EXHIBIT 10.3(b)
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
AND CONSENT AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment"), is
dated as of December 22, 1999 by and among SOUTHERN STATES COOPERATIVE,
INCORPORATED, a Virginia agricultural cooperative corporation (the "Company"),
the financial institutions listed on the signature pages hereto as banks (the
"Banks"), and COBANK, ACB, as administrative agent for the Banks (in such
capacity, the "Administrative Agent").
RECITALS
WHEREAS, the Banks, the Administrative Agent and the Company are parties to
that certain Revolving Credit Agreement entered into as of January 12, 1999, as
amended by that certain First Amendment to Revolving Credit Agreement dated as
of February 3, 1999 (as so amended, the "Existing Credit Agreement"; and as
amended by this Amendment, the "Amended Credit Agreement"; capitalized terms
used herein and not otherwise defined herein shall have the meanings ascribed to
them in the Existing Credit Agreement);
WHEREAS, the Company, the Banks and the Administrative Agent desire to
enter into this Amendment to, subject to certain terms and conditions contained
herein, amend certain provisions of the Existing Credit Agreement; and
WHEREAS, the Company and GoldKist have resolved certain discrepancies in
the final purchase price of the purchased assets under the GoldKist Acquisition
Agreement pursuant to which among other things, (i) GoldKist has agreed to
repurchase from the Company certain accounts receivable, and (ii) subject to the
consent of the Banks and the Administrative Agent, GoldKist and the Company have
agreed that the indemnification provisions set forth in Section 15.3(b) of the
GoldKist Acquisition Agreement will be amended as provided in the Amendment to
the GoldKist Acquisition Agreement attached hereto as Exhibit A (the "GoldKist
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Amendment").
NOW, THEREFORE, in consideration of the premises and the agreements,
covenants and provisions herein contained and for TEN DOLLARS ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO EXISTING CREDIT AGREEMENT
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Subject to the satisfaction of the condition precedent set forth in Section
4 of this Amendment, the Company, the Banks and the Administrative Agent hereby
agree that the Existing Credit Agreement be, and it hereby is, amended as
follows:
1.1 General. Upon and after the date hereof, all references to the
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Existing Credit Agreement in that document or in any other Loan Document shall
mean the Existing Credit Agreement as amended hereby. Except as expressly
provided herein, the execution and delivery of this Amendment do not and will
not amend, modify or supplement any provision of, or constitute a consent to or
a waiver of any noncompliance with the provisions of, the Existing Credit
Agreement, and, except as specifically provided in this Amendment, the Existing
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
1.2 Amendment to Section 1.01. Section 1.01 of the Existing Credit
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Agreement is amended by amending and restating the definitions of "Consolidated
Cash Flow" and "Permitted Investments" set forth therein to read in their
entirety as follows:
"Consolidated Cash Flow" shall mean, for any period, the sum of:
(a) savings before income taxes of the Company and its consolidated
Subsidiaries, undistributed (loss) earnings in Statesman Financial
Corporation and distributions on capital securities, calculated in
accordance with GAAP; plus
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(b) undistributed (loss) earnings in Statesman Financial Corporation,
net of income taxes, calculated in accordance with GAAP; plus
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(c) Consolidated Interest Expense paid or accrued during such period,
to the extent and only to the extent that such amount was deducted in
determining item (a) above, calculated in accordance with GAAP; plus
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(d) the aggregate amount of Depreciation and amortization during such
period, to the extent and only to the extent that such amount was deducted
in determining item (a) above, calculated in accordance with GAAP; minus
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(e) one-time gains of greater than $1,000,000 during such period;
minus
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(f) extraordinary income during such period, to the extent and only
to the extent that such income was included in determining item (a) above,
calculated in accordance with GAAP.
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"Permitted Investments" means (i) cash and Cash Equivalents, (ii)
investments and loans existing on the Closing Date identified on Schedule
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6.04, (iii) investments, loans and advances in wholly-owned Subsidiaries of
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the Company, (iv) loans and advances to officers and directors (other than
loans described in clause (ix)) in an aggregate amount up to $2,000,000 at
any time outstanding, (v) loans and investments made pursuant to the
requirements of the Financing Services and Contributed Capital Agreements,
(vi) investments in CoBank, (vii) investments in Southern States Insurance
Exchange, Inc., suppliers or lenders, in each case, solely as a result of
volume or patronage refunds arising in the ordinary course of business,
(viii) investments in or received from customers in connection with
collection of amounts owing to the Company or its Subsidiaries so long as
the aggregate amount of all such investments does not at any time exceed
$7,500,000, (ix) loans to customers in the ordinary course of business, (x)
investments by the Company in a Receivables Entity in connection with a
Qualified Receivables Transaction; provided, however, that any investment
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in any such Receivables Entity is in the form of a Purchase Money Note, or
any equity interest or interests in accounts receivable and related assets
generated by the Company and transferred to such Receivables Entity in
connection with a Qualified Receivables Transactions and (x) other
investments made after the Closing Date so long as (a) the amount of any
single such investment under this clause (x) does not at any time exceed
$2,000,000, and (b) after giving effect to such proposed investment, the
aggregate amount of all such investments under this clause (x) does not
exceed $5,000,000 in any fiscal year of the Company.
