Exhibit 10(ss)
FIFTH AMENDMENT TO CREDIT AGREEMENT
(With SunTrust Secured Tranche)
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of
January 26, 2001 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 First Amendment to Credit Agreement dated as of July 22,
1998, Second Amendment to Credit Agreement dated as of October 26, 1998, Third
Amendment to Credit Agreement dated as of April 28, 2000, and Fourth Amendment
to Credit Agreement dated as of July 30, 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. Amendments to Section-1.01. (a) The following new definitions are hereby
added to Section 1.01 of the Credit Agreement in alphabetical order as follows:
"Capital Expenditures" means for any period the sum of all capital
expenditures incurred during such period by the Borrower and its
Consolidated Subsidiaries, as determined in accordance with GAAP.
"Consolidated Net Worth" has the meaning set forth in the Borrower's
Note Purchase Agreement dated as of March 4, 1998, relating to the
Borrower's 6.76% Series A Notes due March 15, 2008, and 6.76% Series B
Notes due March 15, 2010.
"Restricted Payment" means (i) any dividend or other distribution on
any shares of the Borrower's Capital Stock (except dividends payable solely
in shares of its Capital Stock) or (ii) any payment on account of the
purchase, redemption, retirement or acquisition of (a) any shares of the
Borrower's Capital Stock (except shares acquired upon the conversion
thereof into other shares of its Capital Stock) or (b) any option, warrant
or other right to acquire shares of the Borrower's Capital Stock.
(b) The following definition contained in Section 1.01 of the Credit
Agreement is amended by deleting it in its entirety and substituting the
following therefor, in alphabetical order:
"EBITDA" means at any time the sum of the following, determined on a
consolidated basis for the Borrower and its Consolidated Subsidiaries, at
the end of each Fiscal Quarter, for the Fiscal Quarter just ended and the 3
immediately preceding Fiscal Quarters (and with respect to any Acquisition
which is made during such 4 Fiscal Quarter period, the Consolidated
Subsidiary acquired in such Acquisition shall be included as if it had been
a Consolidated Subsidiary prior to the commencement of such 3 Fiscal
Quarter period): (i) Consolidated Net Income; plus (ii) Consolidated Net
Interest Expense; plus (iii) taxes on income; plus (iv) depreciation; plus
(v) amortization; plus (vi) cash charges described on Schedule 1.01(E)
attached hereto and made a part hereof not exceeding $3,400,000 in the
aggregate through the first Fiscal Quarter of Fiscal Year 2002, and other
non-cash charges.
Schedule 1.01(E) described in the foregoing amended definition of
EBITDA is attached to the Credit Agreement in the form of Schedule 1.01(E)
attached to this Amendment and made a part hereof.
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 January 26, 2001 to the first
Performance Pricing Determination Date after January 26, 2001, (x) for any
Base Rate Loan, 1.35%, and (y) for any Euro-Dollar Loan or Foreign Currency
Loan, 4.00%; and
(ii) from and after the first Performance Pricing Determination Date
after January 26, 2001, (x) for any Base Rate Loan, 1.35% 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 2.50%
> 3.0 to 1.0 but
<= 3.5 to 1.0 3.00%
> 3.5 to 1.0 but
<= 4.0 to 1.0 3.50%
> 4.0 to 1.0 but
<= 4.5 to 1.0 4.00%
> 4.50 to 1.0 4.25%
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, calculated in the manner provided in the last
paragraph of Section 2.06(a)(ii), 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: (i) for the period
commencing on January 26, 2001 to and including the first Performance
Pricing Determination Date occurring after January 26, 2001, .500%; and
(ii) from and after the first Performance Pricing Determination Date
occurring after January 26, 2001, the percentage determined on each
Performance Pricing Determination Date by reference to the table set forth
below and the Debt/EBITDA Ratio for the quarterly or annual period ending
immediately prior to such Performance Pricing Determination Date:
Debt/EBITDA Ratio Facility Fee
<= 3.0 to 1.0 .375%
> 3.0 to 1.0 but
<= 3.5 to 1.0 .375%
> 3.5 to 1.0 but
<= 4.0 to 1.0 .375%
> 4.0 to 1.0 but
<= 4.5 to 1.0 .500%
> 4.50 to 1.0 .500%
Such facility fees shall accrue from and including January 26, 2001 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 5.17. Clause (l) and the proviso contained at the end of
Section 5.17 of the Credit Agreement hereby are amended by deleting them in
their entirety and substituting the following therefor:
(l) Liens not otherwise permitted by the foregoing paragraphs of this
Section securing Debt (other than indebtedness represented by the Notes),
and Debt of Subsidiaries not otherwise permitted by paragraph (j), in an
aggregate principal amount at any time outstanding not to exceed 15% of
Consolidated Net Worth.
