exv10w34w2



 





Exhibit 10.34.2




SECOND AMENDMENT TO CREDIT AGREEMENT




     THIS SECOND AMENDMENT TO CREDIT AGREEMENT (herein called the “Second
Amendment”) dated for reference as
of                          , 2004, by and among LA
GRANGE ACQUISITION, L.P. (“Borrower”), a Texas limited partnership, and FLEET
NATIONAL BANK, as administrative agent (in such capacity, “Administrative
Agent”), and the Lenders referred to herein.



W I T N E S S E T H:




     WHEREAS, Borrower, Administrative Agent, FLEET SECURITIES, INC. (now BANC
OF AMERICA SECURITIES LLC) and WACHOVIA CAPITAL MARKETS, LLC, as joint lead
arrangers and book runners, WACHOVIA BANK, NATIONAL ASSOCIATION, as syndication
agent, THE ROYAL BANK OF SCOTLAND PLC and BNP PARIBAS, as co-documentation
agents, BANK OF SCOTLAND, as senior managing agent, U.S. BANK NATIONAL
ASSOCIATION and FORTIS CAPITAL CORP., as co-agents, and the Lenders party
thereto (“Lenders”) have entered into that certain Second Amended and Restated
Credit Agreement dated as of January 20, 2004 (as heretofore amended,
supplemented, or otherwise modified, the “Original Agreement”), for the purpose
and consideration therein expressed, whereby Lenders became obligated to extend
credit to Borrower as therein provided; and



     WHEREAS, Borrower, Administrative Agent, and the Lenders desire to amend
the Original Agreement as provided herein;



     NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement and in
consideration of the loans and other credit that may hereafter be extended by
Lenders to Borrower, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:



ARTICLE I. – Definitions and References




     Section 1.1. Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Second Amendment. The term “the Credit Agreement” shall mean the Original
Agreement as amended by this Second Amendment.



ARTICLE II. – Amendments to Original Agreement




     Section 2.1. Mandatory Prepayments. Section 2.6(c) of the Original
Agreement is hereby amended to read as follows:



     “(c) To the extent that any Restricted Person receives from time to time
during the period after the Closing Date and on or before October 1, 2004 net
cash proceeds (as defined



 









 




below) of any Equity Contribution (other than
contributions to a Subsidiary of Borrower from Borrower or from another Subsidiary of Borrower), but only to the extent
that the aggregate amount of such net cash proceeds received during such period
does not exceed $200,000,000, Borrower will repay a principal amount of the
outstanding Revolver Loans (up to the outstanding balance thereof) in an amount
equal to fifty percent (50%) of such net cash proceeds. Such repayment
pursuant to the preceding sentence shall not reduce the amount of the Revolver
Commitments, and amounts so repaid may be reborrowed, subject to the terms and
conditions of this Agreement. To the extent that any Restricted Person
receives net cash proceeds of any Equity Contribution (other than contributions
to a Subsidiary of Borrower from Borrower or another Subsidiary of Borrower)
(x) during the period after the Closing Date and on or before October 1, 2004
in excess of an aggregate amount of net cash proceeds received during such
period of $200,000,000 or (y) at any time after October 1, 2004 (without regard
to the amount of such net cash proceeds), Borrower will (i) first, prepay a
principal amount of the outstanding Term Loans (up to the outstanding balance
thereof) in an amount equal to fifty percent (50%) of such net cash proceeds
and (ii) next, to the extent that such fifty percent (50%) of net cash proceeds
exceeds the outstanding principal amount of the Term Loans, repay the principal
amount of the Revolver Loans. As used in this Section 2.6(c), the term “net
cash proceeds” shall mean the cash proceeds of an Equity Contribution net of
underwriters’, purchasers’ or arrangers’ discounts, commissions and fees,
legal, accountancy, registration, or printing fees and expenses and other fees
and expenses incurred in connection with an offering of Equity to be paid or
reimbursed by the issuer and net of any taxes, if any, paid or payable as a
result thereof.”




ARTICLE III. – Conditions of Effectiveness




     Section 3.1. Effective Date. This Second Amendment shall become effective
(the “Effective Date”), and is expressly conditioned, upon (i) the receipt by
Administrative Agent, at Administrative Agent’s office, of a counterpart of
this Second Amendment executed and delivered by Borrower, Administrative Agent
and each Lender, and (ii) the satisfaction of each of the conditions precedent
set forth in the First Amendment.



