FIRST AMENDMENT TO
FIFTH AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED
LOAN AGREEMENT (the "Amendment") is made and entered into as
of the 31st day of October, 1996, by and among XXXXXXX
ENTERPRISES, INC., a Louisiana corporation ("Borrower");
NationsBank of Texas, N.A., a national banking association
("NationsBank"); Citicorp USA, Inc., a Delaware corporation
("Citicorp"); Hibernia National Bank, a national banking
association ("Hibernia"); First Union National Bank of North
Carolina, a national banking association ("First Union");
SunTrust Bank, Atlanta, a banking association chartered
under the laws of the State of Georgia ("SunTrust");
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", New York branch, a Netherlands banking
association acting through its New York branch ("Rabobank");
Bank of America National Trust and Savings Association, a
national banking association ("Bank of America") and Xxxxx
Fargo Bank (Texas), National Association (formerly known as
First Interstate Bank of Texas, N.A.), a national banking
association ("Xxxxx Fargo") (NationsBank, Citicorp,
Hibernia, First Union, SunTrust, Rabobank, Bank of America
and Xxxxx Fargo are hereinafter sometimes referred to
individually as a "Bank" and collectively as the "Banks"),
and NationsBank of Texas, N.A., a national banking
association, as agent for the Banks hereunder (hereinafter
referred to in such capacity as the "Agent"), and provides
as follows:
W I T N E S S E T H:
WHEREAS, Borrower, Agent and Banks are parties to that
certain Fifth Amended and Restated Loan Agreement dated as
of December 11, 1995 (the "Loan Agreement") pursuant to
which the Banks extended to Borrower a commitment to advance
up to $350,000,000.00 under a revolving line of credit loan
as more fully set forth in the Loan Agreement (the
"Revolving Line of Credit Loan"); and
WHEREAS, Empresas Xxxxxxx-Cementerios, Inc.
("Cementerios") and Empresas Xxxxxxx-Funerarias, Inc.
("Funerarias") are wholly-owned subsidiaries of Cemetery
Management, Inc. ("CMI"), which is in turn a wholly owned
subsidiary of Borrower; and
WHEREAS, Cementerios is indebted to CMI in the
aggregate sum of $37,000,000.00 in principal and interest,
for loans and advances made to it by CMI, as evidenced by
that certain promissory note dated October 31, 1996, in the
principal sum (excluding accrued and unpaid interest) of
$34,000,000.00 (the "Cementerios Note"); and
WHEREAS, Funerarias is indebted to CMI in the aggregate
sum of $51,000,000.00 in principal and interest, for loans
and advances made to it by CMI, as evidenced by that certain
promissory note dated October 31, 1996, in the principal sum
(excluding accrued and unpaid interest) of $48,500,000.00
(the "Funerarias Note") (the Cementerios Note and the
Funerarias Note are hereinafter collectively referred to as
the "CMI Notes"); and
WHEREAS, Borrower, CMI, Cementerios and Funerarias have
requested that the Banks purchase the CMI Notes from CMI and
that the Banks thereafter extend, renew and rearrange the
CMI Notes (the CMI Notes as so extended, renewed and
rearranged being herein referred to as the "Puerto Rico
Entity Notes") pursuant to that certain Loan Agreement dated
of even date herewith by and among Borrower, Cementerios,
Funerarias, Agent and Banks (the "Puerto Rico Loan
Agreement"), under which the Banks have extended to
Cementerios and Funerarias a commitment to advance revolving
line of credit loans as more fully set forth therein (the
"Puerto Rico Entity Loans"); and
WHEREAS, in consideration of same, Borrower and the
Banks have agreed to reduce the Banks' commitment under the
Revolving Line of Credit Loan from $350,000,000.00 to
$262,000,000.00, and Borrower has agreed to guarantee the
obligations and indebtedness of Cementerios and Funerarias
due to the Banks in connection with the Puerto Rico Entity
Loans (collectively, the "Puerto Rico Guarantees"); and
WHEREAS, Borrower, Agent and Banks desire to amend the
Loan Agreement in order to provide for such reduction of the
Banks' commitment under the Revolving Line of Credit Loan
and for other purposes more fully set forth herein.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements set forth herein, the parties do
hereby amend the Loan Agreement as hereinafter set forth.
