SECURITIES AND EXCHANGE COMMISSION
Washington, D. C.
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year Commission File
ended June 27, 1998 No. 2-59958
GOLD KIST INC.
(Exact name of registrant as specified in its charter)
Georgia 58-0255560
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
244 Perimeter Center Parkway, N. E.
Atlanta, Georgia 30346
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(770) 393-5000
Securities registered pursuant to Section 12(b) of the
Act: None
Securities registered pursuant to Section 12(g) of the
Act: None
Indicate by check mark whether the registrant (1)
has filed all reports required to be filed by Section 13 or
15(d) of the Securities Exchange Act of l934 during the
preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
YES X . NO .
DOCUMENTS INCORPORATED BY REFERENCE
Not Applicable.
TABLE OF CONTENTS
Item Page
1. Business (and Properties) . . . . 1
2. Properties . . . . . . . . . . . 11
3. Legal Proceedings . . . . . . . . 11
4. Submission of Matters to a
Vote of Security Holders . . . . . . 11
5. Market for Registrant's Common Equity
and Related Stockholder Matters 11
6. Selected Financial Data . . . . . 12
7. Management's Discussion and Analysis of
Financial Condition and Results of
Operations. . 13
7A. Quantitative and Qualitative
Disclosure about Market Risk . 18
8. Financial Statements and Supplementary
Data . . . . . . . . . . 19
9. Changes in and Disagreements with
Accountants on Accounting and
Financial Disclosure .. . . . . . 40
10. Directors and Executive Officers
of the Registrant . . . . . . 40
11. Executive Compensation . . . . . 43
12. Security Ownership of Certain
Beneficial Owners and Management 46
13. Certain Relationships and Related
Transactions. . . . . . . . . 46
14. Exhibits, Financial Statement Schedules,
and Reports on Form 8-K . . . . 47
- i -
GOLD KIST INC.
ANNUAL REPORT FOR THE FISCAL YEAR ENDED JUNE 27, 1998
PART I
Item 1. Business (and Properties).
Gold Kist Inc. ("Gold Kist" or the "Association") is a
diversified agricultural membership cooperative association,
headquartered in Atlanta, Georgia. It was incorporated
without capital stock in 1936 under the Georgia Cooperative
Marketing Act. The name of the Association was changed in
1970 from Cotton Producers Association to Gold Kist Inc. In
April 1985, the Articles of Incorporation and By-Laws of the
Association were amended to provide for a class of common
stock and a class of preferred stock as authorized by the
Georgia Cooperative Marketing Act. Each member is issued one
share of common stock only, as evidence of membership and the
right to one vote as long as the member maintains status as an
active member. Only members may hold the common stock, which
is nontransferable and receives no dividends.
Gold Kist serves approximately 31,000 active farmer
members located principally in Alabama, Florida, Georgia,
Mississippi, South Carolina and Texas. In addition, other
cooperative associations are members of Gold Kist. Any person
engaged in the production of farm commodities and any firm or
corporation whose members or stockholders are persons so
engaged and any cooperative association organized under the
cooperative marketing laws of any state, which enters into a
marketing and/or purchasing agreement with the Association, is
eligible for membership.
Gold Kist offers both cooperative marketing and
cooperative purchasing services to its member patrons. Farm
commodities are marketed by Gold Kist on behalf of members.
Similarly, Gold Kist manufactures or processes many products
purchased for its members. The standard Membership,
Marketing, and/or Purchasing Agreement which is entered into
between each member and Gold Kist does not require the member
to market his agricultural products or to purchase farm
supplies through Gold Kist. Under the agreement, Gold Kist
undertakes to market for the member agricultural products
delivered which are of a type marketed by Gold Kist and to
purchase or manufacture and sell to the member such farm
supplies as the member requires, provided it is advantageous
for Gold Kist to handle such supplies in the interest of the
membership. The Association also does business with non-
members and engages in non-cooperative activities through
subsidiaries and partnerships. AgraTrade Financing, Inc., a
wholly-owned subsidiary of Gold Kist, provides financing to
members and non-members doing business with Gold Kist and its
subsidiaries and partnerships. Financing is extended for
poultry and pork housing construction and for certain farm
commodity crop production.
Agriculture is generally cyclical in nature. Commodities
marketed by Gold Kist on behalf of its members are subject to
fluctuations in price, based on supply of the farm commodities
and demand for the raw or processed products. Commodity
prices are also sensitive to interest rates, with high rates
generally tending to depress market prices, and to worldwide
economic and political factors. In addition, a portion of
Gold Kist's business is dependent on the demand of farmers for
the purchase of products, which is influenced by the general
farm economy and the success of particular crops.
Gold Kist's business is conducted in two industry
segments. The Poultry segment conducts broiler production
operations, providing both marketing and purchasing services
to its cooperative patrons. The Agri-Services segment
purchases or manufactures feed, seed, fertilizers, pesticides,
animal health products and other farm supply items for sale at
wholesale and retail. Additionally, that segment operates
pork production operations, serves as a contract procurement
agent for, and storer of, farm commodities such as soybeans
and grain and is engaged in the purchase, sale, processing and
storage of cotton. Gold Kist is also a partner in a major
peanut processing and marketing business and in a pecan
processing and marketing business and participates as a member
of limited liability companies which are engaged in the
production and sale of hogs and of fertilizer ingredients.
Gold Kist has entered into an Asset Purchase Agreement
(the "Agreement"), dated as of July 23, 1998, with Southern
States Cooperative, Incorporated ("Southern States"), pursuant
to which the Association has agreed to sell and assign, and
Southern States has agreed to purchase and assume, the assets
and certain of the obligations of the Association's
agricultural inputs business. The affected assets include
substantially all of the assets of the Association's
AgriServices segment (including the retail stores division,
the fertilizer and chemicals division, and the pet food and
animal products division), as well as certain crop notes
receivable of AgraTrade Financing, Inc., the Association's
wholly-owned finance subsidiary. The Association's poultry,
pork, aquaculture, seed marketing and other operations and
businesses are not affected by this transaction. The
consideration to be paid the Association in connection with
the sale shall be an amount equal to $41.4 million plus the
net current asset value as of the closing date less the
remaining obligations under an industrial development bond and
lease obligation as of the closing date. Unless Southern
States otherwise agrees, the final purchase price shall not
exceed $251.4 million. Subject to the satisfaction of certain
conditions to closing, the consummation of the transaction
shall take place on October 13, 1998, or such other date as
the Association and Southern States may agree. Upon the
consummation of this transaction, the Association will no
longer engage in the business operated by the affected
segments.
In addition, in September 1998, the Association sold
certain assets of its cotton marketing business. As a result
of that transaction, and the conveyance of certain cotton
ginning and storage facilities operated by the Association to
Southern States pursuant to the Agreement described above, the
Association will terminate its cotton operations other than
the Moultrie, Georgia cotton warehouse activities in the first
quarter of fiscal 1999.
POULTRY
Broilers
Gold Kist conducted its poultry operations in fiscal 1998
through six Gold Kist cooperative broiler divisions, through
its former 75% majority-owned public subsidiary, Golden
Poultry Company, Inc. ("Golden Poultry"), and through its
former partnership interest in Carolina Golden Products
Company ("Carolina Golden"). Gold Kist acquired the remaining
interests in Golden Poultry and Carolina Golden in September
1997 and conducted the operations of those companies
subsequently as cooperative broiler divisions of Gold Kist.
See Note 11 of Notes to Consolidated Financial Statements.
Gold Kist's cooperative broiler operation is organized
into broiler divisions, each encompassing one of Gold Kist's
decentralized broiler complexes. Each Gold Kist decentralized
broiler complex operates within a separate geographical area
and includes within that area broiler flocks, pullet and
breeder (hatching egg) flocks, one or more hatcheries, a feed
mill, poultry processing plant(s) and management, sales and
accounting office(s), and transportation facilities. The six
complexes operated as Gold Kist divisions throughout fiscal
1998 are headquartered in Boaz and Cullman, Alabama; Athens,
Ellijay and Carrollton, Georgia; and Live Oak, Florida. The
broiler growers for each complex are members of Gold Kist.
The facilities and operations of each complex are designed to
furnish the growers flocks of chicks, feed and medicines, and
to provide processing and marketing services for the broilers
grown.
Effective September 1997, the operations of Golden Poultry
and Carolina Golden were included in Gold Kist cooperative
poultry operations. The former Golden Poultry integrated
poultry processing complexes are in Russellville, Alabama,
Douglas, Georgia, and Sanford and Siler City, North Carolina.
Each of these complexes contracts for poultry production with
broiler growers and includes a hatchery, feed mill, processing
plant and management, sales and accounting office, and
transportation facilities. The former Carolina Golden
integrated poultry processing complex is located in Sumter,
South Carolina, and produces value-added and further processed
poultry products. This complex contracts for poultry
production with broiler growers and includes a hatchery, feed
mill, processing plant and management, sales and accounting
office, and transportation facilities.
The principal products marketed by the broiler divisions
are whole chickens, cut-up chickens, segregated chicken parts
and further processed products packaged in various forms,
including fresh bulk ice pack, chill pack and frozen. Ice
pack chicken is packaged in ice or dry ice and sold primarily
to distributors, grocery stores and fast food chains. Chill
pack chicken is packaged for retail sale and kept chilled by
mechanical refrigeration from the packing plant to the store
counter. Frozen chicken is marketed primarily to school
systems, the military services, fast food chains and in the
export market. Further processed products, which include
preformed breaded chicken nuggets and patties and deboned,
skinless and marinated products are sold primarily to fast
food and grocery store chains. Chill pack chicken is sold in
certain localities under the Gold Kist Farmsr and Young 'n
Tenderr labels; however, some is sold under customers' private
labels. Most of the frozen chicken carries the Gold Kistr or
Early Birdr label. Cornish game hens are marketed in frozen
form primarily to hotels, restaurants and grocery stores under
the Gold Kist Farms, Young 'n Tender and Medallionr labels.
Medallion, Big Valuer, Gold Kist Farms, Young 'n Tender and
Early Bird are registered trademarks of Gold Kist Inc.
Broiler products are marketed directly from the processing
plant in each broiler complex. Some packaged products are
marketed from the Atlanta headquarters. The plants at Athens,
Carrollton, Boaz, and Live Oak have special distribution
facilities, and there are five separate distribution
facilities located in Florida, Tennessee, Ohio and Kentucky.
The former Golden Poultry operations include two separate
distribution facilities in Siler City, North Carolina, and
Pompano Beach, Florida. Cornish game hens are processed at
facilities in Trussville, Alabama and marketed from the
Atlanta headquarters.
Gold Kist is one of the largest poultry processors in the
United States. It competes with other large processors and
with smaller companies. Competition is based upon price,
quality and service. While Management believes that the
pricing and quality of its products are competitive with other
processors, it believes that Gold Kist's service to its
customers is a principal factor that has established Gold Kist
as one of the largest United States poultry processors. Gold
Kist's ability to deliver broilers and other poultry products
cut-up or otherwise produced to order is an important service
to customers.
The poultry industry, just as many other commodity
industries, has historically been cyclical. Prices of
perishable commodities, such as broilers, react directly to
changes in supply and demand. Furthermore, broilers are
typically a high volume, low margin product so that small
increases in costs, such as feed ingredient costs, or small
decreases in price, can produce losses. As an integral part
of its feed ingredient purchasing strategy, Gold Kist attempts
to limit the effects and risk of fluctuations in feed
ingredient costs (i.e., corn and soybean meal) through varying
amounts of commodity trading transactions in the agricultural
commodity futures and options market. Commodity trading
transactions, which are a common industry practice, have
inherent risk, such that changes in the commodities futures
and options prices as a result of favorable or unfavorable
changes in the weather, crop conditions or government policy
may have an adverse effect on Gold Kist's net feed ingredient
cost as compared to the cost in cash markets. Likewise, Gold
Kist could benefit from reduced net feed ingredient cost as a
result of these changes as compared to cost in the cash
market. Results of hedging and commodity options transactions
are reflected as an adjustment to feed ingredient cost in the
Association's consolidated financial statements. See Note l
(c) of Notes to Consolidated Financial Statements.
The poultry industry has also traditionally been subject
to seasonality in demand and pricing. Generally, the price
and demand for poultry products peaks during the summer months
and declines to lower levels during the winter months of
November, December, January and February. Gold Kist broiler
prices and sales volume follow the general seasonality of the
industry.
The following table shows the amount and percentage of
Gold Kist's net sales volume contributed by sales of broiler
products for each of the years indicated.
<TABLE>
<CAPTION>
Fiscal Year Ended (000's Omitted)
June 29, June 28, June 27,
1996 1997 1998
<S> <C> <C> <C>
Broiler Products
Volume $1,380,649 $1,629,705 $1,630,437
Percentage (%) 97.2 98.2 98.7
</TABLE>
AGRI-SERVICES
Gold Kist purchases, manufactures and processes
fertilizers, agricultural chemicals, seed, pet foods, feed,
animal health products and other farm supply items for
distribution and sale at wholesale and retail. These products
are distributed through approximately 100 Gold Kist retail
stores and at wholesale to national accounts and independent
dealers. Gold Kist serves as a contract procurement agent
for, and storer of, farm commodities such as soybeans and
grain.
Gold Kist has entered into an Asset Purchase Agreement
(the "Agreement"), dated as of July 23, 1998, with Southern
States Cooperative, Incorporated ("Southern States"), pursuant
to which the Association has agreed to sell and assign, and
Southern States has agreed to purchase and assume, the assets
and certain of the obligations of the Association's
agricultural inputs business. The affected assets include
substantially all of the assets of the Association's
AgriServices segment (including the retail stores division,
the fertilizer and chemicals division, and the pet food and
animal products division), as well as certain crop notes
receivable of AgraTrade Financing, Inc., the Association's
wholly-owned finance subsidiary. The Association's poultry,
pork, aquaculture, seed marketing and other operations and
businesses are not affected by this transaction. The
consideration to be paid the Association in connection with
the sale shall be an amount equal to $41.4 million plus the
net current asset value as of the closing date less the
remaining obligations under an industrial development bond and
lease obligation as of the closing date. Unless Southern
States otherwise agrees, the final purchase price shall not
exceed $251.4 million. Subject to the satisfaction of certain
conditions to closing, the consummation of the transaction
shall take place on October 13, 1998, or such other date as
the Association and Southern States may agree. Upon the
consummation of this transaction, the Association will no
longer engage in the business operated by the affected
segments.
In addition, in September 1998, the Association sold
certain assets of its cotton marketing business. As a result
of that transaction, and the conveyance of certain cotton
ginning and storage facilities operated by the Association to
Southern States pursuant to the Agreement described above, the
Association will terminate its cotton operations other than
the Moultrie, Georgia cotton warehouse activities in the first
quarter of fiscal 1999.
Retail Stores
The Gold Kist retail store operation is conducted in
Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi,
South Carolina and Texas.
The typical Gold Kist store is a complete farm supply
center offering for sale many types of feeds, animal health
products, fertilizers, pesticides, seeds, farm supplies and
equipment. It also offers services such as precision farming,
customized fertilizer spreading, field mapping, soil testing,
insect scouting, and agronomic and animal nutrition advice.
Gold Kist purchases most of the farm supplies distributed from
various manufacturers.
The competition for retail sales faced by Gold Kist stores
varies greatly from locality to locality. Some compete with
other purchasing cooperatives, hardware and farm supply
stores, and retail outlets owned or affiliated with major
fertilizer, agricultural chemical and feed manufacturers. In
some areas these competing manufacturers sell directly to
farmers. Price competition is important for many items. The
Gold Kist stores emphasize service to the customer.
Luker Inc., a steel fabrication company located in
Augusta, Georgia, and a wholly-owned subsidiary of Gold Kist,
manufactures steel equipment such as poultry processing
equipment, storage bins, elevators and conveyor systems.
Gold Kist operates a system of receiving and storage
facilities for handling unprocessed farm commodities such as
soybeans, corn and other grains. Approximately 98% of Gold
Kist's storage facilities are licensed by the federal or state
government and can issue negotiable warehouse receipts.
Pursuant to a five-year grain handling agreement which
terminates in 2000, Gold Kist utilizes these facilities and
assets exclusively as independent buying points operating on a
commission basis for the Archer Daniels Midland Company.
Fertilizers and Chemicals
Gold Kist distributes granular, blended and liquid
fertilizers and fertilizer materials. Each type is purchased
or produced in varying compositions depending upon the
ultimate use of the product as a plant food. The Association
owns and operates five fertilizer plants in addition to other
blending facilities at certain Gold Kist stores where
fertilizer ingredients are physically mixed to a custom
formula. Gold Kist leases or owns terminal facilities at
which fertilizer materials are warehoused for resale through
Gold Kist stores and private dealers. Granular fertilizers
are purchased and distributed in bagged and bulk form. In
addition to traditional agricultural customers, Gold Kist
markets fertilizers and chemicals to, and provides application
services for, forestry, turf and industrial customers.
Gold Kist is a member of CF Industries, Inc., a
cooperative owned by regional cooperatives, which produces and
supplies fertilizer materials to its members. For the fiscal
year ended June 27, 1998, Gold Kist purchased approximately
38% of its fertilizer materials and products at market prices
from CF Industries. The remaining fertilizer materials and
products were purchased from more than 50 other suppliers.
Gold Kist competes for fertilizer sales with the major
fertilizer manufacturers, wholesalers and brokers.
Competition is largely on the basis of price and service.
Gold Kist markets premium grade fertilizers under its
trademarks Growers Prider, Living Lawnr, and Garden Goldr.
Gold Kist also markets a premium growing medium composed of
soil materials and fertilizer nutrients under its trademark
Garden on the Spotr.
Gold Kist distributes agricultural and specialty
chemicals, including pesticides, growth regulators and
surfactants which it purchases from approximately 50 chemical
manufacturers. Competition for sales of agricultural
chemicals is primarily on the basis of price and service since
most retailers have access to the same inventory of products
produced by the major manufacturers. Gold Kist also provides
aerial application of fertilizer for forestry customers and
ground application of fertilizer and chemicals for turf
customers. The Association is also a participant in a limited
liability company which manufactures and sells fertilizer
ingredients.
Pet Food and Animal Products
Gold Kist operates four major feed mills for its pet food
and animal products operations. The mills produce feeds
distributed at wholesale or at retail through the Gold Kist
stores and independent dealers. All of the mills are batch
process mills in which ingredients are weighed. This type of
mill is capable of precision feed mixing, which is especially
important to the poultry industry. Feeds are distributed in
bagged and bulk form.
In the fiscal year ended June 27, 1998, Gold Kist's feed
mills produced substantially all of the feed it distributed at
wholesale or retail. Gold Kist produces and markets
approximately 300 different feeds, including custom blended
feeds and feeds containing various medications. Pro Balancedr
is a dairy feed sold through a special program which includes
survey and analysis of feed ingredients needed for a
particular herd. Gold Kist also markets dog food under the
Pay Dayr, Pro Balanced and Performance Plusr trademarks
through independent dealers, under the Gold Kist and Pro
Balanced trademarks through Gold Kist retail stores, and under
the Gold Kist and Top Notchr trademarks through grocery
wholesalers and retail chain stores. Pro Balanced cat food is
also marketed through independent dealers, Gold Kist stores
and grocery wholesalers and retail chain stores. Pro
Balanced, Pay Day, Gold Kist, Top Notch, and Performance Plus
are registered trademarks of Gold Kist. Aquaculture feed
products, primarily feed for commercial fish farming
operations, also form a significant portion of Gold Kist's
feed business.
Feed ingredients are purchased in the marketplace from
many sources, including major grain companies. Feed
formulation is based on the cost of various alternative
ingredients in a given week. Feed ingredients are normally
purchased for several weeks' production; corn is purchased in
fifteen-rail car units.
Approximately forty percent of the feed sold is delivered
in bulk form directly from the feed mill to the farm; the
remainder is sold in bag form. Gold Kist operates a fleet of
trucks, including feed tankers, for the delivery of feed.
Competition for sales of feed is based on quality and
service, as well as price. Gold Kist competes with major feed
manufacturers and local feed mills. The major feed
manufacturers distribute through independent retailers, owned
retail stores and direct to farmers. Gold Kist sells through
its own retail stores and directly to large farmers, private
dealers, independent cooperatives, wholesale grocers, and
retail grocery chains.
Pork
Gold Kist markets hogs raised by producers in Alabama and
Georgia. Feeder pigs are furnished to members who raise them,
using Gold Kist feed and medicines, to produce hogs for
marketing. Feeder pigs are either raised by Gold Kist members
and marketed through Gold Kist to the market hog growers,
raised for Gold Kist by non-member independent contractors or
purchased by Gold Kist in the marketplace. The Association
also has a joint venture arrangement with another regional
cooperative association in the form of a limited liability hog
sales and production company. Gold Kist raises and provides
young pigs for the venture.
Live market hogs are marketed by Gold Kist in the
Southeastern United States to processors of pork products,
primarily on a competitive bid basis in the states of Alabama,
Georgia and Mississippi. Management believes that customers
are favorably impressed by the quality of its market hogs
which is principally due to superior breeding stock and
management grow-out techniques employed by Gold Kist. Gold
Kist competes with other major national producers and smaller
individual producers, primarily on a regional basis in the
Southeastern United States.
Cotton
Cotton ginning and storage facilities are operated at
Statesboro, Morven, Byromville and DeSoto, Georgia, and
Bishopville, South Carolina. A central storage warehouse is
operated in Moultrie, Georgia. The Association provides
ginning and storage services to members and non-members and
markets cotton purchased from members and non-members to
domestic and foreign textile mills.
While operations of the Moultrie storage warehouse will
be continued to service cotton currently stored in that
facility, the other facilities of the cotton ginning and
storage operations and the cotton marketing operations will be
terminated in the first quarter of 1999.
Seed Marketing
AgraTech Seeds, Inc. ("AgraTech Seeds"), a wholly-owned
subsidiary of Gold Kist, owns and operates a seed business,
which consists of the development, contract production,
processing and sale primarily of proprietary seed varieties.
AgraTech Seeds distributes approximately 50 varieties of
seeds. Seed is marketed by AgraTech Seeds at wholesale to
seed retailers, including Gold Kist stores and independent
seed retail outlets in the Southeast and the Midwest.
AgraTech Seeds licenses certain seed dealers, including Golden
Peanut Company, to sell its proprietary peanut varieties "GK
7", "GK 7 Hi-Oleic", "AgraTech 108", "AgraTech 120" and
ViruGard"T, and receives a royalty on licensed sales.
AgraTech Seeds contracts with farmers for the production of
seed. Careful control is required to maintain the purity of
varieties. Quality and name recognition play a large role in
competition for sales of seed.
AgraTech Seeds processes or contracts for the processing
of approximately 95% of the seeds it distributes. AgraTech
Seeds owns and operates seed processing facilities in
McCordsville, Indiana, St. Joseph, Illinois, and Mason City,
Illinois. Proprietary corn, soybean, sorghum and peanut seed
varieties are marketed under the trademark AgraTechr.
As a function of its retail sales operations, Gold Kist
operates a commodity seed procurement plant at Dublin, Georgia
for the cleaning, grading, treatment and processing of
commodity seeds. Seed products from its Dublin operations are
marketed primarily through the Gold Kist retail stores.
Pecans
Gold Kist is a partner in Young Pecan Company, a pecan
processing and marketing business headquartered in Florence,
South Carolina, in which the Association holds a 25% equity
interest and a 35% earnings (loss) allocation. See Note 8 of
Notes to Consolidated Financial Statements.
PARTNERSHIP INTEREST
Gold Kist, Archer Daniels Midland Company and Alimenta
Processing Corporation are partners in Golden Peanut Company,
a partnership formed to operate a peanut procuring,
processing, and marketing business. The partners lease peanut
facilities, equipment and fixed assets to the partnership.
Gold Kist, as a general partner, participates in all
partnership allocations in proportion to its 33 1/3%
partnership interest. See Note 9(b) of Notes to Consolidated
Financial Statements.
The peanut facilities leased to Golden Peanut Company
pursuant to the general partnership agreement include
receiving stations, shelling plants, cold storage facilities
and warehouses located in the three major peanut producing
areas of the United States (Southeast, Southwest and
Virginia/Carolinas).
Golden Peanut Company procures, processes and markets
peanuts and peanut by-products in each of the three peanut
producing areas of the United States. Golden Peanut Company
is a major processor of edible peanuts and is active in both
domestic and international markets. The principal peanut
product is shelled edible peanuts. Shelled edible peanuts are
marketed domestically primarily to manufacturers of peanut
butter, candy and salted nuts and are sold in the export
market. Golden Peanut Company also processes peanuts for sale
in the shell or for processing by others into oil and meal.
EXPORT SALES
Gold Kist owns no physical facilities overseas and has no
overseas employees. Product sales managers maintain sales
networks overseas through contacts with independent dealers
and customers. During the fiscal year ended June 27, 1998,
the approximate export sales volume of the primary export
product line (poultry) was $61.6 million. During that period,
export sales of poultry were mainly to customers in Russia,
Eastern Europe, the Far East, South Africa, Central and South
America and the Caribbean area.
Export sales involve an additional element of
transportation and credit risk to the shipper beyond that
normally encountered in domestic sales.
Gold Kist faces competition for export sales from both
domestic and foreign suppliers. In export poultry sales, Gold
Kist faces competition from other major United States
producers as well as companies in France, Thailand, and
Brazil. Tariff and non-tariff barriers to United States
poultry established by the European Economic Community (EEC)
since 1962 have virtually excluded Gold Kist and other United
States poultry exporters from the EEC market. In addition,
EEC exporters are aided in price competition with United
States exporters in certain markets by subsidies from their
governments.
Gold Kist and a group of other North American and foreign
farm cooperatives and agribusiness firms, acting through
companies formed for this purpose, own 50% of a trading
company engaged in international merchandising of grains and
other agricultural commodities. Gold Kist is a minority
shareholder and deals with the trading company on an arm's
length basis.
PROPERTIES
Gold Kist corporate headquarters building, completed in
1975 and containing approximately 260,000 square feet of
office space, is located on fifteen acres of land at 244
Perimeter Center Parkway, N. E., Atlanta, Georgia. The land
and building are owned by a partnership of Gold Kist and
Cotton States Mutual Insurance Company in which partnership
Gold Kist owns 54% of the equity. Gold Kist leases
approximately 120,000 square feet of the building from the
partnership.
The Association's principal operating facilities are
operated by its two industry segments, the Poultry segment and
the Agri-Services segment.
Poultry
The seven poultry processing plants operated as Gold Kist
facilities in fiscal 1998 are located at Boaz, Trussville and
Guntersville, Alabama; Athens, Ellijay and Carrollton,
Georgia; and Live Oak, Florida. These plants have an
aggregate weekly processing capacity of approximately
8,830,000 broilers and 415,000 cornish game hens. The plants
are supported by hatcheries located at Albertville,
Crossville, Cullman, Curry, Ranburne and Scottsboro, Alabama;
and Blaine, Bowdon, Calhoun, Commerce, Carrollton, and Talmo,
Georgia; and Live Oak, Florida. These hatcheries have an
aggregate weekly capacity (assuming 85% hatch) of
approximately 1,040,000 chicks. Additionally, Gold Kist
operates seven feed mills to support its poultry operations;
the mills have an aggregate annual capacity of approximately
3.3 million tons and are located in Guntersville and Jasper,
Alabama; Calhoun, Cartersville, Commerce, and Waco, Georgia;
and Live Oak, Florida.
The four former Golden Poultry poultry processing plants
are located in Douglas, Georgia, Sanford and Siler City, North
Carolina, and Russellville, Alabama. The Douglas plant has a
weekly processing capacity of approximately 1,300,000 broilers
on two shifts; the Sanford and Russellville plants have weekly
processing capacities of approximately 1,450,000 broilers on
two processing shifts; and the Siler City plant has a weekly
processing capacity of 630,000 chickens on two shifts. These
plants are supported by hatcheries in Siler City and Staley,
North Carolina (with a hatch capacity of 1,505,000 chicks per
week), Douglas, Georgia (with a hatch capacity of
approximately 1,350,000 chicks per week), and Russellville,
Alabama (approximately 1,250,000 chicks per week).
Additionally, the former Golden Poultry feed mills at Ambrose,
Georgia, Bonlee and Staley, North Carolina, and Pride,
Alabama, have an aggregate annual capacity of 1,615,000 tons.
The former Carolina Golden processing plant in Sumter,
South Carolina has a weekly processing capacity of 1,400,000
broilers on two processing shifts. The Sumter plant is
supported by a hatchery in Sumter, South Carolina with a hatch
capacity of approximately 1,400,000 chicks per week. The
former Carolina Golden feed mill at Sumter, South Carolina has
an annual capacity of 338,000 tons.
The Association operated six separate distribution centers
in fiscal 1998 as Gold Kist facilities in its sales and
distribution of poultry products: Tampa and Crestview,
Florida; Chattanooga and Nashville, Tennessee; Mt. Sterling,
Kentucky; and Cincinnati, Ohio. The former Golden Poultry
distribution facilities are in Pompano Beach, Florida, and
Siler City, North Carolina.
Agri-Services
In its retail store operations, Gold Kist operates Gold
Kist stores at 23 locations in Alabama, one location in
Arkansas, 5 locations in Florida, 42 locations in Georgia, one
location in Louisiana, 6 locations in Mississippi, 14
locations in South Carolina and 6 locations in Texas.
For its fertilizer and chemicals business, the Association
operates four fertilizer plants at Clyo and Cordele, Georgia,
Hanceville, Alabama, and Greenville, Mississippi, and bulk
chemical storage facilities at Moultrie, Georgia and
Bishopville and Darlington, South Carolina. Gold Kist
utilizes chemical storage and distribution facilities at
Alcolu, South Carolina, Lawrenceville and Sylvester, Georgia;
Hanceville, Alabama, Greenville, Mississippi; Carrollton,
Lubbock and Buda, Texas; and Pensacola and Riviera Beach,
Florida; and fertilizer distribution terminal facilities at
Pine Bluff, Arkansas, Bainbridge and Brunswick, Georgia;
Fayetteville, Morehead City, and Wilmington, North Carolina;
Charleston, South Carolina; and Memphis, Tennessee. Forestry
fertilizer application facilities are maintained at Tifton,
Georgia and Live Oak, Florida.
For its pet food, feed and pork operations, Gold Kist
operates four feed mills with an aggregate annual capacity of
approximately 470,000 tons. The mills are located at
Guntersville, Alabama; Flowery Branch and Valdosta, Georgia;
and Gaston, South Carolina.
Gold Kist operates four pork production centers. These
production facilities include a gilt production center in
Stephens, Georgia; two gilt and pork production centers
located at Kingston, Georgia; and a boar and pork production
center headquartered in Stephens, Georgia.
Cotton ginning and storage facilities are operated at
Statesboro, Morven, Byromville and DeSoto, Georgia, and
Bishopville, South Carolina. A central storage warehouse is
operated in Moultrie, Georgia.
The Association operates a seed processing plant at
Dublin, Georgia, which can clean, grade and treat
approximately 100,000 bags of seeds annually (when operating
on one shift). AgraTech Seeds operates seed processing plants
in McCordsville, Indiana, and Mason City and St. Joseph,
Illinois, which can clean, grade and treat approximately
320,000 bags, 110,000 bags and 80,000 bags, respectively, of
seeds annually (when operating on one shift).
For its grain procurement and storage operations, Gold
Kist operated 25 owned facilities and 3 leased facilities in
Alabama, Florida, Georgia and South Carolina in fiscal 1998.
The facilities have an aggregate storage capacity of
approximately 7 million bushels.
Gold Kist owns peanut procuring, processing and marketing
facilities which are leased to Golden Peanut Company pursuant
to the general partnership agreement executed by Gold Kist
with ADM and Alimenta. The lease is for a 20-year term,
beginning in 1988; however, the lease is subject to the terms
of the partnership agreement which is terminable upon 18
months prior written notice. These facilities include 37
peanut receiving stations located in the three major peanut
producing areas of the United States (Southeast, Southwest,
and Virginia/Carolinas) and four peanut shelling plants
located in Ashburn, Georgia; Graceville, Florida; Anadarko,
Oklahoma; and Comyn, Texas. Gold Kist also owns and leases to
Golden Peanut Company two cold storage facilities located at
Anadarko, Oklahoma and Suffolk, Virginia with an aggregate
storage capacity of 11,000 tons, and 48 warehouses located at
30 of the leased receiving stations with an aggregate storage
capacity of approximately 133,000 tons.
The Association holds all of the facilities in fee except
for the corporate headquarters building (lease expires June
30, 2004); poultry distribution facilities at Tampa, Florida
(lease expires May 14, 2000) and Nashville (lease expires
December 31, 1998) and Chattanooga (terminable upon 30 days
notice) Tennessee; Crossville, Alabama, poultry hatchery
facility (lease expires February 23, 2088); Anadarko, Oklahoma
peanut cold storage facility (lease expires April 30, 2010;
subleased to Golden Peanut Company); and retail store
facilities at Dermott, Arkansas (lease expires March 9, 1999);
Byromville (lease expires March 15, 1999), Canton (lease
expires October 31, 1998), DeSoto (lease expires March 15,
1999), and Oglethorpe (lease expires March 15, 1999), Georgia;
Brundidge (terminable upon 30 days notice), Danville (lease
expires January 31, 2002), Geraldine (lease expires January
31, 1999), Jasper (lease expires May 31, 2002), and
Russellville (lease expires November 30, 1998), Alabama;
Bennettsville (lease expires October 14, 1998), Lexington
(lease expires September 30, 1998), Newberry (lease continues
on a month-to-month basis) and Sumter (lease expires March 31,
2002) South Carolina. Forestry fertilizer application
headquarters facilities are leased at Tifton, Georgia (lease
expires June 15, 1999). Chemical storage and distribution
facilities are leased at Greenville, Mississippi (lease
expires November 30, 1999); Buda (lease expires February 1,
1999) and Carrollton (lease expires March 31, 1999), Texas;
and Pensacola (lease expires January 5, 1999), Florida and
fertilizer storage and distribution space is also leased on a
continuing as needed basis at terminals in Pine Bluff,
Arkansas; Bainbridge and Brunswick, Georgia; Boone, Carthage,
Fayetteville, Horseshoe, Morehead City, and Wilmington, North
Carolina; Charleston, South Carolina; Memphis, Tennessee; and
Houston, Texas.
ENVIRONMENTAL AND REGULATORY MATTERS
Processing plants such as those operated by Gold Kist are
potential sources of emissions into the atmosphere and, in
some cases, of effluent emissions into streams and rivers.
Presently, management does not know of any material capital
expenditures for environmental control facilities that will be
necessary for the remainder of the current fiscal year and the
next fiscal year in order to comply with current statutes and
regulations. On January 29, 1992, the United States
Environmental Protection Agency ("EPA") sent General Notice
Letters designating Gold Kist and several other companies as
potentially responsible parties (PRP's) for alleged
environmental contamination at an Albany, Georgia site
previously owned by Gold Kist. Gold Kist has responded to the
General Notice Letter denying liability for the contamination.
EPA has not indicated to Gold Kist how it intends to proceed
with regard to the site. Gold Kist is unable to estimate at
this time the cost of compliance, if any, to be required of
Gold Kist for the location. Management believes that the
potential cost of compliance for Gold Kist would not have a
material effect on Gold Kist's financial condition or results
of operations.
The Georgia Environmental Protection Division ("GEPD") has
issued a request for submittal of a Compliance Status Report
("CSR") for the former Gold Kist chemical blending facility in
Cordele, Georgia. Gold Kist sold this facility in 1985. The
site of this facility has been listed on Georgia's Hazardous
Sites Inventory list under the State's Hazardous Sites
Response Act due to the presence of pesticide residue above
regulatory standards. Completion of the CSR will require
assessment and delineation of the extent of the pesticide
residue conditions, which are present both on and off-site.
Remediation may be required in the future to meet regulatory
clean-up standards. Since the extent of the conditions at the
site have not been defined at this time, Gold Kist is unable
to estimate cost of the compliance to be required of Gold Kist
for this location. Management believes that the potential
cost of compliance for Gold Kist would not have a material
effect on Gold Kist's financial condition or results or
operations.
The regulatory powers of various federal and state
agencies, including the federal Food and Drug Administration,
apply throughout the agricultural industry, and many of Gold
Kist's products and facilities are subject to the regulations
of such agencies.
HUMAN RESOURCES
Gold Kist has approximately 18,000 employees during the
course of a year. Gold Kist's processing facilities operate
year round without significant seasonal fluctuations in
manpower requirements. Gold Kist has approximately 3,200
employees who are covered by collective bargaining agreements.
Employee relations are considered to be generally
satisfactory.
PATRONAGE REFUNDS
The By-Laws of Gold Kist provide that Gold Kist shall
operate on a cooperative basis. After the close of each
fiscal year, the net taxable margins of Gold Kist for that
year from business done with or for member patrons (patronage
margins) are computed and, after deductions for a reasonable
reserve for permanent non-allocated equity and after certain
adjustments, these margins are distributed to members as
patronage refunds on the basis of their respective patronage
(business done with or through the Association) during that
year. Upon the determination of the total patronage refund
for any fiscal year, this amount is allocated among the
several operations of Gold Kist or one or more groups of such
operations, as determined by the Board of Directors in light
of each operation's or group's contribution for the year.
Patronage refunds are distributed in the form of either
qualified or nonqualified written notices of allocation (as
defined for purposes of Subchapter T of the Internal Revenue
Code). If qualified notices are used, at least 20% of each
patronage refund is distributed in cash or by qualified check
(as defined in the Internal Revenue Code) with the remainder
distributed in patronage dividend certificates or written
notices of allocated reserves, or any combination of these
forms. A distribution to a patron made in the form of a
qualified notice must be included in his gross income, at its
stated dollar amount, for the taxable year in which he
receives the distribution. If nonqualified notices are
distributed, less than 20% of the refund can be distributed in
cash or by qualified check and the patron is not required to
include in gross income the noncash portion of the allocation.
See Notes 1(f) and 6 of Notes to Consolidated Financial
Statements.
The deduction for unallocated reserves and retention of
allocated reserves provide means whereby the current and
active members of Gold Kist may finance the Association's
continuing operations. Each fiscal year, the members are
notified by Gold Kist of the amounts, if any, by which their
equity accounts have been credited to reflect their allocated,
but undistributed, portion of the patronage refunds.
Allocated reserves may be retired and distributed to members
only at the discretion of the Board of Directors in the order
of retention by years, although the Board may authorize the
retirement of small aggregate amounts (not in excess of
$100.00) of reserves or the retirement of reserves in
individual cases without regard to how long they have been
outstanding. Allocated reserves bear no interest and are
subordinate in the event of insolvency of the Association to
outstanding patronage dividend certificates and to all
indebtedness of Gold Kist.
INCOME TAXATION
As a cooperative association entitled to the provisions of
Subchapter T of the Internal Revenue Code, Gold Kist does not
pay tax on net margins derived from member patronage
transactions which are distributed to the members by check or
in the form of qualified written notices of allocation within
8-l/2 months of the close of each fiscal year. To the extent
that Gold Kist distributes nonqualified written notices of
allocation, has income from transactions with nonmembers or
has income from non-patronage sources, it will be taxed at the
corporate rate. See Notes l (f) and 6 of Notes to
Consolidated Financial Statements.
Gold Kist has subsidiaries which are not cooperatives, and
all the income of these subsidiaries is subject to corporate
income taxes.
Item 2. Properties.
The principal facilities used in the Association's
business are described in Item 1. Business (and Properties).
Management believes that the facilities are adequate and
suitable for their respective uses and the Association's
current intended operations. The properties owned by the
Association are not subject to any material lien or
encumbrance.
