Exhibit B-4(f)(11)
EXECUTION COPY
WAIVER UNDER NOTE AGREEMENT
This Waiver (this "Waiver"), effective as of the 11 day
of January, 2002, is between GOLD XXXX INC., a cooperative
marketing association organized and existing under the laws
of the State of Georgia (the "Company"), and THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA (on its own behalf and as asset
manager for Gateway Recovery Trust, the "Noteholder").
WHEREAS, the Company and the Noteholder are parties to
that certain Consolidated, Amended and Restated Note
Agreement, dated as of November 3, 2000 (as amended and in
effect on the date hereof, the "Note Agreement"); and
WHEREAS, the Company is currently a member of Commerce
Ventures, LLC ("Commerce Ventures") and desires to make
capital contributions to Commerce Ventures after the date
hereof in an aggregate amount not exceeding $500,000 (the
"Commerce Investment"); and
WHEREAS, the Commerce Investment is prohibited pursuant
to Section 7.4 of the Bank Agreement (as defined in the Note
Agreement) and pursuant to Section 6D of the Note Agreement;
and
WHEREAS, the Company owns certain shares in The
Principal Group (the "Principal Shares"); and
WHEREAS, the Company desires to sell the Principal
Shares for cash consideration equal to the fair market value
of the Principal Shares as of the time of such sale (the
"Principal Shares Liquidation"); and
WHEREAS, pursuant to Section 3.1 of the Bank Agreement
and Section 5K(i)(b)(iii) of the Note Agreement, the Company
will be required to make mandatory prepayments to the
lenders under the Bank Agreement and offer to prepay the
Notes (as defined in the Note Agreement) in an amount equal
to 100% of the net proceeds from the Principal Shares
Liquidation, with such mandatory prepayments and offer to
prepay required to be made to the such lenders and the
Noteholder on a pro rata basis (the "Term Loan Prepayment");
and
WHEREAS, the Company has requested that the Noteholder
waive the provisions of (a) Section 6D of the Note Agreement
with respect to the Commerce Investment, and (b) Section
5K(i)(b)(iii) of the Note Agreement with respect to the Term
Loan Prepayment and instead allow the net proceeds of the
Principal Shares Liquidation to be retained by the Borrower;
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. Waiver. The Noteholder hereby waives the
provisions of (a) Section 6D of the Note Agreement with
respect to the Commerce Investment, and (b) Section
5K(i)(b)(iii) of the Note Agreement with respect to the Term
Loan Prepayment in connection with the Principal Shares
Liquidation; provided that the Noteholder shall have
received a waiver executed by the requisite lenders under
the Bank Agreement in form and substance substantially
similar to this Waiver. Except for the waiver set forth
above, the terms and provisions of the Note Agreement and
the Related Documents shall remain in full force and effect.
The Company acknowledges and expressly agrees that the
Noteholder reserves the right to, and does in fact, require
strict compliance with all terms and provisions of the Note
Agreement and the other Related Documents.
2. Representations and Warranties. The Company
hereby represents and warrants in favor of the Noteholder as
follows:
(a) the Company has the corporate power and
authority (i) to enter into this Waiver, and (ii) to do all
acts and things as are required or contemplated hereunder to
be done, observed and performed by it;
(b) this Waiver has been duly authorized, validly
executed and delivered by one or more authorized signatories
of the Company, and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company
in accordance with its terms;
(c) the execution and delivery of this Waiver and
performance by the Company under the Note 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 Waiver (i) no Default or Event of Default
exists under the Note Agreement, and (ii) each
representation and warranty set forth in Paragraph 8 of the
Note Agreement is true and correct.
3. Related Document. This Waiver shall be deemed to
be a Related Document for all purposes.
4. Counterparts. This Waiver 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 Waiver by facsimile
transmission shall be as effective as delivery of a manually
executed counterpart hereof.
5. Governing Law. This Waiver shall be governed by,
and construed in accordance with, the laws of the State of
New York.
6. Definitions. All capitalized terms used but not
otherwise defined herein shall have the meanings set forth
in the Note Agreement.
7. Effectiveness. This Waiver shall be effective as
of the date first written above upon the Noteholder's
receipt of (a) a counterpart hereof duly executed by the
Company and the Noteholder, (b) a duly executed Consent,
Reaffirmation and Agreement of Guarantors, (c) evidence
reasonably satisfactory to the Noteholder that the Bank
Agreement waiver referred to above shall have been duly
executed by the parties thereto and (d) such other documents
executed by the Company as the Noteholder may reasonably
require.
IN WITNESS WHEREOF, the parties hereto have caused this
Waiver to be duly executed and delivered by their duly
authorized officers as of the day and year first above
written.
GOLD XXXX INC.
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: CFO and Treasurer
By:____________________________
Name:
Title:
[CORPORATE SEAL]
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxx Xxxxx
Vice President
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, as asset manager for
Gateway Recovery Trust
By: /s/ Xxxx Xxxxx
Vice President
[14687]
CONSENT, REAFFIRMATION AND AGREEMENT OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the
foregoing Waiver (the "Waiver"), (ii) consents to the
execution and delivery of the Waiver by the parties thereto
and (iii) reaffirms all of its obligations and covenants
under the Amended and Restated Subsidiary Guaranty Agreement
dated as of October 23, 2001 executed by it, and agrees that
none of such obligations and covenants shall be affected by
the execution and delivery of the Waiver.
AGRATECH SEEDS INC.
AGRATRADE FINANCING, INC.
CROSS EQUIPMENT COMPANY, INC.
GK FINANCE CORPORATION
GK PEANUTS, INC.
GK PECANS, INC.
XXXXX INC.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
GK FINANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
