Exhibit 10(ii)
NINTH AMENDMENT TO CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of
May 30, 2002, among XXXX, INC. (the "Borrower"), WACHOVIA BANK, N.A. (successor
by merger to First Union National Bank), as Agent (the "Agent") and the "Banks"
party to the Credit Agreement (defined below);
W I T N E S S E T H :
WHEREAS, the Borrower, the Agent and the Banks executed and delivered that
certain Credit Agreement, dated as of April 23, 1997, as amended by that certain
First Amendment to Credit Agreement dated as of July 22, 1998, that certain
Second Amendment to Credit Agreement dated as of October 26, 1998, that certain
Third Amendment to Credit Agreement dated as of April 28, 2000, that certain
Fourth Amendment to Credit Agreement dated as of July 30, 2000, that certain
Fifth Amendment (the "Fifth Amendment") to Credit Agreement dated as of January
26, 2001, that certain Sixth Amendment to Credit Agreement dated as of March 28,
2001, that certain Seventh Amendment to Credit Agreement dated as of August 29,
2001, and that certain Eighth Amendment to Credit Agreement dated as of March 5,
2002 (as so amended, the "Credit Agreement"); and
WHEREAS, the Borrower has requested, and the 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 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. Amendments to Credit Agreement. (a) The following definition contained
in Section 1.01 of the Credit Agreement is amended and restated in its entirety
as set forth below: "Termination Date" means whichever is applicable of (i)
August 22, 2002, (ii) the date the Commitments are terminated pursuant to
Section 6.01 following the occurrence of an Event of Default, or (iii) the date
the Borrower terminates the Commitments entirely pursuant to Section 2.08."
(b) Section 5.24 of the Credit Agreement is amended and restated in its
entirety as set forth below:
SECTION 5.24. Capital Expenditures. Capital Expenditures will not
exceed (i) for the period during the fourth Fiscal Quarter of Fiscal Year
2001, $1,500,000; and (ii) for the period after the fourth Fiscal Quarter
of Fiscal Year 2001 through and including the fourth Fiscal Quarter of
Fiscal Year 2002, $5,000,000.
3. 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
Amendment and all other loan documents executed and/or delivered in connection
herewith.
4. 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.
5. 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.
6. Counterparts. This 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.
7. Section References. Section titles and references used in this 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.
8. No Default. To induce the Agent and the Banks to enter into this
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.
9. 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.
10. Governing Law. This Amendment shall be governed by and construed and
interpreted in accordance with, the laws of the State of Georgia.
11. Conditions Precedent. This Amendment shall become effective only upon
the execution and delivery of (i) this Amendment by each of the parties hereto,
and (ii) receipt by the Agent of an amendment fee in immediately available funds
in the amount of $12,500.00, which amendment fee shall be distributed by the
Agent to the Banks which execute this Amendment, pro rata based on their
respective proportionate share of all the Commitments.
IN WITNESS WHEREOF, the Borrower, the Agent and each of the Banks has
caused this 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.,
as Agent and as the sole Bank
(SEAL)
By: _____________________________
Title:
