FIRST AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (this
"Amendment") is executed as of August 23, 2000, by and among XXXXX/XXXXXX, INC.,
a Delaware corporation ("Borrower "), BANK ONE, TEXAS, N.A., a national banking
association ("Agent"), as administrative agent for itself and such other
entities from time to time designated as "Lenders" under the Loan Agreement
(herein defined) (the "Lenders"), and such LENDERS.
WITNESSETH:
WHEREAS, Borrower, Agent and Lenders entered into that certain Amended
and Restated Credit Agreement, dated as of December 28, 1999, pursuant to which
Lenders agreed to make available to Borrower a Credit Facility in the maximum
amount of $ 100,000,000 (as heretofore or hereafter amended, the "Loan
Agreement") (each capitalized term used herein, but not otherwise defined shall
have the same meaning given to it in the Loan Agreement); and
WHEREAS, Borrower has requested that the (i) Working Capital Sublimit
be increased from $5,000,000 to $10,000,0000, (ii) that the advance rate in the
Borrowing Base be increased, (iii) that certain changes be made to financial
covenant calculations; and
WHEREAS, Frost National Bank has been added as a Lender as reflected on
the revised Commitment Schedule attached hereto; and
WHEREAS, Borrower has requested and Lenders have agreed to increase the
amount available under the Loan Agreement from $100,000,000 to $114,3 00,000 and
each Lenders' respective commitment amount has changed accordingly as reflected
on the Commitment Schedule.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower, Agent
and Lenders hereby covenant and agree as follows:
ARTICLE I - AMENDMENTS
Section 1. 1 Definitions. The following definitions contained in Article I
of the Loan Agreement are hereby amended and restated in their entirety as:
"Leverage Ratio " means, as of any date of calculation, the
ratio of (i) Consolidated Funded Indebtedness outstanding on
such date to (ii) Consolidated EBITDA for the Borrower's then
most-recently ended four fiscal quarters, minus Earn Out
Payments (other than Earn Out Payments made to Xxx Xxxxxxx)
made during such period.
"Net Present Value of Renewals "means an amount equal to the
product of (i) one minus the Assumed Expense Allowance, times
(ii) the Present Value of Renewals.
"Working Capital Sublimit means that portion of the Revolving
Credit Facility which shall be used for working capital and
other general corporate purposes, which shall not exceed
$10,000,000." The definition of Debt to Capitalization is
hereby added as follows:
"Debt to Capitalization Ratio" means, as of any date of
determination, the ratio (expressed as a percentage) of (a)
total funded debt of Borrower to (b) the sum of (i) total
funded debt of Borrower plus (ii) shareholders equity as
reflected on Borrower's balance sheet prepared in accordance
with Agreement Accounting Principles.
The definition of Calculation Leverage Ratio is hereby added as
follows:
"Calculation Leverage Ratio " means, as of any date of
calculation, the ratio of (1) Consolidated Funded Indebtedness
outstanding on such date to (ii) Consolidated EBITDA for the
Borrower's then most-recently ended four fiscal quarters.
"Earn Out Payments" means any payment by Borrower or any
Subsidiary to the former owner of assets or equity interests
which were acquired by Borrower or such Subsidiary as
additional acquisition consideration after the closing date of
such Acquisition.
Section 1.2. Fixed Charize Coverage Ratio. Section 6.25.1 of the Loan
Agreement is hereby replaced in its, entirety with the
following provision:
6.25.1 Fixed Charge Coverage Ratio. The Borrower will not
permit the ratio, determined as of the end of each of its fiscal
quarters for the then most-recently ended four fiscal quarters, of (i)
Consolidated EBITDA minus Consolidated Capital Expenditures minus taxes
paid during such period, minus Earn Out Payments (other than Eam Out
Payments made to Xxx Xxxxxxx) made during such period to (ii)
Consolidated Interest Expense, plus current maturities of principal
Indebtedness (including Capitalized Lease Obligations),plus any
Permitted Repurchases (other than ESPP Repurchases), all calculated for
the Borrower and its Subsidiaries on a consolidated basis, to be less
than 1.25 to 1.00.
Section 1.3. Maximum Debt to Capitalization. Section 6.25.4 of the Loan
Agreement is hereby added as follows:
6.25.4 Maximum Debt to Capitalization. The Borrower will not
permit the Debt to Capitalization Ratio to be, as of the last day of
each of its fiscal quarters, greater than 65%.
