EXHIBIT 10.12
SECOND AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
(the "AMENDMENT"), dated as of December 10, 1997, is between SYNTRON, INC. (the
"COMPANY"), and XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION (the "BANK").
R E C I T A L S:
A. The Company and the Bank entered into that certain Amended and
Restated Loan Agreement (as heretofore amended as of April 30, 1997 and as
hereafter amended, modified, or supplemented from time to time, the
"AGREEMENT"), dated as of December 6, 1996, pursuant to which the Bank agreed to
make available to the Company revolving credit loans.
B. The Company and the Bank now desire to amend the Agreement to
increase the Revolving Credit Commitment, to change the rate of interet
applicable to Floating Rate Borrowings, and as may otherwise herein be set
forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows intending to be legally
bound:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby.
ARTICLE II
AMENDMENTS
Section 2.1 AMENDMENTS TO SECTION 1.1. (a) Effective as of the date
hereof, the reference to "$12,000,000" contained in the definition of the term
"REVOLVING CREDIT COMMITMENT" is hereby amended to read "$22,000,000".
(b) Effective as of the date hereof, the definition of the term
"SELECTED RATE" is hereby amended and restated in its entirety to read
as follows:
"SELECTED RATE" means a rate of interest equal to either (a) the
Adjusted Eurodollar Rate, with respect to all Eurodollar Borrowings or
(b) the Prime Rate MINUS one-half of one percent, with respect to all
Floating Rate Borrowings, which rate shall be applicable to the
Principal Balance under the Revolving Credit Note, or portions thereof,
and shall be designated by the Company in accordance with SECTION 2.5
hereof, subject to the limitations of ARTICLE IV hereof.
Section 2.2 AMENDMENT TO SECTION 9.5. Section 9.5 is amended by adding
the following phrase at the end thereof:
", except that during the 1997 fiscal year, the Borrower may make
aggregate Capital Expenditures not to exceed $9,500,000."
Section 2.3 REFERENCES TO PRIME RATE. Effective as of the date hereof,
all references in the Agreement to "at the Prime Rate" are hereby amended to
read "based on the Prime Rate".
Section 2.4 AMENDMENT TO EXHIBIT A. Effective as of the date hereof,
EXHIBIT "A" to the Agreement is hereby amended to conform to ANNEX "I", attached
hereto.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS. The effectiveness of this Amendment is subject
to the satisfaction of the following conditions precedent:
(a) The Bank shall have received the Revolving Credit Note
executed by the Company and dated as of a date satisfactory to the Bank.
(b) The representations and warranties contained herein and in
all other Loan Documents, as amended hereby, shall be true and correct
as of the date hereof as if made on the date hereof.
(c) No Event of Default shall have occurred and be continuing and
no event or condition shall have occurred that with the giving of notice
or lapse of time or both would be an Event of Default.
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments, and other legal matters incident thereto shall be
satisfactory to the Bank and its legal counsel.
ARTICLE IV
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
Section 4.1 RATIFICATIONS. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and the other Loan Documents and except as expressly
modified and superseded by this Amendment, the terms and provisions of the
Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. The Company and the Bank agree that the
Agreement
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as amended hereby shall continue to be legal, valid, binding and enforceable in
accordance with its terms.
Section 4.2 REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants to the Bank that (i) the execution, delivery and
performance of this Amendment and any and all other Loan Documents executed or
delivered in connection herewith have been authorized by all requisite corporate
action on the part of the Company and will not violate the articles of
incorporation or bylaws of the Company, (ii) the representations and warranties
contained in the Agreement, as amended hereby, and any other Loan Document are
true and correct on and as of the date hereof as though made on and as of the
date hereof, (iii) no Event of Default has occurred and is continuing and no
event or condition has occurred that with the giving of notice or lapse of time
or both would be an Event of Default, and (iv) the Company is in full compliance
with all covenants and agreements contained in the Agreement as amended hereby.
ARTICLE V
MISCELLANEOUS
Section 5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Amendment or any other Loan Document
including any Loan Document furnished in connection with this Amendment shall
survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by the Bank or any closing shall affect the
representations and warranties or the right of the Bank to rely upon them.
Section 5.2 REFERENCE TO AGREEMENT. Each of the Loan Documents,
including the Agreement and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Agreement as amended hereby, are hereby amended
so that any reference in such Loan Documents to the Agreement shall mean a
reference to the Agreement as amended hereby.
