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EXHIBIT 10
AMENDMENT TWO TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT TWO TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
dated as of May 16, 2000, is made and entered into by and between BANK ONE,
TEXAS, NATIONAL ASSOCIATION ("LENDER") and LONG REACH HOLDINGS, INC., a Delaware
corporation ("BORROWER").
RECITALS
A. Borrower and Lender entered into that certain Loan and Security
Agreement, dated April 20, 1999, as amended by Amendment One ("AMENDMENT ONE")
dated February 23, 2000 (as amended, the "LOAN AGREEMENT").
B. Borrower is acquiring all of the outstanding capital stock of Xxx
Engineering Company, Inc., a Rhode Island corporation, whose name will be
changed at or shortly after closing to Presto Lifts, Inc. (referred to herein as
"SUBSIDIARY").
C. Lender and Borrower desire to amend the Loan Agreement as herein
set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by both parties, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same definitions
assigned to such terms in the Loan Agreement, as amended hereby.
ARTICLE II
Amendments to the Loan Agreement
Section 2.01. Amendment of Definitions. SECTION 1 of the Loan Agreement
is hereby amended by deleting the definitions of "Allowed Kaizen Expenses,"
"Allowed Restructuring Expenses," "Borrowing Base," "Collateral," "Eligible
Accounts," "Eligible Inventory" and "Permitted Liens" in their entirety and
substituting therefor the following:
"'Allowed Kaizen Expenses' means costs and expenses incurred by
Borrower to provide Kaizen consulting and training; provided, that, such
costs and expenses shall not exceed an aggregate $540,000 for calendar
year 2001, $450,000 for calendar year 2002
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and $90,000 for the period from January 1, 2003 through the Termination
Date."
"'Allowed Restructuring Expenses' means costs and expenses
incurred by Borrower related to the merger of Long Reach Holdings, Inc.
into TBM Acquisition I, Inc. during calendar year 2000 and to the
acquisition of the capital stock of Xxx Engineering Company, Inc.;
provided, that, such costs and expenses shall not exceed an aggregate
$1,750,000 for calendar year 2000 and an aggregate $750,000 for calendar
year 2001 and no amount in subsequent years."
"'Borrowing Base' means, as of any date, an amount equal to the
sum of: (a) eighty-five percent (85%) (or such lesser percentage as the
Lender may in its sole and absolute discretion determine from time to
time) of Eligible Accounts on such date, PLUS (b) the lesser of (i) the
sum of (A) sixty percent (60%) (or such lesser percentage as the Lender
may in its sole and absolute discretion determine from time to time) of
the value of Eligible Inventory consisting of raw material metal stock
(based upon the lower of cost (computed on a first-in-first-out basis),
fair market value or orderly liquidation as determined by Lender in its
sole discretion), PLUS (B) fifty percent (50%) (or such lesser percentage
as the Lender may in its sole and absolute discretion determine from time
to time) of the value of Eligible Inventory other than metal stock (based
upon the lower of cost (computed on a first-in-first-out basis), fair
market value or orderly liquidation as determined by Lender in its sole
discretion) or (ii) the lesser of (A) $5,000,000, or (B), during the
period from February 23, 2000 through December 31, 2000, one hundred
twenty-five percent (125%) of the then outstanding aggregate advances
against Eligible Accounts (such percentage to be one hundred percent
(100%) after December 31, 2000), MINUS (c) the Financial Accommodation
Reserve, and MINUS (d) the Reserve."
