EXHIBIT 4.6
AGREEMENT AND FIFTH AMENDMENT TO LOAN AGREEMENT
(April 23, 1999)
THIS AGREEMENT AND FIFTH AMENDMENT TO LOAN AGREEMENT (this "Amendment"),
dated as of April 23, 1999, is made and entered into by and among XXXXXXX &
XXXXXXXXX SERVICES, INC. (the "BORROWER"), a Texas corporation; the financial
institutions listed on the signature pages hereto (collectively, the "LENDERS"),
and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION (formerly known as Texas Commerce
Bank National Association), a national banking association domiciled in Houston,
Xxxxxx County, Texas, acting in its individual capacity (in such capacity,
"CHASE TEXAS") and its capacity as agent for the Lenders (in such capacity, the
"AGENT"). Borrower, the Lenders and the Agent are herein sometimes called the
"PARTIES".
PRELIMINARY STATEMENTS:
1. The Parties (except Credit Lyonnais New York Branch) have entered into
a Loan Agreement dated as of December 20, 1996. Such Loan Agreement was amended
by Amendment to Loan Agreement dated as of August 25, 1997, which added Credit
Lyonnais New York Branch as a Lender; by Agreement and Second Amendment to Loan
Agreement dated as of January 31, 1998; by Agreement and Third Amendment to Loan
Agreement dated as of May 13, 1998, and by Agreement and Fourth Amendment to
Loan Agreement dated as of October 31, 1998, and, as so amended, is herein
called the "LOAN AGREEMENT".
2. The Parties desire to amend the Loan Agreement to (a) change and add
financial covenants; (b) add a new acquisition limitation; (c) create a
$25,000,000 sub-limit for the issuance of letters of credit; (d) require an
asset audit; (e) add provisions concerning the Year 2000; (f) modify the
commitment fee rate and interest rate margins, and (g) make other changes, and
they also desire to terminate that certain Forbearance Agreement (the
"FORBEARANCE AGREEMENT") among the Parties and dated as of April 9, 1999.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by
the Parties, the Parties agree as follows:
1. AMENDMENT OF DEFINITIONS. Each of the following definitions contained
in the Loan Agreement is hereby amended to read in its entirety as follows:
BASE RATE means, for any day, a rate per annum (rounded upwards to
the nearest 1/16 of 1%) equal to the lesser of (a) the sum of (x) the Base
Rate Margin
Percentage for such day plus (y) the greater of (1) the Prime Rate for
that day, (2) the Base CD Rate for that day plus 1 1/4%, and (3) the
Federal Funds Rate for that day plus 1/2 of 1% and (b) the Ceiling Rate.
If for any reason the Agent shall have determined (which determination
shall be conclusive and binding, absent manifest error) that it is unable
to ascertain the Base CD Rate or the Federal Funds Rate, or both, for any
reason, including the inability or failure of the Agent to obtain
sufficient quotations in accordance with the terms hereof, the Base Rate
shall, until the circumstances giving rise to such inability no longer
exist, be the lesser of (a) the Prime Rate plus the Base Rate Margin
Percentage, in each case from time to time in effect, and (b) the Ceiling
Rate.
CAPITAL EXPENDITURES means, as to any Person, expenditures in
respect of fixed or capital assets by such Person, including the capital
portion of lease payments made in respect of Capital Lease Obligations,
net of retirements of such assets (valued at depreciated historical cost
on the date of retirement, determined in accordance with GAAP), but
EXCLUDING expenditures for the restoration, repair or replacement of any
fixed or capital asset which was destroyed or damaged, in whole or in
part, to the extent financed by the proceeds of an insurance policy
maintained by such Person and FURTHER EXCLUDING (i) the FMTV Capital
Expenditures and (ii) expenditures classified as "Acquisition of
Businesses" in Borrower's statement of cash flows. Expenditures in respect
of replacements and maintenance consistent with the business practices of
a Person in respect of plant facilities, machinery, fixtures and other
like capital assets utilized in the ordinary course of business are not
Capital Expenditures to the extent such expenditures are not capitalized
in preparing a balance sheet of such Person in accordance with GAAP.
CASH INTEREST EXPENSE means, for any period, the cash interest
payments by a Person made during such period in connection with such
Person's Interest Bearing Debt; PROVIDED, HOWEVER that if such period ends
before January 31, 2000, then "Cash Interest Expense" with respect to the
Indebtedness incurred pursuant to that certain Note Purchase Agreement
dated as of May 30, 1996 shall mean the quotient of (a) $7,454,004 divided
by (b) the Annualization Factor for such period, rather than any cash
interest payment which may or may not have been made thereon during such
period.
COMMITMENT FEE PERCENTAGE means, on any day, the per annum
percentage corresponding to the Leverage Ratio (determined as of the most
recent Calculation Date, and "X" in the table below) on such day as
provided below:
PER ANNUM
LEVERAGE RATIO PERCENTAGE
-------------- ----------
X greater than or equal to 3.50 to 1 0.500%
3.50 to 1 greater than X greater than or equal to 2.50 to 1 0.375%
2.50 to 1 greater than X 0.250%
-2-
FACILITY DEBT means the Indebtedness evidenced by the Notes, the
Letter of Credit Advances and any and all other Indebtedness arising
pursuant to this Agreement or any other Credit Document from time to time.
MARGIN PERCENTAGE means, on any day, the per annum percentage
corresponding to the Leverage Ratio (determined as of the most recent
Calculation Date, and "X" in the table below) on such day as provided
below:
PER ANNUM
LEVERAGE RATIO PERCENTAGE
-------------- ----------
X greater than or equal to 4.00 to 1 2.00%
4.00 to 1 greater than X greater than or equal to 3.50 to 1 1.75%
3.50 to 1 greater than X greater than or equal to 3.00 to 1 1.50%
3.00 to 1 greater than X greater than or equal to 2.50 to 1 1.25%
2.50 to 1 greater than X 1.00%
PRIME RATE means, on any day, the prime rate for that day as
determined from time to time by Chase Texas. Without notice to Borrower or
any other Person, the Prime Rate shall automatically fluctuate upward and
downward as and in the amount by which said prime rate fluctuates, with
each change to be effective as of the date of each change in said prime
rate. THE PRIME RATE IS A REFERENCE RATE AND DOES NOT NECESSARILY
REPRESENT THE LOWEST OR BEST RATE OR A FAVORED RATE, AND AGENT AND LENDERS
DISCLAIM ANY STATEMENT, REPRESENTATION OR WARRANTY TO THE CONTRARY. ANY
LENDER MAY MAKE COMMERCIAL LOANS OR OTHER LOANS AT RATES OF INTEREST AT,
ABOVE OR BELOW THE PRIME RATE.
2. ADDITIONAL DEFINITIONS. The following definitions are hereby added to
the Loan Agreement:
ANNUALIZATION FACTOR means, with respect to any period ending before
January 31, 2000, the quotient of (a) 365 divided by (b) the number of
days in such period.
APPLICATION means an application for a letter of credit in Proper
Form.
AVAILABLE COMMITMENT means, for any day, the Commitment minus the
Letter of Credit Exposure.
BASE RATE MARGIN PERCENTAGE means, for any day, the Margin
Percentage for such day minus 1%.
COVER for the Letter of Credit Exposure Amount shall be effected by
paying to the Agent on behalf of the Lenders immediately available funds,
to be held by the Agent in a collateral account maintained by the Agent at
Chase Texas and collaterally
-3-
assigned as security by Borrower for the financial accommodations extended
pursuant to this Agreement using documentation in Proper Form, in an
amount equal to any required repayment. Such amount shall be retained by
the Agent in such collateral account until such time as the applicable
Letters of Credit shall have expired and the Letter of Credit Advances, if
any, with respect thereto shall have been fully satisfied; PROVIDED,
HOWEVER, that at such time if a Default has occurred and is continuing at
such time, the Agent shall not be required to release such amount until
such Default shall have been cured.
CURRENT SUM means, on any day, the sum of (a) the aggregate
outstanding principal balance of the Notes on such day PLUS (b) the
aggregate Letter of Credit Exposure Amount on such day.
FIXED CHARGE COVERAGE RATIO means, for any day, the ratio of (a) the
amount of EBITDA less the sum of (x) Capital Expenditures and (y) common
and preferred stock dividends to (b) Cash Interest Expense, in each case
determined with respect to Borrower on a consolidated basis and for the
12-month period ending on such date (PROVIDED, HOWEVER that for purposes
of the computation of the Fixed Charge Coverage Ratio for the quarters
ending May 1 and July 31, 1999, Capital Expenditures shall exclude up to
$20,000,000 of Capital Expenditures related to the compression equipment
business that were made or committed before April 23, 1999, and PROVIDED,
FURTHER that if such date is before January 31, 2000, then (1) such
determinations shall be made for the period from February 1, 1999 to such
date and (2) both the numerator and the denominator of such ratio shall be
multiplied by the relevant Annualization Factor.
ISSUER means Chase Texas acting in its capacity as the issuer of a
Letter of Credit.
LETTER OF CREDIT ADVANCES means all sums which may from time to time
be paid by the Issuer or any Lender pursuant to the Letters of Credit, or
any of them, together with all other sums, fees, reimbursements or other
obligations which may be due to the Issuer or any Lender pursuant to the
Letters of Credit, or any of them.
LETTER OF CREDIT EXPOSURE AMOUNT means at any time the sum of (a)
the aggregate undrawn amount of all Letters of Credit outstanding at such
time PLUS (b) the aggregate amount of all Letter of Credit Advances for
which the Lenders have not been reimbursed and which remain unpaid at such
time.
LETTER OF CREDIT SUB-LIMIT means the lesser of (a) $25,000,000 or
(b) the Commitment.
LETTERS OF CREDIT means all irrevocable standby letters of credit
issued pursuant to this Agreement.
LEVERAGE RATIO means, for any day, the ratio of (a) Interest Bearing
Debt on such date to (b) the amount of EBITDA for the 12-month period
ending on such date
-4-
(PROVIDED, HOWEVER that if such date is before January 31, 2000, then such
amount of EBITDA shall be the product of (x) the amount of EBITDA from
February 1, 1999 to such date times (y) the appropriate Annualization
Factor), all determined with respect to Borrower on a consolidated basis.
MINIMUM TANGIBLE NET WORTH means, as of any date, the sum of (a)
$262,449,000; (b) the net cash proceeds received by Borrower in connection
with the issuance of any indicia of its equity ownership after January 31,
1999, and (c) 50% of the Net Income of Borrower for each fiscal quarter
beginning after January 31, 1999 and completed by such date (but if the
Net Income of Borrower is negative for any such fiscal quarter, then such
Net Income shall not be used in computing the Minimum Tangible Net Worth).
3. LOANS. Sections 2(a), (b), (c), (d) and (e) of the Loan Agreement are
hereby amended to read in their entirety as follows:
(a) LOANS AND COMMITMENTS. Subject to the terms and conditions
hereof, each Lender severally agrees to make Loans to Borrower from time
to time during the Loan Availability Period, not to exceed at any time
outstanding such Lender's Percentage of the Available Commitment, Borrower
having the right to borrow, repay and reborrow. Each Request for Credit by
Borrower shall be deemed a request for a Loan from each Lender equal to
such Lender's Percentage of the aggregate amount so requested, and such
aggregate amount shall be equal to the lesser of (1) an integral multiple
of $1,000,000 and (2) the unused portion of the Available Commitment. Each
repayment of the Loans shall be deemed a repayment of each Lender's Loans
equal to such Lender's Percentage of the aggregate amount so repaid, and
the aggregate amount so repaid shall be equal to the lesser of (i) an
integral multiple of $1,000,000 and (ii) the aggregate unpaid principal
balance of the Notes. The obligations of the Lenders hereunder are several
and not joint, and the preceding two sentences will give rise to certain
inappropriate results if special provisions are not made to accommodate
the failure of a Lender to fund a Loan as and when required by this
Agreement; therefore, notwithstanding anything herein to the contrary, (I)
no Lender shall be required to make Loans at any one time outstanding in
excess of such Lender's Percentage of the Available Commitment or of the
requested Loan and (II) if a Lender fails to make a Loan as and when
required hereunder and Borrower subsequently makes a repayment on the
Loans, such repayment shall be split among the non-defaulting Lenders
ratably in accordance with their respective Percentages until each Lender
has its Percentage of all of the outstanding Loans, and the balance of
such repayment shall be divided among all of Lenders in accordance with
their respective Percentages. The Loans shall be evidenced by the Notes.
(b) REDUCTION IN COMMITMENT. Borrower shall have the right to
terminate or permanently reduce the unused portion of the Commitment at
any time or from time to time, PROVIDED that Borrower may not decrease the
Commitment to an amount less than the Current Sum. Each decrease in the
Commitment pursuant to this Section shall be permanent and shall be an
integral multiple of $1,000,000.
-5-
Each notice of a decrease in the Commitment shall be effective upon the
date specified therein; PROVIDED that the Agent must receive such notice
at least five (5) Business Days prior to its effective date.
(c) COMMITMENT FEE. In consideration of the Commitment, Borrower
agrees to pay commitment fee (computed on the basis of the actual number
of days elapsed in a year composed of 365 or 366 days, as the case may be)
computed by multiplying the Commitment Fee Percentage from time to time in
effect times the daily average difference between the Commitment and the
Current Sum, such commitment fee to be due and payable to the Agent for
the account of the Lenders on each Interest Payment Date for Base Rate
Borrowings before the Termination Date, and on the Termination Date, in
addition to the installments of interest on the Notes. All past due
commitment fees shall bear interest at the Past Due Rate. Borrower and the
Lenders expressly agree, pursuant to Chapter 346 ("CHAPTER 346") of the
Texas Finance Code, that Chapter 346 (which relates to open-end line of
credit revolving loan accounts) shall not apply to any Loan and that
neither this Agreement nor any such Loan shall be governed by Chapter 346
or subject to its provisions.
(d) MANDATORY PAYMENTS OF PRINCIPAL AND INTEREST. Accrued and unpaid
interest on the unpaid principal balance of the Notes shall be due and
payable on the Interest Payment Dates. The entire unpaid principal balance
of each Note shall be finally due and payable on the Maturity Date. All
payments on the Notes and all payments on the Letter of Credit Advances
shall be applied first to accrued interest, the balance to principal; all
prepayments (whether voluntary or mandatory) on the Notes shall be applied
first to principal, the balance to accrued interest. If any payment on the
Facility Debt shall become due on a day other than a Business Day, such
payment may be made on the next succeeding Business Day (unless the result
of such extension of time would be to extend the date of such payment into
another calendar month or beyond the Maturity Date, and in either such
event such payment shall be made on the Business Day immediately preceding
the day on which such payment would otherwise have been due), and such
extension of time shall in such case be included in the computation of
interest on such Facility Debt.
(e) MANDATORY PREPAYMENTS. Borrower shall from time to time prepay
the Loans in such amounts as shall be necessary so that at all times the
aggregate principal amount of all Loans outstanding shall be less than or
equal to the Available Commitment.
4. LETTERS OF CREDIT. There is hereby added to the Loan Agreement a new
Section 2(h), which shall read in its entirety as follows:
(h) LETTERS OF CREDIT.
(1) Subject to the terms and conditions contained herein,
Borrower shall have the right to utilize the Commitment from time to
time, prior to the Termination Date, by obtaining from the Issuer
Letters of Credit for the account of Borrower in such amounts and in
favor of such
-6-
beneficiaries as Borrower from time to time shall request; PROVIDED,
that in no event shall the Issuer have any obligation to issue any
Letter of Credit if (i) the face amount of such Letter of Credit,
PLUS the Letter of Credit Exposure Amount at such time, would exceed
the Letter of Credit Sub-Limit, (ii) the face amount of such Letter
of Credit, PLUS the Current Sum at such time, would exceed the
Commitment then in effect, (iii) such Letter of Credit would have an
expiry date later than the earlier of (x) one year from the date
thereof or (y) the Termination Date, (iv) such Letter of Credit
would not be in Proper Form, (v) Borrower has not executed and
delivered such customary Applications and other instruments and
agreements relating to such Letter of Credit as the Agent shall have
requested; (vi) an event has occurred and is continuing which
constitutes a Default; (vii) in the sole opinion of the Majority
Lenders, there has been a material adverse change in the Property,
liabilities, financial condition, business or affairs of Borrower or
any of its Subsidiaries from those reflected in the financial
statements of Borrower dated January 31, 1999 and delivered to the
Lenders or in the facts warranted or represented in any Credit
Document, or (vii) the issuance of such Letter of Credit shall be
prohibited by, or subject the Agent, the Issuer or any Lender to any
penalty or onerous condition under, any applicable Legal
Requirement. Borrower promises to pay to the Agent for the account
of each Lender, on demand, such Lender's Percentage of each Letter
of Credit Advance, together with interest thereon at (1) prior to
the third Business Day following each such Letter of Credit Advance,
the Base Rate, and (2) on and after such third Business Day, the
Past Due Rate. The Lenders may, but shall not be obligated to, at
any time deem that Borrower has requested a Loan to satisfy any
Letter of Credit Advance, and the Lenders may without further action
by Borrower satisfy such Letter of Credit Advance (without regard to
the conditions precedent to a Loan, the minimum size of a Loan or
other matters) by making Loans. All rights, powers, benefits and
privileges of this Agreement with respect to the Notes, all security
therefor and guaranties thereof (if any) and all restrictions,
provisions for repayment or acceleration and all other covenants,
warranties, representations and agreements of Borrower contained in
this Agreement with respect to the Notes shall apply to each Letter
of Credit Advance.
Upon the date of the issuance of a Letter of Credit, the
Issuer shall be deemed, without further action by any party to this
Agreement, to have sold to each Lender, and each Lender shall be
deemed, without further action by any party to this Agreement, to
have purchased from the Issuer, a participation, to the extent of
such Lender's Percentage, in such Letter of Credit and the related
Letter of Credit Exposure Amount. Should the Lenders in their sole
and absolute discretion approve, contrary to SECTION
2(H)(1)(III)(Y), the issuance of a Letter of Credit with an expiry
date after the Termination Date, such Letter of Credit shall be
fully Covered or, in the alternative, if Borrower chooses, shall be
backed by a letter of credit in Proper Form issued by an issuer
acceptable to the Issuer in its sole and absolute discretion.
-7-
(2) The following additional provisions shall apply to each
Letter of Credit:
(A) Borrower shall give the Agent at least three
Business Days' irrevocable prior notice (effective upon
receipt) specifying the date such Letter of Credit is to be
issued, describing the proposed terms of such Letter of Credit
and the nature of the transaction proposed to be supported
thereby, and shall furnish such additional information
regarding such transaction as the Agent may reasonably
request. Upon receipt of such notice the Agent shall promptly
provide each Lender with a copy thereof and with notice of
such Lender's Percentage of the amount of such proposed Letter
of Credit.
(B) On each day during the period commencing with the
issuance of any Letter of Credit and until such Letter of
Credit shall have expired or been terminated, the Commitment
of each Lender shall be deemed to be utilized for all purposes
of this Agreement in an amount equal to such Lender's
Percentage of the sum of (i) the undrawn amount of such Letter
of Credit PLUS (ii) the unpaid amount of all Letter of Credit
Advances with respect to such Letter of Credit.
(C) Upon receipt from the beneficiary of any Letter of
Credit of any demand for payment thereunder, the Issuer shall
promptly notify Borrower and each Lender as to the amount to
be paid as a result of such demand and the payment date. If at
any time the Issuer shall have made a payment to a beneficiary
of a Letter of Credit in respect of a drawing or in respect of
an acceptance created in connection with a drawing under such
Letter of Credit, each Lender will pay to the Agent
immediately upon demand by the Agent at any time during the
period commencing after such payment until reimbursement
thereof in full by Borrower, an amount equal to such Lender's
Percentage of such payment, together with interest on such
amount for each day from the date of demand for such payment
(or, if such demand is made after 12:00 noon, Houston time, on
such date, from the next succeeding Business Day) to the date
of payment by such Lender of such amount at a rate of interest
per annum equal to the Federal Funds Rate for such day.
(D) Borrower shall be irrevocably and unconditionally
obligated forthwith to reimburse the Issuer for the account of
each Lender for any amount paid by the Issuer upon any drawing
under any Letter of Credit, without presentment, demand,
protest or other formalities of any kind, all of which are
hereby expressly WAIVED by Borrower to the extent not
prohibited by law.
(3) Borrower will pay to the Issuer for the account of each
Lender a letter of credit fee equal to such Lender's Percentage of
the face amount of
-8-
each Letter of Credit, for the period from and including the date of
issuance of such Letter of Credit to and including its date of
expiry, at a rate per annum equal to the Margin Percentage on the
date of issuance, such fee to be due and payable on the date of
issuance (and a condition to the issuance of such Letter of Credit);
PROVIDED, HOWEVER, that the aggregate of all letter of credit fees
payable to the Lenders with respect to a Letter of Credit pursuant
to this sentence shall be at least $600. Borrower will pay to the
Issuer for the account of the Issuer, as a condition precedent to
the issuance of each Letter of Credit, an issuance fee of $300 for
such Letter of Credit.
(4) Borrower shall pay to the Agent for the account of the
Issuer, in advance (and as a condition of issuance of the Letter of
Credit), a fronting fee for each Letter of Credit equal to 1/8 of 1%
per annum times the face amount of such Letter of Credit, for the
period from and including the date of issuance of such Letter of
Credit to and including the date of expiration or termination
thereof.
(5) Each Letter of Credit shall be subject to (A) either (i)
the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500
(and any subsequent revision thereof approved by a Congress of the
International Chamber of Commerce) or (ii) the International Standby
Practices 1998, as appropriate, and, (B) to the extent not
inconsistent therewith, the laws of the State of Texas.
(6) The obligations of Borrower under this Agreement in
respect of the Letters of Credit and Letter of Credit Advances shall
be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever.
(7) If as a result of any change in any Legal Requirement, or
the interpretation thereof by any Governmental Authority, there
shall be imposed, modified or deemed applicable any tax, reserve,
special deposit or similar requirement against or with respect to or
measured by reference to Letters of Credit issued or to be issued
hereunder or participations in such Letters of Credit, and the
result shall be to increase the cost to the Issuer or any other
Lender of issuing or maintaining any Letter of Credit or any
participation therein, or reduce any amount receivable by the Issuer
or any other Lender hereunder in respect of any Letter of Credit or
any participation therein (which increase in cost, or reduction in
amount receivable, shall be the result of the reasonable allocation
by the Issuer or such other Lender, as the case may be, of the
aggregate of such increases or reductions resulting from such event;
the determination of such amount by the Issuer or such other Lender,
as the case may be, shall be conclusive and binding, absent manifest
error), then the Issuer or such other Lender shall notify Borrower
or the Agent, as the case may be, and upon demand therefor by the
Agent, Borrower (subject to SECTION 12) shall pay to the Issuer or
such other Lender,
-9-
from time to time as specified by the Issuer or such other Lender
through the Agent, such additional amounts as shall be sufficient to
compensate the Issuer or such other Lender for such increased costs
or reductions in amount; .
5. REGULATION U. Section 5(m) of the Loan Agreement is hereby amended to
read in its entirety as follows:
(m) None of the proceeds of any Note, and no Letter of Credit, will
be used for the purpose of purchasing or carrying, directly or indirectly,
any margin stock or for any other purpose which would make such credit a
"purpose credit" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System.
6. NEW REPRESENTATION. There is hereby added to the Loan Agreement a new
Section 5(bb), which shall read in its entirety as follows:
(bb) Any reprogramming required to permit the proper functioning, in
and following the year 2000, of (1) the computer systems of Borrower and
its Subsidiaries and (2) the computer systems and equipment containing
embedded microchips (including systems and equipment supplied by others or
with which Borrower's systems interface) of Borrower and its Subsidiaries
will be completed by June 30, 1999, and the testing of all such systems
and equipment, as so reprogrammed, will be completed by September 30,
1999. Except for such of the reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information
systems of Borrower and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to
be, sufficient to permit Borrower to conduct its business without
resulting in a material adverse change in the Property, liabilities,
financial condition, business or affairs of Borrower or any of its
Subsidiaries. The cost to Borrower and its Subsidiaries of such
reprogramming and testing and of the reasonably foreseeable consequences
of year 2000 to Borrower and its Subsidiaries (including, without
limitation, reprogramming errors and the failure of others' systems or
equipment) will not result in a Default or have a material adverse change
in the Property, liabilities, financial condition, business or affairs of
Borrower or any of its Subsidiaries.
7. REVISED FINANCIAL COVENANTS. Section 6(c) of the Loan Agreement is
hereby amended to read in its entirety as follows:
(c) Borrower and its Subsidiaries shall have and maintain, on a
consolidated basis, at all times on and after May 1, 1999:
(1) a Leverage Ratio for Borrower of no more than (A) 4.25 to
1 until July 31, 1999; (B) 4.00 to 1 on and after July 31, 1999; (C)
3.50 to 1 on and after October 30, 1999, and (D) 3.00 to 1 on and
after January 31, 2000;
-10-
(2) a Tangible Net Worth for Borrower of not less than the
Minimum Tangible Net Worth; and
(3) a Fixed Charge Coverage Ratio for Borrower of at least (A)
1.75 to 1 until July 31, 1999; (B) 1.65 on and after July 31, 1999
until October 30, 1999; (C) 2.25 to 1 on and after October 30, 1999,
and (D) 2.50 to 1 on and after January 31, 2000.
8. PURPOSES OF LOANS AND LETTERS OF CREDIT. Section 6(k) of the Loan
Agreement is hereby amended to read in its entirety as follows:
(k) The proceeds of the Loans will be used for general corporate
purposes and working capital for Borrower and its Subsidiaries; the
Letters of Credit will be used for general corporate purposes of Borrower
and its Subsidiaries.
9. NEW ACQUISITION LIMITATION. There is hereby added to the Loan Agreement
a new Section 7(f), which shall read in its entirety as follows:
(f) Borrower will not (and will not permit any of its Subsidiaries
to), in any single transaction or series of related transactions, make any
Investment or acquire any Property which (1) would be classified as
"Acquisition of Businesses" in Borrower's statement of cash flows and (2)
involves net cash consideration in excess of $10,000,000.