All capitalized terms used herein, unless otherwise defined
herein, shall have the meanings set forth in the Loan
Agreement.
I. AMENDMENTS TO ARTICLE I - DEFINITION OF TERMS.
1. The first, introductory paragraph of Article I
Definitions of Terms is hereby amended and restated in its
entirety as follows:
As used in this Agreement, (a) the
terms "Borrower", "NationsBank",
"Citicorp", "Hibernia", "First Union",
"SunTrust", "Rabobank", "Bank of
America", "First Interstate", "Bank",
"Banks", "Agent", "NCNB", "Fourth
Amended and Restated Loan Agreement",
"Third Amended and Restated Loan
Agreement", "Second Amended and Restated
Loan Agreement", "February 1989
Agreement", "MBank", "1994 Revolving
Loan", "1994 Term Loan", "New Lenders",
and "Assignments" shall have the
meanings assigned to them above, (b) the
terms "Xxxxx Fargo", "Cementerios",
"Funerarias", "Puerto Rico Entity
Notes", "Puerto Rico Loan Agreement",
"Puerto Rico Entity Loans" and "Puerto
Rico Guarantees" shall have the meanings
assigned to them in the recitals set
forth in that certain First Amendment to
Fifth Amended and Restated Loan
Agreement dated as of October 31, 1996,
by and among Borrower, Agent and Banks,
amending this Agreement, and (c) the
terms set forth in this Article I shall
have the meanings assigned to them
below:
2. Section 1.39 "Loan Papers" is hereby amended and
restated in its entirety as follows:
1.39 Loan Papers. Shall mean,
collectively, this Agreement, the
Revolving Line of Credit Notes, the
Subordination Agreement, the Puerto Rico
Loan Agreement, Puerto Rico Entity
Notes, and the Puerto Rico Guarantees,
together with any and all additional
promissory notes, letter of credit
applications and/or agreements, reports,
certificates, corporate and/or
partnership resolutions, notices,
statements, documents and instruments
securing or guaranteeing the Obligation
or heretofore or hereafter delivered to
the Agent or the Banks in connection
with the Obligation or this Agreement,
and any extensions, renewals, amendments
or restatements of any of the foregoing.
3. Section 1.48 "Obligation" is hereby amended and
restated in its entirety as follows:
1.48 Obligation. At any particular time
shall mean, collectively, (a) the
aggregate unpaid principal amount of the
Revolving Line of Credit Notes and any
extensions, renewals or rearrangements
of same, and any other promissory notes
executed in connection with this
Agreement, (b) all interest accrued and
payable thereon, (c) all fees (including
commitment fees) and other charges
payable hereunder (including attorneys
fees incurred in connection with the
enforcement and collection of Borrower's
obligations hereunder or any part
thereof), (d) all reimbursement
obligations, direct or contingent, with
respect to letters of credit issued
pursuant to this Agreement, (e) any and
all obligations of the Borrower in
respect of such sums, (f) all other
amounts from time to time payable by the
Borrower to the Agent or the Banks
pursuant to this Agreement or any other
Loan Papers, and (g) all amounts from
time to time payable by Cementerios
and/or Funerarias and/or Borrower to the
Agent or the Banks pursuant to the
Puerto Rico Loan Agreement, the Puerto
Rico Entity Notes, the Puerto Rico
Guarantees or any other Loan Papers,
including without limitation the
aggregate unpaid principal amount of the
Puerto Rico Entity Notes, and any
extensions, renewals or rearrangements
of same, any other promissory notes
executed in connection with the Puerto
Rico Loan Agreement, and all interest
accrued and payable thereon.
