EXHIBIT 99.3
AMENDMENT NO. 2
TO
LOAN AND SECURITY AGREEMENT AND RELATED DOCUMENTS
THIS AMENDMENT NO. 2 is made and entered into as of November 11, 2002
(the "Amendment") to that certain loan and security agreement dated March 12,
2002 as amended by Amendment No. 1 dated October 9, 2002 (the "Loan Agreement")
by and among HOLIDAY RV SUPERSTORES, INC., ("Holiday RV"), a Delaware
corporation, (the "Borrower"), the Subsidiaries of Borrower as identified and
defined in Loan Agreement XXXX FINANCE CO, LLC, a Delaware limited liability
company (the "XXXX"), THE XXXXXXX XXXXX LIVING TRUST u.t.a. dated September 15,
1997 (the "Trust"), AGI HOLDING CORP., a Delaware corporation ("Holding") and
XXXXXXX XXXXX, a Connecticut resident ("Xxxxx"),
WITNESSETH:
WHEREAS, Borrower proposes to enter into the Fourth Amendment to
Amended and Restated Loan and Security Agreement and Forbearance Agreement
Extension (the "Extension Agreement") among Banc of America Specialty Finance,
Inc.("Specialty Finance"), Bank of America, N.A. ("Bank of America" and
collectively with Specialty Finance called the "Senior Lenders"), Borrower and
Borrowers' subsidiaries;
WHEREAS, in connection with the Extension Agreement, Borrower is
required to repay $4.3 million of the outstanding indebtedness owing to the
Senior Lenders under the Amended and Restated Loan and Security Agreement dated
March 8, 2001 as amended (the "Senior Loan Agreement") among the Senior Lenders,
Borrower and Borrower's subsidiaries;
WHEREAS, Holding has agreed to loan Borrower $3.3 million under the
terms of this Amendment and XXXX will loan Borrower an additional $1.0 million
under the terms of this Amendment so that Borrower will have the funds to repay
the Senior Lenders by $4.3 million as required by the Extension Agreement which
loan will be converted to Common Stock in accordance with and subject to the
terms of the term sheet dated October 25, 2002 (the "Term Sheet") among
Borrower, XXXX and the Trust be converted into Borrower's Common Stock or repaid
as provided herein;
WHEREAS, the Extension Agreement requires that Borrower repay the
indebtedness under the Senior Loan Agreement by December 13, 2002 or have Xxxxx
or his affiliates purchase at par amount the outstanding balance under the
Senior Loan Agreement by December 13, 2002;
WHEREAS, in connection with the foregoing requirements for the
repayment or take-out of the indebtedness owed to the Senior Lenders, Xxxxx has
agreed to provide the Senior Lenders the take-out letter agreement in the form
of Exhibit 1 attached hereto (the "Commitment Letter") pursuant to the terms of
this Amendment;
WHEREAS, in connection with the refinancing of the inventory floor plan
financing with another lender, Borrower may be required to provide certain
credit support in the form of one or more letters of credit; and
WHEREAS, Borrower has requested that XXXX, the Trust or Holding provide
such letters of credit to support a new inventory floor plan credit facility and
they are willing to provide such credit support subject to their approval of the
amount, duration and other terms of such letters of credit and such new
inventory floor plan credit facility,
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Except as otherwise defined in this Amendment, all
terms defined in the Loan Agreement are used herein as therein defined.
2. LOAN BY HOLDING. Upon satisfaction of the conditions set forth in
Section 5 below and on the basis of the collateral securing repayment and of the
guaranties of the Holding Note granted and made pursuant to this Amendment,
Holding will loan Borrower the sum of $3,300,000 pursuant to the terms of the
promissory note attached hereto as Exhibit 2 (the "Holding Note").
