FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
FIFTH AMENDMENT TO AMENDED AND RESTATED
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this "Amendment") is made and entered into as of the 30th day of August, 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 extend the stated maturity date of the various credit facilities provided for in the Loan Agreement; and
WHEREAS, the Agent and the Lenders are willing 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 are 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. The Loan Agreement is hereby amended by:
(a) deleting the definitions of "Term Loan Termination Date" and "Termination Date" set forth in Section 1.1 and substituting the following in lieu thereof:
"Term Loan Termination Date" means the earlier of the Termination Date or December 31, 2002.
"Termination Date" means December 31, 2002, such earlier date as all Secured Obligations shall have been irrevocably paid in full and the Revolving Credit Facility shall have been terminated, or such later date as to which the same may be extended pursuant to the provisions of Section 2.5.
(b) inserting a new Section 11.1(e) as follows:
(e) Minimum Availability. The Availability at any time from and after August 30, 2001 to be less than $3,000,000.
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. Further Action. The Borrowers agree to take such further action as the Agent shall request in good faith in connection herewith to evidence the amendments herein contained to the Loan Agreement, including, without limitation, promptly paying any mortgage, recording or similar tax with respect to the Mortgages or obtaining any title insurance endorsement with respect thereto, in each case as the Agent may deem necessary in connection with the extension of the stated maturity date of the Secured Obligations contemplated hereby. Without limiting the generality of the foregoing, the Borrowers acknowledge and agree that additional mortgage taxes will be due and payable with respect to the Mortgage for the Real Estate located in Major County, Oklahoma, and the Borrowers agree to promptly pay such taxes and take such other action with respect thereto as the Agent may reasonably request. The Borrowers also agree that the Agent may pay any such taxes directly and charge the Borrowers' Loan Account for such amount.
7. Miscellaneous. 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 Xxxxxxx
Xxxx Xxxxxxx
Vice President
LENDER:
BANK OF AMERICA, N.A.
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Vice President
CONSENT AND CONFIRMATION OF GUARANTOR
The undersigned, in its capacity as a Guarantor under the Guaranty dated as of July 31, 1998 (as modified or amended to date, the "Guaranty"; unless otherwise defined herein, terms defined in the Guaranty are used herein as therein defined), in favor of the Agent, for the benefit of the Lenders, hereby confirms, for the benefit of the Borrowers, the Agent and the Lenders, that (1) the undersigned is an Affiliate of the Borrowers, (2) the undersigned has received a copy of the Fifth Amendment to Amended and Restated Loan and Security Agreement (the "Fifth Amendment") among the Borrowers, the Lenders and the Agent and consents to the Fifth Amendment, and (3) the Guaranty of which the undersigned is a maker constitutes a continuing, unconditional guaranty of the Secured Obligations under and as defined in the Amended and Restated Loan and Security Agreement among the Borrowers, the Lenders and the Agent dated as of July 31, 1998, as amended from time to time, including the Fifth Amendment. The undersigned is and continues to be liable under the Guaranty in accordance with the terms thereof, notwithstanding the execution and delivery of the Fifth Amendment.
Dated: August 30, 2001
XXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxx
Xxxxx Xxxxx
Vice President of Finance and Chief Financial Officer
CONSENT AND CONFIRMATION OF GUARANTORS
The undersigned, each in its capacity as a Guarantor under the Guaranty dated as of April 21, 1995 (as modified or amended to date, the "Guaranty"; unless otherwise defined herein, terms defined in the Guaranty are used herein as therein defined), in favor of the Agent, for the benefit of the Lenders, hereby confirm, for the benefit of the Borrowers, the Agent and the Lenders, that (1) each of the undersigned is an Affiliate of the Borrowers, (2) each of the undersigned has received a copy of the Fifth Amendment to Amended and Restated Loan and Security Agreement (the "Fifth Amendment") among the Borrowers, the Lenders and the Agent and consents to the Fifth Amendment, and (3) the Guaranty of which each of the undersigned is a co-maker constitutes a continuing, unconditional guaranty of the Secured Obligations under and as defined in the Amended and Restated Loan and Security Agreement among the Borrowers, the Lenders and the Agent dated as of July 31, 1998, as amended from time to time, including the Fifth Amendment. Each of the undersigned is and continues to be liable under the Guaranty in accordance with the terms thereof, notwithstanding the execution and delivery of the Fifth Amendment.
Dated: August 30, 2001
XXXXXXX FINANCIAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
GLOBAL CAPTIVE CASUALTY &
SURETY COMPANY
By: /s/ Xxxxx X. Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