4. Section 1.56 "Revolving Line of Credit Notes" is
hereby amended and restated in its entirety as follows:
1.56 Revolving Line of Credit Notes.
Shall mean the eight promissory notes
executed by the Borrower totaling the
principal sum of TWO HUNDRED SIXTY-TWO
MILLION AND NO/100 ($262,000,000.00)
DOLLARS in the aggregate, payable
respectively to the order of
NationsBank, Citicorp, Hibernia, First
Union, SunTrust, Rabobank, Bank of
America and Xxxxx Fargo and being
substantially in the form of Exhibits
"A-1" through "A-8" annexed hereto, with
appropriate insertions, together with
any extensions, renewals, amendments,
modifications or rearrangements thereof.
II. AMENDMENTS TO ARTICLE II - THE REVOLVING LINE OF CREDIT
LOAN.
1. Section 2.01 "Commitment" is hereby amended and
restated in its entirety as follows:
2.01 Commitment. Subject to the terms
and conditions contained herein, the
Banks agree to extend to the Borrower a
Revolving Line of Credit Loan (as
extended, renewed, modified or
rearranged from time to time, the
"Revolving Line of Credit Loan"), and to
make Advances to the Borrower under the
Revolving Line of Credit Loan from time
to time through the Maturity Date in an
aggregate principal amount of up to TWO
HUNDRED SIXTY-TWO MILLION AND NO/100
($262,000,000.00) DOLLARS. The Advances
under the Revolving Line of Credit Loan
shall be evidenced by the Revolving Line
of Credit Notes executed by the Borrower
and delivered to the Banks, and
evidenced by a credit advice issued in
connection therewith; provided, however,
that the failure to issue such credit
advice shall not affect the Borrower's
obligation hereunder or under the
Revolving Line of Credit Notes with
respect to such Advance or otherwise.
The Revolving Line of Credit Notes
represent a renewal and decrease, but
not a novation or discharge, of the
Indebtedness represented by those
certain eight promissory notes dated
December 11, 1995 in the aggregate
principal amount of $350,000,000.00
payable by Borrower to each of the
Banks, respectively. Notwithstanding
anything contained herein to the
contrary, the maximum obligation of each
Bank with respect to the Revolving Line
of Credit Loan shall be limited to its
Pro Rata Share thereof.
2. The first, introductory paragraph of
Section 2.03 "Letters of Credit" is
hereby amended and restated in its
entirety as follows:
The Revolving Line of Credit Loan may be
used by Borrower as the basis on which
to request issuance of standby letters
of credit by the Agent in an amount,
including the Existing Letters of Credit
(as hereinafter defined), not exceeding
the aggregate principal sum of Forty
Eight Million ($48,000,000.00) Dollars
outstanding at any one time, in
accordance with the terms and provisions
of this Agreement.
3. Section 2.03 "Letters of Credit," subpart (b), is
hereby amended in the following respects:
The first full paragraph appearing on
page 17 of the Loan Agreement, such
paragraph commencing with the phrase
"The aggregate undrawn amounts..." and
ending with the phrase "...the aggregate
principal sum of $350,000,000.00", is
hereby amended by deleting the reference
to "$350,000,000.00" and substituting
therefor "$262,000,000.00".
III. AMENDMENTS TO ARTICLE IV - REPRESENTATIONS AND
WARRANTIES
1. Section 4.04 "Subsidiaries of the Borrower" is
hereby amended and restated in its entirety as follows:
4.04 Subsidiaries of the Borrower. Except
as disclosed in Exhibit "B" attached hereto,
the Borrower owns, directly, or through
another Subsidiary, 100% of the issued and
outstanding stock of the Subsidiaries and has
no other Subsidiaries (except for any
Subsidiaries acquired since October 23,
1996). The name of each of the shareholders
of each Subsidiary acquired as of October 23,
1996 (except the Joint Venture and Kanawha)
and the respective stock ownership of each of
such shareholders is shown on Exhibit "B"
attached hereto. The Joint Venture is
comprised of two general partners, Borrower
and Lake Lawn Metairie Funeral Home, Inc.,
with ownership interests of 51% and 49%
respectively. Kanawha is comprised of four
partners, Legacy One, Inc., Greenhills Memory
Gardens, Inc., Eastlawn Memorial Gardens,
Inc. and Pleasant View Memory Gardens, Inc.
with ownership interests of 60%, 15%, 15% and
10%, respectively.
