Exhibit 2
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NationsBank Form of Amended and Restated Loan Agreement
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Date November 22, 1996
Between
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Borrowers: Bank:
NationsBank of Texas, N.A.
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19th Floor
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This Amended and Restated Loan Agreement ("Agreement") is made on the above date
by and between Borrowers and Bank.
1. THE LOAN.
A. Bank agrees to lend and each Borrower severally agrees to borrow an amount
not to exceed the amount set forth next to each such Borrower's name on
Schedule I attached hereto (individually, a "Loan" and collectively, the
"Loans") on the terms and conditions set forth herein and subject to the
other limitations set forth herein and in the other Loan Documents (as
defined herein). Each Loan will be evidenced by a Promissory Note in the
form of Exhibit A attached hereto executed by the applicable Borrower, or
any renewal thereof, with interest and principal payable as stated therein
(the "Notes"). The loans are renewals and restatements of (and not
novations of) those certain loans from Bank to Borrower, as evidenced by
the Loan Agreement dated November 22, 1994 between Borrowers and Bank.
B. Each Loan provides for a revolving line of credit under which a Borrower
may from time to time borrow, repay and reborrow funds; provided, however,
the aggregate amount of funds under any particular Loan that may be
outstanding at any time shall in all events be subject to the limitations
set forth on Schedule I and in the applicable Note and Collateral
Maintenance Agreement (as defined herein). The Loans shall mature on
November 22, 1998, unless sooner accelerated in accordance with the terms
hereof.
C. Bank and Borrowers acknowledge and agree that each Borrower's individual
liability hereunder shall be limited to the amount set forth on Schedule I
hereto, plus interest accrued thereon, plus any fees and expenses owing
hereunder.
2. SECURITY. Each Loan is to be secured by a pledge of certain securities
pursuant to a Pledge Agreement (the "Pledge Agreement") and a Collateral
Maintenance Agreement (the "Collateral Maintenance Agreement"), each
Agreement dated November 22, 1994 between a Borrower and Bank.
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3. REPRESENTATIONS AND WARRANTIES.
Each Borrower represents and warrants as to itself to Bank as follows:
A. Good Standing. Such Borrower (other than ____________________________) is
a trust duly established and validly existing under the laws of the State
of Texas and has all powers and permits, consents and authorizations
necessary to own and operate its properties and to carry on its business
as presently conducted. ______________ ("________") is a limited
partnership duly organized and validly existing under the laws of the
State of Texas and has all powers and permits, consents and authorizations
necessary to own and operate its properties and to carry on its business
as presently conducted.
B. Trustee/General Partner. ________ is (i) the sole trustee ("Trustee") of
such Borrower other than ____________ and (ii) the sole general partner
("General Partner") of ________.
C. Authority and Compliance. The Trustee, on behalf of such Borrower other
than ________, and _________ have full power and authority to enter into
this Agreement, to make the borrowings hereunder, to execute and deliver
the Notes and the other Loan Documents (as defined herein) to which such
Borrower is or may be a party and to incur the obligations provided for
herein, all of which have been duly authorized by all proper and necessary
action on the part of such Borrower. No consent or approval of any public
authority or person is required as a condition to the validity of this
Agreement or the Notes or the performance hereunder, and Borrower is in
compliance with all laws and regulatory requirements to which it is
subject.
D. Binding Agreement. This Agreement and the Notes constitute valid and
legally binding obligations of Borrower, enforceable in accordance with
their terms.
E. Financial Statements. The books and records of Borrower properly reflect
such Borrower's financial condition, and there has been no material change
in such Borrower's financial condition as represented in the financial
statements dated June 30, 1996 delivered to Bank.
F. Litigation. There are no proceedings pending or, to the best knowledge of
the Trustee, or _________, threatened before any court or administrative
agency which will or may have a material adverse effect on the financial
condition or operations of any such Borrower.
G. No Conflicting Agreements. There are no provisions of Borrower's (other
than _____________________) trust agreement or ________'s agreement of
limited partnership and no provisions of any existing agreement, mortgage,
indenture or contract binding on Borrower or affecting its respective
property or business, which would conflict with or in any way prevent the
execution, delivery or carrying out of the terms of this Agreement and the
Notes.
H. Taxes. All income taxes and other taxes due and payable by Borrower
through the date of this Agreement have been paid prior to becoming
delinquent.
