FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT ("Fourth
Amendment") dated as of August 20, 1999 by and among XXXX INDUSTRIES, INC., a
corporation organized under the laws of the State of Georgia (the "Borrower"),
the Lenders appearing on the signature pages hereof (the "Lenders"), and BANK OF
AMERICA, N.A. (f/k/a NationsBank, N.A.), as Issuing Bank and Administrative
Agent.
WHEREAS, the Borrower, the Lenders, the Issuing Bank and the Agents
entered into that certain Amended and Restated Credit Agreement dated as of
March 16, 1998, as amended by that certain First Amendment to Amended and
Restated Credit Agreement dated as of August 7, 1998, that certain Second
Amendment to Amended and Restated Credit Agreement dated as of October 6, 1998
and that certain Third Amendment to Amended and Restated Credit Agreement dated
as of October 15, 1998 (as so amended, the "Credit Agreement"), pursuant to
which the Lenders made certain financial accommodations available to the
Borrower;
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement on the terms and conditions set forth herein; and
WHEREAS, the Lenders are willing to so amend the Credit Agreement on
the terms and conditions set forth herein.
NOW, THEREFORE, for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the parties, the parties
hereto agree as follows:
Section 1. Specific Amendments to Credit Agreement.
(a) The Credit Agreement is hereby amended by deleting the defined term
"Quarterly Dates" contained in Section 1.1 thereof and substituting in lieu
thereof the following:
" 'Quarterly Dates' means the last Business Day of March,
June, September and December of each year."
(b) The Credit Agreement is hereby further amended deleting the defined
term "Swing Line Amount" contained in Section 1.1 thereof and substituting in
lieu thereof the following:
" 'Swing Line Amount' means $75,000,000."
(c) The Credit Agreement is hereby further amended by deleting
subsection (d) contained in Section 5.5. thereof and substituting in lieu
thereof the following:
"(d) Interest on Swing Line Loans. Subject to the provisions
of Section 5.6, interest on each Swing Line Loan shall accrue at an
interest rate per annum during the Interest Period for such Swing Line
Loan equal to the Money Market Rate for such Interest Period then in
effect for such Swing Line Loan and shall be payable (i) on the last
Business Day of each calendar month and (ii) at the maturity (other
than the end of the Interest Period with respect thereto) of such Swing
Line Loan (and after maturity (whether by acceleration or otherwise)
upon demand). All determinations by the Swing Line Lender of an
interest rate hereunder shall be conclusive and binding on the Borrower
for all purposes, absent manifest error."
(d) The Credit Agreement is hereby further amended by deleting the last
sentence contained in subsection (a) of Section 5.15. thereof and substituting
in lieu thereof the following:
"The foregoing fees shall be calculated on a per annum basis
and shall be paid in arrears (a) on the Effective Date and (b) on each
Quarterly Date thereafter, and such fees shall be deemed fully earned
when due and non-refundable."
Section 2. Effectiveness of Amendment.
This Fourth Amendment, and the amendments effected hereby, shall be
effective only upon the satisfaction of each of the following conditions
precedent to effectiveness:
(a) this Fourth Amendment shall be executed and delivered by each of
the Borrower, the Issuing Bank, the Administrative Agent and the Requisite
Lenders; and
(b) the Administrative Agent shall have received a certificate dated
the date hereof from the Chief Financial Officer or the Treasurer of the
Borrower certifying that, immediately prior to and after giving effect to the
amendment contemplated hereby, no Default or Event of Default under the Credit
Agreement exists.
Section 3. Representations and Warranties.
(a) In order to induce the Lenders to enter into this Fourth Amendment,
the Borrower hereby reaffirms each of the representations and warranties of the
Borrower contained in the Credit Agreement as of the date hereof except for
either: (i) the occurrence of any event that would render such representations
or warranties untrue, but that is expressly permitted by the terms of the Credit
Agreement or which would not cause an Event of Default under the Credit
Agreement or (ii) the occurrence of any event that would render such
representations or warranties untrue but that previously has been disclosed in
writing to the Lenders.
(b) The execution, delivery and performance of this Fourth Amendment by
the Borrower does not require the consent of any other Person under any
document, instrument or agreement to which the Borrower is a party or under
which the Borrower is bound.
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Section 4. References to the Credit Agreement.
Each reference to the Credit Agreement in any of the Loan Documents
shall be deemed to be a reference to the Credit Agreement, as amended by this
Fourth Amendment, and as the same may be further amended, restated, supplemented
or otherwise modified from time to time in accordance with Section 13.6 of the
Credit Agreement. Further, the Borrower and the Lenders hereby acknowledge and
agree that all references to "NationsBank, N.A." in its individual capacity or
in its capacity as Issuing Bank and/or Administrative Agent (and any defined
term used to designate "NationsBank, N.A." in its individual capacity or in its
capacity as Issuing Bank and/or Administrative Agent) contained in the Credit
Agreement and the other Loan Documents shall be deemed to be references to "Bank
of America, N.A.".
Section 5. Benefits.
This Fourth Amendment shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
Section 6. GOVERNING LAW.
THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 7. Effect.
Except as expressly herein amended, the terms and conditions of the
Credit Agreement shall remain in full force and effect without amendment or
modification, express or implied.
Section 8. Counterparts.
This Fourth Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns.
Section 9. Definitions.
All capitalized terms which are used herein and not otherwise defined
herein shall have the meanings given such terms as set forth in the Credit
Agreement.
[Signatures Contained on Following Page]
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[Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
dated as of August 20, 1999 with Xxxx Industries, Inc.]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to Amended and Restated Credit Agreement to be executed under seal by
their duly authorized officers as of the date first above written.
THE BORROWER:
XXXX INDUSTRIES, INC.
By: ________________________________________________
Title: _____________________________________________
THE ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent
By: ________________________________________________
Title: _____________________________________________
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[Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
dated as of August 20, 1999 with Xxxx Industries, Inc.]
THE LENDERS:
BANK OF AMERICA, N.A., as a Lender, Issuing Bank and
Swing Line Lender
By: ________________________________________________
Title: _____________________________________________
SUNTRUST BANK, ATLANTA
By: ________________________________________________
Title: _____________________________________________
By: ________________________________________________
Title: _____________________________________________
WACHOVIA BANK, N.A.
By: ________________________________________________
Title: _____________________________________________
FIRST UNION NATIONAL BANK
By: ________________________________________________
Title: _____________________________________________
THE FIRST NATIONAL BANK OF CHICAGO
By: ________________________________________________
Title: _____________________________________________
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[Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
dated as of August 20, 1999 with Xxxx Industries, Inc.]
THE FUJI BANK, LIMITED, ATLANTA AGENCY
By: ________________________________________________
Title: _____________________________________________
SOUTHTRUST BANK, N.A.
By: ________________________________________________
Title: _____________________________________________
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: ________________________________________________
Title: _____________________________________________
BANQUE NATIONALE DE PARIS, HOUSTON AGENCY
By: ________________________________________________
Title: _____________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By: ________________________________________________
Title: _____________________________________________
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[Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
dated as of August 20, 1999 with Xxxx Industries, Inc.]
THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA AGENCY
By: ________________________________________________
Title: _____________________________________________
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