EXHIBIT 10.26
NINTH 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),
BANK OF AMERICA, 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 9, 2000
NINTH AMENDMENT TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS NINTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
("Amendment"), dated effective as of August 9, 2000 (the "Amendment Effective
Date"), 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
Amendment Effective Date, 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 Amendment Effective Date, under the Amended and
Restated Loan and Security Agreement referenced under the Recitals hereinbelow;
herein called the "Lenders") and BANK OF AMERICA, N.A., (a national banking
association and successor in interest to Bank of America, N.A., formerly
NationsBank, N.A., successor in interest 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 Amended and Restated 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, the Third Amendment to Amended and Restated Loan and Security
Agreement dated effective as of December 21, 1998, the Fourth Amendment to
Amended and Restated Loan and Security Agreement dated effective as of February
1, 1999, the Fifth Amendment to Amended and Restated Loan and Security Agreement
dated effective as of February 25, 1999, the Sixth Amendment to Amended and
Restated Loan and Security Agreement dated effective as of July 30, 1999, the
Seventh Amendment to Amended and Restated Loan and Security Agreement dated
effective as of October 27, 1999, and the Eighth Amendment to Amended and
Restated Loan and Security Agreement dated effective as of January 31, 2000
(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:
2
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 in this Amendment as are prescribed by the Agreement.
ARTICLE 2
Amendments
----------
Section 2.1 Amendment to Section 1.1. Effective as of the Amendment
Effective Date, Section 1.1 of the Agreement is hereby amended to amend and
restate the definition of "Applicable Margin" to read in its entirety as
follows:
"Applicable Margin" means, for each portion of the unpaid balance of
the Revolving Credit Loans, the percentage specified for each Type of Loan
adjacent to such portion as set forth below, respectively:
===========================================================================
Unpaid Balance of
Revolving Credit Loans Eurodollar Loans Base Rate Loans
===========================================================================
$0 through the amount of the 3.75% 1.75%
Trademark IP Allowance
---------------------------------------------------------------------------
All amounts over the amount 2.75% 1.25%
of the Trademark IP Allowance
===========================================================================
For purposes of determining the Applicable Margin, the unpaid balance of the
Revolving Credit Loans shall be deemed to be comprised first of Eurodollar Loans
outstanding and thereafter by Base Rate Loans outstanding, notwithstanding the
dates on which any such Loans were funded.
Section 2.2 Amendment to Section 4.4(b)(i). Effective as of the Amendment
Effective Date, the first sentence of Section 4.4(b)(i) of the Agreement is
hereby amended and restated to read as follows:
Borrowers agree to pay to Agent for the ratable benefit of the Lenders
Letter of Credit fees equal to 2.75% per annum based on the average daily
aggregate Letter of Credit Amount of all Letters of Credit from time to
time outstanding during the term of this Agreement.
3
Section 2.3 Amendment to Section 12.1(b). Effective as of the Amendment
Effective Date, Section 12.1(b) of the Agreement is hereby amended and restated
to read in its entirety as follows:
(b) Minimum EBITDA. OMC's Consolidated EBITDA calculated as of the end
of any fiscal quarter, shall not fail to comply with at least one of the
following requirements specified as of such date: (i) for such fiscal
quarter, OMC's Consolidated EBITDA shall not be less than the amount
specified for such quarter-end under the heading below entitled "Quarter
Amount", or (ii) for the preceding four (4) fiscal quarters, OMC's
Consolidated EBITDA shall not be less than the amount specified for such
quarter-end under the heading below entitled "Preceding Four Quarters
Amount", or (iii) for the preceding two (2) fiscal quarters, OMC's
Consolidated EBITDA shall not be less than the amount specified for such
quarter-end under the heading below entitled "Preceding Two Quarters
Amount", as follows (it being understood and agreed that compliance with
this Section 12.1(b), as of any test date, is achieved by meeting any one
of the applicable requirements for such test date):
Preceding Preceding
Quarter Ending Quarter Amount Four Quarters Amount Two Quarters Amount
-------------------- --------------- -------------------- -------------------
March 31, 2000 ($8,900,000) $ 74,678,000 N/A
June 30, 2000 $ 28,000,000 $ 48,211,000 N/A
September 30, 2000 $ 18,995,000 N/A N/A
December 31, 2000 $ 7,910,000 N/A $26,905,000
March 31, 2001 $ 4,800,000 $ 59,705,000 N/A
June 30, 2001 $ 41,000,000 $ 95,800,000 N/A
September 30, 2001 $ 41,500,000 $103,300,000 N/A
December 31, 2001 $ 21,000,000 $108,300,000 N/A
ARTICLE 3
Waiver
------
Section 3.1 Waiver. Any Event of Default resulting from noncompliance with
the requirements of Section 12.1(b) as of June 30, 2000 hereby is waived.
Section 3.2 Limitation. The waiver granted pursuant to Section 3.1 of this
Amendment is granted pursuant to Section 16.9 of the Agreement and is expressly
limited as provided therein.
ARTICLE 4
Miscellaneous
-------------
Section 4.1 Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions precedent:
4
(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, 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) Waiver Fee. Payment to Agent of a waiver fee in an amount
agreed upon among the Loan Parties, Agent and the Lenders.
(iv) Additional Information. Agent shall have received such
additional documents, instruments and information as Agent may
reasonably request to effect the transactions contemplated hereby;
(v) 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 as a condition for effectiveness of this Amendment).
(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 this Amendment, no Default or Event of
Default shall have occurred and be continuing.
Section 4.2 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
5
its limited partnership agreement), (b) after giving effect to this Amendment,
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), (c) after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing, (d) 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 (e) 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 6.2(b) of the Agreement) remain true, correct and complete as of the
Amendment Effective Date.
Section 4.3 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 4.4 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 4.5 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.
Section 4.6 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 4.7 General. This Amendment, when signed by the Loan Parties, the
Agent and all Lenders, (i) subject to the prior satisfaction of the conditions
prescribed by Section 4.1, shall be deemed effective prospectively as of the
Amendment Effective Date, (ii) contains the entire agreement among the parties
and may not be amended or modified except pursuant to the Agreement 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.
6
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 Amendment to be
executed by their duly authorized officers in several counterparts effective as
of the date specified in the preamble hereof.
BORROWERS:
OUTBOARD MARINE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
OMC ALUMINUM BOAT GROUP, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
7
OMC FISHING BOAT GROUP, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
OMCLATIN AMERICA/CARIBBEAN, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
RECREATIONAL BOAT GROUP
LIMITED PARTNERSHIP
By: OMC Recreational Boat Group, Inc.,
General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
8
GUARANTOR:
OMC RECREATIONAL BOAT GROUP, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AGENT:
BANK OF AMERICA, N.A.
In its capacity as Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LENDERS:
BANK OF AMERICA, N.A.
In its capacity as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FLEET CAPITAL CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FLEET BUSINESS CREDIT CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
9
