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EXHIBIT 10.02
[CONFORMED COPY]
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of August 9,
2000 among XXXXXX XXXXXXXX MATERIALS, INC. (the "BORROWER"), the BANKS listed on
the signature pages hereof (the "BANKS") and XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Agent (the "AGENT").
W I T N E S S E T H :
WHEREAS, certain of the parties hereto have heretofore entered into a
Revolving Credit Agreement dated as of December 3, 1998 and amended and restated
as of August 11, 1999 (as amended and restated, the "AGREEMENT");
WHEREAS, at the date hereof, there are no Loans outstanding under the
Agreement; and
WHEREAS, the parties hereto desire to make the amendments specified
below and to restate the Agreement in its entirety to read as set forth in the
Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References.
(a) Unless otherwise specifically defined herein, each term used herein
which is defined in the Agreement shall have the meaning assigned to such term
in the Agreement. Each reference to "hereof", "hereunder," "herein" and "hereby"
and each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Agreement shall from and after the date
hereof refer to the Agreement as amended hereby.
SECTION 2. Extension of Facility. The date "August 9, 2000" in the
definition of "Termination Date" in Section 1.01 of the Agreement is changed to
"August 8, 2001".
SECTION 3. Equity-hybrid Securities. The following definitions are
added to Section 1.01 in appropriate alphabetical order:
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"EQUITY PURCHASE" has the meaning in the definition of the term "Equity
Hybrid Security."
"EQUITY HYBRID SECURITY" means a debt security (whether or not
denominated as an equity hybrid security), including guaranties issued in
connection therewith, that is issued substantially concurrently with the sale of
a purchase contract requiring the buyer to purchase (the "EQUITY PURCHASE") from
the Borrower equity securities of the Borrower for a price equal to the amount
of such debt security with the purchase price being payable in cash or debt
securities of the Borrower. The good faith determination by the Board of
Directors of the Borrower whether a debt security (or a portion thereof)
constitutes an Equity Hybrid Security shall be conclusive for purposes of this
Agreement."
SECTION 4. Updated Representations. (a) Each reference to "1998" in
Section 4.04(a) of the Agreement is replaced with "1999."
(b) Each reference to "March 31, 1999" in Section 4.04(b) and Section
4.04(c) of the Agreement is replaced with "March 31, 2000."
(c) Each reference to "March 31, 1999" in the definition of "Borrower's
Latest Form 10-Q" is replaced with "March 31, 2000."
SECTION 5. Change in Leverage Ratio. Section 5.09 is amended to read in
its entirety as follows:
"Section 5.09. Leverage Ratio. The ratio of Consolidated Debt
to Total Capital (the "LEVERAGE RATIO") shall not at any time exceed
50%; provided that if (i) Consolidated Debt has increased in connection
with a Specified Acquisition, (ii) as a consequence of such Specified
Acquisition, the rating of long-term unsecured debt of the Borrower has
not been suspended, withdrawn or fallen below BBB+ by Standard & Poor's
Ratings Services or Baa1 by Xxxxx'x Investors Service, Inc. and (iii)
the Agent has received a Specified Acquisition Notice within 10 days of
consummation of such Specified Acquisition, then, for a period of 180
consecutive days following the consummation of such Specified
Acquisition, the additional Consolidated Debt in connection with such
Specified Acquisition shall be excluded from Consolidated Debt for
purposes of calculating the Leverage Ratio, but only if the Leverage
Ratio calculated without such exclusion at no time exceeds 65%. For
purposes of calculating, under this Section 5.09, the treatment of an
Equity Hybrid Security which is not otherwise included in Consolidated
Net Worth until the Equity Purchase is effected, (x) if such Equity
Hybrid Security represents senior unsecured
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indebtedness, the total issuance amount of such security shall be
allocated 20% to Consolidated Debt and 80% to Consolidated Net Worth,
and (y) if such Equity Hybrid Security represents subordinated
indebtedness, the total issuance amount of such security shall be
allocated 100% to Consolidated Net Worth.
