EXHIBIT 10.2
FIRST AMENDMENT TO THIRD AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "AMENDMENT") is made and entered into this 29th day of
September, 1997, by and among FLEET CAPITAL CORPORATION ("FLEET"), a Rhode
Island corporation, with an office at 2711 Xxxxxxx Avenue, Suite 2100, LB 21,
Xxxxxx, Xxxxx 00000, BANKBOSTON, N.A. ("BOSTON"), a national banking
association, with an office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(Fleet and Boston are collectively referred to as "LENDERS" or each individually
a "LENDER"), FLEET, as agent for Lenders (Fleet, in such capacity, the "AGENT"),
BRAZOS, INC. ("BRAZOS"), a Texas corporation, with its chief executive offices
at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, and MORNING SUN, INC. ("MORNING
SUN"), a Washington corporation, with its chief executive offices at 0000 00xx
Xxxxxx X., Xxxxxxxx X, Xxxxxx, Xxxxxxxxxx 00000 (Brazos and Morning Sun being
hereinafter individually and collectively referred to as "BORROWER", as governed
by the provisions of SECTION 1.5 and SECTION 1.6 of the Loan Agreement [as
hereinafter defined]).
RECITALS
A. Borrower, Agent and Lenders entered into that certain Third Amended and
Restated Loan and Security Agreement, dated as of July 2, 1997 ("LOAN
AGREEMENT").
B. Borrower desires that Brazos enter into and close the purchase of
substantially all of the assets of XX Xxxxxx Sportswear, Inc., an Ohio
corporation ("XXXXXX"), pursuant to the terms, conditions and provisions of that
certain Asset Purchase Agreement, dated September 29, 1997, by and between
Brazos and Xxxxxx (the "XXXXXX ASSET PURCHASE AGREEMENT") (the "XXXXXX ASSET
ACQUISITION").
C. In connection with the Xxxxxx Asset Acquisition, Borrower has requested
that Lenders and Agent consent to the Xxxxxx Asset Acquisition and to amend the
Loan Agreement in the manner set forth in this Amendment, and Lenders and Agent
are willing to do so upon the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
1.01 Capitalized terms used in this Amendment are defined in the Loan
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
AMENDMENTS
2.01 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; AMENDMENT TO
DEFINITION OF BORROWING BASE. The definition of "Borrowing Base" set forth in
SECTION 1.1 of the Loan Agreement is hereby amended by (i) deleting the
reference therein to the dollar amount "$30,000,000" and substituting therefor
the dollar amount "$35,000,000", and (ii) deleting the reference therein to the
dollar amount "$500,000" and substituting therefor the dollar amount
"$1,000,000".
2.02 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; AMENDMENT AND
RESTATEMENT OF CERTAIN DEFINITIONS. The definition of "Existing Boston Revolving
Credit Note," "Existing Fleet Revolving Credit Note," "Revolving Credit
Commitment," and "Revolving Credit Notes" set forth in SECTION 1.1 of the Loan
Agreement is hereby amended and restated in their entirety to read as follows:
"EXISTING BOSTON REVOLVING CREDIT NOTE - that certain Second Amended and
Restated Revolving Credit Note, dated July 2, 1997, in the original
principal amount of $20,600,000.00 executed by Borrower and payable to the
order of Boston."
"EXISTING FLEET REVOLVING CREDIT NOTE - that certain Second Amended and
Restated Revolving Credit Note, dated July 2, 1997, in the original
principal amount of $29,400,000.00 executed by Borrower and payable to the
order of Fleet."
"REVOLVING CREDIT COMMITMENT - $70,000,000.00. Fleet's maximum portion of
the Revolving Credit Commitment is $41,160,000.00, i.e., Fleet's Revolving
Credit Commitment is $41,160,000.00. Boston's maximum portion of the
Revolving Credit Commitment is $28,840,000.00, i.e., Boston's Revolving
Credit Commitment is $28,840,000.00."
"REVOLVING CREDIT NOTES - those certain Third Amended and Restated
Revolving Credit Notes, to be executed by Borrower on or about the date of
the First Amendment, in favor of each Lender, to evidence Borrower's
indebtedness to such Lender for its Revolving Credit Percentage, the Third
Amended and Restated Revolving Credit Note in favor of Fleet to be in the
form of ANNEX I attached to the First Amendment, as the same may be
amended, renewed, extended, modified or restated from time to time, the
provisions of which are in amendment and restatement of, and in
replacement for, the provisions of the Existing Fleet Revolving Credit
Note, and the Third Amended and Restated Revolving Credit Note in favor of
Boston to be in the form of ANNEX II attached to the First Amendment, as
the same may be amended, renewed, modified, extended or restated from time
to time, the provisions of which are in amendment and restatement of, and
in replacement for, the provisions of the Existing Boston Revolving Credit
Note."
2.03 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; ADDITION OF CERTAIN
DEFINITIONS. SECTION 1.1 of the Loan Agreement is hereby amended by adding
thereto in alphabetical order the following definitions:
"XXXXXX ASSET ACQUISITION - as defined in the preamble to the First
Amendment."
"FIRST AMENDMENT - that certain First Amendment to Third Amended and
Restated Loan and Security Agreement, dated as of September 29, 1997,
executed by Borrower, Lenders and Agent."
2.04 AMENDMENT TO SUBSECTION 2.1(B) OF THE LOAN AGREEMENT. SUBSECTION
2.1(B) of the Loan Agreement is hereby amended and restated in its entirety to
read as follows:
"(B) The Revolving Credit Loans shall be used solely for (i) the purchase
price and other costs and expenses related to the consummation of the
Transaction, (ii) the purchase price and other costs and expenses related
to the consummation of the Xxxxxx Asset Acquisition and (iii) Borrower's
general operating capital needs to the extent not inconsistent with the
provisions of this Agreement."
2.05 AMENDMENT TO SUBSECTION 3.1(A) OF THE LOAN AGREEMENT. SUBSECTION
3.1(A) of the Loan Agreement is hereby amended by deleting the reference therein
to the phrase "two percent (2.00%)" and substituting therefor the phrase "one
and three-fourths percent (1.75%)".
2.06 ADDITION OF A NEW SUBSECTION 3.1(A-1) TO THE LOAN AGREEMENT. A new
SUBSECTION 3.1(A- 1), INTEREST RATE REDUCTION is hereby added to the Loan
Agreement, to read in its entirety as follows:
"(A-1)INTEREST RATE REDUCTION. So long as no Default or Event of Default
has occurred and is continuing, in the event that the ratio of (i) the
Consolidated net earnings before provision for income taxes and interest
expense, and excluding any non-cash charges associated with the
reorganization of Borrower's facilities ("READJUSTED EBIT") of Parent and
its Subsidiaries for the calendar year ending December 31, 1997, to (ii)
the Consolidated pro forma interest expense of Parent and its Subsidiaries
for such calendar year and prepared on the same pro forma basis, is equal
to or greater than 1.4 to 1.0, as reflected in pro forma Consolidated
financial statements of Parent and its Subsidiaries prepared by Parent and
verified by Agent's auditors, and approved by Agent, which approval shall
not be unreasonably withheld, then the Applicable Annual Rate as to
Eurodollar Revolving Credit Loans shall be reduced to the rate per annum
equal to one and one-half percent (1.50%) above the Eurodollar Base Rate
for the Eurodollar Interest Period applicable thereto. Readjusted EBIT and
the calculation of interest expense shall be prepared on a pro forma basis
consistent with the calculation of Adjusted EBITDA (other than
calculations made to add back depreciation and amortization in connection
with the calculation of EBITDA) as reflected in the supplemental financial
data included in footnote (9) to the pro forma combined statement of
operations of Parent, its Consolidated Subsidiaries (including Brazos),
Plymouth, Sun Sportswear, Morning Sun and Premier included at page 29 in
the Offering Memorandum dated June 26, 1997, which was prepared by Parent
in connection with the offer and sale of the Parent Senior Notes. A copy
of such Offering Memorandum has been previously provided to each of the
Lenders. Notwithstanding anything herein to the contrary, the calculation
of Readjusted EBIT shall only include cost reductions that have been
actually implemented and are verifiable. The calculation of Readjusted
EBIT will not include any pro forma adjustment for the results of
operations of Xxxxxx prior to the closing of the Xxxxxx Asset Acquisition.