Section 5.3 EXPENSES OF THE BANK. The Company agrees to pay on demand
all reasonable costs and expenses incurred by the Bank in connection with the
preparation, negotiation, and execution of this Amendment and the other Loan
Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including without limitation the costs and fees of the
Bank's legal counsel, and all reasonable costs and expenses incurred by the Bank
in connection with the enforcement or preservation of any rights under the
Agreement, as amended hereby, or any other Loan Document, including without
limitation the costs and fees of the Bank's legal counsel.
Section 5.4 SEVERABILITY. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
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Section 5.5 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS
EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE
IN HOUSTON, XXXXXX COUNTY, TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Section 5.6 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and
shall inure to the benefit of the Bank and the Company and their respective
successors and assigns, except the Company may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of the Bank.
Section 5.7 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
Section 5.8 EFFECT OF WAIVER. No consent or waiver, express or implied,
by the Bank to or for any breach of or deviation from any covenant, condition or
duty by the Company shall be deemed a consent or waiver to or of any other
breach of the same or any other covenant, condition or duty.
Section 5.9 HEADINGS. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 5.10 NON-APPLICATION OF CHAPTER 346 OF TEXAS FINANCE CODE. The
provisions of Chapter 346 of the Texas Finance Code (Vernon's Annotated Texas
Statutes) are specifically declared by the parties not to be applicable to this
Amendment or any of the Loan Documents or the transactions contemplated hereby.
Section 5.11 ENTIRE AGREEMENT. THIS AMENDMENT, THE AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG
THE PARTIES HERETO.
Section 5.12 ARBITRATION. This Amendment and the Loan Documents are
subject to the arbitration provisions found in Section 12.16 of the Agreement.
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Executed as of the date first written above.
COMPANY:
SYNTRON, INC.
By:
Xxxxxxx X. Xxxxx
Chairman
BANK:
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
Xxxxx X. Xxxxxxxx
Vice President
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The undersigned in its capacity as a guarantor hereby consents to the
execution of this Second Amendment to Amended and Restated Loan Agreement
pursuant to which the Revolving Credit Commitment shall be increased from
$12,000,000 to $22,000,000 and agrees that its guaranty issued pursuant to that
ceratin Limited Guaranty Agreement dated December 6, 1996 (the "GUARANTY") shall
remain in full force and effect and continue to be the legal, valid and binding
obligation of the undersigned enforceable in accordance with its terms to
guaranty the Obligations as herein modified and extended. Notwithstanding
anything to the contrary contained in the Guaranty, the undersigned hereby
irrevocably waives any and all rights it may now or hereafter have under any
agreement, at law or in equity (including, without limitation, any law
subrogating the undersigned to the rights of Bank) to assert any claim against
or seek contribution, indemnification or any other form of reimbursement from
the Company or any other party liable for payment of any or all of the
indebtedness guaranteed under the Guaranty for any payment made by the
undersigned under or in connection with the Guaranty or otherwise.
GUARANTOR:
TECH-SYM CORPORATION
By:
Xxxxxxx X. Xxxxx
Chairman of the Board and President
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The undersigned in its capacity as a guarantor hereby consents to the
execution of this Second Amendment to Amended and Restated Loan Agreement
pursuant to which the Revolving Credit Commitment shall be increased from
$12,000,000 to $22,000,000 and agrees that its guaranty issued pursuant to that
certain Guaranty Agreement dated December 6, 1996 (the "GUARANTY") shall remain
in full force and effect and continue to be the legal, valid and binding
obligation of the undersigned enforceable in accordance with its terms to
guaranty the Obligations as herein modified and extended. Notwithstanding
anything to the contrary contained in the Guaranty, the undersigned hereby
irrevocably waives any and all rights it may now or hereafter have under any
agreement, at law or in equity (including, without limitation, any law
subrogating the undersigned to the rights of Bank) to assert any claim against
or seek contribution, indemnification or any other form of reimbursement from
the Company or any other party liable for payment of any or all of the
indebtedness guaranteed under the Guaranty for any payment made by the
undersigned under or in connection with the Guaranty or otherwise.
