TENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Tenth Amendment to Loan and Security Agreement, dated
as of November 29, 1993 ("Tenth Amendment"), amends in certain
respects the terms of a certain Loan and Security Agreement,
dated as of March 21, 1990, by and between and among Great Dane
Trailers, Inc., a Georgia corporation, Great Dane Trailers
Nebraska, Inc., a Nebraska corporation and Great Dane Trailers
Tennessee, Inc., a Tennessee corporation (each of the foregoing
individually, a "Borrower" and collectively, "Borrower") the
Lenders from time to time parties thereto, and Security Pacific
Business Credit Inc., a Delaware corporation, as agent ("Agent"),
(the Loan and Security Agreement, as amended, modified, and
supplemented prior to the date hereof being hereinafter referred
to as "Loan Agreement").
WITNESSETH
WHEREAS, Great Dane Trailers Indiana, Inc., an Indiana
corporation was merged into Great Dane Trailers, Inc. on April 3,
1990;
WHEREAS, Great Dane Trailers, Inc. has acquired and now owns
all of the issued and outstanding voting stock of Great Dane Los
Angeles, Inc. ("GDTLA") and desires that GDTLA become a co-
borrower under the Loan Agreement;
WHEREAS, Borrowers have requested that the Lenders agree to
amend the provisions of the Loan Agreement to provide for an
increase in the Term Loan Commitment and to permit a portion of
the Revolving Credit Commitment to be used for banker's
acceptances, and to amend the Loan Agreement in certain respects;
WHEREAS, the Lenders are willing to make such amendments on
the condition that certain other amendments be made to the Loan
Agreement, and otherwise on the terms and conditions herein set
forth.
NOW, THEREFORE, in consideration of the mutual conditions
and agreements set forth in this Tenth Amendment, and for good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, each of Borrower, GDTLA, the Agent, and
the Lenders hereby agrees as follows.
SECTION 1. DEFINED TERMS. For purposes of this Tenth
Amendment, "AMENDMENT DOCUMENTS" means all documents executed by
the parties to this Tenth Amendment in connection with the
execution of this Tenth Amendment, including all agreements,
certificates, instruments, amendments, and other related
documents.
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Terms capitalized herein and not otherwise defined herein shall
have the respective meanings ascribed to them in the Loan
Agreement.
SECTION 2. AMENDMENT OF SECTION 1.1
2.1 Section 1.1 of the Loan Agreement is amended by adding
the following definitions:
"'BORROWERS' means, collectively, Great Dane Trailers,
Inc., a Georgia corporation; Great Dane Trailers
Nebraska, Inc., a Nebraska corporation; Great Dane
Trailers Tennessee, Inc., a Tennessee corporation; and
Great Dane Los Angeles, Inc., a Georgia corporation,
and `BORROWER' means each of the foregoing,
individually.
'CAPITAL EXPENDITURE LOAN COMMITMENT' means, with
respect to each Lender, the amount set forth beside
such Lender's name under the heading Capital
Expenditure Loan Commitment on the signature pages of
this Agreement or, after an assignment pursuant to
SECTION 14.3, shown for such Lender in the Register,
and 'Capital Expenditure Loan Commitments' shall,
collectively, mean the aggregate amount of the Capital
Expenditure Loan Commitments of all the Lenders, the
maximum amount of which shall not exceed $2,800,000.
'CAPITAL EXPENDITURE TERM NOTE' has the meaning
specified in Section 2.5.
'CAPITAL EXPENDITURE TERM LOAN' has the meaning
specified in Section 2.5.
'GDTLA' means Great Dane Los Angeles, Inc., a Georgia
corporation.
'QUALIFIED CAPITAL EXPENDITURE' means the lesser of (i)
the amount of the Lenders' advance under the Capital
Expenditure Loan Commitment and (ii) a Capital
Expenditure, less taxes, freight, and capitalized
interest attributable thereto and such other exclusions
as Lenders may reasonably consider not to comprise
Capital Expenditures, made for the purpose of acquiring
and installing two new presses to be used in the
manufacture of truck trailers, containers, and related
products, one press to be installed at GDTN's Premises
located in Wayne, Nebraska, and the second to be
installed at GDT's Premises located in Brazil,
Indiana."
