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EXHIBIT 10.11
NationsBank
NationsBank, N.A.
FOURTH 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 February 1, 1999
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FOURTH AMENDMENT TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT ("Amendment"), dated effective as of February 1, 1999, 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, the Second Amendment to Amended
and Restated Loan and Security Agreement dated effective as of August 31, 1998,
and the Third Amendment to Amended and Restated Loan and Security Agreement
dated effective as of December 21, 1998 (hereinafter called the "Agreement").
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.
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,
each capitalized term used in this Amendment, shall have the same meaning given
to such term in the Agreement, as amended by this Amendment.
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ARTICLE 2
Amendments
Section 2.1 Amendment to Definition of "Borrowing Base" in Article 1 of
the Agreement. Effective as of February 1, 1999, the definition of "Borrowing
Base" in Article 1 of the Agreement is hereby amended and restated in its
entirety to read as follows:
"Borrowing Base" means, at any time, an amount equal to the lesser of:
(a) the maximum principal amount of the Revolving Credit
Facility, minus the sum of
(i) the Letter of Credit Reserve, plus
(ii) the Reserve, or
(b) an amount equal to the sum of
(i) 85% (or such lesser percentage as Agent may
determine pursuant to Section 2.5) of the
face value of Eligible Receivables that are
determined by Agent in its discretion to be
Qualified L/C Supported Receivables at such
time, plus
(ii) 85% (or such lesser percentage as Agent may
determine pursuant to Section 2.5) of the
face value of Eligible Receivables that are
determined by Agent in its discretion to be
Qualified Guaranteed Receivables at such
time, plus
(iii) 85% (or such lesser percentage as Agent may
determine pursuant to Section 2.5) of the
face value of Eligible Domestic Receivables
(other than Qualified L/C Supported
Receivables or Qualified Guaranteed
Receivables) at such time, plus
(iv) 75% (or such lesser percentage as Agent may
determine pursuant to Section 2.5) of the
Dollar Equivalent face value of Eligible
Foreign Receivables (other than Qualified
L/C Supported Receivables or Qualified
Guaranteed Receivables) at such time,
plus
(v) the lesser of
(A) 60% with respect to Eligible
Domestic Inventory and 50% with
respect to Eligible Foreign
Inventory (or such lesser
percentage as Agent may determine
pursuant to Section 2.5) of the
lesser of cost determined on a FIFO
(or first-in-first-out) accounting
basis or fair market value of such
Eligible Inventory, as applicable,
net of the Loan Parties' reserve
for obsolescence (if any), at
such time, plus, during the
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period of January 1, 1998 through April 30,
1998, the period of January 1, 1999 through
June 30, 1999, and the period of January 1
through April 30 of any calendar year
thereafter, 35% (or such lesser percentage
as Agent may in its discretion determine
from time to time) of the lesser of cost
determined on a FIFO (or first-in-first-out)
accounting basis or fair market value of
Eligible Work-In-Process Inventory, net of
the Loan Parties' reserve for obsolescence
(if any), at such time or
(B) $75,000,000, minus
(vi) the Letter of Credit Reserve; plus
(vii) provided that the representations of
Borrowers under Section 7.1(z) are and
remain true and correct, during any single
period commencing during any calendar year,
determined as provided hereinbelow (herein
called a "Designated Period"), (i)
$30,000,000 at any time during the period
from the Agreement Date through December 30,
1998, (ii) $20,000,000 at any time during
any portion of a Designated Period that
occurs during the period December 31, 1998
through January 31, 1999 or $30,000,000 at
any time during any portion of such
Designated Period that occurs during the
period February 1, 1999 through December 30,
1999, (ii) $10,000,000 at any time during
the period from December 31, 1999 through
December 30, 2000 and (iv) $0.00 on or at
any time after December 31, 2000; provided,
that any such Designated Period for any
calendar year shall begin on the Business
Day, if any, during such year on which the
aggregate outstanding balance of Loans first
exceeds an amount equal to the aggregate
amount determined under paragraph (b) of
this definition without regard to this
subparagraph (vii), and shall terminate on
the earlier of (a) the expiration of one
hundred eighty (180) days thereafter or (b)
December 31 of such year;
provided that with respect to clause (b) preceding, Agent may deduct any Reserve
prior to application of the relevant percentages used to calculate the Borrowing
Base as set forth herein.
ARTICLE 3
Miscellaneous
Section 3.1 Limited Waiver. Agent and the Lenders hereby waive any
Event of Default resulting solely from noncompliance with Subsection (c)
("Leverage Ratio") of Section 12.1 ("Financial Ratios") of the Agreement for the
period ending December 31, 1998,
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provided, that such waiver is expressly limited as provided herein and shall not
impair the requirements of such Subsection with respect to any other time or
period.
Section 3.2 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, the certain
amendment fee letter agreement in connection therewith and any
other instrument, document or certificate required by Agent to
be executed or delivered by any of the Loan Parties, Agent or
the Lenders in connection with this Amendment, in each case
duly executed (the "Amendment Documents");
(ii) Fees and Expenses. Evidence that the costs and
expenses (including, without limitation, reasonable 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;
(iii) Additional Information. Agent shall have
received such additional documents, instruments and
information as Agent may reasonably request to effect the
transactions contemplated hereby; and
(iv) Consents. All consents required by Section 16.9
of the Agreement shall have been obtained (it being understood
that, pursuant to Section 16.9 of the Agreement, consent of
Agent and all Lenders shall be required for effectiveness of
Section 2.1 and consent of Agent and Required Lenders shall be
required for effectiveness of all other provisions of this
Agreement.
(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) After giving effect to Section 3.1, no Default or Event of
Default shall have occurred and be continuing.
Section 3.3 Representations and Warranties. The Loan Parties hereby
represent and warrant to, and agree with, Agent, for benefit of the Lenders,
that, as of the date of and after
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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 (in the case of the certification required by such clause (iii), as
subsequently modified pursuant to Section 6.1(b) of the Agreement) remain true,
correct and complete as of the effective date of this Amendment.
Section 3.4 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 3.5 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 3.6 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.
Section 3.7 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 3.8 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.
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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, signed on or
about February 11, 1998 but effective as of the date specified in the preamble
hereof.
BORROWERS:
OUTBOARD MARINE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Senior Counsel and Assistant
Secretary
OMC ALUMINUM BOAT GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary and Treasurer
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
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OMC FISHING BOAT GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary and Treasurer
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
OMC LATIN AMERICA/CARIBBEAN, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
RECREATIONAL BOAT GROUP
LIMITED PARTNERSHIP
By: OMC Recreational Boat Group, Inc.
General Partner
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary and Treasurer
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
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GUARANTOR:
OMC RECREATIONAL BOAT GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary and Treasurer
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Financial 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: Vice President
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LENDERS:
NATIONSBANK, N.A.
successor in interest by merger to
NationsBank of Texas, N.A.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
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AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
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FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
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THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
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TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Senior Vice President
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FLEET CAPITAL CORPORATION f/k/a
SANWA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
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