AMENDMENT NO. 1
to
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
dated as of April 1, 1999
THIS AMENDMENT NO. 1 entered into as of April 1, 1999 (this
"Amendment") among XXXXXXX INDUSTRIES, INC., a Missouri
corporation ("Xxxxxxx"), XXXXXXX BUS CORPORATION, a Kansas
corporation (the "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") and MID BUS, INC., an Ohio corporation ("Mid Bus",
and together with Xxxxxxx, Bus, Capacity, Mobile, WCI, World
Trans and Brutzer, the "Borrowers" and each, a "Borrower"), the
financial institutions party to the Loan Agreement from time to
time (the "Lenders"), and NATIONSBANK, N.A. (f/k/a NationsBank of
Georgia, N.A.), a national banking association ("NationsBank"),
as agent for the Lenders (the "Agent").
Preliminary Statement
Certain of the Borrowers entered into an Amended and
Restated Loan and Security Agreement with NationsBank and the
Agent dated as of July 31, 1998 (the "Loan Agreement") and
NationsBank has been providing loans and other financial
accommodations under the Loan Agreement since that date. The
Borrowers have requested that NationsBank and the Agent amend the
Loan Agreement in certain respects to reflect certain changes in
the Borrowers' financing needs and to provide for the issuance by
NationsBank of an IRB Letter of Credit to support the issuance of
the Bonds to finance the Project and NationsBank and the Agent
have agreed to do so. The parties now wish to set forth those
agreements in writing. It is the intention of the parties that
the Loans under the Loan Agreement as amended hereby in all
respects constitute a continuation of the outstanding Loans under
the Loan Agreement and not a refinancing thereof or a novation
with respect thereto.
The Borrowers confirm that they remain a consolidated group
of companies under Xxxxxxx as the common parent. The Borrowers
acknowledge and agree that they are a part of an integrated,
interdependent group of companies that on a regular basis make
intercompany loans to one another and that the Lenders are
relying upon the joint and several obligations of the Borrowers
in providing the financing accommodations described herein and
would not have provided such accommodations without such joint
and several undertakings of all of the Borrowers.
Statement of Agreement
NOW, THEREFORE, 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:
Section 1. Cross References and Definitions.
(a) Reference is made to the Loan Agreement. Upon and
after the effectiveness of this Amendment as provided in Section
5 hereof, all references to the Loan Agreement in the Loan
Agreement or in any other Loan Document shall mean the Loan
Agreement as amended by this Amendment. Except as expressly
provided in this Amendment, the execution and delivery of this
Amendment does not, and will not, amend, modify or supplement any
provision of or constitute a consent to or a waiver of any
noncompliance with the provisions of the Loan Agreement and,
except as specifically provided in this Amendment, the Loan
Agreement shall remain in full force and effect.
(b) Unless otherwise defined herein, terms defined in the
Loan Agreement are used herein as therein defined.
Section 2. Amendment to Loan Agreement Provisions.
Effective in accordance with Section 5 hereof, the Loan Agreement
is hereby amended by
(a) amending Section 1.1 Definitions by
(i) amending the introductory language to read in its
entirety as follows:
SECTION 1.1 Definitions. For the purposes of this
Agreement, unless otherwise defined herein, terms
defined in the IRB Documents shall have the meanings
herein as therein ascribed to them and:
(ii) amending the following definitions in their
entireties to read as follows:
"Applicable Interest Margin" means 0.00% as to
Prime Rate Loans, except Acquisition Loans which are
Prime Rate Loans, and .50% as to Acquisition Loans
which are Prime Rate Loans, and 1.75% as to Eurodollar
Rate Loans, except Acquisition Loans which are
Eurodollar Rate Loans, and 2.25% as to Acquisition
Loans which are Eurodollar Rate Loans.
"Borrower" means each of Xxxxxxx, Bus, Mid Bus,
WCI, Capacity, Mobile, Brutzer and World Trans.
"Chassis Sublimit" means the sum of $12,000,000.
"Raw Materials Sublimit" means the sum of
$7,000,000.
"Term Loan" means either a Term Loan A or a Term
Loan B or a Term Loan C or an Acquisition Loan, and
refers to both Eurodollar Rate Term Loans and Prime
Rate Term Loans and "Term Loans" means all such Loans.
"Term Loan Commitments" means the Term Loan B
Commitments and the Term Loan C Commitments and the
Acquisition Loan Commitments.
"Term Loan Termination Date" means the earlier of
the Termination Date or May 31, 2002.
"Term Note" means any of the Term Notes A or the
Term Notes B or the Term Notes C or the Acquisition
Loan Notes and "Term Notes means more than one such
Note.
"Termination Date" means May 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.
(iii) amending the definition of "Collateral" by
inserting immediately before the words "all of each
Borrower's" appearing in the first line thereof the
phrase "all IRB Collateral and";
(iv) amending the definition "Consolidated
Subsidiaries" by inserting "Mid Bus, Brutzer,"
immediately following the term "Bus" appearing in the
first line thereof.
(v) amending the definition "IRB Letter of Credit
Obligations" by inserting immediately before the period
at the end thereof the following ", plus (c) all other
obligations arising under the IRB Documents".
(vi) amending the definition "Loan Documents" by
inserting ", IRB Documents" immediately following the
term "Security Documents" appearing therein.
(vii) amending the definition "Restricted Payment"
by inserting immediately after the words "Money
Borrowed" appearing in clause (b) thereof the
parenthetical phrase "(other than the Secured
Obligations)."
(viii) amending the definition "Revolving Credit
Facility" by deleting the amount "$17,000,000"
appearing therein and substituting therefor the amount
"$22,000,000";
(ix) amending the definition "Revolving Credit
Commitment" in its entirety to read as follows:
"Revolving Credit Commitment" means, as to
NationsBank, initially $22,000,000 and, as to each
lender from and after an assignment by
NationsBank, the amount set forth for such Lender
in the Register maintained by the Agent pursuant
to Section 13.1(d), representing such Lender's
aggregate obligation, upon and subject to the
terms and conditions of this Agreement, to make
Revolving Credit Loans to each of the Borrowers.
(x) adding thereto the following definitions in the
appropriate alphabetical order:
"Amendment No. 1" means the Amendment No. 1, to
Amended and Restated Loan and Security Agreement dated
as of April 1, 1999.
"Amendment No. 1 Effective Date" means the date on
which Amendment No. 1 shall have become effective in
accordance with its terms.
"Acquisition Facility" means, at any time, the
principal amount of $5,000,000.
"Acquisition Loan" means the aggregate of the
Acquisition Loan Advances made to the Borrowers
pursuant to Section 3.1(d).
"Acquisition Loan Advance" means any advance of an
Acquisition Loan occurring after the Effective Date
pursuant to the provisions of Section 3.1(d).
"Acquisition Loan Advance Date" means the date on
which a Acquisition Loan Advance is made pursuant to
the provisions of Sections 3.1 and 3.2.
"Acquisition Loan Commitment" means, as to each
Lender, the amount equal to such Lender's Commitment
Percentage of the Acquisition Facility representing
such Lender's aggregate obligations, upon and subject
to the terms and conditions of this Agreement, to make
Acquisition Loans to the Borrower.
"Acquisition Loan Note" 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 the Acquisition Loan 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-3
hereto, with all blanks properly completed, either as
originally executed or as the same may be from time to
time be supplemented, modified, amended, renewed,
extended or refinanced, and "Acquisition Loan Notes"
means more than one such Acquisition Loan Note.
"Brutzer" means Brutzer Corporation, an Ohio
corporation, a Wholly-Owned Subsidiary of Xxxxxxx.
"IRB Collateral" means Collateral Securities,
Pledged Bonds, the Trust Estate, the Sinking Fund
Collateral, the Cash Collateral Account and any and
all other real or personal property at any time
securing the IRB Letter of Credit Obligations.
"IRB Documents" means, collectively, the
Reimbursement Agreement between Xxxxxxx and the Lender
dated as of April 1, 1999 and the Related Documents.
"IRB Transaction" means the transaction
contemplated by the IRB Documents.
"Mid Bus" means Mid Bus, Inc., an Ohio
corporation, a Wholly-Owned Subsidiary of Xxxxxxx, and
its successors and assigns.
"Mid Bus Acquisition" means the Acquisition of all
of the outstanding capital stock of Mid Bus by Xxxxxxx
consummated on November 1, 1998.
"Target" shall have the meaning set forth in
Section 3.2.
"Term Loan C" means each Loan made to a Borrower
pursuant to Section 3.1(c) of the Agreement, as well as
all such Loans collectively, as the context requires.
"Term Loan C Commitment" means, as to each Lender,
the amount equal to such Lender's Commitment Percentage
of the Term Loan C Facility representing such Lender's
aggregate obligation, upon and subject to the terms and
conditions of this Agreement, to make Term Loans C to
the Borrowers on the Amendment No. 1 Effective Date.
"Term Loan C Facility" means a principal amount
equal to $1,631,500.
"Term Note C" 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
the Term Loan C 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 be supplemented, modified, amended,
renewed, extended or refinanced, and "Term Notes C"
means more than one such Term Note C.
(b) amending Article 3 in its entirety to read as follows:
SECTION 3.1 Term Loan Facilities.
(a) Term Loan A. Upon the terms and subject to
the conditions of, and in reliance upon the
representations and warranties made under, the Original
Agreement, NationsBank made a Term Loan A to each
Borrower on the Original Effective Date and such Loans
are to remain outstanding hereunder.
(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, to make a Term Loan B to the Borrowers from
time to time in incremental Term Loan B Advances of not
less than $250,000 each and in aggregate principal
amount of up to such Lender's Commitment Percentage of
the Term Loan B Facility.
(c) Term Loan C. 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, to make a Term Loan C to the Borrowers on the
Amendment No. 1 Effective Date in the aggregate amount
of such Lender's Commitment Percentage of the Term Loan
C Facility.
(d) Acquisition Loan. 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, to make an Acquisition Loan to the Borrowers
in incremental Acquisition Loan Advances of not less
than $1,500,000 each and in aggregate principal amount
of up to such Lender's Commitment Percentage of the
Acquisition Facility. Each Acquisition Loan shall be a
Prime Rate Term Loan only and may not be borrowed as or
converted to a Eurodollar Rate Term Loan.
SECTION 3.2 Manner of Borrowing Term Loans. The
Borrowers, through the Borrowers' Representative, shall give
the Agent at least two Business Days' prior written notice
of the occurrence of the Amendment No. 1 Effective Date and
at least five (5) Business Days notice of each proposed
borrowing of a Term Loan B Advance and at least thirty (30)
days notice of each proposed Acquisition Loan Advance. Each
notice requesting a Term Loan B Advance shall set forth (i)
the aggregate principal amount of the advance, which shall
not be less than $250,000 and which when added to previous
Term Loan B Advances shall not exceed $2,000,000 in the
aggregate, (ii) the Borrower or Borrowers on whose behalf
the advance is being requested and the amount requested by
each and the date on which the requested advance is to be
made, (iii) the cost of the Equipment (exclusive of "soft
costs") for which the proceeds are to be used to pay, (iv) a
certification that the amount requested does not exceed 80%
of such cost, and (v) the purchase invoices relating to such
Equipment. Each notice requesting an Acquisition Advance
shall set forth (i) the aggregate principal amount of the
advance, which shall not be less than $1,500,000 and which
when added to previous Acquisition Loan Advances shall not
exceed $5,000,000 in the aggregate, (ii) the Borrower or
Borrowers on whose behalf the advance is being requested,
(iii) a description of the Person or Business Unit to be
acquired (the "Target") and a summary of the financial terms
of the Acquisition, (iv) a statement as to whether the
transaction will be a stock or asset acquisition, (v) 3
years of historical financial information of the Target,
including a balance sheet as of a recent date and a year to
date statement of earnings, (vi) a detailed list of assets,
real and personal, of the Target, together with legal
descriptions of any real property and (vii) a detailed
schedule of Indebtedness of the Target. Upon receipt of
such notice from the Borrowers' Representative, the Agent
shall promptly notify each Lender thereof. Each Lender will
make the amount equal to its Commitment Percentage of the
aggregate principal amount of the respective Term Loans
available to the Agent, for the account of the Borrowers, at
the office of the Agent, prior to 12:00 noon on the
borrowing date in funds immediately available to the Agent.
On the borrowing date, upon satisfaction of the applicable
conditions set forth in Sections 5.1, 5.2 and 5.3. the Agent
will disburse the Term Loans, in same day funds in
accordance with the terms of a disbursement letter from the
Borrowers' Representative to the Agent.
SECTION 3.3 Repayment of Term Loans.
(a) Term Loan A. The remaining principal amount
of each Term Loan A is due and payable, and shall be
repaid in full by the applicable Borrower, in
consecutive installments on successive Installment
Payment Dates as follows: each installment coming due
on an Installment Payment Date following the Effective
Date shall be in an amount equal to the applicable Term
Loan A Installments, except that the final installment
shall be payable on the Term Loan Termination Date and
shall be in the amount of the then-unpaid balance of
such Term Loan A to such Borrower.
(b) Term Loan B. On July 1, 1999 and on each July
1 and December 31 of each year thereafter the aggregate
amount of Term Loan B Advances outstanding as to which
no repayment schedule has been established shall be due
and payable, and shall be repaid in full by the
Borrowers, in consecutive installments on successive
Installment Payment Dates as follows: each installment
coming due on the first Installment Payment Date
following such date shall be in an amount determined by
dividing the principal amount of all Term Loan B
Advances subject to such determination by 60, except
that the final installment shall be payable on the Term
Loan Termination Date in the amount of the then-unpaid
balance of such Term Loan B Advances. Any amounts of
the Term Loan B repaid from time to time may be
reborrowed in accordance with the provisions of Section
3.2(b).
(c) Term Loan C. The principal amount of the
Term Loan C is due and payable, and shall be repaid in
full by the Borrower, in consecutive installments of
$27,192.00 each on successive Installment Payment Dates
commencing with the June 1, 1999 Installment Payment
Date and continuing thereafter until paid in full,
provided that the final installment shall be payable on
the Term Loan Termination Date and shall be in the
amount of the then unpaid principal balance of the Term
Loan C.
(d) Acquisition Loan. The principal amount of
each Acquisition Loan Advance shall be due and payable
in full in up to thirty-six (36) consecutive
installments on successive Installment Payment Dates
commencing with the first Installment Payment Date
following the applicable Acquisition Loan Advance Date
and continuing thereafter until paid in full with each
installment in the amount of the quotient obtained by
dividing the principal amount of the Acquisition Loan
Advance by thirty-six (36), provided, however, that in
all events the entire unpaid principal balance of each
such Acquisition Loan Advance shall be repaid in full
on the Term Loan Termination Date.
SECTION 3.4 Prepayment of Term Loans.
(a) Voluntary Prepayment. Provided that
Availability immediately prior to and after giving
effect to any such voluntary prepayment is not less
than $500,000, the Borrowers shall have the right at
any time and from time to time, upon at least five
days' prior written notice by the Borrowers'
Representative to the Agent, to prepay, without premium
or penalty, the Term Loans; provided, however, that
Term Loans A and C may not be prepaid prior to maturity
without the consent of the Required Lenders. Each
partial prepayment of a Term Loan shall be in a
principal amount equal to $50,000 or any integral
multiple thereof. On the prepayment date, the
Borrowers shall pay interest on the amount prepaid,
accrued to the prepayment date. Any notice of
prepayment given by the Borrowers' Representative
hereunder shall be irrevocable, and the amount to be
prepaid (including accrued interest) shall be due and
payable on the date designated in the notice.
(b) [Reserved].
(c) Prepayment on Asset Disposition. Provided
Availability equals at least $500,000 immediately prior
to and after giving effect to such prepayment, any and
all amounts received by a Borrower as cash proceeds
(after deducting related expenses and taxes) from the
sale (subject to such restrictions and consents as may
be required in the Loan Documents) of any Real Estate
or Equipment, to the extent such proceeds exceed (i)
$100,000 in the case of any single parcel or item of
Real Estate or Equipment, or (ii) $250,000 in the
aggregate for all Real Estate and Equipment as to any
Borrower sold during any twelve-month period, shall be
paid by all Borrowers within one month following
receipt thereof, to the Agent for application to the
Term Loan B or, if required by the Required Lenders, to
the Term Loans A and C.
(d) Term Loans A and C Prepayment Prohibited.
Without the prior written consent of the Required
Lenders, the Borrowers shall not be entitled to prepay
any part or all of Term Loans A or C prior to the Term
Loan Termination Date. In the event that,
notwithstanding such prohibition, the Borrowers shall,
for any reason and by any means, nevertheless prepay
Term Loan A or C or cause Term Loan A or C to be
prepaid in whole or in part, the Revolving Credit
Facility and the right of any Borrower to request
further borrowings under this Agreement shall
immediately terminate, and all outstanding principal of
the Revolving Credit Loans, together with accrued but
unpaid interest therein and all fees and other amounts
payable in respect thereof, shall become immediately
due and payable at the option of and upon demand by the
Agent on behalf of the Lenders.
(e) Prepayment on Termination. The Borrowers
shall be obligated to prepay the Term Loans in full
together with accrued and unpaid interest thereon upon
any termination of this Agreement pursuant to Section
4.6 or otherwise or upon any acceleration of the Term
Loans pursuant to Article 12.
(f) Application of Prepayments. Each prepayment
under this Section 3.4 shall first be applied ratably
to the scheduled principal installments of Term Loan B
in the inverse order of their maturities until paid in
full, and then ratably to the scheduled principal
installments of each Term Loan A and C in the inverse
order of their maturities until paid in full. Any
amounts prepaid under this Section 3.4 with respect to
Term Loans A and C may not be reborrowed.
SECTION 3.5 Term Notes. Each Term Loan A made by each
Lender and the obligation of the applicable Borrower to
repay such Loan shall continue to be evidenced by this
Agreement and by a Term Note A made by such Borrower
payable to the order of such Lender dated on the
Original Effective Date. Each Term Loan B and C made
by each Lender and the obligation of the Borrowers to
repay such Loan shall be evidenced by this Agreement
and by a Term Note B or Term Note C made by the
Borrowers, jointly and severally, payable to the order
of such Lender. Each Term Note B and C shall be dated
the Effective Date or the Amendment No. 1 Effective
Date, as applicable, and be duly and validly executed
and delivered by the Borrowers. Each Acquisition Loan
made by each Lender and the obligation of the Borrower
to repay such Loan shall be evidenced by this Agreement
and by an Acquisition Loan Note made by the Borrower,
jointly and severally, payable to the order of such
Lender. Each Acquisition Loan Note shall be dated the
date of funding the Acquisition Loan and shall be duly
and validly executed and delivered by the Borrower.
(c) amending subsections (a) and (b) of Section 4.2 to read
in their entirety as follows:
(a) Amendment Fee. As additional consideration for
the Lender making the additional credit facilities
contemplated by Amendment No. 1 available to the Borrowers
and agreeing to the various amendments set forth therein,
the Borrowers shall pay to the Agent for the benefit of the
Lender an amendment fee in the amount of $50,000 payable in
two installments as follows: (i) the first installment of
$25,000 shall be due and payable on or before and as a
condition to the Amendment Effective Date and (ii) the
second installment of $25,000 shall be due and payable on
the earlier of November 1, 1999 and the date, if
applicable, of the prepayment in full of the Secured
Obligations.
(b) Activation Fee. At time of the initial request
for a borrowing under the Acquisition Facility the Borrowers
agree to pay to the Agent, for the Ratable benefit of the
Lenders, a one-time activation fee of $25,000.
(d) amending Section 4.10 by inserting the words "twelfth
month preceding the" immediately before the words "Termination
Date" appearing in the first sentence thereof.
(e) amending Section 4.21(d) by substituting the number 8
for the number 4 appearing therein.
(f) amending Article 5 Conditions Precedent by adding a new
Section 5.3 thereto to read as follows:
SECTION 5.3 Acquisition Loan. As a condition
precedent to the obligations of any Lender to make any
Acquisition Loan Advance, each Lender shall be
satisfied in its discretion with the structure and
terms of the proposed Acquisition. In addition, at the
time of making each Acquisition Loan Advance the
Lenders shall have received on or before the date of
funding such advance each of the items set forth in
Section 5.1 relating to the Acquisition and the Target
and the Acquisition transaction as the Lenders shall
require, each in form and substance satisfactory to the
Agent, its special counsel and the Lenders, and in
addition thereto shall have received each of the
following in form and substance satisfactory to the
Agent, its special counsel and the Lenders:
(a) Each Acquisition Loan Note duly executed by
the Borrower.
(b) Evidence that on a historical basis after
giving effect to the Acquisition consolidated
Indebtedness for Money Borrowed (exclusive of
Subordinated Indebtedness) of Xxxxxxx and its
Consolidated Subsidiaries (including the Target) does
not exceed consolidated EBITDA minus unfunded capital
expenditures of Xxxxxxx and its Consolidated
Subsidiaries (including the Target) for the 12 month
period most recently ended by more than 4.25 times.
(c) Evidence that both before and after giving
effect to the proposed Acquisition no Default or Event
of Default shall exist.
(d) Evidence of the termination of all Liens and
the repayment of all Indebtedness other than Liens and
Indebtedness permitted to exist hereunder.
(e) Copies of all documents and agreements
executed in connection with the Acquisition.
(f) Payment of all applicable fees and expenses.
(g) Executed Mortgages on Acquired Real Estate
and related title insurance policies.
(h) Such financing statements as the Lenders
shall require.
(i) Such legal opinions as the Lenders shall
require.
(g) amending and restating Exhibit A to the Loan Agreement
in its entirety in the form of Annex A attached hereto and made a
part hereof;
(h) amending Section 11.1(a) by substituting the sum of
$14,000,000 for the sum of $15,000,000 appearing in clause(v)
thereof.
(i) amending Section 11.1(e) by deleting the same in its
entirety.
(j) by amending Section 11.2 by redesignating subsections
(h) and (i) as subsections (i) and (j), respectively, and
inserting a new subsection (h) to read as follows:
(h) Indebtedness in the principal amount of up to
$1,250,000 incurred in connection with the issuance of
industrial revenue bonds to finance additions and
improvements to facilities owned or operated by Bus in South
Hutchinson, Kansas.
(k) amending Section 11.7 to read in its entirety as
follows:
SECTION 11.7 Restricted Payments; Purchases, Etc.
Declare or make any Restricted Payment or Restricted
Purchase, except, provided that both at the time of the
declaration and at the time of the payment thereof, and
after giving effect thereto, no Default or Event of
Default shall or would exist, Xxxxxxx may (i) pay
dividends on its common stock during any Fiscal Year
and (ii) repurchase shares of its outstanding common
stock for an aggregate purchase price of up to
$2,000,000 during any 12 consecutive month period.
