Confidential portions of this document have been redacted and filed
separately with the Commission.
Exhibit 10.58
AMENDMENT NO. 2 TO XXXXXX BOATS & MOTORS, INC.
LOAN AND SECURITY AGREEMENT
Amendment No. 2 to Loan and Security Agreement dated as of December 14,
2001, by and between TRANSAMERICA COMMERCIAL FINANCE CORPORATION ("Lender") and
the Persons listed on Schedule I attached hereto (individually, a "Borrower" and
collectively, the "Borrowers").
P R E A M B L E:
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Pursuant to that certain Loan and Security Agreement dated as of
January 28, 2000, as amended on January 16, 2001 by and among Lender and
Borrowers, Adventure Marine & Outdoors, Inc., Adventure Marine South, Inc. and
Adventure Boat Brokerage, Inc. (collectively, the "Loan Agreement"), Lender made
certain financing available to Borrowers. Borrowers have requested Lender to
modify certain terms and provisions of the Documents. Lender has agreed to do
so, upon the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the premises which are incorporated
herein by this reference and constitute an integral part of this Amendment, the
execution and delivery of this Amendment and the mutual covenants and agreements
hereafter set forth, the parties hereto agree as follows:
1. Schedule I to the Loan Agreement is amended in the form of Schedule
I attached hereto.
2. Schedule II to the Loan Agreement is amended in the form of Schedule
II attached hereto.
3. Section 1.1(B) of the Loan Agreement is amended to read as follows:
4. "Accounts Receivable" shall mean any and all accounts (as such term
is defined in the UCC) of any Borrower or any Guarantor and each and every right
of any Borrower or any Guarantor to (i) the payment of money or (ii) the receipt
or disbursement of products, goods, services or other valuable consideration,
whether such right now exists or hereafter arises, whether such right arises out
of a sale, lease or other disposition of Inventory, or out of a rendering of
services, or out of a policy of insurance issued or to be issued relating to the
property pledged to Lender pursuant to the Documents, or from a secondary
obligation or arising out of the use of a credit or charge card or information
contained on or for use with such card, incurred or to be incurred, or any other
transaction or event, whether such right is created, generated or earned by any
Borrower, any Guarantor or by some other Person who subsequently transfers its
interest to any Borrower or any Guarantor, whether such right is or is not
already earned by performance, and howsoever such right may be evidenced,
together with all other rights and interests (including all liens and security
*** Indicates Confidential Treatment Requested. The redacted material has been
filed with the Commission.
Confidential portions of this document have been redacted and filed
separately with the Commission.
interests) which any Borrower or any Guarantor may at any time have by law or
agreement against any Account Debtor or other Person obligated to make any such
payment or against any property of such Account Debtor or other Person."
5. Section 1.1(F) of the Loan Agreement is amended to read as follows:
(F) "Borrowing Base" shall mean (i) for the period commencing
on the Amendment No. 2 Closing Date and continuing thereafter
through and including December 31, 2001, the Borrowing Base A;
and (ii) commencing on January 1, 2002 and continuing at all
times thereafter, the Borrowing Base B."
6. Section 1.1(L) of the Loan Agreement is amended to read as follows:
(L) "Collateral" shall mean all of any Borrower's assets,
howsoever arising, wherever located and whether now owned or
existing or hereafter existing or acquired, including, but not
limited to, the following:
(i) all Accounts Receivable;
(ii) all Inventory;
(iii) any and all monies, reserves, deposits, deposit
accounts, securities, cash, cash equivalents,
balances, credits, and interest and dividends on any
of the above, of or in the name of any Borrower, now
or hereafter with the Lender or any financial
institution, and any and all other property of any
kind and description of or in the name of any
Borrower, now or hereafter, for any reason or purpose
whatsoever, in the possession or control of, or in
transit to, the Lender or any agent or bailee for the
Lender;
(iv) all chattel paper, whether tangible or electronic
chattel paper, contract rights, letter of credit
rights, and instruments including, without
limitation, all supporting obligations of any of the
foregoing;
(v) all General Intangibles;
(vi) all investment property;
(vii) all furniture and fixtures;
(viii) all Equipment;
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(ix) all documents of title and receipts, whether
negotiable or non-negotiable, including all goods
covered by such documents;
(x) all books, records and computer records in any way
relating to the above property;
(xi) any and all substitutions, renewals, improvements,
replacements, additions and proceeds of (i) through
(x) above, including, without limitation, proceeds of
insurance policies."
7. The "Documents", as defined in Section 1.1(S) of the Loan Agreement,
shall include, without limitation, the Loan Agreement, as amended by this
Amendment and any other amendments and/or restatements to the Loan Agreement,
the Guaranties, as confirmed, reaffirmed and amended by the Confirmations of
Guaranties, and as may be further confirmed, reaffirmed and amended from time to
time, and the Guarantor Security Agreements, as amended by the Amendments to
Guarantor Security Agreements and as may be further amended and/or restated from
time to time.
8. Sections 1.1(Z) through (AA) of the Loan Agreement are amended to
read as follows:
(Z) "Eligible Inventory D" shall mean such then Eligible
Inventory of any Borrower consisting of watercraft, watercraft
motors and watercraft trailers that are up to *** days from
the date of purchase by such Borrower that are purchased on
open account by any Borrower that the Lender deems in its
reasonable discretion to be eligible. Eligible Inventory D
shall include returned and repossessed Inventory that is
unused, undamaged which any Borrower intends to resell to
another Person.
(AA) "Eligible Inventory E" shall mean such then Eligible
Inventory of any Borrower consisting of watercraft, watercraft
motors and watercraft trailers that are between *** days from
the date of purchase by such Borrower that are purchased on
open account by any Borrower that the Lender deems in its
reasonable discretion to be eligible. Eligible Inventory E
shall include returned and repossessed Inventory that is
unused, undamaged which any Borrower intends to resell to
another Person."
9. Section 1.1(EE) of the Loan Agreement is amended to read as follows:
(EE) "Fixed Charge Coverage Ratio" for any 12 month period
shall mean a fraction, (i) the numerator of which is the
Xxxxxx Entities earnings before interest, taxes, depreciation
and amortization plus any Cash Infusion in such 12 month
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period and (ii) the denominator of which are the payments of
principal and interest made or required to be made by the
Xxxxxx Entities on all indebtedness (including, but not
limited to, capitalized leases) to all lenders (including, but
not limited to, Lender and all Persons providing any Third
Party Financing) in such 12 month period."
10. Section 1.1(JJ) of the Loan Agreement is amended to read as
follows:
(JJ) "General Intangibles" shall mean all general intangibles
(as such term is defined in the UCC) owned by any Borrower or
any Guarantor, including, but not limited to payment
intangibles, goodwill, software, trademarks, trade names,
licenses, patents, patent applications, copyrights,
inventions, franchises, books and records of any Borrower or
any Guarantor, designs, trade secrets, registrations, prepaid
expenses, all rights to and payments of refunds, overpayments,
rebates and return of monies, including, but not limited to,
sales tax refunds, tax refunds, tax refund claims and rights
to and payments of refunds, overpayments or over-fundings
under any pension, retirement or profit sharing plans and any
guarantee, security interests or other security held by or
granted to any Borrower or any Guarantor to secure payment by
an Account Debtor of any of the Accounts Receivable."
11. Section 1.1(NN) of the Loan Agreement is amended to read as
follows:
(NN) "Guarantor Collateral" shall mean all of any Guarantor's
assets, howsoever arising, wherever located and whether now
owned or existing or hereafter existing or acquired,
including, but not limited to, the following:
(i) all Accounts Receivable;
(ii) all Inventory;
(iii) any and all monies, reserves, deposits, deposit
accounts, securities, cash, cash equivalents,
balances, credits, and interest and dividends on any
of the above, of or in the name of any Guarantor, now
or hereafter with the Lender or any financial
institution, and any and all other property of any
kind and description of or in the name of any
Guarantor, now or hereafter, for any reason or
purpose whatsoever, in the possession or control of,
or in transit to, the Lender or any agent or bailee
for the Lender;
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(iv) all chattel paper, whether tangible or electronic
chattel paper, contract rights, letter of credit
rights, and instruments including, without
limitation, all supporting obligations of any of the
foregoing;
(v) all General Intangibles;
(vi) all investment property;
(vii) all furniture and fixtures;
(viii) all Equipment;
(ix) all documents of title and receipts, whether
negotiable or non-negotiable, including all goods
covered by such documents;
(x) all books, records and computer records in any way
relating to the above property;
(xi) any and all substitutions, renewals, improvements,
replacements, additions and proceeds of (i) through
(x) above, including, without limitation, proceeds of
insurance policies."
12. Section 1.1(PP) of the Loan Agreement is amended to read as
follows:
(PP) "Interest Coverage Ratio" for any 12 month period shall
mean a fraction, (i) the numerator of which is the Xxxxxx
Entities' earnings before interest and taxes plus any Cash
Infusion in such 12 month period and (ii) the denominator of
which are the payments of interest made or required to be made
by the Xxxxxx Entities on all indebtedness to all lenders
(including, but not limited to, Lender and all Persons
providing any Third Party Financing) in such 12 month period."
13. Section 1.1(QQ) of the Loan Agreement is amended to read as follows:
(QQ) "Inventory" shall mean any and all goods, finished goods,
whole goods, materials, raw materials, work-in-progress,
components or supplies, wheresoever located and whether now
owned or hereinafter acquired and owned by any Borrower or any
Guarantor, including, without limitation, goods, finished
goods, whole goods, materials, raw materials, work-in-process,
components or supplies in transit, wheresoever located,
whether now owned or hereafter acquired by any Borrower or any
Guarantor, which are held for demonstration, illustration,
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sale or lease, furnished under any contract of service or held
as raw materials, work-in-process for manufacturing or
processing or supplies for manufacturing or processing, and
all materials used or consumed in the business of any Borrower
or any Guarantor, and shall include such other property, the
sale or disposition of which has given rise to an Accounts
Receivable and which has been returned to or repossessed or
stopped in transit by or on behalf of any Borrower or any
Guarantor, but shall not include property owned by third
parties in the possession of any Borrower or any Guarantor."
14. Section 1.1(TT) of the Loan Agreement is amended to read as
follows:
(TT) "Libor Interest Rate Spread" shall mean 3.00%."
15. Section 1.1(YY) of the Loan Agreement is amended to read as
follows:
(YY) "Maximum Credit Amount" shall mean (a) commencing with
the Amendment No. 2 Closing Date and continuing through and
including March 31, 2002, $45,000,000.00, United States Funds;
and (ii) commencing on April 1, 2002 and continuing at all
times thereafter, $40,000,000.00, United States Funds."
16. Section 1.1(GGG) of the Loan Agreement is amended to read as
follows:
(GGG) "Permitted Liens" shall mean (i) for current taxes not
delinquent or taxes being contested in good faith and by
appropriate proceedings and for which adequate reserves have
been established; and (ii) liens arising in the ordinary
course of business for sums not due or sums being contested in
good faith and by appropriate proceedings and for which
adequate reserves have been established, but not involving any
deposits, advances or borrowed money or the deferred purchase
price of property or services; and (iii) liens in favor of
Lender; and (iv) liens specifically permitted pursuant to this
Agreement; and (v) those liens more fully set forth on Exhibit
1.1(GGG) attached hereto and (vi) liens on furniture, fixtures
and equipment consented to in writing by Lender (which consent
by Lender shall not be unreasonably withheld) in favor of the
holders of Third Party Financing."
17. Section 1.1(RRR) of the Loan Agreement is amended to read as
follows:
(RRR) "Tangible Net Worth" shall mean as of any date the sum
of the Xxxxxx Entities' (i) net worth as reflected on its last
twelve-month consolidated fiscal financial statements, plus
(ii) net earnings since the end of such fiscal year, both
after provision for taxes and with Inventory determined on a
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first in, first out basis plus (iii) Subordinated Debt, and
plus (iv) unamortized income, less the sum of the Xxxxxx
Entities' (a) intangible assets, including, without
limitation, unamortized leasehold improvements, goodwill,
franchises, licenses, patents, trade names, copyrights,
service marks, brand names, covenants not to compete and any
other asset which would be treated as an intangible under
generally accepted accounting principles; (b) prepaid expenses
(however such item shall not include prepaid inventory); (c)
franchise fees; (d) notes, Accounts Receivable and other
amounts owed to it by any guarantor, Affiliate or employee of
any Xxxxxx Entity; (e) losses since the end of such fiscal
year; and (f) interest in the cash surrender value of
officer's or shareholder's life insurance policies."
18. Section 1.1(XXX) of the Loan Agreement is amended to read as
follows:
"(XXX) "UCC" shall mean the Uniform Commercial Code as enacted
and amended in the State of Illinois, and as may be further
amended from time to time."
19. New Sections 1.1(YYY) through (PPPP) are added to the Loan
Agreement as follows:
(YYY) "Amendment No. 2 Closing Date" shall mean the date upon
which all of the terms and conditions of Amendment No. 2 to
this Agreement have been met or fulfilled to the satisfaction
of Lender.
(ZZZ) "Borrowing Base A" shall mean the sum of the following
from time to time, less any reserves as Lender in its sole
discretion elects: (i) 100% of Borrowers' then existing
Pre-Amendment No. 2 Eligible Inventory A, plus (ii) 97% of
Borrowers' then existing Post-Amendment No. 2 Eligible
Inventory A, plus (iii) 95% of Borrowers' then existing
Pre-Amendment No. 2 Eligible Inventory B, plus (iv) 92% of
Borrowers' then existing Post-Amendment No. 2 Eligible
Inventory B, plus (v) 75% of Borrowers' then existing Eligible
Inventory C; plus (vi) 95% of Borrowers' then existing
Eligible Inventory D; plus (vii) 90% of Borrowers' then
Eligible Inventory E, plus (viii) 70% of the NADA "low
wholesale" value of Borrowers' then Eligible Inventory F, plus
(ix) the lesser of (A) 50% of Borrowers' then Eligible
Inventory G; or (B) $1,100,000.00, plus (x) 80% of Borrower's
Eligible Accounts Receivable.
(AAAA) "Borrowing Base B" shall mean the sum of the following
from time to time, less any reserves as Lender in its sole
discretion elects: (i) 97% of Borrowers' then existing
Eligible Inventory A, plus (ii) 92% of Borrowers' then
existing Eligible Inventory B, plus (iii) 75% of Borrowers'
then existing Eligible Inventory C; plus (iv) 95% of
Borrowers' then existing Eligible Inventory D; plus (v) 90% of
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Borrowers' then Eligible Inventory E, plus (vi) 70% of the
NADA "low wholesale" value of Borrowers' then Eligible
Inventory F, plus (vii) the lesser of (A) 50% of Borrowers'
then Eligible Inventory G; or (B) $1,100,000.00, plus (viii)
80% of Borrower's Eligible Accounts Receivable.
(BBBB) "Brunswick" shall mean Brunswick Corporation.
(CCCC) "Brunswick Financing" shall mean that certain financing
more fully described in that certain Subordinated Note
Purchase Agreement dated as of ____________, 2001 by and
between Parent and Brunswick, as may be amended, extended,
renewed, supplemented, replaced and/or restated from time to
time.
(DDDD) "Cash Infusion" shall mean any cash infusion into the
Xxxxxx Entities other than the Brunswick Financing by any
Person in the form of equity or Subordinated Debt pursuant to
Subordination Agreements, including, but not limited to, the
Initial Cash Infusion. Without limitation of the foregoing,
any proceeds of the Brunswick Financing shall not be deemed to
be a Cash Infusion.
(EEEE) "Cash Loss" shall mean (i) for any period other than
the period ending on January 31, 2002, the sum of the Xxxxxx
Entities' (a) pre-tax losses for such period, plus (b)
depreciation taken for such period; and (ii) for the period
ending on January 31, 2002, the sum of the Xxxxxx Entities (a)
the December 2001 Cash Loss plus (b) any .pretax profit for
the month of January, 2002 (with any pretax loss in January,
2002 be deemed to be zero); plus (c) depreciation taken in
January, 2002.
(FFFF) "Eligible Overadvance Retail Contracts-in-Transit"
shall mean those Accounts Receivable of any Borrower which
relate to Inventory sold by such Borrower to a consumer being
financed by such consumer through third party financial
institutions the Lender deems in its reasonable discretion, to
be eligible. Without limitation of the foregoing, unless
otherwise agreed to in writing by the Lender, the following
shall not constitute Eligible Overadvance Retail
Contracts-in-Transit: (i) Accounts Receivable which remain
unpaid 45 days after the contract date of such Accounts
Receivable; (ii) Accounts Receivable not financed by a lender
acceptable, in Lender's sole discretion, to Lender; and (iii)
Accounts Receivable with respect to which the Account Debtor
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is a Borrower, any guarantor of the Liabilities, any Xxxxxx
Entity or a director, officer, employee or Affiliate of any
Borrower or any guarantor of the Liabilities; (iv) Accounts
Receivable with respect to which the Account Debtor is either
(a) not a resident of the United States or (b) located outside
the United States unless such Account Receivable is either (I)
subject to a letter of credit in form and manner satisfactory
to Lender or (II) insured in form and manner satisfactory to
Lender; (v) Accounts Receivable in dispute or with respect to
which the Account Debtor has asserted or may assert a
counterclaim or has or may have a right of setoff unless such
Account Debtor has waived in writing all rights to offset and
setoff; (vi) Accounts Receivable with respect to which the
Lender does not have a first and valid fully perfected
security interest; (vii) Accounts Receivable with respect to
which the Account Debtor is the subject of a bankruptcy or a
similar insolvency proceeding or has made an assignment for
the benefit of creditors or whose assets have been conveyed to
a receiver or trustee; (viii) Accounts Receivable with respect
to which the Account Debtor's obligation to pay is either on a
"COD" basis or is conditional upon the Account Debtor's
approval or is otherwise subject to any repurchase obligation
or return right, as with sales made on a xxxx-and-hold,
guaranteed sale, sale-and-return, sale on approval or
consignment basis; and (ix) Accounts Receivable otherwise
deemed Eligible Accounts Receivable under this Agreement.
(GGGG) "December 2001 Cash Loss" shall mean the Xxxxxx
Entities Cash Loss as computed on December 31, 2001 for the
period commencing on October 1, 2001 and ending on December
31, 2001.
(HHHH) "Equipment" shall mean all machinery and equipment
owned by any Borrower or any Guarantor, wherever located,
whether now owned or hereafter existing or acquired by
Borrower or any Guarantor, any embedded software thereon, any
additions thereon, accessions thereto or replacements of parts
thereof.
(IIII) "Initial Cash Infusion" shall mean a Cash Infusion into
the Borrowers made on or before the Amendment No. 2 Closing
Date in the aggregate amount of at least $1,300,000.00 in the
form of equity or Subordinated Debt pursuant to Subordination
Agreements.
(JJJJ) "Overadvance" shall mean (i) for the period commencing
with the Amendment No. 2 Closing Date and continuing
thereafter through and including December 31, 2001, the least
of (a) the sum of (I) 3% of then existing Post-Amendment No. 2
Eligible Inventory A, plus (II) 3% of then existing
Post-Amendment No. 2 Eligible Inventory B; or (b) 80% of then
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existing Eligible Overadvance Retail Contracts-in-Transit; or
(c) $1,200,000.00; or (ii) for the period commencing January
1, 2002 and continuing thereafter through and including March
31, 2002, the least of (a) the sum of (I) 3% of then existing
Eligible Inventory A, plus (II) 3% of then existing Eligible
Inventory B; or (b) 80% of then existing Eligible Overadvance
Retail Contracts-in-Transit; or (c) $1,200,000.00; or (iii)
commencing with April 1, 2002 and continuing at all times
thereafter, zero ($0.00).
(KKKK) "Post-Amendment No. 2 Eligible Inventory A" shall mean
all Eligible Inventory A purchased commencing on the day after
the Amendment No. 2 Closing Date and at all times thereafter.
(LLLL) "Post-Amendment Xx. 0 Xxxxxxxx Xxxxxxxxx X" shall mean
all Eligible Inventory B purchased commencing on the day after
the Amendment No. 2 Closing Date and at all times thereafter.
(MMMM) "Pre-Amendment No. 2 Eligible Inventory A" shall mean
all Eligible Inventory A in existence and in the possession of
any Borrower on or before the Amendment No. 2 Closing Date.
(NNNN) "Pre-Amendment Xx. 0 Xxxxxxxx Xxxxxxxxx X" shall mean
all Eligible Inventory B in existence and in the possession of
any Borrower on or before the Amendment No. 2 Closing Date.
(OOOO) "Vendor Sales Contract" and "Vendors Sales Contracts"
shall have the meanings set forth in Section 4.1(S) of this
Agreement.
(PPPP) "Writedowns" shall mean (i) non-cash amounts in an
aggregate maximum amount of $2,000,000.00 written down at
Borrowers' discretion in fiscal year 2002 for goodwill and/or
business combinations pursuant to Financial Accounting
Standards Board 141 and/or 142 in existence as of the date of
the Amendment No. 2 Closing Date relating to goodwill and
business combinations; and (ii) non-cash amounts in an
aggregate maximum amount of $2,000,000.00 written down at
Borrowers' discretion in fiscal year 2001 for Inventory and/or
Accounts Receivable pursuant to generally accepted accounting
principles relating to ineligible Accounts Receivable and
ineligible Inventory."
20. Section 2.1 of the Loan Agreement is amended to read as follows:
"SECTION 2.1. LOAN AMOUNT. Subject to the terms and conditions
of this Agreement, on the Amendment No. 2 Closing Date, the
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Lender shall make loans in the aggregate to the Borrowers on a
revolving basis (such loans being herein called individually a
"Revolving Loan" and collectively the "Revolving Loans") from
time to time in such amounts as the Borrowers may from time to
time request up to the lesser of (A) the Maximum Credit
Amount; or (B) the sum of (i) the Borrowing Base from time to
time, plus (ii) the Overadvance from time to time (the lesser
of (A) or (B) shall be referred to as the "Line of Credit");
provided, however, that (i) Eligible Inventory shall be valued
at the lower of cost or market value using the first in, first
out method of inventory accounting; and (ii) each borrowing by
any Borrower hereunder with respect to any Revolving Loan
shall be in the aggregate principal amount of at least (a)
$1,000.00 if made directly to a vendor of Inventory subject to
a Vendor Repurchase Agreement; and (b) $1,000.00 if made
directly to Borrowers; and (iii) repayments from time to time
of the Line of Credit shall be available to be reborrowed
pursuant to the terms and conditions of this Agreement; and
(iv) if the Revolving Loans outstanding at any time or from
time to time exceeds the advance limitations described above,
Borrowers shall pay in immediately available funds to the
Lender such amount necessary to eliminate such excess
contemporaneously with the delivery of any borrowing base
certificate to Lender showing any such excess and/or demand by
Lender at any other time any such excess occurs as determined
by Lender; and (v) the Lender's commitment to make Revolving
Loans shall remain in effect for a period to and including the
Termination Date; and (vi) notwithstanding anything else
contained in this Agreement, (a) upon the occurrence and
continuance of any Event of Default, and in every such event,
the Lender may, in its sole discretion, immediately cease to
make Revolving Loans; and (b) Borrowers shall repay to the
Lender on the Termination Date all Revolving Loans, plus
interest accrued to the date of payment."
21. Section 3.2 of the Loan Agreement is amended to read as follows:
"SECTION 3.2. PERFECTION, AUTHENTICATION AND FILING
REQUIREMENTS. Each Borrower shall perform any and all acts
requested by the Lender to establish, maintain and continue
the Lender's security interest and liens in the Collateral,
including but not limited to, executing or authenticating
financing statements and such other instruments and documents
when and as reasonably requested. Each Borrower hereby
authorizes Lender through any of Lender's employees, agents or
attorneys to file any and all financing statements, including,
without limitation, any continuations, transfers or amendments
thereof required to perfect Lender's security interest and
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liens in the Collateral under the UCC without authentication
or execution by any Borrower."
22. Section 3.3(B) of the Loan Agreement is amended as follows:
"(B) The Lender, at any time whether before or after the
occurrence of an Event of Default, may in its sole and
reasonable discretion, require any Borrower to establish and
maintain "lock box" accounts (individually, a "Lock Box
Account" and collectively, the "Lock Box Accounts"), and,
Borrowers, at their expense, will notify or cause to be
notified all Account Debtors to pay directly any sum or sums
then due or to become due on the Accounts Receivable to such
Lock Box Accounts. Prior to the time that either an Event of
Default occurs or will occur with the giving of notice, the
passage of time or both, the Lock Box Account shall be subject
to the control of Borrowers. At Lender's discretion, following
the time when either an Event of Default occurs or will occur
with the giving of notice, the passage of time or both, the
Lock Box Accounts shall be subject to the control of Lender.
In the event Lender requires Lock Box Accounts to be
established pursuant to this Section, Borrowers shall
establish the Lock Box Accounts with such Collecting Banks
reasonably acceptable to Lender to which all Account Debtors
shall directly remit all payments on Accounts Receivable and
in which each Borrower will immediately deposit, in kind, all
cash and other payments made for Inventory and all other
proceeds of Collateral. The Collecting Banks shall acknowledge
and agree, in a manner reasonably satisfactory to Lender,
that: all payments made to Lock Box Accounts are the sole and
exclusive property of Lender; they have no right to setoff
against Lock Box Accounts; and they will transfer (i) by wire
transfer of immediately available funds (ii) by acceptance of
an ACH Debit or (iii) by any other method, immediately
available funds in a manner satisfactory to Lender, funds
deposited into Lock Box Accounts (collectively, the
"Collection Accounts") to Lender on a daily basis in such bank
and account as Lender shall designate or, in the case of an
ACH Debit, as presented for acceptance. All payments made to
the Collection Accounts or otherwise received by the
Collecting Banks or Lender, whether on the Accounts Receivable
or as proceeds of other Collateral or otherwise, shall
following the occurrence of any Event of Default be under the
sole dominion and control of Lender and will be applied on
account of Liabilities as provided herein. Following the
establishment of any Lock Box Accounts pursuant to this
Section, Borrowers and their Affiliates shall receive, as
trustee for Lender, any monies, checks, notes, drafts or any
other payments relating to and/or proceeds of Accounts
Receivable or other Collateral which come into the possession
or under the control of any Borrower or their Affiliates and
12
Confidential portions of this document have been redacted and filed
separately with the Commission.
immediately remit, or cause to be remitted, the same in kind
to the Lock Box Accounts. Borrowers shall pay Lender any and
all reasonable fees, costs and expense which Lender incurs in
connection with Collection Accounts and with collecting any
check or item of payment received and/or delivered to any
Collecting Bank or Lender on account of Liabilities to Lender.
