Second Amendment to Amended Credit Agreement


 Exhibit 10.1 
  
 SECOND AMENDMENT TO FOURTH AMENDED  
 AND RESTATED CREDIT AGREEMENT 
  
 This SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of September 28, 2004, 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”), the various banks and other lending institutions and institutional
investors as are listed on the signature pages hereof as Lenders (collectively, the “Lenders” and individually, a “Lender”), and COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK
NEDERLAND”, NEW YORK BRANCH, as agent for the Lenders (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, the Agent, and the other agents party
thereto are parties to that certain Fourth Amended and Restated Credit Agreement dated as of March 10, 2004, as amended by that certain First Amendment to Fourth Amended and Restated Credit Agreement dated as of July 16, 2004 (as amended and as
otherwise 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 Section 7.2 of the Credit Agreement and the Agent and the Lenders have agreed to
such amendment 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. Amendment to Section 7.2 of the Credit Agreement.
Section 7.2 of the Credit Agreement, Limitation on Restricted Payments, is hereby modified and amended by deleting such section in its entirety and substituting the following in lieu thereof: 
  
 “Section 7.2. Limitation on Restricted Payments.
The 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 and Subordinated Loan Certificates (except required redemptions as provided in the indentures pursuant to which such Subordinated Capital Certificates of Interest and Subordinated Loan
Certificates were issued), or permit any Subsidiary to do any of the 






 above (all of the foregoing being herein called “Restricted Payments”) except that the
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 the Borrower receives as insurance proceeds) in an aggregate amount not to exceed, in the case of this clause (B), $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 (i) the amount of the Net Proceeds of Stock received from an initial public
offering of the Borrower plus (ii) $60,000,000 of cash-on-hand of the Borrower to the extent used for (x) on or after the Conversion Date, the prepayment of up to 35% of the Senior Unsecured Notes plus any prepayment penalties, (y) on or after the
Conversion Date, the prepayment of the Subordinated Capital Certificates of Interest plus any prepayment penalties and interest on deposit, and (z) prior to or after the Conversion Date, the redemption of certain outstanding written notices of
allocation of the 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 per fiscal year, provided that prior to making any cash dividend payments pursuant to the immediately preceding clause (c), the Borrower
shall deliver to Agent a certificate evidencing compliance with Section 7.1(c) hereof after giving effect to such cash dividend payments, and provided, further, that the 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 the Borrower or (y) exchanges of Stock of one or more classes of the Borrower, except to the extent that cash or other value is involved in such exchange. Moreover, nothing in this Section 7.2 shall prevent any
Subsidiary from making any Restricted Payments to the Borrower or to any other Loan Party that directly owns Stock of such Subsidiary. The term “equity” as used in this Section 7.2 shall include the Borrower’s common stock, preferred
stock, if any, other equity certificates, and notified equity accounts of patrons.” 
  
 2. 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. 
  
 3. 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; 
  

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 (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 in all material respects. 
  
 4. Loan Document. This Amendment shall be deemed to be a Loan Document
for all purposes. 
  
 5. Expenses. The Borrower agrees to
pay all reasonable expenses of the Agent incurred in connection with this Amendment and the other agreements, instruments and documents to be delivered in connection therewith, including, without limitation, all fees and expenses of counsel to the
Agent. 
  
 6. 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. Any signatures delivered by a party by facsimile transmission or by e-mail transmission of an
adobe file format document (also known as a PDF file) shall be deemed an original signature hereto. 
  
 7. 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. 
  
 8. Conditions to Effectiveness. This Amendment shall be effective as of the date first written above upon the
satisfaction of the following conditions, which shall be satisfactory in form and substance to the Agent: 
  
 (a) Execution. This Amendment shall have been duly executed and delivered by the Borrower, the Agent and the Required Lenders.

  
 (b) Senior Notes. The Borrower shall
have delivered to the Agent true and correct copies of the duly executed amendments to the documents governing the Senior Notes. 
  

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 (c) Merger. The Conversion Date shall have occurred and the Borrower shall have
delivered to Agent true and complete copies of the duly executed documents between the Borrower and Gold Kist Holdings Inc. evidencing the merger of the Borrower into Gold Kist Holdings Inc. and the name change of Gold Kist Holdings Inc. to Gold
Kist Inc. 
  
 (d) Initial Public Offering.
The Borrower shall have consummated an initial public offering of its common stock and received Net Proceeds of Stock in accordance with the S-1 Registration Statement filed by the Borrower, as amended. 
  
 (e) Permitted Conversion Transaction Conditions. The
Borrower shall have delivered to the Agent true and correct copies of all documents required to be delivered pursuant to Section 7.6(a). 
  
 (f) Other Matters. Such other information, documents, instruments and approvals as the Agent or the Agent’s counsel may
reasonably require. 
  
 9. Reference to and Effect on the Loan
Documents. Upon the effectiveness of this Amendment, on and after the date hereof, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as amended hereby. 
  
