Exhibit 10(q)
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is dated as of June 3, 2003, among XXXX, INC. (the "Borrower")
and WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent and as a Bank (the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower and the Agent executed and delivered that certain
Amended and Restated Credit Agreement, dated as of August 23, 2002 ( as the
same may be amended, restated, supplemented, or otherwise modified from time
to time, the "Credit Agreement"); and
WHEREAS, the Borrower has requested, and the Agent has 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 and the Agent
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. Amendment to Credit Agreement. Section 5.21 of the Credit Agreement is
amended and restated in its entirety as set forth below:
Debt/EBITDA Ratio. Commencing with the results for the fourth
Fiscal Quarter of 2003 and for each Fiscal Quarter thereafter, at the
end of each Fiscal Quarter the Debt/EBITDA Ratio shall be less than
2.75 to 1.00.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. No Default. To induce the Agent 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 Bank under the Credit Agreement.
9. 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.
10. Governing Law. This Amendment shall be governed by and construed and
interpreted in accordance with the laws of the State of North Carolina.
11. Conditions Precedent. This Amendment shall become effective only upon
(a) the execution and delivery of this Amendment by each of the parties
hereto and (b) the receipt by the Agent of Borrower's payment of an amendment
fee of $7,500.
IN WITNESS WHEREOF, the Borrower and the Agent have 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., as Borrower
By: ---------------------------- (SEAL)
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Agent and as a Bank
By: ---------------------------- (SEAL)
Title:
