THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIRD AMENDMENT TO AMENDED AND RESTATED
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this "Amendment") is made and entered into as of the 22nd day of February, 2001, by and among the financial institutions party to the Loan Agreement (as defined herein) from time to time (the "Lenders"), BANK OF AMERICA, N.A., formerly NATIONSBANK, N.A., as agent for the Lenders (the "Agent"), XXXXXXX INDUSTRIES, INC., a Missouri corporation ("Xxxxxxx"), XXXXXXX BUS CORPORATION, a Kansas corporation ("Bus"), WHEELED COACH INDUSTRIES, INC., a Florida corporation ("WCI"), CAPACITY OF TEXAS, INC., a Texas corporation ("Capacity"), MOBILE TECH CORPORATION, a Kansas corporation ("Mobile"), WORLD TRANS, INC., a Kansas corporation ("World Trans"), BRUTZER CORPORATION, an Ohio corporation ("Brutzer"), MID BUS, INC., an Ohio corporation ("Mid Bus"), and MOBILE PRODUCTS, INC., a Kansas corporation ("Mobile Products", and, together with Xxxxxxx, Bus, Capacity, Mobile, WCI, World Trans, Brutzer and Mid Bus, the "Borrowers" and each, a "Borrower").
W I T N E S S E T H :
WHEREAS, the Agent, the Lenders, and the Borrowers entered into that certain Amended and Restated Loan and Security Agreement, dated as of July 31, 1998 (as amended, the "Loan Agreement"), pursuant to which the Lenders agreed to extend certain financial accommodations to the Borrowers; and
WHEREAS, the Borrowers have requested that the Agent and the Lenders amend the Loan Agreement in order to permit the Borrowers to reborrow the unused portion of the Term Loan B Facility from time to time; and
WHEREAS, the Agent and the Lenders are willing to permit the Borrowers to do so on the terms set forth herein and in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. 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. Amendments to Loan Agreement.
2.1. The Loan Agreement is amended by deleting the definition of "Term Loan B Facility" set forth in Section 1.1 and substituting the following in lieu thereof:
"Term Loan B Facility" means, at any time, a principal amount equal to $2,000,000.
2.2. The Loan Agreement is amended by deleting Section 3.1(b) and substituting the following in lieu thereof:
(b) Term Loan B. Upon the terms and subject to the conditions of, and in reliance upon the representations and warranties made under, this Agreement, each Lender agrees severally, but not jointly, from the Effective Date to but excluding the Term Loan Termination Date, to make a Term Loan B to the Borrowers in incremental Term Loan B Advances in an aggregate principal amount at any one time outstanding equal to such Lender's Commitment Percentage of the Term Loan B Facility. The principal amount of any Term Loan B Advance which is repaid may be reborrowed by the Borrowers, subject to the terms and conditions of this Agreement and in accordance with this Article 3.
2.3. The Loan Agreement is amended by deleting Section 3.2(i) and substituting the following in lieu thereof:
(i) the aggregate principal amount of the requested Term Loan B Advance, which shall not be less than $250,000 and which, when added to the principal amount of Term Loan B Advances outstanding, shall not exceed $2,000,000 in the aggregate,
3. Reaffirmation of Representations and Warranties. The Borrowers hereby restate, ratify, and reaffirm each and every term, condition, representation and warranty heretofore made by them under or in connection with the execution and delivery of the Loan Agreement as amended hereby and the other Loan Documents (in each case, as amended through and including the date hereof) as fully as though such representations and warranties had been made on the date hereof and with specific reference to this Amendment and the Loan Documents.
4. Fees, Costs and Expenses. The Borrowers agree to pay on demand all costs and expenses of the Agent in connection with the preparation, execution, delivery and enforcement of this Amendment and all other Loan Documents and any other transactions contemplated hereby, including, without limitation, the reasonable fees and out-of-pocket expenses of legal counsel to the Agent.
5. No Event of Default; No Offset, Counterclaim. To induce the Lenders to enter into this Amendment, the Borrowers hereby (a) represent and warrant that, as of the date hereof and after giving effect to the terms hereof, there exists no Default or Event of Default under the Loan Agreement or any of the Loan Documents; and (b) acknowledge and agree that no right of offset, defense, counterclaim, claim, causes of action or objection in favor of the Borrowers against the Agent or any Lender exists arising out of or with respect to any of the Secured Obligations, the Loan Agreement, any of the other Loan Documents, or with respect to the administration or funding of the Loans.
6. Miscellaneous. The Borrowers agree to take such further action as the Agent shall reasonably request in connection herewith to evidence the amendments herein contained to the Loan Agreement. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument. This Amendment shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Georgia, other than its laws respecting choice of law. As amended hereby, the Loan Agreement shall be and remain in full force and effect, and shall constitute the legal, valid, binding and enforceable obligations of the Borrowers to the Agent and the Lenders.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
BORROWERS:
XXXXXXX Industries, Inc.
By: s / Xxxxx X. Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
XXXXXXX BUS CORPORATION
By: s / Xxxxx X. Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
WHEELED COACH INDUSTRIES, INC.
By: s / Xxxxx X. Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
CAPACITY OF TEXAS, INC.
By: s / Xxxxx X. Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
MOBILE-TECH CORPORATION
By: s / Xxxxx X. Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
WORLD TRANS, inc.
By: s / Xxxxx X. Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
BRUTZER CORPORATION
By: s / Xxxxx X. Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
MID BUS, inc.
By: s / Xxxxx X. Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
MOBILE PRODUCTS, inc.
By: s / Xxxxx X. Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
AGENT:
BANK OF AMERICA, N.A., as Agent
By: s/ Xxxx X. Xxxxxxx
Xxxx Xxxxxxx
Vice President
LENDER:
BANK OF AMERICA, N.A.
By: s/ Xxxx X. Xxxxxxx
Xxxx Xxxxxxx
Vice President
