AMENDMENT TO LOAN AND RELATED
AGREEMENTS AND WAIVER OF DEFAULT
THIS AMENDMENT TO LOAN AND RELATED AND WAIVER OF
DEFAULT (this “Agreement”) is made and entered into as
of the ___ day of December, 2005, by and among PACCAR
MACHINERY CORPORATION , a Delaware corporation
(“Lender”), and OMNI U.S.A., INC. , a
Nevada corporation (“Borrower”).
W
I
T N E S
S E T
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:
WHEREAS, Borrower and Lender are parties to that
certain Loan Agreement dated as of September 23, 1999,
Whereas, in connection with the execution of the
Loan Agreement, the parties also executed that certain Promissory
Note dated September 23, 1999 and Security Agreement dated
September 23, 1999 (collectively the “Loan Documents”);
and
WHEREAS, as
inducement to Lender to enter into the Loan Agreement, Jeffrey K.
Daniel and Craig L. Daniel (each a Guarantor) each gave a personal
guarantee dated September 23, 1999 (the "Limited Guarantee") to
PACCAR Machinery Corporation covering Borrower’s obligations
to Lender under the Loan Agreement; and
WHEREAS,
Borrower has entered into an Agreement and Plan of Merger (the
“Merger Agreement”) by and among Borrower, Omni Merger
Sub, Inc., a wholly-owned subsidiary of Borrower (“Omni
Sub”) and Brendan Technologies, Inc. (“Brendan”);
and
WHEREAS, under
the Merger, Borrower shall sell all of the capital stock of Omni
USA, Inc., a Washington Corporation (“Omni Washington”)
and Butler Products Corporation, a Kentucky corporation
(“Butler”) to Jeffrey K. Daniel and Craig L. Daniel
(collectively the “Daniels”) in accordance with that
certain Stock Purchase Agreement (the “Spin Off
Agreement”), and the Daniels will contemporaneously
contribute all of the capital stock of Omni Washington and Butler
to Asia Capital, Inc., a Nevada corporation (“Asia
Capital”) wholly-owned by Jeffrey K. Daniel, Craig L. Daniel,
and Edward Daniel, (the “Spin Off”); and
WHEREAS, under
the Merger Agreement, immediately subsequent to or
contemporaneously with the Spin Off, Omni Sub will be merged into
Brendan (the “Merger”), and Brendan will be the
surviving corporation in the Merger; and
WHEREAS the
Merger and the Spin Off (collectively, the
“Transaction”) each separately and collectively
constitute a Change of Control which is a default and an Event of
Default under the Loan Agreement; and
WHEREAS,
Borrower has requested that Lender waive such defaults
prospectively, and Lender is willing to do so on the terms and
conditions set forth herein; and
WHEREAS,
Borrower and Lender desire to amend the Loan Agreement and other
Loan Documents on the terms and conditions set forth
herein.
NOW, THEREFORE,
in consideration of the foregoing premises, and other good and
valuable consideration, the receipt and legal sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
1. All capitalized terms used herein and not
otherwise expressly defined herein shall have the respective
meanings given to such terms in the Loan Agreement.
2. Borrower hereby acknowledges and agrees that the
Transaction would constitute, inter alia, a default under
Section 11 of the Loan Agreement. (the “Change of
Control Default”).
3. Lender hereby waives the Change of Control
Default occasioned by the Transaction. Lender reserves its rights
and remedies with respect to any other Event of Default.
4. The Loan Documents are hereby amended to
substitute Asia Capital for Borrower each of those agreements, and
to release Borrower from each of those agreements.
5. Conditions of Effectiveness
. This Amendment, and the consents,
waivers, releases, and modifications contained herein, shall become
effective as of the date of this Amendment upon satisfaction of all
of the following conditions precedent:
(a) Completion of the Spin Off to the satisfaction
of Lender as contemplated by the Spin Off Agreement.
(b) Completion of the Merger to the satisfaction of
Lender as contemplated in the Merger Agreement.
6. Merger Further Assurances . Borrower, Asia Capital, Jeff Daniel and Craig
Daniel hereby covenant and agree with Lender that from the date of
the Merger and continuing through the completion of the Spin
Off:
(a) Borrower will not transfer, or up stream, any
cash from Borrower to Brendan or any entity related to or
affiliated with Brendan.
(b) Jeff Daniel Craig Daniel and Ed Daniel are the
sole shareholders of Asia Capital.
7. Continuing Further Assurances
. Borrower, Jeff Daniel, Craig Daniel
and Ed Daniel hereby covenant and agree with Lender that up to and
including the Merger Transaction:
(a) Each Guarantor shall ratify this agreement and
shall
