Exhibit 10.24.4
SIXTH AMENDMENT
TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(Term Loan)
THIS SIXTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(Term Loan) ("Amendment Agreement") is made as of June 15, 2005 ("Execution
Date") to be effective as of the Effective Date, by and among Gold Kist Inc.
(formerly known as Gold Kist Holdings Inc., the successor, by merger, to Gold
Kist Inc., a Georgia cooperative marketing association), a Delaware
corporation ("Borrower") and CoBank, ACB ("CoBank") as Lender.
RECITALS
A. CoBank and Borrower have entered into that certain First Amended
and Restated Credit Agreement (Term Loan) dated as of January 29, 2003, that
certain First Amendment to First Amended and Restated Credit Agreement (Term
Loan) dated as of February 11, 2003, that certain Second Amendment to First
Amended and Restated Credit Agreement (Term Loan) dated as of March 10, 2004,
that certain Third Amendment to First Amended and Restated Credit Agreement
(Term Loan) dated as of July 16, 2004, that certain Fourth Amendment to First
Amended and Restated Credit Agreement (Term Loan) dated as of September 24,
2004, and that certain Fifth Amendment to First Amended and Restated Credit
Agreement (Term Loan) dated as of March 1, 2005 (as so amended, and as
amended, modified, or supplemented from time to time, the "Credit Agreement")
pursuant to which CoBank has extended certain credit facilities to Borrower,
under the terms and conditions set forth in the Credit Agreement.
B. Borrower has requested that CoBank amend the Credit Agreement to
provide Borrower with more flexibility concerning the prepayment of certain
subordinated capital certificates and concerning certain future software
expenditures, which CoBank is willing to do under the terms and conditions,
including the other amendments, as set forth in this Amendment Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, including the mutual promises and agreements
contained herein, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the definition given to them in the Credit Agreement if defined therein.
2. Amendments to Credit Agreement. The parties hereto agree that the
Credit Agreement shall be amended as follows as of the Effective Date:
2.1 Section 1.15 shall be amended in its entirety to read as follows:
1.15 Capital Assets.: means fixed assets, both tangible and intangible;
provided that Capital Asset shall not include (a) any item customarily
charged directly to expense or depreciated over a useful life of twelve (12)
months or less in accordance with GAAP; (b) software purchased by Borrower
and its Subsidiaries during the term of this Credit Agreement up to a maximum
aggregate amount, valued at cost, of $20,000,000.00; nor (c) goodwill created
on the balance sheet of Borrower from the purchase of the common stock of
Golden Poultry Company, Inc.
2.2 Clause (b)(B) of Section 10.1 shall be amended by changing the term
"$60,000,000.00" in such clause to read "$80,000,000.00", so that said
Section 10.1 reads as follows:
10.1 Limitation on Restricted Payments. Borrower will not pay or
declare any dividend or make any other distribution on or on account of any
class of its Stock or other equity or make cash distributions of equity
(including cash patronage refunds), or make interest payments on equity, or
redeem, purchase or otherwise acquire, directly or indirectly, any shares of
its Stock or other equity, or redeem, purchase or otherwise acquire, directly
or indirectly, any Senior Unsecured Notes or any Subordinated Debt,
including, but not limited to, its Subordinated Capital Certificates of
Interest, Subordinated Loan Certificates (except required redemptions as
provided in the indentures pursuant to which such Subordinated Debt was
issued), or permit any Subsidiary to do any of the above (all of the
foregoing being herein called "Restricted Payments") except that Borrower may
make (a) (i) prior to the Conversion Date (A) cash patronage refunds in an
amount, for each Fiscal Year, not to exceed 10% of the member earnings for
such Fiscal Year; and (B) present value cashing retirement and death payments
(net of any amount Borrower receives as insurance proceeds) in an aggregate
amount not to exceed $5,000,000 in any Fiscal Year, and (ii) after the
Conversion Date, the payment of any amounts that would otherwise be permitted
to be paid under the immediately preceding clause (a)(i) that were not paid
prior to the Conversion Date; (b) payments not to exceed, in the aggregate,
the sum of (A) the amount of the Net Proceeds of Stock received from an
initial public offering of Borrower plus (B) $80,000,000.00 from cash-on-
hand, to the extent used for (i) on or after the Conversion Date, the
prepayment of up to thirty-five percent (35.0%) of the Senior Unsecured Notes
plus any prepayment penalties, (ii) on or after the Conversion Date, the
prepayment of the Subordinated Capital Certificates of Interest plus any
prepayment penalties and interest on deposit, and (iii) prior to or after the
Conversion Date, the redemption of certain outstanding written notices of
allocation of Borrower and payments in connection with the Permitted
Conversion Transaction (which, subject to the limitation in amount set forth
in this clause (b), may be funded with monies not constituting Net Proceeds
of Stock); and (c) after the Conversion Date, payments of cash dividends in
an aggregate amount not to exceed $5,000,000.00 per Fiscal Year, provided
that prior to making any cash dividend payments pursuant to the immediately
preceding clause (c), Borrower shall deliver to CoBank a certificate
evidencing compliance with Subsection 9.14.1 hereof after giving effect to
such cash dividend payments; and provided further that Borrower shall not
make any Restricted Payments upon the occurrence and during the continuance
of a Default or Event of Default. So long as there is no Default or Event of
Default occurring or continuing, there shall not be included in the
definition of Restricted Payments: (x) dividends paid, or distributions
made, in Stock of Borrower or (y) exchanges of Stock of one or more classes
of Borrower, except to the extent that cash or other value is involved in
such exchange. Moreover, nothing in this Section shall prevent any
Subsidiary from making any Restricted Payments to Borrower or to any other
Loan Party that directly owns Stock of such Subsidiary. The term "equity" as
used in this Section shall include Borrower's common stock, preferred stock,
if any, other equity certificates, and notified equity accounts of patrons.