Borrowers shall reimburse Lender for (i) any loss, cost or
damages resulting from claims asserted by the Collecting Banks
in connection with Collection Accounts or any returned or
uncollected checks or other items received by the Collecting
Banks and (ii) any amount paid to any Collecting Bank arising
out of Lender's indemnification of such Collecting Banks
relating to a Collection Account."
23. Contemporaneously with the execution and delivery of this
Amendment, the Guarantors shall execute and deliver to Lender confirmations,
reaffirmations and amendments of their Guaranties in form and manner
satisfactory to Lender (individually, a "Confirmation of Guaranty" and
collectively, the "Confirmations of Guaranty"). All references to each Guaranty
in the Loan Agreement shall mean such Guaranty, as confirmed, reaffirmed and
amended by its applicable Confirmation of Guaranty.
24. Contemporaneously with the execution and delivery of this
Amendment, the Guarantors. shall execute and deliver to Lender amendments of the
Guarantor Security Agreements in form and manner satisfactory to Lender
(individually, an "Amendment to Guarantor Security Agreement" and collectively,
the "Amendments to Guarantor Security Agreements"). All references to each
Guarantor Security Agreement in the Loan Agreement shall mean such Guarantor
Security Agreement, as amended by its applicable Amendment to Guarantor Security
Agreement.
25. New Section 3.11 is added to the Loan Agreement as follows:
Section 3.11 Real Estate Liens in Favor of Lender. On or
before January 31, 2002, Borrowers will (i) execute or cause
to be executed mortgages or deeds of trust, as applicable,
promissory notes as may be required under local real estate
law, and similar and related documents necessary to perfect
liens in favor of Lender on such parcels of real estate
(collectively "Mortgages") in favor of Lender on each parcel
of real estate owned by any of the Xxxxxx Entities; and (ii)
cooperate with Lender (with costs to be paid by Borrowers) on
all preliminary work for such Mortgages, whether drafting
mortgages, deeds of trust, promissory notes and related
documents, obtaining appraisals, surveys, environmental site
assessments, or otherwise, all to be completed in form and
manner satisfactory to Lender on or before January 31, 2002.
Borrower will provide Lender by December 26, 2001 copies of
all current mortgages and deeds of trust on such property for
Lender's review. Lender will release these Mortgages parcel by
parcel at the time of any sale or sale-leaseback (i) if
Borrowers have repaid in full all of the Liabilities, or (ii)
if Borrowers have not repaid all of the Liabilities, but no
Event of Default exists or will exist with the giving of
notice, the passage of time, or both, and, in the sole
determination of Lender, Borrowers have sufficient liquidity
and Lender's collateral position is satisfactory to Lender.
13
Confidential portions of this document have been redacted and filed
separately with the Commission.
26. Section 4.1(A) of the Loan Agreement is amended to read as follows:
(A) Organization, Etc. It is duly organized, validly existing
and in good standing under the laws of the jurisdiction set
forth beside its name in Exhibit 4.1(A) attached hereto and is
duly qualified and in good standing or has applied for
qualification as a foreign corporation authorized to do
business in each jurisdiction where, because of the nature of
its activities or properties, such qualification is required."
27. New Section 4.1(S) is added to the Loan Agreement as follows:
(S) Vendor Sales Contracts. All vendor sales contracts (all
such vendor sales contracts, whether now existing or hereafter
arising shall be individually referred to as a "Vendor Sales
Contract", and collectively as the "Vendor Sales Contracts")
which have previously been delivered to Lender are true and
correct copies of all of the Vendor Sales Contracts in
existence as of the date of Amendment No. 2 to this Agreement
and represent the complete agreements of it with reference to
the subject matter of such Vendor Sales Contracts, and there
have been no changes, modifications, alterations or amendments
to such Vendor Sales Contracts. "
28. Sections 5.1(A) and (B) of the Loan Agreement are amended to read
as follows:
(A) Financial Statements and Certificates. It will furnish to
the Lender (i) within 90 days after the close of each fiscal
year of it, a copy of the annual consolidated audited report
of the Borrowers consisting of at least a balance sheet,
statement of operating results and retained earnings,
statement of cash flows and notes to financial statements,
profit and loss statement and statement of changes in
financial position of it prepared on a consolidating and
consolidated basis and in conformity with generally accepted
accounting principles, duly prepared by certified public
accountants of recognized standing selected by it and approved
by the Lender, together with a certificate from such
accountants to the effect that, in making the examination
necessary for the signing of such annual report by such
accountants, they have not become aware of any Event of
Default that has occurred and is continuing, or if they have
become aware of any such event, describing it and the steps,
if any taken or being taken to cure it; (ii) within 45 days
after the end of each fiscal quarter of it, (a) a copy of an
unaudited consolidated financial statement of the Borrowers
prepared in the same manner as the report referred to in
clause (i) above, signed by the chief financial officer or
14
Confidential portions of this document have been redacted and filed
separately with the Commission.
Corporate Controller of Parent and consisting of at least a
balance sheet as at the close of such quarter, statements of
earnings, cash flow, income and source and application of
funds for such quarter and for the period from the beginning
of such fiscal year to the close of such quarter; and (b) a
certificate signed by the President or chief financial officer
of it providing that (I) the financial statements being
provided to Lender pursuant to clauses (ii)(a) are true and
correct and (II) no Event of Default has occurred, including,
but not limited to, no Event of Default with respect to any of
the financial covenants contained in the Documents; and (iii)
within 30 days after the end of each month, (1) a statement
showing age and reconciliation of its Accounts Receivable and
accounts payable for the preceding month and a status of its
Inventory showing location, age, components and value, in such
form and detail as Lender may reasonably request; and (2) a
certificate signed by the President or chief financial officer
of it providing that the financial statements being provided
to Lender pursuant to clause (iii)(1) above is true and
correct; and(iv) if requested by Lender in writing, (1)
documentation to support the Accounts Receivable statement set
forth in clause (iii)(1) above, including, but not limited to,
sales reports, cash receipts reports and credit and debit
journals; and/or (2) copies of all of its bank statements and
reconciliations thereof, including, but not limited to, Lock
Box Accounts statements; (v) on the last Business Day of each
week a completed Lender's standard form borrowing base
certificate, which shall be executed by the President or the
chief financial officer of the Borrowers, and shall contain
information as of such Business Day; (vi) at least 45 days
prior to the end of each of its fiscal years, a copy of its
Business Plan for the immediately following fiscal year; (vii)
schedules of Accounts Receivable in form and manner acceptable
to Lender (which shall include current addresses and telephone
numbers of Account Debtors) as often as requested by Lender,
(viii) at Lender's request, Borrowers shall make available to
Lender for inspection copies (or, at Lender's request after an
Event of Default, originals) of all orders, invoices, and
similar agreements and documents, and all original shipping
instructions, delivery receipts, bills of lading, and other
evidence of delivery, for Inventory, the sale or disposition
of which has resulted in Accounts Receivable; (ix) the
originals of all instruments, chattel paper, security
agreements, guarantees and other documents and property
evidencing or securing any Accounts Receivable, immediately
upon receipt thereof and in the same form as received, with
all necessary endorsements to enable Lender to enforce the
same; (x) copies of all federal and state tax returns of it,
including, but not limited to, requests for extensions of such
tax returns, when and as filed; (xi) copies of any and all
reports, examinations, notices, warnings and citations issued
by any governmental or quasi-governmental (whether federal,
15
Confidential portions of this document have been redacted and filed
separately with the Commission.