2. Section 4.08 "Title to Properties; Liens" is
hereby amended and restated in its entirety as follows:
4.08 Title to Properties; Liens.
(a) The Borrower and each of its
Subsidiaries have good and marketable title
to all properties and assets shown to be
owned by them as reflected on the financial
statements referred to in Section 4.06 above.
To the knowledge of Borrower, as of September
30, 1996, there are no unrecorded Liens
(except for Liens such as construction Liens
or lessor's Liens customarily incurred in the
ordinary course of business) against any of
the assets or properties of the Borrower or
any of the Subsidiaries except as described
in Exhibit "E" annexed hereto.
(b) Except for Liens described in
Exhibit "E" annexed hereto, there are no
recorded Liens against any of the assets or
properties of the Borrower or any of its
Subsidiaries as of September 30, 1996.
(c) Since September 30, 1996, there have
been no Liens, recorded or unrecorded,
against any of the assets or properties of
the Borrower or any of its Subsidiaries that
secure Indebtedness that is material to the
financial condition or business operations of
the Borrower and the Subsidiaries, taken as a
whole.
3. Section 4.14 "Employee Benefit Plans" is hereby
amended and restated in its entirety as follows:
4.14 Employee Benefit Plans. To the
knowledge of Borrower, based upon ERISA and
the regulations and published interpretations
thereunder, the Borrower and each of its
Subsidiaries are in compliance in all
material respects with the applicable
provisions of ERISA. No Reportable Event or
Prohibited Transaction has occurred with
respect to any Plan, and no material funding
deficiency exists with respect to any Plan.
Neither the Borrower nor any Subsidiary has
ever maintained or become obligated to
contribute to a Multiemployer Plan other than
(i) the Plan Pensione Union de Tranquesta de
Puerto Rico and the Puerto Rico Teamsters
Union Pension Fund which are contributed to
by Cementerios, and (ii) the Western
Conference of Teamsters Pension Fund which is
contributed to by Chapel of the Roses, Inc.,
and neither the Borrower nor any Subsidiary
has incurred pursuant to Section 4201 or 4204
of ERISA withdrawal liabilities under such
Multiemployer Plans or would incur withdrawal
liabilities thereunder which could reasonably
be expected to result in a material adverse
effect on the business, properties, assets,
results of operations, condition, financial
or otherwise, or prospects of the Borrower
and the Subsidiaries, taken as a whole, if
the Borrower or any Subsidiary were to
withdraw from such Multiemployer Plans on the
date hereof.
4. Section 4.19 "Certain Guaranteed Indebtedness" is
hereby amended and restated in its entirety as follows:
4.19 Certain Guaranteed Indebtedness.
Attached hereto as Exhibit "G" is a
schedule of all Guarantees of Borrower
as of September 30, 1996 pursuant to
which Borrower has guaranteed the Funded
Indebtedness of any other Person. Since
September 30, 1996, Borrower has
incurred no Guaranteed Indebtedness that
is material to the financial condition
or business operations of the Borrower
and the Subsidiaries, taken as a whole.