3. COMMITMENT LETTER FROM XXXXX. Upon satisfaction of the conditions
set forth in Section 5 below, Xxxxx will execute and deliver the Commitment
Letter to the Senior Lenders. In the event Xxxxx or his affiliate (the
"Purchaser") purchases the indebtedness owed to the Senior Lenders, (a) Borrower
and the Subsidiaries covenant and agree to execute and deliver to Holding and
the Purchaser the Fifth Amendment to Amended and Restated Loan and Security
Agreement in the form of Exhibit 3 attached hereto (the "Fifth Amendment") when
and as such purchase is effected, and (b) Holding and the Purchaser shall
execute and deliver the Fifth Amendment to Borrower and the Subsidiaries so that
the terms of the Senior Loan Agreement (as defined in the Commitment Letter) are
modified to provide that (i) the maturity date of the principal indebtedness
under the Senior Loan Agreement shall be November 15, 2004, subject to
acceleration as therein provided, (ii) the Holding Note shall be considered a
borrowing under the Senior Loan Agreement, and (iii) there will be no further
advances under the Senior Loan Agreement.
4. ADDITIONAL LOAN AND INTEREST ON ADVANCES. Upon satisfaction of the
conditions set forth in Section 5 below, XXXX will make an additional loan to
Borrower in the amount of $1,000,000, which loan will be converted into Common
Stock on the terms and conditions of the Term Sheet or repaid under the terms of
this Amendment. Borrower acknowledges that the following loans have been made
heretofore by XXXX or the Trust on behalf of XXXX:
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AMOUNT OF LOAN DATE OF LOAN
-------------- ------------
$500,000 September 13, 2002
$150,000 September 20, 2002
$475,000 September 30, 2002
$300,000 October 9, 2002
$305,000 October 15, 2002
$450,000 October 30, 2002
$250,000 November 5, 2002
Borrower agrees to pay interest on the foregoing loans, the $1,000,000
additional loan contemplated by the first sentence in this Section 4 and any
other advances hereafter made by XXXX or the Trust at the annual rate of 12.75%,
compounded monthly from the date of the respective loan, which interest shall be
paid in shares of Common Stock at $.62 per share in the event the transactions
contemplated by the Term Sheet are consummate and if such transactions are not
consummated by December 15, 2002, such loans together with interest thereon
shall be due upon demand.
5. CONDITIONS PRECEDENT. The obligations of Holding to make the loan
pursuant to Section 2 above and the obligations of Xxxxx to execute and deliver
the Commitment Letter to the Senior Lenders is subject to the following
conditions that:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Borrower and its Subsidiaries as modified by this
Amendment shall be true and correct, and the Chief Executive Officer
and Chief Financial Officer of Borrower shall have delivered a
certificate to Holding, Xxxxx, XXXX and the Trust to that effect on the
date that the transactions contemplated by Sections 2 and 3 are
consummated (the "Closing Date").
(b) EXTENSION AGREEMENT. Borrower, its Subsidiaries and the
Senior Lenders shall have executed and delivered the Extension
Agreement.
(c) LEGAL OPINION. Holding, Xxxxx, XXXX and the Trust shall
have received the opinion of Akerman Senterfitt & Xxxxxx, dated as of
the Closing Date, in form, scope and substance reasonably satisfactory
to Purchaser and in substantially the form of Exhibit 4.
6. AMENDMENT TO TERM SHEET. XXXX and the Trust hereby waive the
condition to the transactions contemplated by the Term Sheet that Borrower shall
have closed on a new floor plan financing with a new lender in the event the
transactions contemplated by the Commitment Letter are closed. In addition, the
parties agree that the warrants to purchase Common Stock held by XXXX and the
Trust do not need to be exercised or cancelled at the time the transactions
contemplated by the Term Sheet are closed and that such warrants shall continue
in full force and effect in accordance with their terms if they are not
exercised upon consummation of the transactions contemplated by the Term Sheet.
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7. REPRESENTATIONS AND WARRANTIES. Borrower and the Subsidiaries
represent and warrant to XXXX, the Trust, Holding and Xxxxx that as of the date
hereof and as of the Closing Date that the representations and warranties
contained in Section 5 of the Loan Agreement are true and correct except as
modified in Exhibit 5 attached hereto and except that the representations and
warranties in Section 5.05 of the Loan Agreement shall also apply to all Form
10-K, Form 10-Q and Form 8-K Reports filed by Borrower subsequent to the date of
the Loan Agreement. For the purposes of the representations and warranties in
Section 5 of the Loan Agreement, the term "Loan Documents" shall include the
Loan Agreement as amended by Amendment No. 1 dated and this Amendment and the
Holding Note.
