Exhibit 10(p)
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is dated as of March 17, 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. Amendments to Credit Agreement.
(a) Section 2.06(a) of the Credit Agreement is amended and restated in its
entirety as set forth below:
SECTION 2.06. Interest Rates.
(a) "Applicable Margin" means the difference of (i) either the LIBOR
or Base Rate percentage determined at any time minus (ii) the Deposit
Amount percentage determined at any time, which percentages shall be
calculated as follows: from and after the first Performance Pricing
Determination Date after December 31, 2002, (x) for any Base Rate Loan,
-0-%, (y) for each Euro-Dollar Loan the percentage determined on each
Performance Pricing Determination Date by reference to the first line of
the table set forth below as to such type of Loan and the Debt/EBITDA Ratio
for the quarterly or annual period ending immediately prior to such
Performance Pricing Determination Date and (z) for the Deposit Amount the
percentage determined on each Performance Pricing Determination Date by
reference to the second or third line, as applicable, of the table set
forth below as to such Deposit Amount and the Debt/EBITDA Ratio for the
quarterly or annual period ending immediately prior to such Performance
Pricing Determination Date. "Deposit Amount" means the average balance of
cash on deposit with all Banks from the last Performance Pricing
Determination Date through and including the then current Performance
Pricing Determination Date.
--------------------------------------------------------------------------------
Debt/EBITDA <=1.50 to 1.0 >1.50 to 1.0 >2.00 to 1.0 >2.50 to 1.0 >3.00
Ratio but but but to 1.0
<= 2.00 to 1.0 <= 2.50 to 1.0 <=3.00 to 1.0
--------------------------------------------------------------------------------
Applicable
Margin 1.50% 1.75% 2.00% 2.50% 3.00%
--------------------------------------------------------------------------------
Deposit .25% .25% .25% .25% .25%
Amount
>$10,000,000
but <=
$25,000,000
--------------------------------------------------------------------------------
Deposit .50% .50% .50% .50% .50%
Amount
>$25,000,000
--------------------------------------------------------------------------------
In determining interest for purposes of this Section 2.06 and fees for purposes
of Section 2.07 and Section 2.02A(f), the Borrower and the Banks shall refer to
the Borrower's most recent consolidated quarterly and annual (as the case may
be) financial statements delivered pursuant to Section 5.01(a) or (b), as the
case may be. If such financial statements require a change in the amount of
interest pursuant to this Section 2.06 or fees pursuant to Sections 2.07 or
2.02A(f), the Borrower shall deliver to the Agent, along with such financial
statements, a notice to that effect, which notice shall set forth in reasonable
detail the calculations supporting the required change. The "Performance Pricing
Determination Date" is the date which is the last date on which such financial
statements are permitted to be delivered pursuant to Section 5.01(a) or (b), as
applicable. Any such required change in interest and fees shall become effective
on such Performance Pricing Determination Date, and shall be in effect until the
next Performance Pricing Determination Date, provided that: (x) for Fixed Rate
Loans, changes in interest shall only be effective for Interest Periods
commencing on or after the Performance Pricing Determination Date; and (y) no
fees or interest shall be decreased pursuant to this Section 2.06 or Sections
2.07 or 2.02A(f) if a Default is in existence on the Performance Pricing
Determination Date.
(b) Section 5.24 of the Credit Agreement is amended and restated in its
entirety as set forth below:
SECTION 5.24. Capital Expenditures. Capital Expenditures will
not exceed (i) for the Fiscal Year 2003, $14,000,000; (ii) for Fiscal
Year 2004, $10,000,000; and (iii) for each Fiscal Year thereafter, 50%
of depreciation (determined in accordance with GAAP) incurred for such
Fiscal Year.
3. Release of Collateral Upon Bond Redemption. Pursuant to Section 5.25
of the Credit Agreement, the Agent hereby terminates the Security Agreement.
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 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.
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.
11. Governing Law. This Amendment shall be governed by and construed and
interpreted in accordance with the laws of the State of North Carolina.
12. Conditions Precedent. This Amendment shall become effective only upon
the execution and delivery of this Amendment by each of the parties hereto.
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., (SEAL)
as Borrower
By: __________________________________
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent and as a Bank (SEAL)
By: __________________________________
Title:
