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EXHIBIT 10.22
SECOND AMENDMENT
TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT dated as of November 30, 1998
(this "Amendment") is among XXXXX CORPORATION, a Nevada corporation (the
"Borrower"), the banks named on the signature pages hereto, and CHASE BANK OF
TEXAS, N.A. (formerly known as Texas Commerce Bank National Association), as
Funds Administrator and Agent (the "Agent").
PRELIMINARY STATEMENT
(1) Pursuant to that certain Credit Agreement dated as of September 19,
1997, among the Borrower, the banks named therein (the "Banks"), the Agent as
the fund administrator and the Agent, the Banks have made a revolving credit
facility available to the Borrower upon the terms and conditions set forth
therein. Said Credit Agreement was amended by that certain First Amendment to
Credit Agreement dated as of January 30, 1998, among the Borrower, the Banks,
the Agent and the funds administrator. Said Credit Agreement as amended by the
First Amendment to Credit Agreement is herein referred to as the "Existing
Credit Agreement".
(2) The Borrower has requested that certain provisions of the Existing
Credit Agreement be further amended, and the Banks and the Agent have agreed to
amend such provisions to the extent and in the manner set forth herein.
Accordingly, in consideration of the foregoing and the mutual covenants set
forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. All capitalized terms defined in the Existing
Credit Agreement, and not otherwise defined herein shall have the same meanings
herein as in the Existing Credit Agreement. Upon the effectiveness of this
Amendment, each reference (a) in the Existing Credit Agreement to "this
Agreement," "hereunder," "herein" or words of like import shall mean and be a
reference to the Existing Credit Agreement, as amended hereby, (b) in the Notes
and the other Loan Documents to the Existing Credit Agreement shall mean and be
a reference to the Existing Credit Agreement, as amended hereby, and (c) in the
Loan Documents to any term defined by reference to the Existing Credit Agreement
shall mean and be a reference to such term as defined in the Existing Credit
Agreement, as amended hereby.
SECTION 1.02. REFERENCES, ETC. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Amendment shall refer to this
Amendment as a whole and not to any particular provision of this Amendment. In
this Amendment, unless a clear contrary intention appears the word "including"
(and with correlative meaning "include") means including, without limiting the
generality of any description preceding such term. No provision of this
Amendment shall be interpreted or constructed against any Person solely because
that Person or its legal representative drafted such provision.
ARTICLE II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
SECTION 2.01. AMENDMENT TO SECTION 6.01(C). Section 6.01(c) of the Existing
Credit Agreement is amended and restated to read as follows:
"(c) Minimum Net Worth. Permit Net Worth, measured as of the last day of
any calendar quarter, to be less than the sum of (i) the Base Equity Amount (as
defined below), plus (ii) the lesser of (A) a cumulative
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amount equal to fifty percent (50%), if positive, zero percent (0%), if
negative, of Net Income for each fiscal year ending after September 19, 1997 and
(B) $75,000,000. As used herein, the term "Base Equity Amount" means the sum of
(1) $136,000,000 minus (2) an amount equal to the lesser of (x) $50,000,000 and
(y) the net reduction in Net Worth after December 31, 1997 attributable to
Borrower's sale, issuance or repurchase of its capital stock."
SECTION 2.02. AMENDMENT TO SECTION 6.11. Section 6.11 of the Existing
Credit Agreement is deleted in its entirety.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.01. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon receipt by the Agent of the following, each in form and substance
reasonably satisfactory to the Agent and in such number of counterparts as may
be reasonably requested by the Agent:
(a) This Amendment duly executed by the Borrower and the Majority Banks.
(b) A certificate of the secretary or an assistant secretary of the
Borrower certifying (i) true and correct copies of resolutions adopted by the
Board of Directors of the Borrower (A) authorizing the execution, delivery and
performance by the Borrower of this Amendment, and (B) authorizing officers of
the Borrower to execute and deliver this Amendment, and (ii) the incumbency and
specimen signatures of the officers of the Borrower executing this Amendment or
any other document on behalf of the Borrower.
(c) A certificate of a Responsible Officer of the Borrower certifying that,
after giving effect to this Amendment, (i) the representations and warranties
contained in Article IV are true and correct on and as of such date, as though
made on and as of such date, and (ii) no Default has occurred and is continuing,
or would result from the execution, delivery or performance of this Amendment.
(d) Certificates of appropriate public officials as to the existence and
good standing of the Borrower in the States of Nevada and Texas.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Bank Group to enter into this Amendment, the
Borrower hereby represents and warrants to the Bank Group as follows:
SECTION 4.01. EXISTING CREDIT AGREEMENT. After giving effect to the
execution and delivery of this Amendment and the consummation of the
transactions contemplated hereby, and with this Amendment constituting one of
the Loan Documents, the representations and warranties set forth in Article IV
of the Existing Credit Agreement are true and correct on the date hereof as
though made on and as of such date.
SECTION 4.02. NO DEFAULT. After giving effect to the execution and delivery
of this Amendment and the consummation of the transactions contemplated hereby,
no Default or Event of Default has occurred and is continuing as of the date
hereof.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. AFFIRMATION OF LOAN DOCUMENTS. The Borrower hereby
acknowledges and agrees that all of its obligations under the Existing Credit
Agreement, as amended hereby, and the other Loan Documents shall remain in full
force and effect following the execution and delivery of this Amendment, and
such obligations are hereby affirmed, ratified and confirmed by the Borrower.
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SECTION 5.02. COSTS AND EXPENSES. The Borrower agrees to pay on demand all
reasonable costs and expenses incurred by the Agent and the Funds Administrator
in connection with the preparation, execution, delivery, filing, administration
and recording of this Amendment and any other agreements delivered in connection
with or pursuant to this Amendment, including, without limitation, the
reasonable fees and out-of-pocket expenses of Xxxxxxx & Xxxxx L.L.P., special
counsel to the Agent.
SECTION 5.03. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the Borrower and the Bank Group and their respective
successors and assigns.
SECTION 5.04. CAPTIONS. The captions in this Amendment have been inserted
for convenience only and shall be given no substantive meaning or significance
whatsoever in construing the terms and provisions of this Amendment.
SECTION 5.05. 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.
SECTION 5.06. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Texas.
SECTION 5.07. FINAL AGREEMENT OF THE PARTIES. THE EXISTING CREDIT AGREEMENT
(INCLUDING THE EXHIBITS THERETO), AS AMENDED BY THIS AMENDMENT, THE NOTES AND
THE OTHER LOAN 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
XXXXX CORPORATION
By: /s/ G. XXXXXXX XXXXXXX
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Name: G. Xxxxxxx Xxxxxxx
Title: Vice President
CHASE BANK OF TEXAS, N.A. (formerly
known as Texas Commerce Bank National
Association), as Funds Administrator,
as Agent, and individually as one of
the Banks
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ DIEGO PUIGGARI
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Name: Diego Puiggari
Title: Group Vice President
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Credit Officer
CITIBANK, N.A.
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Vice President
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FIRST UNION NATIONAL BANK, as
successor to CoreStates Bank, N.A.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
DEPOSIT GUARANTY NATIONAL BANK
By: /s/ E. XXXXXXX XXXXXX
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Name: E. Xxxxxxx Xxxxxx
Title: Senior Vice President
XXXXX FARGO BANK (TEXAS), N.A.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
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