Exhibit B-4(f)(2)
FIRST AMENDMENT
TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(Term Loan)
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT
AGREEMENT (Term Loan) ("Amendment Agreement") is made February
11, 2003 ("Execution Date") to be effective as of the Effective
Date, by and among Gold Xxxx, Inc., a Georgia corporation
("Borrower") and CoBank, ACB ("CoBank") as Lender.
RECITALS
A. CoBank and Borrower have entered into that certain
First Amended and Restated Credit Agreement (Term Loan) dated as
of January 29, 2003 (as amended, modified, or supplemented from
time to time, the "Credit Agreement") pursuant to which CoBank
has extended certain credit facilities to Borrower, under the
terms and conditions set forth in the Credit Agreement.
B. Borrower has requested that CoBank amend the Credit
Agreement in connection with certain amendments being made in the
Rabobank Agreement (as defined in the Credit Agreement), which
CoBank is willing to do under the terms and conditions, including
the other amendments, as set forth in this Amendment Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, including the mutual
promises and agreements contained herein, the parties hereto
hereby agree as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the definition given to them in the Credit
Agreement if defined therein.
2. Amendments to Credit Agreement. The parties hereto
agree that the Credit Agreement shall be amended as follows as of
the Effective Date:
2.1 Section 1.32 shall be amended in its entirety to read
as follows:
1.32 Consolidated Tangible Net Worth : means the net worth
of Borrower and its Subsidiaries (as determined in accordance
with GAAP) less the Intangible Assets of Borrower and its
Subsidiaries, but including the goodwill (as reflected on the
Borrower's financial statements delivered pursuant to Section 9.1
hereof from time to time but not to exceed $23,900,000.00)
created in connection with the acquisition by Borrower of the
outstanding equity of Golden Poultry Company, Inc. in September,
1997.
2.2 Section 1.33 shall be amended in its entirety to read
as follows:
1.33 Consolidated Total Debt: means (a) Total Debt of
Borrower and its Subsidiaries, plus (b) the Total Debt of
any other Person which (i) has been guaranteed by Borrower
or any Subsidiary or (ii) is supported by a letter of credit
issued for the account of Borrower or any Subsidiary, all
consolidated in accordance with GAAP.
2.3 Section 1.53 shall be amended in its entirety to read
as follows:
1.53 Indebtedness: of any Person shall mean, without
duplication (a) all obligations of such Person which in
accordance with GAAP would be shown on the balance sheet of such
Person as a liability (including, without limitation, obligations
for borrowed money and for the deferred purchase price of
property or services, obligations evidenced by bonds, debentures,
notes or other similar instruments, and such Person's pro-rata
share of any obligations of a general partnership in which such
Person is the general partner); (b) all rental obligations under
leases required to be capitalized under GAAP; (c) all Guaranties
of such Person (including contingent reimbursement obligations
under undrawn letters of credit); (d) Indebtedness of others
secured by any Lien upon property owned by such Person, whether
or not assumed; and (e) obligations or other liabilities under
Hedging Contracts, or similar agreements or combinations thereof
which are disclosed as liabilities on the balance sheet of such
Person in accordance with GAAP.
2.4 Section 1.55 shall be amended in its entirety to read
as follows:
1.55 Intangible Assets: of a Person, shall mean the non-
current, non-physical assets of such Person that entitle such
Person to certain legal rights or competitive advantages, and
shall include copyrights, trademarks, tradenames and other
intellectual property, franchises, goodwill (to the extent
positive), organizational costs, licenses and permits, and, in
connection with Borrower, shall include the SSC Securities.
2.5 Section 1.94 shall be amended in its entirety to read
as follows:
1.94 Subsidiary: shall, with respect to Borrower, mean any
corporation, partnership, joint venture, limited liability
company, trust or estate or other entity in which (or of which)
the Borrower, 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 Borrower.
2.6 Section 1.97 shall be amended by replacing
"$33,125,000.00" with "$33,220,000.00".
2.7 The introductory portion of Subsection 9.14.1 is
amended in its entirety to read as follows:
9.14.1 Fixed Charge Coverage Ratio. At, and
measured as of the end of, each Fiscal Quarter a ratio
of (a) EBITDA for the previous consecutive four (4)
Fiscal Quarters (including such Fiscal Quarter), (b)
divided by the sum of (i) Consolidated Interest Expense
for such four (4) Fiscal Quarters and (ii) the
aggregate scheduled principal amount of Indebtedness
for Money Borrowed (other than the Revolving Loans) to
be paid within one year after the last day of such
Fiscal Quarter, equal to or greater than the ratio set
forth opposite the relevant Fiscal Quarter:
2.8 Section 10.1 is amended in its entirety to read as
follows:
10.1 Limitation on Restricted Payments. Borrower will not
pay or declare any dividend or make any other distribution
on or on account of any class of its Stock or other equity
or make cash distributions of equity (including cash
patronage refunds), or make interest payments on equity, or
redeem, purchase or otherwise acquire, directly or
indirectly, any shares of its Stock or other equity, or
redeem, purchase or otherwise acquire, directly or
indirectly, any Subordinated Debt, including, but not
limited to, its Subordinated Capital Certificates of
Interest and Subordinated Loan Certificates (except required
redemptions as provided in the indentures pursuant to which
such Subordinated Debt was issued), or permit any Subsidiary
to do any of the above (all of the foregoing being herein
called "Restricted Payments") except that Borrower may make
(a) cash patronage refunds in fiscal year 2002 and
thereafter in an amount, for each Fiscal Year, not to exceed
10% of the member earnings for such Fiscal Year, and (b)
present value cashing retirement and death payments (net of
any amount Borrower receives as insurance proceeds) in an
aggregate amount not to exceed $5,000,000 in any Fiscal
Year; provided that Borrower shall not make any Restricted
Payments upon the occurrence and during the continuance of a
Potential Default or Event of Default. So long as there is
no Potential Default or Event of Default occurring or
continuing, there shall not be included in the definition of
Restricted Payments: (x) dividends paid, or distributions
made, in Stock of Borrower or (y) exchanges of Stock of one
or more classes of Borrower, except to the extent that cash
or other value is involved in such exchange. Moreover,
nothing in this Section shall prevent any Subsidiary from
making any Restricted Payments to Borrower or to any other
Loan Party that directly owns Stock of such Subsidiary. The
term "equity" as used in this Section shall include
Borrower's common stock, preferred stock, if any, other
equity certificates, and notified equity accounts of
patrons.
