Exhibit B-10(e)(3)
SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment"), dated as of February 11, 2003, is
made and entered into by and among GOLD XXXX INC., a cooperative
marketing association organized and existing under the laws of
the State of Georgia (the "Borrower"), various banks and other
lending institutions and institutional investors as are, or may
from time to time become, parties hereto (collectively, the
"Lenders" and individually, a "Lender"), SUNTRUST BANK, as
Syndication Agent (the "Syndication Agent"), XXXXXX TRUST AND
SAVINGS BANK and ING CAPITAL LLC, as Co-Managing Agents
(collectively, the "Co-Managing Agents"), and COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH, as agent for the Lenders and sole lead arranger
(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 and the Agent are parties
to that certain Third Amended and Restated Credit Agreement dated
as of September 27, 2002, among the parties hereto, as amended by
that certain First Amendment to Third Amended and Restated Credit
Agreement, dated as of January 24, 2003 (as 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 certain provisions of the Credit Agreement, and the
Agent and the Lenders have agreed to do so 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 Credit Agreement. The Credit Agreement is
hereby modified and amended as follows:
(a) Amendments to Section 1.1 of the Credit Agreement.
Section 1.1 of the Credit Agreement, "Definitions," is hereby
modified and amended as follows:
(i) The definition of "Applicable Margin" is
hereby deleted in its entirety from Section 1.1 and the
following is substituted in lieu thereof:
""Applicable Margin" shall mean, with respect to
the Revolving Loans, the Tranche A Term Loans and
the Commitment Fee, on a per annum basis, the
percentage designated below under the applicable
column heading and corresponding to the Senior
Debt Coverage Ratio:
Revolving and Commitment
Senior Tranche A Term Loans Fee
Debt Coverage
Ratio
Applicable Applicable
Margin for Base Margin for
Rate Advances Eurodollar
Advances
Greater than or 2.750% 4.000% 0.600%
equal to 4.00 to
1.00
Greater than or 2.250% 3.500% 0.575%
equal to 3.50 to
1.00 but less
than 4.00 to
1.00
Greater than or 1.750% 3.000% 0.550%
equal to 3.00
to1.00 but less
than 3.50 to
1.00
Greater than or 1.250% 2.500% 0.525%
equal to 2.50 to
1.00 but less
than 3.00 to
1.00
Less than 2.50 0.750% 2.000% 0.500%
to 1.00
The Applicable Margin for the Revolving Loans, the
Tranche A Term Loans and the Commitment Fee shall
be determined quarterly (and the rate determined
at that time shall apply until the next quarterly
determination) based upon the Senior Debt Coverage
Ratio, determined pursuant to the financial
statements delivered to the Lenders pursuant to
Section 6.1(a) or Section 6.1(b) hereof, as the
case may be, with such Applicable Margin to be
effective with respect to calculations based upon
such financial statements as of the first day of
the second fiscal quarter immediately following
the fiscal quarter for which such financial
statements are delivered; provided, during the
period commencing February 11, 2003 through and
including March 31, 2003, the Applicable Margins
will be 1.750% with respect to Base Rate Advances,
3.000% with respect to Eurodollar Advances and
0.550% with respect to the Commitment Fee.
Notwithstanding the foregoing, in the event that
the financial statements required to be delivered
pursuant to Section 6.1(a) and Section 6.1(b), as
applicable, and the related compliance certificate
required to be delivered in connection therewith,
are not delivered when due, then (x) if such
financial statements and certificate are delivered
after the date such financial statements and
certificate were required to be delivered and the
Applicable Margin increases from that previously
in effect as a result of the delivery of such
financial statements, then the Applicable Margin
during the period from the date upon which such
financial statements were required to be delivered
until the date upon which they actually are
delivered shall be the Applicable Margin as so
increased and (y) if such financial statements and
certificate are delivered after the date such
financial statements and certificate were required
to be delivered and the Applicable Margin
decreases from that previously in effect as a
result of the delivery of such financial
statements, then such decrease in the Applicable
Margin shall not become applicable until the date
upon which the financial statements and
certificate are actually delivered."