2.2 The definition of Adjusted Net Earnings from Operations
set forth in Section 1.1 of the Loan Agreement is amended by
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deleting at the end of the definition the words "determined in
accordance with GAAP; and (h) LIFO reserve changes." and
inserting in lieu thereof the following "determined in accordance
with GAAP; (h) LIFO reserve changes; and (i) the $27,128,000
effect of the accounting change in 1993."
2.3 The definition of "L/C SUBFACILITY" set forth in
Section 1.1 of the Loan Agreement is amended by deleting such
definition and inserting in lieu thereof the following:
"`L/C SUBFACILITY' means that portion of the Aggregate
Maximum Revolver Amount available for the issuance of
Letters of Credit, other than banker's acceptances, in
an aggregate amount not to exceed $20,000,000, and for
the issuance of banker's acceptances in an aggregate
amount not to exceed $10,000,000."
2.4 The definition of "LETTER OF CREDIT" set forth in
Section 1.1 of the Loan Agreement is amended by deleting such
definition and inserting in lieu thereof the following:
"'LETTER OF CREDIT' means a standby letter of credit, a
merchandise letter of credit, and a banker's acceptance
issued in connection with a letter of credit issued or
caused to be issued for the account of a Borrower
pursuant to Article 3."
2.5 The definition of "BORROWER PLEDGE AGREEMENT" set forth
in Section 1.1 of the Loan Agreement is amended by deleting such
definition and inserting in lieu thereof the following:
"'BORROWER PLEDGE AGREEMENT' means the Pledge
Agreement dated as of the Closing Date, in form and
substance satisfactory to the Lenders, executed and
delivered by GDT, pursuant to which (i) all of the
issued and outstanding capital stock of GDTLA, GDTN,
and GDTT shall be pledged to the Agent for the benefit
of the Secured Creditors as additional security for the
Obligations, and (ii) certain promissory notes payable
to GDT shall be pledged to the Agent for the benefit of
the Secured Creditors as additional security for the
Obligations."
2.6 The definitions of "COMMITMENT" and "COMMITMENTS" set
forth in Section 1.1 of the Loan Agreement are amended by
deleting such definitions and inserting in lieu thereof the
following:
"`COMMITMENT' means, at any time with respect to a
Lender, such Lender's Term Loan Commitment, Revolving
Credit Commitment, and Capital Expenditure Loan
Commitment and `COMMITMENTS' means, collectively, the
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Term Loan Commitments, Capital Expenditure Loan
Commitments, and Revolving Credit Commitments of all of
the Lenders, the maximum amount of which shall not
exceed $90,400,000."
2.7 The definition of "LOAN" set forth in Section 1.1 of
the Loan Agreement is amended by deleting such definition and
inserting in lieu thereof the following:
"`LOAN' means a Term Loan, a Revolving Loan (including
an SP Revolving Loan), or the Capital Expenditure Term
Loan."
2.8 The definition of "MAXIMUM REVOLVER AMOUNT" set forth
in Section 1.1 of the Loan Agreement is amended by deleting part
(a)(ii)(C)(1) of such definition and inserting in lieu thereof
the following:
"(1) $30,000,000 or (w) if such Borrower is GDT,
$25,000,000, or (x) if such Borrower is GDTN,
$3,000,000, or (y) if such Borrower is GDTT,
$2,000,000, or (z) if such Borrower is GDTLA,
$2,000,000 or"
2.9 Section 2 of the Loan Agreement is amended by the
addition of a new paragraph number 2.5, which shall read in its
entirety as follows:
"2.5 CAPITAL EXPENDITURE TERM LOANS.
(a) AMOUNT OF CAPITAL EXPENDITURE TERM LOANS.