"'Collateral' means and includes all of Borrower's and each
Qualifying Subsidiary's now owned or hereafter acquired assets, whether
tangible or intangible, including without limitation all of Borrower's
and each Qualifying Subsidiary's right, title and interest in and to each
of the following, wherever located and whether now existing or hereafter
arising:
(a) all accounts,
(b) all inventory,
(c) all equipment,
(d) all contract rights,
(e) all general intangibles,
(f) all Intellectual Property,
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(g) all deposit accounts,
(h) all investment property,
(i) all instruments,
(j) all chattel paper,
(k) all goods,
(l) all documents,
(m) all real estate,
(n) all insurance and certificates of insurance pertaining to
any and all items of Collateral,
(o) all files, correspondence, computer programs, tapes,
disks and related data processing software which contain
information identifying or pertaining to any of the
Collateral or any Account Debtor or showing the amounts
thereof or payments thereon or otherwise necessary or
helpful in the realization thereon or the collection
thereof,
(p) all cash deposited with the Lender or any Affiliate
thereof, and
(q) any and all products and cash and non-cash proceeds of
the foregoing (including, but not limited to, any claims
to any items referred to in this definition and any
claims against third parties for loss of, damage to or
destruction of any or all of the Collateral or for
proceeds payable under or unearned premiums with respect
to policies of insurance) in whatever form."
"'Eligible Accounts' shall mean all accounts of Borrower and of a
Qualifying Subsidiary which are deemed by the Lender in the exercise of
its sole and absolute discretion to be eligible for inclusion in the
calculation of the Borrowing Base net of any and all interest, finance
charges, sales tax, fees, returns, discounts, claims, credits, charges,
contra accounts, exchange contracts or other allowances, offsets and
rights of offset, deductions, counterclaims, disputes, rejections,
shortages or other defenses and all credits owed or allowed by Borrower
or a Qualifying Subsidiary upon any of its accounts and further reduced
by the aggregate amount of all reserves, limits and deductions provided
for in this definition and elsewhere in this Agreement. Eligible Accounts
shall not include the following:
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(a) accounts which remain unpaid more than ninety (90) days
past their invoice dates;
(b) accounts which are not due and payable within thirty (30)
days after their invoice dates, except for accounts created by sales made
under sixty (60) day dating terms; provided, however, accounts deemed
eligible due to such dating terms may not exceed at any time the lesser
of (i) $500,000, or (ii) ten percent (10%) of Eligible Accounts;
(c) accounts owing by a single Account Debtor, including a
currently scheduled account, if fifty percent (50%) or more of the
balance owing by said Account Debtor upon all accounts payable by such
Account Debtor is ineligible pursuant to clauses (a) or (b) above;
(d) accounts with respect to which the Account Debtor is an
Affiliate of Borrower or a Qualifying Subsidiary;
(e) accounts with respect to which the obligation of payment by
the Account Debtor is or may be conditional for any reason whatsoever
including, without limitation, accounts arising with respect to goods
that were (i) not sold on an absolute basis, (ii) sold on a xxxx and hold
sale basis, (iii) sold on a consignment sale basis, (iv) sold on a
guaranteed sale basis, (v) sold on a sale or return basis, or (vi) sold
on the basis of any other similar understanding;
(f) accounts with respect to which the Account Debtor is not a
resident or citizen of, or otherwise located in, the continental United
States of America, or with respect to which the Account Debtor is not
subject to service of process in the continental United States of
America, unless such account is backed in full by an irrevocable letter
of credit in form and substance satisfactory to Lender issued by a
domestic commercial bank acceptable to Lender or backed by acceptable
export insurance; provided, however, that (i) accounts backed by a letter
of credit or insurance may not exceed $1,000,000 in the aggregate, and
(ii) subject to the requirements set forth in PARAGRAPHS (a) through (e)
and (g) through (r) of this definition, (A) accounts owed by Account
Debtors located in Canada may be included in Eligible Accounts up to a
maximum of $250,000 in the aggregate, (B) accounts owed by Account
