Exhibit B-10(e)(2)
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment"), dated as of January 24, 2003, is
made and entered into by and among GOLD ▇▇▇▇ INC., a cooperative
marketing association organized and existing under the laws of
the State of Georgia (the "Borrower"), various banks and other
lending institutions and institutional investors as are, or may
from time to time become, parties hereto (collectively, the
"Lenders" and individually, a "Lender"), SUNTRUST BANK, as
Syndication Agent (the "Syndication Agent"), ▇▇▇▇▇▇ TRUST AND
SAVINGS BANK and ING CAPITAL LLC, as Co-Managing Agents
(collectively, the "Co-Managing Agents"), and COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH, as agent for the Lenders and sole lead arranger
(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 Third Amended and Restated Credit Agreement dated
as of September 27, 2002, among the parties hereto (as amended,
restated, supplemented or otherwise modified from time to time,
the "Credit Agreement"); and
WHEREAS, the Borrower has requested that the Agent and the
Lenders amend certain provisions of the Credit Agreement, and the
Agent and the Lenders have agreed to do so 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 Section 1.1 of the Credit Agreement.
(a) Section 1.1 of the Credit Agreement, "Definitions"
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 Section 7.12(c) hereof.
"Debt Repurchase Agreement" means that
certain Debt Repurchase Agreement between CoBank,
ACB, Borrower, and Young Pecan Shelling Company,
Inc. dated as of April 30, 2001, as amended,
modified or restated prior to January 24, 2003.
"Repurchase Release Date" means the date of
the release and termination of the Debt Repurchase
Agreement and the satisfaction of all of
Borrower's obligations thereunder.
"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."
(b) Section 1.1 of the Credit Agreement, "Definitions"
is hereby further modified and amended by deleting the
definitions of "CoBank Note" and "Note Purchase Date"
therefrom in the entirety.
2. Amendment to Section 7.4 of the Credit Agreement.
Section 7.4 of the Credit Agreement "Restrictions on Loans,
Advances, Investments, Asset Acquisitions and Contingent
Liabilities" is hereby modified and amended by deleting clause
(xv) of subsection (d) thereof in its 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 Borrower'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 the Agent (including, without
limitation, the assignment of any promissory note
and security interest received by the Borrower in
connection therewith to the Collateral Agent);"
3. Amendment to Section 7.12 of the Credit Agreement.
Section 7.12 of the Credit Agreement "Indebtedness for Money
Borrowed" is hereby modified and by deleting clause (c) thereof
in its entirety and substituting the following in lieu thereof:
"(c) Indebtedness for Money Borrowed in existence
on the date hereof, and set forth on Schedule 5.8;
provided, however, (i) 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, and (ii) Borrower may incur
additional Indebtedness for Money Borrowed to
CoBank, ACB in an amount of up to $10,000,000 (the
"CoBank Additional Debt") on or after the
Repurchase Release Date, provided such additional
Indebtedness is subject to documentation in form
and substance acceptable to the Agent;"
4. Strict Compliance. Except for the amendments 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.
5. 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.
6. Loan Document. This Amendment shall be deemed to be a
Loan Document for all purposes.
7. 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.
8. 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.
9. Governing Law. This Amendment shall be deemed to be
made pursuant to the laws of the State of New York applicable to
contracts made and performed in the State of New York without
regard to the conflict of laws principles thereof other than
Sections 5 - 1401 and 5 - 1402 of New York General Obligations
Law.
10. 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 or the Guarantors as the Agent may reasonably
require.
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 ▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
and Treasurer
By: (no signature)
Name:
Title:
[SEAL]
AGENT, L/C ISSUER AND LENDER: COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
LENDERS: SUNTRUST BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: (no signature)
Name:
Title:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: (no signature)
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice
President
By: (no signature)
Name:
Title:
COBANK, ACB
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: (no signature)
Name:
Title:
NATEXIS BANQUES POPULAIRES
By: /s/
Name:
Title:
By: /s/
Name:
Title:
ING CAPITAL LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
By: (no signature)
Name:
Title:
THE CIT GROUP/BUSINESS CREDIT,
INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: (no signature)
Name:
Title:
GREENSTONE FARM CREDIT SERVICES,
FLCA
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Capital Markets
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager Director
By: (no signature)
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE
INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signature
By: (no signature)
Name:
Title:
SIGNATURE 4 LIMITED
By: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance
Company, as Portfolio Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
SIGNATURE 5 L.P.
By: ▇▇▇▇ ▇▇▇▇▇▇▇ Life
Insurance Company, as
Portfolio Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
MELLON BANK, N.A., solely in its
capacity as Trustee for the ▇▇▇▇
Atlantic Master Trust as directed
by ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance
Company, and not in its
individual capacity
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
By: (no signature)
Name:
Title:
CONSENT OF GUARANTORS
We, the undersigned, each as a Guarantor pursuant to that
certain Second 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
AGRATRADE FINANCING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
CROSS EQUIPMENT COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
GK FINANCE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
GK PEANUTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
GK PECANS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
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