There are no Guarantees outstanding
pursuant to which any of the
Subsidiaries have guaranteed the
Indebtedness of any other Person, except
for (a) the guaranty agreements by
Cementerios dated October 31, 1996 in
favor of the Private Placement
Noteholders (as hereinafter defined)
guaranteeing a portion of the
Indebtedness of Borrower under the
Private Placement Agreements (as
hereinafter defined) and (b) the
guaranty agreements by Funerarias dated
October 31, 1996 in favor of the Private
Placement Noteholders guaranteeing a
portion of the Indebtedness of Borrower
under the Private Placement Agreements.
As used herein, (i) the term "Private
Placement Noteholders" shall mean the
holders of those certain 6.04% Senior
Notes of Borrower in the original
aggregate principal amount of
$50,000,000.00 issued pursuant to that
certain Note Agreement dated December
21, 1993, as amended to date, by and
among Borrower, Principal Mutual Life
Insurance Company, The Great-West Life
Assurance Company and The Variable
Annuity Life Insurance Company, as well
as the holders of those certain Series A
Senior Notes, Series B Senior Notes and
Series C Senior Notes of Borrower in the
original aggregate principal sum of
$75,000,000.00 issued pursuant to that
certain Note Agreement dated November 7,
1994, as amended to date, by and among
Borrower, The Variable Annuity Life
Insurance Company, American General Life
Insurance Company, American General Life
and Accident Insurance Company, Gulf
Life Insurance Company, Principal Mutual
Life Insurance Company and Great-West
Life & Annuity Insurance Company; and
(ii) the term "Private Placement
Agreements" shall mean the two Note
Agreements described in the foregoing
definition of "Private Placement
Noteholders".
5. Section 4.20 "Indebtedness" is hereby amended and
restated in its entirety as follows:
4.20 Indebtedness. Annexed hereto as
Exhibit "H" is a schedule of all
Indebtedness of Borrower and the
Subsidiaries as of September 30, 1996
other than the following:
(a) Indebtedness due to the Agent and
the Banks under this Agreement;
(b) that portion of the Indebtedness of
the Borrower that constitutes
Guaranteed Indebtedness of the
Borrower;
(c) Indebtedness incurred in the
ordinary course of business other
than Funded Indebtedness; and
(d) Indebtedness represented by loans
or advances on life insurance
policies upon the lives of any
employees of the Borrower or any
Subsidiary.
Since September 30, 1996, Borrower and the Subsidiaries have
incurred no Indebtedness that is material to the financial
condition or business operations of the Borrower and the
Subsidiaries, taken as a whole.
IV. AMENDMENTS TO ARTICLE V - COVENANTS OF THE BORROWER.
1. Section 5.13 "Guaranteed Indebtedness" is hereby
supplemented and amended by the addition of the following
sentence, which shall be added as the last sentence of
Section 5.13:
Notwithstanding the foregoing,
Cementerios and Funerarias may permit to
exist the guaranty agreements in favor
of the Private Placement Noteholders as
more fully described in Section 4.19 of
this Agreement.
2. Section 5.14 "Disposition and Issuance of Stock"
is hereby amended as follows:
(i) Subsection (c) of Section 5.14 is hereby
amended and restated in its entirety as follows:
(c) Except for Cementerios and
Funerarias (who are expressly prohibited
from so doing without the prior written
consent of the Banks), any Subsidiary
may issue additional shares of capital
stock to its parent corporation or to
any other Subsidiary; or
(ii) Section 5.14 is hereby amended and
supplemented by adding thereto, following subsection (d)
thereof, the following new paragraph:
Notwithstanding anything contained in
this Section 5.14 to the contrary, in no
event may any of the capital stock of
either of Cementerios or Funerarias be
sold or transferred during the term of
this Agreement without the prior written
consent of the Banks.
3. Section 5.15 "Merger, Consolidation and/or Sale of
Substantially All Assets" is hereby amended and supplemented
by adding thereto, following subsection (d) thereof, the
following new paragraph:
Notwithstanding anything contained in
this Section 5.15 to the contrary, in no
event may either Cementerios or
Funerarias merge into or consolidate
with any other Person or sell, lease,
transfer or otherwise dispose of all or
substantially all of its assets to any
other Person during the term of this
Agreement without the prior written
consent of the Banks.