10 REMEDIES. The last sentence of Section 8 of the Loan Agreement is
hereby amended to read in its entirety as follows:
Upon the occurrence of any Event of Default, and at any time thereafter,
the Majority Lenders shall have the right, at their option, to do any or
all of the following: (1) to declare the Commitment terminated (whereupon
the Commitment shall be terminated); (2) to declare the unpaid balance of
the Indebtedness evidenced by the Notes to be immediately due and payable
without further notice (including notice of intent to accelerate and
notice of acceleration), protest or demand or presentment for payment, ALL
OF WHICH ARE HEREBY EXPRESSLY WAIVED BY BORROWER; PROVIDED, that in the
case of the occurrence of an Event of Default referred to in SECTION 8(D)
or 8(E), the Commitment shall be automatically terminated and the unpaid
balance of the Indebtedness evidenced by the Notes (principal and accrued
and unpaid interest) shall be and become automatically due and payable,
without notice (including notice of intent to accelerate and notice of
acceleration) and without presentment, demand or other formalities of any
kind, ALL OF WHICH ARE HEREBY EXPRESSLY WAIVED BY BORROWER; (3) by notice
to Borrower, require Cover for all outstanding Letters of Credit, and (4)
acting through the Agent, to enforce or exercise any and all powers,
rights and remedies available at law or provided in this Agreement, the
Notes, the other Credit Documents or any other document executed pursuant
hereto or in connection herewith.
-11-
11 LIABILITY OF ISSUER. There is hereby added to Section 10(b) of the Loan
Agreement a new sentence, which shall appear at the end of such Section and
shall read in its entirety as follows:
Without in any way limiting any of the foregoing, each Lender acknowledges
that the Issuer shall have no greater responsibility in the operation of
the Letters of Credit than is specified in the Uniform Customs and
Practice of Documentary Credits (1993 Revision, International Chamber of
Commerce Publication No. 500) or International Standby Practices 1998, as
the case may be.
12 ISSUER INDEMNIFICATION. There is hereby added to Section 15 of the Loan
Agreement a new sentence, which shall be inserted immediately before the
penultimate sentence of that Section and shall read in its entirety as follows:
TO THE FULLEST EXTENT NOT PROHIBITED BY LAW, BORROWER SHALL INDEMNIFY THE
AGENT (INCLUDING THE AGENT WHEN ACTING AS ISSUER OF LETTERS OF CREDIT),
EACH LENDER AND EACH OF THEIR RESPECTIVE AFFILIATES FROM, AND HOLD EACH OF
THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, COSTS, EXPENSES,
CLAIMS OR DAMAGES TO WHICH ANY OF THEM MAY BECOME SUBJECT, REGARDLESS OF
AND INCLUDING LOSSES, LIABILITIES, COSTS, EXPENSES, CLAIMS AND DAMAGES
ARISING FROM THE SOLE, ORDINARY OR CONTRIBUTORY NEGLIGENCE OF THE AGENT,
ANY LENDER OR ANY OTHER INDEMNIFIED PERSON, IN CONNECTION WITH THE
EXECUTION AND DELIVERY OR TRANSFER OF OR PAYMENT OR FAILURE TO PAY UNDER
ANY LETTER OF CREDIT, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS, DAMAGES,
LOSSES, LIABILITIES, COSTS OR EXPENSES WHICH THE AGENT, OR SUCH OTHER
INDEMNIFIED PERSON, AS THE CASE MAY BE, MAY INCUR (WHETHER INCURRED AS A
RESULT OF ITS OWN NEGLIGENCE OR OTHERWISE) BY REASON OF OR IN CONNECTION
WITH THE FAILURE OF ANY OTHER LENDER (WHETHER AS A RESULT OF ITS OWN
NEGLIGENCE OR OTHERWISE) TO FULFILL OR COMPLY WITH ITS OBLIGATIONS TO THE
AGENT OR ANY LENDER, AS THE CASE MAY BE, WITH RESPECT TO SUCH LETTER OF
CREDIT HEREUNDER (BUT NOTHING HEREIN CONTAINED SHALL AFFECT THE RIGHTS THE
COMPANY MAY HAVE AGAINST SUCH DEFAULTING LENDER); BUT EXCLUDING ANY SUCH
LOSSES, LIABILITIES, CLAIMS, DAMAGES, COSTS OR EXPENSES INCURRED BY SUCH
INDEMNIFIED PERSON BY REASON OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF THE PARTY TO BE INDEMNIFIED.
13 EXHIBITS. Exhibits C and D to the Loan Agreement are hereby deleted and
there are hereby substituted therefor new Exhibits C and D, which shall be
identical to EXHIBITS C and D, respectively, attached hereto and hereby made a
part hereof.
-12-
14 EFFECTIVE RATES. Notwithstanding anything in the Loan Agreement as
hereby amended, from the date hereof to the first Calculation Date after the
date hereof, the Margin shall be 1.50% (with respect to all Loans outstanding on
the date hereof and all Loans made thereafter before such Calculation Date) and
the Commitment Fee Percentage shall be 0.375%.
15 ASSET AUDIT. Borrower has permitted the Agent to perform the field work
in connection with an asset audit (the "ASSET AUDIT") of Borrower and its
Subsidiaries. Promptly after completion of the Asset Audit, the Agent shall
discuss the same with Borrower and then provide a report thereof (the "AUDIT
REPORT") to the Lenders. Borrower agrees to provide such additional information
to any Lender as such Lender may reasonably request with respect to any matter
related to the Asset Audit, and Borrower may provide each Lender with such
additional information (at such time and in such manner as is reasonably
convenient for Borrower and the Lenders) as Borrower believes may be useful to
the Lenders in their evaluation of the Audit Report. Within ten Business Days
after receipt of the Audit Report, each Lender shall provide notice to the Agent
as to whether such Lender, in its sole and absolute discretion, determines that
the results of the Asset Audit are satisfactory to such Lender; if, by the end
of such period, the Agent does not receive notices from Lenders with Commitment
Percentages aggregating at least 66-_% stating that the results of the Asset
Audit are satisfactory to such Lenders, then (a) Borrower and each Lender agrees
to use its best efforts to come to an agreement as to (1) the frequency and
method of the reporting of Borrower's calculation of the Borrowing Base; (2) the
X% and Y% appearing in the definitions below, and (3) the definitions of the
terms "Eligible Accounts" and "Eligible Inventory" (together with such
additional definitions as may be used in the definitions of those terms); (b)
immediately upon the agreement by Borrower and the Majority Lenders as to the
foregoing, the same shall be added to the amendments to the Loan Agreement
appearing below, and (c) the Loan Agreement shall thereupon automatically, and
without any further action by any Party, be amended as follows (after giving
effect to the additions to such amendments of clause (b) of this Section):
(x) The following definition contained in the Loan Agreement will be
amended to read in its entirety as follows:
AVAILABLE COMMITMENT means, for any day, the difference of (a) the
lesser of the Commitment or the Borrowing Base minus (b) the Letter of
Credit Exposure.
