Exhibit 10.24.3
FIFTH AMENDMENT
TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(Term Loan)
THIS FIFTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT
AGREEMENT (Term Loan) ("Amendment Agreement") is made as of March
1, 2005 ("Execution Date") to be effective as of the Effective
Date, by and among Gold Xxxx Inc. (formerly known as Gold Xxxx
Holdings Inc., the successor, by merger, to Gold Xxxx Inc., a
Georgia cooperative marketing association), a Delaware
corporation ("Borrower") and CoBank, ACB ("CoBank") as Lender.
RECITALS
A. CoBank and Borrower have entered into that certain
First Amended and Restated Credit Agreement (Term Loan) dated as
of January 29, 2003, that certain First Amendment to First
Amended and Restated Credit Agreement (Term Loan) dated as of
February 11, 2003, that certain Second Amendment to First Amended
and Restated Credit Agreement (Term Loan) dated as of March 10,
2004, that certain Third Amendment to First Amended and Restated
Credit Agreement (Term Loan) dated as of July 16, 2004, and that
certain Fourth Amendment to First Amended and Restated Credit
Agreement (Term Loan) dated as of September 24, 2004 (as so
amended, and as amended, modified, or supplemented from time to
time, the "Credit Agreement") pursuant to which CoBank has
extended certain credit facilities to Borrower, under the terms
and conditions set forth in the Credit Agreement.
B. Borrower has requested that CoBank amend the Credit
Agreement to provide Borrower with more flexibility concerning
its hedging operations, which CoBank is willing to do under the
terms and conditions, including the other amendments, as set
forth in this Amendment Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, including the mutual
promises and agreements contained herein, the parties hereto
hereby agree as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the definition given to them in the Credit
Agreement if defined therein.
2. Amendments to Credit Agreement. The parties hereto
agree that the Credit Agreement shall be amended as follows as of
the Effective Date:
2.1 Section 10.8 shall be amended in its entirety to read
as follows:
10.8 Hedging Contracts. 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 cash or futures positions and/or options
strategies on corn and soybean meal shall in no event cover more
than thirty-nine weeks of Borrower's anticipated requirements for
feed ingredients, shall have been entered into in compliance with
Borrower's Corporate Policy For Futures Contracts approved by
Borrower's Board of Directors on April 24, 1998, as amended by
the Executive Committee of Gold Xxxx Board of Directors on
October 4, 2002 (and which may be subsequently amended to comply
with this Section), and shall have been approved by Borrower's
Hedging Committee, and (ii) short positions on corn and soybean
meal shall be restricted to those positions that at all times
relate in both amount and maturity to priced corn and soybean
meal owned or contracted for delivery by Borrower, either
directly or by futures and/or options positions; 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.
3. Borrower's Representations. Borrower hereby represents
and warrants that, (a) Borrower has the corporate power and
authority to enter into this Amendment and to perform its
obligations hereunder; (b) this Amendment has been duly
authorized and validly executed; and (c) after giving effect to
this Amendment Agreement and the transactions contemplated
hereby, no Potential Default or Event of Default has occurred and
is continuing under the Credit Agreement or other Loan Documents.
4. Effective Date. The effectiveness of this Amendment
Agreement is subject to satisfaction, in CoBank's sole
discretion, of each of the following conditions precedent (the
date on which all such conditions precedent are so satisfied
shall be the "Effective Date"):
4.1 Representations and Warranties. The representations
and warranties of Borrower in the Credit Agreement shall be true
and correct in all material respects on and as of the Effective
Date as though made on and as of such date.
4.2 No Event of Default. No Event of Default shall have
occurred and be continuing under the Credit Agreement as of the
Effective Date of this Amendment Agreement.
4.3 Payment of Fees and Expenses. Borrower shall have paid
CoBank, by wire transfer of immediately available federal funds,
all expenses owing pursuant to Section 5 below.
4.4 Rabobank Agreement. CoBank shall have received proof
satisfactory to it that the Rabobank Agreement has been amended
so that its provisions relating to Borrower's hedging activities
are consistent with Section 10.8 of the Credit Agreement as
amended by this Amendment Agreement.
5. Costs; Expenses and Taxes. Borrower agrees to reimburse
CoBank on demand for all out-of-pocket costs, expenses and
charges (including, without limitation, all fees and charges of
external legal counsel) incurred by CoBank in connection with the
preparation, reproduction, execution and delivery of this
Amendment Agreement and any other instruments and documents to be
delivered hereunder.
6. General Provisions.
6.1 No Waiver; Continuing Effect; References. The
execution, delivery and effectiveness of this Amendment Agreement
shall not operate as a waiver of any right, power or remedy of
CoBank under any of the Loan Documents, nor constitute a waiver
of any provision of any of the Loan Documents, and the Credit
Agreement, as expressly modified hereby, and each of the other
Loan Documents, are hereby ratified and confirmed and shall
continue in full force and effect and be binding upon the parties
thereto. Any direct or indirect reference in the Loan Documents
to the "Credit Agreement" shall be deemed to be a reference to
the Credit Agreement as amended by this Amendment Agreement.
6.2 Governing Law. This Amendment Agreement shall be
governed by and construed in accordance with the laws of the
State of Colorado.
6.3 Counterparts. This Amendment Agreement may be executed
in any number of counterparts and by different parties to this
Amendment Agreement in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Copies of documents or signature pages bearing original
signatures, and executed documents or signature pages delivered
by a party by telefax, facsimile, or e-mail transmission of an
Adober file format document (also known as a PDF file) shall, in
each such instance, be deemed to be, and shall constitute and be
treated as, an original signed document or counterpart, as
applicable. Any party delivering an executed counterpart of this
Amendment Agreement by telefax, facsimile, or e-mail transmission
of an Adobe file format document also shall deliver an original
executed counterpart of this Amendment Agreement, but the failure
to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Fifth Amendment to First Amended and Restated Credit Agreement
(Term Loan) to be executed by their duly authorized officers as
of the Effective Date.
BORROWER:
GOLD XXXX INC., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer,
Vice President
LENDER:
COBANK, ACB
By: /s/ Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: Vice President Corporate
Finance Division
[16841]