The calculation of pro forma interest expense will not include any
adjustment related to the period prior to such for debt incurred in
connection
with the Xxxxxx Asset Acquisition. Such reduction in the Applicable Annual
Rate shall be effective only for Eurodollar Revolving Credit Loans
requested after the date on which Agent has received and reviewed such pro
forma financial statements demonstrating compliance with the
above-described rate adjustment test. The rate reduction made pursuant to
this SUBSECTION 3.1(A-1) shall remain in effect only for so long as no
Event of Default has occurred."
2.07 AMENDMENT TO SUBSECTION 9.2(W) OF THE LOAN AGREEMENT. SUBSECTION
9.2(W) of the Loan Agreement is hereby amended by deleting the reference therein
to the dollar amount "$6,000,000.00" and substituting therefor the dollar amount
"$7,000,000.00".
2.08 AMENDMENT TO EXHIBIT B OF THE LOAN AGREEMENT. EXHIBIT B of the Loan
Agreement, the Borrower's business locations, is hereby deleted in its entirety
and replaced with EXHIBIT B attached hereto as ANNEX III.
2.09 AMENDMENT TO EXHIBIT D OF THE LOAN AGREEMENT. EXHIBIT D of the Loan
Agreement, the corporate names of Borrower, is hereby deleted in its entirety
and replaced with EXHIBIT D attached hereto as ANNEX IV.
2.10 AMENDMENT TO EXHIBIT E OF THE LOAN AGREEMENT. EXHIBIT E of the Loan
Agreement, the Borrower's patents, trademarks, copyrights and licenses, is
hereby deleted in its entirety and replaced with EXHIBIT E attached hereto as
ANNEX V.
2.11 AMENDMENT TO EXHIBIT K OF THE LOAN AGREEMENT. EXHIBIT K of the Loan
Agreement, the Borrower's capitalized leases and summary of real estate lease
terms, is hereby deleted in its entirety and replaced with EXHIBIT K attached
hereto as ANNEX VI.
2.12 AMENDMENT TO EXHIBIT U OF THE LOAN AGREEMENT. EXHIBIT U of the Loan
Agreement, the form of Borrowing Base Report, is hereby deleted in its entirety
and replaced with EXHIBIT U attached hereto as ANNEX VII.
ARTICLE III
CONDITIONS
3.01 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent, unless
specifically waived in writing by Lenders and Agent:
(a) Lenders shall have received each of the following, each of which
shall be in form and substance satisfactory to Lenders, in their sole
discretion:
(i) this Amendment, duly executed by Borrower, together with
the Consent, Ratification and Release duly executed by Brazos Sportswear, Inc.;
(ii) (a) the Third Amended and Restated Revolving Credit Note,
in the form of ANNEX I attached hereto, duly executed by Borrower, in
favor of Fleet, and (b) the Third Amended and Restated Revolving Credit
Note, in the form of ANNEX II attached hereto, duly executed by Borrower,
in favor of Boston;
(iii) the written opinion of Xxxxxx & Xxxxxx, L.L.P., counsel
to Borrower, regarding Borrower, the execution of this Amendment, the
other Loan Documents executed in connection herewith, the Xxxxxx Asset
Acquisition and the other transactions contemplated hereby, to be in form
and substance satisfactory to Lenders, in their sole discretion;
(iv) a certificate executed by the President of Borrower,
setting forth in reasonable detail the sources and uses of funds in the
transactions contemplated herein and in the Xxxxxx Asset Acquisition;
(v) a certificate regarding the Solvency of Borrower, which
includes a pro forma balance sheet and cash flow projections and analyses
for Borrower, executed by the President of Borrower;
(vi) a closing certificate signed by the President of
Borrower, dated as of the date of this Amendment, stating that (A) the
representations and warranties set forth in SECTION 8 of the Loan
Agreement, as amended by this Amendment, are true and correct as of such
date, other than for such representations and warranties which relate to a
specific date, (B) Borrower is on such date in compliance with all the
terms and provisions set forth in the Loan Agreement, as amended by this
Amendment, and (C) on such date no Default or Event of Default has
occurred or is continuing, except for such Defaults or Events of Default
as have been specifically disclosed in writing by Borrower to Agent;
(vii) a company general certificate, certified by the
Secretary or Assistant Secretary of the Borrower, acknowledging (A) that
the Borrower's Board of Directors has met and has adopted, approved,
consented to and ratified resolutions which authorize the execution,
delivery and performance by the Borrower of this Amendment and all other
