Exhibit B-4(f)(12)
EXECUTION COPY
SECOND AMENDMENT AND WAIVER
TO NOTE AGREEMENT
This Second Amendment, dated March 30, 2002 (this
"Amendment") to that certain Consolidated, Amended and Restated
Note Agreement dated as of November 3, 2000, (as amended by the
amendment dated as of October 23, 2001, the "Note Agreement")
between Gold Xxxx Inc., a cooperative marketing association
organized and existing under the laws of the State of Georgia
(the "Company"), and The Prudential Insurance Company of America
("Prudential") both on its own behalf and as asset manager for
Gateway Recovery Trust.
WHEREAS, the parties hereto have executed and delivered that
certain Note Agreement;
WHEREAS, capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Note Agreement;
and
WHEREAS, GC Properties owns the real property located at 000
Xxxxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, a portion of
which is leased by the Company from GC Properties for use as the
Company's corporate headquarters and principal place of business
(the "Headquarters Building"); and
WHEREAS, GC Properties desires to obtain an increase in
Indebtedness with respect to the Headquarters Building as set
forth on Schedule 6L to the Note Agreement in the amount of
$5,000,000 to make certain necessary improvements and renovations
to the Headquarters Building (the "Additional GC Indebtedness");
and
WHEREAS, Paragraph 6L of the Note Agreement prohibits the
incurrence of the Additional GC Indebtedness; and
WHEREAS, the Company owns certain real property located in
Moultrie, Georgia, formerly utilized by the Company and its
affiliates for cotton production operations (the "Moultrie
Facility") and the Company desires to sell the Moultrie Facility
(the "Moultrie Sale") for a purchase price of not less than
$1,800,000; and
WHEREAS, Paragraph 5K of the Note Agreement requires the
Company to make mandatory prepayments to the Senior Note Holders
and the lenders under the Bank Agreement in an amount equal to
100% of the net proceeds from the Moultrie Sale, with such
mandatory prepayments to be made to such lenders and the Senior
Note Holders on a pro-rata basis based upon the principal
outstanding under their respective Senior Notes and loans,
pursuant to Paragraph 5K(ii) of the Note Agreement (the
"Mandatory Prepayment"); and
WHEREAS, GK Pecans, Inc. (a Subsidiary of the Company) owns
twenty-five percent (25%) of the total outstanding partnership
interests in Young Pecan, and Y Pecans Inc., a South Carolina
corporation owns seventy-five percent (75%) of the total
outstanding partnership interests in Young Pecan; and
WHEREAS, in connection a certain Restructuring Agreement
dated as of December 17, 2001 among Young Pecan, its partners,
and their respective parent companies, the Company has obtained
operating control of Young Pecan and is obligated under GAAP to
include Young Pecan's financial statements on a fully
consolidated basis with the Company's financial statements (the
"Young Pecan Consolidation"); and
WHEREAS, the Company has requested that Prudential amend (a)
the definitions of Subsidiary and Indebtedness set forth in
Paragraph 10 of the Note Agreement to provide for the Young Pecan
Consolidation and (b) Paragraph 6L of the Note Agreement to
provide for the Additional GC Indebtedness; and
WHEREAS, the Company has also requested that Prudential
waive the provisions of Paragraph 5K of the Note Agreement with
respect to the Mandatory Prepayment to allow the net proceeds of
the Moultrie Sale to be retained by the Company; and
WHEREAS, Prudential is willing to enter into this Amendment
subject to the satisfaction of conditions and terms set forth
herein;
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. Pursuant to paragraph 11C of the Note Agreement the Company
and Prudential hereby agree that the Note Agreement shall be
amended as follows:
1. Xxxxxxxxx 0X. Xxxxxxxxx 0X(x) is amended in its
entirety to read as follows:
(d) Indebtedness for Money Borrowed in existence on
the date hereof, and set forth on Schedule 6L; provided,
however, in connection with the mortgage facility on the
corporate headquarters building owned by GC Properties as
set forth on Schedule 6L, such mortgage facility may be
increased by an amount not to exceed $5,000,000 after the
date hereof."
2. Paragraph 10. Paragraph 10 of the Note Agreement shall
be amended by deleting the definitions of "Consolidated Total
Debt", "Indebtedness", "Subsidiary" and "Total Debt" and by
replacing them with the following definitions:
`Consolidated Total Debt' shall mean (a) Total Debt of
the Company and its Subsidiaries, plus (b) the Total Debt of
any other Person (other than Young Pecan during the period
in which Young Pecan is not deemed to be a "Subsidiary" as
described in the last sentence of the definition of
"Subsidiary") which (i) has been guaranteed by the Company
or any Subsidiary or (ii) is supported by a letter of credit
issued for the account of the Company or any Subsidiary, all
consolidated in accordance with GAAP.