Item 3. Legal Proceedings.
The Association is a party to various legal and
administrative proceedings, all of which management believes
constitute ordinary routine litigation incident to the
business conducted by the Association, or are not material in
amount.
Item 4. Submission of Matters to a Vote of Security Holders.
No matter was submitted during the fourth quarter of the
fiscal year covered by this report to a vote of security
holders.
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters.
There is no market for Gold Kist equity.
Item 6. Selected Financial Data.
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data presented below
under the captions "Consolidated Statement of Operations Data"
for each of the years in the five-year period ended June 27, 1998
and "Consolidated Balance Sheet Data" as of June 25, 1994, July
1, 1995, June 29, 1996, June 28, 1997 and June 27, 1998 are
derived from the consolidated financial statements of Gold Kist
Inc. and subsidiaries. The consolidated financial statements as
of June 28, 1997 and June 27, 1998 and for each of the years in
the three-year period ended June 27, 1998, and the report thereon
of KPMG Peat Marwick LLP, which is based partially upon the
report of other auditors, are included elsewhere herein. The
information set forth below should be read in conjunction with
Management's Discussion and Analysis of Consolidated Results of
Operations and Financial Condition and the aforementioned
consolidated financial statements, the related notes and the
audit report.
<TABLE>
<CAPTION>
For Fiscal Years Ended (000's omitted)
June 25, July 1, June 29, June 28, June 27,
Consolidated Statement of 1994 1995 1996 1997 1998
Operations Data:
<S> <C> <C> <C> <C> <C>
Net sales volume $1,183,729 1,255,087 1,420,281 1,658,191 1,651,115
Margins (loss) from continuing
operations before cumulative
effect of accounting change $ 32,725 9,875 33,706 10,870 (57,036)
Cumulative effect of change in
accounting for income taxes
(A) $ 5,339 - - - -
Margins (loss) from continuing
operations $ 38,064 9,875 33,706 10,870 (57,036)
</TABLE>
<TABLE>
<CAPTION>
As of (000's omitted)
June 25, July 1, June 29, June 28, June 27,
Consolidated Balance Sheet 1994 1995 1996 1997 1998
Data:
<S> <C> <C> <C> <C> <C>
Total assets $ 678,922 768,415 914,161 1,051,813 1,080,655
Long-term liabilities $ 144,992 176,259 224,183 301,190 376,553
Patrons' and other equity (B) $ 296,662 314,990 326,410 346,075 234,006
NOTE:
A.Effective June 27, 1993, Gold Kist adopted the provisions of Statement of
Financial Accounting Standards No. 109 (SFAS 109), _Accounting for Income Taxes_
and reported the cumulative effect of that change in the method of accounting for
income taxes in the 1994 consolidated statement of operations. SFAS 109 requires
an asset and liability approach in accounting for income taxes and, therefore,
required a change from the deferred method Gold Kist previously used. Under the
asset and liability method, deferred tax assets and liabilities are recognized for
the future tax consequences attributable to differences between the financial
statement carrying amounts of existing assets and liabilities and their respective
tax bases and operating loss and tax credit carryforwards. Deferred tax assets
and liabilities are measured using enacted tax rates expected to apply to taxable
income in the years in which those temporary differences are expected to be
recovered or settled. Under SFAS 109, the effect on deferred tax assets and
liabilities of a change in tax rates is recognized as income or expense in the
period that includes the enactment date.
B.See Note 9(a) of Notes to Consolidated Financial Statements.
</TABLE>
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CONSOLIDATED RESULTS OF OPERATIONS AND FINANCIAL CONDITION
The nature of the poultry industry in general is such that
supply and demand market forces exert a significant amount of
influence over the operations of firms engaged in these
businesses. Prices of commodities react directly to worldwide
supply and demand. Additionally, demand for poultry and costs of
other agricultural products utilized by Gold Kist are often
influenced by supplies and prices of alternative products.
As with other perishable commodity businesses, the integrated
poultry industry has demonstrated varying levels of
profitability, and to a lesser extent, losses over its thirty-six
year history. Although the industry has been profitable since
1983 with the exception of brief periods during 1992 and 1996,
net margins have varied from year to year in response to market
fundamentals. The following addresses the various factors that
have influenced poultry industry profitability during the past
five years. Increased market prices in 1994 were the result of a
general economic recovery in the United States and increased
demand for poultry products. During 1995, broiler market prices
declined due to the large supply of competing meats, such as beef
and pork, and the continuation of broiler industry expansion.
During 1996, broiler market prices increased approximately 10% as
compared to 1995 as a result of hot, dry weather conditions that
reduced meat production in the summer of 1995, as well as lower
than expected industry expansion and increased exports. Average
market prices for broilers during 1997 remained at relatively
high levels as compared to historical averages. However, during
the May-June 1997 period, market prices declined below 1996
levels as a result of the increase in industry production.
Export prices for broiler leg-quarters declined substantially in
1997 as a result of disruptions in the Russian markets. Although
market prices for broiler products strengthened in the fourth
quarter of 1998, average market prices for 1998 were
approximately 4.0% lower than in 1997. According to USDA
estimates, the supply of broilers is expected to increase at a
2.0% rate in 1998 and a 5.0% rate in 1999 as compared to the 5.3%
average annual increase between 1994 and 1997.
Generally, feed grain costs represent approximately fifty
percent of total broiler production costs. In 1994, feed
ingredient prices, primarily corn and soybean meal, increased
substantially as a result of the reduced corn harvest in 1993.
As a result of the increase in planted corn and soybean acreage
and favorable growing conditions in the summer of 1994, market
prices for feed ingredients declined in 1995. Average cash
market prices for corn and soybean meal increased 59% and 30%,
respectively, during 1996 as compared to 1995 due to the weather
reduced 1995 harvest and strong export demand. During 1997,
average cash market prices for corn declined 14% as a result of
the favorable 1996 harvest. However, soybean meal average cash
market prices increased approximately 26% for 1997 as compared to
1996 as a result of strong demand and lower carryover stocks.
Average cash market prices for corn and soybean meal declined 18%
and 20%, respectively, during 1998 as a result of the favorable
1997 harvest and reduced exports of agricultural commodities.
Historically, weather has had a significant impact on the
agricultural economy and the operating results of the
Association. Flooding in the Midwestern United States during the
summer of 1993 severely impacted the domestic grain harvest and
boosted feed ingredient prices to near record levels. In
addition, favorable spring weather conditions contributed to
increased planting activity in 1994. The weather reduced 1995
grain harvest in the Midwestern U.S. boosted farm commodity
prices. Favorable weather conditions during the summer of 1996
contributed to plentiful grain harvests in the United States.
Favorable growing conditions in the summer of 1997 contributed to
a slight increase in the 1997 grain harvest as compared to 1996.
Favorable growing conditions in the summer of 1998 are expected
to contribute to the second largest grain harvest on record in
the United States.
Poultry export sales for 1996, 1997 and 1998 were $89.3
million, $81.7 million and $61.6 million, respectively. During
1997 and 1998, export sales declined as a result of lower market
prices for poultry and the economic problems in Southeast Asia
and Russia. Export sales of poultry products will be influenced
by credit availability to foreign countries, political and
economic stability, particularly in Russia, Eastern Europe and
Mexico.
In May 1998, the Association's Board of Directors adopted a
plan to discontinue operations of the Agri-Services segment.
Accordingly, the operating results of the Agri-Services segment,
including provisions for losses during the phase out period, have
been segregated from continuing operations and reported
separately in the Statements of Operations. See Notes 1 and 10
of Notes to Consolidated Financial Statements. The Association's
continuing operations include the Association's poultry and pork
operations. The discussion and analysis of results of operations
that follows relates solely to the continuing operations of the
Association for each of the years in the three-year period ended
June 27, 1998.
Results of Operations
Fiscal 1997 Compared to Fiscal 1996
For 1997, net sales volume of $1.7 billion represented a 16.8%
increase as compared to 1996. Margins from continuing operations
were $10.9 million for 1997 as compared to $33.7 million for
1996. The decline in margins from continuing operations was
primarily the result of an increase in poultry and pork feed
ingredient costs. The increase in net sales volume for 1997 was
due to a 11.5% increase in pounds of poultry sold and a 6.0%
increase in average selling prices. The increase in poultry
products market prices was due to the reduction in the rate of
industry growth as compared to prior years. The increase in
pounds sold during 1997 reflected the Association's acquisition
of its twelfth processing facility in July 1996 and changes in
product mix.
Cost of sales for 1997 increased $288.5 million or 22.2% as
compared to 1996 as a result of the Association's poultry
expansion program and significant increases in feed ingredient
costs. The Association's feed ingredient costs for 1997
increased 28.0% as compared to the prior fiscal year. As a
result of the Association's forward purchasing and hedging
strategies, feed ingredient costs for 1996 were below market
prices for corn and soybean meal. In 1997, the Association's
feed ingredient costs reflected the increase in market prices for
corn and soybean meal. As a percentage of net sales volume, cost
of sales were 95.7% of net sales volume for 1997 as compared to
91.4% for 1996.
Distribution, administrative and general expenses for 1997
were $64.9 million, which represented a .85% decline as compared
to 1996. The decrease in 1997 was due to lower incentive
compensation costs. As a percentage of net sales volume,
distribution, administration and general expenses were 3.9% of
net sale volume for 1997 as compared to 4.6% for 1996.
The various components included in other income (deductions)
represented an income of $1.4 million for 1997 as compared to a
deduction of $354,000 for 1996. Interest income of $4.8 million
for 1997 increased $1.9 million primarily as a result of interest
income related to a favorable tax litigation decision. Interest
expense for 1997 was $10.7 million as compared to $6.5 million in
1996. The increase was due to an increase in average borrowings.
Equity in earnings of partnership represents the Association's 33
1/3% pro rata share of the Golden Peanut Company's 1997 earnings.
See Note 9(b) of Notes to Consolidated Financial Statements.
Miscellaneous, net for 1997 includes a $1.2 million loss on the
purchase of subsidiary common stock. Miscellaneous, net for 1997
includes a $992,000 loss representing the Association's equity in
the loss of a pecan processing and marketing enterprise. In
1996, the Association recognized earnings of $1.0 million related
to this investment. Net rental income of approximately $1.9
million and $1.6 million, respectively, was included in
miscellaneous, net for 1997 and 1996.
In 1997 and 1996, the Association's combined federal and state
effective income tax rates for continuing operations were (48)%
and 33%, respectively. The effective tax rate for 1997 reflects
a $5.2 million income tax benefit related to a Circuit Court of
Appeals decision in the Association's favor. See Note 6 of Notes
to Consolidated Financial Statements.
Fiscal 1998 Compared to Fiscal 1997
The Association's net sales volume was $1.7 billion for 1998
and 1997. The loss from continuing operations for 1998 was $57.0
million as compared to margins from continuing operations of
$10.9 million for 1997. The loss from continuing operations for
1998 was the result of lower market prices for poultry and live
hogs and higher feed ingredient costs. Net sales volume for 1998
reflected lower broiler market prices, which were partially
offset by a 3.0% increase in broiler pounds sold. Average
selling prices for poultry products for 1998 declined 3.0% as
compared to 1997 as a result of excess industry supply, an
increase in pork and beef supplies and instability in export
markets. Poultry sales to Russia were affected by disruptions in
the market related to tariffs and custom regulations resulting in
lower than expected net margins. Poultry sales to the Southeast
Asia markets were affected by the financial crisis in that
region. Pork net sales volume for 1998 declined 39% as compared
to 1997 due to head reduction and lower market prices for live
hogs.
Cost of sales for 1998 increased $76.3 million or 4.8% as
compared to 1997 primarily due to higher field production and
processing costs. Although corn and soybean meal cash market
prices declined significantly in 1998, the Association's feed
ingredient costs for 1998 were comparable to 1997 as a result of
the Association's forward purchasing and commodity trading
activities. Feed ingredient costs reflected losses realized on
commodities futures and options transactions of $85.2 million for
1998. As a percent of net sales volume, cost of sales was 100.7%
of net sales volume for 1998 as compared to 95.7% in 1997.
Distribution, administrative and general expenses of $66.7
million for 1998 increased 2.8% as compared to 1997. As a
percent of net sales volume, distribution, administrative and
general expenses were 4.0% of net sales volume for 1998 as
compared to 3.9% for 1997.
The components included in other income (deductions) represent
a $14.2 million deduction for 1998 as compared to income of $1.4
million for 1997. Interest income of $2.0 million for 1998
declined $2.8 million as compared to 1997. Interest income for
1997 reflected interest income related to a favorable tax
litigation decision. Interest expense for 1998 was $26.9 million
as compared to $10.7 million for 1997, which reflected the
increase in borrowings to support higher asset levels, the
acquisition of minority interest in Golden Poultry and the 1998
operating losses. Also, interest expense for 1998 reflected an
increase in borrowing costs related to the decline in the
Association's financial condition. Equity in the earnings of the
partnership represents the Association's 33 1/3% pro rata share
of the Golden Peanut Company's 1998 earnings. See Note 9(b) of
Notes to Consolidated Financial Statements. Miscellaneous, net
for 1998 includes a $192,000 loss representing the Association's
equity in the loss of a pecan processing and marketing
enterprise. The Association recorded a $992,000 loss on this
investment in 1997. Net rental income of $2.1 million and $1.9
million, respectively, was included in miscellaneous, net for
1998 and 1997. Miscellaneous, net for 1998 includes $2.0 million
of income related to a poultry grower agreement. Miscellaneous,
net for 1997 reflects a $1.2 million loss on the purchase of
subsidiary common stock.
In 1998 and 1997, the Association's combined federal and state
effective income tax rates for continuing operations were (38)%
and (48)%, respectively. The effective tax rate for 1997
reflects a $5.2 million income tax benefit resulting from a
Circuit Court of Appeals decision in the Association's favor.
See Note 6 of Notes to Consolidated Financial Statements.
Financial Condition
Liquidity and Capital Resources
The Association's liquidity is dependent upon funds from
operations and external sources of financing. The principal
sources of external short-term financing are, a secured committed
credit facility with a commercial bank and proceeds from the
continuous offering of Subordinated Certificates. At June 27,
1998, the Company had a $440 million secured committed credit
facility with eight commercial banks. The facility included a
three-year $132 million revolving credit commitment, a $132
million 364-day line of credit commitment and a $176 million
three-year term loan. As of June 27, 1998, borrowings of $21.5
million, $132.0 million and $176.0 million, respectively, were
outstanding under the revolving credit, 364-day line-of-credit
and term loan commitments.
In August 1998, the Association replaced the $440 million
facility with a $500 million credit agreement with a commercial
bank that includes a secured $125 million 364-day line of credit
commitment, a secured $125 million three-year revolving credit
facility and a $250 million three-year unsecured bridge facility.
Upon the consummation of the anticipated sale of certain assets
of the Agri-Services segment, the loan agreement provides that
proceeds be applied to the $250 million bridge loan. See Notes 1
and 10 of Notes to Consolidated Financial Statements.
Alternatively, the Association may convert the bridge facility to
a three-year term loan secured with substantially all of the
Association's assets. In 1998, the Association obtained a $50
million term loan from an agricultural credit bank and a $69.9
million rolling four-month equity swap arrangement with a
commercial bank. At June 27, 1998, the Association had unused
loan commitments of $110.5 million and additional letters of
credit from banks aggregating $12.5 million. The primary sources
of external long-term financing are proceeds from the continuous
offering of Subordinated Capital Certificates of Interest and a
revolving credit facility. See Note 4 of Notes to Consolidated
Financial Statements.
Covenants under the terms of the loan agreements with lenders
include conditions that could limit short-term and long-term
financing available from various external sources. The terms
require a ratio of current assets to current liabilities of not
less than 1.25:1 and the ratio of total funded debt to total
capitalization not to exceed 65%. At June 27, 1998, the
Association's current ratio and ratio of total funded debt to
capitalization, determined under the loan agreements, were 1.32:1
and 64%, respectively. The terms of the $500 million credit
facility requires specific quarterly fixed charge coverage ratios
during fiscal 1999 and a fixed charge ratio for fiscal 1999 of
150%. In addition, the terms place a limitation on capital
expenditures, equity distribution, cash patronage refunds and
commodity hedging contracts that include cash forward purchases,
as well as futures and options contracts. At June 27, 1998, the
Association was in compliance with the agreements. See Note 4 of
Notes to Consolidated Financial Statements.
During 1996, the uses of cash in continuing operations
included capital expenditures of $56.7 million and $28.6 million
for repayments of long-term debt, as well as increases in
operating assets. Increases in inventories reflected the impact
of higher feed ingredient prices on raw materials and live
poultry and hog inventories and the increase in poultry prices on
marketable products inventories. During 1996, net cash used in
operating and investing activities of discontinued operations
totaled $66.5 million. The funds for these activities were
provided by borrowings of $131.5 million.
In 1997, the uses of cash in the Association's continuing
operations included $67.5 million for capital expenditures, $55.7
million for long-term debt repayments and $30.0 million for
patronage refunds and other equity payments. In addition, cash
uses included the funding of increases in operating assets, such
as inventories, receivables and commodities margin deposits.
During 1997, increases in inventories and receivables primarily
reflected the expansion in poultry operations. The increase in
commodities margin deposits was the result of corn and soybean
futures contracts and the related unrealized losses associated
with these positions at June 28, 1997. See Note 1(c) of Notes to
Consolidated Financial Statements. During 1997, net cash used in
operating and investing activities of discontinued operations
totaled $26.8 million. The funds for these activities were
provided by borrowings of $182.8 million.
During 1998, the primary uses of cash in continuing operations
included $54.4 million in capital expenditures and $53.1 million
for the acquisition of the remaining 3.7 million shares of Golden
Poultry Company, Inc. common stock that the Association did not
already own. See Note 11 of Notes to Consolidated Financial
Statements. During 1998, net cash used in operating and
investing activities of discontinued operations totaled $58.8
million. The funds for these activities were provided by
borrowings of $173.0 million. Borrowings and repayments of long-
term debt during 1998 reflected the replacement of Golden Poultry
Company, Inc.'s debt subsequent to the merger and the replacement
of the Association's $250 million unsecured committed credit
facility with the $440 million secured committed credit facility.
The Association plans capital expenditures of approximately
$45 million in 1999 that primarily include expenditures for
expansion and technological advances in poultry production and
processing. In addition, planned capital expenditures include
other asset improvements and necessary replacements. Management
intends to finance planned 1999 capital expenditures and related
working capital needs with existing cash balances and net margins
adjusted for non-cash items and additional long-term borrowings,
as needed. In 1999, management expects cash expenditures to
approximate $4.0 million for equity distributions. In connection
with the sale of assets of the Agri-Services segment to Southern
States Cooperative, Incorporated and the plan to discontinue
operations of the Agri-Services segment during fiscal 1999, Gold
Kist will discontinue the sale of Subordinated Certificates. The
Association believes cash on hand and cash equivalents at June
27, 1998 and cash expected to be provided from operations, in
addition to borrowings available under existing credit
arrangements, will be sufficient to maintain cash flows adequate
for the Association's projected growth and operational objectives
during 1999 and to fund the repayment of outstanding Subordinated
Certificates as they mature. Approximately, $36.9 million of
Subordinated Certificates and accrued interest will mature during
the last three quarters of fiscal 1999.
Year 2000 Disclosure Statement
The year 2000 problem is the result of computer programs
written using two digits (rather than four) to define the
applicable year. Any of the Association's programs that have
time-sensitive software may recognize a date using _00_ as the
year 1900 rather than the year 2000, which could result in
miscalculations or system failures.
The Association has completed its identification of
information technology systems that are not year 2000 compliant
and is in the process of implementing a comprehensive initiative
to make its information technology systems (_IT_ systems) and its
non-information technology systems (_non-IT_ systems), including
embedded microprocessors in equipment, refrigeration systems,
feed mills, and environmental controls, year 2000 compliant. The
initiative covers the following three phases: (1) identification
of all IT and non-IT systems and an assessment of repair
requirements, (2) repair of the identified IT and non-IT systems,
and (3) testing of the IT and non-IT systems repaired to
determine correct manipulation of dates and date-related data.
As of July 1, 1998, the Association has completed phase (1) of
its initiative and has begun phase (2). The Association is
scheduled to complete phase (2) by the end of the second quarter
of fiscal 1999 at which time it will commence its final testing
phase. The Association expects the final testing phase to be
complete by third quarter. The Association believes that it has
allocated sufficient resources to resolve all significant year
2000 issues in the above time frame.
As part of its year 2000 initiative, the Association is also
contacting key suppliers and business partners to evaluate their
year 2000 compliance plans and state of readiness and determine
whether a year 2000 problem will impede the ability of such
suppliers and business partners to provide goods and services as
the year 2000 is approached and reached. The Association has
received responses from a majority of its key trading partners
and is currently assessing their state of compliance. As a
general matter, the Association is vulnerable to key suppliers'
inability to remedy their own year 2000 issues and there can be
no assurance that all date-handling problems in the IT systems of
those suppliers will be identified in advance of their
occurrence.
The Association estimates that its cost of repairing the IT
systems and non-IT systems will range from $500,000 to $700,000.
To date, the Association has yet to fully assess any additional
costs that may be incurred to complete the testing phase of the
year 2000 initiative and resolve any problems identified during
that phase. The Association believes such costs will not have a
material effect on liquidity or its financial condition or
results of operations.
To date, the Association has not identified any IT or non-IT
system that presents a material risk of not being year 2000 ready
or for which a suitable alternative cannot be implemented.
However, as the initiative moves into the testing phase, it is
possible that the Association may identify potential risks of
year 2000 disruption. It is also possible that such a disruption
could have a material adverse effect on the financial condition
and results of operations. In addition, if any third parties who
provide goods or services that are critical to the Association's
business activities fail to appropriately address their year 2000
issues, there could be a material adverse effect on the
Association's financial condition and results of operations.
Because the Association has not begun the testing phase of its
initiative, and, accordingly, has not fully assessed its risks
from potential year 2000 failures, the Association has not yet
fully developed year 2000 specific contingency plans. These
plans will be developed as appropriate, if the results of testing
identify a material business function that is substantially at
risk.
Important Considerations Related to Forward-Looking Statements
It should be noted that this discussion contains forward-
looking statements which are subject to substantial risks and
uncertainties. There are many factors which could cause actual
results to differ materially from those anticipated by statements
made herein. Such factors include, but are not limited to,
changes in general economic conditions, weather, the growth rate
of the market for the Company's products and services, the
availability of raw inputs, global political events, the ability
of the Association to implement changes in sales strategies and
organization on a timely basis, the affect of competitive
products and pricing, seasonal revenues, a delay in closing the
sale of assets of the Agri-Services segment, as well as a number
of other risk factors which could effect the future performance
of the Association.
Effects of Inflation
The major factor affecting the Association's net sales volume
and cost of sales is the change in commodity market prices for
broilers, hogs and feed grains. The prices of these commodities
are affected by world market conditions and are volatile in
response to supply and demand, as well as political and economic
events. The price fluctuations of these commodities do not
necessarily correlate with the general inflation rate. Inflation
has, however, affected operating costs such as labor, energy and
material costs.
Future Accounting Requirements
In June 1997, the Financial Accounting Standards Board (FASB)
issued Statement of Financial Accounting Standards (SFAS) No.
130, "Reporting Comprehensive Income," and SFAS No. 131,
"Disclosures About Segments of an Enterprise and Related
Information." These new standards become effective for fiscal
years beginning after December 15, 1997. The Association will
begin reporting comprehensive income in compliance with SFAS No.
130 beginning with the quarter ending September 26, 1998, while
reporting under SFAS No. 131 initially will be presented in the
consolidated financial statements for fiscal 1999. While the
Association is evaluating the criteria of SFAS No. 131 as they
apply to its operations, the Association does not anticipate
significant changes to its reportable segments. Both of the
statements require additional reporting and expanded disclosures,
but will have no effect on the Association's results of
operations, financial position, capital resources or liquidity.
In February 1998, the FASB issued SFAS No. 132, "Employers'
Disclosure about Pension and Other Postretirement Benefits" that
revised disclosure requirements for pension and other
postretirement benefits. It does not affect the measurement of
the expense of the Association's pension and other postretirement
benefits. The disclosure requirements of the standard will be
reflected in the Association's 1999 consolidated financial
statements.
In June 1998, the Financial Accounting Standards Board issued
Statement No. 133 "Accounting for Derivative Instruments and
Hedging Activities." The Statement requires the recognition of
all derivatives on the balance sheet at fair value. The
Company's derivatives, which include agricultural related futures
and options, are specifically designated as hedges. Changes in
the fair value of these derivatives will either be offset against
the change in fair value of the corresponding hedged assets,
liabilities, or firm commitments through earnings or reflected as
other comprehensive income until the hedged item is recognized in
earnings. The disclosure requirements of the Standard will be
reflected in the Association's 2000 consolidated financial
statements. If the Association were to adopt the new Statement
as of July 1, 1998, the effect of adoption would be immaterial to
the financial statements.
Item 7A. Quantitative And Qualitative Disclosure About Market
Risks.
Market Risk
The principal market risks affecting the Association are
exposure to changes in commodity prices and interest rates on
borrowings. Although the Company has international net sales
volume and related accounts receivable for foreign customers, it
considers the foreign currency exchange risk in such activities
to be immaterial.
Interest Rate Risk
The Association uses interest rate swaps to hedge interest
rate changes on a portion of its borrowings. At June 27, 1998,
the Association had $150 million notional value of interest rate
swaps outstanding. The swaps effectively change the average
interest rates on $150 million of long-term debt to a 5.97% fixed
rate from LIBOR. See Note 4 of Notes to Consolidated Financial
Statements. Assuming year-end fiscal 1998 variable rates and
borrowings at June 27, 1998, a one-hundred-basis-point change in
interest rates would impact the Association's net interest
expense by approximately $2.6 million, net of the effect of the
swaps.
Commodities Risk
The Association is a purchaser of certain agricultural
commodities used for the manufacture of poultry feeds. The
Association uses commodity futures and options for hedging
purposes to reduce the effect of changing commodity prices on a
portion of its commodity inventories and related purchase and
sale contracts. Feed ingredients futures contracts, primarily
corn and soybean meal, are recognized when closed and option
contracts are accounted for at market. Gains and losses on the
transactions are recorded as a component of product cost. Terms
of the Association's committed secured credit facility limit the
use of cash forward contracts and commodities futures and options
to hedge no more than thirteen weeks of the Association's soybean
meal and corn requirements. At June 27, 1998, the fair value of
the Association's outstanding commodity futures and options
positions was not material.
Item 8. Financial Statements and Supplementary Data.
INDEX
Page
GOLD KIST INC.
CONSOLIDATED FINANCIAL STATEMENTS:
Independent Auditors' Reports.......................... 21
Consolidated Balance Sheets as of June 28, 1997 and
June 27, 1998 ........................................ 23
Consolidated Statements of Operations for the years
ended June 29, 1996, June 28, 1997 and June 27, 1998 . 24
Consolidated Statements of Patrons' and Other Equity
for the years ended June 29, 1996, June 28, 1997
and June 27, 1998 .................................... 25
Consolidated Statements of Cash Flows for the years
ended June 29, 1996, June 28, 1997
and June 27, 1998 .................................... 26
Notes to Consolidated Financial Statements............. 27
FINANCIAL STATEMENT SCHEDULES
(Included in Part IV of this Report):
Valuation Reserves for the years ended June 29, 1996,
June 28, 1997 and June 27, 1998 ...................... 48
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Gold Kist Inc.:
We have audited the accompanying consolidated balance sheets
of Gold Kist Inc. and subsidiaries as of June 28, 1997 and June
27, 1998, and the related consolidated statements of operations,
patrons' and other equity, and cash flows for each of the years
in the three-year period ended June 27, 1998 as listed in the
accompanying index. In connection with our audits of the
consolidated financial statements, we also have audited the
financial statement schedule as listed in the accompanying index.
These consolidated financial statements and financial statement
schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated
financial statements and financial statement schedule based on
our audits. We did not audit the consolidated financial
statements of Golden Peanut Company and Subsidiaries, a
partnership investment accounted for using the equity method of
accounting, as described in Note 9(b) to the consolidated
financial statements. The consolidated financial statements of
Golden Peanut Company and Subsidiaries were audited by other
auditors whose report has been furnished to us, and our opinion,
insofar as it relates to the amounts included for Golden Peanut
Company and Subsidiaries, is based solely on the report of the
other auditors.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits and the report of the other auditors provide a
reasonable basis for our opinion.
In our opinion, based on our audits and the report of the
other auditors, the consolidated financial statements referred to
above present fairly, in all material respects, the financial
position of Gold Kist Inc. and subsidiaries as of June 28, 1997
and June 27, 1998, and the results of their operations and their
cash flows for each of the years in the three-year period ended
June 27, 1998, in conformity with generally accepted accounting
principles. Also in our opinion, the related financial statement
schedule, when considered in relation to the basic consolidated
financial statements taken as a whole, presents fairly, in all
material respects, the information set forth therein.
KPMG Peat Marwick LLP
Atlanta, Georgia
September 10, 1998
REPORT OF INDEPENDENT AUDITORS
Partnership Committee
Golden Peanut Company
We have audited the consolidated balance sheets of Golden
Peanut Company and Subsidiaries (the "Partnership") as of June
30, 1997 and 1998, and the related consolidated statements of
operations, partners' equity, and cash flows for each of the
three years in the period ended June 30, 1998 (not presented
separately herein). These financial statements are the
responsibility of the Partnership's management. Our
responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the consolidated
financial position of Golden Peanut Company and Subsidiaries at
June 30, 1997 and 1998, and the consolidated results of their
operations and their cash flows for each of the three years in
the period ended June 30, 1998, in conformity with generally
accepted accounting principles.
Ernst & Young LLP
Atlanta, Georgia
August 28, 1998
<TABLE>
GOLD KIST INC.
CONSOLIDATED BALANCE SHEETS
(Amounts in Thousands)
<CAPTION>
June 28, 1997 June 27, 1998
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents.............. $ 17,921 11,789
Receivables, principally trade, less
allowance for doubtful accounts of
$1,426 in 1997 and $3,113 in 1998 .... 101,419 107,957
Inventories (note 2)................... 179,489 174,204
Commodities margin deposits............ 53,348 -
Deferred income taxes (note 6)......... 13,541 45,431
Other current assets................... 7,862 32,673
Net assets of discontinued operations
(note 10) ............................ 261,445 247,621
Total current assets ................. 635,025 619,675
Investments (note 9).................... 132,373 125,623
Property, plant and equipment, net
(note 3) ............................. 239,242 255,791
Other assets............................ 45,173 79,566
$1,051,813 1,080,655
LIABILITIES AND EQUITY
Current liabilities:
Notes payable and current maturities of
long-term debt (note 4):
Short-term borrowings ................ $ 178,900 201,939
Subordinated loan certificates ....... 36,466 35,005
Current maturities of long-term debt . 14,956 93,248
230,322 330,192
Accounts payable....................... 92,635 85,188
Accrued compensation and related
expenses ............................. 28,545 32,466
Interest left on deposit (note 4)...... 11,396 11,451
Other current liabilities.............. 13,192 10,799
Total current liabilities ............ 376,090 470,096
Long-term debt, excluding current
maturities (note 4).................... 247,176 320,600
Accrued postretirement benefit costs
(note 7(b))............................ 43,683 48,678
Other liabilities....................... 10,331 7,275
Total liabilities .................... 677,280 846,649
Minority interest (note 11)............. 28,458 -
Patrons' and other equity (note 5):
Common stock, $1.00 par value -
Authorized 500 shares; issued and
outstanding 32 in 1997 and 33 in 1998 32 33
Patronage reserves..................... 203,988 198,517
Unrealized gain on marketable equity
security (note 9(a)) ................. 32,749 27,099
Retained earnings...................... 109,306 8,357
Total patrons' and other equity ...... 346,075 234,006
Commitments and contingent liabilities
(notes 4, 7, 8 and 9(b))
$1,051,813 1,080,655
See accompanying notes to consolidated financial statements.
</TABLE>
<TABLE>
GOLD KIST INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts in Thousands)
<CAPTION>
Years Ended
June 29, 1996 June 28, 1997 June 27, 1998
<S> <C> <C> <C>
Net sales volume..................... $1,420,281 1,658,191 1,651,115
Cost of sales........................ 1,297,602 1,586,110 1,662,376
Gross margins (loss) .............. 122,679 72,081 (11,261)
Distribution, administrative and
general expenses ................... 65,440 64,885 66,695
Net operating margins (loss) ..... 57,239 7,196 (77,956)
Other income (deductions):
Interest income ................... 2,930 4,804 1,955
Interest expense .................. (6,477) (10,666) (26,910)
Equity in earnings (loss) of
partnership (note 9(b)) ........ (1,181) 5,807 4,369
Miscellaneous, net (note 9(a)) .... 4,374 1,464 6,383
Total other income
(deductions) ................. (354) 1,409 (14,203)
Margins (loss) from continuing
operations before income taxes
and minority interest .......... 56,885 8,605 (92,159)
Income tax expense (benefit)-(note 6) 18,848 (4,108) (35,123)
Margins (loss) from continuing
operations before minority
interest ....................... 38,037 12,713 (57,036)
Minority interest.................... (4,331) (1,843) -
Margins (loss) from continuing
operations ..................... 33,706 10,870 (57,036)
Discontinued operations (notes 6 and 10):
Margins (loss) from operations of
discontinued ....Agri-Services
segment (less applicable income
taxes of $1.9 million for 1996,
$.7 million for 1997 and $(8.6)
million for 1998) .............. 3,326 1,020 (15,130)
Loss on disposal of Agri-Services
segment including provision
of $20.4 million for operating
losses during phase out period
(less applicable income taxes of
$(16.5) million). .............. - - (30,622)
Net margins (loss) ................ $ 37,032 11,890 (102,788)
See accompanying notes to consolidated financial statements.
</TABLE>
<TABLE>
GOLD KIST INC.
CONSOLIDATED STATEMENTS OF PATRONS' AND OTHER EQUITY
For the Years Ended June 29, 1996, June 28, 1997 and June 27, 1998
(Amounts in Thousands)
<CAPTION>
Unrealized
gain (loss) on
marketable
Common Patronage equity Retained
Total stock reserves security earnings
<S> <C> <C> <C> <C> <C>
July 1, 1995 $ 314,990 62 216,854 18,531 79,543
Net margins for 1996 37,032 - 21,700 - 15,332
Nonqualified patronage
refund ............ ........
and other equity payable
in cash ........... ........ (24,212) - (24,212) - -
Redemptions and other
changes ........... ........ (3,847) (26) (5,202) - 1,381
Change in value of
marketable .equity
security, net of tax
(note 9(a)) ....... ........ 2,447 - - 2,447 -
June 29, 1996......... ........ 326,410 36 209,140 20,978 96,256
Net margins for 1997 11,890 - - - 11,890
Redemptions and other
changes ........... ........ (3,996) (4) (5,152) - 1,160
Change in value of
marketable .equity
security, net of tax
(note 9(a)) ....... ........ 11,771 - - 11,771 -
June 28, 1997......... ........ 346,075 32 203,988 32,749 109,306
Net loss for 1998 .. ........ (102,788) - - - (102,788)
Redemptions and other
changes ........... ........ (3,631) 1 (5,471) - 1,839
Change in value of
marketable equity security,
net of tax (note 9(a)) (5,650) - - (5,650) -
June 27, 1998......... ........$ 234,006 33 198,517 27,099 8,357
See accompanying notes to consolidated financial statements.
</TABLE>
<TABLE>
GOLD KIST INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in Thousands)
<CAPTION>
Years Ended
June 29, 1996 June 28, 1997 June 27, 1998
<S> <C> <C> <C>
Cash flows from operating activities:
Margins (loss) from continuing
operations....................... $ 33,706 10,870 (57,036)
Non-cash items included in margins
(loss) from continuing operations:
Depreciation and amortization.... 33,719 32,801 37,547
Equity in (earnings) loss of
partnership.................... 1,181 (5,807) (4,369)
Deferred income tax benefit...... (2,095) (1,718) (14,486)
Other............................ 3,697 2,265 8,549
Changes in operating assets and
liabilities:......................
Receivables...................... (8,387) (5,278) (8,225)
Inventories...................... (32,985) (6,853) 5,285
Commodities margin deposits...... (18,590) (31,951) 53,348
Other current assets............. 585 (10,619) (24,809)
Accounts payable and accrued
expenses....................... 16,540 11,513 (5,919)
Interest left on deposit......... 1,626 (723) 56
Net cash provided by (used in)
operating activities of
continuing operations............. 28,997 (5,500) (10,059)
Net cash used in operating
activities of discontinued
operations........................ (49,013) (17,400) (52,400)
Net cash used in operating activities (20,016) (22,900) (62,459)
Cash flows from investing activities:
Acquisitions of property, plant and
equipment....................... (56,727) (67,547) (54,360)
Acquisition of subsidiary minority
interest (note 11).............. - - (53,104)
Other............................. 8,302 (405) 513
Net cash used in investing
activities of continuing
operations........................ (48,425) (67,952) (106,951)
Net cash used in investing
activities of discontinued
operations - acquisitions of
property, plant and equipment..... (17,535) (9,375) (6,385)
Net cash used in investing activities (65,960) (77,327) (113,336)
Cash flows from financing activities:
Short-term borrowings, net........ 45,211 71,992 21,578
Proceeds from long-term debt...... 86,296 110,846 272,116
Principal payments of long-term
debt............................. (28,557) (55,656) (120,400)
Patronage refunds and other equity
paid in cash..................... (13,009) (29,596) (3,631)
Net cash provided by financing
activities........................ 89,941 97,586 169,663
Net change in cash and cash
equivalents....................... 3,965 (2,641) (6,132)
Cash and cash equivalents at
beginning of year................. 16,597 20,562 17,921
Cash and cash equivalents at end of
year.............................. $ 20,562 17,921 11,789
Supplemental disclosure of cash
flow data:
Cash paid during the years for:
Interest (net of amounts
capitalized)................... $ 18,327 25,761 45,577
Income taxes..................... $ 20,676 11,173 -
See accompanying notes to consolidated financial statements.
</TABLE>
GOLD KIST INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 29, 1996, June 28, 1997 and June 27, 1998
(Dollar Amounts in Thousands)
(1) Summary of Significant Accounting Policies
Gold Kist Inc. is an agricultural membership cooperative
association, headquartered in Atlanta, Georgia. Gold Kist Inc.
has approximately 31,000 farmer members and other cooperative
associations located principally in the southeastern United
States. Gold Kist Inc. operates fully integrated broiler
production, processing and marketing operations, as well as pork
production facilities. These operations provide marketing and
purchasing services to approximately 2,400 breeder, broiler and
pork producers.
Gold Kist Inc. and Southern States Cooperative, Incorporated
("Southern States") have entered into an Asset Purchase Agreement
(the "Agreement"), dated as of July 23, 1998, pursuant to which
Gold Kist Inc. has agreed to sell and assign, and Southern States
has agreed to purchase and assume, the assets and certain of the
liabilities of Gold Kist Inc.'s agricultural inputs business.
The affected assets include substantially all of the assets of
the Agri-Services segment, as well as certain crop notes
receivable of AgraTrade Financing, Inc., a wholly-owned finance
subsidiary (see note 10).
The accounting and reporting policies of Gold Kist Inc. and
subsidiaries conform to generally accepted accounting principles
and to general practices among agricultural cooperatives. The
following is a summary of the significant accounting policies.
(a) Basis of Presentation
The accompanying consolidated financial statements
include the accounts of Gold Kist Inc. and its wholly and
majority owned subsidiaries (collectively "Gold Kist" or
"Company"). All significant intercompany balances and
transactions have been eliminated in consolidation.
(b) Cash and Cash Equivalents
Gold Kist's policy is to invest cash in excess of
operating requirements in highly liquid interest bearing
debt instruments, which include commercial paper and
reverse repurchase agreements. These investments are
stated at cost which approximates market. For purposes of
the consolidated statements of cash flows, Gold Kist
considers all highly liquid debt instruments purchased with
original maturities of three months or less to be cash
equivalents.
(c) Inventories
Live poultry and hogs consist of broilers, breeding stock
and market hogs. The broilers and market hogs are stated
at the lower of average cost or market. The breeding stock
is stated at average cost, less accumulated amortization.
Raw materials and supplies consist of feed ingredients,
hatching eggs, packaging materials and operating supplies.
These inventories are stated, generally, on the basis of
the lower of cost (first-in, first-out or average) or
market. Gold Kist engages in commodity futures and options
transactions to manage the risk of adverse price
fluctuations with regard to its feed ingredient purchases.
Futures contracts are recognized when closed and option
contracts are accounted for at market. Gains or losses on
futures and options transactions are included as a part of
product cost.
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
At June 28, 1997, Gold Kist had unrealized commodity
futures losses of $36.8 million related to its hedging of a
portion of its 1998 poultry feed ingredients requirements.
These futures positions were closed in July 1997 resulting
in realized losses of approximately $48.6 million which are
reflected in the 1998 consolidated financial statements as
an adjustment to product cost. At June 27, 1998, there
were no significant unrealized commodity futures positions.
Marketable products consist primarily of dressed and
further processed poultry. These inventories are stated,
principally, on the basis of selling prices, less estimated
brokerage, freight and certain other selling costs where
applicable (estimated net realizable value).
(d) Property, Plant and Equipment
Property, plant and equipment is recorded at cost.
Depreciation of plant and equipment is calculated by the
straight-line method over the estimated useful lives of the
respective assets.
(e) Investments
Investments in other cooperatives are recorded at cost
and include the amount of patronage refund certificates and
patrons' equities allocated, less distributions received.
These investments are not readily marketable and quoted
market prices are not available. Accordingly, it is not
practical to determine these investments' fair value. The
equity method of accounting is used for investments in
other companies in which Gold Kist's voting interest is 20
to 50 percent. Investments in less than 20 percent owned
companies which are not readily marketable are stated at
cost.
Gold Kist applies the provisions of Statement of
Financial Accounting Standards No. 115 (SFAS 115),
"Accounting for Certain Investments in Debt and Equity
Securities." Pursuant to the provisions of SFAS 115, the
Association has classified its marketable equity security
and collateralized loans as "available-for-sale."
"Available-for-sale" securities are those the Company
intends to hold for a period of time and are not acquired
with the intent of selling them in the near term.
Unrealized gains and losses on "available-for-sale"
securities are included as a separate component of patrons'
and other equity in the accompanying financial statements,
net of deferred income taxes. Management believes the
carrying value of the collateralized loans approximate
market value and, accordingly, no adjustment has been
recognized in the accompanying financial statements.
Gold Kist's investment in the Golden Peanut Company
partnership is accounted for using the equity method (see
note 9(b)). Other investments accounted for under the
equity method are not significant.
(f) Income Taxes
Gold Kist operates as an agricultural cooperative not
exempt from Federal income taxes. Aggregate margins not
refunded in cash to members or allocated in the form of
qualified written notices are subject to income taxes.
The bylaws of Gold Kist provide for the issuance of
either qualified or nonqualified patronage refunds (as
defined for purposes of Subchapter T of the Internal
Revenue Code). Gold Kist utilized nonqualified patronage
refunds in 1996 which are deductible for income tax
purposes only to the extent paid or redeemed in cash.
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
Income taxes are accounted for under the asset and
liability method. Deferred tax assets and liabilities are
recognized for the future tax consequences attributable to
differences between the financial statement carrying
amounts of existing assets and liabilities and their
respective tax bases and operating loss and tax credit
carryforwards. Deferred tax assets and liabilities are
measured using enacted tax rates expected to apply to
taxable income in the years in which those temporary
differences are expected to be recovered or settled. The
effect on deferred tax assets and liabilities of a change
in tax rates is recognized as income or expense in the
period that includes the enactment date.
(g) Fair Value of Financial Instruments
Gold Kist's financial instruments include cash and cash
equivalents, commodities margin deposits, accounts
receivables and payables and accrued expenses, interest
left on deposit, notes receivable and debt. Because of the
short maturity of cash equivalents, notes and accounts
receivable and payables and accrued expenses, interest left
on deposit, certain short-term debt which matures in less
than one year, long-term debt with variable interest rates
and interest rate swap agreements, the carrying value
approximates fair value. All financial instruments are
considered to have an estimated fair value which
approximates carrying value at June 28, 1997 and June 27,
1998 unless otherwise specified (see notes 1(e) and 4).
(h) Impairment of Long-Lived Assets and Long-Lived Assets to
Be Disposed Of
Gold Kist adopted the provisions of SFAS No. 121,
_Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to Be Disposed Of_ (SFAS 121), on June
30, 1996. SFAS 121 requires that long-lived assets and
certain identifiable intangibles be reviewed for impairment
whenever events or changes in circumstances indicate that
the carrying amount of an asset may not be recoverable.
Recoverability of assets to be held and used is measured by
a comparison of the carrying amount of an asset to future
net cash flows expected to be generated by the asset. If
such assets are considered to be impaired, the impairment
to be recognized is measured by the amount by which the
carrying amount of the assets exceed the fair value of the
assets. Assets to be disposed of are reported at the lower
of the carrying amount or fair value less costs to sell.
Adoption of SFAS 121 did not have a material impact on Gold
Kist's financial position, results of operations or
liquidity.
(i) Fiscal Year
Gold Kist employs a 52/53 week fiscal year. The
consolidated financial statements for 1996, 1997 and 1998
reflect 52 weeks. Fiscal 1999 will be a 52 week year.
(j) Use of Estimates
Management of Gold Kist has made a number of estimates
and assumptions relating to the reporting of assets and
liabilities and the disclosure of contingent assets and
liabilities to prepare these financial statements in
conformity with generally accepted accounting principles.
Actual results could differ from these estimates.
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
(2) Inventories
Inventories are summarized as follows:
<TABLE>
<CAPTION>
1997 1998
<S> <C> <C>
Live poultry and hogs...... $101,062 94,005
Marketable products........ 36,331 45,081
Raw materials and supplies. 42,096 35,118
$179,489 174,204
</TABLE>
(3) Property, Plant and Equipment
Property, plant and equipment is summarized as follows:
<TABLE>
<CAPTION>
1997 1998
<S> <C> <C>
Land and land improvements.$ 28,233 33,412
Buildings.................. 168,863 182,735
Machinery and equipment.... 328,432 369,441
Construction in progress... 28,134 8,569
553,662 594,157
Less accumulated
depreciation............ 314,420 338,366
$239,242 255,791
</TABLE>
(4) Notes Payable and Long-Term Debt
Short-term borrowings at June 27, 1998 include $69.9 million
under a rolling four-month secured agreement with a commercial
bank entered into in April 1998. The commercial bank holds
marketable equity securities owned by Gold Kist as collateral
(see note 9(a)). The Company is required to maintain funds with
the bank to account for volatility in the market price of the
securities held as collateral. Interest on the borrowings are at
one-month LIBOR plus .75% per annum. The Company earns interest
on the collateral funds at rates that approximate the federal
funds rate.
In February 1997, an insurance company purchased $30 million
of 7.6% Series A Senior Notes and $25 million of 7.94% Series B
Senior Notes. As a result of changes in the Company's financial
structure, the interest rates on the senior promissory notes, as
well as the previously issued $20.0 million 9.35% interest note,
will be adjusted quarterly in accordance with the Company's
overall financial condition. Effective August 1, 1998, interest
rates on the 9.35% interest notes, the 7.6% Series A Senior Notes
and the 7.94% Series B Senior Notes will be 11.1%, 9.35% and
9.69%, respectively.
At June 27, 1998, the Company had a $440 million secured
committed credit facility with eight commercial banks. The
facility included a three-year $132 million revolving credit
commitment, a $132 million 364-day line of credit commitment and
a $176 million three-year term loan. As of June 27, 1998,
borrowings of $21.5 million, $132.0 million and $176.0 million,
respectively, were outstanding under the revolving credit, 364-
day line-of-credit and term loan commitments.
In August 1998, the Company refinanced its $440 million
secured committed credit facility with a $500 million credit
agreement with a commercial bank. The new credit facility
includes a secured $125 million 364-day line of credit
commitment, a secured $125 million three-year revolving credit
facility and a $250 million three-year unsecured bridge facility.
The 364-day line of credit and three-year revolving credit
facility are secured by all inventory and receivables of the
Company. Upon the consummation of the Agreement with Southern
States, the loan provisions require that proceeds be applied
to the $250 million bridge facility (see note 1).
Alternatively, the
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
Company may convert the bridge facility to a three-year term loan
secured with substantially all of the Company's assets. The
credit agreement contains provisions that require accelerated
payments in accordance with certain terms and conditions,
including the sale of facilities and excess cash flow as defined.
The 364-day line of credit provides short-term financing that
will expire in August 3, 1999 and may be extended with the
consent of the bank. The 364-day line of credit is subject to a
.30% per annum facility fee. The three-year revolving credit
agreement expires on August 3, 2001, but may be extended for a
one-year period with the consent of the bank. The revolving
credit facility fee will be computed quarterly based on the
Association's ratio of funded debt to total capital and will not
exceed .35% per annum. The term loan commitment matures on August
3, 2001. Borrowings under the $500 million facility will bear
variable interest rates below prime.
Subordinated loan certificates of $36.5 million at June 28,
1997 bore interest at rates of 5.75% to 6.4% with terms of one
year and were unsecured. At June 27, 1998, subordinated loan
certificates outstanding were $35.0 million bearing interest at
rates of 6.3% and 6.4%.
Interest left on deposit represents amounts of interest
payable, which at the option of the holders of various classes of
certificates, is left on deposit with Gold Kist. Additional
interest on these amounts accrues at the same rates as the
related certificates.
Long-term debt is summarized as follows:
<TABLE>
<CAPTION>
1997 1998
<S> <C> <C>
Senior notes payable:
9.90% interest notes, due in semi-annual installments
of $1,539 with interest payable semiannually ..............$ 6,152 3,077
9.35% interest note, due in a single installment in
June 2001 with interest payable quarterly ................. 20,000 20,000
7.60% series A senior notes, due in annual installments
of $2,727 beginning in February 2002 with interest
payable quarterly ......................................... 30,000 30,000
7.94% series B senior notes, due in annual installments
of $2,272 beginning in May 2002 with interest payable
quarterly ................................................. 25,000 25,000
Other long term debt:
Subordinated capital certificates of interest with
fixed maturities ranging from two to fifteen years,
unsecured (weighted average interest rate of 7.7%
at June 28, 1997 and 7.6% at June 27, 1998) ............... 63,714 73,407
Term loan agreement with commercial banks (interest
rate of 8.2% at June 27, 1998) ............................ - 176,000
Term loan agreement with agricultural credit bank,
due in semi-annual installments of $1,785 beginning
in June 1999 with interest payable quarterly (weighted
average interest rate of 8.7% at June 27, 1998) ........... - 50,000
Revolving credit agreements with commercial banks
(weighted average rate of 6.0% at June 28, 1997 and
8.1% at June 27, 1998) .................................... 101,350 21,500
Tax exempt industrial revenue bonds with varying interest
rates, due in quarterly and annual installments
through 2016, secured by property, plant and equipment .... 11,350 10,900
Pro rata share of mortgage loan, at 8.47% interest, due
in monthly installments to June 30, 2004, secured by a
building ................................................. 2,100 1,873
Other....................................................... 2,466 2,091
262,132 413,848
Less current maturities ...................................... 14,956 93,248
$247,176 320,600
</TABLE>
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
Based upon discounted cash flows of future payments, assuming
interest rates available to Gold Kist for issuance of debt with
similar terms and remaining maturities, the estimated fair value
of the senior notes payable at June 28, 1997 was approximately
$83.1 million.
In June 1997, Gold Kist entered into two notional amount
$25 million interest rate swap agreements with a commercial
bank. Under a five-year interest rate swap, the Company pays
interest at a fixed rate of 6.48% and receives interest at the
three-month London Interbank Offered Rate (LIBOR). Under the
ten year interest rate swap, the Company paid interest at the
three-month LIBOR and received interest at a fixed rate of
7.44%. In June 1998, the commercial bank exercised its option
to terminate the ten-year interest rate swap. In September
1997, Gold Kist entered into a notional amount five-year $25
million interest rate swap agreement with a commercial bank.
Under the agreement, the Company pays interest at a fixed rate
of 5.90% and receives interest at the three-month LIBOR. In
September 1999, the commercial bank has an option to convert the
fixed rate payment to LIBOR less .23%. In October 1997, Gold
Kist entered into three notional amount five-year $25 million
interest rate swap agreements with two commercial banks. Under
the agreements, the Company pays interest at a weighted average
fixed rate of 5.98% and receives interest at the three-month
LIBOR. In October 2000, one of the commercial banks has the
option to cancel two of the $25 million interest rate swap
agreements. In January 1998, the Company entered into a five-
year $25 million interest rate swap agreement with a commercial
bank. Under the agreement, the Company pays interest at a
fixed rate of 5.51% and receives interest at the three-month
LIBOR. In January 2001, the bank has an option to convert the
fixed rate payment to LIBOR less .10%.
The terms of debt agreements specify minimum working capital,
consolidated tangible net worth, current ratio and fixed charge
coverage ratio requirements, as well as a limitation on the
funded debt to total capital ratio. The debt agreements place a
limitation on capital expenditures, equity distributions, cash
patronage refunds, commodity hedging contracts and additional
loans, advances or investments.
Annual required principal repayments on long-term debt for
the five years subsequent to June 27, 1998 are as follows:
<TABLE>
<S> <C>
Year:
1999 ........................................ $ 93,248
2000 ........................................ 27,230
2001 ........................................ 123,389
2002 ........................................ 43,554
2003 ........................................ 16,913
(5) Patrons' and Other Equity
Gold Kist's Articles of Incorporation provide for a class of
common stock and a class of preferred stock pursuant to the
provisions of the Georgia Cooperative Marketing Act. Each member
is allocated one share of common stock, $1.00 par value. The
common shares are not marketable or transferable and no dividends
will be declared on these common shares. No issuance of
preferred stock has been authorized by Gold Kist.
Patronage reserves represent allocated undistributed member
margins less taxes paid on nonqualified equity. Patronage
reserves do not bear interest and are subordinated to all
certificates outstanding and indebtedness of Gold Kist.
Patronage reserves may be revolved and paid at the discretion of
the Board of Directors.
Retained earnings include the cumulative net margins (losses)
resulting from nonmember and nonpatronage transactions, including
noncooperative subsidiaries. Retained earnings at June 27, 1998
reflected the net loss for 1998. Also included are amounts
related to the early redemption of notified equity, representing
the difference between the face value and the redemption amounts.
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
(6) Income Taxes
Total income tax expense (benefit) was allocated as follows:
</TABLE>
<TABLE>
<CAPTION>
1996 1997 1998
<S> <C>> <C> <C>
Margins (loss) from continuing operations ....... $18,848 (4,108) (35,123)
Discontinued operations ......................... 1,909 662 (8,571)
Loss on disposal of Agri-Services segment,
including operating losses during phase out
period......................................... - - (16,489)
Patrons' and other equity - unrealized gain on
marketable equity security..................... 1,530 4,518 (3,043)
$22,287 1,072 (63,226)
</TABLE>
The provisions for income tax expense (benefit), principally
Federal, related to margins (loss) from continuing operations
consist of the following:
1996 1997 1998
Current expense (benefit) ............. $20,943 (2,391) (20,637)
Deferred benefit ...................... (2,095) (1,717) (14,486)
$ 18,848 (4,108) (35,123)
Gold Kist's combined federal and state effective tax rate
from operations for 1996, 1997 and 1998 was 33%, (48)% and (38)%,
respectively. A reconciliation of income tax expense (benefit)
from continuing operations computed by applying the Federal
corporate income tax rate of 35% in 1996, 1997 and 1998 to
margins from continuing before income taxes and minority interest
for the applicable year follows:
<TABLE>
<CAPTION>
1996 1997 1998
<S> <C> <C> <C>
Computed expected income tax expense (benefit) . $19,910 3,012 (32,256)
Increase (decrease) in income tax expense
resulting from:
Income tax litigation......................... - (5,207) -
Cash portion of nonqualified patronage refund. (986) - -
Effect of state income taxes, net of Federal
benefit ..................................... 970 (531) (2,199)
Nonqualified equity redemptions............... (886) (831) (1,203)
Target jobs credits........................... (11) (344) (80)
Other, net.................................... (149) (207) 615
$18,848 (4,108) (35,123)
</TABLE>
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and deferred tax liabilities at June 28,
1997 and June 27, 1998 are as follows:
<TABLE>
<CAPTION>
1997 1998
<S> <C> <C>
Deferred tax assets:
Postretirement benefits.................... $ 16,920 18,826
Insurance accruals......................... 7,487 7,440
Federal net operating loss carryforward.... - 12,286
Bad debt reserves.......................... 895 1,531
State tax operating loss carryforwards..... 1,850 3,950
Other...................................... 1,164 2,100
Discontinued operations.................... 2,547 21,188
Total gross deferred tax assets .......... 30,863 67,321
Less valuation allowance................... (1,078) (1,136)
Total net deferred tax assets ............ 29,785 66,185
Deferred tax liabilities:
Unrealized gain on marketable equity security (17,634) 14,592)
Accelerated depreciation................... 350 (2,831)
Deferred compensation...................... (3,604) (3,622)
Total deferred tax liabilities ........... (20,888) (21,045)
Net deferred tax assets .................. $ 8,897 45,140
</TABLE>
The net change in the total valuation allowance for the years
ended 1996, 1997 and 1998 was a decrease of $578, $328 and an
increase of $58, respectively. The Association's management
believes the existing net deductible temporary differences
comprising the total net deferred tax assets will reverse during
periods in which the Association generates net taxable income.
At June 27, 1998, Gold Kist has net operating loss
carryforwards for federal income tax purposes of $34.9 million,
which are available to offset future federal taxable income
through 2013.
(7) Employee Benefits
(a) .Pension Plans
Gold Kist has noncontributory defined benefit pension
plans covering substantially all of its employees and
directors and an affiliate's employees (participants). The
plan covering the salaried participants provides pension
benefits that are based on the employees' compensation
during the years before retirement or other termination of
employment. The plan covering the hourly participants
provides pension benefits that are based on years of
service. Gold Kist's funding policy is to contribute
within the guidelines prescribed by Federal regulations.
Plan assets consist principally of corporate equities and
bonds, and United States Government and Agency obligations.
Net periodic pension expense for 1996, 1997 and 1998
included the following components:
<TABLE>
<CAPTION>
1996 1997 1998
<S> <C> <C> <C>
Service cost - benefits earned during the year $ 4,092 4,226 4,484
Interest cost on projected benefit obligations 7,426 8,006 8,677
Actual return on plan assets ...... (27,724) (19,118) (47,530)
Net amortization and deferral ..... 16,799 7,127 34,564
Net periodic pension expense .... $ 593 241 195
</TABLE>
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
The following table sets forth the plans' funded status,
amounts recognized in the consolidated balance sheets at
June 28, 1997 and June 27, 1998 and economic assumptions:
<TABLE>
<CAPTION>
1997 1998
<S> <C> <C>
Actuarial present value of benefit obligations:
Vested participants.................. $ 90,256 108,620
Nonvested............................ 7,410 10,822
Total accumulated benefit
obligations .................... 97,666 119,442
Projected benefit obligations for
services rendered to date............ $116,670 140,983
Plan assets for benefits:
Plan assets at fair value............ $156,673 198,521
Prepaid pension cost included in
other assets in consolidated balance
sheets ............................ (19,721) (22,740)
Net plan assets ................... $136,952 175,781
Plan assets in excess of projected
benefit obligations................... $ 20,282 34,798
Consisting of:
Unrecognized net asset existing at the
date of adoption $ 7,116 5,970
Unrecognized net gain/(loss) from past
experience different ....from that
assumed and effects of changes in
assumptions....................... 18,889 34,743
Prior service cost not yet recognized
in net periodic pension cost...... (5,723) (5,915)
$ 20,282 34,798
Actuarial assumptions:
Weighted-average discount rate....... 8.25% 7.25%
Weighted-average expected long-term
rate of return on
plan assets......................... 9.50% 9.50%
Weighted-average rate of compensation
increase.......................... 5.50% 5.50%
</TABLE>
The unrecognized net asset existing at the date of
adoption of Statement of Financial Accounting Standards No.
87 is being amortized over the remaining service lives of
the participants.
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
(b) Other Postretirement Benefits
Gold Kist provides health care and death benefits to
substantially all retired employees, covered dependents and
their beneficiaries. Generally, employees who have
attained age 55 and who have 10 years of service are
eligible for these benefits. In addition, employees with
less than 10 years of service who retired before July 1,
1992 are eligible for these benefits. The health care and
death benefit plans are contributory and coverages increase
with increased years of service.
Postretirement health and death benefit expense for 1996,
1997 and 1998 included the following components:
<TABLE>
<CAPTION>
1996 1997 1998
<S> ............................. <C> <C> <C>
Service cost - benefits earned
during the year................. $2,029 2,452 2,917
Interest cost ..................... 2,998 3,508 4,290
Net amortization and deferral ..... 80 80 155
Net postretirement health and
death benefit expense........... $5,107 6,040 7,362
</TABLE>
Gold Kist's postretirement benefit plans are not funded.
The status of the plans at June 28, 1997 and June 27, 1998
was as follows:
<TABLE>
<CAPTION>
1997 1998
<S> <C> <C>
Actuarial present value of
accumulated postretirement
benefit obligation:
Retirees.............................. $21,130 22,799
Fully eligible active plan
participants....................... 11,786 12,974
Other active plan participants........ 20,245 23,839
53,161 59,612
Unrecognized net loss from experience
differences........................ (7,332) (8,677)
$45,829 50,935
</TABLE>
The health care cost trend rate used to determine the
accumulated postretirement benefit obligation at June 28,
1997 was 7%, declining ratably to 5% by the year 2001 and
remaining at that level thereafter. The health care cost
trend rate used to determine the accumulated postretirement
benefit obligation at June 27, 1998 was 6%, declining
ratably to 5% by the year 2001 and remaining at that level
thereafter. The discount rate used to determine the
accumulated postretirement benefit obligation was 8.25% at
June 28, 1997 and 7.25% at June 27, 1998, respectively. A
1% increase in the health care cost trend rate for each
year would increase the accumulated postretirement benefit
obligation for health care benefits at June 27, 1998 by
approximately 13% and net postretirement health care cost
by 13%.
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
(8) Contingent Liabilities and Commitments
Gold Kist is a party to various legal and administrative
proceedings, all of which management believes constitute ordinary
routine litigation incident to the business conducted by Gold
Kist, or are not material in amount.
Gold Kist received proceeds of $20.0 million, $5.0 million,
$4.9 million and $10.2 million during 1993, 1994, 1995 and 1996,
respectively, for collateralized loans sold with recourse to an
insurance company, of which $11.7 million was outstanding at June
27, 1998. No gain or loss was recognized on the sale of these
loans. A $176 thousand allowance has been recognized in the
accompanying consolidated financial statements for potential
losses that may occur. As of June 27, 1998, there have been no
credit losses related to the loans guaranteed under this
agreement.
Gold Kist is a guarantor of amounts outstanding under a $65.0
million secured loan agreement between a commercial bank and
Young Pecan Company, a pecan processing and marketing partnership
in which Gold Kist holds a 25% equity interest and 35% earnings
(loss) allocation. At June 27, 1998, the amounts outstanding
under this facility were $64.8 million.
(9) Investments
(a) Marketable Equity Security
At June 27, 1998, the Association's marketable equity
securities were carried at their fair value of $62.4
million, which represents a gross unrealized gain of $41.7
million. The 1998 gross unrealized gain, net of deferred
taxes of $14.6 million, has been reflected as a separate
component of patrons' and other equity. At June 28, 1997,
the Association's marketable equity securities were carried
at their fair value of $71.1 million, which represents a
gross unrealized gain of $50.4 million. The 1997 gross
unrealized gain, net of deferred income taxes of $17.7
million, has been reflected as a separate component of
patrons' and other equity. At June 29, 1996, the
marketable equity securities were carried at their fair
value of $54.8 million, which represents a gross unrealized
gain of $34.1 million. The 1996 gross unrealized gain, net
of deferred income taxes of $13.1 million, has been
reflected as a separate component of patrons' and other
equity.
Dividends of $494 thousand, $595 thousand and $625
thousand are included in miscellaneous, net for the years
ended June 29, 1996, June 28, 1997 and June 27, 1998,
respectively.
(b) Golden Peanut Company
Gold Kist has a 33 1/3% interest in Golden Peanut
Company and Subsidiaries, a partnership interest ("Golden
Peanut Company"). Gold Kist's investment in the Golden
Peanut Company amounted to $24.1 million and $22.7 million
at June 28, 1997 and June 27, 1998, respectively. In July
1997, Gold Kist made additional investments of $1.2
million. In September 1997, Gold Kist received a $5.8
million distribution from Golden Peanut Company. Golden
Peanut Company has a $450.0 million commercial paper
facility supported by seasonal backup lines of credit with
various banks. At June 27, 1998, borrowings of $124.0
million were outstanding under the commercial paper
facility.
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
Summarized financial information of Golden Peanut Company
is shown below:
<TABLE>
Condensed Consolidated Balance Sheets
<CAPTION>
1997 1998
<S> <C> <C>
Current assets ...................... $164,450 182,013
Property, plant and equipment, net
and other noncurrent assets ....... 34,775 34,036
Total assets ...................... $199,225 216,049
Current liabilities ................. $120,591 141,031
Accrued postretirement benefit costs 5,703 6,383
Other liabilities ................... 511 530
Partners' equity .................... 72,420 68,105
Total liabilities and partners'
equity........................... $199,225 216,049
</TABLE>
<TABLE>
Condensed Consolidated Statements of Operations
<CAPTION>
1996 1997 1998
<S> . .............................. <C> <C> <C>
Net sales and other operating income $428,955 426,122 425,076
Costs and expenses ................. 432,496 408,702 411,971
Net earnings (loss) .............. $(3,541) 17,420 13,105
</TABLE>
In 1996, 1997 and 1998, Gold Kist received $2.1 million
in rental income from Golden Peanut Company under an
operating lease agreement for peanut shelling and
procurement facilities. Gold Kist received procurement
commissions, royalties and administrative service fees of
$3.1 million, $4.2 million and $2.5 million in 1996, 1997
and 1998, respectively. In addition, Gold Kist purchased
$2.6 million, $2.3 million and $1.7 million of inventory
from Golden Peanut Company in 1996, 1997 and 1998,
respectively.
(10)Discontinued Operations
The Company's Agri-Services segment purchases or manufactures
feed, seed, fertilizers, pesticides, animal health products and
other farm supply items for sale at wholesale and retail.
Additionally, the Agri-Services segment is engaged in the
processing, storage and marketing of cotton, serves as a contract
procurement agent for, and stores, farm commodities such as
soybeans and grain, and is a partner in a major peanut processing
and marketing business and in a pecan processing and marketing
business. In May 1998, the Gold Kist Board of Directors adopted
a plan to discontinue operations of the Agri-Services segment.
In July 1998, Gold Kist entered into an Asset Purchase
Agreement, pursuant to which the Company has agreed to sell and
assign the assets and certain of the liabilities of the Company's
agricultural inputs businesses (see note 1). In August 1998, the
Company entered into an agreement to sell or assign the cotton
marketing operation's purchases and sales commitments for the
1998 cotton crop.
Accordingly, the operating results of the Agri-Services
segment, including provisions for losses during the phase-out
period, have been segregated from continuing operations and
reported separately in the consolidated statements of operations
and cash flows for 1996, 1997 and 1998. Net sales volume of the
Agri-Services segment was $535.4 million, $636.2 million and
$720.0 million, respectively, in 1996, 1997 and 1998.
The assets and liabilities of such operations at June 27, 1998
have been reflected as a net current asset. The Company
anticipates the sale of substantially all of these operations in
fiscal 1999.
GOLD KIST INC.
Notes to Consolidated Financial Statements, Continued
(Dollar Amounts in Thousands)
(11) Acquisition of Minority Interest
In January 1997, the Gold Kist Board of Directors adopted a
resolution authorizing the Company's officers to negotiate with
Golden Poultry Company, Inc. (_Golden Poultry_) to pursue a
transaction in which Gold Kist would acquire all of the shares of
Golden Poultry's common stock not currently owned by Gold Kist.
Gold Kist owned 10,901,802 shares or 75% of Golden Poultry's
14,628,435 outstanding shares. The negotiations were completed
and an Agreement and Plan of Merger executed in April 1997 (the
"Merger Agreement"), among Gold Kist, Golden Poultry Company,
Inc., Agri International, Inc. and Golden Poultry Acquisition
Corp.
Pursuant to the Merger Agreement, Gold Kist agreed to pay
$14.25 per share in cash for each outstanding share of common
stock not already beneficially owned by Gold Kist. The Merger
Agreement was approved by the Boards of Directors of the
Association and Golden Poultry Company, Inc. and was approved by
a majority of the owners of the Golden Poultry common stock not
owned by Gold Kist at a Special Meeting of Shareholders on
September 5, 1997. The merger became effective on September 8,
1997. The cost to acquire the outstanding shares and the fees
and expenses incurred in connection with the merger were
approximately $55.1 million. The acquisition of the minority
interest was accounted for using the purchase method of
accounting. The cost in excess over the net assets acquired was
$24.7 million, which is being amortized over 20 years. The pro
forma effect of goodwill amortization on prior years is not
significant.
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure.
Not Applicable.
PART III
Item 10. Directors and Executive Officers of the Registrant.
The Directors of Gold Kist are:
<TABLE>
<CAPTION>
Years
Term Served as
Name Age Office Expires Director
(as of
8/30/98)
<S> <C> <C> <C> <C>
W. P. Smith, Jr.* 69 Chairman of the Board & 1998 25
Director (District 1)
Herbert A. Daniel, Jr.46 Director (District 2) 1998 3
Fred K. Norris, Jr.* 70 Director (District 3) 2000 21
James E. Brady, Jr. 63 Director (District 4) 1999 14
W. Kenneth Whitehead 54 Director (District 5) 1999 5
Dan Smalley* 49 Director (District 6) 1999 13
A. Jack Nally 55 Director (District 7) 2000 7
M. Michael Davis 47 Director (District 8) 2000 4
Phil Ogletree, Jr. 65 Director (District 9) 1998 21
* Member of Board of Directors Executive Committee.
The Directors of Gold Kist are elected on a district
representation basis. The districts are redrawn from time to
time by the Board of Directors, under provisions of the By-
Laws of Gold Kist, to provide for equitable representation of
members in the territory served by Gold Kist. During the past
five years, each of the Directors has owned and managed
substantial farming operations, producing such agricultural
products as peanuts, cotton, soybeans, corn, other grains,
peaches, vegetable crops, cattle, poultry and dairy products.
While the size and types of products produced on, and
personnel employed at, each of the Director's farms varies,
each Director's business activities have been related
primarily to small agribusiness enterprises. There are no
family relationships among any of the Directors and executive
officers.
The Executive Officers of Gold Kist are:
</TABLE>
<TABLE>
<CAPTION>
Years Years
Served Served
In that with
Name Age Office Office Gold Kist
(as of (as of (as of
8/30/98) 8/30/98) 8/30/98)
<S> <C> <C> <C> <C>
G. O. Coan* 62 Chief Executive Officer, 3 39
and Chairman of the
Management Executive
Committee
John Bekkers* 53 President and Chief 3 13
Operating Officer
M. A. Stimpert 54 Senior Vice President, 2 15
Planning and Administration
Kenneth N. Whitmire 60 Group Vice President, 10 37
Poultry Group
J. David Dyson 51 General Counsel, Vice 6 months 18
President and Secretary
Peter J. Gibbons 61 Vice President, Finance 19 22
Paul G. Brower 59 Vice President, 19 19
Communications
Jerry L. Stewart 58 Vice President - 17 35
Marketing, Poultry Group
Donald W. Mabe 44 Vice President - 1 13
Operations, Poultry Group
Marshall Smitherman 56 Vice President - 1 19
Cotton Division
John K. McLaughlin 60 Vice President, Pet Food 14 14
and Animal Products Division
Allen C. Merritt 52 Vice President, Fertilizer 15 26
and Chemical Division
Stanley C. Rogers 52 Vice President, 8 20
AgriServices Division
Michael F. Thrailkill 50 Vice President, 6 25
Information Services
Stephen O. West 52 Treasurer 15 18
W. F. Pohl, Jr. 48 Controller 16 22
</TABLE>
*Member of Management Executive Committee
The officers serve for terms of one year and until their
successors are elected by the Board of Directors.
During the past five years the principal occupation of
each of the above named executive officers, with exception of
Michael A. Stimpert, Donald W. Mabe, and Marshall Smitherman,
has been as an officer or employee of Gold Kist.
Mr. Michael A. Stimpert was elected Senior Vice
President, Planning and Administration, effective April 1,
1996. He previously served as Vice President from January 1,
1996 until election to his current position. From December
19, 1986 until January 1996, Mr. Stimpert served as Executive
Vice President of Golden Peanut Company, a peanut processing
and marketing company headquartered in Atlanta, Georgia. Mr.
Stimpert was employed by Gold Kist Inc. from June 1974 until
December 1986 in a variety of positions, including Group Vice
President, Agricommodities Group and Group Vice President,
AgriProducts Group.
Mr. Donald W. Mabe was elected Vice President -
Operations, Poultry Group, effective July 25, 1997. He
previously served as President of Carolina Golden Products
Company from January 1991 until election to his current
position.
Mr. Marshall Smitherman was elected Vice President,
Cotton Division, effective July 25, 1997. He previously
served as Manager, Cotton Division from February 1995 until
election to his current position. From 1988, until rejoining
the Association in 1995, he was a grain broker located in
Atlanta, Georgia.
Item 11. Executive Compensation.
Summary Compensation Table. The following table sets
forth information concerning the compensation received by the
Chief Executive Officer and for each of the four other most
highly compensated executive officers:
<TABLE>
<CAPTION>
Annual compensation
Other
annual All other
Fiscal compensa- compensa-
year Salary Bonus tion(1) tion
ended ($) ($) ($) ($)
<S> <C> <C> <C> <C> <C>
G. O. Coan June 27, 1998 $475,000 $0 $2,211 $9,786 (2)
Chief Exec. Officer and June 28, 1997 470,577 50,000 1,869 12,230 (2)
Chairman of the Manage- June 29, 1996 349,058 450,000 1,055 12,030 (2)
ment Executive Committee
John Bekkers June 27, 1998 $347,500 $0 $5,757 $7,186 (2)
President and Chief June 28, 1997 282,423 50,000 3,656 9,842 (2)
Operating Officer June 29, 1996 210,577 295,000 1,110 9,425 (2)
Kenneth N. Whitmire June 27, 1998 $212,692 $0 $8,742 $7,629 (2)
Group Vice President, June 28, 1997 204,434 44,000 6,703 9,956 (2)
Poultry Group June 29, 1996 189,819 240,000 2,375 9,965 (2)
Jerry L. Stewart June 27, 1998 $182,231 $0 $4,767 $7,270 (2)
Vice President June 28, 1997 174,981 29,000 3,434 9,353 (2)
Marketing, Poultry Group June 29, 1996 161,727 164,000 1,889 9,569 (2)
M. A. Stimpert June 27, 1998 $204,615 $0 $5,812 $7,518 (2)
Senior Vice President, June 28, 1997 194,488 24,000 4,497 10,020 (2)
Planning and Admini- June 29, 1996 87,356(3) 75,000(3) 2,280(3) 9,201(2)(3)
stration
</TABLE>
_______________________________
(1)The amounts shown for the fiscal years ended June 27, 1998,
and June 28, 1997 set forth that portion of interest earned
on voluntary salary and bonus deferrals under non-qualified
deferred compensation plans above 120% of the applicable
federal rate. Other than such amounts, for the fiscal years
ended June 27, 1998, June 28, 1997, and June 29, 1996, no
amounts of "Other Annual Compensation" were paid to any of
the above named executive officers, except for perquisites
and other personal benefits which for each executive officer
did not exceed the lesser of $50,000 or 10% of such
individual's salary plus annual bonus.
(2)The amounts set forth include the following amounts that
were contributed by the Association for fiscal years 1998,
1997 and 1996 on behalf of the named executive officers
pursuant to the Gold Kist Profit Sharing and Investment
Plan, a qualified defined contribution plan (401(K)): Mr.
Coan - $2,400, $4,750 and $4,500 respectively, Mr. Bekkers -
$2,814, $5,404 and $4,946 respectively; Mr. Whitmire -
$2,425, $4,684 and $4,656 respectively; Mr. Stewart -
$2,422, $4,439 and $4,617 respectively; and Mr. Stimpert -
$2,450, $4,804 and $3,859 respectively. In addition, the
amounts set forth include for fiscal years 1996, 1997 and
1998, the following amounts which represent the value of the
named executive officer's benefit from premiums paid by the
Association under a split dollar life insurance plan for the
named executive officers: Mr. Coan - $7,530, $7,480 and
$7,386 respectively; Mr. Bekkers - $4,479, $4,438 and $4,372
respectively; Mr. Whitmire - $5,309, $5,272 and $5,204
respectively; Mr. Stewart - $4,952, $4,914 and $4,848
respectively; and Mr. Stimpert - $5,342, $5,216 and $5,068
respectively. The Association uses the modified premium
method in determining the portion of each premium dollar
attributable to the named executive officers. The
Association will recover the cost of premium payments from
the cash value of the policies.
(3)The amounts indicated reflect Mr. Stimpert's employment for
a portion of the fiscal year from January 1996 to June 1996.
Retirement Plans. Gold Kist maintains two noncontributory
retirement plans, one for salaried employees and the other for
hourly employees, which together cover substantially all
employees who have served at least one year with Gold Kist,
including those employees subject to collective bargaining
agreements. The plan for salaried employees was amended in
1984 to delete the one year waiting period for credited
service. For salaried employees, the plan provides a
retirement benefit after 30 years of credited service at age
65, which, when combined with the portion of the employee's
primary Social Security benefit attributable to his/her
employer's contributions, will equal 45% of his/her average
earnings during the period of five years in which he/she had
the highest earnings in the last ten years of employment
immediately preceding attainment of age 65, or if retired
before age 65, in the last ten years immediately preceding
early retirement. This plan also provides an early retirement
benefit after age 55, with no reduction in benefit entitlement
due to age, when the sum of the employee's age and years of
service equal or exceed 90. The benefit entitlement is
reduced in either case for each year of credited service less
than 30 years. For hourly employees who work for Gold Kist
until age 65, the plan provides a monthly pension benefit
equal to $9.00 for each year of plan participation, payable at
age 65; early retirement is permitted after age 55 at reduced
benefit levels. The plans contain a death benefit for the
surviving spouse of an active employee (who had at least five
years credited service or was at least 55 years old at the
time of death) which equals 50% of the deceased employee's
accrued retirement income benefit. Accrued benefits under the
plans vest after the employee attains five years of service or
at age 55, and the minimum pension benefit at age 65 is $9.00
per month for each year of credited service. Amounts
contributed for specific individuals under Gold Kist's
retirement income plan for salaried employees cannot be
readily determined. For the plan year ended December 31,
1997, the Association made a contribution of $1,412,000 to the
pension plan for hourly employees. Due to the full funding
limitation of the Internal Revenue Service, the Association
was not permitted to make a tax-deductible contribution to the
retirement income plan for salaried employees for the plan
year ended December 31, 1997. Estimated annual benefits
payable upon retirement at normal retirement age (65 years) to
persons in specified years of service and remuneration
classifications, before offset of Social Security benefits,
are illustrated in the following table:
<TABLE>
<CAPTION>
Estimated Annual Benefits For Years of Service Indicated
Remuneration 10 Years 15 Years 20 Years 25 Years 30 Years
or More
<S> <C> <C> <C> <C> <C>
$ 30,000 $ 7,500 $ 11,250 $ 15,000 $ 18,750 $ 22,500
$100,000 15,000 22,500 30,000 37,500 45,000
$150,000 22,500 33,750 45,000 56,250 67,500
</TABLE>
For years after 1993, the maximum annual amount of
compensation that can be used for determining an individual's
benefit under a qualified plan is $150,000.
The plan covers the compensation set forth in the columns
entitled "Salary" and "Bonus" in the Summary Compensation
Table. The credited years of service as of December 31, 1997,
under the retirement income plan for the five executive
officers listed in the summary compensation table are as
follows: Mr. Coan (30); Mr. Bekkers (13); Mr. Whitmire (30);
Mr. Stewart (30); and Mr. Stimpert (24).
A Supplemental Executive Retirement Plan has been adopted
by the Association whereby Gold Kist makes supplemental
payments to certain employees under a non-qualified deferred
compensation plan to make up for any reduction in such
employees' retirement income under the Gold Kist salary
retirement plan resulting from restrictions placed on
qualified retirement plans under Section 415 of the Internal
Revenue Code of 1986, as amended. Such restrictions limit the
amount of benefits payable in qualified retirement plans with
respect to the percentage of final pay to which such employees
would be otherwise entitled upon retirement. All vested
amounts accrued under the Plan have been funded in a trust
which is secure against all contingencies except a bankruptcy
of the Association. The following table shows the estimated
annual benefits payable upon retirement at normal retirement
age (65) to persons in specified years of service and
remuneration classifications, before offset of Social Security
benefits and without restriction imposed by the Internal
Revenue Code. The amounts shown in the table would be reduced
by the amounts payable pursuant to the Gold Kist Retirement
Plan for Salaried Employees.
<TABLE>
<CAPTION>
Estimated Annual Benefits For Years of Service Indicated
Remuneration 10 Years 15 Years 20 Years 25 Years 30 Years
or More
<S> <C> <C> <C> <C> <C>
$100,000 $15,000 $ 22,500 $ 30,000 $ 37,500 $ 45,000
$150,000 22,500 33,750 45,000 56,250 67,500
$200,000 30,000 45,000 60,000 75,000 90,000
$250,000 37,500 56,250 75,000 93,750 112,500
$350,000 52,500 78,750 105,000 131,250 157,500
$500,000 75,000 112,500 150,000 187,500 225,000
$750,000 112,500 168,750 225,000 281,250 337,500
$850,000 127,500 191,250 255,000 318,750 382,500
</TABLE>
Covered compensation, computation of the average final
compensation, and credited years of service for the five
executive officers listed in the summary compensation table
are the same as that set forth in the foregoing description of
the Gold Kist Retirement Plan for Salaried Employees.
In addition to the retirement benefits provided by its
qualified and nonqualified retirement plans, Gold Kist has
contracted to provide certain key employees with compensation
benefits after normal retirement. These benefits, known as
the Management Deferred Compensation Plan, are paid monthly
following retirement in an annual amount equal to 25% of the
average annual salary for the ten year period immediately
prior to retirement. These benefits are payable, depending on
the contract, for a 10 or 15 year period following retirement
to a former key employee or his designated beneficiary. All
vested amounts accrued under the plan have been funded in a
trust which is secure against all contingencies except a
bankruptcy of the Association. Estimated annual benefits
payable under the Management Deferred Compensation Plan would
be based upon the following average annual salary of the
eligible named executives for the ten year period ended as of
June 27, 1998: Mr. Coan - $281,440; Mr. Bekkers - $142,257;
Mr. Whitmire - $166,809; and Mr. Stimpert - $143,409.
Change in Control Plans. Under the Gold Kist officers
contingency plan, the Association has entered into identical
change in control agreements with each officer, including the
five executive officers named in the cash compensation table.
Each change in control agreement provides that following a
change in the control of the Association (as defined in the
agreements), if the officer's employment with the Association
terminates within two years after the change in control (but
prior to the officer's reaching age 65), the officer will be
entitled to receive a severance payment calculated by
determining the "Base Severance Amount" as follows:
(1) if the officer is age 60 or younger at the
time of termination of his employment, the amount
equal to the officer's compensation paid by the
Association for the five full calendar years ending
before the date of the change in control, or
(2) if the officer is older than age 60 at the
time of his termination of employment, the amount
equal to the officer's average annual compensation
paid by the Association for the lesser of five full
calendar years or the full calendar years of service
with the Association ending before the change in
control, multiplied by the number of years and
fractions thereof remaining until the officer's 65th
birthday.
The Base Severance Amount is to be adjusted for those officers
with less than 15 years of service by prorating the Base
Severance Amount with the numerator being the number of
completed calendar years of service and the denominator being
15. However, the minimum any terminated officer would receive
would be one and one-half times the average annual
compensation paid by the Association for the actual number of
full calendar years worked, if less than five, or the annual
salary amount for an officer who has worked less than one
calendar year. The severance payment will include an
additional amount equal to any excise tax under Section 4999
of the Internal Revenue Code of 1986 incurred by the officer,
plus all federal, state and local income taxes incurred by the
officer with respect to receipt of the additional amount.
Additionally, under such contracts, medical benefits would
remain available to current and retired officers on the same
basis as is provided at the time of a change in control. The
Association has agreed to pay all legal fees and expenses
incurred by an officer in the pursuit of the rights and
benefits provided by the change in control agreement. The
Association has entered into similar change in control
agreements with each director of Gold Kist. As of June 27,
1998, no contingencies have occurred which would require the
implementation of the provisions of the change in control
agreements, and no payments or other benefits have been
provided to the five executive officers named in the summary
compensation table or to the directors.
Director Compensation. The By-Laws of Gold Kist provide
that the Directors shall be compensated for their services and
reimbursed for their expenses, as determined by the Board of
Directors. Currently the Directors receive no compensation
other than an annual retainer paid at the rate of $20,000 per
year, with the Chairman receiving $21,500. Directors and
Directors Emeriti receive a per diem of $250 with a $500
minimum, plus expenses incurred while traveling to and from
and attending meetings of the Board of Directors or other
official meetings or conferences. Pursuant to separate
agreements, Gold Kist has arranged to provide life insurance
benefits to qualifying directors emeriti and to make available
health insurance and other medical benefits for Gold Kist
directors and directors emeriti as are available to employees
of Gold Kist from time to time pursuant to the Association
group insurance program.
Compensation Committee Interlocks and Insider
Participation. Director W. P. Smith, Jr., Fred K. Norris, Jr.
and Dan Smalley serve as members of the Association's
Compensation Committee.
Item 12. Security Ownership of Certain Beneficial Owners and
Management.
Not Applicable.
Item 13. Certain Relationships and Related Transactions.
The Directors of Gold Kist are members of the Association
and, during the fiscal year ended June 27, 1998, have had
dealings in the ordinary course of business with Gold Kist as
purchasing or marketing patrons. See Business (and
Properties) -- Patronage Refunds.
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports
on Form 8-K.
(a)1.Index to Consolidated Financial Statements
Consolidated Financial Statements:
Independent Auditors' Reports
Consolidated Balance Sheets - June 28, 1997 and
June 27, 1998
Consolidated Statements of Operations-Years Ended
June 29, 1996, June 28, 1997 and June 27, 1998
Consolidated Statements of Patrons' and Other
Equity-Years Ended June 29, 1996, June 28, 1997
and June 27, 1998
Consolidated Statements of Cash Flows-Years ended
June 29, 1996, June 28, 1997 and June 27, 1998
Notes to Consolidated Financial Statements
(a)2.Financial Statement Schedules:
Gold Kist Inc.
Financial Statement Schedule:
II. Valuation Reserves-Years Ended June 29, 1996
June 28, 1997 and June 27, 1998
<TABLE>
GOLD KIST INC.
Schedule II - Valuation Reserves
(Dollar Amounts in Thousands)
<CAPTION>
Column A Column B Column C Column D Column E
Additions
Balance at Charge to Charged Balance
Beginning Cost and To Other At End
Description Of Period Expenses Accounts Deductions Of Period
<S> <C> <C> <C> <C> <C>
Deducted in the
consolidated
balance sheets
from the asset
to which it
applies:
Allowance for
doubtful
accounts:
June 29, 1996 $1,219 1,084 - 727(A) 1,576
June 28, 1997 1,576 336 - 486(A) 1,426
June 27, 1998 1,426 1,975 - 288(A) 3,113
(A) Represents accounts written off.
Allowance for
deferred tax
assets
valuation:
June 29, 1996 $1,984 - - 578(C) 1,406
June 28, 1997 1,406 - - 328(C) 1,078
June 27, 1998 1,078 58(B) - - 1,136
(B) Represents establishment of allowance for net operating deductions not
available for state income tax purposes.
(C) Represents estimate of net operating loss deductions that are realizable.
</TABLE>
(a)3. Exhibits - Index of Exhibits
Exhibits designated as previously filed with the Commission in the Index
of Exhibits, below, are incorporated by reference into this Report.
<TABLE>
<CAPTION>
Designation
of Exhibit Document with Which Designation
in this Exhibit Was Previously of such Exhibit
Report Description of Exhibit Filed with Commission in that Document
<S> <C> <C> <C>
B-2 Agreement of Merger, dated as of Amendment to Schedule Exhibit 3
April 22, 1997, among 13D filed April 25, 1997
Golden Poultry Company, Inc.,
Gold Kist Inc., Agri International,
Inc. and Golden Poultry Acquisition
Corp.
B-3(a) Restated and Amended Annual Report on Form Exhibit B-3(a)
Articles of Incorpo- 10-K for the Fiscal
ration of Registrant Year ended June 26, 1993
B-3(b) Current By-Laws of Annual Report on Form Exhibit B-3(b)
Registrant, as amended 10-K for the Fiscal
Year ended June 28, 1997
B-4(a)(1) Form of Indenture, dated Registration filed on Exhibit 4(a)(2)
as of September 1, 1979, Form S-1 (Registration
governing the terms of the No. 2-65587)
Fifteen Year Subordinated
Capital Certificates of
Interest (Series B), including
therein a table of contents
and cross-reference sheet
B-4(a)(2) Form of First Supplemental Registration filed on Exhibit 4(a)(4)
Indenture, dated as of Form S-1 (Registration
September 1, 1980, governing No. 2-69267)
the terms of the Fifteen
Year Subordinated Capital
Certificates of Interest
(Series C)
B-4(a)(3) Form of Second Supplemental Registration filed on Exhibit 4(a)(5)
Indenture, dated as of Form S-2 (Registration
September 1, 1982, governing No. 2-79538)
the terms of the Fifteen
Year Subordinated Capital
Certificates of Interest
(Series D)
B-4(b)(1) Form of Indenture, dated Registration filed on Exhibit 4(b)(2)
as of September 1, 1979, Form S-1 (Registration
governing the terms of No. 2-65587)
the Ten Year Subordinated
Capital Certificates of
Interest (Series B),
including a table of contents
and cross-reference sheet
B-4(b)(2) Form of First Supplemental Registration filed on Exhibit 4(b)(4)
Indenture, dated as of Form S-1 (Registration
September 1, 1980, governing No. 2-69267)
the terms of the Ten Year
Subordinated Capital
Certificates of Interest
(Series C)
B-4(b)(3) Form of Second Supplemental Registration filed on Exhibit 4(b)(5)
Indenture, dated as of Form S-2 (Registration
September 1, 1982, governing No. 2-79538)
the terms of the Ten Year
Subordinated Capital
Certificates of Interest
(Series D)
B-4(c) Form of Indenture, dated as Registration filed on Exhibit 4(c)
of September 1, 1985, Form S-2 (Registration
governing the terms of the No. 33-428)
Seven Year Subordinated
Capital Certificates of
Interest (Series A), including
therein a table of contents,
cross-reference sheet, and
form of Seven Year Subordinated
Capital Certificates of Interest
B-4(d)(1) Form of Indenture, dated Registration filed on Exhibit 4(c)(2)
as of September 1, 1979, Form S-1 (Registration
governing the terms of the No. 2-65587)
Five Year Subordinated
Capital Certificates of
Interest (Series A),
including therein a table
of contents and cross-
reference sheet
B-4(d)(2) Form of First Supplemental Registration filed on Exhibit 4(d)(2)
Indenture, dated as of Form S-1 (Registration
September 1, 1980, governing No. 2-69267)
the terms of the Five Year
Subordinated Capital Certifi-
cates of Interest (Series B)
B-4(d)(3) Form of Second Supplemental Registration filed on Exhibit 4(d)(3)
Indenture, dated as of Form S-2 (Registration
September 1, 1982, governing No. 2-79538)
the terms of the Five Year
Subordinated Capital Certifi-
cates of Interest (Series C)
B-4(e) Form of Indenture, dated as of Registration filed on Exhibit 4(f)(2)
September 1, 1985, governing Form S-2 (Registration
the terms of the Three Year No. 33-428)
Subordinated Capital Certifi-
cates of Interest (Series A),
including therein a table of
contents, cross-reference
sheet, and form Capital
Certificates of Interest
B-4(f) Form of Indenture, dated Registration filed on Exhibit 4(g)
September 1, 1980, governing Form S-1 (Registration
the terms of the Two Year No. 2-69267)
Subordinated Capital Certifi-
cates of Interest (Series A),
including therein a table of
contents and cross-reference
sheet
B-4(g)(1) Form of Indenture, dated as of Registration filed on Exhibit 4(h)(1)
September 1, 1985, governing Form S-2 (Registration
the terms of the One Year No. 33-428)
Subordinated Large Denomi-
nation Loan Certificate
(Series A), including therein
a table of contents, cross-
reference sheet, and form of
One Year Subordinated Large
Denomination Loan Certificates
B-4(g)(2) Form of Indenture, dated as of Registration filed on Exhibit 4(d)(2)
September 1, 1979, governing Form S-1 (Registration
the terms of the One Year No. 2-65587)
Subordinated Loan Certificates
(Series B), including therein
a table of contents and
cross-reference sheet
B-4(g)(3) Form of First Supplemental Registration filed on Exhibit 4(f)(2)
Indenture, dated as of Form S-1 (Registration
September 1, 1980, governing No. 2-69267)
the terms of the One Year
Subordinated Loan Certificates
(Series C)
B-4(h) Form of Indenture, dated as Registration filed on Exhibit 4(i)
of September 1, 1985, Form S-2 (Registration
governing the terms of the No. 33-428)
Six Month Subordinated
Large Denomination Loan
Certificate (Series A),
including therein a table of
contents, cross-reference
sheet, and form of Six Month
Subordinated Large Denomination
Loan Certificates
B-4(i) Agreement to furnish copies Registration filed on Exhibit 4(h)
of constituent instruments Form S-1 (Registration
defining the rights of the No. 2-59958)
holders of certain industrial
revenue bonds
B-4(j)(1) Note Agreement with the Quarterly Report on Exhibit B-4(q)(1)
Prudential Insurance Form 10-Q for the
Company of America dated Fiscal Quarter ended
as of November 4, 1988 December 31, 1988
B-4(j)(2) Note Agreement with Quarterly Report on Exhibit B-4(q)(2)
Pruco Life Insurance Form 10-Q for the
Company dated as of Fiscal Quarter ended
November 4, 1988 December 31, 1988
B-4(j)(3) Amendment dated as of Registration filed on Exhibit 4(l)(5)
January 9, 1991, to Note Form S-2 (Registration
Agreements with the Prudential No. 33-42900)
Insurance Company of America
and Pruco Life Insurance
Company
B-4(j)(4) Note Agreement with the Registration filed on Exhibit 4(l)(6)
Prudential Insurance Company Form S-2 (Registration
of America, dated as of No. 33-42900)
June 3, 1991
B-4(j)(5) Amendment dated as of June 26, Registration filed on Exhibit 4(l)(7)
1992, to Note Agreements with Form S-2 (Registration
the Prudential Insurance Company No. 33-52268)
of America
B-4(j)(6) Amendment dated July 14, 1993, Registration filed on Exhibit 4(l)(8)
to Note Agreements with the Form S-2 (Registration
Prudential Insurance Company of No. 33-69204)
America and Pruco Life Insurance
Company
B-4(j)(7) Note Purchase and Private Shelf Registration filed on Exhibit 4(j)(9)
Agreement, dated as of February Form S-2
11, 1997, with the Prudential (Registration No. 333-36291)
Insurance Company of America
B-4(j)(8) Amendment dated May 13, 1997 Registration filed on Exhibit 4(j)(10)
to Note Agreements with Prudential Form S-2
Insurance Company of America (Registration No. 333-36291)
and with Pruco Life Insurance
Company; Note Agreement dated
as of June 3, 1991 with the
Prudential Insurance Company of
America; and Note Purchase and
Private Shelf Agreement with the
Prudential Insurance Company of America
B-10(a) Form of Deferred Compensation Registration filed on Exhibit 11(d)
Agreement between Gold Kist Form S-1 (Registration
Inc. and certain executive No. 2-59958)
officers*
B-10(b)(1)Gold Kist Management Bonus Registration filed on Exhibit 10(b)
Program* Form S-1 (Registration
No. 2-69267)
B-10(b)(2)Amended Gold Kist Management Registration filed on Exhibit 10(b)(2)
Bonus Program* Form S-2 (Registration
No. 2-79538)
B-10(b)(3)Form of Gold Kist Supplemental Registration filed on Exhibit 10(b)(3)
Executive Retirement Income Form S-2 (Registration
non-qualified deferred No. 33-9007)
compensation agreement between
Gold Kist and certain execu-
tive officers and Resolution
of Gold Kist Board of Directors
authorizing the Supplemental
Executive Retirement Plan*
B-10(b)(4)Resolution of Gold Kist Board Registration filed on Exhibit 10(b)(4)
of Directors authorizing the Form S-2 (Registration
Gold Kist Special Award Plan* No. 33-9007)
B-10(b)(5)Form of Gold Kist Executive's Registration filed on Exhibit 10(b)(5)
Change in Control Agreement Form S-2 (Registration
between Gold Kist and certain No. 33-31164)
officers and resolution of
Gold Kist Board of Directors
authorizing the Officers
Contingency Plan*
B-10(b)(6)Form of Directors Change Registration filed on Exhibit 10(b)(6)
in Control Agreement Form S-2 (Registration
between Gold Kist and No. 33-36938
Directors of Gold Kist*
B-10(b)(7)Form of Director Registration filed on Exhibit 10(b)(7)
Emeritus Life Benefits Form S-2 (Registration
Agreement* No. 33-36938)
B-10(b)(8)Form of Director Emeritus Registration filed on Exhibit 10(b)(8)
Agreement for Medical Benefits* Form S-2 (Registration
No. 33-36938)
B-10(b)(9)Gold Kist Executive Savings Registration filed on Exhibit 10(b)(9)
Plan, as amended * Form S-2 (Registration
No. 33-62869)
B-10(b)(10)Gold Kist Director Savings Registration filed on Exhibit 10(b)(10)
Plan, as amended * Form S-2 (Registration
No. 33-62869)
B-10(b)(11)Gold Kist Split Dollar Life Registration filed on Exhibit 10(b)(11)
Insurance Plan * Form S-2 (Registration
No. 33-62869)
B-10(c)(l)Form of Membership, Marketing, Registration filed on Exhibit 13(b)
and/or Purchasing Agreement of Form S-1 (Registration
Gold Kist Inc., Atlanta, No. 2-59958)
Georgia
B-10(c)(2)Form of Membership, Marketing, Registration filed on Exhibit 10(c)(2)
and/or Purchasing Agreement of Form S-1 (Registration
Gold Kist Inc., Atlanta, No. 2-74205)
Georgia, as revised October
17, 1980
B-10(c)(3)Form of Membership, Marketing, Registration filed on Exhibit 10(c)(3)
and/or Purchasing Agreement of Form S-2 (Registration
Gold Kist Inc., Atlanta, No. 33-428)
Georgia, as revised November
l, l984
B-10(c)(4)Form of Membership, Marketing, Registration filed on Exhibit 10(c)(4)
and/or Purchasing Agreement Form S-2 (Registration
of Gold Kist Inc., Atlanta, No. 33-24623)
Georgia, revised October
29, 1987
B-10(c)(5)Form of Membership, Marketing, Registration filed on Exhibit 10(c)(5)
and/or Purchasing Agreement of Form S-2 (Registration
Gold Kist Inc., Atlanta, Georgia, No. 33-42900)
revised August 21, 1991
B-10(c)(6)Form of Membership, Marketing, Registration filed on Exhibit 10(c)(6)
and/or Purchasing Agreement of Form S-2
Gold Kist Inc., Atlanta, Georgia (Registration No. 333-36291)
revised July 9, 1997
B-10(d) CF Industries, Inc., Member Registration filed on Exhibit 13(j)
Product Purchase Agreement Form S-2 (Registration
No. 2-59958)
B-10(e)(1)General Partnership Agreement Registration filed on Exhibit 10(h)(1)
(GC Properties) between Gold Form S-2 (Registration
Kist Inc. and Cotton States No. 33-428)
Mutual Insurance Company,
dated as of July 1, 1984
B-10(e)(2)Lease from GC Properties, Registration filed on Exhibit 10(h)(2)
dated December 11, 1984, Form S-2 (Registration
for home office building No. 33-428)
space
B-10(f)(1)General Partnership Agreement Annual Report on Form Exhibit B-10(f)(1)
(Golden Peanut Company) 10-K for the Fiscal
between Gold Kist and Archer- Year Ended June 30, 1987
Daniels-Midland Company, dated
as of December 17, 1986
B-10(f)(2)Amended and Restated Partnership Registration filed on Exhibit 10(f)(2)
Agreement (Golden Peanut Company) Form S-2 (Registration
between Gold Kist Inc., Archer- No. 33-31164)
Daniels-Midland Company and
Alimenta Processing Corporation,
dated as of March 1, 1989
B-10(f)(3)Amendment to Amended and Registration filed on Exhibit 10(f)(3)
Restated Partnership Agreement Form S-2 (Registration
(Golden Peanut Company) between No. 33-42900)
Gold Kist Inc., Archer-Daniels-
Midland Company and Alimenta
Processing Corporation, dated
as of June 30, 1991
B-10(f)(4)Master Commercial Facilities Annual Report on Form Exhibit B-10(f)(2)
Lease Agreement between Gold 10-K for the Fiscal
Kist and Golden Peanut Company Year Ended June 30, 1987
dated as of December 17, 1986
B-10(g) Grain Procurement Agreement Annual Report on Form Exhibit B-10(h)
between Gold Kist and Archer- 10-K for the Fiscal
Daniels-Midland Company, dated Year Ended June 30, 1987
August 31, 1987
B-10(h) Guaranty dated December 18, Registration filed on Exhibit 4(o)
1992 by Gold Kist in favor of Form S-2 (Registration
NationsBank of Georgia, N.A. No. 33-69204)
B-10(i) Credit Agreement dated as of
August 4, 1998, with various banks
and lending institutions, as lendors,
and Cooperatieve Centrale Raiffeisen-
Boerenleen Bank B.A., New York
Branch, as agent
B-10(j) Asset Purchase Agreement dated Report filed on Form Exhibit 10(k)
as of July 23, 1998, between 8-K dated as of
Southern States Cooperative, July 23, 1998
Incorporated and Gold Kist Inc.
B-21 Subsidiaries of the Registrant Annual Report on Form Exhibit B-21
10-K for the Fiscal Year
ended June 28, 1997
B-27 Financial Data Schedule
</TABLE>
*Plans and arrangements pursuant to which executive officers and
directors of the Association receive compensation.
(b)Reports on Form 8-K. - No reports on Form 8-K were
filed during the last quarter of the fiscal year ended June
27, 1998. The Association filed Form 8-K dated as of July 23,
1998, to report the execution of an Asset Purchase Agreement
with Southern States, pursuant to which the Association has
agreed to sell and assign, and Southern States has agreed to
purchase and assume, the assets and certain of the obligations
of the Association's agricultural inputs business.
SIGNATURES - Pursuant to the requirements of Section 13 or
15(d) of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
GOLD KIST INC.
Date: September 24, 1998 By:/s/ G. O. Coan
G. O. Coan, Chief Executive
Officer (Principal
Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following
persons on behalf of the registrant and in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ G. O. Coan Chief Executive Officer September 24, 1998
G. O. COAN (Principal Executive Officer)
/s/ Peter J. Gibbons Vice President-Finance September 24, 1998
PETER J. GIBBONS (Principal Financial Officer)
/s/ W. F. Pohl, Jr. Controller (Principal September 24, 1998
W. F. POHL, JR. Accounting Officer)
/s/ W. P. Smith, Jr. Director September 21, 1998
W. P. SMITH, JR.
/s/ Fred K. Norris, Jr. Director September 21, 1998
FRED K. NORRIS, JR.
/s/ Dan Smalley Director September 21, 1998
DAN SMALLEY
/s/ Phil Ogletree, Jr. Director September 21, 1998
PHIL OGLETREE, JR.
/s/ James E. Brady, Jr. Director September 21, 1998
JAMES E. BRADY, JR.
/s/ A. Jack Nally Director September 21, 1998
A. JACK NALLY
/s/ W. Kenneth Whitehead Director September 21, 1998
W. KENNETH WHITEHEAD
/s/H. Michael Davis Director September 21, 1998
H. MICHAEL DAVIS
/s/ Herbert A. Daniel, Jr. Director September 21, 1998
HERBERT A. DANIEL, JR.
</TABLE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page
B-10(i) Credit Agreement dated
as of August 4, 1998,
with various banks and
lending institutions, as lendors,
and Cooperatieve Centrale Raiffeisen-
Boerenleen Bank B.A., New York
Branch, as agent
B-27 Financial Data Schedule
EXHIBIT B-10(i)
CREDIT AGREEMENT
Dated as of August 4, 1998
By and Among
GOLD KIST INC.,
as Borrower,
VARIOUS BANKS AND LENDING INSTITUTIONS,
as Lenders,
and
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
As Agent
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS 1
Section 1.1 Definitions 1
Section 1.2. Accounting Terms 19
Section 1.3. Use of Defined Terms 19
ARTICLE 2. CREDIT FACILITIES 19
Section 2.1. The Loans 19
ARTICLE 3. GENERAL LOAN TERMS 20
Section 3.1. Notes; Repayment of Principal 20
Section 3.2. Amount Limitations 21
Section 3.3. Reduction of Commitments 22
Section 3.4. Extension of 364-Day Loan
Maturity Date; Extension
of Revolving
Loan Maturity Date 22
Section 3.5. Interest Rates 24
Section 3.6. Funding Notices 24
Section 3.7. Disbursement of Funds 25
Section 3.8. Interest 26
Section 3.9. Fees 27
Section 3.10. Voluntary Prepayments of
Borrowings 27
Section 3.11 Payments, etc. 28
Section 3.12. Interest Rate Not
Ascertainable, etc. 29
Section 3.13. Illegality 30
Section 3.14. Increased Costs 30
Section 3.15. Funding Losses 32
Section 3.16. Assumptions Concerning
Funding of Fixed Rate
Advances 32
Section 3.17. Apportionment of Payments 32
Section 3.18. Sharing of Payments, etc. 32
Section 3.19. Capital Adequacy 33
Section 3.20. Use of Proceeds 33
ARTICLE 4. CONDITIONS TO LOAN CLOSING AND
EXTENSIONS
OF LOANS 34
Section 4.1. Conditions Precedent to
Initial Loans 34
Section 4.2. Conditions to all Loans 36
ARTICLE 5. REPRESENTATIONS AND
WARRANTIES 37
Section 5.1. Organization and Qualification 37
Section 5.2. Financial Statements 37
Section 5.3. Taxes 38
Section 5.4. Actions Pending 38
Section 5.5. Title to Properties 38
Section 5.6. Regulation U, Etc. 38
Section 5.7. ERISA 39
Section 5.8. Outstanding Debt 39
Section 5.9. Conflicting Agreements or
Other Matters 39
Section 5.10. Possession of Franchises,
Licenses, Etc 40
Section 5.11. Governmental Consent 40
Section 5.12. Disclosure 40
Section 5.13. Foreign Assets Control
Regulations 40
Section 5.14. Labor Relations 41
Section 5.15. Authorization and
Enforceability of Agreement 41
Section 5.16. Subsidiaries 41
Section 5.17. Insurance Coverage 41
Section 5.18. Investments 41
Section 5.19. Intercompany Loans; Dividends 41
ARTICLE 6. AFFIRMATIVE COVENANTS 42
Section 6.1. Financial Statements 42
Section 6.2. Inspection of Property 43
Section 6.3. Insurance 44
Section 6.4. Conduct of Business 44
Section 6.5. Corporate Existence;
Maintenance of Properties 44
Section 6.6. Environmental Laws 44
Section 6.7. Taxes 45
Section 6.8. Keeping of Books; Fiscal Year 45
Section 6.9. Compliance with Laws and
Other Agreements 45
Section 6.10. Notice of Default 46
Section 6.11. Notice of Litigation 46
Section 6.12. ERISA 46
Section 6.13. Use of Proceeds 46
Section 6.14. Borrowing Base Certificate/
Hedging Position Reports 47
Section 6.15. Delivery of Pledge
Agreement and ADM Shares 47
ARTICLE 7. NEGATIVE COVENANTS 47
Section 7.1. Financial Covenants 47
Section 7.2. Limitation on Restricted
Payments 49
Section 7.3. Liens 49
Section 7.4. Restrictions on Loans,
Advances, Investments, Asset
Acquisitions and Contingent
Liabilities 50
Section 7.5. Sale of Stock and Debt of
Subsidiaries 52
Section 7.6. Merger and Sale of Assets 53
Section 7.7. Sale and Lease-Back 53
Section 7.8. Sale or Discount of
Receivables 54
Section 7.9. Hedging Contracts 54
Section 7.10. Issuance of Stock by
Subsidiaries 54
Section 7.11. Capital Expenditures 54
Section 7.12. Indebtedness for Money
Borrowed 55
Section 7.13. Transactions with Affiliates 55
Section 7.14. Creation of Subsidiaries 55
ARTICLE 8. EVENTS OF DEFAULT AND
REMEDIES 56
Section 8.1. Events of Default 56
Section 8.2. Remedies on Default 58
ARTICLE 9. THE AGENT 59
Section 9.1. Appointment and Authorization 59
Section 9.2. Nature of Duties of the Agent 60
Section 9.3. Lack of Reliance on the Agent 60
Section 9.4. Certain Rights of the Agent 60
Section 9.5. Liability of the Agent 61
Section 9.6. Indemnification 62
Section 9.7. The Agent and Affiliates 62
Section 9.8. Successor Agent 63
ARTICLE 10. MISCELLANEOUS 63
Section 10.1. Notices 63
Section 10.2. Amendments, Etc. 63
Section 10.3. No Waiver; Remedies Cumulative 64
Section 10.4. Payment of Expenses, Etc. 64
Section 10.5 Benefit of Agreement 66
Section 10.6. Governing Law; Submission to
Jurisdiction,
Etc 68
Section 10.7. Independent Nature of the
Lenders' Rights 69
Section 10.8. Counterparts 69
Section 10.9. Effectiveness; Survival 69
Section 10.10. Severability 69
Section 10.11. Independence of Covenants 69
Section 10.12. Change in Accounting
Principles, Fiscal Year or Tax Laws 69
Section 10.13. Headings Descriptive;
Entire Agreement 70
Section 10.14. Time is of the Essence 70
Section 10.15. Usury 70
Section 10.16. Construction 70
Exhibits:
Exhibit A - Form of Revolving Note
Exhibit B - Form of 364-Day Note
Exhibit C - Form of Term Note
Exhibit D - Form of Notice of Borrowing
Exhibit E - Form of Notice of Continuation/Conversion
Exhibit F - Form of Special Counsel Opinion
Exhibit G - Form of General Counsel Opinion
Exhibit H - Form of Assignment and Acceptance
Exhibit I - Form of Borrowing Base Certificate
Exhibit J - Form of Subsidiary Guaranty
Exhibit K - Form of Contribution Agreement
Exhibit L - Form of Security Agreement
Exhibit M - Form of Pledge Agreement
Schedules:
Schedule 1.1 - Subordinated Debt
Schedule 1.1(a)- Real Property
Schedule 5.3 - Audits
Schedule 5.4 - Litigation
Schedule 5.6 - Margin Stock
Schedule 5.8 - Indebtedness For Money Borrowed
Schedule 5.9 - Conflicting Agreements
Schedule 5.14 - Labor Relations
Schedule 5.16 - Subsidiaries
Schedule 7.3 - Liens
Schedule 7.4 - Investments
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 4, 1998, 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 as are, or may from time
to time become, parties hereto (collectively, the "Lenders"
and individually, a "Lender"), and COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK
BRANCH ("Rabobank") as Agent for the Lenders.
W I T N E S S E T H:
WHEREAS, at the request of the Borrower, the Lenders have
agreed to provide certain credit facilities to the Borrower on
the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the sum of $10.00 in
hand paid by the Lenders to the Borrower, and for other good
and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending
to be legally bound, agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. In addition to the other
terms defined herein, the following terms used herein shall
have the meanings herein specified (to be equally applicable
to both the singular and plural forms of the terms defined
herein):
"ADM Shares" shall mean the 3,161,101 shares of the
common stock of Archer-Daniel-Midland Company owned by GK
Finance.
"Advance" shall mean any principal amount advanced and
remaining outstanding at any time by the Lenders under (a) the
Revolving Credit Commitment, (b) the 364-Day Line of Credit
Commitment, or (c) the Term Loan Commitment.
"Affiliate" shall mean, with respect to any Person, a
Person directly or indirectly controlling or controlled by, or
under direct or indirect common control with, such Person. A
Person shall be deemed to be "controlled by" any other Person
if such other Person possesses, directly or indirectly, the
power (a) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such
Person or (b) to direct or cause the direction of the
management and policies of such corporation, whether through
the ownership of voting securities, by contract or otherwise.
Additionally, for purposes of this Agreement, Golden Peanut
and Young Pecan shall be considered Affiliates of the Borrower
and its Subsidiaries notwithstanding anything else to the
contrary contained herein.
"Agent" shall mean Rabobank, as agent for the Lenders
hereunder and under the other Loan Documents, and each
successor agent appointed in accordance with Section 9.8 of
this Agreement.
"Agreement" shall mean this Credit Agreement, either as
originally executed or as it may be from time to time supple
mented, amended, restated, renewed, extended or otherwise
modified.
"Agri Services Purchase Agreement" means the Agreement,
dated as of July 23, 1998, pursuant to which the Borrower
will sell certain assets of the Borrower to Southern States
Cooperative, Inc., and "Agri Services Assets" means the assets
subject to the Agreement.
"Applicable Percentage" shall mean:
(a) with respect to the Revolving Loans and the
facility fee due with respect thereto, on a per annum basis,
the percentage designated below under the applicable column
heading and corresponding to the ratio of Consolidated Funded
Debt to Total Capital:
Consolidated Funded Revolving Facility
Debt to Total Capital Loans Fee
Less than 40% 1.00% 0.25%
Greater than or equal to
40% but less than 50% 1.125% 0.25%
Greater than or equal to
50% but less than 60% 1.20% 0.30%
Greater than or equal to 60% 1.525% 0.35%
(b) with respect to the 364-Day Loans and the facility
fee due with respect thereto, on a per annum basis, the
percentage designated below under the applicable column
heading and corresponding to the ratio of Consolidated Funded
Debt to Total Capital:
Consolidated Funded 364-Day Facility
Debt to Total Capital Loans Fee
Less than 40% 1.05% 0.20%
Greater than or equal to
40% but less than 50% 1.175% 0.20%
Greater than or equal to
50% but less than 60% 1.25% 0.25%
Greater than or equal to 60% 1.575% 0.30%
(c) with respect to the Term Loans for all periods
prior to December 1, 1998, the rate as agreed to from time to
time by the Borrower and the Term Loan Lender ;
provided, however, that if the Term Loans have not been repaid
in full on or before November 30, 1998, (i) the Applicable
Percentage for the Revolving Loans and the facility fee due
with respect thereto and the Applicable Percentage for the 364-
Day Loans and the facility fee due with respect thereto shall
in each instance be .10% greater than that set forth above,
and (ii) the Applicable Percentage for the Term Loans shall
be, on a per annum basis, the percentage designated below
under the applicable column heading and corresponding to the
ratio of Consolidated Funded Debt to Total Capital:
Consolidated Funded
Debt to Total Capital
Less than 40% 1.75%
Greater than or equal to
40% but less than 50% 1.875%
Greater than or equal to
50% but less than 60% 2.00%
Greater than or equal to 60% 2.375%
The Applicable Percentage for the Revolving Loans, the 364-Day
Loans and the Term Loans shall be determined quarterly (and
the rate determined at that time shall apply until the next
quarterly determination) based upon the ratio of Consolidated
Funded Debt to Total Capital determined pursuant to the
financial statements delivered to the Lenders pursuant to
Section 6.1(a) or Section 6.1(b) hereof, as the case may be,
with such Applicable Percentage to be effective with respect
to calculations based upon such financial statements as of the
first day of the second fiscal quarter immediately following
the fiscal quarter for which such financial statements are
delivered; provided, however, that (i) with respect to the
Revolving Loans, the Applicable Percentage from the Closing
Date until November 15, 1998 shall be 1.00% for Revolving
Loans, and 0.25% for the facility fee, and (ii) with respect
to the 364-Day Loans, the Applicable Percentage from the
Closing Date until November 15, 1998 shall be 1.05% for 364-
Day Loans, and 0.20% for the facility fee. Notwithstanding
the foregoing, in the event that the financial statements
required to be delivered pursuant to Section 6.1(a) and
Section 6.1(b), as applicable, and the related compliance
certificate required to be delivered in connection therewith,
are not delivered when due, then (x) if such financial
statements and certificate are delivered after the date such
financial statements and certificate were required to be
delivered and the Applicable Percentage increases from that
previously in effect as a result of the delivery of such
financial statements, then the Applicable Percentage during
the period from the date upon which such financial statements
were required to be delivered until the date upon which they
actually are delivered shall be the Applicable Percentage as
so increased and (y) if such financial statements and
certificate are delivered after the date such financial
statements and certificate were required to be delivered and
the Applicable Percentage decreases from that previously in
effect as a result of the delivery of such financial
statements, then such decrease in the Applicable Percentage
shall not become applicable until the date upon which the
financial statements and certificate are actually delivered.
"Assignment and Acceptance" shall mean an assignment and
acceptance agreement entered into by a Lender and an Eligible
Assignee in accordance with the terms and conditions of this
Agreement and substantially in the form of Exhibit H attached
hereto.
"Base Rate" shall mean the higher of (a) the Rabobank
Base Rate or (b) the Federal Funds Rate plus one-half of one
percent (0.5%) per annum.
"Base Rate Advance" shall mean any Advance hereunder that
bears interest based on the Base Rate.
"Base Rate Borrowing" shall mean any Borrowing hereunder
that bears interest based on the Base Rate.
"Borrowing" shall mean the incurrence by the Borrower
under any Facility of Advances of one Type concurrently having
the same Interest Period or the continuation or conversion of
an existing Borrowing or Borrowings in whole or in part.
"Borrowing Base" shall mean, as of the last day of any
calendar month, an amount equal to the sum of : (i) 80% of all
Eligible Receivables as of such date of determination; plus
(ii) 50% of Eligible Inventory as of such date of
determination; plus (iii) during any period that the Lenders
have a perfected, first priority security interest in the ADM
Shares, 80% of the Market Value of ADM Shares as of such date
of determination; provided however, that prior to December 1,
1998, the Borrowing Base shall not include any amounts
attributable to the Agri Services Assets.
"Borrowing Base Certificate" shall mean a certificate,
duly executed by the chief financial officer, chief accounting
officer or treasurer of the Borrower, appropriately completed
and substantially in the form of Exhibit I hereto.
"Business Day" shall mean, (a) with respect to Eurodollar
Borrowings, any day other than a Saturday or Sunday or a day
on which commercial banks are required or permitted to be
closed for domestic and international business, including
dealings in Dollar deposits, in London, England, New York, New
York, and Atlanta, Georgia and (b) with respect to all other
Borrowings and as used in all other contexts, any day other
than a Saturday or Sunday or a day on which commercial banks
are required or permitted to be closed for business in
Atlanta, Georgia or New York, New York.
"Capital Asset" shall mean fixed assets, both tangible
and intangible; provided that Capital Asset shall not include
any item customarily charged directly to expense or
depreciated over a useful life of twelve (12) months or less
in accordance with GAAP, and shall not include any good will
created on the balance sheet of the Borrower from the purchase
of the common stock of Golden Poultry Company, Inc..
"Capital Expenditures" shall mean amounts paid or
indebtedness incurred by the Borrower or any of its
Subsidiaries in connection with the purchase or lease by the
Borrower or any of its Subsidiaries of Capital Assets that
would be required to be capitalized and shown on the balance
sheet of such Person in accordance with GAAP.
"Capital Lease" shall mean any lease or rental of real or
personal property which, under GAAP, is or will be required to
be capitalized on the balance sheet of the Borrower or any
Subsidiary, taken at the amount thereof accounted for as
indebtedness (net of interest expense) in accordance with such
principles.
"Closing Date" shall mean the date which this Credit
Agreement is dated.
"CoBank Loans" shall mean the advances made pursuant to
(i) that certain Master Loan Agreement, dated as of August 1,
1996, between the Borrower and CoBank, ACB, as amended
December 23, 1997, (ii) that certain multiple Advance Term
Loan Supplement dated September 1, 1997 between the Borrower
and CoBank, and (iii) that certain Uncommitted Revolving
Credit Supplement dated December 23, 1997 between the Borrower
and CoBank.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral Documents" shall mean the Security Agreement,
the Pledge Agreement, and the Real Property Mortgages.
"Commitments" shall mean, at any time for any Lender,
such Lender's (a) Revolving Credit Commitment, (b) 364-Day
Line of Credit Commitment, and (c) Term Loan Commitment.
"Consolidated Current Assets" shall mean the current
assets of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" shall mean the current
liabilities of the Borrower and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP.
"Consolidated Funded Debt" shall mean (a) Funded Debt of
the Borrower and its Subsidiaries, plus (b) the Funded Debt of
any other Person which (i) has been guaranteed by the Borrower
or any Subsidiary or (ii) is supported by a letter of credit
issued for the account of the Borrower or any Subsidiary, all
consolidated in accordance with GAAP; provided that
Consolidated Funded Debt shall not include any amount
outstanding under the Term Loans until December 31, 1998.
"Consolidated Interest Expense" shall mean, for any
period, total interest expense for such period of the Borrower
and its Subsidiaries (including without limitation, interest
expense attributable to Capital Leases in accordance with
GAAP, all commissions, discounts and other fees and charges
owed with respect to bankers acceptance financing, and total
interest expense (whether shown as interest expense or as loss
and expenses on sale of receivables) under a receivables
purchase facility) determined on a consolidated basis in
accordance with GAAP.
"Consolidated Lease Expense" shall mean, for any period,
the total rental obligations under operating leases for such
period of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Earnings" shall mean consolidated gross
revenues of the Borrower and its Subsidiaries before
extraordinary items (but after giving effect to the credit
resulting from any tax loss carry forwards) less all operating
and non-operating expenses of the Borrower and its
Subsidiaries including all charges of a proper character
(including current and deferred taxes on income and current
additions to reserves but excluding equity losses of Golden
Peanut and Young Pecan, if any), but not including in gross
revenues any gains (net of expenses and taxes applicable
thereto) in excess of losses resulting from the sale,
conversion or other disposition of capital assets (i.e.,
assets other than current assets), any gains resulting from
the write-up of assets, any equity of the Borrower or any
Subsidiary in the unremitted earnings of any corporation which
is not a Subsidiary or any earnings of any Person acquired by
the Borrower or any Subsidiary through purchase, merger or
consolidation or otherwise for any year prior to the year of
acquisition, or any deferred credit representing the excess of
equity in any Subsidiary at the date of acquisition over the
cost of investment in such Subsidiary; all determined in
accordance with GAAP.
"Consolidated Net Worth" shall mean the net worth of the
Borrower and its Subsidiaries, consolidated in accordance with
GAAP.
"Consolidated Senior Debt" shall mean the sum of (a)
Consolidated Funded Debt, plus (b) all outstandings under the
364-Day Line of Credit Commitment (to the extent not already
included in Consolidated Funded Debt), less (c) any
obligations under the Rabobank Total Return Swap (to the
extent included in Consolidated Funded Debt), and less (d) any
amounts outstanding under any subordinated certificates issued
by the Borrower (to the extent included in Consolidated
Funded Debt).
"Consolidated Tangible Net Worth" shall mean Consolidated
Net Worth, less the intangible assets of the Borrower and its
Subsidiaries, but including the good will (as reflected on the
Borrower's financial statements delivered pursuant to Section
6.1 hereof from time to time but not to exceed $23,900,000)
created in connection with the acquisition by the Borrower of
the outstanding equity of Golden Poultry Company, Inc. in
September, 1997.
"Consolidated Total Assets" shall mean all assets of the
Borrower and its Subsidiaries, consolidated in accordance with
GAAP.
"Consolidated Total Capital Assets" shall mean all
Capital Assets of the Borrower and its Subsidiaries,
consolidated in accordance with GAAP.
"Current Debt" shall mean any indebtedness for money
borrowed (including subordinated loan certificates, bankers
acceptances, commodity discount loans, and notes payable and
drafts accepted representing extensions of credit whether or
not representing obligations for borrowed money, but excluding
the current portion of Funded Debt) payable on demand or
within a period of one year from the date of the creation
thereof; provided that any obligation shall be treated as
Funded Debt, regardless of its term, if such obligation is
renewable pursuant to the terms thereof or of a revolving
credit or similar agreement effective for more than one year
after the date of creation of such obligation, or may be
payable out of the proceeds of a similar obligation pursuant
to the terms of such obligation or of any such agreement. Any
obligation secured by a Lien on, or payable out of the
proceeds of production from, property of the company or any
Subsidiary shall be deemed to be Funded Debt or Current Debt,
as the case may be, of the Borrower or such Subsidiary even
though such obligation shall not be assumed by the Borrower
or such Subsidiary.
"Debt" shall mean Funded Debt and Current Debt.
"Default" shall mean any event that, with notice or lapse
of time or both, would constitute an Event of Default.
"Dollar" and the sign "$" shall mean lawful money of the
United States of America.
"EBIT" shall mean for the Borrower and the Subsidiaries,
for any period, an amount equal to (a) the sum for such period
of Consolidated Net Earnings plus, to the extent subtracted in
determining such Consolidated Net Earnings, provisions for
taxes based on income and Consolidated Interest Expense, minus
(b) any items of gain or plus any items of loss, which were
included in determining such Consolidated Net Earnings and
were (1) not realized in the ordinary course of business or
(2) the result of any sale of assets.
"EBITDA" shall mean for the Borrower and the
Subsidiaries, for any period, an amount equal to the sum of
(a) EBIT for such period, plus (b) depreciation and
amortization of assets for such period.
"Eligible Assignee" shall mean (i) a commercial finance
or asset based lending institution having total assets in
excess of $1,000,000,000 or any commercial finance or asset
based lending Affiliate of any such Person or (ii) any Lender
or any Affiliate of any Lender.
"Eligible Inventory" shall mean the gross amount of the
Borrower's inventory (valued at the lower of cost or market
and without adjustment for reserves for items of inventory
which are accounted for on a last in first out basis) that
conforms to the representations and warranties contained
herein and in the Security Agreement and which at all times
continue to be acceptable to the Required Lenders in the
exercise of their reasonable business judgment less any
work-in-process, supplies (other than raw materials), live
hogs or live chickens, goods not present in the United States
of America, goods returned or rejected by the Borrower's
customers other than goods that are undamaged and resalable in
the normal course of business, goods to be returned to the
Borrower's suppliers, goods in transit to third parties (other
than the Borrower's agents or warehouses) and less any
reserves required by the Required Lenders in their reasonable
business judgment for special order goods, market value
declines and bill and hold (deferred shipment) or consignment
sales.
"Eligible Receivables" shall mean the gross amount of the
Borrower's accounts receivable that conform to the
representations and warranties contained herein and in the
Security Agreement and at all times continue to be acceptable
to the Required Lenders in the exercise of their reasonable
business judgment, less, without duplication, the sum of (1)
any returns, discounts, claims, credits and allowances of any
nature (whether issued, owing, granted or outstanding), (2)
the gross amount of any account receivable that: (i) arises
from sales to the United States of America or to any agency,
department or division thereof unless payment therefor is
secured to the Lenders pursuant to compliance with the United
States Assignment of Claims Act or is otherwise acceptable to
the Lenders, to the extent that such receivable, when
aggregated with all similar such receivables that are deemed
Eligible Receivables, exceeds in the aggregate $10,000,000 in
face amount; (ii) arises from foreign sales other than sales
secured by letters of credit (in form and substance
satisfactory to the Required Lenders) issued or confirmed by,
and payable at, banks having a place of business in the United
States of America and payable in United States currency; (iii)
remains unpaid more than ninety (90) days from invoice date;
(iv) has a contra account; (v) arises from sales to any
Subsidiary, or to any Affiliate; (vi) arises from bill and
hold (deferred shipment) sales, or consignment sales; (vii)
arises from sales to any customer which is (A) insolvent, (B)
the debtor in any bankruptcy, insolvency, arrangement,
reorganization, receivership or similar proceedings under any
federal or state law, (C) negotiating, or has called a meeting
of its creditors for purposes of negotiating, a compromise of
its debts or (D) financially unacceptable to the Required
Lenders or has a credit rating unacceptable to the Required
Lenders; (viii) arises from sales to any customer if fifty
percent (50%) or more of either (A) all outstanding invoices
of such customer or (B) the aggregate dollar amount of all
outstanding invoices of such customer are unpaid more than
ninety (90) days from invoice date; (ix) is evidenced by a
promissory note or other instrument, or (x) is deemed
ineligible for any other reasons deemed necessary by the
Required Lenders in their reasonable business judgment and
which are customary either in the commercial finance industry
or in the lending practices of the Required Lenders, and (3)
an amount representing, historically, returns, discounts,
claims, credits, and allowances.
"Environmental Laws" shall mean all federal, state, local
and foreign statutes and codes or regulations, rules or
ordinances issued, promulgated, or approved thereunder, now or
hereafter in effect (including, without limitation, those with
respect to asbestos or asbestos containing material or
exposure to asbestos or asbestos containing material),
relating to pollution or protection of the environment and
relating to public health and safety, relating to (i)
emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or industrial toxic or
hazardous constituents, substances or wastes, including,
without limitation, any Hazardous Substances, petroleum,
including crude oil or any fraction thereof, any petroleum
product or other waste, chemicals or substances regulated by
any Environmental Law into the environment (including, without
limitation, ambient air, surface water, ground water, land
surface or subsurface strata), or (ii) the manufacture,
processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of any Hazardous Substances,
petroleum, including crude oil or any fraction thereof, any
petroleum product or other waste, chemicals or substances
regulated by any Environmental Law, and (iii) underground
storage tanks and related piping, and emissions, discharges
and releases or threatened releases therefrom, such
Environmental Laws to include, without limitation, (i) the
Clean Air Act (42 U.S.C. ' 7401 et seq.), (ii) the Clean Water
Act (33 U.S.C. ' 1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. ' 6901 et seq.), (iv)
the Toxic Substances Control Act (15 U.S.C. ' 2601 et seq.),
and (v) the Comprehensive Environmental Response Compensation
and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act (42 U.S.C. ' 9601 et seq.).
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"ERISA Affiliate" shall mean any trade or business
(whether incorporated or unincorporated) which is a member of
a group described in Section 414(c) of the Code, of which the
Borrower is also a member.
"Escrow Agreement" shall mean the Agreement executed and
delivered by the Borrower to the Agent (in its capacity as
Collateral Agent for the Lenders and certain other parties)
pursuant to which the Agent is authorized and directed to file
the Real Property Mortgages in the appropriate real property
records upon the happening of certain events as set forth in
the Escrow Agreement.
"Eurodollar Advance" shall mean any Advance hereunder
which bears interest based on LIBOR.
"Eurodollar Borrowing" shall mean any Borrowing hereunder
which bears interest based on LIBOR.
"Event of Default" shall have the meaning set forth in
Article 8.
"Excess Cash Flow" shall mean, for any period, the sum of
net income and depreciation, less Capital Expenditures, less
required repayments of Debt paid (other than required
repayments of Debt that are refinanced), less cash patronage
dividends, less present value cashing and death payments (net
of insurance proceeds received).
"Facility" shall mean the credit facilities established
by the Lenders under Article 2 of this Agreement.
"Federal Funds Rate" shall mean for any period, a fluc
tuating interest rate per annum equal for each day during such
period to the weighted average of the rates on overnight
Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the
Agent.
"Fee Letter" shall mean the fee letter dated July 2, 1998
addressed by Rabobank to the Borrower and accepted and agreed
to by the Borrower.
"Fixed Rate Advance" shall mean any Advance which is a
Eurodollar Advance.
"Funded Debt" shall mean, as to any Person, and include
without duplication:
(a) all Indebtedness for money borrowed, including,
without limitation, purchase money mortgages, Capital
Leases, any asset securitization programs that are not
non-recourse, conditional sales contracts and similar
title retention debt instruments (including any current
maturities of such indebtedness) payable more than one
year from the date of calculation thereof or which is
renewable under any revolving or similar agreement,
which under GAAP is shown on the balance sheet as a
liability (but excluding reserves for deferred income
taxes and other reserves to the extent such reserves do
not constitute an obligation); and
(b) Guarantees, endorsements (other than endorsements of
negotiable instruments for collection in the ordinary
course of business) and other contingent liabilities
(whether direct or indirect) in connection with the
obligations, stock or dividends of any other Person; and
(c) obligations under any other contract in connection
with any borrowing which, in effect, is substantially
equivalent to a guarantee (other than obligations of
Young Pecan, Golden Peanut and S.G. Williams); and
(d) obligations with respect to any redeemable preferred
stock which is required or scheduled to be redeemed
within one year from the date of calculation; and
(e) obligations outstanding under the 364-Day Loans and
under any other credit facility with a maturity of less
than one year, to the extent that such obligations exceed
eighty percent (80%) of the Borrower's inventory balance
as of the date of such calculation.
Any obligation secured by a Lien on, or payable out of the pro
ceeds of production from, property of the Borrower or any
Subsidiary shall be deemed to be Funded Debt or Current Debt,
as the case may be, of the Borrower or such Subsidiary even
though such obligation shall not be assumed by the Borrower or
such Subsidiary.
"GAAP" shall mean generally accepted accounting
principles as set forth in statements from Auditing Standards
No. 69 issued by the Auditing Standards Board of the American
Institute of Certified Public Accountants as well as
statements and pronouncements of the Financial Accounting
Standards Board that are applicable, in each case as such
principles are supplemented and amended from time to time.
"GC Properties" shall mean GC Properties, a general
partnership formed under the laws of the State of Georgia,
with the Borrower and Cotton States Insurance Companies acting
as the general partners.
"GK Finance" shall mean GK Finance Corporation, a
corporation organized and existing under the laws of the State
of Delaware, which is a wholly-owned Subsidiary of the
Borrower.
"Golden Peanut" shall mean Golden Peanut Company, a
general partnership formed under the laws of the State of
Georgia with the Borrower, Alimenta (USA), Inc., a Florida
corporation, and Archer-Daniels-Midland Company, a Delaware
corporation, acting as general partners.
"Guaranty" shall mean any contractual obligation, con
tingent or otherwise, of a Person with respect to any
Indebtedness or other obligation or liability of another
Person, including without limitation, any such Indebtedness,
obligation or liability directly or indirectly guaranteed,
endorsed, co-made or discounted or sold with recourse by that
Person, or in respect of which that Person is otherwise
directly or indirectly liable, including contractual
obligations (contingent or otherwise) arising through any
agreement to purchase, repurchase, or otherwise acquire such
Indebtedness, obligation or liability or any security
therefor, or any agreement to provide funds for the payment or
discharge thereof (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise), or to
maintain solvency, assets, level of income, or other financial
condition, or to make any payment other than for value
received. The amount of any Guaranty shall be deemed to be an
amount equal to the stated or determinable amount of the
primary obligation in respect of which guaranty is made or, if
not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person
is required to perform thereunder) as determined by such
Person in good faith.
"Hazardous Substances" shall have the meaning assigned to
that term in the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Acts of 1986.
"Hedging Contracts" shall mean any forward contracts
(whether executed through a broker or directly with the buyer
or seller), futures contracts, option contracts, foreign
exchange contracts, currency swap agreements, interest rate
exchange agreements, interest rate cap agreements, interest
rate collar agreements, and other similar agreements and
arrangements entered into by any Person designed to protect
against fluctuations in either foreign exchange rates,
interest rates, or commodity prices.
"Hedging Position Report" shall mean a report, in form
and substance as agreed to by the Borrower and the Agent, on
the Borrower's Hedging Contracts.
"Indebtedness" of any Person shall mean, without dupli
cation (i) all obligations of such Person which in accordance
with GAAP would be shown on the balance sheet of such Person
as a liability (including, without limitation, obligations for
borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures,
notes or other similar instruments); (ii) all rental
obligations under leases required to be capitalized under
GAAP; (iii) all Guaranties of such Person (including
contingent reimbursement obligations under undrawn letters of
credit); (iv) Indebtedness of others secured by any Lien upon
property owned by such Person, whether or not assumed; and
(v) obligations or other liabilities under Hedging Contracts,
or similar agreements or combinations thereof which are
disclosed as liabilities on the balance sheet of such Person
in accordance with GAAP.
"Indemnitee" has the meaning set forth in Section 10.4 of
this Agreement.
"Interest Period" shall mean, with respect to any Euro
dollar Borrowing, a period of 1, 2, 3 or 6 months; provided,
that (i) the first day of an Interest Period must be a
Business Day, (ii) any Interest Period that would otherwise
end on a day that is not a Business Day shall be extended to
the next succeeding Business Day, unless such Business Day
falls in the next calendar month, in which case the Interest
Period shall end on the next preceding Business Day, (iii) any
Interest Period in respect of a Eurodollar Borrowing which
begins on a day for which there is no numerically
corresponding day in the calender month at the end of such
Interest Period shall expire on the last Business Day of such
calender month and (iv) the Borrower may not elect an Interest
Period which would extend beyond the Maturity Date which
relates to the Commitment under which the Borrower is
borrowing.
"LIBOR" shall mean, with respect to any Interest Period,
for any Eurodollar Advances, the rate per annum equal to the
sum of the rate obtained by dividing (a) the offered rate for
deposits for a period comparable to the Interest Period and in
an amount comparable to the Agent's portion of such Eurodollar
Advances, appearing on Telerate Page 3750 as of 11:00 A.M.
(London, England time) on the day that is two Business Days
prior to the first day of the Interest Period by (b) a
percentage equal to 1 minus the then stated maximum rate
(stated as a decimal) of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental,
special or other reserves) applicable to any member bank of
the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or against any
successor category of liabilities as defined in Regulation D).
If the foregoing rate is unavailable from Telerate for any
reason, then such rate shall be determined by the Agent from
any other interest rate reporting service of recognized
standing designated in writing by the Agent to the Borrower
and the other Lenders. If two or more rates appear on such
Telerate page, then the rate per annum for that Interest
Period shall be the arithmetic average of such rates. In any
case, such rate shall be rounded, if necessary, to the next
higher 1/16 of one percent if the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind (including
any written agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any lease
in the nature thereof, and the filing of or agreement to give
any financing statement under the Uniform Commercial Code of
any jurisdiction).
"Loan Documents" shall mean and include, as the context
requires, this Agreement, the Notes, the Collateral Documents,
the Subsidiary Guaranty, and any and all other instruments,
agreements, documents and writings contemplated hereby or
executed in connection herewith.
"Loans" shall mean, collectively, any Loan made by a
Lender pursuant to Section 2.1 of this Agreement.
"Market Value of ADM Shares" shall mean the closing price
of Archer-Daniels-Midland Company common stock from time to
time as published in the most recent edition of The Wall
Street Journal, times the number of shares of common stock of
Archer-Daniels-Midland Company in which the Lenders have a
perfected, first priority security interest.
.
"Material Adverse Effect" shall mean any material adverse
change in (i) the business, results of operations, financial
condition, assets or prospects of the Borrower and the
Subsidiaries, taken as a whole, (ii) the ability of Borrower
or the Subsidiaries to perform their obligations under this
Agreement, (iii) the validity or enforceability of the Loan
Documents, or (iv) the rights or remedies of the Lenders or
the Agent under any of the Loan Documents .
"Maturity Date" shall mean, as the context requires, any
or all of (a) the Revolving Loan Maturity Date, (b) the
364-Day Loan Maturity Date, or (c) the Term Loan Maturity
Date.
"Money Borrowed" shall mean, as applied to the
Indebtedness of a Person,
(a) Indebtedness for money borrowed including all
revolving and term Indebtedness and all other lines of
credit; or
(b) Indebtedness (other than trade debt of such Person
incurred in the ordinary course of business), whether or
not in any such case the same was for money borrowed:
(i) represented by notes payable, and drafts
accepted, that represent extensions of credit;
(ii) constituting obligations evidenced by bonds,
debentures, notes or similar instruments; or
(iii) constituting purchase money indebtedness,
conditional sales contracts, title retention debt
instruments or other similar instruments upon which
interest charges are customarily paid or that are
issued or assumed as full or partial payment for
property; or
(c) all reimbursement obligations under any letters of
credit or acceptances; or
(d) Indebtedness that is such by virtue of subsection
(iii) of the definition of Indebtedness, but only to the
extent that the obligations guaranteed are obligations
that would constitute Indebtedness for Money Borrowed.
"Multiemployer Plan" shall mean any Plan which is a
"multiemployer plan" (as such term is defined in Section 4001
of ERISA).
"Net Proceeds of Capital Stock" shall mean any proceeds
received by the Borrower or a Consolidated Subsidiary in
respect of the issuance of Capital Stock, after deducting
therefrom all reasonable and customary costs and expenses
incurred by the Borrower or such Consolidated Subsidiary
directly in connection with the issuance of such Capital
Stock, including without limitation any underwriter's
discounts and commissions.
"Notes" shall mean, collectively, the Revolving Notes,
the 364-Day Notes, and the Term Notes, either as originally
executed or as any of them may be from time to time
supplemented, modified, amended, renewed or extended, and
shall not be deemed to include any notes of the Borrower or
any Subsidiary issued other than pursuant to this Agreement.
"Notice of Borrowing" has the meaning set forth in
Section 3.6(a)(i) of this Agreement.
"Notice of Continuation/Conversion" has the meaning set
forth in Section 3.6(b) of this Agreement.
"Officer's Certificate" shall mean a certificate signed
in the name of the Borrower by its President, one of its Vice
Presidents or its Treasurer.
"Payment Office" shall mean with respect to any payment
of principal, interest, fees or other amounts relating to any
Loans, the office specified as the "Payment Office" for the
Agent and each Lender on the respective signature pages of the
Agent and the Lenders, or such other location as to which the
Agent or any Lender shall have given written notice to the
Borrower.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation.
"Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an
unincorporated organization, a government or any department or
agency thereof and any other entity whatsoever.
"Plan" shall mean an "employee pension benefit plan" (as
defined in Section 3 of ERISA), which is or has been
established or maintained, or to which contributions are or
have been made, by the Borrower, any Subsidiary, or any ERISA
Affiliate.
"Pledge Agreement" shall mean that certain pledge
agreement, granting a security interest in the ADM Shares to
the Lenders, executed and delivered by GK Finance and in the
form set forth in Exhibit M.
"Pro Rata Share" shall mean, with respect to each
Commitment of each Lender, each Loan to be made by, and each
payment (including, without limitation, any payment of prin
cipal, interest or fees) to be made to each Lender with
respect to such Loan, the percentage designated as such
Lender's Pro Rata Share of such Commitment, such Loan or such
payments, as applicable, set forth under the name of such
Lender on the respective signature page for such Lender, in
each case as such Pro Rata Share may change from time to time
as a result of assignments or amendments made pursuant to this
Agreement.
"Prudential Loans" shall mean the advances made to the
Borrower pursuant to that certain Note Purchase and Private
Shelf Agreement dated February 11, 1997, with The Prudential
Insurance Company of America ("Prudential"), those certain
Note Agreements dated November 4, 1988 and June 3, 1991 with
Prudential, and that certain Note Agreement dated November 4,
1988 with Pruco Life Insurance Company.
"Rabobank" has the meaning set forth in the preamble of
this Agreement.
"Rabobank Base Rate" shall mean the per annum rate of
interest designated from time to time by Rabobank to be its
base rate, with any change in the rate of interest resulting
from a change in the Rabobank Base Rate to be effective as of
the opening of business of Rabobank on the day of such change;
provided, however, that the Rabobank Base Rate is a reference
rate and does not necessarily represent the lowest or best
rate charged to customers and that Rabobank may make loans at
a rate of interest at, above or below the Rabobank Base Rate.
"Rabobank Total Return Swap" shall mean the total return
swap involving the ADM Shares as described in that certain
letter and term sheet from Rabobank to the Borrower dated
March 3, 1998.
"Real Property" shall mean those parcels of real property
listed on Schedule 1.1(a) hereto.
"Real Property Mortgages" shall mean those deeds to
secure debt, mortgages, deeds of trust and other instruments
executed by the Borrower for the purpose of granting to the
Lenders a lien on or other security interest in the Real
Property.
"Reportable Event" shall mean an event described in
Section 4043(b) of ERISA with respect to which the 30-day
notice requirement has not been waived by the PBGC.
"Reported Net Income" shall mean, for any period, the
Net Income as reflected on the financial statements delivered
pursuant to Section 6.1 hereof.
"Required Lenders" shall mean, at any time, any Lender or
group of Lenders holding at least 66 2/3% of the sum of the
Commitments, whether or not advanced.
"Restricted Payments" has the meaning set forth in
Section 7.2 of this Agreement.
"Revolving Credit Commitment" shall mean, at any time for
any Lender, the amount set forth opposite such Lender's name
on the signature pages hereof under the heading "Revolving
Credit Commitment", as the same may be increased or decreased
from time to time as a result of any reduction thereof
pursuant to Section 3.3 of this Agreement, any assignment
thereof pursuant to Section 10.5 of this Agreement or any
amendment thereof pursuant to Section 10.2 of this Agreement.
"Revolving Loan Maturity Date" shall mean August 3, 2001,
or such later date as provided for in Section 3.4(a) of this
Agreement.
"Revolving Loans" shall mean, collectively, the revolving
credit loans made to the Borrower by the Lenders pursuant to
Section 2.1(a) of this Agreement.
"Revolving Notes" shall mean, collectively, the
promissory notes evidencing the Revolving Loans in
substantially the form of Exhibit A attached hereto, each
dated and delivered on the Closing Date.
"Security Agreement" shall mean the security agreement
substantially in the form of Exhibit L attached hereto.
"Shareholders' Equity" shall mean, with respect to any
Person as at any date of determination, shareholders' equity
of such Person determined on a consolidated basis in
conformity with GAAP.
"Subordinated Debt" shall mean all Indebtedness for money
borrowed wherein the principal and premium, if any, and
interest is subordinated and junior in right of payment to the
prior payment in full of all other Indebtedness of the
Borrower for money borrowed except other Subordinated Debt
including, but not limited to, the Subordinated Capital
Certificates of Interest, Subordinated Loan Certificates,
Subordinated Large Denomination Loan Certificates, and 5%
Cumulative Preferred Capital Certificates of Interest, issued
by the Borrower, an example of whose subordination provisions
is annexed hereto as Schedule 1.1.
"Subsidiary", of any Person, shall mean any other Person
at least a majority of the Voting Stock of which shall, at the
time as of which any determination is being made, be owned by
the Borrower either directly or through Subsidiaries.
"Subsidiary Guaranty" shall mean the Subsidiary Guaranty,
substantially in the form of Exhibit J.
"Taxes" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings
or other charges of whatever nature, including without
limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and
franchise taxes now or hereafter imposed or levied by the
United States, or any state, local or foreign government or by
any department, agency or other political subdivision or
taxing authority thereof or therein and all interest,
penalties, additions to tax and similar liabilities with
respect thereto.
"Term Loans" shall mean, collectively, the loans made to
the Borrower by the Lenders pursuant to Section 2.1(c) of this
Agreement.
"Term Loan Commitment" shall mean, for any Lender, the
amount set forth opposite such Lender's name on the signature
pages hereto under the heading "Term Loan Commitment, as the
same may be increased or decreased from time to time as a
result of any assignment thereof pursuant to Section 10.5 of
this Agreement or any amendment thereof pursuant to Section
10.2 of this Agreement."
"Term Loan Lender" shall have the meaning given the term
in Section 2.1(c) hereof.
"Term Loan Maturity Date" shall mean August 3, 2001.
"Term Notes" shall mean, collectively, the promissory
notes evidencing the Term Loans in substantially the form of
Exhibit C attached hereto, each dated and delivered on the
Closing Date.
"364-Day Line of Credit Commitment" shall mean, at any
time for any Lender, the amount set forth opposite such
Lender's name on the signature pages hereof under the heading
"364-Day Line of Credit Commitment", as the same may be
increased or decreased from time to time as a result of any
reduction thereof pursuant to Section 3.3 of this Agreement,
any assignment thereof pursuant to Section 10.5 of this
Agreement or any amendment thereof pursuant to Section 10.2 of
this Agreement.
"364-Day Loan Maturity Date" shall mean August 3, 1999,
or such later date as provided for in Section 3.4(b) of this
Agreement.
"364-Day Loans" shall mean, collectively, the revolving
credit loans made to the Borrower by the Lenders pursuant to
Section 2.1(b) of this Agreement.
"364-Day Notes" shall mean, collectively, the promissory
notes evidencing the 364-Day Loans in substantially the form
of Exhibit B attached hereto, each dated and delivered on the
Closing Date.
"Total Capital" shall mean the sum of Funded Debt and
Shareholders' Equity.
"Type" shall mean, with respect to a Borrowing, a
Borrowing consisting of Base Rate Advances or Eurodollar
Advances.
"Voting Stock" shall mean, with respect to any Person,
any shares of stock or other form of ownership interest of
such Person having general voting power under ordinary
circumstances to elect a majority of the Board of Directors 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).
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which
(except directors' qualifying shares) are at the time directly
owned by the Borrower or by a Wholly Owned Subsidiary of the
Borrower.
"Young Pecan" shall mean Young Pecan Company, a general
partnership formed under the laws of the State of South
Carolina with GK Pecans, Inc. and Y Pecans, Inc., a South
Carolina corporation, as general partners.
Section 1.2. Accounting Terms. All accounting terms
not specifically defined herein shall have the meanings
generally attributed to them under GAAP applied on a basis
consistent with the financial statements identified in Section
5.2 and the income and expense statements, the balance sheet
and the statements of income and cash flow furnished to the
Agent pursuant to Section 6.1.
Section 1.3. Use of Defined Terms. All defined terms
used in the plural preceded by the definite article shall be
taken to encompass all members of the relevant class. Any
defined term used in the singular preceded by "any" shall be
taken to indicate any number of the members of the relevant
class.
ARTICLE 2.
CREDIT FACILITIES
Section 2.1. The Loans.
(a) Revolving Credit Commitment. Subject to and upon
the terms and conditions herein set forth, each Lender
severally establishes in favor of the Borrower from the period
beginning on the Closing Date up to but excluding the
Revolving Loan Maturity Date, its Revolving Credit Commitment.
Each Lender, subject to and upon the terms and conditions set
forth herein, from time to time, agrees to make to the
Borrower Revolving Loans in an aggregate amount outstanding at
any time not to exceed such Lender's Revolving Credit
Commitment. Subject to the terms and conditions contained in
this Agreement, the Borrower shall be entitled to borrow,
repay and reborrow Revolving Loans; provided, however, that
the Borrower may neither borrow nor reborrow should there
exist a Default or an Event of Default. Additionally, each
Revolving Loan shall be in an aggregate amount of $1,000,000
or integral multiples of $100,000 in excess thereof.
(b) 364-Day Line of Credit Commitment. Subject to and
upon the terms and conditions herein set forth, each Lender
severally establishes in favor of the Borrower from the period
beginning on the Closing Date up to but excluding the 364-Day
Loan Maturity Date, its 364-Day Line of Credit Commitment.
Each Lender, subject to and upon the terms and conditions set
forth herein, from time to time, agrees to make to the
Borrower 364-Day Loans in an aggregate amount outstanding at
any time not to exceed such Lender's 364-Day Line of Credit
Commitment, less any Bid Rate Loans outstanding from such
Lender. Subject to the terms and conditions contained in
this Agreement, the Borrower shall be entitled to borrow,
repay and reborrow 364-Day Loans; provided, however, that the
Borrower may neither borrow nor reborrow should there exist a
Default or an Event of Default. Additionally, each 364-Day
Loan shall be in an aggregate amount of $1,000,000 or integral
multiples of $100,000 in excess thereof.
(c) Term Loan Commitment. Subject to and upon the terms
and conditions herein set forth, each Lender with a Term Loan
Commitment ( each a "Term Loan Lender") severally establishes
in favor of the Borrower its Term Loan Commitment. Each Term
Loan Lender, subject to and upon the terms and conditions set
forth herein, agrees to lend to the Borrower on the Closing
Date a Term Loan in an aggregate amount each to such Term Loan
Lender's Term Loan Commitment. The Term Loan shall be funded
in a single drawing. Amounts borrowed under this Section
2.1(c) and repaid may not be reborrowed, except solely to the
extent the Term Loan is refunded from time to time as a Base
Rate Borrowing or a Eurodollar Borrowing.
ARTICLE 3.
GENERAL LOAN TERMS
Section 3.1. Notes; Repayment of Principal.
(a) The Borrower's obligations to pay the principal of,
and interest on, the Loans to each Lender shall be evidenced
by the records of the Agent and such Lender and by Notes
payable to such Lender.
(b) All outstanding principal amounts under the
Revolving Loans, the 364-Day Loans, and the Term Loans shall
be due and payable in full on the earlier of (i) the
applicable Maturity Date or (ii) the date the Loans are ac
celerated in accordance with the terms and conditions of Ar
ticle 8 of this Agreement.
(c) The Borrower shall repay the Term Loans in 3 annual
principal installments, as follows:
June 30, 1999 $10,000,000
June 30, 2000 $15,000,000
Term Loan Maturity Date $225,000,000 (or such
principal amount as may
then be unpaid).
(d) In the event the Agri Services Purchase Agreement is
consummated on or before November 30, 1998, (or on or before
such later date as may be designated by the Term Loan Lenders
in their sole discretion, but in no event later than December
31, 1998), the Borrower shall prepay the Term Loans in full on
the date of such closing.
(e) The Borrower also shall make mandatory prepayments
to the Term Loan Lenders annually in an amount equal to 100%
of the Excess Cash Flow for the preceding fiscal year. Each
such prepayment shall be payable on the date which is 120 days
after the end of each fiscal year, beginning on October 30,
1999, and shall be calculated based on the financial
statements delivered pursuant to Section 6.1(b) hereof.
(f) The Borrower shall make additional mandatory
prepayments to the Lenders in amounts equal to (i) 100% of
the net proceeds from any sale or other disposition, or series
of related sales or dispositions, by the Borrower of any
assets where the net proceeds exceed $1,000,000, other than
(x) the sale of assets contemplated by the Agri Services
Purchase Agreement, if such sale is consummated on or before
November 30, 1998, (or on or before such later date as may be
designated by the Term Loan Lenders as provided in clause (d)
above) and (y) the sale of inventory in the ordinary course of
business, and (ii) 100% of the net proceeds of any offering by
the Borrower of equity or subordinated debt (other than an
offering which increases the outstandings under the Borrower's
existing subordinated loan certificates or the subordinated
capital certificates).
(g) The mandatory prepayments required by subsection (f)
above shall be applied (i) if such prepayment is made prior to
December 1, 1998, first to the outstanding Revolving Loans and
then to the outstanding 364-Day Loans, and (ii) if such
prepayment is made on or after December 1, 1998, first pro
rata (based on outstanding principal) to the Term Loans and
the Revolving Loans and then to the outstanding 364-Day Loans.
Any mandatory prepayment of the Term Loans shall be applied to
the principal installments in inverse order of their maturity.
Notwithstanding the foregoing, if the Borrower sells or
otherwise disposes of assets which are included in the
Borrowing Base, the Borrower may apply such of the net
proceeds of such sale or disposition as may be necessary to
the repayment of the Revolving Loans or the 364-Day Loans so
that the aggregate amount outstanding under such Loans does
not exceed the Borrowing Base.
(h) If at any time: (A) the aggregate principal amount
of Revolving Loans, and 364-Day Loans, outstanding exceeds (B)
the Borrowing Base in effect at such time, then the Borrower
shall immediately pay to the Agent for the respective accounts
of the Lenders the amount of such excess. Such payment shall
be applied to pay first, all amounts of interest and principal
outstanding on the Revolving Loans, and second all amounts due
and owing on the 364-Day Loans. In the event the Borrower is
required to pay any outstanding Eurodollar Borrowings by
reason of this Section prior to the end of the applicable
Interest Period therefor, the Borrower shall indemnify each
Lender against the losses, costs and expenses described in
Section 3.16 incurred by such Lender.
Section 3.2. Amount Limitations. Notwithstanding any
other term of this Agreement or any other Loan Document to the
contrary, at no time may:
(a) the aggregate amount of all outstanding Revolving
Loans advanced under the Revolving Credit Commitments exceed
the aggregate amount of the Revolving Credit Commitments; or
(b) the aggregate amount of all outstanding 364-Day
Loans advanced under the 364-Day Line of Credit Commitments
exceed the aggregate amount of the 364-Day Line of Credit
Commitments; or
(c) the aggregate amount of all outstanding Revolving
Loans advanced under the Revolving Credit Commitments, plus
the aggregate amount of all outstanding 364-Day Loans advanced
under the 364-Day Line of Credit Commitments, exceed the
Borrowing Base in effect at such time. If such aggregate
outstanding amount does exceed the Borrowing Base, the
Borrower shall immediately repay the Revolving Loans and 364-
Day Loans by an aggregate amount equal to such excess,
together with all accrued but unpaid interest on such excess
amount and any amounts due under Section 3.16 of this
Agreement.
Section 3.3. Reduction of Commitments.
(a) Upon at least three Business Days' prior written
notice to the Agent, the Borrower shall have the right,
without premium or penalty, to terminate the Revolving Credit
Commitments or the 364-Day Line of Credit Commitments, in part
or in whole, provided that (i) any such termination shall
apply to proportionately and permanently reduce the applicable
Commitments of each of the Lenders, (ii) any partial ter
mination pursuant to this Section 3.3 shall be in an amount of
at least $5,000,000 and integral multiples of $1,000,000 in
excess thereof, and (iii) no such reduction shall be permitted
without payment of all costs required to be paid hereunder
with respect to a prepayment.
(b) Any mandatory prepayment of the Revolving Loans or
the 364-Day Loans required by Section 3.1(e) or (f) shall be
accompanied by a permanent reduction of the Revolving Credit
Commitments or the 364-Day Line of Credit Commitments in the
amount of such prepayment, with such reduction applying to
proportionately reduce the applicable Commitments of each of
the Lenders.
(c) If the aggregate outstanding amount of the Revolving
Loans exceeds the amount of the Revolving Credit Commitments
as so reduced, or if the aggregate outstanding amount of the
364-Day Loans exceeds the amount of the 364-Day Line of Credit
Commitments as so reduced, the Borrower shall immediately
repay the applicable Loans by an amount equal to such excess,
together with all accrued but unpaid interest on such excess
amount and any amounts due under Section 3.16 of this
Agreement.
Section 3.4. Extension of 364-Day Loan Maturity Date;
Extension of Revolving Loan Maturity Date. (a) At any time
prior to the date which is 75 days before any anniversary of
the Closing Date but not earlier than the day which is 105
days before such date, the Borrower may request that the
Lenders extend the 364-Day Loan Maturity Date for an
additional 364 days by giving written notice to the Agent.
Within three Business Days from the Agent's receipt of such
notice from the Borrower, the Agent shall notify each Lender
of the requested extension. Within 45 days after receipt of
notice from the Agent, each Lender shall notify the Agent of
its decision with respect to such extension (which decision is
at the option of the Lenders in their sole and absolute
discretion); provided that any failure by a Lender to give
such notice shall be deemed to constitute an election by such
Lender not to extend the 364-Day Loan Maturity Date. Not less
than 30 days prior to the applicable anniversary of the
Closing Date, the Agent shall notify the Borrower of the
decision of the Lenders with respect to such extension. If
all of the Lenders agree to an extension then the 364-Day Loan
Maturity Date shall be extended by an additional 364 days. If
fewer than all Lenders elect to extend the 364-Day Loan
Maturity Date, but Lenders holding at least 75% of the 364-Day
Line of Credit Commitments elect to extend the 364-Day Loan
Maturity Date, then the 364-Day Loan Maturity Date shall be
extended by an additional 364 days with respect to the 364-Day
Line of Credit Commitments held by the Lenders electing to
extend. If Lenders holding less than 75% of the 364-Day Line
of Credit Commitments elect to extend the 364-Day Loan
Maturity Date, the 364-Day Loan Maturity Date shall not be
extended and the 364-Day Line of Credit Commitments shall
expire on the 364-Day Loan Maturity Date. Notwithstanding
anything to the contrary contained in the foregoing part of
this Section 3.4(a), the Lenders shall have no obligation to
extend the 364-Day Loan Maturity Date and may extend the 364-
Day Loan Maturity Date on such terms and conditions as the
Lenders shall, in their sole and absolute discretion,
determine.
(b) At any time prior to the date which is 75
days before any anniversary of the Closing Date but not
earlier than the day which is 105 days before such date, the
Borrower may request that the Lenders extend the Revolving
Loan Maturity Date for an additional one year by giving
written notice to the Agent. Within three Business Days from
the Agent's receipt of such notice from the Borrower, the
Agent shall notify each Lender of the requested extension.
Within 45 days after receipt of notice from the Agent, each
Lender shall notify the Agent of its decision with respect to
such extension (which decision is at the option of the Lenders
in their sole and absolute discretion); provided that any
failure by a Lender to give such notice shall be deemed to
constitute an election by such Lender not to extend the
Revolving Loan Maturity Date. Not less than 30 days prior to
the applicable anniversary of the Closing Date, the Agent
shall notify the Borrower of the decision of the Lenders with
respect to such extension. If all of the Lenders agree to an
extension then the Revolving Loan Maturity Date shall be
extended by an additional one year. If fewer than all Lenders
elect to extend the Revolving Loan Maturity Date, but Lenders
holding at least 75% of the Revolving Credit Commitments
elect to extend the Revolving Loan Maturity Date, then the
Revolving Loan Maturity Date shall be extended by an
additional one year with respect to the Revolving Credit
Commitments held by the Lenders electing to extend. If
Lenders holding less than 75% of the Revolving Credit
Commitments elect to extend the Revolving Loan Maturity Date,
the Revolving Loan Maturity Date shall not be extended and the
Revolving Credit Commitments shall expire on the Revolving
Loan Maturity Date. Notwithstanding anything to the contrary
contained in the foregoing part of this Section 3.4(b), the
Lenders shall have no obligation to extend the Revolving Loan
Maturity Date and may extend the Revolving Loan Maturity Date
on such terms and conditions as the Lenders shall, in their
sole and absolute discretion, determine.
Section 3.5. Interest Rates. Each Revolving Loan,
364-Day Loan, and, as to any amounts outstanding after
November 30, 1998, Term Loan shall, at the option of the
Borrower, be made or continued as, or converted into, part of
one or more Borrowings that shall consist entirely of Base
Rate Advances or Eurodollar Advances.
Section 3.6. Funding Notices.
(a) Whenever the Borrower desires to make a Base Rate
Borrowing or a Eurodollar Borrowing (other than one resulting
from a continuation or conversion pursuant to Section 3.6(b)),
it shall give the Agent prior written notice (or telephonic
notice promptly confirmed in writing) of such Borrowing (a
"Notice of Borrowing"), such Notice of Borrowing to be given
prior to 11:00 A.M. (Atlanta, Georgia time) (x) on the
Business Day of the requested date of such Borrowing in the
case of Base Rate Advances, and (y) two Business Days prior to
the requested date of such Borrowing in the case of Eurodollar
Advances. Notices received after 11:00 A.M. (Atlanta, Georgia
time) shall be deemed received on the next Business Day. Each
Notice of Borrowing shall be irrevocable, shall be
substantially in the form of Exhibit D attached to this
Agreement, and shall specify (A) the aggregate principal
amount of the Borrowing, (B) the date of Borrowing (which
shall be a Business Day), (C) whether the Borrowing is to
consist of Base Rate Advances or Eurodollar Advances and, in
the case of Eurodollar Advances, the Interest Period to be
applicable thereto, and (D) whether the Borrowing is to be
advanced under the Revolving Loan Commitment or the 364-Day
Loan Commitment (or a combination thereof).
(b) At the end of an Interest Period, if the Borrower
desires to continue outstanding a Borrowing consisting of
Eurodollar Advances for a new Interest Period, it shall give
the Agent at least two Business Days' prior written notice of
each such Borrowing to be continued as Eurodollar Advances.
Such notice (a "Notice of Continuation/Conversion") shall be
given to the Agent prior to 11:00 A.M. (Atlanta, Georgia time)
on the date specified. Each such Notice of
Continuation/Conversion shall be irrevocable, shall be in the
form of Exhibit E attached to this Agreement, and shall
specify (i) the aggregate principal amount of the Advances to
be continued or converted, (ii) the date of such continuation
or conversion, (iii) the specific Advances to be continued or
converted, and (iv) the Interest Period applicable thereto.
If, upon the expiration of any Interest Period in respect of
any Borrowing, the Borrower shall have failed to deliver a
Notice of Continuation/Conversion (or a Notice of
Continuation/Conversion was incomplete), then the Borrower
shall be deemed to have elected to convert such Borrowing to a
Borrowing consisting of Base Rate Advances. So long as any
Default or Event of Default shall have occurred and be
continuing, no Borrowing may be continued as or converted to
(upon expiration of the current Interest Period) Eurodollar Ad
vances unless the Agent and each of the Lenders shall have
otherwise consented in writing. If the Borrower has complied
with the terms of this subsection (b) then the Advances
identified in the Notice of Continuation/Conversion shall be
continued or converted at the applicable interest rate based
on LIBOR for the relevant Interest Period.
(c) The Borrower may at any time convert a Base Rate
Borrowing under the Revolving Notes, the 364-Day Notes, or, as
to any amounts outstanding after November 30, 1998, the Term
Notes, to a Eurodollar Borrowing; provided, however, that the
Borrower shall give the Agent a Notice of
Continuation/Conversion two Business Days prior to such a
conversion. In each case such Notice of
Continuation/Conversion shall specify the Interest Period
selected by the Borrower for such Borrowing and the specific
Advances to be converted.
(d) Without in any way limiting the Borrower's obliga
tion to confirm in writing any telephonic notice, the Agent
and the Lenders may act without liability upon the basis of
telephonic notice believed by the Agent or the Lender in good
faith to be from the Borrower prior to receipt of written
confirmation. In each such case, the Borrower hereby waives
the right to dispute the Agent's and the Lender's record of
the terms of such telephonic notice.
(e) The Agent shall promptly give each Lender notice by
telephone (confirmed in writing) or by telecopy or facsimile
transmission of the matters covered by the notices given to
the Agent pursuant to this Section 3.6.
(f) There shall not be at any one time more than eight
(8) Eurodollar Advances with different Interest Periods
outstanding under each of (i) the Revolving Credit Commitment,
or (ii) the 364-Day Line of Credit Commitment, or (iii) the
Term Commitment.
Section 3.7. Disbursement of Funds.
(a) With respect to any Loan, no later than 1:00 P.M.
(Atlanta, Georgia time) on the date of each Borrowing pursuant
to the Commitments (other than one resulting from a
continuation or conversion pursuant to Section 3.6(b) or (c)),
each Lender will make available its Pro Rata Share of the
amount of such Borrowing in immediately available funds at the
Payment Office of the Agent. The Agent will make available to
the Borrower the aggregate of the amounts (if any) so made
available by the Lenders to the Agent in a timely manner by
crediting such amounts to the Borrower's demand deposit ac
count maintained with the Agent or at the Borrower's option,
by effecting a wire transfer of such amounts to the Borrower's
account specified by the Borrower, by the close of business on
such Business Day. In the event that the Lenders do not make
such amounts available to the Agent by the time prescribed
above, but such amount is received later that day, such amount
may be credited to the Borrower in the manner described in the
preceding sentence on the next Business Day (with interest on
such amount to begin accruing hereunder on such next Business
Day).
(b) Unless the Agent shall have been notified by any
Lender prior to the date of a Borrowing that such Lender does
not intend to make available to the Agent such Lender's Pro
Rata Share of the Borrowing to be made on such date, the Agent
may assume that such Lender has made such amount available to
the Agent on such date and the Agent may make available to the
Borrower a corresponding amount. If such corresponding amount
is not in fact made available to the Agent by such Lender on
the date of such Borrowing, the Agent shall be entitled to
recover such corresponding amount on demand from such Lender
together with interest at the Federal Funds Rate. If such
Lender does not pay such corresponding amount forthwith upon
the Agent's demand therefor, the Agent shall promptly notify
the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Agent together with interest at
the rate specified for the Borrowing which includes such
amount paid and any amounts due under Section 3.16 hereof.
Nothing in this subsection shall be deemed to relieve any
Lender from its obligation to fund its Commitments hereunder
or to prejudice any rights which the Borrower may have against
any Lender as a result of any default by such Lender
hereunder.
(c) All Base Rate Borrowings and all Eurodollar
Borrowings under the Commitments shall be loaned by the
Lenders on the basis of their Pro Rata Share of the relevant
Commitments. No Lender shall be responsible for any default
by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make the Loans provided to be
made by it hereunder, regardless of the failure of any other
Lender to fund its Commitment hereunder.
Section 3.8. Interest.
(a) The Borrower agrees to pay interest in respect of
all unpaid principal amounts of the Loans from the respective
dates such principal amounts were advanced to maturity
(whether by acceleration, notice of prepayment or otherwise)
at rates per annum (on the basis of a 360-day year) equal to
the applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect
from time to time; and
(ii) For Eurodollar Advances--LIBOR plus the
Applicable Percentage during the applicable Interest
Period.
(b) Overdue principal and, to the extent not prohibited
by applicable law, overdue interest, in respect of any Loans
and all other overdue amounts owing hereunder, shall bear
interest from each date that such amounts are overdue:
(i) in the case of overdue principal and
interest with respect to all Loans outstanding as
Fixed Rate Advances, at the rate otherwise
applicable for the then-current Interest Period plus
an additional two percent (2.0%) per annum;
thereafter at the rate in effect for Base Rate
Advances plus an additional two percent (2.0%) per
annum; and
(ii) in the case of overdue principal and
interest with respect to all other Loans outstanding
as Base Rate Advances, and all other obligations
hereunder, at a rate equal to the applicable Base
Rate plus an additional two percent (2.0%) per
annum;
provided that no Loan shall bear interest after maturity
(whether by non-payment at scheduled due date,
acceleration, notice of prepayment or otherwise) at a
rate per annum less than two percent (2.0%) per annum in
excess of the rate of interest applicable thereto at
maturity.
(c) Interest on each Loan shall accrue from and
including the date of such Loan to but excluding the date
of any repayment thereof; provided that, if a Loan is
repaid on the same day made, one day's interest shall be
paid on such Loan. Interest on all outstanding Base Rate
Advances shall be payable quarterly in arrears on the
last calendar day of each calendar quarter in each year.
Interest on all outstanding Eurodollar Advances shall be
payable on the last day of each Interest Period
applicable thereto, and, in the case of any Interest
Period in excess of three months, on each day which
occurs every 3 months after the initial date of such
Interest Period. Interest on all Loans shall be payable
on any conversion of any Advances comprising such Loans
into Advances of another type, prepayment (on the amount
prepaid), at maturity (whether by acceleration, notice of
prepayment or otherwise) and, after maturity, on demand.
(d) The Agent, upon determining LIBOR for any
Interest Period, shall promptly notify the Borrower and
the other Lenders. Any such determination shall, absent
manifest error, be final, conclusive and binding for all
purposes.
Section 3.9. Fees.
(a) The Borrower shall pay the Agent, for the
account of and for distribution of the respective Pro
Rata Share to each Lender, a facility fee as follows:
(i) with respect to the Revolving Credit
Commitment, an amount equal to the Applicable
Percentage multiplied by the Revolving Credit
Commitment; and
(ii) with respect to the 364-Day Line of Credit
Commitment, an amount equal to the Applicable
Percentage multiplied by the 364-Day Line of Credit
Commitment.
(b) All fees described in this Agreement,
including, without limitation, the fees described in this
Section 3.9(a), shall be payable in arrears on the last
day of each fiscal quarter.
Section 3.10. Voluntary Prepayments of Borrowings.
(a) The Borrower may, at its option, prepay Borrow
ings in whole or in part, in amounts aggregating
$1,000,000 or any greater amount in integral multiples of
$100,000. Those Borrowings may be prepaid by paying the
principal amount to be prepaid, together with interest
accrued and unpaid thereon to the date of prepayment, and
all compensation payments pursuant to Section 3.16 if
such prepayment is made on a date other than the last day
of an Interest Period applicable thereto. Each such
optional prepayment shall be applied in accordance with
Section 3.10(c) below.
(b) The Borrower shall give written notice to the
Agent of any intended prepayment of the Loans (i) not
less than one Business Day prior to any prepayment of
Base Rate Advances, and (ii) not less than three Business
Days prior to any prepayment of Eurodollar Advances.
Such notice, once given, shall be irrevocable. Upon
receipt of such notice of prepayment pursuant to the
first sentence of this paragraph (b), the Agent shall
promptly notify each Lender of the contents of such
notice and of such Lender's share of such prepayment.
(c) The Borrower, when providing notice of
prepayment pursuant to Section 3.10(b) shall designate
the specific Borrowing or Borrowings which are to be
prepaid, provided that (i) if any prepayment of Fixed
Rate Advances made pursuant to a single Borrowing of the
Revolving Loans or 364-Day Loans shall reduce the
outstanding Advances made pursuant to such Borrowing to
an amount less than $1,000,000, such Borrowing shall
immediately be converted into Base Rate Advances; and
(ii) each prepayment made pursuant to a single Borrowing
shall be applied pro rata among the Loans comprising such
Borrowing. All voluntary prepayments shall be applied to
the payment of any unpaid interest and other charges or
fees before application to principal.
Section 3.11. Payments, etc.
(a) Except as otherwise specifically provided
herein, all payments under this Agreement and the other
Loan Documents shall be made without defense, set-off or
counterclaim to the Agent, not later than 1:00 P.M.
(Atlanta, Georgia time) on the date when due and shall be
made in Dollars in immediately available funds at the
Agent's Payment Office.
(b) (i) All such payments shall be made free and
clear of and without deduction or withholding for any
Taxes in respect of this Agreement, the Notes or other
Loan Documents, or any payments of principal, interest,
fees or other amounts payable hereunder or thereunder
(but excluding any Taxes imposed on the overall net
income of the Lenders pursuant to the laws of the
jurisdiction in which the principal executive office or
appropriate Lending Office of such Lender is located).
If any Taxes are so levied or imposed, the Borrower
agrees (A) to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every net
payment of all amounts due hereunder and under the Notes
and other Loan Documents, after withholding or deduction
for or on account of any such Taxes (including additional
sums payable under this Agreement), will not be less than
the full amount provided for herein had no such deduction
or withholding been required, (B) to make such
withholding or deduction and (C) to pay the full amount
deducted to the relevant authority in accordance with
applicable law. The Borrower will furnish to the Agent
and each Lender, within 30 days after the date the
payment of any Taxes is due pursuant to applicable law,
certified copies of tax receipts evidencing such payment
by the Borrower. The Borrower will indemnify and hold
harmless the Agent and each Lender and reimburse the
Agent and each Lender upon written request for the
amount of any Taxes so levied or imposed and paid by the
Agent or the Lender and any liability (including
penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes were
correctly or illegally asserted. A certificate as to the
amount of such payment by such Lender or the Agent,
absent manifest error, shall be final, conclusive and
binding for all purposes.
(ii) Each Lender that is organized under the
laws of any jurisdiction other than the United States of
America or any State thereof (including the District of
Columbia) agrees to furnish to the Borrower and the
Agent, prior to the time it becomes a Lender hereunder,
two copies of either U.S. Internal Revenue Service Form
4224 or U.S. Internal Revenue Service Form 1001 or any
successor forms thereto (wherein such Lender claims
entitlement to complete exemption from or reduced rate of
U.S. Federal withholding tax on interest paid by the
Borrower hereunder) and to provide to the Borrower and
the Agent a new Form 4224 or Form 1001 or any successor
forms thereto if any previously delivered form is found
to be incomplete or incorrect in any material respect or
upon the obsolescence of any previously delivered form;
provided, however, that no Lender shall be required to
furnish a form under this paragraph (ii) if it is not
entitled to claim an exemption from or a reduced rate of
withholding under applicable law. A Lender that is not
entitled to claim an exemption from or a reduced rate of
withholding under applicable law, promptly upon written
request of the Borrower, shall so inform the Borrower in
writing.
(c) Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which
is not a Business Day, the due date thereof shall, except
as set forth in the definition of Interest Period, be
extended to the next succeeding Business Day and, with
respect to payments of principal, interest thereon shall
be payable at the applicable rate during such extension.
(d) On Loans, all computations of interest and fees
shall be made on the basis of a year of 360 days for the
actual number of days. Interest on Base Rate Advances
shall be calculated based on the Base Rate from and
including the date of such Loan to but excluding the date
of the repayment or conversion thereof. Interest on
Eurodollar Advances shall be calculated as to each
Interest Period from and including the first day thereof
to but excluding the last day thereof. Each
determination by the Agent of an interest rate or fee
hereunder shall be made in good faith and, except for
manifest error, shall be final, conclusive and binding
for all purposes.
(e) Payment by the Borrower to the Agent in
accordance with the terms of this Agreement shall, as to
the Borrower, constitute payment to the Lenders under
this Agreement.
Section 3.12. Interest Rate Not Ascertainable, etc.
In the event that the Agent, in the case of LIBOR, shall
have determined (which determination shall be made in
good faith and, absent manifest error, shall be final,
conclusive and binding upon all parties) that on any date
for determining LIBOR for any Interest Period, by reason
of any changes arising after the date of this Agreement
affecting the London interbank market, or the Agent's
position in such markets, adequate and fair means do not
exist for ascertaining the applicable interest rate on
the basis provided for in the definition of LIBOR then,
and in any such event, the Agent shall forthwith give
notice to the Borrower and to the Lenders of such
determination and a summary of the basis for such
determination. Until the Agent notifies the Borrower
that the circumstances giving rise to the suspension
described herein no longer exist, the obligations of the
Lenders to make or permit portions of the Revolving Loans
or 364-Day Loans to remain outstanding past the last day
of the then current Interest Periods as Eurodollar
Advances, as the case may be, shall be suspended, and
such affected Advances shall bear the same interest as
Base Rate Advances.
Section 3.13. Illegality.
(a) In the event that any Lender shall have
determined (which determination shall be made in good
faith and, absent manifest error, shall be final,
conclusive and binding upon all parties) at any time that
the making or continuance of any Eurodollar Advance has
become unlawful by compliance by such Lender in good
faith with any applicable law, governmental rule,
regulation, guideline or order (whether or not having the
force of law and whether or not failure to comply
therewith would be unlawful), then, in any such event,
the Lender shall give prompt notice (by telephone
confirmed in writing) to the Borrower and to the Agent of
such determination and a summary of the basis for such
determination (which notice the Agent shall promptly
transmit to the other Lenders).
(b) Upon the giving of the notice to the Borrower
referred to in subsection (a) above, (i) the Borrower's
right to request and such Lender's obligation to make
Eurodollar Advances as the case may be, shall be
immediately suspended, and such Lender shall make an
Advance as part of the requested Borrowing of Eurodollar
Advances as the case may be, as a Base Rate Advance,
which Base Rate Advance shall, for all other purposes, be
considered part of such Borrowing, and (ii) if any
affected Eurodollar Advances are then outstanding, the
Borrower shall immediately, or if permitted by applicable
law, no later than the date permitted thereby, upon at
least one Business Day's written notice to the Agent and
the affected Lender, convert each such Advance into a
Base Rate Advance, provided that if more than one Lender
is affected at any time, then all affected Lenders must
be treated the same pursuant to this Section 3.13(b).
Section 3.14. Increased Costs.
(a) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without
limitation, any change by way of imposition or increase
of reserve requirements) in or in the interpretation of
any law or regulation, or (y) the compliance with any
guideline or request from any central bank or other
governmental authority or quasi-governmental authority
exercising control over banks or financial institutions
generally (whether or not having the force of law):
(i) any Lender (or its applicable lending
office) shall be subject to any tax, duty or other
charge with respect to its Fixed Rate Advances or
its obligation to make Fixed Rate Advances, or the
basis of taxation of payments to any Lender of the
principal of or interest on its Fixed Rate Advances
or its obligation to make Fixed Rate Advances shall
have changed (except for changes in the tax on the
overall net income of such Lender or its applicable
lending office imposed by the jurisdiction in which
such Lender's principal executive office or
applicable lending office is located); or
(ii) any reserve (including, without
limitation, any imposed by the Board of Governors of
the Federal Reserve System), special deposit or
similar requirement against assets of, deposits with
or for the account of, or credit extended by, any
Lender's applicable lending office shall be imposed
or deemed applicable or any other condition
affecting its Fixed Rate Advances or its obligation
to make Fixed Rate Advances shall be imposed on any
Lender or its applicable lending office or the
London interbank market;
and as a result thereof there shall be any increase in
the cost to such Lender of agreeing to make or making,
funding or maintaining Fixed Rate Advances (except to the
extent already included in the determination of the
applicable LIBOR for Eurodollar Advances), or there shall
be a reduction in the amount received or receivable by
such Lender or its applicable lending office, then the
Borrower shall from time to time (subject, in the case of
certain Taxes, to the applicable provisions of Section
3.11(b)), upon written notice from and demand by such
Lender on the Borrower (with a copy of such notice and
demand to the Agent), pay to the Agent for the account of
such Lender within five Business Days after the date of
such notice and demand, additional amounts sufficient to
indemnify such Lender against such increased cost. A
certificate as to the amount of such increased cost,
submitted to the Borrower and the Agent by such Lender in
good faith and accompanied by a statement prepared by
such Lender describing in reasonable detail the basis for
and calculation of such increased cost, shall, except for
manifest error, be final, conclusive and binding for all
purposes.
(b) If any Lender shall advise the Agent that at
any time, because of the circumstances described in
clauses (x) or (y) in Section 3.14(a) or any other
circumstances beyond such Lender's reasonable control
arising after the date of this Agreement affecting such
Lender or the London interbank market or such Lender's
position in such market, the LIBOR, as determined by the
Agent, will not adequately and fairly reflect the cost to
such Lender of funding its Fixed Rate Advances, then, and
in any such event:
(i) the Agent shall forthwith give notice to
the Borrower and to the other Lenders of such
advice;
(ii) the Borrower's right to request and such
Lender's obligation to make or permit portions of
the Loans to remain outstanding past the last day of
the then current Interest Periods as Eurodollar
Advances shall be immediately suspended; and
(iii) such Lender shall make a Loan as part of
the requested Borrowing of Eurodollar Advances as a
Base Rate Advance, which such Base Rate Advance
shall, for all other purposes, be considered part of
such Borrowing.
Section 3.15. Funding Losses. The Borrower shall
compensate each Lender, upon its written request to the
Borrower (which request shall set forth the basis for
requesting such amounts in reasonable detail and which
request shall be made in good faith and, absent manifest
error, shall be final, conclusive and binding upon all of
the parties hereto), for all losses, expenses and li
abilities (including, without limitation, any interest
paid by such Lender to lenders of funds borrowed by it to
make or carry its Fixed Rate Advances, in either case to
the extent not recovered by such Lender in connection
with the re-employment of such funds and including loss
of anticipated profits), which the Lender may sustain:
(i) if for any reason (other than a default by such
Lender) a borrowing of, or conversion to or continuation
of, Fixed Rate Advances to the Borrower does not occur on
the date specified therefor in a Notice of Borrowing or
Notice of Conversion/Continuation (whether or not
withdrawn), (ii) if any repayment (including mandatory
prepayments and any conversions) of any Fixed Rate
Advances to the Borrower occurs on a date which is not
the last day of an Interest Period applicable thereto, or
(iii), if, for any reason, the Borrower defaults in its
obligation to repay its Fixed Rate Advances when
required by the terms of this Agreement.
Section 3.16. Assumptions Concerning Funding of
Fixed Rate Advances. Calculation of all amounts payable
to a Lender under this Article 3 shall be made as though
that Lender had actually funded its relevant Fixed Rate
Advances through the purchase of deposits in the relevant
market bearing interest at the rate applicable to such
Fixed Rate Advances in an amount equal to the amount of
the Fixed Rate Advances and having a maturity comparable
to the relevant Interest Period and through the transfer
of such Fixed Rate Advances from an offshore office of
that Lender to a domestic office of that Lender in the
United States of America; provided however, that each
Lender may fund each of its Fixed Rate Advances in any
manner it sees fit (including without limitation through
the London interbank market, the secondary certificates
of deposit market and bankers acceptances) and the
foregoing assumption shall be used only for calculation
of amounts payable under this Article 3.
Section 3.17. Apportionment of Payments. Aggregate
principal and interest payments in respect of Loans and
payments in respect of facility fees and commitment fees
shall be apportioned among all outstanding Commitments
and Loans to which such payments relate, proportionately
to the Lenders' respective pro rata portions of such
Commitments and outstanding Loans. The Agent shall
promptly distribute to each Lender at its payment office
set forth beside its name on the appropriate signature
page hereof or such other address as any Lender may re
quest its share of all such payments received by the
Agent.
Section 3.18. Sharing of Payments, etc. Subject to
the provisions of Section 3.17 hereof, if any Lender
shall obtain any payment or reduction (including, without
limitation, any amounts received as adequate protection
of a deposit treated as cash collateral under the
Bankruptcy Code) of any amount due under the Notes or
under this Agreement (whether voluntary, involuntary,
through the exercise of any right of set-off, or
otherwise) in excess of its pro rata portion of payments
or reductions on account of such obligations obtained by
all the Lenders, such Lender shall forthwith (i) notify
each of the other Lenders and the Agent of such receipt,
and (ii) purchase from the other Lenders such
participations in the affected obligations as shall be
necessary to cause such purchasing Lender to share the
excess payment or reduction, net of costs incurred in
connection therewith, ratably with each of them, provided
that if all or any portion of such excess payment or
reduction is thereafter recovered from such purchasing
Lender or additional costs are incurred, the purchase
shall be rescinded and the purchase price restored to the
extent of such recovery or such additional costs, but
without interest unless the Lender obligated to return
such funds is required to pay interest on such funds.
The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this
Section 3.18 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right
of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
Section 3.19. Capital Adequacy. Without limiting
any other provision of this Agreement, in the event that
any Lender shall have determined that any law, treaty,
governmental (or quasi-governmental) rule, regulation,
guideline or order regarding capital adequacy not
currently in effect or fully applicable as of the Closing
Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance
by such Lender with any request or directive regarding
capital adequacy not currently in effect or fully
applicable as of the Closing Date (whether or not having
the force of law and whether or not failure to comply
therewith would be unlawful) from a central bank or
governmental authority or body having jurisdiction, does
or shall have the effect of reducing the rate of return
on such Lender's capital as a consequence of its
obligations hereunder to a level below that which such
Lender could have achieved but for such law, treaty,
rule, regulation, guideline or order, or such change or
compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then within 10
Business Days after written notice and demand by such
Lender (with copies thereof to the Agent), the Borrower
shall from time to time pay to such Lender additional
amounts sufficient to compensate such Lender for such
reduction (but, in the case of outstanding Base Rate
Advances, without duplication of any amounts already
recovered by such Lender by reason of an adjustment in
the applicable Base Rate). Each certificate as to the
amount payable under this Section 3.19 (which certificate
shall set forth the basis for requesting such amounts in
reasonable detail), submitted to the Borrower by any
Lender in good faith, shall, absent manifest error, be
final, conclusive and binding for all purposes.
Section 3.20. Use of Proceeds. The Borrower shall
use the proceeds of all Loans only (i) to refinance
Indebtedness outstanding under existing revolving credit
and lines of credit facilities, (ii) to fund capital
expenditures and working capital needs, and (iii) for
other general corporate purposes.
Section 3.21 Collateral; Release of Collateral.
The repayment of all amounts due from time to time from
the Borrower or any Subsidiary to the Agent or any of the
Lenders under this Agreement shall be secured by (a) the
collateral granted to the Lenders under the Security
Agreement, (b) the ADM Shares, upon the delivery to the
Agent of such Shares and the Pledge Agreement pursuant to
Section 6.15 hereof, and (c) the collateral granted to
the Lenders pursuant to the Real Property Mortgages, upon
the delivery to the Agent of the Real Property Mortgages
for filing pursuant to the terms of the Escrow Agreement
(all of such collateral collectively referred to as the
"Collateral"). The Agent and the Lenders agree to
release the Collateral from the liens of the Collateral
Documents at such time as all amounts outstanding under
the Term Notes have been repaid in full and, for the
prior three fiscal quarters of the Company, (a) the
Company's ratio of Consolidated Funded Debt to Total
Capital has been less than or equal to .40 to 1.00, and
(b) the Company's ratio of Indebtedness for Money
Borrowed to EBITDA has been less than or equal to 2.75 to
1.00.
ARTICLE 4.
CONDITIONS TO LOAN CLOSING AND EXTENSIONS OF LOANS
Section 4.1. Conditions Precedent to Initial
Loans. At the time of making of the initial Loans
hereunder on the Closing Date, the following conditions
shall have been satisfied in a manner satisfactory to the
Agent and the Lenders:
(a) Opinion of the Borrower's Counsel. The
Borrower shall have delivered to the Lenders, at the
Borrower's expense, a favorable written opinion from (i)
Messrs. Alston & Bird LLP, special counsel for the
Borrower, dated as of and delivered on the date of
execution of this Agreement, satisfactory to the Agent
and substantially in the form of Exhibit F attached
hereto, and (ii) J. David Dyson, Esq., General Counsel,
Vice President, and Secretary of the Borrower, dated as
of and delivered on the date of execution of this
Agreement, satisfactory to the Agent and substantially in
the form of Exhibit G attached hereto.
(b) No Defaults. The Borrower shall be in full
compliance with all the terms and conditions of this
Agreement, and no Default or Event of Default shall have
occurred, and the Borrower shall have delivered to the
Lenders a certificate from an authorized officer of the
Borrower certifying such matters as the Lenders shall
reasonably request.
(c) Accuracy of Representations and Warranties.
The representations and warranties set forth herein shall
be true and correct, and the Borrower shall have
delivered to the Lenders a certificate from an authorized
officer of the Borrower certifying such matters related
to the representations and warranties as the Lenders
shall reasonably request.
(d) Corporate Action and Authority; Incumbency
Certificate. The Borrower and each Subsidiary shall have
delivered to the Lenders (i) a copy of its organizational
papers, certified as true and correct by the Secretary of
State of the state of its incorporation, (ii)
certificates from the Secretaries of State of those
states in which it is legally required to qualify to
transact business as a foreign corporation, certifying
its good standing as a corporation in such states, and
(iii) a copy of its bylaws and the resolutions passed by
its Board of Directors authorizing its execution and
delivery of and the performance of the obligations under
the Loan Documents to which it is a party, each certified
by its Secretary or Assistant Secretary, on behalf of and
under its seal, to be true and correct. The Borrower and
each Subsidiary also each shall have delivered to the
Lenders a certificate, dated as of and delivered on the
date of the execution of this Agreement and signed on
behalf of and under its seal by its Secretary or
Assistant Secretary, certifying the names of its officers
authorized to execute and deliver the Loan Documents on
its behalf and, as to the Borrower, to request Borrowings
under this Agreement, together with the original, not
photocopied, signatures of such officers.
(e) Delivery of Credit Agreement. The Borrower
shall have executed and delivered to the Lenders the
Agreement.
(f) Delivery of Borrowing Base Certificate. The
Borrower shall have executed and delivered to the Lenders
a Borrowing Base Certificate, dated as of the Closing
Date;
(g) Delivery of Subsidiary Guaranty. Each
Subsidiary of the Borrower shall have executed and
delivered to the Lenders the Subsidiary Guaranty, dated
as of the Closing Date, in form and substance as set
forth on Exhibit J;
(h) Delivery of Contribution Agreement. The
Borrower and each Subsidiary of the Borrower shall have
executed and delivered to the Lenders the Contribution
Agreement, in form and substance as set forth on Exhibit
K;
(i) Insurance Summary. The Borrower shall have
delivered to the Agent a certificate of insurance in a
form satisfactory to the Lenders which provides a listing
of all the Borrower's insurance policies and the amount
of coverage provided thereby.
(j) Proceedings. All corporate and other
proceedings taken or to be taken in connection with the
transactions contemplated hereby and all Loan Documents
and other documents incident thereto shall be
satisfactory in form and substance to the Lenders, and
the Lenders shall have received all such counterpart
originals or certified or other copies of such documents
as the Lenders may reasonably request.
(k) Agent's Fees. The Agent shall have received
the fees required to be paid pursuant to the Fee Letter.
(l) Collateral Documents. The Borrower and each
Subsidiary, as appropriate, shall have executed and
delivered to the Agent the Collateral Documents and such
financing statements or other instruments as may be, in
the sole judgment of the Agent, necessary to perfect the
security interest of the Lenders in the collateral
described therein.
(m) Agri Services Purchase Agreement. The Borrower
shall have delivered to the Agent a fully executed copy
of the Agri Services Purchase Agreement, certified by an
authorized officer of the Borrower to be a true and
correct copy and in full force and effect, and
satisfactory in form and substance to the Agent in all
respects.
(n) Escrow Agreement. The Borrower shall have
delivered to the Agent a fully executed Escrow Agreement.
(o) Intercreditor Agreement. The Borrower and all
Secured Parties under the Security Agreement shall have
executed and delivered an Intercreditor Agreement, in
form and substance satisfactory to the Agent.
(p) Other Matters. The Borrower shall have
delivered to the Agent such other certificates, reports,
agreements, documents or other materials as the Lenders
shall reasonably request.
Section 4.2. Conditions to all Loans. At the time
of the making of all Loans (before as well as after
giving effect to such Loans and to the proposed use of
the proceeds thereof), the following conditions shall
have been satisfied or shall exist:
(a) there shall exist no Default or Event of
Default;
(b) all representations and warranties by the
Borrower contained herein shall be true and correct with
the same effect as though such representations and
warranties had been made on and as of the date of such
Loans;
(c) since the date of the most recent financial
statements described in Section 6.1, there shall have
been no change which has had or could reasonably be
expected to have a Material Adverse Effect;
(d) there shall be no action or proceeding
instituted or pending before any court or other
governmental authority other than as set forth in
Schedule 5.4 or, to the knowledge of the Borrower,
threatened (i) which reasonably could be expected to have
a Material Adverse Effect, or (ii) seeking to prohibit or
restrict the Borrower's ownership or operation of any
portion of its business or assets, or to compel the
Borrower to dispose of or hold separate all or any
portion of its businesses or assets, where such portion
or portions of such business(es) or assets, as the case
may be, constitute a material portion of the total
businesses or assets of the Borrower or any Subsidiary;
(e) the Loans to be made and the use of proceeds
thereof shall not contravene, violate or conflict with,
or involve the Agent or any Lender in a violation of, any
law, rule, injunction, or regulation, or determination of
any court of law or other governmental authority
applicable to the Borrower; and
(f) the Agent shall have received such other
documents or legal opinions as the Agent or any Lender
may reasonably request, all in form and substance
reasonably satisfactory to the Agent.
Each request for a Borrowing and the acceptance by
the Borrower of the proceeds thereof shall constitute a
representation and warranty by the Borrower, as of the
date of the Loans comprising such Borrowing, that the
applicable conditions specified in Sections 4.1 and 4.2
have been satisfied.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES
The Borrower represents, warrants and covenants to
the Lenders that:
Section 5.1. Organization and Qualification. The
Borrower is an agricultural membership cooperative duly
incorporated and existing in good standing under the
Cooperative Marketing Act of the State of Georgia, each
Subsidiary is duly incorporated and existing in good
standing under the law of the jurisdiction in which it is
incorporated, the Borrower and each of its Subsidiaries
have the corporate power to own their respective
properties and to carry on their respective businesses as
now being conducted, and the Borrower and each of its
Subsidiaries is duly qualified as a foreign corporation
to do business and in good standing in every jurisdiction
in which the nature of its business conducted or property
owned by it legally requires such qualification, except
to the extent failure to so qualify could not result in a
Material Adverse Effect on the Borrower and the
Subsidiaries.
Section 5.2. Financial Statements. The Borrower
has furnished the Lenders with audited consolidated
balance sheets of the Borrower and its Subsidiaries as at
June 30, 1997, and audited consolidated statements of
income and cash flow of the Borrower and its Subsidiaries
for such year. The Borrower has also furnished the
Lenders with unaudited balance sheets of the Borrower and
its Subsidiaries as at March 31, 1998, and unaudited
consolidated statements of income and cash flow of the
Borrower and its Subsidiaries for such quarter, each
prepared by the Borrower. Such financial statements
(including any related schedules and/or notes) are true
and correct in all material respects, have been prepared
in accordance with GAAP consistently followed throughout
the period involved and show all liabilities, direct and
contingent, of the Borrower and its Subsidiaries required
to be shown in accordance with such principles. The
balance sheets fairly present the condition of the
Borrower and its Subsidiaries as at the dates thereof,
and the statements of income and cash flow fairly present
the results of the operations of the Borrower and its
Subsidiaries for the periods indicated. There has been
no Material Adverse Effect to the business, condition or
operations (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole since March 31, 1998,
other than the losses required to be recognized in
connection with the proposed consummation of the
AgriServices Purchase Agreement.
Section 5.3. Taxes. The Borrower has and each of
its Subsidiaries has filed all federal, state and other
income tax returns which, to the best knowledge of the
officers of the Borrower, are required to be filed, and
each has paid all taxes as shown on said returns and all
assessments received by it to the extent that such taxes
have become due or except such as are being contested in
good faith by appropriate proceedings for which adequate
reserves have been established in accordance with GAAP.
Except as set forth on Schedule 5.3 attached hereto,
there is no audit of any federal, state or other income
tax returns of the Borrower and its Subsidiaries
currently being conducted or pending.
Section 5.4. Actions Pending. Except as specified
in Schedule 5.4, there is no action, suit, investigation
or proceeding pending or, to the knowledge of the
Borrower after due inquiry, threatened against the
Borrower or any of its Subsidiaries or any properties or
rights of the Borrower or any of its Subsidiaries, by or
before any court, arbitrator or administrative or
governmental body, which might result in a Material
Adverse Effect.
Section 5.5. Title to Properties. The Borrower
has and each of its Subsidiaries has good and marketable
title to its respective real properties (other than
properties which it leases) and good title to all of its
other respective properties and assets, including the
properties and assets reflected in the balance sheet as
at March 31, 1998 hereinabove described (other than
properties and assets disposed of in the ordinary course
of business), subject to no Lien of any kind except Liens
permitted by Section 7.3. Each of the Borrower and its
Subsidiaries enjoys peaceful and undisturbed possession
under all leases necessary in any material respect for
the operation of its respective properties and assets,
none of which contains any unusual or burdensome
provisions which might have a Material Adverse Effect on
the operation of such properties and assets. All such
leases are valid and subsisting and in full force and
effect.
Section 5.6. Regulation U, Etc. Except as
disclosed on Schedule 5.6 attached hereto, neither the
Borrower nor any Subsidiary owns or has any present
intention of acquiring any "margin stock" as defined in
Regulation U (12 CFR Part 221) of the Board of Governors
of the Federal Reserve System (herein called "margin
stock"). Each Borrowing will be used solely for the
purposes specified in Section 3.20 of this Agreement.
None of such proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any
margin stock or for the purpose of reducing or retiring
any indebtedness which was originally incurred to
purchase or carry any margin stock or for any other
purpose which might constitute this transaction a
"purpose credit" within the meaning of such Regulation U.
Neither the Borrower nor any agent acting on its behalf
has taken or will take any action which might cause this
Agreement or any of the Notes to violate Regulations G,
T, U, or X or (to the best knowledge of the Borrower) any
other regulation of the Board of Governors of the Federal
Reserve System or to violate the Securities Exchange Act
of 1934, as amended, in each case as in effect now or as
the same may hereafter be in effect.
Section 5.7. ERISA. No accumulated funding
deficiency (as defined in section 302 of ERISA and
section 412 of the Code), whether or not waived, exists
with respect to any Plan (other than a Multiemployer
Plan). No liability to the PBGC has been or is expected
by the Borrower to be incurred with respect to any Plan
(other than a Multiemployer Plan) by the Borrower or any
of its Subsidiaries which is or would be materially
adverse to the Borrower and its Subsidiaries taken as a
whole. Neither the Borrower nor any of its subsidiaries
has incurred or presently expects to incur any withdrawal
liability under Title IV of ERISA with respect to any
Multiemployer Plan which is or would be materially
adverse to the Borrower and its Subsidiaries taken as a
whole. The Borrower has delivered to the Lenders a list
of all employee benefit plans established or maintained
by the Borrower and each Subsidiary, or as to which the
Borrower or any Subsidiary is a party in interest or a
disqualified person. The execution and delivery of this
Agreement and the Borrowings hereunder will not involve
any prohibited transaction within the meaning of ERISA or
in connection with which a tax could be imposed pursuant
to section 4975 of the Code or a violation of section 406
or section 407 of ERISA.
Section 5.8. Outstanding Debt. There exists no
default under the provisions of any instrument evidencing
Indebtedness of the Borrower or any Subsidiary or of any
other agreement relating thereto. All outstanding
Indebtedness of the Borrower and each Subsidiary for
Money Borrowed is set forth on Schedule 5.8 attached
hereto.
Section 5.9. Conflicting Agreements or Other
Matters. Neither the Borrower nor any of its
Subsidiaries is a party to any contract or agreement or
subject to any charter or other corporate restriction
which could have a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries is in default of any
agreement to which it is a party which could have a
Material Adverse Effect. Neither the execution or
delivery of this Agreement or the other Loan Documents,
nor fulfillment of or compliance with the terms and
provisions hereof and thereof, will conflict with, or
result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien upon
any of the properties or assets of the Borrower or any of
its Subsidiaries pursuant to, the charter or bylaws of
the Borrower or any of its Subsidiaries, any award of any
arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree,
statute, law, rule or regulation to which the Borrower or
any of its Subsidiaries is subject. Neither the Borrower
nor any of its Subsidiaries is a party to, or otherwise
subject to any provision contained in, any instrument
evidencing indebtedness of the Borrower or any of its
Subsidiaries, any agreement relating thereto or any other
contract or agreement (including its charter) which
limits the amount of, or otherwise imposes restrictions
on the incurring of, Indebtedness of the Borrower of the
type to be evidenced by the Notes, except as set forth in
the agreements listed on Schedule 5.9 attached hereto.
Except where failure or non-compliance would not have a
Material Adverse Effect, each of the Borrower and its
Subsidiaries has obtained all permits, licenses and other
authorizations which are required under, and is in
compliance with, federal, state and local laws and
regulations relating to pollution, reclamation, or
protection of the environment, including laws relating to
emissions, discharges, releases or threatened releases of
pollutants, contaminants, or hazardous or toxic materials
or wastes into air, water, or land, or otherwise relating
to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of
pollutants, contaminants or hazardous or toxic materials
or wastes. Each of the Borrower and its Subsidiaries is
in material compliance with all laws and regulations
relating to equal employment opportunity and employee
health and safety in all jurisdictions in which the
Borrower and each Subsidiary is presently doing business.
Section 5.10. Possession of Franchises, Licenses,
Etc. The Borrower and its Subsidiaries possess all
franchises, certificates, licenses, permits and other
authorizations from governmental entities or regulatory
authorities, and all patents, trademarks, service marks,
trade names, copyrights, licenses and other rights, free
from burdensome restrictions, that are necessary in any
material respect for the ownership, maintenance and
operation of their respective business, properties and
assets, and neither the Borrower nor any of its
Subsidiaries is in violation of any thereof in any
material respect. Neither the Borrower nor any
Subsidiary has infringed upon or otherwise violated any
trademark, patent, license or other intellectual property
agreement where such infringement could have a Material
Adverse Effect on the Borrower and its Subsidiaries taken
as a whole.
Section 5.11. Governmental Consent. Neither the
nature of the Borrower or any of its Subsidiaries nor any
of their respective businesses or properties, nor any
relationship between the Borrower or any Subsidiary and
any other Person, nor any circumstance in connection with
the execution and delivery of the Loan Documents and the
consummation of the transactions contemplated thereby is
such as to require any authorization, consent, approval,
exemption or other action by or notice to or filing with
any court or administrative or governmental body (other
than routine filings after the date of closing with the
Securities and Exchange Commission and/or state Blue Sky
authorities) in connection with the execution and
delivery of this Agreement and the other Loan Documents
or fulfillment of or compliance with the terms and
provisions hereof or thereof.
Section 5.12. Disclosure. Neither this Agreement
nor any other document, certificate or statement
furnished to the Lenders or the Agent by or on behalf of
the Borrower in connection herewith contains any untrue
statement of a material fact or omits to state a material
fact necessary in order to make the statements contained
herein and therein not misleading. There is no fact
known to the Borrower or any of its Subsidiaries which
would have a Material Adverse Effect or in the future may
(so far as the Borrower can now foresee) have a Material
Adverse Effect which has not been set forth in this
Agreement or in the other documents, certificates and
statements furnished to the Lenders or the Agent by or on
behalf of the Borrower prior to the date hereof in
connection with the transactions contemplated hereby.
Section 5.13. Foreign Assets Control Regulations.
Neither the borrowing by the Borrower hereunder nor its
use of the proceeds thereof will violate the Foreign
Assets Control Regulations, the Cuban Assets Control
Regulations or the Iranian Assets Control Regulations of
the United States Treasury Department (31 CFR Subtitle B,
Chapter V) or any similar law or regulation.
Section 5.14. Labor Relations. Except as set forth
on Schedule 5.14 attached hereto, neither the Borrower
nor any of its Subsidiaries is a party to any collective
bargaining agreement, and there are no material
grievances, disputes or controversies with any union or
any other organization of the Borrower's employees, or
threats of strikes, work stoppages or delays or any
asserted pending demands for collective bargaining by any
union or organization. Additionally, the hours worked
and payment made to employees of the Borrower and its
Subsidiaries have not been in violation in any material
respect of the Fair Labor Standards Act or any other ap
plicable law dealing with such matters. All payments due
from the Borrower and its Subsidiaries, or for which any
claim may be made against the Borrower and its
Subsidiaries, on account of wages and employee health and
welfare insurance and other benefits have been paid or
accrued as liabilities on the books of the Borrower and
its Subsidiaries in all instances where the failure to
pay or accrue such liabilities would reasonably be
expected to have a Material Adverse Effect.
Section 5.15. Authorization and Enforceability of
Agreement. The Borrower has the right and power, and has
taken all necessary steps to authorize it, to borrow
hereunder and to execute, deliver and perform this
Agreement, the Note, and the other Loan Documents to
which it is a party in accordance with their respective
terms and to consummate the transactions contemplated
hereby. This Agreement is the legal, valid and binding
agreement of the Borrower enforceable against the
Borrower in accordance with its terms, and the Notes, and
all other Loan Documents, when executed and delivered,
will be similarly legal, valid, binding and enforceable,
except as the enforceability of the Notes and other Loan
Documents may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting
creditor's rights and remedies in general and by general
principles of equity, whether considered in a proceeding
at law or in equity.
Section 5.16. Subsidiaries. Schedule 5.16 attached
hereto correctly sets forth the name of each Subsidiary
of the Borrower and the jurisdiction of its organization.
All the outstanding shares of stock or other ownership
rights of each such Subsidiary have been validly issued
and are fully paid and non-assessable and all such
outstanding shares or other ownership rights, except as
noted on such Schedule, are owned by the Borrower or an
Affiliate free of any Lien or claim.
Section 5.17. Insurance Coverage. Each property of
the Borrower or any of its Subsidiaries is insured for
the benefit of the Borrower or a Subsidiary of the
Borrower in amounts and against risks customary for
Persons operating businesses similar to those of the
Borrower or its Subsidiaries in the localities where such
properties are located.
Section 5.18. Investments. Except for Investments
permitted by Section 7.4 of this Agreement, the Borrower
has no other Investments.
Section 5.19. Intercompany Loans; Dividends. There
are no restrictions on the power of any Subsidiary to
repay any intercompany loan or to pay dividends on its
capital stock.
ARTICLE 6.
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as it
may borrow under this Agreement or so long as any Loan or
other Indebtedness remains outstanding to the Lenders
that:
Section 6.1. Financial Statements. The Borrower
shall deliver to the Lenders in duplicate:
(a) As soon as practicable and in any event within
45 days after the end of each of the first eleven months
of each fiscal year, (i) unaudited consolidated and
consolidating and business segment statements of sales
and margins of the Borrower and its Subsidiaries for such
month and for the period from the beginning of the
current fiscal year to the end of such month and (ii) an
unaudited consolidated and consolidating balance sheet of
the Borrower and its Subsidiaries as at the end of such
month, setting forth, with respect to such consolidated
statements of sales and margins and such consolidated
balance sheet, in comparative form, figures for the
corresponding period in the preceding fiscal year, and,
as soon as practicable and in any event within 30 days
after the end of each of the first three fiscal quarters
of each fiscal year (iii) unaudited consolidated and
consolidating statements of income and cash flow of the
Borrower and its Subsidiaries for such quarter and for
the period from the beginning of the current fiscal year
to the end of such quarter and (iv) an unaudited
consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as at the end of such
quarter, setting forth, with respect to such consolidated
statements of income and cash flow and such consolidated
balance sheet, in comparative form, figures for the
corresponding period in the preceding fiscal year all in
reasonable detail and certified by the chief financial
officer or Treasurer of the Borrower as having been
prepared in accordance with GAAP;
(b) As soon as practicable and in any event within
90 days after the end of each fiscal year, a
consolidating and consolidated and business segment
statements of income and cash flow of the Borrower and
its Subsidiaries for such year, and a consolidating and
consolidated and business segment balance sheet of the
Borrower and its Subsidiaries as at the end of such year,
setting forth, with respect to such consolidated
statements of income and cash flow and such consolidated
balance sheet, in comparative form, corresponding figures
from the preceding annual audit, all in reasonable detail
and reasonably satisfactory in scope to the Agent, and,
in the case of such consolidated financial statements,
certified to the Borrower by independent public accounts
of recognized national standing selected by the Borrower
(and acceptable to the Agent), whose certificate shall be
in scope and substance satisfactory to the Agent, and, as
to the consolidating statements, certified by the chief
financial officer of the Borrower. In addition to any
other information requested by the Agent pursuant to the
preceding sentence, together with each delivery of
financial statements required by Section 6.1 above, the
Borrower will deliver to the Lenders a certificate of
such accountants stating that, in making the audit
necessary to the certification of such financial
statements, they have obtained no knowledge of any Event
of Default or Default, or, if any Event of Default or
Default exists, specifying the nature and period of
existence thereof. Such accountants, however, shall not
be liable to anyone by reason of their failure to obtain
knowledge of any Event of Default or Default that would
not be disclosed in the course of an audit conducted in
accordance with generally accepted auditing standards;
(c) Promptly upon transmission thereof, copies of
all such financial statements, proxy statements, notices
and reports as the Borrower shall send to its patrons or
registered debt certificate holders and copies of all
registration statements (without exhibits) and all
reports which it files with the Securities and Exchange
Commission (or any governmental body or agency succeeding
to the functions of the Securities and Exchange
Commission);
(d) Promptly upon receipt thereof, a copy of each
other report submitted to the Borrower or any Subsidiary
by independent accountants in connection with any annual,
interim or special audit made by them of the books of the
Borrower or any Subsidiary; and
(e) With reasonable promptness, such other
financial data as the Agent or any Lender may reasonably
request in writing.
Together with the delivery of financial statements at the
end of each fiscal quarter as required by Section 6.1,
the Borrower will deliver to the Lenders an Officer's
Certificate (i) demonstrating (with computations in
reasonable detail) compliance by the Borrower and its
Subsidiaries as at the end of the quarterly period or
fiscal year to which such financial statement relates
with the provisions of Section 7.1 and stating that there
exists no Event of Default or Default, or, if any Event
of Default or Default exists, specifying the nature and
period of existence thereof and what action the Borrower
proposes to take with respect thereto and (ii) specifying
the details of insurance as required pursuant to Section
6.3 hereof. The Borrower also covenants that forthwith
upon the chief executive officer, principal financial
officer, or principal accounting officer of the Borrower
obtaining actual knowledge of any Event of Default or
Default, it will deliver to the Agent an Officer's
Certificate specifying the nature and period of existence
thereof and what action the Borrower proposes to take
with respect thereto. Each Lender is hereby authorized
to deliver a copy of any financial statement delivered to
it pursuant to this Section 6.1 to any regulatory body
having jurisdiction over such Lender and to which such
financial statement is required to be delivered.
Section 6.2. Inspection of Property. The Borrower
shall permit any Person designated in writing by the
Agent or any Lender, at the Agent's or such Lender's
expense, to visit and inspect any of the properties of
the Borrower and any of its Subsidiaries, to examine the
corporate books and financial records of the Borrower and
its Subsidiaries and make copies thereof or extracts
therefrom, and to discuss the affairs, finances and
accounts of any of such corporations with the principal
officers of the Borrower and its independent public
accountants, all at such reasonable times and as often as
the Agent or any Lender may reasonably request.
Section 6.3. Insurance. The Borrower and each
Subsidiary will at all times maintain insurance in such
amounts and against such liabilities and hazards as
customarily is maintained by other companies operating
similar businesses and, together with each delivery of
financial statements under Section 6.1(b), it will
deliver to the Lenders an Officer's Certificate
specifying the details of such insurance then in effect.
Section 6.4. Conduct of Business. Except for the
sale of the Agri Services Division as contemplated in the
Agri Services Purchase Agreement, the Borrower will and
will cause each Subsidiary to remain substantially in the
respective area or field of business in which the
Borrower and each Subsidiary is engaged as of the date of
this Agreement except that the Borrower and its
Subsidiaries may (a) enter other fields or areas of
business or (b) may exit existing fields or areas of
business, to the extent that such fields or areas do not
exceed ten percent (10%) of the Borrower's Shareholders'
Equity.
Section 6.5. Corporate Existence; Maintenance of
Properties. The Borrower shall (a) do or cause to be done
all things necessary to preserve and keep in full force
and effect the corporate or other form of existence as
the case may be, rights and franchises of the Borrower
and its Subsidiaries, (b) will cause its properties and
the properties of its Subsidiaries used or useful in the
conduct of their respective businesses to be maintained
and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, placements,
betterments and improvements thereto, all as in the
judgment of the Borrower may be necessary so that the
businesses carried on in connection therewith may be
properly and advantageously conducted at all times, (c)
will maintain possession and ownership, all franchises,
certificates, licenses, permits and other authorizations
from governmental entities or regulatory authorities, and
all patents, trademarks, service marks, trade names,
copyrights, licenses and other rights that are necessary
in any material respect to the ownership, maintenance and
operation of its business, properties, and assets, and
(d) will and will cause each of its Subsidiaries to
qualify, and remain qualified to conduct business in each
jurisdiction where the nature of the business or
ownership of property by the Borrower, or such
Subsidiary, as the case may be, may legally require such
qualification, except where the failure to so qualify
would not have a Material Adverse Effect.
Section 6.6. Environmental Laws. The Borrower and
its Subsidiaries shall:
(a) Comply in all material respects with and use
best efforts to ensure compliance by all tenants and
subtenants with all applicable Environmental Laws, and
shall obtain and comply with, and use reasonable efforts
to ensure that all tenants and subtenants obtain and
comply with, any and all approvals, registrations or
permits required thereunder.
(b) Promptly report to the Lenders (i) the
introduction of any Hazardous Substances onto any
facility owned or operated by the Borrower or a
Subsidiary thereof except for the use or storage thereof
in the ordinary course of business in compliance with all
Environmental Laws, and (ii) the initiation of any
regulatory action against the Borrower or any Subsidiary
thereof or in connection with any such facility relating
to any release of Hazardous Substances which regulatory
action the Borrower determines is likely to have a
Material Adverse Effect on either the Borrower's or a
Subsidiary's financial condition.
(c) Defend, indemnify, and hold harmless the
Lender, its employees, agents, and officers from and
against any and all penalties, fines, liabilities,
damages, costs, or expenses of whatever kind or nature
asserted against the Lender, except to the extent that
such claims, demands, penalties, fines, liabilities,
damages, costs or expenses result from the gross
negligence or willful misconduct of the Lender or any of
its employees, agents or officers, arising out of, or in
any way related to, (i) the presence, disposal, release,
or threatened release of any Hazardous Substances on any
property at any time owned or occupied by the Borrower or
the Subsidiaries; (ii) any personal injury (including
wrongful death) or property damage (real or personal)
arising out of or related to such Hazardous Substances;
(iii) any lawsuit brought or threatened, reasonable
settlement reached, or government order relating to such
Hazardous Substances, and/or (iv) any violation of laws,
orders, regulations, requirements, or demands of
government authorities, which are based upon or in any
way related to such Hazardous Substances, including,
without limitation, attorney and consultant fees, inves
tigation and laboratory fees, court costs, and litigation
expenses.
Section 6.7. Taxes. The Borrower shall and shall
cause each of its Subsidiaries to pay and discharge, or
cause to be paid and discharged, before the same shall
become delinquent, all taxes, assessments and other
governmental charges levied or imposed upon it or upon
its income, profits or properties, provided that neither
the Borrower nor any of its Subsidiaries shall be
required to pay or cause to be paid or discharged any
such tax assessment, or charge whose amount or validity
is being contested in good faith by appropriate
proceedings and with respect to which adequate reserves
are being maintained and, provided further, that the
Borrower shall, and shall cause each of its Subsidiaries
to, pay all such taxes, assessments and charges forthwith
upon the commencement of proceedings to foreclose any
Lien which may have attached as security therefor.
Section 6.8. Keeping of Books; Fiscal Year. The
Borrower will keep, and cause each of its Subsidiaries to
keep, in accordance with GAAP, proper books of record and
account, containing complete and accurate entries of all
financial and business transactions of the Borrower and
each Subsidiary. Additionally, the Borrower will, and
will cause each of its Subsidiaries to, keep the same
fiscal year end as the one evidenced in the financial
statements delivered under Section 5.2.
Section 6.9. Compliance with Laws and Other
Agreements. (a) The Borrower shall, and shall cause
each Subsidiary to, conduct its business operations and
obtain all necessary permits and licenses in substantial
compliance with (i) all applicable federal, state and
local laws, rules and regulations, and (ii) all
agreements, indentures and mortgages to which it is a
party or by which it or any of its properties is bound,
unless the Borrower's or a Subsidiary's failure to so
comply would not have a Material Adverse Effect on the
Borrower or any Subsidiary; and (b) the Borrower shall
comply with all of the terms and provisions of and
enforceits rights to the fullest extent possible under
the Agri Services Purchase Agreement.
Section 6.10. Notice of Default. The Borrower
shall notify the Lender of the occurrence of any Default,
Event of Default and of any default under any material
agreement, which shall be defined for the purposes of
this Section 6.10 as any agreement related to Indebt
edness in excess of $500,000, or obligation with any
other Person, to which it or a Subsidiary is a party or
by which it or a Subsidiary or any of its or a
Subsidiary's properties are bound, said notices to be
given immediately upon the Borrower's obtaining actual
knowledge thereof; provided, however, the failure of the
Borrower to give such notice shall not affect the right
and power of the Lender to exercise any or all of the
remedies on default specified herein.
Section 6.11. Notice of Litigation. The Borrower
shall notify the Lender of any action, suit or proceeding
instituted by any Person against it or a Subsidiary (i)
where the uninsured claim for money damages is in excess
of $1,000,000 or (ii) which would cause the aggregate of
uninsured claims for money damages in all actions, suits
or proceedings against it or a Subsidiary arising out of
one set of related facts or circumstances to exceed
$2,000,000 or (iii) which otherwise might have a Material
Adverse Effect on its or any Subsidiary's assets or
business operations, said notice to be given within 10
calendar days of the first notice to the Borrower or any
Subsidiary of the institution of such action, suit or pro
ceeding and to specify the amount of damages being
claimed or other relief being sought, the nature of the
claim, the Person instituting the action, suit or
proceeding, and any other significant features of the
claim.
Section 6.12. ERISA. Promptly (and in any event
within 30 days) after the Borrower or any of its
Subsidiaries knows or has reason to know that a
Reportable Event with respect to any Plan has occurred,
that any Plan is or may be terminated, reorganized, parti
tioned or declared insolvent under Title IV of ERISA, or
that the Borrower or any of its Subsidiaries will or may
incur any material liability to or on account of a Plan
under Section 4062, 4063, 4064, 4201 or 4204 of ERISA,
the Borrower will deliver to the Lender, so long as the
Lender shall hold any Note, a certificate of the chief
financial officer of the Borrower setting forth
information as to such occurrence and what action, if
any, the Borrower is required or proposes to take with
respect thereto, together with any notices concerning
such occurrences which are required to be filed with or
by the Borrower, the PBGC or the plan administrator of
any such Plan, as the case may be. The Borrower shall
furnish, at the request of any Lender, so long as such
Lender shall hold any Note, a copy of each annual report
(Form 5500 Series) of any Plan received or prepared by
the Borrower or any of its Subsidiaries. Each annual
report and any notice required to be delivered hereunder
shall be delivered no later than 10 days after the later
of the date such report or notice is filed with the
Internal Revenue Service or the PBGC or the date such
report or notice is received by the Borrower or any of
its Subsidiaries, as the case may be.
Section 6.13. Use of Proceeds. The Borrower shall
use the proceeds of all Loans only in the manner set
forth in Section 3.20 of this Agreement.
Section 6.14. Borrowing Base Certificate/Hedging
Position Reports. Within 21 Business Days of the last
day of each month, the Borrower shall deliver to the
Agent a Borrowing Base Certificate dated as of the last
day of such month. Upon the request of the Agent, the
Borrower shall prepare and deliver a Borrowing Base
Certificate at such other intervals as the Agent shall
specify. With each delivery of a Borrowing Base
Certificate, the Borrower shall also deliver to the Agent
a Hedging Position Report.
Section 6.15. Delivery of Pledge Agreement and ADM
Shares. If the Rabobank Total Return Swap is terminated
in accordance with its provisions, the Borrower
immediately shall cause GK Finance to execute and deliver
to the Agent, for the benefit of the Lenders, the Pledge
Agreement, and to deliver the ADM Shares and such stock
powers, executed in blank, as the Agent shall request.
Section 6.16 Year 2000 Capability. The Borrower
shall take all action necessary to assure that the
Borrower's computer based systems are able to effectively
process data including dates prior to, on and after
January 1, 2000. At the request of the Agent or any
Bank, the Borrower shall provide the Agent or such Bank,
as the case may be, with evidence of the Borrower's year
2000 capability.
ARTICLE 7.
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as
it may borrow under this Agreement or so long as any
Indebtedness remains Outstanding under the Notes:
Section 7.1. Financial Covenants.
(a) Consolidated Funded Debt to Total Capital
Ratio. The Borrower shall not permit the ratio of
Consolidated Funded Debt to Total Capital for any fiscal
quarter to exceed 0.65 to 1.00.
(b) Minimum Consolidated Tangible Net Worth. The
Borrower's Consolidated Tangible Net Worth will at no
time prior to the end of Borrower's fourth quarter, 1998
be less than $225,000,000, and thereafter will at no time
be less than $225,000,000 plus the sum of (i) 75% of the
cumulative Reported Net Income of the Borrower and its
Consolidated Subsidiaries during the period commencing
with Borrower's first quarter, 1999 (taken as one
accounting period), calculated quarterly at the end of
each Fiscal Quarter, and (ii) 100% of the cumulative Net
Proceeds of Capital Stock received during any period
after the Closing Date, but excluding from such
calculations of Reported Net Income for purposes of this
clause any Fiscal Quarter in which the Reported Net
Income of the Borrower and its Consolidated Subsidiaries
is negative.
(c) Current Ratio. The Borrower shall not permit
the ratio of Consolidated Current Assets to Consolidated
Current Liabilities to be less than 1.25 to 1.0,
calculated on a quarterly basis.
(d) Fixed Charge Coverage. The Borrower shall not
permit the ratio of (a) EBIT plus Consolidated Lease
Expense to (b) Consolidated Interest Expense plus
Consolidated Lease Expense for each fiscal quarter set
forth below, calculated (x) for the first three fiscal
quarters of fiscal year 1999, quarterly for the fiscal
quarter then ending, (y) for the last fiscal quarter of
fiscal year 1999 and the first three fiscal quarters of
fiscal year 2000, quarterly for the fiscal quarter then
ending and the preceding three fiscal quarters, and (z)
for the last fiscal quarter of fiscal year 2000 and
thereafter, quarterly for the fiscal quarter then ending
and the preceding seven fiscal quarters, to be less than
the ratio set forth opposite the relevant fiscal quarter
in the following table:
Fiscal Quarter Ratio
First Quarter, 1999 1.80
Second Quarter, 1999 .50
Third Quarter, 1999 .75
Fourth Quarter, 1999 through
Third Quarter, 2000 1.50
Fourth Quarter, 2000 and
Thereafter 1.75
(e) Senior Debt Coverage. The Borrower shall not
permit the ratio of (a) Consolidated Senior Debt to (b)
EBITDA, for each fiscal quarter set forth below,
calculated for the fiscal quarter then ending and the
preceding three fiscal quarters, to be more than the
ratio set forth opposite the relevant fiscal quarter in
the following table:
Fiscal Quarter Ratio
First Quarter, 1999 through
Third Quarter, 1999 3.00
Fourth Quarter, 1999 and
Thereafter 2.75
provided that, for purposes of computing the ratio as of
the end of the First Quarter, 1999, EBITDA shall be
EBITDA for such quarter and for the preceeding two
quarters, plus $3,400,000.
In the event the Agri Services Purchase Agreement
has not been consummated on or before November 30, 1998,
(or on or before such later date as may be designated by
the Term Loan Lenders in their sole discretion, but in no
event later than December 31, 1998), the applicable
ratios for this clause (e) as set forth above shall be
replaced with the following ratios:
Fiscal Quarter Ratio
First Quarter, 1999 through
Third Quarter, 1999 5.25
Fourth Quarter, 1999 and
Thereafter 4.25
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
Subordinated Debt, including, but not limited to, its
Subordinated Capital Certificates of Interest,
Subordinated Loan Certificates and Cumulative Preferred
Certificates of Interest (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 the Borrower
may make (a) cash patronage refunds in fiscal year 1999
and thereafter 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 amount not to exceed $5,000,000
in any fiscal year; provided 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. 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.
Section 7.3. Liens. The Borrower shall not, and
shall not permit any Subsidiary to, create, assume or
suffer to exist any Lien upon any of its property or
assets whether now owned or hereafter acquired, except:
(a) Liens existing prior to the date of this
Agreement, as set forth on Schedule 7.3 attached hereto;
(b) Liens for taxes not yet due, and Liens for
taxes or Liens imposed by ERISA which are being contested
in good faith by appropriate proceedings and with respect
to which adequate reserves are being maintained;
(c) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other
Liens imposed by law created in the ordinary course of
business for amounts not yet due or which are being
contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being
maintained;
(d) Liens incurred or deposits made in the
ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-
money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(e) Liens securing purchase money debt,
provided that (i) the Lien in each instance does not
extend beyond the assets acquired with the purchase money
debt, and (ii) the aggregate of such debt so secured does
not exceed five percent (5%) of Consolidated Net Worth;
(f) Liens consisting of encumbrances in the
nature of zoning restrictions, easements and rights or
restrictions of record on the use of real property, which
do not materially detract from the value of such property
or impair the use thereof in the business of such Person;
(g) Liens securing the obligations due to the
parties to that certain Intercreditor Agreement dated as
of August 4, 1998;
(h) Liens against the ADM Shares created in
connection with the Rabobank Total Return Swap; and
(i ) any Lien on any assets that may be purchased
by the Borrower with respect to two potential poultry
acquisitions currently being considered by the Borrower
and previously disclosed on a confidential basis to the
Lenders, provided that (A) each such Lien secures Debt
incurred or assumed for the purpose of financing all or
any part of the cost of acquiring or constructing such
assets, (B) such Lien attaches to such assets within 30
days of the acquisition or completion of construction
thereof, which acquisition or completion of construction
shall occur on or before June 30, 1999, and (C) such Debt
is not secured by any other Lien.
Section 7.4. Restrictions on Loans, Advances,
Investments, Asset Acquisitions and Contingent
Liabilities. The Borrower shall not and shall not permit
any Subsidiary to (i) make or permit to remain
outstanding any loan or advance to, or extend credit
other than credit extended in the normal course of
business to any Person which is not an Affiliate of the
Borrower, or (ii) guarantee, endorse or otherwise be or
become contingently liable, directly or indirectly, in
connection with the obligations, stock or dividends of
any Person, or (iii) own, purchase or acquire any stock,
obligations or securities of, or any other interest in,
or make any capital contribution to, any Person, or (iv)
acquire all, or substantially all, of the assets of any
Person, in a single or a series of related transactions;
except that the Borrower or any Subsidiary may:
(a) make or permit to remain outstanding loans,
advances, indemnities, or guarantees to any Subsidiary
that has executed and delivered the Subsidiary Guaranty;
(b) acquire and own stock, obligations or
securities received in settlement of debts (created in
the ordinary course of business) owing to the Borrower or
any Subsidiary;
(c) own, purchase or acquire prime commercial paper
and certificates of deposit in United States commercial
banks (whose long-term debt is rated "A" or better by
Moody s Investors Service or Standard and Poor's
Corporation), in each case due within one year from the
date of purchase and payable in the United States in
Dollars;
(d) own, purchase and acquire obligations of the
United States Government or any agency thereof, in each
case due within one year from the date of purchase;
(e) own, purchase and acquire obligations
guaranteed by the United States Government, in each case
due within one year from the date of purchase;
(f) own, purchase and acquire repurchase agreements
of United States commercial banks (whose long-term debt
is rated "A" or better by Moody's Investors Service or
Standard and Poor's Corporation) for terms of less than
one year in respect of the foregoing certificates and
obligations;
(g) own, purchase and acquire tax-exempt securities
maturing within one year from the date of purchase and
rated "A" or better by Moody's Investors Service or
Standard and Poor's Corporation;
(h) own, purchase and acquire adjustable rate
preferred stocks rated "A" or better by Moody's Investors
Service or Standard and Poor's Corporation;
(i) endorse negotiable instruments for collection
in the ordinary course of business;
(j) make or permit to remain outstanding travel and
other like advances to officers and employees in the
ordinary course of business;
(k) make or permit to remain outstanding
investments as a general partner in Golden Peanut in
amount not to exceed $27,500,000;
(l) make or permit to remain outstanding loans from
Agratrade Financing, Inc., a wholly-owned subsidiary of
the Borrower, to members and non-members of the Borrower
(provided that all such loans are made to facilitate the
business of the Borrower ) in an amount not to exceed (x)
$110,000,000 from the date of this Agreement until the
consummation of the Agri Services Purchase Agreement, and
(y) $20,000,000 after the consummation of the Agri
Services Purchase Agreement.
(m) make or permit to remain outstanding
investments in the Archer-Daniels Midland Company
existing on the date hereof plus increases due to normal
dividend reinvestment plans, stock splits, stock
dividends or similar arrangements;
(n) make or permit to remain outstanding
investments described on Schedule 7.4 attached hereto;
(o) make or permit to remain outstanding
investments in GC Properties;
(p) guarantee or otherwise be or become liable for
obligations of Young Pecan not to exceed an aggregate
amount of $65,000,000;
(q) guarantee or otherwise be or become liable for
obligations of S.G. Williams Company, LLC, not to exceed
an aggregate amount of $4,000,000;
(r) have increases in existing investments arising
from non-cash notified equity or other equity methods of
accounting for equity increases which are non-cash;
(s) guarantee the obligations of GK Finance arising
pursuant to the Rabobank Total Return Swap;
(t) purchase the stock of any Person the only
assets of which are assets described in Section 7.3(i)
hereof; and
(u) purchase the assets described in Section 7.3(i)
hereof.
Section 7.5. Sale of Stock and Debt of
Subsidiaries. Without the prior written consent of the
Required Lenders, which consent shall be at the sole
discretion of the Required Lenders, the Borrower shall
not and shall not permit any Subsidiary to sell or
otherwise dispose of, or part with control of, any shares
of stock or Indebtedness of any Subsidiary, except to the
Borrower or another Subsidiary, and except that all
shares of stock and Indebtedness of any Subsidiary at the
time owned by or owed to the Borrower and all
Subsidiaries may be sold as an entirety for a cash
consideration which represents the fair value (as
determined in good faith by the Board of Directors of the
Borrower) at the time of sale of the shares of stock and
Indebtedness so sold, provided that the assets of such
Subsidiary do not constitute a substantial part of the
consolidated assets of the Borrower and all Subsidiaries
and that the earnings of such Subsidiary shall not have
constituted a substantial part of Consolidated Net
Earnings for any of the three fiscal years then most
recently ended, and further provided that, at the time of
such sale, such Subsidiary shall not own, directly or
indirectly, any shares of stock or Indebtedness of any
other Subsidiary (unless all of the shares of stock and
Indebtedness of such other Subsidiary owned, directly or
indirectly, by the Borrower and all Subsidiaries are
simultaneously being sold as permitted by this Section
7.5).
As used in Section 7.4, Section 7.5, Section 7.6 and
Section 8.1(j), a "substantial part of" the consolidated
assets of the Borrower and all Subsidiaries shall mean
assets which, as a whole, (x) constitute more than 10% of
Consolidated Total Assets or (y) contributed more than
15% of Consolidated Net Earnings for any one or more of
the three prior fiscal years of the Borrower.
Section 7.6. Merger and Sale of Assets. The
Borrower shall not and shall not permit any Subsidiary to
enter into any transaction of merger, consolidation,
pooling of interest, joint venture, syndicate or other
combination with any other Person or sell, lease,
transfer, contribute as capital, or otherwise dispose of
all or a substantial part of the consolidated assets of
the Borrower and all Subsidiaries or assets which shall
have contributed a substantial part of Consolidated Net
Earnings for any of the three fiscal years then most
recently ended, in any single transaction or series of
related transactions, to any Person, except that:
(a) any Subsidiary may merge with the Borrower,
provided that the Borrower shall be the continuing or
surviving corporation, or with any one or more other
Subsidiaries;
(b) any Subsidiary may sell, lease or otherwise
dispose of any of its assets to the Borrower or another
Subsidiary;
(c) any Subsidiary may sell or otherwise dispose of
all or substantially all of its assets subject to the
conditions specified in Section 7.5 with respect to a
sale of the stock of such Subsidiary; and
(d) the Borrower may consummate the transactions
contemplated by the AgriServices Purchase Agreement.
Section 7.7. Sale and Lease-Back. The Borrower
shall not and shall not permit any Subsidiary to enter
into any arrangement, with any Person or under which such
other Person is a party, providing for the leasing by the
Borrower or any Subsidiary of real or personal property,
used by the Borrower or any Subsidiary in the operations
of the Borrower or any Subsidiary, which has been or is
sold or transferred by the Borrower or any Subsidiary to
any other Person to whom funds have been or are to be
advanced by such other Person on the security of such
rental obligations of the Borrower or such Subsidiary
except to the extent that the total amount of such
arrangements involve, at any one time, assets or property
which constitute an amount equal to or less than ten
percent (10%) of Consolidated Total Capital Assets.
Section 7.8. Sale or Discount of Receivables.
Except for the sale of receivables in accordance with the
terms of the Agri Services Purchase Agreement, the
Borrower shall not and shall not permit any Subsidiary to
sell with recourse or discount or otherwise sell for less
than the face value thereof, any of its notes or accounts
receivable.
Section 7.9. Hedging Contracts. The Borrower
shall not, and shall not permit any Subsidiary to, enter
into any Hedging Contract except: (a) bona fide hedging
transactions in commodities that represent production
inputs or products to be marketed, or in commodities
needed in operations to meet manufacturing or market
demands, provided that (i) long positions and/or options
sold on corn and wheat shall in no event cover more than
thirteen weeks of the Borrower's anticipated requirements
for feed ingredients, and such positions and/or options
shall not cover more than six and one-half weeks of such
anticipated requirements unless they have been entered
into in compliance with the Borrower's Corporate Policy
For Futures Contracts approved by the Borrower's Board of
Directors on April 24, 1998 and have been approved by the
Borrower's Hedging Committee, (ii) long positions and/or
options sold on soybean meal shall in no event cover more
than thirteen weeks of the Borrower's anticipated
requirements for feed ingredients, and such positions
and/or options shall not cover more than six and one-half
weeks of such anticipated requirements unless they have
been entered into in compliance with the Borrower's
Corporate Policy For Futures Contracts approved by the
Borrower's Board of Directors on April 24, 1998 and have
been approved by the Borrower's Hedging Committee, (iii)
short positions on corn shall not exceed 2,000,000
bushels, and shall at all times relate to corn owned or
contracted for purchase, and (iv) all short positions on
cotton owned or expected to be purchased by the Borrower
must be reasonably related to the expected sale dates of
such cotton and to the amounts of such cotton expected to
be sold; and (b) foreign exchange contracts, currency
swap agreements, interest rate exchange agreements, in
terest rate cap agreements, interest rate collar
agreements, and other similar agreements and arrangements
which are reasonably related to existing indebtedness or
to monies to be received or paid in foreign currencies.
Section 7.10. Issuance of Stock by Subsidiaries.
The Borrower shall not permit any Subsidiary (either
directly or indirectly by the issuance of rights or
options for, or securities convertible into, such shares)
to issue, sell or dispose of any shares of its stock of
any class (other than directors' qualifying shares, if
any) except to the Borrower or another Subsidiary.
Section 7.11. Capital Expenditures. The Borrower
and its Subsidiaries shall not, on a consolidated basis,
directly or indirectly, make Capital Expenditures in the
aggregate in fiscal year 1998 exceeding $84,000,000, and
in any fiscal year thereafter exceeding $45,000,000;
provided that, the Borrower's permitted Capital
Expenditures in fiscal year 1999 shall be reduced dollar
for dollar by the amount that Borrower's Capital
Expenditures in 1998 exceed $70,000,000.
Section 7.12. Indebtedness for Money Borrowed. The
Borrower shall not, and shall not permit any Subsidiary
to, create, incur, assume, or suffer to exist any
Indebtedness for Money Borrowed, except for the
following:
(i) the Notes;
(ii) Indebtedness (including guaranties) which
may be deemed to exist pursuant to any performance,
surety, appeal or similar bonds obtained by the
Borrower or any of its Subsidiaries in the ordinary
course of business;
(iii) Indebtedness for Money Borrowed in
existence on the date hereof and set forth on
Schedule 5.8.
(iv) Subordinated Debt;
(v) reimbursement obligations under letters of
credit issued by any of the Lenders, provided that the
aggregate principal amount of such reimbursement
obligations does not exceed $20,000,000 at any one
time; and
(vi) Indebtedness for Money Borrowed in an
aggregate amount not to exceed $100,000,000, provided
that that such Indebtedness is secured by a Lien
permitted by Section 7.3 (i) hereof.
Section 7.13. Transactions with Affiliates. The
Borrower shall not, and shall not permit any Subsidiary
to, enter into or be a party to any transaction or
arrangement with any Affiliate (including, without
limitation, the purchase from, sale to or exchange of
property with, or the rendering of any service by or for,
any Affiliate), except in the ordinary course of and
pursuant to the reasonable requirements of the Borrower's
or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Borrower or
such Subsidiary than would obtain in a comparable arm's-
length transaction with a Person other than an Affiliate.
Section 7.14. Creation of Subsidiaries. The
Borrower shall not, and shall not permit any Subsidiary
to, create any Subsidiary except for the creation of a
Wholly Owned Subsidiary, provided that (i) such
Subsidiary is organized under the laws of a jurisdiction
within the United States of America, (ii) such Subsidiary
executes at the time of its creation the Subsidiary
Guaranty Agreement and the Contribution Agreement, (iii)
an opinion of counsel, acceptable to the Agent, is
delivered to the Banks confirming the due organization of
such Subsidiary, the enforceability of the Subsidiary
Guaranty Agreement and the Contribution Agreement against
such Subsidiary, and such other matters as the Agent may
reasonably request, and (iv) no Default exists
immediately prior to or after the creation of the
Subsidiary.
ARTICLE 8.
EVENTS OF DEFAULT AND REMEDIES
Section 8.1. Events of Default. Any one or more
of the following shall constitute an Event of Default
hereunder:
(a) The Borrower fails to pay when due any payment
of principal due on any of the Notes; or
(b) The Borrower fails to pay within five (5) days
of the due date therefor any payment of (i) interest due
on any of the Notes or (ii) any fees provided for herein;
or
(c) The Borrower or any Subsidiary defaults in any
payment of principal or interest on any other obligation
for Indebtedness or money borrowed (or any obligation
under a Capital Lease, any obligation under a conditional
sale or other title retention agreement, any obligation
issued or assumed as full or partial payment for property
whether or not secured by a purchase money mortgage, or
any obligation under notes payable or drafts accepted
representing extensions of credit) having a principal
amount of $1,000,000 or more beyond any period of grace
provided with respect thereto, or the Borrower or any
Subsidiary fails to perform or observe any other
agreement, term, condition or covenant contained in any
agreement under which any such obligation is created (or
if any other event thereunder or any such agreement shall
occur and be continuing), and in each case the effect of
such failure or other event is to cause or to permit the
holder or holders of such obligation (or a trustee on
behalf of such holder or holders) to cause such
obligation to become due prior to any stated maturity; or
(d) Any representation or warranty contained herein
or deemed to have been made hereunder or made by or
furnished in writing on behalf of the Borrower in
connection herewith shall be false or misleading in any
material respect as of the date made or deemed to have
been made, or the Borrower fails to perform or observe
any covenant contained in Sections 6.1, 6.9(b), 6.14, or
6.15 or Article 7 of this Agreement; or
(e) The Borrower fails to perform or observe any
covenant, term or condition contained in this Agreement
(other than those contained in Sections 6.1, 6.9(b),
6.14, or 6.15 or Article 7) and such failure shall
continue for more than 30 calendar days after the earlier
of (i) the date which the Borrower obtains knowledge
thereof or (ii) the Borrower is given notice thereof; or
(f) The Borrower or any Subsidiary shall make or
take any action to make an assignment for the benefit of
creditors, petition or take any action to petition any
tribunal for the appointment of a custodian, receiver or
any trustee for it or a substantial part of its assets,
or shall commence or take any action to commence any
proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution,
liquidation or debtor relief law or statute of any
jurisdiction, whether now or hereafter in effect
including, without limitation, the Bankruptcy Code; or,
if there shall have been filed any such petition or
application, or any such proceeding shall have been
commenced against it, in which an order for relief is
entered which remains unstayed and in effect for more
than 60 days; or the Borrower or any Subsidiary by any
act or omission shall indicate its consent to, approval
of or acquiescence in any such petition, application or
proceeding or order for relief or the appointment of a
custodian, receiver or any trustee for it or any
substantial part of any of its properties, or shall
suffer to exist any such custodianship, receivership or
trusteeship; or
(g) The Borrower or any Subsidiary shall have
concealed, removed, or permitted to be concealed or
removed, any part of its property, with intent to hinder,
delay or defraud its creditors or any of them, or made or
suffered a transfer of any of its property which may be
fraudulent under any bankruptcy, fraudulent conveyance or
similar law; or shall have made any transfer of its
property to or for the benefit of a creditor at a time
when other creditors similarly situated have not been
paid while the Borrower or such Subsidiary is insolvent;
or shall have suffered or permitted, while insolvent, any
creditor to obtain a Lien upon any of its property
through legal proceedings or distraint which is not
vacated or bonded within 60 calendar days from the date
thereof; or
(h) Any order, judgment or decree is entered in any
proceedings against the Borrower decreeing the
dissolution of the Borrower and such order, judgment or
decree remains unstayed and in effect for more than 60
days; or
(i) Any order, judgment or decree is entered in any
proceedings against the Borrower or any Subsidiary
decreeing a split-up of the Borrower or such Subsidiary
which requires the divestiture of assets representing a
substantial part, or the divestiture of the stock of a
Subsidiary whose assets represent a substantial part, of
the consolidated assets of the Borrower and its
Subsidiaries (determined in accordance with GAAP) or
which requires the divestiture of assets or stock of a
Subsidiary which shall have contributed a substantial
part of Consolidated Net Earnings for any of the three
fiscal years then most recently ended, and such order,
judgment or decree remains unstayed and in effect for
more than 30 days; or
(j) A final judgment in an amount in excess of
$10,000,000 is rendered against the Borrower or any
Subsidiary and, within 30 days after entry thereof, such
judgment is not discharged or execution thereof stayed
pending appeal, or within 30 days after the expiration of
any such stay, such judgment is not discharged or
provided for in accordance with a court approved order;
or
(k) Either (i) any single employer Plan or
Multiemployer Plan fails to maintain the minimum funding
standard required by Section 412 of the Code for any plan
year or a waiver of such standard is sought or granted
under Section 412(d) of the Code, or (ii) any single
employer Plan or Multiemployer Plan subject to Title IV
of ERISA is or has been terminated or the subject of
termination proceedings under ERISA, or (iii) the
Borrower or a Subsidiary of the Borrower or an ERISA
Affiliate has incurred a liability to or on account of
any Plan under Section 4062, 4063, 4064, 4201 or 4204 of
ERISA, or (iv) the Borrower or a Subsidiary of the
Borrower has engaged in a prohibited transaction, and
there results from any of the events specified in clauses
(i) through (iv) above a liability to the PBGC or any
Plan, or a liability, penalty or tax under ERISA or
Section 4975 of the Code, as the case may be, equal to or
greater than $1,000,000 that is not paid within 10 days
of the due date therefor;
(l) Any Person and its Affiliates acquires or
possesses, directly or indirectly, (1) the power (A) to
vote 40% or more of the securities having ordinary voting
power for the election of directors of the Borrower or
(B) to direct or cause the direction of the management
and policies of the Borrower, whether through the
ownership of voting securities, by contract or otherwise
or (2) 40% of the outstanding securities of the Borrower;
(m) Except pursuant to their release or termination
in accordance with their terms or the terms hereof, (i)
any of the Collateral Documents shall cease, for any
reason, to be in full force and effect, or the Borrower
or any other Person which is a party to any of the
Collateral Documents shall so assert, or (ii) any Lien
created by any of the Collateral Documents shall cease to
be enforceable and of the same effect and priority
purported to by created thereby: or
(n) The Subsidiary Guaranty shall cease, for any
reason, to be in full force and effect or the Borrower or
any party thereto shall so assert.
Section 8.2. Remedies on Default.
(a) Upon the occurrence of an Event of Default
(other than an Event of Default described in Section
8.1(f)) and during the continuation thereof, the Agent
may and, at the request of the Required Lenders and at
their option, shall (i) terminate all obligations of the
Lenders to the Borrower, including, without limitation,
all obligations to extend Loans under this Agreement and
(ii) declare the Notes, including, without limitation,
principal, accrued interest and costs of collection
(including, without limitation reasonable attorneys' fees
if collected by or through an attorney at law or in any
judicial proceedings) immediately due and payable,
without presentment, demand, protest or any other notice
of any kind, all of which are expressly waived.
(b) Upon the occurrence of an Event of Default
under Section 8.1(f), (i) all obligations of the Lenders
to the Borrower, including, without limitation, all
obligations to extend Loans under this Agreement, shall
terminate and (ii) the Notes, including, without
limitation, principal, accrued interest and costs of
collection (including, without limitation, reasonable
attorneys' fees if collected by or through an attorney at
law or in bankruptcy or in any other judicial
proceedings) shall be immediately due and payable,
without presentment, demand, protest, or any other notice
of any kind, all of which are expressly waived.
(c) Upon the occurrence of an Event of Default and
acceleration of the Notes as provided in (a) or (b)
above, the Lenders and the Agent, or any of them, may
pursue any remedy available under this Agreement, under
the Notes, or under any other Loan Document, or available
at law or in equity, all of which shall be cumulative.
The order and manner in which the rights and remedies of
the Lenders under the Loan Documents and otherwise may be
exercised shall be determined by the Required Lenders.
(d) All payments with respect to this Agreement
received by the Agent and the Lenders, or any of them,
after the occurrence of an Event of Default and
acceleration of the Notes, shall be applied first to the
costs and expenses (including attorneys' fees and
disbursements) incurred by the Agent, acting as the
Agent, and the Lenders as a result of the Default, and
thereafter paid pro rata to the Lenders in the same
proportion that the aggregate of the unpaid principal
amount owing on the Notes to each Lender, plus accrued
and unpaid interest thereon, bears to the aggregate of
the unpaid principal amount owing on all the Notes to all
Lenders, plus accrued and unpaid interest thereon.
Regardless of how each Lender may treat the payments for
the purpose of its own accounting, for the purpose of
computing the Borrower's obligations hereunder and under
the Notes, payments shall be applied first, to the costs
and expenses incurred by the Agent, acting as the Agent,
and the Lenders as a result of the Default, as set forth
above, second, to the payment of accrued and unpaid fees
of the Agent and the Lenders, third, to the payment of
accrued and unpaid interest on the Notes, to and
including the date of such application (ratably according
to the accrued and unpaid interest on the Loans), fourth,
to the ratable payment of the unpaid principal of the
Notes, and fifth, to the payment of all other amounts
then owing to the Agent or the Lenders under the Loan
Documents. No application of the payments will cure any
Event of Default or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents
or prevent the exercise, or continued exercise, of rights
or remedies of the Lenders hereunder or under applicable
law.
ARTICLE 9.
THE AGENT
Section 9.1. Appointment and Authorization. Each
Lender hereby designates Rabobank as the Agent to act as
herein specified. Each Lender hereby irrevocably
authorizes, and each holder of any Note by the acceptance
of a Note shall be deemed irrevocably to authorize, the
Agent to take such action on its behalf under the
provisions of this Agreement and the Notes and any other
instruments and agreements referred to herein and to
exercise such powers and to perform such duties hereunder
and thereunder as are specifically delegated to or
required of the Agent by the terms hereof and thereof and
such other powers as are reasonably incidental thereto.
The Agent may perform any of its duties hereunder by or
through its agents or employees.
Section 9.2. Nature of Duties of the Agent. The
Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement. Neither the
Agent nor any of its officers, directors, employees or
agents shall be liable for any action taken or omitted by
it as such hereunder or in connection herewith, unless
caused by its or their own gross negligence or willful
misconduct. Without limiting in any way the standard of
care established by the immediately preceding sentence,
in performing its duties and responsibilities set forth
in this Agreement, the Agent shall act in accordance with
its customary banking practices. The Agent shall not
have by reason of this Agreement a fiduciary relationship
in respect of any Lender; and nothing in this Agreement,
expressed or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in
respect of this Agreement except as expressly set forth
herein.
Section 9.3. Lack of Reliance on the Agent.
(a) Each Lender agrees that, independently and
without reliance upon the Agent, any other Lender, or the
directors, officers, agents or employees of the Agent or
of any other Lender, each Lender, to the extent it deems
appropriate, has made and shall continue to make (i) its
own independent investigation of the financial condition
and affairs of the Borrower and its Subsidiaries in
connection with the taking or not taking of any action in
connection with this Agreement and the other Loan
Documents, including the decision to enter into this
Agreement, and (ii) its own appraisal of the
creditworthiness of the Borrower and its Subsidiaries,
and, except as expressly provided in this Agreement, the
Agent shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Lender
with any credit or other information with respect
thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter.
(b) The Agent shall not be responsible to any
Lender for any recitals, statements, information,
representations or warranties herein or in any document,
certificate or other writing delivered in connection
herewith or for the execution, effectiveness,
genuineness, validity, enforceability, collectibility,
priority or sufficiency of this Agreement or the Notes or
the financial condition of the Borrower or its
Subsidiaries or be required to make any inquiry
concerning either the performance or observance of any of
the terms, provisions or conditions of this Agreement or
the Notes, or the financial condition of the Borrower or
its Subsidiaries, or the existence or possible existence
of any Default or Event of Default.
Section 9.4. Certain Rights of the Agent.
(a) If the Agent shall request instructions from
the Required Lenders with respect to any act or action
(including the failure to act) in connection with this
Agreement, the Agent shall be entitled to refrain from
such act or taking such action unless and until the Agent
shall have received instructions from the Required
Lenders and the Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent
acting or refraining from acting hereunder in accordance
with the instructions of the Required Lenders; provided,
however, that the Agent shall not be required to act or
not act in accordance with any instructions of the
Required Lenders if to do so would expose the Agent to
significant liability or would be contrary to any Loan
Document or to applicable law.
(b) The Agent may assume that no Event of Default
has occurred and is continuing, unless the Agent has
received notice from the Borrower stating the nature of
the Event of Default, or has received notice from a
Lender stating the nature of the Event of Default and
that such Lender considers the Event of Default to have
occurred and to be continuing.
(c) If the Agent may not, pursuant to Section
9.4(b), assume that no Event of Default has occurred and
is continuing, the Agent shall give notice thereof to the
Lenders and shall act or not act upon the instructions of
the Required Lenders, provided that the Agent shall not
be required to act or not act if to do so would expose
the Agent to significant liability or would be contrary
to any Loan Document or to applicable law, and provided
further, that if the Required Lenders fail, for five days
after the receipt of notice from the Agent, to instruct
the Agent, then the Agent, in its discretion, may act or
not act as it deems advisable for the interests of the
Lenders.
Section 9.5. Liability of the Agent. Neither the
Agent nor any of its respective directors, officers,
agents, or employees shall be liable for any action taken
or not taken by them under or in connection with the Loan
Documents, except for their own gross negligence or
willful misconduct. Without limitation on the foregoing,
the Agent and its respective directors, officers, agents,
and employees:
(a) may treat the payee of any Note as the holder
thereof until the Agent receives notice of the assignment
or transfer thereof in form satisfactory to the Agent,
signed by the payee and may treat each Lender as the
owner of that Lender's interest in the obligations due to
the Lenders for all purposes of this Agreement until the
Agent receives notice of the assignment or transfer
thereof, in form satisfactory to the Agent, signed by
that Lender;
(b) may consult with legal counsel, in-house legal
counsel, independent public accountants, in-house
accountants and other professionals, or other experts
selected by it with reasonable care, or with legal
counsel, independent public accountants, or other experts
for the Borrower, and shall not be liable for any action
taken or not taken by it or them in good faith in
accordance with the advice of such legal counsel,
independent public accountants, or experts;
(c) will not be responsible to any Lender for any
statement, warranty, or representation made in any of the
Loan Documents or in any notice, certificate, report,
request, or other statement (written or oral) in
connection with any of the Loan Documents;
(d) except to the extent expressly set forth in the
Loan Documents, will have no duty to ascertain or inquire
as to the performance or observance by the Borrower or
any other Person of any of the terms, conditions, or
covenants of any of the Loan Documents or to inspect the
property, books, or records of the Borrower or any
Subsidiary or other Person;
(e) will not be responsible to any Lender for the
due execution, legality, validity, enforceability,
genuineness, effectiveness, sufficiency, or value of any
Loan Document any other instrument or writing furnished
pursuant thereto or in connection therewith;
(f) will not incur any liability by acting or not
acting in reliance upon any Loan Document, notice,
consent, certificate, document, statement, telecopier
message or other instrument or writing believed by it or
them to be genuine and to have been signed, sent or made
by the proper Person; and
(g) will not incur any liability for any
arithmetical error in computing any amount payable to or
receivable from any Lender hereunder, including, without
limitation, payment of principal and interest on the
Notes, Loans, and other amounts; provided that promptly
upon discovery of such an error in computation, the
Agent, the Lenders, and (to the extent applicable) the
Borrower shall make such adjustments as are necessary to
correct such error and to restore the parties to the
position that they would have occupied had the error not
occurred.
Section 9.6. Indemnification. Each Lender shall,
ratably in accordance with the respective outstanding
principal amount of its Loans, indemnify and hold the
Agent and its directors, officers, the agents, and
employees harmless against any and all liabilities,
obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements of
any kind or nature whatsoever (including, without
limitation, attorneys' fees and disbursements) that may
be imposed on, incurred by, or asserted against it or
them in any way relating to or arising out of this
Agreement or of the failure by the Borrower to pay the
obligations due to the Lenders hereunder or under the
Notes or any action taken or not taken by it as the Agent
hereunder, except for such person's own gross negligence
or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse the Agent upon
demand for that Lender's ratable share of any cost or
expense incurred by the Agent in connection with the
negotiation, preparation, execution, delivery,
administration, amendment, waiver, refinancing,
restructuring, reorganization (including a bankruptcy
reorganization), or enforcement of the Loan Documents, to
the extent that the Borrower fails to pay such cost or
expense upon demand.
Section 9.7. The Agent and Affiliates. Rabobank
(and each successor Agent) has the same rights and powers
under the Loan Documents as any other Lender and may
exercise the same as though it were not the Agent; and
the term the "Lender" or the "Lenders" includes Rabobank
in its individual capacity. Rabobank (and each successor
Agent) and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of banking,
trust or other business with the Borrower and any
Affiliate of the Borrower, as if it were not the Agent
and without any duty to account therefor to the Lenders.
Rabobank (and each successor Agent) need not account to
any other Lender for any monies received by it for
reimbursement of its costs, expenses and fees as the
Agent hereunder, or for any monies received by it in its
capacity as a Lender hereunder, except as otherwise
provided herein. This Agreement shall not be deemed to
constitute a joint venture or partnership between the
Lenders.
Section 9.8. Successor Agent. The Agent may
resign as such at any time by written notice to the
Borrower and the Lenders, to be effective upon a
successor's acceptance of appointment as the Agent. In
such event, the Required Lenders shall appoint a
successor Agent or Agents, who must be from among the
Lenders, subject to the Borrower's written approval so
long as no Default or Event of Default exists hereunder;
provided, that the Agent shall be entitled to appoint a
successor Agent from among the Lenders, subject to
acceptance of appointment by that successor Agent, if the
Required Lenders (with the Borrower's written approval,
if required) have not appointed a successor Agent within
30 calendar days after the date the Agent gave notice of
resignation or was removed. Upon a successor's
acceptance of appointment as the Agent, the successor
will thereupon succeed to and become vested with all the
rights, powers, privileges, and duties of the Agent under
the Loan Documents, and the resigning the Agent will
thereupon be discharged from its duties and obligations
thereafter arising under the Loan Documents.
ARTICLE 10.
MISCELLANEOUS
Section 10.1. Notices. All notices, requests and
other communications to any party hereunder shall be in
writing (including bank wire, telecopy or similar
teletransmission or writing) and shall be given to such
party at its address or applicable teletransmission
number set forth on the signature pages hereof, or such
other address or applicable teletransmission number as
such party may hereafter specify by notice to the Agent
and the Borrower. Each such notice, request or other com
munication shall be effective (i) if given by telecopy,
when such telecopy is transmitted to the telecopy number
specified in this Section and the appropriate answerback
is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if
given by any other means (including, without limitation,
by air courier), when delivered or received at the
address specified in this Section; provided that notices
to the Agent shall not be effective until received.
Section 10.2. Amendments, Etc. No amendment or
waiver of any provision of this Agreement or the other
Loan Documents, nor consent to any departure by any Loan
Party therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required
Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the
specific purpose for which given; provided that no
amendment, waiver or consent shall, unless in writing and
signed by all the Lenders do any of the following: (i)
waive any of the conditions specified in Section 4.1 or
4.2, (ii) increase the Commitments or other contractual
obligations to the Borrower under this Agreement, (iii)
reduce the principal of, or interest on, the Notes or any
fees hereunder, (iv) postpone any date fixed for the
payment in respect of principal of, or interest on, the
Notes or any fees hereunder, (v) change the percentage of
the Commitments or of the aggregate unpaid principal
amount of the Notes, or the number or identity of the
Lenders which shall be required for the Lenders or any of
them to take any action hereunder, (vi) modify the terms
of the Subsidiary Guaranty or release from liability
thereunder any party thereto; (vii) modify the terms of
any Collateral Document or release any property from the
lien thereof; (viii) modify the definition of "Required
Lenders", or (ix) modify this Section 10.2.
Notwithstanding the foregoing, no amendment, waiver or
consent shall, unless in writing and signed by the Agent
in addition to the Lenders required hereinabove to take
such action, affect the rights or duties of the Agent
under this Agreement or under any other Loan Document.
Section 10.3. No Waiver; Remedies Cumulative. No
failure or delay on the part of the Agent, any Lender or
any holder of a Note in exercising any right or remedy
hereunder or under any other Loan Document, and no course
of dealing between any Borrower and the Agent, any
Lender or the holder of any Note shall operate as a
waiver thereof, nor shall any single or partial exercise
of any right or remedy hereunder or under any other Loan
Document preclude any other or further exercise thereof
or the exercise of any other right or remedy hereunder or
thereunder. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights
or remedies which the Agent, any Lender or the holder of
any Note would otherwise have. No notice to or demand on
Borrower not required hereunder or under any other Loan
Document in any case shall entitle Borrower to any other
or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the
Agent, the Lenders or the holder of any Note to any other
or further action in any circumstances without notice or
demand.
Section 10.4. Payment of Expenses, Etc. The
Borrower shall:
(a) whether or not the transactions hereby
contemplated are consummated, pay all reasonable, out-of-
pocket costs and expenses of the Agent in the
administration (both before and after the execution
hereof and including reasonable expenses actually
incurred relating to advice of counsel as to the rights
and duties of the Agent and the Lenders with respect
thereto) of, and in connection with the preparation,
execution and delivery of, preservation of rights under,
enforcement of, and, after a Default or Event of Default,
refinancing, renegotiation or restructuring of, this
Agreement and the other Loan Documents and the documents
and instruments referred to therein, and any amendment,
waiver or consent relating thereto (including, without
limitation, the reasonable fees actually incurred and
disbursements of counsel, including allocated costs of in-
house counsel, for the Agent), and in the case of
enforcement of this Agreement or any Loan Document after
an Event of Default, all such reasonable, out-of-pocket
costs and expenses (including, without limitation, the
reasonable fees actually incurred and disbursements of
counsel, including allocated costs of in-house counsel),
for any of the Lenders;
(b) subject, in the case of certain Taxes, to the
applicable provisions of Section 3.11(b), pay and hold
each of the Lenders harmless from and against any and all
present and future stamp, documentary, and other similar
Taxes with respect to this Agreement, the Notes and any
other Loan Documents, any collateral described therein,
or any payments due thereunder, and save each Lender
harmless from and against any and all liabilities with
respect to or resulting from any delay or omission to pay
such Taxes; and
(c) indemnify the Agent and each Lender, and their
respective officers, directors, employees,
representatives and agents from, and hold each of them
harmless against, any and all costs, losses, liabilities,
claims, damages or expenses incurred by any of them
(whether or not any of them is designated a party
thereto) (an "Indemnitee") arising out of or by reason of
any investigation, litigation or other proceeding
related to any actual or proposed use of the proceeds of
any of the Loans or any Person's entering into and
performing of the Agreement, the Notes, or the other Loan
Documents, including, without limitation, the reasonable
fees actually incurred and disbursements of counsel
(including foreign counsel and allocated costs of in-
house counsel) incurred in connection with any such
investigation, litigation or other proceeding; provided,
however, the Borrower shall not be obligated to indemnify
any Indemnitee for any of the foregoing arising out of
such Indemnitee's own gross negligence or willful
misconduct;
(d) without limiting the indemnities set forth in
subsection (c) above, indemnify each Indemnitee for any
and all expenses and costs (including without limitation,
remedial, removal, response, abatement, cleanup,
investigative, closure and monitoring costs), losses,
claims (including claims for contribution or indemnity
and including the cost of investigating or defending any
claim and whether or not such claim is ultimately
defeated, and whether such claim arose before, during or
after Borrower's ownership, operation, possession or
control of its business, property or facilities or
before, on or after the date hereof, and including also
any amounts paid incidental to any compromise or
settlement by the Indemnitee or Indemnitees to the
holders of any such claim), lawsuits, liabilities,
obligations, actions, judgments, suits, disbursements,
encumbrances, liens, damages (including without
limitation damages for contamination or destruction of
natural resources), penalties and fines of any kind or
nature whatsoever (including without limitation in all
cases the reasonable fees actually incurred, other
charges and disbursements of counsel , including
allocated costs of in-house counsel, in connection
therewith) incurred, suffered or sustained by that
Indemnitee based upon, arising under or relating to
Environmental Laws based on, arising out of or relating
to in whole or in part, the existence or exercise of any
rights or remedies by any Indemnitee under this
Agreement, any other Loan Document or any related
documents (but excluding those incurred, suffered or
sustained by any Indemnitee as a result of any action
taken by or on behalf of the Lenders with respect to any
Subsidiary of the Borrower (or the assets thereof) owned
or controlled by the Lenders.
If and to the extent that the obligations of the Borrower
under this Section 10.4 are unenforceable for any reason,
the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obli
gations which is permissible under applicable law.
Section 10.5. Benefit of Agreement.
(a) This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, provided
that the Borrower may not assign or transfer any of its
interest hereunder without the prior written consent of
the Lenders.
(b) Any Lender may make, carry or transfer Loans
at, to or for the account of, any of its branch offices
or the office of an Affiliate of such Lender.
(c) Each Lender may assign all or a portion of its
interests, rights and obligations under this Agreement
(including all or a portion of any of its Commitments and
the Loans at the time owing to it and the Notes held by
it) to any Eligible Assignee; provided, however, that (i)
the Agent and the Borrower must give their prior written
consent to such assignment (which consent shall not be
unreasonably withheld or delayed, and provided that the
consent of the Borrower shall not be required if an Event
of Default has occurred and is continuing) unless such
assignment is to an Affiliate of the assigning Lender,
(ii) the amount of the Commitments, in the case of
assignment of the Commitments, or Loans, in the case of
assignment of Loans, of the assigning Lender subject to
each assignment (determined as of the date the assignment
and acceptance with respect to such assignment is
delivered to the Agent), shall not be less than
$5,000,000, and (iii) the parties to each such assignment
shall execute and deliver to the Agent an Assignment and
Acceptance, together with a Note or Notes subject to such
assignment and, unless such assignment is to an Affiliate
of such Lender, a processing and recordation fee of
$3,000. The Borrower shall not be responsible for such
processing and recordation fee or any costs or expenses
incurred by any Lender or the Agent in connection with
such assignment. From and after the effective date
specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days
after the execution thereof, the assignee thereunder
shall be a party hereto and to the extent of the interest
assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement.
Notwithstanding the foregoing, the assigning Lender must
retain after the consummation of such Assignment and
Acceptance, a minimum aggregate amount of Commitments or
Loans, as the case may be, of $10,000,000; provided,
however, no such minimum amount shall be required with
respect to any such assignment made at any time there
exists an Event of Default hereunder. Within five (5)
Business Days after receipt of the notice and the
Assignment and Acceptance, the Borrower, at its own
expense, shall execute and deliver to the Agent, in
exchange for the surrendered Note or Notes, a new Note or
Notes to the order of such assignee in a principal amount
equal to the applicable Commitments or Loans assumed by
it pursuant to such Assignment and Acceptance and new
Note or Notes to the assigning Lender in the amount of
its retained Commitment or Commitments or amount of its
retained Loans. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall
be dated the date of the surrendered Note or Notes which
they replace, and shall otherwise be in substantially the
form attached hereto.
(d) Each Lender may, without the consent of the
Borrower or the Agent, sell participations to one or
more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including
all or a portion of its Commitments in the Loans owing to
it and the Notes held by it), provided, however, that (i)
no Lender may sell a participation in its aggregate
Commitments or Loans (after giving effect to any
permitted assignment hereof) in an amount in excess of
fifty percent (50%) of such aggregate Commitments or
Loans, and the selling Lender must retain after the sale
of such participation a minimum aggregate amount of
Commitments or Loans, as the case may be, of $10,000,000,
provided, however, sales of participations to an
Affiliate of such Lender shall not be included in such
calculation; provided, however, no such maximum amount
shall be applicable to any such participation sold at any
time there exists an Event of Default hereunder, (ii)
such Lender's obligations under this Agreement shall
remain unchanged, (iii) such Lender shall remain solely
responsible to the other parties hereto for the per
formance of such obligations, and (iv) the participating
bank or other entity shall not be entitled to the benefit
(except through its selling Lender) of the cost
protection provisions contained in Article 3 of this
Agreement, and (v) the Borrower and the Agent and other
Lenders shall continue to deal solely and directly with
each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan
Documents, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the
Loans and to approve any amendment, modification or
waiver of any provisions of this Agreement. Any Lender
selling a participation hereunder shall provide prompt
written notice to the Borrower of the name of such
participant.
(e) Any Lender or participant may, in connection
with the assignment or participation or proposed
assignment or participation, pursuant to this Section,
disclose to the assignee or participant or proposed
assignee or participant any information relating to the
Borrower or the Subsidiaries furnished to such Lender by
or on behalf of the Borrower or any Subsidiary. With
respect to any disclosure of confidential, non-public,
proprietary information, such proposed assignee or
participant shall agree to use the information only for
the purpose of making any necessary credit judgments with
respect to this credit facility and not to use the
information in any manner prohibited by any law,
including without limitation, the securities laws of the
United States. The proposed participant or assignee
shall agree not to disclose any of such information
except (i) to directors, employees, auditors or counsel
to whom it is necessary to show such information, each of
whom shall be informed of the confidential nature of the
information and shall agree to use the information and to
hold the information as confidential all in the same
manner described above, (ii) in any statement or
testimony pursuant to a subpoena or order by any court,
governmental body or other agency asserting jurisdiction
over such entity, or as otherwise required by law
(provided prior notice is given to the Borrower and the
Agent unless otherwise prohibited by the subpoena, order
or law), and (iii) upon the request or demand of any
regulatory agency or authority with proper jurisdiction.
The proposed participant or assignee shall further agree
to return all documents or other written material and
copies thereof received from any Lender, the Agent or the
Borrower relating to such confidential information unless
otherwise properly disposed of by such entity.
(f) Any Lender may at any time assign all or any
portion of its rights in this Agreement and the Notes
issued to it to a Federal Reserve Bank; provided that no
such assignment shall release the Lender from any of its
obligations hereunder.
Section 10.6. Governing Law; Submission to
Jurisdiction, Etc.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT MAY
BE BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, OR ANY NEW YORK COURT
SITTING IN NEW YORK COUNTY, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE
TRIAL BY JURY, AND THE BORROWER HEREBY IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS.
(c) THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO THE BORROWER AT ITS SAID ADDRESS, SUCH SERVICE TO BE
COME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the
Agent, any Lender, any holder of a Note or any party to
serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against
the Borrower in any other jurisdiction.
(e) Any controversy or disagreement regarding any
of the Loan Documents may be settled by arbitration if
unanimously agreed upon by the Borrower, the Agent and
each Lender (with it being understood that each of such
parties shall be entitled to make such a decision in its
sole and absolute discretion). Notwithstanding anything
to the contrary contained in this Agreement, in no event
shall arbitration be a condition precedent to any right
of legal action or right of equity. Any such arbitration
(if selected by the Borrower, the Agent, and the Lenders)
shall be conducted in a manner which is acceptable to all
of such parties.
Section 10.7. Independent Nature of the Lenders'
Rights. The amounts payable at any time hereunder to
each Lender shall be a separate and independent debt, and
each Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Notes, and it
shall not be necessary for any other Lender to be joined
as an additional party in any proceeding for such
purpose.
Section 10.8. Counterparts. This Agreement may be
executed in any number of counterparts and by the
different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an
original, but all of which shall together constitute one
and the same instrument.
Section 10.9. Effectiveness; Survival.
(a) This Agreement shall become effective on the
date (the "Effective Date") on which all of the parties
hereto shall have signed a counterpart hereof (whether
the same or different counterparts) and shall have
delivered the same to the Agent or, in the case of the
Lenders, shall have given to the Agent written or
telecopy notice (actually received) that the same has
been signed and mailed to them.
(b) The obligations of the Borrower under Sections
3.12(b), 3.15, 3.16, 3.20, and 10.4 hereof shall survive
after the payment in full of the Notes after the final
Maturity Date. All representations and warranties made
herein, in the certificates, reports, notices, and other
documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement, the
other Loan Documents, and such other agreements and
documents, the making of the Loans hereunder, and the
execution and delivery of the Notes.
Section 10.10. Severability. In case any provision
in or obligation under this Agreement or the other Loan
Documents shall be invalid, illegal or unenforceable, in
whole or in part, in any jurisdiction, the validity,
legality and enforceability of the remaining provisions
or obligations, or of such provision or obligation in any
other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 10.11. Independence of Covenants. All
covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the
limitation of, another covenant, shall not avoid the
occurrence of a Default or an Event of Default if such
action is taken or condition exists.
Section 10.12. Change in Accounting Principles, Fiscal
Year or Tax Laws. If (i) any change in the preparation of the
financial statements referred to in Section 5.1 or 6.1
hereafter occasioned by the promulgation of rules,
regulations, pronouncements and opinions by or required by the
Financial Accounting Standards Board or the American Institute
of Certified Public Accountants (or successors thereto or
agencies with similar functions) (other than changes mandated
by FASB 106) results in a material change in the method of
calculation of financial covenants, standards or terms found
in this Agreement, (ii) there is any change in the Borrower's
fiscal quarter or fiscal year, or (iii) there is a material
change in federal tax laws which materially affects the
Borrower's or any of the Subsidiaries' ability to comply with
the financial covenants, standards or terms found in this
Agreement, the Borrower and the Required Lenders agree to
enter into negotiations in order to amend such provisions so
as to equitably reflect such changes with the desired result
that the criteria for evaluating Borrower's or any of the
Subsidiaries' financial condition shall be the same after such
changes as if such changes had not been made. Unless and
until such provisions have been so amended, the provisions of
this Agreement shall govern.
Section 10.13. Headings Descriptive; Entire Agreement.
The headings of the several sections and subsections of this
Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of
this Agreement. This Agreement, the other Loan Documents, and
the agreements and documents required to be delivered pursuant
to the terms of this Agreement constitute the entire agreement
among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements,
representations and understandings related to such subject
matters.
Section 10.14. Time is of the Essence. Time is of the
essence in interpreting and performing this Agreement and all
other Loan Documents.
Section 10.15. Usury. It is the intent of the parties
hereto not to violate any federal or state law, rule or
regulation pertaining either to usury or to the contracting
for or charging or collecting of interest, and the Borrower
and the Lenders agree that, should any provision of this
Agreement or of the Notes, or any act performed hereunder or
thereunder, violate any such law, rule or regulation, then the
excess of interest contracted for or charged or collected over
the maximum lawful rate of interest shall be applied to the
outstanding principal indebtedness due to the Lenders by the
Borrower under this Agreement.
Section 10.16. Construction. Should any provision of
this Agreement require judicial interpretation, the parties
hereto agree that the court interpreting or construing the
same shall not apply a presumption that the terms hereof shall
be more strictly construed against one party by reason of the
rule of construction that a document is to be more strictly
construed against the party who itself or through its agents
prepared the same, it being agreed that the Borrower, the
Agent, the Lenders and their respective agents have
participated in the preparation hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their duly
authorized officers as of the day and year first above
written.
Address: GOLD KIST INC.
244 Perimeter Center Parkway, N.E.
Atlanta, GA 30346
Telecopy No.: 404/393-5421 By:
Attention: Mr. Stephen O. West Name:
Title:
Attest:
Name:
Title:
[CORPORATE SEAL]
Address: COOPERATIEVE
CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.,
"Rabobank Nederland",
245 Park Avenue NEW YORK
New York, NY 10167-0062 BRANCH, individually and as
Telecopy No.: 212-916-7930 Agent
Attention: Corporate Securities
Dept.
By:
Name:
Title:
By:
Name:
Title:
REVOLVING CREDIT COMMITMENT $125,000,000 100%
364-DAY LINE OF CREDIT COMMITMENT $125,000,000 100%
TERM LOAN COMMITMENT $250,000,000 100%
PAYMENT OFFICE:
245 Park Avenue
New York, NY 10167-0062
[10132]
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