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EXHIBIT 3
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT (this "Amendment") is entered
into effective the 31st day of July, 1998, by and among CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, a national banking association, f/k/a TEXAS COMMERCE BANK
NATIONAL ASSOCIATION ("Lender"), with its office at 000 X. Xxxx, Xx Xxxx, Xxxxx
00000, XXXXX OF XXXX L.P., a Texas limited partnership, with its principal
office at 0000 Xxxxxx Xxxxxx, Xx Xxxx, Xxxxx 00000 ("Borrower"), and XXXXX OF
XXXX LIMITED, a Bermuda corporation, with its principal office at 0000 Xxxxxx
Xxxxxx, Xx Xxxx, Xxxxx 00000, HOT NEVADA, INC., a Nevada corporation, with its
principal office at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx, Xxxxxx 00000, XXXXX
OF XXXX LIMITED, a Barbados corporation, with its principal office at P. X. Xxx
00, Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, West Indies, XXXXX OF XXXX NEVADA
CORPORATION, a Nevada corporation, with its principal office at 0000 Xxxxxx
Xxxxxx, Xx Xxxx, Xxxxx 00000, and XXXXX OF XXXX TEXAS CORPORATION, a Texas
corporation, with its principal office at 0000 Xxxxxx Xxxxxx, Xx Xxxx, Xxxxx
00000 (collectively "Guarantors") for the purpose of amending and supplementing
that one certain Loan Agreement dated as of December 31, 1996, among Lender,
Borrower, XXXXX OF XXXX LIMITED and XXXXX OF XXXX TEXAS CORPORATION, as amended
by an Amendment to Loan Agreement dated effective July 31, 1997 (the "Loan
Agreement"). Capitalized terms used, but not otherwise defined, in this
Amendment shall have the meanings ascribed to them in the Loan Agreement.
WHEREAS, Borrower has requested Lender to (i) replace the current
committed revolving line of credit with an uncommitted revolving line of credit
in the same amount, (ii) cancel the existing Revolving Credit Loan Note, which
has no current outstanding principal balance, (iii) extend the period in which
Borrower may request loans under the new uncommitted revolving credit line of
credit, and (iv) increase the minimum required Consolidated Net Worth, all in
accordance with the terms of this Amendment, which Lender is willing to do upon
the terms and conditions hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lender, Borrower and Guarantors
hereby agree as follows:
1. GENERAL. This Amendment is intended to delete from the Loan
Agreement any obligation on the part of the Lender to make a Loan to Borrower,
and to replace any such obligation with an uncommitted facility. Any references
in the Loan Agreement to a Borrowing, Commitment, Commitment Period, Revolving
Credit Loan Note, and other terms indicating a committed facility are hereby
deleted to the extent inconsistent with this Amendment. The term "Note" shall
now refer to each note executed by the Borrower to evidence an Advance (as
hereinafter defined), and the term "Loan" shall mean each Advance approved by
the Lender and evidenced by a Note.
2. ADVANCE PERIOD. The Commitment Period as used in the Loan Agreement
is hereby cancelled and from July 31, 1998 until July 31, 2000 (the "Advance
Period"), the Lender
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shall establish an uncommitted line of credit for the benefit of the Borrower
subject to the terms and conditions of the Loan Agreement, as amended.
3. LINE OF CREDIT. Subject to the terms and conditions of the Loan
Agreement, as amended, the Lender hereby establishes during the Advance Period,
an uncommitted line of credit (the "Line of Credit") in favor of the Borrower,
pursuant to which the Lender may, in its sole discretion, from time to time make
advances in an aggregate amount of TEN MILLION DOLLARS ($10,000,000) (the "Line
Amount").
4. ADVANCES. In order to obtain an Advance from the Lender, the
Borrower shall deliver to the Lender a written borrowing request (a "Borrowing
Request") at least five (but not more than fifteen) Business Days prior to the
date on which the Advance is to be made, specifying (i) the date (which shall be
a Business Day) on which the Advance is to be made, (ii) the amount thereof,
(iii) whether the requested Advance is to be an Alternate Base Rate Loan or a
Eurodollar Loan, (iv) if a Eurodollar Loan, whether it is a two (2) week, one
(1) month, three (3) month, or six (6) month Eurodollar Loan, (v) the Interest
Period for such Loan, and (vi) the Maturity Date of such Loan (which must be on
or before July 31, 2000). The Lender shall notify the Borrower in writing as to
whether a Borrowing Request is approved. Upon fulfillment of the applicable
conditions set forth in Section 4 of the Loan Agreement, the Lender will make
such Advance available to the Borrower at the offices of the Lender in El Paso,
Texas. Each Advance will be evidenced by a separate Note issued pursuant to the
Loan Agreement. Interest on all Notes issued pursuant to the Loan Agreement
shall be due and payable quarterly, and all such Notes shall mature not later
than July 31, 2000.
