EXHIBIT 10.55
THIRD AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
AMONG
F.I.R.C., INC.,
AS BORROWER
NATIONSBANK, N.A.,
INDIVIDUALLY AS BANK AND AS AGENT,
AND
THE FINANCIAL INSTITUTIONS PARTIES TO
THE CREDIT AGREEMENT,
AS BANKS
Dated as of January 25, 1999
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "THIRD
AMENDMENT"), dated as of January 25, 1999 (the "EFFECTIVE DATE"), is entered
into by and among F.I.R.C., INC., a Delaware corporation (the "BORROWER"),
NATIONSBANK, N.A., a national banking association (as successor in interest to
NationsBank of Texas, N.A.), individually and as administrative agent for the
Banks (in its capacity as administrative agent, the "AGENT"), and the financial
institutions now or hereafter a party to the Credit Agreement (defined below)
(the "BANKS").
W I T N E S S E T H
WHEREAS, the Borrower, the Agent, and the Banks made and entered into that
certain Amended and Restated Credit Agreement dated as of October 30, 1996, as
amended by that certain First Amendment to Amended and Restated Credit
Agreement, dated as of January 31, 1997, and that certain Second Amendment to
Amended and Restated Credit Agreement, dated effective as of April 30, 1997 (as
amended, the "CREDIT AGREEMENT"), pursuant to which the Banks have agreed to
make certain loans to and for the account of the Borrower;
WHEREAS, the Borrower has requested an amendment of, and the Agent and the
Banks have agreed to amend, certain provisions of the Credit Agreement on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINED TERMS. All capitalized terms that are defined in the
Credit Agreement, but that are not defined in this Third Amendment, shall have
the same meanings as defined in the Credit Agreement. Unless otherwise
indicated, all section references in this Third Amendment refer to the Credit
Agreement.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
Section 2.01 DEFINITION OF COMMITMENT. The definition of "COMMITMENT" is
amended hereby to delete the amount "$55,000,000" and to insert the amount
"$65,000,000" in lieu thereof.
Section 2.02 AMENDMENT TO SECTION 8.01(K). Section 8.01(k) of the Credit
Agreement is amended hereby to delete the amount "$50,000" and to insert the
amount "$200,000" in lieu thereof.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01 CONDITIONS PRECEDENT. The obligation of the Banks to enter
into this Third Amendment is subject to the satisfaction of the following
conditions, each of which shall be satisfactory to the Agent in form and
substance:
(a) LOAN DOCUMENTS. The Agent and each Bank shall have received
multiple counterparts, as requested, of this Third Amendment, executed and
delivered by a duly authorized officer of each party hereto.
(b) NOTES.
(i) The Borrower shall have executed and delivered Notes,
substantially in the form of Exhibit F to the Credit Agreement, payable to
the order of (A) NationsBank, N.A., in the principal amount of
$30,000,000, and (B) First Union National Bank, in the principal amount of
$20,000,000.
(ii) NationsBank, N.A. shall have surrendered to the Agent for
cancellation (and subsequent delivery to the Borrower) the Amended and
Restated Facility Note, dated July 18, 1997, payable by the Borrower to
the order of NationsBank of Texas, N.A., in the original principal amount
of $25,000,000.
(iii) First Union National Bank shall have surrendered to the
Agent for cancellation (and subsequent delivery to the Borrower) the
Amended and Restated Facility Note, dated August 12, 1998, payable by the
Borrower to the order of First Union National Bank, in the original
principal amount of $15,000,000.
(c) CORPORATE AUTHORITY. The Agent will have received copies of
resolutions of the Board of Directors of the Borrower authorizing the
execution, delivery, and performance of the Credit Agreement as amended by
this Third Amendment, accompanied by an original certificate of the
Secretary or Assistant Secretary of the Borrower that such resolutions are
true, correct, and complete copies of resolutions duly adopted by the
Board of Directors and that such resolutions have not been modified,
rescinded, or revoked, and further certifying as to the incumbency and
signature of the officers of the Borrower executing this Third Amendment
and as to the fact that the articles of incorporation and by-laws of the
Borrower have not changed from those furnished pursuant to Section 4.01(g)
of the Credit Agreement.
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(d) NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing as of the Effective Date of this Third Amendment.
(e) COMPLIANCE CERTIFICATE. A compliance certificate, which shall be
true and correct in the form of Exhibit B to the Credit Agreement, duly
and properly executed by an authorized officer of the Borrower on behalf
of the Borrower, dated as of the last Business Day of the calendar month
immediately preceding the Effective Date.
(f) INSURANCE. The ALPI Insurance shall be in form and substance
satisfactory to the Agent, and the Agent shall have been named as an
additional insured with respect thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 REPRESENTATIONS AND WARRANTIES. The Borrower hereby affirms
that as of the date of execution and delivery of this Third Amendment all of the
representations and warranties contained in Article V of the Credit Agreement
are true and correct in all material respects as though made on and as of the
Effective Date of this Third Amendment, except (i) as such representations and
warranties are modified to give effect to the transactions contemplated by this
Third Amendment and (ii) for immaterial deviations.
ARTICLE V
MISCELLANEOUS
Section 5.01 FULL FORCE AND EFFECT. The Borrower hereby agrees that the
provisions of the Credit Agreement and each of the other Loan Documents are, and
shall continue to be, in full force and effect as of the Effective Date of this
Third Amendment, and are ratified and confirmed in all aspects.
Section 5.02 COUNTERPARTS. This Third Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Third Amendment
by signing any such counterpart.
Section 5.03 SUCCESSORS AND ASSIGNS. This Third Amendment will be binding
upon and inure to the benefit of the Borrower, the Agent, and the Banks, and
their permitted successors and assigns, as provided in the Credit Agreement.
Section 5.04 LIMITATIONS. The amendments and modifications 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
Credit 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 Credit Agreement, the
Loan
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Documents, or any of the other documents referred to therein. In the event
of a conflict between this Third Amendment and any of the foregoing documents,
the terms of this Third Amendment shall be controlling.
Section 5.05 GOVERNING LAW. THIS THIRD AMENDMENT (INCLUDING, BUT NOT
LIMITED TO, THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, OTHER THAN THE
CONFLICT OF LAWS RULES THEREOF.
Section 5.06 PRIOR OR EXISTING DEFAULTS. Any Default occurring during the
period prior to and including the Effective Date of this Third Amendment and
continuing shall constitute a Default for all purposes under the Credit
Agreement as amended hereby.
Section 5.07 FINAL AGREEMENT. THIS WRITTEN THIRD AMENDMENT, THE CREDIT
AGREEMENT, THE LOAN DOCUMENTS, AND THE OTHER DOCUMENTS EXECUTED IN CONNECTION
THEREWITH REPRESENT THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES
AND SUPERSEDE ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES
RELATED TO THE SUBJECT MATTER HEREOF AND THEREOF. THIS WRITTEN THIRD AMENDMENT,
THE CREDIT AGREEMENT, THE LOAN DOCUMENTS, AND THE OTHER DOCUMENTS EXECUTED IN
CONNECTION THEREWITH 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 Third Amendment to
be duly executed as of the day and year first above written.
F.I.R.C., INC.
By: /s/ Bennie H. Duck
Name: /s/ Bennie H. Duck
Title: Secretary and Treasurer
NATIONSBANK, N.A.,
AS AGENT
By: /s/ Elizabeth Kurilecz
Name: /s/ Elizabeth Kurilecz
Title: Senior Vice President
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BANKS NATIONSBANK, N.A.
By: /s/ Elizabeth Kurilecz
Name: /s/ Elizabeth Kurilecz
Title: Senior Vice President
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FIRST UNION NATIONAL BANK
By: /s/ Terence P. Begley
Name: /s/ Terence P. Begley
Title: Senior Vice President
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WELLS FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By: /s/ Jonathan C. Homeyer
Name: /s/ Jonathan C. Homeyer
Title: Vice President
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