AGREEMENT AND FOURTH AMENDMENT
TO LOAN AGREEMENT
(November 30, 1995)
THIS AGREEMENT AND FOURTH AMENDMENT TO LOAN AGREEMENT (this
"Amendment"), dated as of November 30, 1995, 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 TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a
national banking association domiciled in Houston, Xxxxxx County,
Texas, acting in its capacity as agent for the Lenders (in such
capacity, the "Agent"). The Borrower, the Lenders and the Agent
are herein sometimes called the "Parties".
Recitals:
1. The Parties have entered into a Loan Agreement dated as
of September 3, 1993 (which Loan Agreement, as amended to the
date hereof, is herein called the "Loan Agreement").
2. The Parties desire to amend the Loan Agreement in
certain respects to extend the maturity date of the Notes
thereunder; to increase the amount of credit available
thereunder; to change certain financial covenants; to permit
Borrower to repurchase a limited amount of its own stock; to
change the basis for computing applicable interest rates and to
change the basis for computing the commitment fee.
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 Certain Definitions in Section 1 of the
Loan Agreement. The following definitions in Section 1 of the
Loan Agreement are hereby amended as follows:
Margin Percentage means, on any day, the per annum
percentage corresponding to the Interest Bearing Debt to Total
Capitalization Ratio (determined as of the most recent
Calculation Date) on such day as provided below:
Interest Bearing Debt Per Annum
to Total Capitalization Ratio Percentage
40% or greater 40.0 basis points
20% to, but not including, 40% 32.5 basis points
less than 20% 25.0 basis points
Maturity Date means the maturity of the Notes, December
31, 2000, as the same may hereafter be accelerated pursuant to
the provisions of any of the Credit Documents.
Maximum Commitment means Two Hundred Million Dollars
($200,000,000).
Permitted Investments means: (a) readily marketable
securities issued or fully guaranteed by the United States of
America with maturities of not more than one year, (b) financial
instruments (including commercial paper) with maturities of not
more than 270 days of Persons, in each case, rated "Prime 2" or
better by Xxxxx'x Investors Service, Inc. or "A-2" or better by
Standard and Poor's Corporation; (c) certificates of deposit,
eurodollar deposits or repurchase obligations having a maturity
of not more than one year from the date of issuance thereof, or
tax exempt bonds backed by letters of credit, in each case,
issued by any U.S. domestic bank having capital surplus of at
least $100,000,000 or by any other financial institution
acceptable to Majority Lenders, all of the foregoing; (d) readily
marketable shares of any money market fund having total assets in
excess of $250,000,000 and not disapproved in writing by Majority
Lenders; and (e) common stock of the Borrower, not to exceed
$50,000,000 in aggregate cost; provided, that the aggregate value
of the assets subject to Section 7(a) consisting of "margin
stock" (as defined from time to time in or pursuant to Regulation
U of the Board of Governors of the Federal Reserve System, or any
successor regulation) shall never exceed 25% of the aggregate
value of all assets subject to Section 7(a).
2. Amendment of Section 2(c) of the Loan Agreement.
Section 2(c) of the Loan Agreement is amended to provide as
follows:
"(c) Commitment Fee. In consideration of the
Commitment, Borrower agrees to pay a 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) equal to 12.5 basis
points per annum on the daily average difference between the
Commitment and the aggregate principal balance of the Notes, such
fee to be due and payable to Agent for the account of 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. Lenders and
Borrower agree that Chapter 15 of the Texas Credit Code shall not
apply to this Agreement, the Notes or any Loan."
3. Amendment of Section 6(c) of the Loan Agreement.
Section 6(c) of the Loan Agreement is amended to provide as
follows:
"(c) Borrower and its Subsidiaries shall have and
maintain, on a consolidated basis, at all times:
(1) an Interest Bearing Debt to Total
Capitalization Ratio for Borrower of not greater than 0.50 to
1.00.
(2) a Tangible Net Worth for Borrower of not less
than $350,000,000.
(3) an Interest Coverage Ratio for Borrower of
not less than 2.00 to 1.00."