Section 1.4. Financial Reportin . Section 6. 1 (i) is hereby amended and
restated in its entirety as follows:
(i) Within 90 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public
accountants acceptable to the Lenders, prepared in accordance with
Agreement Accounting Principles on a consolidated and consolidating
basis (consolidating statements need not be certified by such
accountants) for Borrower, Parent and their Subsidiaries, including
balance sheets as of the end of such period, related profit and loss
and reconciliation of surplus statements, and a statement of cash
flows, accompanied by any management letter prepared by said
accountants, and as soon as possible but in no event later than April
30 of each calendar year, effective as of September 30 of the prior
calendar year, a self-prepared report, which has been reviewed by Ernst
& Young LLP, or such other independent certified public accounting firm
acceptable to Agent confirming that the inforce insurance numbers in
the year end Borrowing Base compliance certificate have been reviewed
with any discrepancies noted.
Section 1.5. New Loan Amounts, Commitment Schedule and Notes. Lenders
have agreed to increase the credit facilities evidenced by the Loan Agreement,
as set forth on the amended Commitment Schedule attached hereto and Borrower
shall execute new promissory notes, in the forms attached as Exhibits E- I and
E-2 to the Loan Agreement, in favor of each Lender and in the amounts set forth
on the Commitment Schedule.
Section 1.6. New Pricing Schedule. The Pricing Schedule to the Loan
Agreement is replaced with the revised Pricing Schedule attached hereto.
Section 1.7. Representations and Warranties. Borrower hereby represents
and warrants to Agent and to Lenders that (i) all representations and warranties
made by Borrower in the Loan Agreement as of the date thereof are true and
correct as of the date hereof, as if such representations and warranties were
recited herein in their entirety and (ii) Borrower is not in default of any
covenant or agreement contained in the Loan Agreement.
Section 1.8. Acquisitions. The "basket" for Permitted Acquisitions
during any 12 month period contained in Section 6.14 (b) of the Loan Agreement
is hereby reset after the consummation of the acquisition of Compensation
Resource Group, with the effect that no prior Acquisition, including
Compensation Resource Group, shall be included in the calculation of such
"basket".
ARTICLE II - MISCELLANEOUS
Section 2. 1. Conditions Precedent. As conditions precedent to closing
this Amendment, Borrower and the Guarantors, shall have executed and delivered
to Agent this Agreement and Borrower shall have paid to Agent and the Lenders
all fees due and owing upon the execution of this Agreement.
Section 2.2. Continuation Effect. Except as modified and amended
hereby, the Loan Agreement and other Loan Documents are and shall remain in full
force and effect in accordance with their terms.
Section 2.3. Bindiniz Agreement. This Amendment shall be binding upon, and
shall inure to the benefit of, the parties' respective representatives,
successors and assigns.
Section 2.4. Nonwaiver of Events of Default. Neither this Amendment nor
any other document executed in connection herewith constitutes or shall be
deemed (a) a waiver of, or consent by Agent or any Lender to, any default or
event of default which may exist or hereafter occur under any of the Loan
Documents, (b) a waiver by Agent or any Lender of any of Borrower's obligations
under the Loan Documents, or (c) a waiver by Agent or any Lender of any rights,
offsets, claims, or other causes of action that Lender may have against
Borrower.
Section 2.5. No Defenses. Borrower, by its execution of this Amendment,
hereby declares that to its knowledge, it has no set-offs, counterclaims,
defenses or other causes of action against Agent or any Lender arising out of
the Loan Agreement, any documents mentioned herein or otherwise; and, to the
extent any such known setoffs, counterclaims, defenses or other causes of action
may exist, such items are hereby waived by Borrower.
Section 2.6. Payment of Expenses. Borrower agrees to pay to each Lender
the reasonable attorneys'fees and expenses of such Lender's counsel and other
expenses incurred by Lender in connection with this Amendment.
Section 2.7. Counterparts. This Amendment may be executed in several
counterparts, all of which are identical, each of which shall be deemed an
original, and all of which counterparts together shall constitute one and the
same instrument, it being understood and agreed that the signature pages may be
detached from one or more of such counterparts and combined with the signature
pages from any other counterpart in order that one or more fully executed
originals may be assembled.
Section 2.8. Choice of Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE
EXTENT FEDERAL LAWS PREEMPT THE LAWS OF THE STATE OF TEXAS.