ARTICLE IV. – Representations and Warranties




     Section 4.1. Representations and Warranties. In order to induce
Administrative Agent and the Lenders to execute and deliver this Second
Amendment, Borrower represents and warrants to each Lender that:



     (a) The representations and warranties contained in Article V of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof.



     (b) Borrower is duly authorized to execute and deliver this Second
Amendment, Borrower is and will continue to be duly authorized to borrow monies
under the Credit Agreement, and Borrower is and will continue to be duly
authorized to perform its obligations under the Credit Agreement. Borrower has
duly taken all action necessary to authorize the execution and delivery of this
Second Amendment and to authorize the performance of the obligations of
Borrower hereunder.



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     (c) The execution and delivery by each Restricted Person of this Second
Amendment, the performance by each Restricted Person of its obligations
hereunder and the consummation of the transactions contemplated hereby and thereby do not and will not conflict
with any provision of law, statute, rule or regulation or of the organizational
documents of any Restricted Person, or of any material agreement, judgment,
license, order or permit applicable to or binding upon any Restricted Person,
or result in the creation of any lien, charge or encumbrance upon any assets or
properties of any Restricted Person. Except for those which have been
obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with the
execution and delivery by any Restricted Person of this Second Amendment or the
consummation by any Restricted Person of the transactions contemplated hereby.



     (d) When duly executed and delivered, each of this Second Amendment and
the Credit Agreement will be a legal and binding obligation of Borrower
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency or similar laws of general application relating to the enforcement
of creditors’ rights and by equitable principles of general application.



ARTICLE V. – Miscellaneous




     Section 5.1. Ratification of Agreements. The Original Agreement as hereby
amended is hereby ratified and confirmed in all respects. Any reference to the
Credit Agreement in any Loan Document shall be deemed to be a reference to the
Original Agreement as hereby amended. The execution, delivery and effectiveness
of this Second Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of Lenders or Administrative
Agent under the Credit Agreement, the Notes, or any other Loan Document nor
constitute a waiver of any provision of the Credit Agreement, the Notes or any
other Loan Document.



     Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Second Amendment and the performance hereof, and shall further
survive until all of the Obligations are paid in full. All statements and
agreements contained in any certificate or instrument delivered by any
Restricted Person hereunder or under the Credit Agreement to Administrative
Agent or any Lender shall be deemed to constitute representations and
warranties by, and agreements and covenants of, Borrower under this Second
Amendment and under the Credit Agreement.



     Section 5.3. Loan Documents. This Second Amendment is a Loan Document,
and all provisions in the Credit Agreement pertaining to Loan Documents apply
hereto.



     Section 5.4. Governing Law. This Second Amendment shall be governed by
and construed in accordance with the laws applicable to the Credit Agreement.



     Section 5.5. Counterparts. This Second Amendment may be separately
executed in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Second Amendment.



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     THIS SECOND AMENDMENT 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 OF THE PARTIES.



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     IN WITNESS WHEREOF, this Amendment is executed as of the date first
written above.



	 	 	 	 	 
	BORROWER:	 	LA GRANGE ACQUISITION, L.P.
	 
	 	 	 	 
	

	 	By:
	 	LA GP, LLC
	

	 	 	 	its general partner
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	FLEET NATIONAL BANK, as Administrative
	 	 	Agent, LC Issuer and a Lender
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	 	 	Name:
	

	 	 	 	Title:







SECOND AMENDMENT TO CREDIT AGREEMENT




 









 








Signature Page to Second Amendment

to Credit Agreement




     IN WITNESS WHEREOF, the undersigned Lender hereby consents to and enters
into the Second Amendment to Credit Agreement dated for reference as
of
                       , 2004, among La Grange Acquisition, L.P., Fleet National
Bank, as administrative agent, and the Lenders referred to therein.



	 	 	 	 	 
	 	 	
 
	 	 	Name of Lender
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	 	 	Name:
	

	 	 	 	Title:







SECOND AMENDMENT TO CREDIT AGREEMENT