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 November 30, 2003 (this
"Waiver"), to the DIP Credit Agreement referred to below is by and among AGWAY,
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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 corporation, and AGWAY ENERGY SERVICES, INC. ("AES"), a
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Delaware corporation, as Borrowers (the "Borrowers"), THE OTHER CREDIT PARTIES
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SIGNATORY THERETO (the "Credit Parties"), the lenders signatory thereto from
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time to time (the "Lenders"), and GENERAL ELECTRIC CAPITAL CORPORATION, as Agent
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("Agent") and as a Lender.
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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
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shall have the meanings ascribed to them in the DIP Credit Agreement or Annex A
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thereto.
2. Limited Waiver. The parties hereto acknowledge and agree that,
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pursuant to the Fourth Amendment dated as of October 16, 2003 to the DIP Credit
Agreement and subject to the conditions set forth therein, 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
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4.1(a) of the DIP Credit Agreement and set forth in Annex E, clause (d) (Annual
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Audited 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"). The parties hereto also acknowledge and agree that, pursuant
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to the Limited Waiver, dated as of October 31, 2003, to the DIP Credit
Agreement, Agent and Requisite Lenders agreed that, 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 in such Limited
Waiver), provided that Borrowers shall have delivered to Agent and Lenders such
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reports and notices for such Fiscal Year on or prior to November 30, 2003. Agent
and Requisite Lenders hereby now agree that, notwithstanding Borrowers' failure
to deliver to Agent and Lenders such reports and notices for such Fiscal Year on
or prior to November 30, 2003, the Financial Statement Waiver shall continue in
effect following the Effective Date (as defined herein), provided that Borrowers
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shall have delivered to Agent and Lenders such reports and notices for such
Fiscal Year on or prior to December 31, 2003
3. Representations and Warranties. To induce Agent and Requisite
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Lenders to 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
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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
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Closing 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
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Closing 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
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herein, (i) 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
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Credit Parties hereby acknowledges and agrees that as of November 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
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pursuant to Sections 1.9 and 11.3 of the DIP Credit Agreement to pay and
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reimburse Agent and 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
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date hereof (the "Effective Date") only upon satisfaction in full in the
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judgment of Agent of each of the following conditions:
(a) Waiver. Agent shall have received six (6) original copies
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of this Waiver duly executed and delivered by Agent, the Requisite Lenders and
Borrowers.
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(b) Payment of Fees and Expenses. Borrowers shall have paid
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to Agent 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
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warranties 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
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INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9. Counterparts. This Waiver may be executed by the parties
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hereto on 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)
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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/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Sr Vice President Special Assets
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "Rabobank Nederland" New York
Branch
By: /s/ Xxxxx Xxxxxx Xxxxx Xxxxx
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Name: Xxxxx Xxxxxx Xxxxx Xxxxx
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Title: Executive Director Vice President
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GMAC COMMERCIAL FINANCE, LLC, SUCCESSOR
BY MERGER TO:
GMAC BUSINESS CREDIT, LLC
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Senior Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Its Duty Authorized Signatory
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