SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as
of August 29, 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, and Fifth Amendment to Credit
Agreement dated as of January 26, 2001, and Sixth Amendment (the "Sixth
Amendment") to Credit Agreement dated as of March 28, 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 Section 1.01. The definition of "EBITDA" contained in
Section 1.01 of the Credit Agreement is amended by deleting it in its entirety
and substituting the following therefor:
"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 $5,100,000 in the
aggregate through the fourth Fiscal Quarter of Fiscal Year 2002, and other
non-cash charges.
3. Amendments to Schedule 1.01(E). Schedule 1.01(E) described in the
foregoing amended definition of "EBITDA" is amended and restated and attached to
the Credit Agreement in the form of Schedule 1.01(E) attached to this Amendment
and made a part hereof.
4. 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.
5. 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.
6. 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.
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 to the Borrower.
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
(i) execution and delivery of this Amendment by each of the parties hereto, and
(ii) payment of a non-refundable, fully-earned fee equal to $25,000 by the
Borrower to the Agent payable pro-rata to the Banks that execute the Amendment
based on their commitment amount. A default by the Borrower under this Amendment
shall be 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:
SCHEDULE 1.01(E)
Xxxx, Inc.
Analysis of Cash Charges
Estimated total cash charges $ 6,282,610
Above limitation ( 1,182,610)
------------
Cash charges allowed $ 5,100,000
============