I. Use of Proceeds. The proceeds of the Loans will be used by Borrower to (i)
refinance in part the indebtedness of Borrowers currently owing to The
First Boston Corporation and (ii) invest in such securities as such
Borrower deems reasonably prudent. Such Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying
"margin stock" as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System; provided, however that proceeds
of the Loans may also be used for the purpose of investing in other
parties for the purpose of purchasing or carrying any such "margin stock,"
or for the purpose of reducing or retiring any indebtedness incurred for
such purpose. Neither such Borrower, nor any person acting on behalf of
Borrower, has taken or will take any action which might cause the Notes or
this Agreement to violate Regulations G, T or U or any other regulation of
the Board of Governors of the Federal Reserve
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System or violate the Securities Exchange Act of 1934 or any rule or
regulation thereunder, in each case as now in effect or as the same may
hereafter be in effect.
J. Continuation of Representations and Warranties. All representations and
warranties made under this Agreement shall be deemed made at and as of the
date hereof, and at and as of the date of any future advance under any
Note.
4. CLOSING CONDITIONS
A. Conditions to Initial Advance. The obligation of Bank to execute this
Agreement and to make the initial advances hereunder shall be subject to
the satisfaction of the following conditions precedent:
1) Loan Documents. Each of this Agreement, the Notes, and the
reaffirmation of the Pledge Agreements and the Collateral Maintenance
Agreements and such other ancillary documents and instruments in
furtherance of the transaction contemplated herein as requested by Bank
in connection with the Loans (the "Loan Documents") shall have been
duly executed and delivered by the respective parties thereto, shall be
in full force and effect and shall be in form and substance
satisfactory to Bank.
2) Necessary Action. All action (whether trust, partnership or otherwise)
necessary for the valid execution, delivery and performance by each
Borrower of this Agreement and the other Loan Documents to which it is
a party shall have been duly and effectively taken, and evidence
thereof satisfactory to Bank shall have been provided to Bank.
3) Validity of Liens. The Pledge Agreements shall be effective to create
in favor of Bank a legal, valid and enforceable first priority security
interest in and lien upon the collateral described therein. All
filings, recordings, deliveries of instruments and other actions
necessary or desirable in the opinion of Bank to protect and preserve
such security interests shall have been duly effected.
4) Payment of Fees. Bank shall have received the commitment fees in the
aggregate amount of $30,000, as contemplated by Section 6 below.
B. Conditions to All Borrowings. The obligation of Bank to make any future
advance under any Note shall be subject to the satisfaction of the
following conditions precedent:
1) Representations and Warranties. The representations and warranties of
Borrowers contained herein and in any other Loan Documents shall be
true and correct as of the date of which they were made and shall also
be true and correct at and as of the time of the advance with the same
effect as if made at and as of that time (except to the extent such
representations and warranties expressly relate to an earlier date) and
Bank shall have received a certificate of a Subagent (as defined
herein), to such effect.
2) No Event of Default. No event of default hereunder or under any of the
other Loan Documents shall have occurred and be continuing and Bank
shall have received a certificate of a Subagent, to such effect.
3) No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the
reasonable opinion of Bank would make it illegal for Bank to make such
advance.
4) Proceedings and Documents. All proceedings in connection with the
transactions contemplated hereby and the other Loan Documents shall be
satisfactory in form and substance to Bank and Bank shall have received
all information and documents as Bank may reasonably request.
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5. FEES. Each Borrower shall pay to Bank an annual commitment fee in the amount
of 1/10 of one percent (0.10%) of the commitment amount set forth next to
such Borrower's name on Schedule I, such fee to be due and payable on the
date hereof and on each annual anniversary thereafter so long as the Loans
are outstanding.
6. AFFIRMATIVE COVENANTS. So long as any Borrower may borrow hereunder and
until payment in full of the Notes and performance of all other obligations
of Borrowers hereunder, each Borrower will:
A. Financial Statements. Maintain a system of accounting satisfactory to Bank
and permit Bank's officers or authorized representatives to visit such
Borrower's offices and inspect such Borrower's books of account and other
records and make photocopies thereof at such reasonable times and as often
as Bank may desire, and pay the reasonable fees and disbursements of any
accountants or other agents of Bank selected by Bank for the foregoing
purposes. Each Borrower agrees to provide Bank with the following
statements and reports:
1) Within one hundred twenty (120) days after the end of each fiscal year,
a balance sheet of such Borrower as of the end of such fiscal year,
which shall be in reasonable detail, complete and correct in all
material respects.
2) Within thirty (30) days after the end of each fiscal quarter and such
other times as Bank may reasonably request, information or statements
respecting each Borrower's trading activity in the collateral securing
the Loans.
B. Existence and Compliance. Maintain its existence and comply with all laws,
regulations and governmental requirements applicable to it or to any of
its property, business and transactions.
C. Adverse Conditions or Events. Promptly advise Bank in writing of any
condition, event or act which comes to its attention that would or might
materially affect such Borrower's financial condition, Bank's rights in or
to any collateral under this Agreement or the other Loan Documents, and of
any litigation filed against such Borrower in which the potential loss
reasonably could be anticipated to exceed $50,000.
