EXHIBIT 4.2
AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT (this "AMENDMENT"), dated as of August
25,1997, 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 December
20, 1996 (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
(a) increase the Maximum Commitment and (b) provide for a new financial
institution to become a Lender, all as is more fully described below.
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. MAXIMUM COMMITMENT. The definition of "Maximum Commitment" in Section 1
of the Loan Agreement is amended to provide in its entirety as follows:
MAXIMUM COMMITMENT means Two Hundred Fifty Million Dollars
($250,000,000).
2. ADDITION OF LENDER. Credit Lyonnais New York Branch is hereby added as
a Lender. The dollar amount of Credit Lyonnais New York Branch's interest in the
Maximum Commitment as of the date hereof is set forth opposite its name on its
signature page of this Amendment.
3. TRANSITION.
(a) Certain Alternate Rate Borrowings are outstanding as of the date
hereof, and the Parties do not wish to disturb such Alternate Rate Borrowings.
Notwithstanding anything in the Loan Agreement as amended by this Amendment to
the contrary, (1) a Lender with an Alternate Rate Borrowing (a "TRANSITION
BORROWING") outstanding as of the date hereof shall retain such Transition
Borrowing, with no change in its amount resulting from the change of such
Lender's Percentage effected by this Amendment, and such Lender shall be
entitled to the payment of the principal of and accrued interest on such
Transition Borrowing; (2) new Loans made after the date hereof (including the
renewal of any Transition Borrowing at the end of its Interest Period, if the
Borrower elects to renew such Loan pursuant to the terms and conditions of the
Loan Agreement, or the conversion of any Transition Borrowing) shall be made in
accordance with the Lenders' new Percentages (PROVIDED that in no event shall
any Lender have an obligation to make Loans at any one time outstanding in
excess of such Lender's Percentage of the Commitment); (3) the Agent shall
determine the maximum aggregate amount of Loans which may be outstanding for all
of the Lenders and for each Lender--after giving effect to the proviso of the
immediately preceding clause--for each day while there exists any Transition
Borrowing, and such amounts shall be the "Commitment" and each Lender's interest
in the Commitment for purposes of determining the commitment fee due under
Section 2(c) of the Loan Agreement and for the allocation of that commitment
fee; (4) if (A) an Event of Default occurs while any Transition Borrowing is
outstanding and (B) the Agent or any Lender exercises any of its remedies for
such Event of Default, then (but only for the purposes of allocating payments of
principal and interest by or on the account of the Borrower) the Percentage of a
Lender shall be such Lender's interest in all of the outstanding Loans, and (5)
for all other purposes under the Credit Documents, the Percentages of the
Lenders and the Commitment shall be determined without reference to this
Section.
(b) On the date this Amendment becomes effective, (1) Credit Lyonnais New
York Branch shall fund its Percentage of all then-outstanding Base Rate
Borrowings to the Agent and (2) the Agent shall allocate such fundings to all of
the other Lenders, to reduce their share of all then-outstanding Base Rate
Borrowings, in accordance with their respective Percentages. Notwithstanding
anything in the Loan Agreement as amended by this Amendment or the other Credit
Documents to the contrary, interest accruing on the Base Rate Borrowings through
the effective date of this Amendment shall be allocated among the Lenders in
accordance with their respective Percentages as in effect immediately before the
effective date of this Amendment.
(c) Notwithstanding anything in the Loan Agreement as amended by this
Amendment to the contrary, commitment fees accruing under SECTION 2(C) of the
Loan Agreement through the effective date of this Amendment shall be allocated
among the Lenders in accordance with their respective Percentages as in effect
immediately before the effective date of this Amendment.
4. 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:
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(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 (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 (B) the absence of any change
since December 20, 1996, in any of (x) the incumbency and signatures of the
officer or officers of the Borrower; (y) the Articles of Incorporation of the
Borrower, or (z) the Bylaws of the Borrower; and
(2) this Amendment, duly executed by the Borrower, the Lenders and
the Agent.
(b) Credit Lyonnais New York Branch shall have received a new Note, in the
maximum principal amount of $25,000,000.
(c) The Agent shall have received a legal opinion from the general counsel
for the Borrower acceptable to the Agent and the Majority Lenders.
(d) The Borrower shall have paid all accrued and unpaid fees and other
amounts in connection with this Amendment.
(e) No Default shall have occurred and be continuing.
(f) Such effectiveness shall not violate any legal requirement applicable
to the Agent or any Lender.
5. 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) and (b) 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.
6. 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
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Agreement, the other Credit Documents, or otherwise, remain in full force and
effect as of the date of this Amendment. The New Lenders hereby (a) acknowledges
receipt of copies of all of the Credit Documents (including agreements
exclusively among the Agent and the Lenders) and (b) acknowledges and agrees
that (1) it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements of the Borrower delivered to such
New Lender by the Borrower and such other documents and information as such New
Lender has deemed appropriate, made its own credit analysis and decision to
become a Lender and (2) it is a Lender for all purposes under the Credit
Documents, with all of the liabilities and obligations of a Lender with its
interest in the Maximum Commitment.
7. 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.
8. 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 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.
9. 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.
10. 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
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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.
11. 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.
12. 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,
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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.
13. THIS AMENDMENT 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.
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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
By:_________________________________
Name: XXXXXX X. XXXXXXXX
Title: CHIEF EXECUTIVE OFFICER
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TEXAS COMMERCE BANK NATIONAL ASSOCIATION, acting
in its individual capacity and as the Agent for
the Lenders named herein
By:_____________________________________
Name: XXXX X. XXXX
Title: VICE PRESIDENT
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BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION as successor to Bank of America
Illinois by merger, as a Co-Agent and a Lender
By:_______________________________________
Name: XXXXX X. XXXXXXXX
Title: MANAGING DIRECTOR
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NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By:_____________________________________
Name: XXXXXXX X. XXXXXXX, XX.
Title: VICE PRESIDENT
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ABN AMRO BANK N.V., HOUSTON AGENCY
By: ____________________________________
Name: XXXX XXXXXX
Title: VICE PRESIDENT
By: ____________________________________
Name: XXXXX X. XXX
Title: VICE PRESIDENT
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XXX XXXX XX XXX XXXX
By: __________________________
Name: XXXX XXXXXX
Title: VICE PRESIDENT
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PNC BANK, NATIONAL ASSOCIATION
By:_____________________________
Name: XXXXX X. XXXX
Title: SENIOR VICE PRESIDENT
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FIRST NATIONAL BANK OF COMMERCE
By: _________________________________
Name: XXXXXX X. XXXXXXXX
Title: ASSISTANT VICE PRESIDENT
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CREDIT LYONNAIS NEW YORK BRANCH
By: _______________________________
Name: XXXXX XXXXXXXX
Title: EXECUTIVE VICE PRESIDENT
INTEREST IN MAXIMUM COMMITMENT:
$25,000,000
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