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[NATIONSBANK LETTERHEAD]
Exhibit 10.9
SECOND AMENDMENT TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
among
OUTBOARD MARINE CORPORATION,
OMC ALUMINUM BOAT GROUP, INC.,
OMC FISHING BOAT GROUP, INC.,
OMC LATIN AMERICA/CARIBBEAN, INC.,
and
RECREATIONAL BOAT GROUP LIMITED PARTNERSHIP
as Borrowers and Guarantors,
and
OMC RECREATIONAL BOAT GROUP, INC.,
and
(and the other Borrowers and/or Guarantors, if any,
from time to time party hereto),
NATIONSBANK, N.A.,
as Agent and a Lender,
(AND THE OTHER LENDERS, IF ANY, FROM TIME TO TIME PARTY HERETO),
as Lenders,
Dated effective as of August 31, 1998
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SECOND AMENDMENT TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
("Amendment"), dated effective as of August 31, 1998, is executed and entered
into by and among OUTBOARD MARINE CORPORATION, a Delaware corporation ("OMC"),
OMC ALUMINUM BOAT GROUP, INC., a Delaware corporation OMC FISHING BOAT GROUP,
INC., a Delaware corporation, OMC LATIN AMERICA/CARIBBEAN, INC., a Delaware
corporation, RECREATIONAL BOAT GROUP LIMITED PARTNERSHIP, a Delaware limited
partnership, OMC RECREATIONAL BOAT GROUP, INC., a Delaware corporation
(collectively all of the "Loan Parties", as of the effective date hereof, under
the Amended and Restated Loan and Security Agreement referenced under the
Recitals hereinbelow; herein called the "Loan Parties"), each of the lending
institutions signatory hereto (collectively all of the "Lenders," as of the
effective date hereof, under the Amended and Restated Loan and Security
Agreement referenced under the Recitals hereinbelow; herein called the
"Lenders") and NATIONSBANK, N.A., a national banking association and successor
in interest by merger to NationsBank of Texas, N.A., in its capacity as agent
for itself and the other Lenders (in such capacity, together with its successors
and assigns in such capacity, herein called "Agent").
RECITALS:
A. The Loan Parties, the Lenders and Agent are parties to the certain
Amended and Restated Loan and Security Agreement dated effective as of January
6, 1998, as amended by the certain First Amendment to Loan and Security
Agreement dated effective as of May 21, 1998 (hereinafter called the
"Agreement").
B. The Loan Parties, the Lenders and Agent have agreed to amend the
Agreement as provided hereinbelow.
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Unless otherwise defined in this Amendment, terms
defined by the Agreement, where used in this Amendment, shall have the same
meanings as are prescribed by the Agreement, as amended by this Amendment.
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ARTICLE 2
Amendments
Section 2.1 Amendment to Definition of "Letter of Credit Facility". The
definition of Letter of Credit Facility in Section 1.1 of the Agreement hereby
is amended and restated to read in its entirety as follows:
"Letter of Credit Facility" means the facility provided under Article
3 of this Agreement for issuance of one or more Letters of Credit for the
account of a Borrower in an aggregate amount not to exceed $50,000,000 at
any time.
Section 2.2 Amendment to Section 12.3. Section 12.3 ("Guaranties") of the
Agreement hereby is amended and restated to read in its entirety as follows:
Section 12.3 Guaranties. No Loan Party will, nor will it permit any
other Loan Party to, directly or indirectly, become or remain liable with
respect to any Guaranty of any obligation of any other Person other than
pursuant to the Guaranty Agreement to be executed by such Loan Party
pursuant to the terms of this Agreement, Indebtedness permitted pursuant to
Section 12.2(a), Section 12.2(b) or Section 12.2(c), or other Indebtedness
in an aggregate amount not at any time exceeding $25,000,000.
ARTICLE 3
Miscellaneous
Section 3.1 Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions precedent:
(a) Agent shall have received all of the following, each dated the
date of this Amendment (unless otherwise indicated), in form and substance
satisfactory to Agent:
(i) Amendment Documents. This Amendment and any other instrument,
document or certificate required by Agent to be executed or delivered
by any of the Loan Parties, each of the Lenders and or any other
Person in connection with this Amendment, duly executed by such
Persons (the "Amendment Documents").
(ii) Fees and Expenses. Evidence that the costs and expenses
(including, without limitation, attorneys' fees and expenses) incurred
by Agent incident to this Amendment or otherwise required to be paid
in accordance with Section 16.2 of the Agreement, to the extent
incurred and submitted to the Loan Parties, shall have been paid in
full; and
(iii) Additional Information. Agent shall have received such
additional documents, instruments and information as Agent may
reasonably request to effect the transactions contemplated hereby.
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(b) The representations and warranties contained herein, in the
Agreement and in all other Loan Documents, as amended hereby, shall be true
and correct as of the date hereof as if made on the date hereof (except
those, if any, which by their terms specifically relate only to a different
date).
(c) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all other agreements,
documents and instruments executed and/or delivered pursuant hereto, and
all legal matters incident thereto, shall be satisfactory to Agent.
(d) No Default or Event of Default shall have occurred and be
continuing.
Section 3.2 Representations and Warranties. The Loan Parties hereby
represent and warrant to, and agree with, Agent, for the benefit of the Lenders,
that, as of the date of and after giving effect to this Amendment, (a) the
execution, delivery and performance of this Amendment and any and all other
Amendment Documents executed and/or delivered in connection herewith have been
authorized by all requisite corporate action on the part of each of the Loan
Parties (as applicable) and will not violate any of such Loan Party's
certificate of incorporation or bylaws (or, in the case of Recreational Boat
Group Limited Partnership, its certificate of limited partnership or its limited
partnership agreement), (b) all representations and warranties set forth in the
Agreement and in any other Loan Document are true and correct as if made again
on and as of such date (except those, if any, which by their terms specifically
relate only to a different date) in the Agreement), (d) no Default or Event of
Default has occurred and is continuing, (e) the Agreement (as amended by this
Amendment), and all other Loan Documents are and remain legal, valid, binding
and enforceable obligations in accordance with the terms thereof, and (f) the
certifications delivered to Agent under clause (i), clause (ii) and clause (iii)
of Section 6.1(c) of the Agreement remain true, correct and complete as of the
effective date of this Amendment.
Section 3.3 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan Document
shall survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by Agent or any Lender, or any closing, shall
affect the representations and warranties or the right of Agent and the Lenders
to rely upon them.
Section 3.4 Reference to Agreement. Each of the Loan Documents, including
the Agreement, the Amendment Documents and any and all other agreements,
documents or instruments now or hereafter executed and/or delivered pursuant to
the terms hereof or pursuant to the terms of the Agreement as amended hereby,
are hereby amended so that any reference in such Loan Documents to the
Agreement, whether direct or indirect, shall mean a reference to the Agreement
as amended hereby.
Section 3.5 Severability. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
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Section 3.6 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Credit Parties and the Loan Parties and their
respective successors and assigns, except each of the Loan Parties may not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of Agent and the Lenders.
Section 3.7 General. This Amendment, when signed by each signatory as
provided hereinbelow (i) shall be deemed effective prospectively as of the
effective date specified in the preamble of this Amendment, (ii) contains the
entire agreement among the parties and may not be amended or modified except in
writing signed by all parties, (iii) shall be governed and construed according
to the laws of the State of Texas, and (iv) may be executed in any number of
counterparts, each of which shall be valid as an original and all of which shall
be one and the same agreement. A telecopy or other electronic transmission of
any executed counterpart shall be deemed valid as an original.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers in several counterparts.
BORROWERS:
OUTBOARD MARINE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial
Officer
Authorized Officer
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Authorized Officer
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OMC ALUMINUM BOAT GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Authorized Officer
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary and Treasurer
Authorized Officer
OMC FISHING BOAT GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
Authorized Officer
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary and Treasurer
Authorized Officer
OMC LATIN AMERICA/CARIBBEAN, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
Authorized Officer
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Assistant Secretary and
Controller
Authorized Officer
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RECREATIONAL BOAT GROUP
LIMITED PARTNERSHIP
By: OMC Recreational Boat Group, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
Authorized Officer
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary and Treasurer
Authorized Officer
GUARANTOR:
OMC RECREATIONAL BOAT GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
Authorized Officer
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Assistant Secretary and Treasurer
Authorized Officer
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AGENT:
NATIONSBANK,N.A.,
successor in interest by merger to
NationsBank of Texas, N.A.
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
Authorized Officer
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LENDERS:
NATIONSBANK,N.A.,
successor in interest by merger to
NationsBank of Texas, N.A.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Assistant Vice President
Authorized Officer
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AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Authorized Officer
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FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
Authorized Officer
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THE CIT GROUP BUSINESS CREDIT, INC.
By: /s/ Xxxxxx X. Xxxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Asst. Vice President
Authorized Officer
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TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
______________________________
Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President
Authorized Officer
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SANWA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
_______________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Authorized Officer
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