11
Exhibit B-10(f)(2)
FIRST AMENDMENT AND WAIVER
This FIRST AMENDMENT AND WAIVER (this "Amendment") is
effective as of the 30th day of March, 2002, by and among GOLD
XXXX INC., a cooperative marketing association organized and
existing under the laws of the State of Georgia (the "Borrower"),
the various banks and other lending institutions and
institutional investors listed on the signature pages hereof as
Lenders (the "Lenders"), and COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as
agent (the "Agent"). All capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the
Credit Agreement (defined below).
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent are parties
to that certain Second Amended and Restated Credit Agreement
dated as of October 23, 2001 (as amended, restated, supplemented
or otherwise modified from time to time, the "Credit Agreement");
and
WHEREAS, GC Properties owns the real property located at 000
Xxxxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, a portion of
which is leased by Borrower from GC Properties for use as
Borrower's corporate headquarters and principal place of business
(the "Headquarters Building"); and
WHEREAS, GC Properties desires to obtain an increase in
Indebtedness with respect to the Headquarters Building as set
forth on Schedule 5.8 to the Credit Agreement in the amount of
$5,000,000 to make certain necessary improvements and renovations
to the Headquarters Building (the "Additional GC Indebtedness");
and
WHEREAS, Section 7.12 of the Credit Agreement prohibits the
incurrence of the Additional GC Indebtedness; and
WHEREAS, Borrower owns certain real property located in
Moultrie, Georgia, formerly utilized by Borrower and its
affiliates for cotton production operations (the "Moultrie
Facility") and Borrower desires to sell the Moultrie Facility
(the "Moultrie Sale") for a purchase price of not less than
$1,800,000; and
WHEREAS, Section 3.1(e)(iv) of the Credit Agreement
requires the Borrower to make mandatory prepayments to the
Senior Note Holders and the Lenders in an amount equal to 100% of
the net proceeds from the Moultrie Sale, with such mandatory
prepayments to be made to the Lenders and the Senior Note Holders
on a pro-rata basis based upon the principal outstanding under
their respective Senior Notes and Loans, pursuant to Section
3.1(f) of the Credit Agreement (the "Mandatory Prepayment"); and
WHEREAS, GK Pecans, Inc. (a Subsidiary of the Borrower) owns
twenty-five percent (25%) of the total outstanding partnership
interests in Young Pecan, and Y Pecans Inc., a South Carolina
corporation owns seventy-five percent (75%) of the total
outstanding partnership interests in Young Pecan; and
WHEREAS, in connection a certain Restructuring Agreement
dated as of December 17, 2001 among Young Pecan, its partners,
and their respective parent companies, Borrower has obtained
operating control of Young Pecan and is obligated under GAAP to
include Young Pecan's financial statements on a fully
consolidated basis with Borrower's financial statements (the
"Young Pecan Consolidation"); and
WHEREAS, the Borrower has requested that the Agent and the
Lenders amend: (a) the definitions of Subsidiary and Indebtedness
set forth in Section 1.1 of the Credit Agreement to provide for
the Young Pecan Consolidation, and (b) Section 7.12(c) of the
Credit Agreement to provide for the Additional GC Indebtedness
(collectively, clauses (a) and (b) above are referred to herein
as the "Amendments"); and
WHEREAS, the Borrower has also requested that the Agent and
the Lenders waive the provisions of Sections 3.1(e)(iv) and
3.1(f) of the Credit Agreement with respect to the Mandatory
Prepayment to allow the net proceeds of the Moultrie Sale to be
retained by Borrower (the "Waiver"); and
WHEREAS, the Agent and the Lenders have agreed to the
Amendments and Waiver on the terms and conditions set forth in
this Amendment.
NOW THEREFORE, in consideration of the foregoing premises
and other good and valuable consideration paid by each party to
the other, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Amendments to Credit Agreement.
(a) Definitions.
(i) The definition of "Indebtedness" set forth in
Section 1.1 of the Credit Agreement is hereby modified and
amended by deleting the existing definition of "Indebtedness" in
its entirety and substituting the following definition therefor:
""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."
(ii) The definition of "Subsidiary" set forth in
Section 1.1 of the Credit Agreement is hereby modified and
amended by deleting the existing definition of "Subsidiary" in
its entirety and substituting the following definition therefor:
""Subsidiary" of Borrower, shall 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, and
provided, further, notwithstanding the foregoing, Young
Pecan shall not be deemed to be a "Subsidiary" of Borrower
until the earlier of (x) October 31, 2002, and (y) the date
of any repurchase demand on, or repurchase by, Borrower
pursuant to that certain Debt Repurchase Agreement between
CoBank, Borrower and Young Pecan Shelling Company, Inc.
dated as of April 30, 2001."
(b) Section 7.12. Section 7.12 of the Credit Agreement
is hereby modified and amended by deleting subsection (c) thereof
in its entirety and substituting the following therefor:
"(c) Indebtedness for Money Borrowed in existence
on the date hereof, and set forth on Schedule 5.8; provided,
however, in connection with the mortgage facility on the
corporate headquarters building owned by GC Properties as
set forth on Schedule 5.8, such mortgage facility may be
increased by an amount not to exceed $5,000,000 after the
date hereof."