(ii) The definition of "Borrowing Base" is hereby
deleted in its entirety from Section 1.1 and the following
is substituted in lieu thereof:
""Borrowing Base" shall mean, as of the end of any
accounting month, an amount equal to the sum of:
(a) 80% of all Eligible Receivables as of such
date of determination; plus (b) 55% of Eligible
Inventory (other than raw materials, corn and
soybeans) as of such date of determination; plus
(c) 50% of all raw materials (other than supplies)
that constitute Eligible Inventory as of such date
of determination; plus (d) 70% of all corn and
soybeans that constitute Eligible Inventory as of
such date of determination; plus (e) 60% of the
value of Borrower's Broilers, valued at the lower
of cost or market, less any amounts due growers
for services in respect of Borrower's Broilers;
plus (f) $0.50 for each of the Borrower's Breeder
Chickens; plus (g) prior to the termination of the
lenders' commitments under the Bridge Credit
Agreement, the lesser of (i) $5,000,000 or (ii)
10% of Eligible Inventory (other than raw
materials, corn and soybeans)."
(iii) The definition of "Capital Expenditure
Carry Forward Amount" is hereby deleted in its entirety from
Section 1.1 and the following is substituted in lieu
thereof:
""Capital Expenditure Carry Forward Amount" means,
to the extent positive, for any fiscal year, a
carry forward amount equal to $40,000,000 less the
aggregate amount of Capital Expenditures made
pursuant to Section 7.11(b) in the immediately
preceding fiscal year."
(iv) The definition of "Consolidated Tangible Net
Worth" is hereby deleted in its entirety from Section 1.1
and the following is substituted in lieu thereof:
""Consolidated Tangible Net Worth" shall mean
Consolidated Net Worth, less the Intangible Assets
of the Borrower and its Subsidiaries, but
including the goodwill (as reflected on the
Borrower's financial statements delivered pursuant
to Section 6.1 hereof from time to time but not to
exceed $23,900,000) created in connection with the
acquisition by the Borrower of the outstanding
equity of Golden Poultry Company, Inc. in
September, 1997."
(v) The definition of "Consolidated Total Debt"
is hereby deleted in its entirety from Section 1.1 and the
following is substituted in lieu thereof:
""Consolidated Total Debt" shall mean (a) Total
Debt of the Borrower and its Subsidiaries, plus
(b) the Total Debt of any other Person which (i)
has been guaranteed by the Borrower or any
Subsidiary or (ii) is supported by a letter of
credit issued for the account of the Borrower or
any Subsidiary, all consolidated in accordance
with GAAP."
(vi) The definition of "Indebtedness" is hereby
deleted in its entirety from Section 1.1 and the following
is substituted in lieu thereof:
""Indebtedness" of any Person shall mean, without
duplication (a) all obligations of such Person
which in accordance with GAAP would be shown on
the balance sheet of such Person as a liability
(including, without limitation, obligations for
borrowed money and for the deferred purchase price
of property or services, obligations evidenced by
bonds, debentures, notes or other similar
instruments, and such Person's pro-rata share of
any obligations of a general partnership in which
such Person is the general partner); (b) all
rental obligations under leases required to be
capitalized under GAAP; (c) all Guaranties of such
Person (including contingent reimbursement
obligations under undrawn letters of credit); (d)
Indebtedness of others secured by any Lien upon
property owned by such Person, whether or not
assumed; and (e) obligations or other liabilities
under Hedging Contracts, or similar agreements or
combinations thereof which are disclosed as
liabilities on the balance sheet of such Person in
accordance with GAAP."
(vii) The definition of "Intangible Assets" is
hereby deleted in its entirety from Section 1.1 and the
following is substituted in lieu thereof:
""Intangible Assets" of a Person, shall mean the
non-current, non-physical assets of such Person
that entitle such Person to certain legal rights
or competitive advantages, and shall include
copyrights, trademarks, tradenames and other
intellectual property, franchises, goodwill (to
the extent positive), organizational costs,
licenses and permits, and, in connection with the
Borrower, shall include the SSC Securities."
(viii) The definitions of "Senior Note Holders"
and "Senior Notes" are hereby deleted in their entirety from
Section 1.1 and the following are substituted in lieu
thereof:
""Senior Note Holders" shall mean CoBank, ACB, The
Prudential Insurance Company of America and the
Gateway Recovery Trust, and their respective
successors and assigns under the Senior Notes.
