Exhibit 10.1
THIRTEENTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS THIRTEENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("Thirteenth Amendment") is made as of the 3rd day of November, 2008, by and
between XXXX, INC., a North Carolina corporation (together with its successors
and permitted assigns, the "Borrower"), and WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly, Wachovia Bank, N.A.), a national banking association, as Agent and as
a Bank (together with its endorsees, successors and assigns, the "Bank").
BACKGROUND
----------
The Borrower and the Bank entered into an Amended and Restated Credit
Agreement, dated as of August 23, 2002, as amended by Second Amendment to
Amended and Restated Credit Agreement (the "Second Amendment"), dated as of June
3, 2003; by Third Amendment to Amended and Restated Credit Agreement (the "Third
Amendment"), dated as of August 23, 2004; by Fourth Amendment to Amended and
Restated Credit Agreement ("Fourth Amendment"), dated as of December 7, 2004; by
Fifth Amendment to Amended and Restated Credit Agreement ("Fifth Amendment")
dated as of February 18, 2005; by Sixth Amendment to Amended and Restated Credit
Agreement ("Sixth Amendment"), dated as of August 30, 2005; by Seventh Amendment
to Amended and Restated Credit Agreement ("Seventh Amendment"), dated as of
December 7, 2005; by Eighth Amendment to Amended and Restated Credit Agreement
("Eighth Amendment"), dated as of January 29, 2006; by Ninth Amendment to
Amended and Restated Credit Agreement ("Ninth Amendment"), dated as of July 20,
2006; by Tenth Amendment to Amended and Restated Credit Agreement ("Tenth
Amendment"), dated as of January 22, 2007; by Eleventh Amendment to Amended and
Restated Credit Agreement ("Eleventh Amendment"), dated as of April 16, 2007;
and by Twelfth Amendment to Amended and Restated Credit Agreement ("Twelfth
Amendment"), dated as of December 27, 2007 (it being acknowledged by the parties
hereto that the proposed First Amendment to Amended and Restated Credit
Agreement, which had been under discussion in March 2003, was never executed by
the parties and is of no force or effect; otherwise, such agreement, as amended
by the Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment,
Sixth Amendment, Seventh Amendment, Eighth Amendment, Ninth Amendment, Tenth
Amendment, Eleventh Amendment, and Twelfth Amendment, and as it may be further
amended, restated, supplemented and/or modified, shall be referred to herein as
the "Credit Agreement"). Terms used herein and not herein defined shall have the
meanings given to them in the Credit Agreement.
The Borrower has now requested additional amendments to the provisions of
the Credit Agreement, which the Bank is willing to accommodate subject to the
terms, provisions and conditions set forth in this Thirteenth Amendment.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower and the Bank hereby agree as follows:
1. Amendments to Credit Agreement. The Credit Agreement is hereby amended
as follows:
(a) The following definitions in Section 1.01 are hereby amended and
restated in their entireties to read as follows:
"Applicable Margin" means three percent (3%).
"Termination Date" means whichever is applicable: (i) December 31,
2009, (ii) the date the Commitments are terminated pursuant to Section 6.01
following the occurrence of an Event of Default, or (iii) the date the
Borrower terminates the Commitments entirely pursuant to Section 2.08.
(b) The following definitions are hereby added to Section 1.01 of the
Credit Agreement:
"Note Purchase Agreement" means the Note Purchase Agreements, dated as
of March 4, 1998, among the Borrower, as the Company, and each of
Connecticut General Life Insurance Company, Life Insurance Company of North
America, CIGNA Property and Casualty Insurance Company, The Mutual Life
Insurance Company of New York, United Omaha Life Insurance Company, The
Prudential Insurance Company of America, and Allstate Life Insurance
Company, as Purchasers, as amended by: (i) First Amendment dated as of
January 31, 2002; (ii) Second Amendment dated as of December 6, 2006; (iii)
Third Amendment dated as of April 17, 2007; (iv) Fourth Amendment dated as
of February 19, 2008; and (v) Consent and Fifth Amendment dated as of
August 11, 2008, and as may be amended in the future.
"Omaha Note Purchase Agreement" means that certain Note Purchase
Agreement, dated as of August 11, 2008, among the Borrower, as the Company,
and Mutual of Omaha Insurance Company and United of Omaha Life Insurance
Company, as Purchasers, and as may be amended in the future.
(c) Section 5.19 of the Credit Agreement through and including Section 5.28
of the Credit Agreement are hereby deleted in their entireties.
(d) New Section 5.29 through and including new Section 5.31 are hereby
added to the Credit Agreement, which new sections shall read as follows:
"Section 5.29. Certain Financial Limits. The Borrower shall not, at
any time, permit:
-2-
(a) Tangible Net Worth to be less than the sum of (a) $65,164,800, plus (b)
an aggregate amount equal to 50% of its Consolidated Net Income (but, in each
case, only if a positive number) for each completed fiscal quarter.