1.3 Amendment to Section 6.06. Section 6.06 of the Existing Credit
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Agreement is amended by amending and restating such section in its entirety as
follows:
SECTION 6.06. Transactions with Affiliates. Enter into any transaction,
including, without limitation, the making of any Investments or Guarantees, the
purchase, sale, or exchange of property or the rendering of any service, with
any Affiliate, except for (1) transactions in the ordinary course of business of
the Company with one or more of Statesman, MLCC and Xxxxxx, Inc., and pursuant
to the reasonable requirements of its business and upon fair and reasonable
terms no less favorable to the Company than would obtain in a comparable arm's-
length transaction with a Person not an Affiliate; (2) transactions involving
the purchase or placement of insurance with Southern States Insurance Exchange,
Inc.; and (3) purchases or sales of services, products or other assets from or
to Affiliates in the ordinary course of business of the Company, each of which
purchases or sales is upon fair and reasonable terms no less favorable to the
Company than would obtain in a comparable arm's-length transaction with a Person
not an Affiliate and does not result in a loss to the Company on any such
purchase or sale; provided, however, the Company may engage in transactions in
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the normal course of business as contemplated by the Financing Services and
Contributed Capital Agreements.
SECTION 2. CONSENT
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Subject to the satisfaction of the conditions precedent set forth in
Section 4 of this Amendment and in reliance upon the representations and
warranties provided by the Company to the Administrative Agent and Banks by
which the Company has requested such consent, the Administrative Agent and each
of the Banks signatory hereto, constituting Requisite Banks,
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hereby grant their consent, in accordance with Section 6.10 (a) of the Existing
Credit Agreement, to the Company entering into the GoldKist Amendment, provided,
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however, that such consent shall be deemed void ab initio and of no force or
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effect whatsoever unless the form and substance of the final fully executed
GoldKist Amendment is substantially the same as set forth in Exhibit A attached
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hereto.
SECTION 3. REPRESENTATIONS AND WARRANTIES
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In order to induce the Administrative Agent and the Banks to enter into
this Amendment, the Company hereby represents and warrants to the Administrative
Agent and the Banks as follows:
3.1 Authorization of Amendment, Etc. The Company has the right and power,
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and has taken all necessary action to authorize the execution, delivery and
performance by it of this Amendment in accordance with its terms. This
Amendment has been duly executed and delivered by the Company and is a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
3.2 Compliance of Amendment with Laws, Etc. The execution, delivery and
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performance of this Amendment in accordance with its terms do not and will not,
by the passage of time, the giving of notice or otherwise,
(a) require any governmental approval or violate any applicable law
relating to the Company;
(b) conflict with, result in a breach of or constitute a default
under the articles or certificate of incorporation or bylaws of the
Company, any material provisions of any indenture, agreement or other
instrument to which the Company is a party or by which the Company or any
of its properties may be bound or any governmental approval relating to the
Company, or
(c) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by the
Company.
3.3 Representations in Credit Agreement. Immediately prior to the
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effectiveness of this Amendment, all of the representations set forth in the
Existing Credit Agreement were accurate in all material respects as of the date
hereof, except to the extent that such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties
shall have been true and correct on and as of such date. After giving effect to
this Amendment, all of the representations and warranties set forth in the
Amended Credit Agreement, will be accurate in all material respects as of the
date hereof, except to the extent that such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties shall have been true and correct on and as of such date.
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SECTION 4. CONDITIONS TO EFFECTIVENESS
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The effectiveness of this Amendment is subject to the satisfaction in full
of each of the following conditions precedent:
4.1 Executed Loan Documents. This Amendment shall have been duly
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authorized and executed by the parties hereto in form and substance
satisfactory to the Administrative Agent, shall be in full force and effect and
no default shall exist hereunder, and the Company and the Banks party hereto
shall have delivered original counterparts hereof to the Administrative Agent.