2.9 Clause (xv) of Section 10.3 (and only that clause), is
amended in its entirety to read as follows:
(xv) (A) prior to the date of the release and
termination of the Debt Repurchase Agreement and the
satisfaction of all of Borrower's obligations thereunder
("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, (B) on or after the
Repurchase Release Date, acquire the Foothill Interest, and
(C) make a loan to Young Pecan Shelling Company in an amount
not to exceed $1,676,785.00 and evidenced by that certain
promissory note dated as of January 28, 2003, in such
amount;
3. Borrower's Representations. Borrower hereby represents
and warrants that, after giving effect to this Amendment
Agreement and the transactions contemplated hereby, no Potential
Default or Event of Default has occurred and is continuing under
the Credit Agreement or other Loan Documents.
4. Effective Date. The effectiveness of this Amendment
Agreement is subject to satisfaction, in CoBank's sole
discretion, of each of the following conditions precedent (the
date on which all such conditions precedent are so satisfied
shall be the "Effective Date"):
4.1 Representations and Warranties. The representations
and warranties of Borrower in the Credit Agreement shall be true
and correct in all material respects on and as of the Effective
Date as though made on and as of such date.
4.2 No Event of Default. No Event of Default shall have
occurred and be continuing under the Credit Agreement as of the
Effective Date of this Amendment Agreement.
4.3 Payment of Fees and Expenses. Borrower shall have paid
CoBank, by wire transfer of immediately available federal funds
the following: (a) the Amendment Fee required in Section 5 below;
and (c) all expenses owing pursuant to Section 6 below.
4.4 Evidence of Corporate Action. CoBank shall have
received in form and substance satisfactory to CoBank documents
evidencing corporate action by Borrower to authorize (including
the specific names and titles of the persons authorized to so act
(each an "Authorized Officer")) the execution, delivery and
performance of this Amendment Agreement, certified to be true and
correct by the Secretary or Assistant Secretary of Borrower.
5. Amendment Fee. Borrower agrees to pay to CoBank an
Amendment Fee in the amount of $0.00.
6. Costs; Expenses and Taxes. Borrower agrees to reimburse
CoBank on demand for all out-of-pocket costs, expenses and
charges (including, without limitation, all fees and charges of
external legal counsel) incurred by CoBank in connection with the
preparation, reproduction, execution and delivery of this
Amendment Agreement and any other instruments and documents to be
delivered hereunder.
7. General Provisions.
7.1 The Credit Agreement, except as expressly modified
herein, shall continue in full force and effect and be binding
upon the parties thereto.
7.2 Borrower agrees to execute such additional documents as
CoBank may require to carry out or evidence the purposes of this
Amendment Agreement.
7.3 The execution, delivery and effectiveness of this
Amendment Agreement shall not operate as a waiver of any right,
power or remedy of CoBank under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan
Documents, and the Credit Agreement, as expressly modified
hereby, and each of the other Loan Documents, are hereby ratified
and confirmed and shall continue in full force and effect and be
binding upon the parties thereto. Any direct or indirect
reference in the Loan Documents to the "Credit Agreement" shall
be deemed to be a reference to the Credit Agreement as amended by
this Amendment Agreement.
8. Governing Law. This Amendment Agreement shall be
governed by and construed in accordance with the laws of the
State of Colorado.
9. Counterparts. This Amendment Agreement may be executed
in any number of counterparts and by different parties to this
Amendment Agreement in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Telefax copies of documents or signature pages bearing original
signatures, and executed documents or signature pages delivered
by telefax, shall, in each such instance, be deemed to be, and
shall constitute and be treated as, an original signed document
or counterpart, as applicable.
IN WITNESS WHEREOF, the parties hereto have caused this
First Amendment to First Amended and Restated Credit Agreement
(Term Loan) to be executed by their duly authorized officers as
of the Effective Date.
BORROWER:
GOLD XXXX, INC., a corporation
formed under the laws of the State
of Georgia
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
and Treasurer
LENDER:
COBANK, ACB
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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