Section 2.9. Entire Apreement. This Amendment, together with the other
Loan Documents, contain the entire agreements between the parties relating to
the subject matter hereof and thereof. This Amendment and the other Loan
Documents may be amended, revised, waived, discharged, released or terminated
only by a written instrument or instruments, executed by the party against which
enforcement of the amendment, revision, waiver, discharge, release or
termination is asserted. Any alleged amendment, revision, waiver, discharge,
release or termination which is not so documented shall not be effective as to
any party.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES RELATED TO THE SUBJECT MATTER HEREIN CONTAINED 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, this Amendment is executed effective as of the date
first written above.
BORROWER:
XXXXX/XXXXXX, INC., a Delaware corporation,
By: /s/ Xxxxxx X. Xxxx
--------------------------------------------------
Print Name: Xxxxxx X. Xxxx
------------------------------------------
Title: Chief Financial Officer
--------------------------------------------
000 X. Xxxxxxxx Xxxx Xxxxx, Xxxxx 000
X. Xxxxxxxxxx, Xxxxxxxx 00000
Attention: X. X. Xxxxxxx and Xxx Xxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
COMMITMENTS: LENDERS:
Term: $7,717,000 BANK ONE, TEXAS, N.A., a national banking
Revolving: $27,283,000 association,
Individually and as Agent
By: /s/ J. Xxxxxxx Xxxxxxxxx
-------------------------------------------------
Print Name: J. Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------------
0000 Xxxx Xxxxxx; Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Term: $6,614,000 U.S. BANK NATIONAL ASSOCIATION, a national banking
Revolving: $23,386,000 association, Individually and as Co-Agent
By: /s/ Xxxxx Xxxxxx
-------------------------------------------------
Print Name: Xxxxx Xxxxxx
-----------------------------------------
Title: Corporate Banking Officer
-----------------------------------------------
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Term: $5,357,000 LASALLE BANK NATIONAL ASSOCIATION,
Revolving: $18,943,000 a national banking association (f/k/a LaSalle
National Bank)
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
-----------------------------------------
Title: First Vice President
-----------------------------------------------
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Term: $3,307,000 COMPASS BANK, an Alabama state bank
Revolving: $11,693,000
By: /s/ Xxxxx Xxxx
----------------------------------------------
Print Name: Xxxxx Xxxx
-------------------------------------
Title: Corporate Banking Officer
--------------------------------------------
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Term: $2,205,000 FROST NATIONAL BANK, a national banking association
Revolving: $7,795,000
By: /s/ Xxxxx Xxxxxx
----------------------------------------------
Print Name: Xxxxx Xxxxxx
--------------------------------------
Title: Senior Vice President
--------------------------------------------
0000 X. Xxxxxxx, 00' Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
CONSENT OF GUARANTOR
The undersigned Guarantor each hereby (a) acknowledges its consent to this
Amendment, (b) ratifies and confirms all terms and provisions of the Unlimited
Guaranty dated January 15, 1999, (c) agrees that such Unlimited Guaranty is and
shall remain in full force and effect with respect to the Loans, as increased
hereby, (d) acknowledges that there are no claims or offsets against, or
defenses or counterclaims to, the terms and provisions of and the obligations
created and evidenced by such Unlimited Guaranty, and (e) reaffirms all
agreements and obligations under such Unlimited Guaranty with respect to the
Loan Agreement, the Notes, the Loans and all other documents, instruments or
agreements governing, securing or pertaining to the Loans, as the same may be
modified and increased by this Amendment.
EXECUTED this 23rd day of August, 2000.