5. CONSOLIDATED NET WORTH. Section 8.01 of the Loan Agreement is
amended to read as follows:
8.01 Consolidated Net Worth. XXXXX OF XXXX LIMITED
("Limited") will not permit Consolidated Net Worth (i) at any time
during the period commencing on the date hereof and ending August 31,
1998 to be less than $120,000,000, and (ii) at any time during any
fiscal quarter of Limited thereafter to be less than the minimum
Consolidated Net Worth required by this Section at the end of the
immediately preceding fiscal quarter of Limited plus the greater of
zero or 40% of Consolidated Net Earnings for the immediately preceding
fiscal quarter of Limited.
6. LETTERS OF CREDIT. In connection with the conversion to an
uncommitted line of credit, Section 2.01.1 of the Loan Agreement is hereby
amended in its entirety to read as follows:
2.01.1 Letters of Credit. In the event that
during the Advance Period Lender shall agree to issue on Borrower's
account letters of credit ("Letters of Credit"), as defined in Chapter
5 of the Texas Uniform Commercial Code - Letters of Credit, then
Borrower agrees that (i) the uncommitted Line of Credit shall be
reduced by the aggregate amount of all Letters of Credit outstanding
from time to time; (ii) outstanding Letters of Credit shall never
exceed in the aggregate at any time the sum of $3,000,000.00, and (iii)
no
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Letter of Credit shall have an expiry date later than July 31, 2000.
Borrower agrees to pay to Lender all customary charges for
issuing Letters of Credit, and Borrower further agrees that should
Lender be required to fund all or any part of any Letter of Credit on
behalf of Borrower, any such funding shall be simultaneously charged as
an Alternate Base Rate Loan, subject to all of the terms and conditions
of this Agreement.
7. LIMITATION ON USE. The proceeds of the Line of Credit shall not be
used to acquire the stock or assets of any Person unless there is a firm
commitment from another lender to provide the funds to pay off Lender within
thirty (30) days of the Advance.
8. CONTINUED VALIDITY. Except as expressly provided in this Amendment,
all terms, conditions, representations, warranties, and covenants contained in
the Loan Agreement, shall remain in full force and effect, and are hereby
confirmed and acknowledged by Borrower.
9. COUNTERPARTS. This Amendment may be executed in several
counterparts, each of which shall be fully effective as an original, and all of
which together shall constitute one and the same instrument.
10. DISCLOSURE. As of the date hereof, there is no fact known to
Borrower which Borrower has not disclosed to Lender in writing, that materially
and adversely affects or in the future may (as far as Borrower can now foresee)
materially and adversely affect the business, operations, properties, prospects
or conditions, financial or otherwise, of Borrower or any of its affiliates.
Borrower shall immediately notify the Lender in writing in the event any such
fact or facts become known during the term of the Loan Agreement, as herein
amended.
11. CONDITIONS. This Amendment shall not be effective unless and until
the Lender shall have received this Amendment and all such other agreements,
documents or instruments necessary or required by Lender in connection with the
transactions contemplated by this Amendment, all duly executed.
12 NO DEFAULT. Borrower represents and warrants to Lender (after giving
effect to the terms and conditions of this Amendment), that there exists on this
day no Event of Default, as that term is defined in the Loan Agreement, and no
event which, with notice or lapse of time or both, would become an Event of
Default.
13. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Lender that all of the representations and warranties set forth in
the Loan Agreement (after giving effect to the terms and conditions of this
Amendment), are true and correct on and as of the date of this Amendment as if
made on and as of such date.
14. EVENT OF DEFAULT. It is understood and agreed by Borrower that an
Event of Default shall exist if any representation, warranty or covenant made or
deemed made by Borrower in this Amendment, in the Loan Agreement (including all
amendments and supplements thereto), or in any document or exhibit attached
thereto or referred to therein, shall prove to have been incorrect in any
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material respect on or as of the date made or deemed made.
15. CONSTRUCTION. This Amendment and the rights and obligations of the
parties hereunder shall be construed and interpreted in accordance with and
governed by, the laws of the State of Texas, except as federal law may apply.
16. BINDING EFFECT. This Amendment shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and assigns; provided, however, that Borrower shall not assign or
transfer its rights or obligations hereunder without the prior written consent
of the Lender.
17. OTHER TERMS. Except as expressly provided herein, all of the terms
and conditions of the Loan Agreement and the Guaranty (collectively, the "Loan
Documents"), and any and all other documents described in or executed in
connection with the Loan Documents shall continue in full force and effect and
are hereby reaffirmed. It is expressly understood and agreed that if there are
inconsistencies between or among the Loan Documents, the terms of the Loan
Agreement, as amended, shall prevail.
THIS AMENDMENT 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.
XXXXX OF XXXX L.P., a
Texas limited partnership
By: Xxxxx of Xxxx Nevada Corporation
General Partner
By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Chief Financial Officer
BORROWER
XXXXX OF XXXX LIMITED, a Bermuda
corporation
By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Chief Financial Officer
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XXXXX OF XXXX LIMITED
a Barbados corporation
By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Chief Financial Officer/Vice President
HOT NEVADA, INC. a Nevada corporation
By: /s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx
President
XXXXX OF XXXX NEVADA CORPORATION
a Nevada corporation
By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Chief Financial Officer
XXXXX OF XXXX TEXAS CORPORATION
a Texas corporation
By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Chief Financial Officer
GUARANTORS
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Senior Vice President
LENDER
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