Exhibit 10.1.7
EIGHTH AMENDMENT TO NOTE AGREEMENT
This Eighth Amendment, dated as of June 15, 2005 (this "Amendment"), is
made to that Second Consolidated, Amended and Restated Note Agreement, dated
as of September 27, 2002, as amended as of January 29, 2003, as of
February 11, 2003, as of February 11, 2004, as of March 10, 2004, as of
July 16, 2004, as of September 28, 2004 and as of February 28, 2005 (as so
amended, the "Note Agreement"), among Gold Xxxx Inc.(formerly known as Gold
Xxxx Holdings Inc.), a Delaware corporation (the "Company"), The Prudential
Insurance Company of America ("Prudential") and the Gateway Recovery Trust
("Gateway"; Prudential and Gateway, collectively, "Noteholders").
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Note Agreement.
WHEREAS, the parties hereto have executed and delivered that certain
Note Agreement;
WHEREAS, the Company has requested that Noteholders amend paragraphs 6B
and 10B of the Note Agreement and Noteholders have agreed to do so on the
terms and conditions set forth in this Amendment;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
A. Amendments. Pursuant to paragraph 11C of the Note Agreement, the
Company and the Required Holders hereby agree that the Note Agreement is
amended as follows:
1. Xxxxxxxxx 0X. Xxxxxxxxx 6B of the Note Agreement is
hereby amended by changing the figure "$60,000,000" in clause
(b)(ii) thereof to "$80,000,000".
2. Definition of Capital Asset. The definition of "Capital
Asset" set forth in paragraph 10B of the Note Agreement is hereby
amended to read as follows:
"Capital Asset" shall mean fixed assets, both tangible
and intangible, provided that Capital Asset shall not include
(a) any item customarily charged directly to expense or
depreciated over a useful life of twelve (12) months or less
in accordance with GAAP, (b) any goodwill created on the
balance sheet of the Company from the purchase of the common
stock of Golden Poultry and (c) software expenditures of the
Company and its Subsidiaries in an aggregate amount not
exceeding $20,000,000 during the term of this Agreement.
B. Conditions of Effectiveness. This Amendment shall become effective
when, and only when,
1. Prudential shall have received all of the following documents, each in
form and substance satisfactory to the Required Holders:
(a) executed originals of this Amendment;
(b) executed amendments to the Bank Agreement and to that certain
First Amended and Restated Credit Agreement, dated as of January 29,
2003, between the Company and CoBank, ACB, as amended to date, amending
such agreements in a manner similar to that set forth herein.
(c) Such other information, documents, instruments and approvals
as the Noteholders or their counsel may reasonably require.
2. The representations and warranties contained herein shall be true
on and as of the date hereof, and there shall exist on the date hereof no
Event of Default or Default; there shall exist no material adverse change in
the financial condition, business operation or prospects of the Company or
its Subsidiaries since the last day of the Company's Fiscal Year ending on or
about September 30, 2004; and the Company, by its execution and delivery of
this Amendment, shall have certified to the Noteholder to such effect.
C. Representations and Warranties.
1. Except as previously disclosed to Prudential in writing, the
Company hereby repeats and confirms each of the representations and
warranties made by it in paragraph 8 of the Note Agreement, as amended
hereby, as though made on and as of the date hereof, with each reference
therein to "this Agreement", "hereof", "hereunder", "thereof", "thereunder"
and words of like import being deemed to be a reference to the Note Agreement
as amended hereby.
2. The Company further represents and warrants as follows:
(a) (i) Neither the Company nor any Affiliate of the Company is
in violation of any Anti-Terrorism Law or engages in or conspires to
engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set
forth in any Anti-Terrorism Law.
(ii) Neither the Company nor any Affiliate of the Company is a
Blocked Person.
(iii) Neither the Company nor any Affiliate of the Company
(1) conducts any business or engages in making or receiving any
contribution of funds, goods or services to or for the benefit of any
Blocked Person or (2) deals in, or otherwise engages in any transaction
relating to, any property or interests in property blocked pursuant to
Executive Order No. 13224.
