EXHIBIT 10.1
[CONFORMED COPY]
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 11, 1996
among WITCO CORPORATION and the BANKS listed on the signature pages hereof (the
"Amendment and Restatement").
W I T N E S S E T H:
WHEREAS, Xxxxxx Guaranty Trust Company of New York, as Agent, and the
parties hereto have heretofore entered into a Credit Agreement dated as of
October 18, 1995 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement to provide for
the extension of the termination date and for changes in the facility fee rate
and in the debt covenant 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. 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 and restated hereby.
SECTION 2. Amendment of Section 1.01. The definition of "Termination
Date" in Section 1.01 of the Agreement is amended to replace "October 17, 1996"
with "October 10, 1997".
SECTION 3. Amendment of Section 2.07. Section 2.07(b) of the Agreement
is amended to replace ".305%" with ".32%", and Sections 2.07(c) and (d) of the
Agreement are amended to replace ".18%" with ".195%".
SECTION 4. Amendment of Section 2.08. Section 2.08 of the Agreement is
amended to replace ".07%" with ".055%".
SECTION 5. Amendment of Section 5.07. Section 5.07 of the Agreement is
amended to replace "110%" with "120%" and "15%" with "20%".
SECTION 6. Governing Law. This Amendment and Restatement shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 7. 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 Company 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 Xxxxxx X. XxXxx, Esq., General Counsel of the
Company, substantially in the form of Exhibit A hereto; and
(c) all documents the Agent may reasonably request relating to
the existence of the Company, the corporate authority for and the
validity of the Agreement as amended by this Amendment and Restatement,
and any other matters relevant hereto, all in form and substance
satisfactory to the Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed as of the date first above written.
WITCO CORPORATION
By /s/ Xxxxx X. Xxxxxxxx
_______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President & Treasurer
Commitments
-----------
$52,777,777.78 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ Xxxxxx Xxxxxxxxx
_______________________________________
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
$42,222,222.22 THE CHASE MANHATTAN BANK
By /s/ Xxxxxx X. Xxxxx
_______________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
$35,000,000.00 ABN AMRO BANK N.V., NEW YORK
BRANCH
By /s/ Xxxxxx X Xxxxx
_______________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
By /s/ Xxxxx X. Xxxxx
_______________________________________
Name: Xxxxx X.Xxxxx
Title: C.B.O.
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Commitments
-----------
$35,000,000.00 BANK OF AMERICA ILLINOIS
By /s/ Xxxxx X. Xxxxxx
_______________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
$35,000,000.00 CITIBANK, N.A.
By /s/ Xxxxxx X. Xxxxx
_______________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
$35,000,000.00 COMMERZBANK AG, NEW YORK
AND/OR CAYMAN
ISLANDS BRANCH
By /s/ Xxxxxxx Xxxxxx
_______________________________________
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
By /s/ Xxxxxx X. Xxxxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Cashier
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Commitments
-----------
$35,000,000.00 DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS
BRANCH
By /s/ Xxxx X. Xxxxxxxx
_______________________________________
Name: Xxxx X. Xxxxxxxx
Title: Vice President
By /s/ Vishwanie X. Xxxxxxxxx
_______________________________________
Name: Vishwanie X. Xxxxxxxxx
Title: Associate
$35,000,000.00 MELLON BANK, N.A.
By /s/ Xxxx X. Xxxxxxxx
_______________________________________
Name: Xxxx X. Xxxxxxxx
Title: Vice President
$35,000,000.00 FLEET NATIONAL BANK
By /s/ Xxxxxx X. Xxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
$35,000,000.00 THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By /s/ Xxxxxxxxx Xxxxxxxx
_______________________________________
Name: Xxxxxxxxx Xxxxxxxx
Title: Joint General Manager
Total Commitments
-----------------
$375,000,000.00
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EXHIBIT A
OPINION OF
COUNSEL FOR THE COMPANY
October 11, 1996
To the Banks and the Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
I am Senior Vice President, General Counsel and Corporate Secretary of
Witco Corporation (the "Company"). This opinion is being rendered to you at the
request of the Company pursuant to Section 7(b) of the Amended and Restated
Credit Agreement dated as of October 11, 1996 (the "Amendment and Restatement")
which amends and restates the Credit Agreement dated as of October 18, 1995
among the Company, the Eligible Subsidiaries referred to therein, the banks
listed on the signature pages thereof and Xxxxxx Guaranty Trust Company of New
York, as Agent. Such credit agreement as in effect prior to the effectiveness of
the Amendment and Restatement is referred to herein as the "Existing Credit
Agreement", and the Existing Credit Agreement as amended by the Amendment and
Restatement is referred to herein as the "Amended Credit Agreement". Terms
defined in the Existing Credit Agreement and not otherwise defined are used
herein as therein defined.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of public
officials and officers of the Company and its Subsidiaries and other instruments
and have conducted such other investigations of fact and law as I have deemed
necessary or advisable for purposes of this opinion. I have assumed, with your
permission, that
the signatures (other than those of officers of the Company) on all the
documents that I have examined are genuine.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and has all corporate
powers required to carry on its business as now conducted. Each of the Company's
Subsidiaries which is a "significant subsidiary" within the meaning of
Regulation S-X of the Securities and Exchange Commission is a corporation
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers required to carry on its business as
now conducted.
2. The execution, delivery and performance by the Company of the
Amendment and Restatement are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, and require no action by or
in respect of, or filing with, any governmental agency or official.
3. The execution, delivery and performance by the Company of the
Amendment and Restatement will not contravene, or constitute a default under,
any provision of applicable law or regulation or of the articles of
incorporation or bylaws of the Company or any agreement or instrument evidencing
Debt of the Company or, to the best of my knowledge, any other agreement,
judgment, injunction, order, decree or other instrument binding upon the Company
or, to the best of my knowledge, result in the creation or imposition of any
Lien on any asset of the Company or any of its Subsidiaries.
4. Each of the Amendment and Restatement and the Amended Credit
Agreement constitutes a valid and binding agreement of the Company.
5. Except as disclosed in the Company's annual report on Form 10-K for
1995 and the Company's quarterly report on Form 10-Q for the quarter ended June
30, 1996, in each case as filed with the Securities and Exchange Commission,
there is no action, suit or proceeding pending against, or to the best of my
knowledge threatened against or affecting, the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business or consolidated financial
position of the Company and its Consolidated Subsidiaries, considered as a
whole, or which in any manner draws into question the validity of the Amendment
and Restatement, the Amended Credit Agreement or the Notes. For the purposes
hereof, I have not regarded an action, suit or proceeding to be "threatened"
against the Company or
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any of its Subsidiaries unless the potential litigant has manifested to the
management of the Company in writing an intention to institute the same.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without my prior written
consent.
Very truly yours,
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