AMENDMENT NO. 8 TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 8 TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
dated as of May 13, 2005, and is made by and among (i) 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). FCC is the
sole Lender under the Loan Agreement.
The Borrowers have requested that the Loan Agreement be amended to provide
for two additional Term Loans by Lenders to the Borrowers to finance Xxxxxxx'
acquisition of certain real property and improvements thereon comprising the
manufacturing facility that is currently leased by Xxxxxxx in Bluffton, Ohio
(the "Bluffton Facility") and of certain manufacturing equipment for use therein
and for the installation of a new roof on the Bluffton Facility.
The Agent and the Lender have agreed to the aforementioned modifications
subject to the provisions of this Amendment.
Statement of Agreement
Accordingly, in consideration of the Loan Agreement, the Loans made by the
Lender 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. Amendments to Loan Agreement. Effective as provided in Section 2 of this
Amendment, the Loan Agreement is hereby amended as follows:
(a) By amending Section 1.1 Definitions by inserting therein in appropriate
alphabetical order, the following new definitions:
"Amendment No. 8 Effective Date" means the date on which
Amendment No. 8 to the Loan and Security Agreement dated May 13, 2005,
becomes effective in accordance with its terms.
"Term Loan" means any of Term Loan A, Term Loan B, Term Loan C,
Term Loan D or Term Loan E and refers to both LIBOR Term Loans and
Base Rate Term Loans, and "Term Loans" means all such Loans.
"Term Loan D" means the aggregate Loans made to the Borrowers
that are evidenced by Term Note D as described in Section 3.1(d).
"Term Loan E" means the aggregate Loans made to the Borrowers
that are evidenced by Term Note E as described in Section 3.1(e).
"Term Note" means any of the Term Notes A, the Term Notes B, the
Term Notes C, the Term Notes D and the Term Notes E, and "Term Notes"
means more than one such Note.
"Term Note D" means any of the promissory notes made by the
Borrowers, jointly and severally, payable to the order of a Lender
evidencing the obligations of such Borrowers to pay the aggregate
unpaid amount of Term Loan D made by such Lender to the Borrowers (and
any promissory note or notes that may be issued from time to time in
substitution, renewal, extension, replacement or exchange therefor
whether payable to the same or different Lender, whether issued in
connection with a Person becoming a Lender after the Effective Date or
otherwise), substantially in the form of Exhibit B-4 hereto, with all
blanks properly completed, either as originally executed or as the
same may be from time to time supplemented, modified, amended,
renewed, extended or refinanced, and "Term Notes D" means more than
one such Term Note D.
"Term Note E" means any of the promissory notes made by the
Borrowers, jointly and severally, payable to the order of a Lender
evidencing the obligations of such Borrowers to pay the aggregate
unpaid amount of Term Loan E made by such Lender to the Borrowers (and
any promissory note or notes that may be issued from time to time in
substitution, renewal, extension, replacement or exchange therefor
whether payable to the same or different Lender, whether issued in
connection with a Person becoming a Lender after the Effective Date or
otherwise), substantially in the form of Exhibit B-5 hereto, with all
blanks properly completed, either as originally executed or as the
same may be from time to time supplemented, modified, amended,
renewed, extended or refinanced, and "Term Notes E" means more than
one such Term Note E.
(b) By amending Section 3.1 Term Loan Facilities by adding new subsections
(d) and (e), to read in their entireties as follows:
(d) Term Loan D. Upon the terms and subject to the
conditions of, and in reliance upon the representations and
warranties made under, this Agreement, FCC agrees, at
Borrowers' request, to accept from Borrowers a Term Note D
payable to FCC, dated the Amendment No. 8 Effective Date, in
the original principal amount of $2,350,000. Borrowers may
not reborrow any amount of Term Loan D that is repaid.