"Senior Notes" shall mean (a) that certain First
Amended and Restated Credit Agreement, dated as of
January 29, 2003, between the Borrower and CoBank,
ACB, as such agreement may be modified, amended,
renewed, refinanced or replaced, and (b) that
certain Second Consolidated, Amended and Restated
Note Agreement dated September 27, 2002, among the
Borrower and The Prudential Insurance Company of
America and the Gateway Recovery Trust, as amended
by that certain First Amendment to Note Agreement,
dated as of January 29, 2003, as further amended
by that certain Second Amendment to Note
Agreement, dated as of February 11, 2003 and as
such agreement may be modified, amended, renewed,
refinanced or replaced."
(ix) The definition of "Subordinated Debt" is
hereby deleted in its entirety from Section 1.1 and the
following is substituted in lieu thereof:
""Subordinated Debt" shall mean all Indebtedness
for Money Borrowed wherein the principal and
premium, if any, and interest is subordinated and
junior in right of payment to the prior payment in
full of all other Indebtedness of the Borrower for
Money Borrowed except other Subordinated Debt, and
shall include, without limitation, the
Subordinated Capital Certificates of Interest and
Subordinated Loan Certificates, issued by the
Borrower, as described on, and an example of whose
subordination provisions are annexed hereto, as
Schedule S-1."
(x) The definition of "Young Pecan" is hereby
deleted in its entirety from Section 1.1 and the following
is substituted in lieu thereof:
""Young Pecan" shall mean Young Pecan Shelling
Company, Inc., as successor to Young Pecan
Company."
(xi) The following definition is inserted in
Section 1.1 in alphabetical order therein:
""Bridge Credit Agreement" shall mean that certain
Credit Agreement, dated as of February 11, 2003,
by and among the Borrower, various banks and other
lending institutions and institutional investors
as are, or may from time to time become, parties
thereto and Rabobank, as agent thereunder (as
amended, restated, supplemented or otherwise
modified from time to time)."
(xii) The definitions of "Cumulative Preferred
Certificates of Interest," "CoBank Loans" and "Prudential
Loans" are deleted in their entirety from Section 1.1.
(b) Amendment to Section 3.10 of the Credit Agreement.
Section 3.10 of the Credit Agreement, "Voluntary Prepayments of
Loans," is hereby modified and amended as follows:
(i) Subsection 3.10(a) is hereby deleted in its
entirety and the following is inserted in lieu thereof:
"(a) The Borrower may, at its option, (i) at any
time that there are no Loans (as defined in the
Bridge Credit Agreement) outstanding under the
Bridge Credit Agreement, prepay Revolving Loans;
provided, that, the Borrower may prepay Revolving
Loans at any time to the extent necessary to cause
the L/C Issuer to issue Letters of Credit
hereunder and (ii) upon repayment in full in cash
of all obligations owing under the Bridge Credit
Agreement and the termination of the lenders'
commitments to lend thereunder, prepay Tranche A
Term Loans, in each case, in whole or in part, in
amounts aggregating $1,000,000 or any greater
amount in integral multiples of $100,000. Those
Loans may be prepaid by paying the principal
amount to be prepaid, together with interest
accrued and unpaid thereon to the date of
prepayment, and all compensation payments pursuant
to Section 3.15 if such prepayment is made on a
date other than the last day of an Interest Period
applicable thereto. Each such optional prepayment
shall be applied in accordance with Section
3.10(e) below."
(ii) Subsection 3.10(c) is hereby modified and
amended by deleting therefrom the first word thereof
("The") and substituting in lieu thereof the following:
"Upon repayment in full in cash of all obligations
owing under the Bridge Credit Agreement and the
termination of the lenders' commitments to lend
thereunder, the"
(c) Amendment to Section 6.1 of the Credit Agreement.
