TO LETTER OF CREDIT AGREEMENT
(November 30, 1995)
THIS AGREEMENT AND THIRD AMENDMENT TO LETTER OF CREDIT
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 entered into a Letter of Credit Agreement
dated as of September 3, 1993 (which Letter of Credit Agreement,
as amended to the date hereof, is herein called the "Letter of
Credit Agreement").
2. The Parties desire to amend the Letter of Credit
Agreement to extend the Letter of Credit Termination Date.
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. Letter of Credit Termination Date Amended. The
following definition in Section 1 of the Letter of Credit
Agreement is amended as follows:
"Letter of Credit Termination Date" means the date
which is the earlier of (a) December 31, 2000 or (b) the date of
which the Agent gives written notice to the Borrower that no
additional Letters of Credit may be requested hereunder.
2. 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 (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were duly adopted and have not been amended, superseded, revoked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 September 3, 1993, 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;
(2) this Amendment, duly executed by the Borrower, the
Lenders and the Agent; and
(3) 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.
(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.
3. Representations True; No Default. The Borrower
represents and warrants to the Agent and each Lender that (a) the
representations and warranties contained in the Letter of Credit
Agreement and in the other Loan 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 Letter of Credit 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.
4. Ratification. Except as expressly amended hereby, the
Letter of Credit 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 Letter of Credit Agreement,
the other Credit Documents, or otherwise, remain in full force
and effect as of the date of this Amendment.
5. Definitions and References. Unless otherwise defined
herein, terms used herein which are defined in the Letter of
Credit Agreement or in the other Credit Documents shall have the
meanings therein ascribed to them. The term "Agreement" as used
in the Letter of Credit Agreement and the term "Letter of Credit
Agreement" as used in the other Loan 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 Letter of
Credit Agreement as hereby amended.
6. 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 Letter of Credit Agreement, as hereby
amended. In addition, the Borrower shall pay all costs and
expenses of the Agent, the Issuer and each Lender (including
counsel's fees) in connection with the enforcement of this
Amendment.
7. 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.
8. BORROWER'S INDEMNITY. The Borrower hereby
indemnifies and holds harmless the Issuer, the Agent and each
Lender from and against any and all claims and damages, losses,
liabilities, costs or expenses which the Issuer, the Agent or any
Lender may incur (or which may be claimed against the Issuer, the
Agent or any Lender by any Person whatsoever) BY REASON OF ITS
OWN NEGLIGENCE OR OTHERWISE, in connection with the execution and
delivery of any Letter of Credit or transfer of or payment or
failure to pay under any Letter of Credit; provided that the
Borrower shall not be required to indemnify the Issuer, the Agent
or any Lender for any claims, damages, losses, liabilities, costs
or expenses to the extent, but only to the extent, caused by the
willful misconduct or gross negligence of the Issuer, the Agent
or the applicable Lender. Any amount to be paid under this
Section by the Borrower shall bear interest until paid at the
Past Due Rate.
9. 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, the Issuer 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 Letters of Credit 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, the Issuer and the Lenders with respect to this Amendment.
10. RELEASE OF CLAIMS. The Borrower hereby releases,
discharges and acquits forever the Agent, the Issuer 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.
11. Miscellaneous. This Amendment (a) shall be binding
upon and inure to the benefit of the Borrower, the Agent, the
Issuer 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.
12. THIS AMENDMENT TOGETHER WITH ALL 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 9.
/s/ Xxxxxxxx X. Xxxxxx
_________________________________
Xxxxxxxx X. Xxxxxx
Vice President and General Counsel
Texas Bar No.: 21704000
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national banking
association acting in its
individual capacity and as the
Agent for the Lenders named herein
/s/ Xxxx X. Xxxx
By:_______________________________
Xxxx X. Xxxx
Vice President
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, a national banking
association
/s/ C. Xxxx Xxxx
By:____________________________
C. Xxxx Xxxx
Vice President
ABN AMRO BANK, N.V.,
HOUSTON AGENCY
/s/ Xxxxxxx X. Xxxxxxxxx
By:_______________________________
Xxxxxxx X. Xxxxxxxxx
Corporate Banking Officer
/s/ Xxxxxx X. Xxxxx
By:_______________________________
Xxxxxx X. Xxxxx
Group Vice President
THE BANK OF NEW YORK,
a New York banking corporation
/s/ Xxxx X. Xxxxxx, Xx.
By:_______________________________
Xxxx X. Xxxxxx, Xx.
Vice President
BANK OF AMERICA ILLINOIS,
an Illinois banking association
/s/ Xxxxxx Xxx
By:________________________________
Xxxxxx Xxx
Vice President
PNC BANK, NATIONAL ASSOCIATION,
a national banking association
/s/ Xxxx Xxxxxxxx
By:_____________________________
Xxxx Xxxxxxxx
Vice President
