Exhibit 10.2.4
FOURTH AMENDMENT TO FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") dated as of June 15, 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, that certain Second Amendment to Fourth Amended and
Restated Credit Agreement dated as of September 28, 2004, and that
certain Third Amendment to Fourth Amended and Restated Credit Agreement
dated as of March 1, 2005 (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 certain provisions of the Credit Agreement and the Agent and the
Lenders have agreed to such amendments 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 1.1 of the Credit Agreement.
Section 1.1, Definitions, is hereby modified and amended by
amending and restating the definition of "Capital Asset" in its
entirety 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
12 months or less in accordance with GAAP, (b) any
goodwill created on the balance sheet of the Borrower
from the purchase of the common stock of Golden Poultry
Company, Inc. and (c) software expenditures by the
Borrower and its Subsidiaries in an aggregate amount not
exceeding $20,000,000 during the term of this Agreement."
2. Amendment to Section 7.2 of the Credit Agreement.
Section 7.2, Limitation on Restricted Payments, is hereby
modified and amended by deleting the reference to "$60,000,000" in
clause (b) of such Section and in place thereof inserting
"$80,000,000".
3. Strict Compliance. Except for the amendments 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.
4. 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.
5. Loan Document. This Amendment shall be deemed to be a
Loan Document for all purposes.
6. 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.
7. 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.
8. 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.
9. 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.
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.
(THE REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK)
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/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
[CORPORATE SEAL]
AGENT, L/C ISSUER AND LENDER: COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By: /s/ Xxxxxxxxx Xxxxxxx
Name: Xxxxxxxxx Xxxxxxx
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 X.X. (formerly known as
Xxxxxx Trust and Savings Bank)
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx 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/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Lauras
Name: Xxxxxxx Lauras
Title: Managing Director
THE CIT GROUP/BUSINESS CREDIT,
INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
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: President