Section 6.1 of the Credit Agreement, "Financial Statements," is
hereby modified and amended by deleting subsection (a) thereof in
its entirety and substituting the following in lieu thereof:
"(a) (i) As soon as practicable and in any event
within 30 days after the end of each of the first
eleven months of each fiscal year (other than
those months corresponding to the end of a fiscal
quarter of the Borrower), and within 45 days after
the end of each of the first eleven months
corresponding to the end of a fiscal quarter of
the Borrower, (x) unaudited consolidated and
consolidating statements of income, cash flow and
business segment sales and margins of the Borrower
and its Subsidiaries for such month and for the
period from the beginning of the current fiscal
year to the end of such month, (y) an unaudited
consolidated and consolidating balance sheet of
the Borrower and its Subsidiaries as at the end of
such month, setting forth, with respect to such
consolidated statements of income, cash flow and
sales and margins and such consolidated balance
sheet, in comparative form, figures for the
corresponding period in the preceding fiscal year,
and (z) a management discussion and analysis,
including a variance analysis comparing actual
results to the projections delivered pursuant to
Section 6.16; and (ii) as soon as practicable and
in any event within 45 days after the end of each
of the first three fiscal quarters of each fiscal
year, (x) unaudited consolidated and consolidating
statements of operations and cash flow of the
Borrower and its Subsidiaries for such quarter and
for the period from the beginning of the current
fiscal year to the end of such quarter, (y) an
unaudited consolidated and consolidating balance
sheet of the Borrower and its Subsidiaries as at
the end of such quarter, setting forth, with
respect to such consolidated statements of
operations and cash flow and such consolidated
balance sheet, in comparative form, figures for
the corresponding period in the preceding fiscal
year all in reasonable detail and certified by the
chief financial officer or Treasurer of the
Borrower as having been prepared in accordance
with GAAP, and (z) a management discussion and
analysis, including a variance analysis comparing
actual results to the projections delivered
pursuant to Section 6.15;"
(d) Amendment to Article 6 of the Credit Agreement.
Article 6 of the Credit Agreement, "Affirmative Covenants," is
hereby modified and amended by inserting the following new
sections in sequential order therein:
"Section 6.15. Annual Projections. (a) As soon as
practicable and in any event within 30 days after
the end of the 2003 fiscal year, the Borrower
shall deliver to each Lender annual projections
for the following fiscal year, which include (i) a
statement of all of the material assumptions on
which such projections are based and (ii) monthly
consolidated and consolidating statements of
income, cash flow and balance sheets for following
fiscal year, and (b) On the same date the Borrower
delivers the financial information required to be
delivered pursuant to Section 6.1(b) hereof with
respect to the 2004 fiscal year and each fiscal
year thereafter, the Borrower shall deliver to
each Lender annual projections for the following
fiscal year, which include (i) a statement of all
of the material assumptions on which such
projections are based and (ii) quarterly
consolidated and consolidating statements of
income, cash flow and balance sheets."
Section 6.16. Eight-Week Cash Flow Projections.
On the first Business Day of each calendar week
prior to the termination of the Bridge Credit
Agreement, the Borrower shall deliver to each
Lender a written report, in form and substance
satisfactory to the Agent, reflecting the
Borrower's projected cash flow for the eight-week
period subsequent to the date of such report.
Section 6.17. Appraisals of Fixed Assets. Prior
to or on the date sixty (60) days from the closing
date of the Bridge Credit Agreement, the Borrower
shall deliver, or cause to be delivered, to the
Collateral Agent or the Agent, in form and
substance satisfactory to the Collateral Agent or
the Agent, updated appraisals, with respect to the
real property and other fixed assets of the
Borrower and its Subsidiaries, prepared by a
qualified appraisal company acceptable to the
Collateral Agent or the Agent."
(e) Amendment to Section 7.1 of the Credit Agreement.
Section 7.1 of the Credit Agreement, "Financial Covenants," is
hereby modified and amended by deleting such section in its
entirety and substituting the following in lieu thereof:
"Section 7.1 Financial Covenants.
(a) Minimum Consolidated Tangible Net
Worth. The Borrower's Consolidated Tangible Net
Worth (less any gain or loss as a result of
accumulated other comprehensive income, as defined
by GAAP) shall at all times be at least
$135,000,000, plus the sum of (i) 50% of the
Reported Net Income of the Borrower and its
consolidated Subsidiaries (to the extent positive)
for the fiscal quarter ending December 31, 2002,
and each fiscal quarter thereafter on a cumulative
basis (taken as one accounting period), but
excluding from such calculations of Reported Net
Income for purposes of this clause (i) any fiscal
quarter in which the Reported Net Income of the
Borrower and its consolidated Subsidiaries is
negative, and (ii) 100% of the cumulative Net
Proceeds of Stock received during any period after
June 29, 2002.
(b) Current Ratio. The Borrower shall
not permit at any time the ratio of Consolidated
Current Assets to Consolidated Current Liabilities
to be less than 1.10 to 1.00 calculated on a
quarterly basis.
(c) Fixed Charge Coverage Ratio.