Debtors located in Puerto Rico may be included in Eligible Accounts up to
a maximum of $50,000 in the aggregate;
(g) accounts in excess of $100,000 in the aggregate with
respect to which the Account Debtor is the United States of America or
any other federal governmental body or any department, agency or
instrumentality of any of the foregoing unless such accounts are duly
assigned to the Lender in compliance with all applicable governmental
requirements (including, without limitation, the Federal Assignment of
Claims Act of
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1940, as amended, if applicable) so that the Lender is recognized by the
Account Debtor to have all of the rights of an assignee of such accounts;
(h) accounts with respect to which Borrower or a Qualifying
Subsidiary is or may be liable to the Account Debtor for goods sold or
services rendered by such Account Debtor, but only to the extent of such
liability to such Account Debtor (i.e. the excess of the aggregate face
amount of accounts of such Account Debtor to Borrower or a Qualifying
Subsidiary over the aggregate liability of Borrower or a Qualifying
Subsidiary to such Account Debtor shall constitute an Eligible Account
unless otherwise excepted under the terms of this definition);
(i) accounts with respect to which the goods giving rise
thereto have not been shipped and delivered to and accepted as
satisfactory by the applicable Account Debtor or with respect to which
the services performed giving rise thereof have not been completed and
accepted as satisfactory by the Account Debtor thereon;
(j) accounts which are not invoiced (and dated as of such
date) and sent to the Account Debtor thereof concurrently with or not
later than five (5) days after the shipment and delivery to and
acceptance by said Account Debtor of the goods giving rise thereto or
the performance of the services giving rise thereto;
(k) accounts with respect to which possession and/or control
of the goods sold giving rise thereto is held, maintained or retained by
Borrower or a Qualifying Subsidiary (or by any agent or custodian of
Borrower or a Qualifying Subsidiary) for the account of or subject to
further and/or future direction from the Account Debtor;
(l) accounts as to which the Lender, at any time or times
hereafter, determines, in good faith, that the prospect of payment or
performance by the Account Debtor is or will be impaired in any material
respect;
(m) accounts of an Account Debtor to the extent, but only to
the extent, that the same exceed a credit limit determined by the Lender
in its reasonable discretion, at any time or times hereafter;
(n) accounts with respect to which the Account Debtor is
located in any state requiring the filing of a Notice of Business
Activities Report or similar report in order to permit Borrower or a
Qualifying Subsidiary to seek judicial enforcement in such state of
payment of such account, unless Borrower or a Qualifying Subsidiary has
qualified to do business in such state or has filed a Notice of Business
Activities Report or equivalent report for the then current year;
(o) accounts which are not subject to a first priority
perfected security interest in favor of Lender;
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(p) accounts that Lender, in its sole discretion, has
determined to be ineligible;
(q) accounts subject to any provision prohibiting assignment
or requiring notice of or consent to such assignment; and
(r) that portion of an account balance owed by a single
Account Debtor which exceeds twenty percent (20%) of total accounts
otherwise deemed eligible hereunder, unless waived in writing by
Lender."
"'Eligible Inventory' means, as at any date of determination,
all inventory owned by and in the possession of Borrower or a Qualifying
Subsidiary and located in the United States of America that Lender, in
its sole and absolute discretion, deems to be eligible for borrowing
purposes; provided, however, that as of February 23, 2000, a reserve of
$100,000 shall be established (the "INITIAL INVENTORY RESERVE") that
shall reduce the amount of Eligible Inventory otherwise determined
hereunder, and as of each calendar month end occurring on or after March
31, 2000, such eligibility reserve shall be increased by $100,000;
provided, further, that when Borrower delivers to Lender an inventory
line item turn report, in form and detail satisfactory to Lender in its
sole discretion, that establishes to Lender's satisfaction the proper
amount of a reserve (the "TURN REPORT RESERVE") against Eligible
Inventory equal to purchased parts raw materials and finished goods on
