Exhibit 10.1.6
SEVENTH AMENDMENT TO NOTE AGREEMENT
This Seventh Amendment, dated as of February 28, 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 and
as of September 28, 2004 (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
Section 6I 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 the
Note Agreement is amended by deleting paragraph 6I thereof in its
entirety and substituting in lieu thereof the following revised
paragraph 6I:
6I. Hedging Contracts. The Company shall not and
shall not permit any Subsidiary to, enter into any
Hedging Contract except: (a) bona fide hedging
transactions in commodities that represent production
inputs or products to be marketed, or in commodities
needed in operations to meet manufacturing or market
demands, provided that (i) long cash or futures
positions and/or options strategies on corn and soybean
meal and wheat shall in no event cover more than thirty-
nine weeks of the Company's anticipated requirements
for feed ingredients, shall have been entered into in
compliance with the Company's Corporate Policy For
Futures Contracts approved by the Company's Board of
Directors on April 24, 1998, as amended by the
Executive Committee of the Gold Xxxx Board of Directors
on October 4, 2002 (and which may be subsequently
amended to comply with this Section) and shall have
been approved by the Company's Hedging Committee; and
(ii) short positions on corn and soybean meal and wheat
shall be restricted to those positions that at all
times relate in both amount and maturity to priced corn
and soybean meal and wheat owned or contracted for
delivery by the Company, either directly or by
futures/and or options positions; and (b) foreign
exchange contracts, currency swap agreements, interest
rate exchange agreements, interest rate cap agreements,
interest rate collar agreements and other similar
agreements and arrangements which are reasonably
related to existing indebtedness or to monies to be
received or paid in foreign currencies.
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 June 30, 2003; and the Company shall have
delivered to Prudential an Officer's Certificate 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) Except as provided below, 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.
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: Vice President
GATEWAY RECOVERY TRUST
By: Prudential Investment
Management, Inc., as
Asset Manager
By:/s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: 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 Seventh
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 Seventh
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
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
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