state or local), unit, agency, body or entity with respect to
it; (xii) within 20 days of the end of the months of November,
2001, December, 2001, and January, 2002 statements showing
Borrowers' Cash Loss for the period from October 1, 2001 to
the close of each such month; (xiii) by no later than February
20, 2002, (a) a copy of an unaudited consolidated financial
statement of the Borrowers prepared in the same manner as the
report referred to in clause (i) above, signed by the chief
financial officer or Corporate Controller of Parent and
consisting of at least a balance sheet as at the close of
January 31, 2002, statements of earnings, cash flow, income
and source and application of funds for such the month of
January 2002 and for the period from the beginning of such
fiscal year to January 31, 2002; and (b) a certificate signed
by the President or chief financial officer of it providing
that (I) the financial statements being provided to Lender
pursuant to clauses (xiii)(a) are true and correct and (II) no
Event of Default has occurred, including, but not limited to,
no Event of Default with respect to any of the financial
covenants contained in the Documents and (xiv) such other
information as the Lender from time to time reasonably
requests. Borrowers' failure to deliver or execute and deliver
any of the items listed in this Section shall not affect or
limit Lender's security interest in the Collateral.
(B) Books, Records and Inspections. It will (i) maintain
complete and accurate books and records; (ii) permit
reasonable access by the Lender to the books and records of
it; (iii) make entries on its books and records, in form and
manner reasonably satisfactory to Lender, disclosing Lender's
security interest in the Collateral and shall keep a separate
account on its books of all collections received thereon; and
(iv) permit the Lender, upon reasonable notice, to inspect the
properties, whether real or personal, and operations of it.
Without limitation of the foregoing, it acknowledges and
agrees that Lender may, in its sole discretion (a) conduct
quarterly complete field audits of all of the Borrowers: and
(b) conduct Inventory inspections at any time and from time to
time, including, but not limited to, monthly inventory audits;
and (c) audit at least 20% of all Inventory at all locations
of Borrowers, including, but not limited to, each of the
Collateral Location, at least on an annual basis; and (d)
audit Accounts Receivable not less than annually; and (e)
audit at least 33 1/3% of all locations of Borrowers,
including, but not limited to, all Collateral Locations on at
least a monthly basis; and (f) at least 33 1/3% of all
Inventory of Borrowers on at least a monthly basis."
16
Confidential portions of this document have been redacted and filed
separately with the Commission.
29. Section 5.1(I) of the Loan Agreement is amended to read as follows:
(I) Mergers, Consolidations and Sales. Neither any Borrower
nor any Xxxxxx Entity will be a party to any merger or
consolidation with, or purchase or otherwise acquire all or
substantially all of the assets or stock of any class of, or
any partnership, ownership or joint venture interest in, any
other Person, or sell, transfer, convey or lease all or any
substantial part of its assets, or sell or assign, with or
without recourse, any Accounts Receivable, except with the
prior written consent of the Lender."
30. Sections 5.1(W) through (Z) of the Loan Agreement are amended to
read as follows:
(W) Unsubordinated Debt To Tangible Net Worth Ratio. It shall
not cause, suffer or permit the ratio of (i) the Xxxxxx
Entities' total consolidated liabilities minus Subordinated
Debt to (ii) the Xxxxxx Entities' Tangible Net Worth to be
greater than the following at (i) January 31, 2002; and
(ii)the end of each of its fiscal quarters:
4.25 to 1.0 For the period commencing on the
Amendment No. 2
Closing Date through March 31, 2002
3.5 to 1.0 For the period commencing April 1, 2002
and at all times thereafter
(X) Tangible Net Worth. It shall not cause, suffer or permit
the Xxxxxx Entities' Tangible Net Worth to be less than the
following, all as measured at (i) January 31, 2002; and (ii)
the end of each of its fiscal quarters:
$26,000,000.00 For the period commencing on the
Amendment No. 2 Closing Date through January 30, 2002
$24,600,000.00 For the period commencing on January
31, 2002 through March 30, 2002
$26,000,000.00 March 31, 2002
$29,000,000.00 For the period commencing April 1,
2002 and at all times thereafter
(Y) Interest Coverage Ratio. The Xxxxxx Entities shall
maintain a Interest Coverage Ratio of not less than the
following, all as measured at the end of each fiscal quarter
of it, as calculated for the 12 month period ending at the end
of such fiscal quarter.
17
Confidential portions of this document have been redacted and filed
separately with the Commission.
1.0 to 1.0 For the period commencing March 31, 2002
through June 30, 2002
1.2 to 1.0 For the period commencing July 1, 2002 and
at all times thereafter
(Z) Fixed Charge Coverage Ratio. The Xxxxxx Entities shall
maintain a Fixed Charge Coverage Ratio of not less than the
following, all as measured at the end of each fiscal quarter
of it, as calculated for the 12 month period ending at the end
of such fiscal quarter:
0.9 to 1.0 March 31, 2002
1.05 to 1.0 For the period commencing April 1, 2002
through June 30, 2002
1.15 to 1.0 For the period commencing July 1, 2002
and at all times thereafter"
31. Lender hereby waives (A) the violation of the minimum Interest
Coverage Ratio covenant made by Borrowers in Section 5.1(Y) of the Loan
Agreement for the quarterly periods ending on each of March 30, 2001, June 30,
2001, September 30, 2001 and December 31, 2001; and (B) the violation of the
Fixed Charge Coverage Ratio covenant made by Borrowers in Section 5.1(Z) of the
Loan Agreement for the quarterly periods ending March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001. Notwithstanding anything else
contained in this Amendment, or any of the Documents, this waiver referred to in
this paragraph shall not constitute any other waiver of any other provision of
any of the Documents or any further violation of the covenants referenced in the
immediately preceding sentence.
32. New Sections 5.1(HH) through (LL) are added to the Loan Agreement
as follows:
(HH) Maximum Cash Loss. The Xxxxxx Entities shall not cause,
suffer or permit their Cash Loss to be greater than
$4,400,000.00 for the period commencing on October 31, 2001
and ending on January 31, 2002.
(II) Vendor Sales Contracts. No Vendor Sales Contract will be
amended, altered or terminated without at least 60 days' prior
written notice of such amendment, alteration or termination to
Lender, and Borrowers shall deliver to Lender copies of all
(i) amendments, alterations or terminations of any Vendor
Sales Contract previously delivered to Lender; and (ii) Vendor
Sales Contracts entered into subsequent to the date of
Amendment No. 2 to this Agreement.
18
Confidential portions of this document have been redacted and filed
separately with the Commission.
(JJ) Use of Brunswick Financing and Cash Infusion. The
proceeds of the Brunswick Financing and any Cash Infusion
shall be used by the Borrowers solely as working capital.
(KK) Lock Box. By no later than January 31, 2002, Borrowers
and the financial institution at which Borrowers have
established a Lock Box Account to collect monies solely for
the Borrowers shall execute and deliver to Lender such
agreements, documents and instruments satisfactory to Lender
in order for Lender at any time, in Lender's discretion,
following the time when either an Event of Default occurs or
will occur with the giving of notice, the passage of time or
both, to require such Lock Box Account be under the sole
control of Lender and have all payments received in such Lock
Box Account to be paid to Lender.
(LL) Repayment of Brunswick Financing. If at any time or from
time to time any or all of the principal amount of the
Brunswick Financing is repaid, Borrower shall,
contemporaneously with the making of each such principal
payment, obtain and receive in immediately available funds
replacement equity or Subordinated Debt in an amount equal to
such principal amount of the Brunswick Financing being
repaid."
33. Section 7.1(B) of the Loan Agreement is amended to read as follows:
"(B) Any Borrower shall fail to pay any interest amount due
and owing to the Lender within fifteen (15) days of the
billing date of such interest; or"
34. Section 7.1(D) of the Loan Agreement is amended to read as follows:
"(D) Any representation or warranty made by any Borrower or
any Guarantor contained in the Documents shall at any time
prove to have been incorrect in any material respect when
made; or"
35. The period at the end of Section 7.1(K) of the Loan Agreement is
amended to read ";" and new Sections 7.1(L) through (W) are added to the Loan
Agreement as follows:
"(L) Any Borrower shall default in the performance or
observance of any term, covenant, condition or agreement on
its part to be performed or observed under Section 5.1(I) of
this Agreement;
(M) Any Borrower shall default in the performance or
observance of any term, covenant, condition or agreement on
its part to be performed or observed under Section 5.1(R) of
this Agreement;
19
Confidential portions of this document have been redacted and filed
separately with the Commission.
(N) Any Borrower shall default in the performance or
observance of any term, covenant, condition or agreement on
its part to be performed or observed under Sections 5.1(W)
through (Z) of this Agreement;
(O) Any Borrower shall default in the performance or
observance of any term, covenant, condition or agreement on
its part to be performed or observed under Section 5.1(HH) of
this Agreement which has not been cured by the Borrowers
obtaining a Cash Infusion (other than the first $1,000,000.00
of the Initial Cash Infusion) in a minimum amount to cure such
default on or before the earlier of (i) February 20, 2002; or
(ii) the date on which the statement showing Borrowers'
Maximum Cash Loss for the period ending January 31, 2002 as
required pursuant to Section 5.1(A)(xii) of this Agreement is
delivered to Lender;
(P) Any Borrower shall default in the performance or
observance of any term, covenant, condition or agreement on
its part to be performed or observed under Section 5.1(LL) of
this Agreement;
(Q) Any Borrower shall default in the performance or
observance of any term, covenant, condition or agreement on
its part to be performed or observed under Section 3.11 of
this Agreement;
(R)Any default or event of default (howsoever such terms are
defined) shall occur under the Brunswick Financing;
(S) At any time any Person or group of Persons acting in
concert directly or indirectly purchases, transfers, sells or
assigns 30% or more of the shares of common stock of Parent
then outstanding;
(T) At any time any Person or group of Persons acting in
concert directly or indirectly owns, controls or has the power
to vote more than 50% of the shares of common stock of Parent
then outstanding;
(U) Borrowers shall fail to obtain the Initial Cash Infusion
contemporaneously with the execution and delivery of Amendment
No. 2 to this Agreement; or
(V) Any Borrower shall fail to use any proceeds of the
Brunswick Financing or the Cash Infusion solely as working
capital; or
(W) Any Xxxxxx Entity defaults under any subordination
agreement to which it is a party with any Person."
20
Confidential portions of this document have been redacted and filed
separately with the Commission.
36. The parties hereto acknowledge and agree that (A) Borrowers may in
their discretion, take the Writedowns; and (B) if Borrowers take any or all of
the Writedowns, no adjustment of any kind shall be made with respect to any
covenant under this Agreement relating to any of the Writedowns.
37. All representations and warranties made to the Lender in the
Documents are hereby restated to the Lender and all of such representations and
warranties remain true and correct as of the date of this Amendment.
38. All of the pledges, assignments, transfers, conveyances, mortgages
and grants of security interest of any property given to Lender by any Borrower
or any Guarantor pursuant to the Documents, including, but not limited to,
pursuant to Article Three of the Loan Agreement, have constituted and shall and
hereinafter do continue to constitute pledges, assignments, transfers,
conveyances, mortgages and grants of security interests of property to secure
the Liabilities.
39. Lender's obligation to enter into this Amendment is subject to the
fulfillment of each and every one of the following conditions prior to, or
contemporaneously with the execution and delivery of this Amendment:
A. All of the conditions precedent set forth in the Loan
Agreement shall have been met; and
B. Lender shall have received such instruments,
agreements and documents in form and manner
satisfactory to Lender and its counsel as Lender may
reasonably request and where applicable, duly
executed and recorded, including, but not limited to,
the following:
(i) Certificates of the Secretaries of Borrowers and
certifying as to (a) all corporate actions taken and
consents made by Borrowers to authorize the
transactions provided for or contemplated under this
Amendment and the execution, delivery and performance
of the Documents; and (b) the names of the officers
or employees of Borrowers authorized to sign the
Documents, together with a sample of the true
signature of each such Person. (Lender may
conclusively rely on such certificates until formally
advised by a like certificate of any changes
therein.);
(ii) Acknowledgment copies from the appropriate
governmental authority of all Uniform Commercial Code
financing statements required to perfect the Lender's
security interests in the Collateral;
(iii) the Confirmations of Guaranties;
21
Confidential portions of this document have been redacted and filed
separately with the Commission.
(iv) the Amendments to Guarantor Security Agreements;
(v) Certificates of good standing for Borrowers in the
jurisdiction of their incorporation, in the principal
places in which they conduct business and in places
in which they own real estate and/or Collateral;
(vi) Certified copies of all Vendor Sales Contracts, in
form and manner satisfactory to Lender, including,
but not limited to, evidence that the pricing
contained in the Vendor Sales Contracts is the
pricing previously orally represented by Borrower to
Lender;
(vii) Evidence of the completion of the Brunswick
Financing;
(viii) Evidence, in form and manner satisfactory to Lender,
that DFS has waived any defaults in existence on or
before the Amendment No. 2 Closing Date under any
agreement, document or instrument evidencing the DFS
Financing;
(ix) Evidence of the Initial Cash Infusion being received
by Borrowers;
(x) A completed Lender's standard form borrowing base
certificate, which shall be executed by the President
or the chief financial officer of the Borrowers, and
shall contain information as of such Business Day,
which shows that Borrowers are in compliance with the
terms of Section 2.1 of the Loan Agreement as amended
by this Amendment;
(xi) Evidence of the October 31, 2001 Cash Loss of the
Xxxxxx Entities covering the period from October 1,
2001 through October 31, 2001; and
(xii) Such other instruments or documents as the Lender may
reasonably request.
C. No Event of Default shall have occurred and be
continuing, may occur with the giving of notice, the
passage of time or both, except as set forth in
paragraph 23 of this Amendment.
D. There shall have been no material adverse change in
the business of any Borrower or the financial
condition of any Borrower from the preliminary year
end financial statement for September 30, 2001 and
notes reconciling Tangible Net Worth through December
31,2001, all dated November 19, 2001 submitted by
Borrowers to Lender and attached hereto as Exhibit
38D.
22
Confidential portions of this document have been redacted and filed
separately with the Commission.
40. All references to the Loan Agreement in any of the Documents shall
mean the Loan Agreement, as amended by this Amendment and as may be further
amended and/or restated from time to time.
41. Borrowers agree to pay all reasonable fees and out-of-pocket
expenses of Lender (including, but not limited to, outside counsel to Lender and
paralegals) in connection with the preparation of this Amendment and all
Documents relating to this Amendment.
42. The Loan Agreement (as amended by this Amendment), together with
the Documents, contain the entire agreement between the parties hereto with
respect to the transactions contemplated herein and supersede all prior
representations, agreements, covenants and understandings, whether oral or
written, related to the subject matter of the Loan Agreement. Except as
specifically set forth in the Agreement, Lender makes no covenants to any
Borrower, including, but not limited to, any other commitments to provide any
additional financing to any Borrower.
43. Each of the Borrowers hereby release, except in the instance of
gross negligence and wilful misconduct, the Lender and its officers, directors,
employees, agents, attorneys, personal representatives, successors, predecessors
and assigns from all manner of actions, cause and causes of action, suits,
deaths, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands, whatsoever, in law or in equity, and
particularly, without limiting the generality of the foregoing, in connection
with the Documents and any agreements, documents and instruments relating to the
Documents and the administration of the Documents, all indebtedness, obligations
and liabilities of any of the Xxxxxx Entities to the Lender and any agreements,
documents and instruments relating to the Documents and/or the Borrower
Documents (collectively, the "Claims"), which any of the Borrowers now have
against the Lender or ever had, or which might be asserted by their heirs,
executors, administrators, representatives, agents, successors, or assigns based
on any Claims which exist on or at any time prior to the date of this Amendment.
Each Borrower expressly acknowledges and agrees that each Borrower has have been
advised by counsel in connection with this Amendment and that each Borrower
understands that this Paragraph constitutes a general release of the Lender and
that they each intend to be fully and legally bound by the same. Each Borrower
further expressly acknowledges and agrees that this general release shall have
full force and effect notwithstanding the occurrence of a Default or Event of
Default (however such terms are defined) pursuant to any of the Documents.
44. This Amendment may be executed in any number of counterparts, each
of which counterpart, once they are executed and delivered shall be deemed to be
an original and all of which counterparts taken together shall constitute but
one in the same amendment.
45. Except as specifically amended and modified by this Amendment, (A)
the Loan Agreement shall remain in full force and effect and is hereby restated
and incorporated herein by this reference; and (B) all terms defined in the Loan
Agreement shall have the same meanings herein as therein.
23
Confidential portions of this document have been redacted and filed
separately with the Commission.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first above written.
LENDER: TRANSAMERICA COMMERCIAL
------ FINANCE CORPORATION
By:
--------------------------------------
Title: Vice President
BORROWERS: XXXXXX BOATS & MOTORS, INC.
---------
By:
--------------------------------------
Title: Secretary
XXXXXX BOATING CENTER GEORGIA, INC.
By:
--------------------------------------
Title: Secretary
24
Confidential portions of this document have been redacted and filed
separately with the Commission.
XXXXXX BOATING CENTER FLORIDA, INC.
By:
--------------------------------------
Title: Secretary
ADVENTURE MARINE & OUTDOORS, INC.
By:
--------------------------------------
Title: Secretary
ADVENTURE MARINE SOUTH, INC.
By:
--------------------------------------
Title: Secretary
ADVENTURE BOAT BROKERAGE, INC.
By:
--------------------------------------
Title: Secretary
TBC MANAGEMENT, INC.
By:
--------------------------------------
Title: Secretary
TBC MANAGEMENT, LTD.
By:
--------------------------------------
Title: Secretary
25
SCHEDULE I TO XXXXXX BOATS & MOTORS, INC. -
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
List of Borrowers
Xxxxxx Boats & Motors, Inc.
TBC Management, Ltd.
TBC Management, Inc.
Xxxxxx Boating Center Georgia, Inc.
Xxxxxx Boating Center Florida, Inc.
Adventure Marine & Outdoors, Inc.
Adventure Marine South, Inc.
Adventure Boat Brokerage, Inc.
26
SCHEDULE I TO XXXXXX BOATS & MOTORS, INC. -
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
Xxxxxx Xxxxxxx Marine, Inc.
Xxxxxx Boating Center Arlington, Inc.
Falcon Marine, Inc.
Falcon Marine Abilene, Inc.
Xxxxxx Boating Center Beaumont, Inc.
Xxxxxx Boats & Motors Baton Rouge, Inc.
TBC Arkansas, Inc.
Xxxxxx Boating Center Louisiana, Inc.
Xxxxxx Boating Center Tennessee, Inc.
Xxxxxx Boating Center Alabama, Inc.
Xxxxxx Boating Center Little Rock, Inc.
Xxxxxx Boating Center Mississippi, Inc.
Xxxxxx Boating Center Oklahoma, Inc.
27
