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EXHIBIT 10.20
FIRST AMENDMENT TO LOAN AGREEMENT
AND OTHER LOAN DOCUMENTS
THIS FIRST AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS (this
"Amendment") is made and entered into this 3rd day of May, 1996, by and among
XXXXXX XXXXX GROUP, L.P., a Delaware limited partnership (the "Company"), BEC
GROUP, INC., a Delaware corporation (the "Guarantor"), and FIRST INTERSTATE
BANK OF TEXAS, N.A., a national banking association (the "Bank").
PRELIMINARY STATEMENTS
A. The Company, Xxxxxx Eyecare Corporation, a Delaware
corporation (the "Original Guarantor"), and the Bank have entered into that
certain Loan Agreement, dated March 31, 1995 (the "Loan Agreement");
B. The Original Guarantor desires to (i) sell a portion of its
assets to, and in connection therewith, merge with and into Essilor Acquisition
Corporation (the "Merger Transaction"), and (ii) transfer its remaining assets
not sold to Essilor Acquisition Corporation in connection with the Merger
Transaction to the Guarantor (the "Transfer");
C. In connection with the Merger Transaction and Transfer, the
Original Guarantor desires to be released from its obligations under the Loan
Agreement and the Other Loan Documents, and the Guarantor desires to assume all
of such obligations; and
D. The Company, the Original Guarantor, the Guarantor and the
Bank desire to amend the Loan Agreement and the other Loan Documents (as
defined in the Loan Agreement) as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
1.01 Capitalized terms used in this Amendment are defined in the
Loan Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
AMENDMENTS
2.01 AMENDMENT TO PREAMBLE OF THE LOAN AGREEMENT. Effective as of
the date hereof, the preamble of the Loan Agreement is hereby amended by
deleting therefrom the name "XXXXXX EYECARE CORPORATION" and substituting in
lieu thereof the name "BEC GROUP, INC.".
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2.02 AMENDMENT TO SECTION 5(f) OF THE LOAN AGREEMENT. Effective as
of the date hereof, Section 5(f) of the Loan Agreement is hereby amended by
deleting therefrom the words "Facility A and Facility B (each as hereinafter
defined)" and substituting in lieu thereof the words "Credit Agreement (as
hereinafter defined)".
2.03 AMENDMENT TO SECTION 9(a) TO THE LOAN AGREEMENT. Effective as
of the date hereof, Section 9(a) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"(a)(1) Consolidated Fixed Charge Ratio. Maintain, on a
rolling four quarter basis (i.e. as of the end of each calendar
quarter for the twelve-month period ended as of the end of each
quarter for which any determination is being made) ending during the
periods set forth below, a Consolidated Fixed Charge Ratio of not less
than the ratio set forth opposite the respective periods set forth
below:
Period Ratio
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May 31, 1996 through June 30, 1997 1.50 to 1.00
July 1, 1997 through June 30, 1998 1.25 to 1.00
July 1, 1997 and thereafter 1.50 to 1.00
(a)(2) Consolidated Funded Indebtedness to Consolidated
EBITDA. Maintain, on a rolling four quarter basis (i.e. as of the end
of each calendar quarter for the twelve-month period ended as of the
end of each quarter for which any determination is being made) ending
during the periods set forth below, a ratio of Consolidated Funded
Indebtedness at the end of such rolling four quarters to Consolidated
EBITDA for such rolling four quarters of less than the ratio set forth
opposite the respective periods set forth below:
Period Ratio
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May 31, 1996 through June 30, 1997 3.50 to 1.00
July 1, 1997 through September 30, 1999 3.25 to 1.00
October 1, 1999 and thereafter 3.00 to 1.00
(a)(3) Consolidated Net Worth. Maintain at all times
Consolidated Net Worth not less than an amount equal to Consolidated
Net Worth on April 3, 1996, less $9,000,000, such amount to be
increased as at the first day of each Fiscal Year, beginning with the
Fiscal Year ending December 31, 1997, by fifty percent (50%) of (a)
Consolidated Net Income for the immediately preceding Fiscal Year and
(b) the Net Proceeds of any Equity Offering consummated during the
immediately preceding fiscal year; provided, however, in no event
shall the Consolidated Net Worth requirement be decreased as a result
of a net loss of the Guarantor and its subsidiaries (i.e., negative
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Consolidated Net Income) for any Fiscal Year. Any increase calculated
pursuant hereto shall be determined based upon financial statements
delivered in accordance with Section 8(a) hereof; provided, however
such increase shall be deemed effective as of the first day of the
Fiscal Year in which such financial statements are delivered.
