1
EXHIBIT 10.5
UNLIMITED GUARANTY
THIS UNLIMITED GUARANTY ("Guaranty") is made as of February 23, 2000,
by Guarantor (as hereinafter defined) for the benefit of Bank (as hereinafter
defined).
1. Definitions. As used in this Guaranty, the following terms shall
have the meanings indicated below:
(a) The term "Bank" shall mean BANK ONE, TEXAS, NATIONAL
ASSOCIATION, whose address for notice purposes is the following:
0000 Xxxx, 0xx Xxxxx
Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
Attn: Asset Based Lending Dept.
(b) The term "Borrower" shall mean Long Reach Holdings, Inc.,
a Delaware corporation, and the survivor by merger of Long Reach
Holdings, Inc., a Delaware corporation, into TBM Acquisition I, Inc, a
Delaware corporation.
(c) The term "Guaranteed Indebtedness" shall mean (i) all
indebtedness, obligations and liabilities of Borrower to Bank of any
kind or character, now existing or hereafter arising, whether direct,
indirect, related, unrelated, fixed, contingent, liquidated,
unliquidated, joint, several or joint and several, and regardless of
whether such indebtedness, obligations and liabilities may, prior to
their acquisitions by Bank, be or have been payable to or in favor of a
third party and subsequently acquired by Bank (it being contemplated
that Bank may make such acquisitions from third parties), including
without limitation all indebtedness, obligations and liabilities of
Borrower to Bank now existing or hereafter arising by note, draft,
acceptance, guaranty, endorsement, letter of credit, assignment,
purchase, overdraft, discount, indemnity agreement or otherwise, (ii)
all accrued but unpaid interest on any of the indebtedness described in
(i) above (including, without limitation, all interest which would have
accrued but for the filing of a petition under the United States
Bankruptcy Code, as amended, or any other bankruptcy or insolvency
law), (iii) all obligations of Borrower to Bank under any documents
evidencing, securing, governing and/or pertaining to all or any part of
the indebtedness described in (i) and (ii) above (collectively, the
"Loan Documents"), (iv) all Obligations as defined in that certain Loan
and Security Agreement dated as of April 20, 1999 between Borrower and
Bank, as amended from time to time, (v) all costs and expenses incurred
by Bank in connection with the collection and administration of all or
any part of the indebtedness and obligations described in (i), (ii),
(iii) and (iv) above or the protection or preservation of, or
realization upon, the collateral securing all or any part of such
UNLIMITED GUARANTY - PAGE 1
2
indebtedness and obligations, including without limitation all
reasonable attorneys' fees (including, without limitation, attorneys'
fees and expenses incurred by Bank in connection with any proceedings
involving Guarantor or Borrower under the United States Bankruptcy
Code, as amended, or any other bankruptcy or insolvency law) and (vi)
all renewals, extensions, modifications and rearrangements of the
indebtedness and obligations described in (i), (ii), (iii),(iv) and (v)
above.
(d) The term "Guarantor" shall mean TBM HOLDINGS, INC., a
Delaware corporation, whose address for notice purposes is the
following:
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000.
2. Obligations. As an inducement to Bank to extend or continue to
extend credit and other financial accommodations to Borrower, Guarantor, for
value received, does hereby unconditionally and absolutely guarantee the prompt
and full payment and performance of the Guaranteed Indebtedness when due or
declared to be due and at all times thereafter.
3. Character of Obligations. This is an absolute, continuing and
unconditional guaranty of payment and not of collection and if at any time or
from time to time there is no outstanding Guaranteed Indebtedness, the
obligations of Guarantor with respect to any and all Guaranteed Indebtedness
incurred thereafter shall not be affected. All Guaranteed Indebtedness
heretofore, concurrently herewith or hereafter made by Bank to Borrower shall be
conclusively presumed to have been made or acquired in acceptance hereof.
Guarantor shall be liable, jointly and severally, with Borrower and any other
guarantor of all or any part of the Guaranteed Indebtedness.
4. Right of Revocation. Guarantor understands and agrees that Guarantor
may revoke its future obligations under this Guaranty at any time by giving Bank
written notice that Guarantor will not be liable hereunder for any indebtedness
or obligations of Borrower incurred on or after the effective date of such
revocation. Such revocation shall be deemed to be effective on the day following
the day Bank receives such notice delivered either by: (a) personal delivery or
delivery by nationally recognized overnight service to the address and
designated department of Bank identified in subparagraph 1(a) above, or (b)
United States mail, registered or certified, return receipt requested, postage
prepaid, addressed to Bank at the address shown in subparagraph 1(a) above.
Notwithstanding such revocation, Guarantor shall remain liable on its
obligations hereunder until payment in full to Bank of (x) all of the Guaranteed
Indebtedness that is outstanding on the effective date of such revocation, and
any renewals and extensions thereof, and (y) all loans, advances and other
extensions of credit made to or for the account of Borrower on or after the
effective date of such revocation pursuant to the obligation of Bank under a
commitment or agreement made to or with Borrower prior to the effective date of
such
UNLIMITED GUARANTY - PAGE 2
3
revocation. The terms and conditions of this Guaranty, including without
limitation the consents and waivers set forth in paragraph 7 hereof, shall
remain in effect with respect to the Guaranteed Indebtedness described in the
preceding sentence in the same manner as if such revocation had not been made by
Guarantor.
5. Representations and Warranties. Guarantor hereby represents and
warrants the following to Bank:
(a) This Guaranty may reasonably be expected to benefit,
directly or indirectly, Guarantor, and (i) if Guarantor is a
corporation, the Board of Directors of Guarantor has determined that
this Guaranty may reasonably be expected to benefit, directly or
indirectly, Guarantor, or (ii) if Guarantor is a partnership, the
requisite number of its partners have determined that this Guaranty may
reasonably be expected to benefit, directly or indirectly, Guarantor;
and
(b) Guarantor is familiar with, and has independently reviewed
the books and records regarding, the financial condition of Borrower
and is familiar with the value of any and all collateral intended to be
security for the payment of all or any part of the Guaranteed
Indebtedness; provided, however, Guarantor is not relying on such
financial condition or collateral as an inducement to enter into this
Guaranty; and
(c) Guarantor has adequate means to obtain from Borrower on a
continuing basis information concerning the financial condition of
Borrower and Guarantor is not relying on Bank to provide such
information to Guarantor either now or in the future; and
(d) Guarantor has the power and authority to execute, deliver
and perform this Guaranty and any other agreements executed by
Guarantor contemporaneously herewith, and the execution, delivery and
performance of this Guaranty and any other agreements executed by
Guarantor contemporaneously herewith do not and will not violate (i)
any agreement or instrument to which Guarantor is a party, (ii) any
law, rule, regulation or order of any governmental authority to which
Guarantor is subject, or (iii) its articles or certificate of
incorporation or bylaws, if Guarantor is a corporation, or its
partnership agreement, if Guarantor is a partnership; and
(e) Neither Bank nor any other party has made any
representation, warranty or statement to Guarantor in order to induce
Guarantor to execute this Guaranty; and
(f) The financial statements and other financial information
regarding Guarantor heretofore and hereafter delivered to Bank are and
shall be true and correct in all material respects and fairly present
the financial position of Guarantor as of the dates thereof, and no
material adverse change has occurred in the financial condition of
UNLIMITED GUARANTY - PAGE 3
4
Guarantor reflected in the financial statements and other financial
information regarding Guarantor heretofore delivered to Bank since the
date of the last statement thereof; and
(g) As of the date hereof, and after giving effect to this
Guaranty and the obligations evidenced hereby, (i) Guarantor is and
will be solvent, (ii) the fair saleable value of Guarantor's assets
exceeds and will continue to exceed its liabilities (both fixed and
contingent), (iii) Guarantor is and will continue to be able to pay its
debts as they mature, and (iv) if Guarantor is not an individual,
Guarantor has and will continue to have sufficient capital to carry on
its business and all businesses in which it is about to engage.
6. Covenants. Guarantor hereby covenants and agrees with Bank as
follows:
(a) Guarantor shall not, so long as its obligations under this
Guaranty continue, transfer or pledge any material portion of its
assets for less than full and adequate consideration; and
(b) Guarantor shall promptly furnish to Bank at any time and
from time to time such financial statements and other financial
information of Guarantor as the Bank may reasonably require, in form
and substance satisfactory to Bank; and
(c) Guarantor shall comply with all terms and provisions of
the Loan Documents that apply to Guarantor; and
(d) Guarantor shall promptly inform Bank of (i) any litigation
or governmental investigation against Guarantor or affecting any
security for all or any part of the Guaranteed Indebtedness or this
Guaranty which, if determined adversely, might have a material adverse
effect upon the financial condition of Guarantor or upon such security
or might cause a default under any of the Loan Documents, (ii) any
claim or controversy which might become the subject of such litigation
or governmental investigation, and (iii) any material adverse change in
the financial condition of Guarantor.
7. Consent and Waiver.
(a) Guarantor waives (i) promptness, diligence and notice of
acceptance of this Guaranty and notice of the incurring of any
obligation, indebtedness or liability to which this Guaranty applies or
may apply and waives presentment for payment, notice of nonpayment,
protest, demand, notice of protest, notice of intent to accelerate,
notice of acceleration, notice of dishonor, diligence in enforcement
and indulgences of every kind, and (ii) the taking of any other action
by Bank, including without limitation, giving any
UNLIMITED GUARANTY - PAGE 4
5
notice of default or any other notice to, or making any demand on,
Borrower, any other guarantor of all or any part of the Guaranteed
Indebtedness or any other party.
(b) Guarantor waives any rights Guarantor has under, or any
requirements imposed by, Chapter 34 of the Texas Business and Commerce
Code, as in effect on the date of this Guaranty or as it may be amended
from time to time.
(c) Bank may at any time, without the consent of or notice to
Guarantor, without incurring responsibility to Guarantor and without
impairing, releasing, reducing or affecting the obligations of
Guarantor hereunder: (i) change the manner, place or terms of payment
of all or any part of the Guaranteed Indebtedness, or renew, extend,
modify, rearrange, increase or alter all or any part of the Guaranteed
Indebtedness; (ii) change the interest rate accruing on any of the
Guaranteed Indebtedness (including, without limitation, any periodic
change in such interest rate that occurs because such Guaranteed
Indebtedness accrues interest at a variable rate which may fluctuate
from time to time); (iii) sell, exchange, release, surrender,
subordinate, realize upon or otherwise deal with in any manner and in
any order any collateral for all or any part of the Guaranteed
Indebtedness or this Guaranty or setoff against all or any part of the
Guaranteed Indebtedness; (iv) neglect, delay, omit, fail or refuse to
take or prosecute any action for the collection of all or any part of
the Guaranteed Indebtedness or this Guaranty or to take or prosecute
any action in connection with any of the Loan Documents; (v) exercise
or refrain from exercising any rights against Borrower or others, or
otherwise act or refrain from acting; (vi) settle or compromise all or
any part of the Guaranteed Indebtedness and subordinate the payment of
all or any part of the Guaranteed Indebtedness to the payment of any
obligations, indebtedness or liabilities which may be due or become due
to Bank or others; (vii) apply any deposit balance, fund, payment,
collections through process of law or otherwise or other collateral of
Borrower to the satisfaction and liquidation of the indebtedness or
obligations of Borrower to Bank, if any, not guaranteed under this
Guaranty pursuant to paragraph 4 herein; and (viii) apply any sums paid
to Bank by Guarantor, Borrower or others to the Guaranteed Indebtedness
in such order and manner as Bank, in its sole discretion, may
determine.
(d) Should Bank seek to enforce the obligations of Guarantor
hereunder by action in any court or otherwise, Guarantor waives any
requirement, substantive or procedural, that (i) Bank first enforce any
rights or remedies against Borrower or any other person or entity
liable to Bank for all or any part of the Guaranteed Indebtedness,
including without limitation that a judgment first be rendered against
Borrower or any other person or entity, or that Borrower or any other
person or entity should be joined in such cause, or (ii) Bank shall
first enforce rights against any collateral which shall ever have been
given to secure all or any part of the Guaranteed Indebtedness or this
Guaranty.
UNLIMITED GUARANTY - PAGE 5
6
Such waiver shall be without prejudice to Bank's right, at its option,
to proceed against Borrower or any other person or entity, whether by
separate action or by joinder.
(e) In addition to any other waivers, agreements and covenants
of Guarantor set forth herein, Guarantor hereby further waives and
releases all claims, causes of action, defenses and offsets for any act
or omission of Bank, its directors, officers, employees,
representatives or agents in connection with Bank's administration of
the Guaranteed Indebtedness, except for Bank's willful misconduct or
gross negligence.
8. Obligations Not Impaired.
(a) Guarantor agrees that its obligations hereunder shall not
be released, diminished, impaired, reduced or affected by the
occurrence of any one or more of the following events: (i) the death,
disability or lack of corporate power of Borrower, Guarantor or any
other guarantor of all or any part of the Guaranteed Indebtedness, (ii)
any receivership, insolvency, bankruptcy or other proceedings affecting
Borrower, Guarantor or any other guarantor of all or any part of the
Guaranteed Indebtedness, or any of their respective property; (iii) the
partial or total release or discharge of Borrower or any other
guarantor of all or any part of the Guaranteed Indebtedness, or any
other person or entity from the performance of any obligation contained
in any instrument or agreement evidencing, governing or securing all or
any part of the Guaranteed Indebtedness, whether occurring by reason of
law or otherwise; (iv) the taking or accepting of any collateral for
all or any part of the Guaranteed Indebtedness or this Guaranty; (v)
the taking or accepting of any other guaranty for all or any part of
the Guaranteed Indebtedness; (vi) any failure by Bank to acquire,
perfect or continue any lien or security interest on collateral
securing all or any part of the Guaranteed Indebtedness or this
Guaranty; (vii) the impairment of any collateral securing all or any
part of the Guaranteed Indebtedness or this Guaranty; (viii) any
failure by Bank to sell any collateral securing all or any part of the
Guaranteed Indebtedness or this Guaranty in a commercially reasonable
manner or as otherwise required by law; (ix) any invalidity or
unenforceability of or defect or deficiency in any of the Loan
Documents; or (x) any other circumstance which might otherwise
constitute a defense available to, or discharge of, Borrower or any
other guarantor of all or any part of the Guaranteed Indebtedness.
(b) This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of all or
any part of the Guaranteed Indebtedness is rescinded or must otherwise
be returned by Bank upon the insolvency, bankruptcy or reorganization
of Borrower, Guarantor, any other guarantor of all or any part of the
Guaranteed Indebtedness, or otherwise, all as though such payment had
not been made.
UNLIMITED GUARANTY - PAGE 6
7
(c) In the event Borrower is a corporation, joint stock
association or partnership, or is hereafter incorporated, none of the
following shall affect Guarantor's liability hereunder: (i) the
unenforceability of all or any part of the Guaranteed Indebtedness
against Borrower by reason of the fact that the Guaranteed Indebtedness
exceeds the amount permitted by law; (ii) the act of creating all or
any part of the Guaranteed Indebtedness is ultra xxxxx; or (iii) the
officers or partners creating all or any part of the Guaranteed
Indebtedness acted in excess of their authority. Guarantor hereby
acknowledges that withdrawal from, or termination of, any ownership
interest in Borrower now or hereafter owned or held by Guarantor shall
not alter, affect or in any way limit the obligations of Guarantor
hereunder.
9. Actions against Guarantor. In the event of a default in the payment
or performance of all or any part of the Guaranteed Indebtedness when such
Guaranteed Indebtedness becomes due, whether by its terms, by acceleration or
otherwise, Guarantor shall, without notice or demand, promptly pay the amount
due thereon to Bank, in lawful money of the United States, at Bank's address set
forth in subparagraph 1(a) above. One or more successive or concurrent actions
may be brought against Guarantor, either in the same action in which Borrower is
sued or in separate actions, as often as Bank deems advisable. The exercise by
Bank of any right or remedy under this Guaranty or under any other agreement or
instrument, at law, in equity or otherwise, shall not preclude concurrent or
subsequent exercise of any other right or remedy. The books and records of Bank
shall be admissible in evidence in any action or proceeding involving this
Guaranty and shall be prima facie evidence of the payments made on, and the
outstanding balance of, the Guaranteed Indebtedness.
10. Payment by Guarantor. Whenever Guarantor pays any sum which is or
may become due under this Guaranty, written notice must be delivered to Bank
contemporaneously with such payment. Such notice shall be effective for purposes
of this paragraph when contemporaneously with such payment Bank receives such
notice either by: (a) personal delivery or delivery by nationally recognized
overnight service to the address and designated department of Bank identified in
subparagraph 1(a) above, or (b) United States mail, certified or registered,
return receipt requested, postage prepaid, addressed to Bank at the address
shown in subparagraph 1(a) above. In the absence of such notice to Bank by
Guarantor in compliance with the provisions hereof, any sum received by Bank on
account of the Guaranteed Indebtedness shall be conclusively deemed paid by
Borrower.
