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CONFORMED COPY
EXHIBIT 4.2
FIFTH AMENDMENT
THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"AMENDMENT") is made and entered into this 11th day of October, 1996, by and
among XXXXXX, INC., a Georgia corporation (hereinafter referred to as
"BORROWER") with its chief executive office and principal place of business at
0000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000; the various financial
institutions listed on the signature pages hereof (such financial institutions
and their respective successors and assigns referred to collectively herein as
"LENDERS" and individually as a "LENDER"); and WACHOVIA BANK OF GEORGIA, N.A., a
national banking association (hereinafter referred to as "AGENT") with an office
at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000, in its capacity as
collateral and administrative agent for Lenders.
RECITALS:
Agent, Lenders and Borrower are parties to a certain Loan and
Security Agreement dated January 12, 1996, as amended by that certain First
Amendment to Loan and Security Agreement dated May 28, 1996, that certain Second
Amendment to Loan and Security Agreement dated June 12, 1996, that certain Third
Amendment to Loan and Security Agreement dated August 15, 1996 and that certain
Fourth Amendment to Loan and Security Agreement dated August 30, 1996 (the "LOAN
AGREEMENT") pursuant to which Lenders have made certain revolving credit and
term loans to Borrower.
The parties desire to further amend the Loan Agreement as hereinafter
set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Loan Agreement.
2. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby amended
by deleting Sections 10.3.1, 10.3.2, 10.3.3 and 10.3.4 in their entireties and
by substituting the following new Sections 10.3.1, 10.3.2, 10.3.3 and 10.3.4 in
lieu thereof:
10.3.1. Minimum EBITDA. Borrower shall at all times
maintain Consolidated EBITDA of at least the amount shown below for
the period corresponding thereto:
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Period Amount
Fiscal year ending $39,000,000
February 28, 1997
March 1, 1997 through $47,000,000, calculated quarterly based
February 28, 1998 upon the immediately preceding four (4)
fiscal quarters of Borrower
March 1, 1998 and $48,000,000, calculated quarterly based
thereaafter upon the immediately preceding four (4)
fiscal quarters of Borrower
10.3.2. Consolidated Fixed Charge Coverage Ratio. Borrower shall at
all times maintain a Consolidated Fixed Charge Coverage Ratio of at least the
ratio shown below for the period corresponding thereto, calculated quarterly
based upon the immediately preceding four fiscal quarters:
Period Ratio
December 1, 1996 through 1.5 to 1.0
February 28, 1997
March 1, 1997 through 1.75 to 1.0
February 28, 1998
March 1, 1998, and thereafter 2.0 to 1.0
10.3.3. Minimum Consolidated Net Worth. At all times after September
1, 1996, Borrower shall maintain a Consolidated Net Worth of at least (i)
$64,800,000 plus (ii) 75% of Consolidated Net Income for each fiscal quarter,
commencing with and including the fiscal quarter ending November 30, 1996, on a
cumulative basis, without giving effect to any losses.
10.3.4. Consolidated Leverage Ratio. Borrower shall at all times
maintain a Consolidated Leverage Ratio that does not exceed the ratio shown
below for the period corresponding thereto:
Period Ratio
October 11, 1996 through 3.25 to 1.0
January 30, 1997
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January 31, 1997 through 2.75 to 1.0
February 27, 1997
February 28, 1997 through 2.50 to 1.0
February 27, 1998
February 28, 1998, and 2.25 to 1.0
thereafter
3. RATIFICATION AND REAFFIRMATION. Borrower hereby ratifies and
reaffirms each of the Loan Documents and all of Borrower's covenants, duties and
liabilities thereunder.
4. ACKNOWLEDGEMENTS AND STIPULATIONS. Borrower acknowledges and
stipulates that the Loan Agreement and the other Loan Documents executed by
Borrower are legal, valid and binding obligations of Borrower that are
enforceable against Borrower in accordance with the terms thereof; all of the
Obligations are owing and payable without defense, offset or counterclaim (and
to the extent there exists any such defense, offset or counterclaim on the date
hereof, the same is hereby waived by Borrower); the Liens granted by Borrower in
favor of Agent are duly perfected, first priority Liens; and the unpaid
principal amount of the Revolver Loans on and as of October 11, 1996, totalled
$25,256,000 and the unpaid principal amount of the Term Loan Advances on and as
of October 11, 1996, totalled $16,250,000.
5. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants
to Agent and Lenders, to induce Agent and Lenders to enter into this Amendment,
that except as expressly set forth in Paragraph 6 below, no Default or Event of
Default exists on the date hereof; the execution, delivery and performance of
this Amendment have been duly authorized by all requisite corporate action on
the part of Borrower, and this Amendment has been duly executed and delivered by
Borrower; and all of the representations and warranties made by Borrower in the
Loan Agreement are true and correct on and as of the date hereof.
6. LIMITED WAIVER OF DEFAULT. Events of Default have occurred and
currently exist under the Loan Agreement as a result of Borrower's breach of the
financial covenants that are set forth in Sections 10.3.1, 10.3.2, 10.3.3 and
10.3.4 of the Loan Agreement as in effect prior to the date hereof
(collectively, the "DESIGNATED DEFAULTS"). Borrower represents and warrants that
the Designated Defaults are the only Events of Default that exist under the Loan
Agreement and the other Loan Documents as of the date hereof. Lender hereby
waives the Designated Defaults in existence on the date hereof. In no event
shall such waiver be deemed to constitute a waiver of (a) any Default or Event
of Default other than the Designated Defaults in existence on the date of this
Amendment or (b) Borrower's obligation to comply with all of the terms and
conditions of the Loan Agreement and the other Loan Documents from and after the
date hereof. Notwithstanding any prior, temporary mutual disregard of the terms
of any contracts between the parties, Borrower hereby agrees that it shall be
required strictly to comply with all of the terms of the Loan Documents on and
after the date hereof.
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7. AMENDMENT FEE. In consideration of Agent's and Lenders'
willingness to enter into this Amendment and to give the waiver in Paragraph 6
hereof, Borrower agrees to pay to Agent, for the Pro Rata benefit of Lenders, an
amendment fee in the amount of $5,000, in immediately available funds, on the
date hereof.
8. EXPENSES OF AGENT AND LENDERS. Borrower agrees to pay, on demand,
all costs and expenses incurred by Agent and any Lender in connection with the
preparation, negotiation and execution of this Amendment and any other Loan
Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the costs and fees of
Agent's and each Lender's legal counsel and any taxes or expenses associated
with or incurred in connection with any instrument or agreement referred to
herein or contemplated hereby.
9. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be effective
upon acceptance by Agent and Lenders in Atlanta, Georgia, whereupon the same
shall be governed by and construed in accordance with the internal laws of the
State of Georgia.
10. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. NO NOVATION, ETC. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Loan Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor shall
it be construed to create, a novation or accord and satisfaction, and the Loan
Agreement as herein modified shall continue in full force and effect.
12. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be
executed in any number of counterparts and by different parties to this
Agreement on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
13. FURTHER ASSURANCES. Borrower agrees to take such further actions
as Agent and Lenders shall reasonably request from time to time in connection
herewith to evidence the amendments set forth herein to the Loan Agreement.
14. SECTION TITLES. 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.
15. RELEASE OF CLAIMS. To induce Agent and Lenders to enter into this
Amendment, Borrower hereby releases, acquits and forever discharges Agent and
each Lender, and all of their respective officers, directors, agents, employees,
successors and assigns, from any and all
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liabilities, claims, demands, actions or causes of actions of any kind or nature
(if there be any), whether absolute or contingent, disputed or undisputed, at
law or in equity, or known or unknown, that Borrower now has or ever had against
Agent or any Lender arising under or in connection with any of the Loan
Documents or otherwise.
16. WAIVER OF JURY TRIAL. To the fullest extent permitted under
Applicable Law, the parties hereto each hereby waives the right to trial by jury
in any action, suit, counterclaim or proceeding arising out of or related to
this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed under seal in Atlanta, Georgia, and delivered by their
respective duly authorized officers on the date first written above.
BORROWER:
ATTEST: XXXXXX, INC.
/s/ Xxxxxxx Xxxx By: /s/ Xxxx X. Xxxxx
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Assistant Secretary Xxxx X. Xxxxx, Senior Vice President,
[CORPORATE SEAL] Finance and Administration
ADDRESS:
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telecopier No.: (000) 000-0000
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LENDERS:
WACHOVIA BANK OF GEORGIA,
N.A.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Vice President
ADDRESS:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxx
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Title: Vice President
ADDRESS:
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Loan Administration Manager
Telecopier No.: (000) 000-0000
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AGENT:
WACHOVIA BANK OF GEORGIA,
N.A., as Agent
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Vice President
ADDRESS:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
