FIRST AMENDMENT TO AMENDED AND
RESTATED LETTER LOAN AGREEMENT,
PROMISSORY NOTE (ADVANCING TERM) AND
AMENDED AND RESTATED SECURITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LETTER LOAN AGREEMENT,
PROMISSORY NOTE (ADVANCING TERM) AND AMENDED AND RESTATED SECURITY AGREEMENT
("Amendment") is made and entered into effective the 21st day of September,
1995, by and between XXXXXX-XXXXXX, INC., a Texas corporation (herein called
"Borrower"), and BANK ONE, TEXAS, NA, with offices in Houston, Texas (herein
called "Lender").
R E C I T A L S:
WHEREAS, Borrower and Lender entered into, among other agreements, (i) an
Amended and Restated Letter Loan Agreement dated April 21, 1995 (the "Loan
Agreement"; the terms defined therein being used herein as therein defined
unless otherwise defined herein), (ii) a Promissory Note (Advancing Term) of
even date with the Loan Agreement in the principal sum of $1,000,000.00
("Equipment Note"), and (iii) an Amended and Restated Security Agreement of even
date with the Loan Agreement (the "Security Agreement"); and
WHEREAS, Borrower and Lender desire to (i) increase the principal sum of
the Equipment Note from $1,000,000.00 to $1,500,000.00, (ii) extend the period
under which Lender is obligated to make advances under the Equipment Note from
April 30, 1996 to August 31, 1996, (iii) extend the maturity date of the
Equipment Note from April 30, 2001 to August 31, 2001, and (iv) amend certain
terms and provisions of the Loan Agreement.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the mutual promises herein contained
and other good and valuable consideration, the receipt of which is hereby
acknowledged, Borrower and Lender hereby agree to amend the Loan Agreement,
the Equipment Note and the Security Agreement as hereinafter set forth.
1. Amendments to Loan Agreement. The Loan Agreement is, effective the
date hereof, and subject to the satisfaction of the conditions precedent set
forth in Section 4 hereof, hereby amended as follows:
(a) The introductory paragraph of the Loan Agreement is hereby
amended by deleting the reference to "$5,567,818.20" and substituting
therefor "$6,067,818.20".
(b) Paragraph 1 of the Loan Agreement is hereby amended by deleting
the reference to "$5,567,818.20" and substituting therefor "$6,067,818.20",
and by deleting the reference to "$1,000,000.00", as set forth in item (iv)
therein, and substituting therefor "$1,500,000.00".
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(c) Subparagraph 2(c) of the Loan Agreement is hereby amended by
deleting the reference to "$1,000,000.00" and substituting therefor
"$1,500,000.00", and by deleting the reference to "April 30, 1996" and
substituting therefor "August 31, 1996".
2. Amendments to Equipment Note. The Equipment Note is, effective the
date hereof, and subject to the satisfaction of the conditions precedent set
forth in Section 4 hereof, hereby amended as follows:
(a) The first grammatical paragraph on page two of the Equipment Note
dated April 21, 1995 is, effective the date hereof, amended by deleting the
reference to "April 30, 1996" and substituting "August 31, 1996" therefor,
and by deleting the reference to "April 30, 2001" and substituting
"August 31, 2001" therefor.
(b) Upon the effective date hereof, Lender shall be authorized to
endorse on the Equipment Note the following legend or a legend of similar
effect:
"The Advancing Termination Date set forth in this Note has been
extended until August 31, 1996, and the final maturity set forth
in this Note has been extended until August 31, 2001, pursuant
to a First Amendment to Amended and Restated Letter Loan Agreement,
Promissory Note (Advancing Term) and Amended and Restated Security
Agreement, dated as of September 21st, 1995 amending, among other
things, the Loan Agreement referred to in this Note."
3. Amendment to Security Agreement. The Security Agreement is, effective
the date hereof, and subject to the satisfaction of the conditions precedent set
forth in Section 4 hereof, hereby amended as follows:
(a) Section 1.2 of the Security Agreement is hereby amended by
deleting the reference to "$1,000,000.00", as set forth in item (iv)
therein, and substituting therefor "$1,500,000.00".
