SIXTH AMENDMENT TO
CREDIT AGREEMENT
This Sixth Amendment to Credit Agreement (this
"Amendment"), dated as of December 21, 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
the First Amendment dated September 30, 1998, as amended by
the Second Amendment dated October 13, 1998, as amended by the
Third Amendment dated December 3, 1998, as amended by the
Fourth Amendment dated as of April 30, 1999, and as amended by
the Fifth Amendment dated as of November 29, 1999 (the "Credit
Agreement"); and
WHEREAS, the Borrower has requested that the Lenders
reduce the Revolving Credit Commitment from $125,000,000 to
$100,000,000, reduce the 364-Day Line of Credit Commitment
from $125,000,000 to $100,000,000, modify certain of the
financial covenants, and make certain other changes to the
Credit Agreement;
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) Amendments to Section 1.1. Section 1.1 of the
Credit Agreement is amended by deleting therefrom the defined
terms "Revolving Credit Commitment" and 364-Day Line of Credit
Commitment" and substituting the following therefor:
"Revolving Credit Commitment" shall mean, at
any time for any Lender, the amount set forth opposite
such Lender's name on the signature pages to the Sixth
Amendment to Credit Agreement under the heading
"Revolving Credit Commitment", as the same may be
increased or decreased from time to time as a result of
any reduction thereof pursuant to Section 3.3 of this
Agreement, any assignment thereof pursuant to Section
10.5 of this Agreement or any amendment thereof pursuant
to Section 10.2 of this Agreement.
"364-Day Line of Credit Commitment" shall mean,
at any time for any Lender, the amount set forth opposite
such Lender's name on the signature pages to the Sixth
Amendment to Credit Agreement under the heading "364-Day
Line of Credit Commitment", as the same may be increased
or decreased from time to time as a result of any
reduction thereof pursuant to Section 3.3 of this
Agreement, any assignment thereof pursuant to Section
10.5 of this Agreement or any amendment thereof pursuant
to Section 10.2 of this Agreement.
(b) Amendment to Section 6.1(a). Section 6.1(a) of
the Credit Agreement is amended by deleting it in its entirety
and substituting the following therefor:
"(a) As soon as practicable and in any event
within 45 days after the end of each of the first eleven
months of each fiscal year, (i) unaudited consolidated
and consolidating and business segment statements of
sales and margins of the Borrower and its Subsidiaries
for such month and for the period from the beginning of
the current fiscal year to the end of such month and (ii)
an unaudited consolidated and consolidating balance sheet
of the Borrower and its Subsidiaries as at the end of
such month, setting forth, with respect to such
consolidated statements of sales and margins and such
consolidated balance sheet, in comparative form, figures
for the corresponding period in the preceding fiscal
year, and, as soon as practicable and in any event
within 45 days after the end of each of the first three
fiscal quarters of each fiscal year (iii) unaudited
consolidated and consolidating statements of income and
cash flow of the Borrower and its Subsidiaries for such
quarter and for the period from the beginning of the
current fiscal year to the end of such quarter and (iv)
an unaudited consolidated and consolidating balance sheet
of the Borrower and its Subsidiaries as at the end of
such quarter, setting forth, with respect to such
consolidated statements of income and cash flow and such
consolidated balance sheet, in comparative form, figures
for the corresponding period in the preceding fiscal year
all in reasonable detail and certified by the chief
financial officer or Treasurer of the Borrower as having
been prepared in accordance with GAAP;"
(c) Amendment to Section 7.1(b). Section 7.1(b) of
the Credit Agreement is amended by deleting it in its entirety
and substituting the following therefor:
"(b) Minimum Consolidated Tangible Net Worth.
The Borrower's Consolidated Tangible Net Worth (less any
gain or loss as a result of accumulated other
comprehensive income, as defined by GAAP, or any amount
shown as "unrealized gain on marketable equity
securities" on the Borrower's financial statements
delivered pursuant to Section 6.1) will at no time be
less than $255,000,000 plus the sum of (i) 50% of the
cumulative Reported Net Income of the Borrower and its
Consolidated Subsidiaries during the period commencing
with Borrower's third quarter, 2000 (taken as one
accounting period), calculated quarterly at the end of
each Fiscal Quarter, and (ii) 100% of the cumulative Net
Proceeds of Capital Stock received 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 Borrower and its Consolidated Subsidiaries
is negative."
