EXHIBIT 4.4
AGREEMENT AND THIRD AMENDMENT TO LOAN AGREEMENT
(May 13, 1998)
THIS AGREEMENT AND THIRD AMENDMENT TO LOAN AGREEMENT (this "Amendment"),
dated as of May 13, 1998, is made and entered into by and among XXXXXXX &
XXXXXXXXX SERVICES, INC. (the "BORROWER"), a Texas corporation; the financial
institutions listed on the signature pages hereto (collectively, the "LENDERS"),
and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION (formerly known as Texas Commerce
Bank National Association), a national banking association domiciled in Houston,
Xxxxxx County, Texas, acting in its individual capacity (in such capacity,
"CHASE TEXAS") and its capacity as agent for the Lenders (in such capacity, the
"AGENT"). The Borrower, the Lenders and the Agent are herein sometimes called
the "PARTIES".
RECITALS:
1. The Parties (except Credit Lyonnais New York Branch) have entered into
a Loan Agreement dated as of December 20, 1996. Such Loan Agreement was amended
by Amendment to Loan Agreement dated as of August 25, 1997, which added Credit
Lyonnais New York Branch as a Lender, and by Agreement and Second Amendment to
Loan Agreement dated as of January 31, 1998 and, as so amended, is herein called
the "LOAN AGREEMENT".
2. The Parties desire to amend the Loan Agreement to permit the Borrower
and its Subsidiaries to incur a limited amount of indebtedness secured by Liens
on their property.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by
the Parties, the Parties agree as follows:
1. AMENDMENT OF SECTION 7(A). SECTION 7(A) of the Loan Agreement is hereby
amended by deleting the word "and" before CLAUSE (10) thereof and adding after
CLAUSE (10) thereof the following:
"and (11) Liens not otherwise permitted by CLAUSES (1) THROUGH (10)
above incurred subsequent to April 1, 1998 to secure indebtedness,
PROVIDED that the aggregate amount of Indebtedness so secured shall not
exceed $20,000,000 at any one time outstanding."
2. CONDITIONS PRECEDENT. This Amendment shall be effective as of the date
set forth above, subject to the satisfaction, in a manner satisfactory to the
Agent, of each of the following conditions precedent:
(a) The Agent shall have received the following, each of which shall be in
form and substance satisfactory to the Agent in its sole discretion and duly and
validly executed:
(1) A certificate of the Secretary or any Assistant Secretary of the
Borrower, dated as of the date hereof, as to the Bylaws of the Borrower (a copy
of such Bylaws to be attached to such certificate) and as to the absence of any
change since December 20, 1996, in any of (x) the incumbency and signatures of
the officer or officers of the Borrower or (y) the Articles of Incorporation of
the Borrower; and
(2) this Amendment, duly executed by the Borrower, the Majority
Lenders and the Agent.
(b) The Borrower shall have paid all accrued and unpaid fees and other
amounts in connection with this Amendment.
(c) No Default shall have occurred and be continuing.
(d) Such effectiveness shall not violate any legal requirement applicable
to the Agent or any Lender.
3. REPRESENTATIONS TRUE; NO DEFAULT. The Borrower represents and warrants
to the Agent and each Lender that (a) the representations and warranties
contained in the Loan Agreement and in the other Credit Documents are true and
correct on and as of the date hereof as though made on and as of such date
(except to the extent such representations and warranties are expressly stated
to be made solely as of an earlier date) and (b) no event has occurred and is
continuing which constitutes an Event of Default under the Loan Agreement or any
of the other Credit Documents or which upon the giving of notice or the lapse of
time or both would constitute such an Event of Default.
4. RATIFICATION. Except as expressly amended hereby, the Loan Agreement,
as hereby amended, and the other Credit Documents are in all respects ratified
and confirmed and are, and shall continue to be, in full force and effect. The
Borrower hereby agrees and acknowledges that all of its liabilities and
obligations under the Loan Agreement, the other Credit Documents, or otherwise,
remain in full force and effect as of the date of this Amendment.
5. DEFINITIONS AND REFERENCES. Unless otherwise defined herein, terms used
herein which are defined in the Loan Agreement or in the other Credit Documents
shall have the meanings therein ascribed to them. The term "Agreement" as used
in the Loan Agreement and the term "Loan Agreement" as used in the other Credit
Documents or any other instrument, document or writing furnished to the Agent or
any
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Lender by or on behalf of the Borrower shall mean the Loan Agreement as hereby
amended.
6. EXPENSES; ADDITIONAL INFORMATION. The Borrower shall pay to the Agent
on demand all expenses (including reasonable counsel's fees) incurred in
connection with the preparation, reproduction, execution and delivery of this
Amendment and with respect to advising the Agent as to its rights and
responsibilities under the Loan Agreement, as hereby amended. In addition, the
Borrower shall pay all costs and expenses of the Agent and each Lender
(including counsel's fees) in connection with the enforcement of this Amendment.
7. SEVERABILITY. If any term or provision of this Amendment or the
application thereof to any person or circumstances shall, to any extent, be
deemed invalid or unenforceable, the remainder of this Amendment, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and this Amendment shall be valid and enforced to the fullest extent
permitted by applicable law. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions thereof or affecting the validity or
enforceability of such provision in any other jurisdiction and, to this end, the
provisions of this Amendment are severable.
8. INDEMNIFICATION. THE BORROWER SHALL INDEMNIFY THE AGENT, THE LENDERS
AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS FROM, AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES,
LIABILITIES (INCLUDING ENVIRONMENTAL LIABILITIES), CLAIMS (INCLUDING
ENVIRONMENTAL CLAIMS), EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) OR
DAMAGES TO WHICH ANY OF THEM MAY BECOME SUBJECT, INSOFAR AS SUCH LOSSES,
LIABILITIES, CLAIMS, EXPENSES OR DAMAGES ARISE OUT OF OR RESULT FROM (A) ANY
ACTUAL OR PROPOSED USE BY THE BORROWER OF THE PROCEEDS OF ANY LOAN MADE OR
LETTER OF CREDIT ISSUED BY ANY LENDER OR GROWING OUT OF OR RESULTING FROM ANY
CREDIT DOCUMENT OR ANY TRANSACTION OR EVENT CONTEMPLATED THEREIN; (B) VIOLATION
BY THE BORROWER OR ANY OF ITS SUBSIDIARIES OF ANY LAW, RULE, REGULATION OR ORDER
INCLUDING THOSE RELATING TO HAZARDOUS SUBSTANCES, PETROLEUM, PETROLEUM PRODUCTS
OR PETROLEUM WASTES; (C) ANY LENDER OR THE AGENT BEING DEEMED AN OPERATOR OF ANY
OF THE BORROWER'S REAL OR PERSONAL PROPERTY BY A COURT OR OTHER REGULATORY OR
ADMINISTRATIVE AGENCY OR TRIBUNAL OR OTHER THIRD PARTY, TO THE EXTENT SUCH
LOSSES, LIABILITIES, CLAIMS OR DAMAGES ARISE OUT OF OR RESULT FROM ANY HAZARDOUS
SUBSTANCE, PETROLEUM, PETROLEUM PRODUCT OR PETROLEUM WASTE LOCATED IN ON OR
UNDER SUCH PROPERTY, OR (D) ANY INVESTIGATION, LITIGATION OR OTHER PROCEEDING
(INCLUDING ANY THREATENED INVESTIGATION OR PROCEEDING) RELATING TO ANY OF THE
FOREGOING. THE OBLIGATIONS OF THE BORROWER UNDER THIS SECTION SHALL SURVIVE THE
TERMINATION OF THE LOAN AGREEMENT (AS AMENDED BY THIS AMENDMENT AND AS IT MAY
OTHERWISE BE AMENDED, RESTATED, MODIFIED AND SUPPLEMENTED FROM TIME TO TIME) AND
THE REPAYMENT AND EXPIRY OF THE LOANS AND ALL LETTER OF CREDIT
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LIABILITIES. ANY AMOUNT TO BE PAID UNDER THIS SECTION BY THE BORROWER TO THE
AGENT OR ANY LENDER SHALL BE A DEMAND OBLIGATION OWING BY THE BORROWER TO THE
AGENT OR SUCH LENDER AND SHALL BEAR INTEREST FROM THE DATE OF EXPENDITURE UNTIL
PAID AT THE PAST DUE RATE.
9. RELEASE OF CLAIMS. THE BORROWER HEREBY RELEASES, DISCHARGES AND ACQUITS
FOREVER THE AGENT AND THE LENDERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
TRUSTEES, AGENTS, EMPLOYEES AND COUNSEL (IN EACH CASE, PAST, PRESENT OR FUTURE)
FROM ANY AND ALL CLAIMS EXISTING AS OF THE DATE HEREOF (OR THE DATE OF ACTUAL
EXECUTION HEREOF BY THE BORROWER, IF LATER). AS USED HEREIN, THE TERM "CLAIM"
SHALL MEAN ANY AND ALL LIABILITIES, CLAIMS, DEFENSES, DEMANDS, ACTIONS, CAUSES
OF ACTION, JUDGMENTS, DEFICIENCIES, INTEREST, LIENS, COSTS OR EXPENSES
(INCLUDING COURT COSTS, PENALTIES, ATTORNEYS' FEES AND DISBURSEMENTS, AND
AMOUNTS PAID IN SETTLEMENT) OF ANY KIND AND CHARACTER WHATSOEVER, INCLUDING
CLAIMS FOR USURY, BREACH OF CONTRACT, BREACH OF COMMITMENT, NEGLIGENT
MISREPRESENTATION OR FAILURE TO ACT IN GOOD FAITH, IN EACH CASE WHETHER NOW
KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, ASSERTED OR UNASSERTED OR PRIMARY OR
CONTINGENT, AND WHETHER ARISING OUT OF WRITTEN DOCUMENTS, UNWRITTEN
UNDERTAKINGS, COURSE OF CONDUCT, TORT, VIOLATIONS OF LAWS OR REGULATIONS OR
OTHERWISE.
10. MISCELLANEOUS. This Amendment (a) shall be binding upon and inure to
the benefit of the Borrower, the Agent and the Lenders and their respective
successors, assigns, receivers and trustees (however, the Borrower may not
assign its rights hereunder without the express prior written consent of the
Lenders); (b) may be modified or amended only by a writing signed by each party;
(c) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES) AND OF THE
UNITED STATES OF AMERICA; (d) may be executed in several counterparts, and by
the Parties on separate counterparts, and each counterpart, when so executed and
delivered, shall constitute an original agreement, and all such separate
counterparts shall constitute but one and the same agreement, and (e) embodies
the entire agreement and understanding between the Parties with respect to the
subject matter hereof and supersedes all prior agreements, consents and
understandings relating to such subject matter. The headings herein shall be
accorded no significance in interpreting this Amendment.
11. THIS AMENDMENT TOGETHER WITH ALL OF THE OTHER CREDIT DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AS TO THE SUBJECT MATTER HEREOF
AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
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IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed
by their respective duly authorized officers effective as of MAY 13, 1998.
XXXXXXX & XXXXXXXXX SERVICES, INC.,
a Texas corporation
By: ________________________________
Name: XXXX X. XXXXXX
Title: ASSISTANT TREASURER
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CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, acting
in its individual capacity and as the Agent for
the Lenders named herein
By: ________________________________
Name: XXXX X. XXXX
Title: MANAGING DIRECTOR
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BANK OF AMERICA NT & SA AS SURVIVOR BY WAY OF
MERGER WITH BANK OF AMERICA ILLINOIS, as a
Co-Agent and a Lender
By: ________________________________
Name: XXXXX X. XXXXXXXX
Title: MANAGING DIRECTOR
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NATIONSBANK OF TEXAS, NATIONALASSOCIATION, as
Co-Agent and a Lender
By: ________________________________
Name: XXXX X. X'XXXXX
Title: SENIOR VICE PRESIDENT
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ABN AMRO BANK N.V., HOUSTON AGENCY
By: ________________________________
Name: DIEGO PUIGGARI
Title: VICE PRESIDENT
By: ________________________________
Name: XXXXX X. XXXXXXXX
Title: VICE PRESIDENT
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XXX XXXX XX XXX XXXX
By: ________________________________
Name: XXXX X. XXXXXX, XX.
Title: VICE PRESIDENT
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CREDIT LYONNAIS NEW YORK BRANCH
By: ________________________________
Name: XXXXXX XXXXXXXXX
Title: SENIOR VICE PRESIDENT
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PNC BANK, NATIONAL ASSOCIATION
By: ________________________________
Name: XXXXXXX X. XXXXXXXXX
Title: VICE PRESIDENT
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FIRST NATIONAL BANK OF COMMERCE
By: ________________________________
Name: XXXXXXX X. XXXX
Title: VICE PRESIDENT
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