FIRST AMENDMENT TO 1996 AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO 1996 AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of December 1, 1996, is made among XXXX, INC., a North Carolina
corporation (the "Borrower"), FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
N.A., a national banking association ("First Union"), WACHOVIA BANK OF NORTH
CAROLINA, N.A., a national banking association ("Wachovia") ("First Union and
Wachovia being referred to collectively herein as the "Banks") and FIRST
UNION, acting in the manner and to the extent described in Section 12 of the
Credit Agreement (as defined herein) (in such capacity, the "Agent").
Capitalized terms not defined herein shall have the meanings ascribed to them
in the Credit Agreement.
BACKGROUND STATEMENT
A. The Borrower and the Banks are parties to the 1996 Amended and
Restated Credit Agreement, dated as of April 1, 1996 (the "Credit
Agreement"), pursuant to which, among other things, the Banks have made
available to the Borrower certain irrevocable letters of credit issued by
Wachovia as credit enhancement for various industrial development revenue
bonds issued for the benefit of the Borrower.
B. The Borrower is currently negotiating the issuance of two new
industrial development revenue bond issues, the $3,500,000 Luzerne County
Industrial Development Authority Tax-Exempt Adjustable Mode Industrial
Development Revenue Bonds (Xxxx, Inc. Project) Series 1996 (the "Luzerne
Bonds") and the $6,000,000 The Alamance County Industrial Facilities and
Pollution Control Financing Authority Tax-Exempt Adjustable Mode Industrial
Development Revenue Bonds (Xxxx, Inc. Project) Series 1996 (the "Alamance
Bonds" and together with the Luzerne Bonds, the "Bonds").
C. The Borrower has requested that Wachovia issue an irrevocable
letter of credit in the amount of $3,675,000 as a credit enhancement for the
Luzerne Bonds. The Banks are willing for authorize the issuance of such
letter of credit (the "Luzerne Letter of Credit") upon the terms and
conditions hereof.
D. In addition, the Borrower has requested that Wachovia issue an
irrevocable letter of credit in the amount of $6,300,000 as a credit
enhancement for the Alamance Bonds. The Banks are willing for authorize the
issuance of such letter of credit (the "Alamance Letter of Credit" and
together with the Luzerne Letter of Credit, the "New Letters of Credit") upon
the terms and conditions hereof.
E. To effectuate the issuance of the New Letters of Credit,
the Borrower and the Banks desire to amend the Credit Agreement to
increase the LOC Committed Amount under the Credit Agreement.
STATEMENT OF AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Borrower, each of
the Banks and the Agent, for themselves and their successors and
assigns, agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
I.1. Amendment to Section 1.1. Section 1.1 of the Credit
Agreement is hereby amended by deleting such the definition of "Letter
of Credit" in its entirety and substituting therefor the following:
"Letter of Credit" shall mean the Existing Letters of
Credit, the Irrevocable Letter of Credit No. LC 968-080881,
issued in the amount of $3,675,000 as credit support for
the $3,500,000 Luzerne County Industrial Development
Authority Tax-Exempt Adjustable Mode Industrial Development
Revenue Bonds (Xxxx, Inc. Project) Series 1996, the
Irrevocable Letter of Credit No. LC 968-080882, issued in
the amount of $6,300,000 as credit support for the
$6,000,000 The Alamance County Industrial Facilities and
Pollution Control Financing Authority Tax-Exempt Adjustable
Mode Industrial Development Revenue Bonds (Xxxx, Inc.
Project) Series 1996, and any letter of credit issued by
the Issuing Bank pursuant to the terms hereof, as such
Letters of Credit may be amended, modified, extended,
renewed or replaced from time to time.
I.2. Amendment to Section 4.5(a). Section 4.5(a) of the Credit
Agreement is hereby amended by deleting such subsection in its entirety
and substituting therefor the following:
4.5 Letters of Credit.
(a) Issuance. Subject to the terms and conditions
hereof and of the LOC Documents, if any, and any other
terms and conditions which the Issuing Bank may reasonably
require, the Issuing Bank shall issue, and the Banks shall
participate in, Letters of Credit for the account of the
Borrower from time to time upon request from the
Restatement Date until the Revolving Loan Maturity Date in
a form acceptable to the Issuing Bank; provided, however,
that (i) the aggregate amount of LOC Obligations shall not
at any time exceed THIRTY-TWO MILLION FOUR HUNDRED NINETEEN
THOUSAND FOUR HUNDRED THIRTEEN AND 54/100 DOLLARS
($32,419,413.54) (the "LOC Committed Amount"). Letters of
Credit will be issued solely for the purpose of supporting
industrial development revenue bonds or similar
tax-advantaged programs for the benefit of the Borrower.
