UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended: July 31, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to ___________
Commission file number 0-12619
Collins Industries, Inc.
(Exact name of registrant as specified in its charter)
Missouri (State or other jurisdiction of incorporation)
43-0985160 (I.R.S. Employer Identification Number)
421 East 30th Avenue Hutchinson, Kansas 67502-2489
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code 316-663-5551.
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Common Stock, $.10 par value 7,274,740
Class Outstanding at August 31, 1995
<PAGE>
<TABLE>
PART I. - FINANCIAL INFORMATION
Item 1 - Financial Statements
Collins Industries, Inc. and Subsidiaries
CONSOLIDATED CONDENSED BALANCE SHEETS
July 31, October 31,
1995 1994
(Unaudited)
<C> <C>
ASSETS
Current assets:
Cash $ 76,995 $ 3,814,398
Receivables, trade & other, net 7,419,519 8,076,319
Inventories, lower of cost 26,263,343 25,081,169
(FIFO) or market (Note 2)
Prepaid expenses and other
current assets 810,418 978,270
Total current assets 34,570,275 37,950,156
Property and equipment, at cost: 35,544,623 35,220,579
Less: accumulated depreciation 21,851,011 20,304,288
Net property and equipment 13,693,612 14,916,291
Other assets 1,391,126 1,927,252
Total assets $49,655,013 $54,793,699
LIABILITIES & SHAREHOLDERS' INVESTMENT
Current liabilities:
Current maturities of long-term
debt & leases 1,134,107 2,006,694
Note payable to bank - 625,000
Chassis floorplan notes payable - 3,676,111
Accounts payable 10,375,133 13,878,109
Accrued expenses 2,914,914 3,582,729
Total current liabilities 14,424,154 23,768,643
Long-term capitalized leases,
less current maturities 1,883,949 2,143,403
Long-term debt, less current
maturities 23,816,370 18,401,311
Reserve for litigation settlement - 1,201,936
Deferred income taxes 284,000 284,000
Shareholders' investment:
Preferred stock, $.10 par value - -
Common stock, $.10 par value 727,474 713,735
Paid-in capital 19,554,277 19,457,056
Retained earnings (deficit) (11,035,211) (11,176,385)
Total shareholders' investment 9,246,540 8,994,406
Total liabilities &
shareholders' investment $49,655,013 $54,793,699
<FN>
(See accompanying notes)
</TABLE>
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<TABLE>
Collins Industries, Inc. and Subsidiaries
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(Unaudited)
<CAPTION>
Three Months Ended Nine Months Ended
July 31, July 31,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Sales $35,441,171 $36,815,785 $103,887,448 $101,826,426
Cost of sales 30,857,204 32,336,728 90,577,605 89,196,674
Gross profit 4,583,967 4,479,057 13,309,843 12,629,752
Selling, general and
administrative expenses3,396,738 3,440,792 10,265,945 9,708,776
Income from
operations 1,187,229 1,038,265 3,043,898 2,920,976
Other income (expense)
Special non-recurring
expenses - (8,208) - (1,013,348)
Interest expense (843,168) (894,465) (2,631,315) (2,551,557)
Other, net 46,497 17,338 149,035 (71,472)
(796,671) (885,335) (2,482,280) (3,636,377)
Income (loss) before provision
for income taxes and extraordinary
items 390,558 152,930 561,618 (715,401)
Provision for income
taxes - - - -
Income (loss) before
extraordinary items 390,558 152,930 561,618 (715,401)
Extraordinary items
(Note 3) (420,444) - (420,444) -
Net income (loss)$ (29,886) $ 152,930 $ 141,174 $ (715,401)
Earnings per share:
Income (loss) before
extraordinary items $ .05 $.02 $ .07 $(.10)
Extraordinary items (.05) - (.05) -
Net income (loss) $ - $.02 $ .02 $(.10)
Weighted average
shares outstanding 7,269,410 7,117,318 7,226,816 7,097,233
<FN>
(See accompanying notes)
</TABLE>
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<TABLE>
Collins Industries, Inc. and Subsidiaries
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOW
(Unaudited)
Nine Months Ended
July 31,
1995 1994
<C> <C>
Cash flow provided by (used in)
operations:
Cash received from customers $104,544,248 $104,686,892
Cash paid to suppliers and
employees (104,038,472) (99,978,054)
Interest paid (2,631,315) (2,551,557)
Cash provided by (used in)
operations (2,125,539) 2,157,281
Cash flow from investing activities:
Capital expenditures (324,044) (467,307)
Proceeds from sale of vacant land 643,667 -
Other, net (176,187) -
Cash provided by (used in)
investing activities 143,436 (467,307)
Cash flow from financing activities:
Net reduction in short-term
borrowings (3,676,111) (1,063,627)
Principal payments of note payable
to bank (625,000) (1,458,333)
Principal payments of long-term
debt and capitalized leases (19,380,380) (916,616)
Addition to long-term debt (Note 3) 21,926,191 - 91...... .
Cash flow used in financing
activities (1,755,300) (3,438,576)
Net decrease in cash (3,737,403) (1,748,602)
Cash at beginning of period 3,814,398 4,356,702
Cash at end of period $ 76,995 $ 2,608,100
Reconciliation of net income (loss) to
net cash provided by (used in)
operations:
Net income (loss) $ 141,174 $ (715,401)
Non-cash charges to operations 1,940,823 2,380,774
Decrease in receivables 656,800 2,860,466
Increase in inventories (1,182,174) (3,593,838)
Decrease (increase) in prepaid
expenses and other current assets 167,852 (260,721)
Increase (decrease) in accounts
payable and accrued expenses (4,170,791) 1,486,001
Gain on sale of vacant land (99,667) -
Loss on early extinguishment
of debt 420,444 - ........ .....
Cash provided by (used in) operations $ (2,125,539) $ 2,157,281
<FN>
(See accompanying notes)
</TABLE>
<PAGE>
COLLINS INDUSTRIES, INC. AND SUBSIDIARIES
Notes to Consolidated Condensed Financial Statements
(Unaudited)
(1) General
In the opinion of management, the accompanying unaudited
consolidated condensed financial statements contain all
adjustments (consisting of only normal recurring items) necessary
to summarize fairly the Company's financial position and results
of operations for the three and nine months ended July 31, 1995
and 1994, and the changes in its financial position for the nine
months ended July 31, 1995 and 1994.
(2) Inventories
Inventories, which include material, labor and manufacturing
overhead, are stated at the lower of cost (FIFO) or market.
Major classes of inventories as of July 31, 1995 and October 31,
1994, consisted of the following:
July 31, October 31,
1995 1994
[C] [C]
Chassis $6,464,538 $7,272,003
Raw materials & components 9,654,590 9,291,001
Work in process 5,400,862 5,425,766
Finished goods 4,743,353 3,092,399
$26,263,343 $25,081,169
<PAGE>
(3) Loan Agreements and Retirement of Debt
On May 9, 1995 the Company entered into a Loan Agreement with
NationsBank of Georgia, N.A., Atlanta, Georgia, for a $33.05
million credit facility. The Agreement provides for a revolving
credit facility of $25.0 million and a long-term credit facility
of $8.05 million. The revolving credit facility bears interest
at 1-1/4% over the Bank's prime rate, which is currently eight
and three quarters percent (8-3/4%). The long-term facility
bears interest at 1-1/4% to 1-1/2% over the Bank's prime rate.
The proceeds of the new credit facility were used to repay the
Company's Senior Debt and chassis financing.
The revolving credit facility is collateralized by inventories
and receivables and the long-term facility is collateralized by
equipment and certain real property. Under terms of the Agreement,
the Company is required to maintain certain financial ratios and
other financial conditions. The Agreement also prohibits the
Company from incurring certain additional indebtedness, limits
certain investments, advances or loans and restricts substantial
asset sales, capital expenditures and cash dividends.
In June, 1995 the Company retired at less than par value certain
subordinated debentures which would have matured in 2000. A gain
of $53,881 from the early retirement of these debentures and a
charge of $474,325 for the unamortized debt issuance costs
associated with the early retirement of the Senior Debt resulted
in net extraordinary items of $420,444 ($.05 per share) for the
three months ended July 31, 1995.
(4) Preferred Stock Purchase Rights
On March 28, 1995 the Company's Board of Directors adopted a
stockholders rights plan (Plan) and declared a dividend
distribution of one right (Right) for each outstanding share of
Common Stock to stockholders of record on April 20, 1995. Under
the terms of the Plan each Right entitles the holder to purchase
one one-hundredth of a share of Series A Participating Preferred
Stock (Unit) at an exercise price of $7.44 per Unit. The Rights
are exercisable a specified number of days following (i) the
acquisition by a person or group of persons of 20% or more of the
Company's Common Stock or (ii) the commencement of a tender offer
or an exchange offer for 20% or more of the Company's Common
Stock or (iii) when a majority of the Company's Unaffiliated
Directors (as defined) declares that a Person is deemed to be an
Adverse Person (as defined) upon determination that such Adverse
Person has become the beneficial owner of at least 10% of the
Company's Common Stock. The Company has reserved 750,000 shares
of Preferred Stock, $.10 par value, for issuance upon the
exercise of the Rights. The Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right in
accordance with the provisions of the Plan. Rights expire on
April 1, 2005 unless redeemed earlier by the Company.
<PAGE>
(5) Earnings per Share
Earnings per share has been computed using the weighted average
outstanding common and common equivalent shares.
(6) Contingencies and Litigation
At July 31, 1995 the Company had contingencies and litigation
pending which arose in the ordinary course of business.
Litigation is subject to many uncertainties and the outcome of
the individual matters is not presently determinable. It is
management's opinion that this litigation would not result in
liabilities that would have a material adverse effect on the
Company's consolidated financial position.
<PAGE)
Item 2 - Management's Discussion and Analysis of Financial
Condition and Results of Operations
RESULTS OF OPERATIONS
Net Sales
Sales for the nine months ended July 31, 1995 were $103.9 million
compared to $101.8 million for the same period in fiscal 1994.
This increase was principally due to improved sales of ambulance
and wheelchair lift products. The overall sales increase was
partially offset by declines in truck and commercial and school
bus sales.
Sales for the quarter ended July 31, 1995 were $35.4 million
compared to $36.8 million for the same period in fiscal 1994.
This decrease was principally due to a decline in truck sales.
Cost of Sales
Cost of sales for the nine months ended July 31, 1995 were 87.2%
of sales compared to 87.6% of sales for the same period in fiscal
1994.
Cost of sales for the quarter ended July 31, 1995 were 87.1% of
sales compared to 87.8% of sales for the same period in fiscal
1994. This decrease was principally due to the impact of the
ambulance division's increased productivity and control of fixed
production costs.
Selling, General and Administrative Expenses
Selling, general and administrative expenses were $10.3 million
or 9.9% of sales for the nine months ended July 31, 1995 compared
to $9.7 million or 9.5% for the same period in fiscal 1994. The
overall increase of $.6 million was principally due to higher
selling and marketing costs associated with the ambulance
division's sales increase.
Other Income (Expense)
Special non-recurring expenses of $1.0 million were incurred in
the nine months ended July 31, 1994. These expenses were not
incurred in fiscal 1995 and related to the legal and other costs
associated with the SEC investigation which was settled in
November, 1994.
<PAGE>
Interest expense for the nine months ended July 31, 1995 and 1994
was $2.6 million. Interest expense for the quarter ended July 31,
1995 was $.8 million compared to $.9 million for the same period in
fiscal 1994. This decrease was principally due to decreases in
the Company's average borrowing rates through a new $33.05
million credit facility with NationsBank of Georgia, N.A. as
discussed in Note 3 to the Consolidated Condensed Financial
Statements.
Other income for the nine months ended July 31, 1995 included the
gain from the sale of vacant land of $99,667 and rental income of
certain properties. No similar transactions occurred in the same
periods of fiscal 1994.
Extraordinary Items
Extraordinary items associated with the early extinguishment of
debt as discussed in Note 3 to the Consolidated Condensed
Financial Statements were $420,444 ($.05 per share) for the three
and nine months ended July 31, 1995. No extraordinary items were
incurred in similar periods in fiscal 1994.
Net Income (Loss)
The Company's net income was $.1 million ($.02 per share) for the
nine months ended July 31, 1995 compared to a net loss of $.7
million ($.10 per share) for the same period in fiscal 1994.
This improvement was principally due to the improved operations
in the Company's ambulance and handicapped products divisions and
the elimination of the special non-recurring expenses incurred in
fiscal 1994. The improvement in net income was partially offset
by the losses in the Company's commercial bus and school bus
divisions and the extraordinary charges discussed above.
The Company posted a small net loss for the quarter ended
July 31, 1995 compared to net income of $.2 million ($.02 per share)
for the same period in fiscal 1994. The change in net income
is principally due to the impact of the extraordinary items discussed
above.
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES:
The Company used new and existing credit lines, internally
generated funds and supplier financing to finance its operations
and capital expenditures for the nine months ended July 31, 1995.
Cash used in operations was $2.1 million for the nine months
ended July 31, 1995. The cash used in operations for the nine
months ended July 31, 1995 principally resulted from an increase
in inventories and a decrease in accounts payable and accrued
expenses. These uses of cash were partially offset by a decrease
in accounts receivable.
Cash provided by investing activities was $.1 million for the
nine months ended July 31, 1995. The principal sources of cash
provided by investing activities was attributable to the proceeds
realized from the sale of vacant land. This source was
partially offset by capital expenditures and other investments.
Cash used in financing activities was $1.8 million for the nine
months ended July 31, 1995. The primary uses of cash for
financing activities related to the repayments of Senior Debt,
bank debt and chassis financing.
In May, 1995, the Company completed a $33.05 million credit
facility with NationsBank of Georgia, N.A.. The proceeds were
used to retire the Company's Senior Debt and chassis financing.
Future cash flow requirements under this financing are lower than
under the Company's previous debt structure.
The Company believes that its cash flows from operations and
funds available from the new credit facility described in Note 3
to the Consolidated Condensed Financial Statements will be
sufficient to satisfy its future working capital and capital
expenditure requirements.
At July 31, 1995 there were no significant or unusual contractual
commitments or capital expenditure commitments.
<PAGE>
PART II - OTHER INFORMATION
Item 1 Legal Proceedings
Not Applicable
Item 2 - Changes in Securities
Not Applicable
Item 3 - Defaults on Senior Securities
Not Applicable
Item 4 - Submission of Matters to a Vote of Security Holders
Not Applicable
Item 5 - Other Information
Not Applicable
Item 6 - Exhibits and Reports on Form 8-K
(a) Exhibits:
10.14 - Loan and Security Agreement for $33.05 Million
Credit Facility executed May 9, 1995 between the
Registrant and NationsBank of Georgia, N.A.
27.0 - EDGAR Financial Data Schedule
(b) Reports on Form 8-K:
None
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
COLLINS INDUSTRIES, INC.
(REGISTRANT)
DATE September 8, 1995 LARRY W. SAYRE
VICE PRESIDENT - FINANCE AND
CHIEF FINANCIAL OFFICER
<PAGE>
[EXECUTION COPY]
$33,050,000
LOAN AND SECURITY AGREEMENT
Dated as of April 21, 1995
Between
COLLINS INDUSTRIES, INC.
COLLINS BUS CORPORATION
WHEELED COACH INDUSTRIES, INC.
CAPACITY OF TEXAS, INC.
MOBILE-TECH CORPORATION
TRANSI-CORP.
WORLD TRANS, INC.
(the Borrowers)
and
THE FINANCIAL INSTITUTIONS
PARTY HERETO FROM TIME TO TIME
(the Lenders)
and
NATIONSBANK OF GEORGIA, N.A.
(the Agent)
<PAGE>
<TABLE>
TABLE OF CONTENTS
<CAPTION>
<S> <C> <C> <C>
Page
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions -1-
SECTION 1.2 General -38-
ARTICLE 2
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans -39-
SECTION 2.2 Manner of Borrowing Revolving Credit Loans -39-
SECTION 2.3 Repayment of Revolving Credit Loans -41-
SECTION 2.4 Revolving Credit Note -42-
SECTION 2.5 Extension of Revolving Credit Facility -42-
SECTION 2.6 Letters of Credit -42-
SECTION 2.7 Participations -44-
SECTION 2.8 Indemnification, Exoneration -45-
ARTICLE 3
TERM LOAN FACILITIES
SECTION 3.1 Term Loan Facilities -47-
SECTION 3.2 Manner of Borrowing Term Loan -47-
SECTION 3.3 Repayment of Term Loans -48-
SECTION 3.4 Prepayment of Term Loans -48-
SECTION 3.5 Term Notes -50-
<FN>
(See accompanying notes)
</TABLE>
<PAGE>
<TABLE>
<S>
ARTICLE 4
GENERAL LOAN PROVISIONS; JOINT AND SEVERAL LIABILITY
<C> <C> <C>
SECTION 4.1 Interest -50-
SECTION 4.2 Certain Fees -51-
SECTION 4.3 Manner of Payment -52-
SECTION 4.4 General -53-
SECTION 4.5 Loan Accounts; Statements of Account -53-
SECTION 4.6 Termination of Agreement -54-
SECTION 4.7 Making of Loans -54-
SECTION 4.8 Settlement Among Lenders -56-
SECTION 4.9 Reserved] -60-
SECTION 4.10 Early Termination Fee -60-
SECTION 4.11 Borrowers' Representative -60-
SECTION 4.12 Joint and Several Liability -60-
SECTION 4.13 Secured Obligations Absolute -61-
SECTION 4.14 Waiver of Suretyship Defenses -62-
SECTION 4.15 Subrogation -62-
SECTION 4.16 Right of Contribution Among Borrowers -63-
ARTICLE 5
CONDITIONS PRECEDENT
SECTION 5.1 Conditions Precedent to Initial Loans -63-
SECTION 5.2 All Loans; Letters of Credit -68-
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BORROWERS
SECTION 6.1 Representations and Warranties -68-
SECTION 6.2 Survival of Representations and Warranties, Etc. -77-
</TABLE>
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<TABLE>
<S>
ARTICLE 7
<C> <C> <C>
SECURITY INTEREST
SECTION 7.1 Security Interest -78-
SECTION 7.2 Continued Priority of Security Interest -79-
ARTICLE 8
COLLATERAL COVENANTS
SECTION 8.1 Collection of Receivables -80-
SECTION 8.2 Verification and Notification -82-
SECTION 8.3 Disputes, Returns and Adjustments -82-
SECTION 8.4 Invoices -83-
SECTION 8.5 Delivery of Instruments -83-
SECTION 8.6 Sales of Inventory -83-
SECTION 8.7 Ownership and Defense of Title -83-
SECTION 8.8 Insurance -83-
SECTION 8.9 Location of Offices and Collateral -84-
SECTION 8.10 Records Relating to Collateral -85-
SECTION 8.11 Inspection -85-
SECTION 8.12 Information and Reports -86-
SECTION 8.13 Power of Attorney -87-
SECTION 8.14 Assignment of Claims Act -87-
SECTION 8.15 Equipment -88-
ARTICLE 9
AFFIRMATIVE COVENANTS
SECTION 9.1 Preservation of Corporate Existence and
Similar Matters -88-
SECTION 9.2 Compliance with Applicable Law -88-
SECTION 9.3 Maintenance of Property -89-
SECTION 9.4 Conduct of Business -89-
SECTION 9.5 Insurance -89-
SECTION 9.6 Payment of Taxes and Claims -89-
SECTION 9.7 Accounting Methods and Financial Records -90-
SECTION 9.8 Use of Proceeds -90-
</TABLE>
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<TABLE>
<C> <C> <C>
SECTION 9.9 Hazardous Waste and Substances; Environmental
Requirements -90-
SECTION 9.10 MAPICS Implementation -91-
SECTION 9.11 Second Mortgages -91-
ARTICLE 10
INFORMATION
SECTION 10.1 Financial Statements -91-
SECTION 10.2 Accountants' Certificate -92-
SECTION 10.3 Officer's Certificate -92-
SECTION 10.4 Copies of Other Reports -93-
SECTION 10.5 Notice of Litigation and Other Matters -93-
SECTION 10.6 ERISA -94-
SECTION 10.7 Accuracy of Information -94-
SECTION 10.8 Revisions or Updates to Schedules -94-
ARTICLE 11
NEGATIVE COVENANTS
SECTION 11.1 Financial Ratios -95-
SECTION 11.2 Indebtedness for Money Borrowed -96-
SECTION 11.3 Guaranties -96-
SECTION 11.4 Investments -96-
SECTION 11.5 Acquisitions -96-
SECTION 11.6 Capital Expenditures -96-
SECTION 11.7 Restricted Payments/Purchases, Etc. -97-
SECTION 11.8 Merger, Consolidation and Sale of Assets -97-
SECTION 11.9 Transactions with Affiliates -97-
SECTION 11.10 Liens -97-
SECTION 11.11 Capitalized Lease Obligations -97-
SECTION 11.12 Operating Leases -97-
SECTION 11.13 Real Estate Leases -97-
SECTION 11.14 Plans -97-
SECTION 11.15 Sales and Leasebacks -98-
</TABLE>
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<TABLE>
<C> <C> <C>
ARTICLE 12
DEFAULT
SECTION 12.1 Events of Default -98-
SECTION 12.2 Remedies -101-
SECTION 12.3 Application of Proceeds -104-
SECTION 12.4 Power of Attorney -104-
SECTION 12.5 Miscellaneous Provisions Concerning Remedies -105-
SECTION 12.6 Trademark License -106-
ARTICLE 13
ASSIGNMENTS
SECTION 13.1 Successors and Assigns; Participations -107-
SECTION 13.2 Representation of Lenders -110-
ARTICLE 14
AGENT
SECTION 14.1 Appointment of Agent -110-
SECTION 14.2 Delegation of Duties -110-
SECTION 14.3 Exculpatory Provisions -110-
SECTION 14.4 Reliance by Agent -111-
SECTION 14.5 Notice of Default -111-
SECTION 14.6 Non-Reliance on Agent and Other Lenders -111-
SECTION 14.7 Indemnification -112-
SECTION 14.8 Agent in Its Individual Capacity -112-
SECTION 14.9 Successor Agent -113-
SECTION 14.10 Notices from Agent to Lenders -113-
ARTICLE 15
MISCELLANEOUS
SECTION 15.1 Notices -113-
SECTION 15.2 Expenses -114-
SECTION 15.3 Stamp and Other Taxes -116-
SECTION 15.4 Setoff -116-
</TABLE>
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<C> <C> <C>
SECTION 15.5 Litigation -116-
SECTION 15.6 Waiver of Rights -117-
SECTION 15.7 Consent to Advertising and Publicity -118-
SECTION 15.8 Reversal of Payments -118-
SECTION 15.9 Injunctive Relief -118-
SECTION 15.10 Accounting Matters -118-
SECTION 15.11 Amendments -118-
SECTION 15.12 [Reserved] -120-
SECTION 15.13 Performance of Borrowers' Duties -120-
SECTION 15.14 Indemnification -120-
SECTION 15.15 All Powers Coupled with Interest -120-
SECTION 15.16 Survival -121-
SECTION 15.17 Titles and Captions -121-
SECTION 15.18 Severability of Provisions -121-
SECTION 15.19 Governing Law -121-
SECTION 15.20 Counterparts -121-
SECTION 15.21 Reproduction of Documents -122-
SECTION 15.22 Term of Agreement -122-
SECTION 15.23 Increased Capital -122-
SECTION 15.24 Pro-Rata Participation -123-
</TABLE>
<PAGE>
<TABLE>
<C> <C>
EXHIBIT A FORM OF REVOLVING CREDIT NOTE
EXHIBIT B-1 FORM OF TERM NOTE A
EXHIBIT B-2 FORM OF TERM NOTE B
EXHIBIT B-3 FORM OF TERM NOTE C
EXHIBIT C FORM OF BORROWING BASE CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL FOR BORROWERS AND
GUARANTORS
EXHIBIT E FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT F FORM OF SETTLEMENT REPORT
EXHIBIT G QUARTERLY COMPLIANCE CERTIFICATE
Schedule 1.1 Acceptable Chassis Manufacturers
Schedule 1.1A Refinanced Indebtedness
Schedule 1.1B Permitted Investments
Schedule 1.1C Permitted Liens
Schedule 1.1D Second Mortgage Real Estate
Schedule 6.1(a) Qualification
Schedule 6.1(b) Capitalization
Schedule 6.1(c) Subsidiaries; Ownership of Stock
Schedule 6.1(e) Compliance with Laws
Schedule 6.1(f) Business
Schedule 6.1(g) Governmental Approvals
Schedule 6.1(h) Title to Properties
Schedule 6.1(i) Liens
Schedule 6.1(j) Indebtedness and Guaranties
Schedule 6.1(k) Litigation
Schedule 6.1(l) Tax Matters
Schedule 6.1(p) ERISA
Schedule 6.1(t) Location of Offices and Receivables
Schedule 6.1(u) Location of Inventory
Schedule 6.1(v) Equipment
Schedule 6.1(w) Real Estate
Schedule 6.1(x) Corporate and Fictitious Names
Schedule 6.1(aa) Employee Relations
Schedule 6.1(bb) Proprietary Rights
Schedule 6.1(cc) Trade Names
Schedule 9.8 Use of Proceeds
</TABLE>
<PAGE>
LOAN AND SECURITY AGREEMENT
Dated as of April 21, 1995
COLLINS INDUSTRIES, INC., a Missouri corporation ("Collins"),
COLLINS 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"), Transi-Corp., an Alabama corporation
("T-C"), World Trans, Inc., a Kansas corporation ("World Trans," and
together with Collins, Bus, WCI, Capacity, Mobile and T-C, the
"Borrowers" and each, a "Borrower"), the financial institutions party
to this Agreement from time to time (the "Lenders"), an NATIONSBANK OF
GEORGIA, N.A., a national banking association("NationsBank"), as agent
for the Lenders (the "Agent"), agree as follows:
Preliminary Statement
The Borrowers, a consolidated group of companies under Collins as
the common parent, have requested that the Lenders provided to them
individual lines of credit and term loans in part to refinance existing
Indebtedness and in part to provide ongoing working capital and other
financing needs of their respective businesses, and the Lenders have
agreed, upon the terms and subject to the conditions hereinafter set
forth, to provide such financing. Each of 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
1
DEFINITIONS
1) Definitions. For the purposes of this Agreement:
"Acceptable Chassis Manufacturer" means any Person that
manufactures motor vehicle chassis listed on Schedule 1.1, and
otherwise acceptable to the Required Lenders in all respects.
"Account Debtor" means a Person who is obligated on a
Receivable.
<PAGE>
"Acquire" or "Acquisition," as applied to any Business Unit
or Investment, means the acquiring or acquisition of such Business
Unit or Investment by purchase, exchange, issuance of stock or other
securities, or by merger, reorganization or any other method.
"Affiliate" means, with respect to a Person, (a) any partner,
officer, shareholder (if holding more than ten percent (10%) of the
outstanding shares of capital stock of such Person), director,
employee or managing agent of such Person, (b) any other Person
(other than a Subsidiary) that, (i) directly or indirectly through
one or more intermediaries, controls, or is controlled by, or is
under common control with, such given Person, (ii) directly or
indirectly beneficially owns or holds ten percent (10%) or more of
any class of voting stock or partnership or other voting interest
of such Person or any Subsidiary of such Person, or (iii) ten
percent (10%) or more of the voting stock or partnership or other
voting interest of which is directly or indirectly beneficially
owned or held by such Person or a Subsidiary of such Person. The
term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management
and policies of a Person, whether through ownership of voting
securities or partnership or other voting interest, by contract
or otherwise.
"Agency Account" means an account of a Borrower maintained
by it with a Clearing Bank pursuant to an Agency Account Agreement.
"Agency Account Agreement" means an agreement among a
Borrower, the Agent and a Clearing Bank, if other than the Agent,
in form and substance satisfactory to the Agent, concerning the
collection of payments which represent the proceeds of Receivables
or of any other Collateral.
"Agent" means NationsBank of Georgia, N.A., a national
banking association, and any successor agent appointed pursuant to
Section 14.9 hereof.
"Agent's Office" means the office of the Agent specified in
or determined in accordance with the provisions of Section 15.1.
"Agreement" means and includes this Agreement, including all
Schedules, Exhibits and other attachments hereto, and all amendments,
modifications and supplements hereto and thereto.
"Agreement Date" means the date as of which this Agreement is
dated.
"Aggregate Availability" means, at the time of determination,
the sum of the Availabilities of all Borrowers at such time.
"Aggregate Borrowing Base" means, at the time of determination,
the sum of the Borrowing Bases applicable to all Borrowers at such time.
<PAGE>
"Aggregate Letter of Credit Reserve" means, at the time of
determination, the sum of the Letter of Credit Reserves applicable to
all Borrowers at such time.
"Allocated Chassis Sublimit" means, as applied to any Borrower
at any time, the portion of the Chassis Sublimit allocated to such
Borrower at such time by the Borrowers' Representative with the
consent of the Agent.
"Allocated Finished Goods Sublimit" means, as applied to any
Borrower at any time, the portion of the Finished Goods Sublimit
allocated to such Borrower at such time by the Borrowers'
Representative with the consent of the Agent.
"Allocated Foreign Receivables Sublimit" means, as applied
to any Borrower at any time, the portion of the Foreign Receivables
Sublimit allocated to such Borrower at such time by the Borrowers'
Representative with the consent of the Agent.
"Allocated Raw Materials Sublimit" means, as applied to any
Borrower at any time, the portion of the Raw Materials Sublimit
allocated to such Borrower at such time by the Borrowers'
Representative with the consent of the Agent.
"Allocated T-C Chassis Sublimit" means, as applied to any
Borrower at any time, the portion of the T-C Chassis Sublimit
allocated to such Borrower at such time by the Borrowers'
Representative with the consent of the Agent.
"Allocated Used Vehicle Sublimit" means, as applied to each
Borrower at any time, the portion of the Used Vehicle Sublimit
allocated to such Borrower at such time by the Borrowers'
Representative with the consent of the Agent.
"Anniversary" means the date one year from the Effective
Date which falls on the same day of the same month as the Effective
Date and the same day of each year thereafter.
"Applicable Interest Margin" means (a) as to each Term Loan B,
2.50%, and (b) as to each Term Loan A, Term Loan C and the Revolving
Credit Loans, 1.25%, unless another margin is applicable under the
following formula: if the Fixed Charge Coverage Ratio for any Fiscal
Year ending after the Effective Date is (i) equal to or greater
than 2.0 to 1 and less than 2.5 to 1, then the margin applicable to
each Term Loan A, Term Loan C and the Revolving Credit Loans will
be 1.00% during the next following Fiscal Year or (ii) equal to or
greater than 2.5 to 1.0, then such margin shall be .50% during such
next following Fiscal Year. The Applicable Interest Margin on the
Effective Date shall be 1.25% as to each Term Loan A, Term Loan C
and the Revolving Credit Loans, and 2.50 % as to each Term Loan B.
The Applicable Interest Margin shall be increased or decreased, as
applicable, effective as of the first day of each Fiscal Year.
No decrease in the Applicable Interest Margin shall become
effective if, at such time, any Default or Event of Default has
occurred and is continuing.
<PAGE>
"Applicable Law" means all applicable provisions of
constitutions, statutes, rules, regulations and orders of all
governmental bodies and of all orders and decrees of all courts
and arbitrators, including, without limitation, Environmental
Laws.
"Applicable Percentage" means, as applied to
2) Eligible Receivables - 85%,
3) Eligible Finished Goods Inventory - (i) 95%
as to all Eligible Finished Goods Inventory described in
clause (a) of the definition thereof, and (ii) 50% as to
all Eligible Finished Goods Inventory described in clause
(b) of the definition thereof,
4) Eligible Chassis Inventory - 95%,
5) Eligible Raw Materials Inventory - 45%,
6) Eligible Used Vehicle Inventory - 50%, and
7) Eligible T-C Chassis Inventory - 45%,
or in each case such lesser percentage as the Agent may in the
exercise of its reasonable credit judgement determine from time
to time.
"Asset Disposition" means the disposition of any asset of
a Borrower or any of its Subsidiaries, other than sales of
Inventory in the ordinary course of business.
"Assignment and Acceptance" means an assignment and
acceptance in the form attached hereto as Exhibit E assigning
all or a portion of a Lender's interests, rights and obligations
under this Agreement pursuant to Section 13.1.
"Availability" means, at the time of determination,
with respect to any Borrower, (a) the lesser of (i) the
Borrowing Base applicable to such Borrower at such time and
(ii) the Revolving Credit Facility applicable to such Borrower
at such time, minus (b) the sum of the principal amount of
Revolving Credit Loans outstanding to such Borrower and the
Letter of Credit Reserve applicable to such Borrower at such
time.
"Benefit Plan" means an "employee pension benefit
plan" as defined in Section 3(2) of ERISA (other than a
Multiemployer Plan) in respect of which any Borrower or any
Related Company is, or within the immediately preceding six
years was, an "employer" as defined in Section 3(5) of ERISA,
including such plans as may be established after the Agreement
Date.
"Borrower" means each of Collins, Bus, WCI, Capacity,
Mobile, T-C and World Trans.
<PAGE>
"Borrowers' Representative" means the Person appointed
pursuant to Section 4.11.
"Borrowing Base" means, at any time as to any Borrower,
an amount equal to:
8) the Applicable Percentage of the face value of Eligible
Receivables, other than Eligible Foreign Receivables, due and
owing to such Borrower at such time, minus (ii) the face value of
all Contras at any time that the aggregate face value of all Contras
of the Borrowers exceeds $100,000, plus
9) the lesser of (i) the Applicable Percentage of the face
value of Eligible Foreign Receivables due and owing to such
Borrower at such time, and (ii) the Allocated Foreign Receivables
Sublimit of such Borrower, plus
10) the lesser of (i) the Applicable Percentage of the Cost
of Eligible Finished Goods Inventory and (ii) the Allocated
Finished Goods Sublimit of such Borrower, plus
11) the lesser of (i) the Applicable Percentage of the Cost
of Eligible Chassis Inventory and (ii) the Allocated Chassis Sublimit
of such Borrower, plus
12) the lesser of (i) the Applicable Percentage of the Cost
of Eligible Raw Materials Inventory and (ii) the Allocated Raw
Materials Sublimit of such Borrower, plus
13) the lesser of (i) the Applicable Percentage of the Cost
of Eligible Used Vehicle Inventory and (ii) the Allocated Used Vehicle
Sublimit of such Borrower, plus
14) the lesser of (i) the Applicable Percentage of the Cost
of Eligible T-C Chassis Inventory and (ii) the Allocated T-C
Chassis Sublimit of such Borrower, minus
15) $2,000,000, plus such reserves as the Agent in its
absolute discretion may establish from time to time with respect
to such Borrower.
"Borrowing Base Certificate" means a certificate in the
form attached hereto as
Exhibit C.
"Bus" means Collins Bus Corporation, a Kansas corporation.
"Business Day" means, any day other than a Saturday, Sunday
or legal holiday on which banks in Atlanta, Georgia are not open
for the conduct of a substantial part of their commercial banking
business.
"Business Unit" means the assets constituting the business
or a division or operating unit thereof of any Person.
<PAGE>
"Capacity" means Capacity of Texas, Inc., a Texas corporation.
"Capital Expenditures" means, with respect to any Person,
all expenditures made and liabilities incurred for the acquisition
of assets (other than assets which constitute a Business Unit)
which are not, in accordance with GAAP, treated as expense items
for such Person in the year made or incurred or as a prepaid
expense applicable to a future year or years.
"Capitalized Lease" means a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP.
"Capitalized Lease Obligation" means Indebtedness represented
by obligations under a Capitalized Lease, and the amount of such
Indebtedness shall be the capitalized amount of such obligations
determined in accordance with GAAP.
"Cash Equivalents" means
(a) marketable direct obligations issued or unconditionally
guaranteed by the United States Government or issued by any agency
thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition
thereof;
(b) commercial paper maturing no more than one year from the
date issued and, at the time of acquisition thereof, having a rating
of at least A-1 from Standard & Poor's Corporation or at least P-1
from Moody's Investors Service, Inc.; and
(c) certificates of deposit or bankers' acceptances issued in
Dollar denominations and maturing within one year from the date of
issuance thereof issued by any commercial bank organized under the
laws of the United States of America or any State thereof or the
District of Columbia having combined capital and surplus of not less
than $100,000,000 and, unless issued by the Agent or a Lender, not
subject to set-off or offset rights in favor of such bank arising from
any banking relationship with such bank.
"Chassis Sublimit" means the sum of $11,000,000.
"Clearing Bank" means NationsBank and any other banking
institution with which an Agency Account has been established pursuant
to an Agency Account Agreement.
"Collateral" means and includes all of each Borrower's right,
title and interest in and to each of the following, wher ever located
and whether now or hereafter existing or now owned or hereafter
acquired or arising:
16) all Receivables,
<PAGE>
17) all Inventory,
18) all Equipment,
19) all General Intangibles,
20) all Real Estate covered by any Mortgage,
21) all goods and other property, whether or not delivered,
a) the sale or lease of which gives or purports to
give rise to any Receivable, including, but not limited to, all
merchandise returned or rejected by or repossessed from customers,
or
b) securing any Receivable,
including, without limitation, all rights as an unpaid vendor or
lienor (including, without limitation, stoppage in transit,
replevin and reclamation) with respect to such goods and other
property,
22) all mortgages, deeds to secure debt and deeds of trust
on real or personal property, guaranties, leases, security
agreements, and other agreements and property which secure or relate
to any Receivable or other Collateral, or are acquired for the
purpose of securing and enforcing any item thereof,
23) all documents of title, policies and certificates of
insurance, securities, chattel paper and other documents and
instruments evidencing or pertaining to any and all items of
Collateral,
24) all files, correspondence, computer programs, tapes,
discs and related data processing software which contain
information identifying or pertaining to any of the Receivables
or any Account Debtor, or showing the amounts thereof or payments
thereon or otherwise necessary or helpful in the realization
thereon or the collection thereof,
25) all cash deposited with the Agent or any Lender or
any Affiliate of the Agent or any Lender or which the Agent, for
the benefit of the Lenders, or any Lender or such Affiliate is
entitled to retain or otherwise possess as collateral pursuant to
the provisions of this Agreement or any of the Security Documents
or any agreement relating to any Letters of Credit, and
<PAGE>
26) any and all products and proceeds of the foregoing
(including, but not limited to, any claim to any item referred to
in this definition, and any claim against any third party for loss
of, damage to or destruction of any or all of, the Collateral or
for proceeds payable under, or unearned premiums with respect to,
policies of insurance) in whatever form, including, but not
limited to, cash, negotiable instruments and other instruments for
the payment of money, chattel paper, security agreements and other
documents.
"Collins" means Collins Industries, Inc., a Missouri corporation.
"Commitment" means, as to each Lender at any time, the sum of the
Revolving Credit Commitments of such Lender.
"Commitment Percentage" means, as to any Lender, the percentage
of the Total Commitment obtained by dividing such Lender's
Commitment by the Total Commitment.
"Consolidated Subsidiaries" means, as to Collins, Bus, WCI,
Capacity, Mobile, T-C, World Trans, Global Captive Casualty
& Surety Company, a Kansas corporation, and any other
Subsidiaries of Collins whose accounts are at the time in
question, in accordance with GAAP and pursuant to the written
consent of the Required Lenders, which consent may be withheld
in their absolute discretion and conditioned upon, inter alia,
the execution and delivery of guaranties, security agreements,
mortgages and other documents required by the Required Lenders
in their absolute discretion, consolidated with those of
Collins.
"Contaminant" means any waste, pollutant, hazardous
substance, toxic substance, hazardous waste, special waste,
petroleum or petroleum-derived substance or waste, or any
constituent of any such substance or waste.
"Contra" means any Receivable of a Borrower that is due from
an Account Debtor to whom such Borrower is indebted.
"Controlled Disbursement Account" means one or more accounts
maintained by and in the name of one or more Borrowers
with a Disbursing Bank for the purposes of disbursing Revolving
Credit Loan proceeds and amounts deposited thereto.
"Copyrights" means and includes, as to any Person, all of such
Person's then-owned or existing and future acquired or arising
right, title and interest in and to
(a) all copyrights, rights and interests in copyrights, works
protectable by copyright, copyright registrations and copyright
applications;
(b) all renewals of any of the foregoing;
<PAGE>
(c) all income, royalties, damages and payments now or hereafter
due and/or payable under any of the foregoing, including, without
limitation, damages or payments for past or future infringements
of any of the foregoing;
(d) the right to sue for past, present and future
infringements of any of the foregoing; and
(e) all rights corresponding to any of the foregoing
throughout the world.
"Cost," when used in connection with Eligible Inventory, means
the lesser of (i) cost computed on a first-in first-out basis as
determined in accordance with GAAP, and (ii) fair market value
at the time of determination.
"Current Assets" means, with respect to any Person, the aggregate
amount of assets of such Person which should properly be
classified as current assets in accordance with GAAP, after
deducting adequate reserves in each case where a reserve is
appropriate in accordance with GAAP.
"Current Liabilities" means, with respect to any Person, the
aggregate amount of all Liabilities of such Person which should
properly be classified as current liabilities in accordance with
GAAP, provided, that when applied to one or more Borrowers,
there shall be excluded from Current Liabilities any amount of
the Secured Obligations so classified.
"Current Maturities" means, when used in connection with Long-Term
Liabilities, as of any date of determination, the principal amount
of such Liabilities coming due on such date or during the
twelve-month period following such date in accordance with the
terms of any instrument or agreement evidencing such Liabilities
or relating thereto, provided that for the purpose of this
definition, Long-Term Liabilities shall not include any
Shareholder Subordinated Indebtedness.
"Default" means any of the events specified in Section 12.1
which with the passage of time or giving of notice or both would
constitute an Event of Default.
"Default Interest Margin" means 4.0%.
"Disbursing Bank" means any commercial bank with which a
Controlled Disbursement Account is maintained after the
Effective Date.
"Dollar" and "$" means freely transferable United States dollars.
"Effective Date" means the later of:
<PAGE>
(a) the Agreement Date, and
(b) the first date on which all of the conditions set forth in
Article 5 shall have been fulfilled.