Provided the sum of (A) the aggregate amount of Debt secured by Liens permitted
by the foregoing paragraphs (a) through (h) and (l), plus (B) Debt of
Subsidiaries permitted by paragraph (l), shall not at any time exceed an
aggregate amount equal to 15% of Consolidated Net Worth.
6. 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 third Fiscal Quarter of
Fiscal Year 2000 through and including the second Fiscal Quarter of Fiscal
Year 2002, 1.75 to 1.0; (ii) for the period after the second Fiscal Quarter
of Fiscal Year 2002 through and including the third Fiscal Quarter of
Fiscal Year 2002, 2.00 to 1.0; and (iii) at all times thereafter, 2.25 to
1.0.
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. At the end of each Fiscal Month, the
Debt/EBITDA Ratio shall be less than (i) for the period from and including
the third Fiscal Quarter of Fiscal Year 2000 through and including the
fourth Fiscal Quarter of Fiscal Year 2001, 4.90 to 1.0; (ii) for the period
after the fourth Fiscal Quarter of Fiscal Year 2001 through and including
the first Fiscal Quarter of Fiscal Year 2002, 4.60 to 1.0; (iii) for the
period after the first Fiscal Quarter of Fiscal Year 2002 through and
including the second Fiscal Quarter of Fiscal Year 2002, 4.30 to 1.0; (iv)
for the period after the second Fiscal Quarter of Fiscal Year 2002 through
and including the third Fiscal Quarter of Fiscal Year 2002, 3.90 to 1.0;
(v) for the period after the third Fiscal Quarter of Fiscal Year 2002
through and including the fourth Fiscal Quarter of Fiscal Year 2002, 3.65
to 1.0; and (vi) for each period thereafter, 3.50 to 1.0.
8. New Section 5.23. A new Section 5.23 is hereby added to the Credit Agreement
as follows:
SECTION 5.23. Restricted Payments. The Borrower will not declare or
make any Restricted Payment at any time at which the Debt/EBITDA Ratio for
the prior Fiscal Month is equal to or greater than 3.00 to 1.00.
9. New Section 5.24. A new Section 5.24 is hereby added to the Credit Agreement
as follows:
SECTION 5.24. Capital Expenditures. Capital Expenditures will not
exceed (i) for the period from and including the third Fiscal Quarter of
Fiscal Year 2000 through and including the fourth Fiscal Quarter of Fiscal
Year 2001, $1,500,000; (ii) for the period after the fourth Fiscal Quarter
of Fiscal Year 2001 through and including the fourth Fiscal Quarter of
Fiscal Year 2002, $4,000,000; and (iii) for each Fiscal Year thereafter, an
amount not exceeding 50% of the Borrower's depreciation for such period
determined in accordance with GAAP.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. Governing Law. This Amendment shall be governed by and construed and
interpreted in accordance with, the laws of the State of Georgia.
18. Conditions Precedent. This Amendment shall become effective only upon (i)
execution and delivery of this Amendment by each of the parties hereto, (ii)
payment to the Agent of a fully-earned and non-refundable fee in an aggregate
amount equal to $115,000, payable to the Banks on a pro rata basis with respect
to their Commitments, (iii) pursuant to Section 2.08, the Borrower shall have
delivered to the Agent an irrevocable notice of reduction of the Unused
Commitments, on a pro rata basis, to an aggregate amount not exceeding
$25,000,000, effective simultaneously with the execution and delivery of this
Amendment, and (iv) Borrower shall have delivered to the Agent an irrevocable
notice of reduction of the Unused Commitments, on a pro rata basis, to an
aggregate amount not exceeding $20,000,000, effective January 31, 2002. A
default by the Borrower under this Amendment shall be an Event of Default under
the Credit Agreement.