GUARANTOR:
XXXXX/XXXXXX HOLDINGS, INC. a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------------
Print Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
Commitment Schedule
---------------------------- ---------------- ---------------- ---------------- ----------------
Lender Term Loan Revolving Total Commitment
Commitment Commitment Commitment Percentage
---------------------------- ---------------- ---------------- ---------------- ----------------
---------------------------- ---------------- ---------------- ---------------- ----------------
1. Bank One, Texas $7,717,000 $27,283,000 $35,000,000 30.621%
---------------------------- ---------------- ---------------- ---------------- ----------------
---------------------------- ---------------- ---------------- ---------------- ----------------
2. US Bank $6,614,000 $23,386,000 $30,000,000 26.247%
---------------------------- ---------------- ---------------- ---------------- ----------------
---------------------------- ---------------- ---------------- ---------------- ----------------
3. LaSalle Bank $5,357,000 $18,943,000 $24,300,000 21.260%
---------------------------- ---------------- ---------------- ---------------- ----------------
---------------------------- ---------------- ---------------- ---------------- ----------------
4. Compass Bank $3,307,000 $11,693,000 $15,000,000 13.123%
---------------------------- ---------------- ---------------- ---------------- ----------------
---------------------------- ---------------- ---------------- ---------------- ----------------
5. First National Bank $2,205,000 $7,795,000 $10,000,000 8.749%
---------------------------- ---------------- ---------------- ---------------- ----------------
---------------------------- ---------------- ---------------- ---------------- ----------------
Totals: $25,200.000 $89,100,000 $114,300,000 100%
---------------------------- ---------------- ---------------- ---------------- ----------------
PRICING SCHEDULE
--------------------------------------------------------------------------------------------------------------------
APPLICABLE LEVEL I XXXXX 00 XXXXX XXX XXXXX XX XXXXX X
MARGIN STATUS STATUS STATUS STATUS STATUS
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Eurodollar Rate 1.25% 1.625% 2.00% 2.25% 2.50%
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Floating Rate 0.00% 0.00% 0.00% 0.25% 0.50%
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
APPLICABLE FEE LEVEL I XXXXX 00 XXXXX XXX XXXXX XX XXXXX X
RATE STATUS STATUS STATUS STATUS STATUS
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Commitment Fee 0.25% 0.25% 0.35% 0.425% 0.50%
--------------------------------------------------------------------------------------------------------------------
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Borrower delivered pursuant to Section 6. 1 (i) or (ii).
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Calculation Leverage Ratio is less than or equal to 1.00 to 1.00.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status and (ii) the Calculation
Leverage Ratio is less than or equal to 1.50 to 1.00.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status or Level 11 Status and (ii)
the Calculation Leverage Ratio is less than or equal to 2.00 to 1.00.
"Level IV Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status, Level 11 Status or Level III
Status and (ii) the Calculation Leverage Ratio is less than or equal to 2.50 to
1.00.
"Level V Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status, Xxxxx 00 Xxxxxx, Xxxxx XXX
Status or Level IV Status and (ii) the Calculation Leverage Ratio is less than
or equal to 3.00 to 1.00.
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as reflected
in the then most recent Financials. Adjustments, if any, to the Applicable
Margin or Applicable Fee Rate shall be effective five Business Days after the
Agent has received the applicable Financials. If the Borrower fails to deliver
the Financials to the Agent at the time required pursuant to Section 6. 1, then
the Applicable Margin and Applicable Fee Rate shall be the highest Applicable
Margin and Applicable Fee Rate set forth in the foregoing table until five days
after such Financials are so delivered.
SECOND AMENDED AND RESTATED TERM NOTE
$7,717,000 August 23, 2000
Xxxxx/Xxxxxx, Inc., a Delaware corporation (the "Borrower"), promises
to pay to the order of Bank One, Texas, N.A., (the "Lender") the aggregate
unpaid principal amount of all Loans made by the Lender to the Borrower pursuant
to Article 11 of the Agreement (as hereinafter defined), in immediately
available funds at the main office of Bank One, Texas, N.A. in Dallas, Texas, as
Agent, together with interest on the unpaid principal amount hereof at the rates
and on the dates set forth in the Agreement. The Borrower shall pay the
principal of and accrued and unpaid interest on the Loans in full on the
Facility Termination Date and shall make such mandatory payments as are required
to be made under the terms of Article 11 of the Agreement. This Note amends,
restates (but does not extinguish) and evidences the outstanding indebtedness
evidenced by that certain Amended and Restated Term Note, dated December 28,
1999 in the original principal amount of $7,500,000, which amended and restated
that certain Tenn Note, dated January 15, 1999, in the original principal amount
of $9,230,769 (collectively, the "Prior Note"). The liens and security interests
securing the Prior Note continue to secure this Note.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Term Notes issued pursuant to, and is entitled
to the benefits of, the Amended and Restated Credit Agreement dated as of
December 28, 1999 (which, as it may be amended or modified and in effect from
time to time, is herein called the "Agreenient"), among the Borrower, the
lenders party thereto, including the Lender, and Bank One, Texas, N.A., as
Agent, to which Agreement reference is hereby made for a statement of the terms
and conditions governing this Note, including the terms and conditions under
which this Note may be prepaid or its maturity date accelerated. This Note is
secured pursuant to the Collateral Documents and guaranteed pursuant to the
Guaranty, all as more specifically described in the Agreement, and reference is
made thereto for a statement of the terms and provisions thereof. Capitalized
terms used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
XXXXX/XXXXXX, INC., a Delaware corporation
By: Xxxxxx X. Xxxx
-------------------------------------------------
Print Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
SECOND AMENDED AND RESTATED REVOLVING NOTE
$27,283,000 August 23, 2000
Xxxxx/Xxxxxx, Inc., a Delaware corporation (the "Borrower"), promises
to pay to the order of Bank One, Texas, N.A. (the "Lender") the aggregate unpaid
principal amount of all Loans made by the Lender to the Borrower pursuant to
Article 11 of the Agreement (as hereinafter defined), in immediately available
funds at the main office of Bank One, Texas, N.A. in Dallas, Texas, as Agent,
together with interest on the unpaid principal amount hereof at the rates and on
the dates set forth in the Agreement. The Borrower shall pay the principal of
and accrued and unpaid interest on the Loans in full on the Facility Tennination
Date and shall make such mandatory payments as are required to be made under the
terms of Article II of the Agreement. This Note amends, restates (but does not
extinguish) and evidences the outstanding indebtedness evidenced by that certain
Amended and Restated Revolving Note, dated December 28, 1999, in the original
principal amount of $22,500,000, which amended and restated that certain
Revolving Note, dated January 15, 1999, in the original principal amount of
$10,769,231 (collectively, the "Prior Note"). The liens and security interests
securing the Prior Note continue to secure this Note.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Revolving Notes issued pursuant to, and is
entitled to the benefits of, the Amended and Restated Credit Agreement dated as
of December 28, 1999 (which, as it may be amended or modified and in effect from
time to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender, and Bank One, Texas, N.A., as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty,
all as more specifically described in the Agreement, and reference is made
thereto for a statement of the terms and provisions thereof Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
XXXXX/XXXXXX, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------------
Print Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
SECOND AMENDED AND RESTATED TERM NOTE
$6,614,000 August 23, 2000
Xxxxx/Xxxxxx, Inc., a Delaware corporation (the "Borrower"), promises
to pay to the order of U.S. Bank National Association (the "Lender") the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to Article 11 of the Agreement (as hereinafter defined), in
immediately available funds at the main office of Bank One, Texas, N.A. in
Dallas, Texas, as Agent, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The Borrower
shall pay the principal of and accrued and unpaid interest on the Loans in full
on the Facility Termination Date and shall make such mandatory payments as are
required to be made under the terms of Article 11 of the Agreement. This Note
amends, restates (but does not extinguish) and evidences the outstanding
indebtedness evidenced by that certain Amended and Restated Term Note, dated
December 28, 1999, in the original principal amount of $7,500,000, which amended
and restated that certain Term Note, dated January 15, 1999, in the original
principal amount of $9,230,769 (collectively, the "Prior Note"). The liens and
security interests securing the Prior Note continue to secure this Note.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Term Notes issued pursuant to, and is entitled
to the benefits of, the Amended and Restated Credit Agreement dated as of
December 28, 1999 (which, as it may be amended or modified and in effect from
time to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender, and Bank One, Texas, N.A., as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty,
all as more specifically described in the Agreement, and reference is made
thereto for a statement of the terms and provisions thereof. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
XXXXX/XXXXXX, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
------------------------------------------------
Print Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
SECOND AMENDED AND RESTATED REVOLVING NOTE
$22,386,000 August 23, 2000
Xxxxx/Xxxxxx, Inc., a Delaware corporation (the "Borrower"), promises
to pay to the order of U.S. Bank National Association (the "Lender") the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to Article 11 of the Agreement (as hereinafter defined), in
immediately available funds at the main office of Bank One, Texas, N.A. in
Dallas, Texas, as Agent, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The Borrower
shall pay the principal of and accrued and unpaid interest on the Loans in full
on the Facility Termination Date and shall make such mandatory payments as are
required to be made under the terms of Article 11 of the Agreement. This Note
amends, restates (but does not extinguish) and evidences the outstanding
indebtedness evidenced by that certain Amended and Restated Revolving Note,
dated December 28, 2000 in the original principal amount of $22,500,000, which
amended and restated that certain Revolving Note, dated January 15, 1999, in the
original principal amount of $10,769,231 (collectively, the "Prior Note"). The
