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EXHIBIT 10.59
NATIONSBANK
NATIONSBANK OF TEXAS, N.A.
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TWELFTH AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS TWELFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "AMENDMENT")
is dated effective as of March 15, 1997, and entered into by and between
NATIONSBANK OF TEXAS, N.A., a national banking association ("LENDER") with
offices at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, and XXXXXXXXX
INDUSTRIES, L.P., a Texas limited partnership ("BORROWER") with offices at 000
Xxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000.
WHEREAS, Lender and Borrower have entered into a Loan and Security
Agreement (the "LOAN AGREEMENT"), dated as of September 9, 1994;
WHEREAS, Lender and Borrower on October 28, 1994 have entered into a
First Amendment to Loan and Security Agreement (the "FIRST AMENDMENT"), which
was dated effective as of September 9, 1994;
WHEREAS, Lender and Borrower on December 8, 1994 have entered into a
Second Amendment to Loan and Security Agreement (the "SECOND AMENDMENT");
WHEREAS, Lender and Borrower on March 3, 1995 have entered into a Third
Amendment to Loan and Security Agreement (the "THIRD AMENDMENT"), which was
dated effective as of December 31, 1994;
WHEREAS, Lender and Borrower on May 15, 1995 have entered into a Fourth
Amendment to Loan and Security Agreement (the "FOURTH AMENDMENT"), which was
dated effective as of January 31, 1995;
WHEREAS, Lender and Borrower, effective on September 9, 1995, have
entered into a Fifth Amendment to Loan and Security Agreement (the "FIFTH
AMENDMENT);
WHEREAS, Lender and Borrower, effective on December 29, 1995, have
entered into a Sixth Amendment to Loan and Security Agreement (the "SIXTH
AMENDMENT");
WHEREAS, Lender and Borrower, effective on March 8, 1996, have entered
into a Seventh Amendment to Loan and Security Agreement (the "SEVENTH
AMENDMENT");
WHEREAS, Lender and Borrower, effective on May 8, 1996, have entered
into an Eighth Amendment to Loan and Security Agreement (the "EIGHTH
AMENDMENT");
WHEREAS, Lender and Borrower, effective on May 17, 1996, have entered
into a Ninth Amendment to Loan and Security Agreement (the "NINTH AMENDMENT");
and
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WHEREAS, Lender and Borrower, effective on July 8, 1996, have entered
into a Tenth Amendment to Loan and Security Agreement ( the "TENTH
AMENDMENT"); and
WHEREAS, Lender and Borrower, effective on August 20, 1996, have
entered into an Eleventh Amendment to Loan and Security Agreement (the
"ELEVENTH AMENDMENT"); (the Loan Agreement together with the First Amendment,
the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth
Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth Amendment,
the Ninth Amendment, the Tenth Amendment and the Eleventh Amendment shall
hereinafter be referred to as the "AGREEMENT");
WHEREAS, in connection with the Agreement, Borrower previously executed
and delivered to Lender its promissory note dated September 9, 1994 payable to
the order of Lender in the face amount of $25,000,000.00, as renewed, amended
and restated by the certain promissory note dated December 29, 1995 executed by
Borrower payable to the order of Lender, with a final maturity date (as modified
and amended) of September 15, 1998 (the "NOTE"), which is secured by, in
addition to the Collateral, certain real property owned by Borrower and located
in Dallas County, Texas, as more particularly provided pursuant to the certain
Deed of Trust, Assignment, Security Agreement and Financing Statement dated as
of May 8, 1996 executed by Borrower, as grantor, for the benefit of Lender,
recorded at Volume 96107, Page 07017 of the Deed Records of Dallas County,
Texas, as the same may have been renewed, extended, modified or amended,
including without limitation pursuant to the certain Modification and Extension
Agreement dated effective August 15, 1996 between Lender and Borrower which was
recorded at Volume 96185, Page 03075 of the Deed Records of Dallas County,
Texas (collectively the "DEED OF TRUST");
WHEREAS, Lender and Borrower desire to further amend the Agreement and
the Note as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth in the Agreement and this Amendment, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Capitalized terms used in this Amendment,
to the extent not otherwise defined herein, shall have the same meanings as in
the Agreement, as amended hereby.