(a)(4) Capital Expenditures. Not make or become committed to
make (a) Capital Expenditures with respect to Displays which exceed
$10,000,000 in the aggregate in any Fiscal Year and (b) Capital
Expenditures with respect to any asset other than Displays which
exceed $5,000,000 in the aggregate in any Fiscal Year (all on a
noncumulative basis, with the effect that amounts not expended in any
Fiscal Year may not be carried forward to a subsequent period;
provided, however, in no event shall the sum of all Capital
Expenditures (for all assets, including Displays) otherwise permitted
under clause (a) and (b) exceed the aggregate amount of $25,000,000
for any period of two consecutive Fiscal Years).
(a)(5) Special Calculations. Notwithstanding anything in this
Agreement to the contrary, prior to June 30, 1997, all calculations of
Consolidated EBITDA and Consolidated Net Income shall be based upon
the pro forma financial information of the Guarantor.
For purposes of this Section 9(a), the foregoing terms shall have the
corresponding meanings set forth:
"Asset Disposition" means any voluntary disposition, whether
by sale, lease or transfer, other than as permitted under Section 10.4
of the Credit Agreement as in effect on the date hereof, of (a) any or
all of the assets of the Guarantor or its subsidiaries, and (b) any of
the capital stock, or securities or investments exchangeable,
exercisable or convertible for or into, or otherwise entitling the
holder to receive, any of the capital stock of any subsidiary of the
Guarantor (other than a disposition to a Guarantor (as such term is
defined in the Credit Agreement as in effect on April 3, 1996)).
"Capital Expenditures" means, with respect to the Guarantor
and its subsidiaries for any period of computation thereof, the sum of
(without duplication) (i) all expenditures (whether paid in cash or
accrued as liabilities) by the Guarantor or any subsidiary during such
period for items that would be classified as "property, plant or
equipment" or comparable items on the consolidated balance sheet of
the Guarantor and its subsidiaries, including without limitation all
transactional costs incurred in connection with such expenditures
provided the same have been capitalized, excluding, however, the
amount of any Capital Expenditures paid for with proceeds of casualty
insurance as evidenced in writing and submitted to the Bank, and (ii)
with respect to any Capital Lease entered into by the Guarantor or its
subsidiaries during such period, the present value of the lease
payments due under such Capital Lease over the term of such Capital
Lease applying a discount rate equal to the interest rate provided in
such lease, all of the foregoing in accordance with generally accepted
accounting principles applied on a consistent basis; provided,
however, for the purposes of calculating the Guarantor's
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Consolidated Fixed Charge Ratio, "Capital Expenditures" shall only
include capital expenditures for the purchase of Displays in excess of
$6,000,000 during the period of determination.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with generally accepted accounting
principles, including Statement No. 13 of the Financial Accounting
Standards Board and any successor thereof, applied on a consistent
basis.
"Common Stock" means the common stock, par value $.01 per
share, of the Guarantor.
"Consolidated EBITDA" means, with respect to the Guarantor and
its subsidiaries for any period of computation thereof, the sum of,
without duplication, (i) Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) taxes on income, (iv) amortization, and (v)
depreciation, all determined on a consolidated basis in accordance
with generally accepted accounting principles applied on a consistent
basis.
"Consolidated Fixed Charge Ratio" means, with respect to the
Guarantor and its subsidiaries for any period of computation thereof,
the ratio of (i) Consolidated EBITDA for such period less (A) Capital
Expenditures for such period and (B) the amount of depreciation during
such period in excess of $6,000,000 attributable to Displays, to (ii)
Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" means, with respect to the
Guarantor and its subsidiaries for any period of computation thereof,
the sum of, without duplication, (i) Consolidated Interest Expense
less non-cash interest expense with respect to the Subordinated Debt,
(ii) the principal amount of Consolidated Funded Indebtedness due and
payable during such period, (iii) all dividends and other
distributions (other than distributions in the form of any stock
(including without limitation capital stock of the Guarantor),
security, note or other instrument) paid during such period
(regardless of when declared) on any shares of capital stock of the
Guarantor then outstanding, including without limitation its Common
Stock, (iv) all payments under Capital Leases made during such period
and (v) all state and federal taxes paid in cash during such period,
all determined on a consolidated basis in accordance with generally
accepted accounting principles applied on a consistent basis.
