AGREEMENT AND FOURTH AMENDMENT TO CREDIT AGREEMENT
AGREEMENT
AND FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS
AGREEMENT
AND FOURTH AMENDMENT TO CREDIT AGREEMENT
(this
“Amendment”),
dated
as of November 30, 2007, is made and entered into by and among LUFKIN
INDUSTRIES, INC., a
Texas
corporation (the “Borrower”)
and
JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION (“JPMCB”),
as
the Lender, as the Issuing Bank, and as the Administrative Agent under the
Credit Agreement referred to below (JPMCB, in all such capacities, the
“Bank”).
The
Borrower and the Bank are herein sometimes called the “Parties”.
Preliminary
Statements.
The
Parties entered into a Credit Agreement dated as of December 30, 2002, an
Agreement and First Amendment to Credit Agreement dated as of June 30, 2004,
an
Agreement and Second Amendment to Credit Agreement dated as of February 1,
2005,
and an Agreement and Third Amendment to Credit Agreement dated as of December
30, 2005 (such Credit Agreement, as so amended, the “Credit
Agreement”).
Unless defined herein, terms used herein which are defined in the Credit
Agreement shall have the meanings therein ascribed to them. The Borrower
has
asked the Bank (i) to increase to $40,000,000 the amount of credit available
under the Note and (ii) to extend the Maturity Date as defined in the Credit
Agreement and the final date as of which Letters of Credit under the Credit
Agreement may be requested. The Bank is willing to grant that increase and
those
extensions, all upon the terms and conditions set forth in this Amendment.
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. Commitments.
The
aggregate amount of the Lenders' Commitments as of the date of this Amendment
is
$40,000,000, all of which is the Commitment of JPMCB.
2. Amendment
of Definitions.
The
definition of “Maturity Date” set forth in Section
1.01
of the
Credit Agreement is hereby amended to provide in its entirety as follows:
“"Maturity
Date"
means
the first to occur of (a) the date the Obligations become due pursuant to
Article
VII
and (b)
December 31, 2010.”
3. Amendment
of Section 2.04(c).
The
first sentence of Section 2.04(c) is hereby amended to provide in its entirety
as follows:
“Each
Letter of Credit shall expire at or prior to the close of business on December
31, 2012.”
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 Bank, of each of the following
conditions precedent:
(a) The
Bank
shall have received counterparts of this Amendment, duly executed by each
of the
Parties.
(b) The
Bank
shall have received a promissory note of the Borrower, signed by an authorized
representative of the Borrower, payable to the order of JPMCB in the amount
of
JPMCB’s Commitment.
(c) The
Bank
shall have received such documents, resolutions, and certificates as the
Bank
may reasonably request relating to the organization, existence and good standing
of the Borrower, the authorization of the Transactions and any other legal
matters relating to the Borrower, this Agreement, the other Loan Documents,
or
the Transactions, all in form and substance satisfactory to the
Bank.
(d) The
Bank
shall have received a certificate signed by a Financial Officer of the Borrower
certifying that
(i) Since
December 31, 2006, there has been no material adverse change in the assets,
liabilities, financial condition, business or affairs of the Borrower other
than
as disclosed in writing to the Administrative Agent before the execution
of this
Amendment. Each such written disclosure shall be included in the definition
of
“Disclosed Matter” for purposes of the Credit Agreement and this Amendment.
Since December 31, 2006, there has occurred no change, event, circumstance,
or
condition in or with respect to the assets, liabilities, financial condition,
business or affairs or the Parent Company and its Subsidiaries, taken as
a
whole, which, individually or in the aggregate with all other such changes,
events, circumstances and conditions occurring since September 30, 2005,
could
reasonably be expected to result in a Material Adverse Effect, except for
Disclosed Matters;
(ii) The
representations and warranties of the Borrower set forth in the Credit Agreement
are true and correct (except to the extent such representations and warranties
expressly relate solely to an earlier date);
(iii) The
Borrower has no material domestic Subsidiary that has not executed and delivered
to the Bank a Guaranty;
(iv) The
Borrower has no material international Subsidiary that has not executed and
delivered to the Bank a Guaranty; and
(v) No
Default has occurred and is continuing.
(e) No
Legal Bar.
The
effectiveness of this Amendment shall not violate any Legal Requirement
applicable to the Bank.
5. Representations
True; No Default.
The
Borrower represents and warrants to the Bank that
(a) the
representations and warranties contained in the Credit Agreement are true
and
correct on and as of the date of this Amendment as though made on and as
of such
date (except to the extent such representations and warranties expressly
relate
solely to an earlier date);
(b) no
event
has occurred and is continuing which consti-tutes a Default under the Credit
Agreement;
(c) the
execution, delivery and performance of this Amendment have
been
duly authorized by all necessary corporate action on the part of the Borrower;
(d) this
Amendment has been duly executed and delivered by the Borrower and constitutes
the legal, valid and binding obligations of the Borrower, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered
in
a proceeding in equity or at law;
and
(e) there
are
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its consolidated Subsidiaries
(i) as to which there is a reasonable possi-bility of an adverse
determination and that, if adversely deter-mined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect
(other
than the Disclosed Matters), or (ii) that involve this Agreement, any of
the other Loan Documents, any Collateral, or the Transactions.
6. Ratification.
Except
as expressly amended (or, in the case of the Note, superseded) hereby, the
Credit Agreement, as hereby amended, and the other Loan Do-cuments 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 Credit Agreement and the other Loan
Documents remain in full force and effect as of the date of this Amendment
and
after giving effect to it.
7. Definitions
and References.
Unless
otherwise defined herein, terms used herein which are defined in the Credit
Agreement shall have the meanings therein ascribed to them. The term “Agreement”
as used in the Credit Agreement and the term “Credit Agreement” as used in the
other Loan Documents or any other instrument, document or writing furnished
to
the Bank by or on behalf of the Borrower shall mean the Credit Agreement
as
hereby amended.
8. Expenses;
Additional Information.
The
Borrower shall pay to the Bank on demand all expenses (including reasonable
counsel's fees) incurred in connection with the preparation, reproduction,
execution and delivery 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 that 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. Miscellaneous.
This
Amendment (a) shall be binding upon and inure to the benefit of the Parties
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 Bank); (b) may be modified or amended only by a writing
signed by each of the Parties; (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 and delivered by facsimile or other electronic
transmission, and may be executed in several counterparts, and by the Parties
on
separate counter-parts, 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, (e) embodies the entire agreement
and
under-standing among the Parties with respect to the subject matter hereof
and
supersedes all prior agreements, consents and understandings relating to
such
subject matter, and (f) is a Loan Document. The headings herein shall be
accorded no significance in inter-preting this Amendment.
11. ENTIRE
AGREEMENT.
THIS
AMENDMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES AS TO THE SUBJECT
MATTER HEREOF 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.
LUFKIN
INDUSTRIES, INC.,
a
Texas corporation
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By:
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/s/
X. X. Xxxxxx
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Name:
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X.
X. Xxxxxx
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Title:
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Vice
President/Treasurer/Chief Financial
Officer
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JPMORGAN
CHASE BANK, N.A.,
as Lender, as Issuing Bank, and as Administrative Agent under
the Credit
Agreement
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By:
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/s/
Xxxx Xxxxxxx
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Name:
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Xxxx
Xxxxxxx
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Title:
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Senior
Vice President
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