SECOND AMENDMENT TO SIXTH AMENDED AND RESTATED INVENTORY FINANCING AGREEMENT
Exhibit 10.1
Execution Version
SECOND AMENDMENT TO SIXTH AMENDED AND RESTATED
THIS SECOND AMENDMENT TO SIXTH AMENDED AND RESTATED INVENTORY FINANCING AGREEMENT (this “Amendment”) dated as of December 10, 2020, is made
to that certain SIXTH AMENDED AND RESTATED INVENTORY FINANCING AGREEMENT dated as of February 11, 2020, among XXXXX FARGO COMMERCIAL DISTRIBUTION FINANCE, LLC (“CDF”) as Agent (in such
capacity as agent, the “Agent”) for the several financial institutions that may from time to time become party thereto (collectively, “Lenders”
and individually, each a “Lender”) and Dealers that may from time to time become party thereto (collectively, “Dealers” and
individually, each a “Dealer”) (as amended, restated, supplemented or otherwise modified, the “IFA”). All capitalized terms not
otherwise defined in this Amendment shall have the respective meanings assigned to them in the IFA.
Recitals
A. Dealers have requested certain changes in reporting requirements. Such changes require the consent of all Lenders.
B. Agent and Lenders, whose consent Agent has received, are willing to amend the terms of the IFA, as set forth in and subject to the terms and conditions of this Amendment.
Agreement
NOW, THEREFORE, in consideration of the premises and of the mutual promises contained herein and in the IFA the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Amendments to IFA.
a. Section 9(f) of the IFA is hereby deleted in its entirety and replaced with the following:
“(f) Dealers shall deliver to Agent a monthly Inventory borrowing base certificate with supporting information required by Agent no later than the tenth day of each month (or, if such
tenth day is not a Business Day, the next succeeding Business Day) in form and substance acceptable to Agent or more frequently as may be requested by Agent from time to time.”
2. Ratification.
a. Each Dealer hereby ratifies and confirms the IFA, as amended hereby, and each other Loan Document executed by such Dealer in all respects. All terms and provisions of the Loan Documents not
specifically amended by this Amendment shall remain unchanged and in full force and effect.
b. Each Guarantor hereby (i) ratifies and confirms each of such Guarantor’s guaranty, including, without limitation, that certain (i) the Seventh Amended and Restated Collateralized Guaranty dated
February 11, 2020 executed by Holdings in favor of Agent, (ii) Fifth Amended and Restated Collateralized Guaranty dated February 11, 2020 executed by Parent in favor of Agent, (iii) Amended and Restated Collateralized Guaranty dated February 11, 2020
by PubCo in favor of Agent, (iv) Third Amended and Restated Guaranty dated June 14, 2018 executed by Xxxxxx Xxxxxx Xxxxxxxxx, Jr. in favor of Agent, and (v) Third Amended and Restated Guaranty dated June 14, 2018 executed by Xxxxxxx Xxxxxxxx in favor
of Agent (each such guaranty referred to in clauses (i) through (v) above, a “Guaranty,” and collectively, the “Guaranties”),
each other Loan Document executed by such party in all respects, (ii) agree such Guaranty and each other Loan Document executed by such party shall remain in full force and effect, (iii) agree that all of Dealers’ obligations under the IFA and other
Loan Documents are guaranteed by such Guaranty, and (iv) represent and covenant to and with Agent that such Guarantor has no defense, claim, right of recoupment, or right of offset against Agent under such Guaranty.
3. References. Each reference in the Loan Documents to the IFA shall be deemed to refer to the IFA as amended by this Amendment.
4. Conditions Precedent to Effectiveness of Amendment. This Amendment shall not be effective unless and until each of the following conditions precedent has been satisfied or waived
in the sole and absolute discretion of Agent:
a. Agent shall have received a copy of this Amendment, duly executed by Dealers and Guarantors.
5. Release. In consideration of the agreements of Agent and Lenders contained in this Amendment and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, each Guarantor and each Dealer (collectively, the “Releasors”), on behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably releases, remises and forever discharges Agent and each Lender, each of their successors and assigns, each of their respective affiliates, and their respective affiliates’ present and former shareholders, members,
subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Agent, Lenders and all such other Persons being hereinafter referred to collectively as the “Releasees,” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements,
promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually a “Claim”
and collectively, “Claims”) of every name and nature, either known or unknown, both at law and in equity, which Releasors, or any of them, or any of their successors, assigns or other legal
representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the date hereof,
including, without limitation, for or on the account of, or in relation to, or in any way in connection with the IFA, or any of the other Financing Documents or transactions thereunder or related thereto.
6. Governing Law. This Amendment shall be governed by the internal laws of the State of Illinois without reference to the conflicts of laws principles thereof.
7. Assignment. This Amendment shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their participants, successors and assigns.
8. Counterparts. This Amendment may be executed in any number of counterparts, each of which counterparts, once they are executed and delivered, shall be deemed to be an original and
all of which counterparts, taken together, shall constitute but one and the same agreement. This Amendment may be executed by any party to this Amendment by original signature or facsimile signature.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the date first above written.
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ONE WATER MARINE HOLDINGS, LLC, and
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ONE WATER ASSETS & OPERATIONS, LLC
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By:
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/s/ Xxxxxx Xxxxxx Xxxxxxxxx, Jr.
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Name:
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Xxxxxx Xxxxxx Xxxxxxxxx, Jr.
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Title:
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Chief Executive Officer
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LEGENDARY ASSETS & OPERATIONS, LLC,
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XXXXXXXXX ASSETS & OPERATIONS, LLC,
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SOUTH FLORIDA ASSETS & OPERATIONS, LLC,
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MIDWEST ASSETS & OPERATIONS, LLC,
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SOUTH SHORE LAKE ERIE ASSETS & OPERATIONS, LLC, and
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BOSUN’S ASSETS & OPERATIONS, LLC
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By:
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/s/ Xxxxxx Xxxxxx Xxxxxxxxx, Jr.
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Name:
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Xxxxxx Xxxxxx Xxxxxxxxx, Jr.
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Title:
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Manager
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/s/ Xxxxxx Xxxxxx Xxxxxxxxx, Jr.
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/s/ Xxxxxxx Xxxxxxxx |
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Xxxxxx Xxxxxx Xxxxxxxxx, Jr., as Guarantor
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Xxxxxxx Xxxxxxxx, as Guarantor
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[Signature Page to the 2nd Amendment to 6th A&R IFA]
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XXXXX FARGO COMMERCIAL DISTRIBUTION
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FINANCE, LLC, as Agent and Lender
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By:
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/s/ Xxxxxx X. Xxxxxxx |
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Name:
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Xxxxxx X. Xxxxxxx |
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Title:
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Vice President Credit |
[Signature Page to the 2nd Amendment to 6th A&R IFA]
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