4. Subsections (c) and (d) of Section 5.16 "Sale of
Less Than Substantially All Assets" are hereby amended and
restated in their entirety as follows:
(c) Except for Cementerios and
Funerarias (who are specifically
prohibited from so doing without the
prior written consent of the Banks), any
Subsidiary may sell or transfer assets
which constitute less than all or
substantially all of its assets to
Borrower or to any other Subsidiary;
provided, however, that each of
Cementerios and Funerarias may make such
assignments of pre-arranged funeral and
cemetery sales contracts to Simplicity
Plan of Puerto Rico, Inc. (a wholly-
owned subsidiary of CMI) as are
necessary to comply with applicable laws
of the Commonwealth of Puerto Rico
relating to the financing of retail
installment sales contracts; or
(d) Except for Cementerios and
Funerarias (who are specifically
prohibited from so doing without the
prior written consent of the Banks), any
Subsidiary may sell assets which
constitute less than all or
substantially all of its assets to any
Non-Subsidiary provided that (i) the
selling entity receives fair market
value for such assets sold, and (ii) the
fair market value of such assets sold,
when aggregated with the fair market
value of any capital stock sold pursuant
to Section 5.14 (e) hereof and the fair
market value of any assets sold, leased
or transferred pursuant to Section 5.15
(d) hereof, does not exceed the Ten
Percent of New Worth Limitation. For
the purpose of calculating compliance
with the Ten Percent of Net Worth
Limitation, it is understood and agreed
that (A) any such sales of assets that
have occurred since August 10, 1994
shall be included and (B) any such sales
or transfers of assets by Borrower or a
Subsidiary to Borrower or any other
Subsidiary shall be excluded.
5. Section 5.27 "Debt of Subsidiaries" is hereby
amended and supplemented by adding thereto, as the last
sentence thereof, the following:
Notwithstanding anything contained in
this Section 5.27 to the contrary, the
Indebtedness of Cementerios and
Funerarias due to the Banks in
connection with the Puerto Rico Entity
Loans shall not be subject to the 10% of
consolidated Net Worth of Borrower
limitation contained in this Section
5.27.
V. AMENDMENTS TO ARTICLE VI - EVENTS OF DEFAULT.
1. Section 6.01 "Nature of Events" is hereby amended
and supplemented by the addition thereto of the following
new subparts:
(n) Puerto Rico Loan Agreement.
The occurrence of an "Event of Default"
as defined in the Puerto Rico Loan
Agreement, or under any promissory note
or other document executed in connection
therewith.
(o) Bridge Facility Agreement. The
occurrence of an "Event of Default" as
defined in that certain Agreement dated
September 20, 1996 by and among Borrower
and NationsBank pursuant to which
NationsBank extended a $75,000,000.00
bridge loan to Borrower, or under any
promissory note or other document
executed in connection therewith.
(p) Bank of Montreal Agreement.
The occurrence of an "Event of Default"
as defined in that certain Credit
Agreement by and among Borrower, Le
Groupe Xxxxxxx Inc. and the Bank of
Montreal dated September 30, 1996, or
under any promissory note or other
document executed in connection
therewith.
VI. AMENDMENTS TO EXHIBITS.
The following exhibits to the Loan Agreement are hereby
amended by replacing them with exhibits to this Amendment as
more fully set forth below:
1. Exhibits "A-1" through "A-8" (Revolving Line of
Credit Notes) are hereby deleted and replaced with Exhibits
"A-1" through "A-8" to this Amendment.
2. Exhibit "B" (Schedule of Subsidiaries) is hereby
deleted and replaced with Exhibit "B" to this Amendment.
3. Exhibit "E" (Schedule of Liens) is hereby deleted
and replaced with Exhibit "E" to this Amendment.
4. Exhibit "F" (Schedule of Litigation) is hereby
deleted and replaced with Exhibit "F" to this Amendment.
