ATMAIN02: CREDIT AGRMT AMDMT JULY 98.DOC
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment") is
dated as of the 22nd day of July, 1998 among XXXX, INC. (the "Borrower"),
WACHOVIA BANK, N.A. (successor by merger to Wachovia Bank of Georgia, N.A.),
as Agent (the "Agent"), FIRST UNION NATIONAL BANK (successor by merger to
First Union National Bank of North Carolina), as Documentation Agent and
WACHOVIA BANK, N.A.(successor by merger to Wachovia Bank of North Carolina,
N.A.), FIRST UNION NATIONAL BANK, SUNTRUST BANK, ATLANTA, and COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK
BRANCH (collectively, the "Banks");
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent, the Documentation Agent and the Banks
executed and delivered that certain Credit Agreement, dated as of April 23,
1997 (the "Credit Agreement");
WHEREAS, the Borrower has requested and the Agent, the Documentation
Agent and the Banks have agreed to a certain amendment to the Credit
Agreement, subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the above premises and
other good and valuable consideration, the receipt and sufficiency of which
hereby is acknowledged by the parties hereto, the Borrower, the Agent, the
Documentation Agent and the Banks hereby covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein, each
term used herein which is defined in the Credit Agreement shall have the
meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall from and after the date hereof refer
to the Credit Agreement as amended hereby.
2. Amendment to Section 1.01. Section 1.01 of the Credit Agreement
hereby is amended by deleting the definition of "Commitment" and substituting
therefor the following:
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ATMAIN02: CREDIT AGRMT AMDMT JULY 98.DOC
"Commitment" means, for each Bank, the amount set forth
opposite the name of such Bank on the signature page of this First
Amendment.
3. Amendment to Section 1.01. Section 1.01 of the Credit Agreement
hereby is amended by deleting the definition of "Commitment Reduction Date".
4. Amendment to Section 2.02. Section 2.02(a) of the Credit Agreement
hereby is amended by deleting the proviso at the end of clause (iv) thereof.
5. Amendment to Section 2.06(a). Section 2.06(a) of the Credit
Agreement hereby is amended by deleting it in its entirety and substituting
the following therefor:
(a) "Applicable Margin" means:
(i) for the period commencing on the Closing Date to and including the
first Performance Pricing Determination Date, (x) for any Base Rate Loan,
0.00%, and (y) for any Euro-Dollar Loan or Foreign Currency Loan, 0.275%; and
(ii) from and after the first Performance Pricing Determination Date
until the end of Fiscal Year 1999, (x) for any Base Rate Loan, 0.00% and (y)
for each Euro-Dollar Loan, the percentage determined on each Performance
Pricing Determination Date by reference to the table set forth below as to
such type of Loan and the Debt/EBITDA Ratio for the quarterly or annual
period ending immediately prior to such Performance Pricing Determination
Date.
Debt/EBITDA Ratio Applicable Margin
< 1.0 to 1.0 0.25%
> 1.0 to 1.0 but
< 2.0 to 1.0 0.275%
> 2.0 to 1.0 but
< 2.5 to 1.0 0.30%
> 2.5 to 1.0 but
< 3.0 to 1.0 0.3625%
> 3.0 to 1.0 but 0.55%
< 3.5 to 1.0
> 3.5 to 1.0 0.75%
and, (iii) from and after the beginning of Fiscal Year 2000, (x) for
any Base Rate Loan, 0.00% and (y) for each Euro-Dollar Loan, the percentage
determined on each Performance Pricing Determination Date by reference to the
table set forth below as to such type of Loan and the Debt/EBITDA Ratio for
the quarterly or annual period ending immediately prior to such Performance
Pricing Determination Date.
Debt/EBITDA Ratio Applicable Margin
< 1.0 to 1.0 0.25%
> 1.0 to 1.0 but
< 2.0 to 1.0 0.275%
> 2.0 to 1.0 but
< 2.5 to 1.0 0.30%
> 2.5 to 1.0 but
< 3.0 to 1.0 0.3625%
> 3.0 to 1.0 0.55%
In determining interest for purposes of this Section 2.06 and
fees for purposes of Section 2.07, the Borrower and the Banks shall refer to
the Borrower's most recent consolidated quarterly and annual (as the case may
be) financial statements delivered pursuant to Section 5.01(a) or (b), as the
case may be. If such financial statements require a change in interest
pursuant to this Section 2.06 or fees pursuant to Section 2.07, the Borrower
shall deliver to the Agent, along with such financial statements, a notice to
that effect, which notice shall set forth in reasonable detail the
calculations supporting the required change. The "Performance Pricing
Determination Date" is the date which is the last date on which such
financial statements are permitted to be delivered pursuant to Section
5.01(a) or (b), as applicable. Any such required change in interest and fees
shall become effective on such Performance Pricing Determination Date, and
shall be in effect until the next Performance Pricing Determination Date,
provided that: (x) for Fixed Rate Loans, changes in interest shall only be
effective for Interest Periods commencing on or after the Performance Pricing
Determination Date; and (y) no fees or interest shall be decreased pursuant
to this Section 2.06 or Section 2.07 if a Default is in existence on the
Performance Pricing Determination Date.
6. Amendment to Section 2.09. Section 2.09 of the Credit Agreement
hereby is amended by deleting it in its entirety and substituting the
following therefor:
SECTION 2.09. Termination of Commitments. The Commitments
shall terminate on the Termination Date and any Loans then
outstanding (together with accrued interest thereon) shall be due
and payable on such date.