4. Conditions of Effectiveness. This Amendment shall become effective
when, and only when, Lender shall have received counterparts of this Amendment
executed by Borrower and Sections 1, 2 and 3 hereof shall become effective when,
and only when, Lender shall have additionally received all of the following
documents:
(a) Modification of Note and Liens executed by Borrower;
(b) Certificates of the Boards of Directors of Borrower authorizing
the execution, delivery and performance of this Amendment, and the matters
contemplated hereby; and
(c) Any other instruments or documents as may be required by Lender.
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5. Representations and Warranties of Borrower. Borrower represents and
warrants as follows:
(a) Borrower is duly authorized and empowered to execute, deliver and
perform this Amendment and all other instruments referred to or mentioned
herein to which it is a party, and all action on its part requisite for the
due execution, delivery and the performance of this Amendment has been duly
and effectively taken. This Amendment, when executed and delivered, will
constitute valid and binding obligations of Borrower enforceable in
accordance with its terms. This Amendment does not violate any provisions
of Borrower's Articles of Incorporation, By-Laws, or any contract,
agreement, law or regulation to which Borrower is subject, and does not
require the consent or approval of any regulatory authority or governmental
body of the United States or any state.
(b) The representations and warranties made by Borrower in the Loan
Agreement are true and correct as of the date of this Amendment.
(c) No event has occurred and is continuing which constitutes an
Event of Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
6. Reference to and Effect on the Security Instruments.
(a) Upon the effectiveness of Sections 1, 2 and 3 hereof, on and
after the date hereof each reference in the Loan Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import, and
each reference in the other Security Instruments (hereinafter defined) to
the Loan Agreement, shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) Except as specifically amended above, the Loan Agreement, the
Equipment Note, the Security Agreement, and all other instruments securing
or guaranteeing Borrower's obligations to Lender (the "Security
Instruments") shall remain in full force and effect and are hereby ratified
and confirmed. Without limiting the generality of the foregoing, the
Security Instruments and all collateral described therein do and shall
continue to secure the payment of all obligations of Borrower under the
Loan Agreement and the Equipment Note, as amended hereby, and under the
other Security Instruments.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of Lender under any of the Security Instruments, nor
constitute a waiver of any provision of any of the Security Instruments.
7. Waiver. As additional consideration for the execution, delivery and
performance of this Amendment by the parties hereto and to induce Lender to
enter into this Amendment, Borrower warrants and represents to Lender that no
facts, events, statuses or conditions exist or have existed which, either now or
with the passage of time or giving of notice, or both, constitute or will
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constitute a basis for any claim or cause of action against Lender or any
defense to (a) the payment of any obligations and indebtedness under the
Equipment Note and/or the Security Instruments or (b) the performance of any of
their obligations with respect to the Equipment Note and/or the Security
Instruments, and in the event any such facts, events, statuses or conditions
exist or have existed, Borrower unconditionally and irrevocably waives any and
all claims and causes of action against Lender and any defenses to their payment
and performance obligations in respect to the Equipment Note and the Security
Instruments.
8. Costs and Expenses. Borrower agrees to pay on demand all costs and
expenses of Lender in connection with the preparation, reproduction, execution
and delivery of this Amendment and the other instruments and documents to be
delivered hereunder, including the reasonable fees and out-of-pocket expenses of
counsel for Lender. In addition, Borrower shall pay any and all fees payable or
determined to be payable in connection with the execution and delivery, filing
or recording of this Amendment and the other instruments and documents to be
delivered hereunder, and agrees to save Lender harmless from and against any and
all liabilities with respect to or resulting from any delay in paying or
omission to pay such fees.
9. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
10. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas.
11. Final Agreement. THIS WRITTEN LOAN AGREEMENT 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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed in multiple counterparts, each of which is an original instrument
for all purposes, all as of the day and year first above written.