(e) Term Loan E. Upon the terms and subject to the
conditions of, and in reliance upon the representations and
warranties made under, this Agreement, FCC agrees, at
Borrowers' request, to accept from Borrowers a Term Note E
payable to FCC, dated the Amendment No. 8 Effective Date, in
the original principal amount of $1,000,000. Borrowers may
not reborrow any amount of Term Loan E that is repaid.
(c) By amending Section 3.3 Repayment of Term Loans by adding new
subsections (d) and (e), to read in its entirety as follows:
(d) Term Loan D. The principal amount of Term Loan D is
due and payable, and shall be repaid in full by the
Borrowers, in consecutive installments on successive
Installment Payment Dates, commencing on July 1, 2005, as
follows: twelve (12) installments each in an amount equal to
$58,750.00, and a final installment on the Termination Date
in the amount of the then-unpaid balance of such Term Loan
D.
(e) Term Loan E. The principal amount of Term Loan E is
due and payable, and shall be repaid in full by the
Borrowers, in consecutive installments on successive
Installment Payment Dates, commencing on July 1, 2005, as
follows: twelve (12) installments each in an amount equal to
$50,000.00, and a final installment on the Termination Date
in the amount of the then-unpaid balance of such Term Loan
E.
(d) By amending Section 3.5 Term Notes by adding new sentences at the end
thereof to read in their entireties as follows:
Each Term Loan D made by each Lender and the obligation of
Borrowers to repay such Loan shall be evidenced by this
Agreement and by a Term Note D made by the Borrowers,
jointly and severally, payable to the order of such Lender.
Each Term Note D shall be dated the Amendment No. 8
Effective Date or the later effective date of any Assignment
and Acceptance and be duly and validly executed and
delivered by the Borrowers. Each Term
Loan E made by each Lender and the obligation of Borrowers
to repay such Loan shall be evidenced by this Agreement and
by a Term Note E made by the Borrowers, jointly and
severally, payable to the order of such Lender. Each Term
Note E shall be dated the Amendment No. 8 Effective Date or
the later effective date of any Assignment and Acceptance
and be duly and validly executed and delivered by the
Borrowers.
(e) By adding Exhibits B-4 and B-5 to the Loan Agreement in the form of
Annexes A and B attached to this Amendment.
2. Effectiveness of Amendment. This Amendment shall be effective as of the
first date (the "Amendment No. 8 Effective Date") on which each of the following
conditions precedent is satisfied, in form and substance satisfactory to the
Agent, unless satisfaction thereof is specifically waived in writing by the
Agent:
(a) The Agent has received each of the following (notice of the acceptance
of which is hereby waived), each in form and substance satisfactory to the
Agent:
(i) four (4) copies of this Amendment duly executed and delivered by
each Borrower and the Lender;
(ii) the fee described in paragraph 4, below;
(iii) a Term Note D in the amount of $2,350,000 in the form of Annex A
attached hereto and a Term Note E in the amount of $1,000,000 in
the form of Annex B attached hereto, each with appropriate
insertions and completions;
(iv) the Mortgage for the Real Estate comprising the Bluffton
Facility (the "Bluffton Real Estate"), duly executed and in
proper form for recording;
(v) a fully paid mortgagee title insurance policy or, at the option
of the Agent, an unconditional commitment for the issuance
thereof with all requirements and conditions to the issuance of
the final policy deleted or marked satisfied, issued by a title
insurance company satisfactory to the Agent, in an amount equal
to not less than $2,000,000, insuring that the Mortgage creates
a valid first lien on the Bluffton Real Estate described
therein, with no survey exceptions and no other exceptions which
the Agent shall not have approved in writing;
(vi) such materials and information concerning the Bluffton Facility
as the Agent may require, including, without limitation, (a) a
current and accurate survey satisfactory to the Agent of the
Bluffton Real Estate, certified to the Agent and showing the
location of any flood hazard area thereon, (b) zoning letters as
to the zoning status of the Bluffton Real Estate, (c)
certificates of occupancy covering the Bluffton Real Estate, (d)
owner's affidavits as to
such matters relating to the Bluffton Real Estate as the Agent
or the issuer of any mortgagee title insurance commitment or
policy may request, and (e) a Phase II environmental assessment