4. Amendment of Exhibit D to the Loan Agreement. Exhibit
D to the Loan Agreement is amended to be identical to Exhibit D
to this Amendment.
5. Conditions Precedent. This Amendment shall be
effective November 30, 1995, subject to the satisfaction, in a
manner satisfactory to the Agent, of each of the following
conditions precedent:
(a) The Agent shall have received the following, each of
which shall be in form and substance satisfactory to the Agent in
its sole discretion and duly and validly executed:
(1) A certificate of the Secretary or any Assistant
Secretary of the Borrower, dated as of the date hereof, as to (A)
the resolutions of the Board of Directors of the Borrower
authorizing the execution, delivery and performance of this
Amendment and the Notes (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, (B) the
incumbency and signatures of the officer or officers of the
Borrower; and (C) true and correct copies the Articles of
Incorporation of the Borrower, and the Bylaws of the Borrower;
(2) this Amendment, duly executed by the Borrower, the
Lenders and the Agent;
(3) Notes (the "New Notes"), in the aggregate
principal amount of $200,000,000, payable to the order of each
Lender in the amount of its Percentage of the Maximum Commitment;
(4) a current certificate from the Secretary of State
or other appropriate official of the State of Texas as to the
continued existence and good standing of Borrower; and
(5) a legal opinion from the general counsel for
Borrower acceptable to Agent and Majority Lenders.
(b) Borrower shall have paid all accrued and unpaid fees
and other amounts in connection with this Amendment.
(c) No Default shall have occurred and be continuing.
(d) Such effectiveness shall not violate any legal
requirement applicable to the Agent or any Lender.
6. Percentages. The dollar amount of each Lender's
interest in the Maximum Commitment as of the date hereof is set
forth opposite such Lender's name on the signature pages of this
Amendment. As defined in the Loan Agreement, each Lender's
Percentage is such Lender's interest in the Maximum Commitment.
7. Representations True; No Default. The 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); (b) the most
recent financial statements for Borrower and its Subsidiaries
furnished to Lenders as of the date hereof fairly present the
financial condition of Borrower and its Subsidiaries as of their
date and for the period then ended in accordance with GAAP; (c)
the proceeds of the Loans will be used to refinance existing
debt, to fund ongoing working capital requirements and for
general corporate purposes; and (d) 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.
8. Ratification. Except as expressly amended hereby, 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. The 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.
9. 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 the
Borrower shall mean the Loan Agreement as hereby amended. The
term "Notes" as used in the Loan Agreement and in the other
Credit Documents or any other instrument, agreement, document or
writing furnished to the Agent or any Lender by or on behalf of
the Borrower shall mean the New Notes executed pursuant to this
Amendment.
10. Expenses; Additional Information. The Borrower shall
pay to the Agent on demand all expenses (including reasonable
counsel's fees) incurred in connection with the preparation,
reproduction, execution and delivery of this Amendment and the
new Notes and with respect to advising the Agent as to its rights
and responsibilities under the Loan Agreement, as hereby amended.
In addition, the Borrower shall pay all costs and expenses of the
Agent and each Lender (including counsel's fees) in connection
with the enforcement of this Amendment and the New Notes.
11. Severability. If any term or provision of this
Amendment or the application thereof to any person or
circumstances shall, to any extent, be deemed invalid or
unenforceable, the remainder of this Amendment, 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 shall be valid
and enforced to the fullest extent permitted by applicable law.
Any provision of this Amendment 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 are severable.
12. INDEMNIFICATION. The Borrower shall indemnify the
Agent, the Lenders and each Affiliate thereof and their
respective directors, officers, employees and agents 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 the Borrower of the proceeds of any Loan made or Letter of
Credit issued by any Lender or growing out of or resulting from
any Credit Document or any transaction or event contemplated
therein; (b) violation by the Borrower or any of its Subsidiaries
of any law, rule, regulation or order including those relating to
Hazardous Substances, petroleum, petroleum products or petroleum
wastes; (c) any Lender or the Agent being deemed an operator of
any of the 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, or (d) any investigation, litigation or
other proceeding (including any threatened investigation or
proceeding) relating to any of the foregoing. The obligations of
the 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 and all
Letter of Credit Liabilities. Any amount to be paid under this
Section by the Borrower to the Agent or any Lender shall be a
demand obligation owing by the Borrower to the Agent or such
Lender and shall bear interest from the date of expenditure until
paid at the Past Due Rate.