LENDER: BORROWER:
BANK ONE, TEXAS, XX XXXXXX-XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------ --------------------------
Xxxxx X. Xxxxx, Vice President Xxxxxx X. Xxxxxx, Chairman
of the Board of Directors
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MODIFICATION OF NOTE AND LIENS
THE STATE OF TEXAS )
) KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF XXXXXX )
THIS MODIFICATION OF NOTE AND LIENS (xxxxx called "Agreement") is entered
into effective as of the 21st day of September, 1995, by and between BANK ONE,
TEXAS, NA, a national banking association (herein called "Lender"), and XXXXXX-
XXXXXX, INC., a Texas corporation (herein called "Borrower").
W I T N E S S E T H:
WHEREAS, Borrower made, executed and delivered that certain Promissory Note
(herein called the "Note") dated April 21, 1995, in the original principal sum
of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00), payable to the order of
Lender, as therein provided, said Note being (a) issued pursuant to the Amended
and Restated Letter Loan Agreement of even date with the Note (which, as it may
have been amended, supplemented or restated, is called the "Loan Agreement")
between Borrower and Lender, and (b) secured by a Supplemental Deed of Trust
(the "Deed of Trust") of even date therewith, executed by Borrower for the
benefit of Lender, and filed for record in the Official Public Records of Real
Property of Xxxxxx County, Texas under Clerk's File No. R424607, covering the
property (the "Property") more fully described therein; and
WHEREAS, the indebtedness evidenced by the Note matures on April 30, 2001;
and
WHEREAS, Borrower has requested, and Lender has agreed, on the terms and
conditions set forth herein, to an enlargement of the principal sum of the
Note.
NOW, THEREFORE, in consideration of the mutual covenants, rights and
obligations contained herein, the benefits to be derived therefrom and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree and contract as
follows:
1. Lender and Borrower hereby acknowledge that the outstanding principal
balance of the Note on the effective date hereof is ZERO AND NO/100
DOLLARS ($0.00).
2. Borrower hereby promises to pay to the order of Lender the sum of ONE
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($1,500,000.00), or so
much thereof as may be advanced and outstanding pursuant to the Loan
Agreement, at the offices of Lender in Houston, Xxxxxx County, Texas,
together with interest thereon from and after the date hereof until
maturity on the unpaid principal balance outstanding from time to time
thereon at the per annum rate of interest set forth in the Note.
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3. Accrued interest on the Note shall be due and payable in monthly
installments as it accrues, the first such installment becoming due and
payable on or before September 30, 1995, with a like installment being
due and payable on or before the last day of each succeeding calendar
month thereafter until and including August 31, 1996 (the "Advancing
Termination Date"). Thereafter, the Note shall be due and payable in
monthly installments of (i) all accrued and unpaid interest thereon, plus
(ii) a principal installment in an amount based on a sixty (60) month
equal amortization of the outstanding principal amount of this Note as of
the Advancing Termination Date; the first such installment becoming due and
payable on or before one month after the Advancing Termination Date, with a
like installment becoming due and payable on or before the same day of each
of the succeeding calendar months thereafter until August 31, 2001, when
the Note, including all outstanding principal and accrued, unpaid interest
hereon shall be fully and finally paid.
4. This Agreement is entered into in modification and enlargement (and not in
extinguishment, substitution, novation or discharge) of the unpaid
principal balance of the Note. All liens, security interest and
obligations securing and guaranteeing payment of the Note, including
without limitation the Loan Agreement and the Deed of Trust (collectively
the "Security Documents") are hereby ratified, confirmed, renewed,
extended and brought forward as security for the payment hereunder.
5. All terms, conditions and provisions contained in the Note, except as
specifically set forth herein, shall continue and remain in full force and
effect.
6. The Security Documents are hereby amended to provide that the Note
described therein shall mean the Note, as modified hereby. All terms,
conditions and provisions contained in the Security Documents, except as
modified and restated (where applicable) by the documents referred to
herein, shall continue and remain in full force and effect.
7. The Property shall be and remain in all respects subject to the lien,
charge or encumbrance of the Security Documents, as modified, and nothing
herein contained and nothing done pursuant hereto shall affect or be
construed to affect the lien, charge or encumbrance of the Security
Documents, as modified, or the priority thereof over any other liens,
charges or encumbrances or to release or affect the liability of any party
or parties whomsoever who may now or hereafter be liable under or on
account of the Security Documents, as modified and restated (where
applicable), nor shall anything herein contained or done in pursuance
hereof affect or be construed to affect any other security for the
indebtedness evidenced by the Note, if any, held by Lender.