report disclosing results satisfactory to the Agent;
(vii) a signed opinion of Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, counsel
for the Borrowers and the Guarantors, in form and substance
satisfactory to the Agent and of such local counsel for the
Borrowers and the Guarantors as may be required, opining as to
such matters in connection with the transactions contemplated by
this Amendment as the Agent may reasonably request;
(viii) a certificate of the Secretary or Assistant Secretary of each
Borrower and each Guarantor, having attached thereto the
articles of incorporation, by-laws and shareholders agreements,
if any, of such Person (or, if applicable, containing the
certification of such Secretary or Assistant Secretary that no
amendment or modification of such organizational documents has
become effective since the date on which such documents were
last delivered to the Agent and the Lender), that all corporate
or action, including shareholders' approval, if necessary, has
been taken by such Person and its shareholders to authorize the
execution, delivery and performance of this Amendment and the
other agreement, instruments and documents contemplated hereby
and containing the names and specimen signatures of each of the
officers of such Person who is authorized to and will execute
and deliver this Amendment and the other agreements, instruments
and documents contemplated hereby or, if applicable, to the
further effect that the incumbency certificate most recently
delivered to the Agent and the Lender remains in effect,
unchanged;
(ix) such other agreements, certificates, instruments and other
documents as the Lender or the Agent may reasonably request in
connection with the transactions contemplated hereby.
(b) No action, proceeding, investigation, regulation or legislation shall
have been instituted, threatened or proposed before any court, governmental
agency or legislative body to enjoin, restrain or prohibit, or to obtain damages
in respect of, or which is related to or arises out of the Loan Documents or the
consummation of the transactions contemplated thereby;
(c) No event shall have occurred and no condition shall exist which is
materially adverse, in the Lender's sole discretion, to the assets, liabilities,
businesses, operations, condition (financial or otherwise) or prospects of any
Borrower; and
(d) All conditions precedent set forth in this Section 2 are satisfied on
or before June 3, 2005.
3. Additional Covenants. To induce Lender to enter into this Amendment,
Borrowers covenant and agree to complete the installation of a new roof on the
Bluffton Facility before October 31, 2005.
4. Amendment Fee. As consideration for the Agent and the Lender entering
into this Amendment, Borrowers jointly and severally agree to pay to the Agent
an amendment fee in the amount of $15,000 on the date on which Borrowers execute
and deliver to the Lender one or more counterparts of this Amendment and, to
facilitate such payment, hereby authorize the Agent to charge such amount as a
Revolving Credit Loan.
5. Interest Rate Disclosure. The Base Rate on the date hereof is 6.00% per
annum and, therefore, the rate of interest in effect hereunder on the date
hereof, expressed in simple interest terms, is 6.00% per annum with respect to
any portion of the Revolving Credit Loans bearing interest as a Base Rate Loan
and is 6.00% per annum with respect to any portion of the Term Loan Advances
bearing interest as a Base Rate Loan.
6. 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.
7. Ratification and Reaffirmation. Each Borrower hereby ratifies and
reaffirms the Secured Obligations, each of the Loan Documents and all of its
covenants, duties, indebtedness and liabilities under the Loan Documents, in
each case as amended hereby.
8. Acknowledgments and Stipulations. Each Borrower acknowledges and
stipulates that all of the Secured Obligations are owing and payable without
defense, offset or counterclaim (and to the extent there exists any such
defense, offset or counterclaim on the date hereof, the same is hereby waived by
such Borrower); the security interests and liens granted by Borrowers in favor
of the Agent are duly perfected, first priority security interests and liens
(subject to Permitted Liens); and on and as of May 4, 2005, the unpaid principal
amount of the Revolver Loans totaled $22,465,037.41, the aggregate unpaid
principal amount of the Term Loans, totaled $5,330,577.72, the face amount of
outstanding Letters of Credit (other than the IRB Letter of Credit) totaled
$2,000,636.00, and the face amount of the IRB Letter of Credit totaled
$1,314,910.96.
9. Acknowledgments, Representations, Consents and Reaffirmations by
Guarantors. Each Guarantor hereby (i) acknowledges and stipulates that its
Guaranty delivered in favor of the Agent on or about the Closing Date is a
legal, valid and binding obligation of such Guarantor that is enforceable
against such Guarantor in accordance with the terms thereof, (ii) represents
and warrants that this Amendment has been duly executed and delivered by such
Guarantor and that all of the representations and warranties made by such
Guarantor in its Guaranty are true and correct on and as of the date hereof,
(iii) consents to Borrowers' execution and delivery of this Amendment and of the
other documents, instruments or agreements Borrowers agree to execute and
deliver pursuant hereto, and (iv) affirms that nothing contained herein shall
modify in any respect whatsoever its Guaranty and reaffirms that its Guaranty is
and shall remain in full force and effect.
10. 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.
11. Breach of Amendment. This Amendment shall be part of the Loan Agreement
and a breach of any representation, warranty or covenant herein shall constitute
an Event of Default. 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.
12. Counterpart Execution; Facsimile Signature Governing Law; 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 internal 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
Lender for their costs and expenses, including reasonable fees and disbursements
of counsel actually incurred, in connection with the preparation and delivery of
this Amendment.
13. Miscellaneous.
(a) Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
(b) No Novation, etc. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Loan Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor shall
it be construed to create, a novation or
accord and satisfaction, and the Loan Agreement as herein modified shall
continue in full force and effect.
(c) Further Assurances. Each Borrower and each Guarantor agrees to
take such further actions as the Agent or the Lender shall reasonably request
from time to time in connection herewith to evidence or give effect to the
amendments set forth herein or any of the transactions contemplated hereby.
14. Release of Claims. To induce the Agent and the Lender to enter into
this Amendment, each Borrower and each Guarantor hereby releases, acquits and
forever discharges the Agent and the Lender, and all officers, directors,
agents, employees, successors and assigns of the Agent and the Lender, from any
and all liabilities, claims, demands, actions or causes of action of any kind or
nature (if there be any), whether absolute or contingent, disputed or
undisputed, at law or in equity, or known or unknown, that such Borrower or such
Guarantor now has or ever had against the Agent or the Lender arising under or
in connection with any of the Loan Documents or otherwise. Each Borrower and
each Guarantor represents and warrants to the Agent and the Lender that neither
any Borrower nor any Guarantor has transferred or assigned to any Person any
claim that any Borrower or any Guarantor ever had or claimed to have against the
Agent or the Lender.
15. Waiver of Jury Trial. To the fullest extent permitted by applicable
law, the parties hereto each hereby waives the right to trial by jury in any
action, suit, counterclaim or proceeding arising out of or related to this
Amendment.
[REST OF THIS PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES BEGIN ON NEXT PAGE]
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.