(l) amending Section 11.13 to read in its entirety as
follows:
SECTION 11.13 Real Estate Leases. After the
Effective Date, enter into any real property lease
(other than an IRB Lease), including any renewal or
modification of a lease relating to the Real Estate
occupied by the Borrowers on the Effective Date, if the
aggregate annual rental under all such leases of the
Borrowers would exceed $460,000, without the prior
written consent of the Agent, on behalf of the Lenders,
which consent shall not be unreasonably withheld.
(m) amending Section 12.2 by adding a new subsection (xiii)
at the end thereof to read as follows:
(xiii) obtain at the expense of the Borrower such
appraisals of Collateral as the Agent or the Lenders in
their sole discretion shall require.
(n) amending Section 15.2 by substituting the amount of
$6,500 for the amount of $5,000 appearing in subsection (a)
thereof.
(o) adding new Exhibits B-3 and B-4 thereto in the forms of
Exhibits B-3 and B-4, respectively, attached hereto.
(p) amending the Schedules to the Loan Agreement by
substituting for each thereof the Schedules bearing the
corresponding title attached to this Amendment.
Section 3. Additional Borrower; Joinder. By their
execution and delivery hereof, each of Mid Bus and Brutzer and
the other Borrowers acknowledges and agrees that each of Mid Bus
and Brutzer has become, as of the Amendment Effective Date, a
Borrower under and as defined in the Loan Agreement, and each of
Mid Bus and Brutzer hereby agrees to be bound in such capacity by
all of the terms and provisions thereof and, to the extent
applicable, of the other Loan Documents to the same extent as if
each were an original signatory thereof as a Borrower.
Section 4. Consent and Waiver. The Lender hereby (i)
consents, subject to the provisions of Section 5, to the Mid Bus
Acquisition, and (ii) waives compliance and the effects of non-
compliance by the Borrowers with the provisions of Sections 11.3,
11.4 and 11.5 of the Loan Agreement, to the extent that the
transactions contemplated by the Mid Bus Acquisition would have
violated or constituted a breach of such provisions.
Section 5. Conditions to Effectiveness of Amendment.
This Amendment shall become effective (the "Amendment Effective
Date") upon (a) payment by the Borrower to the Agent for the
account of the Lender of the first installment of the amendment
fee in an amount equal to $25,000 and (b) receipt by the Agent of
the following, each in form and substance satisfactory to the
Agent:
(i) counterparts of this Amendment, duly executed and
delivered by each Borrower;
(ii) an Amended and Restated Revolving Credit Note in
the form attached hereto as Annex A duly executed by
each Borrower;
(iii) a Term Note C in the form attached hereto as
Exhibit B-4 duly executed by each Borrower;
(iv) certified copies of the articles of incorporation
and bylaws of Mid Bus and Brutzer, each as in effect on
the Amendment Effective Date, and with respect to the
other Borrowers and the Guarantors, a certificate of an
appropriate officer of such Borrowers and Guarantors to
the effect that none of such documents relating to such
Borrowers and Guarantors have been amended or otherwise
modified since July 31, 1998, the date on which such
documents were last delivered to Agent and Lender under
the Loan Agreement;
(v) certificates of incumbency and specimen signatures
with respect to each of the officers of the Borrowers
and the Guarantors who is authorized to execute and
deliver the Loan Documents to which it is a party and
each other certificate, agreement or other document to
be executed by the Borrowers and the Guarantors in
connection with this Amendment;
(vi) a certificate evidencing the good standing of each
of Mid Bus and Brutzer in the jurisdiction of its
incorporation and in each other jurisdiction in which
it is required to be qualified as a foreign corporation
to transact business as presently conducted;
(vii) a certificate of the President of Xxxxxxx or
of the Financial Officer that all representations and
warranties of Borrowers set forth in the Loan Documents
are true and correct as of the Amendment Effective Date
and that no Default or Event of Default exists (after
giving effect to this Amendment), and Agent and Lender
shall be satisfied as to the truth and accuracy
thereof;
(viii) Financing Statements duly executed and
delivered by each of Mid Bus and Brutzer;
(ix) a landlord's waiver and consent agreement, in form
and substance satisfactory to the Agent, duly executed
on behalf of each landlord of the Real Estate on which
any Collateral owned by Mid Bus or Brutzer is located;
(x) a Trademark Assignment duly executed and delivered
by each of Mid Bus and Brutzer;
(xi) amendments or modifications to each of the
Mortgages existing on the Amendment Effective Date and
endorsements to related title insurance policies;
(xii) evidence of payment or arrangements for
payment of all Debt and the termination or arrangements
for termination of all Liens not permitted under the
Loan Documents;
(xiii) a signed opinion of Shook, Hardy & Bacon,
counsel for the Borrowers, and of such local counsel
for the Borrowers as may be required, opining as to
such matters in connection with the transactions
contemplated by this Agreement as the Agent or its
special counsel may reasonably request;
(xiv) updated Schedules to the Loan Agreement as
necessary to reflect accurately as of the Amendment No.