hand in excess of one year's supply, as demonstrated by historical
sales, such Turn Report Reserve shall be used in place of the Initial
Inventory Reserve (as it may have been increased) as long as such
inventory line item turn report is delivered to Lender within fifteen
days of each fiscal quarter end; otherwise, the Initial Inventory
Reserve shall be reinstated at the amount last used and shall continue
to increase each month end by $100,000. Without limiting the generality
of the foregoing, unless otherwise agreed by Lender, the following is
not Eligible Inventory:
(a) work-in-process;
(b) finished goods subject to a specific purchase order which
do not meet the specifications of such purchase order;
(c) inventory which Lender determines, in its sole and
absolute discretion exercised in good faith, to be unacceptable
for borrowing purposes due to age, quality, type, category,
value and/or quantity;
(d) inventory with respect to which Lender does not have a
valid, first priority and fully perfected security interest;
(e) inventory with respect to which there exists any Lien
(other than a Permitted Lien) in favor of any Person other than
Lender;
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(f) packaging or shipping material or maintenance supplies;
(g) shipping or product labels;
(h) inventory that is obsolete;
(i) inventory that has been returned or repossessed unless
such inventory is in new, unused and saleable condition;
(j) inventory that consists of used goods taken in trade;
(k) inventory produced in violation of the Fair Labor
Standards Act, in particular provisions contained in Title 29
U.S.C. 215 (a)(i);
(l) inventory located in a jurisdiction other than the United
States of America and inventory located at a location for which
Lender does not have a valid landlord's or warehouseman's waiver
or subordination on terms and conditions acceptable to Lender in
its sole discretion; and
(m) inventory located at any location other than those listed
on SCHEDULE 5.1(q), as amended from time to time."
"'Permitted Liens" means: (a) Liens securing taxes, assessments
and other governmental charges or levies (excluding any Lien imposed
pursuant to any of the provisions of ERISA) or the claims of
materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of
business, but (i) in all cases, only if payment shall not at the time
be required to be made in accordance with SECTION 7.4, and (ii) in the
case of warehousemen or landlords controlling locations where inventory
is located, only if such liens have been waived or subordinated to the
security interest of Lender in a manner satisfactory to Lender; (b)
Liens consisting of deposits or pledges made in the ordinary course of
business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation or
under surety or performance bonds, in each case arising in the ordinary
course of business; (c) Liens constituting encumbrances in the nature
of zoning restrictions, easements and rights or restrictions of record
on the use of Borrower's real estate, which in the sole judgment of the
Lender do not materially detract from the value of such real estate or
impair the use thereof in the business of Borrower; (d) Liens of the
Lender arising under this Agreement and the other Loan Documents, (e)
Liens securing Permitted Indebtedness consisting of purchase money
Indebtedness and Liens securing Subordinated Indebtedness, (f) Liens
(not to exceed $100,000 in the aggregate) securing appeal and surety
bonds; and (g) Liens granted by Xxx Engineering Company, Inc. to
Rockford Industries, Inc. pursuant to that certain Lease
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Agreement between Xxx Engineering Co., Inc. and Rockford Industries, Inc.
dated October 14, 1999."
Section 2.02. Amendment of Section 1. SECTION 1 is further amended by
adding thereto the following definition:
"'Qualifying Subsidiary" means a Subsidiary of Borrower that has
executed and delivered an unlimited guaranty of all Obligations for the
benefit of Lender and a security agreement granting to Lender a security
interest in all of its assets to secure the Obligations, both in form
and substance acceptable to Lender in its sole discretion, and that has
executed, or had executed in the case of termination statements, and
delivered to Lender such financing statements and termination statements
as required by Lender to perfect such security interest as a first
priority security interest subject only to Permitted Liens."
Section 2.03. Amendment of Schedule 5.1(q). Schedule 5.1(q) attached to
the Loan Agreement is amended and restated in its entirety in the form attached
hereto as Schedule 5.1(q).