"Effective Interest Rate" means each rate of interest per annum
on the Revolving Credit Loans in effect from time to time
pursuant to the provisions of Sections 4.1(a) and (b).
"Eligible Assignee" means (i) a commercial bank organized under
the laws of the United States, or any State thereof, having
total assets in excess of $1,000,000,000 or any commercial
finance or asset based lending Affiliate of any such commercial
bank; (ii) a savings and loan association or savings bank
organized under the laws of the United States, or any State
thereof, having a net worth of at least $250,000,000 calculated
in accordance with GAAP; and (iii) any Lender listed on the
signature page of this Agreement; provided in each case that
the representation contained in Section 13.1(c)(i) hereof
shall be applicable with respect to such institution or Lender.
"Eligible Chassis Inventory" means, as of the date of
determination, new, unused motor vehicle chassis (i) purchased
by a Borrower from a dealer for an Acceptable Chassis
Manufacturer (1) within twelve (12) months of such date of
determination, or (2) if such purchase occurs prior to such
12-month period, for which such Borrower has obtained a valid and
binding purchase order or contract to purchase acceptable to
the Agent, (ii) as to which the manufacturer's certificate or
statement of origin is held by, or is in transit to, the
Trustee for the benefit of the Agent and the Lenders under the
Trust Agreement, and (iii) as to which the purchase price has
been paid in full by such Borrower.
"Eligible Finished Goods Inventory" means, as of the
date of determination, (a) in the case of motor vehicles, any
such motor vehicle the manufacture of which has been completed
within six (6) months of such date of determination and which
is held for sale in the ordinary course of business without
further manufacturing or processing by such Borrower, and (b)
in the case of other finished goods, such goods as are held by
a Borrower for sale in the ordinary course of business without
further manufacturing or processing.
"Eligible Foreign Receivables" means Receivables
owing by an Account Debtor that is located outside of the
United States of America (for this purpose, the Commonwealth of
Puerto Rico shall be considered located within the United
States of America), other than, (i) such Receivables arising
under contracts with foreign governments to the extent
expressly approved by the Agent, and (ii) such Receivables the
payment of which is supported by a letter of credit acceptable
to the Agent in all respects.
"Eligible Inventory" means Inventory which the Agent,
in the exercise of its reasonable credit judgment, determines
to meet all of the following requirements:
<PAGE>
27) such Inventory is owned by a Borrower, is stored at a
location listed on Schedule 6.1(u), is subject to the Security
Interest, which is perfected as to such Inventory, and is subject to
no other Lien whatsoever other than a Permitted Lien,
28) such Inventory consists of Eligible Finished Goods
Inventory, Eligible Chassis Inventory, Eligible Raw Materials
Inventory, Eligible Used Vehicle Inventory or Eligible T-C
Chassis Inventory,
29) such Inventory is in good condition and meets all
standards imposed by any governmental agency, or department or
division thereof, having regulatory authority over such goods,
their use or sale,
30) such Inventory is currently either usable or salable,
at prices approximating at least Cost, in the normal course of
such Borrower's business and is not slow moving or stale,
31) such Inventory is not obsolete or returned or
repossessed or used goods taken in trade to the extent that such
Inventory is not Eligible Used Vehicle Inventory,
32) such Inventory is located within the United States at
one of the locations set forth in the most recent Schedule of
Inventory,
33) such Inventory is in the possession and control of a
Borrower and not any third party, or if the Inventory is held by
a third party bailee and a negotiable instrument has not been
issued with respect to it (i) a financing statement, which names
the third party bailee as the debtor/bailee, names a Borrower as
the secured party/bailor, names the Agent as assignee of the
secured party/bailor and contains a description of such Inventory
acceptable to the Agent and is otherwise in compliance with the
requirements of Section 9-304(3) of the UCC, has been filed in the
appropriate filing office and (ii) such other steps as the Agent
may reasonably require in order to establish and preserve the
priority of the Security Interest against secured creditors of the
third party bailee or a Borrower shall have been taken,
34) if such Inventory is located in a warehouse or other
facility leased by a Borrower, the lessor has delivered to the
Agent, on behalf of the Lenders, a waiver and consent in form and
substance satisfactory to the Agent, and
35) such Inventory is not determined by the Agent, on
behalf of the Lenders, in the exercise of its reasonable credit
judgment, to be ineligible for any other reason.
"Eligible Raw Materials Inventory" means all raw materials
used or consumed in the business of any Borrower, other than
motor vehicle chassis.
<PAGE>
"Eligible Receivable" means a Receivable that consists of the
unpaid portion of a Rebate Receivable or the obligation stated
on the invoice issued to an Account Debtor with respect to
Inventory sold and shipped to or services performed for such
Account Debtor in the ordinary course of business, net of any
credits or rebates owed by the applicable Borrower to the
Account Debtor, and that the Agent, in the exercise of its
reasonable credit judgment, determines to meet all of the
following requirements:
36) such Receivable is owned by a Borrower and represents a
complete bona fide transaction which requires no further act
under any circumstances on the part of any Borrower to make such
Receivable payable by the Account Debtor,
37) the due date for such Receivable shall not be more
than 30 days after the date of the shipment of the goods the sale
of which gave rise to such Receivable (or the date of performance
of services for Receivables arising from the performance of
services),
38) no more than 90 days have elapsed from the date of the
original invoice, unless the Account Debtor is New York City,
in which case no more than 150 days have elapsed from the date
of the original invoice,
39) the goods the sale of which gave rise to such Receivable
were shipped or delivered to the Account Debtor on an absolute
sale basis and not on a bill and hold sale basis, a consignment
sale basis, a guaranteed sale basis, a sale or return basis, or
on the basis of any other similar understanding and no material
part of such goods has been returned or rejected,
40) such Receivable is not evidenced by chattel paper or an
instrument of any kind unless such chattel paper or instrument
has been collaterally assigned to the Agent, for the benefit of
itself as Agent and the Lenders, pursuant to an assignment in form
and substance satisfactory to the Agent and is in the possession of
the Agent,
41) the Account Debtor with respect to such Receivable is
not insolvent or the subject of any bankruptcy or insolvency
proceedings of any kind or of any other proceeding or action,
threatened or pending, which might, in the Agent's sole judgment,
have a Materially Adverse Effect on such Account Debtor,
42) such Receivable is not owing by an Account Debtor
having 50% or more in face value of its then-existing accounts owing
to the Borrowers remaining unpaid more than 90 days (or in the case
of New York City, 150 days) after the date of the original invoice,
43) such Receivable is not owing by an Account Debtor
whose then-existing accounts owing to the Borrowers exceed in face
amount 20% of the Borrowers' total Eligible Receivables,
<PAGE>
44) if such Receivable arises from the performance of
services, such services have been fully rendered and do not
relate to any warranty claim or obligation,
45) [Reserved],
46) such Receivable is a valid, legally enforceable
obligation of the Account Debtor with respect thereto and is not
subject to any present or contingent (and no facts exist which
are reasonably likely to give rise to any) offset, deduction or
counterclaim, dispute or other defense on the part of such
Account Debtor,
47) such Receivable is subject to the Security Interest,
which is perfected as to such Receivable, and is subject to no other
Lien whatsoever other than a Permitted Lien,
48) such Receivable is evidenced by an invoice or other
documentation in form acceptable to the Agent,
49) the Receivable is not subject to the Assignment of
Claims Act of 1940, as amended from time to time, or any Applicable
Law now or hereafter existing similar in effect thereto, or to any
other prohibition (under Applicable Law, by contract or otherwise)
against its assignment or requiring notice of or consent to such
assignment, unless all such required notices have been given, all
such required consents have been received and all other procedures
have been complied with such that such Receivable shall have been
duly and validly assigned to the Agent, for the benefit of the
Lenders,
50) the goods giving rise to such Receivable were not, at
the time of the sale thereof, subject to any Lien, except the
Security Interest and Permitted Liens,
51) no Borrower is in breach of any express or implied
representation or warranty with respect to the goods the sale of
which gave rise to such Receivable nor in breach of any
representation or warranty, covenant or other agreement contained in
the Loan Documents with respect to such Receivable,
52) such Receivable does not arise out of any transaction
with any Subsidiary, Affiliate, creditor, tenant or lessor of the
relevant Borrower,
53) the relevant Borrower is not the beneficiary of any
letter of credit, nor has any bond or other undertaking by a
guarantor or surety been obtained, supporting such Receivable and the
Account Debtor's obligations in respect thereof,
54) such Receivable does not arise out of finance or
similar charges by a Borrower or other fees for the time value of
money,
<PAGE>
55) the Account Debtor with respect to such Receivable is
not located in New Jersey or any other State denying creditors access
to its courts in the absence of qualification to transact business in
such State or the filing of a Notice of Business Activities Report or
other similar filing, unless the relevant Borrower has either
qualified as a foreign corporation authorized to transact business in
such State or has filed a Notice of Business Activities Report or
similar filing with the applicable State agency for the then-current
year, and
56) neither the Account Debtor with respect to such
Receivable, nor such Receivable, is determined by the Agent, in the
exercise of its reasonable credit judgment, discretion to be
ineligible for any other reason.
"Eligible T-C Chassis Inventory" means, as of the date
of determination, new, unused motor vehicle chassis (a)(1)
purchased by a Borrower from T-C within twelve (12) months of
such date of determination or (2) owned by T-C and the
manufacture of which was completed no more than twelve (12)
months prior to such date of determination, and (b) as to which
the Trustee holds the manufacturer's certificate or statement
of origin for the benefit of the Agent and the Lenders under
the Trust Agreement.
"Eligible Used Vehicle Inventory" means motor
vehicles in good, saleable condition as used vehicles in the
ordinary course of a Borrower's business which a Borrower has
taken in trade in connection with the sale of other vehicles
manufactured by it and as to which all certificates of title
and other title documents are held by the Trustee under the
Trust Agreement for the benefit of the Agent and the Lenders.
"Environmental Laws" means all federal, state, local
and foreign laws now or hereafter in effect relating to
pollution or protection of the environment, including laws
relating to emissions, discharges, Releases or threatened
Releases of pollutants, Contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment
(including, without limitation, ambient air, surface water,
ground water, or land), or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, removal, transport, or handling of pollutants,
Contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes, and any and all regulations, notices or
demand letters issued, entered, promulgated or approved thereunder;
such laws and regulations include but are not limited to the
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.,
as amended; the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. 9601 et seq., as amended; the Toxic
Substances Control Act, 15 U.S.C. 2601 et seq., as amended;
the Clean Air Act, 46 U.S.C. 7401 et seq., as amended; and
state and federal lien and environmental cleanup programs.
<PAGE>
"Environmental Lien" means a Lien in favor of any
governmental entity for (a) any liability under Environmental
Laws or (b) damages arising from, or costs incurred by such
governmental entity in response to, a Release or threatened
Release of Contaminant into the environment.
"Equipment" means and includes, as to any Person, all
of such Person's then-owned or existing and future acquired or
arising machinery, apparatus, equipment, motor vehicles,
tractors, trailers, rolling stock, fittings, fixtures and other
tangible personal property (other than Inventory) of every kind
and description used in such Person's business operations or
owned by such Person or in which such Person has an interest,
and all parts, accessories and special tools and all increases
and accessions thereto and substitutions and replacements
therefor.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as in effect from time to time.
"Event of Default" means any of the events specified in Section
12.1, provided that any requirement for notice or lapse
of time or any other condition has been satisfied.
"Excess Cash Flow" means, for any Fiscal Year, consolidated
Net Income of Collins and its Consolidated Subsidiaries for such
Fiscal Year, plus (without duplication) (a) the sum of the following
amounts to the extent deducted in determining such consolidated Net
Income for such Fiscal Year: (i) deferred taxes on income and
profit, (ii) depreciation, (iii) amortization and (iv) Non-Cash
Charges, minus (b) the sum of consolidated Internally Funded
Capital Expenditures during such Fiscal Year, plus consolidated
Current Maturities of Long-Term Liabilities and Consolidated
Capitalized Lease Obligations as of the last day of such Fiscal
Year plus consolidated interest expense of Collins and its
Consolidated Subsidiaries for such Fiscal Year.
"Federal Funds Effective Rate" means, for any period,
a fluctuating interest rate per annum equal for each day during
such period to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve
system arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of Atlanta,
or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on
such transactions received by NationsBank from three federal
funds brokers of recognized standing selected by NationsBank.
"Financial Officer" means the chief financial officer
of Collins.
<PAGE>
"Financing Statements" means any and all Uniform
Commercial Code financing statements, in form and substance
satisfactory to the Agent, executed and delivered by a Borrower
or a Guarantor to the Agent, naming the Agent, for the benefit
of the Lenders, as secured party and such Borrower or Guarantor
as debtor, in connection with this Agreement and the Loan
Documents.
"Finished Goods Sublimit" means the sum of $5,000,000.
"Fiscal Year" means the accounting year of the Borrowers
beginning November 1 of each year and ending on October 31 of
the following year.
"Fixed Charge Coverage Ratio" means, for any period,
the ratio of (i) the sum of consolidated Net Income of Collins
and its Consolidated Subsidiaries for such period plus (without
duplication) consolidated depreciation expense plus
consolidated amortization plus consolidated interest expense
plus consolidated Non-Cash Charges of Collins and its
Consolidated Subsidiaries for such period to the extent the
same were deducted in computing such consolidated Net Income
plus for the 1994 Fiscal Year only, a one-time charge in the
aggregate amount of $1,010,761 relating to Securities Exchange
Commission matters and litigation described in footnote 9(f) to
Collin's 1994 financial statements to (ii) the sum of
consolidated Current Maturities of Long-Term Liabilities and
Capitalized Lease Obligations as of the last day of such period
plus consolidated interest expense plus consolidated Internally
Funded Capital Expenditures plus consolidated Restricted
Payments of Collins and its Consolidated Subsidiaries, in each
case for such period.
"Foreign Receivables Sublimit" means the sum of $200,000.
"GAAP" means generally accepted accounting principles
consistently applied and maintained throughout the period
indicated and, when used with reference to the Borrowers or any
Subsidiary, consistent with the prior financial practice of the
Borrowers, as reflected on the financial statements referred to
in Section 6.1(n); provided, however, that, in the event that
changes shall be mandated by the Financial Accounting Standards
Board or any similar accounting authority of comparable
standing, or shall be recommended by the Borrowers' independent
public accountants, such changes shall be included in GAAP as
applicable to the Borrowers only from and after such date as
the Borrowers, the Required Lenders and the Agent shall have
amended this Agreement to the extent necessary to reflect any
such changes in the financial covenants set forth in Article 11.
"General Intangibles" means and includes, as to any
Person, all of such Person's then-owned or existing and future
acquired or arising general intangibles, choses in action and
causes of action and all other intangible personal property of
such Person of every kind and nature (other than Receivables),
including, without limitation, any rights under contracts not
yet earned by performance and not evidenced by an instrument or
chattel paper, all Proprietary Rights, corporate or other
<PAGE>
business records, inventions, designs, blueprints, plans,
specifications, goodwill, computer software, customer lists,
registrations, licenses, franchises, tax refund claims,
reversions or any rights thereto and any other amounts payable
to such Person from any Plan or other employee benefit plan,
rights and claims against carriers and shippers, rights to
indemnification, business interruption insurance and proceeds
thereof, property, casualty or any similar type of insurance
and any proceeds thereof, proceeds of insurance covering the
lives of key employees on which such Person is beneficiary and
any letter of credit, guarantee, claims, security interest or
other security held by or granted to such Person to secure
payment by an Account Debtor of any of the Receivables.
"Governmental Approvals" means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings
with, and reports to, all governmental bodies, whether federal,
state, local or foreign national or provincial and all agencies
thereof.
"Guarantor" means one of Collins Ambulance Corporation, a
Kansas corporation, Collins Financial Services, Inc., a Kansas
corporation, and Global Captive Casualty & Surety Company, a
Kansas corporation, and each Person becoming a party as a
Guarantor to the Guaranty Agreement after the Effective Date,
and "Guarantors" means more than one of the foregoing.
"Guarantor Collateral" means property of the Guarantors in
which a Lien is granted in favor of the Agent for the benefit of
the Lenders under the Guarantor Security Agreement.
"Guarantor Security Agreement" means the Security Agreement,
in form and substance satisfactory to the Agent and the Lenders,
executed and delivered on or about the Effective Date by each of
the Guarantors pursuant to which each Guarantor grants a continuing
Lien and security interest in all of its property as collateral
security for its obligations under the Guaranty Agreement.
"Guaranty," "Guaranteed" or to "Guarantee" as applied
to any obligation of another Person shall mean and include
(a) a guaranty (other than by endorsement of
negotiable instruments for collection in the ordinary
course of business), directly or indirectly, in any
manner, of any part or all of such obligation of such
other Person, and
(b) an agreement, direct or indirect, contingent or
otherwise, and whether or not constituting a guaranty, the
practical effect of which is to assure the payment or per
formance (or payment of damages in the event of nonperform
ance) of any part or all of such obligation of such other
Person whether by
(i) the purchase of securities or obligations,
<PAGE>
(ii) the purchase, sale or lease (as lessee
or lessor) of property or the purchase or sale of
services primarily for the purpose of enabling the
obligor with respect to such obligation to make any
payment or performance (or payment of damages in the
event of nonperformance) of or on account of any part
or all of such obligation, or to assure the owner of
such obligation against loss,
(iii) the supplying of funds to or in
any other manner investing in the obligor with
respect to such obligation,
(iv) repayment of amounts drawn down by
beneficiaries of letters of credit, or
(v) the supplying of funds to or investing
in a Person on account of all or any part of such
Person's obligation under a Guaranty of any
obligation or indemnifying or holding harmless, in
any way, such Person against any part or all of such
obligation.
"Guaranty Agreement" means the Guaranty Agreement, in
form and substance satisfactory to the Agent and the Lenders,
executed and delivered on or about the Effective Date by each of
the Guarantors pursuant to which the Guarantors, jointly and
severally, guaranty the Secured Obligations.
"Indebtedness" of any Person means, without
duplication, all Liabilities of such Person, and to the extent
not otherwise included in Liabilities, the following:
(57) all obligations for Money Borrowed or for the deferred
purchase price of property or services,
(58) all obligations (including, during the noncancellable
term of any lease in the nature of a title retention agreement,
all future payment obligations under such lease discounted to
their present value in accordance with GAAP) secured by any Lien
to which any property or asset owned or held by such Person is
subject, whether or not the obligation secured thereby shall have
been assumed by such Person,
(59) all obligations of other Persons which such Person has
Guaranteed, including, but not limited to, all obligations of
such Person consisting of recourse liability with respect to
accounts receivable sold or otherwise disposed of by such Person,
(60) all obligations of such Person in respect of Interest
Rate Protection Agreements, and
<PAGE>
(61) in the case of the Borrowers (without duplication) all
obligations under the Revolving Credit Loans and the Term Loans.
"Installment Payment Date" means the first day of each
calendar month commencing on June 1, 1995 and continuing
thereafter until the Term Loans have been irrevocably paid in
full.
"Interest Payment Date" means the first day of each
calendar month commencing on June 1, 1995 and continuing
thereafter until the Secured Obligations have been irrevocably
paid in full.
"Interest Rate Protection Agreement" shall mean an
interest rate swap, cap or collar agreement or similar
arrangement between any Person and a financial institution
providing for the transfer or mitigation of interest risks
either generally or under specific contingencies.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended from time to time.
"Internally Funded Capital Expenditures" means, for
any period, all Capital Expenditures paid or incurred by a
Borrower other than those financed by the incurrence of
Permitted Purchase Money Indebtedness.
"Inventory" means and includes, as to any Person, all
of such Person's then-owned or existing and future acquired or
arising inventory, as such term is defined in the Uniform
Commercial Code, and shall include, without limitation,
(62) all goods intended for sale or lease by a Person, or
for display or demonstration, including, without limitation, all
motor vehicles, wheel chair and other lifts and related
accessories and other products intended for sale by such Person
to its customers,
(63) all work in process,
(64) all raw materials and other materials and supplies of
every nature and description used or which might be used in
connection with the manufacture, packing, shipping, advertising,
selling, leasing or furnishing of such goods or otherwise used or
consumed in such Person's business, including, without
limitation, motor vehicle chassis, and
(65) all documents evidencing and general intangibles
relating to any of the foregoing.
<PAGE>
"Investment" means, with respect to any Person:
(66) the acquisition or ownership by such Person of any
share of capital stock, evidence of Indebtedness or other
security issued by any other Person,
(67) any loan, advance or extension of credit to, or
contribution to the capital of, any other Person, excluding advances
to employees in the ordinary course of business for business
expenses,
(68) any Guaranty of the obligations of any other Person,
(69) any other investment (other than the Acquisition of a
Business Unit) in any other Person, and
(70) any commitment or option to make any of the investments
listed in clauses (a) through (d) above if, in the case of an option,
the consideration therefor exceeds $100.
"IRS" means the Internal Revenue Service.
"Issuing Bank" means NationsBank or any other banking
institution who subsequently becomes an issuer of a Letter of
Credit hereunder.
"Lender" means at any time any financial institution
party to this Agreement in such capacity at such time,
including any such Person becoming a party hereto pursuant to
the provisions of Article 13, and its successors and assigns,
and "Lenders" means at any time all of the financial
institutions party to this Agreement in such capacity at such
time, including any such Persons becoming parties hereto
pursuant to the provisions of Article 13, and their successors
and assigns.
"Letter of Credit" means any Letter of Credit issued
by an Issuing Bank for the account of a Borrower pursuant to
Section 2.6.
"Letter of Credit Amount" means, with respect to any
Letter of Credit, the aggregate maximum amount at any time
available for drawing under such Letter of Credit.
"Letter of Credit Documents" means the documents, in
form and substance satisfactory to the Issuing Bank, required
by the Issuing Bank to be executed by one or more Borrowers in
connection with the issuance of a Letter of Credit, including,
without limitation, a letter of credit application and
Reimbursement Agreement.
"Letter of Credit Facility" means the amount of $3,000,000.
<PAGE>
"Letter of Credit Obligations" means, at any time,
the sum of (a) the Reimbursement Obligations of the Borrowers
at such time, plus (b) the aggregate Letter of Credit Amount of
Letters of Credit outstanding at such time, plus (c) the
aggregate Letter of Credit Amount of Letters of Credit the
issuance of which has been authorized by the Agent and the
Issuing Bank pursuant to Section 2.6 but that have not yet been
issued, in each case as determined by the Agent.
"Letter of Credit Reserve" means, at any time as to
any Borrower, the aggregate Letter of Credit Obligations at
such time, other than Letter of Credit Obligations that are
fully secured by cash collateral.
"Leverage Ratio" means, at any time, the ratio of
consolidated Liabilities of Collins and its Consolidated
Subsidiaries at such time minus consolidated Subordinated
Indebtedness at such time to Tangible Net Worth at such time
plus consolidated Subordinated Indebtedness at such time.
"Liabilities" of any Person means all items (except
for items of capital stock, additional paid-in capital or
retained earnings, or of general contingency or deferred tax
reserves) which in accordance with GAAP would be included in
determining total liabilities as shown on the liability side of
a balance sheet of such Person as at the date as of which
Liabilities are to be determined.
"Lien" as applied to the property of any Person means:
71) any mortgage, deed to secure debt, deed of trust, lien,
pledge, charge, lease constituting a Capitalized Lease
Obligation, conditional sale or other title retention agreement,
or other security interest, security title or encumbrance of any
kind in respect of any property of such Person, or upon the
income or profits therefrom,
72) any arrangement, express or implied, under which
any property of such Person is transferred, sequestered or other
wise identified for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in
priority to the payment of the general, unsecured creditors of
such Person,
73) any Indebtedness which is unpaid more than 30 days
after the same shall have become due and payable and which if unpaid
might by law (including, but not limited to, bankruptcy
and insolvency laws), or otherwise, be given any priority whatsoever
over the claims of general unsecured creditors of such Person, and
74) the filing of, or any agreement to give, any financing
statement under the Uniform Commercial Code or its equivalent in any
jurisdiction, excluding informational financing statements relating to
property leased by a Borrower.
<PAGE>
"Limited Chassis Liens" means Purchase Money Liens in
favor of a party who has executed an Intercreditor Agreement
with the Agent on terms and conditions satisfactory to the
Agent in its reasonable discretion, which Liens are limited to
Chassis and the proceeds thereof.
"Loan" means any Revolving Credit Loan or a Term
Loan, as well as all such loans collectively, as the context
requires.
"Loan Account" and "Loan Accounts" shall have the
meanings ascribed thereto in Section 4.5.
"Loan Documents" means collectively this Agreement,
the Notes, the Security Documents and each other instrument,
agreement or document executed by a Borrower, a Guarantor or
any Affiliate or Subsidiary of a Borrower or a Guarantor in
connection with this Agreement, whether prior to, on or after
the Effective Date, and each other instrument, agreement or
document referred to herein or contemplated hereby.
"Lockbox" means each U.S. Post Office Box specified
in a Lockbox Agreement.
"Lockbox Agreement" means each agreement between a
Borrower and a Clearing Bank concerning the establishment of a
Lockbox for the collection of Receivables.
"Long-Term Liabilities" means, with respect to any
Person, the aggregate amount of all Liabilities of such Person
other than Current Liabilities.
"Make-Whole Amount" shall have the meaning set forth
in Section 4.7(b).
"Margin Stock" means margin stock as defined in
Section 221.1(h) of Regulation U, as the same may be amended or
supplemented from time to time.
"Materially Adverse Effect" means, with respect to
any Person, a materially adverse effect upon such Person's
business, assets, liabilities, condition (financial or
otherwise), results of operations or business prospects, and in
addition with respect to any Borrower, means a materially
adverse effect upon the Borrowers' ability to perform their
obligations hereunder or under any other Loan Document to which
any Borrower is a party or upon the enforceability of such
obligations against such Borrowers taken as a whole.
"Mobile" means Mobile-Tech Corporation, a Kansas
corporation.
"Money Borrowed" means, as applied to Indebtedness,
75) Indebtedness for money borrowed,
<PAGE>
76) Indebtedness, whether or not in any such case the same
was for money borrowed,
a) represented by notes payable and drafts accepted that
represent extensions of credit,
b) constituting obligations evidenced by bonds,
debentures, notes or similar instruments, or
c) upon which interest charges are customarily paid or
that was issued or assumed as full or partial payment for
property (other than trade credit that is incurred in the
ordinary course of business),
77) Indebtedness that constitutes a Capitalized Lease
Obligation, and
78) Indebtedness that is such by virtue of clause (c) of
the definition thereof, but only to the extent that the obligations
Guaranteed are obligations that would constitute Indebtedness for
Money Borrowed.
"Mortgages" means and includes any and all of the
mortgages, deeds of trust, deeds to secure debt, assignments
and other instruments executed and delivered by one or more
Borrowers to or for the benefit of the Agent by which the Agent
on behalf of the Lenders acquires a Lien on certain of the
Borrowers' Real Estate or a collateral assignment of any
Borrower's interest under leases of Real Estate.
"Multiemployer Plan" means a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA to which a Borrower or a
Related Company is required to contribute or has contributed
within the immediately preceding six (6) years.
"NationsBank" means NationsBank of Georgia, N.A.
"Net Amount" means, with respect to any Investments
made by any Person, the gross amount of all such Investments
minus the aggregate amount of all cash received and the fair
value, at the time of receipt by such Person, of all property
received as payments of principal or premiums, returns of
capital, liquidating dividends or distributions, proceeds of
sale or other dispositions with respect to such Investments.
<PAGE>
"Net Income" means, as applied to any Person, the net
income (or net loss) of such Person for the period in question
after giving effect to deduction of or provision for all
operating expenses, all taxes and reserves (including reserves
for deferred taxes) and all other proper deductions, all
determined in accordance with GAAP, provided that there shall
be excluded:
79) the net income (or net loss) of any Person accrued
prior to the date it becomes a Subsidiary of, or is merged into or
consolidated with, the Person whose Net Income is being determined
or a Subsidiary of such Person,
80) the net income (or net loss) of any Person in
which the Person whose Net Income is being determined or any
Subsidiary of such Person has an ownership interest, except, in
the case of net income, to the extent that any such income has
actually been received by such Person or such Subsidiary in the
form of cash dividends or similar distributions,
81) any restoration of any contingency reserve, except to
the extent that provision for such reserve was made out of income
during such period,
82) any net gains or losses on the sale or other disposition,
not in the ordinary course of business, of Investments,
Business Units and other capital assets, provided that there
shall also be excluded any related charges for taxes thereon,
83) any net gain arising from the collection of the
proceeds of any insurance policy,
84) any write-up of any asset, and
85) any other extraordinary item.
"Net Outstandings" of any Lender means, at any time,
the sum of (a) all amounts paid by such Lender (other than
pursuant to Section 14.7) to the Agent in respect of Revolving
Credit Loans or otherwise under this Agreement, minus (b) all
amounts paid by the Agent to such Lender which are received by
the Agent and which, pursuant to this Agreement, are paid over
to such Lender for application in reduction of the outstanding
principal balance of the Revolving Credit Loans.
"Net Worth" means, with respect to any Person, such
Person's total shareholders' equity (including capital stock,
additional paid-in capital and retained earnings, after
deducting treasury stock) which would appear as such on a
balance sheet of such Person prepared in accordance with GAAP.
<PAGE>
"Non-Cash Charges" means all non-cash expenses,
losses and deductions other than depreciation and amortization
deducted by Collins and its Consolidated Subsidiaries in
determining their consolidated Net Income.
"Non-Ratable Loan" means a Revolving Credit Loan made
by NationsBank in accordance with the provisions of Section
4.8(c).
"Note" means any of the Revolving Credit Notes or
Term Notes, and "Notes" means more than one such Note.
"Notice of Borrowing" has the meaning specified in
Section 2.2(a)(i).
"Operating Lease" means any lease (other than a lease
constituting a Capitalized Lease) of real or personal property.
"PBGC" means the Pension Benefit Guaranty Corporation
and any successor agency.
"Patent Assignment" means each Assignment for
Security Patents, dated on or about the Effective Date, made by
a Borrower to the Agent for the benefit of the Lenders, as the
same may be amended, modified or supplemented from time to time.
"Patents" means and includes, as to any Person, all
of such Person's then-owned or existing and future acquired or
arising right, title and interest in and to
a) any and all patents and patent
applications,
b) inventions and improvements described and claimed
therein,
c) reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof,
d) income, royalties, damages, claims and payments now or
hereafter due and/or payable under and with respect
thereto, including, without limitation, damages and
payments for past and future infringements thereof,
e) rights to sue for past, present and future
infringements thereof, and
f) all rights corresponding to any of the foregoing
throughout the world.
"Permitted Investments" means Investments of a Borrower in
g) Cash Equivalents,
<PAGE>
h) sales of Inventory on credit in the ordinary course of
business,
i) shares of capital stock, evidence of Indebtedness or
other security acquired by the Borrowers (or any of them)
in consideration for or as evidence of past-due or
restructured Receivables in an aggregate face amount of
such Receivables at any time not to exceed $1,000,000,
j) loans to officers, directors, shareholders,
Subsidiaries and Affiliates not to exceed $50,000 in
aggregate outstanding principal amount at any time as to
all Borrowers, provided that any loan or advance made by
a Borrower to any other Borrower shall be permitted
without limitation to the amount thereof,
k) Guaranties permitted pursuant to Section 11.3,
l) those items described on Schedule 1.1B - Permitted
Investments,
m) other Borrowers,
n) leases of finished goods Inventory to customers entered
into in the ordinary course of business, provided that the
Security Interest is duly perfected therein, and
o) shares of capital stock of publicly-traded competitors
of the Borrowers in an amount not to exceed $50,000 in the
aggregate.
"Permitted Liens" means:
86) Liens securing taxes, assessments and other govern
mental charges or levies (excluding any Lien imposed pursuant to
any of the provisions of ERISA) or the claims of materialmen,
mechanics, carriers, warehousemen or landlords for labor, materials,
supplies or rentals incurred in the ordinary course of business,
but (i) in all cases only if payment shall not at the time
be required to be made in accordance with Section 9.6, and
(ii) in the case of warehousemen or landlords, only if such Liens
are junior to the Security Interest in any of the Collateral,
87) Minor survey exceptions or minor encumbrances, easements
or reservations, or rights of others for rights-of-way, utilities
and other similar purposes, or zoning or other restrictions
as to the use of real properties which are necessary for the conduct
of the activities of the applicable Borrower or which customarily
exist on properties of corporations engaged in similar activities and
similarly situated and which do not in any event materially impair
their use in the operation of the business of the applicable Borrower,
<PAGE>
88) Liens securing Permitted Purchase Money Indebtedness,
89) Judgment Liens to the extent that the underlying
judgment does not constitute an Event of Default under Section
12.1(j),
90) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, bids,
leases, government contracts, performance, surety and return-of
money bonds and other similar obligations (exclusive of
obligations for the payment of Indebtedness for Money Borrowed),
91) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
Lien referred to in the foregoing paragraphs (a) through (e)
inclusive, provided, however, that the principal amount of
Indebtedness secured thereby shall not exceed the principal amount
of Indebtedness so secured at the time of such extension, renewal
or replacement, and that such extension, renewal or replacement
shall be limited to the property which was subject to the Lien so
extended, renewed or replaced,
92) Liens shown on Schedule 1.1C - Permitted Liens, and
93) Liens of the Agent, for the benefit of the Lenders,
arising under this Agreement and the other Loan Documents.
"Permitted Purchase Money Indebtedness" means Purchase Money
Indebtedness secured only by (i) Purchase Money Liens and Capitalized
Lease Obligations, incurred by a Borrower after the Agreement Date, up
to an aggregate amount outstanding at any time equal to $250,000, or
(ii) Limited Chassis Liens.
"Person" means an individual, corporation, partnership,
association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Plan" means, as to any Person, any employee benefit
plan as defined in Section 3(3) of ERISA in respect of which
such Person or any Related Company is, or within the
immediately preceding six years was, an "employer" as defined
in Section 3(5) of ERISA.
"Prime Rate" means, on any day, the interest rate per
annum equal to the rate of interest publicly announced by the
Agent at its head office in Atlanta, Georgia as its "prime"
rate, as in effect on the last Business Day of the calendar
month immediately preceding the month in which such day falls.
The Agent lends at rates above and below the Prime Rate.
<PAGE>
"Proprietary Rights" means and includes, as to any
Person, all of such Person's then-owned or existing and future
arising or acquired: Patents, Copyrights, Trademarks,
applications therefor and licenses in respect thereof
including, without limitation, those Proprietary Rights of the
Borrowers set forth on Schedule 6.1(bb) hereto, and all other
rights under any of the foregoing, all extensions, renewals,
reissues, divisions, continuations, and continuations-in-part
of any of the foregoing, and all rights to sue for past,
present and future infringement of any of the foregoing.
"Purchase Money Indebtedness" means Indebtedness
created or assumed to finance the payment of all or any part of
the purchase price (not in excess of the fair market value
thereof) of any tangible asset (other than Inventory) and
incurred at the time of or within 10 days prior to or after the
acquisition of such tangible asset.
"Purchase Money Lien" means any Lien securing
Purchase Money Indebtedness, but only if such Lien shall at all
times be confined solely to the tangible asset (other than Inventory)
the purchase price of which was financed through the incurrence
of the Purchase Money Indebtedness secured by such Lien.
"Quarterly Compliance Certificate" means a certificate in
substantially the form of Exhibit G to the effect set forth in
Section 10.3.
"Raw Materials Sublimit" means the sum of $5,000,000.
"Real Estate" means all of each Borrower's now or
hereafter owned or leased estates in real property, including,
without limitation, all fees, leaseholds and future interests,
together with all of such Borrower's now or hereafter owned or
leased interests in the improvements and emblements thereon,
the fixtures attached thereto and the easements appurtenant
thereto, including, without limitation the real property
described on Schedule 6.1(w).
"Rebate Receivables" means Receivables owing to a
Borrower from a dealer for an Acceptable Chassis Manufacturer
representing such Borrower's proportionate share of rebates
payable to such dealer by any such Acceptable Chassis
Manufacturer by reason of the sale of motor vehicle chassis to
such Borrower.
"Receivables" means and includes, as to any Person,
all of such Person's then-owned or existing and future acquired
or arising
94) rights to the payment of money or other forms of
consideration of any kind (whether classified under the Uniform
Commercial Code as accounts, contract rights, chattel paper,
general intangibles, or otherwise) including, but not limited to,
accounts receivable, letters of credit and the right to receive
payment thereunder, chattel paper, tax refunds, insurance
proceeds, contract rights, notes, drafts, instruments, documents,
acceptances, and all other debts, obligations and liabilities in
whatever form from any Person,
<PAGE>
95) all guarantees, security and Liens for payment thereof,
96) all goods, whether now owned or hereafter acquired, and
whether sold, delivered, undelivered, in transit or returned,
which may be represented by, or the sale or lease of which may
have given rise to, any such right to payment or other debt,
obligation or liability, and
97) all cash and non-cash proceeds of any of the foregoing.
"Refinanced Indebtedness" means the Indebtedness to be
repaid on the Effective Date described in Schedule 1.1A -
Refinanced Indebtedness.
"Register" shall have the meaning set forth in Section
13.1(d).
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System (or any successor), as
the same may be amended or supplemented from time to time.
"Reimbursement Agreement" means, with respect to a
Letter of Credit, such form of application therefor and form of
reimbursement agreement therefor (whether in a single document
or several documents) as the Issuing Bank may employ in the
ordinary course of business for its own account, with such
modifications thereto as may be agreed upon by the Issuing Bank
and the applicable Borrower, provided that such application and
agreement and any modifications thereto are not inconsistent
with the terms of this Agreement.
"Reimbursement Obligations" means the reimbursement
or repayment obligations of a Borrower to the Issuing Bank
pursuant to Section 2.6(b) or pursuant to a Reimbursement
Agreement with respect to amounts that have been drawn under
Letters of Credit.
"Related Company" means, as to any Person, any (i)
corporation which is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the
Internal Revenue Code) as such Person; (ii) partnership or
other trade or business (whether or not incorporated) under
common control (within the meaning of Section 414(c) of the
Internal Revenue Code) with such Person; or (iii) member of the
same affiliated service group (within the meaning of Section
414(m) of the Internal Revenue Code) as such Person, any
corporation described in clause (i) above or any partnership,
trade or business described in clause (ii) above.
"Release" means release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration into the indoor or outdoor environment or
into or out of any property, including the movement of
Contaminants through or in the air, soil, surface water or
groundwater.
"Remedial Action" means actions required to (i) clean
up, remove, treat or in any other way address Contaminants in
the indoor or outdoor environment; (ii) prevent the Release or
threat of Release or minimize the further Release of
Contaminants so they do not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor
environment; or (iii) perform pre-remedial studies and
investigations and post-remedial monitoring and care.
"Reportable Event" has the meaning set forth in
Section 4043(b) of ERISA, but shall not include a Reportable
Event as to which the provision for 30 days' notice to the PBGC
is waived under applicable regulations.
"Required Lenders" means, at any time, any
combination of Lenders whose Commitment Percentages at such
time aggregate in excess of 51%.
"Restricted Payment" means (a) any dividend,
distribution or payment on or with respect to (i) any shares of
a Borrower's capital stock (other than dividends payable solely
in shares of its capital stock) or (ii) any partnership
interest in a Borrower, excluding, however, any such dividend,
distribution or payment to a Borrower or any Subsidiary of a
Borrower, (b) any redemption or prepayment or other retirement
by a Borrower, prior to the stated maturity thereof or prior to
the due date of any regularly scheduled installment or
amortization payment with respect thereto, of any Indebtedness
for Money Borrowed or of any Indebtedness that is junior and
subordinate to the Secured Obligations, (c) the payment by a
Borrower of the principal amount of or interest on any
Indebtedness (other than trade debt) owing to a shareholder,
partner or equity holder of a Borrower or to any Affiliate of
any such shareholder, partner or equity holder, which Affiliate
is not a Borrower, and (d) the payment of any management,
consulting or similar fee by a Borrower to any of its
Affiliates other than a Borrower.
"Restricted Purchase" means any payment on account of
the purchase, redemption or other acquisition or retirement by
a Person of any (a) shares of such Person's capital stock
(except shares acquired on the conversion thereof into other
shares of capital stock of such Person) or (b) a partnership
interest in such Person, if such Person is a partnership.
"Revolving Credit Commitment" means, as to each
Lender and as to each Borrower with respect to such Lender, the
amount set forth opposite such Lender's name on the signature
pages hereof under the caption "Commitment Amount - Rev. Loan"
with respect to such Borrower (or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for
such Lender and such Borrower 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.
<PAGE>
"Revolving Credit Facility" means, at any time, the
principal amount equal to the aggregate of the amounts of the
Revolving Credit Commitments of all Lenders at such time.
"Revolving Credit Loan" means Loans made to a
Borrower pursuant to Sections 2.1 and 2.2.
"Revolving Credit Note" means each Revolving Credit
Note made by a Borrower payable to the order of a Lender
evidencing the obligation of such Borrower to pay the aggregate
unpaid principal amount of the Revolving Credit Loan made to it
by such Lender (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 such
Lender or to a different Lender in connection with a Person
becoming a Lender after the Effective Date or otherwise)
substantially in the form of Exhibit A hereto, with all blanks
properly completed, either as originally executed or as the
same may from time to time be supplemented, modified, amended,
renewed, extended or refinanced.
"Schedule of Inventory" means a schedule delivered by
the Borrowers to the Agent pursuant to the provisions of
Section 8.12(b).
"Schedule of Receivables" means a schedule delivered
by the Borrowers to the Agent pursuant to the provisions of
Section 8.12(a).
"Second Mortgage Real Estate" means the Real Estate
described on Schedule 1.1D - Second Mortgage Real Estate..
"Secured Obligations" means, in each case whether now
in existence or hereafter arising,
98) the principal of, and interest and premium, if any, on,
the Loans,
99) all Reimbursement Obligations and other obligations
of the Borrowers (or any of them) relating to Letters
of Credit,
100) all obligations to the Agent, a Lender or any Affiliate
of the Agent or any Lender under or relating to Interest Rate
Protection Agreements, and
101) all indebtedness, liabilities, obligations, covenants
and duties of the Borrowers, or any of them, to the Agent or to the
Lenders of every kind, nature and description arising under
or in respect of this Agreement, the Notes or any of the other
Loan Documents, whether direct or indirect, absolute or contingent,
due or not due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any note, and
whether or not for the payment of money, including without
limitation, fees required to be paid pursuant to Article 4 and
expenses required to be paid or reimbursed pursuant to Sections
15.2 and 15.14.
<PAGE>
"Security Documents" means each of the following:
102) the Financing Statements,
103) the Mortgages,
104) the Trust Agreement,
105) the Trademark Assignment,
106) the Patent Assignment,
107) the Guaranty Agreement,
108) the Guarantor Security Agreement, and
109) this Agreement and each other writing executed and
delivered by a Borrower or any other Person securing the Secured
Obligations.
"Security Interest" means the Liens of the Agent, for
the benefit of itself as Agent and the Lenders, on and in the
Collateral and the Guarantor Collateral effected hereby or by any
of the Security Documents or pursuant to the terms hereof or
thereof.
"Settlement Date" means each Business Day after the
Effective Date selected by the Agent in its sole discretion
subject to and in accordance with the provisions of Section
4.8(c) as of which a Settlement Report is delivered by the
Agent and on which settlement is to be made among the Lenders
in accordance with the provisions of Section 4.8.
"Settlement Report" means each report, substantially
in the form attached hereto as Exhibit F, prepared by the Agent
and delivered to each Lender and setting forth, among other
things, as of the Settlement Date indicated thereon and as of
the next preceding Settlement Date, the aggregate principal
balance of all Revolving Credit Loans outstanding, each
Lender's Commitment Percentage thereof, each Lender's Net
Outstandings and all NonRatable Loans made, and all payments of
principal, interest and fees received by the Agent from the
Borrowers during the period beginning on such next preceding
Settlement Date and ending on such Settlement Date.
"Shareholder Subordinated Indebtedness" means the
Indebtedness in the aggregate principal amount of $1,201,000
under the Collins Industries, Inc. 8.75% Subordinated
Debentures Due January 11, 2000.
<PAGE>
"Subordinated Indebtedness" means any Indebtedness
for Money Borrowed, including, without limitation, the
Shareholder Subordinated Indebtedness, which is subordinated to
the Secured Obligations on terms and conditions acceptable to
the Required Lenders in their sole discretion.
"Subsequent Term Loan B Advance" means any advance of a
Term Loan B occurring after the Effective Date pursuant to the provisions
of Section 3.1(b).
"Subsequent Term Loan B Advance Date" means the date on
which a Subsequent Term Loan B Advance is made pursuant to the provisions
of Sections 3.1 and 3.2.
"Subsidiary"
110) when used to determine the relationship of a Person to
another Person, means a Person of which an aggregate of 50% or
more of the stock of any class or classes or 50% or more of other
ownership interests is owned of record or beneficially by such other
Person, or by one or more Subsidiaries of such other Person, or by
such other Person and one or more Subsidiaries of such Person,
a) if the holders of such stock, or other ownership
interests, (A) are ordinarily, in the absence of contingencies,
entitled to vote for the election of a majority of the directors (or
other individuals performing similar functions) of such Person, even
though the right so to vote has been suspended by the happening of
such a contingency, or (B) are entitled, as such holders, to vote
for the election of a majority of the directors (or individuals
performing similar functions) of such Person, whether or not the
right so to vote exists by reason of the happening of a contingency,
or
b) in the case of such other ownership interests, if such
ownership interests constitute a majority voting interest, and
111) when used without other designation, means a Subsidiary of a
Borrower.
"Tangible Net Worth" means, at any time, as applied to
the Borrowers, the consolidated Net Worth of Collins and its
Consolidated Subsidiaries at the time in question, after
excluding therefrom all Receivables due from officers,
directors, shareholders and Affiliates of the Borrowers and the
amount of all intangible items reflected therein, including,
without limitation, all unamortized debt discount and expense,
unamortized research and development expense, unamortized
deferred charges, goodwill, patents, trademarks, service marks,
trade names, copyrights, non-compete agreements and similar
covenants, unamortized excess cost of investment in non-
Consolidated Subsidiaries over equity at dates of acquisition
<PAGE>
and all similar items which should properly be treated as
intangibles in accordance with GAAP, plus the principal amount
outstanding of Shareholder Subordinated Indebtedness at the
time in question.
"T-C" means Transi-Corp., an Alabama corporation.
"T-C Chassis Sublimit" means the sum of $200,000.
"Termination Date" means April 21, 1998, 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.
"Termination Event" means
112) a Reportable Event, or
113) the filing of a notice of intent to terminate a Plan or
the treatment of a Plan amendment as a termination under
Section 4041 of ERISA, or
114) the institution of proceedings to terminate a Plan by
the PBGC under Section 4042 of ERISA, or the appointment of a
trustee to administer any Plan.
"Term Loan" means either a Term Loan A, a Term Loan B,
or a Term Loan C, and "Term Loans" means all such Loans.
"Term Loan A" means a Loan made to a Borrower pursuant
to Section 3.1(a), as well as all such Loans collectively, as
the context requires.
"Term Loan A Commitment" means, as to each Lender and
as to each Borrower with respect to such Lender, the amount set
forth opposite such Lender's name on the signature pages hereof
under the caption "Commitment Amount - Term Loan A" with
respect to such Borrower (or, if such Lender has entered into
one or more Assignments and Acceptances, the amount set forth
for such Lender and such Borrower 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 Term Loans A to the
Borrowers on the Effective Date.
"Term Loan A Facility" means, at any time, the
aggregate amount of the Term Loan A Commitments at such time.
"Term Loan B" means each Loan made to a Borrower
pursuant to Section 3.1(b), as well as all such Loans
collectively, as the context requires.
<PAGE>
"Term Loan B Commitment" means, as to each Lender and
as to each Borrower with respect to such Lender, the amount set
forth opposite such Lender's name on the signature pages hereof
under the caption "Commitment Amount - Term Loan B" with
respect to such Borrower (or, if such Lender has entered into
one or more Assignments and Acceptances, the amount set forth
for such Lender and such Borrower 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 Term Loans B to the
Borrowers on the Effective Date.
"Term Loan B Facility" means, at any time, the
aggregate amount of the Term Loan B Commitments at such time.
"Term Loan C" means a Loan made to WCI pursuant to
Section 3.1(c), as well as all such Loans collectively, as the
context requires:
"Term Loan C Commitment" means, as to each Lender,
the amount set forth opposite such Lender's name on the
signature pages hereof under the caption "Commitment Amount -
Term Loan C" with respect to WCI (or, if such Lender has
entered into one or more Assignments and Acceptances, the
amount set forth for such Lender and WCI in the Register
maintained by the Agent pursuant to Section 13.1(d)),
representing such Lender's obligation, upon and subject to the
terms and conditions of this Agreement, to make Term Loan C to
WCI on the Effective Date.
"Term Loan C Facility" means, at any time, the
aggregate amount of the Term Loan C Commitments at such time.
"Term Loan Commitments" means the total of the Term
Loan A Commitments, the Term Loan B Commitments and the Term
Loan C Commitments.
"Term Loan Facility" means, at any time, an amount
equal to the aggregate of the amounts of the Term Loan
Commitments of all Lenders at such time.
"Term Loan Termination Date" means April 21, 1998.
"Term Note" means any of the Term Notes A or the Term
Notes B or the Term Notes C, and "Term Notes" means more than
one such Note.
"Term Note A" means any of the promissory notes made
by a Borrower payable to the order of a Lender evidencing the
obligations of such Borrower to pay the aggregate unpaid amount
of the Term Loan A made by such Lender to such Borrower (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
<PAGE>
the form of Exhibit B-1 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 A" means more than one
such Term Note A.
"Term Note B" means any of the promissory notes made
by a Borrower payable to the order of a Lender evidencing the
obligations of such Borrower to pay the aggregate unpaid amount
of the Term Loan B made by such Lender to such Borrower (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-2 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 B" means more than one
such Term Note B.
"Term Note C" means any of the promissory notes made
by WCI payable to the order of a Lender evidencing the
obligations of WCI to pay the aggregate unpaid amount of the
Term Loan C made by such Lender to WCI (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 "Term Notes C" means more than one such Term
Note C.
"Total Commitment" means at any time the sum of the
Revolving Credit Commitments of all Lenders at such time.
"Trademark Assignment" means each Assignment for
Security - Trademarks, dated on or about the Effective Date,
made by a Borrower to the Agent for the benefit of the Lenders.
"Trademarks" means and includes, as to any Person, all
of such Person's then-owned or existing and future acquired or
arising right, title and interest in and to
115) trademarks (including service marks), trade names and
trade styles and the registrations and applications for
registration thereof and the goodwill of the business symbolized
by the trademarks,
116) licenses of the foregoing, whether as licensee or
licensor,
117) renewals thereof,
<PAGE>
118) income, royalties, damages and payments now or
hereafter due and/or payable with respect thereto, including,
without limitation, damages, claims and payments for past and
future infringements thereof,
119) rights to sue for past, present and future infringements
thereof, including the right to settle suits involving claims
and demands for royalties owing, and
120) all rights corresponding to any of the foregoing
throughout the world.
"Trust Agreement" means collectively the Trust
Agreements, dated on or about the Effective Date, among a
Borrower, the Agent and the named trustee, in form and
substance satisfactory to the Agent, providing for the holding
by such trustee on behalf of the Lender of title documents
relating to Eligible Chassis Inventory and periodic reporting
relating thereto.
"Trustee" means the person serving as Trustee under
the Trust Agreement from time to time.
"Unfunded Vested Accrued Benefits" means with respect
to any Plan at any time, the amount (if any) by which
(a) the present value of all vested nonforfeitable
benefits under such Plan exceeds
(b) the fair market value of all Plan assets
allocable to such benefits, all determined as of the then
most recent valuation date for such Plan.
"Uniform Commercial Code" means the Uniform
Commercial Code as in effect from time to time in the State of
Georgia.
"Used Vehicle Sublimit" means the sum of $750,000.
"Valuable Transfer" as to any Borrower, means and
shall have been deemed to have occurred if proceeds of any
Loan, Letter of Credit or other extension of credit are used,
directly or indirectly, to (i) make a loan, advance or capital
contribution to such Borrower, (ii) acquire from such Borrower
debt securities or other obligations of such Borrower, (iii)
acquire property, any interest in which is transferred to such
Borrower (but only to the extent of the economic benefit to
such Borrower of the interest so transferred), (iv) purchase
equity securities of such Borrower, or (v) otherwise confer,
directly or indirectly, an economic benefit on such Borrower
(but only to the extent of such benefit).
"WCI" means Wheeled Coach Industries, Inc., a Florida
corporation.
<PAGE>
"Wholly-Owned Subsidiary" when used to determine the
relationship of a Subsidiary to a Person means a Subsidiary all
of the issued and outstanding shares (other than directors'
qualifying shares) of the capital stock of which shall at the
time be owned by such Person or one or more of such Person's
Wholly-Owned Subsidiaries or by such Person and one or more of
such Person's Wholly-Owned Subsidiaries.
"World Trans" means World Trans, Inc., a Kansas
corporation.
121) General.
a) All terms of an accounting nature not specifically
defined herein shall have the meaning ascribed thereto by GAAP.
b) The terms accounts, chattel paper, contract rights,
documents, equipment, instruments, general intangibles and
inventory, as and when used in this Agreement or the Security
Documents, shall have the meanings given those terms in the Uniform
Commercial Code.
c) Unless otherwise specified, a reference in this
Agreement to a particular article, section or subsection is a
reference to that article, section or subsection of this Agreement,
and the words "hereof," "herein," "hereunder" and words of similar
import, when used in this Agreement, refer to this Agreement as a
whole and not to any particular provision, section or subsection of
this Agreement.
d) Wherever from the context it appears appropriate, each
term stated in either the singular or plural shall include the
singular and plural, and pronouns stated in the masculine,
feminine or neuter gender shall include the masculine, the
feminine and the neuter.
e) Words denoting individuals include corporations and
vice versa.
f) References to any legislation or statute or code, or to
any provisions of any legislation or statute or code, shall
include any modification or reenactment of, or any legislative,
statutory or code provision substituted for, such legislation, statute
or code or provision thereof.
g) References to any document or agreement (including this
Agreement) shall include references to such document or agreement
as amended, novated, supplemented, modified or replaced from time to
time, so long as and to the extent that such amendment, novation,
supplement, modification or replacement is either not prohibited by
the terms of this Agreement or is consented to by the Required
Lenders and the Agent.
<PAGE>
h) Except as specifically restricted, references to any
Person include its successors or permitted substitutes and
assigns.
i) All references herein to a time of day are, unless
otherwise specified, references to such time of day in Atlanta,
Georgia.
2)
REVOLVING CREDIT FACILITY
1) Revolving Credit Loans. 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 Revolving Credit Loans to
each Borrower from time to time from the Effective Date to but
not including the Termination Date, as requested or deemed
requested by such Borrower in accordance with the terms of
Section 2.2, in amounts equal to such Lender's Commitment
Percentage of each Revolving Credit Loan requested or deemed
requested hereunder by such Borrower up to an aggregate
principal amount at any one time outstanding equal to such
Lender's Commitment Percentage of the lesser of (i) the Revolving
Credit Facility applicable to such Borrower and (ii) the
Borrowing Base applicable to such Borrower, minus in the case
of each (i) and (ii) the Letter of Credit Reserve applicable
to such Borrower; provided, however, that the aggregate
principal amount of all outstanding Revolving Credit Loans
by all Lenders to all Borrowers (after giving effect to
the Loans requested) shall not at any time exceed the lesser of
(iii) the Revolving Credit Facility and (iv) the Aggregate
Borrowing Base, minus in the case of each (iii) and (iv) the
Aggregate Letter of Credit Reserve. It is expressly understood
and agreed that the Lenders may and at present intend to use
the foregoing limits applicable to each Borrower and the
Borrowers as a group as a maximum ceiling on Revolving Credit
Loans to such Borrowers; provided, however, that should the
Revolving Credit Loans exceed the ceiling so determined or any
other limitation set forth in this Agreement, such Revolving
Credit Loans shall nevertheless constitute Secured Obligations
and, as such, shall be entitled to all benefits thereof and
security therefor. The principal amount of any Revolving
Credit Loan which is repaid may be reborrowed by the Borrowers,
subject to the terms and conditions of this Agreement, in
accordance with the terms of this Section 2.1. The Agent's and
each Lender's books and records reflecting the date and the
amount of each Revolving Credit Loan and each repayment of
principal thereof shall constitute prima facie evidence of the
accuracy of the information contained therein, subject to the
provisions of Section 4.5.
2) Manner of Borrowing Revolving Credit Loans.
Borrowings under the Revolving Credit Facility shall be made as
follows:
a) Requests for Borrowing. A request for a borrowing
shall be made, or shall be deemed to be made, in the following
manner:
<PAGE>
A) with respect to any Revolving Credit Loan to be made on
the Effective Date, the Borrowers, through the Borrowers'
Representative, shall give the Agent at least two Business Days' prior
written notice of the Effective Date, which notice shall be
irrevocable, and, as to subsequent Revolving Credit Loans, the
Borrowers may, through the Borrowers' Representative, give the
Agent notice of their intention to borrow by giving telephonic
notice (each a "Notice of Borrowing"), which notice shall be
irrevocable, before 11:30 a.m. on the proposed borrowing date,
specifying the proposed amount of the requested Revolving Credit
Loan to each Borrower and the proposed borrowing date,
B) whenever a check or other item is presented to a
Disbursing Bank for payment against a Controlled Disbursement
Account (if such an account has been established) in an amount
greater than the then-available balance in such account, such
Disbursing Bank shall, and is hereby irrevocably authorized by
the Borrowers to, give the Agent notice thereof, which notice
shall be deemed to be a request for one or more Revolving Credit
Loans to one or more Borrowers on the date of such notice in an
aggregate amount equal to the excess of such check or other item
over such available balance,
C) unless payment is otherwise made by the Borrowers, the
becoming due of any amount required to be paid under this
Agreement or any of the Notes (including, without limitation, the
Term Notes) as interest or principal shall be deemed to be a
request for one or more Revolving Credit Loans from one or more
Borrowers on the due date in an aggregate amount equal to the
amount required to pay such interest or principal,
D) unless payment is otherwise made by the Borrowers, the
becoming due of any other Secured Obligation shall be deemed to
be a request for one or more Revolving Credit Loans to one or
more Borrowers on the due date in an aggregate amount equal to
the amount then so due, and such request shall be irrevocable,
and
E) the receipt by the Agent of notification from an
Issuing Bank that a drawing has been made under a Letter of
Credit and the Borrowers have failed to reimburse the Issuing
Bank therefor, shall be deemed to be a request for one or more
Revolving Credit Loans to one or more Borrowers on the date such
notification is received in an aggregate amount equal to the
amount so unreimbursed;
provided, that if any notice referred to in clause (i) above
is received after the applicable specified time, the proposed
borrowing will be postponed automatically to the next Business
Day. Unless the Agent has elected periodic settlements
pursuant to Section 4.8, the Agent shall promptly notify the
Lenders of any Notice of Borrowing given or deemed given
<PAGE>
pursuant to this Section 2.2(a). Not later than 1:30 p.m. on
the proposed borrowing date, each Lender will make available to
the Agent, for the account of the Borrowers, at the Agent's
Office in funds immediately available to the Agent, in an
amount equal to such Lender's Commitment Percentage of the
Revolving Credit Loans to be made on such borrowing date. Each
request for a Revolving Credit Loan shall be deemed to be first
a request by and on behalf of the Borrower whose account is to
be credited with the proceeds of such borrowing or which owes
the applicable Secured Obligation or Reimbursement Obligation
to the extent of the Availability of such Borrower at the time
and then a request by or on behalf of the other Borrowers to
the extent of their respective Availability in accordance with
the instructions of the Borrowers' Representative in effect at
the time or in the absence of any such instructions, in
accordance with the determination of the Agent on behalf of the
Lenders, which determination shall be conclusive as to all
parties hereto. Each such borrowing by one Borrower to pay
obligations of another Borrower shall be accounted for by the
Borrowers among themselves as intercompany loans, but shall in
no way affect the joint and several liability of the Borrowers
hereunder for the payment and performance of the Secured
Obligations.
b) Disbursement of Loans. The Borrowers hereby
irrevocably authorize the Agent to disburse the proceeds of each
borrowing requested, or deemed to be requested, pursuant to this
Section 2.2 as follows:
A) the proceeds of each borrowing requested under Sections
2.2(a)(i) or (ii) shall be disbursed by the Agent in Dollars in
immediately available funds, (A) in the case of any borrowing on
the Effective Date, in accordance with the terms of the letter
from the Borrowers to the Agent referred to in Section 5.1(23)
and (B) in the case of each subsequent borrowing, by wire
transfer to the account of the Borrower designated in the
applicable Notice of Borrowing,
B) the proceeds of each borrowing deemed requested under
Section 2.2(a)(iii) or (iv) shall be disbursed by the Agent by
way of direct payment of the relevant principal, interest or
other Secured Obligation, as the case may be, and
C) the proceeds of each borrowing requested under Section
2.2(a)(v) shall be disbursed by the Agent directly to the Issuing Bank
on behalf of the applicable Borrower.
3. Repayment of Revolving Credit Loans. The
Revolving Credit Loans will be repaid as follows:
a) The outstanding principal amount of all the Revolving
Credit Loans is due and payable, and shall be repaid by the
Borrowers in full, on or before the Termination Date;
<PAGE>
b) If at any time the aggregate outstanding unpaid
principal amount of the Revolving Credit Loans exceeds the lesser
of the Revolving Credit Facility and the Borrowing Base minus in
each case the Letter of Credit Reserve in effect at such time as
to any Borrower, the applicable Borrower shall repay the Revolving
Credit Loans in an amount sufficient to reduce the aggregate
unpaid principal amount of such Revolving Credit Loans by an
amount equal to such excess, together with accrued and unpaid
interest on the amount so repaid to the date of repayment; and
c) The Borrowers hereby instruct the Agent to repay the
Revolving Credit Loans outstanding on any day in an amount equal to
the amount received by the Agent on such day pursuant to Section
8.1(b), such amounts to be applied first to the Revolving Credit
Loans outstanding to the Borrower to whom such payments were
directed to the extent of such Loans and then to any Revolving
Credit Loans outstanding to any other Borrower as directed by the
Borrowers' Representative or, in the absence of such direction, as
the Agent shall determine in its discretion. Each such payment by
one Borrower of obligations of another Borrower shall be accounted
for by the Borrowers among themselves as intercompany loans, but
shall in no way affect the joint and several liability of the
Borrowers hereunder for the payment and performance of the Secured
Obligations.
4) Revolving Credit Note. Each Lender's Revolving Credit
Loans to a Borrower and the obligation of such Borrower to repay
such Revolving Credit Loans shall also be evidenced by a
Revolving Credit Note payable to the order of such Lender. Each
Revolving Credit Note shall be dated the Effective Date (or such
later date on which such Lender becomes a "Lender" hereunder) and
be duly and validly executed and delivered by the applicable Borrower.
5) Extension of Revolving Credit Facility. Upon the request of
the Borrowers, the Lenders may, in their sole discretion, effective
as of the third and any subsequent Anniversary, agree to extend
the Revolving Credit Facility for an additional period of one year.
Each such extension shall be effected by the delivery to the
Borrowers of a written notice to that effect by the Lenders, not
less than 30 days prior to the third Anniversary or such subsequent
Anniversary.
6) Letters of Credit.
a) Issuance of Letters of Credit. Upon the request of
the Borrowers' Representative on behalf of one or more Borrowers from
time to time to the Agent and the Issuing Bank, the Issuing Bank may,
in its discretion, in accordance with the provisions of this Section
2.6, issue one or more Letters of Credit up to an aggregate amount of
Letter of Credit Obligations applicable to all Borrowers at any time
not to exceed the Letter of Credit Facility; provided, that (i) all
Letter of Credit Documents in connection with each Letter of Credit
shall be satisfactory to the Agent and the Issuing Bank in their
respective reasonable credit judgment, (ii) no Letter of Credit
shall be issued if, after the issuance thereof, the sum of the
aggregate principal amount of Revolving Credit Loans outstanding to
<PAGE>
the requesting Borrower, plus the aggregate Letter of Credit
Obligations of such Borrower, would exceed the lesser of (A) the
Revolving Credit Facility applicable to such Borrower and (B) the
Borrowing Base applicable to such Borrower, (iii) each Letter of
Credit shall be a documentary letter of credit issued to or for the
benefit of a supplier of a Borrower in connection with the purchase
of Inventory or a standby letter of credit issued to a beneficiary
and for a purpose acceptable to the Agent and the Issuing Bank in
their respective reasonable credit judgment, and (iv) no Letter of
Credit shall have an initial term longer than one year or an
expiration date later than the Termination Date. Promptly after the
issuance of any Letter of Credit, the Issuing Bank shall give the
Agent written or facsimile notice, or telephone notice confirmed
promptly thereafter in writing, of the issuance of such Letter of
Credit, and the Agent shall give each Lender written or facsimile
notice, or telephone notice confirmed promptly thereafter in writing,
of the issuance of such Letter of Credit.
b) Payment to Issuer. Notwithstanding any provisions to
the contrary in any Reimbursement Agreement, the Borrowers agree,
jointly and severally, without regard to whether only one of them is
named as the account party therein, to reimburse the Issuing Bank for
any drawings (whether partial or full) under each Letter of Credit
issued by the Issuing Bank and agree to pay to the Issuing Bank the
amount of all other Reimbursement Obligations and other amounts
payable to the Issuing Bank under or in connection with such Letter
of Credit immediately when due, irrespective of any claim, set-off,
defense or other right which the Borrowers (or any of them) may have
at any time against the Issuing Bank or any other Person.
c) Deemed Borrowing Request. The Borrowers acknowledge
and agree that if and to the extent a Borrower shall fail to
reimburse the Issuing Bank under any Reimbursement Obligation, the
Borrowers hereby irrevocably request and direct the Agent, in
accordance with the provisions of Sections 2.1 and 2.2 (but
regardless of whether an overadvance results therefrom), to make
payment on their behalf of such Reimbursement Obligation and the
amount of any such payment by the Agent shall constitute a Revolving
Credit Loan made at the time of such payment.
d) UCP Governs. The issuance and negotiation of Letters
of Credit shall be governed by the Uniform Customs and Practices for
Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, or such other policies and
practices as may be followed by the Bank with respect to similar
letters of credit at the time.
7) Participations.
a) Purchase of Participations. Immediately upon issuance
by the Issuing Bank of a Letter of Credit, each Lender shall be deemed
to have irrevocably and unconditionally purchased and received without
recourse or warranty, an undivided interest and participation in such
<PAGE>
Letter of Credit, equal to such Lender's Commitment Percentage of the
face amount thereof (including, without limitation, all obligations of
the Borrowers with respect thereto, other than certain amounts owing
solely to the Issuing Bank under Section 4.2(d), and any security
therefor or guaranty pertaining thereto).
b) Sharing of Letter of Credit Payments. In the event
that the Issuing Bank makes a payment under any Letter of Credit and
the Issuing Bank shall not have been repaid such amount pursuant to
Section 2.6, then the Issuing Bank shall be deemed to have made a Non-
Ratable Loan in the amount of such payment, and notwithstanding the
occurrence or continuance of a Default or Event of Default at the
time of such payment, such Non-Ratable Loan shall be subject to the
provisions of Section 4.8(c)(ii) and the absolute obligations of the
Lenders to pay for their respective participation interests therein.
c) Sharing of Reimbursement Obligation Payments. Whenever
the Issuing Bank receives a payment from or on behalf of the Borrowers
on account of a Reimbursement Obligation as to which the Agent has
previously received for the account of the Issuing Bank payment from
a Lender pursuant to this Section 2.7, the Issuing Bank shall
promptly pay to the Agent, for the benefit of such Lender, such
Lender's Commitment Percentage of the amount of such payment from
the applicable Borrower in Dollars. Each such payment shall be made
by the Issuing Bank on the Business Day on which the Issuing Bank
receives immediately available funds pursuant to the immediately
preceding sentence, if received prior to 11:00 a.m. (Atlanta time) on
such Business Day and otherwise on the next succeeding Business Day.
d) Documentation. Upon the request of any Lender, the
Agent shall furnish to such Lender copies of any Letter of Credit,
and Letter of Credit Documents and such other documentation as may
reasonably be requested by such Lender.
e) Obligations Irrevocable. The obligations of each
Lender to make payments to the Agent with respect to any Letter of
Credit and their participations therein pursuant to the provisions
of Section 2.7(a) hereof or otherwise and the obligations of the
Borrowers to make payments to the Issuing Bank or to the Agent, for
the account of Lenders, shall be irrevocable, shall not be subject
to any qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement
(assuming, in the case of the obligations of the Lenders to make
such payments, that the Letter of Credit has been issued in
accordance with Section 2.6), including, without limitation, any of
the following circumstances:
A) Any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
<PAGE>
B) The existence of any claim, set-off, defense or other
right which any Borrower may have at any time against a beneficiary
named in a Letter of Credit or any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting),
the Agent, any Lender, the Issuing Bank or any other Person,
whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions
(including any underlying transactions between any
Borrower or any other Person and the beneficiary named in any
Letter of Credit);
C) Any draft, certificate or any other document presented
under the Letter of Credit upon which payment has been made in
good faith and according to its terms proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
D) The surrender or impairment of any Collateral or any
other security for the Secured Obligations or the performance or
observance of any of the terms of any of the Loan Documents;
E) The occurrence of any Default or Event of Default; or
F) The Agent's failure to deliver to the Lenders the
notice of the issuance of such Letter of Credit.
8) Indemnification, Exoneration.
a) Indemnification. In addition to amounts payable as
elsewhere provided in this Agreement, the Borrowers agree to
protect, indemnify, pay and save the Lenders and the Agent harmless
from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys'
fees) which any Lender or the Agent may incur or be subject to as a
consequence, directly or indirectly, of
A) the issuance of any Letter of Credit, other than as a
result of its gross negligence or willful misconduct or failure
to comply with Applicable Law, as determined by a court of
competent jurisdiction, or
B) the failure of the Issuing Bank to honor a drawing
under any Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or
de facto governmental authority (all such acts or omissions being
hereinafter referred to collectively as "Government Acts").
b) Assumption of Risk by the Borrowers. As among the
Borrowers, the Lenders and the Agent, the Borrowers assume all
risks of the acts and omissions of, or misuse of any of the Letters of
<PAGE>
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, subject to the
provisions of the applications for the issuance of Letters of Credit,
the Lenders and the Agent shall not be responsible for:
A) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any document submitted by any Person in
connection with the application for and issuance of and
presentation of draft with respect to any of the Letters of
Credit, even if it should prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
B) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason;
C) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher;
D) errors in interpretation of technical terms;
E) any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under any Letter
of Credit or of the proceeds thereof;
F) the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter of
Credit; or
G) any consequences arising from causes beyond the control
of the Lenders or the Agent, including, without limitation, any
Government Acts.
None of the foregoing shall affect, impair or prevent the
vesting of any of the Agent's rights or powers under this
Section 2.8.
9) Exoneration. In furtherance and extension, and not in
limitation, of the specific provisions set forth above, any
action taken or omitted by the Agent, the Issuing Bank or any
Lender under or in connection with any of the Letters of Credit
or any related certificates, if taken or omitted in good faith
and in conformance with Applicable Law, shall not result in any
liability of any Lender or the Agent to any Borrower or relieve
any Borrower of any of its obligations hereunder to any such
Person.
<PAGE>
3
TERM LOAN FACILITIES
2) 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, this Agreement, each Lender agrees
severally, but not jointly, to make a Term Loan A to each
Borrower on the Effective Date in a principal amount equal to
such Lender's Commitment Percentage of the Term Loan A Facility
applicable to such Borrower.
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
applicable Borrowers in up to three (3) separate advances in
aggregate principal amount of up to such Lender's Commitment
Percentage of the Term Loan B Facility applicable to such
Borrower as follows: (i) in the Effective Date advances
aggregating $850,000 and (ii) on or before the first Anniversary
up to two additional advances of not less than $500,000 each
aggregating up to $1,000,000.
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 WCI on the
Effective Date in a principal amount equal to such Lender's
Commitment Percentage of the Term Loan C Facility.
3) 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
Effective Date and at least five Business Days Notice of each
proposed borrowing of a Subsequent Term Loan B Advance. Each
notice requesting a Subsequent Term Loan B Advance shall set
forth (i) the aggregate principal amount of the principal advance,
which shall not be less than $500,000 and which when added to
previous Subsequent Term Loan B Advances shall not exceed
$1,000,000 in the aggregate, (ii) the applicable 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. 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 respective Borrowers, at the office of the Agent, prior
to 12:00 noon on the Effective Date in funds immediately available
to the Agent. On the Effective Date, upon satisfaction of the
applicable conditions set forth in Sections 5.1 and 5.2, the
Agent will disburse the Term Loans on the Effective Date or the
date set forth in the notice requesting the Subsequent Term Loan B
<PAGE>
Advance, in same day funds. in accordance with the terms of the
letter from the Borrowers' Representative to the Agent referred
to in Section 5.1(23).
4) Repayment of Term Loans.
a) Term Loan A. The principal amount of each Term Loan A
is due and payable, and shall be repaid in full by the
applicable Borrower, in thirty-six (36) consecutive installments
on successiv Installment Payment Dates as follows:
thirty--five (35) installments in an amount determined by
dividing the principal amount of such Term Loan A to such
Borrower by 120 and a final installment on the Term Loan
Termination Date in the amount of the then-unpaid balance of
such Term Loan A to such Borrower.
b) Term Loan B. The principal amount of each Term Loan B
is due and payable, and shall be repaid in full by the applicable
Borrower, in thirty-six (36) consecutive installments on successive
Installment Payment Dates as follows: thirty-five
(35) installments in an amount determined by dividing the
principal amount of such Term Loan B advance to such Borrower by
the number of full calendar months remaining between the date of
such advance and the Term Loan Termination Date and one final
installment on the Term Loan Termination Date in the amount of
the then-unpaid balance of such Term Loan B to such Borrower.
c) Term Loan C. The principal amount of Term Loan C is
due and payable, and shall be repaid in full by WCI, on the Term
Loan Termination Date.
5) Prepayment of Term Loans.
a) Voluntary Prepayment. Provided that Aggregate
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 (other than Term Loan C which may not be prepaid
prior to maturity without the consent of the Required Lenders) in
whole or in part on any Business Day. Each partial prepayment of
Term Loans A and B 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) Excess Earnings Prepayment. Provided Aggregate
Availability equals at least $500,000 immediately prior to and
after giving effect to such prepayment, unless waived by the
Lenders, the Borrowers shall prepay Term Loan B annually on or
<PAGE>
before March 31 of each year in an amount equal to seventy-five
percent (75%) of the Excess Cash Flow for the Fiscal Year most
recently ended.
c) Prepayment on Asset Disposition. Provided Aggregate
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
twelvemonth period, shall be paid by all Borrowers within one
month following receipt thereof, to the Agent for application to
the Term Loans (other than Term Loan C).
d) Term Loan C Prepayment Prohibited. The Borrowers shall
not be entitled to prepay any part or all of Term Loan 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 C or cause
Term Loan 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 each 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 in the
inverse order of their maturities until paid in full. Any
amounts prepaid under this Section 3.4 may not be reborrowed.
6) Term Notes. Each Term Loan A made by each Lender
and the obligation of the applicable Borrower to repay
such Loan shall be evidenced by this Agreement and by a Term Note A
made by such Borrower payable to the order of such Lender. Each Term
Loan B made by each Lender and the obligation of the applicable
Borrower to repay such Loan shall be evidenced by this Agreement and by
a Term Note B made by such Borrower payable to the order of such
Lender. Each Term Loan C made by each Lender and the obligation of WCI
to repay such Loan shall be evidenced by this Agreement and by a Term
Note C made by WCI payable to the order of such Lender. Each such Term
<PAGE>
Note A, Term Note B and Term Note C shall be dated the Effective Date
or the applicable Subsequent Term Loan B Advance Date, as applicable,
and be duly and validly executed and delivered by the applicable
Borrower.
4) GENERAL LOAN PROVISIONS; JOINT AND SEVERAL LIABILITY
1) Interest.
a) Subject to the provisions of Section 4.1(b), each
Borrower will pay interest on the unpaid principal amount of the
Loans made to it, for each day from the day such Loan was made
until such Loan is due (whether upon demand, at maturity, by
reason of acceleration or otherwise) at a rate per annum equal to
the sum of (i) the Applicable Interest Margin and (ii) the Prime
Rate, payable monthly in arrears as it accrues on each Interest
Payment Date.
b) If the Borrowers shall fail to pay when due (whether
upon demand, at maturity, by reason of acceleration or otherwise)
all or any portion of the principal amount of any Loan or if
there shall occur an Event of Default, each such unpaid amount
shall no longer bear interest in accordance with the terms of
Section 4.1(a), but shall bear interest for each day from the
date of such failure to pay or Event of Default, as the case
may be, until such failure to pay or Event of Default shall
have been cured or waived, at a rate per annum equal to the
sum of (i) the Default Interest Margin and (ii) the Prime
Rate, payable on demand. The interest rate provided for in
the preceding sentence shall, to the extent permitted by
Applicable Law, apply to and accrue on the amount of any
judgment entered with respect to any Secured Obligation and
shall continue to accrue at such rate during any proceeding
described in Section 12.1(f) or (g).
c) The Borrowers will, to the extent permitted by
Applicable Law, pay interest on the unpaid principal amount
of any Secured Obligation that is due and payable other
than the Loans in accordance with Sections 4.1(a) or (b),
as applicable, as if such Secured Obligation were a
Revolving Credit Loan.
d) The interest rates provided for in Sections 4.1(a), (b)
and (c) shall be computed on the basis of a year of 360 days
and the actual number of days elapsed and shall be adjusted
automatically as of the opening of business on the effective
date of each change in the Prime Rate.
<PAGE>
e) It is not intended by the Lenders, and nothing
contained in this Agreement or the Notes shall be deemed, to
establish or require the payment of a rate of interest in
excess of the maximum rate permitted by Applicable Law
(the "Maximum Rate"). If, in any month, the Effective
Interest Rate, absent such limitation, would have exceeded
the Maximum Rate, then the Effective Interest Rate for that
month shall be the Maximum Rate, and, if in future months,
the Effective Interest Rate would otherwise be less than
the Maximum Rate, then the Effective Interest Rate shall
remain at the Maximum Rate until such time as the amount
of interest paid hereunder equals the amount of interest
which would have been paid if the same had not been limited
by the Maximum Rate. In the event, upon payment in full
of the Secured Obligations, the total amount of interest
paid or accrued under the terms of this Agreement is less
than the total amount of interest which would have been
paid or accrued if the Effective Interest Rate had at all
times been in effect, then the Borrowers shall, to the
extent permitted by Applicable Law, pay to the Lenders an
amount equal to the excess, if any, of (i) the lesser of
(A) the amount of interest which would have been charged
if the Maximum Rate had, at all times, been in effect and
(B) the amount of interest which would have accrued had the
Effective Interest Rate, at all times, been in effect and
(ii) the amount of interest actually paid or accrued under this
Agreement. In the event the Lenders receive, collect or apply
as interest any sum in excess of the Maximum Rate, such
excess amount shall be applied to the reduction of the
principal balance of the Secured Obligations, and if no such
principal is then outstanding, such excess or part thereof
remaining, shall be paid to the Borrowers.
2) Certain Fees.
a) Origination Fee. On the Effective Date, as additional
consideration for the extensions of credit provided for
hereunder, the Borrowers shall pay to the Agent for the sole
benefit of NationsBank, an origination fee in an amount equal to
the sum of $97,500 plus 2.0% of the original principal amount of
the total Term Loan B Commitments. The origination fee provided
for herein shall compensate NationsBank for the internal costs
associated with the origination, structuring, processing,
approving and closing of the transactions contemplated by
this Agreement, including, but not limited to, administrative,
general overhead and lost opportunity costs, but not including
any out-ofpocket expenses for which the Borrowers, or any of
them, have agreed to reimburse the Agent or any Lender,
including, without limitation, those provided for under
Section 15.2. Such origination fee shall be fully earned on
the Effective Date and shall not be subject to refund or rebate.
<PAGE>
b) Administrative Fee. For administration and other
services performed by the Agent in connection with its
continuing administration of this Agreement, the Borrowers
shall pay to the Agent, for its own account, and not for
the account of the Lenders, an annual fee in the amount
of $50,000, payable in advance on the Effective Date and on
each Anniversary for so long as any Secured Obligation shall
remain outstanding or the Revolving Credit Facility shall
not have been terminated; provided, however, that the annual
fee payable on each of the first and second Anniversaries
shall be $20,000, unless a Default or Event of Default
occurs within the 12-month period following such Anniversaries,
in which case the Borrowers shall pay an additional $30,000
upon the demand of the Agent for each such 12month period
in which such Default or Event of Default has occurred.
The fee payable pursuant to this Section 4.2(b) shall be
fully earned by the Agent on the date payment thereof is
due and shall not be subject to refund or rebate.
c) [Reserved].
d) Letter of Credit Fees. The Borrowers agree to pay to
the Agent, for the ratable benefit of the Lenders, Letter of
Credit fees equal to 1.0% per annum based on the average
daily aggregate Letter of Credit Amount of all Letters of
Credit from time to time outstanding during the term of this
Agreement. Such fees shall be payable to the Agent for the
ratable benefit of the Lenders in accordance with their
respective Commitment Percentages in advance on the date of
issuance of each Letter of Credit, shall be calculated
according to the anticipated average daily Letter of Credit
Amount based on the stated term of each Letter of Credit and
shall be calculated based on a year of 360 days and the
actual number of days elapsed. The Borrowers agree to pay
to Agent, for the account of the Issuing Bank, the standard
fees and charges of the Issuing Bank for issuing,
administering, amending, renewing, paying and canceling
Letters of Credit, as and when assessed.
3) Manner of Payment.
a) Except as otherwise expressly provided in Section
8.1(b), each payment (including prepayments) by the Borrowers
(or any of them) on account of the principal of or interest on
the Loans or of any other amounts payable to the Lenders under
this Agreement or any Note shall be made not later than
12:00 noon on the date specified for payment under this
Agreement to the Agent, for the account of the Lenders, at
the Agent's Office, in Dollars, in immediately available funds
and shall be made without any setoff, counterclaim or
deduction whatsoever. Any payment received after such time
but before 5:00 p.m. on such day shall be deemed a payment
on such date for the purposes of Section 12.1, but for all
other purposes shall be deemed to have been made on
the next succeeding Business Day.
<PAGE>
b) Each Borrower hereby irrevocably authorizes each Lender
and each Affiliate of such Lender and each participant herein
to charge any account of such Borrower maintained with such
Lender or such Affiliate or participant with such amounts as
may be necessary from time to time to pay any Secured
Obligations (whether or not owed to such Lender, Affiliate or
participant) which are not paid when due.
4) General. If any payment under this Agreement or
any Note shall be specified to be made upon a day which is not a
Business Day, it shall be made on the next succeeding day which is a
Business Day and such extension of time shall in such case be
included in computing the amount of such payment or interest, if
any, in connection with such payment.
5) Loan Accounts; Statements of Account.
a) Each Lender shall open and maintain on its books a loan
account in the Borrowers' name (each, a "Loan Account" and
collectively, the "Loan Accounts"). Each such Loan Account
shall show as debits thereto each Loan made under this
Agreement by such Lender to the Borrowers and as credits
thereto all payments received by such Lender and applied to
principal of such Loan, so that the balance of the Loan Account
at all times reflects the principal amount due such Lender
from the Borrowers.
b) The Agent shall maintain on its books a control account
for the Borrowers in which shall be recorded (i) the amount of
each disbursement made hereunder, (ii) the amount of any
principal or interest due or to become due from the Borrowers
hereunder, and (iii) the amount of any sum received by the Agent
hereunder from the Borrowers and each Lender's ratable share
therein.
c) The entries made in the accounts pursuant to
subsections (a) and (b) above shall be prima facie evidence, in
the absence of manifest error, of the existence and amounts of
the obligations of the Borrowers therein recorded and in case of
discrepancy between such accounts, in the absence of manifest
error, the accounts maintained pursuant to subsection (b) above
shall be controlling.
d) The Agent will account separately to the Borrowers
monthly with a statement of Loans, charges and payments made to
and by the Borrowers pursuant to this Agreement, and such accounts
rendered by the Agent shall be deemed final, binding and
conclusive, save for manifest error, unless the Agent is notified
by the Borrowers in writing to the contrary within 30 days of the
date the account to the Borrowers was so rendered. Such notice by
the Borrowers shall be deemed an objection to only those items
specifically objected to therein. Failure of the Agent to render
such account shall in no way affect the rights of the Agent or of
the Lenders hereunder.
<PAGE>
6) Termination of Agreement. Subject to the provisions of
Section 4.10, the Borrowers shall have the right, at any time, to
terminate this Agreement upon not less than 30 Business Days' prior
written notice of their intention to terminate this Agreement, which
notice shall specify the effective date of such termination. Upon
receipt of such notice, the Agent shall promptly notify each Lender
thereof. On the date specified in such notice, such termination
shall be effected, provided, that the Borrowers shall, on or prior to
such date, pay to the Agent, for the account of the Lenders, in
same day funds, an amount equal to all Secured Obligations then
outstanding, including, without limitation, all (i) accrued
interest thereon, (ii) all accrued fees provided for hereunder,
and (iii) any amounts payable to the Lenders and the Agent
pursuant to Sections 4.10, 15.2, 15.3 and 15.14 and in addition
thereto, shall deliver to the Agent, in respect of each
outstanding Letter of Credit, collateral consisting of cash or
Cash Equivalents or other security satisfactory to the Issuing
Bank in its sole discretion in an amount equal to the related
Letter of Credit Obligations to be held by the Issuing Bank as
collateral security for the payment of and to be applied to the
payment of any amounts which may thereafter become due with
respect to any Letter of Credit. Additionally, if requested by
any Lender, the Borrowers shall provide the Agent and the
Lenders with an indemnification agreement in form and substance
satisfactory to the Agent and the Lenders with respect to
returned and dishonored items and such other matters as the
Agent or any Lender shall reasonably request. Following a
notice of termination as provided for in this Section 4.6 and
upon payment in full of the amounts specified in this Section
4.6, this Agreement shall be terminated and the Agent, the
Lenders and the Borrowers shall have no further obligations to
any other party hereto except for the obligations to the Agent
and the Lenders pursuant to Section 15.14 hereof.
7) Making of Loans.
a) Nature of Obligations of Lenders to Make Loans. The
obligations of the Lenders under this Agreement to make
Revolving Credit Loans and Term Loans are several and are not
joint or joint and several.
b) Assumption by Agent. Subject to the provisions of
Section 4.8 and notwithstanding the occurrence or continuance of
a Default or Event of Default or other failure of any condition
to the making of Revolving Credit Loans hereunder subsequent to
the Effective Date, unless the Agent shall have received notice
from a Lender in accordance with the provisions of Section 4.7(c)
prior to a proposed borrowing date that such Lender will not
make available to the Agent such Lender's portion of such
Revolving Credit Loan, the Agent may assume that such Lender
will make such Loan available to the Agent in accordance with
Section 2.2(a), and the Agent may, in reliance upon such
assumption, make available to the Borrowers on such date a
corresponding amount. If and to the extent such Lender
shall not make its Loan available to the Agent, such Lender, on
the one hand, and the Borrowers, jointly and severally, on the
other, severally agree to repay to the Agent forthwith on demand
such corresponding amount (the "Make-Whole Amount"), together
with interest thereon for each day from the date such amount is
<PAGE>
made available to the Borrowers until the date such amount is
repaid to the Agent at the Effective Interest Rate or, if lower,
subject to Section 4.1(e), the Maximum Rate; provided, however,
that if on the Interest Payment Date next following the date on
which any Lender pays interest to the Agent at the Effective
Rate or the Maximum Rate on a Make-Whole Amount as aforesaid,
the Borrowers default in making the interest payment due on
such Interest Payment Date, then the Agent shall reimburse such
Lender for the excess, if any, of the amount of interest so
paid by such Lender on the Make Whole Amount and the amount
of interest that such Lender would have paid had the Lender
been required to pay interest on the Make-Whole Amount at the
Federal Funds Effective Rate. If such Lender shall repay to the
Agent such corresponding amount, the amount so repaid shall
constitute such Lender's Loan made on such borrowing date for
purposes of this Agreement. The failure of any Lender to make
its Loan available shall not (without regard to whether a
Borrower shall have returned the amount thereof to the Agent
in accordance with this Section 4.7) relieve it or any other
Lender of its obligation, if any, hereunder to make its Loan
available on such borrowing date, but no Lender shall be
responsible for the failure of any other Lender to make its
Loan available on the borrowing date.
c) Delegation of Authority to Agent. Without limiting
the generality of Section 14.1, each Lender expressly authorizes
the Agent to determine on behalf of such Lender (i) any reduction
or increase of the Applicable Percentage, so long as such
Applicable Percentage does not at any time exceed the rate set
forth in the definition thereof, (ii) any allocation among the
Borrowers of the Allocated Chassis Sublimit, the Allocated
Finished Goods Sublimit, the Allocated Foreign Receivables
Sublimit, the Allocated Raw Materials Sublimit, the Allocated
T-C Chassis Sublimit and the Allocated Used Vehicle Sublimit,
(iii) the creation or elimination of any reserves against the
Revolving Credit Facility and the Borrowing Base, and (iv)
whether or not Inventory or Receivables shall be deemed to
constitute Eligible Inventory or Eligible Receivables. Such
authorization may be withdrawn by the Required Lenders by
giving the Agent written notice of such withdrawal signed by
the Required Lenders; provided, however, that unless otherwise
agreed by the Agent, such withdrawal of authorization shall
not become effective until the thirtieth Business Day after
receipt of such notice by the Agent. Thereafter, the Required
Lenders shall jointly instruct the Agent in writing regarding
such matters with such frequency as the Required Lenders shall
jointly determine. Unless and until the Agent shall have
received written notice, which shall have become effective,
from the Required Lenders as to the existence of a Default, an
Event of Default or some other circumstance which would relieve
the Lenders of their respective obligations to make Loans
hereunder, which notice shall be in writing and shall be
signed by the Required Lenders and shall expressly state that the
Required Lenders do not intend to make available to the Agent
Revolving Credit Loans made after the effective date of such
notice, the Agent shall be entitled to continue to make the
assumptions described in Section 4.7(b). The notice described in
the preceding sentence shall become effective on the third
Business Day after receipt of such notice by the Agent, unless
otherwise agreed by the Agent; during the period between receipt
of such notice, and effectiveness thereof, the Agent shall be
<PAGE>
entitled to make the assumptions described in Section 4.7(b) as to
any Loan as to which it has not received written notice to the
contrary prior to 11:00 a.m. on the Business Day next preceding
the day on which the Loan is to be made. The Agent shall not be
required to make any Loan for the account of any Lender as to
which it shall have received notice of such Lender's intention not
to make its Loan available to the Agent. Any withdrawal of
authorization under this Section 4.7(c) shall not affect the
validity of any Loans or other determinations made or actions
taken or omitted prior to the effectiveness thereof.
8) Settlement Among Lenders.
a) Term Loans. The Agent shall pay to each Lender on each
Interest Payment Date or Installment Payment Date, as the case
may be, its ratable share, based upon the principal amount of the
applicable Term Loans owing to such Lender, if all payments
received by the Agent hereunder in immediately available funds in
respect of the principal of, or interest on, the Term Loans, net
of any amounts payable by such Lender to the Agent, by wire
transfer of same day funds.
b) Revolving Credit Loans. It is agreed that each
Lender's Net Outstandings are intended by the Lenders to be equal
at all times to such Lender's Commitment Percentage of the
aggregate principal amount of all Revolving Credit Loans
outstanding. Notwithstanding such agreement, the several and not
joint obligation of each Lender to fund Revolving Credit Loans
made in accordance with the terms of this Agreement ratably in
accordance with such Lender's Commitment Percentage and each
Lender's right to receive its ratable share of principal payments
on Revolving Credit Loans made by it in accordance with its
Commitment Percentage, the Lenders agree that in order to
facilitate the administration of this Agreement and the Loan
Documents that settlement among them may take place on a periodic
basis in accordance with the provisions of this Section 4.8.
c) Settlement Procedures as to Revolving Credit Loans. To
the extent and in the manner hereinafter provided in this
Section 4.8, settlement among the Lenders as to Revolving
Credit Loans may occur periodically on Settlement Dates
determined from time to time by the Agent, which may occur
before or after the occurrence or during the continuance of a
Default or Event of Default and whether or not all of the
conditions set forth in Section 5.2 have been met. On
each Settlement Date, payments shall be made by or to
NationsBank and the other Lenders in the manner provided in
this Section 4.8 in accordance with the Settlement Report
delivered by the Agent pursuant to the provisions of this
Section 4.8 in respect of such Settlement Date so that as of
each Settlement Date, and after giving effect to the
transactions to take place on such Settlement Date, each
Lender's Net Outstandings shall equal such Lender's
Commitment Percentage of the Revolving Credit Loans outstanding.
<PAGE>
A) Selection of Settlement Dates. If the Agent elects, in
its discretion, but subject to the consent of NationsBank, to
settle accounts among the Lenders with respect to principal
amounts of Revolving Credit Loans less frequently than each
Business Day, then the Agent shall designate periodic
Settlement Dates which may occur on any Business Day after
the Effective Date; provided, however, that the Agent shall
designate as a Settlement Date any Business Day which is an
Interest Payment Date; and provided further, that a
Settlement Date shall occur at least once during each
seven-day period. The Agent shall designate a Settlement
Date by delivering to each Lender a Settlement Report not
later than 12:00 noon on the proposed Settlement Date,
which Settlement Report will be in the form of Exhibit F
hereto and shall be computed with respect to the period
beginning on the next preceding Settlement Date and ending
on such designated Settlement Date.
B) Non-Ratable Loans and Payments. Between Settlement
Dates, the Agent shall request and NationsBank may (but
shall not be obligated to) advance to the Borrowers out
of NationsBank's own funds, the entire principal amount
of any Revolving Credit Loan requested or deemed requested
pursuant to Section 2.2(a) (any such Revolving Credit Loan
being referred to as a "Non Ratable Loan"). The making of
each Non-Ratable Loan by NationsBank shall be deemed to be
a purchase by NationsBank of a 100% participation in each
other Lender's Commitment Percentage of the amount of such
Non-Ratable Loan. All payments of principal, interest and
any other amount with respect to such Non Ratable Loan shall
be payable to and received by the Agent for the account of
NationsBank. Upon demand by NationsBank, with notice
thereof to the Agent, each other Lender shall pay to
NationsBank, as the repurchase of such participation, an
amount equal to 100% of such Lender's Commitment Percentage
of the principal amount of such Non-Ratable Loan. Any
payments received by the Agent between Settlement Dates
which in accordance with the terms of this Agreement are to
be applied to the reduction of the outstanding principal
balance of Revolving Credit Loans, shall be paid over to
and retained by NationsBank for such application, and such
payment to and retention by NationsBank shall be deemed, to
the extent of each other Lender's Commitment Percentage of
such payment, to be a purchase by each such other Lender
of a participation in the Revolving Credit Loans (including
the repurchase of participations in Non-Ratable Loans) held
by NationsBank. Upon demand by another Lender, with notice
thereof to the Agent, NationsBank shall pay to the Agent,
for the account of such other Lender, as a repurchase of
such participation, an amount equal to such other Lender's
Commitment Percentage of any such amounts (after application
thereof to the repurchase of any participations of NationsBank
in such other Lender's Commitment Percentage of any
Non-Ratable Loans) paid only to NationsBank by the Agent.
<PAGE>
C) Net Decrease in Outstandings. If on any Settlement
Date the increase, if any, in the Dollar amount of any
Lender's Net Outstandings which is required to comply with
the first sentence of Section 4.8(b) is less than such
Lender's Commitment Percentage of amounts received by the
Agent but paid only to NationsBank since the next preceding
Settlement Date, such Lender and the Agent, in their
respective records, shall apply such Lender's Commitment
Percentage of such amounts to the increase in such Lender's
Net Outstandings, and NationsBank shall pay to the Agent,
for the account of such Lender, the excess allocable to
such Lender.
D) Net Increase in Outstandings. If on any Settlement
Date the increase, if any, in the Dollar amount of any
Lender's Net Outstandings which is required to comply with
the first sentence of Section 4.8(b) exceeds such Lender's
Commitment Percentage of amounts received by the Agent but
paid only to NationsBank since the next preceding Settlement
Date, such Lender and the Agent, in their respective
records, shall apply such Lender's Commitment Percentage of
such amounts to the increase in such Lender's Net
Outstandings, and such Lender shall pay to the Agent, for the
account of NationsBank, any excess.
E) No Change in Outstandings. If a Settlement Report
indicates that no Revolving Credit Loans have been made
during the period since the next preceding Settlement Date,
then such Lender's Commitment Percentage of any amounts
received by the Agent but paid only to NationsBank shall
be paid by NationsBank to the Agent, for the account of
such Lender. If a Settlement Report indicates that
the increase in the Dollar amount of a Lender's Net
Outstandings which is required to comply with the first
sentence of Section 4.8(b) is exactly equal to such
Lender's Commitment Percentage of amounts received by
the Agent but paid only to NationsBank since the next
preceding Settlement Date, such Lender and the Agent,
in their respective records, shall apply such Lender's
Commitment Percentage of such amounts to the increase
in such Lender's Net Outstandings.
F) Return of Payments. If any amounts received by
NationsBank in respect of the Secured Obligations are later
required to be returned or repaid by NationsBank to the
Borrowers or any other obligor or their respective
representatives or successors in interest, whether by court
order, settlement or otherwise, in excess of the
NationsBank's Commitment Percentage of all such amounts
required to be returned by all Lenders, each other Lender
shall, upon demand by NationsBank with notice to the
Agent, pay to the Agent for the account of NationsBank, an
amount equal to the excess of such Lender's Commitment
Percentage of all such amounts required to be returned by
all Lenders over the amount, if any, returned directly by
such Lender.
<PAGE>
G) Payments to Agent, Lenders. (A) Payment by any Lender
to the Agent shall be made not later than 1:00 p.m. on the
Business Day such payment is due, provided that if such payment
is due on demand by another Lender, such demand is made on the
paying Lender not later than 10:00 a.m. on such Business Day.
Payment by the Agent to any Lender shall be made by wire
transfer, promptly following the Agent's receipt of funds for
the account of such Lender and in the type of funds received
by the Agent, provided that if the Agent receives such funds
at or prior to 1:00 p.m., the Agent shall pay such funds to
such Lender by 2:00 p.m. on such Business Day. If a demand
for payment is made after the applicable time set forth
above, the payment due shall be made by 2:00 p.m. on the
first Business Day following the date of such demand.
(B) If a Lender shall, at any time, fail to make any
payment to the Agent required hereunder, the Agent may,
but shall not be required to, retain payments that would
otherwise be made to such Lender hereunder and apply such
payments to such Lender's defaulted obligations hereunder,
at such time, and in such order, as the Agent may elect in
its sole discretion.
(C) With respect to the payment of any funds under this
Section 4.8(c), whether from the Agent to a Lender or from
a Lender to the Agent, the party failing to make full
payment when due pursuant to the terms hereof shall, upon
demand by the other party, pay such amount together with
interest on such amount at the Federal Funds Effective
Rate.
<PAGE>
(d) Settlement of Other Secured Obligations. All other
amounts received by the Agent on account of, or applied
by the Agent to the payment of, any Secured Obligation
owed to the Lenders (including, without limitation,
fees payable to the Lenders pursuant to Section 4.2 and
proceeds from the sale of, or other realization upon,
all or any part of the Collateral or any other security
for the Secured Obligations following an Event of
Default) that are received by the Agent on or prior to
1:00 p.m. on a Business Day will be paid by the Agent
to each Lender on the same Business Day, and any
such amounts that are received by the Agent after
1:00 p.m. will be paid by the Agent to each Lender on
the following Business Day. Unless otherwise stated
herein, the Agent shall distribute fees payable to the
Lenders pursuant to Sections 4.2(c) and (d) ratably to
the Lenders based on each Lender's Commitment Percentage
and shall distribute proceeds from the sale of, or other
realization upon, all or any part of the Collateral
following an Event of Default ratably to the Lenders
based on the amount of the Secured Obligations then
owing to each Lender.
9) [Reserved].
10) Early Termination Fee. If the Borrowers prepay the Loans
in substantial part with funds other than those derived directly from
the Net Income of Collins and its Consolidated Subsidiaries or
terminate this Agreement prior to the Termination Date, as then in
effect, for any reason, the Borrowers shall pay to the Agent for the
ratable benefit of the Lenders on such date of such prepayment or
termination, as the case may be, as liquidated damages and
compensation for the costs of making funds available to the
Borrowers under this Agreement and the lost benefits of the bargain,
and not as a penalty, an amount equal to $750,000 if such prepayment
or termination occurs on or prior to the first Anniversary, $500,000
if such prepayment or termination occurs after the first Anniversary
but on or prior to the second Anniversary and $250,000 if such
prepayment or termination occurs after the second Anniversary and
prior to the Termination Date, as then in effect. The Borrowers
agree that the damages that would be suffered by the Lenders in the
event of the Borrowers' substantial prepayment or termination of
this Agreement other than on a Termination Date are difficult, if
not impossible, to determine and that the termination fees specified
above are a reasonable estimate of such damages.
11) Borrowers' Representative. The Borrowers are and shall be
jointly and severally liable for all Secured Obligations. Each of
the Borrowers hereby appoints Collins as, and Collins shall act under
this Agreement as, the representative of all Borrowers for all
purposes, including, without being limited to, requesting borrowings
and receiving account statements and other notices and communications
to the Borrowers (or any of them) from the Agent or any Lender. The
Agent and the Lenders may rely, and shall be fully protected in
relying, on any request for borrowing, disbursement instruction,
report, information or any other notice or communication made or
given by Collins, whether in its own name, on behalf of any other
Borrower or on behalf of "the Borrowers," and neither the Agent nor
any Lender shall have any obligation to make any inquiry or request
any confirmation from or on behalf of any other Borrower as to the
<PAGE>
binding effect on it of any such request, instruction, report,
information, notice or communication, nor shall the joint and
several character of the Borrowers' liability for the Secured
Obligations be affected.
12) Joint and Several Liability.
a) Joint and Several Liability. The Secured Obligations
shall constitute one joint and several direct and general
obligation of all of the Borrowers secured by the Security
Interest and the Lien of the Mortgages and the other Security
Documents and by all other Liens now, or at any time or times
hereafter, granted by the Borrowers, or any of them, to the
Agent for the benefit of the Lenders. Notwithstanding anything
to the contrary contained herein or in any other Loan Document
and notwithstanding the fact that each Borrower has not
physically executed as co-maker each Note, each of the Borrowers
shall be, and hereby undertake and agree to be, jointly and
severally, with each other Borrower, directly and unconditionally
liable to the Agent and the Lenders for all Secured Obligations
and shall have the obligations of co-makers with respect to the
Revolving Credit Loans, the Revolving Credit Notes, the Term
Loans, the Term Notes and the other Secured Obligations, it
being agreed that each Loan to each Borrower inures to the
benefit of all Borrowers, and that the Agent and the Lenders
are relying on the joint and several liability of the
Borrowers as co-makers in extending the Revolving Credit Loans
and the Term Loans hereunder and would not extend the
Revolving Credit Loans or the Term Loans to any Borrower without
the undertakings of all of the Borrowers set forth in this Section
4.12. Each Borrower hereby unconditionally and irrevocably
agrees that upon the becoming due (whether at stated maturity,
by acceleration or otherwise) of any principal of, or interest
on, any Revolving Credit Loan or Term Loan or other Secured
Obligation payable to the Agent or any Lender, it will
forthwith pay the same, without notice or demand. Additionally,
each Borrower expressly acknowledges, authorizes and agrees to
the provisions of Sections 2.2 and 2.3 relating to Loans and
repayments giving rise to intercompany receivables and payables.
b) No Reduction in Secured Obligations. No payment or
payments made by any of the Borrowers or any other Person or
received or collected by the Agent or any Lender from any of the
Borrowers or any other Person by virtue of any action or proceeding
or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Secured
Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of each Borrower under this Agreement, which
shall remain liable for the Secured Obligations until the Secured
Obligations are paid in full and the Revolving Credit Facility is
terminated.
13) Secured Obligations Absolute. To the extent permitted by
Applicable Law, each Borrower agrees that the Secured Obligations
will be paid strictly in accordance with the terms of the Loan
Documents. All Secured Obligations shall be conclusively presumed
<PAGE>
to have been created in reliance hereon. The liabilities under this
Agreement shall be absolute and unconditional irrespective of:
A) any lack of validity or enforceability of any Loan
Documents or any other agreement or instrument relating thereto;
B) any change in the time, manner or place of payments of,
or in any other term of, all or any part of the Secured
Obligations, or any other amendment or waiver thereof or any
consent to departure therefrom, including, but not limited to,
any increase in the Secured Obligations resulting from the
extension of additional credit to any Borrower or otherwise;
C) any taking, exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent
to departure from any guaranty, for all or any of the Secured
Obligations;
D) any change, restructuring or termination of the
corporate or organizational structure or existence of any
Borrower; or
E) any other circumstance which might otherwise constitute
a defense available to, or a discharge of, any Borrower or a
Guarantor.
This Agreement shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the
Secured Obligations is rescinded or must otherwise be returned
by the Agent or any Lender upon the insolvency, bankruptcy or
reorganization of any Borrower or otherwise, all as though such
payment had not been made.
14) Waiver of Suretyship Defenses. Each Borrower agrees that the
joint and several liability of the Borrowers provided for in
Section 4.12 shall not be impaired or affected by any modification,
supplement, extension or amendment or any contract or agreement to
which any Borrower may hereafter agree (other than an agreement
signed by the Agent and the Lenders specifically releasing such
liability), nor by any delay, extension of time, renewal, compromise
or other indulgence granted by the Agent or the Lenders with
respect to any of the Secured Obligations, nor by any other
agreements or arrangements whatever with any Borrower or with
anyone else, each Borrower hereby waiving all notice of such
delay, extension, release, substitution, renewal, compromise or
other indulgence, and hereby consenting to be bound thereby as
fully and effectually as if it had expressly agreed thereto in
advance. The liability of each Borrower is direct and
unconditional as to all of the Secured Obligations, and may be
enforced without requiring the Agent or any Lender first to
resort to any other right, remedy or security against any other
Borrower or Guarantor. Each Borrower hereby expressly waives
promptness, diligence, notice of acceptance and any other
notice with respect to any of the Secured Obligations, the
Revolving Credit Notes, the Term Notes, this Agreement or any
other Loan Document and any requirement that the Agent or any
Lender protect, secure, perfect or insure any Lien or any
<PAGE>
property subject thereto or exhaust any right or take any
action against any Borrower or any other Person or any
Collateral or Guarantor Collateral, including any rights any
Borrower may otherwise have under O.C.G.A. 10-7-24.
15) Subrogation. Except as provided in Section 4.16, any claims
or other rights that a Borrower may now have or hereafter acquire
against any other Borrower that arise from the existence, payment,
performance or enforcement of the Secured Obligations or any Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of the Agent or the
Lenders against any other Borrower or any Collateral that the Agent
for the benefit of the Lenders or any Lender now have or hereafter
acquire, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including,
without limitation, the right to take or receive from any other
Borrower, directly or indirectly, in cash or other property or
by setoff or in any other manner, payment or security on
account of such claim, remedy or right, shall be and is hereby
declared to be junior and subordinate to any and all rights
which the Agent or any Lender may have pursuant hereto or to
any of the other Loan Documents or otherwise. Except as
provided in Section 4.16, no Borrower shall enforce any such
right of subrogation, reimbursement, contribution, indemnity or
similar right until all Secured Obligations shall have been
irrevocably paid or provided for in full. If any amount shall
be paid to or collected by any Borrower in violation of the
preceding sentence at any time prior to the later of the
payment in full of the Secured Obligations and the termination
of the Revolving Credit Facility, such amount shall be deemed
to have been received by such Borrower for the benefit of, and
held in trust for the benefit of, the Agent and the Lenders,
and shall forthwith be paid to the Agent for the account of the
Lenders to be credited and applied to the Secured Obligations,
whether matured or unmatured, in accordance with the terms of
this Agreement, or to be held as Collateral for any Secured
Obligations or other amounts payable under this Agreement
thereafter arising. Each Borrower acknowledges that it will
receive direct and indirect benefits from the financing
arrangements contemplated by this Agreement and that the
waivers set forth in this Section 4.15 are knowingly made in
contemplation of such benefits.
16) Right of Contribution Among Borrowers. Each Borrower hereby
agrees that to the extent that any other Borrower shall have paid
more than the aggregate amount of all Valuable Transfers to it
hereunder, it shall be entitled to seek and receive contribution
from and against any other Borrower which has paid less than the
aggregate amount of all Valuable Transfers to it hereunder. The
provisions of this Section 4.16 shall not limit the obligations
and liabilities of any Borrower to the Agent and the Lenders, and
each Borrower shall remain liable to the Agent and the Lenders for
the full amount as to which such Borrower is obligated hereunder.
<PAGE>
5
CONDITIONS PRECEDENT
1) Conditions Precedent to Initial Loans. Notwithstanding any
other provision of this Agreement, the respective obligations of
the Lenders to make the Term Loans and the initial Revolving Credit
Loans are subject to the conditions precedent that (a) 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 substantial damages in respect of, or which is related to or
arises out of, this Agreement, or the consummation of the transactions
contemplated hereby, or which may have a Materially Adverse Effect on
any Borrower, (b) there shall not have occurred any event or series
of events or circumstances or group of circumstances which
individually or in the aggregate, in the sole judgment of any Lender,
would have a Materially Adverse Effect on any Borrower, (c) the Agent
shall have received a Notice of Borrowing, and (d) the Agent
shall have received on or before the Effective Date the
following, each dated as of such day, in form and substance
satisfactory to the Agent, its special counsel and the Lenders
and (except for the Notes) in sufficient copies for each Lender
1) Agreement. This Agreement, duly executed and delivered
by each Borrower and each other party hereto.
2) Notes. Each Revolving Credit Note, each Term Note A,
each Term Note B and each Term Note C, dated the Effective Date
and duly executed and delivered by the applicable Borrower.
3) Articles and Bylaws. Certified copies of the articles
or certificate of incorporation and bylaws of each Borrower and
Guarantor as in effect on the Effective Date.
4) Resolutions. Certified copies of all corporate action,
including shareholder approval, if necessary, taken by each
Borrower and Guarantor to authorize the execution, delivery and
performance of the Loan Documents to which each is a party and the
borrowings under this Agreement.
5) Incumbency Certificates. Certificates of incumbency
and specimen signatures with respect to each of the officers of each
Borrower and Guarantor authorized to execute and deliver the Loan
Documents to which each is a party on behalf of each Borrower or
Guarantor and any other document, certificate or instrument to be
delivered in connection with the Loan Documents and to request
borrowings under this Agreement.
<PAGE>
6) Good Standing Certificates. A certificate evidencing
the good standing of each Borrower and each Guarantor 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 its business as presently conducted.
7) Financing Statements. The Financing Statements duly
executed and delivered by each Borrower or Guarantor party thereto
and acknowledgement copies evidencing the filing of such Financing
Statements in each jurisdiction where such filing may be necessary
or appropriate to perfect the Security Interest.
8) Mortgages. Copies of each of the Mortgages duly
executed and delivered by the applicable Borrower party thereto and
evidencing the recording of each such instrument in the appropriate
jurisdiction for the recording thereof on the Real Estate subject
thereto or, at the option of the Agent, in proper form for recording
in such jurisdiction.
9) Title Insurance. One or more fully paid mortgagee
title insurance policies or, at the option of the Agent,
unconditional commitments 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, each in an amount equal to not less than
the fair market value of the Real Estate subject to the Mortgage
insured thereby, insuring that such Mortgage creates a valid first
Lien on, and security title to, all Real Estate described therein,
with no survey exceptions and no other excep tions which the Agent
shall not have approved in writing.
10) Real Estate Surveys. Such materials and information
concerning the Real Estate as the Agent may require, including,
without limitation, (A) current and accurate surveys satisfactory to
the Agent of all of the owned Real Estate other than the Second
Mortgage Real Estate, certified to the Agent and showing the
location of the 100-year and 50-year flood plains thereon, (B)
zoning letters as to the zoning status of all of the owned Real
Estate, (C) certificates of occupancy covering all of the Real
Estate, and (D) owner's affidavits as to such matters relating to
the owned Real Estate as the Agent may request.
11) Phase I Environmental Reports. A report from a
qualified engineering firm or other qualified consultant acceptable
to the Agent with respect to an investigation and audit of all Real
Estate other than the Second Mortgage Real Estate, which shall be
based on a thorough review of past and present uses, occupants,
ownership and tenancy of such Real Estate and/or adjacent properties
and/or upgradient properties regarding
subsurface ground water hazards, soils and/or test
boring reports;
<PAGE>
contact with local, state or federal agencies regarding
known or suspected hazardous material contamination of such Real
Estate or other properties in the area;
review of aerial photographs;
visual site inspection noting unregulated fills, storage
tanks or areas, ground discoloration or soil odors; and
other investigative methods deemed necessary by the
consultant or the Agent to enable the consultant to report that there
is no apparent or likely contamination of such Real Estate
or another property in the area.
12) Phase II Environmental Report. If deemed reasonably
necessary to further investigate suspected or likely contamination,
supplemental environmental reports prepared by qualified consultants
acceptable to the Agent, of the analysis of core drilling or ground
water samples from such of the Real Estate as the Agent may require,
showing no contamination by hazardous materials.
13) Intercreditor Agreements. Intercreditor agreements duly
executed by the applicable Borrower and any holder of a security
interest in any Eligible Chassis Inventory establishing the priority
of the Security Interest in such Collateral to the satisfaction of
the Agent and the Lenders.
14) Landlord's Consent. Landlord's or mortgagee's waiver
and consent agreements duly executed on behalf of each landlord
or mortgagee, as the case may be, of the Real Estate and any
other real property on which any Collateral or Guarantor Collateral
is located.
15) Guaranty Agreement. The Guaranty Agreement, dated on
or about the Effective Date, duly executed and delivered by each
Guarantor.
16) Guarantor Security Agreement. The Guarantor Security
Agreement, dated on or about the Effective Date, duly executed
and delivered by each Guarantor.
17) Legal Opinion. A signed opinion of Blackwell Sanders
Matheny Weary & Lombardi L.C., counsel for the Borrowers and the
Guarantors, substantially in the form of Exhibit D, 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 Agreement as the Agent or its special counsel
may reasonably request.
18) Insurance Certificate. Certificates or binders of
insurance relating to each of the policies of insurance covering any
<PAGE>
of the Collateral and the Guarantor Collateral, together with loss
payable clauses which comply with the terms of Sections 8.8 and 9.5
and the Security Documents.
19) Officer's Certificate. A certificate of the President
of Collins or the Financial Officer stating that, to the best of his
knowledge and based on an examination sufficient to enable
him to make an informed statement,
all of the representations and warranties made or
deemed to be made under this Agreement are true and correct as of
the Effective Date, after giving effect to the Revolving Credit
Loan and the Term Loans to be made at such time and the
application of the proceeds thereof, and
no Default or Event of Default exists.
20) Borrowing Base Certificates. Borrowing Base Certificates,
Schedules of Inventory and Schedules of Receivables, prepared as of
the Effective Date for each Borrower and all Borrowers on a
consolidated basis, together with evidence satisfactory to the Agent,
confirmed by a certificate of the Financial Officer, that as of the
Effective Date, the Availability, after giving effect to transactions
to be consummated on the Effective Date, is not less than $1,000,000.
21) Disbursement Letter. A letter, conforming to the requirements
of Section 9.8, from the Borrowers' Representative requesting the
initial Revolving Credit Loans and the Term Loans and specifying the
method of disbursement.
22) Appraisals. An appraisal of all owned Real Estate and
Equipment prepared by appraisers satisfactory to the Agent,
establishing values at levels satisfactory to the Agent to
support the Loans on an orderly liquidation value basis, a liquidation
in-place value basis and a fair market value inplace/not-in-use basis;
23) Trust Agreement. The Trust Agreement duly executed and
delivered by the parties thereto.
24) Release of Security Interests. Evidence satisfactory
to the Agent of the release and termination of all Liens other
than Permitted Liens and Limited Chassis Liens.
25) FACA Assignment. All documentation reasonably required
by the Agent to effect the assignment to the Agent for the
benefit of the Lenders of the rights of payment under the contract
dated June 29, 1993 between the General Services Administration and
WCI, which assignment shall conform to the requirements of the
Assignment of Claims Act of 1940, as amended.
<PAGE>
26) Fees. All of the fees payable on the Effective Date
referred to in this Agreement.
27) Security Interests. The Agent shall have received
satisfactory evidence that the Agent (for the benefit of Lenders)
has a valid and perfected first priority security interest as of
such date in all of the Collateral and Guarantor Collateral, subject
only to Permitted Liens and Limited Chassis Liens.
28) Other Loan Documents. Copies of each of the other Loan
Documents duly executed by the parties thereto with evidence
satisfactory to the Agent and the Lenders and their respective counsel
of the due authorization, binding effect and
enforceability of each such Loan Document on each such party and
such other documents and instruments as the Agent or any Lender
may reasonably request.
29) No Injunctions, Etc. Evidence that no action,
proceeding, investigation, regulation or legislation shall have
been instituted, threatened or proposed before any court, govern
mental 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 this Agreement or the consummation of the
transactions contemplated hereby or which, in the Lenders'
absolute discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement.
30) Material Adverse Change. Evidence that, as of the
Effective Date, there shall not have occurred any change which is
materially adverse, in the Lenders' sole discretion, to the
assets, liabilities, businesses, operations, condition (financial
or otherwise) or prospects of any Borrower from those presented by
the unaudited financial statements of the Borrowers described in
Section 6.1(n).
2) All Loans; Letters of Credit. At the time of
making of each Loan and the issuance of each Letter of Credit:
a) all of the representations and warranties made or
deemed to be made under this Agreement shall be true and correct
in all material respects at such time both with and without
giving effect to the Loan to be made at such time and the application
of the proceeds thereof,
b) the corporate actions of the Borrowers referred to in
Section 5.1(4) above shall remain in full force and effect and
the incumbency of officers shall be as stated in the certificates
of incumbency delivered pursuant to Section 5.1(5) or as
subsequently modified and reflected in a certificate of incumbency
delivered to the Agent, and
<PAGE>
c) each request or deemed request for any borrowing
hereunder shall be deemed to be a certification by the Borrowers
to the Agent and the Lenders as to the matters set forth in
Section 5.2(a) and (b) and the Agent may, without waiving either
condition, consider the conditions specified in Sections 5.2(a)
and (b) fulfilled and a representation by the Borrowers to such
effect made, if no written notice to the contrary is received by
the Agent prior to the making of the Loan then to be made.
6
REPRESENTATIONS AND WARRANTIES OF BORROWERS
1) Representations and Warranties. The Borrowers represent and
warrant to the Agent and to the Lenders as follows:
a) Organization; Power; Qualification. Each Borrower and
each Subsidiary is a corporation, duly organized, validly
existing and in good standing under the laws of its jurisdiction
of incorporation, having the power and authority to own its
properties and to carry on its business as now being and hereafter
proposed to be conducted and is duly qualified and authorized to
do business in each jurisdiction in which the character of its
properties or the nature of its business requires such
qualification or authorization. The jurisdictions in which each
Borrower and each Subsidiary is qualified to do business as a
foreign corporation are listed on Schedule 6.1(a).
b) Capitalization. The outstanding capital stock of
Collins has been duly and validly issued and is fully paid and
nonassessable, and the name and percentage ownership of each owner
of 5% or more of the shares of capital stock of Collins are set
forth on Schedule 6.1(b). The issuance and sale of Collins'
capital stock have been registered or qualified under applicable
federal and state securities laws or are exempt therefrom.
c) Subsidiaries. Schedule 6.1(c) correctly sets forth the
name of each Subsidiary of each Borrower, its jurisdiction of
incorporation, the name of its immediate parent or parents, and
the percentage of its issued and outstanding securities owned by a
Borrower or any other Subsidiary of a Borrower and indicating whether
such Subsidiary is a Consolidated Subsidiary. Except as set forth on
Schedule 6.1(c),
A) no Subsidiary of a Borrower has issued any securities
convertible into shares of such Subsidiary's capital stock or any
options, warrants or other rights to acquire any shares or securities
convertible into such shares,
B) the outstanding stock and securities of each Subsidiary
of Collins are owned by Collins or a Wholly Owned Subsidiary of
<PAGE>
Collins, or by Collins and one or more of its Wholly Owned
Subsidiaries, free and clear of all Liens, warrants, options and
rights of others of any kind whatsoever, and
C) Collins has no Subsidiaries.
The outstanding capital stock of each Subsidiary of Collins
has been duly and validly issued and is fully paid and nonassessable
by the issuer, and the number and owners of the shares of such capital
stock are set forth on Schedule 6.1(c).
d) Authorization of Agreement, Notes, Loan Documents and
Borrowing. Each Borrower has the right and power, and has taken all
necessary action to authorize it, to execute, deliver and perform
this Agreement and each of the Loan Documents in accordance with
their respective terms. This Agreement and each of the Loan
Documents have been duly executed and delivered by the duly
authorized officers of each Borrower and each is, or each
when executed and delivered in accordance with this Agreement will
be, a legal, valid and binding obligation of each Borrower,
enforceable in accordance with its terms.
e) Compliance of Agreement, Notes, Loan Documents and
Borrowing with Laws, Etc. Except as set forth on Schedule 6.1(e),
the execution, delivery and performance of this Agreement and each
of the Loan Documents in accordance with their respective terms
and the borrowings hereunder do not and will not, by the passage
of time, the giving of notice or otherwise,
A) require any Governmental Approval or violate any
Applicable Law relating to the Borrowers or any Subsidiaries,
B) conflict with, result in a breach of or constitute a
default under the articles or certificate of incorporation or
bylaws of a Borrower or any Subsidiary,
C) conflict with, result in a breach of or constitute a
default under any material provisions of any indenture, agreement or
other instrument to which a Borrower or any Subsidiary is a party or
by which a Borrower, any Subsidiary or any of such Borrower's or
such Subsidiary's property may be bound or any Governmental Approval
relating to such Borrower or any Subsidiary, or
D) result in or require the creation or imposition of any
Lien upon or with respect to any property now owned or hereafter
acquired by a Borrower other than the Security Interest.
f) Business. Each Borrower is engaged in the business
described on Schedule 6.1(f).
<PAGE>
g) Compliance with Law; Governmental Approvals.
A) Except as set forth in Schedule 6.1(g), or disclosed in
any Phase I or Phase II testing reports provided to the Lenders,
each Borrower and each Subsidiary
(A) has all Governmental Approvals, including permits
relating to federal, state and local Environmental Laws,
ordinances and regulations, required by any Applicable Law
for it to conduct its business, each of which is in full
force and effect, is final and not subject to review on
appeal and is not the subject of any pending or, to
the knowledge of any Borrower, threatened attack by
direct or collateral proceeding, and
(B) to the best of the knowledge of the Borrowers, is in
compliance with each Governmental Approval applicable to it
and in compliance with all other Applicable Laws relating to
it, including, without being limited to, all Environmental
Laws and all occupational health and safety laws applicable
to such Borrower, any Subsidiary or their respective
properties,
except for instances of noncompliance which would not, singly or
in the aggregate, cause a Default or Event of Default or have a
Materially Adverse Effect on the Borrowers taken as a whole and
in respect of which reserves in respect of such Borrower's or
such Subsidiary's reasonably anticipated liability therefor
have been established on the books of the appropriate Borrower or
Subsidiary, as applicable.
B) Without limiting the generality of the above, except as
disclosed in writing to the Lenders and the Agent prior to the
Agreement Date,
(A) the operations of each Borrower and each Subsidiary
comply in all material respects with all material applicable
environmental, health and safety requirements of
Applicable Law; and
(B) no Borrower or Subsidiary has received any notice
or written claim to the effect that it is or may be liable
to any Person as a result of the Release or threatened
Release of a Contaminant into the environment.
C) Each Borrower has notified the Agent and each Lender of the
receipt by it or by any Subsidiary of any written notice of a
material violation of any Environmental Laws or occupational
health and safety laws applicable to such Borrower, any
Subsidiary or any of their respective properties.