1 Effective Date the facts purported to be set forth
therein;
(xv) a consent duly executed by each Guarantor; and
(xvi) such other documents and instruments as the
Agent may reasonably request.
Section 6. Representations and Warranties. Each
Borrower hereby makes the following representations and
warranties to the Agent and the Lender, which representations and
warranties shall survive the delivery of this Amendment and the
making of additional Loans under the Loan Agreement as amended
hereby:
(a) Authorization of Agreements. Such Borrower has the
right and power, and has taken all necessary action to authorize
it, to execute, deliver and perform this Amendment and each other
agreement contemplated hereby to which it is a party in
accordance with their respective terms. This Amendment and each
other agreement contemplated hereby to which it is a party have
been duly executed and delivered by the duly authorized officers
of such Borrower and each is, or each when executed and delivered
in accordance with this Amendment will be, a legal, valid and
binding obligation of such Borrower, enforceable in accordance
with its terms.
(b) Compliance of Agreements with Laws. The execution,
delivery and performance of this Amendment and each other
agreement contemplated hereby to which such Borrower is a party
in accordance with their respective terms do not and will not, by
the passage of time, the giving of notice or otherwise,
(i) require any Governmental Approval or violate any
Applicable Law relating to such Borrower or any of its
Subsidiaries,
(ii) conflict with, result in a breach of or constitute
a default under the articles or certificate of
incorporation or by-laws or any shareholders' agreement
of such Borrower or any of its Subsidiaries, any
material provisions of any indenture, agreement or
other instrument to which such Borrower, any of its
Subsidiaries or any of such Borrower's or such
Subsidiaries' property may be bound or any Governmental
Approval relating to such Borrower or any of its
Subsidiaries, or
(iii) result in or require the creation or
imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such
Borrower other than the Security Interest.
Section 7. Expenses. The Borrowers agree to pay or
reimburse on demand all costs and expenses, including, without
limitation, reasonable fees and disbursements of counsel,
incurred by the Agent or the Lender in connection with the
negotiation, preparation, execution and delivery of this
Amendment.
Section 8. Governing Law. This Amendment shall be
construed in accordance with, and governed by, the laws of the
State of Georgia.
Section 9. 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 shall be
deemed to be an original and shall be binding upon all parties
and their respective successors and assigns and all of which
taken together shall constitute one and the same agreement.
Delivery of an executed signature page of any party hereto by
facsimile transmission shall be effective as delivery of a
manually executed counterpart thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers in
several counterparts as of the date first above written.
BORROWERS:
XXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
XXXXXXX BUS CORPORATION
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
WHEELED COACH INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
CAPACITY OF TEXAS, INC.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
MOBILE-TECH CORPORATION
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
WORLD TRANS, INC.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
BRUTZER CORPORATION
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
MID BUS, INC.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Chief Financial Officer
AGENT:
NATIONSBANK, N.A.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
LENDER:
NATIONSBANK, N.A.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