 (THE REMAINDER OF THE PAGE IS
INTENTIONALLY LEFT BLANK) 
  

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 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, Vice President

			
	 	 	 By:
	 	 /s/    Michael T. Naumann


	 	 	 Name:
	 	 Michael T. Naumann

	 	 	 Title:
	 	 Treasurer

		
	 	 	[CORPORATE SEAL]
		
	 AGENT, L/C ISSUER AND LENDER:
	 	COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH
			
	 	 	 By:
	 	 /s/    Michalene Donegan


	 	 	 Name:
	 	 Michalene Donegan

	 	 	 Title:
	 	 Vice President

			
	 	 	 By:
	 	 /s/    Rebecca O. Morrow


	 	 	 Name:
	 	 Rebecca O. Morrow

	 	 	 Title:
	 	 Executive Director


  
 (SIGNATURES CONTINUE
ON NEXT PAGE) 
  

 SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT 








					
	LENDERS:	 	SUNTRUST BANK
			
	 	 	By:	 	 /s/    Hugh E. Brown


	 	 	Name:	 	Hugh E. Brown
	 	 	Title:	 	Vice President
		
	 	 	ING CAPITAL LLC
			
	 	 	By:	 	 /s/    William B. Redmond


	 	 	Name:	 	William B. Redmond
	 	 	Title:	 	Managing Director
		
	 	 	HARRIS TRUST AND SAVINGS BANK
			
	 	 	By:	 	 /s/    Philip Langheim


	 	 	Name:	 	Philip Langheim
	 	 	Title:	 	Vice President
		
	 	 	U.S. BANK NATIONAL ASSOCIATION
			
	 	 	By:	 	

	 	 	Name:	 	 
	 	 	Title:	 	 
		
	 	 	COBANK, ACB
			
	 	 	By:	 	 /s/    Ginny Stichternath


	 	 	Name:	 	Ginny Stichternath
	 	 	Title:	 	Vice President
	
	(SIGNATURES CONTINUE ON NEXT PAGE)

  

 SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT 








			
	NATEXIS BANQUES POPULAIRES
		
	 By:
	 	 /s/    Cuillaume de Parseau


	 Name:
	 	 Cuillaume de Parseau

	 Title:
	 	 First Vice President & Manager
 Commodities Finance Group

		
	 By:
	 	 /s/    Stephen A. Jendras


	 Name:
	 	 Stephen A. Jendras

	 Title:
	 	 Vice President

	
	THE CIT GROUP/BUSINESS CREDIT, INC.
		
	 By:
	 	 /s/    John F. Bonan


	 Name:
	 	 John F. Bonan

	 Title:
	 	 Vice President

	
	GREENSTONE FARM CREDIT SERVICES, FLCA
		
	 By:
	 	 /s/    Alfred S. Compton, Jr.


	 Name:
	 	 Alfred S. Compton, Jr.

	 Title:
	 	 Vice President/Senior Lending Officer



  

 SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT 







 CONSENT OF GUARANTORS 
  
 We, the undersigned, each as a Guarantor pursuant to that certain Third Amended and Restated Subsidiary Guaranty dated as of
the 10th day of March, 2004 (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.	 	 (SEAL)

		
	 By:
	 	 /s/    Stephen O. West


	 Name:
	 	 Stephen O.West
	 	 
	 Title:
	 	 Treasurer
	 	 
		
	AGRATRADE FINANCING, INC.	 	 (SEAL)

		
	 By:
	 	 /s/    Stephen O. West


	 Name:
	 	 Stephen O. West
	 	 
	 Title:
	 	 Treasurer
	 	 
		
	CROSS EQUIPMENT COMPANY, INC.	 	 (SEAL)

		
	 By:
	 	 /s/    Stephen O.West


	 Name:
	 	 Stephen O. West
	 	 
	 Title:
	 	 Treasurer
	 	 
		
	GK FINANCE CORPORATION	 	 (SEAL)

		
	 By:
	 	 /s/    Stephen O. West


	 Name:
	 	 Stephen O. West
	 	 
	 Title:
	 	 Treasurer
	 	 


  

 SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT 








			
	GK PEANUTS,
INC.                                    (SEAL)
		
	By:	 	 /s/    Stephen O. West


	Name:	 	Stephen O. West
	Title:	 	Treasurer
	
	GK PECANS, INC.                                 
        (SEAL)
		
	By:	 	 /s/    Stephen O. West


	Name:	 	Stephen O. West
	Title:	 	Treasurer
	
	LUKER
INC.                                       
         (SEAL)
		
	By:	 	 /s/    Stephen O. West


	Name:	 	Stephen O. West
	Title:	 	Treasurer
	
	AGVESTMENTS, INC.                                
 (SEAL)
		
	By:	 	 /s/    Stephen O. West


	Name:	 	Stephen O. West
	Title:	 	President
	
	GOLD KIST HOLDINGS INC.                     (SEAL)
		
	By:	 	 /s/    Stephen O. West


	Name:	 	Stephen O. West
	Title:	 	Chief Financial Officer, Vice President


  

 SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT