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LOAN MODIFICATION AGREEMENT NO. 2 Exhibit 10.1
Preamble: This Loan Modification Agreement (this "Agreement"), dated as of
September 24, 2004 (the "Effective Date"), is made between UPS Capital
Corporation, as lender (the "Lender"), and each Person identified as "Borrower"
on the signature page(s) hereof, as borrower(s) (individually and collectively,
the "Borrower"), for the purpose of amending or otherwise modifying the terms of
that certain Loan and Security Agreement, dated as of August 28, 2002,
heretofore made between Lender and Borrower (which, as it has been to date, or
hereafter may be, modified or amended, is called herein the "Loan Agreement").
Now, therefore, in consideration of the mutual promises contained herein and in
the Loan Agreement, the receipt and sufficiency of which are hereby
acknowledged, Lender and Borrower, each intending to be legally bound, agrees as
follows:
1. Definitions. Capitalized terms used herein, but not expressly defined
herein, shall have the meanings given to such terms in the Loan
Agreement.
2. Loan Modification. Lender and Borrower agree to modify the Loan
Agreement by deleting Section 7.2 (Capital Expenditures) of the Loan
Agreement in its entirety and replacing it with the following:
7.2 Capital Expenditures. Holdings and its Consolidated Subsidiaries
shall not expend, in Capital Expenditures, more than Four Million
Dollars ($4,000,000), in the aggregate, for all such expenditures
in any one Fiscal Year. Notwithstanding the foregoing, Holdings
and/or its Consolidated Subsidiaries may expend, in Capital
Expenditures, up to Ten Million Dollars ($10,000,000) in the
aggregate, for all such expenditures in Fiscal Year 2004. In
addition, in the event that Holdings and its Consolidated
Subsidiaries expends, in Capital Expenditures, less than Ten
Million Dollars ($10,000,000) in the aggregate, for all such
expenditures during Fiscal Year 2004, then the difference between
Ten Million Dollars ($10,000,000) and the actual amount of all
such Capital Expenditures in Fiscal Year 2004 shall be added to
the Four Million Dollar ($4,000,000) limitation for Capital
Expenditures for Fiscal Year 2005, so that the maximum amount of
permitted Capital Expenditures for Fiscal Year 2005 will be the
sum of (i) Four Million Dollars ($4,000.000), plus (ii) the
difference between Ten Million Dollars ($10,000,000) and the
actual amount of all Capital Expenditures of Holdings and its
Consolidated Subsidiaries for Fiscal Year 2004. As used herein,
"Capital Expenditures" shall mean all expenditures made in
respect of the cost of any fixed asset or improvement, or
replacement, substitution, or addition thereto, having a useful
life of more than one (1) year, including, without limitation,
those arising in connection with the direct or indirect
acquisition of such assets by way of increased product or service
charges or offset items or in connection with Capital Leases.
Notwithstanding the foregoing, for purposes of measuring
Holdings' and its Consolidated Subsidiaries' compliance with the
limitations on Capital Expenditures in this Section 7.2, any cash
proceeds received from the sale of fixed assets during any Fiscal
Year shall reduce and offset the amount of Capital Expenditures
for Holdings and its Consolidated Subsidiaries for that Fiscal
Year. "Capital Leases" shall mean any leases of property that, in
accordance with GAAP, should be reflected as liabilities on the
balance sheet of a Person.
3. Inducing Representations. To induce Lender to enter into this
Agreement, Borrower hereby represents and warrants that: (i) Borrower
is duly authorized to enter into this Agreement, and this Agreement,
upon its execution by Borrower and Lender, will constitute Borrower's
legal, valid and binding obligations enforceable in accordance with
its terms against Borrower; (ii) after giving effect to this
Agreement, no Event of Default exists; (iii) no present right of
setoff, counterclaim, recoupment, claim or defense exists in
Borrower's favor in respect of its payment or performance of any
Obligations; and (iv) except as modified by this Agreement, all terms
of the Loan Agreement and each Loan Document shall remain in full
force and effect.
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4. Miscellaneous. Except as otherwise expressly provided herein, all
modifications to the Loan Agreement set forth herein shall take effect
on the Effective Date. Each existing Loan Document (including,
particularly, any Note) shall be deemed modified hereby as necessary
to conform its terms to the terms of the Loan Agreement, as modified
hereby. This Agreement constitutes a Loan Document, and shall be
governed and construed accordingly. This Agreement constitutes the
entire agreement between Lender and Borrower relative to the subject
matter hereof, and supersedes and replaces any prior understandings
and agreements, written or oral, in regard thereto. This Agreement
shall be binding on, and inure to the benefit of, the successors and
assigns of Borrower and Lender. Borrower shall reimburse Lender for
all costs which Lender incurs, including reasonable attorneys' fees,
in the preparation, negotiation, execution and performance of this
Agreement, and the recording of any Loan Documents in connection
herewith.
IN WITNESS WHEREOF, Lender and Borrower have executed this Agreement, by
and through their respective authorized officers, as of the Effective Date.
"Borrower" 'Lender"
NATIONAL R.V. HOLDINGS, INC. UPS CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxxx
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Authorized Officer Treasurer Authorized Officer
NATIONAL R.V., INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Authorized Officer Treasurer
COUNTRY COACH, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Authorized Officer Treasurer
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