3. Borrower's Representations. Borrower hereby represents and warrants
that, (a) Borrower has the corporate power and authority to enter into this
Amendment and to perform its obligations hereunder; (b) this Amendment has
been duly authorized and validly executed; and (c) after giving effect to
this Amendment Agreement and the transactions contemplated hereby, no
Potential Default or Event of Default has occurred and is continuing under
the Credit Agreement or other Loan Documents.
4. Effective Date. The effectiveness of this Amendment Agreement is
subject to satisfaction, in CoBank's sole discretion, of each of the
following conditions precedent (the date on which all such conditions
precedent are so satisfied shall be the "Effective Date"):
4.1 Representations and Warranties. The representations and warranties
of Borrower in the Credit Agreement shall be true and correct in all material
respects on and as of the Effective Date as though made on and as of such
date.
4.2 No Event of Default. No Event of Default shall have occurred and
be continuing under the Credit Agreement as of the Effective Date of this
Amendment Agreement.
4.3 Payment of Fees and Expenses. Borrower shall have paid CoBank, by
wire transfer of immediately available federal funds, all expenses owing
pursuant to Section 5 below.
4.4 Rabobank Agreement. CoBank shall have received proof satisfactory
to it that the Rabobank Agreement has been amended so that (a) the definition
of Capital Assets, and (b) its provisions relating to limitations on
Restricted Payments, are each consistent with Sections 1.115 and 10.1,
respectively, of the Credit Agreement as amended by this Amendment Agreement.
4.5 Execution. This Amendment Agreement shall have been executed by
all parties hereto.
5. Costs; Expenses and Taxes. Borrower agrees to reimburse CoBank on
demand for all out-of-pocket costs, expenses and charges (including, without
limitation, all fees and charges of external legal counsel) incurred by
CoBank in connection with the preparation, reproduction, execution and
delivery of this Amendment Agreement and any other instruments and documents
to be delivered hereunder.
6. General Provisions.
6.1 No Waiver; Continuing Effect; References. The execution, delivery
and effectiveness of this Amendment Agreement shall not operate as a waiver
of any right, power or remedy of CoBank under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents, and the
Credit Agreement, as expressly modified hereby, and each of the other Loan
Documents, are hereby ratified and confirmed and shall continue in full force
and effect and be binding upon the parties thereto. Any direct or indirect
reference in the Loan Documents to the "Credit Agreement" shall be deemed to
be a reference to the Credit Agreement as amended by this Amendment
Agreement.
6.2 Governing Law. This Amendment Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
6.3 Counterparts. This Amendment Agreement may be executed in any
number of counterparts and by different parties to this Amendment Agreement
in separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the
same agreement. Copies of documents or signature pages bearing original
signatures, and executed documents or signature pages delivered by a party by
telefax, facsimile, or e-mail transmission of an Adober file format document
(also known as a PDF file) shall, in each such instance, be deemed to be, and
shall constitute and be treated as, an original signed document or
counterpart, as applicable. Any party delivering an executed counterpart of
this Amendment Agreement by telefax, facsimile, or e-mail transmission of an
Adober file format document also shall deliver an original executed
counterpart of this Amendment Agreement, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Amendment Agreement.
[THE EXECUTION PAGE IS THE NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment
to First Amended and Restated Credit Agreement (Term Loan) to be executed by
their duly authorized officers as of the Effective Date.
BORROWER:
GOLD KIST INC., a Delaware corporation
By: /s/ Stephen O. West
Name: Stephen O. West
Title: Chief Financial Officer, Vice President
LENDER:
COBANK, ACB
By: /s/ Jim Stutzman
Name: Jim Stutzman
Title: Vice President Corporate Finance
Division
3385389_3.DOC