Upon the request of GDTN relating to the press to be
installed in Wayne, Nebraska, and of GDT relating to
the press to be installed in Brazil, Indiana, , each
Lender severally agrees to make available to GDT and
GDTN from time to time capital expenditure advances in
an amount equal to such Lender's Pro Rata Share of
$2,800,000 or such lesser amount requested (the
`CAPITAL EXPENDITURE TERM LOAN') for the purpose of
funding Qualified Capital Expenditures in accordance
with the procedures specified in this section. Funds
paid to the Lenders in repayment of a Capital
Expenditure Term Loan, when repaid or prepaid, whether
by voluntary or mandatory prepayment or otherwise, may
not be reborrowed. Each capital expenditures advance
shall only be against Qualified Capital Expenditures
and shall be in a minimum amount of $100,000. Each
capital expenditure advance shall not exceed, when
added to all amounts previously advanced under the
Capital Expenditure Term Loan, an amount equal to the
lesser of:
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(i) $2,800,000; or
(ii) an amount equal to the actual, out-of-
pocket cost of Qualified Capital Expenditures.
(b) NOTICE OF BORROWING. (i) When GDT and GDTN
desire to borrow under Section 2.5, GDT and GDTN, as
appropriate, shall deliver to Agent a Notice of
Borrowing signed by an authorized officer of GDT or
GDTN no later than 11:00 a.m. (New York time) at least
one (1) Business Day in advance of each capital
expenditure advance. The Notice of Borrowing shall (1)
be in writing and shall be submitted, together with a
schedule and copies of invoices for such purchases and
any other documents required by Agent to support the
request, (2) specify the requested funding date of the
capital expenditure advance, and (3) shall specify the
amount of the requested capital expenditure advance.
(ii) Any Notice of Borrowing made pursuant to
this Section 2.5(b) shall be irrevocable.
(c) MAKING OF CAPITAL EXPENDITURE ADVANCES.
Promptly after receipt of a Notice of Borrowing under
Section 2.5(b), the Agent shall notify each Lender by
telex, telecopy, telegram, telephone, or other similar
means of transmission, of the proposed Borrowing. Each
Lender shall make the amount of such Lender's capital
expenditure advance available to the Agent as the Agent
may designate, not later than 12:00 noon (New York
time) on the capital expenditure advance funding date.
After Agent's receipt of the proceeds of such loan,
upon satisfaction of the applicable conditions
precedent set forth in Article 11, the Agent shall make
the proceeds of such loan available to GDT or GDTN by
transferring same day funds equal to the proceeds of
all such loans received by the Agent to an account of
GDT and GDTN designated in writing by GDT or GDTN or as
they shall otherwise instruct in writing.
(d) CAPITAL EXPENDITURE TERM NOTES. GDT and GDTN
shall execute and deliver to the Agent for the benefit
of each Lender, prior to the first capital expenditure
advance, promissory notes (the `Capital Expenditure
Term Notes') substantially in the form attached hereto
as Exhibit 2.5, to evidence such Lender's Capital
Expenditure Term Loan, in an original principal amount
equal to such Lender's Pro Rata Share of the $2,800,000
and with other appropriate insertions. Advances under
the Capital Expenditure Term Loan (the `capital
expenditure advance(s)') will be separately noted on
and evidenced
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by, repayable in accordance with, and subject to the
terms, conditions, and limitations of, the Capital
Expenditure Term Notes. Each of the Capital
Expenditure Term Notes delivered to the Agent for the
benefit of each Lender shall be dated as of the date on
or prior to the first advance thereunder, and each
advance thereunder shall be payable in 36 equal monthly
installments of principal, with the first such
installment being due and payable on the first day of
the first month immediately following the month in
which the advance is made, and all other payments
thereof shall be due and payable on the first day of
each month thereafter; provided, however, the entire
unpaid balance of the Capital Expenditure Term Loan, if
not sooner due and payable by reason of the provisions
of this Agreement, shall be due and payable in full on
March 21, 1995. Each such installment shall be payable
to the Agent for the account of such Lender.
