FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Fourth Amendment") is
dated as of the 30th day of July, 2000 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 (the "Documentation Agent"), and WACHOVIA BANK, N.A. (successor by
merger to Wachovia Bank of North Carolina, N.A.), FIRST UNION NATIONAL
BANK, and SUNTRUST BANK (formerly known as SunTrust Bank,
Atlanta)(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, as amended by First Amendment to Credit Agreement dated as of July 22,
1998, Second Amendment to Credit Agreement dated as of October 26, 1998, and
Third Amendment to Credit Agreement dated as of April 28, 2000 (as so amended,
the "Credit Agreement"); and
WHEREAS, the Borrower has requested, and the Agent, the Documentation Agent
and the Banks have agreed to certain amendments 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 adding the following definition in the proper alphabetical order:
"Fourth Amendment Effective Date" means July 30, 2000.
3. 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 Fourth Amendment
Effective Date to the first Performance Pricing Determination Date
after the Fourth Amendment Effective 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 after the Fourth Amendment Effective Date, (x) for
any Base Rate Loan, 0.00% and (y) for each Euro-Dollar Loan or Foreign
Currency 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
<= 3.0 to 1.0 1.10%
> 3.0 to 1.0 but
<= 3.25 to 1.0 1.30%
> 3.25 to 1.0 but
<= 3.50 to 1.0 1.50%
> 3.50 to 1.0 1.60%
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.
4. Amendment to Section 2.07(a). Section 2.07(a) of the Credit Agreement
hereby is amended by deleting it in its entirety and substituting the
following therefor:
(a) The Borrower shall pay to the Agent, for the ratable account
of each Bank, a facility fee, on the aggregate amount of such Bank's
Commitment (without taking into account the amount of the outstanding
Loans made by such Bank), at a rate per annum equal to 0.30%. Such
facility fees shall accrue from and including the Closing Date to (but
excluding the Termination Date) and shall be payable on each March 31,
June 30, September 30 and December 31 and on the Termination Date.
5. Amendment to Section 5.19. Section 5.19 of the Credit Agreement hereby
is amended by deleting it in its entirety and substituting the following
therefor:
SECTION 5.19. Interest and Leases Coverage. At the end of each
Fiscal Quarter, the Interest and Leases Coverage Ratio shall not have
been less than: (i) for the period from and including the first Fiscal
Quarter of Fiscal Year 2001 through and including the fourth Fiscal
Quarter of Fiscal Year 2001, 2.25 to 1.0; and (ii) at all times
thereafter, 3.0 to 1.0.
6. 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. At the end of each Fiscal
Month, the Debt/EBITDA Ratio will be (i) for each Fiscal Month of
Fiscal Year 2001, less than 3.75 to 1.0, and (ii) for each Fiscal Month
thereafter, less than 3.50 to 1.0.
7. Amendment to Exhibit F. Exhibit F hereby is amended by deleting
paragraphs 5 and 7 thereof and substituting therefor paragraphs 5 and 7 set
forth in Exhibit F attached hereto.
8. 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, except to the extent that any representation or
warranty related to an earlier specified date, and with specific reference to
this Fourth Amendment and all other loan documents executed and/or delivered
in connection herewith.
9. 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.
10. 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.
11. Counterparts. This Fourth Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which counterparts, taken together, shall constitute but one and the
same instrument.
12. Section References. Section titles and references used in this Fourth
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.
13. No Default. To induce the Agent, the Documentation Agent and the Banks
to enter into this Fourth 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.
14. 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.
15. Governing Law. This Fourth Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of
Georgia.
16. Conditions Precedent. This Fourth Amendment shall become effective
only upon (i) execution and delivery of this Fourth Amendment by each of the
parties hereto, and (ii) payment to the Agent, for the ratable account of
each Bank, of a fully-earned and non-refundable fee in an amount equal to
0.05% of each Bank's Commitment.
IN WITNESS WHEREOF, the Borrower, the Agent, the Documentation Agent
and each of the Banks has caused this Fourth Amendment to be duly executed,
under seal, by its duly authorized officer as of the day and year first above
written.
XXXX, INC.,
(SEAL)
as Borrower
By: __________________________________
Title:
WACHOVIA BANK, N.A. (successor by
merger to Wachovia Bank of Georgia,
N.A. and Wachovia Bank of North
Carolina, N.A.), as Agent and as a
Bank
(SEAL)
By: __________________________________
Title:
FIRST UNION NATIONAL BANK (successor
by merger to First Union National Bank
of North Carolina),
as Documentation Agent and as a Bank
(SEAL)
By: __________________________________
Title:
SUNTRUST BANK (formerly known as
SunTrust Bank, Atlanta),
as a Bank
(SEAL)
By: __________________________________
Title:
EXHIBIT F
5. Interest and Leases Coverage (Section 5.19)
At the end of each Fiscal Quarter, the Interest and Leases Coverage
Ratio shall not have been less than: (i) for the period from and
including the fourth Fiscal Quarter of Fiscal Year 2000 through and
including the fourth Fiscal Quarter of Fiscal Year 2001, 2.25 to 1.0;
and (ii) at all times thereafter, 3.0 to 1.0.
(a) EBILTDA - Schedule 1 $______________
(b) Consolidated Net Interest Expense
- Schedule 1 $______________
(c) Consolidated Lease Expense
- Schedule 1 $______________
(d) Sum of (b) and (c) $______________
(e) Actual ratio of (a) to (d) _____ to 1.0
Minimum Ratio [2.25 to 1.0]
[3.0 to 1.0]
6. Debt/EBITDA Ratio (Section 5.21)
At the end of each Fiscal Month, the Debt/EBITDA Ratio will be (i) for
each Fiscal Month of Fiscal Year 2001, less than 3.75 to 1.0, and (ii)
for each Fiscal Month thereafter, less than 3.50 to 1.0.
(a) Total Debt $ _____________
(b) EBITDA
- Schedule 1 $ _____________
(c) Actual ratio of (a) to (b) _____ to 1.0
Maximum ratio [3.75 to 1.0]
[3.50 to 1.0]