`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.
`Subsidiary' shall mean any corporation, partnership,
joint venture, limited liability company, trust or estate or
other entity in which (or of which) the Company, directly or
indirectly, owns or controls more than 50% of (a) any shares
of Stock or other form of ownership interest of such Person
having general voting power under ordinary circumstances to
vote in the election of the board of directors, managers or
trustees of such Person (irrespective of whether or not at
the time Stock of any other class or classes shall have or
might have voting power by reason of the happening of any
contingency), or (b) the interest in the capital or profits
of such Person, provided, however, notwithstanding the
foregoing, GC Properties shall not be deemed to be a
"Subsidiary" of the Company, and provided, further,
notwithstanding the foregoing, Young Pecan shall not be
deemed to be a "Subsidiary" of the Company until the earlier
of (x) October 31, 2002, and (y) the date of any repurchase
demand on, or repurchase by, the Company pursuant to that
certain Debt Repurchase Agreement between CoBank, the
Company and Young Pecan Shelling Company, Inc. dated as of
April 30, 2001.
`Total Debt' shall mean, as to any Person, and include
without duplication:
(a) all Indebtedness for Money Borrowed, including,
without limitation, purchase money mortgages, Capital
Leases, any asset securitization programs that are not non-
recourse, conditional sales contracts and similar title
retention debt instruments (including any current maturities
of such indebtedness), which under GAAP is shown on the
balance sheet as a liability (but excluding reserves for
deferred income taxes and other reserves to the extent such
reserves do not constitute an obligation); and
(b) Guarantees, endorsements (other than endorsements
of negotiable instruments for collection in the ordinary
course of business) and other contingent liabilities
(whether direct or indirect) in connection with the
obligations, Stock or dividends of any other Person; and
(c) obligations under any other contract in connection
with any borrowing which, in effect, is substantially
equivalent to a guarantee (other than any undertaking with
respect to the obligations of Young Pecan during the period
in which Young Pecan is not deemed to be a "Subsidiary" as
described in the last sentence of the definition of
"Subsidiary"); and
(d) obligations with respect to any redeemable
preferred Stock which is required or scheduled to be
redeemed within one year from the date of calculation.
Any obligation secured by a Lien on, or payable out of the
proceeds of production from, property of the Company or any
Subsidiary shall be deemed to be Total Debt of the Company or
such Subsidiary even though such obligation shall not be assumed
by the Company or such Subsidiary.
3. Waiver of Certain Provisions of the Note Agreement.
Prudential hereby waives the provisions of Paragraph 5K of the
Note Agreement with respect to the Mandatory Prepayment in
connection with the Moultrie Sale; provided that the foregoing
waiver shall not be effective unless Prudential shall have
received a waiver or consent executed by the agent and the
lenders a party to the Bank Agreement agreeing to waive their pro-
rata share of the mandatory prepayment from the net proceeds of
the Moultrie Sale, in form and substance acceptable to
Prudential.
B. Conditions of Effectiveness. Upon satisfaction of the
following, the effective date of this Amendment shall be March
30, 2002. This Amendment shall become effective when, and only
when,
1. Prudential shall have received all of the following
documents, each (unless otherwise indicated) being dated the date
hereof, in form and substance satisfactory to the holders of the
Notes:
(a) executed originals of this Amendment;
(b) a duly executed copy of the First Amendment and
Waiver to the Bank Agreement, dated as of the date hereof;
(c) such other documents, instruments, approvals or
opinions as Prudential may reasonably request; and
2. The Company shall have paid all costs and expenses
(including legal fees) incurred by Prudential; and
3. 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 December 31, 2000; and the Company shall have
delivered to Prudential an Officer's Certificate to such effect.
C. Representations and Warranties.
1. 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) 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 (A) its charter or by-laws, (B) law or
(C) 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.
(b) 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.
(c) This Amendment constitutes the legal, valid and
binding obligations of the Company enforceable against the
Company in accordance with its terms.
(d) 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 holder of a Note 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 Prudential 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 any holder of the
Notes 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.
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
Treasurer
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, as asset
manager for Gateway Recovery Trust
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
[14688]