8. This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas. If any provision of this Agreement or the
application thereof to any person or circumstances shall, for any reason
and to any extent, be invalid or unenforceable, neither the remainder of
this Agreement, nor the application of such provision to any other persons
or circumstances shall be affected thereby, but rather same shall be
enforced to the greatest extent permitted by law.
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9. This Agreement, and all the terms, provisions and conditions hereof, shall
be binding upon each party hereto and such party's legal representatives,
successors and assigns.
10. This Agreement may be executed in multiple originals. This Agreement may
also be executed in multiple counterparts, and all so executed shall
constitute one agreement, binding on the parties hereto, notwithstanding
that all parties are not signatories to the original or the same
counterpart.
11. THIS WRITTEN AGREEMENT, TOGETHER WITH THE SECURITY DOCUMENTS, 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.
EXECUTED by each party on the date of its respective acknowledgment, but to
be effective for all purposes as of the date first above written.
XXXXXX-XXXXXX, INC.
"BORROWER"
XXXXXX-XXXXXX, INC.
By /S/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, Chairman
of the Board of Directors
"LENDER"
BANK ONE, TEXAS, NA
By /S/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx, Vice President
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XXX XXXXX XX XXXXX )
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me this 21st day of September,
1995, by Xxxxxx X. Xxxxxx, Chairman of the Board of Directors of Xxxxxx-Xxxxxx,
Inc., a Texas corporation, on behalf of said corporation.
/S/ Xxxxxx X. Xxxxxxx
-----------------------------
Notory Public, State of Texas
THE STATE OF TEXAS )
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me this 25th day of September,
1995, by Xxxxx X. Xxxxx, Vice President of Bank One, Texas, NA, a national
banking association, on behalf of said association.
/S/ Xxxxxx X. Xxxxxx
-----------------------------
Notary Public, State of Texas
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XXXXXX-XXXXXX, INC.
Certificate
The undersigned hereby certifies that he is the duly elected and acting
Secretary of XXXXXX-XXXXXX, INC., a Texas corporation (the "Company"), and as
such has custody of the corporate records of the Company and is authorized to
execute and deliver this Certificate on behalf of the Company; and with
reference to a loan being modified by BANK ONE, TEXAS, NA (the "Lender"), the
undersigned hereby further certifies as follows:
1. Attached hereto as Exhibit "A" is a full, true and correct copy of the
Resolutions duly adopted by the Board of Directors of the Company by a unanimous
written consent effective September 21st, 1995, in accordance with the Texas
Business Corporation Act, and the Articles of Incorporation and Bylaws of the
Company.
2. The Resolutions attached as Exhibit "A" hereto have not been amended,
modified or rescinded and are in full force and effect on the date hereof.
3. The undersigned officers have been duly elected to the positions set
forth next to their respective names below, and are qualified to act in such
capacities and execute documents on behalf of the Company, and the signature
appearing opposite each name is the authentic signature of each such officer.
Name Office Signature
Xxxxxxxxx Xxxxxx President /s/ Xxxxxxxxx Xxxxxx
------------------------
Chairman of the Board
Xxxxxx X. Xxxxxx and /s/ Xxxxxx X. Xxxxxx
Chief Executive Officer ------------------------
Xxxx Xxxxxxx Secretary /s/ Xxxx Xxxxxxx
------------------------
4. The Company is duly organized and existing under the laws of the State
of Texas.
5. All franchise and other taxes required to maintain the Company's
existence have been paid and no such taxes are delinquent.
6. No proceedings are pending for the forfeiture of the Company's
authority to do business or to force its dissolution, voluntarily or
involuntarily.
7. There is no provision in the Articles of Incorporation or Bylaws of
the Company limiting the above-described resolutions, and said resolutions are
in conformity with the provisions of the Company's Articles of Incorporation and
Bylaws, and with the proceedings of the Board of Directors.
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8. The Articles of Incorporation of the Company previously delivered to
the Lender are in full force and effect and have not been amended or modified,
except as may have been disclosed in writing to the Lender.
9. The Bylaws of the Company previously delivered to the Lender are in
full force and effect and have not been amended or modified except as may have
been disclosed in writing to the Lender.
EXECUTED the 21st day of September, 1995.
/S/ Xxxx Xxxxxxx
---------------------------------------
Xxxx Xxxxxxx, Secretary
The undersigned, the Chairman of the Board of the Company, hereby certifies
that Xxxx Xxxxxxx is the Secretary of the Company and is authorized to execute
and deliver this Certificate for and on behalf of the Company.
/S/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx, Chairman of the Board
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EXHIBIT "A"
WHEREAS, XXXXXX-XXXXXX, INC. (the "Company") shall modify and enlarge a
loan (the "Loan") from BANK ONE, TEXAS, NA (the "Lender"), in the amount of
$1,500,000, pursuant to the terms of the Loan Agreement, as amended;
RESOLVED, further, in regard to the Loan that any one of the President, the
Chairman of the Board of Directors, the Secretary, or the Chief Executive
Officer of the Company is hereby authorized and directed to execute and deliver,
for and on behalf of the Company, documents as may be deemed necessary or
desirable by such officers or required by the Lender in regard to the Loan; and
further
RESOLVED, that the drafts of such documents presented to the Board of
Directors of the Company are hereby approved; and further
RESOLVED, that the officers executing and delivering any of the above-
described documents are hereby authorized and empowered to execute and deliver
the same in the name and on behalf of the Company, and in such manner of
counterparts as the officer or officers executing the same shall deem necessary
or desirable, and with such terms, conditions and provisions, including
modifications from the drafts presented to the Board of Directors, as the
officer or officers executing the same may approve, the execution of such
documents to evidence with approval conclusively; and further
RESOLVED, that any and all instruments executed and delivered on behalf of
the Company in connection with the foregoing resolutions by any person
purporting to be an officer of the Company shall be deemed to be the act of the
Company and shall be in all respects binding against the Company; and further
RESOLVED, that the officers of the Company be, and they hereby are,
authorized and empowered on behalf of and in the name of the Company to take or
cause to be taken in the name of the Company all such other and further action,
to make all payments and to execute, acknowledge and deliver any and all
certificates, opinions, documents and other instruments in such form and under
the corporate seal as required, as in the judgment of such officers may be
necessary, proper or convenient in order to carry out the foregoing resolutions,
to consummate the Loan described herein, and to comply with the terms and
provisions of all the documents described above; and further
RESOLVED, that all actions by any and all officers of the Company taken or
performed up to the date hereof and in respect to the preparation, execution and
delivering of the documents, certificates or other instruments required pursuant
to the provisions of the above-described documents, and the taking prior to the
date hereof of any and all actions otherwise required by the terms and
provisions of said documents or any other documents executed in connection
therewith be, and they are hereby, in all respects approved, ratified and
confirmed; and further
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RESOLVED, that any one of the President, the Chairman of the Board of
Directors, Secretary or the Chief Executive Officer of the Company is hereby
authorized to make applications for and effect other loans from time to time on
behalf of the Company from the Lender and for such loans, to make, execute and
deliver promissory notes, drafts, bonds or other written obligations of the
Company in such form, date and maturity and at such rate of interest as such
officer or officers of the Company may determine and in the event the Company
adopts a corporate seal, to cause the same to be affixed to any such instruments
whenever necessary or required. It is further resolved that said officers are
hereby authorized in the name of the Company to renew or extend any loan or
loans from time to time and execute and deliver promissory notes, drafts, bonds
or other obligations or extensions to any notes theretofore given; and further
RESOLVED, that the authority hereinabove given to said officers to
negotiate loans in excess of the Loan specifically referenced herein shall
remain irrevocable insofar as the Lender is concerned until the Lender be
notified of the revocation of such authority and shall in writing acknowledge
receipt of such notification.
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