13. DTPA WAIVER. The Borrower hereby waives all rights,
remedies, claims, demands and causes of action based upon or
related to the Texas Deceptive Trade Practices-Consumer
Protection Act as described in Sections 17.41 et seq. of the
Texas Business & Commerce Code, as the same pertains or may
pertain to any Credit Document or any of the transactions
contemplated therein, to the maximum extent that such rights,
etc. may lawfully and effectively be waived. In furtherance of
this waiver, the Borrower hereby represents and warrants to the
Agent and the Lenders that (a) the Borrower is represented by
legal counsel in connection with the negotiations, execution and
delivery of this Amendment; (b) the Borrower has a choice other
than to enter into this waiver in that it can obtain the Loans
from another institution or institutions, and (c) the Borrower
does not consider itself to be in a significantly disparate
bargaining position relative to the Agent and the Lenders with
respect to this Amendment.
14. RELEASE OF CLAIMS. The 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 the 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 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.
15. Miscellaneous. This Amendment (a) shall be binding
upon and inure to the benefit of the Borrower, the Agent and the
Lenders and their respective successors, assigns, receivers and
trustees (however, the 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 supersedes
all prior agreements, consents and understandings relating to
such subject matter. The headings herein shall be accorded no
significance in interpreting this Amendment.
16. THIS AMENDMENT AND THE NEW NOTES, 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 written above.
XXXXXXX & XXXXXXXXX SERVICES, INC.,
a Texas corporation
/s/ Xxxxxx X. Xxxxxxxx
By:_______________________________
Xxxxxx X. Xxxxxxxx
Chief Executive Officer
The undersigned legal counsel for the Borrower signs this
Amendment not as a party to it but solely for the purpose of
complying with the provisions of Section 17.42(a)(3) of the Texas
Deceptive Trade Practices-Consumer Protection Act described in
Section 13.
/s/ Xxxxxxxx X. Xxxxxx
__________________________________
Xxxxxxxx X. Xxxxxx
Vice President and General Counsel
Texas Bar No.: 21704000
Interest in Maximum Commitment: TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national
banking association,
$50,000,000.00 acting in its individual
capacity and as the Agent for
the Lenders named herein
/s/ Xxxx X. Xxxx
By:_____________________________
Xxxx X. Xxxx
Vice President
Interest in Maximum Commitment: NATIONSBANK OF TEXAS,NATIONAL
ASSOCIATION, a national
banking association
$40,000,000.00
/s/ C. Xxxx Xxxx
By:__________________________
C. Xxxx Xxxx
Vice President
Interest in Maximum Commitment: ABN AMRO BANK N.V. HOUSTON
AGENCY
$30,000,000.00
/s/ Xxxxxxx X. Xxxxxxxxx
By:______________________________
Xxxxxxx X. Xxxxxxxxx
Corporate Banking Officer
/s/ Xxxxxx X. Xxxxx
By:______________________________
Xxxxxx X. Xxxxx
Group Vice President
Interest in Maximum Commitment: BANK OF AMERICA ILLINOIS,
an Illinois banking
association
$30,000,000.00
/s/ Xxxxxx Xxx
By:________________________________
Xxxxxx Xxx
Vice President
Interest in Maximum Commitment: THE BANK OF NEW YORK
a New York banking
Corporation
$30,000,000.00
/s/ Xxxx X. Xxxxxx, Xx.
By:________________________________
Xxxx X. Xxxxxx, Xx.
Vice President
Interest in Maximum Commitment: PNC BANK, NATIONAL ASSOCIATION,
a national banking
association
$20,000,000.00
/a/ Xxxx Xxxxxxxx
By:______________________________
Xxxx Xxxxxxxx
Vice President
