Exhibit 10(b)
FOURTH AMENDMENT TO REIMBURSEMENT AND SECURITY AGREEMENTS
THIS FOURTH AMENDMENT TO REIMBURSEMENT AND SECURITY AGREEMENTS, dated
August 23, 2002 (this "Amendment"), is made by and between Xxxx, Inc., a North
Carolina corporation ("Company"), and Wachovia Bank, National Association, 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 previously amended, 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); and (v) $7,900,000 original principal amount Alamance County
Industrial Facilities and Pollution Control Financing Authority Industrial
Revenue Refunding Bonds (Series A and B.
B. The Company and the Bank have agreed to amend the Reimbursement
Agreements as set forth herein, 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:
AMENDMENTS
Each Reimbursement Agreement is hereby amended as follows:
1.1 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
<=2.00 to 1.00 1.75%
>2.00 to 1.00 but 2.00%
<=2.50 to 1.00
>2.50 to 1.00 but 2.50%
<=3.00 to 1.00
>3.00 to 1.00 3.00%
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.
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, NATIONAL ASSOCIATION
By: ____________________________
Name: ____________________________
Title: ____________________________
