EXHIBIT B-10(i)(2)
FIRST AMENDMENT TO
CREDIT AGREEMENT
This First Amendment to Credit Agreement (this
"Amendment"), dated as of September 30, 1998, 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"), 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, the parties hereto are parties to that certain
Credit Agreement, dated as of August 4, 1998 (the "Credit
Agreement"); and
WHEREAS, the Borrower has requested that the Lenders
provide for a $15,000,000 Swing Line Commitment under the
Credit Agreement, such Commitment to be a sublimit of the
364-Day Commitment;
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) Definitions. Section 1.1 of the Credit Agreement is
amended by adding thereto the following defined terms:
""Swing Line Advance" shall mean an advance made by
the Swing Line Bank pursuant to Section 2.1(d), which Advance
shall be for all purposes under this Agreement (except as
expressly provided otherwise by Sections 2.1(c), (d), or (e))
be deemed an advance under the 364-Day Line of Line of Credit
Commitment.
"Swing Line Bank" shall mean Rabobank.
"Swing Line Borrowing" shall mean a borrowing
consisting of a Swing Line Advance made by the Swing Line
Bank.
"Swing Line Maturity Date" shall mean, with respect
to any Swing Line Advance, the date that is five Business Days
prior to the 364 Day Loan Maturity Date.
"Swing Line Participation" shall mean the
participation purchased by a Lender in any Swing Line Advance
pursuant to Section 2.1(e).
"Swing Line Sublimit" has the meaning specified in
Section 2.1(d)."
(b) Swing Line Borrowings. Section 2.1 of the Credit
Agreement is amended by adding the following subsections
thereto.
"(d) The Swing Line Advances. The Borrower may
request the Swing Line Bank to make, and the
Swing Line Bank shall make, on the terms and
conditions hereinafter set forth, Swing Line
Advances to the Borrower from time to time on
any Business day during the period from the
date hereof until the Swing Line Maturity Date
in an aggregate amount not to exceed at any
time outstanding U.S. $15,000,000 (the "Swing
Line Sublimit"); provided that at such time the
outstandings under all Swing Line Advances plus
the outstandings under all 364-Day Loans, after
giving effect to such Borrowing, shall not
exceed the 364-Day Line of Credit Commitment.
Each Swing Line Advance shall bear interest at
a per annum rate equal to the Base Rate minus
1% (one percent). Within the limits of the
Swing Line Sublimit, the Borrowers may borrow
under this Section 2.1(d), repay pursuant to
Section 3.1 and reborrow under this Section
2.1(d).
(e) Each Swing Line Advance shall be made on
notice, given not later than 11:00 A.M. (New
York City time) on the date of the proposed
Swing Line Advance, by the Borrower to the
Swing Line Bank. Each such notice of a
proposed Swing Line Borrowing (a "Notice of
Swing Line Borrowing") shall be by telephone,
confirmed immediately in writing, or telex or
telecopier, specifying therein the requested
(i) date on which such Swing Line Advances to
be made and (ii) amount of such Swing Line
Advance. The Swing Line Bank, upon fulfillment
of the applicable conditions set forth in
Article II, will make the amount thereof
available, no later than 4:00 P.M. (New York
City time) on such Business Day, to the
Borrower in same day funds by crediting the
account of the Borrower set forth in the Notice
of Borrowing pursuant to which the Advance is
being made. At any time the Swing Line Bank
makes a Swing Line Advance, each Lender (other
than the Swing Line Bank) shall be deemed,
without further action by any Person, to have
purchased from the Swing Line Bank an unfunded
participation in any such Swing Line Advance in
an amount equal to the amount of such Advance
times such Lender's Pro Rata Share of the
364-Day Line of Credit Commitment (the "Swing
Line Participation") and shall be obligated to
fund such participation at such time and in the
manner provided below. Each such Lender's
obligation to participate in, purchase and fund
such Swing Line Participation shall be absolute
and unconditional and shall not be affected by
any circumstance, including, without
limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such
Lender or any other Person may have against the
Swing Line Bank or any other Person for any
reason whatsoever; (ii) the occurrence or
continuance of Default or an Event of Default
or the termination of the Commitments; (iii)
any adverse change in the condition (financial
or otherwise) of the Borrower or any other
Person; (iv) any breach of this Agreement by
any Borrower or any other Lender; or (v) any
other circumstance, happening or event
whatsoever, whether or not similar to any of
the foregoing. The Borrower hereby consents to
each such sale and assignment. Each Lender
agrees to fund any outstanding Swing Line
Participation on (i) the Business Day of which
demand therefor is made by the Swing Line Bank,
provided that such demand is made not later
than 1:00 P.M. (New York City time) on such
Business Day, or (ii) the first Business Day
next succeeding such demand is made after such
time. Upon any such assignment by the Swing
Line Bank to any other Lender of a Swing Line
Participation, the Swing Line Bank represents
and warrants to such other Lender that it is
the legal and beneficial owner of such interest
being assigned by it, but makes no other
representation or warranty and assumes no
responsibility with respect to such Swing Line
Advance or Swing Line Participation, or the
Loan Documents or the Borrower to which such
Swing Line Advance was made. If and to the
extent that any Lender shall not have so made
the amount of such Swing Line Participation
available to the Administrative Agent, such
Lender agrees to pay to the Administrative
Agent forthwith on demand such amount together
with interest thereon, for each day from the
date of the request by the Swing Line Bank
until the date such amount is paid to the
Administrative Agent, at the Federal Funds
Rate. If such Lender shall pay to the
Administrative Agent such amount for the
account of the Swing Line Bank on any Business
Day, such amount so paid in respect of
principal shall constitute a 364-Day Loan made
by such Lender on such Business Day for
purposes of the Agreement, and the outstanding
principal amount of the Swing Line Advance made
by the Swing Line Bank shall be reduced by such
amount on such Business Day.
(f) Each Notice of Borrowing and Notice of Swing
Line Borrowing shall be irrevocable and binding
on the Borrower requesting the Advances covered
by such Notice and such Borrower shall
indemnify each Lender against any loss or
expense incurred by such Lender as a result of
any failure to fulfill on or before, as
applicable, the date specified for such Advance
the applicable conditions set forth in Article
II, including, without limitation, any loss
(excluding loss of anticipated profits) or
expense incurred by reason of the liquidation
or reemployment of deposits or other funds
acquired by such Lender (and the Administrative
Agent in the case of Advances by the
Administrative Agent pursuant to Section 2.1(d)
to fund such Advance when such Advance, as a
result of such failure, is not made on such
date.
Section 2. Conditions Precedent. This First 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 First 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: Treasurer
Attest: /s/ J. Xxxxx Xxxxx
Name: J. Xxxxx Xxxxx
Title: Gen. Counsel, Vice President
[CORPORATE SEAL]
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "Rabobank
Nederland", NEW YORK BRANCH,
individually and as Agent
By: /s/ X. X. Xxxxx
Name: X. X. Xxxxx
Title: Vice President
By: /s/ W. Xxxxxxx Xxxxxxx
Name: W. Xxxxxxx Xxxxxxx
Title: Senior Credit Officer
Senior Vice President
11561/Securities/Exhibit/1st Amendment to Credit Agmt