Loan Documents to which the Borrower is or is to be a party, and (B) the
names of the officers of the Borrower authorized to sign this Amendment
and each of the other Loan Documents to which the Borrower is or is to be
a party hereunder (including the certificates contemplated herein)
together with specimen signatures of such officers;
(viii)written instructions from Borrower directing the
application of proceeds of the Loans to be made on the date hereof;
(ix) evidence satisfactory to Agent of the satisfaction (or
waiver by Brazos) of all conditions precedent to the Xxxxxx Asset Purchase
Agreement, and a copy of the fully executed Xxxxxx Asset Purchase
Agreement, together with all exhibits and schedules thereto, and evidence
that the Xxxxxx Asset Acquisition has been consummated in accordance with
the provisions of the Xxxxxx Asset Purchase Agreement;
(x) copies of all filing receipts or acknowledgments issued by
any governmental authority to evidence any filing or recordation necessary
to perfect the Liens of Agent, for the benefit of Lenders, in the
Collateral (including the assets acquired in the Xxxxxx Asset Acquisition)
and evidence to Agent and Lenders that such Liens constitute valid and
first-priority perfected security interests and Liens;
(xi) landlord consent letters from such of the landlords as
shall be required by Agent, in form and substance satisfactory to Lenders,
as to each new location of Borrower resulting from the Xxxxxx Asset
Acquisition;
(xii) certified copies of Borrower's casualty insurance
policies, together with endorsements naming Agent, for the benefit of
Lenders, as loss payee and as mortgagee pursuant to a standard mortgagee
clause, and certified copies of Borrower's liability insurance policies,
together with endorsements naming Agent, for the benefit of Lenders, as a
co-insured; and
(xiii)such additional documents, instruments and information
as Lenders or their legal counsel may request.
(b) No Default or Event of Default shall have occurred and be
continuing, unless such Default or Event of Default has been specifically
disclosed in writing by Borrower to Lender.
(c) All conditions precedent in the Loan Agreement to the making of
a Loan pursuant to the Loan Agreement shall have been fully satisfied or waived
in writing by Agent and each Lender.
(d) The representations and warranties contained herein and in the
Loan Agreement and the other Loan Documents, as each is amended hereby, shall be
true and correct as of the date hereof, as if made on the date hereof, other
than for such representations and warranties which relate to a specific date.
(e) 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 satisfactory to Lenders and Agent
and their legal counsel.
ARTICLE IV
LIMITED WAIVER
By execution of this Amendment and upon satisfaction of the conditions set
forth in SECTION 3.01 of this Amendment, Agent and Lenders hereby waive any
Default and/or Event of Default arising under the Loan Agreement solely by
reason of Borrower's violation of SECTION 9.2(A) of the Loan Agreement resulting
from Xxxxxx Asset Acquisition. Except as specifically provided in this ARTICLE
IV, nothing contained in this Amendment shall be construed as a waiver by
Lenders or Agent of any covenant or provision of the Loan Agreement, the other
Loan Documents, this Amendment, or of any other contract or instrument between
Borrower, Agent and/or any Lender, and the failure of Agent and/or any Lender at
any time or times hereafter to require strict performance by Borrower of any
provision thereof shall not waive, affect or
diminish any right of Agent and/or any Lender to thereafter demand strict
compliance therewith. Lenders and Agent hereby reserve all rights granted under
the Loan Agreement, the other Loan Documents, this Amendment and any other
contract or instrument between Borrower, Agent and/or any Lender.
ARTICLE V
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
5.01 RATIFICATIONS. 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 the other Loan Documents, and, except as expressly
modified and superseded by this Amendment, the terms and provisions of the Loan
Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Borrower, Lenders and Agent agree that the
Loan Agreement and the other Loan Documents, as amended hereby, shall continue
to be legal, valid, binding and enforceable in accordance with their respective
terms.
