EXHIBIT 10.5
AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment to Amended and Restated Credit Agreement (this
"Agreement") dated April 30, 2001, effective as of the date set forth below (the
"Amendment") is among THE XXXX GROUP, INC., a Louisiana corporation (the
"Borrower"), the Subsidiaries of the Borrower listed on the signature pages
hereto as Guarantors, the banks and other financial institutions listed on the
signature pages attached hereto (the "Lenders"), BANK ONE, NA, whose main office
is in Chicago, Illinois, individually as a Lender ("Bank One"), as Issuer and as
administrative agent for the other Lenders (in such capacity, the "Agent"),
FIRSTAR BANK, N.A., individually as a Lender and as syndication agent (the
"Syndication Agent"), CREDIT LYONNAIS NEW YORK BRANCH, individually as a Lender
and as documentation agent (the "Documentation Agent") and UNION PLANTERS BANK,
N.A., individually as a Lender and as CoAgent (the "CoAgent" and, together with
the Agent, the Documentation Agent and the Syndication Agent, the "Agents").
Capitalized terms not defined herein shall have the meaning assigned to such
terms in the Credit Agreement.
INTRODUCTION
A. The Borrower, the Lenders, the Guarantors and the Agents are parties
to that certain Amended and Restated Credit Agreement dated effective as of the
Effective Date, as therein defined (the "Credit Agreement").
B. The Borrower has requested that the Agents and Lenders modify the
Credit Agreement and waive certain Events of Default.
C. The Lenders and the Agents are agreeable to such requests upon the
terms and conditions herein stated.
THEREFORE, the Borrower, the Guarantors, the Lenders and the Agents
hereby agree as follows:
ARTICLE I
CREDIT AGREEMENT
Section 1.1 Definitions. All capitalized terms used herein and not
otherwise defined shall have the meanings given in the Credit Agreement.
Section 1.2 Amendment to Section 6.17. Section 6.17 is hereby deleted
in its entirety and replaced with the following:
6.17 Prepayment of Other Indebtedness. The Borrower will not,
and will not permit any Subsidiary to (i) make voluntary
prepayments of principal or interest on any other of the
Borrower's or such Subsidiary's Indebtedness except (A) as
expressly provided herein, (B) prepayments of principal or
interest secured by liens on Property sold in accordance with
Section 6.13 hereof, or (C) in an amount not to exceed four
million and no/100 dollars ($4,000,000) in the aggregate for
Borrower and its Subsidiaries during any fiscal year of
Borrower during the term
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hereof; or (ii) amend or obtain or grant a waiver of any term
of any of such Indebtedness, without the prior written consent
of the Required Lenders other than in respect of inter-company
transfers or inter-company Indebtedness not otherwise
prohibited hereunder.
Section 1.3 Amendment to Section 6.22.2. A new sentence is hereby added
to the end of Section 6.22.2, as follows:
Notwithstanding the foregoing, in connection with the sale of
the building located in Houston, Texas, which sale has been
approved by the Agent, payment of principal and interest on
the Indebtedness secured by such building at the time of such
sale in an amount not to exceed $20,000,000 shall not be
included in the calculation of the denominator as described in
(ii) above.
Section 1.4 No waiver of Event of Default. The provisions hereof shall
not in any way be construed to waive, nor shall this Amendment in any way serve
as a waiver of any Default now or hereafter existing under the Credit Agreement
or other Loan Documents, except as expressly set forth herein.