19. Restructuring of the Loans and Collateral Security. The Borrower agrees on
or before March 23, 2001, to (a) execute and deliver (i) an amendment reasonably
satisfactory to the Banks in all respects with respect to the Credit Agreement
whereby (A) a portion of the Loans held by SunTrust Bank outstanding on such
date equal to $998,634 is converted into a term loan held solely by SunTrust
Bank (the "SunTrust Term Loan"), and (B) under its Commitment, SunTrust will not
be obligated to fund its pro rata share of Loans until SunTrust Bank's pro rata
share of all the outstanding Loans (after giving effect to any requested Loan)
is greater than $998,634; and (ii) new Notes reflecting such amendment and
evidencing such SunTrust Term Loan and the other Notes held by SunTrust Bank,
(b) execute and deliver in favor of the Agent, for the benefit of SunTrust Bank
and the issuers of letters of credit (the "LC Issuers") securing the payment of
the Borrower's industrial revenue bonds (such bonds being referred to herein as
the "Bonds") issued as (1) Chesterfield County, South Carolina Industrial
Revenue Bonds (Series 1996) in the original principal amount of $3,377,000, (2)
Alamance County, South Carolina Industrial Facilities and Pollution Control
Financing Authority Industrial Revenue Refunding Bonds (Series A and B) in the
original principal amount of $7,900,000, and (3) Xxxxxxx County, South Carolina
Industrial Facilities and Pollution Control Financing Authority Industrial
Development Revenue Bonds (Series 1997) in the original principal amount of
$8,500,000, a security agreement whereby the Borrower grants the Agent a first
priority and only security interest in and to the Borrower's accounts receivable
and general intangibles to secure the SunTrust Term Loan and the Borrower's
reimbursement obligations to the LC Issuers with respect to the Bonds, along
with UCC financing statements reasonably requested by the Agent in connection
therewith (the Borrower agreeing to reimburse the Agent for any recording fees,
taxes and other expenses incurred in connection with the perfection of the
Agent's security interest); (c) an opinion of Xxxxxxxx, Xxxxxxxx & Xxxxxx,
counsel for the Borrower, substantially in the form of Exhibit B to the Credit
Agreement and opining (i) that, as of the date of execution and delivery of such
security agreement, the Credit Agreement as amended and such security agreement
do not conflict with any material agreement to which the Borrower is a party,
including, without limitation, that certain Note Purchase Agreement dated as of
Xxxxx 0, 0000, (xx) as to the perfection of the security interests created by
such security agreement, and (iii) as to such additional matters relating to the
transactions contemplated hereby as the Agent or any Bank may reasonably
request; (d) a certificate substantially in the form of Exhibit G to the Credit
Agreement, signed by a principal financial officer of the Borrower, to the
effect that (i) no Default has occurred and is continuing on the date of such
amendment and security agreement, and (ii) the representations and warranties of
the Borrower contained in Article IV of the Credit Agreement are true on and as
of such date; (e) a certificate of the Borrower, signed by the Secretary or an
Assistant Secretary of the Borrower substantially in the form of Exhibit H to
the Credit Agreement, certifying as to the names, true signatures and incumbency
of the officer or officers of the Borrower authorized to execute and deliver
such amendment, security agreement and UCC financing statements, and certified
copies of the following items: (i) the Borrower's Certificate of Incorporation,
(ii) the Borrower's Bylaws, (iii) a certificate of the Secretary of State of the
State of North Carolina as to the existence of the Borrower as a North Carolina
corporation, and (iv) the action taken by the Board of Directors of the Borrower
authorizing the Borrower's execution, delivery and performance of such
amendment, the security agreement and such UCC financing statements; and (f) to
take such further actions as the Agent shall reasonably request in connection
therewith. The failure of the Borrower to perform its obligations under this
paragraph 19, time being of the essence, shall constitute an Event of Default
under the Credit Agreement.
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:
