1
Exhibit 10.1
THIRD AMENDMENT TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(the "Amendment") is made as of this 21st day of August, 2000 by and between
TITAN MOTORCYCLE CO. OF AMERICA, a Nevada corporation ("Borrower"), and XXXXX
FARGO CREDIT, INC., a Minnesota corporation ("Lender").
WHEREAS, Borrower is currently indebted to Lender pursuant to the terms
and conditions of that certain Amended and Restated Loan and Security Agreement
dated as of April 10, 2000 between Borrower and Lender, as amended by First
Amendment to Amended and Restated Loan and Security Agreement dated as of July
10, 2000 and Second Amendment to Amended and Restated Loan and Security
Agreement dated as of August 14, 2000 (the "Loan Agreement"); and
WHEREAS, Borrower has advised Lender that it expects to have incurred a
$271,000 Net Loss for the June 2000 fiscal month, a $750,000 Net Loss for the
July 2000 fiscal month and a $500,000 Net Loss for the August 2000 fiscal month;
WHEREAS, Borrower has advised Lender that it intends to reserve from, or
make adjustments to, its June 2000 fiscal month financial statements against
Inventory, affiliate accounts receivable and affiliate motorcycle returns under
the Transamerica Forbearance Agreement, in an amount not to exceed $1,600,000 in
the aggregate; and
WHEREAS, Borrower has requested an amendment to the financial covenants in
the Loan Agreement consistent with its expected Net Losses, reserves and
adjustments, and Lender is willing to grant such amendment on the terms and
conditions contained herein;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower and Lender,
intending to be legally bound, agree as follows:
1. Definitions. Except as otherwise defined herein, all capitalized terms
used herein shall have the meanings ascribed thereto in the Loan Agreement.
2. Recitals. The recitals set forth above are true and accurate in every
respect.
3. No Offsets. Borrower acknowledges with respect to the amounts owing to
Lender that, as of the date of execution of this Amendment, Borrower has no
offset, defense or counterclaim with respect thereto, no claim or defense in the
abatement or reduction thereof, or any other claim against Lender or with
respect to any document forming part of the transaction in respect of which the
Prior Loan Agreement was made or forming part of any other transaction under
which Borrower is indebted to Lender. Borrower acknowledges that all interest
imposed under the Prior Loan Agreement and Loan Documents through the date of
execution hereof, and
2
all fees and other charges that have been collected from or known by Borrower to
have been imposed upon Borrower with respect to the Prior Loan Agreement were
and are agreed to, and were properly computed and collected, and that Lender has
fully performed all obligations that it may have had or now has to Borrower, and
Lender has no obligation to make any additional loan or extension of credit to
or for the benefit of Borrower, except as provided in the Loan Agreement.
4. Release of Claims. In consideration of Lender's agreements contained
herein, Borrower and its successors and assigns each hereby fully release,
remise and forever discharge Lender and Bank and all of their past and present
officers, directors, agents, employees, servants, partners, shareholders,
attorneys and managers, and all of their respective heirs, personal
representatives, predecessors, successors and assigns, for, from and against any
and all claims, demands, causes of action, controversies, offsets, obligations,
losses, damages, and liabilities of every kind and character whatsoever,
including without limitation any action, omission, misrepresentation or other
basis of liability founded either in tort or contract and the duties arising
thereunder that Borrower, or any of its successors or assigns has had in the
past, or now has, or which may hereafter accrue, whether known or unknown,
whether currently existing or hereafter asserted, relating in any manner to, or
arising from or in connection with, the indebtedness evidenced by the Prior Loan
Agreement, this Agreement or the Loan Documents, any negotiations, loan
administration, exercise of rights and remedies, payment, offset with respect
to, or other matter relating to such indebtedness, any collateral securing
payment and performance of such indebtedness, or any matter preliminary to the
execution and delivery by Borrower and Lender of this Agreement, or any
statement, action, omission or conduct of Lender or Bank or any of their
officers, directors, agents, employees, servants, partners, shareholders,
attorneys and managers relating in any manner to such indebtedness, collateral
or this Agreement; provided, however, that the foregoing release and discharge
shall not apply to the obligations of Lender expressly set forth in this
Amendment or first arising after the date of this Amendment. Borrower
acknowledges and agrees that Lender is not and shall not be obligated in any way
to continue or undertake any loan, financing or other credit arrangement with
Borrower, including without limitation any renewal of the indebtedness evidenced
by the Loan Agreement, beyond the Maturity Date.
5. Representations and Warranties of Borrower. To induce Lender to enter
into this Amendment and the arrangement contemplated by this Amendment, Borrower
represents and warrants to Lender as follows:
(a) Borrower has all requisite corporate power and corporate
authority to execute this Amendment and to perform all of its obligations
hereunder, and this Amendment has been duly executed and delivered by Borrower
and constitutes the legal, valid and binding obligations of Borrower,
enforceable against Borrower in accordance with its terms.
(b) The execution, delivery and performance by Borrower of this
Amendment have been duly authorized by all necessary corporate action and do not
(i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or any other Person, including, without limitation, the Subordinated
Creditors, that, if not obtained would have a material adverse effect
-2-
3
on the Borrower's financial condition, properties or operations; (ii) violate
any provision of any law, rule or regulation or of any order, writ, injunction
or decree presently in effect, having applicability to Borrower, or the articles
of incorporation or by-laws of Borrower; or (iii) result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other material agreement, lease or instrument to which Borrower is a party or by
which it or its properties may be bound or affected.
(c) Except as disclosed in the Borrower's May 31, 2000 financial
statements delivered to Lender or otherwise disclosed in writing to Lender, all
of the respective representations and warranties made by Borrower in the Loan
Agreement and Loan Documents remain true, complete and correct in all material
respects as of the date hereof, including, without limitation, the
representations and warranties in Article 5 of the Loan Agreement, except to the
extent of any changes to such representations and warranties previously
disclosed in writing to Lender.
(d) After the execution of this Amendment, Borrower will be in
compliance in all material respects with all of the covenants of Borrower under
the Loan Agreement and other Loan Documents as of the date of execution of this
Amendment.
(e) There are no oral agreements, understandings or course of
conduct that would modify, amend, rearrange, vary, diminish or impair the Loan
Agreement or other Loan Documents or the Obligation of Borrower evidenced
thereby or to perform fully the Obligations of Borrower in strict accordance
with the Loan Agreement and other Loan Documents, or which would permit Borrower
to void or avoid its obligations in whole or in part.
No representation or warranty made by Borrower and contained herein or in the
Loan Agreement or other Loan Documents, and no certificate, information or
report furnished or to be furnished by Borrower in connection with the Loan
Agreement or any of the other Loan Documents or any of the transactions
contemplated hereby or thereby, contains or will contain a misstatement of
material fact, or omits or will omit to state a material fact required to be
stated in order to make the statements contained herein or therein not
misleading in the light of the circumstances under which such statements were
made.
6. Amendment Fee. In consideration of Lender's agreements contained
herein, Borrower hereby agrees to pay Lender an amendment fee of $5,000 that is
deemed fully earned and non-refundable upon execution of this Amendment.
Borrower hereby agrees that the Lender may, but shall not be obligated to,
without further authorization by the Borrower, pay the amendment fee directly as
an advance under the Loan Agreement on the effective date of this Amendment.
7. Minimum Net Income From Ordinary Operations. Section 6.13 of the Loan
Agreement is hereby deleted in its entirety and the following inserted therefor:
Section 6.13 MINIMUM NET INCOME FROM ORDINARY OPERATIONS.
Borrower's monthly Net Loss for the May 2000 fiscal month shall not
be more than $31,000; Borrower's monthly
-3-
4
Net Loss for the June 2000 fiscal month shall not be more than
$300,000; provided, however, for Borrower's June 2000 fiscal months
only, Net Income will be determined prior to reserving from, or
making adjustments to, Borrower's Inventory, Borrower's affiliate
accounts receivable and Borrower's affiliate motorcycle returns
under the Transamerica Forbearance Agreement, which reserves and
adjustments shall not exceed $1,600,000 in the aggregate; Borrower's
monthly Net Loss for the July 2000 fiscal month shall not be more
than $750,000; Borrower's monthly Net Loss for the August 2000
fiscal month shall not be more than $500,000; and Borrower's monthly
Net Income for each fiscal month thereafter shall not be less than
$1.00
8. Minimum Book Net Worth. Section 6.14 of the Loan Agreement is hereby
deleted in its entirety and the following inserted therefor:
Section 6.14 MINIMUM BOOK NET WORTH. Borrower's cumulative
Book Net Worth as of the end of Borrower's 2000 second fiscal
quarter, i.e., July 1, 2000, shall not be less than $3,700,000;
Borrower's cumulative Book Net Worth as of the end of Borrower's
July 2000 fiscal month shall not be less than $2,950,000; Borrower's
cumulative Book Net Worth as of the end of Borrower's August 2000
fiscal month shall not be less than $2,450,000; and as of the end of
each fiscal month thereafter, Borrower's Book Net Worth must
increase by at least $1.00 from the prior month end Book Net Worth;
provided, however, Borrower's Book Net Worth will be determined
without taking into account the reserves from, and adjustments to,
Borrower's Inventory, Borrower's affiliate accounts receivable and
Borrower's affiliate motorcycle returns under the Transamerica
Forbearance Agreement to be made in the June 2000 fiscal month,
which reserves and adjustments shall not exceed $1,600,000 in the
aggregate.
9. Events of Default. Section 8.1 of the Loan Agreement is hereby amended
to add the following:
(x) Lender has not received signed copies of the Consent of
Subordinated Creditors attached to the Third Amendment to Amended
and Restated Loan and Security Agreement dated as of August 21, 2000
(the "Third Amendment") from Advantage Fund II Ltd., Xxxx Investment
Group Limited, RCP Inc., Esquire Trade & Finance Inc. and Xxxxxxx
Trust Reg. on or before August 28, 2000, or Lender has not received
a signed copy of the Consent of Subordinated Creditors attached to
the
-4-
5
Third Amendment from Oxford International, Inc. on or before
September 4, 2000.
10. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall constitute one and
the same instrument.
11. Voluntary Agreement. Borrower represents and warrants to Lender that
(i) it has been represented by legal counsel of its choice in regard to the
transaction provided for by this Amendment; (ii) it is fully aware and clearly
understands all of the terms and provisions contained in this Amendment,
including, without limitation, the release of claims in Section 4 above; (iii)
it has voluntarily, with full knowledge and without coercion or duress of any
kind, entered into this Amendment and the documents executed in connection with
this Amendment; (iv) it is not relying on any representations, either written or
oral, express or implied, made to it by Lender other than as set forth in the
Loan Agreement and other Loan Documents and this Amendment; and (v) the
consideration received by Borrower to enter into this Amendment and the
arrangement contemplated by this Amendment has been actual and adequate.
12. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Arizona, without regard to its conflict
of laws rules.
13. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
combined shall constitute one and the same instrument.
14. Successors and Assigns. This Amendment shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
permitted assigns.
15. Transaction Expenses. Borrower agrees to pay any and all reasonable
costs and expenses incurred by Lender in connection with this Amendment,
including, without limitation, reasonable attorneys' fees and disbursements of
counsel to the Lender for the services performed by such counsel in connection
with the preparation of this Amendment and the documents and instruments
incidental hereto. Borrower hereby agrees that the Lender may, at any time or
from time to time in its sole discretion and without further authorization by
the Borrower, pay such costs and expenses directly as an advance under the Loan
Agreement.
16. Amendment. Except as otherwise amended hereby, all of the terms and
provisions of the Loan Agreement shall remain in full force and effect and shall
apply to each Advance thereunder.
[THE REMAINDER OF THIS PAGE
IS LEFT INTENTIONALLY BLANK]
-5-
6
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
BORROWER:
TITAN MOTORCYCLE CO. OF AMERICA, a Nevada
corporation
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
LENDER:
XXXXX FARGO CREDIT, INC., a Minnesota
corporation
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
-6-
7
CONSENT OF GUARANTORS
The undersigned, the Guarantors under the Guaranties, hereby (a)
acknowledge receipt of a copy of the attached Third Amendment to Amended and
Restated Loan and Security Agreement, (b) consent to the terms and conditions
contained therein, and (c) agree that the covenants, agreements, duties and
obligations of the undersigned, as Guarantors under your respective Guaranties,
shall remain in full force and effect with respect to the Obligations evidenced
by the Loan Agreement, as amended by the attached Third Amendment to Amended and
Restated Loan and Security Agreement.
Dated as of this ____ day of August, 2000.
----------------------------------
XXXXXXX XXXXX
----------------------------------
XXXXXXX XXXXX
----------------------------------
XXXXXXX XXXXX
8
CONSENT OF SUBORDINATED CREDITORS
The undersigned, the Subordinated Creditors under the Subordination
Agreements, hereby (a) acknowledge receipt of a copy of the attached Third
Amendment to Amended and Restated Loan and Security Agreement, (b) consent to
the terms and conditions contained therein, and (c) agree that the covenants,
agreements, duties and obligations of the undersigned, as Subordinated Creditor
under the respective Subordination Agreements, shall remain in full force and
effect with respect to the Obligations evidenced by the Loan Agreement, as
amended by the attached Third Amendment to Amended and Restated Loan and
Security Agreement.
Dated as of this ____ day of August, 2000.
ADVANTAGE FUND II LTD., a British
Virgin Islands corporation
By: Genesee International Inc.,
as General Manager
By:
----------------------
Name:
----------------------
Title:
----------------------
XXXX INVESTMENT GROUP LIMITED, a
Delaware corporation
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
OXFORD INTERNATIONAL, INC.
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
----------------------------------
XXXXXXX XXXXX
XXXXXXX TRUST REG., a Liechtenstein
trust
By:
---------------------------
Name:
---------------------------
9
Title:
---------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
ESQUIRE TRADE & FINANCE INC., a
British Virgin Islands corporation
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
RCP INC., a California corporation
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
-2-
