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EXHIBIT 10.2
AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT ("Amendment") dated as of August 31,
1998 (the "Amendment Effective Date") is made and entered into by and among
XXXXX INTERNATIONAL, INC. (the "Borrower"), a Delaware corporation, the banking
institutions (each, together with its successors and assigns, a "Bank" and
collectively, the "Banks") from time to time a party to the Loan Agreement (as
hereinafter defined), as amended by this Amendment, ABN AMRO BANK N.V., HOUSTON
AGENCY and DEN NORSKE BANK AS, as Co-Agents (in such capacity, together with
their successors in such capacity, collectively called the "Co-Agents") and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION (formerly known as Texas Commerce
Bank National Association), a national banking association, as agent for the
Banks (in such capacity, together with its successors in such capacity, the
"Agent").
RECITALS:
WHEREAS, the Borrower, the Banks, the Co-Agents, and the Agent are
parties to a Loan Agreement dated as of April 4, 1996, as amended by
instruments dated April 8, 1997 and December 23, 1997 (the "Loan Agreement");
and
WHEREAS, the Borrower, the Banks, the Co-Agents, and the Agent have
agreed, on the terms and conditions herein set forth, that the Loan Agreement
be amended in certain respects;
NOW, THEREFORE, IT IS AGREED:
Section 1. Definitions. Terms used herein which are defined in the
Loan Agreement shall have the same meanings when used herein unless otherwise
provided herein.
Section 2. Amendments to the Loan Agreement. On and after the
Amendment Effective Date, the Loan Agreement shall be amended as follows:
(a) The phrase "in each case, without duplication" is hereby
added to the end of the definition of "Interest Coverage Ratio" set forth in
Section 1.1 of the Loan Agreement.
(b) Section 7.3(a) of the Loan Agreement is hereby amended to
read in its entirety as follows:
(a) Debt to Total Capitalization Ratio - a Debt to Total
Capitalization Ratio of not greater than (i) 55% for the period from
the date hereof through December 31, 1998, (ii) 52.5% for the period
from January 1, 1999 through Xxxxx 00, 0000, (xxx) 50% for the period
from April 1, 1999 through June 30, 1999, (iv) 47.5% for the period
from July 1, 1999 through September 30, 1999 and (iv) 45% at all times
thereafter.
(c) A new Section 7.12 is hereby added to the Loan Agreement,
such new Section to read in its entirety as follows:
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7.12 Year 2000. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (i) the
Borrower's and any of its Material Subsidiaries' computer systems and
(ii) material equipment, in the aggregate, containing embedded
microchips (including systems and equipment supplied by others or with
which the Borrower's and any of its Material Subsidiaries' systems
interface) and the testing of all such systems and equipment will be
completed by June 30, 1999. The cost to the Borrower and its Material
Subsidiaries of such reprogramming and testing and of reasonably
foreseeable consequences of year 2000 to the Borrower and its Material
Subsidiaries (including, without limitation, reprogramming errors and
failure of others' systems or equipment, excluding the Borrower's
third party suppliers and financial institutions) will not result in
an Event of Default or a Material Adverse Effect. Except for such of
the reprogramming referred to in the preceding sentence as may be
necessary, the computer and management systems of the Borrower and its
Material Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be,
sufficient to permit the Borrower and its Material Subsidiaries to
conduct their business without a Material Adverse Effect.
Section 3. Limitations. The amendments set forth herein are limited
precisely as written and shall not be deemed to (a) be a consent to, or waiver
or modification of, any other term or condition of the Loan Agreement or any of
the other Loan Documents, or (b) except as expressly set forth herein,
prejudice any right or rights which the Banks may now have or may have in the
future under or in connection with the Loan Agreement, the Loan Documents or
any of the other documents referred to therein. Except as expressly modified
hereby or by express written amendments thereof, the terms and provisions of
the Loan Agreement, the Notes, and any other Loan Documents or any other
documents or instruments executed in connection with any of the foregoing are
and shall remain in full force and effect. In the event of a conflict between
this Amendment and any of the foregoing documents, the terms of this Amendment
shall be controlling.
Section 4. Payment of Expenses. The Borrower agrees, whether or not
the transactions hereby contemplated shall be consummated, to reimburse and
save the Co-Agents, the Agent and the Bank(s) harmless from and against
liability for the payment of all reasonable substantiated out-of-pocket costs
and expenses arising in connection with the preparation, execution, delivery
and enforcement of, or the preservation of any rights under this Amendment,
including, without limitation, the reasonable fees and expenses of any local or
other counsel for the Agent, and all stamp taxes (including interest and
penalties, if any), recording taxes and fees, filing taxes and fees, and other
similar charges which may be payable in respect of, or in respect of any
modification of, the Loan Agreement and the other Loan Documents. The
provisions of this Section shall survive the termination of the Loan Agreement
and the repayment of the Loans.
Section 5. Governing Law. This Amendment and the rights and
obligations of the parties hereunder and under the Loan Agreement shall be
construed in accordance with and be governed by the laws of the State of Texas
and the United States of America.
Section 6. Descriptive Headings, etc. The descriptive headings of the
several Sections of this Amendment are inserted for convenience only and shall
not be deemed to affect the meaning or construction of any of the provisions
hereof.
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Section 7. Entire Agreement. This Amendment and the documents referred
to herein represent the entire understanding of the parties hereto regarding
the subject matter hereof and supersede all prior and contemporaneous oral and
written agreements of the parties hereto with respect to the subject matter
hereof, including, without limitation, any commitment letters regarding the
transactions contemplated by this Amendment.
Section 8. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties on separate counterparts and all of
such counterparts shall together constitute one and the same instrument.
Complete sets of counterparts shall be lodged with the Borrower and the Agent.
Section 9. Amended Definitions. As used in the Loan Agreement
(including all Exhibits thereto) and all other instruments and documents
executed in connection therewith, on and subsequent to the Amendment Effective
Date the term (i) "Agreement" shall mean the Loan Agreement as amended by this
Amendment, and (ii) references to any and all other Loan Documents shall mean
such documents as amended as contemplated hereby.
NOTICE PURSUANT TO TEX. BUS. & COMM. CODE SECTION 26.02
THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED BY ANY OF THE
PARTIES BEFORE OR SUBSTANTIALLY CONTEMPORANEOUSLY WITH THE EXECUTION HEREOF
TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT AND REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective duly authorized offices as
of the date first above written.
XXXXX INTERNATIONAL, INC.
By: /s/ X. XXXXXXX
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Name: X. Xxxxxxx
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Title: Chief Financial Officer
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CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as the Agent and as a Bank
By: /s/ XXXX X. XXXX
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Name: Xxxx X. Xxxx
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Title: Managing Director
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ABN AMRO BANK N.V., HOUSTON AGENCY,
as Co-Agent and as a Bank
By: ABN AMRO North America, Inc.,
as agent
By: /s/ XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
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Title: Vice President
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By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
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Title: Vice President
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DEN NORSKE BANK AS,
as Co-Agent and as a Bank
By: /s/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
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Title: Senior Vice President
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By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
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Title: Senior Vice President
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BANK OF AMERICA
By: /s/ XXXXXX XXX
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Name: Xxxxxx Xxx
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Title: Managing Director
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XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
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Title: Vice President
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XXXXX XXXX XX XXXXXXXXXX N.A.
By: /s/ XXXXXX X. XXXXX, XX.
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Name: Xxxxxx X. Xxxxx, Xx.
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Title: Vice President
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BANK OF NEW YORK
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: Assistant Vice President
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FIRST UNION NATIONAL BANK (successor
to Corestates Bank, N.A.)
By: /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Senior Vice President
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