AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT
EXHIBIT 10.14
AMENDMENT NO. 5 TO
THIS AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT (this "Amendment") is dated as of January 7, 2004 and is made by and among 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"), BRUTZER CORPORATION, an Ohio corporation ("Brutzer"), MID BUS, INC., an Ohio corporation ("Mid Bus"), MOBILE PRODUCTS, INC., a Kansas corporation ("Mobile Products"), and WORLD TRANS, INC., a Kansas corporation ("World Trans," and, together with Xxxxxxx, Bus, WCI, Capacity, Mobile, Brutzer, Mid Bus, and Mobile Products, the "Borrowers" and each, a "Borrower"), (ii) the financial institutions party to the "Loan Agreement" (as hereinafter defined) from time to time as the Lenders (individually, a "Lender" and collectively, the "Lenders"), and (iii) FLEET CAPITAL CORPORATION, a Rhode Island corporation ("FCC"), as administrative agent for the Lenders (the "Agent").
Preliminary Statements
The Borrowers, the Lenders, and the Agent are parties to a Loan and Security Agreement dated as of May 17, 2002, (as heretofore amended, the "Loan Agreement"; terms defined in the Loan Agreement (and not otherwise defined herein) are used in this Amendment as defined in the Loan Agreement).
The Borrowers have requested that the Loan Agreement be modified to increase the Chassis Sublimit from $12 million to $19 million.
The Agent and Lenders have agreed to the aforementioned modification subject to the provisions of this Amendment.
Statement of Agreement
Accordingly, in consideration of the Loan Agreement, the Loans made by the Lenders and outstanding thereunder, the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendment to Loan Agreement. Effective as provided in Section 2 of this Amendment, the Loan Agreement is hereby amended as follows:
by amending Section 1.1 Definitions by amending the following definition in its entirety to read as follows:
"Chassis Sublimit" means the sum of $19,000,000 during the period from the Effective Date (as defined in Amendment No. 5 to this Agreement, dated as of January 7, 2004) through June 30, 2004 and $12,000,000 thereafter.
2. Effectiveness of Amendment. This Amendment shall be effective as of the first date on which the Agent has received each of the following, each in form and substance satisfactory to the Agent (the "Effective Date"):
(a) four (4) copies of this Amendment duly executed and delivered by each Borrower and the Lender;
(b) receipt by the Agent of a fee in the amount of $20,000; and
(c) such other agreements, certificates, instruments and other documents as any Lender through the Agent may reasonably request in connection with the transactions contemplated hereby.
3. Representations and Warranties. Each Borrower hereby represents and warrants to the Agent and the Lender that it has the corporate or other power and has taken all actions necessary to authorize it to execute and deliver this Amendment and the other documents contemplated to be delivered by it pursuant to this Amendment and to perform its obligations under the Loan Agreement as amended by this Amendment and under such other documents; that this Amendment has been and each such other document when executed and delivered by such Borrower will have been, duly executed and delivered by such Borrower; and that the Loan Agreement as amended hereby and each such other document, constitute legal, valid and binding obligations of each Borrower, enforceable against each Borrower in accordance with their respective terms.
4. Effect of Amendment. From and after the effectiveness of this Amendment, all references in the Loan Agreement and in any other Loan Document to "this Agreement," "the Loan Agreement," "hereunder," "hereof" and words of like import referring to the Loan Agreement, shall mean and be references to the Loan Agreement as amended by this Amendment. Except as expressly amended hereby, the Loan Agreement and all terms, conditions and provisions thereof remain in full force and effect and are hereby ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
5. Counterpart Execution; Governing Law; Costs and Expenses.
(a) Execution in Counterparts. 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 taken together shall constitute but one and the same agreement. Delivery of an executed signature page of any party hereto by facsimile transmission shall be as effective as delivery of a manually executed counterpart thereof.
(b) Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Georgia.
(c) Expenses. In furtherance and not in limitation of the provisions of the Loan Agreement, the Borrowers will pay or reimburse the Agent and the Lenders for their costs and expenses, including reasonable fees and disbursements of counsel actually incurred, in connection with the preparation and delivery of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their respective officers thereunto duly authorized, as of the date first above written.
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BORROWERS:
XXXXXXX INDUSTRIES, INC., a Missouri corporation
By: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Vice President of Finance and Chief Financial Officer
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XXXXXXX BUS CORPORATION, a Kansas corporation
By: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Vice President of Finance and Chief Financial Officer
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WHEELED COACH INDUSTRIES, INC., a Florida corporation
By: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Vice President of Finance and Chief Financial Officer
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CAPACITY OF TEXAS, INC., a Texas corporation
By: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Vice President of Finance and Chief Financial Officer
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MOBILE-TECH CORPORATION, a Kansas corporation
By: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Vice President of Finance and Chief Financial Officer
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BRUTZER CORPORATION, an Ohio corporation
By: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Vice President of Finance and Chief Financial Officer
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MID BUS, INC., an Ohio corporation
By: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Vice President of Finance and Chief Financial Officer
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MOBILE PRODUCTS, INC., a Kansas corporation
By: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Vice President of Finance and Chief Financial Officer
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WORLD TRANS, INC., a Kansas corporation
By: /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Vice President of Finance and Chief Financial Officer
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AGENT:
FLEET CAPITAL CORPORATION, a Rhode Island corporation, as Agent
By: /s/ Xxxxxx B.H. Xxxxx Xxxxxx X.X. Xxxxx, Senior Vice President
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LENDER:
FLEET CAPITAL CORPORATION, a Rhode Island corporation
By: /s/ Xxxxxx B.H. Xxxxx Xxxxxx X.X. Xxxxx, Senior Vice President
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