Commencing with the second fiscal quarter of the
2004 fiscal year, the Borrower shall not permit
the Fixed Charge Coverage Ratio to be less than
the ratio set forth opposite the relevant fiscal
quarter in the following table:
Fiscal Quarter Ratio
Second Quarter Fiscal Year 2004 1.40 to 1.00
Third Quarter Fiscal Year 2004 1.60 to 1.00
Fourth Quarter Fiscal Year 2004,
And thereafter 1.75 to 1.00
(d) Senior Debt Coverage Ratio. The
Borrower shall not permit the Senior Debt Coverage
Ratio to be greater than the ratio set forth
opposite the relevant fiscal quarter in the
following table:
Fiscal Quarter Ratio
Second Quarter Fiscal Year 2003 3.75 to 1.00
Third Quarter Fiscal Year 2003 6.00 to 1.00
Fourth Quarter Fiscal Year 2003 7.25 to 1.00
First Quarter Fiscal Year 2004 7.25 to 1.00
Second Quarter Fiscal Year 2004 6.25 to 1.00
Third Quarter Fiscal Year 2004 6.25 to 1.00
Fourth Quarter Fiscal Year 2004 5.00 to 1.00
First Quarter Fiscal Year 2005 4.50 to 1.00
Second Quarter Fiscal Year 2005 4.00 to 1.00
Third Quarter Fiscal Year 2005 3.50 to 1.00
Fourth Quarter Fiscal Year 2005 3.25 to 1.00
and thereafter
(e) Minimum Cumulative EBITDA.
Commencing with the end of the third fiscal
quarter of the 2003 fiscal year, the Borrower
shall not permit EBITDA as of the last day of any
fiscal quarter to be less than the cumulative
amount set forth opposite the relevant fiscal
quarter in the following table:
Fiscal Quarter Cumulative EBITDA
Third Quarter 2003 ($22,000,000)
Fourth Quarter 2003 ($4,000,000)
First Quarter 2004 $40,000,000"
(f) Amendment to Section 7.2 of the Credit Agreement.
Section 7.2 of the Credit Agreement, "Limitations on Restricted
Payments," is hereby modified and amended by deleting such
section in its entirety and substituting the following in lieu
thereof:
"Limitation on Restricted Payments. The Borrower
will not pay or declare any dividend or make any
other distribution on or on account of any class
of its Stock or other equity or make cash
distributions of equity (including cash patronage
refunds), or make interest payments on equity, or
redeem, purchase or otherwise acquire, directly or
indirectly, any shares of its Stock or other
equity, or redeem, purchase or otherwise acquire,
directly or indirectly, any Subordinated Debt,
including, but not limited to, its Subordinated
Capital Certificates of Interest and Subordinated
Loan Certificates (except required redemptions as
provided in the indentures pursuant to which such
Subordinated Debt was issued), or permit any
Subsidiary to do any of the above (all of the
foregoing being herein called "Restricted
Payments") except that the Borrower may make (a)
cash patronage refunds in fiscal year 2002 and
thereafter in an amount, for each fiscal year, not
to exceed 10% of the member earnings for such
fiscal year, and (b) present value cashing
retirement and death payments (net of any amount
the Borrower receives as insurance proceeds) in an
aggregate amount not to exceed $5,000,000 in any
fiscal year; provided that the Borrower shall not
make any Restricted Payments upon the occurrence
and during the continuance of a Default or Event
of Default. So long as there is no Default or
Event of Default occurring or continuing, there
shall not be included in the definition of
Restricted Payments: (x) dividends paid, or
distributions made, in Stock of the Borrower or
(y) exchanges of Stock of one or more classes of
the Borrower, except to the extent that cash or
other value is involved in such exchange.
Moreover, nothing in this Section 7.2 shall
prevent any Subsidiary from making any Restricted
Payments to the Borrower or to any other Loan
Party that directly owns Stock of such Subsidiary.
The term "equity" as used in this Section 7.2
shall include the Borrower's common stock,
preferred stock, if any, other equity
certificates, and notified equity accounts of
patrons."
(g) Amendment to Section 7.4 of the Credit Agreement.