ARTICLE II
AMENDMENTS
Section 2.1 AMENDMENT TO SECTION 2.3 OF THE AGREEMENT. Effective
as of the date hereof, Section 2.3 of the Agreement hereby is amended and
restated to read in its entirety as follows:
2.3 REPAYMENT AND LINE TERMINATION. The remaining balance of the
Obligations shall be payable as follows: Twenty-five (25) consecutive
monthly installment payments, each payable on the fifteenth (15th) day
of each calendar month, as follows: (i) three (3) payments of $25,000.00
plus accrued interest, payable on September 15, 1996 and
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continuing through November 15, 1996, (ii) three (3) payments of
$50,000.00 plus accrued interest, payable on December 15, 1996 and
continuing through February 15, 1997, (iii) one (1) payment of
$75,000.00 plus accrued interest, payable on March 15, 1997, (iv)
seventeen (17) payments of $25,000.00 plus accrued interest, payable on
April 15, 1997 and continuing through August 15, 1998, and (v) one final
payment in the amount of all remaining unpaid principal plus interest
which shall be due and payable on September 15, 1998. Borrower
acknowledges and agrees that Lender shall have no obligation to renew
the Obligations.
ARTICLE III
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
Section 3.1 RATIFICATIONS. The terms and provisions set forth in
this Amendment shall modify and supersede all inconsistent terms and provisions
set forth in the Agreement and, except as expressly modified and superseded by
this Amendment, the terms and provisions of the Agreement, including, without
limitation, all financial covenants contained therein, are ratified and
confirmed and shall continue in full force and effect. Lender and Borrower
agree that the Agreement as amended hereby shall continue to be legal, valid,
binding and enforceable in accordance with its terms. In furtherance and not
in limitation of the provisions of this Section 3.1, Borrower hereby waives and
releases any and all claims or offsets against, or defenses to, the payment and
performance of the Obligations that Borrower may have at law, in equity or
otherwise, based on any and all actions or alleged actions, omissions or
related omissions of Lender or any of Lender's affiliates, directors, officers,
employees, attorneys, representatives or agents which have occurred on or prior
to the date of execution hereof, and Borrower hereby represents and warrants
that no such claims, offset or defenses exist as of such date.
Section 3.2 REPRESENTATIONS AND WARRANTIES. Borrower, BII, BOC and
NBF each hereby represent and warrant to Lender that the execution, delivery
and performance of this Amendment and all other Loan documents to which
Borrowers, BII, BOC or NBF is or is to be a party hereunder (hereinafter
referred to collectively as the "LOAN DOCUMENTS") executed and/or delivered in
connection herewith, have been authorized by all requisite corporate or
partnership action, as applicable, on the part of Borrower, BII, BOC and NBF
and will not violate the Articles of Incorporation, Bylaws or Partnership
Agreement of Borrower, BII, BOC or NBF, as applicable. There has been no
material adverse change in the business, operations, financial condition,
profits or prospects, or in the Collateral, of Borrower or NBF, since the
effective date of the last financial statements delivered to Lender, except as
may have been previously disclosed to Lender or publicly disclosed, and there
has been no change in the officers of Borrower or any Guarantor since the last
certification thereof to Lender by Borrower or any such Guarantor. The
Articles of Incorporation, Bylaws or Partnership Agreement, as applicable, of
the General Partner of Borrower and each Guarantor have not been altered,
amended, rescinded or revised since the last certification thereof to Lender.
Borrower, BII, BOC and NBF hereby jointly and severally represent and warrant
to Lender that (i) Borrower and NBF own all of the Eligible Accounts and
Eligible Inventory described on each Borrowing Base Report previously or
hereafter delivered to Lender, (ii) BII conducted no operations and owns no
material assets other than the stock of BOC and BHC, (iii) BOC and BHC conduct
no operations other than the ownership of partnership interests in Borrower, of
which BOC is the sole general partner and BHC is the sole limited partner, and
(iv) BOC and BHC own no material assets other than their respective partnership
interests in Borrower.
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ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 CONDITIONS. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent (unless
specifically waived in writing by the Lender):
(a) Lender shall have received all of the following, each
dated (unless otherwise indicated) as of the date of this Amendment, in
form and substance satisfactory to Lender in its sole discretion:
(i) Secretary's Certificate. A Secretary's
Certificate, dated as of even date with the effective date of
this Amendment, from the General Partner of Borrower and each
Guarantor certifying as a corporate resolutions authorizing the
execution and delivery of this Amendment.
(ii) Amendment. This Amendment, duly executed.
(vi) Other Documents. Borrower shall have executed
and delivered such other documents and instruments as Lender may
reasonably require.
(vii) Legal and Professional Fees. Borrower shall
have paid all fees and expenses of Lender's accountants and
legal counsel incurred in connection with the Obligations and
the Loan Documents, including this Amendment, and the
interpretation and enforcement thereof.
(b) All partnership or corporate proceedings, as applicable,
taken in connection with the transactions contemplated by this Amendment
and all documents, instruments and other legal matters incident thereto
shall be reasonably satisfactory to Lender.
ARTICLE V
MISCELLANEOUS
Section 5.1 NO WAIVER, RESERVATION OF RIGHTS. No failure on the
part of Lender to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under the Agreement or any other
Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege under the Agreement or any
other Loan Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. Notwithstanding any failure by
Lender to insist on strict compliance by Borrower with the terms of the
Agreement or any other Loan Document in the past, or any forbearance by Lender
in exercising its rights and remedies under the Agreement and the other Loan
Documents, including any past waivers by Lender of Events of Default under the
Agreement or any other Loan Document, Lender will insist on strict compliance
with the terms of the Agreement and the other Loan Documents in the future.
Any future failure by Borrower to comply strictly with the terms of the
Agreement and the other Loan Documents may result in the Lender's pursuit of
its rights and remedies existing by virtue of the Agreement and the other Loan
Documents or existing at law or in equity. Lender expressly reserves the right
to exercise any and all rights and remedies available to Lender under the Loan
Documents, at law or in equity, with resect to
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any present or future Events of Default unless the same are waived in writing
by Lender. No failure on the part of Lender to exercise, or delay by Lender in
exercising, its rights and remedies under the Loan Documents shall constitute a
waiver of any existing or future Event of Default.
Section 5.2 NOTE. The note hereby is deemed modified and amended
consistent with this Amendment. Borrower hereby acknowledges, ratifies and
confirms the Note as being and continuing in full force and effect, as amended
hereby.
Section 5.3 DEED OF TRUST. Borrower hereby acknowledges, ratifies
and confirms the Deed of Trust as being and continuing in full force and
effect, as amended hereby as continuing security for all "secured indebtedness"
defined therein, including without limitation the Note, as amended hereby.
Section 5.4 NO EXTENSION OF MATURITY. Lender hereby notifies
Borrower that, notwithstanding any previous renewals or extensions of credit to
Borrower, Lender will not continue to make credit available to Borrower and
that the remaining balance of the Obligations shall be due and payable as
specified in Section 2.3 of the Agreement, as amended hereby.
Section 5.5 COLLATERAL; CONTINUING SECURITY. Borrower acknowledges
that Lender's continuing security interest in the Collateral continues as
security for the Obligations, subject to the Intercreditor Agreement, provided,
that in any event Lender shall keep and maintain first, prior and exclusive its
existing deed of trust lien and interest as evidenced by the Deed of Trust.
Section 5.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in the Agreement or any other document or
documents relating thereto, including, without limitation, any Loan Document
furnished in connection with this amendment, shall survive the execution and
delivery of this Amendment and the other Loan Documents, and no investigation
by Lender or any closing shall affect the representations and warranties or the
right of Lender to rely thereon.
Section 5.7 REFERENCE TO AGREEMENT. The Agreement, each of the
Loan Documents, and any and all other agreements, documents or instruments now
or hereafter executed and delivered pursuant to the terms hereof or pursuant to
the terms of the Agreement as amended hereby, are hereby amended so that any
reference therein to the Agreement shall mean a reference to the Agreement as
amended hereby.
