EXHIBIT 10.72
AMENDMENT
REGARDING
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT REGARDING AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Agreement") is entered as of December 30, 2002 (the
"Modification Date"), by and among by and among Xxxxxx Boats & Motors, Inc.
("TRVS"), TBC Arkansas, Inc., Xxxxxx Boating Center Arlington, Inc., Xxxxxx
Boating Center Beaumont, Inc., Xxxxxx Boating Center Oklahoma, Inc., Xxxxxx
Boating Center Tennessee, Inc., Xxxxxx Xxxxxxx Marine, Inc., Falcon Marine,
Inc., Falcon Marine Abilene, Inc., Xxxxxx Boating Center Alabama, Inc., Xxxxxx
Boating Center Louisiana, Inc., Xxxxxx Boats & Motors Baton Rouge, Inc., Xxxxxx
Boating Center Mississippi, Inc., Xxxxxx Boating Center Little Rock, Inc., Red
River Marine Arkansas, Inc., Shelby Marine Center, Inc., and Shelby Marine
Pickwick, LLC (collectively and separately, jointly and severally, referred to
as, "Borrower"), and GE Commercial Distribution Finance Corporation, formerly
known as Deutsche Financial Services Corporation, ("CDF").
Recitals:
A. Borrower and CDF are party to that certain Amended and Restated Loan
and Security Agreement dated as of December 14, 2001 (as amended from
time to time, the "Original Loan Agreement").
B. Borrower is in Default as of the date hereof under the Original Loan
Agreement for failing to remit payment to CDF for (i) Floorplan
Inventory sold by Borrower ("SAU"), (ii) Unpaid Matured Inventory (as
define below), and (iii) Unpaid Curtailments (as defined below).
C. Borrower is in default to Hibernia Bank solely for the breach of a cash
flow covenant (the "Hibernia Undeclared Default").
D. CDF is willing to forbear from exercising its rights and remedies under
the Original Loan Agreement as a result of Borrower's Default under
certain conditions, including execution of this Amendment and execution
of a Credit and Security Agreement with TMRC, L.L.P. ("TMRC") regarding
loan(s) to Borrower (the "TMRC Loan Agreement") and CDF has agreed, in
consideration of Borrower meeting such conditions, to make available
the IRS Refund Loan on the terms and conditions stated herein.
E. CDF and Borrower have agreed to the provisions set forth herein on the
terms and conditions contained herein.
Agreement
Therefore, in consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged, Borrower
and the Lender hereby agree as follows:
1. Definitions. All references to the "Agreement" or the "Loan Agreement" in the
Original Loan Agreement and in this Agreement shall be deemed to be references
to the Original Loan Agreement as it may be further amended, restated, extended,
renewed, replaced, or otherwise modified from time to time. All references in
the Original Loan Agreement and the Loan Documents to "Deutsche Financial
Services Corporation" are hereby amended to be "GE Commercial Distribution
Finance Corporation, formerly known as Deutsche Financial Services Corporation,"
1
and all references in the Original Loan Agreement and the Loan Documents to
"DFS" are hereby amended to be "CDF." Capitalized terms used and not otherwise
defined herein have the meanings given them in the Original Loan Agreement.
2. Conditions to Effectiveness of Agreement. This Agreement shall become
effective when, and only if, each of the following conditions have been met to
the satisfaction of CDF: (i) this Agreement has been executed by Borrower and
CDF, (ii) the TMRC Loan Agreement has been executed by Borrower and TMRC, (iii)
each of the conditions listed in the TMRC Loan Agreement to its effectiveness
and to the funding of advances thereunder have been satisfied, and (iv) the
documents listed on Exhibit A to this Agreement have been delivered and, as
applicable, executed, sealed, attested, acknowledged, certified, or
authenticated, each in form and substance satisfactory to CDF.
3. Waiver of Certain Defaults; No Other Waiver. Borrower hereby acknowledges
that (a) Defaults have occurred due to Borrower's breach of Section 2.2.2
(Payment Terms for Floorplan Inventory) and/or financing terms pursuant to
Statements of Transaction relating to the SAU, the Unpaid Matured Inventory and
the Unpaid Curtailments, and (b) Borrower is in default to Hibernia Bank for the
Hibernia Undecalred Default. Borrower further acknowledges that, as of the
Modification Date, the amount of the SAU is $756,266.50, the amount of the
Unpaid Matured Inventory is $59,890.08, and the amount of the Unpaid
Curtailments is $642,048.28. Additionally, Borrower will pay CDF on the
Modification Date the net amount of (i) the SAU, less (ii) the amount of new
Revolving Loan availability based on Eligible Used Inventory owned by Borrower
more than 365 days, plus availability for Parts and Accessories, and less (iii)
additional Floorplan Inventory or Revolving Loan availability ($146,160.32)
based on Eligible Inventory transferred to a Borrower from an affiliate in
Florida or Georgia (such net amount being the "Uncollateralized SAU" and the
remaining SAU being the "Collateralized SAU"); Borrower will pay CDF the
remaining Collateralized SAU together with all Unpaid Matured Inventory and
Unpaid Curtailments on or before April 30, 2003. Borrower warrants and
represents to CDF that as of the Modification Date, no payment Defaults exist
under the Original Loan Agreement except the SAU, the Unpaid Matured Inventory
and the Unpaid Curtailments. Borrower further warrants and represents to CDF
that (1) Borrower is not in default to Hibernia Bank except for the Hibernia
Undeclared Default, and (2) Hibernia Bank has not declared the Hibernia
Undeclared Default to be a default or event of default upon which Hibernia Bank
may exercise any rights or remedies against any Borrower or Affiliate. Upon the
effectiveness of this Agreement, except for the Non-Waived Defaults (defined
below) CDF waives all Defaults under the Original Loan Agreement or any
agreement, document or instrument entered into in connection with or
contemplated by the Original Loan Agreement and events in existence as of the
Modification Date which with the passage of time would become Defaults, and all
Defaults and events which with the passage of time would become Defaults, other
than the Non-Waived Defaults, arising through the date that is thirty (30) days
after the Modification Date. Subject to the terms and conditions contained
herein, CDF hereby waives the Defaults described in the preceding sentence. As
used herein, "Non-Waived Defaults" shall mean any of any of the following
Defaults under the Original Loan Agreement or any agreement, document or
instrument entered into in connection with or contemplated by the Loan
Agreement:
(A) Any Default arising as a result of any failure to make any required payment
to CDF or any of the IRS Refund Loan Lenders, including, but not limited to, any
payment of principal or interest; or
(B) Any Default arising as a result of violation of any covenant relating to
minimum tangible net worth, as hereby amended, of Borrowers on a
consolidated basis; or
(C) Any Default arising as a result of any violation of any covenant relating
to ownership, control, management, mergers, consolidations, sale or
purchase of assets or stock of any Borrower, other than as contemplated for
TMRC or another entity majority owned by Tracker Marine, L.L.C. to acquire
a controlling interest in the common stock of TRVS; or
2
(D) Any Default arising as a result of any material violation of any
representation or warranty or any violation of any representation or
warranty that causes a material adverse change in the business of the
Borrower; or
(E) Any Default arising as a result of any violation of any covenant relating
to granting of liens, other than permitted liens, or the incurrence of
indebtedness, other than Permitted Indebtedness, of Borrower, other than as
contemplated for the IRS Refund Loan; or
(F) Any Default arising as a result of any Borrower becoming insolvent or
generally failing to pay, or admitting in writing its inability to pay,
such person's or entity's debts as they become due, or a proceeding under
any bankruptcy, reorganization, arrangement of debt, insolvency,
readjustment of debt or receivership law or statute is filed by or against
any Borrower or any Borrower makes an assignment for the benefit of
creditors; or
(G) Any Default arising as a result of any termination of any guaranty; or
(H) Any Default arising as a result of (i) any failure to deliver on a timely
basis as required in accordance with the terms of the Original Loan
Agreement or any agreement, document or instrument relating to the Original
Loan Agreement any borrowing base certificate or other report relating to
inventory and/or accounts receivable (other than the report of the
independent auditors or the 10K to the Securities and Exchange Commission,
provided that such audit report and 10K are delivered by January 14, 2003);
or (ii) any misrepresentation contained in any borrowing base certificate
or other report relating to inventory and/or accounts receivable; or
(I) Hibernia Bank declaring orally or in writing the Hibernia Undeclared
Default to be a default or event of default upon which Hibernia Bank may
exercise any rights or remedies against any Borrower or Affiliate.