Section 7.4 of the Credit Agreement, "Investments," is hereby
modified and amended by deleting such subsection 7.4(d)(xv) in
its entirety and substituting the following in lieu thereof:
"(xv) permit to remain outstanding (x) certain
term loans to Young Pecan in an aggregate
principal amount of $10,000,000 made pursuant to a
Loan and Security Agreement among Young Pecan, the
Borrower and Foothill Capital Corporation, as
Agent, and (y) a loan to Young Pecan evidenced by
that certain note dated as of January 28, 2003, in
the original amount of $1,676,785, provided there
shall be no increase in the principal amount of
the loans described in the foregoing clauses (x)
and (y); and, provided further, that all
collateral securing the loan described in clause
(y) shall be assigned to the Collateral Agent
pursuant to the Security Agreement."
(h) Amendment to Section 7.11 of the Credit Agreement.
Section 7.11 of the Credit Agreement, "Capital Expenditures," is
hereby modified and amended by deleting such section in its
entirety and substituting the following in lieu thereof:
"Section 7.11 Capital Expenditures. The Borrower
and its Subsidiaries shall not, on a consolidated
basis, directly or indirectly, make Capital
Expenditures in an aggregate amount in excess of
(a) for the fiscal year ending (i) 2003,
$40,000,000, (ii) 2004, $40,000,000 plus the
Capital Expenditure Carry Forward Amount, if any
and (iii) 2005, $50,000,000 plus the Capital
Expenditure Carry Forward Amount, if any and (b)
in connection with the "tray pack operations" at
the Borrower's location in Live Oak, Florida,
$30,000,000 after June 29, 2002, provided,
however, the amount described in this clause (b)
shall not be available until (i) all Obligations
(as defined in the Bridge Credit Agreement) have
been paid in full in cash and all Commitments (as
defined in the Bridge Credit Agreement) to lend
thereunder have been terminated, and (ii) minimum
EBITDA of the Borrower for the immediately
preceding four fiscal quarters, as reflected in
the financial statements required to be delivered
pursuant to Section 6.1(a) and Section 6.1(b)
hereof, as applicable, and the related compliance
certificate required to be delivered in connection
therewith, is not less than $100,000,000."
(i) Amendment to Section 7.12 of the Credit Agreement.
Section 7.12 of the Credit Agreement, "Indebtedness for Money
Borrowed," is hereby modified and amended as follows: (i) the
word "and" appearing after subsection (e) thereof is hereby
deleted in its entirety; and (ii) the final period after clause
(f) thereof is deleted and the following is substituted in lieu
thereof:
"; and
(g) Indebtedness for Money Borrowed existing
under the Bridge Credit Agreement in a principal
amount not exceeding $33,220,000 plus interest and
fees related thereto."
(j) Amendment to Section 8.1 of the Credit Agreement.
Section 8.1 of the Credit Agreement, "Events of Default," is
hereby modified and amended as follows:
(i) Subsections 8.1(d) and (e) thereof are
deleted in their entirety and the following is substituted in
lieu thereof:
"(d) Any representation or warranty contained
herein or deemed to have been made hereunder or
made by or furnished in writing on behalf of the
Borrower in connection herewith shall be false or
misleading in any material respect as of the date
made or deemed to have been made, or the Borrower
fails to perform or observe any covenant contained
in Sections 6.1, 6.3, 6.5, 6.14, 6.15, 6.16 or
Article 7 of this Agreement; provided however,
that so long any failure by the Borrower to comply
with Section 6.16 hereof does not occur more
frequently than three (3) times in any six (6)
week period, no Event of Default shall occur
hereunder with respect to the failure of the
Borrower to comply with Section 6.16 hereof so
long so as such failure does not continue for more
than two (2) Business Days; or
(e) The Borrower fails to perform or observe any
covenant, term or condition contained in this
Agreement (other than those contained in Sections
6.1, 6.3, 6.5, 6.14, 6.15, 6.16 or Article 7) and
such failure shall continue for more than 30
calendar days after the earlier of (i) the date
which the Borrower obtains knowledge thereof or
(ii) the Borrower is given notice thereof; or"
(ii) The final period after Subsection 8.1(m)
thereof is deleted and the following is substituted in lieu
thereof:
"; or
(n) Without the prior consent of the Lenders, the
lenders party to the Bridge Credit Agreement shall
consent to (i) an increase in the advance rates
set forth in definition of the Borrowing Base (as
defined in the Bridge Credit Agreement) or an
increase in the aggregate amount of the
Commitments (as defined in the Bridge Credit
Agreement) thereunder or (ii) allowing the
aggregate principal amount of Loans (as defined in
the Bridge Agreement) outstanding thereunder as of
any date of determination to exceed the Borrowing
Base (as defined in the Bridge Credit Agreement)
in effect at such time."
