EXHIBIT 10.AJ
FIRST AMENDMENT TO SENIOR SECURED, SUPER-PRIORITY DEBTOR-
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IN-POSSESSION CREDIT AGREEMENT
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FIRST AMENDMENT, dated as of November 14, 2002 (this "Amendment"), to the
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DIP Credit Agreement referred to below among AGWAY, INC., a Delaware
corporation, FEED COMMODITIES INTERNATIONAL LLC, a Delaware limited liability
company, ▇▇▇▇▇▇▇▇ AGRONOMIC CONSULTING SERVICE LLC, a Delaware limited liability
company, AGWAY GENERAL AGENCY, INC., a New York corporation, COUNTRY BEST ▇▇▇▇▇,
LLC, a Delaware limited liability company, COUNTRY BEST-▇▇▇▇▇▇▇ LLC, a Delaware
limited liability company, AGWAY ENERGY PRODUCTS LLC, a Delaware limited
liability company, AGWAY ENERGY SERVICES-PA, INC. ("AESPA"), a Delaware
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corporation, and AGWAY ENERGY SERVICES, INC. ("AES"), a Delaware corporation, as
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Borrowers (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, Borrowers, the Credit Parties, the Lenders and Agent are
parties to that certain Senior Secured, Super-Priority Debtor-in-Possession
Credit 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"); and
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WHEREAS, the Agent and Lenders have agreed to amend the DIP
Credit Agreement, 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. Section 3.28(e) of the DIP Credit Agreement is hereby amended
as of the Amendment Effective Date by deleting such section in its entirety and
inserting in lieu thereof the following new section to read as follows:
"(e) Notwithstanding the provisions of Section 362
of the Bankruptcy Code, upon the maturity (whether
by acceleration or otherwise) of any of the
Obligations, Agent and Lenders shall be entitled
to immediate payment of such Obligations and
subject to Section 8.2(b) of this Agreement, to
enforce the remedies provided for hereunder."
3. Section 8.1(p)(vii) of the DIP Credit Agreement is hereby
amended as of the Amendment Effective Date by deleting such section in its
entirety and inserting in lieu thereof the following new section to read as
follows:
"(vii) the allowance of any claim or claims under
Section 506(c) of the Bankruptcy Code against or
with respect to any of the Collateral, provided
however, the allowance of any such claim or claims
under Section 506(c) of the Bankruptcy Code shall
not constitute an Event of Default if such claim
is sought (i) after the Lenders cease making
advances to the Debtor Borrowers due to the
occurrence of an Event of Default, and (ii) for
debts or obligations of the Debtor Borrowers
incurred after the Petition Date but before the
occurrence of the Event of Default and provided
further that (w) the Debtor Borrowers actually
received the benefit of goods or services (other
than professional fees) after the Petition Date,
(x) the provider of such goods or services has not
been paid, (y) such goods or services were
provided in good faith and in the ordinary course
of the Debtors' business, and (z) the surcharge or
attempted surcharge is consistent with applicable
law under Section 506(c) of the Bankruptcy Code."
4. Section 8.2(b) of the DIP Credit Agreement is hereby amended
as of the Amendment Effective Date by deleting such section in its entirety and
inserting in lieu thereof the following new section to read as follows:
"(b) If any Event of Default has occurred and is
continuing, Agent may (and at the written request
of the Requisite Lenders shall): (A) without
notice: (i) terminate the Revolving Loan facility
with respect to further Advances or the incurrence
of further Letter of Credit Obligations; (ii)
declare all or any portion of the Obligations,
including all or any portion of any Loan to be
forthwith due and payable, and require that the
Letter of Credit Obligations be cash
collateralized as provided in Annex B, all without
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presentment, demand, protest or further notice of
any kind, all of which are expressly waived by
Borrowers and each other Credit Party; and (B)
after Agent has obtained relief from the automatic
stay following three (3) Business Days notice to
the Debtor Borrowers and counsel approved by the
Bankruptcy Court for the Committee and an
opportunity for a hearing, exercise any rights and
remedies provided to Agent under the Loan
Documents or at law or equity, including all
remedies provided under the Code and pursuant to
the Interim Order and the Final Order. Upon the
occurrence of an Event of Default and the exercise
by Lenders of their rights and remedies under this
Agreement and the other Loan Documents, Borrowers
shall assist Lenders in effecting a sale or other
disposition of the Collateral upon such terms as
are designed to maximize the proceeds obtainable
from such sale or other disposition."
5. Section 11.19 of the DIP Credit Agreement is hereby amended as
of the Amendment Effective Date by deleting such section in its entirety and
inserting in lieu thereof the following new section to read as follows:
"11.19 Pre-Petition Loan Agreement. Borrowers hereby agree
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that (i) this Agreement is separate and distinct from the
Pre-Petition Loan Agreement and (ii) the Pre-Petition Loan
Agreement is in full force and effect. Borrowers further agree
that by entering into this Agreement, Lenders do not waive any
Default or Event of Default under the Pre-Petition Loan
Agreement. Notwithstanding anything to the contrary herein,
Agent and Lenders hereby waive as of September 30, 2002
compliance now and in the future with the financial covenants
set forth in Annex G of the Pre-Petition Loan Agreement. For
purposes of clarity, the parties hereto agree that Annex G of
this Agreement supercedes Annex G to the Pre-Petition Loan
Agreement."