Upon any further Defaults after the date that is thirty (30) days after the
Modification Date or upon the occurrence of any Non-Waived Defaults at any time,
all rights and remedies of CDF, whether pursuant to the Original Loan Agreement,
the other Loan Documents, the Bridge Loan Agreement, or available at law or
equity, shall be available to CDF, including without limitation the right to
accelerate the Obligations and foreclose on any or all Collateral.
4. Amendments.
4.1. New Definitions. The following new definitions are hereby added in
alphabetical order to Section 1 of the Original Loan Agreement as follows:
"IRS Refund Loan' shall mean that working capital loan pursuant to
Section 2.4 of this Agreement."
"Modification Date" shall mean December 30, 2002.
"Tax Refund Intercreditor Agreement' shall mean that certain
Intercreditor Agreement by and between CDF, TMRC and Transamerica
Commercial Finance Corporation, dated as of the Modification Date, as
amended, modified, restated or replaced from time to time."
3
"SAU' shall mean the amount owed under Section 2.2.2 of this Agreement
as of the Modification Date for sold Floorplan Inventory, but unpaid by
Borrower to CDF contrary to the terms of this Agreement."
"Unpaid Curtailments' shall mean principal reductions against inventory
as required periodically under the financing programs pursuant to the
Original Loan Agreement for which the required payment has not been
remitted to CDF."
"Unpaid Matured Inventory' shall mean inventory older than permitted
under the financing program pursuant to the Original Loan Agreement for
which the required payment has not been remitted to CDF."
4.2. Existing Definitions.
4.2.1. Eligible Used Inventory.
The reference in the definition of "Eligible Used Inventory"
in the existing proviso thereto to "Eligible New Inventory" is
deleted and replaced with "Eligible Used Inventory". In
addition, the following is added at the end of the definition
of "Eligible Used Inventory":
"provided, however, that from the Modification Date,
through and including April 30, 2003, CDF will
consider Inventory owned by Borrower more than 365
days, subject to all other eligibility criteria and
the terms of this Agreement, to be Eligible Used
Inventory solely for the purpose of calculating
Eligible Used Inventory Availability."
4.3.1. Total Credit Facility.
The "and" immediately preceding Subsection 2.1(c) of the
Original Loan Agreement is deleted and the following is added
at the end of subsection 2.1(c) of the Original Loan Agreement
and before the parenthetical defined term "Total Credit
Limit":
", and (d) Forty Million Five Hundred Thousand
Dollars ($40,500,000) on and after the Modification
Date, including a maximum for (i) Floorplan Inventory
of Thirty One Million Five Hundred Thousand Dollars
($31,500,000), plus (ii) Revolving Credit Loans (with
sub-limits for Eligible Used Inventory and Eligible
Parts and Accessories as specified below) of Five
Million Five Hundred Thousand Dollars ($5,500,000),
plus (iii) approvals to Approved Vendors for
financing Floorplan Inventory for which CDF has not
remitted payment ("Open Approvals") of Three Million
Dollars ($3,000,000), plus (iv) the IRS Refund Loan
of Five Hundred Thousand Dollars ($500,000)".
4.3.2. Inventory Floorplan Loan Limit.
Clause (ii) of Section 2.2.1. of the Original Loan Agreement
is deleted and replaced with the following:
"(ii) the sum of (A) the outstanding Revolving Credit
Loans, (B) plus the Open Approvals, plus (C) Five
Hundred Thousand Dollars for the IRS Refund Loan. At
4
no time, and under no circumstances, shall the
outstanding balance of Floorplan Inventory Loans plus
Revolving Credit Loans exceed Thirty Seven Million
Dollars ($37,000,000)".
4.3.3. Payment Terms for Floorplan Inventory.
The following is added at the end of subsection (c) of Section
2.2.2 of the Original Loan Agreement:
"provided, however, that payment for the
Collateralized SAU, the Unpaid Matured Inventory and
the Unpaid Curtailments will be due and payable by
Borrower in full in cash on or before April 30, 2003
unless CDF and Borrower have agreed otherwise in
writing prior thereto, and after the Modification
Date, CDF will xxxx Borrower by the twentieth (20th)
day of each calendar month the principal amount of
matured inventory and principal curtailments, and
Borrower will remit payment for such matured
inventory principal and principal curtailments by the
fifth (5th) day of the following calendar month".
4.3.4. Eligible Used Inventory.
Section 2.3.1 of the Original Loan Agreement is deleted in its
entirety and replaced with the following:
"2.3.1 Eligible Used Inventory. On receipt of each
Borrowing Base Certificate, CDF will credit Borrower
with the lesser of (a) the sum of, without
duplication, (i) seventy percent (70%) of the Value
of Borrower's Eligible Used Inventory listed in such
Borrowing Base Certificate that is owned by Borrower
for 365 days or less, and (ii) only for the period of
the Modification Date through and including April 30,
2003 and solely in order to collateralize the SAU,
Unpaid Curtailments and Unpaid Matured Inventory,
forty percent (40%) of the Value of Borrower's
Eligible Used Inventory listed on such Borrowing Base
Certificate that is owned by Borrower more than 365
days (after April 30, 2003, such percentage shall be
zero percent), and (b) Three Million Dollars
($3,000,000) ("Eligible Used Inventory
Availability")."
4.3.5. IRS Refund Loan.
The following new Section 2.4 is added to the Original Loan
Agreement as follows:
"2.4 IRS Refund Loan. Subject to the conditions set
forth in section 2.4.1 hereof, CDF may, in its sole
and absolute discretion subject to such conditions as
CDF may choose to impose in its sole and absolute
discretion, provide advance(s) to Borrower as
requested by Borrower for general working capital
purposes (including, without limitation, payment of
any Obligations for attorneys' fees, costs and
expenses to prepare documentation related to the IRS
Refund Loan and/or the SAU) in an aggregate amount
not to exceed Five Hundred Thousand dollars
($500,000.00). Amounts advanced under this section
may be repaid at any time, but in any event must be
repaid by Borrower in full in cash on or before April
30, 2003 and shall be due and payable in full in cash
on such date. Amounts advanced under this section and
repaid will not be re-advanced to Borrower. The loan
facility described in this Section 2.4. is a
5
discretionary facility that CDF may terminate at any
time and is not a commitment to lend or advance
funds.
2.4.1 Conditions Precedent for IRS Refund Loan. CDF
will not make any advance under the IRS Refund Loan
unless Borrower shall have complied with all of the
following:
(a) No Defaults (other than the Default that exist as
of the Modification Date that resulted in the SAU,
the Unpaid Curtailments and the Unpaid Matured
Inventory) shall have occurred; and
(b) Borrower shall have provided evidence
satisfactory to CDF of the existence, validity and
amount of the refund due to Borrower and unpaid from
the United States Internal Revenue Service for fiscal
periods ending on or before December 31, 2002 (`IRS
Refund') and that the IRS Refund has not been paid
and is not subject to offset by the United States
Internal Revenue Service or other agency of the
United States Government; and
(c) CDF, Transamerica Commercial Finance Corporation
("TCFC" and in its capacity as agent thereunder, "Tax
Refund Collateral Agent") and TMRC (collectively the
`IRS Refund Loan Lenders') shall have executed the
Tax Refund Intercreditor Agreement in form and
substance satisfactory to CDF; and
(d) evidence satisfactory to CDF that Borrowers have
executed with TCFC (in its capacity as a lender) and
TMRC loan documents providing for advances to
Borrower of one-third of the IRS Refund up to an
aggregate amount with CDF of One Million Five Hundred
Thousand Dollars ($1,500,000), together with evidence
satisfactory to CDF that TCFC (in its individual
capacity as a lender) and TMRC have each made, or
will concurrently with CDF make, an advance to
Borrower against the IRS Refund in approximately the
same amount as the advance being made by CDF against
the IRS Refund
(e) Borrower shall have assigned the IRS Refund to
the Tax Refund Collateral Agent for the benefit of
the IRS Refund Loan Lenders;
(f) Borrower shall have requested in writing to CDF
an advance under the IRS Refund Loan together with
detailed evidence satisfactory to CDF that the
advance will be used for general working capital
purposes only; and
(g) such other conditions as CDF may impose from time
to time, including, without limitation, continued
funding by TCFC and TMRC under their respective loan
facilities to Borrower."
4.3.6. Renumbering.
Sections 2.4 through and including 2.15 of the Original Loan
Agreement are renumbered as Sections 2.5 through and including
2.16.
6
4.3.7. Interest - All Loans.
The following sentence is added at the beginning of renumbered
Section 2.6 of the Original Loan Agreement, after the title
thereof and before section 2.6.1:
"All interest billed by CDF to Borrower (whether for
Floorplan Inventory, Revolving Loans, and/or the IRS Refund
Loan) will be due and payable by Borrower to CDF by the
twentieth (20th) day of the month in which billed, unless such
amounts are billed after the tenth (10th) day of a calendar
month, then such amounts will be paid by Borrower by the
twentieth day of the next calendar month."
4.3.8. Interest - IRS Refund Loan.A new section 2.6.2B is
added as follows:
"2.6.2B Interest - IRS Refund Loan. Borrower will pay
interest to CDF on the Daily Contract Balance (as
defined below) monthly in arrears beginning on the
Modification Date until all IRS Refund Loan advances
are indefeasibly paid in full in good funds. Interest
on the IRS Refund Loan advances shall be calculated
on the Average Daily Balance of IRS Refund Loan
advances at the rate equal to the Prime Rate plus
four percent (4.00%) per annum; provided, however,
that at no time shall interest on the IRS Refund Loan
advances be computed on a Prime Rate of less than
Four and Seventy-five One Hundredths percent (4.75%)
per annum."
4.3.9. Definitions of Daily Contract balance and Average Daily
Balance. The definition of "Daily Contract Balance" in
renumbered Section 2.6.5. of the Original Loan Agreement is
amended to add each time after the phrase "Revolving Credit
Loans" is contained in such definition the phrase "IRS Refund
Loan". The definition of "Daily Contract Balance" in Section
renumbered 2.6.5. of the Original Loan Agreement is amended to
add after the phrase "Revolving Credit Loans" is contained in
such definition the phrase "IRS Refund Loan".
4.3.8 Security Interest.
The following is added to section 5.1 of the Original Loan
Agreement after the words "general intangibles":
"(including, without limitation, all rights to apply
for, claim and receive all tax refunds and
overpayments from any department or agency of the
United States government, including, without
limitation, the Internal Revenue Service)".
4.3.9 Covenants.
4.3.9.1 Business Locations.
The title of section 8.1.6 of the Original Loan
Agreement is amended to read "Business Locations."
Additionally, the following is added at the end of
section 8.1.6 as a new sentence therein:
"Additionally, Borrower will (i) provide CDF
with a list of locations, identifying which
locations are owned and which locations are
7
leased, and including the name and address
of the landlord of each leased location by
January 2, 2003, and (ii) obtain waivers or
subordinations of the statutory and
contractual liens against the assets of
Borrowers at leased locations by landlords
to each Borrower by January 31, 2003."
4.3.9.2 Taxes.
The title of section 8.1.7 of the Original Loan
Agreement is amended to read "Taxes". Additionally,
The following is added after the period at the end of
section 8.1.7:
"Borrower, will, and will cause each
Subsidiary to, immediately: (i) notify CDF
in writing upon the receipt of any tax
refund or overpayment (including, without
limitation, the IRS Refund), and (ii) pay
over all such tax refunds and overpayments
to CDF or to TCFC as Collateral Agent for
the benefit of CDF, TCFC and TMRC. Borrowers
agrees that if any tax claim or refund,
including any portion of the IRS Refund, is
paid to Borrowers at any time or from time
to time, Borrowers will receive and hold the
same in trust for CDF until such received
tax claim or refund, including any portion
of the IRS Refund, is delivered to CDF or to
TCFC as Collateral Agent in the identical
form of payment received by the Borrowers."
4.3.9.3 Reporting Requirements.
A new subsection (j) is added to section 8.1.10 of
the Original Loan Agreement as follows:
"(j) by Tuesday of each week, a report for
the prior week detailing the amount and
payee (other than CDF) of each disbursement
of each Borrower in excess of $10,000,
whether the disbursement is made by cash,
company check, wire transfer or Automated
Clearing House."
A new subsection (k) is added to section 8.1.10 of
the Original Loan Agreement as follows:
"(k) by Monday, January 13, 2003, and each
Monday thereafter, a report of Borrowers'
(i) actual cash inflows and outflows for all
weeks since December 20, 2002 through the
Friday immediately preceding the date of the
report, and (ii) projected cash inflows and
outflows for the 13-weeks on and after the
date of the report, with such supporting
details as required by CDF."
4.3.10 Financial Covenants.
All references in Section 9 of the Original Loan Agreement to
"Borrower" or "Borrowers" are amended to read "Borrower and
its Affiliates".
8
The following is added into section 9.1.1 after clause (c) and
before the word "and":
"and (d) December 31, 2002 of not less than Twenty
Million Dollars ($20,000,000), and (e) January 31,
2003, February 28, 2003 and March 31, 2003 of not
less than Nineteen Million Dollars ($19,000,000), and
April 30, 2003 of not less than Twenty Million
Dollars ($20,000,000); and".
The definition of "Tangible Net Worth" in section 9.2 of the
Original Loan Documents is deleted in its entirety and
restated to read as follows:
"Tangible Net Worth" shall mean as of any date the
sum of the Borrowers' and its Affiliates' (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 first in, first out basis plus (iii)
Subordinated Debt, and plus (iv) unamortized income,
less the sum of the Borrowers' and affiliates' (a)
Intangibles, 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; (f) interest in the cash
surrender value of officer's or shareholder's life
insurance policies; (g) income not earned as of the
date of any such calculation; and (h) deferred tax
benefits, whether short-term or long-term."
4.4. Defaults.
4.4.1 Failure to Pay Other Amounts to CDF.
The last clause of section 11.1.2 of the Original Loan
Agreement after the parenthetical therein is amended to read
as follows:
"when due and payable hereunder".
4.4.2 Failure to Pay Certain Costs and Expenses.
The last clause of section 11.1.3 of the Original Loan
Agreement is amended to read as follows:
"when due and payable hereunder".
4.4.3 Failure to Pay Amounts to Other Persons.
The following is added into Section 11.1.4 (Failures to Pay
Amounts to Other Persons) of the Original Loan Agreement after
the phrase "owed to any third party," :
9
"or any amount owed to Transamerica Commercial
Finance Corporation or TMRC, L.L.P.,'.
The following is added at the end of section 11.1.9 (Default
Under Other Agreements):
"or (c) any default or event of default under the
Credit and Security Agreement executed by and between
Xxxxxx Boats and Motors, Inc. and TMRC on or about
the Modification Date, or any related documents or
(d) any breach by any lender of Borrower (other than
CDF) of the any intercreditor agreement between CDF
and any other lender of Borrower".
4.4.4 Certain Covenants With a Curing Period.
The parenthetical in section 11.1.7 is amended to read as
follows:
"(Other than Covenants in Sections 8.1.1, 8.1.5 with
respect to secured loans but not unsecured accounts payable
obligations, 8.1.6, 8.1.7 and 9)".
4.5 Termination.
Subpart (a) of section 3.1 is deleted in its entirety and restated as
follows:
"if Borrower is not in default hereunder, 30 days prior
written notice of termination is reasonable and sufficient".
5. Representations and Warranties of Borrower. Each Borrower hereby represents
and warrants to Lender that (i) such Borrower's execution of this Agreement has
been duly authorized by all requisite action of such Borrower, (ii) no consents
are necessary from any third parties for such Borrower's execution, delivery or
performance of this Agreement, (iii) this Agreement, the Loan Agreement, and
each of the other Loan Documents, constitute the legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
terms, except to the extent that the enforceability thereof against Borrower may
be limited by bankruptcy, insolvency or other laws affecting the enforceability
of creditors rights generally or by equity principles of general application,
(iv) except as disclosed on the disclosure schedules attached to the Loan
Agreement (Exhibits 7.3, 7.5, 7.7, 7.9, 7.11, 7.17 and 7.18), all of the
representations and warranties contained in the Loan Agreement are true and
correct with the same force and effect as if made on and as of the date of this
Agreement, (v) after giving effect to this Agreement, there is no Default that
has occurred and is continuing which has not been waived in writing by Lender;
and (vi) the IRS Refund is a legitimate claim under the Internal Revenue Code
based on Borrowers net income or losses as of or prior to December 31, 2002 and
has been reviewed and has not been disputed by Borrower's independent certified
public accountants.
6. Reaffirmation. Each Borrower hereby acknowledges and confirms that (i) the
Loan Agreement and the other Loan Documents remain in full force and effect,
(ii) such Borrower has no defenses to its obligations under the Loan Agreement
and the other Loan Documents, (iii) the Liens of the Lender granted under the
Loan Agreement secure all the Obligations, and continue in full force and
effect, and have the same priority as before this Agreement, and (iv) such
Borrower has no claim against Lender arising from or in connection with the Loan
10
Agreement or the other Loan Documents. Each Borrower covenants and agrees that
the amendments contained herein amending all references in the Original Loan
Agreement and the Loan Documents from "Deutsche Financial Services Corporation
to "GE Commercial Distribution Finance Corporation, formerly known as Deutsche
Financial Services Corporation," and amending all references in the Original
Loan Agreement and the Loan Documents from "DFS" to "CDF" do not impact the
validity and enforceability of the Original Loan Agreement or the Loan
Documents, or the liens and security interests granted thereunder.
7. Governing Law. This Agreement has been executed and delivered in Troy,
Michigan, and shall be governed by and construed under the laws of the State of
Michigan without giving effect to choice or conflicts of law principles
thereunder.
8. Section Titles. The section titles in this Agreement are for convenience of
reference only and shall not be construed so as to modify any provisions of this
Agreement.
9. Counterparts; Facsimile Transmissions. This Agreement may be executed in one
or more counterparts and on separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument. Signatures to this Agreement may be given by facsimile or other
electronic transmission, and such signatures shall be fully binding on the party
sending the same.
10. Fees and Expenses. Borrower shall promptly pay to Lender all fees, expenses
and other amounts owing to Lender under the Loan Agreement and the other Loan
Documents upon demand, including, without limitation, all fees, costs and
expenses incurred by Lender in connection with the preparation, negotiation,
execution, and delivery of this Agreement.
11. Incorporation By Reference. Lender and Borrower hereby agree that all of the
terms of the Loan Documents are incorporated in and made a part of this
Agreement by this reference.
12. Notice--Oral Commitments Not Enforceable.
The following notice is given pursuant to Section 432.045 of the Missouri
Revised Statutes; nothing contained in such notice shall be deemed to limit or
modify the terms of the Loan Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND
US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS
WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US,
EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
13. Notice--Insurance.
UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR
AGREEMENT WITH US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT OUR
INTERESTS IN YOUR COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT YOUR
INTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT PAY ANY CLAIM THAT YOU MAKE
11
OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION WITH THE COLLATERAL. YOU
MAY LATER CANCEL ANY INSURANCE PURCHASED BY US, BUT ONLY AFTER PROVIDING
EVIDENCE THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY OUR AGREEMENT. IF WE
PURCHASE INSURANCE FOR THE COLLATERAL, YOU WILL BE RESPONSIBLE FOR THE COSTS
OF THAT INSURANCE, INCLUDING THE INSURANCE PREMIUM, INTEREST AND ANY OTHER
CHARGES WE MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL
THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE
COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL OUTSTANDING BALANCE OR
OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE
YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.
14. RELEASE.
EACH OF THE BORROWERS HEREBY RELEASE, EXCEPT IN THE INSTANCE OF GROSS
NEGLIGENCE AND WILFUL MISCONDUCT, CDF AND ITS OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, ATTORNEYS, SUCCESSORS, PREDECESSORS AND ASSIGNS FROM ALL MANNER OF
ACTIONS, CLAIMS, DEMANDS, LIABILITIES, CAUSE AND CAUSES OF ACTION, SUITS,
DAMAGES, JUDGMENTS, EXECUTIONS, WHATSOEVER, IN LAW OR IN EQUITY, AND
PARTICULARLY, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN CONNECTION
WITH THE ORIGINAL LOAN AGREEMENT AND LOAN DOCUMENTS AND ANY AGREEMENTS,
DOCUMENTS AND INSTRUMENTS RELATING THERETO AND THE ADMINISTRATION OF THE LOAN
DOCUMENTS, ALL INDEBTEDNESS, OBLIGATIONS AND LIABILITIES OF ANY OF THE
BORROWERS TO CDF AND ANY AGREEMENTS, DOCUMENTS AND INSTRUMENTS RELATING TO THE
DOCUMENTS (COLLECTIVELY, THE "CLAIMS"), WHICH ANY OF THE BORROWERS NOW HAVE
AGAINST CDF OR EVER HAD, OR WHICH MIGHT BE ASSERTED BY THEIR 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 CDF 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 LOAN DOCUMENTS.
{remainder of page intentionally left blank; signature pages
immediately follows}
12
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
XXXXXX BOATS & MOTORS, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
TBC ARKANSAS, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
XXXXXX BOATING CENTER ARLINGTON, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
XXXXXX BOATING CENTER BEAUMONT, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
XXXXXX BOATING CENTER OKLAHOMA, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
XXXXXX BOATING CENTER TENNESSEE, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
13
XXXXXX XXXXXXX MARINE, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
FALCON MARINE, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
FALCON MARINE ABILENE, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
XXXXXX BOATING CENTER ALABAMA, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
XXXXXX BOATING CENTER LOUISIANA, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
XXXXXX BOATS & MOTORS BATON ROUGE, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
XXXXXX BOATING CENTER MISSISSIPPI, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
14
XXXXXX BOATING CENTER LITTLE ROCK, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
RED RIVER MARINE ARKANSAS, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
SHELBY MARINE CENTER, INC., as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
SHELBY MARINE PICKWICK, LLC, as a Borrower
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION
formerly known as Deutsche Financial Services Corporation, as Lender
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
15
Exhibit A
Documents and Requirements
1. Amendment regarding Amended and Restated Loan and Security Agreement.
2. Revised and updated complete Disclosure Schedule (Exhibits 7.3, 7.5, 7.7,
7.9, 7.11, 7.17 and 7.18) to the Amended and Restated Loan and Security
Agreement, as required.
3. Execution of an Intercreditor Agreement by and between CDF, TCFC and
TMRC, in form and substance satisfactory to CDF.
4. Execution of amendments to the existing TCFC loan documents waiving all
existing defaults and adding an additional $__________ facility similar
to the IRS Refund Loan.
