1
AMENDMENT FOUR TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT FOUR TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
dated as of July 31, 2001, is made and entered into by and between BANK ONE, NA,
F/K/A BANK ONE, TEXAS, N.A. ("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 previously
amended (as amended, the "LOAN AGREEMENT").
B. Events of Default now exist under the Loan Agreement.
C. Lender and Borrower desire to amend the Loan Agreement as
herein set forth and to set forth certain other agreements.
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. Effective as of July 31, 2001,
Section 1.1 of the Loan Agreement is hereby amended by deleting the definition
of "Committed Sum" in its entirety and substituting in place thereof the
following:
"`Committed Sum' means $8,000,000."
Section 2.02. Amendment of Section 2.6. SECTION 2.6 of the Loan
Agreement is hereby amended in its entirety to read as follows:
"Section 2.6 Repayment of Term Loan. The Term Loan is due and payable
as follows: (i) accrued and unpaid interest, calculated at the rate set forth in
SECTION 3.1, shall be due and payable monthly on the fifteenth (15th) day of
each month, commencing on AUGUST 15, 2001, and continuing on the fifteenth day
of each month thereafter and at maturity, and (ii) principal
1
2
installments (a) in the amount of $60,000 each shall be due and payable on the
fifteenth (15th) day of each month, commencing on SEPTEMBER 15, 2001, and
continuing each month thereafter through and including DECEMBER 15, 2001, and
(b) in the amount of $50,000 each shall be due and payable on the fifteenth
(15th) day of each month, commencing on JANUARY 15, 2002, and continuing each
month thereafter through the Termination Date, when the then unpaid principal
balance of the Term Loan, together with all accrued and unpaid interest, shall
be due and payable in full."
ARTICLE III
Events of Default; Other Agreements
Section 3.01 Events of Default. Borrower acknowledges and agrees that
the following Events of Default are currently outstanding under the Loan
Agreement: failure to comply as of June 30, 2001 with the provisions of Sections
9.1(a), 9.1(b), 9.1(c) and 9.1(d) of the Loan Agreement. Lender has not waived
such Events of Default and reserves all of its rights and remedies with respect
to such Events of Default. Any waiver of any of such Events of Default must be
in writing and signed by an officer of Lender to be effective and shall be
strictly limited to matters expressly stated therein.
Section 3.02 Temporary Overadvance. Lender has agreed to make a
one-time overadvance of $350,000 to Borrower. The repayment of such overadvance
is due and payable on demand by Lender, which Lender may demand at any time.
Lender has not agreed to make any additional overadvance to Borrower.
Section 3.03 August Principal and Interest Payments. Lender has agreed
to defer the payments of interest on the Revolving Loan and the Term Loan
otherwise scheduled for, and due and payable on, August 1, 2001 until August 15,
2001 at which time such interest accrued through August 15, 2001 on both the
Revolving Loan and the Term Loan shall be due and payable in full without demand
of any kind. In addition, Lender has agreed that the principal payment due under
Term Loan on August 1, 2001, but only such one principal payment, shall be
deferred to the maturity date of the Term Loan.
Section 3.04 No Obligation to Advance. Borrower agrees that because of
the Events of Default now outstanding, Lender has no obligation to make any
advances or loans or other financial accommodations to Borrower.
Section 3.05 Amendment Fee. In consideration for Lender entering into
this Amendment, Borrower agrees to pay to Lender an amendment fee of $10,000 and
to reimburse Lender for the attorney's fees incurred by Lender in connection
with this Amendment in the amount of $2,200. Borrower authorizes Lender to make
an advance under the Revolving Loan to pay such amendment fee and attorney's
fees.
2
3
ARTICLE IV
Conditions Precedent
Section 4.01. 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) Lender shall have received this Amendment, duly
executed by Borrower and consented to by TBM Holdings, Inc. and
Presto-Lift, Inc.;
(c) Borrower shall have delivered to Lender certified
board of directors resolutions and certificates of incumbency for
Borrower, in such form and content as is acceptable to Lender in its
sole discretion;
(d) Borrower shall pay to Lender an amendment fee of
$10,000 and reimburse Lender for all of its attorney's fees incurred in
connection with this Amendment; and
(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
reasonably satisfactory to Lender and its legal counsel.
ARTICLE V
Ratifications, Representations, and Warranties
Section 5.01. 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 5.02. 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 5.03. Representations and Warranties. Borrower represents and
warrants to Lender that 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
3
4
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;.
ARTICLE VI
Miscellaneous
Section 6.01. 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 6.02. 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 6.03. 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. 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 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.
SECTION 6.05. 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 STATE OF TEXAS AND APPLICABLE FEDERAL LAW.
Section 6.06. 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 6.07. 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
4
5
when taken together shall constitute one and the same instrument. This Amendment
may be executed and delivered by facsimile transmission.
Section 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.
Section 6.09. 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 6.10. 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 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 6.11. 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.
5
6
EXECUTED as of the date first written above.
LONG REACH HOLDINGS, INC. BANK ONE, NA
By: /s/ Xxxxxxx X. Sample By: /s/ Xxxx X. Xxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxxx X. Sample Name: Xxxx X. Xxxxxx
------------------------------- ------------------------------
Title: President Title: First Vice President
------------------------------ ------------------------------
CONSENT AND RATIFICATION
Each of 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 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
--------------------------------
Its: President
-------------------------------
PRESTO LIFTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Its: Secretary
-------------------------------
6
