10
ATL/836402.2
Exhibit B-10(f)(1)
WAIVER
This Waiver (this "Waiver") effective as of the 11th
day of January, 2002, 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 and institutional investors
listed on the signature pages hereof as Lenders (the
"Lenders"), and COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH,
as agent (the "Agent"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, and the Agent are
parties to that certain Second Amended and Restated Credit
Agreement dated as of October 23, 2001 (the "Credit
Agreement"); and
WHEREAS, the Borrower is currently a member of Commerce
Ventures, LLC ("Commerce Ventures") and desires to make
capital contributions to Commerce Ventures after the date
hereof in an aggregate amount not exceeding $500,000 (the
"Commerce Investment"); and
WHEREAS, the Commerce Investment is prohibited pursuant
to Section 7.4 of the Credit Agreement; and
WHEREAS, the Borrower owns certain shares in The
Principal Group (the "Principal Shares"); and
WHEREAS, the Borrower desires to sell the Principal
Shares for cash consideration equal to the fair market value
of the Principal Shares as of the time of such sale (the
"Principal Shares Liquidation"); and
WHEREAS, pursuant to Section 3.1 of the Credit
Agreement, the Borrower will be required to make mandatory
prepayments to the Senior Note Holders and the Lenders in an
amount equal to 100% of the net proceeds from the Principal
Shares Liquidation, with such mandatory prepayment required
to be made to the Lenders being applied to repay the
outstanding Term Loans on a pro rata basis (the "Term Loan
Prepayment"); and
WHEREAS, the Borrower has requested that the Agent and
the Lenders waive the provisions of: (a) Section 7.4 of the
Credit Agreement with respect to the Commerce Investment,
and (b) Section 3.1 of the Credit Agreement with respect to
the Term Loan Prepayment and instead allow the net proceeds
of the Principal Shares Liquidation to be retained by the
Borrower;
NOW THEREFORE, in consideration of the foregoing
premises and other good and valuable consideration paid by
each party to the other, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as
follows:
1. Waiver. The Agent and the Lenders hereby waive
the provisions of (a) Section 7.4 of the Credit Agreement
with respect to the Commerce Investment, and (b) Section 3.1
of the Credit Agreement with respect to the Term Loan
Prepayment in connection with the Principal Shares
Liquidation; provided that the Agent shall have received a
waiver or consent executed by the requisite Senior Note
Holders waiving the mandatory prepayment of the Senior
Notes, in form and substance acceptable to the Agent.
Except for the waiver set forth above, the text of the
Credit Agreement and the Loan Documents shall remain in full
force and effect. The Borrower acknowledges and expressly
agrees that the Lenders reserve the right to, and do in
fact, require strict compliance with all terms and
provisions of the Credit Agreement and the other Loan
Documents.
2. Representations and Warranties. The Borrower
hereby represents and warrants in favor of the Agent and
each Lender, as follows:
(a) the Borrower has the corporate power and
authority (i) to enter into this Waiver, and (ii) to
do all acts and things as are required or
contemplated hereunder to be done, observed and
performed by it;
(b) this Waiver has been duly authorized,
validly executed and delivered by one or more
authorized signatories of the Borrower, and
constitutes the legal, valid and binding obligation
of the Borrower, enforceable against the Borrower in
accordance with its terms;
(c) the execution and delivery of this Waiver
and performance by the Borrower under the Credit
Agreement do not and will not require the consent or
approval of any regulatory authority or governmental
authority or agency having jurisdiction over the
Borrower which has not already been obtained, nor
contravene or conflict with the charter documents of
the Borrower, or the provisions of any statute,
judgment, order, indenture, instrument, agreement or
undertaking, to which the Borrower is a party or by
which any of its properties are or may become bound;
and
(d) as of the date hereof, and after giving
effect to this Waiver (i) no Default or Event of
Default exists under the Credit Agreement, and (ii)
each representation and warranty set forth in
Article 5 of the Credit Agreement is true and
correct.
3. Loan Document. This Waiver shall be deemed to be
a Loan Document for all purposes.
4. Expenses. The Borrower agrees to pay all
reasonable expenses of the Agent incurred in connection with
this Waiver, including, without limitation, all fees and
expenses of counsel to the Agent.
5. Counterparts. This Waiver may be executed in
multiple counterparts, each of which shall be deemed to be
an original and all of which, taken together, shall
constitute one and the same agreement. Delivery of an
executed counterpart of this Waiver by facsimile
transmission shall be as effective as delivery of a manually
executed counterpart hereof.
6. Governing Law. This Waiver shall be deemed to be
made pursuant to the laws of the State of New York with
respect to agreements made and to be performed wholly in the
State of New York, and shall be construed, interpreted,
performed and enforced in accordance therewith.
7. Definitions. All capitalized terms used but not
otherwise defined herein shall have the meanings set forth
in the Credit Agreement.
8. Effectiveness. This Waiver shall be effective as
of the date first written above upon the Agent's receipt of
(a) a counterpart hereof duly executed by the Borrower and
the Required Lenders, and (b) such other documents executed
by the Borrower as the Agent may reasonably require.
IN WITNESS WHEREOF, the parties hereto have caused this
Waiver to be duly executed and delivered by their duly
authorized officers as of the day and year first above
written.
BORROWER: GOLD XXXX INC.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: CFO and Treasurer
By:
Name:
Title:
[SEAL]
AGENT, L/C ISSUER AND LENDER: COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ W. Pleter C. Kodds
Name: W. Pleter C. Kodds
Title: Managing Director
(SIGNATURES CONTINUE ON NEXT PAGE)
LENDERS: SUNTRUST BANK
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
By: N/A
Name:
Title:
FORTIS BANK (NEDERLAND) N.V.
By: /s/ X. X. xxx Xxxxx
Name: X. X. xxx Xxxxx
Title: Senior Account Manager
By: /s/ Y.C.M. vel hlock
Name: Y.C.M. vel hlock
Title: Deputy Director
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Vice President
By:
Name:
Title:
(SIGNATURES CONTINUE ON NEXT PAGE)
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Assistant Vice
President
By:
Name:
Title:
COBANK, ACB
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By:
Name:
Title:
(SIGNATURES CONTINUE ON NEXT PAGE)
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
(SIGNATURES CONTINUE ON NEXT PAGE)
THE CIT GROUP/BUSINESS CREDIT,
INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title:
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
GREENSTONE FARM CREDIT SERVICES,
FLCA
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President/Senior
Lending Officer
By:
Name:
Title:
(SIGNATURES CONTINUE ON NEXT PAGE)
XXXX XXXXXXX LIFE INSURANCE
COMPANY
By: /s/ Xxxxx X. XxXxxxxxxx
Name: Xxxxx X. XxXxxxxxxx
Title: Managing Director
By:
Name:
Title:
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: /s/ Xxxxx X. XxXxxxxxxx
Name: Xxxxx X. XxXxxxxxxx
Title: Managing Director
By:
Name:
Title:
(SIGNATURES CONTINUE ON NEXT PAGE)
SIGNATURE 4 LIMITED
By: Xxxx Xxxxxxx Life Insurance
Company, as Portfolio Advisor
By: /s/ Xxxxx X. XxXxxxxxxx
Name: Xxxxx X. XxXxxxxxxx
Title: Managing Director
SIGNATURE 5 L.P.
By: Xxxx Xxxxxxx Life
Insurance Company, as
Portfolio Advisor
By: /s/ Xxxxx X. XxXxxxxxxx
Name: Xxxxx X. XxXxxxxxxx
Title: Managing Director
MELLON BANK, N.A., solely in its
capacity as Trustee for the Xxxx
Atlantic Master Trust as directed
by Xxxx Xxxxxxx Life Insurance
Company, and not in its
individual capacity
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
By:
Name:
Title:
[14691]