<PAGE>
h) Title to Properties. Except as set forth in Schedule 6.1(h),
each Borrower and each Subsidiary has valid and legal title to or
leasehold interest in all personal property, Real Estate and other
assets used in its business.
i) Liens. Except as set forth in Schedule 6.1(i), none of
the properties and assets of any Borrower or any Subsidiary is subject
to any Lien known to or created by any Borrower, except Permitted
Liens. Other than the Financing Statements, no
financing statement under the Uniform Commercial Code of any State
or other instrument evidencing a Lien which names a Borrower or
any Subsidiary as debtor has been filed (and has not been
terminated) in any State or other jurisdiction, and no Borrower or
any Subsidiary has signed any such financing statement or other
instrument or any security agreement authorizing any secured party
thereunder to file any such finan cing statement or instrument,
except to perfect those Liens listed on Schedule 6.1(i).
j) Indebtedness and Guaranties. Schedule 6.1(j) is a complete
and correct listing of all (i) Indebtedness for Money Borrowed,
and (ii) Guaranties of each Borrower and each Subsidiary. Each
Borrower and Subsidiary has performed and is in compliance with all
of the terms of such Indebtedness and Guaranties and all instruments
and agreements relating thereto, and no default or event of default,
or event or condition which with notice or lapse of time or both
would constitute such a default or event of default, exists with
respect to any such Indebtedness or Guaranty.
k) Litigation. Except as set forth on Schedule 6.1(k),
there are no actions, suits or proceedings pending (nor, to the
knowledge of any Borrower, are there any actions, suits or
proceedings threatened, or any reasonable basis therefor) against or
in any other way relating to or affecting a Borrower or a Subsidiary
or any of a Borrower's or any Subsidiary's properties in any court
or before any arbitrator of any kind or before or by any
governmental body, except actions, suits or proceedings of the
character normally incident to the kind of business conducted by
such Borrower or any Subsidiary which, if adversely determined,
would not singly or in the aggregate have a Materially Adverse
Effect on any Borrower, and there are no strikes or walkouts in
progress, pending or contemplated relating to any labor contracts to
which a Borrower or any Subsidiary is a party, relating to any labor
contracts being negotiated, or otherwise.
l) Tax Returns and Payments. Except as set forth on
Schedule 6.1(l), all United States federal, state and local as
well as foreign national, provincial and local and other tax returns
of each Borrower and each Subsidiary required by Applicable Law to
be filed have been duly filed, and all United States federal, state
<PAGE>
and local and foreign national, provincial and local and other
taxes, assessments and other governmental charges or levies upon any
Borrower or any Subsidiary or any Borrower's or any Subsidiary's
property, income, profits and assets which are due and payable have
been paid, except any such nonpayment which is at the time permitted
under Section 9.6. The charges, accruals and reserves on the books
of each Borrower and each Subsidiary in respect of United States
federal, state and local and foreign national, provincial and local
taxes for all fiscal years and portions thereof since the
organization of such Borrower or Subsidiary, as the case may be, are
in the judgment of the Borrowers adequate, and no Borrower knows of
any reason to anticipate any additional assessments for any of such
years which, singly or in the aggregate, might have a Materially
Adverse Effect on any Borrower.
m) Burdensome Provisions. No Borrower nor any Subsidiary
is a party to any indenture, agreement, lease or other
instrument, or subject to any charter or corporate restriction,
Governmental Approval or Applicable Law not disclosed to the
Lenders in writing, compliance with the terms of which might have
a Materially Adverse Effect on any Borrower.
n) Financial Statements.
A) The Borrowers have furnished to the Agent and the
Lenders (A) copies of the audited consolidated balance sheet of
Collins and its Consolidated Subsidiaries as of October 31, 1994
and of the related audited consolidated statements of income and
cash flow for the fiscal year of the Borrowers ended on such date,
and (B) copies of the consolidated unaudited balance sheet of
Collins and its Consolidated Subsidiaries as of January 31, 1995,
and the related unaudited consolidated statements of income and
cash flow for the two-month period then ended, all of which
financial statements were prepared in accordance with GAAP (except
for year end audit adjustments and the absence of notes as to such
unaudited statements) and present fairly and in all material
respects in accordance with GAAP the consolidated financial
position of the Borrowers as of their dates and the consolidated
results of operations of the Borrowers for the periods then ended.
B) Except as disclosed or reflected in such financial
statements, no Borrower has any material liabilities, contingent
or otherwise, and there were no material unrealized or
anticipated losses of any Borrower.
o) Adverse Change. Since the date of the audited financial
statements of the Borrowers referred to in Section 6.1(n)(i);
A) no material adverse change has occurred in the
business, assets, liabilities, financial condition, results of
operations or business prospects of any Borrower, and
B) no event has occurred or failed to occur which has had,
or may have, singly or in the aggregate, a Materially Adverse
Effect on any Borrower.
p) ERISA.
<PAGE>
A) No Borrower nor any Related Company maintains or
contributes to any Benefit Plan other than those listed on
Schedule 6.1(p).
B) The Borrowers and each other Related Company have
fulfilled all obligations under the minimum funding standards of
and are in compliance in all material respects with ERISA, and
with the Code to the extent applicable to them and have not
incurred any liability to the PBGC or a Benefit Plan under Title
IV of ERISA other than a liability to the PBGC for premiums under
Section 4007 of ERISA. The Borrowers have no contingent
liabilities with respect to any post-retirement benefits under a
Benefit Plan, other than liability for continuation coverage
described in Article 6 of Title I of ERISA. No Borrower is a
party to a Multiemployer Plan.
q) Absence of Defaults. No Borrower nor any Subsidiary is
in default under its articles or certificate of incorporation or by-
laws and no event has occurred, which has not been remedied, cured or
waived,
A) which constitutes a Default or an Event of Default, or
B) which constitutes, or which with the passage of time or
giving of notice or both would constitute, a default or event of
default by a Borrower or any Subsidiary under any material
agreement (other than this Agreement) or judgment, decree or
order to which such Borrower or any Subsidiary is a party or by
which such Borrower, any Subsidiary or any of such Borrower's or
Subsidiary's properties may be bound or which would require a
Borrower or any Subsidiary to make any payment under any thereof
prior to the scheduled maturity date therefor, except, in the case
only of any such agreement, for alleged defaults which are being
contested in good faith by appropriate proceedings and with
respect to which reserves in respect of the appropriate Borrower's
or Subsidiary's reasonably anticipated liability have been
established on the books of such Borrower or Subsidiary.
<PAGE>
r) Accuracy and Completeness of Information.
A) All written information, reports and other papers and
data produced by or on behalf of any Borrower and furnished to
the Agent or any Lender were, at the time the same were so
furnished, complete and correct in all material respects, to the
extent necessary to give the recipient a true and accurate
knowledge of the subject matter. No fact is known to any Borrower
which has had, or may in the future have (so far as such
Borrower can foresee), a Materially Adverse Effect upon any
Borrower which has not been set forth in the financial statements
or disclosure delivered prior to the Agreement Date, in each case
referred to in Section 6.1(n), or in such written information,
reports or other papers or data or otherwise disclosed in writing
to the Agent and the Lenders prior to the Agreement Date. No
document furnished or written statement made to the Agent or any
Lender by any Borrower in connection with the negotiation,
preparation or execution of this Agreement or any of the Loan
Documents contains or will contain any untrue statement of a fact
material to the creditworthiness of any Borrower or omits or will
omit to state a material fact necessary in order to make the
statements contained therein not misleading.
B) No Borrower has any reason to believe that any document
furnished or written statement made to the Agent or any Lender by any
Person other than a Borrower in connection with the
negotiation, preparation or execution of this Agreement or any of
the Loan Documents contained any incorrect statement of a material
fact or omitted to state a material fact necessary in order to
make the statements made, in light of the circumstances under
which they were made, not misleading.
s) Solvency. In each case after giving effect to the
Indebtedness represented by the Loans to be incurred and, the
transactions contemplated by this Agreement, each Borrower and
each Subsidiary is solvent, having assets of a fair salable value
which exceeds the amount required to pay its debts as they become
absolute and matured (including contingent, subordinated,
unmatured and unliquidated liabilities), and each Borrower and
each Subsidiary is able to and anticipates that it will be able to
meet its debts as they mature and has adequate capital to conduct
the business in which it is or proposes to be engaged.
<PAGE>
t) Receivables.
A) Status.
(A) Each Receivable reflected in the computations
included in any Borrowing Base Certificate meets the
criteria enumerated in clauses (a) through (t) of the
definition of Eligible Receivables, except as
disclosed in such Borrowing Base Certificate or as
disclosed in a timely manner in a subsequent Borrowing
Base Certificate or otherwise in writing to the Agent.
(B) No Borrower has any knowledge of any fact or
circumstance not disclosed to the Agent in a Borrowing
Base Certificate or otherwise in writing which would
impair the validity or collectibility of any Receivable
of $5,000 or more or of Receivables which (regardless
of the individual amount thereof) aggregate $50,000 or
more.
B) Chief Executive Office. The chief executive office of
each Borrower and the books and records relating to its
Receivables are located at the address or addresses set forth on
Schedule 6.1(t) and the Borrowers have not maintained their chief
executive office or books and records relating to any Receivables
at any other address at any time during the year immediately
preceding the Agreement Date except as disclosed on Schedule
6.1(t).
u) Inventory.
A) Schedule of Inventory. All Inventory included in any
Schedule of Inventory or Borrowing Base Certificate delivered to
the Agent and the Lenders pursuant to Section 8.12 meets the
criteria enumerated in clauses (a) through (h) of the definition
of Eligible Inventory, except as disclosed in such Schedule of
Inventory or Borrowing Base Certificate or in a subsequent
Schedule of Inventory or Borrowing Base Certificate, or as
otherwise specifically disclosed in writing to the Agent.
B) Condition. All Inventory is in good condition, meets
all standards imposed by any governmental agency, or department
or division thereof, having regulatory authority over such goods,
their use or sale, and is currently either usable or salable in
the normal course of a Borrower's business, except to the extent
reserved against in the financial statements referred to in
Section 6.1(n) or delivered pursuant to Article 10 or as disclosed
on a Schedule of Inventory delivered to the Agent pursuant to
Section 8.12(b).
<PAGE>
C) Location. All Inventory is located on the premises set
forth on Schedule 6.1(u) or is Inventory in transit to one of
such locations, except as otherwise disclosed in writing to the
Agent; no Borrower has, in the last year, located such Inventory
at premises other than those set forth on Schedule 6.1(u).
v) Equipment. All Equipment is in good order and repair in all
material respects and is located on the premises set forth on
Schedule 6.1(v) and has not been located at any other location during
the last twelve (12) months.
w) Real Property. No Borrower owns any Real Estate or leases any
Real Estate other than that described on Schedule 6.1(w).
x) Corporate and Fictitious Names. Except as otherwise disclosed
on Schedule 6.1(x), during the five-year period preceding the
Agreement Date, no Borrower nor any predecessor thereof has been
known as or used any corporate or fictitious name other than the
corporate name of such Borrower on the Effective Date.
y) Federal Reserve Regulations. No Borrower nor any of
its Subsidiaries is engaged and none will engage, principally or as
one of its important activities, in the business of extending credit
for the purpose of "purchasing" or "carrying" any "margin stock" (as
each of the quoted terms is defined or used in Regulations G and U
of the Board of Governors of the Federal Reserve System). No part
of the proceeds of any of the Loans will be used for so purchasing
or carrying margin stock or, in any event, for any purpose which
violates, or which would be inconsistent with, the provisions of
Regulation G, T, U or X of such Board of Governors. If requested by
the Agent or any Lender, each Borrower will furnish to the Agent and
the Lenders a statement or statements in conformity with the
requirements of said Regulation G, T, U or X to the foregoing effect.
z) Investment Company Act. No Borrower is an "investment
company" or a company "controlled" by an "investment company" (as each
of the quoted terms is defined or used in the Investment Company Act
of 1940, as amended).
(aa) Employee Relations. Each Borrower and each Subsidiary has a
stable work force in place and is not, except as set forth on
Schedule 6.1(aa), party to any collective bargaining agreement nor
has any labor union been recognized as the representative of a
Borrower's or any Subsidiary's employees, and no Borrower knows of
no pending, threatened or contemplated strikes, work stoppage or
other labor disputes involving any Borrower's or Subsidiary's
employees.
<PAGE>
(bb) Proprietary Rights. Schedule 6.1(bb) sets forth a
correct and complete list of all of the Proprietary Rights.
None of the Proprietary Rights is subject to any licensing
agreement or similar arrangement except as set forth on
Schedule 6.1(bb) or as entered into in the sale or distribution
of a Borrower's Inventory in the ordinary course of business.
To the best of each Borrower's knowledge, none of the
Proprietary Rights infringes on or conflicts with any other
Person's property, and no other Person's property infringes on
or conflicts with the Proprietary Rights. The Proprietary
Rights described on Schedule 6.1(bb) constitute all of the
property of such type necessary to the current and anticipated
future conduct of the Borrowers' businesses.
(cc) Trade Names. All trade names or styles under which a
Borrower sells Inventory or creates Receivables, or to which
instruments in payment of Receivables are made payable, are
listed on Schedule 6.1(cc).
2) Survival of Representations and Warranties, Etc.
All representations and warranties set forth in this Article 6 and
all statements contained in any certificate, finan cial statement,
or other instrument, delivered by or on behalf of a Borrower
pursuant to or in connection with this Agreement or any of the Loan
Documents (including, but not limited to, any such representation,
warranty or statement made in or in connection with any amendment
thereto) shall constitute representations and warranties made under
this Agreement. All representations and warranties made under this
Agreement shall be made or deemed to be made at and as of the
Agreement Date, at and as of the Effective Date and at and as of the
date of each Loan, except that representations and warranties which,
by their terms are applicable only to one such date, shall be deemed
to be made only at and as of such date. All representations and
warranties made or deemed to be made under this Agreement shall
survive and not be waived by the execution and delivery of this
Agreement, any investigation made by or on behalf of the Agent or
any Lender or any borrowing hereunder.
7
SECURITY INTEREST
1) Security Interest.
a) To secure the payment, observance and performance of the Secured
Obligations, each Borrower hereby mortgages, pledges and assigns to
the Agent, for the benefit of itself as Agent and the Lenders, all of
the Collateral and grants to the Agent, for the benefit of itself as
Agent and the Lenders, a continuing security interest in and a
continuing Lien upon, all of the Collateral.
<PAGE>
b) As additional security for all of the Secured Obligations, each
Borrower hereby grants to the Agent, for the benefit of itself as
Agent and the Lenders, a security interest in, and assigns to the
Agent, for the benefit of itself as Agent and the Lenders, all of
such Borrower's right, title and interest in and to, any deposits or
other sums at any time credited by or due from each Lender and each
Affiliate of a Lender to such Borrower, or credited by or due from
any participant of any Lender to such Borrower, with the same rights
therein as if the deposits or other sums were credited by or due
from such Lender. Each Borrower hereby authorizes each Lender and
each Affiliate of such Lender and each participant to pay or deliver
to the Agent, for the account of the Lenders, without any necessity
on the Agent's or any Lender's part to resort to other security or
sources of reimbursement for the Secured Obligations, at any time
during the continuation of any Event of Default or in the event that
the Agent, on behalf of the Lenders, should make demand for payment
hereunder and without further notice to such Borrower (such notice
being expressly waived), any of the aforesaid deposits (general or
special, time or demand, provisional or final) or other sums for
application to any Secured Obligation, irrespective of whether any
demand has been made or whether such Secured Obligation is mature,
and the rights given the Agent, the Lenders, their Affiliates and
participants hereunder are cumulative with such Person's other
rights and remedies, including other rights of set-off. The Agent
will promptly notify the relevant Borrower of its receipt of any
such funds for application to the Secured Obligations, but failure
to do so will not affect the validity or enforceability thereof.
The Agent may give notice of the above grant of a security
interest in and assignment of the aforesaid deposits and other
sums, and authori zation, to, and make any suitable arrangements
with, any Lender, any such Affiliate of any Lender or participant
for effectuation thereof, and each Borrower hereby irrevocably
appoints the Agent as its attorney to collect any and all such
deposits or other sums to the extent any such payment is not made
to the Agent or any Lender by such Lender, Affiliate or
participant.
2) Continued Priority of Security Interest.
a) The Security Interest granted by each Borrower shall at
all times be valid, perfected and enforceable against such
Borrower and all third parties in accordance with the terms of this
Agreement, as security for the Secured Obligations, and the Collateral
shall not at any time be subject to any Liens that are prior to, on a
parity with or junior to the Security Interest, other than Permitted
Liens.
b) Each Borrower shall, at its sole cost and expense, take
all action that may be necessary or desirable, or that the Agent
may reasonably request, so as at all times to maintain the
validity, perfection, enforceability and rank of the Security Interest
in the Collateral in conformity with the requirements of Section
7.2(a), or to enable the Agent and the Lenders to exercise or enforce
their rights hereunder, including, but not limited to:
<PAGE>
A) paying all taxes, assessments and other claims lawfully
levied or assessed on any of the Collateral, except to the extent
that such taxes, assessments and other claims constitute
Permitted Liens,
B) obtaining, after the Agreement Date, landlords' and
mortgagees' releases, subordinations or waivers, and using all
reasonable efforts to obtain mechanics' releases, subordinations
or waivers,
C) delivering to the Agent, for the benefit of the
Lenders, endorsed or accompanied by such instruments of
assignment as the Agent may specify, and stamping or marking, in
such manner as the Agent may specify, any and all chattel paper,
instruments, letters and advices of guaranty and documents
evidencing or forming a part of the Collateral,
D) executing and delivering financing statements, pledges,
designations, hypothecations, notices and assignments in each
case in form and substance satisfactory to the Agent relating to
the creation, validity, perfection, maintenance or continuation
of the Security Interest under the Uniform Commercial Code or
other Applicable Law, and
E) executing and delivering, and causing each depository
institution in which each Borrower maintains deposits of Collateral
or proceeds thereof to execute and deliver, such
Agency Account Agreements, Lockbox Agreements and other
instruments, documents and agreements as the Agent may in its
discretion require to comply with the requirements of Sections
7.2(a) and 8.1(a).
c) Each Borrower shall at its sole cost and expense comply
with the terms and provisions of each Mortgage to which it is
party and take all actions that may be necessary or desirable, or
that the Agent may request, so as at all times to maintain the
validity, perfection, enforceability and rank of the Security
Interest in the Real Estate in conformity with the requirements of
Section 7.2(a) and of the Mortgages or to enable the Agent to
exercise or enforce its rights hereunder and under the Mortgages.
Immediately upon acquiring, after the Effective Date, title to any
Real Estate having a purchase price or market value in excess of
$100,000, the applicable Borrower shall deliver to the Agent a
mortgage substantially in the form of the Mortgage or Mortgages
theretofore entered into by the Borrowers, together with, if
requested by the Required Lenders, a title insurance policy
insuring the Agent's interest in such Real Estate in an amount
equal to not less than the purchase price thereof together with an
environmental review of such Real Estate covering such matters as
the Required Lenders may reasonably request, which review shall be
satisfactory to the Required Lenders.
d) The Agent is hereby authorized to file one or more
financing or continuation statements or amendments thereto without
the signature of or in the name of each Borrower for any purpose
described in Section 7.2(b). The Agent will give the relevant
Borrower notice of the filing of any such statements or
amendments, which notice shall specify the locations where such
statements or amendments were filed. A carbon, photographic,
xerographic or other reproduction of this Agreement or of any of
the Security Documents or of any Financing Statement is sufficient
as a financing statement.
<PAGE>
e) Each Borrower shall mark its books and records as
directed by the Agent and as may be necessary or appropriate to
evidence, protect and perfect the Security Interest and shall
cause its financial statements to reflect the Security Interest.
8)
COLLATERAL COVENANTS
a) Until the Revolving Credit Facility has been terminated and
all the Secured Obligations have been paid in full, unless
the Required Lenders shall otherwise consent in the manner
provided in Section 15.11:
1) Collection of Receivables.
a) Each Borrower will cause all monies, checks, notes,
drafts and other payments relating to or constituting proceeds of
Receivables and of any other Collateral to be forwarded to the
Agent at the Agent's Office on a daily basis for application in
accordance with Section 8.1(b) below. From and after the occurrence
of a Default or Event of Default, at the request of the Required
Lenders, each Borrower will promptly cause all monies, checks, notes,
drafts and other payments relating to or constituting proceeds of
Receivables and of any other Collateral to be forwarded to a Lockbox,
for deposit in an Agency Account in accordance with the procedures
set out in the corresponding Agency Account Agreement. In
particular, each Borrower will in such a case:
A) advise each Account Debtor on trade accounts receivable
to address all remittances with respect to amounts payable on
account thereof to a specified Lockbox,
B) advise each other Account Debtor that makes payment to
such Borrower by wire transfer, automated clearinghouse
transfer or similar means to make payment directly to an
Agency Account, and
C) stamp all invoices relating to trade accounts receivable
with a legend satisfactory to the Agent indicating that
payment is to be made to such Borrower via a specified Lockbox.
<PAGE>
b) Each Borrower and the Agent shall cause all receipts to
be delivered daily and all collected balances in Agency Accounts
to be transmitted daily by wire transfer, depository transfer
check or other means in accordance with the procedures set forth in
the corresponding Agency Account Agreement, to the Agent at the
Agent's Office:
A) for application, on account of the Secured Obligations,
as provided in Sections 2.3(c), 12.2, and 12.3, such credits to
be entered as of the day they are received if they are received
prior to 1:30 p.m. and to be conditioned upon final payment in
cash or solvent credits of the items giving rise to them, and
provided that, notwithstanding the entry of such credits on the
day they are received, interest on the Secured Obligations shall
be calculated as if such credits had been received the Business
Day next succeeding the Business Day on which such credits are
actually received, and
B) with respect to the balance, so long as no Default or
Event of Default has occurred and is continuing, for transfer
by wire transfer or depository transfer check to a Controlled
Disbursement Account.
c) Any monies, checks, notes, drafts or other payments
referred to in subsection (a) of this Section 8.1 which are
received by or on behalf of a Borrower will be held in trust for
the Agent and will be delivered to the Agent or a Clearing Bank,
as promptly as possible, in the exact form received, together
with any necessary endorsements for application by the Agent
directly to the Secured Obligations or, if applicable, for deposit
in the Agency Account maintained with a Clearing Bank and
processing in accordance with the terms of the corresponding
Agency Account Agreement.
2) Verification and Notification. The Agent shall have
the right at any time and from time to time,
a) in the name of the Agent, the Lenders, or a nominee
thereof or in the name of the relevant Borrower, to verify the
validity, amount or any other matter relating to any Receivables by
mail, telephone, telegraph or otherwise,
b) to review, audit and make extracts from all records and
files related to any of the Receivables, and
c) if an Event of Default shall have occurred and be
continuing, to notify the Account Debtors or obligors under any
Receivables of the assignment of such Receivables to the Agent,
<PAGE>
for the benefit of the Lenders, and to direct such Account Debtor
or obligors to make payment of all amounts due or to become due
thereunder directly to the Agent, for the account of the Lenders,
and, upon such notification and at the expense of the Borrowers,
to enforce collection of any such Receivables and to adjust,
settle or compromise the amount or payment thereof, in the same
manner and to the same extent as the Borrowers might have done.
3) Disputes, Returns and Adjustments.
a) In the event any amounts due and owing under any
Receivable for an amount in excess of $250,000 are in dispute
between the Account Debtor and the relevant Borrower, such
Borrower shall provide the Agent with prompt written notice
thereof.
b) Each Borrower shall notify the Agent promptly of all
returns and credits in excess of $50,000 in respect of any
Receivable, which notice shall specify the Receivable affected.
c) Each Borrower may, in the ordinary course of business
unless a Default or an Event of Default has occurred and is
continuing, grant any extension of time for payment of any Receivable
or compromise, compound or settle the same for less than the full
amount thereof, or release wholly or partly any Person liable for the
payment thereof, or allow any credit or discount whatsoever therein;
provided that no such action results in the reduction of more than
$50,000 in the amount payable with respect to any Receivable or of
more than $250,000 with respect to all Receivables of the
Borrowers in any Fiscal Year (in each case, excluding the
allowance of credits or discounts generally available to Account
Debtors in the ordinary course of each Borrower's business and
appropriate adjustments to the accounts of Account Debtors in the
ordinary course of business).
4) Invoices.
a) No Borrower will use any invoices other than invoices
in the form delivered to the Agent prior to the Agreement Date
without giving the Agent 30 days' prior notice of the intended
use of a different form of invoice together with a copy of such
different form.
b) Upon the request of the Agent, each Borrower shall
deliver to the Agent, at such Borrower's expense, copies of
customers' invoices or the equivalent, original shipping and
delivery receipts or other proof of delivery, customers' statements,
customer address lists, the original copy of all documents,
including, without limitation, repayment histories and
present status reports, relating to Receivables and such other
documents and information relating to the Receivables as the Agent
shall specify.
5) Delivery of Instruments. In the event any Receivable is at any
time evidenced by a promissory note, trade acceptance or any
other instrument for the payment of money, the relevant Borrower
will immediately thereafter deliver such instrument to the Agent,
appropriately endorsed to the Agent, for the benefit of the Lenders.
<PAGE>
6) Sales of Inventory. All sales of Inventory will be made
in compliance with all requirements of Applicable Law.
7) Ownership and Defense of Title.
a) Except for Permitted Liens and Limited Chassis Liens, a
Borrower shall at all times be the sole owner or lessee of each
and every item of Collateral and shall not create any Lien on, or
sell, lease, exchange, assign, transfer, pledge, hypothecate,
grant a security interest or security title in or otherwise
dispose of, any of the Collateral or any interest therein, except
for sales of Inventory in the ordinary course of business, for
cash or on open account or on terms of payment ordinarily extended
to its customers, and except for dispositions that are otherwise
expressly permitted under this Agreement. The inclusion of
"proceeds" of the Collateral under the Security Interest shall not
be deemed a consent by the Agent or the Lenders to any other sale
or other disposition of any part or all of the Collateral.
b) Each Borrower shall defend its title or leasehold
interest in and to, and the Security Interest in, the Collateral
against the claims and demands of all Persons.
8) Insurance.
a) The Borrowers shall at all times maintain insurance on
the Inventory and Equipment against loss or damage by fire, theft
(excluding theft by employees), burglary, pilferage, loss in transit
and such other hazards as the Agent shall reasonably specify, in
amounts not to exceed those obtainable at commercially reasonable
rates and under policies issued by insurers acceptable to the Agent
in the exercise of its reasonable judgment. All premiums on such
insurance shall be paid by the Borrowers and copies of the policies
delivered to the Agent. No Borrower will use or permit the
Inventory or Equipment to be used in violation of Applicable Law
or in any manner which might render inapplicable any insurance
coverage.
b) All insurance policies required under Section 8.8(a)
shall name the Agent, for the benefit of the Lenders, as an
additional insured and shall contain loss payable clauses in the
form submitted to the Borrowers by the Agent, or otherwise in form
and substance satisfactory to the Required Lenders, naming the
Agent, for the benefit of the Lenders, as mortgagee and loss payee,
as its interests may appear, and providing that
A) all proceeds thereunder shall be payable to the Agent,
for the benefit of the Lenders,
B) no such insurance shall be affected by any act or
neglect of the insurer or owner of the property described in
such policy, and
<PAGE>
C) such policy and loss payable clauses may be canceled,
amended or terminated only upon at least ten days' prior written
notice given to the Agent.
c) Any proceeds of insurance referred to in this Section
8.8 which are paid to the Agent, for the account of the Lenders,
shall be, at the option of the Required Lenders in their sole
discretion, either (i) applied to replace the damaged or destroyed
property, or (ii) applied to the payment or prepayment of the
Secured Obligations in such manner as the Required Lenders shall
determine, provided that in the event that the proceeds
from any single casualty do not exceed $100,000, then, upon the
written request of the Borrowers' Representative to the Agent,
provided that no Default or Event of Default shall have occurred
and be continuing, such proceeds shall be disbursed by the Agent
to the applicable Borrower or Borrowers pursuant to such
procedures as the Agent shall reasonably establish for application
to the replacement of the damaged or destroyed property.
9) Location of Offices and Collateral.
a) No Borrower will change the location of its chief
executive office or the place where it keeps its books and records
relating to the Collateral or change its name, its identity or
corporate structure without giving the Agent 45 days' prior
written notice thereof.
b) All Inventory, other than Inventory in transit to any
such location, will at all times be kept by each Borrower at the
locations set forth under its name in Schedule 6.1(u), and shall not
be removed therefrom except pursuant to sales of Inventory permitted
under Section 8.7(a) without the prior written consent of the Agent,
which consent shall not be unreasonably withheld if the location to
which such Inventory is to be removed is within the continental
United States and all actions required under Section 7.2(b) have
been taken by the applicable Borrowers.
<PAGE>
c) If any Inventory is in the possession or control of any
of a Borrower's agents or processors, such Borrower shall notify
such agents or processors of the Security Interest (and shall
promptly provide copies of any such notice to the Agent and the
Lenders) and, upon the occurrence of an Event of Default, shall
instruct them (and cause them to acknowledge such instruction) to
hold all such Inventory for the account of the Lenders, subject
to the instructions of the Agent.
10) Records Relating to Collateral.
a) Each Borrower will at all times
A) keep complete and accurate records of Inventory on a
basis consistent with past practices of each Borrower so as to
permit comparison of Inventory records relating to different
time periods, itemizing and describing the kind, type and
quantity of Inventory and such Borrower's cost therefor and a
current price list for such Inventory, and
B) keep complete and accurate records of all other
Collateral.
b) Each Borrower will prepare a physical listing of all
Inventory, wherever located, at least annually.
11) Inspection. The Agent and each Lender (by any of their
officers, employees or agents) shall have the right, to the extent
that the exercise of such right shall be within the control of a
Borrower, at any time or times to
a) visit the properties of such Borrower and its Subsidiaries,
inspect the Collateral and the other assets of such
Borrower and its Subsidiaries and inspect and make extracts from
the books and records of such Borrower and its Subsidiaries,
including but not limited to management letters prepared by
independent accountants, all during customary business hours at
such premises;
b) discuss such Borrower's and its Subsidiaries' business,
assets, liabilities, financial condition, results of operations
and business prospects, insofar as the same are reasonably
related to the rights of the Agent or the Lenders hereunder or
under any of the Loan Documents, with such Borrower's and its
Subsidiaries' (i) principal officers, (ii) independent
accountants, and (iii) any other Person (except that any such
discussion with any third parties shall be conducted only in
accordance with the Agent's or such Lender's standard operating
procedures relating to the maintenance of the confidentiality of
confidential information of borrowers);
<PAGE>
c) verify the amount, quantity, value and condition of, or
any other matter relating to, any of the Collateral (other than
Receivables) and in this connection to review, audit and make
extracts from all records and files related to any of the
Collateral.
Each Borrower will deliver to the Agent, for the benefit of the
Lenders, any instrument necessary for it to obtain records from
any service bureau maintaining records on behalf of such
Borrower.
12) Information and Reports.
a) Schedule of Receivables. The Borrowers shall deliver
to the Agent on or before the Effective Date and not later than
the 20th day of each calendar month thereafter a Schedule of
Receivables which
A) shall be as of the last Business Day of the immediately
preceding month,
B) shall be reconciled to the Borrowing Base Certificate as
of such last Business Day, and
C) shall set forth a detailed aged trial balance of all its
then existing Receivables, specifying the names, addresses
and balance due for each Account Debtor obligated on a Receivable
so listed.
b) Schedule of Inventory. The Borrowers shall deliver to
the Agent on or before the Effective Date and not later than the
third day of each calendar week thereafter a Schedule of
Inventory as of the last Business Day of the immediately
preceding calendar week, itemizing and describing the kind, type
and quantity of Inventory, the relevant Borrower's cost thereof
and the location thereof, provided, that raw material need not be
included in such Schedule more often than monthly.
c) Chassis Status Report. The Borrowers shall cooperate
with the Trustee and shall assure that the Trustee is able to
provide to the Agent, in accordance with the Trust Agreement, on
or before the Effective Date and not later than the third day of
each calendar week thereafter a report, accompanied by copies of
the underlying documents to the extent requested by the Agent, of
all manufacturers' certificates or statements of origin and other
title documents relating to motor vehicle chassis and motor
vehicles held by such Trustee as of the close of business on the
last Business Day of the immediately preceding calendar week.
d) Borrowing Base Certificate. The Borrowers shall
deliver to the Agent on and as of the Effective Date and on the
third day of each calendar week prepared as of the close of business
on the last Business Day of the immediately preceding calendar week,
<PAGE>
(i) a Borrowing Base Certificate for each Borrower and (ii) a
consolidated Borrowing Base Certificate for all Borrowers.
e) Notice of Diminution of Value. Each Borrower shall
give prompt notice to the Agent of any matter or event which has
resulted in, or may result in, the diminution in excess of $150,000
in the value of any of its Collateral, except for any such
diminution in the value of any Receivables or Inventory in the
ordinary course of business which has been appropriately reserved
against, as reflected in financial statements previously delivered
to the Agent and the Lenders pursuant to Article 10.
f) Additional Information. The Agent may in its
discretion from time to time request that the Borrowers deliver the
schedules and certificates described in Sections 8.12(a), (b), (c)
and (d) more or less often and on different schedules than
specified in such Sections and the Borrowers will comply with such
requests. The Borrowers will also furnish to the Agent and each
Lender such other information with respect to the Collateral as the
Agent or such Lender may from time to time reasonably request.
13) Power of Attorney. Each Borrower hereby appoints the Agent
as its attorney, with power
a) to endorse the name of such Borrower on any checks,
notes, acceptances, money orders, drafts or other forms of payment
or security that may come into the Agent's or any Lender's
possession, and
b) to sign the name of such Borrower on any invoice or
bill of lading relating to any Receivable, Inventory or other
Collateral, on any drafts against customers related to letters of
credit, on schedules and assignments of Receivables furnished to
the Agent or any Lender by such Borrower, on notices of assignment,
Financing Statements and other public records relating to the
perfection or priority of the Security Interest, and verifications
of account and notices to or from customers.
14) Assignment of Claims Act. Upon the request of the Agent, a
Borrower shall execute any documents or instruments and shall take
such steps or actions reasonably required by the Agent so that all
monies due or to become due under any contract with the United States
of America, the District of Columbia or any state, county,
municipality or other domestic or foreign governmental entity, or
any department, agency or instrumentality thereof, will be assigned
to the Agent, for the benefit of itself and the Lenders, and
notice given thereof in accordance with the requirements of the
Assignment of Claims Act of 1940, as amended, or any other
laws, rules or regulations relating to the assignment of any
such contract and monies due or to become due to any Borrower.
15) Equipment. The Borrowers shall keep and maintain the Equipment
in good operating condition and repair. The Borrowers shall not permit
<PAGE>
any of the Equipment to become a fixture to any Real Estate unless
subordination agreements or waivers satisfactory to the Agent are
obtained from any owner or mortgagee of such Real Estate. Immediately on
demand therefor by the Agent, the Borrowers shall deliver to the Agent
any and all evidence of ownership of any of the Equipment. If
any Equipment is subject to a certificate of title at any time,
the Borrowers shall deliver such certificate of title to the
Agent, together with such documents as are necessary to cause
the Security Interest to be noted thereon. None of the
Equipment shall be sold, transferred, leased or otherwise
disposed of without the prior written consent of the Agent, except
for (a) sales or dispositions of obsolete Equipment, and (b) sales or
dispositions of Equipment that is contemporaneously replaced
with Equipment of comparable value and utility; provided,
however, that the Borrowers shall not sell or dispose of any
Equipment specifically financed by the Lenders unless the
Borrowers repay the outstanding balance of the extension of
credit relating to such Equipment.
9
AFFIRMATIVE COVENANTS
The Borrowers jointly and severally covenant and agree
that the Borrowers will duly and punctually pay the principal
of, and interest on, the Notes and all other Secured
Obligations in accordance with the terms of the Loan Documents
and that until the Revolving Credit Facility has been
terminated and all the Secured Obligations have been paid in
full, unless the Required Lenders shall otherwise consent in
the manner provided for in Section 15.11, each Borrower will,
and will cause each Subsidiary to:
1) Preservation of Corporate Existence and Similar Matters.
Preserve and maintain its corporate existence, rights, franchises,
licenses and privileges in the jurisdiction of its incorporation and
qualify and remain qualified as a foreign corporation and authorized
to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such
qualification or authorization.
2) Compliance with Applicable Law. Comply in all material
respects with all Applicable Law relating to such Borrower or such
Subsidiary.
3) Maintenance of Property. In addition to, and not in derogation
of, any requirements contained elsewhere in the Loan Documents,
a) protect and preserve all properties material to its
business, including copyrights, patents, trade names and trade
marks, and maintain in good repair, working order and condition in
all material respects, with reasonable allowance for wear and tear,
all tangible properties, and
<PAGE>
b) from time to time make or cause to be made all needed
and appropriate repairs, renewals, replacements and additions to
such properties necessary for the conduct of its business, so
that the business carried on in connection therewith may
be properly and advantageously conducted at all times.
4) Conduct of Business. At all times carry on its business in an
efficient manner and engage only the business applicable to it
described in Section 6.1(f).
5) Insurance. Maintain, in addition to the coverage required by
Section 8.8 and the Security Documents, insurance with responsible
insurance companies against such risks and in such amounts as is
customarily maintained by similar businesses or as may be required
by Applicable Law, and from time to time deliver to the Agent or any
Lender upon its request, a detailed list of the insurance then in
effect, stating the names of the insurance companies, the amounts and
rates of the insurance, the dates of the expiration thereof and
the properties and risks covered thereby.
6) Payment of Taxes and Claims. Pay or discharge when due
a) all taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits or upon any
properties belonging to it, except that real property ad valorem
taxes shall be deemed to have been so paid or discharged if the
same are paid before they become delinquent, and
b) all lawful claims of materialmen, mechanics, carriers,
warehousemen and landlords for labor, materials, supplies and rentals
which, if unpaid, might become a Lien on any properties
of a Borrower;
except that this Section 9.6 shall not require the payment or
discharge of any such tax, assessment, charge, levy or claim
which is being contested in good faith by appropriate
proceedings and for which reserves in respect of the reasonably
anticipated liability therefor, if any, have been appropriately
established to the extent required by GAAP.
7) Accounting Methods and Financial Records.
Maintain a system of accounting, and keep such books, records
and accounts (which shall be true and complete), as may be
required or as may be necessary to permit the preparation of
financial statements in accordance with GAAP.
8) Use of Proceeds.
a) Use the proceeds of
A) the initial Revolving Credit Loans and the Term Loans
to pay the amounts indicated on Schedule 9.8 to the Persons
indicated thereon, and
<PAGE>
B) all Loans made after the Effective Date only for
working capital and general business purposes, including
paying the purchase price of any permitted Acquisition, and
b) not use any part of such proceeds to purchase or, to
carry or reduce or retire or refinance any credit incurred to
purchase or carry, any margin stock (within the meaning of
Regulation G or U of the Board of Governors of the Federal Reserve
System) or, in any event, for any purpose which would involve a
violation of such Regulation G or U or of Regulation T or X of
such Board of Governors, or for any purpose prohibited by law or
by the terms and conditions of this Agreement.
9) Hazardous Waste and Substances; Environmental Requirements.
a) In addition to, and not in derogation of, the requirements
of Section 9.2 and of the Security Documents, comply with all
Environmental Laws and all Applicable Laws relating to occupational
health and safety (except for instances of noncompliance that are
being contested in good faith by appropriate proceedings if
reserves in respect of such Borrower's or such Subsidiary's
reasonably anticipated liability therefor have been appropriately
established), promptly notify the Agent of its receipt of any
written notice of a material violation of any such Environmental
Laws or other such Applicable Laws, and indemnify and hold the
Agent and the Lenders harmless from all loss, cost, damage,
liability, claim and expense incurred by or imposed upon the
Agent or any Lender on account of any Borrower's failure to
perform its obligations under this Section 9.9.
b) Whenever such Borrower gives notice to the Agent
pursuant to this Section 9.9 with respect to a matter that
reasonably could be expected to result in liability to a Borrower
in excess of $50,000 in the aggregate, such Borrower shall, at the
Agent's request and such Borrower's expense (i) cause an
independent environmental engineer acceptable to the Agent to
conduct an assessment, including tests where necessary, of the
site where the noncompliance or alleged noncompliance with
Environmental Laws has occurred and prepare and deliver to the
Agent a report setting forth the results of such assessment, a
proposed plan to bring such Borrower into compliance with such
Environmental Laws (if such assessment indicates noncompliance)
and an estimate of the costs thereof, and (ii) provide to the
Agent a supplemental report of such engineer whenever the scope of
the noncompliance, or the response thereto or the estimated costs
thereof, shall materially adversely change.
10) MAPICS Implementation. Install at WCI's Orlando, Florida
facility the MAPICS costing system so as to be fully operational on
or before June 30, 1995.
<PAGE>
11) Second Mortgages. Not later than the 60th day following the
Effective Date, provide the Agent and the Lenders, in each case
in form and substance reasonably satisfactory to each of them,
(i) Mortgages encumbering the Second Mortgage Real Estate,
(ii) landlord's consents executed by the landlord of each parcel
of Second Mortgage Real Estate, and (iii) title insurance, surveys
and other items with respect to each parcel of Second Mortgage Real
Estate as required under Sections 5.1(9) and (10).
10)
INFORMATION
Until the Revolving Credit Facility has been terminated and
all the Secured Obligations have been paid in full, unless the
Required Lenders shall otherwise consent in the manner set forth
in Section 15.11, the Borrowers will furnish to the Agent and to
each Lender at the offices then designated for such notices
pursuant to Section 15.1:
1) Financial Statements.
a) Audited Year-End Statements. As soon as available, but
in any event within 90 days after the end of each Fiscal Year,
copies of the consolidating and consolidated balance sheets of
Collins and its Consolidated Subsidiaries as at the end of
such Fiscal Year and the related statements of consolidated
income, shareholders' equity and cash flows for such Fiscal Year,
in each case setting forth in comparative form the figures for
the previous Fiscal Year, reported on, as to such consolidated
statements, without qualification as to the scope of the audit or
the status of any Borrower as a "going concern," by independent
certified public accountants of nationally recognized standing; and
b) Monthly Financial Statements. As soon as available
after the end of each calendar month, but in any event within 30
days after the end of each calendar month, unless such month is the
last month of a fiscal quarter of the Borrowers, and then within 45
days after the end of such calendar month, copies of the unaudited
consolidated balance sheet of Collins and its Consolidated
Subsidiaries as at the end of such month and the related unaudited
consolidated statements of income and cash flows for Collins and
its Consolidated Subsidiaries for such month and for the portion of
the Fiscal Year through such month, certified by the Financial
Officer as presenting fairly the financial condition and results
of operations of Collins and its Consolidated Subsidiaries
(subject to normal year-end audit adjustments);
all such financial statements to be complete and correct in all
material respects and prepared in accordance with GAAP (except, with
respect to interim financial statements, for the omission of notes and
for the effect of normal year-end audit adjustments) applied
consistently throughout the periods reflected therein.
<PAGE>
2) Accountants' Certificate. Together with the financial
statements referred to in Section 10.1(a), the Borrowers shall
deliver a certificate of such accountants addressed to the Borrowers,
which restricts the use of the certificate to the Borrowers and the
Agent and the Lenders as parties to this Agreement, together with an
attachment setting forth the calculations required by Sections 11.1,
11.2, 11.6, 11.11 and 11.12, as at the date of such financial
statements, prepared by Collins, stating that in connection with
their audit, nothing came to their attention that caused them to
believe that (i) the Borrowers were not in compliance with any
of the terms, covenants, provisions or conditions of Articles
10 and 11 (except Sections 10.5(a), 10.5(c), 10.5(d),
10.6(d), 11.3 and 11.14), or (ii) that the information contained in
the attachment is not fairly stated in all material respects, in
relation to the financial statements from which it has been derived.
3) Officer's Certificate. At the time that the Borrowers furnish
the financial statements pursuant to Section 10.1(b) for any month
that is the last month of a fiscal quarter of the Borrowers, the
Borrowers shall also furnish a Quarterly Compliance Certificate of
the Financial Officer
a) setting forth as at the end of such fiscal quarter or
Fiscal Year, as the case may be, the calculations required to
establish whether or not the Borrowers were in compliance with
the requirements of Sections 11.1, 11.2, 11.6, 11.11 and 11.12,
as at the end of each respective period,
b) stating that the information on the schedules to this
Agreement are complete and accurate as of the date of such
certificate or, if such is not the case, attaching to such
certificate updated schedules, and
c) stating that, based on a reasonably diligent
examination, no Default or Event of Default exists, or, if such
is not the case, specifying such Default or Event of Default and
its nature, when it occurred, whether it is continuing and the
steps being taken by the Borrowers with respect to such Default
or Event of Default.
4) Copies of Other Reports.
a) Promptly upon receipt thereof, copies of all reports,
if any, submitted to a Borrower or its Board of Directors by its
independent public accountants, including, without limitation,
any management report.
b) As soon as practicable, copies of all financial
statements and reports that Collins shall send to its shareholders
generally and of all registration statements and all regular or
periodic reports which Collins or any other Borrower shall file
with the Securities and Exchange Commission or any successor
commission.
<PAGE>
c) From time to time and as soon as reasonably practicable
following each request, such forecasts, data, certificates,
reports, statements, opinions of counsel, documents or further
information regarding the business, assets, liabilities, financial
condition, results of operations or business prospects of the
Borrowers, the Guarantors or any Subsidiary as the Agent or any
Lender may reasonably request and that the Borrowers have or
(except in the case of legal opinions relating to the perfection
or priority of the Security Interest) without unreasonable expense
can obtain; provided, however, that the Lenders shall, to the
extent reasonably practicable, coordinate examinations of the
Borrowers' records by their respective internal auditors. The
rights of the Agent and the Lenders under this Section 10.4 are in
addition to and not in derogation of their rights under any
other provision of this Agreement or of any other Loan Document.
d) If requested by the Agent or any Lender, the Borrowers
will furnish to the Agent and the Lenders statements in
conformity with the requirements of Federal Reserve Form G-3 or U1
referred to in Regulation G and U, respectively, of the Board
of Governors of the Federal Reserve System.
5) Notice of Litigation and Other Matters. Prompt notice of:
a) the commencement, to the extent any Borrower is aware
of the same, of all proceedings and investigations by or before
any governmental or nongovernmental body and all actions and
proceedings in any court or before any arbitrator against or in any
other way relating to or affecting any Borrower, any Subsidiary or
any Borrower's or Subsidiary's properties, assets or businesses,
which is reasonably likely to, singly or in the aggregate, result
in the occurrence of a Default or an Event of Default, or have a
Materially Adverse Effect on the Borrowers, taken as a whole,
b) any amendment of the articles of incorporation or by-laws of
a Borrower or any of Subsidiary,
c) any change in the business, assets, liabilities,
financial condition, results of operations or business prospects of
any Borrower or any Subsidiary which has had or may have, singly or
in the aggregate, a Materially Adverse Effect on the Borrowers taken
as a whole and any change in the executive officers of any Borrower,
and
d) any Default or Event of Default or any event which
constitutes or which with the passage of time or giving of notice or
both would constitute a default or event of default by a Borrower or
any Subsidiary under any material agreement (other than this
Agreement) to which any Borrower or any Subsidiary is a party or by
which any Borrower, any Subsidiary or any Borrower's or Subsidiary's
properties may be bound and is reasonably likely to result in an
event described in subsection (c) hereof.
<PAGE>
6) ERISA. Promptly notify the Agent of
a) the occurrence of any Reportable Event with respect to
a Benefit Plan, other than any such event as to which the PBGC
has waived notice by regulation,
b) receipt of any notice from the PBGC of its intention to
seek termination of any Benefit Plan or appointment of a trustee
therefor,
c) any Borrower's intention to terminate or withdraw from
any Benefit Plan, and
d) the occurrence of any event with respect to any Benefit
Plan which could result in the incurrence by any Borrower of any
material liability, fine or penalty, or any material increase in
the contingent liability of any Borrower with respect to any post
retirement Benefit Plan benefit.
7) Accuracy of Information. All written information, reports,
statements and other papers and data furnished to the Agent or
any Lender by or on behalf of any Borrower, whether pursuant to
this Article 10 or any other provision of this Agreement or of
any other Loan Document, shall be, at the time the same is so
furnished, to the best knowledge of the Borrowers, complete and
correct in all material respects to the extent necessary to give
the Agent and the Lenders true and accurate knowledge of the
subject matter thereof.
8) Revisions or Updates to Schedules. Should any of the
information or disclosures provided on any of the
Schedules originally attached hereto become outdated or
incorrect in any material respect, the Borrowers shall deliver
to the Agent and the Lenders as part of the officer's
certificate required pursuant to Section 10.3 such revisions or
updates to such Schedule(s) as may be necessary or appropriate
to update or correct such Schedule(s), provided that no such
revisions or updates to any Schedule(s) shall be deemed to have
amended, modified or superseded such Schedule(s) as originally
attached hereto, or to have cured any breach of warranty or
representation resulting from the inaccuracy or incompleteness
of any such Schedule(s), unless and until the Required Lenders
in their sole and absolute discretion, shall have accepted in
writing such revisions or updates to such Schedule(s).
11)
NEGATIVE COVENANTS
Until the Revolving Credit Facility has been terminated and
all the Secured Obligations have been paid in full, unless the
Required Lenders shall otherwise consent in the manner set forth in
Section 15.11, the Borrowers will not directly or indirectly and, in
the case of Sections 11.2 through 11.16, will not permit their
respective Subsidiaries to:
<PAGE>
1) Financial Ratios. Permit:
a) Minimum Consolidated Tangible Net Worth. Consolidated
Tangible Net Worth of Collins and its Consolidated Subsidiaries
to be less than (i) $7,750,000 at any time from and after the
Effective Date to and including October 30, 1995, (ii) $8,250,000
at any time from and after October 31, 1995 to and including
October 30, 1996, (iii) $8,750,000 at any time from and after
October 31, 1996 to and including October 30, 1997, (iv)
$9,250,000 at any time from and after October 31, 1997 to and
including October 30, 1998, and (v) $9,750,000 at any time from
and after October 31, 1998.
b) Leverage Ratio. The Leverage Ratio at any time during
any period set forth below to be greater than the ratio set forth
opposite such period:
Period Ratio
Effective Date through 5.0 to 1.0
October 30, 1995
October 31, 1995 through 4.5 to 1.0
October 30, 1996
October 31, 1996 and 4.0 to 1.0
thereafter
c) Minimum Current Ratio. The ratio of the consolidated
Current Assets of Collins and its Consolidated Subsidiaries to
consolidated Current Liabilities of Collins and its Consolidated
Subsidiaries at any time from and after the Effective Date to be
less than 1.2 to 1.
d) Fixed Charge Coverage Ratio. As of the end of any
calendar month, the Fixed Charge Coverage Ratio for the twelvemonth
period ending with such month to be less than 1.20 to 1 during the
period from the Effective Date through October 31, 1995 and to be
less than 1.25 to 1.0 thereafter.
e) Minimum Availability. The Availability at any time
from and after the Effective Date to be less than $500,000.
2) Indebtedness for Money Borrowed. Create, assume, or otherwise
become or remain obligated in respect of, or permit or suffer to exist
or to be created, assumed or incurred or to be outstanding any
Indebtedness for Money Borrowed, except that this Section 11.2 shall
not apply to:
<PAGE>
a) Indebtedness of the Borrowers for Money Borrowed
represented by the Loans and the Notes,
b) Indebtedness for Money Borrowed reflected on Schedule
6.1(j), excluding any such Indebtedness that is to be paid in
full on the Effective Date,
c) Permitted Purchase Money Indebtedness, and
d) other Indebtedness for Money Borrowed not to exceed
$250,000 in outstanding principal amount as to all Borrowers and
their Subsidiaries.
3) Guaranties. Become or remain liable with respect to any
Guaranty of any obligation of any other Person, other than
(i) Indebtedness of other Borrowers or Subsidiaries permitted
under this Agreement, and (ii) Guaranties of residual values of
Inventory sold to third party lessors for lease to customers of a
Borrower.
4) Investments. After the Agreement Date, acquire or maintain
any Investment other than Permitted Investments.
5) Acquisitions. Acquire any Business Unit engaged in any
business other than those described on Schedule 6.1(f), or acquire
any other Business Unit except by the purchase of assets thereof in
an aggregate amount not to exceed $500,000 at any time for all
Borrowers.
6) Capital Expenditures. Make or incur any Capital Expenditures
in excess of $2,000,000 in the aggregate for all Borrowers in any
Fiscal Year; provided, however, that amounts paid or incurred by
the Borrower in connection with the foreclosure of the a certain
note receivable made by Michael Sollars and the acquisition of any
real property securing such note receivable, shall not constitute
Capital Expenditures for purposes of this Section 11.6.
7) Restricted Payments/Purchases, Etc. Declare or make any
Restricted Payment or Restricted Purchase, except that, after the
repayment in full of Term Loan B, Collins may pay dividends on its
common stock during any Fiscal Year, so long as 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, and except that, subject to the prior written approval
of the Lenders, Collins may redeem or retire or otherwise prepay its
Subordinated Indebtedness.
8) Merger, Consolidation and Sale of Assets. Merge or consolidate
with any other Person or sell, lease or transfer or otherwise
dispose of all or a substantial portion of its assets to any Person
other than sales of Inventory in the ordinary course of business.
<PAGE>
9) Transactions with Affiliates. Effect any transaction with any
Affiliate on a basis less favorable to such Borrower or Subsidiary
than would be the case if such transaction had been effected with a
Person not an Affiliate.
10) Liens. Create, assume or permit or suffer to exist or to be
created or assumed any Lien on any of the Collateral or its other
assets, other than Permitted Liens and Limited Chassis Liens.
11) Capitalized Lease Obligations. Without the consent of the
Required Lenders, which consent shall not be unreasonably withheld,
incur or permit to exist any Capitalized Lease Obligations if such
Capitalized Lease Obligation when added to existing Capitalized
Lease Obligations and Permitted Purchase Money Indebtedness of the
Borrowers would exceed $250,000 in the aggregate.
12) Operating Leases. Without the consent of the Required
Lenders, enter into any Operating Lease if the aggregate annual
rental payable under all Operating Leases of the Borrowers would
exceed $500,000 at any time after the Effective Date.
13) Real Estate Leases. After the Effective Date, enter into
any real property 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 $100,000, without the prior
written consent of the Agent, on behalf of the Lenders, which
consent shall not be unreasonably withheld.
14) Plans. Permit any condition to exist in connection with
any Plan which might constitute grounds for the PBGC to institute
proceedings to have such Plan terminated or a trustee appointed
to administer such Plan, and any other condition, event or
transaction with respect to any Plan which could result in the
incurrence by any Borrower of any material liability, fine or penalty.
<PAGE>
15) Sales and Leasebacks. Enter into any arrangement with any
Person providing for a Borrower's leasing from such Person any real
or personal property which has been or is to be sold or transferred,
directly or indirectly, by such Borrower to such Person.
12)
DEFAULT
1) Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment or order of any court or any
order, rule or regulation of any governmental or nongovernmental body:
a) Default in Payment. The Borrowers shall default in the
payment, as and when due, of principal of or interest on any
Secured Obligations (whether at maturity, by reason of
acceleration or otherwise).
b) Misrepresentation. Any representation or warranty made
or deemed to be made by any Borrower under this Agreement or
any Loan Document, or any amendment hereto or thereto, shall
at any time prove to have been incorrect or misleading in
any material respect when made.
c) Default in Performance. Any Borrower shall default in
the performance or observance of any term, covenant, condition or
agreement to be performed by it, contained in
A) Articles 7, 8, 10 or 11, Sections 9.1 (insofar as it
requires the preservation of the corporate existence of such
Borrower), or 9.8, and the Agent shall have delivered to the
Borrowers written notice of such default, or
B) this Agreement (other than as specifically provided for
otherwise in this Section 12.1) and such default shall continue
for a period of 30 days after written notice thereof has been
given to the Borrowers by the Agent.
d) Indebtedness Cross-Default.
A) Any Borrower or any Subsidiary shall fail to pay when
due and payable the principal of or interest on any
Indebtedness for Money Borrowed (other than the Loans) in
an amount in excess of $300,000, or
B) the maturity of any such Indebtedness shall have
(A) been accelerated in accordance with the provisions of any
<PAGE>
indenture, contract or instrument providing for the creation
of or concerning such Indebtedness, or (B) been required to
be prepaid prior to the stated maturity thereof, or
C) any event shall have occurred and be continuing which
would permit any holder or holders of such Indebtedness,
any trustee or agent acting on behalf of such holder or
holders or any other Person so to accelerate such maturity,
and the Borrowers shall have failed to cure such default
prior to the expiration of any applicable cure or grace period.
e) Other Cross-Defaults. Any Borrower or any of its
Subsidiaries shall default in the payment when due, or in the
performance or observance, of any obligation or condition of any
agreement, contract or lease (other than this Agreement, the
Security Documents or any such agreement, contract or lease
relating to Indebtedness for Money Borrowed) if the existence of
any such defaults, singly or in the aggregate, could in the
reasonable judgment of the Agent have a Materially Adverse Effect
on any Borrower.
f) Voluntary Bankruptcy Proceeding. Any Borrower or any
Subsidiary shall
A) commence a voluntary case under the federal bankruptcy
laws (as now or hereafter in effect),
B) file a petition seeking to take advantage of any other
laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of
debts,
C) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an
involuntary case under such bankruptcy laws or other laws,
D) apply for or consent to, or fail to contest in a timely
and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, or liquidator
of itself or of a substantial part of its property, domestic
or foreign,
E) admit in writing its inability to pay its debts as they
become due,
F) make a general assignment for the benefit of creditors,
or
G) take any corporate action for the purpose of authorizing
any of the foregoing.
<PAGE>
g) Involuntary Bankruptcy Proceeding. A case or other proceeding
shall be commenced against any Borrower or any Subsidiary in any
court of competent jurisdiction seeking
A) relief under the federal bankruptcy laws (as now or
hereafter in effect) or under any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts, or
B) the appointment of a trustee, receiver, custodian,
liquidator or the like of such Borrower or Subsidiary or of
all or any substantial part of the assets, domestic or
foreign, of such Borrower or Subsidiary,
and such case or proceeding shall continue undismissed or unstayed
for a period of 60 consecutive calendar days, or an order granting
the relief requested in such case or proceeding against such Borrower
or Subsidiary (including, but not limited to, an order for relief
under such federal bankruptcy laws) shall be entered.
h) Failure of Agreements. Any Loan Document, after
delivery thereof hereunder, shall for any reason (except to the
extent permitted by the terms thereof) cease to create a valid
and perfected first priority Lien (except for Permitted Liens)
on, or Security Interest in, any of the Collateral or Guarantor
Collateral purported to be covered thereby (other than by reason
of any act or omission of the Agent or any Lender).
i) Judgment. Final, unappealable judgments or orders for
the payment of money not covered by insurance and in an aggregate
amount greater than $300,000 for all Borrowers shall be entered
against any Borrower by any court and such judgment or order
shall continue undischarged or unstayed for 10 days.
j) Attachment. A warrant or writ of attachment or
execution or similar process which exceeds $50,000 in value shall
be issued against any property of any Borrower and such warrant or
process shall continue undischarged or unstayed for 10 days.
k) Loan Documents. Any event of default under any other
Loan Document shall occur or any Borrower shall default in the
performance or observance of any term, covenant, condition or
agreement contained in, or the payment of any other sum covenanted
to be paid by such Borrower under, any Loan Document; provided,
however that no event of default under any Loan Document shall be
deemed to have occurred until any notice required under such Loan
Document has been given and any grace period granted under such
Loan Document has expired.
l) ERISA. The Borrowers shall fail to pay when due an
amount or amounts aggregating in excess of $300,000 which they
<PAGE>
shall have become liable to pay to the PBGC or to a Benefit Plan
under Title IV of ERISA; or notice of intent to terminate a Benefit
Plan or Benefit Plans having aggregate unfunded vested liabilities
in excess of $300,000 shall be filed under Title IV of ERISA by the
Borrowers, or any plan administrator; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate any Benefit Plan
or to cause a trustee to be appointed to administer any Benefit
Plan or to enforce Section 515 or 4219(c)(5) of ERISA and such
proceeding shall not have been dismissed within thirty (3) days
thereafter; or a condition shall exist by reason of which the PBGC
would be entitled to obtain a decree adjudicating that any Benefit
Plan must be terminated.
m) Management. Donald L. Collins, Jr. shall cease to be
actively involved in the management and operations of the Borrowers
in substantially the same capacity in which he served on the
Agreement Date and his successor(s) or replacement(s) in such
capacity are not executives experienced in managing operations
such as those of the Borrowers, with the demonstrated ability to
manage such operations successfully, who are otherwise acceptable
to the Required Lenders in the exercise of their reasonable
judgment.
2) Remedies.
a) Automatic Acceleration and Termination of Facilities.
Upon the occurrence of an Event of Default specified in
Section 12.1(f) or (g), (i) the principal of and the interest on
the Loans and Notes at the time outstanding, and all other
amounts owed to the Agent or the Lenders under this Agreement or
any of the Loan Documents and all other Secured Obligations, shall
thereupon become due and payable without presentment, demand,
protest, or other notice of any kind, all of which are expressly
waived, anything in this Agreement or any of the Loan Documents to
the contrary notwithstanding, and (ii) the Revolving Credit
Facility and the right of the Borrowers to request borrowings under
this Agreement shall immediately terminate.
b) Other Remedies. If any Event of Default shall have
occurred, and during the continuance of any such Event of Default,
the Agent may, and at the direction of the Required Lenders in
their sole and absolute discretion shall, do any of the following:
A) declare the principal of and interest on the Loans and
any Notes at the time outstanding, and all other amounts
owed to the Agent or the Lenders under this Agreement or
any of the Loan Documents and all other Secured Obligations,
to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or the
Loan Documents to the contrary notwithstanding;
B) terminate the Revolving Credit Facility and any other
right of the Borrowers to request borrowings hereunder;
<PAGE>
C) notify, or request the Borrowers to notify, in writing
or otherwise, any Account Debtor or obligor with respect to
any one or more of the Receivables to make payment to the
Agent, for the benefit of the Lenders, or any agent or designee
of the Agent, at such address as may be specified by the Agent
and if, notwithstanding the giving of any notice, any Account
Debtor or other such obligor shall make payments to the
Borrowers, each Borrower shall hold all such payments it
receives in trust for the Agent, for the account of the Lenders,
without commingling the same with other funds or property of,
or held by, such Borrower, and shall deliver the same to the
Agent or any such agent or designee of the Agent immediately
upon receipt by such Borrower in the identical form received,
together with any necessary endorsements;
D) settle or adjust disputes and claims directly with
Account Debtors and other obligors on Receivables for amounts
and on terms which the Agent considers advisable and in all
such cases only the net amounts received by the Agent, for
the account of the Lenders, in payment of such amounts, after
deductions of costs and attorneys' fees, shall constitute
Collateral and no Borrower shall have any further right to
make any such settle ments or adjustments or to accept any
returns of merchandise;
E) enter upon any premises in which Inventory or Equipment
may be located and, without resistance or interference by any
Borrower, take physical possession of any or all thereof and
maintain such possession on such premises or move the same or
any part thereof to such other place or places as the Agent
shall choose, without being liable to the Borrowers on
account of any loss, damage or depreciation that may occur
as a result thereof, so long as the Agent shall act
reasonably and in good faith;
F) require the Borrowers to, and the Borrowers shall,
without charge to the Agent or any Lender, assemble the
Inventory and Equipment and maintain or deliver it into the
possession of the Agent or any agent or representative of
the Agent at such place or places as the Agent may designate
and as are reasonably convenient to both the Agent and the
Borrowers;
G) at the expense of the Borrowers, cause any of the
Inventory to be placed in a public or field warehouse, and the
Agent shall not be liable to the Borrowers on account of any
loss, damage or depreciation that may occur as a result
thereof, so long as the Agent shall act reasonably and in
good faith;
H) without notice, demand or other process, and without
payment of any rent or any other charge, enter any of the
Borrowers' premises and, without breach of the peace, until
the Agent, on behalf of the Lenders, completes the enforcement
<PAGE>
of its rights in the Collateral, take possession of such premises
or place custodians in exclusive control thereof, remain on such
premises and use the same and any of the Borrower's Equipment,
for the purpose of (A) completing any work in process,
preparing any Inventory for disposition and disposing thereof,
and (B) collecting any Receivable, and the Agent for the benefit
of the Lenders is hereby granted a license or sublicense and all
other rights as may be necessary, appropriate or desirable to use
the Proprietary Rights in connection with the foregoing, and
the rights of the Borrowers (or any of them) under all licenses,
sublicenses and franchise agreements shall inure to the Agent
for the benefit of the Lenders (provided, however, that any use
of any federally registered trademarks as to any goods shall be
subject to the control as to the quality of such goods of the
owner of such trademarks and the goodwill of the business
symbolized thereby);
I) exercise any and all of its rights under any and all of
the Security Documents;
J) apply any Collateral or Guarantor Collateral consisting
of cash to the payment of the Secured Obligations in any order
in which the Agent, on behalf of the Lenders, may elect or use
such cash in connection with the exercise of any of its other
rights hereunder or under any of the Security Documents;
K) establish or cause to be established one or more
Lockboxes or other arrangements for the deposit of proceeds of
Receivables, and, in such case, each Borrower shall cause to be
forwarded to the Agent at the Agent's Office, on a daily basis,
copies of all checks and other items of payment and deposit
slips related thereto deposited in such Lockboxes, together with
collection reports in form and substance satisfactory to the
Agent; and
L) exercise all of the rights and remedies of a secured
party under the Uniform Commercial Code and under any other
Applicable Law, including, without limitation, the right,
without notice except as specified below and with or without
taking the possession thereof, to sell the Collateral or any
part thereof in one or more parcels at public or private sale,
at any location chosen by the Agent, for cash, on credit or
for future delivery, and at such price or prices and upon
such other terms as the Agent may deem commercially reasonable.
Each Borrower agrees that, to the extent notice of sale shall
be required by law, at least ten days' notice to such Borrower
of the time and place of any public sale or the time after
which any private sale is to be made shall constitute
reasonable notification, but notice given in any other
reasonable manner or at any other reasonable time shall
constitute reasonable notification. The Agent shall not be
obligated to make any sale of Collateral regardless of
notice of sale having been given. The Agent may adjourn
<PAGE>
any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which
it was so adjourned.
3) Application of Proceeds. All proceeds from each sale of, or
other realization upon, all or any part of the Collateral following
an Event of Default shall be applied or paid over as follows:
a) First: to the payment of all costs and expenses
incurred in connection with such sale or other realization,
including reasonable attorneys' fees,
b) Second: to the payment of the Secured Obligations
(with the Borrowers remaining liable, jointly and severally, for
any deficiency) as the Agent may elect,
c) Third: the balance (if any) of such proceeds shall be
paid to the appropriate Borrower, subject to any duty imposed by
law, or otherwise to whomsoever shall be entitled thereto.
The Borrowers shall remain liable, jointly and severally, and
will pay, on demand, any deficiency remaining in respect of the
Secured Obligations, together with interest thereon at a rate
per annum equal to the highest rate then payable hereunder on
such Secured Obligations, which interest shall constitute part
of the Secured Obligations.
4) Power of Attorney. In addition to the authorizations granted to
the Agent under Section 8.13 or under any other provision of this
Agreement or of any other Loan Document, during the continuance of an
Event of Default, each Borrower hereby irrevocably designates, makes,
constitutes and appoints the Agent (and all Persons designated by the
Agent from time to time) as such Borrower's true and lawful attorney,
and agent in fact, and the Agent, or any agent of the Agent, may,
without notice to such Borrower, and at such time or times as the Agent
or any such agent in its sole discretion may determine, in the name of
such Borrower, the Agent or the Lenders,
A) demand payment of the Receivables,
B) enforce payment of the Receivables by legal proceedings
or otherwise,
C) exercise all of such Borrower's rights and remedies
with respect to the collection of Receivables,
D) settle, adjust, compromise, extend or renew any or all
of the Receivables,
E) settle, adjust or compromise any legal proceedings
brought to collect the Receivables,
<PAGE>
F) discharge and release the Receivables or any of them,
G) prepare, file and sign the name of such Borrower on any
proof of claim in bankruptcy or any similar document against any
Account Debtor,
H) prepare, file and sign the name of such Borrower
on any notice of Lien, assignment or satisfaction of Lien, or
similar document in connection with any of the Collateral,
I) endorse the name of such Borrower upon any chattel
paper, document, instrument, notice, freight bill, bill of lading
or similar document or agreement relating to the Receivables, the
Inventory or any other Collateral,
J) use the stationery of such Borrower and sign the name
of such Borrower to verifications of the Receivables and on any
notice to the Account Debtors,
K) open such Borrower's mail,
L) notify the post office authorities to change the
address for delivery of such Borrower's mail to an address
designated by the Agent, and
M) use the information recorded on or contained in
any data processing equipment and computer hardware and software
relating to the Receivables, Inventory or other Collateral to which
such Borrower has access.
5) Miscellaneous Provisions Concerning Remedies.
a) Rights Cumulative. The rights and remedies of the Agent
and the Lenders under this Agreement, the Notes and each of the
Loan Documents shall be cumulative and not exclusive of any rights
or remedies which it or they would otherwise have. In exercising
such rights and remedies the Agent and the Lenders may be
selective and no failure or delay by the Agent or any Lender
in exercising any right shall operate as a waiver of it, nor
shall any single or partial exercise of any power or right
preclude its other or further exercise or the exercise of any
other power or right.
b) Waiver of Marshalling. Each Borrower hereby waives any
right to require any marshalling of assets and any similar right.
c) Limitation of Liability. Nothing contained in this
Article 12 or elsewhere in this Agreement or in any of the Loan
Documents shall be construed as requiring or obligating the
Agent, any Lender or any agent or designee of the Agent or any
Lender to make any demand, or to make any inquiry as to the nature
or sufficiency of any payment received by it, or to present or
file any claim or notice or take any action, with respect to any
<PAGE>
Receivable or any other Collateral or Guarantor Collateral, or the
monies due or to become due thereunder or in connection therewith,
or to take any steps necessary to preserve any rights against
prior parties, and the Agent, the Lenders and their agents or
designees shall have no liability to the Borrowers for actions
taken pursuant to this Article 12, any other provision of this
Agreement or any of the Loan Documents so long as the Agent or
such Lender shall act reasonably and in good faith.
d) Appointment of Receiver. In any action under this
Article 12, the Agent shall be entitled during the continuance of
an Event of Default to the appointment of a receiver, without
notice of any kind whatsoever, to take possession of all or any
portion of the Collateral and to exercise such power as the court
shall confer upon such receiver.
6) Trademark License. Each Borrower hereby grants to the Agent for
its benefit as Agent and for the benefit of the Lenders, the
nonexclusive right and license to use the trademarks described in the
Trademark Assignments for the purposes set forth in Section 12.2(b)
(viii) and for the purpose of enabling the Agent to realize on the
Collateral and to permit any purchaser of any portion of the Collateral
through a foreclosure sale or any other exercise of the Agent's rights
and remedies under this Agreement and the other Security Documents to
use, sell or otherwise dispose of the Collateral bearing any such
trademark. Such right and license is granted free of charge, without
the requirement that any monetary payment whatsoever be made to the
Borrowers or any other Person by the Lenders or the Agent or any
purchaser or purchasers of the Collateral. Each Borrower hereby
represents, warrants, covenants and agrees that it presently has, and
shall continue to have, the right, without the approval or consent of
others, to grant the license set forth in this Section 12.6; and each
Borrower hereby consents to the granting of such license by the
other Borrowers.
13)
ASSIGNMENTS
1) Successors and Assigns; Participations.
a) This Agreement shall be binding upon and inure to the
benefit of each Borrower, the Lenders, the Agent, all future
holders of the Notes, and their respective successors and
assigns, except that no Borrower may assign or transfer any of
its rights or obligations under this Agreement without the prior
written consent of each Lender.
b) Each Lender may assign to one or more Eligible Assignees
all or a portion of its interests, rights and obligations under
this Agreement (including, without limitation, all or a portion
of the Loans at the time owing to it and the Notes held by it);
provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning
<PAGE>
Lender's rights and obligations under this Agreement, (ii) the
amount of the Commitment of the assigning Lender that is subject
to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to
the Agent) shall in no event be less than $5,000,000, (iii) in
the case of a partial assignment, the amount of the Commitment
that is retained by the assigning Lender (determined as of the
date the Assignment and Acceptance with respect to such
assignment is delivered to the Agent) shall in no event be less
than $5,000,000, (iv) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and
recording in the Register an Assignment and Acceptance, together
with the Notes subject to such assignment, (v) such assignment
shall not, without the consent of the Borrowers, require the
Borrowers or any of them to file a registration statement with
the Securities and Exchange Commission or apply to or qualify
the Loans or the Notes under the blue sky laws of any state,
and (vi) the representation contained in Section 13.2 hereof
shall be true with respect to any such proposed assignee. Upon
such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (x) the assignee
thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of
a Lender hereunder, and (y) the Lender assignor thereunder shall,
to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement.
<PAGE>
c) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties
hereto as follows: (i) other than the representation and
warranty that it is the legal and beneficial owner of the interest
being assigned thereby free and clear of any adverse claim, such
Lender assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Lender assignor
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrowers or the
performance or observance by the Borrowers of any of their
obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 6.1(n)
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such Lender
assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such
powers under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement
are required to be performed by it as a Lender.
d) The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register for the recordation
of the names and addresses of the Lenders and the Commitment
Percentage of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the
Register shall be conclusive, in the absence of manifest error,
and each Borrower, the Agent and the Lenders may treat each person
whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available
for inspection by any Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Eligible Assignee together
with the Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in the
form of Exhibit E, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register, (iii)
<PAGE>
give prompt notice thereof to the Lenders and the Borrowers, and
(iv) promptly deliver a copy of such Acceptance and Assignment to
the Borrowers. Within five Business Days after receipt of notice,
the Borrowers shall execute and deliver to the Agent in exchange
for the surrendered Notes new Notes to the order of such Eligible
Assignee in amounts equal to the Commitment Percentage assumed by
such Eligible Assignee pursuant to such Assignment and Acceptance
and new Notes to the order of the assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new Notes
shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Notes, shall be dated the
effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of the assigned Notes
originally delivered to the assignor Lender. Each surrendered
Note or Notes shall be canceled and returned to the Borrowers.
f) Each Lender may, without the consent of the Borrowers,
sell participations to one or more banks or other entities in
all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of
its commitments hereunder and the Loans owing to it and the Notes
held by it); provided, however, that (i) each such participation
shall be in an amount not less than $5,000,000, (ii) such Lender's
obligations under this Agreement (including, without limitation,
its commitments hereunder) shall remain unchanged, (iii) such
Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iv) such Lender shall
remain the holder of the Notes held by it for all purposes of this
Agreement, (v) each Borrower, the Agent and the other Lenders
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement; provided, that such Lender may agree with any
participant that such Lender will not, without such participant's
consent, agree to or approve any waivers or amendments which would
reduce the principal of or the interest rate on any Loans, extend
the term or increase the amount of the commitments of such
participant, reduce the amount of any fees to which such
participant is entitled, extend any scheduled payment date for
principal or release Collateral or Guarantor Collateral securing
the Loans (other than Collateral or Guarantor Collateral disposed
of in accordance with the terms of this Agreement or the Security
Documents), and (vi) any such disposition shall not, without the
consent of the Borrowers, require any Borrower to file a
registration statement with the Securities and Exchange Commission
to apply to qualify the Loans or the Notes under the blue sky law
of any state. The Lender selling a participation to any bank or
other entity that is not an Affiliate of such Lender shall give
prompt notice thereof to the Borrowers and the Agent.
g) Any Lender may, in connection with any assignment,
proposed assignment, participation or proposed participation
pursuant to this Section 13.1, disclose to the assignee,
participant, proposed assignee or proposed participant, any
information relating to the Borrowers furnished to such Lender by
or on behalf of the Borrowers (or any of them); provided that,
prior to any such disclosure, each such assignee, proposed
assignee, participant or proposed participant shall agree with the
Borrowers or such Lender (which in the case of an agreement with
only such Lender, the Borrowers shall be recognized as third party
<PAGE>
beneficiaries thereof) to preserve the confidentiality of any
confidential information relating to the Borrowers received from
such Lender.
2) Representation of Lenders. Each Lender hereby represents that
it will make each Loan hereunder as a commercial loan for its own
account in the ordinary course of its business; provided, however,
that subject to Section 13.1 hereof, the disposition of the Notes or
other evidence of the Secured Obligations held by any Lender shall at
all times be within its exclusive control.
14)
AGENT
1) Appointment of Agent. Each of the Lenders hereby
irrevocably designates and appoints NationsBank of
Georgia, N.A. as the Agent of such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably
authorizes the Agent, as the agent for such Lender, to take
such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to
the Agent by the terms of this Agreement and such other Loan
Documents, including, without limitation, to make
determinations as to the eligibility of Inventory and
Receivables and to adjust the Applicable Percentages (so long
as such Applicable Percentages, as adjusted, do not exceed
those set forth in the definition thereof), together with such
other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this
Agreement or such other Loan Documents, the Agent shall not
have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with
any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be
read into this Agreement or the other Loan Documents or
otherwise exist against the Agent.
2) Delegation of Duties. The Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
<PAGE>
3) Exculpatory Provisions. Neither the Agent nor any of its
trustees, officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (i) liable to any Lender (or any Lender's
participants) for any action lawfully taken or omitted to be taken
by it or such Person under or in connection with this Agreement or
the other Loan Documents (except for its or such Person's own gross
negligence or willful misconduct), or (ii) responsible in any manner
to any Lender (or any Lender's participants) for any recitals,
statements, representations or warranties made by any Borrower or
any officer thereof contained in this Agreement or the other Loan
Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or the other Loan Documents or
for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other
Loan Documents or for any failure of the Borrowers (or any of
them) to perform their respective obligations hereunder or
thereunder. The Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties,
books or records of any Borrower.
4) Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel
(including, without limita tion, counsel to the Borrowers),
independent accountants and other experts selected by the Agent.
The Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless such Note shall have been transferred
in accordance with Section 13.1. The Agent shall be fully
justified in failing or refusing to take any action under this
Agreement and the other Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders as
it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from
acting, under this Agreement and the Notes in accordance with a
request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the
Notes.
<PAGE>
5) Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Agent has received notice from a Lender
or the Borrowers referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a "notice of
default." In the event that the Agent receives such a notice, the
Agent shall promptly give notice thereof to the Lenders. The Agent
shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders;
provided that unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) continue
making Revolving Credit Loans to the Borrowers on behalf of the
Lenders in reliance on the provisions of Section 4.7 and take such
other action, or refrain from taking such action, with respect to
such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
6) Non-Reliance on Agent and Other Lenders. Each Lender expressly
acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in- fact or Affiliates has
made any representations or warranties to it and that no act by the
Agent hereinafter taken, including any review of the affairs of the
Borrowers, shall be deemed to constitute any representation or
warranty by the Agent to any Lender. Each Lender represents to the
Agent that it has, independently and without reliance upon the Agent
or any other Lender, and based on such documents and information as
it has deemed appropriate, made its own appraisal of and investigation
into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its
own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently
and without reliance upon the Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers.
Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Agent hereunder or by the
other Loan Documents, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other
information concerning the business, operations, property,
financial and other condition or creditworthiness of the
Borrowers which may come into the possession of the Agent or
any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates.
<PAGE>
7) Indemnification. The Lenders agree to indemnify the Agent in
its capacity as such (to the extent not reimbursed by the Borrowers
and without limiting the obligation of the Borrowers to do so),
ratably according to their respective Commitment Percentages, from
and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Notes) be
imposed on, incurred by or asserted against the Agent in any
way relating to or arising out of this Agreement or the other
Loan Documents, or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Agent under or in
connection with any of the foregoing; provided that no Lender
shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting
solely from the Agent's gross negligence or willful misconduct
or resulting solely from transactions or occurrences that occur
at a time after such Lender has assigned all of its interests,
rights and obligations under this Agreement pursuant to Section
13.1 or, in the case of a Lender to which an assignment is made
hereunder pursuant to Section 13.1, at a time before such
assignment. The agreements in this subsection shall survive
the payment of the Notes, the Secured Obligations and all other
amounts payable hereunder and the termination of this Agreement.
8) Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrowers (or any of them)
and their respective Subsidiaries as if the Agent were not the Agent
hereunder. With respect to its Commitment, the Loans made by it and
any Note issued to it, the Agent shall have and may exercise the
same rights and powers under this Agreement and the other Loan
Documents and is subject to the same obligations and liabilities as
and to the extent set forth herein and in the other Loan Documents
for any other Lender. The terms "Lenders" or "Required Lenders" or
any other term shall, unless the context clearly otherwise indicates,
include the Agent in its individual capacity as a Lender or one of
the Required Lenders.
9) Successor Agent. The Agent may resign as Agent upon ten days'
notice to the Lenders. If the Agent shall resign as Agent under this
Agreement, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders which successor agent shall
be approved by the Borrowers (which approval shall not be unreasonably
withheld), whereupon such successor agent shall succeed to the rights,
powers and duties of the Agent, and the term "Agent" shall mean such
successor agent effective upon its appointment, and the former
Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such
former Agent or any of the parties to this Agreement or any holders
of the Notes. After any retiring Agent's resignation hereunder as
Agent, the provisions of Sections 14.7 and 15.14 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it
was Agent under this Agreement.
<PAGE>
10) Notices from Agent to Lenders. The Agent shall, promptly
upon receipt thereof, forward to each Lender copies of any written
notices, reports or other information supplied to it by any Borrower
(but which the Borrowers are not required to supply directly to the
Lenders).
15)
MISCELLANEOUS
1) Notices.
a) Method of Communication. Except as specifically
otherwise provided in this Agreement or in any of the Loan
Documents, all notices and the communications hereunder and
thereunder shall be in writing or by telephone, subsequently
confirmed in writing. Notices in writing shall be delivered
personally or sent by certified or registered mail, postage pre
paid, or by overnight courier, telex or facsimile transmission and
shall be deemed received in the case of personal delivery, when
delivered against a receipt therefor, in the case of mailing, when
receipted for, in the case of overnight delivery, on the next
Business Day after delivery to the courier, and in the case of
telex and facsimile transmission, upon transmittal, provided that
in the case of notices to the Agent, notice shall be deemed to
have been given only when such notice is actually received by the
Agent. A telephonic notice to the Agent, as understood by the
Agent, will be deemed to be the controlling and proper notice in
the event of a discrepancy with or failure to receive a confirming
written notice.
b) Addresses for Notices. Notices to any party shall be
sent to it at the following addresses, or any other address of
which all the other parties are notified in writing:
If to the Borrowers
or the Guarantors: Collins Industries, Inc.
421 East 30th Avenue
Hutchinson, Kansas 67502-2487
Attn: Chief Financial Officer
Facsimile No.: (316) 663-1630
<PAGE>
with a copy to: Blackwell Sanders Matheny Weary &
(which shall not Lombard, L.C.
constitute notice) 2300 Main Street, Suite 1100
Kansas City, Missouri
Attn: John K. Brungardt, Esq. Facsimile
No.: (816) 274-6914
If to the Agent: NationsBank of Georgia, N.A.
Business Credit Division
600 Peachtree Street
13 Plaza
Atlanta, Georgia 30308
Attn: Tina H. Lane Facsimile
No.: 404-607-6439
If to a Lender: At the address of such Lender set forth
on the signature pages hereof.
c) Agent's Office. The Agent hereby designates its office
located at 600 Peachtree Street, Atlanta, Georgia 30308, or any
subsequent office which shall have been specified for such
purpose by written notice to the Borrowers, as the office
to which payments due are to be made and at which Loans
will be disbursed.