5. Exhibit "G" (Schedule of Guaranteed Indebtedness)
is hereby deleted and replaced with Exhibit "G" to this
Amendment.
6. Exhibit "H" (Schedule of Indebtedness) is hereby
deleted and replaced with Exhibit "H" to this Amendment.
VII. MISCELLANEOUS PROVISIONS.
1. Conditions Precedent to Obligation of Banks to
Enter into this Amendment. The obligation of the Banks to
enter into this Amendment is subject to the conditions
precedent that the Banks shall have received each of the
following in form and substance satisfactory to the Banks:
a. this Amendment, duly executed by the
Borrower;
b. the Revolving Line of Credit Notes, duly
executed by the Borrower;
c. a copy of the articles of incorporation and
by-laws of Borrower, certified to be true and
correct by the secretary or an assistant
secretary of Borrower;
d. a certified copy of the resolution or
unanimous consent of the board of directors
of Borrower authorizing the execution,
delivery and performance of this Amendment,
the Revolving Line of Credit Notes and any
other Loan Papers to be executed in
connection therewith;
e. the legal opinions of counsel for the
Borrower in the States of Louisiana and
Texas, each in form and substance
satisfactory to the Banks; and
f. such other documents, certificates,
instruments and opinions as any of the Banks
may reasonably request, in each Bank's sole
discretion.
2. Ratification. Except as specifically amended by
this Amendment and the documents provided for herein, the
Loan Agreement and the other Loan Papers remain in full
force and effect as of the date hereof, Borrower hereby
ratifying and confirming the terms, conditions, covenants
and agreements contained therein as of the date of this
Amendment. Without limiting the generality of the foregoing,
Borrower hereby acknowledges that (i) each of the
representations and warranties contained in the Loan
Agreement and the Loan Papers (as same have been amended to
date including, without limitation, this Amendment) are true
and correct as of the date of this Amendment, (ii) the
Revolving Line of Credit Notes, as renewed, and decreased in
accordance with the provisions of this Amendment, constitute
the legal, valid and binding obligations of Borrower,
enforceable in accordance with their terms, and (iii) as of
the date of this Amendment, there exists no Event of Default
nor any condition, event or act which constitutes, or with
notice or lapse of time or both would constitute, an Event
of Default.
3. Oral Agreements. THIS WRITTEN AMENDMENT, TOGETHER
WITH THE FIFTH AMENDED AND RESTATED LOAN AGREEMENT DATED AS
OF DECEMBER 11, 1995, AND THE OTHER WRITTEN LOAN PAPERS
REPRESENT, COLLECTIVELY, AS OF THE DATE OF THIS AMENDMENT,
THE FINAL AGREEMENT AMONG THE PARTIES THERETO AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused
this First Amendment to Fifth Amended and Restated Loan
Agreement to be executed as of the date first above written.
BORROWER:
XXXXXXX ENTERPRISES, INC.
By: ________________________
Name: ________________________
Title:________________________
BANKS:
NATIONSBANK OF TEXAS, N.A.
By: ________________________
Xxxxxx Xxxxx,
Senior Vice President
CITICORP USA, INC.
By: ________________________
Name: ________________________
Title:________________________
HIBERNIA NATIONAL BANK
By: ________________________
Name: ________________________
Title:________________________
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: _________________________
Name: _________________________
Title:_________________________
SUNTRUST BANK, ATLANTA
By: __________________________
Name:__________________________
Title:_________________________
By: _________________________
Name: _________________________
Title:_________________________
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By: ________________________
Name: ________________________
Title:________________________
By: ________________________
Name: ________________________
Title:________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: ________________________
Name: ________________________
Title:________________________
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By: ________________________
Name: ________________________
Title:________________________
AGENT:
NATIONSBANK OF TEXAS, N.A.
By: _________________________
Xxxxxx Xxxxx,
Senior Vice President
