EXHIBIT B-10(i)(5)
FOURTH AMENDMENT TO
CREDIT AGREEMENT
This Fourth Amendment to Credit Agreement (this
"Amendment"), dated as of April 30, 1999, is made and entered
into by and among GOLD XXXX INC., a cooperative marketing
association organized and existing under the laws of the State
of Georgia (the "Borrower"), the various banks and other
lending institutions 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, the parties hereto are parties to that certain
Credit Agreement, dated as of August 4, 1998, as amended by
First Amendment dated September 30, 1998, as amended by Second
Amendment dated October 13, 1998, and as amended by Third
Amendment dated December 3, 1998 (the "Credit Agreement"); and
WHEREAS, the Borrower has requested that the Lenders (i)
permit the Borrower to enter into additional Hedging Contracts
through calendar year 2000, and (ii) increase the amount of
permitted Capital Expenditures of the Borrower during fiscal
year 2000;
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
Section 1. Amendments. The terms of the Credit
Agreement are hereby amended as follows:
(a) Section 7.9. Section 7.9 of the Credit Agreement is
deleted in its entirety and the following is substituted
therefor:
"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, (x)
prior to December 31, 2000, in no event cover more than twenty-
six weeks of the Borrower's anticipated requirements for feed
ingredients, and (y) subsequent to December 31, 2000, in no
event cover more than thirteen weeks of the Borrower's
anticipated requirements for feed ingredients; and none of
such positions and/or options shall 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, (x) prior
to December 31, 2000, in no event cover more than twenty-six
weeks of the Borrower's anticipated requirements for feed
ingredients, and (y) subsequent to December 31, 2000, in no
event cover more than thirteen weeks of the Borrower's
anticipated requirements for feed ingredients; and none of
such positions and/or options shall 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, interest 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."
(b) Section 7.11. Section 7.11 of the Credit Agreement
is deleted in its entirety and the following is substituted
therefor:
"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, in fiscal
year 1999 exceeding $45,000,000, in fiscal year 2000 exceeding
$45,000,000 plus an amount up to $15,000,000 of any available
but unutilized Capital Expenditures from fiscal year 1999, 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 2. Conditions Precedent. This Fourth Amendment
and the obligations of the Lenders evidenced hereunder shall
not be effective until the Administrative Agent shall have
received a Certificate executed by the Chief Executive Officer
or Chief Financial Officer of the Borrower stating that, to
the best of his knowledge and based upon an examination
sufficient to enable him to make an informed statement, (i)
all of the representations and warranties made or deemed to be
made under the Credit Agreement are materially true and
correct as of the date of this Fourth Amendment to Credit
Agreement, and (ii) no Default or Event of Default exists.
Section 3. Reference to and Effect on the Credit
Agreement and the Other Loan Documents.
(a) On and after the date hereof, each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to
the "Credit Agreement," "thereunder," "thereof" or words of
like import referring to the Credit Agreement shall mean and
be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended by this Amendment,
the Credit Agreement and the other Loan Documents shall remain
in full force and effect and are hereby ratified and
confirmed.
(c) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of the Administrative
Agent or any Lender under the Credit Agreement or any of the
other Loan Documents.
Section 4. Miscellaneous.
(a) Section and Subsection Headings. Section and
Subsection headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part
of this Amendment for any other purpose or be given any
substantive effect.
(b) Governing Law. This Amendment and the rights and
obligations of the parties hereunder shall be governed by, and
shall be construed and enforced in accordance with, the laws
of the State of Georgia.
(c) Counterparts; Effectiveness. This Amendment may be
executed in any number of counterparts and by different
parties hereto and separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all
such counterparts taken together shall constitute but one and
the same instrument; signature pages may be detached from
multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically
attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by the
Borrower and the Required Lenders and receipt by the Borrower
and the Administrative Agent of written or telephonic
notification of such execution and authorization or delivery
thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date
first above written.
GOLD XXXX INC.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer &
Treasurer
[CORPORATE SEAL]
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "Rabobank
Nederland", NEW YORK BRANCH,
individually and as Agent
By: /s/ Michiel V.M. Van Der Voort
Name: Michiel V.M. Van Der Voort
Title: Vice President
By: /s/ W. Xxxxxx X. Xxxxx
Name: W. Xxxxxx X. Xxxxx
Title: Vice President
SUNTRUST BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ F. Xxxxxx Xxxxxxx
Name: F. Xxxxxx Xxxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxx X. Seeds
Name: Xxxx X. Seeds
Title: Senior Vice President
COBANK, ACB
By: /s/ Xxxx X. Xxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
U.S. BANCORP AG CREDIT, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
DG BANK DEUTSCHE
GENOSSENCHAFTSBANK AG,
CAYMAN ISLANDS BRANCH
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx, CPA
Title: Vice President
11564/Securities/Exhibit/4th Amendment to Credit Agmt