ARTICLE II
MISCELLANEOUS; RATIFICATION
Section 2.1 Representations True; No Default. The Borrower and the
Guarantors represent and warrant, as applicable, that:
(a) The Borrower and the Guarantors represent and warrant that
this Amendment has been duly authorized, executed and delivered on
their behalf and the Credit Agreement as amended hereby, together with
each other Loan Documents to which the Borrower and each of the
Guarantors is a party, constitute valid and legally binding agreements
of the Borrower and the Guarantors, enforceable in accordance with
their terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization or moratorium or other similar law relating to
creditors' rights and by general equitable principles which may limit
the right to obtain equitable remedies (regardless of whether such
enforceability is considered in a proceeding, in equity or at law);
(b) The Borrower represents and warrants that the
representations and warranties of the Borrower contained in Article V
of the Credit Agreement are true and correct in all material respects
on and as of the date hereof as though made on and as of the date
hereof, except to the extent such representations and warranties relate
solely to an earlier date;
(c) The Guarantors represent and warrant that the
representations and warranties of the Guarantors contained in the
Guaranty are true and correct in all material respects on and as of the
date hereof as though made on and as of the date hereof, except to the
extent such representations and warranties relate solely to an earlier
date; and
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(d) The Borrower and the Guarantors represent and warrant that
after giving effect to this Amendment, there has not occurred and is
not continuing a Default or an event that with the passage of time
would constitute a Default.
Section 2.2 Ratification and Extension of Liens. The Credit Agreement,
the Notes and all other Loan Documents executed in connection therewith to which
the Borrower or any Guarantor is a party shall remain in full force and effect,
and all rights and powers created thereby or thereunder and under the other Loan
Documents to which the Borrower or any Guarantor is a party are in all respects
ratified and confirmed. All liens created by any Loan Document are hereby
regranted by the Borrower and the Guarantors to the Lenders as security for the
Obligations. The Borrower and the Guarantors agree that the obligations of the
Borrower and the Guarantors under the Credit Agreement, the Notes and the other
Loan Documents to which the Borrower or any Guarantor is a party are hereby
brought forward, renewed and extended.
Section 2.3 Expenses, Additional Information. The Borrower shall pay to
the Agent all reasonable expenses incurred in connection with the negotiation
and execution of this Amendment. The Borrower and the Guarantors shall furnish
to the Agent all such other documents, consents and information relating to the
Borrower and the Guarantors as the Agent may reasonably require to accomplish
the purposes hereof.
Section 2.4 Miscellaneous Provisions.
(a) From and after the execution and delivery of this
Amendment, the Credit Agreement shall be deemed to be amended and
modified as herein provided, but, except as so amended and modified,
the Credit Agreement and all other Loan Documents shall continue in
full force and effect.
(b) The Credit Agreement and this Amendment shall be read and
construed as one and the same instrument.
(c) Any reference in any Loan Document to the Credit Agreement
shall be a reference to the Credit Agreement, as amended by this
Amendment.
(d) This Amendment may be signed in any number of counterparts
and by different parties in separate counterparts, each of which shall
be deemed an original but all of which together shall constitute one
and the same instrument.
(e) The headings herein shall be accorded no significance in
interpreting this Amendment.
Section 2.5 Binding Effect. This Amendment shall be binding upon and
inure to the benefit of the Borrower, the Guarantors, Agents and Lenders and the
successors and assigns of the Agent and Lenders. The Borrower and the Guarantors
shall not have the right to assign its rights hereunder or any interest herein.
Section 2.6 Choice of Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, EXCEPT TO THE
EXTENT THAT THE LAWS OF THE UNITED STATES OF AMERICA AND ANY RULES, REGULATIONS
OR ORDERS ISSUED OR PROMULGATED THEREUNDER APPLICABLE TO THE AFFAIRS AND
TRANSACTIONS OF THE LENDERS OTHERWISE PREEMPT ILLINOIS LAW, IN WHICH EVENT SUCH
FEDERAL LAW SHALL CONTROL.
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EXECUTED to be effective as of the Effective Date.
THE XXXX GROUP INC.
By:
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Name: Xxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
Address:
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
E-Mail: xxx.xxxx@xxxxxxx.xxx
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GUARANTORS:
ACL Piping, Inc.
Associated Valve, Inc.
X.X. Xxxx, Inc.
C.B.P. Engineering Corp.
Eagle Industries, Inc.
Gulf Coast Equipment Rental, Inc.
IRM/NAPTech Joint Venture, L.L.C.
Lone Star Fabricators, Inc.
NAPTech PS Corporation
Prospect Industries (Holdings), Inc.
SAON Properties, Inc.
Secorp, Inc.
Xxxx Alloy Piping Products, Inc.
Xxxx Capital, Inc.
Xxxx Connex, Inc.
Xxxx Constructors, Inc.
Xxxx Energy Services, Inc.
Xxxx Fabricators, Inc.
Xxxx Xxxxxx A/DE, Inc.
Xxxx Xxxxxx Company, Inc.
Xxxx-Xxxxxx Fabrication, Inc.
Xxxx Xxxxxx Power Services, Inc.
Xxxx FVF, Inc.
Xxxx Global Energy Services, Inc.
Xxxx GRP of California
Xxxx Industrial Supply Co., Inc.
Xxxx International, Inc.
Xxxx Maintenance, Inc.
Xxxx Managed Services, Inc.
Xxxx Manufacturing and Services, Inc.
Xxxx NAPTech, Inc.
Xxxx Pipe Xxxxxxx, Inc.
Xxxx Power Services, Inc.
Xxxx Process and Industrial Group, Inc.
Xxxx Process Fabricators, Inc.
Xxxx Services Inc.
Xxxx Sunland Fabricators, Inc.
Xxxx Word Industries Fabricators, Inc.
Stone & Xxxxxxx Holding One, Inc.
Stone & Xxxxxxx Holding Two, Inc.
Stone & Xxxxxxx, Inc.
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SWINC Acquisition Four, Inc.
SWINC Acquisition Five, L.L.C.
Welding Technology and Supply Inc.
Worldwide Industrial Constructors Inc.
By:
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Name: Xxxx Xxxxxxx
Title Secretary
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BANK ONE, NA,
as Agent, as a Lender and as Issuer
By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
Address:
c/o Bank One Center, 000 Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention:
--------------------------------
Telephone: 713-751-
------------------------
Telecopy: 000-000-0000
E-Mail:
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COMMITMENT: $55,250,000
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CREDIT LYONNAIS NEW YORK BRANCH,
as Documentation Agent and as a Lender
By:
--------------------------------------
Name:
--------------------------------------
Title:
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COMMITMENT: $37,500,000
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FIRSTAR BANK, N.A., as Syndication Agent and
as a Lender
By:
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Name:
--------------------------------------
Title:
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COMMITMENT: $40,000,000
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UNION PLANTERS BANK, N.A.,
as Co-Agent and as a Lender
By:
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Name:
--------------------------------------
Title:
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COMMITMENT: $35,000,000
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BNP PARIBAS HOUSTON AGENCY
By:
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Name:
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Title:
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COMMITMENT: $25,000,000
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XXXXXX TRUST & SAVINGS BANK
By:
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Name:
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Title:
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COMMITMENT: $18,750,000
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WACHOVIA BANK, N.A.
By:
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Name:
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Title:
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COMMITMENT: $18,500,000
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XXX XXXX XX XXXX XXXXXX
By:
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Name:
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Title:
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COMMITMENT: $15,000,000
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THE MITSUBISHI TRUST & BANKING CORPORATION
By:
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Name:
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Title:
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COMMITMENT: $15,000,000
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KBC BANK N.V.
By:
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Name:
--------------------------------------
Title:
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COMMITMENT: $15,000,000
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XXXX XXXXXXXX X.X., XXXXXXX BRANCH
By:
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Name:
--------------------------------------
Title:
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COMMITMENT: $10,000,000
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XXXXX XXX XXXXXXXXXX XXXX, XXX.,
XXX XXXX BRANCH
By:
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Name:
--------------------------------------
Title:
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COMMITMENT: $7,500,000
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NATEXIS BANQUES POPULAIRES
By:
--------------------------------------
Name:
--------------------------------------
Title:
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COMMITMENT: $7,500,000
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XXXX XXX XXXXXXX XXXXXXX, XXX.,
as Lead Arranger and Sole Book Runner
By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
Address:
c/o Bank One Center, 000 Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention:
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Telephone: (713) 751-
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Telecopy: (000) 000-0000
Email:
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