6. Representations and Warranties. To induce Agent and Lenders to
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enter into this Amendment, Borrowers hereby represent and warrant that:
(a) The execution, delivery and performance by Borrowers of
this Amendment (i) are within Borrowers' 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 Borrower'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 Borrower is a party or by which any Borrower 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 Amendment has been duly executed and delivered by
or on behalf of Borrowers.
(c) This Amendment constitutes a legal, valid and binding
obligation of Borrowers, enforceable against each of them in accordance with its
terms.
(d) No Default has occurred and is continuing after giving
effect to this Amendment.
(e) No action, claim or proceeding is now pending or, to the
knowledge of Borrowers, threatened against Borrowers, 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 Borrowers'
right, power, or competence to enter into this Amendment or, to the extent
applicable, perform any of their obligations under this Amendment, the DIP
Credit Agreement or any other Loan Document, or the validity or enforceability
of this Amendment, the DIP Credit Agreement or any other Loan Document or an
action taken under this Amendment, the DIP Credit Agreement or any other Loan
Document or except for items on Disclosure Schedule (3.13), which if determined
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adversely, is reasonably likely to have or result in a Material Adverse Effect
after giving effect to this Amendment. Except for items on Disclosure Schedule
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(3.13), to the knowledge of Borrowers, there does not exist a state of facts
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which is reasonably likely to give rise to such proceedings.
(f) The representations and warranties of the Borrowers
contained in the DIP Credit Agreement and each other Loan Document shall be true
and correct on and as of the Amendment Effective Date (as hereinafter defined)
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.
7. No Other Amendments/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 Amendment
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 Agent or any
Lender 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.
8. Outstanding Indebtedness; Waiver of Claims. Each of Borrowers
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and other Credit Parties hereby acknowledges and agrees that as of November 13,
2002 the aggregate outstanding principal amount of the Revolving Loan is
$58,746,898.45 and that such principal amount is payable pursuant to the DIP
Credit Agreement without defense, offset, withholding, counterclaim or deduction
of any kind. Borrowers and each other Credit Party hereby waives, releases,
remises and forever discharges Agent, Lenders and each other Indemnified Person
from any and all claims, suits, actions, investigations, proceedings or demands
arising out of or in connection with the DIP Credit Agreement (collectively,
"Claims"), whether based in contract, tort, implied or express warranty,
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strict liability, criminal or civil statute or common law of any kind or
character, known or unknown, which any Borrower or any other Credit Party ever
had, now has or might hereafter have against Agent or Lenders which relates,
directly or indirectly, to any acts or omissions of Agent, Lenders or any other
Indemnified Person on or prior to the Amendment Effective Date (as hereinafter
defined), provided, that no Borrower nor any other Credit Party waives any Claim
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solely to the extent such Claim relates to the Agent's or any Lender's gross
negligence or willful misconduct.
9. 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 Agent and the Lenders 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
Amendment and all other documents and instruments delivered in connection
herewith.
10. Effectiveness. This Amendment shall become effective as of
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November 14, 2002 (the "Amendment Effective Date") only upon satisfaction in
full in the judgment of Agent of each of the following conditions:
(a) Amendment. Agent shall have received six (6) original
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copies of this Amendment duly executed and delivered by Agent, the Requisite
Lenders and Borrowers.
(b) Payment of Expenses. Borrowers shall have paid to Agent
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all costs, fees and expenses owing in connection with this Amendment and the
other Loan Documents and due to Agent (including, without limitation, reasonable
legal fees and expenses).
(c) Representations and Warranties. The representations and
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warranties of or on behalf of the Borrowers in this Amendment shall be true and
correct on and as of the Amendment Effective Date.
11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
12. Counterparts. This Amendment 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 Amendment
to be duly executed and delivered as of the day and year first above written.
BORROWERS
AGWAY, INC.
FEED COMMODITIES INTERNATIONAL LLC
▇▇▇▇▇▇▇▇ AGRONOMIC CONSULTING SERVICE LLC
COUNTRY BEST-▇▇▇▇▇▇▇ LLC
AGWAY ENERGY PRODUCTS LLC
AGWAY ENERGY SERVICES-PA, INC.
AGWAY ENERGY SERVICES, INC.
COUNTRY BEST ▇▇▇▇▇, LLC
AGWAY GENERAL AGENCY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Treasurer
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LENDERS
COBANK, ACB
By: /s/ ▇▇▇▇▇▇▇ ▇. Hide
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Name: ▇▇▇▇▇▇▇ ▇. Hide
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Title: Vice-President
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "Rabobank Nederland" New York
Branch
By:
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Name:
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Title:
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GMAC BUSINESS CREDIT, LLC
By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Its Duty Authorized Signatory
