EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of
March 5, 2002, 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., 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 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, and that certain Seventh Amendment to
Credit Agreement dated as of August 29, 2001 (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. Amendments to Credit Agreement. 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) June 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."
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. Termsheet for New Credit Facility. Borrower and Agent each agree to
exercise their commercially-reasonable efforts to negotiate and agree on a
formal term sheet on or before April 28, 2002, which term sheet is anticipated
to provide for the terms and conditions of a credit facility which, at this
time, is contemplated to replace, amend and restate, or serve as a substitute
for, or a refinancing of, the credit facility provided for in the Credit
Agreement; provided, however, that (a) nothing contained herein shall obligate
Agent, for itself or as a Bank, the Documentation Agent, for itself or as a
Bank, any other Bank, or the Borrower to enter into any such facility or term
sheet; (b) neither Borrower nor any other party hereto is entitled to rely on
this paragraph as any commitment by any of the Agent, for itself or as a Bank,
the Documentation Agent, for itself or as a Bank, or any Bank to provide any
such facility; and (c) in no event shall this paragraph be deemed to constitute
any commitment made by any party hereto to enter into any such facility.
7. 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.
8. 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.
9. No Default. To induce the Agent, the Documentation 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.
10. 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.
11. Governing Law. This Amendment shall be governed by and construed and
interpreted in accordance with, the laws of the State of Georgia.
12. 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, the Documentation 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 a
Bank
(SEAL)
By: ____________________________
Title:
FIRST UNION NATIONAL BANK,
as Documentation Agent and as a
Bank (SEAL)
By: ____________________________
Title:
SUNTRUST BANK,
as a Bank (SEAL)
By: ____________________________
Title:
