EXHIBIT B-4(i)(11)
EXECUTION COPY
AMENDMENT OF NOTE AGREEMENTS
This Amendment, entered into as of March 23, 2000, by and
between GOLD KIST, INC. (the "Company") and THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA ("Noteholder").
WHEREAS, the parties hereto have executed and delivered
that certain Note Purchase and Private Shelf Agreement dated
as of February 11, 1997 (as previously amended and as it may
be further amended, modified or supplemented, the "1997 Note
Agreement");
WHEREAS, the parties hereto have also executed and
delivered that certain Note Agreement dated as of June 3, 1991
(as previously amended and as it may be further amended,
modified or supplemented, the "1991 Note Agreement", and
together with the 1997 Note Agreement the "Note Agreements");
WHEREAS, the Company has requested a modification of
certain covenants under the Note Agreements;
WHEREAS, Noteholder is willing to enter into this
Amendment subject to the satisfaction of conditions and terms
set forth herein;
WHEREAS, capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Note
Agreements; and
NOW, THEREFORE, in consideration of the foregoing and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Amendments to Paragraph 6A of the Note Agreements.
1.1. Paragraph 6A(b). Paragraph 6A(b) of each of the Note
Agreements is hereby amended in its entirety to read as
follows:
"(b) Minimum Consolidated Tangible Net Worth. The
Company's Consolidated Tangible Net Worth (less any
amount shown as "unrealized gain on marketable equity
securities" on the Company's financial statements
delivered pursuant to paragraph 5A) will at no time be
less than $240,000,000 plus the sum of (X) 50% of the
cumulative Reported Net Income of the Company and its
Consolidated Subsidiaries during the period commencing on
January 1, 2000 (taken as one accounting period),
calculated quarterly at the end of each Fiscal Quarter,
and (Y) 100% of the cumulative Net Proceeds of Capital
Stock received (excluding unrealized gains, if any, on
publicly traded equity securities) 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 Company and its Consolidated Subsidiaries
is negative."
1.2 Paragraph 6A(c). Paragraph 6A(c) of each of the Note
Agreements is hereby amended in its entirety to read as
follows:
"(c) Current Ratio. The Company shall not permit
the ratio of Consolidated Current Assets to Consolidated
Current Liabilities to be less than 1.10 to 1.0,
calculated on a quarterly basis."
1.3 Paragraph 6A(d). Paragraph 6A(d) of each of the Note
Agreements is hereby amended in its entirety to read as
follows:
"(d) Fixed Charge Coverage. The Company shall not
permit the ratio of (i) EBIT plus Consolidated Lease
Expense, in each case for the period of eight fiscal
quarters of the Company most recently ended at such time,
to (ii) Consolidated Interest Expense plus Consolidated
Lease Expense for such period to be less than 1.75 to
1.00."
1.4 Paragraph 6A(e). Paragraph 6A(e) of each of the Note
Agreements is hereby amended in its entirety to read as
follows:
"(e) Senior Debt Coverage. The Company shall not
permit the ratio of (a) Consolidated Senior Funded Debt
to (b) 50% of the sum of EBITDA for the fiscal quarter
then ending and the preceding seven fiscal quarters, to
be greater than 3.0 to 1.0, calculated on a quarterly
basis."
2. Conditions of Effectiveness. This Amendment shall become
effective when, and only when:
a) the Noteholder shall have received executed
originals of this Amendment;
b) the Noteholder shall have received a duly
executed amendment, satisfactory to the Noteholder in all
respects, to the Bank Agreement; and
c) the Noteholder shall have received such other
documents, instruments, approvals or opinions as it may
reasonably request.
3. Miscellaneous.
3.1 Reference to and Effect on the Note Agreement.
(a) Upon the effectiveness of this Amendment, on and after
the date hereof each reference in the Note Agreement to "this
Agreement", "hereunder", "hereof" or words of like import
referring to the Note Agreement, and each reference in any
other document to "the Note Agreement", "thereunder",
"thereof" or words of like import referring to the Note
Agreement, shall mean and be a reference to the Note
Agreement, as amended hereby.
(b) Except as specifically amended above, the Note Agreement
and the Notes, and all other related documents, are and shall
continue to be in full force and effect and are hereby in all
respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any
holder of a Note under the Note Agreement or the Notes, nor
constitute a waiver of any provision of any of the foregoing.
3.2. Costs and Expenses. The Company agrees to pay on
demand all costs and expenses, if any (including, without
limitation, reasonable counsel fees and expenses of counsel),
incurred by any holder of a Note in connection with the
enforcement (whether through negotiations, legal proceedings
or otherwise) of this Amendment, including, without
limitation, counsel fees and expenses in connection with the
enforcement of rights under this Amendment.
3.3. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the
same instrument.
3.4. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New
York.
3.5. No Default or Claims. To induce the Noteholder to
enter into this Amendment, the Company hereby acknowledges and
agrees that, as of the date hereof, and after giving effect to
the terms hereof, (i) no Default or Event of Default exists,
(ii) no right of offset, recoupment, defense, counterclaim,
claim or objection exists in favor of the Company arising out
of or with respect to any of the Notes or other obligations of
the Company owed to any holder of a Note, and (iii) the
Noteholder has acted in good faith and has conducted its
relationships with the Company in a commercially reasonable
manner in connection with the negotiations, execution and
delivery of this Amendment and in all respects in connection
with the Note Agreement, the Company hereby waiving and
releasing any such claims to the contrary that may exist as of
the date of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
GOLDKIST, INC.
By:/s/ Stephen O. West
Name: Stephen O. West
Title: CFO and Treasurer
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:/s/ Billy B. Greer
Name: Billy B. Greer
Title: Vice President
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