GUARANTOR:
GEOSCIENCE CORPORATION
By:
Xxxxxxx X. Xxxxx
President
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ANNEX I
REVOLVING CREDIT PROMISSORY NOTE
$22,000,000.00 Houston, Texas December 10, 1997
FOR VALUE RECEIVED, the undersigned, SYNTRON, INC., a Delaware corporation
("MAKER"), hereby promises to pay to the order of XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, a national banking association ("PAYEE"), at its offices
at 1000 Louisiana, Houston, Xxxxxx County, Texas, in lawful money of the United
States of America, the principal sum of TWENTY-TWO MILLION AND NO/100 DOLLARS
($22,000,000.00), or so much thereof as may be advanced and outstanding
hereunder, together with interest on the outstanding principal balance from day
to day remaining, at a varying rate per annum which shall from day to day be
equal to the lesser of (a) the Maximum Rate (hereinafter defined) or (b) the
Selected Rate (as defined in the Agreement); PROVIDED, HOWEVER, if at any time
the rate of interest specified in clause (b) preceding shall exceed the Maximum
Rate, thereby causing the interest rate hereon to be limited to the Maximum
Rate, then any subsequent reduction in the Selected Rate shall not reduce the
rate of interest hereon below the Maximum Rate until the total amount of
interest accrued hereon equals the amount of interest which would have accrued
hereon if the rate specified in clause (b) preceding had at all times been in
effect. Accrued and unpaid interest computed on the outstanding principal
balance hereof from day to day outstanding shall be due and payable on (i) the
last day of each respective Interest Period with respect to such respective
Eurodollar Borrowing (as such terms are defined in the Agreement) and (ii) on
the first day of each calendar month with respect to Floating Rate Borrowings
(as such term is defined in the Agreement). All principal of and accrued and
unpaid interest on this Note shall be due and payable on the Revolving Credit
Termination Date (as defined in the Agreement), and at any earlier maturity
(regardless of how such maturity is brought about, whether by acceleration or
otherwise). All past due principal and interest shall bear interest at the
Default Rate (hereinafter defined).
As used in this Note, the following terms shall have the respective meanings
indicated below:
"AGREEMENT" means that certain Amended and Restated Loan
Agreement dated December 6, 1996, between Maker and Payee, as the same has
been amended by that certain First Amendment to Loan Agreement, dated April
30, 1997 and that certain Second Amendment to Loan Agreement of even date
herewith, as the same may be further amended, restated, modified,
supplemented or otherwise changed from time to time.
"DEFAULT RATE" means the Maximum Rate of, if no Maximum Rate
exists, the sum of the Prime Rate in effect from day to day plus five
percent.
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"MAXIMUM RATE" means the maximum rate of nonusurious interest
permitted from day to day by applicable law, including as to Article
5069-1D.001, Vernon's Texas Civil Statutes (and as the same may be
incorporated by reference in other Texas statutes), but otherwise without
limitation, that rate based upon the "applicable rate ceiling" and
calculated after taking into account any and all relevant fees, payments,
and other charges in respect of this Note which are deemed to be interest
under applicable law.
"PRIME RATE" means that variable rate of interest per annum
established by Payee from time to time as its "prime rate." Such rate is set
by Payee as a general reference rate of interest, taking into account such
factors as Payee may deem appropriate, it being understood that many of
Payee's commercial or other loans are priced in relation to such rate, that
it is not necessarily the lowest or best rate charged to any customer and
that Payee may make various commercial or other loans at rates of interest
having no relationship to such rate.
This Note is the Note provided for in the Agreement. Maker may prepay the
principal of this Note upon the terms and conditions specified in the Agreement.
Maker may borrow, repay, and reborrow hereunder upon the terms and conditions
specified in the Agreement.
Notwithstanding anything to the contrary contained herein, no provisions of
this Note shall require the payment or permit the collection of interest in
excess of the Maximum Rate. If any excess of interest in such respect is herein
provided for, or shall be adjudicated to be so provided, in this Note or
otherwise in connection with this loan transaction, the provisions of this
paragraph shall govern and prevail, and neither Maker nor the sureties,
guarantors, successors or assigns of Maker shall be obligated to pay the excess
amount of such interest, or any other excess sum paid for the use, forbearance,
or detention of sums loaned pursuant hereto. If for any reason interest in
excess of the Maximum Rate shall be deemed charged, required or permitted by any
court of competent jurisdiction, any such excess shall be applied as a payment
and reduction of the principal of indebtedness evidenced by this Note; and, if
the principal amount hereof has been paid in full, any remaining excess shall
forthwith be paid to Maker. In determining whether or not the interest paid or
payable exceeds the Maximum Rate. Maker and Payee shall, to the extent permitted
by applicable law, (i) characterize any non-principal payment as an expense,
fee, or premium rather than as interest, (ii) exclude voluntary prepayments and
the effects thereof, and (iii) amortize, prorate, allocate, and spread in equal
or unequal parts the total amount of interest throughout the entire contemplated
term of the indebtedness evidenced by this Note so that the interest for the
entire term does not exceed the Maximum Rate.