Section 5.8 WAIVER OF JURY TRIAL. THE PARTIES HERETO AGREE THAT
NEITHER PARTY SHALL REQUEST A TRIAL BY JURY IN THE EVENT OF LITIGATION BETWEEN
THEM CONCERNING THE LOAN DOCUMENTS OR ANY CLAIMS OR TRANSACTIONS IN CONNECTION
THEREWITH, IN EITHER A STATE OR FEDERAL COURT, THE RIGHT TO TRIAL BY JURY BEING
EXPRESSLY WAIVED BY BOTH LENDER AND BORROWER. LENDER AND BORROWER EACH
ACKNOWLEDGES THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF
THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY, AND WITH THE BENEFIT OF
ADVICE OF COUNSEL OF ITS CHOOSING.
Section 5.9 ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG
THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR
RELATING TO THIS AMENDMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING
ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES
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OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF
ENDISPUTE, INC. (A/K/A J.A.M.S./ENDISPUTE) ("J.A.M.S."), AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION. ANY PARTY TO THIS AMENDMENT MAY BRING AN ACTION,
INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY
CONTROVERSY OR CLAIM TO WHICH THIS AMENDMENT APPLIES IN ANY COURT HAVING
JURISDICTION OVER SUCH ACTION.
(a) Special Rules. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY
OF THE BORROWER'S DOMICILE AT THE TIME OF THIS AMENDMENT'S EXECUTION AND
ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS
UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE
AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL
BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
(b) Reservation of Rights. NOTHING IN THIS AMENDMENT SHALL BE
DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES
OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AMENDMENT; OR
(II) BE A WAIVER BY THE LENDER OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT
THE RIGHT OF THE LENDER HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS
(BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR
PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR
ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF
POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE LENDER MAY EXERCISE SUCH
SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL
OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY
ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS AMENDMENT. NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN
ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL
CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN
ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM
OCCASIONING REPORT TO SUCH REMEDIES.
No provision in the Loan Documents regarding waiver of trial by jury or
submission to jurisdiction and/or venue in any court is intended or shall be
construed to be in derogation of the provisions in any Loan Document for
arbitration of any controversy or claim.
Section 5.10 GOVERNING LAW. THIS AMENDMENT, AND ALL DOCUMENTS AND INSTRUMENTS
EXECUTED IN CONNECTION HEREWITH, SHALL BE GOVERNED BY AND CONSTRUED ACCORDING
TO THE LAWS OF THE STATE OF TEXAS, PROVIDED, THAT TO THE EXTENT FEDERAL LAW
WOULD ALLOW A HIGHER RATE OF INTEREST THAN WOULD BE ALLOWED BY THE LAWS OF THE
STATE OF TEXAS, THEN WITH RESPECT TO THE PROVISIONS OF ANY LAW
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WHICH PURPORT TO LIMIT THE AMOUNT OF INTEREST THAT MAY BE CONTRACTED FOR,
CHARGED OR RECEIVED IN CONNECTION WITH ANY OF THE OBLIGATIONS, SUCH
FEDERAL LAW SHALL APPLY.
Section 5.11 PARTIES BOUND. This Amendment shall be binding
upon and inure to the benefit of Borrower and Lender, and their respective
successors in interest and assigns. Borrower may not assign any right,
power, duty, or obligation under this Amendment, or any document or
instrument executed in connection herewith, without the prior written
consent of Lender. Subject to any applicable rules, regulations or laws
of governmental authorities relating to the non-assignability of loans
or other assets of Lender, Lender may not assign any of its rights, powers,
duties or obligations under this Amendment, or any document or instrument
executed in connection herewith, without the prior written consent of
Borrower. This Amendment is intended for the benefit of Borrower and Lender,
and their respective successors in interest and assigns only, and may not
be relied upon by any other Person.
Section 5.12 CUMULATIVE RIGHTS. All rights and remedies of Lender
under the Loan Documents are cumulative, and are in addition to rights
and remedies available to Lender by law. Such rights and remedies may be
exercised concurrently or successively, at such times as Lender may
determine in its discretion. Borrower waives any right to require
marshaling.
Section 5.13 SEVERABILITY. If any provision of this Amendment
is held to be illegal, invalid, or unenforceable under any present or future
laws effective during the Contract Term, such provisions shall be fully
severable, and this Amendment shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never compromised a part
of this Amendment. In such case, the remaining provisions of the Amendment
shall remain in full force and effect and shall not be affected thereby.
