delivered as of the day and year first above written.
BORROWERS
AGWAY, INC.
FEED COMMODITIES INTERNATIONAL LLC
XXXXXXXX AGRONOMIC CONSULTING SERVICE LLC
COUNTRY BEST-XXXXXXX LLC
AGWAY ENERGY PRODUCTS LLC
AGWAY ENERGY SERVICES-PA, INC.
AGWAY ENERGY SERVICES, INC.
COUNTRY BEST XXXXX, LLC
AGWAY GENERAL AGENCY, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Treasurer
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LENDERS
COBANK, ACB
By: /s/ Xxxxxxx X. Hide
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Name: Xxxxxxx X. Hide
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Title: Vice-President
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "Rabobank Nederland" New York
Branch
By:
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Name:
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Title:
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GMAC BUSINESS CREDIT, LLC
By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
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Title: Its Duty Authorized Signatory
