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EXHIBIT 10.1
FOURTH AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Fourth Amendment to Amended and Restated Credit Agreement (this
"Amendment"), made and entered into and is effective as of March 30, 1999, by
and among X'Xxxxxxxx Industries, Inc., a Delaware corporation ("Industries"),
X'Xxxxxxxx Industries Holdings, Inc., a Delaware corporation ("Holdings";
Industries and Holdings are sometimes referred to hereinafter individually and
collectively as "Borrower"), NationsBank, N.A. (successor by merger to The
Boatmen's National Bank of St. Louis), a national banking association
("NationsBank"), as a lender ("Lender") and NationsBank, as agent ("Agent").
RECITALS:
A. Borrower, X'Xxxxxxxx - Virginia, Agent and Lender are the current
parties to that certain Amended and Restated Credit Agreement by and
among Borrower, X'Xxxxxxxx - Virginia, Agent, Lender and Wachovia Bank
of Georgia, N.A. ("Wachovia"), a national banking association, as a
lender, effective November 22, 1994, as amended by that First Amendment
thereto, dated as of May 15, 1995, that Second Amendment thereto, dated
as of December 29, 1995, that certain letter from Borrower to Lenders,
dated June 24, 1996 and that certain Third Amendment thereto, dated as
of June 13, 1997 (as it may be further amended, restated, extended,
renewed, replaced, or otherwise modified from time to time, the "Loan
Agreement") pursuant to which certain credit facilities were extended
to Borrower.
C. Borrower, Agent and Lender desire, upon the terms and conditions set
forth herein, to amend the Loan Agreement as provided herein.
In consideration of the mutual covenants and promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrower, Agent and Lender agree as follows:
1. DEFINITIONS. All capitalized terms used and not otherwise defined herein
shall have the meanings given them in the Loan Agreement. Section and Exhibit
references are to Sections and Exhibits of the Loan Agreement unless otherwise
indicated.
2. AMENDMENT TO LOAN AGREEMENT.
2.1. ULTIMATE REVOLVING MATURITY DATE. The words "February 28, 2000" in
the first sentence of Section 2.1.1 are deleted and replaced with the
following: "February 28, 2001".
3. REPRESENTATIONS AND WARRANTIES OF BORROWER. Each Borrower hereby
represents and warrants to Agent and Lender that (i) no consents are necessary
from any third parties in connection with its execution, delivery or performance
of the Amendment and related documents (collectively, the "Amendment Documents")
to which it is a party, (ii) the Amendment Documents to which it is a party
constitute the legal, valid and binding obligations of it, enforceable against
it in accordance with their terms, except to the extent that the enforceability
thereof against it may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally or by equitable principles of
general application (whether considered in an action at law or in equity), (iii)
except as disclosed on the disclosure schedule attached to the Loan Agreement as
Exhibit 11, any supplemental disclosure schedules on any prior amendments to the
Loan Agreement and the disclosure schedule attached to this Amendment as Exhibit
A, all of the representations and warranties contained in Section 11, as amended
by this Amendment, are true and correct in all material respects with the same
force and effect as if made on and as of the date of this Amendment, except that
with respect to the representations and warranties made regarding financial data
in Section 11.11, such representations and warranties are hereby made
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with respect to the most recent Financial Statements and other financial data
(in the form required by the Loan Agreement) delivered by Borrower as required
by the Loan Agreement, and (iv) there exists no Default or Event of Default
under the Loan Agreement, as amended by this Amendment.
4. EFFECT ON LOAN DOCUMENTS. Except as specifically amended by the
Amendment Documents, the Loan Documents shall remain in full force and effect
and are hereby ratified and confirmed in all respects. The execution, delivery
and effectiveness of the Amendment Documents shall not operate as a waiver of
any right, power or remedy of Lenders or Agent under the Loan Documents, nor
constitute a waiver of any provision of the Loan Documents except as
specifically set forth herein. Upon the effectiveness of this Amendment, each
reference in the Loan Agreement to "the Agreement", "hereunder", "hereof",
"herein", or words of like import, shall mean and be a reference to the Loan
Agreement, as amended hereby.
5. REAFFIRMATION. Each Borrower hereby ratifies, affirms, acknowledges,
and agrees that the Loan Agreement (as amended by this Amendment) represents its
valid, enforceable and collectible obligation, except to the extent that the
enforceability thereof against it may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally or by equitable principles of
general application (whether considered in an action at law or in equity), and
it further acknowledges that there are no existing claims, defenses, personal or
otherwise, or rights of setoff whatsoever known to it with respect to any of the
Loan Documents.
6. GOVERNING LAW. The Amendment Documents shall be governed by and
construed in accordance with the laws and decisions of the State of Missouri
without giving effect to the choice or conflicts of law principles thereunder.
7. SECTION TITLES. The section titles contained in this Amendment are and
shall be without substance, meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
8. COUNTERPARTS; FACSIMILE TRANSMISSIONS. This Amendment may be executed
in one or more counterparts and on separate counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Signatures to this Amendment may be given by facsimile or other
electronic transmission, and such signatures shall be fully binding on the party
sending the same.
9. INCORPORATION BY REFERENCE. Agent, Lender and Borrower hereby agree
that all of the terms of the Loan Documents are incorporated in and made a part
of this Amendment by this reference.
10. STATUTORY NOTICE. The following notice is given pursuant to
Section 432.045 of the Missouri Revised Statutes; nothing contained in such
notice will be deemed to limit or modify the terms of the Loan Documents or this
Amendment:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER(S) AND
US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS
WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US,
EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
BORROWER, AGENT AND LENDER HEREBY AFFIRM THAT THERE IS NO UNWRITTEN ORAL CREDIT
AGREEMENT BETWEEN ANY OF THEM WITH RESPECT TO THE SUBJECT MATTER OF THIS
AMENDMENT.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first above written.
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X'XXXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Executive Vice President & CFO
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X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Executive Vice President & CFO
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NATIONSBANK, N.A., AS AGENT AND LENDER
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Senior Vice President
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