(b) The execution, delivery and performance by the Company of this
Amendment are within its corporate powers, have been duly authorized by
all necessary corporate action and do not contravene (i) its charter or
by-laws, (ii) law or (iii) any legal or contractual restriction binding
on or affecting the Company; and such execution, delivery and
performance do not or will not result in or require the creation of any
Lien upon or with respect to any of its properties.
(c) No governmental approval is required for the due execution,
delivery and performance by the Company of this Amendment, except for
such governmental approvals as have been duly obtained or made and which
are in full force and effect on the date hereof and not subject to
appeal.
(d) This Amendment constitutes the legal, valid and binding
obligations of the Company enforceable against the Company in accordance
with its terms.
(e) There are no pending or threatened actions, suits or
proceedings affecting the Company or any of its Subsidiaries or the
properties of the Company or any of its Subsidiaries before any court,
governmental agency or arbitrator, that may, if adversely determined,
materially adversely affect the financial condition, properties,
business, operations or prospects of the Company and it Subsidiaries,
considered as a whole, or affect the legality, validity or
enforceability of the Note Agreement, as amended by this Amendment.
D. Miscellaneous.
1. Reference to and Effect on the Note Agreement.
(a) Upon the effectiveness of this Amendment, on and after the
date hereof each reference in the Note Agreement to "this Agreement",
"hereunder", "hereof" or words of like import referring to the Note
Agreement, and each reference in any other document to "the Note
Agreement", "thereunder", "thereof" or words of like import referring to
the Note Agreement, shall mean and be a reference to the Note Agreement,
as amended hereby.
(b) Except as specifically amended and waived above, the Note
Agreement, and all other related documents, are and shall continue to be
in full force and effect and are hereby in all respects ratified and
confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any
holder of a Note under the Note Agreement or the Notes, nor constitute a
waiver of any provision of any of the foregoing.
2. Costs and Expenses. The Company agrees to pay on demand all costs
and expenses incurred by any Noteholder in connection with the preparation,
execution and delivery of this Amendment, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel. The Company further
agrees to pay on demand all costs and expenses, if any (including, without
limitation, reasonable counsel fees and expenses of counsel), incurred by any
holder of a Note in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Amendment.
3. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and
the same instrument.
4. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York.
5. Estoppel. To induce Noteholders to enter into this Amendment, the
Company hereby acknowledges and agrees that, as of the date hereof, there
exists no right of offset, defense or counterclaim in favor of the Company
against Noteholders with respect to the obligations of the Company to any
such holder, either with or without giving effect to this Amendment.
6. Related Documents. This Amendment shall be deemed to be a Related
Document for all purposes.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
GOLD XXXX INC.
By:/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
Chief Financial Officer and Vice
President
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Senior Vice President
GATEWAY RECOVERY TRUST
By: Prudential Investment Management,
Inc., as Asset Manager
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Senior Vice President
CONSENT OF GUARANTORS
We, the undersigned, each as a Guarantor pursuant to that
certain Amended and Restated Subsidiary Guaranty dated as of the
27th day of September, 2002 (as amended, restated, supplemented
or otherwise modified from time to time, the "Guaranty"), hereby
each (a) acknowledge receipt of a copy of the foregoing Eighth
Amendment to Note Agreement, 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 Eighth Amendment
to Note Agreement and any and all documents executed in
connection therewith shall not alter, amend, reduce or modify our
respective obligations and liabilities under the Guaranty.
AGRATRADE FINANCING, INC.
By: /s/ Xxxxxxx X. Xxxx
Title: Treasurer
CROSS EQUIPMENT COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxx
Title: Treasurer
GK FINANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Title: Treasurer
(GUARANTOR SIGNATURES CONTINUE ON NEXT PAGE)
GK PEANUTS, INC.
By: /s/ Xxxxxxx X. Xxxx
Title: Treasurer
GK PECANS, INC.
By: /s/ Xxxxxxx X. Xxxx
Title: Treasurer
XXXXX INC.
By: /s/ Xxxxxxx X. Xxxx
Title: Treasurer
AGRATECH SEEDS INC.
By: /s/ Xxxxxxx X. Xxxx
Title: Treasurer
AGVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxx
Title: President
