Exhibit 10(tt)
SECOND AMENDMENT TO REIMBURSEMENT AND SECURITY AGREEMENTS
THIS SECOND AMENDMENT TO REIMBURSEMENTI AND SECURITY AGREEMENTS, dated
January 26, 2001 (this "Amendment"), is made by and between Xxxx, Inc., a
North Carolina corporation ("Company"), and Wachovia Bank, N.A., a national
banking association (the "Bank"). This Amendment amends the Reimbursement
Agreements defined below. All capitalized terms not otherwise defined in
this Amendment shall have the meanings assigned to them in the
Reimbursement Agreements.
RECITALS
A. The Company and the Bank are parties to seven separate
Reimbursement and Security Agreements (as amended by that First Amendment
thereto dated as of November 14, 2000, collectively, the "Reimbursement
Agreements"), each dated as of April 1, 1997 (except for item (vii) which
is dated as of July 1, 1997), with respect to (i) $3,377,000 original
principal amount Chesterfield County South Carolina Industrial Revenue
Bonds (Series 1988); (ii) $6,000,000 original principal amount Chesterfield
County, South Carolina Industrial Revenue Bonds (Series 1996); (iii)
$6,580,000 original principal amount Xxxxxxxx County, South Carolina
Industrial Revenue Bonds (Series 1993); (iv) $4,500,000 original principal
amount Guilford County Industrial Facilities and Pollution Control
Financing Authority Industrial Development Revenue Bonds (Series 1989); (v)
$7,900,000 original principal amount Alamance County Industrial Facilities
and Pollution Control Financing Authority Industrial Revenue Refunding
Bonds (Series A and B); (vi) $3,500,000 original principal amount Luzerne
County Industrial Development Revenue Bonds (Series 1996); and (vii)
$8,500,000 original principal amount Xxxxxxx County Industrial Facilities
and Pollution Control Financing Authority Industrial Development Revenue
Bonds (Series 1997).
B. The Company has requested in connection with Section 8.1(f) of the
Reimbursement Agreements that the Bank consent to that certain Fifth
Amendment (the "Fifth Amendment") executed and delivered simultaneously
herewith with respect to that certain Credit Agreement, dated April 23,
1997, between the Company, and the Bank has so agreed, subject to the terms
and conditions set forth in this Amendment.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of these premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Bank hereby agree as follows:
CONSENT
1.1 Consent to Fifth Amendment. The Bank hereby consents to the execution
and delivery of the Fifth Amendment and agrees that by virtue of the amendments
set forth in the Fifth Amendment no Event of Default has occurred under Section
8.1(f) of the Reimbursement Agreements with respect to the provisions amended in
such Fifth Amendment.
AMENDMENTS
Each Reimbursement Agreement is hereby amended as follows:
2.1 Amendment of Definition of Fee Percentage. The definition of "Fee
Percentage" contained in Section-1.1 of each Reimbursement Agreement is hereby
deleted in its entirety and is replaced with the following:
"Fee Percentage" means the percentage determined on each applicable Payment
Date by reference to the table set forth below and the Debt/EBITDA Ratio for the
quarterly or annual period ending immediately prior to such Payment Date:
Debt/EBITDA Ratio Fee Percentage
<=3.00 to 1.00 2.50%
>3.00 to 1.00 but 3.00%
<=3.50 to 1.00
>3.50 to 1.00 but 3.50%
<=4.00 to 1.00
>4.00 to 1.00 but 4.00%
<=4.50 to 1.00
>4.50 to 1.00 4.25%
2.3 References to "Credit Agreement". The Company hereby agrees that
references to the "Credit Agreement" in each of the Reimbursement Agreements
shall include the Credit Agreement as in effect immediately prior to any
termination or replacement thereof, as if such termination or replacement had
not occurred, and for the purposes of Section 8.1(f) of each Reimbursement
Agreement the Credit Agreement shall be deemed to have survived such termination
or replacement, the Credit Agreement being incorporated herein by reference.
2.4 Effect of Amendment. The Company hereby reaffirms and ratifies all of
its Reimbursement Obligations under each of the Reimbursement Agreements. Except
as expressly amended hereby, each such document shall continue in full force and
effect in accordance with the provisions thereof on the date hereof. This
Amendment is intended to supplement each Reimbursement Agreement, and is not
intended to be and shall not be construed as a substitution or novation of the
original indebtedness evidenced by the Reimbursement Agreements, which shall
remain in full force and effect; and this Agreement does not extinguish the
outstanding indebtedness evidenced by the Reimbursement Agreements.
REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants that:
3.1 Authorization. The execution, performance and delivery of this
Amendment are within the corporate powers of the Company and have been duly
authorized by all necessary corporate action of the Company and this Amendment
has been validly executed and delivered by the Company
3.2 Compliance with Reimbursement Agreements. The Company is in compliance
with all terms and provisions set forth in the Reimbursement Agreements to be
observed or performed by it, and no Event of Default, nor any event that upon
notice, lapse of time, or both, would constitute an Event of Default, has
occurred and is continuing.
GENERAL
4.1 Full Force and Effect. This Amendment is limited as specified and shall
not constitute a modification, acceptance or waiver of any provision of the
Reimbursement Agreements except as expressly stated herein. Except as expressly
amended hereby, the Reimbursement Agreements shall remain in full force and
effect in accordance with the provisions thereof on the date hereof.
4.2 Applicable Law. This Amendment and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the
internal laws and judicial decisions of the State of North Carolina.
4.3 Expenses and Fees. The Company agrees to pay all out-of-pocket expenses
incurred by the Bank in connection with the preparation, execution and delivery
of this Amendment, including, without limitation, all reasonable attorney's
fees.
4.4 Headings. The headings contained in this Amendment are for the purpose
of reference only and shall not affect the construction hereof.
4.5. Collateral Security. The Company agrees on or before March 23, 2001,
to (a) execute and deliver in favor of the Bank a security agreement whereby the
Company grants the Bank a first priority and only security interest in and to
the Company's accounts receivable and general intangibles to secure the
Company's Reimbursement Obligations under the Reimbursement Agreements described
in clauses (i), (v) and (vii) in paragraph A of the Recitals to this Amendment
(the "Secured Reimbursement Obligations") and whereby the Company agrees that it
may not voluntarily prepay the bonds with respect to the Secured Reimbursement
Obligations until all other bonds that are not secured are prepaid, along with
UCC financing statements reasonably requested by the Banks in connection
therewith (the Company agreeing to reimburse the Bank for any recording fees,
taxes and other expenses incurred in connection with the perfection of the
Bank's security interest); (b) an opinion of counsel for the Company,
substantially in the form of opinions previously delivered to the Bank and
opining (i) that, as of the date of execution and delivery of such security
agreement, the Reimbursement Agreements as amended and such security agreement
do not conflict with any material agreement to which the Company is a party,
including, without limitation, that certain Note Purchase Agreement dated as of
Xxxxx 0, 0000, (xx) as to the perfection of the security interests created by
such security agreement, and (iii) as to such additional matters relating to the
transactions contemplated hereby as the Bank may reasonably request; (c) a
certificate signed by a principal financial officer of the Company, to the
effect that (i) no Default or Event of Default has occurred and is continuing on
the date of such security agreement, and (ii) the representations and warranties
of the Company contained in the Reimbursement Agreements are true on and as of
such date; (d) a certificate of the Company, signed by the Secretary or an
Assistant Secretary of the Company certifying as to the names, true signatures
and incumbency of the officer or officers of the Company authorized to execute
and deliver this Amendment and such security agreement and UCC financing
statements, and certified copies of the following items: (i) the Company's
Certificate of Incorporation, (ii) the Company's Bylaws, (iii) a certificate of
the Secretary of State of the State of North Carolina as to the existence of the
Company as a North Carolina corporation, and (iv) the action taken by the Board
of Directors of the Company authorizing the Company's execution, delivery and
performance of this Amendment, the security agreement and such UCC financing
statements; and (e) to take such further actions as the Bank shall reasonably
request in connection therewith. The failure of the Company to perform its
obligations under this Section 4.5, time being of the essence, shall constitute
an Event of Default under the Reimbursement Agreements.
4.6 Conditions Precedent. This Amendment shall become effective only upon
(i) execution and delivery of this Amendment by each of the parties hereto, and
(ii) payment to the Bank of a fully-earned and non-refundable amendment fee
equal to $135,000.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed in their corporate names by their duly authorized corporate officers as
of the date first above written.
XXXX, INC.
By: _________________________________
Name: _________________________________
Title:_________________________________
WACHOVIA BANK, N.A.
By: _________________________________
Name: _________________________________
Title:_________________________________