liens and security interests securing the Prior Note continue to secure this
Note.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Revolving Notes issued pursuant to, and is
entitled to the benefits of, the Amended and Restated Credit Agreement dated as
of December 28, 1999 (which, as it may be amended or modified and in effect from
time to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender, and Bank One, Texas, N.A., as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty,
all as more specifically described in the Agreement, and reference is made
thereto for a statement of the terms and provisions thereof. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
XXXXX/XXXXXX, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------------
Print Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
SECOND AMENDED AND RESTATED TERM NOTE
$5,357,000 August 23, 2000
Xxxxx/Xxxxxx, Inc., a Delaware corporation (the "Borrower"), promises
to pay to the order of LaSalle Bank National Association (the "Lender") the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to Article 11 of the Agreement (as hereinafter defined), in
immediately available funds at the main office of Bank One, Texas, N.A. in
Dallas, Texas, as Agent, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The Borrower
shall pay the principal of and accrued and unpaid interest on the Loans in full
on the Facility Tennination Date and shall make such mandatory payments as are
required to be made under the terms of Article H of the Agreement. This Note
amends, restates (but does not extinguish) and evidences the outstanding
indebtedness evidenced by that certain Amended and Restated Tenn Note dated
December 28, 1999, in the original principal amount of $6,250,000, which amended
and restated that certain Tenn Note, dated January 15, 1999, in the original
principal amount of $6,923,077 (collectively, the "Prior Note"). The liens and
security interests securing the Prior Note continue to secure this Note.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Tenn Notes issued pursuant to, and is entitled
to the benefits of, the Amended and Restated Credit Agreement dated as of
December 28, 1999 (which, as it may be amended or modified and in effect from
time to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender, and Bank One, Texas, N.A., as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty,
all as more specifically described in the Agreement, and reference is made
thereto for a statement of the terms and provisions thereof. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
XXXXX/XXXXXX, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------------
Print Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
SECOND AMENDED AND RESTATED REVOLVING NOTE
$18,943,000 August 23, 2000
Xxxxx/Xxxxxx, Inc., a Delaware corporation (the "Borrower"), promises
to pay to the order of LaSalle Bank National Association (the "Lender") the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to Article 11 of the Agreement (as hereinafter defined), in
immediately available funds at the main office of Bank One, Texas, N.A. in
Dallas, Texas, as Agent, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The Borrower
shall pay the principal of and accrued and unpaid interest on the Loans in full
on the Facility Termination Date and shall make such mandatory payments as are
required to be made under the terms of Article 11 of the Agreement. This Note
amends, restates (but does not extinguish) and evidences the outstanding
indebtedness evidenced by that certain Amended and Restated Revolving Note dated
December 28, 1999 in the original principal amount of $18,750,000, which amended
and restated that certain Revolving Note, dated January 15, 1999, in the
original principal amount of $8,076,923 (collectively, the "Prior Note"). The
liens and security interests securing the Prior Note continue to secure this
Note.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Revolving Notes issued pursuant to, and is
entitled to the benefits of, the Amended and Restated Credit Agreement dated as
of December 28, 1999 (which, as it may be amended or modified and in effect from
time to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender, and Bank One, Texas, N.A., as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty,
all as more specifically described in the Agreement, and reference is made
thereto for a statement of the terms and provisions thereof. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
XXXXX/XXXXXX, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------------
Print Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
SECOND AMENDED AND RESTATED TERM NOTE
$3,307,000 August 23, 2000
Xxxxx/Xxxxxx, Inc., a Delaware corporation (the "Borrower"), promises
to pay to the order of Compass Bank (the "Lender") the aggregate unpaid
principal amount of all Loans made by the Lender to the Borrower pursuant to
Article H of the Agreement (as hereinafter defined), in immediately available
funds at the main office of Bank One, Texas, N.A. in Dallas, Texas, as Agent,
together with interest on the unpaid principal amount hereof at the rates and on
the dates set forth in the Agreement. The Borrower shall pay the principal of
and accrued and unpaid interest on the Loans in full on the Facility Termination
Date and shall make such mandatory payments as are required to be made under the
terms of Article 11 of the Agreement. This Note amends, restates (but does not
extinguish) and evidences the outstanding indebtedness evidenced by that certain
Amended and Restated Tenn Note dated December 28, 1999 in the original principal
amount of $3,750,000, which amended and restated that certain Term Note, dated
January 15, 1999, in the original principal amount of $4,615,385 (collectively,
the "Prior Note"). The liens and security interests securing the Prior Note