11. Notice of Sale. In the event that Guarantor is entitled to receive
any notice under the Uniform Commercial Code, as it exists in the state
governing any such notice, of the sale or other disposition of any collateral
securing all or any part of the Guaranteed Indebtedness or this Guaranty,
reasonable notice shall be deemed given when such notice is deposited in the
United States mail, postage prepaid, at the address for Guarantor set forth in
subparagraph 1(d) above, ten (10) days prior to the date any public sale, or
after which any private sale, of any such
UNLIMITED GUARANTY - PAGE 7
8
collateral is to be held; provided, however, that notice given in any other
reasonable manner or at any other reasonable time shall be sufficient.
12. Waiver by Bank. No delay on the part of Bank in exercising any
right hereunder or failure to exercise the same shall operate as a waiver of
such right. In no event shall any waiver of the provisions of this Guaranty be
effective unless the same be in writing and signed by an officer of Bank, and
then only in the specific instance and for the purpose given.
13. Successors and Assigns. This Guaranty is for the benefit of Bank,
its successors and assigns. This Guaranty is binding upon Guarantor and
Guarantor's heirs, executors, administrators, personal representatives and
successors, including without limitation any person or entity obligated by
operation of law upon the reorganization, merger, consolidation or other change
in the organizational structure of Guarantor.
14. Costs and Expenses. Guarantor shall pay on demand by Bank all costs
and expenses, including without limitation, all reasonable attorneys' fees
incurred by Bank in connection with the preparation, administration, enforcement
and/or collection of this Guaranty. This covenant shall survive the payment of
the Guaranteed Indebtedness.
15. Severability. If any provision of this Guaranty is held by a court
of competent jurisdiction to be illegal, invalid or unenforceable under present
or future laws, such provision shall be fully severable, shall not impair or
invalidate the remainder of this Guaranty and the effect thereof shall be
confined to the provision held to be illegal, invalid or unenforceable.
16. No Obligation. Nothing contained herein shall be construed as an
obligation on the part of Bank to extend or continue to extend credit to
Borrower.
17. Amendment. No modification or amendment of any provision of this
Guaranty, nor consent to any departure by Guarantor therefrom, shall be
effective unless the same shall be in writing and signed by an officer of Bank,
and then shall be effective only in the specific instance and for the purpose
for which given.
18. Cumulative Rights. All rights and remedies of Bank hereunder are
cumulative of each other and of every other right or remedy which Bank may
otherwise have at law or in equity or under any instrument or agreement, and the
exercise of one or more of such rights or remedies shall not prejudice or impair
the concurrent or subsequent exercise of any other rights or remedies.
19. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAWS.
UNLIMITED GUARANTY - PAGE 8
9
20. Venue. This Guaranty has been entered into in the county in Texas
where Bank's address for notice purposes is located, and it shall be performable
for all purposes in such county. Courts within the State of Texas shall have
jurisdiction over any and all disputes arising under or pertaining to this
Guaranty and venue for any such disputes shall be in the county or judicial
district where the Bank's address for notice purposes is located.
21. Compliance with Applicable Usury Laws. Notwithstanding any other
provision of this Guaranty or of any instrument or agreement evidencing,
governing or securing all or any part of the Guaranteed Indebtedness, Guarantor
and Bank by its acceptance hereof agree that Guarantor shall never be required
or obligated to pay interest in excess of the maximum nonusurious interest rate
as may be authorized by applicable law for the written contracts which
constitute the Guaranteed Indebtedness. It is the intention of Guarantor and
Bank to conform strictly to the applicable laws which limit interest rates, and
any of the aforesaid contracts for interest, if and to the extent payable by
Guarantor, shall be held to be subject to reduction to the maximum nonusurious
interest rate allowed under said law.
22. Descriptive Headings. The headings in this Guaranty are for
convenience only and shall not define or limit the provisions hereof.
23. Gender. Within this Guaranty, words of any gender shall be held and
construed to include the other gender.
24. Entire Agreement. This Guaranty contains the entire agreement
between Guarantor and Bank regarding the subject matter hereof and supersedes
all prior written and oral agreements and understandings, if any, regarding
same; provided, however, this Guaranty is in addition to and does not replace,
cancel, modify or affect any other guaranty of Guarantor now or hereafter held
by Bank that relates to Borrower or any other person or entity.
UNLIMITED GUARANTY - PAGE 9
10
EXECUTED as of the date first above written.
GUARANTOR:
TBM HOLDINGS, INC.
/s/ Xxxxxxx X. Xxxxxxxx
By:________________________
President
Its:_______________________
UNLIMITED GUARANTY - PAGE 10
