Exhibit 10(a)
EIGHTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("Eighth Amendment") is made as of the 29th day of January, 2006, by and between
XXXX, INC., a North Carolina corporation (together with its successors and
permitted assigns, the "Borrower") and WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly, Wachovia Bank, N.A.), a national banking association, as Agent and as
a Bank (together with its endorsees, successors and assigns, the "Bank").
BACKGROUND
The Borrower and the Bank entered into an Amended and Restated Credit
Agreement, dated as of August 23, 2002, as amended by Second Amendment to
Amended and Restated Credit Agreement (the "Second Amendment"), dated as of June
3, 2003, by Third Amendment to Amended and Restated Credit Agreement (the "Third
Amendment"), dated as of August 23, 2004, by Fourth Amendment to Amended and
Restated Credit Agreement ("Fourth Amendment"), dated as of December 7, 2004, by
Fifth Amendment to Amended and Restated Credit Agreement ("Fifth Amendment")
dated as of February 18, 2005, by a Sixth Amendment to Amended and Restated
Credit Agreement ("Sixth Amendment"), dated as of August 30, 2005 and by a
Seventh Amendment to Amended and Restated Credit Agreement ("Seventh
Amendment"), dated as of December 7, 2005 (it being acknowledged by the parties
hereto that the proposed First Amendment to Amended and Restated Credit
Agreement, which had been under discussion in March 2003, was never executed by
the parties and is of no force or effect; otherwise, such agreement, as amended
by the Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment,
Sixth Amendment and Seventh Amendment, and as it may be further amended,
restated, supplemented and/or modified, shall be referred to herein as the
"Credit Agreement"). Terms used herein and not herein defined shall have the
meanings given to them in the Credit Agreement.
The Borrower has now requested additional amendments to the provisions
of the Credit Agreement, which the Bank is willing to accommodate subject to the
terms, provisions and conditions set forth in this Eighth Amendment.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower and the Bank hereby agree as follows:
1. Amendments to Credit Agreement. The Credit Agreement is hereby
amended as follows:
(a) Section 5.24 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Section 5.24 Capital Expenditures. Aggregate Capital Expenditures for
any Fiscal Year will not exceed $6,500,000.00."
2. Further Assurances. The Borrower will execute such confirmatory
instruments, if any, with respect to the Credit Agreement and this Eighth
Amendment as the Bank may reasonably request.
3. Ratification by Borrower. The Borrower ratifies and confirms all of
its representations, warranties, covenants, liabilities and obligations under
the Credit Agreement (except as expressly modified by this Eighth Amendment) and
agrees that: (i) except as expressly modified by this Eighth Amendment, the
Credit Agreement continues in full force and effect as if set forth specifically
herein; and (ii) the Borrower has no right of setoff, counterclaim or defense to
payment of its obligations under the Credit Agreement. The Borrower and the Bank
agree that this Eighth Amendment shall not be construed as an agreement to
extinguish the Borrower's obligations under the Credit Agreement or the Notes
and shall not constitute a novation as to the obligations of the Borrower under
the Credit Agreement or the Notes. The Bank hereby expressly reserves all rights
and remedies it may have against all parties who may be or may hereafter become
secondarily liable for the repayment of the obligations under the Credit
Agreement or the Notes.
4. Amendments. This Eighth Amendment may not itself be amended,
changed, modified, altered, or terminated without in each instance the prior
written consent of the Bank. This Eighth Amendment shall be construed in
accordance with and governed by the laws of the State of North Carolina.
5. Counterparts. This Eighth Amendment may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which, taken together, shall constitute one and the same agreement.
6. Bank's Expenses. In accordance with Section 9.03 of the Credit
Agreement, Borrower hereby acknowledges and agrees to pay all reasonable
out-of-pocket expenses incurred by the Bank in connection with the preparation
of this Eighth Amendment, including without limitation reasonable attorneys'
fees.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Eighth Amendment has been duly executed under
seal by Borrower and Bank as of the day and year first above written.
BORROWER:
XXXX, INC. (SEAL)
By:/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President-Finance, Treasurer
BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent and as Bank (SEAL)
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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