Section 5.14 MULTIPLE COUNTERPARTS. This Amendment may be executed
simultaneously in one or more multiple originals, each of which shall be
deemed an original, but all of which together shall constitute one and the
same Amendment.
Section 5.15 SURVIVAL. All covenants, agreements, representatives,
and warranties made by Borrower herein shall survive the execution, delivery,
and closing of this Amendment, and all documents executed in connection
herewith, and shall not be affected by any investigation made by any
party.
THIS WRITTEN AMENDMENT 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.
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IN WITNESS WHEREOF, the parties have executed this Amendment on
July 3, 1997 to be effective as of the effective date stated in the
preamble.
"BORROWER"
XXXXXXXXX INDUSTRIES, L.P.,
A TEXAS LIMITED PARTNERSHIP
By: Xxxxxxxxx Operating Corp.
A Nevada corporation,
General Partner
By: /s/ XXXXX X. XXXXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally
appeared Xxxxx X. Xxxxxxxxx, Chairman and Chief Executive Officer of
Xxxxxxxxx Operating Corp., the general partner of Xxxxxxxxx Industries,
L.P., known to me to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was
the act of the said XXXXXXXXX INDUSTRIES, L.P., a Texas limited
partnership, and that he executed the same on behalf of Xxxxxxxxx
Operating Corp. as the general partner of Xxxxxxxxx Industries, L.P.,
as the act of such limited partnership for the purposes and consideration
therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 3rd day of July
1997.
/s/ XXXX XXXXXX XXXXX
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NOTARY PUBLIC, STATE OF TEXAS
[NOTARY SEAL]
XXXX XXXXXX XXXXX
MY COMMISSION EXPIRES
My Commission Expires: MARCH 11, 2001
---------------------------- -------------------------------
(Printed Name or Notary)
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AGREED AND ACCEPTED on 8th day of July, 1997 to be effective as of the
effective date stated in the preamble.
"LENDER"
NATIONSBANK OF TEXAS, N.A.
By: /s/ XXXX XXXXXXXX
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxxx Xxxxxxxx, Vice President, known to me to be the person and officer whose
name is subscribed to the foregoing instrument, and acknowledged to me that the
same was the act of the said NATIONSBANK OF TEXAS, N.A., a national banking
association, and that he executed the same as the act of such banking
association for the purposes and consideration therein expressed and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 8th day of July, 1997.
/s/ XXXXX X. XXXXXXX
--------------------------------------
NOTARY PUBLIC, STATE OF TEXAS
My Commission Expires
11-9-98 XXXXX X. XXXXXXX
--------------------------------------
(Printed Name of Notary)
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CONSENTS AND REAFFIRMATIONS
XXXXXXXXX INDUSTRIES, INC. ("BII"), XXXXXXXXX OPERATING CORP. AND NBF,
INC. ("NBF"), each jointly and severally hereby acknowledges the execution of,
and consent to, the terms and conditions of the above Twelfth Amendment to Loan
and Security Agreement (the "TWELFTH AMENDMENT") dated effective as of June __,
1997, between Xxxxxxxxx Industries, L.P. and NationsBank of Texas, N.A.
("LENDER") and (i) reaffirms their respective obligations under its certain
Guaranty By Corporation (collectively the "GUARANTIES") dated as of September
9, 1994, made by the undersigned, respectively, in favor of the Lender, and
acknowledges and agrees that the Guaranties remain in full force and effect the
Guaranties are hereby ratified and confirmed; and (ii) NBF reaffirms its
obligations under that certain Security Agreement (the "NBF SECURITY
AGREEMENT") dated as of September 9, 1994, made by NBF in favor of the Lender
and acknowledges and agrees that the NBF Security Agreement remains in full
force and effect and the NBF Security Agreement is hereby ratified and
confirmed; and (iii) BII reaffirms its obligations under that certain Security
Agreement (the "BII SECURITY AGREEMENT") dated as of March 8, 1996, made by BII
in favor of the Lender and acknowledges and agrees that the BII Security
Agreement remains in full force and effect and the BII Security Agreement is
hereby ratified and confirmed. EXECUTED on July 3, 1997 to be effective as of
the stated effective date of such Twelfth Amendment.