5.02 REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Lenders and Agent that (a) the execution, delivery and performance
of this Amendment and any and 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; (b) the representations and warranties contained in the Loan
Agreement, as amended hereby, and any other Loan Document are true and correct
on and as of the date hereof and on and as of the date of execution hereof, as
though made on and as of each such date, other than representations and
warranties which relate to a specific date; (c) no Default or Event of Default
under the Loan Agreement, as amended hereby, has occurred and is continuing,
unless such Default or Event of Default has been specifically waived in writing
by Lenders or has been specifically disclosed in writing by Borrower to Lenders;
(d) Borrower is in full compliance with all covenants and agreements contained
in the Loan Agreement and the other Loan Documents, as amended hereby, except as
has been otherwise specifically disclosed in writing by Borrower to Lenders; and
(e) the execution, delivery, and performance of this Amendment and any and all
other Loan Documents executed and/or delivered in connection herewith, and the
consummation of the Xxxxxx Asset Acquisition, does not violate any provision of
the Parent Senior Notes or any document executed in connection therewith,
including the Indenture.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in the Loan Agreement or any other Loan Document, including,
without limitation, any 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 any Lender or Agent or any closing shall
affect the representations and warranties or the right of any Lender or Agent to
rely upon them.
6.02 REFERENCE TO LOAN AGREEMENT. Each of the Loan Agreement and the other
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 Loan
Agreement, as amended hereby, are hereby amended so that any reference in the
Loan Agreement and such other Loan Documents to the Loan Agreement shall mean a
reference to the Loan Agreement, as amended hereby.
6.03 EXPENSES OF LENDERS AND AGENT. As provided in the Loan Agreement,
Borrower agrees to pay on demand all costs and expenses incurred by Lenders and
Agent in connection with the preparation, negotiation, and execution of this
Amendment and the other Loan Documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including, without
limitation, the costs and fees of Lenders' and Agent's legal counsel, and all
costs and expenses incurred by Lenders and Agent in connection with the
enforcement or preservation of any rights under the Loan Agreement, as amended
hereby, or any other Loan Documents, including, without, limitation, the costs
and fees of Lenders' and Agent's legal counsel.
6.04 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.
6.05 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall
inure to the benefit of Lenders, Agent and Borrower and their respective
successors and assigns, except that Borrower may not assign or transfer any of
its rights or obligations hereunder without the prior written consent of Lenders
and Agent.
6.06 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.
6.07 EFFECT OF WAIVER. No consent or waiver, express or implied, by any
Lender or Agent to or for any breach of or deviation from any covenant or
condition by Borrower shall be deemed a consent to or waiver of any other breach
of the same or any other covenant, condition or duty.
6.08 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.09 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED
PURSUANT HERETO 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 STATE OF
TEXAS.
6.10 FINAL AGREEMENT. THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS,
EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE
LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, 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. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BORROWER,
LENDERS AND AGENT.
6.11 RELEASE. BORROWER HEREBY ACKNOWLEDGES THAT IT 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 ITS
LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF
ANY KIND OR NATURE FROM ANY LENDER OR AGENT. BORROWER HEREBY VOLUNTARILY AND
KNOWINGLY RELEASES AND FOREVER DISCHARGES LENDERS AND AGENT, 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 THE BORROWER MAY NOW OR
HEREAFTER HAVE AGAINST ANY LENDER OR AGENT, ITS PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND
ARISING FROM ANY "LOANS", INCLUDING, WITHOUT 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.
IN WITNESS WHEREOF, this Amendment has been executed as of the date first
above-written, to be effective as of the respective date indicated above.
BRAZOS, INC.
By: /s/
Name:
Title:
MORNING SUN, INC.
By: /s/
Name:
Title:
FLEET CAPITAL CORPORATION,
as Agent
By: /s/
Name:
Title:
FLEET CAPITAL CORPORATION,
in its individual capacity
By: /s/
Name:
Title:
BANKBOSTON, N.A.
By: /s/
Name:
Title:
