FOURTEENTH AMENDMENT TO AMENDED AND
EXHIBIT
10.37
FOURTEENTH
AMENDMENT TO AMENDED AND
RESTATED
CREDIT AGREEMENT
THIS FOURTEENTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT (“Thirteenth Amendment”) is made as of the
15th day of July, 2009, 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; and by Thirteenth Amendment to Amended and Restated Credit
Agreement (“Thirteenth Amendment”), dated as of November 3, 2008 (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, Twelfth
Amendment, and Thirteenth 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.
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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 Fourteenth 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
definition of “Termination Date” in Section 1.01 is hereby amended and restated
in its entirety to read as follows:
“Termination
Date” means whichever is applicable: (i) August 15, 2010,
(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.
2. Further
Assurances. The Borrower will
execute such confirmatory instruments, if any, with respect to the Credit
Agreement and this Fourteenth 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
Fourteenth Amendment) and agrees that: (i) except as expressly
modified by this Fourteenth 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
Fourteenth 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
Fourteenth Amendment may not itself be amended, changed, modified, altered, or
terminated without in each instance the prior written consent of the
Bank. This Fourteenth Amendment shall be construed in accordance with
and governed by the laws of the State of North Carolina.
5. Counterparts. This
Fourteenth 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.
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6. Modification and Extension
Fee. The Borrower shall pay to the Bank on the date this
Fourteenth Amendment is executed, an amendment and extension fee equal to
$15,000.00, 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 Fourteenth Amendment, including without limitation reasonable attorneys’
fees.
[Signature
Page Follows]
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IN WITNESS WHEREOF, this
Fourteenth Amendment has been duly executed under seal by Borrower and Bank as
of the day and year first above written.
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BORROWER:
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XXXX,
INC.
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(SEAL)
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/s/ Xxxxxxx X.
Xxxxxxx
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Chief Financial Officer
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BANK:
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WACHOVIA
BANK, NATIONAL ASSOCIATION,
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as
Agent and as Bank
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(SEAL)
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/s/ Xxxxxxx X.
Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Senior Vice President
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