If a default occurs in the payment of principal, interest or any other
amounts due under this Note, or upon the occurrence of any other Event of
Default, as such term is defined in the Agreement, the holder hereof may, at its
option, take any and all action available to the holder hereof to enforce
payment and performance of this Note, under this Note, the Agreement, the Loan
Documents, as such term is defined in the Agreement, at law, in equity or
otherwise. All such remedies shall be cumulative and not exclusive. Without
limiting the generality of the foregoing, the holder hereof may:
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(i) declare the entire unpaid principal balance of and accrued
and unpaid interest on this Note immediately due and payable without
notice, demand or presentment, all of which are hereby waived, and upon
such declaration, the same shall become and shall be immediately due and
payable; provided, however, that upon the occurrence of an Event of
Default under Sections 9.01(d) or (e) of the Agreement, the entire
unpaid principal balance of and accrued and unpaid interest on this Note
shall become immediately due and payable without notice, demand or
presentment, all of which are without notice, demand or presentment, all
of which are hereby waived, and upon such declaration, the same shall
become and shall be immediately due and payable;
(ii) foreclose or otherwise enforce all liens or security interest
securing payment hereof, or any part hereof;
(iii) pursue Maker, any guarantor, surety endorser or other party
ever liable for any amounts due and owing under this Note by whatever
legal means are available to the holder hereof; and
(iv) setoff against this Note any amounts owed by the holder
hereof to Maker.
If the holder hereof expends any effort in any attempt to enforce
payment of all or any part of installment of any sum due the holder hereunder,
or if this Note is placed in the hands of an attorney for collection, or if it
is collected through any legal proceedings, Maker agrees to pay all costs,
expenses, and fees incurred by the holder, including all reasonable attorneys'
fees.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
THIS NOTE IS PERFORMABLE IN XXXXXX COUNTY, TEXAS. ANY ACTION OR PROCEEDING UNDER
OR IN CONNECTION WITH THIS NOTE AGAINST MAKER OR ANY OTHER PARTY EVER LIABLE FOR
PAYMENT OF ANY SUMS OF MONEY PAYABLE ON THIS NOTE MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT IN XXXXXX COUNTY, TEXAS. MAKER AND EACH SUCH OTHER PARTY HEREBY
IRREVOCABLY (I) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND
(II) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY
SUCH ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF PAYEE TO BRING ANY
ACTION OR PROCEEDING AGAINST MAKER OR ANY OTHER PARTY LIABLE HEREUNDER OR WITH
RESPECT TO ANY COLLATERAL IN ANY STATE OR FEDERAL COURT IN ANY OTHER
JURISDICTION. ANY ACTION OR PROCEEDING BY MAKER OR ANY OTHER PARTY LIABLE
HEREUNDER AGAINST PAYEE SHALL BE BROUGHT ONLY IN A COURT LOCATED IN XXXXXX
COUNTY, TEXAS.
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Maker and each surety, guarantor, endorser, and other party ever liable
for payment of any sums of money payable on this Note jointly and severally
waive notice, presentment, demand for payment, protest, notice of protest and
non-payment or dishonor, notice of acceleration, notice of intent to accelerate,
notice of intent to demand, diligence in collecting, grace, and all other
formalities of any kind, and consent to all extensions without notice for any
period or periods of time and partial payments, before or after maturity, and
any impairment of any collateral securing this Note, all without prejudice to
the holder. The holder shall similarly have the right to deal in any way, at any
time, with one or more of the foregoing parties without notice to any other
party, and to grant any such party any extensions of time for payment of any of
said indebtedness, or to release or substitute part or all of the collateral
securing this Note, or to grant any other indulgences or forebearances
whatsoever, without notice to any other party and without in any way affecting
the personal liability of any party hereunder.
This Note is executed in renewal, extension, modification and
rearrangement of, but not in discharge of, that certain promissory note dated
April 30, 1997, executed by the Maker and payable to the order of the Payee in
the original principal amount of $12,000,000.
SYNTRON, INC.
By:
Xxxxxxx X. Xxxxx
Chairman
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