(y) The following definition will be added to the Loan Agreement:
BORROWING BASE means, on any day, the sum of (a) X% of the Eligible
Accounts plus (b) Y% of the Eligible Inventory as set forth on the most
recent calculation of the Borrowing Base delivered to the Agent, subject
to arithmetic correction.
(z) Section 2(h)(1)(ii) of the Loan Agreement will be amended to read in
its entirety as follows:
(ii) the face amount of such Letter of Credit, PLUS the Current Sum at
such time, would exceed the lesser of the Commitment or the Borrowing
Base, in each case as then in effect,
-13-
16 WAIVER. All breaches of Section 6(c) of the Loan Agreement as in effect
before the effectiveness of this Amendment are hereby waived; PROVIDED, HOWEVER
that such waiver (a) is conditioned upon the accuracy of all information
heretofore furnished to the Agent and the Lenders and (b) is not a waiver of any
similar or dissimilar Default or Event of Default occurring after the date
hereof.
17 FORBEARANCE AGREEMENT. Upon the effectiveness of this Amendment, the
Forbearance Agreement shall be terminated and of no further force or effect.
18 CONDITIONS PRECEDENT. This Amendment shall be effective as of the date
set forth above, subject to the satisfaction, in a manner satisfactory to the
Agent, of each of the following conditions precedent on or before April 30,
1999:
(a) The Agent shall have received the following (the "AMENDMENT
DOCUMENTS"), each of which shall be in form and substance satisfactory to the
Agent in its sole and absolute discretion and duly and validly executed:
(1) A certificate of the Secretary or any Assistant Secretary of
Borrower, dated as of the date hereof, as to (1) the resolutions of the
Board of Directors of Borrower authorizing the execution, delivery and
performance of this Amendment and of each of the other Amendment Documents
(a copy of such resolutions to be attached to such certificate), such
certificate to state that said copy is a true and correct copy of such
resolutions and that such resolutions were duly adopted and have not been
amended, superseded, revoked or modified in any respect and remain in full
force and effect as of the date of such certificate, and (2) as to the
absence of any change since (i) October 31, 1998 in the Bylaws of Borrower
and (ii) December 20, 1996 in any of (x) the incumbency and signatures of
the officer or officers of the Borrower or (y) the Articles of
Incorporation of the Borrower;
(2) this Amendment, duly executed by Borrower, the Majority Lenders
and the Agent.
(3) Such effectiveness shall not violate any legal requirement
applicable to the Agent or any Lender; and
(4) a fee for the account of each Lender which had given written
notice to the Agent by April 23, 1999 of such Lender's agreement (subject
to review of documentation) to the modifications of the Loan Agreement
contained in this Amendment, in an amount equal to 0.25% of such Lender's
Commitment.
(b) Borrower shall have paid to the Agent on behalf of the Lenders all
accrued and unpaid fees and other amounts in connection with the Loan Agreement
and all amounts accrued under this Amendment and the other Amendment Documents.
(c) The Agent on behalf of the Lenders shall have received in writing all
such information respecting the business, operations, condition (financial and
otherwise), properties and prospects of Borrower and its financial and credit
arrangements, as any Lender through the Agent may from time to time have
reasonably requested.
-14-
(d) After giving effect to this Amendment, no Default shall have occurred
and be continuing.
(e) No event, circumstance or condition shall have occurred since January
31, 1999 which has had, or which could have, a material adverse effect on the
business, operations, condition (financial or otherwise), properties or
prospects of Borrower.
(f) Such effectiveness shall not violate any legal requirement applicable
to the Agent or any Lender.
19 REPRESENTATIONS TRUE; NO DEFAULT. Borrower represents and warrants to
the Agent and each Lender that (a) the representations and warranties contained
in the Loan Agreement and in the other Credit Documents are true and correct on
and as of the date hereof as though made on and as of such date (except to the
extent such representations and warranties are expressly stated to be made
solely as of an earlier date) and (b) except for the "Existing Defaults" (as
such term is defined in the Forbearance Agreement) no event has occurred and is
continuing which constitutes an Event of Default under the Loan Agreement or any
of the other Credit Documents or which upon the giving of notice or the lapse of
time or both would constitute such an Event of Default.
20 RATIFICATION. Except as expressly amended hereby and by the other
Amendment Documents, the Loan Agreement, as hereby amended, and the other Credit
Documents are in all respects ratified and confirmed and are, and shall continue
to be, in full force and effect. Borrower hereby agrees and acknowledges that
all of its liabilities and obligations under the Loan Agreement, the other
Credit Documents, or otherwise, remain in full force and effect as of the date
of this Amendment.
21 DEFINITIONS AND REFERENCES. Unless otherwise defined herein, terms used
herein which are defined in the Loan Agreement or in the other Credit Documents
shall have the meanings therein ascribed to them. The term "Agreement" as used
in the Loan Agreement and the term "Loan Agreement" as used in the other Credit
Documents or any other instrument, document or writing furnished to the Agent or
any Lender by or on behalf of Borrower shall mean the Loan Agreement as hereby
amended.
22 EXPENSES; ADDITIONAL INFORMATION. Whether or not this Amendment becomes
effective, Borrower shall pay or reimburse on demand each of the Lenders and the
Agent for paying: (a) the reasonable fees and expenses of Xxxxx Xxxxxxx & Xxxx
LLP, special counsel to the Agent, in connection with (1) the preparation,
execution and delivery of this Amendment (including its exhibits and appendix)
and the other Amendment Documents and (2) advising the Agent as to its rights
and responsibilities under the Loan Agreement, as hereby amended; (b) all costs
and expenses of the Lenders and the Agent (including costs of reasonable
counsels' fees) in connection with any Event of Default or the enforcement of
any Credit Document; (c) all transfer, stamp, documentary or other similar
taxes, assessments or charges levied by any governmental or revenue authority in
respect of any Credit Document or any other document referred to therein; (d)
all costs, expenses, taxes, assessments and other charges incurred in connection
with any filing or registration contemplated by any Credit Document or any
document referred to therein; and (e) reasonable expenses of due diligence and
syndication, and mutually agreed advertising and marketing costs.
-15-
23 SEVERABILITY. If any term or provision of this Amendment or any of the
other Amendment Documents or the application thereof to any person or
circumstances shall, to any extent, be deemed invalid or unenforceable, the
remainder of this Amendment or such Amendment Document, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and this
Amendment or such Amendment Document shall be valid and enforced to the fullest
extent permitted by applicable law. Any provision of this Amendment or of any
other Amendment Documents which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
thereof or affecting the validity or enforceability of such provision in any
other jurisdiction and, to this end, the provisions of this Amendment and each
of the other Amendment Documents are severable.