BORROWERS
XXXXXXX INDUSTRIES, INC., a Missouri
corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, President
XXXXXXX BUS CORPORATION, a Kansas
corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
WHEELED COACH INDUSTRIES, INC., a
Florida corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
CAPACITY OF TEXAS, INC., a Texas
corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
MOBILE-TECH CORPORATION, a Kansas
corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
[Signatures continued on next page]
BRUTZER CORPORATION, an Ohio corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
MID BUS, INC., an Ohio corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
MOBILE PRODUCTS, INC., a Kansas corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
WORLD TRANS, INC., a Kansas corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
[Signatures continued on next page]
AGENT:
FLEET CAPITAL CORPORATION, a Rhode
Island corporation, as Agent
By: /s/ Xxxxxx X. X. Xxxxx
----------------------------------------
Xxxxxx X. X. Xxxxx
Senior Vice President
LENDER:
FLEET CAPITAL CORPORATION, a Rhode
Island corporation
By: /s/ Xxxxxx X. X. Xxxxx
----------------------------------------
Xxxxxx X. X. Xxxxx
Senior Vice President
ANNEX A
FORM OF TERM NOTE D
$2,350,000.00 May ___, 2005
FOR VALUE RECEIVED, the undersigned, XXXXXXX INDUSTRIES, INC., a Missouri
corporation, XXXXXXX BUS CORPORATION, a Kansas corporation, WHEELED COACH
INDUSTRIES, INC., a Florida corporation, CAPACITY OF TEXAS, INC., a Texas
corporation, MOBILE-TECH CORPORATION, a Kansas corporation, WORLD TRANS, INC., a
Kansas corporation, BRUTZER CORPORATION, an Ohio corporation, MID BUS, INC., an
Ohio corporation, and MOBILE PRODUCTS, INC., a Kansas corporation (the
"Borrowers"), hereby jointly and severally unconditionally promise to pay to the
order of FLEET CAPITAL CORPORATION, a Rhode Island corporation (the "Lender"),
at the offices of the Agent located at 000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, or at such other place within the United States as shall be
designated from time to time by the Agent, the principal amount of TWO MILLION
THREE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($2,350,000.00) in lawful money
of the United State of America in federal or other immediately available funds,
payable at the times and in the manner provided in the Loan Agreement (as
hereinafter defined).
The Borrowers also jointly and severally unconditionally promise to pay
interest on the unpaid principal amount of this Note outstanding from time to
time for each day from the date hereof until such principal amount is paid in
full at the rates per annum and on the dates specified in the Loan Agreement
applicable from time to time in accordance with the provisions thereof. Nothing
contained in this Note or in the Loan Agreement shall be deemed to establish or
require the payment of a rate of interest in excess of the maximum rate
permitted by any Applicable Law. In the event that any rate of interest required
to be paid hereunder exceeds the maximum rate permitted by Applicable Law, the
provisions of the Loan Agreement relating to the payment of interest under such
circumstances shall control.
This Term Note D is one of the Term Notes D referred to in that certain
Loan and Security Agreement dated as of May 17, 2002 (as further amended,
modified, supplemented or restated from time to time, the "Loan Agreement";
terms defined in the Loan Agreement being used herein as therein defined) among
the Borrowers, the Lender, the other financial institutions party thereto from
time to time as "Lender," and the Agent, is subject to, and entitled to, all
provisions and benefits of the Loan Documents, is secured by the Collateral and
other property as provided in the Loan Documents, is subject to optional and
mandatory prepayment in whole or in part and is subject to acceleration prior to
maturity upon the occurrence of one or more Events of Default, all as provided
in the Loan Documents.
Presentment for payment, demand, protest and notice of demand, notice of
dishonor, notice of non-payment and all other notices are hereby waived by the
Borrowers, except to the extent expressly provided in the Loan Agreement. No
failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
The Borrowers hereby jointly and severally agree to pay on demand all costs
and expenses incurred in collecting the Secured Obligations hereunder or in
enforcing or attempting to enforce any of the Lender's rights hereunder,
including, but not limited to, reasonable attorneys' fees and expenses actually
incurred if collected by or through an attorney, whether or not suit is filed.
The provisions of Section 15.5 of the Loan Agreement are hereby expressly
incorporated herein.
This Term Note D shall be governed by, and construed in accordance with,
the laws of the State of Georgia without giving effect to the conflict of laws
principles thereof.
IN WITNESS WHEREOF, the undersigned have executed this Term Note D as of
the day and year first above written.
BORROWERS:
XXXXXXX INDUSTRIES, INC.
By:
-------------------------=====------
Xxxxxx X. Xxxxxxx, President
XXXXXXX BUS CORPORATION
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
WHEELED COACH INDUSTRIES, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
[Signatures continued on following page]
CAPACITY OF TEXAS, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
MOBILE-TECH CORPORATION
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
WORLD TRANS, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
BRUTZER CORPORATION
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
MID BUS, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
MOBILE PRODUCTS, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
ANNEX B
FORM OF TERM NOTE E
$1,000,000.00 May ___, 2005
FOR VALUE RECEIVED, the undersigned, XXXXXXX INDUSTRIES, INC., a Missouri
corporation, XXXXXXX BUS CORPORATION, a Kansas corporation, WHEELED COACH
INDUSTRIES, INC., a Florida corporation, CAPACITY OF TEXAS, INC., a Texas
corporation, MOBILE-TECH CORPORATION, a Kansas corporation, WORLD TRANS, INC., a
Kansas corporation, BRUTZER CORPORATION, an Ohio corporation, MID BUS, INC., an
Ohio corporation, and MOBILE PRODUCTS, INC., a Kansas corporation (the
"Borrowers"), hereby jointly and severally unconditionally promise to pay to the
order of FLEET CAPITAL CORPORATION, a Rhode Island corporation (the "Lender"),
at the offices of the Agent located at 000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, or at such other place within the United States as shall be
designated from time to time by the Agent, the principal amount of ONE MILLION
AND NO/100 DOLLARS ($1,000,000.00) in lawful money of the United State of
America in federal or other immediately available funds, payable at the times
and in the manner provided in the Loan Agreement (as hereinafter defined).
The Borrowers also jointly and severally unconditionally promise to pay
interest on the unpaid principal amount of this Note outstanding from time to
time for each day from the date hereof until such principal amount is paid in
full at the rates per annum and on the dates specified in the Loan Agreement
applicable from time to time in accordance with the provisions thereof. Nothing
contained in this Note or in the Loan Agreement shall be deemed to establish or
require the payment of a rate of interest in excess of the maximum rate
permitted by any Applicable Law. In the event that any rate of interest required
to be paid hereunder exceeds the maximum rate permitted by Applicable Law, the
provisions of the Loan Agreement relating to the payment of interest under such
circumstances shall control.
This Term Note E is one of the Term Notes E referred to in that certain
Loan and Security Agreement dated as of May 17, 2002 (as further amended,
modified, supplemented or restated from time to time, the "Loan Agreement";
terms defined in the Loan Agreement being used herein as therein defined) among
the Borrowers, the Lender, the other financial institutions party thereto from
time to time as "Lender," and the Agent, is subject to, and entitled to, all
provisions and benefits of the Loan Documents, is secured by the Collateral and
other property as provided in the Loan Documents, is subject to optional and
mandatory prepayment in whole or in part and is subject to acceleration prior to
maturity upon the occurrence of one or more Events of Default, all as provided
in the Loan Documents.
Presentment for payment, demand, protest and notice of demand, notice of
dishonor, notice of non-payment and all other notices are hereby waived by the
Borrowers, except to the extent expressly provided in the Loan Agreement. No
failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
The Borrowers hereby jointly and severally agree to pay on demand all costs
and expenses incurred in collecting the Secured Obligations hereunder or in
enforcing or attempting to enforce any of the Lender's rights hereunder,
including, but not limited to, reasonable attorneys' fees and expenses actually
incurred if collected by or through an attorney, whether or not suit is filed.
The provisions of Section 15.5 of the Loan Agreement are hereby expressly
incorporated herein.
This Term Note E shall be governed by, and construed in accordance with,
the laws of the State of Georgia without giving effect to the conflict of laws
principles thereof.
IN WITNESS WHEREOF, the undersigned have executed this Term Note E as of
the day and year first above written.
BORROWERS:
XXXXXXX INDUSTRIES, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, President
XXXXXXX BUS CORPORATION
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
WHEELED COACH INDUSTRIES, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
[Signatures continued on following page]
CAPACITY OF TEXAS, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
MOBILE-TECH CORPORATION
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
WORLD TRANS, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
BRUTZER CORPORATION
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
MID BUS, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
MOBILE PRODUCTS, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Agent