7. Amendment to Section 5.21. Section 5.21 of the Credit Agreement
hereby is amended by deleting it in its entirety and substituting the
following therefor:
SECTION 5.21. Debt/EBITDA Ratio. The Debt/EBITDA Ratio
will at the end of each Fiscal Month (i) during Fiscal Year 1999,
be less than 4.0 to 1.0, and (ii) thereafter, be less than 3.5 to
1.0.
8. Amendment to Section 5.22. Section 5.22 of the Credit Agreement
hereby is amended by deleting it in its entirety and substituting the
following therefor:
SECTION 5.22. Acquisitions. Neither the Borrower nor any
Subsidiary shall make any Acquisitions after the Closing Date,
except that the Borrower may make any Acquisition which is (i) of
stock or assets of a Person in substantially similar lines of
business to that of the Borrower and its Subsidiaries and (ii) in
an aggregate amount for any single Acquisition or series of
related Acquisitions which does not exceed $50,000,000.
9. Amendment to Exhibit F. Exhibit F to the Credit Agreement hereby
is amended by deleting paragraph 7 thereof and substituting the following
paragraph 7 therefor:
7. Debt/EBITDA Ratio (Section 5.21)
The Debt/EBITDA Ratio will at the end of each Fiscal Month
(i) during Fiscal Year 1999, be less than 4.0 to 1.0, and (ii)
thereafter, be less than 3.5 to 1.0.
(a) Total Debt $
(b) EBITDA - Schedule 1 $
(c) Actual ratio of (a) to (b) to 1.0
Maximum ratio < ___ to 1.0
[<3.5 to 1.0]
[<4.0 to 1.0]
10. Assignment of Loans. Rabobank Nederland hereby sells and assigns
to each of the other Banks, and each other Bank hereby purchases, a pro rata
(with respect to its Commitments) interest in all of Rabobank Nederland's
rights and obligations under the Credit Agreement as of the date hereof as
more specifically set forth on Schedule 1 attached hereto.
11. Restatement of Representations and Warranties. The Borrower
hereby restates and renews each and every representation and warranty
heretofore made by it in the Credit Agreement and the other Loan Documents as
fully as if made on the date hereof and with specific reference to this First
Amendment and all other loan documents executed and/or delivered in
connection herewith.
12. Effect of Amendment. Except as set forth expressly hereinabove,
all terms of the Credit Agreement and the other Loan Documents shall be and
remain in full force and effect, and shall constitute the legal, valid,
binding and enforceable obligations of the Borrower. The amendments
contained herein shall be deemed to have prospective application only, unless
otherwise specifically stated herein.
13. Ratification. The Borrower hereby restates, ratifies and
reaffirms each and every term, covenant and condition set forth in the Credit
Agreement and the other Loan Documents effective as of the date hereof.
14. Counterparts. This First Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, and
delivered by facsimile transmission, each of which when so executed and
delivered (including by facsimile transmission) shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but
one and the same instrument.
15. Section References. Section titles and references used in this
First Amendment shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreements among the parties hereto
evidenced hereby.
16. No Default. To induce the Agent and the Banks to enter into this
First Amendment and to continue to make advances pursuant to the Credit
Agreement, the Borrower hereby acknowledges and agrees that, as of the date
hereof, and after giving effect to the terms hereof, there exists (i)-no
Default or Event of Default and (ii)-no right of offset, defense,
counterclaim, claim or objection in favor of the Borrower arising out of or
with respect to any of the Loans or other obligations of the Borrower owed to
the Banks under the Credit Agreement.
17. Further Assurances. The Borrower agrees to take such further
actions as the Agent shall reasonably request in connection herewith to
evidence the amendments herein contained to the Borrower.
18. Governing Law. This First Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of
Georgia.
19. Conditions Precedent. This First Amendment shall become effective
only upon execution and delivery of this First Amendment by the Borrower, the
Agent and each Bank.
IN WITNESS WHEREOF, the Borrower, the Agent and each of the Banks whose
signature appears below has caused this First Amendment to be duly executed,
under seal, by its duly authorized officer as of the day and year first above
written.
XXXX, INC.,
as Borrower (SEAL)
By: Xxxxxxx X. Xxxxxx
Title: Vice President and
Chief Financial Officer
COMMITMENT:
$33,600,000 WACHOVIA BANK, N.A. (successor
by merger to Wachovia Bank of
Georgia, N.A. and Wachovia Bank
North Carolina, N.A.), as Agent
and as a Bank (SEAL)
By: Xxxxx X. Xxxxx
Title:
COOPERATIEVE CENTRALE
RAIFFEISEN BOERENLEEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH,
as a Bank (SEAL)
By: Xxxxxxxx X. Xxx
Title: Vice President
By: W. Xxxxxxx Xxxxxxx
Title: Senior Credit Officer
Senior Vice President
$30,400,000 FIRST UNION NATIONAL BANK
(successor by merger to
First Union National Bank
of North Carolina),
as Documentation Agent and
as a Bank (SEAL)
By: G. Xxxxxx Xxx, Xx.
Title: Senior Vice President
$24,000,000 SUNTRUST BANK, ATLANTA,
as a Bank (SEAL)
By: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Schedule 1
Prior Syndicated Loans Outstanding:
Wachovia Bank, N.A. $8,400,000
First Union National Bank $7,600,000
Suntrust Bank, Atlanta $6,000,000
Rabobank Nederland $3,000,000
Syndicated Loans Purchased from Rabobank Nederland:
Wachovia Bank, N.A. $1,145,454.55
First Union National Bank $1,036,363.64
Suntrust Bank, Atlanta $ 818,181.81
Current Syndicated Loan Balances:
Wachovia Bank, N.A. $9,545,454.55
First Union National Bank $8,636,363.64
Suntrust Bank, Atlanta $6,818,181.81
