LIMITED CONSENT
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THIS LIMITED CONSENT, dated as of December 17, 2003 (this
"Consent"), to the Senior Secured, Super-Priority Debtor-in-Possession Credit
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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"), by and among Agway, Inc. and Country Best
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Xxxxx, LLC (collectively, the "Sellers") and the other Borrowers thereto
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(collectively, the "Borrowers"), the other credit parties signatory thereto (the
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"Credit Parties"), the lenders signatory thereto from time to time (the
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"Lenders"), and GENERAL ELECTRIC CAPITAL CORPORATION, as Agent ("Agent") and as
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a Lender.
W I T N E S S E T H
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WHEREAS, pursuant to the DIP Credit Agreement, Agent and Lenders
extended loans and other financial accommodations to Borrowers on the terms and
conditions therein; and
WHEREAS, Lenders and Agent have agreed to consent to the sale of
certain assets of the Sellers 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. Consent. As of the Consent Effective Date (as hereinafter
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defined), Lenders and Agent hereby consent to the sale by the Sellers of the
"Purchased Assets" (as defined in that certain Asset Purchase Agreement among
Sellers and AMPCO Distribution Services, LLC, as Purchaser, dated as of November
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7, 2003, a copy of which is attached hereto as Exhibit A (the "Purchase
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Agreement")), provided that any net cash proceeds from such sale paid to Sellers
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shall be applied pursuant to Section 1.3(b)(ii) of the DIP Credit Agreement.
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3. Representations and Warranties. To induce Lenders and Agent to
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enter into this Consent, the Credit Parties hereby, jointly and severally,
represent and warrant that:
(a) The execution, delivery and performance by the Credit Parties
of this Consent (i) are within the Credit Parties 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 Credit Party'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 Credit Party is a party or by which any Credit Party 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 Consent has been duly executed and delivered by or on
behalf of the Credit Parties.
(c) This Consent constitutes a legal, valid and binding
obligation of the Credit Parties, enforceable against each of them in accordance
with its terms.
(d) No Default has occurred and is continuing after giving effect
to this Consent.
(e) No action, claim or proceeding is now pending or, to the
knowledge of the Credit Parties, threatened against the Credit Parties, 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 the Credit Parties' right, power, or competence to enter into this
Consent or, to the extent applicable, perform any of their obligations under
this Consent, the DIP Credit Agreement or any other Loan Document, or the
validity or enforceability of this Consent, the DIP Credit Agreement or any
other Loan Document or an action taken under this Consent, the DIP Credit
Agreement or any other Loan Document or, except for items on Disclosure Schedule
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(3.13) or notifications sent to Agent since the Closing Date, which if
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determined adversely, is reasonably likely to have or result in a Material
Adverse Effect after giving effect to this Consent. Except for items on
Disclosure Schedule (3.13) or notifications sent to Agent since the Closing
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Date, to the knowledge of the Credit Parties, 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 Credit Parties
contained in the DIP Credit Agreement and each other Loan Document shall be true
and correct on and as of the Consent Effective Date 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 Consents/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 Consent
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 Lenders or Agent
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; Waiver of Claims. Each of the Credit
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Parties hereby acknowledges and agrees that as of December 15, 2003, the
aggregate outstanding principal amount of the Revolving Loan is $35,337,896.50
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 Lenders and Agent 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 Consent and all other
documents and instruments delivered in connection herewith.
7. Effectiveness. This Consent shall become effective as of
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December 17, 2003 (the "Consent Effective Date") only upon satisfaction in full
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in the judgment of Agent of each of the following conditions:
(a) Consent. Agent shall have received six (6) original
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copies of this Consent duly executed and delivered by Agent, the Requisite
Lenders, Sellers and the other Credit Parties.
(b) Payment of Expenses. Borrowers shall have paid to Agent
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all costs, fees and expenses invoiced and owing in connection with this Consent
and the other Loan Documents and due to Agent (including, without limitation,
reasonable legal fees and expenses).
(c) Purchase Agreement. The Agent shall have received a true
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and complete copy of the Purchase Agreement, duly authorized and executed
together with all schedules, exhibits, amendments, supplements, modifications,
assignments and all other documents delivered pursuant thereto or in connection
therewith.
(d) Representations and Warranties. The representations and
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warranties of or on behalf of the Credit Parties in this Consent shall be true
and correct on and as of the Consent Effective Date.
8. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY, AND
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INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9. Counterparts. This Consent 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)
IN WITNESS WHEREOF, the parties hereto have caused this Consent
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 Xxxxxxx Xxxxx Xxxxx
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Name: Xxxxx Xxxxxxx 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