4.2 Final GoldKist Amendment. The Company shall have delivered to the
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Administrative Agent the final, execution copy, of the GoldKist Amendment.
SECTION 5. MISCELLANEOUS
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5.1 Counterparts. This Amendment may be executed by each party to this
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Amendment upon a separate copy, and in such case one counterpart of this
amendment shall consist of enough of such copies to reflect the signature of all
of the parties to this Amendment. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Amendment or its terms to produce or account
for more than one of such counterparts.
5.2 Section References. The references in this Amendment to any section
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are, unless otherwise specified, to such section of this Amendment.
5.3 Construction. This Amendment is a Loan Document executed pursuant to
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the Existing Credit Agreement and shall be construed, administered and applied
in accordance with all of the terms and provisions of the Existing Credit
Agreement.
5.4 Governing Law. This amendment shall be governed by, construed and
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enforced in accordance with the laws of the Commonwealth of Virginia, without
reference to the conflicts or choice of law principles thereof.
5.5 Successors and Assigns. This amendment shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors and
assigns.
5.6 Effectiveness. The amendments set forth in Section 1 hereof shall
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become effective as of the date of this Amendment (and shall not apply to any
period prior to the date of this Amendment), upon the satisfaction of all of the
conditions precedent set forth in Section 4 hereof
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers hereunder duly authorized as of the day
and year first written above.
SOUTHERN STATES COOPERATIVE,
INCORPORATED
By: /s/ Xxxxxx X. Xxxxxx
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Title: VICE PRESIDENT & TREASURER
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COBANK, ACB, as Administrative Agent
and Bank
By: /s/ Xxxx X. X'Xxxxxxxx
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Title: Vice President
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FIRST UNION NATIONAL BANK,
as Bank
By: /s/ Xxxxxx McCrichard
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Title: Vice President
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BANK OF AMERICA, N.A. (successor by merger to
NationsBank, N.A.), as Bank
By: /s/
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Title: Principal
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FMB Bank,
as Bank
By: /s/
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Title: Vice President
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as Bank
By: /s/
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Title: Vice President
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By: /s/ Xxxxxx Xxxxxx
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Title: Vice President
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BANQUE NATIONALE de PARIS
(CHICAGO BRANCH), as Bank
By: /s/
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Title: Senior Vice President
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CRESTAR BANK,
as Bank
By: /s/ X. Xxxx Key
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Title: Vice President
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DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
AG CAYMAN ISLANDS BRANCH, as Bank
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President
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By: /s/ Xxxx X. Xxxxxxxxx
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Title: Assistant Vice President
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WACHOVIA BANK, N.A.,
as Bank
By: /s/
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Title: Senior Vice President
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AMENDMENT TO
ASSET PURCHASE AGREEMENT
This Agreement made as of the 7 day of September, 1999, by and between
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Gold Xxxx Inc., a Georgia cooperative marketing association ("GK"), and Southern
States Cooperative, Inc., a Virginia agricultural cooperative, a corporation
("Southern States").
WITNESSETH:
WHEREAS, GK and Southern States desire to amend the terms of the Asset
Purchase Agreement dated as of July 23, 1998 (the "Agreement") to change the
minimum amount of certain indemnifiable losses for which Gold Xxxx shall be
liable pursuant to the Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and obligations contained herein, it is mutually agreed as follows:
1. The Agreement is incorporated herein by reference and is specifically made
a part hereof. All provisions, terms, covenants and conditions set forth
therein shall remain in full force and effect and shall apply to this
Agreement, except as specifically and expressly modified herein.
2. GK and Southern States hereby agree that Section 15.3(b) of the Agreement
shall be amended to read as follows:
(b) Notwithstanding the provisions of Section 15.2, Gold Xxxx shall have
no liability to indemnify Southern States Indemnified Persons
hereunder with respect to the matters referenced in clause (iii) of
Section 15.3(a) above with respect to any individual claim until the
aggregate amount of Southern States Indemnified Persons' indemnifiable
losses exceed $25,000 for such claims;
provided, however, that if the aggregate amount of any such losses
with respect to a claim exceeds $25,000, Gold
Xxxx shall indemnify Southern States for the entire amount of such
claim, including the initial $25,000 amount.
3. This amendment to the Agreement shall be deemed to be effective as of
October 13, 1998.
IN WITNESS WHEREOF, the parties have duly executed this amendment to
the Agreement as of the date first above written.
GOLD XXXX INC.
By: /s/ M. A. Xxxxxxxx
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Title: Senior Vice President
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SOUTHERN STATES COOPERATIVE, INC.
By:___________________________
Title:________________________