2) Expenses. The Borrowers agree to pay or reimburse on demand
all costs and expenses incurred by the Agent or any Lender, including,
without limitation, the reasonable fees and disbursements of counsel,
in connection with
a) due diligence, including inspections, verifications,
audits, site visits and other activities associated with the
underwriting, credit analysis and approval process associated with
the financing facilities provided under this Agreement, including,
without limitation, travel, meals and lodging expenses of employees
of the Agent and the fees and expenses of Murphy, Moore & Co. and
Price Waterhouse;
b) the negotiation, preparation, execution, delivery,
administration, enforcement and termination of this Agreement and
each of the other Loan Documents, whenever the same shall be
executed and delivered, including, without limitation
A) the out-of-pocket costs and expenses incurred in
connection with the administration and interpretation of this
Agreement and the other Loan Documents;
B) the costs and expenses of appraisals of the Collateral;
C) the costs and expenses of lien and title searches and
title insurance;
D) the costs and expenses of any environmental reports
with respect to the Real Estate; and
<PAGE>
E) taxes, fees and other charges for filing the Financing
Statements and continuations and the costs and expenses of
taking other actions to perfect, protect, and continue the
Security Interests;
provided, however, that the Borrowers shall not be required to pay
the expenses of any Person which becomes a Lender more than ninety (90)
days after the Effective Date incurred in connection with such Person's
so becoming a Lender;
c) the preparation, execution and delivery of any waiver,
amendment, supplement or consent by the Agent and the Lenders
relating to this Agreement or any of the Loan Documents;
d) sums paid or incurred to pay any amount or take any
action required of the Borrowers (or any of them) under the Loan
Documents that the Borrowers fail to pay or take;
e) costs and expenses of forwarding Loan proceeds,
collecting checks and other items of payment, and establishing
and maintaining each Controlled Disbursement Account, Agency
Account and Lockbox;
f) costs and expenses of preserving and protecting the
Collateral;
g) consulting, after the occurrence of a Default, with one
or more Persons, including appraisers, accountants, lawyers,
environmental and business consultants and other experts,
concerning the value of any collateral for the Secured
Obligations, the operation of the business of any Borrower or
related to the nature, scope or value of any right or remedy of
the Agent or any Lender hereunder or under any of the Loan
Documents, including any review of factual matters in connection
therewith, which expenses shall include the fees and
disbursements of such Persons; and
h) reasonable costs and expenses paid or incurred to obtain
payment of the Secured Obligations, enforce the Security
Interests, sell or otherwise realize upon the Collateral, and
otherwise enforce the provisions of the Loan Documents, or to
prosecute or defend any claim in any way arising out of, related
to or connected with, this Agreement or any of the Loan Documents,
which expenses shall include the reasonable fees and disbursements
of counsel and of experts and other consultants retained by the
Agent or any Lender.
The foregoing shall not be construed to limit any other
provisions of the Loan Documents regarding costs and expenses
to be paid by the Borrowers. The Borrowers hereby authorize
the Agent and the Lenders to debit the Borrowers' Loan Accounts
(by increasing the principal amount of the Revolving Credit
Loans) in the amount of any such costs and expenses owed by the
Borrowers when due.
<PAGE>
3) Stamp and Other Taxes. The Borrowers will pay, jointly and
severally, any and all stamp, registration, recordation and similar
taxes, fees or charges and shall indemnify the Agent and the Lenders
against any and all liabilities with respect to or resulting from
any delay in the payment or omission to pay any such taxes, fees or
charges, which may be payable or determined to be payable in connection
with the execution, delivery, performance or enforcement of this
Agreement and any of the Loan Documents or the perfection of any
rights or security interests thereunder, including, without limitation,
the Security Interest.
4) Setoff. In addition to any rights now or hereafter granted under
Applicable Law and not by way of limitation of any such rights, during
the continuance of any Event of Default, each Lender, any participant
with such Lender in the Loans and each Affiliate of each Lender are
hereby authorized by each Borrower at any time or from time to time,
without notice to such Borrower or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to
apply any and all deposits (general or special, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time held or
owing by any Lender or any Affiliate of any Lender or any participant
to or for the credit or the account of such Borrower against and on
account of the Secured Obligations irrespective or whether or not the
Agent or such Lender shall have made any demand under this Agreement
or any of the Loan Documents.
5) Litigation. Each Borrower, the Agent and each Lender hereby
knowingly, intentionally and voluntarily waive trial by jury in any
action or proceeding of any kind or nature in any court in which an
action may be commenced by or against any Borrower, the Agent and
any such Lender arising out of this Agreement, the Collateral or any
assignment thereof or by reason of any other cause or dispute
whatsoever between any Borrower and the Agent or any Lender of any
kind or nature. Each Borrower, the Agent and the Lenders hereby agree
that the federal court of the northern district of Georgia or, at the
option of the Agent or any Lender, any court in which the Agent
or such Lender shall initiate legal or equitable proceedings
and which has subject matter jurisdiction over the matter in
controversy, shall have nonexclusive jurisdiction to hear and
determine any claims or disputes between such Borrower and the
Agent or such Lender, pertaining directly or indirectly to this
Agreement or the Loan Documents or to any matter arising
therefrom. Each Borrower expressly submits and consents in
advance to such jurisdiction in any action or proceeding
commenced in such courts, hereby waiving personal service of
the summons and complaint, or other process or papers issued
therein and agreeing that service of such summons and complaint
or other process or papers may be made by registered or
certified mail addressed to such Borrower at the address of
such Borrower set forth in Section 15.1. Should such Borrower
fail to appear or answer any summons, complaint, process or
papers so served within thirty (30) days after the mailing
thereof, it shall be deemed in default and an order and/or
judgment may be entered against it as demanded or prayed for in
such summons, complaint, process or papers. The nonexclusive
choice of forum set forth in this Section shall not be deemed
to preclude the enforcement of any judgment obtained in such
<PAGE>
forum or the taking of any action under this Agreement to
enforce same in any appropriate jurisdiction.
6) Waiver of Rights. Each Borrower hereby knowingly,
intentionally and voluntarily waives all rights which such Borrower
has under Chapter 14 of Title 44 of the Official Code of Georgia or
under any similar provision of Applicable Law to notice and to a
judicial hearing prior to the issuance of a writ of possession
entitling the Agent or any Lender, or the successors and assigns of
the Agent or such Lender to possession of the Collateral upon an
Event of Default. Without limiting the generality of the foregoing
and without limiting any other right which the Agent or the Lenders
may have, each Borrower consents that if the Agent or any
Lender files a petition for an immediate writ of possession in
compliance with Sections 44-14-261 and 4414-262 of the Official
Code of Georgia or under any similar provision of Applicable
Law, and this waiver or a copy hereof is alleged in such
petition and attached thereto, the court before which such
petition is filed may dispense with all rights and procedures
herein waived and may issue forthwith an immediate writ of
possession in accordance with Chapter 14 of Title 44 of the
Official Code of Georgia or in accordance with any similar
provision of Applicable Law, without the necessity of an
accompanying bond as otherwise required by Section 44-14-263 of
the Official Code of Georgia or by any similar provision under
Applicable Law. Each Borrower hereby acknowledges that it has
read and fully understands the terms of this waiver and the
effect hereof. Such waiver shall not in any way effect each
Borrower's right to challenge the Agent's or Lenders' right to
such possession under this Agreement or waive any claims of a
Borrower for wrongful seizure or damages therefor.
7) Consent to Advertising and Publicity. With the prior written
consent of the Borrowers, which consent shall not be unreasonably
withheld, the Agent, on behalf of the Lenders, may issue and
disseminate to the public information describing the credit
accommodation entered into pursuant to this Agreement, including
the names and addresses of the Borrowers, the amount, interest rate,
maturity, collateral and a general description of the Borrowers'
business(es).
8) Reversal of Payments. The Agent and each Lender shall have
the continuing and exclusive right to apply, reverse and re-apply
any and all payments to any portion of the Secured Obligations in
a manner consistent with the terms of this Agreement. To the extent
any Borrower makes a payment or payments to the Agent, for the account
of the Lenders, or any Lender receives any payment or proceeds of the
Collateral or Guarantor Collateral for any Borrower's benefit, which
payment(s) or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set
aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such
payment or proceeds received, the Secured Obligations or part
thereof intended to be satisfied shall be revived and continued
in full force and effect, as if such payment or proceeds had
not been received by the Agent or such Lender.
<PAGE>
9) Injunctive Relief. Each Borrower recognizes that, in the event
such Borrower fails to perform, observe or discharge any of its
obligations or liabilities under this Agreement, any remedy at law
may prove to be inadequate relief to the Agent and the Lenders;
therefore, each Borrower agrees that if any Event of Default shall
have occurred and be continuing, the Agent and the Lenders, if the
Agent or any Lender so requests, shall be entitled to temporary
and permanent injunctive relief without the necessity of
proving actual damages.
10) Accounting Matters. All financial and accounting calculations,
measurements and computations made for any purpose relating to this
Agreement, including, without limitation, all computations utilized
by any Borrower to determine whether it is in compliance with any
covenant contained herein, shall, unless this Agreement otherwise
provides or unless the Required Lenders shall otherwise consent
in writing, be performed in accordance with GAAP.
11) Amendments.
a) Except as set forth in subsection (b) below, any term,
covenant, agreement or condition of this Agreement or any of
the Loan Documents may be amended or waived, and any departure
therefrom may be consented to by the Required Lenders, if, but
only if, such amendment, waiver or consent is in writing signed
by the Required Lenders and, in the case of an amendment (other
than an amendment described in Section 15.11(d)), by the
Borrowers, and in any such event, the failure to observe, perform
or discharge any such term, covenant, agreement or condition
(whether such amendment is executed or such waiver or consent is
given before or after such failure) shall not be construed as a
breach of such term, covenant, agreement or condition or as a
Default or an Event of Default. Unless otherwise specified in
such waiver or consent, a waiver or consent given hereunder shall
be effective only in the specific instance and for the specific
purpose for which given. In the event that any such waiver or
amendment is requested by a Borrower, the Agent and the Lenders
may require and charge a fee in connection therewith and
consideration thereof in such amount as shall be determined by
the Agent and the Required Lenders in their discretion.
b) Except as otherwise set forth in this Agreement, without the
prior unanimous written consent of the Lenders,
A) no amendment, consent or waiver shall affect the amount
or extend the time of the obligation of the Lenders to make Loans
or extend the originally scheduled time or times of payment of
the principal of any Loans or alter the time or times of payment
of interest on any Loans or the amount of the principal thereof
or the rate of interest thereon or the amount of any commitment
fee payable hereunder or permit any subordination of the
principal or interest on such Loan, permit the subordination of
the Security Interests in any material Collateral or Guarantor
<PAGE>
Collateral or amend the provisions of Article 12 or of this
Section 15.11(b),
B) no material Collateral or Guarantor Collateral shall be
released by the Agent other than as specifically permitted in
this Agreement, and
C) except to the extent expressly provided herein, the
definition "Borrowing Base" shall not be amended;
provided, however, that anything herein to the contrary
notwithstanding, the Required Lenders shall have the right to waive
any Default or Event of Default and the consequences hereunder of such
Default or Event of Default and shall have the right to enter into an
agreement with the Borrowers providing for the forbearance from the
exercise of any remedies provided hereunder or under the other Loan
Documents without waiving any Default or Event of Default, and no
Lender shall be excused from its obligations to make Loans hereunder
in the event of any such waiver or forbearance.
a) The making of Loans hereunder by the Lenders during the
existence of a Default or Event of Default shall not be deemed to
constitute a waiver of such Default or Event of Default.
b) Notwithstanding any provision of this Agreement or the
other Loan Documents to the contrary, no consent, written or otherwise,
of the Borrowers shall be necessary or required in connection with any
amendment to Article 14 or Section 4.7, and any amendment to such
provisions shall be effected solely by and among the Agent and the
Lenders, provided that no such amendment shall impose any obligation
on any Borrower.
12) [Reserved].
13) Performance of Borrowers' Duties.
a) The Borrowers' obligations under this Agreement and
each of the Loan Documents shall be performed by the Borrowers at
their sole cost and expense.
b) If a Borrower shall fail to do any act or thing which
it has covenanted to do under this Agreement or any of the Loan
Documents, the Agent, on behalf of the Lenders, may (but shall
not be obligated to) do the same or cause it to be done either in
the name of the Agent or the Lenders or in the name and on behalf
of such Borrower, and each Borrower hereby irrevocably authorizes
the Agent so to act.
<PAGE>
14) Indemnification. Each Borrower agrees to reimburse the Agent
and the Lenders for all costs and expenses, including reasonable
counsel fees and disbursements, incurred, and to indemnify, defend
and hold the Agent and the Lenders harmless from and against all
losses suffered, by the Agent or any Lender in connection with
A) the exercise by the Agent or any Lender of any right or
remedy granted to it under this Agreement or any of the Loan
Documents,
B) any claim, and the prosecution or defense thereof,
arising out of or in any way connected with this Agreement
or any of the Loan Documents, and
C) the collection or enforcement of the Secured
Obligations or any of them,
other than such costs, expenses and liabilities arising out of
the Agent's or any Lender's gross negligence or willful
misconduct.
15) All Powers Coupled with Interest. All powers of attorney and
other authorizations granted to the Agent and the Lenders and any
Persons designated by the Agent or the Lenders pursuant to any
provisions of this Agreement or any of the Loan Documents shall be
deemed coupled with an interest and shall be irrevocable so long as
any of the Secured Obligations remain unpaid or unsatisfied.
16) Survival. Notwithstanding any termination of this Agreement,
a) until all Secured Obligations have been irrevocably
paid in full or otherwise satisfied, the Agent, for the benefit of
the Lenders, shall retain its Security Interest and shall retain
all rights under this Agreement and each of the Security Documents
with respect to such Collateral as fully as though this Agreement
had not been terminated,
b) the indemnities to which the Agent and the Lenders are
entitled under the provisions of this Article 15 and any other
provision of this Agreement and the Loan Documents shall continue
in full force and effect and shall protect the Agent and the
Lenders against events arising after such termination as well as
before, and
c) in connection with the termination of this Agreement and
the release and termination of the Security Interest, the Agent,
on behalf of itself as agent and the Lenders, may require such
assurances and indemnities as it shall reasonably deem necessary
or appropriate to protect the Agent and the Lenders against loss
on account of such release and termination, including, without
limitation, with respect to credits previously applied to the
<PAGE>
Secured Obligations that may subsequently be reversed or revoked.
17) Titles and Captions. Titles and captions of Articles, Sections
and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
18) Severability of Provisions. Any provision of this Agreement or
any Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to
the extent of such prohibition or unenforceability without invalidating
the remainder of such provision or the remaining provisions hereof or
thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
19) Governing Law. This Agreement, the Notes and the other Loan
Documents (subject to express provisions to the contrary contained
therein) shall be construed in accordance with and governed by the
law (other than the conflict of laws provisions thereof) of the
State of Georgia, except that the provisions of the first sentence of
Section 15.5 shall be governed by the laws of the forum state.
20) Counterparts. This Agreement 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, their successors and assigns, and
all of which taken together shall constitute one and the same agreement.
21) Reproduction of Documents. This Agreement, each of the Loan
Documents and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter
be executed, (b) documents received by the Agent or any Lender, and
(c) financial statements, certificates and other information previously
or hereafter furnished to the Agent or any Lender, may be reproduced
by the Agent or such Lender by any photographic, photostatic,
microfilm, microcard, miniature photographic or other similar process
and such Person may destroy any original document so produced. Each
party hereto stipulates that, to the extent permitted by Applicable
Law, any such reproduction shall be as admissible in evidence as the
original itself in any judicial or administrative proceeding (whether
or not the original shall be in existence and whether or not such
reproduction was made by the Agent or such Lender in the
regular course of business), and any enlargement, facsimile or
further reproduction of such reproduc tion shall likewise be
admissible in evidence.
22) Term of Agreement. This Agreement shall remain in effect from
the Agreement Date through the Termination Date and thereafter until
all Secured Obligations shall have been irrevocably paid and satisfied
in full. No termination of this Agreement shall affect the rights and
obligations of the parties hereto arising prior to such termination.
<PAGE>
23) Increased Capital. If any Lender shall have determined that
the adoption of any applicable law, rule, regulation, guideline,
directive or request (whether or not having force of law) regarding
capital requirements for banks or bank holding companies, or any
change therein or in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by
such Lender with any of the foregoing, imposes or increases a
requirement by such Lender to allocate capital resources to
such Lender's Commitment to make Loans hereunder which has or
would have the effect of reducing the return on such Lender's
capital to a level below that which such Lender could have
achieved (taking into consideration such Lender's then-existing
policies with respect to capital adequacy and assuming full
utilization of such Lender's capital) but for such adoption,
change or compliance by any amount deemed by such Lender to be
material: (i) such Lender shall promptly after its determination of
such occurrence give notice thereof to the Borrowers and the Agent;
and (ii) the Borrowers shall pay, jointly and severally, to such
Lender as an additional fee from time to time on demand such amount
as such Lender certifies to be the amount that will compensate it for
for such reduction. A certificate of such Lender claiming compensation
under this Section 15.23 shall be conclusive in the absence of manifest
error. Such certificate shall set forth the nature of the occurrence
giving rise to such compensation, the additional amount or amounts
to be paid to it hereunder and the method by which wuch amounts
were determined. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
24) Pro-Rata Participation
(a) Each Lender agrees that
(A) if it or any of its Affilitates shall exercise
any right of counterclaim, set-off, banker's lien or
similar right, or if under any applicable bankruptcy,
insolvency or other similar law it receives a secured
claim the security for which is a debt owed by it to
any Borrower, it shall apportion the amount thereof,
on a pro rata basis, between (A) amounts at the time
owed to it by the Borrowers under this Agreement,
and (B) amounts otherwise owed to it by such
Borrower, and
(B) if, as a result of the exercise of a right or the
receipt of a secured claim and the apportionment thereof
described in clause (i) of this Section 15.24(a) or
otherwise, it shall receive payment of a proportion of
the aggregate amount of the principal and interest due
with respect to the Secured Obligations owed to it under
this Agreement greater than the proportion of such amounts
then received by any other Lender, such Lender shall
purchase a participation (which it shall be deemed to have
purchased simultaneously upon the receipt of such payment)
in the Secured Obligations then held by the other Lenders
so that all such recoveries of principal and interest with
respect to all Secured Obligations owed to each Lender
shall be pro rata on the basis of its respective amount of
<PAGE>
the Secured Obligations owed to all Lenders, provided that
if all or part of such proportionately greater payment
received by such purchasing Lender is thereafter recovered
by or on behalf of such Borrower from such Lender, such
purchase shall be rescinded and the purchase price paid
for such participation shall be returned to such Lender
to the extent of such recovery, but without interest.
(b) Each Lender that receives such a secured claim shall
exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this
Section 15.24 to share in the benefits of any recovery on such
secured claim.
(c) Each Borrower expressly consents to the foregoing
arrangements and agrees that any holder of a participation
in any Secured Obligation so purchased or otherwise acquired
may exercise any and all rights of banker's lien, set-off or
counterclaim with respect to any and all monies owing by such
Borrower to such holder as fully as if such holder were a
holder of such Secured Obligation in the amount of the
participation held by such holder.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers in several counterparts all
as of the day and year first written above.
BORROWERS:
COLLINS INDUSTRIES, INC.
(Corporate Seal)
Attest
By:
By: Name:
Name: Title:
Title:
COLLINS BUS CORPORATION
(Corporate Seal)
Attest:
By:
By: Name:
Name: Title:
Title:
WHEELED COACH INDUSTRIES, INC.
(Corporate Seal)
Attest:
By:
By: Name:
Name: Title:
Title:
(SIGNATURES CONTINUE ON FOLLOWING PAGES)
<PAGE>
CAPACITY OF TEXAS, INC.
(Corporate Seal)
Attest:
By:
By: Name:
Name: Title:
Title:
MOBILE-TECH CORPORATION
(Corporate Seal)
Attest:
By:
By: Name:
Name: Title:
Title:
TRANSI-CORP
(Corporate Seal)
Attest:
By:
By: Name:
Name: Title:
Title:
WORLD TRANS, INC.
(Corporate Seal)
Attest:
By:
By: Name:
Name: Title:
Title:
<PAGE>
AGENT:
NATIONSBANK OF GEORGIA, N.A.
as Agent
By:
Name:
Title:
Address: 600 Peachtree Street
13 Plaza
Atlanta, Georgia 30308
Attn: Business Credit
Facsimile No.: 404-607-6437
Commitment Amount:
[C] [C] [C] [C] [C]
Term Term Term
Borrower Rev. Loan Loan A Loan B Loan C
Collins -0- $ 500,000 -0- -0-
Bus $ 4,000,000 $ 600,000 $1,100,000 -0-
WCI $12,000,000 $4,500,000 -0- $2,000,000
Mobile $ 1,000,000 $ 300,000 $ 500,000 -0-
Capacity $ 5,000,000 $ 300,000 $ 250,000 -0-
T-C 500,000 -0- -0- -0-
World Trans 500,000 -0- -0- -0-
<PAGE>
[C] [C] [C] [C] [C]
Total $23,000,000 $6,200,000 $1,850,000 $2,000,000
<PAGE>
EXHIBIT A
FORM OF
REVOLVING CREDIT NOTE
$________ Atlanta, Georgia
As of April 21, 1995
FOR VALUE RECEIVED, the undersigned, ______________________, a
___________ corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of NATIONSBANK OF GEORGIA, N.A. (the
"Lender") at the offices of the Agent (as hereinafter defined)
located at 600 Peachtree Street, Atlanta, Georgia 30308 or at
such other place within the United States of America as shall be
designated from time to time by the Agent, on the Termination
Date the principal amount of____________________________
($________), or, if less, the aggregate unpaid balance of all
Revolving Credit Loans made by the Lender to the Borrower
pursuant to the Loan Agreement (as hereinafter defined) in lawful
money of the United States of America in federal or other
immediately available funds.
The Borrower also unconditionally promises to pay interest on the
unpaid principal amount of this Note for each day from the date
of the initial Revolving Credit Loan 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.
For the purposes of this Revolving Credit Note:
"Agent" means NationsBank of Georgia, N.A., a national banking
association, and any successor agent appointed pursuant to
Section 14.9 of the Loan Agreement.
"Loan Agreement" means the Loan and Security Agreement, dated as
of April 21, 1995, among the Borrower, the other Borrowers named
therein, the financial institutions party thereto from time to
time (the "Lenders") and the Agent, as agent for the Lenders, as
the same may be amended, modified, supplemented or restated from
time to time.
"Termination Date" means April 21, 1998, 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 of the Loan Agreement.
Reference is made to the Loan Agreement for the definitions of
other terms used in this Revolving Credit Note.
<PAGE>
Presentment for payment, demand, protest and notice of demand,
notice of dishonor and notice of non-payment and all other
notices are hereby waived by the Borrower.
The Borrower hereby agrees 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 if collected by or through an
attorney, whether or not suit is filed.
This Revolving Credit Note is one of the Revolving Credit Notes
under, and is entitled to the benefits of, the Loan Agreement,
which, among other things, contains provisions with respect to
security for the Indebtedness evidenced hereby and the
acceleration of the maturity and prepayments of the principal of
this Revolving Credit Note prior to maturity, all upon the terms
and conditions specified therein.
This Revolving Credit Note shall be governed by and construed in
accordance with the laws of the State of Georgia.
[Name of Borrower]
By:
Name:
Title:
I. (CORPORATE SEAL)
Attest:
By:
Name:
<PAGE>
A. EXHIBIT B-1
FORM OF
TERM NOTE A
$___________ Atlanta, Georgia
As of April 21, 1995
FOR VALUE RECEIVED, the undersigned, _______________________, a
____________ corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of NATIONSBANK OF GEORGIA, N.A. (the
"Lender") at the offices of the Agent (as hereinafter defined)
located at 600 Peachtree Street, Atlanta, Georgia 30308 or at
such other place within the United States of America as shall be
designated from time to time by the Agent, the principal sum of
_____________________________ ($_________) in lawful money of the
United States of America in federal or other immediately
available funds in thirty-five (35) equal consecutive monthly
installments on successive Installment Payment Dates of
$___________ each, and one final installment on the Term Loan
Termination Date in the amount of the then unpaid balance of Term
Loan A to such Borrower.
The Borrower also unconditionally promises to pay interest on the
unpaid principal amount of this Term Note A for each day from the
date disbursed 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 Term Note A 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.
For the purpose of this Term Note A:
"Agent" means NationsBank of Georgia, N.A., a national banking
association, and any successor agent appointed pursuant to
Section 14.9 of the Loan Agreement.
"Loan Agreement" means the Loan and Security Agreement, dated as
of April 21, 1995, between the Borrower, the other Borrowers, the
financial institutions party thereto from time to time (the
"Lenders") and the Agent, as agent for the Lenders, as the same
may be amended, modified, supplemented or restated from time to
time.
"Term Loan Termination Date" means April 21, 1998.
Presentment for payment, demand, protest and notice of demand,
notice of dishonor and notice of non-payment and all other
notices are hereby waived by the Borrower.
The Borrower hereby agrees 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 if collected by or through an
attorney, whether or not suit is filed.
<PAGE>
This Term Note A is one of the Term Note A's under, and is
entitled to the benefits of, the Loan Agreement, which, among
other things, contains provisions with respect to security for
the Indebtedness evidenced hereby and the acceleration of the
maturity and prepayments of the principal of this Term Note A
prior to maturity, all upon the terms and conditions specified
therein.
This Term Note A shall be governed by and construed in accordance
with the laws of the State of Georgia.
[NAME OF BORROWER]
By:
Name:
Title:
II. (CORPORATE SEAL)
Attest:
By:
Name:
<PAGE>
A. EXHIBIT B-2
FORM OF
TERM NOTE B
$___________ Atlanta, Georgia
As of April 21, 1995
FOR VALUE RECEIVED, the undersigned, _______________________, a
____________ corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of NATIONSBANK OF GEORGIA, N.A. (the
"Lender") at the offices of the Agent (as hereinafter defined)
located at 600 Peachtree Street, Atlanta, Georgia 30308 or at
such other place within the United States of America as shall be
designated from time to time by the Agent, the principal sum of
_____________________________ ($_________) in lawful money of the
United States of America in federal or other immediately
available funds in thirty-five (35) equal consecutive monthly
installments on successive Installment Payment Dates of
$___________ each, and one final installment on the Term Loan
Termination Date in the amount of the then unpaid balance of such
Term Loan B to such Borrower.
The Borrower also unconditionally promises to pay interest on the
unpaid principal amount of this Term Note B for each day from the
date disbursed 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 Term Note B 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.
For the purpose of this Term Note B:
"Agent" means NationsBank of Georgia, N.A., a national banking
association, and any successor agent appointed pursuant to
Section 14.9 of the Loan Agreement.
"Loan Agreement" means the Loan and Security Agreement, dated as
of April 21, 1995, between the Borrower, the other Borrowers, the
financial institutions party thereto from time to time (the
"Lenders") and the Agent, as agent for the Lenders, as the same
may be amended, modified, supplemented or restated from time to
time.
"Term Loan Termination Date" means April 21, 1998.
Presentment for payment, demand, protest and notice of demand,
notice of dishonor and notice of non-payment and all other
notices are hereby waived by the Borrower.
The Borrower hereby agrees 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 if collected by or through an
attorney, whether or not suit is filed.
<PAGE>
This Term Note B is one of the Term Note B's under, and is
entitled to the benefits of, the Loan Agreement, which, among
other things, contains provisions with respect to security for
the Indebtedness evidenced hereby and the acceleration of the
maturity and prepayments of the principal of this Term Note B
prior to maturity, all upon the terms and conditions specified
therein.
This Term Note B shall be governed by and construed in accordance
with the laws of the State of Georgia.
[NAME OF BORROWER]
By:
Name:
Title:
III. (CORPORATE SEAL)
Attest:
By:
Name:
<PAGE>
A. EXHIBIT B-3
FORM OF
TERM NOTE C
$ 2,000,000.00 Atlanta, Georgia
As of April 21, 1995
FOR VALUE RECEIVED, the undersigned, WHEELED COACH INDUSTRIES,
INC., a Florida corporation (the "Borrower"), hereby
unconditionally promises to pay to the order of NATIONSBANK OF
GEORGIA, N.A. (the "Lender") at the offices of the Agent (as
hereinafter defined) located at 600 Peachtree Street, Atlanta,
Georgia 30308 or at such other place within the United States of
America as shall be designated from time to time by the Agent,
the principal sum of TWO MILLION DOLLARS ($2,000,000.00) in
lawful money of the United States of America in federal or other
immediately available funds in one (1) single payment on the
Termination Date as defined in the Loan Agreement.
The Borrower also unconditionally promises to pay interest on the
unpaid principal amount of this Term Note C for each day from the
date disbursed 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 Term Note C 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.
For the purpose of this Term Note C:
"Agent" means NationsBank of Georgia, N.A., a national banking
association, and any successor agent appointed pursuant to
Section 14.9 of the Loan Agreement.
"Loan Agreement" means the Loan and Security Agreement, dated as
of April 21, 1995, between the Borrower, the other Borrowers, the
financial institutions party thereto from time to time (the
"Lenders") and the Agent, as agent for the Lenders, as the same
may be amended, modified, supplemented or restated from time to
time.
"Termination Date" means April 21, 1998, 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 of the Loan Agreement.
Reference is made to the Loan Agreement for the definition of
other terms used in this Term Note C.
Presentment for payment, demand, protest and notice of demand,
notice of dishonor and notice of non-payment and all other
notices are hereby waived by the Borrower.
<PAGE>
The Borrower hereby agrees 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 if collected by or through an
attorney, whether or not suit is filed.
This Term Note C is one of the Term Notes C under, and is
entitled to the benefits of, the Loan Agreement, which, among
other things, contains provisions with respect to security for
the Indebtedness evidenced hereby and the acceleration of the
maturity and prepayments of the principal of this Term Note C
prior to maturity, all upon the terms and conditions specified
therein.
This Term Note C shall be governed by and construed in accordance
with the laws of the State of Georgia.
WHEELED COACH INDUSTRIES, INC.
By:
Name:
Title:
IV. (CORPORATE SEAL)
Attest:
By:
Name:
<PAGE>
A. EXHIBIT D
FORM OF
OPINION OF COUNSEL FOR BORROWER AND GUARANTORS
[Letterhead of Blackwell Sanders Matheny Weary & Lombardi, L.C.]
___________, 1995
NationsBank of Georgia, N.A.
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Re: Collins Industries, Inc. and Subsidiaries
Ladies and Gentlemen:
We have acted as counsel to [name and state of incorporation of
each Borrower] (individually a "Borrower" and collectively the
"Borrowers"), and [name and state of incorporation of each
Guarantor], (individually a "Guarantor" and collectively the
"Guarantors") in connection with the negotiation, execution and
delivery of the following (referred to herein collectively as the
"Loan Documents"):
(i) the Loan and Security Agreement, dated as of __________
__, 1995, (the "Loan Agreement") among the Borrowers, NationsBank
of Georgia, N.A., as the sole initial lender (the "Lender"), and
NationsBank of Georgia, N.A., as agent for the persons who are
Lenders from time to time (the "Agent");
(ii) the Revolving Credit Note;
(iii) the Term Notes;
(iv) the Mortgages;
(v) the Guaranty Agreement;
(vi) the Guarantor Security Agreement;
(vii) the Trademark Assignments,
(viii) the Patent Assignments,
(ix) the Financing Statements; and
(x) the other Loan Documents.
This opinion is furnished to you pursuant to Section 5.1(19) of
the Loan Agreement. Terms used in this opinion letter, unless
otherwise defined, are used herein as defined in the Loan
Agreement.
For the purposes of giving this opinion, we have examined
executed copies of each of the Loan Documents, the Articles of
Incorporation and Bylaws of each Borrower and each Guarantor,
<PAGE>
certificates of existence and good standing certificates, and
such other documents and records, and have made such inquiries,
as we have considered necessary.
In rendering the opinion set forth in paragraphs 6, 7 and 8
below, we have further assumed with respect to the Collateral
that (a) None of the Collateral consists or will consist of
consumer goods, farm products, crops, timber, minerals and the
like (including oil and gas) or accounts resulting from the sale
thereof, beneficial interests in a trust or a decedent's estate,
or letters of credit.
In giving this opinion we are not passing on any matters under
the laws of any jurisdiction other than the laws of the United
States of America, and the States of Kansas, Missouri, Texas,
Florida and Alabama (the "States"). As to matters of [name of
states] law, we have relied on the opinions of [names of counsel]
attached hereto and believe that you and we are justified in
relying on such opinions.
We have assumed the due authorization, execution and delivery of
the Loan Documents by each party thereto other than the Borrowers
and the Guarantors. We have also assumed the genuineness of all
signatures and the authenticity of all documents submitted to us
as originals, and the conformity to the authentic originals of
all documents submitted to us as certified or photostatic copies.
We have relied on certificates or telegraphic communications from
public officials as to the corporate good standing of the
Borrowers and the Guarantors.
Based upon the foregoing we are of the opinion that:
2. Each Borrower and each Guarantor is a corporation, duly
organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, has the power and authority
to own its properties and to carry on its business as now being
and hereafter proposed to be conducted and is duly qualified and
authorized to do business in the respective states set forth on
Schedule I hereto and in each other jurisdiction in which the
failure so to qualify or be authorized could reasonably be
expected to have a Material Adverse Effect on such Borrower or
Guarantor.
3. Each Borrower and each Guarantor has the right and
power, and has taken all necessary action to authorize it to
execute, deliver and perform each of the Loan Documents to which
it is a party, in accordance with their respective terms, and, in
the case of the Borrowers, to borrow thereunder. Each of the
Loan Documents to which it is a party has been duly executed and
delivered by the duly authorized officers of each Borrower and
each Guarantor, as the case may be, and each such Loan Document
is a legal, valid and binding obligation of such Borrower or
Guarantor, as the case may be, enforceable against such Borrower
and such Guarantor in accordance with its respective terms,
subject to general equitable principles applicable to the remedy
of specific performance and to applicable bankruptcy, insolvency,
reorganization and other similar laws affecting the enforcement
of creditors' rights generally.
4. The execution, delivery and performance of the Loan
Documents in accordance with their respective terms by each
Borrower and each Guarantor which is a party thereto and the
borrowings under the Loan Agreement by each Borrower do not and
will not, by the passage of time, the giving of notice or
otherwise,
(a) require any governmental approval or violate any
applicable law relating to such Borrower or such Guarantor,
<PAGE>
(b) conflict with, result in a breach of or constitute a
default under (1) the Articles of Incorporation or Bylaws of such
Borrower or such Guarantor, or (2) any governmental approval
applicable to such Borrower or to such Guarantor, or (3) to the
best of our knowledge after due inquiry, any indenture, agreement
or other instrument to which such Borrower or such Guarantor is a
party or by which such Borrower or such Guarantor or its property
may be bound, or
(c) to the best of our knowledge, after due inquiry, result
in or require the creation of or imposition of any Lien upon or
with respect to any property now owned or hereafter acquired by
such Borrower or such Guarantor, other than the Security Interest
and Liens on the Real Estate and the Guarantor Collateral in
favor of the Agent for the benefit of the Lenders created under
the Loan Documents.
5. No provision of any law, rule or regulation, and no
decision or order of any court or other tribunal, of the States
would in any way limit the Lender's right to bring any action or
proceeding in any court of general jurisdiction in such state to
enforce its rights under the Loan Documents.
6. To the best of our knowledge, after due inquiry, there
are no actions, suits or proceedings pending against or in any
other way relating adversely to or affecting any Borrower or any
Guarantor or any of their respective properties in any court or
before any arbitrator of any kind or before or by any
governmental body.
7. The Loan Agreement creates a valid security interest
(the "Borrower Security Interest") in the Collateral to the
extent that the Collateral consists of:
(a) documents and instruments (each as defined in Article 9
of the UCC),
(b) inventory and equipment (each as defined in Article 9
of the UCC) and such inventory and equipment is located in the
States (and it is not understood by the Borrowers and the Agent
that such Collateral will be kept in another jurisdiction),
(c) general intangibles and accounts (each as defined in
Article 9 of the UCC), and
(d) proceeds (as defined in Article 9 of the UCC) of such
documents, instruments, inventory, equipment, general intangibles
and accounts
(collectively, excluding documents and instruments and
proceeds thereof, the "Borrower UCC Collateral"), in each case in
favor of the Agent for the benefit of the Lenders as security for
the payment of the Secured Obligations.
8. The Guarantor Security Agreement creates a valid
security interest (the "Guarantor Security Interest") in the
Guarantor Collateral to the extent that the Guarantor Collateral
consists of:
(a) documents and instruments (each as defined in Article 9
of the UCC),
(b) inventory and equipment (each as defined in Article 9
of the UCC) and such inventory and equipment is located in the
States (and it is not understood by the Guarantors and the Agent
that such Guarantor Collateral will be kept in another
jurisdiction),
(c) general intangibles and accounts (each as defined in
Article 9 of the UCC), and
(d) proceeds (as defined in Article 9 of the UCC) of such
documents, instruments, inventory, equipment, general intangibles
and accounts
<PAGE>
(collectively, excluding documents and instruments and
proceeds thereof, the "Guarantor UCC Collateral"), in each case
in favor of the Agent for the benefit of the Lenders as security
for the payment of the Guarantor Obligations.
9. The Financing Statements are in appropriate form for
filing pursuant to Article 9 of the UCC and when filed in the
records described in Schedule II hereto will result in the
perfection of the Borrower Security Interest in the Borrower UCC
Collateral and the Guarantor Security Interest in the Guarantor
UCC Collateral (collectively the "UCC Collateral"), except as
follows:
(a) in the case of proceeds, continuation of perfection of
the Security Interest therein is limited as set forth in 9-306
of the UCC;
(b) as to all UCC Collateral, Article 9 of the UCC requires
the filing of continuation statements within six months prior to
the expiration of each consecutive five-year period beginning on
the date of filing of the Financing Statements in order to
maintain the effectiveness of such filings;
(c) in the case of property that becomes UCC Collateral
after the date hereof, Section 552 of the Bankruptcy Code (Title
11, United States Code) limits the extent to which property
acquired by a debtor after the commencement of a case under the
Federal Bankruptcy Code may be subject to a security interest
arising under a security agreement entered into by the debtor
before the commencement of such case; and
(d) the Security Interest in UCC Collateral consisting of
motor vehicles, including [ambulances, buses and vans], for which
a certificate of title has been issued by the [motor vehicle
division] of the State is perfected by [describe requirements for
perfection of security interests in motor vehicles].
We call to your attention that the perfection of the
Borrower Security Interest and the Guarantor Security Interest in
the UCC Collateral referred to above will be terminated (i) as to
any UCC Collateral acquired by a Borrower or a Guarantor more
than four months after such Borrower or Guarantor so changes its
name, identity or corporate structure so as to make the Financing
Statements seriously misleading, unless new appropriate financing
statements indicating the new name, identity or corporate
structure of such Borrower or Guarantor are properly filed before
the expiration of such four months and (ii) as to any UCC
Collateral consisting of accounts or general intangibles (as
defined in Article 9 of the UCC), four months after a Borrower or
Guarantor changes its chief executive office to a new
jurisdiction outside the States, unless such security interest is
perfected in such new jurisdiction before the expiration of such
four months (or, if earlier, when perfection under the laws of
the State would have ceased as set forth in subparagraph (b)
above).
10. Each Mortgage is in proper form for recordation in the
recording office set forth with respect to such Mortgage on
Schedule II hereto (the "Recording Office"), so as to (a) be
accepted for recording in each such Recording Office and (b) upon
such recordation (and payment of related mortgage taxes, stamp
taxes and/or recording fees, if any), (i) convey a valid lien on
the real property described therein (the "Mortgaged Real
Estate"), (ii) create a valid security interest in the goods,
including fixtures (as such terms are defined in the UCC)
described therein and located on the Mortgaged Real Estate and
the documents, instruments, general intangibles and accounts (as
<PAGE>
each such term is defined in the UCC) described therein (such
goods and other personal property, the "Related Personalty") and
(iii) be cross-indexed as a fixture filing to the UCC records of
the Recording Office of such county. Each Mortgage contains
provisions that are sufficient to make available to the Agent for
the benefit of the Lenders remedies typically afforded to holders
of commercial mortgages, deeds to secure debt or deeds of trust
in the State in which it is recorded and the provisions of each
Mortgage relating to such remedies are in accordance with all
requirements of the laws of such State.
11. The recording of each Mortgage with the offices
referred to in paragraph 9 above and the filing of the Financing
Statements with the offices referred to in paragraphs 8 and 9
above (and the payment of related mortgage taxes, stamp taxes
and/or recording fees, if any), are the only actions, recordings
or filings in the States necessary to publish notice and protect
the validity of and to establish of record the lien on the
Mortgaged Real Estate and the security interest in the Related
Personalty and the Borrower Security Interest and the Guarantor
Security Interest in the States, except as set forth in paragraph
8 above. Other than the recordation and filings (and payment of
taxes and recording fees, if any) referred to in this opinion
letter, and any required notices, filings or compliance with
procedural requirements in connection with the commencement or
prosecution of any foreclosure or other realization on, whether
in a judicial proceeding or otherwise, any of the Mortgaged Real
Estate, the Related Personalty or the UCC Collateral, no filing
or recording in the States is required as a condition to the
validity or enforceability of any of the Loan Documents or the
exercise by the Agent of its rights thereunder for the benefit of
the Lenders.
12. The offices described in Schedule II hereto are the
only offices in the States in which notices of Liens affecting
the Borrowers or the Guarantors, the UCC Collateral, the
Mortgaged Real Estate or the Related Personalty must be filed to
publish notice thereof.
13. The priority of the liens on the Mortgaged Real Estate
created by the Mortgages with respect to any extension of credit
pursuant to the Loan Agreement which is expressly contemplated by
the terms of the Loan Agreement as in effect on the date hereof
0(each, a "Further Advance") made or deemed to have been made
after the date of the first extension of credit under the Loan
Agreement purported to be secured by the Mortgage, will be the
same as the priority applicable to such first extension of
credit, and such priority will not be affected by the rights in
and to the Mortgaged Real Estate of any third party whose
interest in the Mortgaged Real Estate attached thereto after the
date of such first extension of credit but prior to the date of
such Further Advance.
14. The priority of the liens created by the Mortgages will
not be affected by (a) any partial prepayment of the Loans,
(b) any prepayment in full of the Revolving Credit Loan so long
as the Revolving Credit Facility remains in effect or c any
change in the rate of interest payable by the Borrowers expressly
contemplated by the provisions of the Loan Agreement.
15. Except for nominal filing and recording fees, no taxes,
including, but not limited to, transfer taxes, intangible or
documentary stamp taxes or sales and use taxes, shall be payable
in the States on account of the execution or delivery of the Loan
Documents, the execution or recording of any document,
instrument, agreement or certificate evidencing any security
interest granted in favor of the Agent for the benefit of the
Lenders in connection therewith, or the performance by the
Borrowers of their respective obligations thereunder other than
[insert type and amount of tax as appropriate].
The foregoing opinions are subject to the qualifications
that we express no opinion as to:
<PAGE>
(i) any Borrower's or any Guarantor's rights in or title to
any property, including, without being limited to, any UCC
Collateral; the Related Personalty or Mortgaged Real Estate; or
(ii) the validity or perfection of any security interest of
the Agent for the benefit of the Lenders as it relates to (A) any
interest in or claim in or under any policy of insurance, except
a claim to proceeds payable by reason of loss or damage under
insurance policies maintained by each Borrower and each Guarantor
with respect to equipment and inventory as required by and in
compliance with the Loan Documents, (B) a lien given by statute
or a right represented by a judgment, other than a judgment taken
on a right to payment which was collateral, c a claim for wages,
salary, or other compensation of an employee, (D) any right of
setoff, (E) any claim arising out of tort.
We assume no responsibility to update this opinion letter for any
change in applicable law of States occurring after the date
hereof. This opinion letter is provided to you for the exclusive
use of you as Agent and each Lender under the Loan Agreement
solely in connection with the transactions contemplated by the
Loan Documents, and may not be relied upon by any other person or
for any other purpose without our prior written consent.
Very truly yours,
(a) BLACKWELL SANDERS MATHENY
WEARY & LOMBARDI, L.C.
<PAGE>
B. EXHIBIT E
1. FORM OF
(a) ASSIGNMENT AND ACCEPTANCE
_______________________, Assignee
(i) Dated ____________ ___, 199__
Reference is made to the Loan and Security Agreement dated as of
April 18, 1995, as amended (the "Loan Agreement"), among COLLINS
INDUSTRIES, INC., a Missouri corporation, COLLINS 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,
TRANSI-CORP., an Alabama corporation, WORLD TRANS, INC., a Kansas
corporation, (the "Borrowers"), the financial institutions party
thereto from time to time (the Lenders) and NATIONSBANK OF
GEORGIA, N.A., as agent for the Lenders (the "Agent"). Terms
defined in the Loan Agreement and not otherwise defined herein
are used herein as therein defined.
(the "Assignor") and (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to such of the Assignor's
rights and obligations as a Lender under the Loan Agreement
as of the Effective Date (as hereinafter defined) as
represent a _____% interest in and to all of the outstanding
rights and obligations of the Lenders thereunder as of the
Effective Date (including, without limitation, such
percentage interest in the Loans owing to the Lenders
outstanding on the Effective Date, together with such
percentage interest in all unpaid interest and such
percentage interest in the Notes). The Assignee shall have
no interest in any interest that is payable with respect to
a period prior to the Effective Date.
2. The Assignor (i) represents that as of the date hereof,
(A) its Commitment with respect to Revolving Credit Loans
under the Loan Agreement is $____________ and the
outstanding balance of its Revolving Credit Loans is
$____________ (in each case unreduced by any assignments
thereof which have not yet become effective), and (B) the
principal amount outstanding to it under Term Loan A is
$______, under Term Loan B is $_____ and Term Loan C is
$_____; (ii) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties
or representations made in or in connection with the Loan
Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the
Loan Agreement or any other instrument or document furnished
pursuant thereto, other than that it is the legal and
beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any
adverse claim, lien or encumbrance; and (iii) makes no
representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrowers,
the performance or observance by the Borrowers of any of
their respective obligations under the Loan Agreement or any
other instrument or document furnished pursuant thereto.
3. The Assignee (i) represents and warrants that it is
legally authorized to enter into this Assignment and
Acceptance; (ii) confirms that it has received a copy of the
Loan Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 10.1
thereof and such other documents and information as it has
<PAGE>
deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance;
(iii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan
Agreement; (iv) confirms that it is an Eligible Assignee;
(v) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the
Loan Agreement as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably
incidental thereto; (vi) agrees that it will perform in
accordance with their terms all the obligations which by the
terms of the Loan Agreement are required to be performed by
it as a Lender; (vii) specifies as its address for notices
the office set forth beneath its name on the signature pages
hereof; (viii) agrees that it will keep confidential all
information with respect to the Borrowers furnished to it by
the Borrowers, except where required or requested by
governmental or regulatory authorities, or the Assignor
(other than information generally available to the public or
otherwise available to the Assignor on a nonconfidential
basis); (ix) agrees and covenants that the lesser of (A)
$_________ and (B) the aggregate outstanding principal
amount of the Revolving Credit Loans assigned to the
Assignee hereby shall not be assigned, participated or
otherwise transferred by the Assignee to any other assignee;
and (x) represents and warrants that it is organized under
the laws of a jurisdiction in the United States of America.
4. The effective date for this Assignment and Acceptance
shall be ____________ ___, 199__ (the "Effective Date").
Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and
recording by the Agent.
5. Upon such acceptance and recording, from and after the
Effective Date, (i) the Assignee shall be a party to the
Loan Agreement and, to the extent provided in this
Assignment and Acceptance, shall have the rights and
obligations of a Lender thereunder, and (ii) the Assignor
shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its
obligations under the Loan Agreement.
6. Upon such acceptance and recording, from and after the
Effective Date, the Agent shall make all payments in respect
of the interest assigned hereby (including payments of
principal, interest, fees and other amounts) to the
Assignee. Assignor and Assignee shall make all appropriate
adjustments in payments for periods prior to the Effective
Date by the Agent or with respect to the making of this
Assignment and Acceptance directly between themselves.
7. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the laws of the State of
Georgia, without reference to any provision which would
render such choice of law invalid.
(a) ASSIGNOR:
By:
Name:
Title:
<PAGE>
(b) ASSIGNEE:
By:
Name:
Title:
Address:
Accepted this ____ day of
____________, 199__.
___________________________, as Agent
By:
Name:
Title:
<PAGE>
C.EXHIBIT F
1. FORM OF
(a) SETTLEMENT REPORT
Pursuant to Section 4.8 of the Loan and Security Agreement
dated as of April __, 1995 (the "Loan Agreement"; terms defined
in the Loan Agreement and not otherwise defined herein being used
herein as therein defined) among Collins Industries, Inc.,
Collins Bus Corporation, Wheeled Coach Industries, Inc., Capacity
of Texas, Inc., Mobile-Tech Corporation, Transi-Corp., World
Trans, Inc., (the "Borrowers"), the financial institutions party
thereto from time to time (the "Lenders"), Nationsbank of
Georgia, N.A., as agent for the Lenders (the "Agent"), the Agent
hereby delivers this Report to the Lenders for the ______________
___, [199__/20__] Settlement Date.
2. Principal amount of Revolving
Credit Loans outstanding as of
Settlement Date (before settlement)
(a) NationsBank $__________________
(b) [Lender] $__________________
(c) Total $__________________
3. Principal amount of Revolving
Credit Loans outstanding as of
next preceding Settlement Date
(after settlement on such date)
(a) NationsBank $__________________
(b) [Lender] $__________________
(c) Total $__________________
4. Commitment Amount
of each Lender (line 1(e) x
Commitment Percentage)
(a) NationsBank $__________________
(b) [Lender] $__________________
5. Excess (shortfall) of each
Lender's Commitment
Amount over its outstanding
(a) NationsBank (line
3(a) - line 1(a)) $__________________
(b) [Lender] (line
3(b) - line 1(b)) $__________________
<PAGE>
6. Aggregate Amount of Letter
of Credit Obligations
outstanding on Settlement
Date $__________________
7. Each Lender for which an excess (a positive dollar amount)
is shown in item 4 shall pay an amount equal to such excess to
the Agent pursuant to the wire transfer instructions set forth
below, for payment by the Agent to each Lender for which a
shortfall (a negative dollar amount) is shown in item 4 to the
extent of such shortfall.
(i) Wire Transfer Instructions:
NationsBank of Georgia, N.A.
_____________________________
_____________________________
_____________________________
(a) NATIONSBANK OF GEORGIA, N.A.
as Agent
By:
Name:
Title:
<PAGE>
D.EXHIBIT G
1. FORM OF
(a) QUARTERLY COMPLIANCE CERTIFICATE
The undersigned, Larry Sayer, the Chief Financial Officer of
Collins Industries, Inc., hereby certifies to the Agent and the
Lenders, under and as defined in Section 10.3 of the Loan and
Security Agreement dated as of __, 1995, to
which Collins Industries, Inc., among others, is a party, in
accordance with the provisions of Section 10.3 of the Loan
Agreement, that:
1. As of _____________________ [date of last day of
accounting quarter or fiscal year], the Borrowers were/were
not in compliance with the covenants set forth in Sections
11.1, 11.2, 11.6, 11.11 and 11.12 of the Loan Agreement, as
detailed on the worksheet attached; and
2. Based on an examination sufficient to enable him to
make an informed statement, no Default or Event of Default
exists as of the date hereof [other than:1/].
IN WITNESS WHEREOF, the undersigned has executed and delivered
this Certificate as of __, 199__.
Chief Financial Officer
[FN]
(See accompanying notes)
<PAGE>
(i)SCHEDULE 1.1
(a)ACCEPTABLE CHASSIS MANUFACTURERS
1. Ford Motor Company
2. General Motors
3. Chrysler Corporation
4. Freightliner
5. Navistar
6. Spartan
7. Oshkosh
<PAGE>
(ii)SCHEDULE 1.1A
(a)REFINANCED INDEBTEDNESS
Creditor Amount
1. Massachusetts Mutual Life Insurance Company $ 12,775,000
1295 State Street
Springfield, MA 01111
Guaranteed Senior Notes Due February 1, 2002
2. Northwestern National Life Insurance Company $ 4,562,500
c/o Washington Square Capital, Inc.
100 Washington Square, Suite 800
Minneapolis, MN 55401-2147
Guaranteed Senior Notes Due February 1, 2002
3. The North Atlantic Life Insurance Co. $ 912,500
of America
c/o Washington Square Capital, Inc.
100 Washington Square, Suite 800
Minneapolis, MN 55401-2147
Guaranteed Senior Notes Due February 1, 2002
4. Ford Motor Credit Company $ 3,871,402
Ford Motor Credit Company
7570 W. 21st Street, Bldg. 1038
P.O. Box 7709
Wichita, KS 67277-7709
Ford Motor Credit Company
2600 Lake Lucien Drive, Suite 306
Maitland, FL 32751-7235
Floor Plan Financing Notes
<PAGE>
5. General Motors Acceptance Corporation $ 719,000
General Motors Acceptance Corporation
8100 East 22nd Street North, Suite 23
Wichita, KS 67201
General Motors Acceptance Corporation
3444 McCrory Place, Suite 200
Orlando, FL 32814
Floor Plan Financing Notes
<PAGE>
SCHEDULE 1.1B
(b)PERMITTED INVESTMENTS
1. Real Estate Lien Note dated June 11, 1993, with Michael W.
Sollars and Cheryl J. Hewett-Sollars, as Makers, and Collins
Industries, Inc., as Seller, in the principal amount of
$225,000 for land and building in Harrison County, Texas.
2. Investments in Subsidiaries as of the Effective Date.
3. Intercompany loans among the Borrowers.
4. Lease of property located on 11th Street in Hutchinson, Kansas
to Alcoa.
<PAGE>
(iii)SCHEDULE 1.1C
(a)PERMITTED LIENS
1. $1,750,000 Industrial Revenue Bonds, Series 1984A,
issued by the City of South Hutchinson, Kansas.
2. $3,500,000 Industrial Revenue Bonds, Series 1979,
issued by the City of Hutchinson, Kansas.
3. $1,250,000 Industrial Revenue Bonds, Series 1989A,
issued by the City of Newton, Kansas.
4. $1,250,000 Commercial Deed of Trust, Security
Agreement, Assignment of Leases and Rents, and Fixture
Filing dated September 30,1 991, in favor of MetLife Capital
Corporation, as Beneficiary.
5. $120,000 Floor Plan Loan from Chrysler Credit
Corporation.
6. Liens in favor of Ford Motor Credit Corporation on
chassis produced by Ford Motor Company, so long as such
Liens are released as to any chassis included in Eligible
Chassis Inventory.
<PAGE>
i)SCHEDULE 1.1(D)
a)SECOND MORTGAGE REAL ESTATE
415 West Sixth, South Hutchinson, Kansas
1401 South Spencer Avenue, Newton, Kansas
Hutchinson Air Base Industrial Tract
<PAGE>
SCHEDULE 6.1(a)
QUALIFICATION
Corporation State of Foreign Qualification
Collins Industries, Inc. Kansas
Transi-Corp. Kansas
Wheeled Coach Industries, Inc. Kansas
<PAGE>
SCHEDULE 6.1(b)
(b)CAPITALIZATION
Name of Shareholder Percent Owned
Don L. Collins 15.49%1/1/
Dimensional Fund Advisors, Inc. 7.26%1/
Donald Lynn Collins 6.00%1/2/
Collins Industries, Inc. Tax Deferred
Savings Plan and Trust 5.78%2/
[FN]
(See accompanying notes)
<PAGE>
<TABLE>
SCHEDULE 6.1c
b)SUBSIDIARIES; OWNERSHIP OF STOCK
<C> <C> <C> <C>
% Shares Owned
By Borrower or
Name/Address of State of Subsidiary/ Consolidated
Subsidiary Incorporation Name of Parent Subsidiary
Wheeled Coach Florida (100%)/Collins Yes
Industries, Inc. Industries
2778 North Forsyth
Road
Winter Park, Florida
32792
and
Hutchinson Air Base
Industrial
Tract (HABIT)
Route #2
Hutchinson, Kansas
67505
Collins Bus Kansas (100%)/Collins Yes
Corporation Industries
415 West Sixth
South Hutchinson,
Kansas 67505
Mobile-Tech Kansas (100%)/Collins Yes
Corporation Industries
Hutchinson Air Base
Industrial
Tract (HABIT)
Route #2
Hutchinson, Kansas
67505
Capacity of Texas, Texas (100%)/Collins Yes
Inc. Industries
401 Capacity Drive
Longview, Texas
75604-5341
World Trans, Inc. Kansas (100%)/Collins Yes
1401 S. Spencer Industries
Newton, Kansas
67114
Collins Ambulance Kansas (100%)/Collins Yes
Corporation* Industries
421 East 30th Avenue
Hutchinson, Kansas
67502
Collins Financial Kansas (100%)/Collins Yes
Services* Industries
421 East 30th Avenue
Hutchinson, Kansas
67502
Global Captive Kansas (100%)/Collins Yes
Casualty & Surety Industries
Company
421 East 30th Avenue
Hutchinson, Kansas
67502
Transi-Corp. Alabama (100%)/Capacity Yes
1401 S. Spencer of Texas
Newton, Kansas
67114
Wheeled Coach Florida (99.9%)/Wheeled Yes
Enterprises, Inc.* Coach
2778 North Forsyth Industries,
Road Inc.
Winter Park, Florida
32792
* Inactive subsidiaries.
</TABLE>
<PAGE>
SCHEDULE 6.1(e)
(c)COMPLIANCE WITH LAWS
1. Note Agreements dated January 29, 1993 between Collins
Industries, Inc. and each of Massachusetts Mutual Life
Insurance Company, Northwestern National Life Insurance
Company and The North Atlantic Life Insurance Company of
America (the "Senior Note Holders"), as amended, for
$20,000,000 aggregate principal amount of Guaranteed Senior
Notes due February 1, 2002 (the "Senior Notes"), which are to
repaid in full on the Effective Date.
<PAGE>
<TABLE>
SCHEDULE 6.1(f)
BUSINESS
<C> <C>
Borrower Business
Collins Industries, Inc. Holding company
Collins Bus Corporation Manufactures school buses;
school bus part sales; school
bus rental and leasing
Wheeled Coach Industries, Inc. Manufactures ambulances;
medical supply sales for
ambulances; ambulance part
sales; ambulance rental and
leasing
Capacity of Texas, Inc. Manufactures terminal trucks;
truck part sales; terminal
truck rental and leasing
Mobile-Tech Corporation Manufactures wheelchair lift
devices, wheelchair restraint
systems, and products for
disabled persons; part sales
Transi-Corp. Manufactures chassis; chassis
part sales
World Trans, Inc. Manufactures commercial
buses; commercial bus part
sales; commercial bus rental
and leasing
</TABLE>
<PAGE>
SCHEDULE 6.1(g)
GOVERNMENTAL APPROVALS
None
<PAGE>
SCHEDULE 6.1(h)
TITLE TO PROPERTIES
Not applicable
<PAGE>
SCHEDULE 6.1(i)
LIENS
NAME SEARCHED: AMBULANCE SALES AND SERVICE
JURISDICTION: TEXAS SECRETARY OF STATE
UCC FILINGS: (through 1/4/95)
Debtor: Wheeled Coach Industries, Inc.
DBA Ambulance Sales and Service
Secured Party: Ford Motor Credit Company
Collateral: Vehicles
File Number: 150954
Date Filed: 8/2/93
NAME SEARCHED: CAPACITY OF TEXAS, INC.
JURISDICTION: TEXAS SECRETARY OF STATE
UCC FILINGS: (through 1/4/95)
Debtor: Capacity of Texas, Inc.
Secured Party: Ford Motor Credit Co.
Collateral: Vehicles
File Number: 181394
Date Filed: 8/22/90
Debtor: Capacity of Texas, Inc.
Secured Party: Metlife Capital Corporation
Collateral: Real property & related
File Number: 39610
Date Filed: 3/2/92
Debtor: Capacity of Texas, Inc.
Secured Parties: Massachusetts Mutual Life Insurance
Company, et al
Collateral: Blanket
File Number: 24204
Date Filed: 2/10/94
NAME SEARCHED: CLASSIC MANUFACTURING, INC.
JURISDICTION: KANSAS SECRETARY OF STATE
FEDERAL TAX LIENS: (through 1/6/95)
Tax Payer: Classic Manufacturing, Inc.
Kind of Tax: 1120
Tax Period Ended: 3/31/77
Date of Assessment: 12/21/88
Last Day for Refilling: 1/20/95
<PAGE>
Unpaid Balance: $121,687.66
NAME SEARCHED: COLLINS BUS CORPORATION
JURISDICTION: KANSAS SECRETARY OF STATE
UCC FILINGS: (through 1/6/95)
Debtor: Collins Bus Corporation
Secured Party: General Motors Acceptance Corp.
Collateral: Chassis and/or vehicles
File Number: 1379248
Date Filed: 11/2/88
Amendment: 1649511
File Date: 2/5/91
Continuation: 1936888
File Date: 8/12/93
Amendment: 2053282
File Date: 8/19/94
Debtor: Collins Bus Corporation
Secured Party: Clume Equipment Leasing Corp.
Collateral: Office equipment
File Number: 1796603
File Date: 5/15/92
Debtor: Collins Bus Corporation
Secured Party: ITT Commercial Finance Corp.
Collateral: Blanket
File Number: 1801740
File Date: 6/3/92
Amendment: 1902614
File Date: 4/23/93
Debtor: Collins Bus Corporation
Secured Party: Chrysler Corporation
Collateral: Vehicles
File Number: 1918593
File Date: 6/10/93
Debtor: Collins Bus Corporation
Secured Party: Ford Motor Credit Company
Collateral: Vehicles
File Number: 1933727
File Date: 8/2/93
Amendment: 1938245
File Date: 8/17/93
Debtor: Collins Bus Corporation
Secured Party: Massachusetts Mutual Life Insurance
Company, et al
Collateral: Blanket
File Number: 1992436
<PAGE>
File Date: 2/10/94
<PAGE>
Debtor: Collins Bus Corporation
Secured Party: Clune Equipment Leasing Services, Inc.
Collateral: Office equipment
File Number: 1997292
File Date: [2/28/94]
Debtor: Collins Bus Corporation
Secured Party: Danka Processing
Collateral: Equipment
File Number: 2023351
File Date: 5/16/94
Debtor: Collins Bus Corporation
Secured Party: General Motors Acceptance Corporation
Collateral: Chassis and/or vehicles
File Number: 2053113
File Date: 8/19/94
NAME SEARCHED: COLLINS FINANCIAL SERVICES
JURISDICTION: KANSAS SECRETARY OF STATE
UCC FILINGS: (through 1/6/95)
Debtor: Collins Financial Services
Secured Party: First Interstate Bank of Texas, N.A.
Collateral: Blanket
File Number: 1793556
File Date: 5/7/92
Debtor: Collins Financial Services
Secured Parties: Massachusetts Mutual Life Insurance
Company, et al
Collateral: Blanket
File Number: 1992437
File Date: 2/10/94
NAME SEARCHED: COLLINS INDUSTRIES, INC.
JURISDICTION: KANSAS SECRETARY OF STATE
UCC FILINGS: (through 1/6/95)
Debtor: Collins Industries, Inc.
Secured Party: City of Hutchinson
Collateral: Lease b/t Debtor and Secured Party
File Number: 508050
File Date: 10/1/79
Continuation: 051510 (The First National Bank of
Hutchinson - no assignment)
File Date: 8/31/84
Continuation: 1458359
File Date: 6/27/89
Continuation: 2042365
File Date: 7/14/94
<PAGE>
Debtor: Collins Industries, Inc.
Secured Party: Ford Motor Credit Company
Collateral: Vehicles
File Number: 546507
File Date: 7/3/80
Amendment: 627993
File Date: 12/29/81
Continuation: 0919351
File Date: 4/22/85
Amendment: 1300120
File Date: 3/18/88
Amendment: 1454194
File Date: 7/14/89
Continuation: 1529571
File Date: 2/7/90
Amendment: 1521555
File Date: 6/12/90
Debtor: Collins Industries, Inc.
Secured Party: General Motors Acceptance Corp.
Collateral: Vehicles
File Number: 821798
File Date: 5/29/84
Continuation: 1448315
File Date: 5/26/89
Amendment: 1649512
File Date: 2/5/91
Continuation: 1968549
File Date: 11/10/93
Debtor: Collins Industries, Inc.
Secured Party: Ford Motor Co.
Collateral: Vehicles
File Number: 1519413
File Date: 6/8/90
Debtor: Collins Industries, Inc.
Secured Party: Ford Motor Credit Company
Collateral: Vehicles
File Number: 1575556
File Date: 7/21/90
Amendment: 1594881
File Date: 8/20/90
Amendment: 1769222
File Date: 2/26/92
Amendment: 1806498
File Date: 6/17/92
Amendment: 1858450
File Date: 12/4/92
Debtor: Collins Industries, Inc.
Secured Party: Clune Equipment Leasing
Collateral: Equipment
File Number: 1801224
File Date: 6/1/92
Debtor: Collins Industries, Inc.
Secured Party: Massachusetts Mutual Life Insurance
Company, et al
Collateral: Blanket
File Number: 1992434
File Date: 2/10/94
JURISDICTION: MISSOURI SECRETARY OF STATE
UCC FILINGS: (through 12/30/94)
Debtor: Collins Industries, Inc.
Secured Parties: Massachusetts Mutual Life Insurance
Company, et al
Collateral: Blanket
File Number: 2366482
Date Filed: 2/10/94
NAME SEARCHED: GLOBAL CAPTIVE CASUALTY & SURETY
JURISDICTION: KANSAS SECRETARY OF STATE
UCC FILINGS: (through 1/6/95)
Debtor: Global Captive Casualty & Surety Company
Secured Party: Massachusetts Mutual Life Insurance
Company, et al
Collateral: Blanket
File Number: 1992432
Date Filed: 2/10/94
MOBILE-TECH CORPORATION
JURISDICTION: SECRETARY OF STATE KANSAS
UCC FILINGS: (through 1/6/95)
Debtor: Mobile-Tech Corp.
Secured Party: Business Systems Leasing
Collateral: Equipment
File Number: 1788749
File Date: 4/23/92
Debtor: Mobile-Tech Corporation
Secured Party: Massachusetts Mutual Life Insurance
Company
Collateral: Blanket
File Number: 1992433
File Date: 2/10/94
NAME SEARCHED: TRANSI-CORP.
JURISDICTION: ALABAMA SECRETARY OF STATE
UCC FILINGS: (through 1/11/95)
Debtor: Transi-Corp.
Secured Party: Massachusetts Mutual Life Insurance
Company, et al
Collateral: Blanket
File Number: 94-04617
Date Filed: 2/10/94
NAME SEARCHED: WHEELED COACH INDUSTRIES, INC.
JURISDICTION FLORIDA SECRETARY OF STATE
UCC FILINGS: (through 1/4/95)
Debtor: Wheeled Coach Industries, Inc.
Lessor: Yale Financial Services Trust
Assignee: General Electric Capital Corp.
Collateral: Leased equipment
File Number: 38355
File Date: 2/10/89
Continuation: 19935
File Date: 1/28/94
Debtor: Wheeled Coach Industries, Inc.
Secured Party: General Motors Acceptance Corporation
Collateral: Chassis and/or vehicles
File Number: 138969
File Date: 5/22/89
Amendment: 215111
File Date: 10/18/93
Continuation: 23042
File Date: 2/2/94
Debtor: Wheeled Coach Industries, Inc.
Secured Party: Ford Motor Credit Company
Collateral: Vehicles
File Number: 164353
File Date: 1/28/90
Amendment: 231553
File Date: 10/25/91
Amendment: 166081
File Date: 8/9/93
Continuation: 260385
File Date: 12/28/94
Debtor: Wheeled Coach
Secured Party: Ford Motor Credit Company
Collateral: Vehicles
File Number: 164353
File Date: 1/28/90
Debtor: Wheeled Coach Industries, Inc.
Secured Party: Ford Motor Credit Company
Collateral: Vehicles
File Number: 164354
File Date: 6/27/90
Amendment: 231554
File Date: 10/28/91
Amendment: 166092
File Date: 8/9/93
Continuation: 260384
File Date: 10/28/94
Debtor: Wheeled Coach Industries, Inc.
Secured Party: IBM Credit Corporation
Collateral: Equipment
File Number: 233813
File Date: 11/16/92
Debtor: Wheeled Coach Industries, Inc.
Secured Party: Massachusetts Mutual Life Insurance
Company, et al
Collateral: Blanket
File Number: 29882
File Date: 2/11/94
JURISDICTION: KANSAS SECRETARY OF STATE
UCC FILINGS: (through 1/6/95)
Debtor: Wheeled Coach Industries, Inc.
Secured Party: Business Systems Leasing
Collateral: Equipment
File Number: 1860083
File Date: 12/11/92
Debtor: Wheeled Coach Industries, Inc.
Secured Party: Business Systems Leasing
Collateral: Equipment
File Number: 925405
File Date: 7/2/93
Debtor: Wheeled Coach Industries, Inc.
Secured Party: Ford Motor Credit Company
Collateral: Vehicles
File Number: 1933728
File Date: 8/2/93
Debtor: Wheeled Coach Industries, Inc.
Secured Party: Massachusetts Mutual Life Insurance
Company, et al
Collateral: Blanket
File Number: 1992435
File Date: 2/10/94
Debtor: Wheeled Coach Industries, Inc.
Secured Party: General Motors Acceptance Corporation
Collateral: Vehicles
File Number: 2066226
File Date: 10/3/94
NAME SEARCHED: WORLD TRANS, INC.
JURISDICTION KANSAS SECRETARY OF STATE
UCC FILINGS: (through 1/6/95)
Debtor: Collins Industries, Inc/World Trans
Secured Party: Ford Motor Co.
Collateral: Vehicles
File Number: 1519413
File Date: 6/8/90
SCHEDULE 6.1(j)
b)INDEBTEDNESS AND GUARANTEES
Indebtedness:
Creditor Amount
1. Ford Motor Credit $ 3,871,402.95
2. GMAC $ 719,000.00
3. The Senior Notes $ 18,250,000.00
4. Chrysler $ 120,000.00
Guaranties:
1. Note Guarantees of each Subsidiary other than Wheeled Coach
Enterprises, Inc. under the Note Agreement for the Senior
Notes issued to the Senior Noteholders
2. Guaranty Agreement dated October 1, 1989, between Collins
Industries, Inc. and First National Bank of Hutchinson,
guaranteeing payment of the $1,250,000 Series 1989A Industrial
Revenue Bonds issued by the City of Newton, Kansas
3. Guaranty Agreement dated September 1, 1979 between Collins
Industries, Inc. and First National Bank of Hutchinson,
guaranteeing payment of the $3,500,000 Series 1979 Industrial
Revenue Bonds issued by the City of Hutchinson, Kansas
4. Guaranty Agreement dated August 1, 1984 between Collins
Industries, Inc. and Union National Bank of Wichita,
guaranteeing payment of the $1,750,000 Series 1984A Industrial
Revenue Bonds issued by the City of South Hutchinson, Kansas
5. Guaranty of Vendor by Collins Industries, Inc. in favor of ITT
Commercial Finance
6. Residual Guaranties by Collins Bus Corporation and Collins
Industries, Inc. in favor of Rock Island Bank
7. Guaranty by Collins Industries, Inc. of $250,000 Letter of
Credit issued to Global Captive Casualty & Surety Company by
the First State Bank of Junction City, Kansas
SCHEDULE 6.1(k)
LITIGATION
None
SCHEDULE 6.1(l)
TAX MATTERS
As disclosed in Schedule 6.1(i), a federal tax lien for unpaid
tax in the amount of $121,687.66 has been filed with the Kansas
Secretary of State against Classic Manufacturing, Inc., a
dissolved subsidiary of Collins. Collins is investigating
whether it or one of its subsidiaries owes the tax.
SCHEDULE 6.1(p)
ERISA
1. Collins Industries, Inc. Tax Deferred Savings Plan and Trust
2. Collins Industries, Inc. Employees Beneficiary Association
Trust (EBAT) - Health and Life Insurance
3. Collins Industries, Inc. Cafeteria Benefits Plan
SCHEDULE 6.1(t)
(d)LOCATION OF OFFICES AND RECEIVABLES
Collins Industries, Inc.
421 East 30th Avenue
Hutchinson, Kansas 67502-2493
(Reno County)
Wheeled Coach Industries, Inc.
2777 and 2778 North Forsyth Road
Winter Park, Florida 32792
(Orange County)
Collins Bus Corporation
415 West Sixth
South Hutchinson, Kansas 67505
(Reno County)
Mobile-Tech Corporation
Hutchinson Air Base Industrial
Tract (HABIT)
Route #2
Hutchinson, Kansas 67505
(Reno County)
Capacity of Texas,Inc.
401 Capacity Drive
Longview, Texas 75604-5341
(Gregg County)
World Trans, Inc.
1401 S. Spencer
Newton, Kansas 67114
(Harvey County)
Transi-Corp.
1401 S. Spencer
Newton, Kansas 67114
(Harvey County)
SCHEDULE 6.1(u)
(e)LOCATION OF INVENTORY
Collins Industries, Inc.
421 East 30th Avenue
Hutchinson, Kansas 67502-2493
(Reno County)
Wheeled Coach Industries, Inc.
2777 and 2778 North Forsyth Road
Winter Park, Florida 32792
(Orange County)
and
Hutchinson Air Base Industrial
Tract (HABIT)
Route #2
Hutchinson, Kansas 67505
(Reno County)
Collins Bus Corporation
415 West Sixth
South Hutchinson, Kansas 67505
(Reno County)
Mobile-Tech Corporation
Hutchinson Air Base Industrial
Tract (HABIT)
Route #2
Hutchinson, Kansas 67505
(Reno County)
Capacity of Texas,Inc.
401 Capacity Drive
Longview, Texas 75604-5341
(Gregg County)
World Trans, Inc.
1401 S. Spencer
Newton, Kansas 67114
(Harvey County)
i)SCHEDULE 6.1(u) (continued)
(f)LOCATION OF INVENTORY
Transi-Corp.
Highway 31
Evergreen, Alabama
(Conecuh County)
and
1401 S. Spencer
Newton, Kansas 67114
(Harvey County)
Wheeled Coach Sales Offices:
Foxboro Service Center
95 Main Street
Foxboro, MA 02035
California Service Center
23452 Peralta Drive, Suite C
Laguna Hills, CA 92653
Texas Service Center
202 Sentry Drive
Mansfield, TX 76063
SCHEDULE 6.1(v)
EQUIPMENT
Collins Industries, Inc.
421 East 30th Avenue
Hutchinson, Kansas 67502-2493
(Reno County)
Wheeled Coach Industries, Inc.
2777 and 2778 North Forsyth Road
Winter Park, Florida 32792
(Orange County)
and
Hutchinson Air Base Industrial
Tract (HABIT)
Route #2
Hutchinson, Kansas 67505
(Reno County)
Collins Bus Corporation
415 West Sixth
South Hutchinson, Kansas 67505
(Reno County)
Mobile-Tech Corporation
Hutchinson Air Base Industrial
Tract (HABIT)
Route #2
Hutchinson, Kansas 67505
(Reno County)
Capacity of Texas,Inc.
401 Capacity Drive
Longview, Texas 75604-5341
(Gregg County)
World Trans, Inc.
1401 S. Spencer
Newton, Kansas 67114
(Harvey County)
ii)SCHEDULE 6.1(v) (continued)
EQUIPMENT
Transi-Corp.
Highway 31
Evergreen, Alabama
(Conecuh County)
and
1401 S. Spencer
Newton, Kansas 67114
(Harvey County)
Wheeled Coach Sales Offices:
Foxboro Service Center
95 Main Street
Foxboro, MA 02035
California Service Center
23452 Peralta Drive, Suite C
Laguna Hills, CA 92653
Texas Service Center
202 Sentry Drive
Mansfield, TX 76063
SCHEDULE 6.1(w)
REAL ESTATE
1. 421 East 30th Avenue, Hutchinson, Kansas
2. 511 South Main Street, Hutchinson, Kansas
3. 2777 and 2778 North Forsyth Road, Winter Park, Florida
4. Sentry Industrial Park, Mansfield, Texas
5. Sentry Industrial Park, Mansfield, Texas
6. 415 West Sixth Street, South Hutchinson, Kansas
7. 1401 South Spencer Avenue, Newton, Kansas
8. 401 Capacity Drive, Longview, Texas
9. Hutchinson Air Base Industrial Tract
10. 11th Street, Hutchinson, Kansas (leased to Alcoa)
11. Highway 31, Evergreen, Alabama
12. Wheeled Coach Sales Offices:
Foxboro Service Center
95 Main Street
Foxboro, MA 02035
California Service Center
23452 Peralta Drive, Suite C
Laguna Hills, CA 92653
Texas Service Center
202 Sentry Drive
Mansfield, TX 76063
SCHEDULE 6.1(x)
b)CORPORATE AND FICTITIOUS NAMES
Corporate Name Fictitious Name
Collins Industries,Inc., a Missouri corporation None
Collins Bus Corporation, a Kansas corporation None
Mobile-Tech Corporation, a Kansas corporation None
Wheeled Coach Industries, Inc., a Florida corporation None*
Capacity of Texas, Inc., a Texas corporation None
Transi-Corp, an Alabama corporation None
World Trans, Inc., a Kansas corporation
(formerly Ambutech, Inc.) None
______________________
* Wheeled Coach Industries, Inc. is in the process of
registering EM Supply Depot as a fictitious name in Florida.
SCHEDULE 6.1(aa)
EMPLOYEE RELATIONS
1. The Steelworkers Union represents workers at Capacity
of Texas, Inc. Negotiations are at an impasse and no
contract is in place.
SCHEDULE 6.1(bb)
PROPRIETARY RIGHTS
PATENTS
Registration Issue Inventor Case Title Country
No. Date
4,138,023 02-06-1979 Rohrs, Donald L. Vehicle Wheelchair U.S.A
Lift
5,188,445 02-23-1993 Haun, et al. Vehicle Having U.S.A
Warning Units
Mounted Within
Hood Cutouts
4,084,713 04-18-1978 Rohrs, Donald L. Vehicle Wheelchair U.S.A.
Ramp
4,270,630 06-02-1981 Karkau,Lawrence E Automatic Lift U.S.A.
Assembly
5,020,820 06-04-1991 Renner, R. John, Tractor Suspension U.S.A.
et al.
4,272,923 06-16-1981 Anderson,Bruce H. Vehicle Door U.S.A
4,214,849 07-29-1980 Downing,Harold A. Retractable Rail For U.S.A.
A Vehicle Lift
4,164,292 08-14-1979 Karkau,Lawrence E Automatic Lift U.S.A.
Assembly
5,040,936 08-20-1991 Rhea, Michael A. Barrier For Lift U.S.A.
Platform
4,113,121 09-12-1978 Collins,Donald L. Pin Release Device U.S.A
For A Wheelchair
Lift
4,407,616 10-04-1983 Hinze,William W. Wheelchair Lock for U.S.A.
Reducing Wheel Spoke
Interference
Registration Issue Inventor Case Title Country
Date No.
4,124,130 11-07-1978 Rohrs, Donald L Safety Barrier For A U.S.A.
Wheelchair Lift
4,482,284 11-13-1984 Robbins,Bobbie L. Automatic Hand Rail U.S.A.
4,062,209 12-13-1977 Downing,Harold A. Wheelchair Lock U.S.A.
D-314,733 02-19-1991 Richter,Brent A. Vehicle Body U.S.A.
et al.
D-270,245 08-23-1983 Collins,Robert R. Ambulance Body or U.S.A.
Similar Article
D-341,118 11-09-1993 Haun, Harold Des: Combined U.S.A.
et al. Vehicle Hood And
Warning Units
Applicatication Filing Inventor Case Title U.S.A.
Serial No. Date
29/008,408 05-14-1993 Davis,Herschel W Motor Vehicle Grille U.S.A.
29/028,925 09-26-1994 Davis,Herschel W Motor Vehicle Grille U.S.A.
TRADEMARKS
Registration Registration Trademarks Country
No. Date
0,975,833 01-01-1974 TRAILER JOCKEY & U.S.A.
DESIGN
1,630,599 01-08-1991 TECH II & DESIGN U.S.A.
1,424,769 01-13-1987 DESIGN ONLY U.S.A.
1,316,884 01-29-1985 YARDMASTER U.S.A.
1,115,231 03-20-1979 SAF-T-LIFT U.S.A.
1,326,822 03-26-1985 COLLINS U.S.A.
0,981,553 04-02-1974 CAPACITY U.S.A.
1,063,759 04-19-1977 OCTAFLASH U.S.A.
1,090,110 04-25-1978 COLLINS U.S.A.
1,644,978 05-21-1991 STEP-LIFT U.S.A.
1,159,064 06-30-1981 FLIP SEAT U.S.A.
Registration Registration Trademark Country
No. Date
1,069,353 07-12-1977 SAF-T-LOCK U.S.A.
1,353,933 08-13-1985 TRANSI-CORP U.S.A.
1,554,610 09-05-1989 WORLD TRANS & U.S.A.
DESIGN
1,073,117 09-13-1977 VERSA-BUS U.S.A.
1,460,785 10-13-1987 COLLINS BUS U.S.A.
CORPORATION &
DESIGN
1,364,863 10-08-1985 COLLINS FINANCIAL U.S.A.
SERVICES
1,413,260 10-14-1986 WHEELED COACH & U.S.A.
DESIGN
1,080,298 12-27-1977 ECONO/RAMP U.S.A.
1,643,534 05-07-91 DURA-RIDE U.S.A.
1,734,653 11-24-92 MODUVAN U.S.A.
1,814,579 12-28-93 UNDER-VEHICLE LIFT U.S.A.
1,712,663 09-01-92 HEALTHGARD U.S.A.
Registration Issue Date Trademark Country
No.
1,824,331 03-01-1994 UVL U.S.A.
1,824,330 03-01-1994 COMFORT CAB U.S.A
SCHEDULE 6.1(cc)
TRADENAMES
1. EM Supply Depot
2. Those names included on Schedule 6.1(bb)
(iv)SCHEDULE 9.8
(a)USE OF PROCEEDS
Creditor Amount
3. Massachusetts Mutual Life $13,261,869.88
Insurance Company
1295 State Street
Springfield, MA 01111
Contact: Richard C. Morrison
4. Northwestern National Life $ 4,738,156.28
Insurance Company
c/o Washington Square Capital,Inc.
100 Washington Square, Suite 800
Minneapolis, MN 55401-2147
Contact: James V. Wittich
5. The North Atlantic Life $ 947,631.24
Insurance Co. of America
c/o Washington Square Capital, Inc.
100 Washington Square, Suite 800
Minneapolis, MN 55401-2147
Contact: James V. Wittich
6. Ford Motor Credit Company $ 3,871,402.95
7570 W. 21st Street, Bldg. 1038
P.O. Box 7709
Wichita, KS 67277-7709
Contact: Paul Childers or Tom McCrea
7. Ford Motor Credit Company $ see above
2600 Lake Lucien Drive, Suite 306
Maitland, FL 32751-7235
Contact: Clyde P. Schexnayder
8. General Motors Acceptance $ 0
Corporation
8100 East 22nd Street North,
Suite 23
Wichita, KS 67201
Contact: P.J. Marquardt
9. General Motors Acceptance $ 0
Corporation
3444 McCrory Place, Suite 200
Orlando, FL 32814
Contact: Ed Revel or Kevin Malcolm
Amounts are as of March 31, 1995.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> OCT-31-1994
<PERIOD-END> JUL-31-1995
<CASH> 76,995
<SECURITIES> 0
<RECEIVABLES> 7,419,519
<ALLOWANCES> 0
<INVENTORY> 26,263,343
<CURRENT-ASSETS> 34,570,275
<PP&E> 35,544,623
<DEPRECIATION> 21,851,011
<TOTAL-ASSETS> 49,655,013
<CURRENT-LIABILITIES> 14,424,154
<BONDS> 0
<COMMON> 727,474
0
0
<OTHER-SE> 8,519,066
<TOTAL-LIABILITY-AND-EQUITY> 49,655,013
<SALES> 103,887,448
<TOTAL-REVENUES> 103,887,448
<CGS> 90,577,605
<TOTAL-COSTS> 100,843,550
<OTHER-EXPENSES> (149,035)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,631,315
<INCOME-PRETAX> 561,618
<INCOME-TAX> 0
<INCOME-CONTINUING> 561,618
<DISCONTINUED> 0
<EXTRAORDINARY> (420,444)
<CHANGES> 0
<NET-INCOME> 141,174
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