D. Taxes. Pay all taxes as the same become due and payable unless timely
extensions have been filed or the same are being contested in good faith
by appropriate proceedings and adequate reserves are maintained.
E. Form U-1. If required by Bank, promptly furnish to Bank a statement that
conforms with the requirements of Federal Reserve Form U-1 as referred to
in Regulation U or in any other relevant Federal Reserve Form or
Regulation provided for from time to time by the Board of Governors of the
Federal Reserve System.
7. NEGATIVE COVENANTS. So long as any Borrower may borrow hereunder and until
payment in full of the Notes and performance of all other obligations of
Borrowers hereunder, no Borrower will, without the prior written consent of
Bank:
A. Transfer of Assets or Control. Permit any transfer of control or ownership
of such Borrower.
B. Amendment of Trust Agreement/Partnership Agreement. No Borrower that is a
trust shall permit any amendment or modification of its trust agreement or
a change of the trustee thereof and ________ shall not permit any
amendment or modification of its agreement of limited partnership or a
change of the general partner.
8. EVENTS OF DEFAULT. With respect to any particular Borrower, any one or more
of the following events shall be deemed an event of default hereunder as to
such Borrower:
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A. Default shall be made in the payment of any installment of principal or
interest upon any Note or any other obligation of a Borrower to Bank when
due and payable, whether at maturity or otherwise and such default shall
continue for three (3) business days thereafter; or
B. Default shall be made by a Borrower in the performance of any term,
covenant or agreement contained herein, any of the other Loan Documents,
or in any other security agreement, deed of trust, mortgage, assignment or
other contract securing payment of any indebtedness of such Borrower to
Bank and such default shall continue for thirty (30) calendar days
following notice thereof being given by Bank to such Borrower or Agent; or
C. Any representation or warranty herein contained or in any financial
statement, certificate, report or opinion or other agreement submitted to
Bank in connection with the Loans or pursuant to the requirements of this
Agreement shall prove to have been incorrect or misleading in any material
respect when made; or
D. Default shall be made by a Borrower in the performance of any term or
covenant in any agreement or instrument with any other party which would
have a material adverse effect on such Borrower or Bank's rights hereunder
or under the other Loan Documents, and such default is not remedied within
the applicable cure period; or
E. A Borrower makes an assignment for the benefit of creditors, admits in
writing its inability to pay its debts generally as they become due, files
a petition in bankruptcy, is adjudicated insolvent or bankrupt, petitions
or applies to any tribunal for the appointment of any receiver or any
trustee for it or any substantial part of its property, commences any
action relating to a Borrower or any reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect, or if there is commenced
against a Borrower any such action, or a Borrower by any act indicates its
consent to or approval of any trustee for such Borrower or any substantial
part of its property, or suffers any such receivership or trustee to
continue undischarged; or
F. Without the prior written consent of Bank, a Borrower that is a trust is
at any time revoked, terminated or liquidated or ________ is dissolved or
liquidated or ______________ dies.
Upon the happening of any of the foregoing events of default which shall be
continuing, Bank may at its option declare all outstanding principal and
unpaid interest on the applicable Loan and any other indebtedness of the
particular defaulting Borrower to Bank to be immediately due and payable, and
Bank shall have no further obligation to fund advances hereunder to such
Borrower. Upon such declaration by Bank, Bank shall have all rights and
remedies available under the Loan Documents as well as those available at law
or in equity. Notwithstanding the foregoing, upon the occurrence of an event
of default described in Section 8.E. to any particular Borrower, the entire
outstanding principal and unpaid interest on the Loan and all other
indebtedness of such Borrower to Bank shall be immediately and automatically
due and payable, without notice to such Borrower of any kind and Bank's
obligation to make advances to such Borrower shall immediately terminate.
9. APPOINTMENT OF AGENT. Each Borrower hereby appoints and designates
_____________ as agent ("Agent") for and on behalf of such Borrower with
respect to all matters arising under or in connection with this Agreement,
the other Loan Documents and the applicable Loan hereunder including, without
limitation, requesting and receiving advances, making payments on the
applicable Loan, negotiating, executing and delivering modifications or
renewals of the Loan Documents, receiving notices from Bank, delivering such
other documents or instruments as the Bank may request in connection with the
Loans, and generally communicating with Bank regarding such Borrower's
obligations hereunder. Any funds advanced hereunder may be distributed to
Agent who shall have responsibility to distribute such funds to the
applicable Borrower. Agent is hereby granted full power and authority to
bind each Borrower in respect of any term, condition, covenant or undertaking
hereunder. Bank shall be entitled to rely on the appointment without any
independent verification. Each Borrower hereby further appoints and
designates each and any of ▇▇▇▇▇▇
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on behalf of such Borrower to perform all administrative functions under the
Loan Documents, including submitting advance requests, receiving and sending
notices and delivering certificates on behalf of such Borrower. Borrowers
shall not remove or otherwise change the Agent without the prior written
consent of Bank. The appointment hereunder is coupled with an interest and
irrevocable.