24 INDEMNIFICATION. BORROWER SHALL INDEMNIFY ON DEMAND THE AGENT
(INCLUDING THE AGENT WHEN ACTING AS THE ISSUER), THE LENDERS AND EACH AFFILIATE
THEREOF AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS AND ADVISORS (COLLECTIVELY, THE "INDEMNITEES" AND INDIVIDUALLY AN
"INDEMNITEE") FROM, AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES,
LIABILITIES (INCLUDING ENVIRONMENTAL LIABILITIES), CLAIMS (INCLUDING
ENVIRONMENTAL CLAIMS), EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) OR
DAMAGES TO WHICH ANY OF THEM MAY BECOME SUBJECT, INSOFAR AS SUCH LOSSES,
LIABILITIES, CLAIMS, EXPENSES OR DAMAGES ARISE OUT OF OR RESULT FROM (A) ANY
ACTUAL OR PROPOSED USE BY BORROWER OF THE PROCEEDS OF ANY LOAN MADE BY ANY
LENDER OR GROWING OUT OF OR RESULTING FROM ANY CREDIT DOCUMENT OR ANY
TRANSACTION OR EVENT CONTEMPLATED THEREIN; (B) VIOLATION BY BORROWER OR ANY OF
ITS SUBSIDIARIES OF ANY CREDIT DOCUMENT OR ANY LEGAL REQUIREMENT, INCLUDING
THOSE RELATING TO HAZARDOUS SUBSTANCES, PETROLEUM, PETROLEUM PRODUCTS OR
PETROLEUM WASTES; (C) ANY LENDER'S OR THE AGENT'S BEING DEEMED AN OPERATOR OF
ANY OF BORROWER'S REAL OR PERSONAL PROPERTY BY A COURT OR OTHER REGULATORY OR
ADMINISTRATIVE AGENCY OR TRIBUNAL OR OTHER THIRD PARTY, TO THE EXTENT SUCH
LOSSES, LIABILITIES, CLAIMS OR DAMAGES ARISE OUT OF OR RESULT FROM ANY HAZARDOUS
SUBSTANCE, PETROLEUM, PETROLEUM PRODUCT OR PETROLEUM WASTE LOCATED IN ON OR
UNDER SUCH PROPERTY, (D) THE SOLE, ORDINARY OR CONTRIBUTORY NEGLIGENCE OF ANY
INDEMNITEE, OR (E) ANY INVESTIGATION, LITIGATION OR OTHER PROCEEDING (INCLUDING
ANY THREATENED INVESTIGATION OR PROCEEDING) RELATING TO ANY OF THE FOREGOING,
AND BORROWER SHALL REIMBURSE EACH INDEMNITEE UPON DEMAND FOR ANY EXPENSES
(INCLUDING LEGAL FEES) INCURRED IN CONNECTION WITH ANY OF THE FOREGOING, BUT
EXCLUDING ANY SUCH LOSSES BY REASON OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE INDEMNITEE TO BE INDEMNIFIED. THE OBLIGATIONS OF BORROWER
UNDER THIS SECTION SHALL SURVIVE THE TERMINATION OF THE LOAN AGREEMENT (AS
AMENDED BY THIS AMENDMENT AND AS IT MAY OTHERWISE BE AMENDED, RESTATED, MODIFIED
AND SUPPLEMENTED FROM TIME TO TIME) AND THE REPAYMENT AND EXPIRY OF THE LOANS.
ANY AMOUNT TO BE PAID UNDER THIS SECTION BY BORROWER TO THE AGENT OR ANY LENDER
SHALL BE A DEMAND OBLIGATION OWING BY BORROWER TO THE AGENT OR SUCH LENDER AND
SHALL BEAR INTEREST FROM THE DATE OF EXPENDITURE UNTIL PAID AT THE PAST DUE
RATE.
25 RELEASE OF CLAIMS. BORROWER HEREBY RELEASES, DISCHARGES AND ACQUITS
FOREVER THE AGENT AND THE LENDERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
TRUSTEES, AGENTS, EMPLOYEES AND COUNSEL (IN EACH CASE, PAST, PRESENT OR FUTURE)
FROM ANY AND ALL CLAIMS EXISTING AS OF THE DATE HEREOF (OR THE DATE OF ACTUAL
EXECUTION HEREOF BY BORROWER, IF LATER). AS USED HEREIN, THE TERM "CLAIM" SHALL
MEAN ANY AND ALL LIABILITIES, CLAIMS, DEFENSES, DEMANDS, ACTIONS, CAUSES OF
ACTION, JUDGMENTS, DEFICIENCIES, INTEREST, LIENS, COSTS OR EXPENSES (INCLUDING
COURT COSTS, PENALTIES, ATTORNEYS' FEES AND DISBURSEMENTS, AND AMOUNTS PAID IN
SETTLEMENT) OF ANY
-16-
KIND AND CHARACTER WHATSOEVER, INCLUDING CLAIMS FOR USURY, BREACH OF CONTRACT,
BREACH OF COMMITMENT, NEGLIGENT MISREPRESENTATION OR FAILURE TO ACT IN GOOD
FAITH, IN EACH CASE WHETHER NOW KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED,
ASSERTED OR UNASSERTED OR PRIMARY OR CONTINGENT, AND WHETHER ARISING OUT OF
WRITTEN DOCUMENTS, UNWRITTEN UNDERTAKINGS, COURSE OF CONDUCT, TORT, VIOLATIONS
OF LAWS OR REGULATIONS OR OTHERWISE.
26 MISCELLANEOUS. This Amendment and the other Amendment Documents (a)
shall be binding upon and inure to the benefit of Borrower, the Agent and the
Lenders and their respective successors, assigns, receivers and trustees
(however, Borrower may not assign its rights hereunder without the express prior
written consent of the Lenders); (b) may be modified or amended only by a
writing signed by each party; (c) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES) AND OF THE UNITED STATES OF AMERICA; (d) may be
executed in several counterparts, and by the Parties on separate counterparts,
and each counterpart, when so executed and delivered, shall constitute an
original agreement, and all such separate counterparts shall constitute but one
and the same agreement, and (e) embodies the entire agreement and understanding
between the Parties with respect to the subject matter hereof and thereof and
supersedes all prior agreements, consents and understandings relating to such
subject matter. The headings herein shall be accorded no significance in
interpreting this Amendment. Unless otherwise defined herein, terms used herein
which are defined in the Loan Agreement or in the other Credit Documents shall
have the meanings therein ascribed to them. Time is of the essence in the
performance of this Amendment and the other Amendment Documents. This Amendment
and the other Amendment Documents are Credit Documents.
27 THIS AMENDMENT AND THE OTHER AMENDMENT DOCUMENTS, TOGETHER WITH ALL OF
THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AS TO
THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed
by their respective duly authorized officers effective as of the date first
above written.