"Consolidated Funded Indebtedness" means, with respect to the
Guarantor and its subsidiaries at any time as of which the amount
thereof is to be determined, the sum of (i) Indebtedness for Money
Borrowed of the Guarantor and its subsidiaries at such time, less the
amount of all outstanding Subordinated Debt at such time and (ii) the
face amount of all outstanding letters of credit issued for the
account of the Guarantor or any of its subsidiaries and all
obligations (to the extent not duplicative) arising under such letters
of credit, all determined on a consolidated basis in accordance with
generally accepted accounting principles applied on a consistent
basis.
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"Consolidated Interest Expense" means, with respect to the
Guarantor and its subsidiaries for any period of computation thereof,
the gross interest expense of the Guarantor and its subsidiaries,
including without limitation (i) the current amortized portion of debt
discounts to the extent included in gross interest expense, (ii) the
current amortized portion of all fees (including, without limitation,
fees payable in respect of any interest rate swap agreements) payable
in connection with the incurrence of Indebtedness to the extent
included in gross interest expense and (iii) the portion of any
payments made in connection with Capital Leases allocable to interest
expense, all determined on a consolidated basis in accordance with
generally accepted accounting principles applied on a consistent
basis.
"Consolidated Net Income" means, with respect to the Guarantor
and its subsidiaries for any period of computation thereof, the net
income of the Guarantor and its subsidiaries, but excluding as income
any net gain or credit of an extraordinary nature, all determined on a
consolidated basis in accordance with generally accepted accounting
principles applied on a consistent basis.
"Consolidated Net Worth" means, at any time as of which the
amount thereof is to be determined, Consolidated Shareholders' Equity.
"Consolidated Shareholders' Equity" means, at any time as of
which the amount thereof is to be determined, the sum of the following
in respect of the Guarantor and its subsidiaries (determined on a
consolidated basis and excluding intercompany items among the
Guarantor and its subsidiaries and any upward adjustment after April
3, 1996, due to revaluation of assets): (i) the amount of issued and
outstanding share capital, plus (ii) the amount of additional paid-in
capital and retained income (or, in the case of a deficit, minus the
amount of such deficit), plus (iii) the amount of any foreign currency
translation adjustment (if positive, or, if negative, minus the amount
of such translation adjustment) minus (iv) the amount of any treasury
stock, all as determined in accordance with generally accepted
accounting principles applied on a consistent basis.
"Debt Offering" means the incurrence of any Indebtedness For
Money Borrowed permitted hereunder whether in connection with a public
or private offering of debt securities of the Guarantor or any
subsidiary (other than debt securities issued to the Guarantor or a
Guarantor (as such term is defined in the Credit Agreement as in
effect on April 3, 1996) or otherwise.
"Displays" means all displays for retail sales of
non-prescription eyeware purchased by the Guarantor or any subsidiary
in the ordinary course of business.
"Equity Offering" means a public or private offering of
equity securities (including, without limitation, any security or
investment not constituting Indebtedness exchangeable, exercisable or
convertible for or into, or otherwise entitling the holder to receive,
equity securities) of the Guarantor or any subsidiary (other than
securities issued
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to the Guarantor or any subsidiary); provided, however, the term
"Equity Offering" shall not include any Equity Offering that does not
result in any Net Proceeds to the Guarantor or any subsidiary.
"Fiscal Year" means the twelve (12) month period ended
December 31 of each calendar year;
"Indebtedness" of a person shall mean, without duplication,
(i) all Indebtedness for Money Borrowed, (ii) all obligations of such
person arising under acceptance facilities, (iii) the undrawn face
amount of, and unpaid reimbursement obligations in respect of, all
letters of credit issued for the account of such person, (iv) all
obligations of such person upon which interest charges are customarily
paid, other than trade payables incurred in the ordinary course of
business, operating leases and taxes, (v) all obligations of such
person under conditional sale or other title retention agreements
relating to property purchased by such person (even though the rights
and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (vi)
all executory obligations of such person in respect of Rate Hedging
Obligations and (vii) all Contingent Obligations (as defined in the
Credit Agreement as in effect on April 3, 1996) in respect of
Indebtedness of other persons.
"Indebtedness for Money Borrowed" of any person shall mean all
indebtedness in respect of money borrowed, including without
limitation all Capital Leases and the deferred purchase price of any
property or asset, evidenced by a promissory note, bond, debenture or
similar written obligation for the payment of money, other than trade
payables incurred in the ordinary course of business (including, but
not limited to, with respect to the Guarantor and its subsidiaries,
all Subordinated Debt, the TIA Debt, and all conditional sales or
similar title retention agreements).
"Indenture" means that certain Indenture dated on or about
April 3, 1996 between IBJ Xxxxxxxx Bank and Trust Company, as Trustee
and the Guarantor.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a person other than the owner of the property,
whether such interest is based on common law, statute or contract, and
including but not limited to any lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For purposes of this Agreement, the Guarantor and its
subsidiaries shall be deemed to be the owners of any property which
either of them have acquired or hold subject to a conditional sale
agreement, financing lease, or other arrangement pursuant to which
title to the property has been retained by or vested in some other
person for security purposes.
"Net Proceeds" (a) from any Equity Offering or Debt Offering
means cash payments received by the Guarantor therefrom as and when
received, net of all legal, accounting, banking and underwriting fees
and expenses, commissions, discounts and other issuance expenses
incurred in connection therewith and all taxes required to be paid
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or accrued as a consequence of such issuance; and (b) from any Asset
Disposition means cash payments received by the Guarantor therefrom
(including any cash payments received pursuant to any note or other
debt security received in connection with any Asset Disposition) as
and when received, net of (i) all legal fees and expenses and other
fees and expenses paid to third parties and incurred in connection
therewith, (ii) all taxes required to be paid or accrued as a
consequence of such sale and (iii) all amounts applied to repayment of
Indebtedness (other than the Obligations (as such term is defined in
the Credit Agreement as in effect on April 3, 1996)) secured by a Lien
on the asset or property disposed.
"Rate Hedging Obligations" means any and all obligations of
the Guarantor, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all agreements, devices or arrangements
designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates
applicable to such party's commodities, assets, liabilities or
exchange transactions, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate
options, puts, warrants and those commonly known as interest rate
"swap" agreements, and forward commodity price options, puts, warrants
and those commonly known as commodity "swap" agreements; and (ii) any
and all cancellations, buybacks, reversals, terminations or
assignments of any of the foregoing.
"Subordinated Debt" means the Guarantor's 8% Convertible
Subordinated Notes due 2002 issued in the original principal amount of
up to $22,000,000 to IBJ Xxxxxxxx Bank and Trust Company pursuant to
that certain Indenture.
"TIA Debt" means the Indebtedness of Optical Radiation, Inc.,
a wholly owned Subsidiary of the Guarantor, to Teachers Insurance and
Annuity Association of America in the original principal amount of
$15,000,000 as evidenced by that certain Deed of Trust Note dated May
15, 1989, executed by Optical Radiation, Inc. and payable to the order
of Teachers Insurance and Annuity Association of America."
2.04 AMENDMENT TO SECTION 9(b) OF THE LOAN AGREEMENT. Effective as
of the date hereof, Section 9(b) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) Other Covenants. Comply in all respects with each covenant set
forth in any agreement evidencing Indebtedness for Money Borrowed including,
without limitation, the covenants set forth in that certain Credit Agreement
dated as of April 3, 1996, by and among the Guarantor, its subsidiaries named
therein and the financial institutions from time to time a party thereto (the
"Credit Agreement"), as such covenants are in effect on April 3, 1996."
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2.05 AMENDMENT TO SECTION 11(h) OF THE LOAN AGREEMENT. Effective as
of the date hereof, Section 11(h) of the Loan Agreement is hereby amended by
deleting therefrom the words "Facility A and Facility B" and substituting in
lieu thereof the words "Credit Agreement".
2.06 AMENDMENT TO LOAN DOCUMENTS. Effective as of the date hereof,
all Loan Documents other than the Agreement are hereby amended by deleting
therefrom all references to the name "Xxxxxx Eyecare Corporation" and
substituting in lieu thereof the name "BEC Group, Inc."
ARTICLE III
CONDITIONS PRECEDENT
3.01 CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment is subject to the satisfaction of the following conditions precedent,
unless specifically waived in writing by the Bank:
(a) The Bank shall have received the following documents,
each in form and substance satisfactory to the Bank and its legal
counsel:
(i) this Amendment duly executed by the Company and the
Guarantor;
(ii) the Release of Indemnitor, in the form of Exhibit A
attached hereto, duly executed by the Bank and agreed
and accepted by the Original Guarantor;
(iii) the Release of Guarantor, in the form of Exhibit B
attached hereto, duly executed by the Bank and agreed
and accepted by the Original Guarantor;
(iv) the Guaranty Agreement, in the form of Exhibit C
attached hereto, duly executed by the Guarantor in
favor of the Bank;
(v) the Indemnity Agreement, in the form of Exhibit D
attached hereto, duly executed by the Company and the
Guarantor in favor of the Bank;
(vi) a Company General Certificate certified by the
Secretary of Xxxxxxx General, Inc. (the "General
Partner"), the general partner of the Company, in the
name and on behalf of the Company, acknowledging that
(A) the General Partner's Board of Directors has met
and has adopted resolutions which authorize in the
name and on behalf of the Company the execution,
delivery and performance by the Company of this
Amendment and all other Loan Documents to which the
Company is or will be a party, and (B) the names of
the officers of the General Partner authorized to
sign this Amendment and all other Loan Documents to
which the Company is or will be a party, together
with specimen signatures of such officers; and
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(vii) a Company General Certificate certified by the
Secretary of the Guarantor acknowledging that (A) the
Guarantor's Board of Directors has met and has
adopted resolutions which authorize the execution,
delivery and performance by the Guarantor of this
Amendment and all other Loan Documents to which the
Guarantor is or will be a party, and (B) the names of
the officers of the Guarantor authorized to sign this
Amendment and all other Loan Documents to which the
Guarantor is or will be a party, together with
specimen signatures of such officers.
(b) The representations and warranties contained herein
and in the Loan Agreement and the other Loan Documents, as each is
amended hereby, shall be true and correct as of the date hereof, as if
made on the date hereof;
(c) No default or Event of Default shall have occurred
and be continuing under the Loan Agreement, unless such default or
Event of Default has been specifically waived in writing by the Bank;
(d) All partnership and corporate proceedings, as
applicable, taken in connection with the transactions contemplated by
this Amendment and all documents, instruments and other legal matters
incident thereto shall be satisfactory to the Bank and its legal
counsel; and
(e) The Company shall have paid the Bank an amendment fee
of $6,500, which fee shall be fully earned and nonrefundable upon the
effectiveness of this Amendment, and which fee shall be applied by
Bank to the Bank's legal counsel for costs and expenses incurred in
connection with the preparation and negotiation of this Amendment.
ARTICLE IV
LIMITED WAIVER
4.01 By execution of this Amendment, the Bank hereby consents to
the Merger Transaction and the Transfer and waives any default or Event of
Default which would otherwise arise under the Loan Agreement solely by reason
of the Merger Transaction or the Transfer. Except as specifically provided in
the preceding sentence, nothing contained herein shall be construed as a waiver
by the Bank of any covenant or provision of the Loan Agreement, the other Loan
Documents, this Amendment, or of any other contract or instrument between the
Bank and the Company and/or the Guarantor, and the failure of the Bank at any
time or times hereafter to require strict performance by the Company and/or the
Guarantor of any provision thereof shall not waive, affect or diminish any
right of the Bank to thereafter demand strict compliance therewith. The Bank
hereby reserves all rights granted under the Loan Agreement, the other Loan
Documents, this Amendment and any other contract or instrument between the Bank
and the Company and/or the Guarantor.
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ARTICLE V
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
5.01 RATIFICATIONS. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Loan Agreement and the other Loan Documents, and, except as
expressly modified and superseded by this Amendment, the terms and provisions
of the Loan Agreement and the other Loan Documents are ratified and confirmed
and shall continue in full force and effect. The Company, the Guarantor and the
Bank agree that the Loan Agreement and the other Loan Documents, as amended
hereby, shall continue to be legal, valid, binding and enforceable in
accordance with their respective terms.
5.02 REPRESENTATIONS AND WARRANTIES. The Company and the Guarantor
hereby represent and warrant to the Bank that (a) the execution, delivery and
performance of this Amendment and any and all other Loan Documents executed
and/or delivered in connection herewith have been authorized by proper
corporate or partnership proceedings, as appropriate, and will not contravene
any provision of the Amended and Restated Agreement of Limited Partnership of
the Company or the Certificate of Incorporation or Bylaws of the Guarantor; (b)
the representations and warranties contained in the Loan Agreement, as amended
hereby, and the other Loan Documents are true and correct on and as of the date
hereof and on and as of the date of execution hereof as though made on and as
of each such date; (c) no default or Event of Default under the Loan Agreement,
as amended hereby, has occurred and is continuing, unless such default or Event
of Default has been specifically waived in writing by the Bank; (d) the Company
and the Guarantor, respectively, are in full compliance with all covenants and
agreements contained in the Loan Agreement and the other Loan Documents, as
amended hereby; and (e) the Company has not amended its Amended and Restated
Agreement of Limited Partnership since the date of the Loan Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in the Loan Agreement or any other Loan
Documents, including, without limitation, any document furnished in connection
with this Amendment, shall survive the execution and delivery of this Amendment
and the other Loan Documents, and no investigation by the Bank or any closing
shall affect the representations and warranties or the right of the Bank to
rely upon them.