For purposes of this Section 5.09,
(i) a "SPECIFIED ACQUISITION" means any single
acquisition by the Borrower or a Subsidiary of the Borrower of
any Person (the "TARGET") that (x) is in the same line or
lines of business as the Borrower or in the judgment of the
Borrower is related to such line or lines of business and (y)
such Target's board of directors have not objected to such
acquisition; and
(ii) a "SPECIFIED ACQUISITION NOTICE" means a notice
delivered by the Borrower notifying the Agent of the Specified
Acquisition and stating that the conditions in clauses (i) and
(ii) to the proviso to the Leverage Ratio above have been
satisfied."
SECTION 6. Change in Commitments. With effect from and including the
date this Amendment and Restatement becomes effective in accordance with Section
10 hereof, (i) each Person listed on the signature pages hereof which is not a
party to the Agreement shall become a Bank party to the Agreement and (ii) the
Commitment of each Bank shall be the amount set forth opposite the name of such
Bank in the Commitment Schedule annexed hereto. Any Bank whose Commitment is
changed to zero shall upon such effectiveness cease to be a Bank party to the
Agreement, and all accrued fees and other amounts payable under the Agreement
for the account of such Bank shall be due and payable on such date; provided
that the provisions of Sections 8.03 and 9.03 of the Agreement shall continue to
inure to the benefit of each such Bank.
SECTION 7. Year 2000 Compliance. (a) Section 4.16 of the Agreement is
deleted in its entirety.
(b) The terms "Year 2000 Compliant" and "Year 2000 Problem" are deleted
in their entirety from Section 1.01 of the Agreement.
(c) The phrase ", 4.14 and 4.16" in Section 3.02(e) of the Agreement is
replaced by the words "and 4.14".
SECTION 8. Representations and Warranties. The Borrower hereby
represents and warrants that as of the date hereof and after giving effect
hereto:
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(a) no Default has occurred and is continuing; and
(b) each representation and warranty of the Borrower set forth in the
Agreement after giving effect to this Amendment and Restatement is true and
correct as though made on and as of such date.
SECTION 9. Governing Law. This Amendment and Restatement shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 10. Counterparts; Effectiveness. This Amendment and Restatement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment and Restatement shall become effective as of the date
hereof when the Agent shall have received:
(a) duly executed counterparts hereof signed by the Borrower and the
Banks (or, in the case of any party as to which an executed counterpart shall
not have been received, the Agent shall have received telegraphic, telex or
other written confirmation from such party of execution of a counterpart hereof
by such party);
(b) an opinion of Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the Borrower
(or such other counsel for the Borrower as may be acceptable to the Agent)
substantially to the effect of Exhibit E to the Agreement with reference to this
Amendment and Restatement and the Agreement as amended and restated hereby; and
(c) all documents it may reasonably request relating to the existence
of the Borrower, the corporate authority for and the validity of this Agreement,
and any other matters relevant hereto, all in form and substance satisfactory to
the Agent;
provided that this Amendment and Restatement shall not become effective or
binding on any party hereto unless all of the foregoing conditions are satisfied
not later than August 9, 2000. The Agent shall promptly notify the Borrower and
the Banks of the effectiveness of this Amendment and Restatement, and such
notice shall be conclusive and binding on all parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXX XXXXXXXX MATERIALS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President and
Chief Financial Officer
Address: 0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxxx
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Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ G. Xxxxxx Xxx, Xx.
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Title: Senior Vice President
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WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
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Title: Senior Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Managing Director
BNP PARIBAS HOUSTON AGENCY
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
BRANCH BANKING & TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Senior Vice President
CENTURA BANK
By: /s/ J. Xxxxxxx Xxxxxxxxx
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Title: Corporate Bank Officer
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx
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Title: Officer
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XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx X. Xxxx
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Title: Vice President
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Agent
By: /s/ Xxxxxx Xxxxxxxxx
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Title: Vice President
Address: 000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
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COMMITMENT SCHEDULE
BANK COMMITMENT
Xxxxxx Guaranty Trust Company of New York $44,500,000
First Union National Bank $43,500,000
Wachovia Bank, N.A. $43,500,000
Bank of America, N.A. $43,500,000
BNP Paribas Houston Agency $25,000,000
Branch Banking & Trust Company $25,000,000
Centura Bank $25,000,000
State Street Bank and Trust Company $25,000,000
Xxxxx Fargo Bank, N.A. $25,000,000
TOTAL $300,000,000