(e) NOTATION AND ENDORSEMENT. The Agent
shall record in the Register the principal amount of
the Capital Expenditure Term Loan owing to each Lender
from time to time. In addition, each Lender is
authorized, to note the date and amount of each such
payment or prepayment of principal of such Lender's
Capital Expenditure Term Loan in its books and records,
such books and records constituting rebuttably
presumptive evidence of the accuracy of the information
contained therein. Prior to the transfer to a Capital
Expenditure Term Note, the Lender shall indorse on the
note the outstanding principal balance of the Capital
Expenditure Term Loan evidenced thereby. Failure of
such Lender to make such notation or endorsement shall
not affect the obligations of the Borrower under such
Capital Expenditure Term Note or any of the other Loan
Documents."
2.10 The Loan Agreement is amended by the attachment of an
Exhibit 2.5 which shall read in accordance with such exhibit
attached hereto and incorporated herein.
2.11 Subsection 3.2(b) of the Loan Agreement is amended by
deleting such subsection and inserting in lieu thereof the
following:
"(b) (i) which has a term of longer than one
(1) calendar year or an expiration date after the
Business Day prior to the Termination Date, or (ii)
with respect to banker's acceptance which has a payment
date of more than 180 days from the date of its
issuance or which has a payment date which is after the
Business Day prior to the Termination Date, or (iii)
with respect to
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a merchandise letter of credit which has a tenor of not
more than 180 days from the date of its issuance."
2.12 Subsection 4.1 (a) of the Loan Agreement is amended by
deleting such subsection and inserting in lieu thereof the
following:
"4.1 INTEREST. (a) The Borrowers agree, jointly
and severally, to pay the Lenders interest on the
unpaid principal balance of the Revolving Loans, the
Term Loans, and the Capital Expenditure Term Loans at a
fluctuating per annum rate equal to one and one-half
percent (1.5%) PLUS the Reference Rate. Each change in
the Reference Rate shall be reflected in the foregoing
interest rate as of the effective date of such change.
Interest charges shall be computed on the basis of a
year of 360 days and actual days elapsed and will be
payable to the Lenders, in the case of Revolving Loans,
monthly in arrears on the first day of each month
hereafter, in the case of Term Loans, monthly in
arrears on the first day of each month after the Term
Funding, in the case of Capital Expenditures Term
Loans, monthly in arrears on the first day of each
month after the initial funding of the Capital
Expenditures Term Loan, and, in each case, as otherwise
provided herein."
2.13 AMENDMENT OF SECTION 4.4. The Letter of Credit Fees
imposed under Section 4.4 of the Loan Agreement shall apply to
all Letters of Credit, other than banker's acceptances.
2.14 AMENDMENT OF ARTICLE 4. Article 4 of the Loan
Agreement is amended by the addition of a new section, Section
4.4A, which shall read in its entirety as follows:
"4.4A ACCEPTANCE FEES. In connection with the
establishment of the subfacility for banker's
acceptances, the Borrowers jointly and severally agree
to pay to the Agent monthly, for the ratable benefit of
the Lenders, for each banker's acceptance, a fee
("Acceptance Fee"), equal to (a) two and one-half
percent (2.50 %) per annum of the undrawn face amount
of each banker's acceptance created pursuant to this
Agreement and all associated charges incurred by
Lenders in connection therewith. All Acceptance Fees
which have accrued in each month shall be charged to
the Loan at the end of each month. The Acceptance Fee
shall be computed on the basis of a 360-day year for
the actual number of days elapsed."
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2.15 AMENDMENT OF SECTION 4.7. Section 4.7 of the Loan
Agreement is amended by deleting such section and inserting in
lieu thereof the following:
"4.7 FEES NOT INTEREST; FULLY EARNED. All fees
are for compensation for services and are not, and
shall not be deemed to be, interest or a charge for the
use of money. The fees provided for in Sections 4.3,
4.4, 4.4A, and 4.5 shall be fully earned when due and
payable, and no such fee shall be refundable or
rebatable by reason of any prepayment, acceleration
upon an Event of Default or any other circumstance."
2.16 AMENDMENT OF SECTION 8.2(D). Section 8.2(d) is amended
by inserting the words "or his designee" following the words
'chief financial officer."
2.17 AMENDMENT OF ARTICLE 10. Article 10 of the Loan
Agreement is amended by the addition of a new Section, number
10.7A, which shall read in its entirety as follows:
"10.7A. ENVIRONMENTAL QUESTIONNAIRE AND TESTING.
By no later than December 31, 1993, the Borrowers shall
deliver to the Agent a completed environmental
questionnaire and disclosure statement (which shall be
on a form provided by the Agent) for each of the
Premises."
2.18 AMENDMENT OF SUBSECTION 10.15A(G)(I)(C). Part
10.15A(g)(i)(C) of the Loan Agreement is amended by deleting such
part and inserting in lieu thereof the following:
"(C) the aggregate amount of (1) all Intercompany
Loans made during Fiscal Year 1993, is less than or
equal to the following amounts on or after the
following dates:
Aggregate Amount of Intercompany
Loans in Fiscal Year 1993 Dates in 1993
------------------------- -------------
$ 1,000,000 January 1
$ 2,000,000 February 1
$ 4,000,000 March 1
$ 5,000,000 May 1
$ 6,000,000 June 1
$ 7,000,000 July 1
$ 8,000,000 August 1
$ 9,000,000 September 1
$10,000,000 October 1
$11,000,000 November 1
$16,000,000 December 1"
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2.19 The negative number (500) as shown as the "Required
Minimum Cumulative Amount" for December, 1993, and Year 1993, in
Exhibit B to the Eighth Amendment to Loan and Security Agreement,
is amended by deleting such number and inserting in lieu thereof
the number zero.
2.20 AMENDMENT OF SECTION 10.12. Section 10.12(d) is
amended by deleting such subsection and inserting in lieu thereof
the following:
"(d) Guaranties by GDT of the trade accounts
payable of its Subsidiaries and its dealers; PROVIDED,
HOWEVER, that the aggregate liability of GDT under all
such guaranties permitted by this clause (d) shall not
exceed $500,000 at any one time outstanding."
2.21 AMENDMENT OF SECTION 10.22. Qualified Capital
Expenditures shall not be considered Capital Expenditures for
purposes of Section 10.22 of the Loan Agreement, and shall be
excluded from the "purchase of fixed assets" amount listed on the
statement of cash flows included as part of Exhibit B attached to
the Eighth Amendment to Loan and Security Agreement dated March
21, 1990, which is utilized to compute the amount of Intercompany
Loans; provided, however, payments of principal and interest in
connection with such Qualified Capital Expenditures shall be
included.
2.22 AMENDMENT OF SECTION 10.26. Section 10.26 of the Loan
Agreement is amended by deleting such section and inserting in
lieu thereof the following:
"10.26 CURRENT RATIO. The Borrowers will not permit
the ratio of (a) Current Assets less cash to (b)
Current Liabilities less (i) current maturities of
long-term Debt and (ii) federal income taxes payable,
to be less than (a) 1.50 to 1.00 at the end of any
fiscal quarter, ending with the fiscal quarter ending
on June 30, 1993, and (b) 1.40 to 1.00 at the end of
any fiscal quarter thereafter."
2.23 AMENDMENT OF SECTION 10.27. Section 10.27 of the Loan
Agreement is amended by deleting the amounts "97,000,000,"
"98,000,000," "99,000,000," "100,000,000," and "101,000,000" and
inserting in lieu thereof the amounts "69,872,000," "70,872,000,"
"71,872,000," "72,872,000," and "73,872,000," respectively.
2.24 AMENDMENT OF SIGNATURE PAGES. The signature page of
the Loan Agreement is amended by inserting next to each Lender
the following:
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Capital Expenditure
Lender Loan Commitment
------ ---------------
Security Pacific
Business Credit Inc. $1,363,600
Sanwa Business
Credit Corporation $ 420,000
NationsBank of
Georgia, N. A. $1,016,400
SECTION 3.
3.1 CONDITIONS TO EFFECTIVENESS. This Tenth Amendment
shall be effective as of the date first written above upon
satisfaction of the following conditions precedent in a manner
satisfactory to the Agent:
(a) In connection with the increase in the Commitments
and the creation of a banker's acceptance subfacility and to
compensate the Lenders for costs and expenses (other than
expenses for which the Borrowers will otherwise reimburse the
Agent or the Lenders), the Agent shall have received a fee of
$75,000 for the benefit of the Lenders;
(b) The Agent shall have received counterparts of this
Tenth Amendment executed by the Borrowers and the Lenders;
(c) The Agent shall have received First Amendment to
Pledge Agreement executed by GDT;
(d) The Agent shall have received a borrowing
resolution from GDTLA in form and content satisfactory to the
Agent;
(e) The Agent shall have received a certificate dated
as of the date hereof and signed by the president or a vice
president and the treasurer or comptroller of each of the
Borrowers certifying that the representations and warranties
contained in the Loan Agreement are true and correct as of the
date hereof and that no Default or Event of Default has occurred
and is continuing as of the date hereof, or would result from
giving effect to this Tenth Amendment;
(f) The Agent shall have received an opinion of
Hunter, Maclean, Exley & Dunn, P.C., counsel to the Borrowers
(including GDTLA) in form and substance satisfactory to counsel
for the Agent;
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(g) All proceedings taken in connection with the
execution of this Tenth Amendment and all documents and papers
related thereto shall be satisfactory to the Lenders; and
(h) The Agent shall have received UCC-1 financing
statements, in proper form, for filing with the California
Secretary of State and with the Clerk of Chatham County, Georgia,
executed by GDTLA as the debtor, and referencing the Agent, on
behalf of the Lenders, as the secured party.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrowers
(as herein defined) hereby each represent and warrant to the
Lenders and the Agent that (i) the execution, delivery, and
performance of this Tenth Amendment by each of the Borrowers are
within their respective corporate powers, and have been duly
authorized by all necessary corporate action, (ii) no consent,
approval, authori-zation of, or declaration or filing with, any
Public Authority, and no consent of any other Person, is required
in connection with the execution, delivery and performance of
this Tenth Amendment and the Amendment Documents, (iii) this
Tenth Amendment and the Amendment Documents have been duly
executed by each of the Borrowers and constitute the legal,
valid, and binding obligation of such of the Borrower,
enforceable against them in accordance with their terms, (v) the
execution, delivery, and performance by each of the Borrowers of
this Tenth Amendment and the Amendment Documents does not and
will not conflict with, or constitute a violation or breach of,
constitute a default under, or result in the creation or
imposition of any Lien upon the property of any Borrower or any
of its Subsidiaries by reason of the terms of (a) any contract,
mortgage, Lien, lease, agreement, indenture, or instrument to
which such Borrower or such Subsidiary is a party or which is
binding upon it, (b) any Requirement of Law applicable to such
Borrower or such Subsidiary, or (c) the Certificate of Articles
of Incorporation or By-Laws of such Borrower or such Subsidiary.
GDTLA hereby accepts, adopts, and agrees to be bound by all of
the terms and conditions of the Loan Agreement. All Obligations
of GDTLA, GDT, GDTN, and GDTT under the Loan Agreement are joint
and several.
Borrower agrees to pay on demand all costs and expenses
reasonably incurred by Agent in connection with the preparation,
negotiation, and execution of this Tenth Amendment and the other
documents executed pursuant thereto and any and all subsequent
amendments, modifications, and supplements hereto or thereto,
including, without limitation, the costs and fees of Agent's
legal counsel and the allocated cost of staff counsel.