6.02 REFERENCE TO LOAN AGREEMENT. Each of the Loan Agreement and
the other Loan Documents, and any and all other agreements, documents or
instruments now or hereafter executed and delivered pursuant to the terms
hereof or pursuant to the terms of the Loan Agreement or the other Loan
Documents, as amended hereby, are hereby amended so that any reference in the
Loan Agreement and such other Loan Documents to the Loan Agreement shall mean a
reference to the Loan Agreement as amended hereby.
6.03 EXPENSES OF THE BANK. As provided in the Loan Agreement, the
Company and the Guarantor agree to pay on demand all reasonable costs and
expenses incurred by the Bank in connection with any and all amendments,
modifications, and supplements to the Loan Documents,
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including, without limitation, the costs and fees of the Bank's legal counsel
(such costs and fees to Bank's legal counsel in connection with the preparation
and negotiation of this Amendment to be limited to the amount specified in
Section 3.01(e) hereof), and all costs and expenses incurred by the Bank in
connection with the enforcement or preservation of any rights under the Loan
Agreement or any other Loan Documents, as amended hereby, including, without,
limitation, the costs and fees of the Bank's legal counsel.
6.04 SEVERABILITY. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
6.05 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and
shall inure to the benefit of the Bank, the Company and the Guarantor and their
respective successors and assigns.
6.06 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
6.07 EFFECT of Waiver. No consent or waiver, express or implied, by
the Bank to or for any breach of or deviation from any covenant or condition by
the Company or the Guarantor shall be deemed a consent to or waiver of any
other breach of the same or any other covenant, condition or duty.
6.08 HEADINGS. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
6.09 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER AGREEMENTS
EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE
PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS.
6.10 FINAL AGREEMENT. THE LOAN AGREEMENT AND THE OTHER LOAN
DOCUMENTS, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS
EXECUTED. THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY,
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. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY
PROVISION OF THIS AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED
BY THE COMPANY, THE GUARANTOR AND THE BANK.
6.11 RELEASE. EACH OF THE COMPANY AND THE GUARANTOR HEREBY
ACKNOWLEDGES THAT IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET,
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CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE
ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE
"INDEBTEDNESS" OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE
FROM THE BANK. EACH OF THE COMPANY AND THE GUARANTOR HEREBY VOLUNTARILY AND
KNOWINGLY RELEASES AND FOREVER DISCHARGES THE BANK, ITS PREDECESSORS, AGENTS,
OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE
CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND
LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN
EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS
EXECUTED, WHICH EITHER OF THE COMPANY OR THE GUARANTOR MAY NOW OR HEREAFTER
HAVE AGAINST THE BANK, ITS PREDECESSORS, AGENTS, OFFICERS, DIRECTORS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH
CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, AND ARISING FROM ANY LOANS OR EXTENSIONS OF CREDIT FROM THE BANK TO
THE COMPANY OR THE GUARANTOR UNDER THE LOAN AGREEMENT OR THE OTHER LOAN
DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING,
TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST
LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN
AGREEMENT OR OTHER LOAN DOCUMENTS, AND THE NEGOTIATION OF AND EXECUTION OF THIS
AMENDMENT.
6.12 AGREEMENT FOR BINDING ARBITRATION. Each party to this
Amendment hereby acknowledges that it has agreed to be bound by the terms and
provisions of the Arbitration Program (dated 9/l/92), a copy of which is
attached to the Loan Agreement as Exhibit A, and which is incorporated by
reference herein and is acknowledged as received by the parties pursuant to
which any and all disputes shall be resolved by mandatory binding arbitration
upon the request of any party.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Amendment has been executed and is effective
as of the date first above-written.
COMPANY:
XXXXXX XXXXX GROUP, L.P.
By: Xxxxxxx General, Inc.
its General Partner
By: /s/ XXXXXXXX XXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxx
--------------------------------
Title: Vice President
-------------------------------
GUARANTOR:
BEC GROUP, INC.
By: /s/ XXXXXXXX XXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxx
--------------------------------
Title: Vice President
-------------------------------
BANK:
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: /s/ XXXXXXX X.X. XXXX
----------------------------------
Xxxxxxx X.X. Xxxx,
Vice President
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