(d) Amendment to Section 7.1(d). Section 7.1(d) of
the Credit Agreement is amended by deleting it in its entirety
and substituting the following therefor:
"(d) Fixed Charge Coverage. The Borrower shall
not permit the ratio of (a) EBIT plus Consolidated
Lease Expense to (b) Consolidated Interest Expense
plus Consolidated Lease Expense for each fiscal
quarter set forth below, calculated (x) for the
first three fiscal quarters of fiscal year 1999,
quarterly for the fiscal quarter then ending, (y)
for the last fiscal quarter of fiscal year 1999 and
the first three fiscal quarters of fiscal year 2000,
quarterly for the fiscal quarter then ending and the
preceding three fiscal quarters, and (z) for the
last fiscal quarter of fiscal year 2000 and
thereafter, quarterly for the fiscal quarter then
ending and the preceding seven fiscal quarters, to
be less than the ratio set forth opposite the
relevant fiscal quarter in the following table:
Fiscal Quarter Ratio
First Quarter, 1999 1.80
Second Quarter, 1999 .50
Third Quarter, 1999 .75
Fourth Quarter, 1999 through
Second Quarter, 2000 1.45
Third Quarter, 2000 1.35
Fourth Quarter, 2000 and
thereafter 1.75"
(e) Amendment to Section 7.1(e). Section 7.1(e) of
the Credit Agreement is amended by deleting it in its entirety
and substituting the following therefor:
"(e) Senior Debt Coverage. The Borrower shall
not permit the ratio of (a) Consolidated Senior Debt to
(b) EBITDA, for each fiscal quarter set forth below,
calculated for the fiscal quarter then ending and the
preceding three fiscal quarters, to be more than the
ratio set forth opposite the relevant fiscal quarter in
the following table:
Fiscal Quarter Ratio
First Quarter, 1999 through
Third Quarter, 1999 3.00
Fourth Quarter, 1999 through
First Quarter, 2000 2.75
Second Quarter, 2000 through
Fourth Quarter 2000 3.50
First Quarter 2001 and
thereafter 3.00
provided that, for purposes of computing the ratio as of
the end of the First Quarter, 1999, EBITDA shall be
EBITDA for such quarter and for the preceding two
quarters, plus $3,400,000."
(f) Amendment to Section 7.4. Section 7.4 of the
Credit Agreement is amended by deleting therefrom subsections
(u) and (v) and substituting the following therefor:
"(u) purchase the assets described in Section
7.3(i) hereof;
(v) the purchase of the SSC Securities; and
(w) make or permit to remain outstanding
investments in any money market fund that invests
only in investments described in subsections (c), (d), (e),
(f), (g), or (h) of this Section 7.4."
(g) Amendment to Section 7.11. Section 7.11 of the
Credit Agreement is amended by deleting it in its entirety and
substituting the following 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 $75,000,000,
in fiscal year 2001 exceeding $45,000,000 plus the amount
(if any) by which the Borrower's Capital Expenditures
were less than $75,000,000 in fiscal year 2000, in fiscal
year 2002 exceeding $45,000,000 plus the amount (if any)
by which the Borrower's Capital Expenditures in fiscal
year 2001 were less than the amount available for Capital
Expenditures in fiscal year 2001, and in any fiscal year
thereafter exceeding $45,000,000 plus an amount up to
$15,000,000 of any funds available but not expended in
the previous fiscal year; 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 Sixth 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 Sixth 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
and Treasurer
[Signatures continued on following page]
COOPERATIEVE CENTRALE
RAIFFEISEN-
Revolving Credit Commitment: BOERENLEENBANK B.A.,
$20,000,000 "Rabobank Nederland",
364-Day Line of Credit Commitment NEW YORK BRANCH,
$20,000,000 individually and as Agent
By:/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
Revolving Credit Commitment: SUNTRUST BANK, ATLANTA
$18,000,000
364-Day Line of Credit Commitment
$18,000,000
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Vice President
Revolving Credit Commitment: WACHOVIA BANK, N.A.
$16,000,000
364-Day Line of Credit Commitment
$16,000,000
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
[Signatures continued on following page]
Revolving Credit Commitment: COBANK, ACB
$16,000,000
364-Day Line of Credit Commitment
$16,000,000
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
Revolving Credit Commitment: XXXXXX TRUST AND SAVINGS BANK
$10,000,000
364-Day Line of Credit Commitment
$10,000,000 By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
Revolving Credit Commitment: U.S. BANCORP AG CREDIT, INC.
$10,000,000
364-Day Line of Credit Commitment
$10,000,000 By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
By:
Name:
Title:
Revolving Credit Commitment: DG BANK DEUTSCHE
$10,000,000 GENOSSENCHAFTSBANK AG,
364-Day Line of Credit Commitment CAYMAN ISLANDS BRANCH
$10,000,000
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Asst. Vice President
[Final page of signatures]
