Exhibit 10(b)
FOURTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("Fourth Amendment") is made as of the 7th day of December, 2004, 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, and by Third Amendment to Amended and Restated Credit Agreement (the
"Third Amendment"), dated as of August 23, 2004 (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 and Third 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 certain other 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 Fourth
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 aggregate amount of the Commitment of the Bank and the
aggregate amount of the Total Commitments, each as set forth on page 61 of the
Credit Agreement, are hereby reduced from $15,000,000.00 to $10,000,000.00.
(b) Section 5.21 of the Credit Agreement is hereby deleted in its
entirety without any replacement therefor.
(c) Section 5.24 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
SECTION 5.24. Capital Expenditures. Capital Expenditures will not
exceed (i) for the Fiscal Year 2003, $14,000,000; (ii) for Fiscal Years
2002 and 2004, 50% of the Depreciation incurred for Fiscal Year 2004,
and (iii) for the Fiscal Year 2005, $16,000,000.
(d) A new Section 5.26 is hereby added to the Credit Agreement,
which section shall read as follows:
SECTION 5.26. Liquidity Requirement. The Borrower will maintain
with the Bank at all times collected deposit balances of not less than
$4,000,000.00 (none of which has been borrowed hereunder).
2. Further Assurances. The Borrower will execute such
confirmatory instruments, if any, with respect to the Credit Agreement and this
Fourth 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 Fourth
Amendment) and agrees that: (i) except as expressly modified by this Fourth
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 Fourth 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 Fourth Amendment may not itself be amended,
changed, modified, altered, or terminated without in each instance the prior
written consent of the Bank. This Fourth Amendment shall be construed in
accordance with and governed by the laws of the State of North Carolina.
5. Counterparts. This Fourth 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. Credit Agreement Modification Fee. The Borrower shall pay to
the Bank on the date this Fourth Amendment is executed, an amendment fee equal
to $7,500.00, which fee, once paid, shall be fully earned and non-refundable.
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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 Fourth Amendment, including without limitation reasonable attorneys'
fees.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Fourth Amendment has been duly executed
under seal by Borrower and Bank as of the day and year first above written.
BORROWER:
XXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President-Finance, Treasurer
ATTEST:
/s/ Xxxxx X. Xxxxx
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Secretary
[Corporate Seal]
BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent and as Bank
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
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