Except as otherwise expressly agreed upon by all the Banks,
Letters of Credit shall not have an original expiry date
later than the Revolving Loan Maturity Date. Each Letter
of Credit shall comply with the related LOC Documents. The
Issuance and expiry date of each Letter of Credit shall be
a Business Day.
ARTICLE II
ISSUANCE OF LETTERS OF CREDIT
II.1. Luzerne Letter of Credit. Subject to the terms and
conditions hereinafter set forth, on December 4, 1996, or such other
later date as requested by the Borrower, Wachovia shall issue the
Luzerne Letter of Credit. The Luzerne Letter of Credit shall be issued
in an amount equal to the sum of (i) the aggregate principal amount of
the Luzerne Bonds plus (ii) an amount equal to the 120 days interest on
the Luzerne Bonds, computed as though the Luzerne Bonds bore interest
at a rate of 15% per annum, notwithstanding the actual rate bore by the
Luzerne Bonds from time to time, based on a 360-day year for the actual
number of days elapsed.
II.2. Alamance Letter of Credit. Subject to the terms and
conditions hereinafter set forth, on December 20, 1996, or such other
later date as requested by the Borrower, Wachovia shall issue the
Alamance Letter of Credit. The Alamance Letter of Credit shall be
issued in an amount equal to the sum of (i) the aggregate principal
amount of the Alamance Bonds plus (ii) an amount equal to the 120 days
interest on the Alamance Bonds, computed as though the Alamance Bonds
bore interest at a rate of 15% per annum, notwithstanding the actual
rate bore by the Alamance Bonds from time to time, based on a 360-day
year for the actual number of days elapsed.
II.3. Letter of Credit Fees. On the date of issuance of the each
New Letter of Credit (each, a "Date of Issuance"), the Borrower shall
pay to the Agent a fee equal to (i) the product of the Applicable
Percentage times the amount of such New Letter of Credit, times (ii)
the quotient of the number of days between such Date of Issuance and
April 1, 1997 divided by 365. The Agent shall pay to the Banks
(including the Issuing Bank) their respective ratable share of the
Letter of Credit Fee promptly upon receipt.
ARTICLE III
CONDITIONS TO BANK'S OBLIGATIONS
III.1. Conditions to Issuance of the Letters of Credit. The
obligations of Wachovia to issue each of the New Letters of Credit are
subject to the satisfaction of all of the following conditions
precedent:
(a) Credit Document. This Amendment shall have been duly
authorized, executed and delivered by the Borrower, shall be in
form and substance satisfactory to the Banks;
(b) Letter of Credit Fee. The Agent shall have received
the letter of credit fee (paid pursuant to Section 2.3 of this
Amendment) applicable to such New Letter of Credit; and
(c) Other Documents. The Banks shall have received such
other documents and certificates as the Banks may reasonably
request in connection with this Amendment, each in form and
substance satisfactory to the Banks.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants that:
IV.1. Compliance with Credit Agreement. The Borrower is in
compliance in all material respects with all terms and provisions set
forth in the Credit Agreement to be observed or performed by it.
IV.2. Representations in Credit Agreement. The representations
and warranties of the Borrower set forth in the Credit Agreement are
true and correct in all material respects as of the date hereof, except
insofar as any such representation or warranty relates solely to a
prior date.
IV.3. No Event of Default. No Event of Default, nor any event
that upon notice, lapse of time or both would become an Event of
Default, has occurred and is continuing.
ARTICLE V
GENERAL
V.1. Full Force and Effect. Except as expressly amended hereby,
the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof on the date hereof. As used in
the Credit Agreement, "hereinafter," "hereto," "hereof," and words of
similar import shall, unless the context otherwise requires, mean the
Credit Agreement after amendment by this Amendment. Any reference to
the Credit Agreement or any of the other Loan Documents herein or in
any such documents shall refer to the Credit Agreement and Loan
Documents as amended hereby.
V.2. Applicable Law. This Amendment shall be governed by and
construed in accordance with the internal laws and judicial decisions
of the State of North Carolina.
V.3. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall constitute an original, but all
of which when taken together shall constitute but one instrument.
V.4. Headings. The headings of this Amendment are for the
purposes of reference only and shall not affect the construction of
this Amendment.
V.5. Effectiveness. This Amendment shall be deemed fully
executed and effective when executed by the Borrower, the Agent and
each of the Banks.
IN WITNESS WHEREOF, the Borrower, each of the Banks and the Agent
have caused this Amendment to be executed by their duly authorized
officers all as of the day and year first above written.
XXXX, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
Vice President
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, for itself
and as Agent
By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Vice President
WACHOVIA BANK OF NORTH CAROLINA,
N.A.
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