(j) Amendment to Schedule 5.8 to the Credit Agreement.
Schedule 5.8 to the Credit Agreement, "Obligations for Money
Borrowed," is hereby modified and amended by deleting such
schedule in its entirety and substituting the attached Schedule
5.8 in lieu thereof:
2. Strict Compliance. Except for the amendments set forth
above in Section 1, 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;
(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) except as
previously disclosed in writing to the Lenders in the
form of a PowerPoint presentation that was posted via
IntraLinks on January 15, 2003, each representation and
warranty set forth in Article 5 of the Credit Agreement
is true and correct; and
(e) as of the date hereof, Agratech Seeds Inc. has
discontinued any operations and sold, transferred,
conveyed or otherwise disposed of substantially all of
its assets.
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,
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. Delivery of an executed counterpart of
this Amendment by facsimile transmission shall be as effective as
delivery of a manually executed counterpart hereof.
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 Agent's
receipt of the following:
(a) a counterpart hereof duly executed by the Borrower
and the Required Lenders;
(b) an amendment fee for the account of each Lender
that has delivered its executed signature page to this Amendment
to the Agent prior to 5:00 p.m. (New York time) on February 10,
2003, in an amount equal to twenty-five basis points of each of
such Lender's Commitments, which fee shall be fully earned as of
the date hereof and non-refundable when paid;
(c) a copy of the Bridge Credit Agreement (as defined
herein), duly executed by all parties thereto;
(d) a copy of a duly executed amendment to each of the
Senior Notes, in form and substance satisfactory to the Agent;
(e) an amendment to the Second Amended and Restated
Security Agreement, duly executed by all parties thereto, in form
and substance satisfactory to the Agent; and
(f) an amendment to the Second Amended and Restated
Intercreditor Agreement permitting the repayment in full in cash
of all obligations owing under the Bridge Credit Agreement prior
to the repayment of any Priority Claims (as defined in the
Intercreditor Agreement prior to the date hereof), duly executed
by all parties thereto, in form and substance satisfactory to the
Agent; and
(g) such other documents executed by the Borrower as
the Agent may reasonably require.
10. 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.
11. Release of Agratech. Agratech Seeds Inc. is hereby
released from its obligations under, and any liability with
respect to, the Subsidiary Guaranty and any other Loan Document.
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.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
and Treasurer
By: /s/ J. Xxxxx Xxxxx
Name: J. Xxxxx Xxxxx
Title: Secretary
[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/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Managing Director
LENDERS: SUNTRUST BANK
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Vice President
By: (no signature)
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Vice
President
By: (no signature)
Name:
Title:
COBANK, ACB
By: /s/ Xxxx Xxxx Xxxxx
Name: Xxxx Xxxx Xxxxx
Title: Vice President
By: (no signature)
Name:
Title:
NATEXIS BANQUES POPULAIRES
By:/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Guillaume de Parscau
Name: Guillaume de Parscau
Title: First Vice President
and Manager Commodities Finance
Group
ING CAPITAL LLC
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Director
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Associate
THE CIT GROUP/BUSINESS CREDIT,
INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
By: (no signature)
Name:
Title:
GREENSTONE FARM CREDIT SERVICES,
FLCA
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President/Senior
Lending Officer
By: (no signature)
Name:
Title:
XXXX XXXXXXX LIFE INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
By: (no signature)
Name:
Title:
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
By: (no signature)
Name:
Title:
SIGNATURE 4 LIMITED
By: Xxxx Xxxxxxx Life Insurance
Company, as Portfolio Advisor
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
SIGNATURE 5 L.P.
By: Xxxx Xxxxxxx Life
Insurance Company, as
Portfolio Advisor
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
MELLON BANK, N.A., solely in its
capacity as Trustee for the Xxxx
Atlantic Master Trust as directed
by Xxxx Xxxxxxx Life Insurance
Company, and not in its
individual capacity
By: /s/ Xxxxxxxxxx Xxxx
Name: Xxxxxxxxxx Xxxx
Title: Authorized Signatory
By: (no signature)
Name:
Title:
CONSENT OF GUARANTORS
We, the undersigned, each as a Guarantor pursuant to that
certain Amended and Restated Subsidiary Guaranty dated as of the
23rd day of October, 2001 (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.
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: Vice President
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
[15632]