Terms used but not defined in this Section 5.29(a) shall have the
definitions given such terms in the Omaha Note Purchase Agreement (but excluding
for purposes of this Section 5.29(a) any future amendments thereto not made with
the written consent of the Bank).
(b) Capital Expenditures of the Borrower and its Subsidiaries to exceed (i)
$5,000,000 in the aggregate during the Borrower's 2008 fiscal year and (ii) for
any fiscal year of the Borrower thereafter, the sum of (A) $4,000,000 and (B)
such additional amount of Capital Expenditures that may be incurred without
causing the Borrower to have a Fixed Charge Coverage Ratio (measured for the
most recently ended four fiscal quarters of the Borrower for which financial
statements have been delivered to the Bank and giving pro forma effect to the
incurrence of such additional Capital Expenditures as if they had been incurred
during such period) of less than 2.25:1.0.
Terms used but not defined in this Section 5.29(b) shall have the
definitions given such terms in the Note Purchase Agreement (but excluding for
purposes of this Section 5.29(b) any future amendments thereto not made with the
written consent of the Bank).
"Section 5.30. Consolidated Total Debt/Consolidated EBITDA Ratio. The
Borrower shall not at any time permit the ratio of (i) Consolidated Total Debt
to (ii) Consolidated EBITDA for the period of four consecutive fiscal quarters
then most recently ended, to exceed 2.5 to 1.0.
Terms used but not defined in this Section 5.30 shall have the definitions
given such terms in the Omaha Note Purchase Agreement (but excluding for
purposes of this Section 5.30 any future amendments thereto not made with the
written consent of the Bank).
"Section 5.31. Consolidated EBITDAR/Consolidated Fixed Charges Ratio. The
Borrower will keep and maintain the ratio of Consolidated EBITDAR to
Consolidated Fixed Charges for each period of four consecutive fiscal quarters
at no less than 2.25 to 1.0.
Terms used but not defined in this Section 5.31 shall have the definitions
given such terms in the Omaha Note Purchase Agreement (but excluding for
purposes of this Section 5.31 any future amendments thereto not made with the
written consent of the Bank).
(e) Section 6.01 of the Credit Agreement is hereby amended by adding a new
Event of Default thereto, which new Event of Default shall read as follows:
-3-
(m) An "Event of Default" (as therein defined) under either the Note
Purchase Agreement or the Omaha Note Purchase Agreement shall have occurred
and be continuing.
2. Further Assurances. The Borrower will execute such confirmatory
instruments, if any, with respect to the Credit Agreement and this Thirteenth
Amendment as the Bank may reasonably request.
3. Ratification by Borrower. The Borrower ratifies and confirms all of its
representations, warranties, covenants, liabilities and obligations under the
Credit Agreement (except as expressly modified by this Thirteenth Amendment) and
agrees that: (i) except as expressly modified by this Thirteenth Amendment, the
Credit Agreement continues in full force and effect as if set forth specifically
herein; and (ii) the Borrower has no right of setoff, counterclaim or defense to
payment of its obligations under the Credit Agreement. The Borrower and the Bank
agree that this Thirteenth Amendment shall not be construed as an agreement to
extinguish the Borrower's obligations under the Credit Agreement or the Notes
and shall not constitute a novation as to the obligations of the Borrower under
the Credit Agreement or the Notes. The Bank hereby expressly reserves all rights
and remedies it may have against all parties who may be or may hereafter become
secondarily liable for the repayment of the obligations under the Credit
Agreement or the Notes.
4. Amendments. This Thirteenth Amendment may not itself be amended,
changed, modified, altered, or terminated without in each instance the prior
written consent of the Bank. This Thirteenth Amendment shall be construed in
accordance with and governed by the laws of the State of North Carolina.
5. Counterparts. This Thirteenth Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
6. Modification and Extension Fee. The Borrower shall pay to the Bank on
the date this Thirteenth Amendment is executed, an amendment and extension fee
equal to $20,000.00, which fee, once paid, shall be fully earned and
non-refundable.
7. Bank's Expenses. In accordance with Section 9.03 of the Credit
Agreement, Borrower hereby acknowledges and agrees to pay all reasonable
out-of-pocket expenses incurred by the Bank in connection with the preparation
of this Thirteenth Amendment, including without limitation reasonable attorneys'
fees.
[Signature Page Follows]
-4-
IN WITNESS WHEREOF, this Thirteenth Amendment has been duly executed under
seal by Borrower and Bank as of the day and year first above written.
BORROWER:
XXXX, INC. (SEAL)
By:/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial Officer
BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent and as Bank (SEAL)
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
-5-
