EX-10 9 exb10e2.txt EXHIBIT B-10(E)(2) 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 KIST 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"), HARRIS 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 KIST INC. By: /s/ Stephen O. West Name: Stephen O. West 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/ Richard J. Beard Name: Richard J. Beard Title: Executive Director By: /s/ Edward J. Peyser Name: Edward J. Peyser Title: Managing Director LENDERS: SUNTRUST BANK By: /s/ Hugh E. Brown Name: Hugh E. Brown Title: Vice President By: (no signature) Name: Title: HARRIS TRUST AND SAVINGS BANK By: /s/ Curtis Flammini Name: Curtis Flammini Title: Vice President By: (no signature) Name: Title: U.S. BANK NATIONAL ASSOCIATION By: /s/ Kathi L. Hatch Name: Kathi L. Hatch Title: Assistant Vice President By: (no signature) Name: Title: COBANK, ACB By: /s/ Kenneth L. Warlick Name: Kenneth L. Warlick Title: Vice President By: (no signature) Name: Title: NATEXIS BANQUES POPULAIRES By: /s/ Name: Title: By: /s/ Name: Title: ING CAPITAL LLC By: /s/ William B. Redmond Name: William B. Redmond Title: Director By: (no signature) Name: Title: THE CIT GROUP/BUSINESS CREDIT, INC. By: /s/ John F. Bohan Name: John F. Bohan Title: Vice President By: (no signature) Name: Title: GREENSTONE FARM CREDIT SERVICES, FLCA By: /s/ R. A. Schroeder Name: R. A. Schroeder Title: Senior Vice President Capital Markets By: /s/ David B. Armstrong Name: David B. Armstrong Title: Executive Vice President JOHN HANCOCK LIFE INSURANCE COMPANY By: /s/ David E. Johnson Name: David E. Johnson Title: Manager Director By: (no signature) Name: Title: JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY By: /s/ David E. Johnson Name: David E. Johnson Title: Authorized Signature By: (no signature) Name: Title: SIGNATURE 4 LIMITED By: John Hancock Life Insurance Company, as Portfolio Advisor By: /s/ David E. Johnson Name: David E. Johnson Title: Managing Director SIGNATURE 5 L.P. By: John Hancock Life Insurance Company, as Portfolio Advisor By: /s/ David E. Johnson Name: David E. Johnson Title: Managing Director MELLON BANK, N.A., solely in its capacity as Trustee for the Bell Atlantic Master Trust as directed by John Hancock Life Insurance Company, and not in its individual capacity By: /s/ Carole Bruno Name: Carole Bruno 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/ Stephen O. West Title: Treasurer AGRATRADE FINANCING, INC. By: /s/ Stephen O. West Title: Treasurer CROSS EQUIPMENT COMPANY, INC. By: /s/ Stephen O. West Title: Treasurer GK FINANCE CORPORATION By: /s/ Stephen O. West Title: Vice President GK PEANUTS, INC. By: /s/ Stephen O. West Title: Treasurer GK PECANS, INC. By: /s/ Stephen O. West Title: Treasurer LUKER INC. By: /s/ Stephen O. West Title: Treasurer [15638]