Exhibit B-4(f)(4)
FIRST AMENDMENT TO NOTE AGREEMENT
This First Amendment, dated January 29, 2003 (this
"Amendment"), is made to that Second Consolidated, Amended and
Restated Note Agreement dated as of September 27, 2002 (the "Note
Agreement"), among Gold Xxxx Inc., a cooperative marketing
association organized and existing under the laws of the State of
Georgia (the "Company"), The Prudential Insurance Company of
America ("Prudential") and the Gateway Recovery Trust.
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 Prudential amend
certain provisions of the Note Agreement and Prudential has
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. Pursuant to paragraph 11C of the Note Agreement, the Company
and the Required Holders hereby agree the Note Agreement is
amended as follows:
1. Xxxxxxxxx 0X. Xxxxxxxxx 6D is hereby modified and
amended by deleting clauses (xv) and (xvii) in their entirety and
substituting the following in lieu thereof:
"(xv)(x) prior to the Repurchase Release
Date, guarantee or otherwise be or become
contingently liable for obligations of Young
Pecan not to exceed an aggregate amount of
$60,000,000 pursuant to the Debt Repurchase
Agreement, (y) in connection with and on the
Repurchase Release Date, make a payment of up
to $10,000,000 in satisfaction of all the
Company's obligations under the Debt
Repurchase Agreement, whether structured as a
direct payment to CoBank, ACB or as a capital
contribution to Young Pecan, and (z) on and
after the Repurchase Release Date, make a
loan to Young Pecan with the proceeds of the
CoBank Additional Debt; provided such loan to
Young Pecan shall be subject to documentation
in form and substance acceptable to
Prudential (including, without limitation,
the assignment of any promissory note and
security interest received by the Company in
connection therewith to the Collateral
Agent);"
"(xvii) make or permit to remain
outstanding investments in any money market
fund that invests only in investments
described in subsections (iii), (iv), (v),
(vi), (vii), or (viii) of this Paragraph 6D."
2. Paragraph 6L. Paragraph 6L is hereby modified and
amended by deleting clause (iv) thereof in its entirety and
substituting the following in lieu thereof:
"(iv) Indebtedness for Money Borrowed in
existence on the date hereof, and set forth
on Schedule 6L; provided, however, (i) in
connection with the mortgage facility on the
corporate headquarters building owned by GC
Properties as set forth on Schedule 6L, such
mortgage facility may be increased by an
amount not to exceed $5,000,000 after the
date hereof, and (ii) the Company may incur
additional Indebtedness for Money Borrowed to
CoBank, ACB in an amount of up to $10,000,000
(the "CoBank Additional Debt"), provided such
additional Indebtedness is subject to
documentation in form and substance
acceptable to the Noteholders;"
3. Paragraph 10. (a) Paragraph 10 of the Note Agreement
is hereby modified and amended by inserting the following
definitions in appropriate alphabetical order thereto (and
deleting any existing definitions of any of the following in the
entirety):
""CoBank Additional Debt" shall have the
meaning set forth in paragraph 6L hereof.
"Debt Repurchase Agreement" means that
certain Debt Repurchase Agreement between
CoBank, ACB, the Company, and Young Pecan
Shelling Company, Inc. dated as of April 30,
2001, as amended.
"Repurchase Release Date" means the date
of the release and termination of the Debt
Repurchase Agreement and the satisfaction of
all of the Company's obligations thereunder.
"Subsidiary", of the Company, shall mean
any corporation, partnership, joint venture,
limited liability company, trust or estate or
other entity in which (or of which) the
Company, directly or indirectly, owns or
controls more than 50% of (a) any shares of
Stock or other form of ownership interest of
such Person having general voting power under
ordinary circumstances to vote in the
election of the board of directors, managers
or trustees of such Person (irrespective of
whether or not at the time Stock of any other
class or classes shall have or might have
voting power by reason of the happening of
any contingency), or (b) the interest in the
capital or profits of such Person, provided,
however, notwithstanding the foregoing, GC
Properties shall not be deemed to be a
"Subsidiary" of the Company."
(b) Paragraph 10 of the Note Agreement, is hereby further
modified and amended by deleting the definitions of "CoBank Note"
and "Note Purchase Date" therefrom in their entirety.
B. Conditions of Effectiveness. Upon satisfaction of the
following, the effective date of this Amendment shall be January
29, 2003. This Amendment shall become effective when, and only
when,
1. Prudential shall have received all of the following
documents, each (unless otherwise indicated) being dated the date
hereof, in form and substance satisfactory to the Noteholders of
the Notes:
(a) executed originals of this Amendment;
(b) evidence satisfactory to Prudential that the First
Amendment to the Bank Agreement, in form and substances
substantially the same as this Amendment, has been duly
executed, delivered and has taken effect;
(c) evidence satisfactory to Prudential that all
obligations of the Company and Young Pecan under the Debt
Repurchase Agreement have been terminated and that any
amounts owed thereunder have been paid in full;
(d) such other documents, instruments, approvals or
opinions as Prudential may reasonably request; and
2. The Company shall have paid all costs and expenses
(including legal fees) incurred by Prudential; and
3. Except as previously disclosed to Prudential in
writing, 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 September 28, 2002; 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) 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 (A) its charter or by-laws, (B) law or
(C) 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.
(b) 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.
(c) This Amendment constitutes the legal, valid and
binding obligations of the Company enforceable against the
Company in accordance with its terms.
(d) 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. Additional Agreements. On or about the date of this
Amendment, the Company is entering into certain Financing
Agreements that contain terms, covenants or events of default
that are more favorable to the parties under the Financing
Agreements than are the terms of the Note Agreement and Related
Documents to the holders of the Notes. The Company and each
Subsidiary covenant and agree that the Note Agreement and each
other Related Document shall be amended to contain each such
more favorable term, covenant or event of default (together with
any grace periods for such term, covenant or event of default as
provided in the Financing Agreements), and the Company further
agrees to execute and deliver all such documents requested by the
holders of the Notes to reflect such amendment. Prior to the
execution and delivery of such documents by the Company, the Note
Agreement and each other Related Document shall be deemed to
contain each such more favorable term, covenant or event of
default, for purposes of determining the rights and obligations
thereunder. As used in this paragraph, the phrase "terms,
covenants or events of default" (including both the singular and
plural) shall not be a reference to interest rate, maturity,
amortization, prepayment or similar financial terms of the Notes
or the Indebtedness governed by the Financing Agreements. If the
Company shall fail to comply with this paragraph on or prior to
February 19, 2003, the Company and each of the Subsidiaries agree
that such failure shall constitute an Event of Default under the
Note Agreement and the holders of the Notes shall have the right
to exercise any and all rights available under paragraphs 7A and
7D of the Note Agreement and/or under applicable law.
4. 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.
5. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New
York.
6. Estoppel. To induce Prudential 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 any holder of the
Notes with respect to the obligations of the Company to any such
holder, either with or without giving effect to this Amendment.
7. 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
Treasurer
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:/s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, as asset
manager for Gateway Recovery
Trust
By: /s/ Xxxx Xxxxx
Name: Xxxx 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
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.
By:/s/ Xxxxxxx X. Xxxx
Title: Treasurer
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: Vice President
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
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