XXXXXXX & XXXXXXXXX SERVICES, INC.,
a Texas corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
-00-
XXXXX XXXX XX XXXXX, NATIONAL
ASSOCIATION, acting in its individual
capacity and as the Agent for the Lenders
named herein
By: _______________________________
Name: _____________________________
Title: ____________________________
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION, as a Co-Agent
and a Lender
By: _______________________________
Name: _____________________________
Title: ____________________________
NATIONSBANK, N.A., d/b/a Bank of America,
N.A., as Co-Agent and a Lender
By: _______________________________
Name: _____________________________
Title: ____________________________
ABN AMRO BANK N.V., HOUSTON AGENCY
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
THE BANK OF NEW YORK
By: _______________________________
Name: _____________________________
Title: ____________________________
CREDIT LYONNAIS NEW YORK BRANCH
By: _______________________________
Name: _____________________________
Title: ____________________________
PNC BANK, NATIONAL ASSOCIATION
By: _______________________________
Name: _____________________________
Title: ____________________________
BANK ONE, LOUISIANA, NA, as successor to
First National Bank of Commerce
By: _______________________________
Name: _____________________________
Title: ____________________________
Exhibit C - Request for Credit
Exhibit D - Compliance Certificate
REQUEST FOR CREDIT
[Date]
Chase Bank of Texas,
National Association, as Agent
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Manager, Manufacturing and
Oilfield Services Division
Ladies and Gentlemen:
The undersigned hereby certifies that [he] [she] is the
______________________________1 of Xxxxxxx & Xxxxxxxxx Services, Inc.
("BORROWER"), a Texas corporation, and that as such is authorized to execute
this Request for Credit (the "REQUEST") on behalf of Borrower pursuant to the
Loan Agreement (as it may be amended, supplemented or restated from time to
time, the "LOAN AGREEMENT") dated as of December 20, 1996, by and among
Borrower, Chase Bank of Texas, National Association, a national banking
association then known as Texas Commerce Bank National Association, acting as
agent, and the financial institutions which are a party thereto from time to
time. Capitalized terms used herein and not defined herein shall have the
respective meanings assigned to them in the Loan Agreement. The Loan being
requested hereby is to be in the amount set forth in (b) below and is requested
to be made on , which is a Business Day. On behalf of Borrower, the undersigned
further certifies, represents and warrants as follows:
a. As of the date hereof:
(1) Aggregate outstanding amount
of Loans is: $_______________
(2) Letter of Credit Exposure is: $_______________
(3) Current Sum
(clause (1) + clause (2) is: $_______________
(4) The current Commitment is: $_______________
(5) The Available Commitment
(clause 4 - clause 3) is: $_______________
--------
1 Must be the President, a vice president, the Treasurer or an Assistant
Treasurer of Borrower.
EXHIBIT C - Page 1
b. If and only if the Available Commitment is positive, Borrower hereby
requests a Loan in the amount of $____________ (which is no more
than the Available Commitment).
c. The requested Loan is to be a (CHECK ONE) [ ] Base Rate Borrowing
[ ] CD Rate Borrowing [ ] Eurodollar Rate Borrowing [ ] Negotiated
Rate Borrowing. If the Loan is to be an Alternate Rate Borrowing,
the applicable Interest Period is to be .
d. The representations and warranties made in each Credit Document are
true and correct in all respects on and as of the time of delivery
hereof, with the same force and effect as if made on and as of the
time of delivery hereof.
e. No Default has occurred and is continuing or will occur as a result
of the requested Loan.
Thank you for your attention to this matter.
Very truly yours,
XXXXXXX & XXXXXXXXX SERVICES,
INC., a Texas corporation
By:_______________________________
Name:_____________________________
Title:____________________________
EXHIBIT C - Page 2
COMPLIANCE CERTIFICATE
The undersigned hereby certifies that [he] [she] is the
_____________________________2 of Xxxxxxx & Xxxxxxxxx Services, Inc.
("BORROWER"), a Texas corporation, and that as such is authorized to execute
this certificate on behalf of Borrower pursuant to the Loan Agreement (as it may
be amended, supplemented or restated from time to time, the "LOAN AGREEMENT")
dated as of December 20, 1996, by and among Borrower and Chase Bank of Texas,
National Association, a national banking association then known as Texas
Commerce Bank National Association, acting as agent (in such capacity, the
"AGENT") and the financial institutions which are a party thereto from time to
time; and that a review of Borrower and its Subsidiaries has been made under
[his] [her] supervision with a view to determining whether Borrower has
fulfilled all of its obligations under the Loan Agreement and the other Credit
Documents; and on behalf of Borrower further certifies, represents and warrants
as follows (each capitalized term used herein having the same meaning given to
it in the Loan Agreement unless otherwise specified):
(a) Borrower has fulfilled its respective obligations under the
Credit Documents.
(b) Except for those made only as of a specific date, the
representations and warranties made in each Credit Document are true and
correct in all respects on and as of the time of delivery hereof, with the
same force and effect as if made on and as of the time of delivery hereof.
(c) The financial statements delivered to the Agent and the Lenders
concurrently with this Compliance Certificate have been prepared in
accordance with GAAP consistently followed throughout the period indicated
and fairly present the financial condition and results of operations of
the applicable Persons as at the end of, and for, the period indicated.
(d) No Default has occurred and is continuing. In this regard,
Borrower is in compliance with the provisions of SECTION 6(C) of the Loan
Agreement, as follows:
SECTION 6(C)(1) -- LEVERAGE RATIO
actual Leverage Ratio for Borrower and its Subsidiaries as
of the date hereof:
__.____ : 1.00
maximum Leverage Ratio for Borrower and its Subsidiaries as
of the date hereof:
----------
2 Must be the Chief Financial Officer, Treasurer or any Assistant Treasurer
of Borrower.
EXHIBIT D - Page 1
__.____ : 1.00
SECTION 6(C)(2) -- TANGIBLE NET WORTH
actual Tangible Net Worth for Borrower and its Subsidiaries
as of the date hereof:
$_______________
Minimum Tangible Net Worth for Borrower and its Subsidiaries as of
the date hereof:
$_______________
SECTION 6(C)(3) -- FIXED CHARGE COVERAGE RATIO
actual Fixed Charge Coverage Ratio for Borrower and its
Subsidiaries as of the date hereof:
__.____ : 1.00
minimum Fixed Charge Coverage Ratio for Borrower and its
Subsidiaries as of the date hereof:
__.____ : 1.00
(e) There has occurred no material adverse change in the assets,
liabilities, financial condition, business or affairs of Borrower or any
of its Subsidiaries since the date of the Loan Agreement.
DATED as of ___________.
XXXXXXX & XXXXXXXXX SERVICES, INC.,
a Texas corporation
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT D - Page 2
