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EXHIBIT 10.1
EXECUTION COPY
AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT
AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT dated as of May 26,
1998 among XXXXXX XXXXXXXX MATERIALS, INC., the BANKS listed on the signature
pages hereof and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into a Credit
Agreement dated as of May 27, 1997 (the "Agreement");
WHEREAS, at the date hereof, there are no Loans outstanding under the
Agreement; and
WHEREAS, the parties hereto desire to amend the Agreement as set
forth herein 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; Reference. Unless otherwise specifically
defined herein, each capitalized 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. The term "Notes" defined in the
Agreement shall include from and after the date hereof the New Notes (as defined
below).
SECTION 2. Extension of Facility. The date "May 26, 1998" in the
definition of "Termination Date" in Section 1.01 of the Agreement is changed to
"May 25, 1999."
SECTION 3. Updated Representations. (a) Each reference to "1995" in
Section 4.04(a) of the Agreement is changed to "1997."
(b) Section 4.04(b) is amended to read in its entirety: "(b)
[Reserved]."
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(c) The reference to "September 30, 1996" in Section 4.04(c) is
changed to "December 31, 1997."
(d) Each reference to "1995" in the definition of "Borrower's 1995
Form 10-K" is changed to "1997."
(e) The reference to "December 31, 1995" in Section 4.14 is changed
to "December 31, 1997."
SECTION 4. Representations and Warranties. The Borrower hereby
represents and warrants that as of the date hereof and after giving effect
hereto:
(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 5. Governing Law. This Amendment and Restatement shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 6. 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 each of the following conditions shall have been
satisfied:
(a) receipt by the Agent of duly executed counterparts hereof signed
by each of the parties hereto (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) the Agent shall have received a duly executed Note for each of
the New Banks (a "New Note"), dated on or before the date of effectiveness
hereof and otherwise in compliance with Section 2.05 of the Agreement;
(c) receipt by the Agent of an opinion of such counsel for the
Borrower as may be acceptable to the Agent, substantially to the effect of
Exhibits E-1 and E-2 to the Agreement with reference to this Amendment and
Restatement and the Agreement as amended and restated hereby; and
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(d) receipt by the Agent of all documents it may reasonably request
relating to the existence of the Borrower, the corporate authority for and the
validity of the Agreement as amended and restated hereby, 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 May 29, 1998. 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 Amendment and
Restatement 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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Name: Xxxxxx X. Xxxxx
Title: VP, CFO-Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ W. Xxxxxx Xxxxx
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Name: W. Xxxxxx Xxxxx
Title: Senior Vice President
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XXXXXXXX XXXX XX XXXXX XXXXXXXX, N.A.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx A. Bass
Title: Vice President
BANK OF MONTREAL
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Director
NATIONSBANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President & Manager
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XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Agent
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
