1
EXHIBIT 10.1
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT ("First Amendment") dated as of
April 8, 1997 (the "First Amendment Effective Date") is made and entered
into by and among XXXXX INTERNATIONAL, INC. (the "Borrower"), a Delaware
corporation, the banking institutions (each, together with its successors and
assigns, a "Bank" and collectively, the "Banks") from time to time a party to
the Loan Agreement (as hereinafter defined), as amended by this First
Amendment, ABN AMRO BANK N.V., HOUSTON AGENCY and DEN NORSKE BANK AS, as
Co-Agents (in such capacity, together with their successors in such capacity,
collectively called the "Co-Agents") and TEXAS COMMERCE BANK NATIONAL
ASSOCIATION ("TCB"), a national banking association, as agent for the Banks (in
such capacity, together with its successors in such capacity, the "Agent").
RECITALS:
WHEREAS, the Borrower, the Banks, the Co-Agents, and the Agent are
parties to a Loan Agreement dated as of April 4, 1996 (the "Loan Agreement");
and
WHEREAS, the Borrower, the Banks, the Co-Agents, and the Agent have
agreed, on the terms and conditions herein set forth, that the Loan Agreement
be amended in certain respects;
NOW, THEREFORE, IT IS AGREED:
Section 1. Definitions. Terms used herein which are defined in
the Loan Agreement shall have the same meanings when used herein unless
otherwise provided herein.
Section 2. Amendments to the Loan Agreement. On and after the
First Amendment Effective Date, the Loan Agreement shall be amended as follows:
(a) The definition of "Maturity Date" contained in Section 1.1 of
the Loan Agreement is hereby amended to read in its entirety as follows:
Maturity Date shall mean the maturity of the Notes, March 31,
2002, as the same may hereafter be accelerated pursuant to the
provisions of any of the Loan Documents.
(b) The definition of "Revolving Loan Commitment" contained in
Section 1.1 of the Loan Agreement is hereby amended to read in its entirety as
follows:
Revolving Loan Commitment shall mean, as to any Bank,
the obligation, if any, of such Bank to make Revolving Loans
to the Borrower and incur Letter of Credit Liabilities in an
aggregate principal amount up to (but not exceeding) the
amount, if any, set forth
2
opposite such Bank's name on the following table (as the same
may be reduced from time to time pursuant to Section 2.3
hereof or altered pursuant to Assignment and Acceptances
executed in accordance with the Loan Agreement), and
aggregating, as to all Banks, $120,000,000:
Bank Revolving Loan
---- Commitment
---------------
Texas Commerce Bank $21,176,470.59
National Association
ABN AMRO Bank N.V., $17,647,058.83
Houston Agency
Den Norske Bank AS $17,647,058.83
Bank of America Illinois $15,882,352.94
Xxxxx Fargo Bank (Texas),
National Association $15,882,352.94
Union Bank of California N.A. $10,588,235.29
The Bank of New York $10,588,235.29
Corestates Bank, N.A. $10,588,235.29
(c) Section 7.3(a) of the Loan Loan Agreement is hereby amended to
read in its entirety as follows:
(a) Debt to Total Capitalization Ratio - a Debt
to Total Capitalization Ratio of not greater than (1) 40% for
the period commencing on the Effective Date through and
including March 31, 1999 and (2) 35% at all times thereafter.
(c) Section 7.3(c) of the Loan Loan Agreement is hereby amended to
read in its entirety as follows:
(c) Tangible Net Worth - Tangible Net Worth of
not less than (1) for the period commencing on January 1, 1997
through and including March 31, 1997, $265,000,000 and (2) for
each fiscal quarter thereafter, the minimum Tangible Net Worth
required during the immediately preceding fiscal quarter plus
50% of the Net Income (if positive) of the Borrower for the
immediately preceding fiscal quarter plus 100% of any increase
in Tangible Net Worth during such fiscal quarter resulting
from any merger, sale or issuance of equity.
3
Section 3. Limitations. The amendments set forth herein are limited
precisely as written and shall not be deemed to (a) be a consent to, or waiver
or modification of, any other term or condition of the Loan Agreement or any of
the other Loan Documents, or (b) except as expressly set forth herein,
prejudice any right or rights which the Banks may now have or may have in the
future under or in connection with the Loan Agreement, the Loan Documents or
any of the other documents referred to therein. Except as expressly modified
hereby or by express written amendments thereof, the terms and provisions of
the Loan Agreement, the Notes, and any other Loan Documents or any other
documents or instruments executed in connection with any of the foregoing are
and shall remain in full force and effect. In the event of a conflict between
this First Amendment and any of the foregoing documents, the terms of this
First Amendment shall be controlling.
Section 4. Payment of Expenses. The Borrower agrees, whether or not
the transactions hereby contemplated shall be consummated, to reimburse and
save the Co-Agents, the Agent and the Bank(s) harmless from and against
liability for the payment of all reasonable substantiated out-of-pocket costs
and expenses arising in connection with the preparation, execution, delivery,
amendment, modification, waiver and enforcement of, or the preservation of any
rights under this First Amendment, including, without limitation, the
reasonable fees and expenses of any local or other counsel for the Agent, and
all stamp taxes (including interest and penalties, if any), recording taxes and
fees, filing taxes and fees, and other charges which may be payable in respect
of, or in respect of any modification of, the Loan Agreement and the other Loan
Documents. The provisions of this Section shall survive the termination of the
Loan Agreement and the repayment of the Loans.
Section 5. Governing Law. This First Amendment and the rights and
obligations of the parties hereunder and under the Loan Agreement shall be
construed in accordance with and be governed by the laws of the State of Texas
and the United States of America.
Section 6. Descriptive Headings, etc. The descriptive headings of
the several Sections of this First Amendment are inserted for convenience only
and shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
Section 7. Entire Agreement. This First Amendment and the documents
referred to herein represent the entire understanding of the parties hereto
regarding the subject matter hereof and supersede all prior and contemporaneous
oral and written agreements of the parties hereto with respect to the subject
matter hereof, including, without limitation, any commitment letters regarding
the transactions contemplated by this First Amendment.
Section 8. Counterparts. This First Amendment may be executed in any
number of counterparts and by different parties on separate counterparts and
all of such counterparts shall together constitute one and the same instrument.
Complete sets of counterparts shall be lodged with the Borrower and the Agent.
Section 9. Amended Definitions. As used in the Loan Agreement
(including all Exhibits thereto) and all other instruments and documents
executed in connection therewith, on and
4
subsequent to the First Amendment Effective Date the term (i) "Agreement" shall
mean the Loan Agreement as amended by this First Amendment, and (ii) references
to any and all other Loan Documents shall mean such documents as amended as
contemplated hereby.
NOTICE PURSUANT TO TEX. BUS. & COMM. CODE SECTION 26.02
THIS FIRST AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED BY ANY OF
THE PARTIES BEFORE OR SUBSTANTIALLY CONTEMPORANEOUSLY WITH THE EXECUTION HEREOF
TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT AND REPRESENT 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.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and delivered by their respective duly authorized
offices as of the date first above written.
XXXXX INTERNATIONAL, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
5
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as the Agent and as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
6
ABN AMRO BANK N.V., HOUSTON AGENCY,
as Co-Agent and as a Bank
By: ABN AMRO North America, Inc.,
as agent
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
7
DEN NORSKE BANK AS,
as Co-Agent and as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
8
BANK OF AMERICA
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
9
XXXXX FARGO BANK, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
00
XXXXX XXXX XX XXXXXXXXXX N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
11
BANK OF NEW YORK
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
12
CORESTATES BANK, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
