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EXHIBIT 10.11
FIRST AMENDMENT TO AMENDED AND RESTATED LETTER AGREEMENT
(with Borrowing Base)
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LETTER AGREEMENT (this
"Amendment") dated effective as of April 1, 1997 (the "Effective Date"), is by
and between XXXXXXXX INDUSTRIES, INCORPORATED ("Borrower"), and TEXAS COMMERCE
BANK NATIONAL ASSOCIATION, a national banking association ("Bank").
PRELIMINARY STATEMENT. Bank and Borrower have entered into an Amended And
Restated Letter Agreement dated as of April 1, 1995 ("Credit Agreement"). The
"Agreement", as used in the Credit Agreement, shall also refer to the Credit
Agreement as amended by this Amendment. All capitalized terms defined in the
Credit Agreement and not otherwise defined herein shall have the same meanings
herein as in the Credit Agreement. Bank and Borrower have agreed to amend the
Credit Agreement to the extent set forth herein, and in order to, among other
things, renew, modify and extend the Commitment.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, Bank and Borrower hereby agree as follows:
1. Revolving Credit Note. Section 1.1 of the Credit Agreement is amended
by substituting the following for the Section 1.1 of the Credit Agreement:
"Subject to the terms and conditions hereof, the Bank agrees to make
loans ("Loan" or "Loans") to Borrower from time to time before the
Termination Date, as defined in the First Amendment to Amended and
Restated Letter Agreement dated as of April 1, 1997 (the "First
Amendment"), between Bank and Borrower, not to exceed at any one time
outstanding $8,000,000.00 (the "Commitment"), Borrower having the
right to borrow, repay and reborrow. Bank and Borrower agree that
Chapter 15 of the Texas Credit Code shall not apply to-this Agreement,
the Note or any Loan. The Loans shall be evidenced by and shall bear
interest and be payable as provided in the promissory note of Borrower
dated the Effective Date, as defined in the First Amendment (together
with any and all renewals, extensions, modifications, replacements,
and rearrangements thereof and substitutions therefor, the "Note"),
which is given in renewal, modification and extension of that certain
promissory note dated April 1, 1995 maturing April 1, 1998 in the
original principal amount of $8,000.000.00 (including all prior notes
of which said note represents a renewal, extension, modification,
increase, substitution, rearrangement or replacement thereof, the
"Renewed Note"). The parties hereto agree that there is as of the
Effective Date, as defined in the First Amendment, an outstanding
principal balance of $4,000,000.00 under the Note leaving a balance as
of the Effective Date, as defined in the First Amendment, of
$4,000,000.00 under the Commitment available for Loans subject to the
terms and conditions of this Agreement. The "Note" as used in the
Credit Agreement shall also refer to the "Note" as used in this
Amendment. The purpose of the Loans is: business (working capital
support).
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2. Termination Date is hereby defined as the earlier of: (a) April 1,
2000; or (b) the date on which the maturity of the Notes is accelerated in
accordance with Section 5 of the Credit Agreement.
3. Section 2.1(c) of the Credit Agreement is amended to read "December
31, 1996" in lieu of "December 31, 1994" for the date of the last financial
statement delivered to the Bank.
4. Section 4.2(e) of the Credit Agreement is amended to have a minimum
Fixed Charge Ratio of 1.25 : 1.00 in lieu of 1.00 :1.00
5. The Credit Agreement is amended to add Exhibit A, attached hereto for
all purposes which shall be a quarterly compliance certificate as further
described therein.
6. Borrower hereby represents and warrants to the Bank that after giving
effect to the execution and delivery of this Amendment: (a) the representations
and warranties set forth in the Credit Agreement are true and correct on the
date hereof as though made on and as of such date; and (b) no Event of Default,
or event which with passage of time, the giving of notice or both would become
an Event of Default, has occurred and is continuing as of the date hereof.
7. This Amendment shall become effective as of the Effective Date upon
its execution and delivery by each of the parties named in the signature lines
below, and the "Agreement" as used in the Credit Agreement shall also refer to
the Credit Agreement as amended by this Amendment.
8. Borrower further acknowledges that each of the other Loan Documents is
in all other respects ratified and confirmed, and all of the rights, powers and
privileges created thereby or thereunder are ratified, extended, carried
forward and remain in full force and effect except as the Credit Agreement is
amended by this Amendment.
9. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
10. This Amendment shall be included within the definition of "Loan
Documents" as used in the Agreement.
11. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS AND AS APPLICABLE, THE LAWS OF THE UNITED STATES
OF AMERICA.
THIS WRITTEN AMENDMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN
AGREEMENT AS DEFINED IN SECTION 26.02(a) OF THE TEXAS BUSINESS & COMMERCE CODE,
AND REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed effective as of the Effective Date.
BORROWER: XXXXXXXX INDUSTRIES, INCORPORATED
By /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Sr. Vice President-Finance
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Address:
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BANK: TEXAS COMMERCE BANKNATIONAL
ASSOCIATION
By
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Name:
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Title:
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Address:
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