SECTION 6. REFERENCE TO AND EFFECT ON LOAN DOCUMENTS.
6.1 On and after the date hereof, each reference in the
Loan Agreement to "this Agreement", "hereunder", "hereof",
"herein", or
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words of like import, and each reference in the other Loan
Documents to the Loan Agreement, shall mean and be a reference to
the Loan Agreement as amended hereby.
6.2 Except as expressly amended above, all of the terms of
the Loan Agreement shall remain unchanged and in full force and
effect.
6.3 The execution, delivery, and effectiveness of this
Tenth Amendment shall not operate as a waiver of any right,
power, or remedy of any Lender or the Agent under the Loan
Agreement or any of the other Loan Documents, nor constitute a
waiver of any provision of the Loan Agreement or any of the other
Loan Documents.
SECTION 7. EXECUTION IN COUNTERPARTS. This Tenth Amendment
may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed and delivered shall constitute one and the same
instrument.
SECTION 8. GOVERNING LAW. This Tenth Amendment shall be
governed by, shall be construed under, and enforced in accordance
with the laws of the state of New York.
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SECTION 9. HEADINGS. Section headings in this Tenth
Amendment are included for convenience of reference only and
shall not constitute a part of this Tenth Amendment or be given
any substantive effect.
IN WITNESS WHEREOF, the parties have executed this Tenth
Amendment as of the date first written above.
"BORROWERS"
Great Dane Trailers, Inc., Great Dane Trailer Nebraska,
a Georgia corporation Inc., a Nebraska corporation
by /s/ Thomas W. Horan by /s/ Thomas W. Horan
------------------------------ -----------------------
Thomas W. Horan, Thomas W. Horan,
Chief Financial Officer Chief Financial Officer
Great Dane Trailers Great Dane Los Angeles,, Inc.,
Tennessee, Inc., a Tennessee a Georgia corporation
corporation
by /s/ Thomas W. Horan by /s/ Thomas W. Horan
------------------------------ -----------------------
Thomas W. Horan, Thomas W. Horan,
Chief Financial Officer Chief Financial Officer
"LENDERS"
Security Pacific Business Credit NationsBank of Georgia, N.A.
Inc., a Delaware corporation
by /s/ Ira Mermelstein by /s/ Robert B. H. Moore
------------------------------ -----------------------
Ira Mermelstein, Robert B. H. Moore,
Vice President Senior Vice President
Sanwa Business Credit Corporation
by /s/ John J. McKenna
------------------------------
John J. McKenna, Vice President
"AGENT"
Security Pacific Business Credit
Inc., a Delaware corporation
by /s/ Ira Mermelstein
------------------------------
Ira Mermelstein, Vice President
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EXHIBIT 2.5 TO TENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
CAPITAL EXPENDITURE TERM NOTE
$_____________________ ______________, 19___
FOR VALUE RECEIVED, Great Dane Trailers, Inc., a Georgia
corporation; and Great Dane Trailers Nebraska, Inc., a Nebraska
corporation (individually and collectively "the Borrower"),
HEREBY JOINTLY AND SEVERALLY UNCONDITIONALLY PROMISE TO PAY to
the order of ___________________, a ____________ corporation
("the Lender"), the principal sum of _________________
($________________), or so much as may be advanced and
outstanding hereunder, together with interest on the unpaid
principal balance hereof at the rate provided below from the date
such principal is advanced until payment in full thereof.
Unless otherwise required to be paid sooner pursuant to the
provisions of Section or 13.1 of the Loan Agreement, the
principal amount of each capital expenditure advance evidenced by
this Note shall be payable in consecutive monthly installments
each in an amount equal to one thirty-sixth (1/36th) of each
advance, commencing on the first day of the first calendar month
following the date of such advance and continuing on the first
day of each successive calendar month thereafter, provided,
however, the entire, unpaid balance of the Capital Expenditure
Term Loan, if not sooner paid, shall be due and payable in full
on March 21, 1995. Accrued interest on the aggregate unpaid
balance of all capital expenditure advances hereunder shall be
due and payable monthly on the first day of each calendar month
commencing on the first day of the month following the date of
the first capital expenditure advance, and continuing on the
first day of each month thereafter, and at maturity. All past
due interest shall bear interest from the date due and payable at
the rate of interest herein specified.
This Capital Expenditure Term Note ("Note") is issued
pursuant to, and is entitled to the benefits of a certain Loan
and Security Agreement (the Loan and Security Agreement, as
amended, modified, and supplemented prior to the date hereof
being hereinafter referred to as "Loan Agreement"), dated as of
March 21, 1990, by and between the Borrower, Great Dane Trailers
Los Angeles, Inc., Great Dane Trailers Tennessee, Inc., the
financial institutions named therein as lenders (collectively
"the Lenders"), and Security Pacific Business Credit Inc., as
agent for the Lenders (in such capacity, the "Agent").
The unpaid principal amount hereof from time to time
outstanding shall bear interest from the date hereof (calculated
on the basis of a year of 360 days and the actual days elapsed)
at a fluctuating per annum rate ("Annual Rate") equal to the
Reference
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Rate, PLUS one and one-half percent (1.5%); PROVIDED, HOWEVER,
that if any Default or Event of Default occurs, Lenders may elect
to charge interest under this Note at the Default Rate. Any
change in the Annual Rate shall become effective immediately,
without notice or demand of any kind, upon the announcement of
any change in the Reference Rate.
All payments of principal and interest in respect of this
Note shall be made to the Agent at such account and place in New
York, New York, as the Agent may from time to time designate in
writing to Borrower or at such other location as the Agent may
from time to time designate in writing to Borrower, in lawful
currency of the United States in same day funds.
This Note may be repaid at the option of Borrower as
provided in Section 5.4 of the Loan Agreement and must be prepaid
as provided in Section 5.5 of the Loan Agreement.
If less than the full amount of principal and accrued
interest is prepaid, the amount paid shall be applied first to
any applicable prepayment premium and then in the following order
of priority: (a) first on all accrued, unpaid interest herein,
and (b) second on principal installments hereunder, including the
final payment, in the inverse order of their maturity.
Upon the occurrence of any one or more of certain Events of
Default, the unpaid balance of the principal amount of this Note
may become, and upon the occurrence and continuance of any one or
more of certain other Events of Default, such unpaid balance may
be declared to be, due and payable in the manner, upon the
conditions, and with the effect provided in the Loan Agreement.
THE LOAN AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
No reference herein to the Loan Agreement and no provision
of this Note, the Loan Agreement or any of the other Loan
Documents shall alter or impair the obligation of Borrower, which
is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and
in the currency herein prescribed.
Borrower promises to pay all costs and expenses, including
reasonable attorneys' fees and disbursements, incurred in the
collection and enforcement of this Note or any appeal of a
judgment rendered thereon, all in accordance with the provisions
of the Loan Agreement. Borrower hereby waives diligence,
presentment, protest, demand, and notice of every kind except as
required pursuant to the
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Loan Agreement and waives, to the fullest extent permitted by
law, the right to plead any statute of limitations as a defense
to any demands hereunder.
IN WITNESS WHEREOF, Borrower has caused this Note to be
executed and delivered by its duly authorized officer, as of the
day and year and at the place first above written.
"BORROWER"
Great Dane Trailers, Inc., Great Dane Trailer Nebraska,
a Georgia corporation Inc., a Nebraska corporation
by by
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Thomas W. Horan, Thomas W. Horan,
Chief Financial Officer Chief Financial Officer
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Draw Schedule Attached to Capital Expenditure Term Note, dated
____________, 19___, of Borrower Payable to the Order of Security
Pacific Business Credit Inc.
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LOAN AND PRINCIPAL BALANCES
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Principal
Loan Balance Undisbursed
Available Amount of Principal Notation
Date for Advance Advances Made Balance Made by
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