XXXXXXXXX INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
XXXXXXXXX OPERATING CORP.
By: /s/ XXXXX X. XXXXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
NBF, INC.
By: /s/ XXXXX X. XXXXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice Chairman
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XXXX X. XXXXXXXXX hereby acknowledges the execution of, and consent to, the
terms and conditions of the above Twelfth Amendment to Loan and Security
Agreement and reaffirms all of the obligations under his certain (ii) Continuing
and Unconditional Guaranty dated August 15, 1996 and (ii) Guaranty dated
effective July 8, 1996 (collectively the "Guaranties"), made in favor of the
Lender, and acknowledges and agrees that the Guaranties remain in full force and
effect and the Guaranties are hereby ratified and confirmed. EXECUTED on July 3,
1997 to be effective as of the stated effective date of such Twelfth Amendment.
/s/ XXXXX X. XXXXXXXXX, INDIVIDUALLY
----------------------------------------
XXXXX X. XXXXXXXXX, Individually
XXXXX XXXXXXXXX hereby acknowledges the execution of, and consent to, the
terms and conditions of the above Twelfth Amendment to Loan and Security
Agreement and reaffirms all of his obligations under his certain (ii) Continuing
and Unconditional Guaranty dated August 15, 1996 and (ii) Guaranty dated
effective July 8, 1996 (collectively the "Guaranties"), made in favor of the
Lender, and acknowledges and agrees that the Guaranties remain in full force and
effect and the Guaranties are hereby ratified and confirmed. EXECUTED on
July 3, 1997 to be effective as of the stated effective date of such Twelfth
Amendment.
/s/ XXXXX XXXXXXXXX
---------------------------------------
Xxxxx Xxxxxxxxx, Individually
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared Xxxxx
X. Xxxxxxxxx, known to me to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was the act of
said Xxxxxxxxx Industries, Inc., and that he executed the same for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 3rd day of July, 1997.
/s/ XXXX XXXXXX XXXXX
-------------------------------
NOTARY PUBLIC, STATE OF TEXAS
[NOTARY SEAL]
XXXX XXXXXX XXXXX
MY COMMISSION EXPIRES
My Commission Expires: MARCH 11, 2001
---------------------------- -------------------------------
(Printed Name or Notary)
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XXX XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxxxx X. Xxxxxxxxx, known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same
was the act of said Xxxxxxxxx Operating Corp., and that he executed the same
for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 3rd day of July, 1997.
/s/ XXXX XXXXXX XXXXX
-------------------------------
NOTARY PUBLIC, STATE OF TEXAS
[NOTARY SEAL]
XXXX XXXXXX XXXXX
MY COMMISSION EXPIRES
My Commission Expires: MARCH 11, 2001
---------------------------- -------------------------------
(Printed Name or Notary)
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxxxx X. Xxxxxxxxx, known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same
was the act of said NBF, Inc., and that he executed the same for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 3rd day of July, 1997.
/s/ XXXX XXXXXX XXXXX
-------------------------------
NOTARY PUBLIC, STATE OF TEXAS
[NOTARY SEAL]
XXXX XXXXXX XXXXX
MY COMMISSION EXPIRES
My Commission Expires: MARCH 11, 2001
---------------------------- -------------------------------
(Printed Name or Notary)
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxxxx X. Xxxxxxxxx, known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 3rd day of July, 1997.
/s/ XXXX XXXXXX XXXXX
-------------------------------
NOTARY PUBLIC, STATE OF TEXAS
[NOTARY SEAL]
XXXX XXXXXX XXXXX
MY COMMISSION EXPIRES
My Commission Expires: MARCH 11, 2001
---------------------------- -------------------------------
(Printed Name or Notary)
12
00
XXX XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxxxx Xxxxxxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 3rd day of July, 1997.
/s/ XXXX XXXXXX XXXXX
-------------------------------
NOTARY PUBLIC, STATE OF TEXAS
[NOTARY SEAL]
XXXX XXXXXX XXXXX
MY COMMISSION EXPIRES
My Commission Expires: MARCH 11, 2001
---------------------------- -------------------------------
(Printed Name or Notary)
13