10. MISCELLANEOUS.
A. Expenses. Each Borrower severally agrees to pay all out-of-pocket expenses
of Bank in connection with this Agreement and the other Loan Documents and
the collection of its applicable Note including, without limitation, the
administration, enforcement and realization upon any collateral or
guaranty. Each Borrower severally also agrees to pay all reasonable
attorneys' fees and all expenses incurred in recording the documents
securing its applicable Loan.
B. Cumulative Rights and No Waiver. Each and every right granted to Bank
hereunder or under any other document delivered hereunder or in connection
herewith, or allowed it by law or equity shall be cumulative of and may be
exercised in addition to any and all other rights of Bank, and no delay in
exercising any right shall operate as a waiver thereof, nor shall any
single or partial exercise by Bank of any right preclude any other or
future exercise thereof or the exercise of any other right. Any of the
foregoing covenants and agreements may be waived by Bank but only in
writing signed by a Vice President or higher level officer of Bank.
Borrower expressly waives any presentment, demand, protest or other notice
of any kind.
No notice to or demand on a Borrower in any case shall, of itself, entitle
such or any other Borrower to any other or further notice or demand in
similar or other circumstances. No delay or omission by Bank in exercising
any power or right hereunder shall impair any such right or power or be
construed as a waiver thereof or any acquiescence therein, nor shall any
single or partial exercise of any such power preclude other or further
exercise thereof, or the exercise of any other right or power hereunder.
C. Maximum Interest. Notwithstanding any other provision contained in this
Agreement, Bank does not intend to charge and no Borrower shall be
required to pay any amount of interest or other fees or charges that is in
excess of the maximum permitted by applicable law. Each Borrower agrees
that during the full term hereof, the maximum lawful interest rate for the
obligations hereunder as determined under Texas law shall be the indicated
rate ceiling as specified in Article 5069-1.04 of the V.A.T.S. Further, to
the extent that any other lawful rate ceiling exceeds the rate ceiling so
determined, then the higher rate ceiling shall apply. Any payment in
excess of such maximum shall be refunded to the applicable Borrower or
credited against principal, at the option of Bank.
D. Applicable Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and interpreted in accordance with
the laws of the State of Texas (without regard to its conflicts of law
provisions).
E. Notice. Except as otherwise provided in this Agreement, any notices or
communications required or permitted hereunder shall be in writing and
shall be deemed to have been given (i) the day it is personally delivered,
if sent by hand or expedited delivery service, or (ii) five days after it
is mailed, if sent by certified or registered mail.
F. Amendment. No modification, consent, amendment or waiver of any provision
of this Agreement, nor consent to any departure by a Borrower therefrom,
shall be effective unless the same shall be in writing and signed by a
Vice President or higher level officer of Bank, and then shall be
effective only in the specific instance and for the purpose for which
given. This Agreement is binding upon each Borrower, its successors and
assigns, and inures to be benefit of Bank, its successors and assigns.
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G. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM
BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING
ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW). THE RULES OF PRACTICE AND PROCEDURE
FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND
MEDIATION SERVICES, INC. (J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH
BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL.
JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY
OR CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION
OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN DALLAS, TEXAS AND
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ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS
UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN
THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION
HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF
CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP
TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO
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(I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR
(II) BE A WAIVER BY THE BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III)
LIMIT THE RIGHT OF THE BANK (A) TO EXERCISE SELF HELP REMEDIES SUCH AS
(BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR
PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL
OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF,
WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE BANK MAY
EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN
SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
AGREEMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE
INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY
PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE
MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
H. NOTICE OF FINAL AGREEMENT. THIS WRITTEN LOAN AGREEMENT REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
NATIONSBANK OF TEXAS, N.A. TRUST
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By: By:
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Vice President, Private Banking , Trustee
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TRUST
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By:
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, Trustee
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TRUST
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By:
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, Trustee
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TRUST
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By:
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, Trustee
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TRUST
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By:
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, Trustee
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, LTD.
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By:
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,
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General Partner
The undersigned hereby acknowledges appointment as Agent for the Borrowers
hereunder.
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SCHEDULE I
Borrower Maximum Loan Amount
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$
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$
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$
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$
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$
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$
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$
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$
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