continue to secure this Note.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Term Notes issued pursuant to, and is entitled
to the benefits of, the Amended and Restated Credit Agreement dated as of
December 28, 1999 (which, as it may be amended or modified and in effect from
time to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender, and Bank One, Texas, N.A., as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty,
all as more specifically described in the Agreement, and reference is made
thereto for a statement of the terms and provisions thereof. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
XXXXX/XXXXXX, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------------
Print Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
SECOND AMENDED AND RESTATED REVOLVING NOTE
$11,693,000 August 23, 2000
Xxxxx/Xxxxxx, Inc., a Delaware corporation (the "Borrower"), promises
to pay to the order of Compass Bank (the "Lender") the aggregate unpaid
principal amount of all Loans made by the Lender to the Borrower pursuant to
Article 11 of the Agreement (as hereinafter defined), in immediately available
funds at the main office of Bank One, Texas, N.A. in Dallas, Texas, as Agent,
together with interest on the unpaid principal amount hereof at the rates and on
the dates set forth in the Agreement. The Borrower shall pay the principal of
and accrued and unpaid interest on the Loans in full on the Facility Termination
Date and shall make such mandatory payments as are required to be made under the
terms of Article 11 of the Agreement. This Note amends, restates (but does not
extinguish) and evidences the outstanding indebtedness evidenced by that certain
Amended and Restated Revolving Note, dated December 28, 1999, in the original
principal amount of $11,250,000, which amended and restated that certain
Revolving Note, dated January 15, 1999, in the original principal amount of
$5,384,615 (collectively, the "Prior Note"). The liens and security interests
securing the Prior Note continue to secure this Note.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Revolving Notes issued pursuant to, and is
entitled to the benefits of, the Amended and Restated Credit Agreement dated as
of December 28, 1999 (which, as it may be amended or modified and in effect from
time to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender, and Bank One; Texas, N.A., as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty,
all as more specifically described in the Agreement, and reference is made
thereto for a statement of the terms and provisions thereof. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
XXXXX/XXXXXX, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------------
Print Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
TERM NOTE
$2,205,000 August 23, 2000
Xxxxx/Xxxxxx, Inc., a Delaware corporation (the "Borrower"), promises
to pay to the order of Frost National Bank (the "Lender") the aggregate unpaid
principal amount of all Loans made by the Lender to the Borrower pursuant to
Article II of the Agreement (as hereinafter defined), in immediately available
funds at the main office of Bank One, Texas, N.A. in Dallas, Texas, as Agent,
together with interest on the unpaid principal amount hereof at the rates and on
the dates set forth in the Agreement. The Borrower shall pay the principal of
and accrued and unpaid interest on the Loans in full on the Facility Termination
Date and shall make such mandatory payments as are required to be made under the
terms of Article 11 of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Term Notes issued pursuant to, and is entitled
to the benefits of, the Amended and Restated Credit Agreement dated as of
December 28, 1999 (which, as it may be amended or modified and in effect from
time to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender, and Bank One, Texas, N.A., as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty,
all as more specifically described in the Agreement, and reference is made
thereto for a statement of the terms and provisions thereof. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
XXXXX/XXXXXX, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------------
Print Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
REVOLVING NOTE
$7,795,000 August 23, 2000
Xxxxx/Xxxxxx, Inc., a Delaware corporation (the "Borrower"), promises
to pay to the order of Frost National Bank (the "Lender") the aggregate unpaid
principal amount of all Loans made by the Lender to the Borrower pursuant to
Article 11 of the Agreement (as hereinafter defined), in immediately available
funds at the main office of Bank One, Texas, N.A. in Dallas, Texas, as Agent,
together with interest on the unpaid principal amount hereof at the rates and on
the dates set forth in the Agreement. The Borrower shall pay the principal of
and accrued and unpaid interest on the Loans in full on the Facility Termination
Date and shall make such mandatory payments as are required to be made under the
terms of Article 11 of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Revolving Notes issued pursuant to, and is
entitled to the benefits of, the Amended and Restated Credit Agreement dated as
of December 28, 1999 (which, as it may be amended or modified and in effect from
time to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender, and Bank One, Texas, N.A., as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the tenns and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty,
all as more specifically described in the Agreement, and reference is made
thereto for a statement of the terms and provisions thereof. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
XXXXX/XXXXXX, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------------
Print Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