2. Waiver of Certain Provisions of the Credit Agreement.
The Agent and the Lenders hereby waive the provisions of Sections
3.1(e)(iv) and 3.1(f) of the Credit Agreement with respect to the
Mandatory Prepayment in connection with the Moultrie Sale;
provided that the foregoing waiver shall not be effective unless
Agent shall have received a waiver or consent executed by the
requisite Senior Note Holders agreeing to waive their pro-rata
share of the mandatory prepayment of the Senior Notes from the
net proceeds of the Moultrie Sale, in form and substance
acceptable to the Agent.
3. Strict Compliance with Terms of Credit Agreement.
Except for the Amendments and Waiver set forth above, the text of
the Credit Agreement and the Loan Documents shall remain in full
force and effect. The Borrower acknowledges and expressly agrees
that the Lenders reserve the right to, and do in fact, require
strict compliance with all terms and provisions of the Credit
Agreement and the other Loan Documents.
4. Representations and Warranties. The Borrower hereby
represents and warrants in favor of the Agent and each Lender, as
follows:
(a) the Borrower has the corporate power and authority
(i) to enter into this Amendment, and (ii) to do all acts
and things as are required or contemplated hereunder to
be done, observed and performed by it;
(b) this Amendment has been duly authorized, validly
executed and delivered by one or more authorized
signatories of the Borrower, and constitutes the legal,
valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms;
(c) the execution and delivery of this Amendment and
performance by the Borrower under the Credit Agreement
do not and will not require the consent or approval of
any regulatory authority or governmental authority or
agency having jurisdiction over the Borrower which has
not already been obtained, nor contravene or conflict
with the charter documents of the Borrower, or the
provisions of any statute, judgment, order, indenture,
instrument, agreement or undertaking, to which the
Borrower is a party or by which any of its properties are
or may become bound; and
(d) as of the date hereof, and after giving effect to
this Amendment (i) no Default or Event of Default exists
under the Credit Agreement, and (ii) each representation
and warranty set forth in Article 5 of the Credit
Agreement is true and correct.
5. Loan Document. This Amendment shall be deemed to be a
Loan Document for all purposes.
6. Expenses. The Borrower agrees to pay all reasonable
expenses of the Agent incurred in connection with this Amendment,
including, without limitation, all fees and expenses of counsel
to the Agent.
7. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an
original and all of which, taken together, shall constitute one
and the same agreement. Delivery of an executed counterpart of
this Amendment by facsimile transmission shall be as effective as
delivery of a manually executed counterpart hereof.
8. Governing Law. This Amendment shall be deemed to be
made pursuant to the laws of the State of New York with respect
to agreements made and to be performed wholly in the State of New
York, and shall be construed, interpreted, performed and enforced
in accordance therewith.
9. Conditions to Effectiveness. This Amendment shall be
effective as of the date first written above upon the Agent's
receipt of (a) a counterpart hereof duly executed by the Borrower
and the Required Lenders, and (b) such other documents executed
by the Borrower as the Agent may reasonably require.
(THE REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their duly
authorized officers as of the day and year first above written.
BORROWER: GOLD XXXX INC.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: CFO
By: /s/ J. Xxxxx Xxxxx
Name: J. Xxxxx Xxxxx
Title: Secretary
[SEAL]
AGENT, L/C ISSUER AND LENDER: COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Director
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
LENDERS: SUNTRUST BANK
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
By: N/A
Name:
Title:
FORTIS BANK (NEDERLAND) N.V.
By: /s/ X. X. x Xxxx
Name: X. X. x Xxxx
Title: Senior Account Manager
By: /s/ J. Ae. Op ten Noor
Name: J. Ae. Op ten Noor
Title: Deputy Director
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Vice President
By:
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Assistant Vice
President
By:
Name:
Title:
COBANK, ACB
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By:
Name:
Title:
NATEXIS BANQUES POPULAIRES
By: /s/ Guillaume de Parsau
Name: Guillaume de Parsau
Title: First Vice President &
Manager
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By:
Name:
Title:
By:
Name:
Title:
THE CIT GROUP/BUSINESS CREDIT,
INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
By:
Name:
Title:
GREENSTONE FARM CREDIT SERVICES,
FLCA
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President/Senior
Lending Officer
By:
Name:
Title:
XXXX XXXXXXX LIFE INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
SIGNATURE 4 LIMITED
By: Xxxx Xxxxxxx Life Insurance
Company, as Portfolio Advisor
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
SIGNATURE 5 L.P.
By: Xxxx Xxxxxxx Life
Insurance Company, as
Portfolio Advisor
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
MELLON BANK, N.A., solely in its
capacity as Trustee for the Xxxx
Atlantic Master Trust as directed
by Xxxx Xxxxxxx Life Insurance
Company, and not in its
individual capacity
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
By:
Name:
Title:
CONSENT OF GUARANTORS
We, the undersigned, each as a Guarantor pursuant to that
certain Amended and Restated Subsidiary Guaranty dated as of the
23rd day of October, 2001 (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: Treasurer
GK PEANUTS, INC.
By: : /s/ Xxxxxxx X. Xxxx
Title: Treasurer
(GUARANTOR SIGNATURES CONTINUE ON NEXT PAGE)
GK PECANS, INC.
By: : /s/ Xxxxxxx X. Xxxx
Title: Treasurer
XXXXX INC.
By: : /s/ Xxxxxxx X. Xxxx
Title: Treasurer
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