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ARTICLE III
Conditions Precedent
Section 3.01. Conditions Precedent. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions precedent, unless
specifically waived in writing by Lender:
(a) The representations and warranties of Borrower contained
herein shall be true and correct as of the date hereof as if made on the
date hereof;
(b) After giving effect to the provisions of this Amendment,
no Default or Event of Default shall have occurred and be continuing
under the Loan Agreement;
(c) Lender shall have received this Amendment, duly executed
by Borrower and consented to by TBM Holdings, Inc.;
(d) Subsidiary shall have executed and delivered to Lender an
unlimited guaranty of the Obligations and a security agreement granting
Lender a security interest in all of its assets as security for the
Obligations, both in form and substance acceptable to Lender in its sole
discretion;
(e) Lender shall have received an opinion of Borrower's
counsel, in form and substance acceptable to Lender in its sole
discretion;
(f) The purchase of all outstanding capital stock of
Subsidiary by Borrower shall have closed and title to such stock shall
have been acquired by Borrower, subject to no liens, claims or
encumbrances;
(g) Borrower shall have delivered to Lender certified board of
directors resolutions and certificates of incumbency, in such form and
content as is acceptable to Lender in its sole discretion, for both
Borrower and Subsidiary;
(h) Lender shall have received a certified copy of the
articles of incorporation, and all amendments thereto, of Subsidiary,
issued by the Secretary of State of the State of Rhode Island together
with a certificate of existence and good standing for Subsidiary issued
by the such Secretary of State;
(i) Lender shall have received certification by each
jurisdiction in which Subsidiary is qualified (or is required to be
qualified) as a foreign corporation to transact business, to the effect
that Subsidiary is in good standing with respect to payment of
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franchise and similar taxes in such states;
(j) Lender shall have received all financing statements
required by Lender in connection with perfection of Lender's security
interests in the assets of Subsidiary and all termination statements and
other amendments to financing statements required by Lender to make
Lender's security interest in such assets a first priority (and only)
security interest therein subject, however, to the Permitted Liens;
(k) Lender shall have received a copy of the bylaws, and all
amendments thereto, of Subsidiary, certified by the Secretary or
Assistant Secretary of Subsidiary;
(l) Lender shall have received evidence of insurance of the
assets of Subsidiary in compliance with the requirements of the Loan
Agreement and such loss payable endorsements with respect to such
insurance as may be required by Lender;
(m) Lender shall have received an executed landlord's waiver
and consent for Subsidiary's manufacturing facility located in
Pawtucket, Rhode Island; and
(n) All corporate proceedings 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 and its legal counsel.
ARTICLE IV
Ratifications, Representations, and Warranties
Section 4.01. Ratifications by Borrower. The terms and provisions set
forth in this Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Loan Agreement and, except as expressly modified and
superseded by this Amendment, the terms and provisions of the Loan Agreement are
ratified and confirmed and shall continue in full force and effect. The Loan
Agreement as amended by this Amendment shall continue to be the legal, valid,
binding and enforceable in accordance with its terms.
Section 4.02. Renewal and Extension of Security Interests and
Assignments. Borrower hereby renews and affirms the liens and security interests
created and granted in the Loan Agreement and all other Loan Documents. Borrower
agrees that this Amendment shall in no manner affect or impair the liens and
security interests securing the Obligations, and that such liens and security
interests shall not in any manner be waived, the purposes of this Amendment
being to modify the Loan Agreement as herein provided, and to carry forward all
liens and security interest securing same, which are acknowledged by Borrower to
be valid and subsisting.
Section 4.03. Representations and Warranties. Borrower represents and
warrants to Lender as follows: (i) the execution, delivery and performance of
this Amendment and any and
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all other Loan Documents executed and/or delivered in connection herewith have
been authorized by all requisite corporate action on the part of Borrower and
will not violate the articles of incorporation or bylaws of Borrower or any
agreement to which Borrower is a party; (ii) no Default or Event of Default
under the Loan Agreement as amended hereby has occurred and is continuing; and
(iii) Borrower is in full compliance with all covenants and agreements contained
in the Loan Agreement, as amended hereby.
ARTICLE V
Miscellaneous
Section 5.01. Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other 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 such representations and warranties or the
right of Lender to rely thereon.
