Exhibit: 10.1
TWELFTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS TWELFTH AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT ("Twelfth Amendment") is made as of the 27th day of December, 2007, 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
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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, dated as of July 20, 2006 ("Ninth
Amendment"), and by Tenth Amendment to Amended and Restated Credit Agreement,
dated as of January 22, 2007 ("Tenth Amendment") and by Eleventh Amendment to
Amended and Restated Credit Agreement, dated as of April 16, 2007 ("Eleventh
Amendment") (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 and Eleventh
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 Twelfth
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 definition in Section 1.01 is hereby
amended and restated in its entirety to read as follows:
"Termination Date" means whichever is applicable of (i)
December 31, 2008, (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 matrix set forth in Section 2.06(a)(ii) of the
Credit Agreement is hereby amended, restated and replaced by the following
matrix:
Debt/EBITDA Ratio Applicable Margin
----------------- -----------------
Less than 2.50 to 1.00 1.95%
Greater than or equal to 2.50 to 1.00 2.50%
(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. Aggregate Capital
Expenditures for any Fiscal Year will not exceed $5,000,000.00."
(d) Section 5.27 of the Credit Agreement, entitled "Minimum
EBITDA", is hereby deleted in its entirety.
(e) A new Section 5.28, entitled "Funded Debt/EBITDA
Ratio", is hereby added to the Credit Agreement, which new section shall read as
follows:
5.28 Funded Debt/EBITDA Ratio. The Borrower will
maintain at the end of each Fiscal Quarter a ratio of Funded Debt to
EBITDA of not more than 3.00 to 1.00.
2. Further Assurances. The Borrower will execute such
confirmatory instruments, if any, with respect to the Credit Agreement and this
Twelfth 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
Twelfth Amendment) and agrees that: (i) except as expressly modified by this
Twelfth Amendment, the Credit Agreement continues in full force and effect as if
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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 Twelfth 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 Twelfth Amendment may not itself be
amended, changed, modified, altered, or terminated without in each instance the
prior written consent of the Bank. This Twelfth Amendment shall be construed in
accordance with and governed by the laws of the State of North Carolina.
5. Counterparts. This Twelfth 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 Twelfth Amendment is executed, an amendment and
extension fee equal to $10,000.00, 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 Twelfth Amendment, including without limitation reasonable attorneys'
fees.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Twelfth 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 and Chief
Financial Officer
BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent and as Bank (SEAL)
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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