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EXHIBIT 10.1
FOURTH AMENDMENT TO AMENDED AND RESTATED LETTER AGREEMENT
(with Borrowing Base)
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LETTER AGREEMENT (this
"Amendment") dated effective as of June 1, 2001 (the "Effective Date"), is by
and between XXXXXXXX INDUSTRIES, INCORPORATED ("Borrower") and THE CHASE
MANHATTAN BANK, successor by merger to Chase Bank of Texas, National
Association ("Bank").
PRELIMINARY STATEMENT. Bank and Borrower have entered into an Amended And
Restated Letter Agreement dated as of April 1, 1995, as amended by a First
Amendment dated as of April 1, 1997, a Second Amendment dated as of July 21,
1997 and a Third Amendment dated as of April 1, 1999 (collectively, "Credit
Amendment"). All capitalized terms defined in the Credit Agreement and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement. Bank and Borrower have agreed to amend the Credit Agreement to the
extent set forth herein, and in order to, among other things, renew, modify and
increase the Revolving Credit Note.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, Bank and Borrower hereby agree as follows:
1. Section 1.1 of the Credit Agreement is amended to read as follows:
"Subject to the terms and conditions hereof, the Bank agrees to make loans
("Loan" or "Loans") to Borrower from time to time before the Termination
Date, not to exceed at any one time outstanding $10,000,000.00 (the
"Commitment"). Borrower shall have the right to borrow, repay and reborrow.
Bank and Borrower agree that Chapter 346 of the Texas Finance Code shall
not apply to this Agreement, the Note or any Loan. The Loans shall be
evidenced by, shall bear interest and shall be payable as provided in the
promissory note of Borrower dated June 1, 2001 (together with any and all
renewals, extensions, modifications, replacements, and rearrangements
thereof and substitutions therefor, the "Note"), which is given in renewal,
modification and increase of that certain promissory note dated April 1,
1999, maturing April 1, 2002, in the original principal amount of
$8,000,000.00. The purpose of the Loans made under the Commitment is to
provide the Borrower with working capital support. "Termination Date" means
the earlier of: (a) April 1, 2004; or (b) the date specified by Bank in
accordance with Section 5 of the Credit Agreement.
2. Section 2.1 (c) of the Credit Agreement is amended to read "December 31,
2000" for the date of the last financial statement delivered to the Bank.
3. Exhibit A of the Credit Agreement is amended by and replaced with the
Exhibit A attached hereto for all purposes, which shall be a quarterly
compliance certificate as further described therein.
4. Borrower hereby represents and warrants to the Bank that after giving effect
to the execution and delivery of this Amendment: (a) the representations and
warranties set forth in the Credit Agreement are true and correct on the date
hereof as though made on and as of such date; and (b) no Event of Default, or
event which with passage of time, the giving of notice or both would become an
Event of Default, has occurred and is continuing as of the date hereof.
5. This Amendment shall become effective as of the Effective Date upon its
execution and delivery by each of the parties named in the signature lines
below, and the term "Agreement" as used in the Credit Agreement shall also
refer to the Credit Agreement as amended by this Amendment.
6. Borrower further acknowledges that each of the other Loan Documents is in
all other respects ratified and confirmed, and all of the rights, powers and
privileges created thereby or thereunder are ratified, extended, carried
forward and remain in full force and effect except as the Credit Agreement is
amended by this Amendment.
7. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
8. This Amendment shall be included within the definition of "Loan Documents"
as used in the Agreement.
9. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS AND AS APPLICABLE, THE LAWS OF THE UNITED STATES OF
AMERICA.
THIS WRITTEN AMENDMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN
AGREEMENT" AS DEFINED IN SECTION 26.02(a) OF THE TEXAS BUSINESS & COMMERCE
CODE, AND REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed effective as of the Effective Date.
BORROWER: XXXXXXXX INDUSTRIES, INCORPORATED
By: /s/ XXX XXXXXX
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Name: XXX XXXXXX
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Title: SENIOR VICE PRESIDENT -- FINANCE
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BANK: THE CHASE MANHATTAN BANK
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10.1 (con't)
By: /s/ XXXXX XXXX
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Name:
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Title: SR. VICE PRESIDENT
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