Section 5.02. Reference to Loan Agreement. Each of the Loan Documents,
including the Loan Agreement 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 Loan Agreement as amended hereby, are hereby
amended so that any reference in such Loan Documents to the Loan Agreement shall
mean a reference to the Loan Agreement as amended hereby.
Section 5.03. Expenses of Lender. Borrower agrees to pay on demand all
costs and expenses incurred by Lender in connection with the preparation,
negotiation and execution of this Amendment and the other Loan Documents
executed pursuant hereto; provided, however, that Lender's legal fees subject to
reimbursement shall be limited to $6,000. Borrower agrees to pay on demand all
costs and expenses incurred by Lender in connection with any and all future
amendments, modifications, and supplements to the Loan Agreement, including,
without limitation, the costs and fees of Lender's legal counsel, and all costs
and expenses incurred by Lender in connection with the enforcement or
preservation of any rights under the Loan Agreement, as amended hereby, or any
other Loan Document, including, without limitation, the reasonable costs and
fees of Lender's legal counsel.
Section 5.04. Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
SECTION 5.05. APPLICABLE LAW. THIS AMENDMENT SHALL BE DEEMED TO HAVE BEEN
MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE
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STATE OF TEXAS AND APPLICABLE FEDERAL LAW.
Section 5.06. Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, assigns, heirs, executors, and legal representatives, except that
none of the parties hereto other than Lender may assign or transfer any of its
rights or obligations hereunder without the prior written consent of Lender.
Section 5.07. Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument. This Amendment may be executed and delivered by facsimile
transmission.
Section 5.08. Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 5.09. Conflicting Provisions. If any provision of the Loan
Agreement as amended hereby conflicts with any provision of any other Loan
Document, the provision in the Loan Agreement shall control.
Section 5.10 Consent to Purchase. By execution of this Amendment, Lender
acknowledges that it has waived the written notification required by Section 9.2
of the Loan Agreement with respect to, and hereby consents to, the acquisition
by Borrower of the outstanding capital stock of Subsidiary.
SECTION 5.11. RELEASE. AS OF THE DATE HEREOF, BORROWER HEREBY
ACKNOWLEDGES THAT BORROWER HAS NO DEFENSE, COUNTERCLAIM, OFFSET,
CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE
ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF BORROWER'S LIABILITY TO REPAY
THE LOAN OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM
LENDER. BORROWER VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES
LENDER, ITS PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL
POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES,
AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN
EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS
EXECUTED, WHICH BORROWER MAY NOW OR HEREAFTER HAVE AGAINST LENDER, ITS
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND
IRRESPECTIVE OR WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION
OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY LOAN, INCLUDING,
WITHOUT
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LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR
RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE
OF ANY RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT OR OTHER LOAN DOCUMENTS, AND
NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
SECTION 5.12. ENTIRE AGREEMENT. THIS AMENDMENT, THE LOAN AGREEMENT AND
ALL OTHER LOAN DOCUMENTS EXECUTED AND DELIVERED IN CONNECTION WITH AND PURSUANT
TO THIS AMENDMENT AND THE LOAN AGREEMENT 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.
EXECUTED as of the date first written above.
LONG REACH HOLDINGS, INC. BANK ONE, TEXAS, NATIONAL
ASSOCIATION
By: /s/Xxxxxxx X. Xxxxxxxx By: /s/ X.X. XxXxxxxx
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Name: Xxxxxxx X. Xxxxxxxx Name: X.X. XxXxxxxx
Title: Secretary and Authorized Title: Vice President
Signatory
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CONSENT AND RATIFICATION
The undersigned (i) consents to the foregoing Amendment, (ii)
acknowledges and agrees that the execution of the foregoing Amendment does not
diminish, waive, or release its obligations under that certain Unlimited
Guaranty dated as of February 23, 2000 executed by the undersigned for the
benefit of Lender and (iii) ratifies and confirms its obligations pursuant to
such Unlimited Guaranty.
TBM HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: President
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