8. LETTER OF CREDIT SUPPORT FOR NEW INVENTORY FLOOR PLAN CREDIT
FACILITY. XXXX, the Trust for itself or on behalf of XXXX, or Holding (the "L/C
Issuer") will provide one or more letters of credit (each a "Letter of Credit"
and collectively the "Letters of Credit") to secure certain obligations of
Borrower or its Subsidiaries under a new inventory floor plan credit facility;
provided that (a) the terms of such new inventory floor plan credit facility are
acceptable to L/C Issuer, in their sole discretion, and (b) the terms of each
Letter of Credit, including amount, duration, beneficiary and draft conditions,
are acceptable to L/C Issuer in its sole discretion. In consideration of the
issuance of any Letters of Credit, Borrower hereby agrees (collectively the
"Borrower Letter of Credit Obligations"):
(a) to pay or reimburse the L/C Issuer for all costs to
procure each Letter of Credit, including letter of credit fees or
commissions and legal expenses, and any renewal fees or expenses
incurred in connection with the renewal, amendment or extension of any
Letter of Credit, which payment or reimbursements shall be due upon
demand by the L/C Issuer;
(b) to reimburse the L/C Issuer for the amount of any draws or
drafts on the Letters of Credit upon demand of the L/C Issuer, and
(c) to indemnify, defend and hold harmless XXXX, the Trust and
Holding and their respective directors, officers, shareholders,
managers, governors, members, trustees and beneficiaries from and
against any claims, demands or expenses in connection with any dispute,
proceeding or other claims relating to the Letters of Credit.
Borrower and the Subsidiaries hereby confirm and agree that the Borrower Letter
of Credit Obligations are secured by the grant of the security interest under
Section 4.01 of the Loan Agreement and constitute "Obligations" under and as
defined in the Guaranties, the Guarantor Security Agreements and the Mortgages
from and by the Subsidiaries.
9. WARRANTS. In consideration of the issuance of each Letter of Credit,
Borrower will, upon issuance of the respective Letter of Credit, execute and
deliver to the L/C Issuer a warrant to purchase shares of Common Stock (each a
"Letter of Credit Warrant"). The Letter of Credit Warrant shall be in
substantially the same form and on the same terms as the Warrants as defined in
and attached as Exhibit 8 to the Loan Agreement except that (a) the term of the
Letter of Credit Warrant shall be for five years from the date of issuance, (b)
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the exercise price shall be the closing price of the Common Stock on November 1,
2002, the date on which the L/C Issuer agreed to provide the Letter of Credits
contemplated hereby, (c) the number of shares subject to the Letter of Credit
Warrant shall equal to the face amount of the Letter of Credit divided by the
exercise price per share rounded to the nearest whole number, and (d) a
proportionate anti-dilution provision will be included in lieu of the full
ratchet anti-dilution provision in the Warrant. If any Letter of Credit is
renewed or extended, at the option of the L/C Issuer, Borrower shall execute and
deliver to the L/C Issuer a new Letter of Credit Warrant on the same terms as
provided in the immediately preceding sentence except that the exercise price
shall be the closing price of the Common Stock on the date that the Letter of
Credit is renewed or extended. In addition, when Borrower executes and delivers
a Letter of Credit Warrant pursuant to this paragraph, Borrower shall also
execute and deliver a registration rights agreement in substantially the same
form as the Registration Rights Agreement as defined in and attached as Exhibit
6 to the Loan Agreement that covers the shares of Common Stock issuable upon
exercise of the Letter of Credit Warrant.
11. DEFINITION OF LENDER. For the purposes of the Loan Agreement and
the Guaranty Agreements, Guarantor Security Agreements and the Mortgages by the
Guarantors, the term "Lender" shall mean XXXX, the Trust and Holding
individually or jointly. As a result of the amendment to the definition of
Lender, all amounts previously or hereafter loaned or advanced to or for the
benefit of the Borrower by either XXXX, the Trust or Holding as well as all
obligations of Borrower and the Guarantors under the Loan Agreement or this
Amendment, including the Holding Note and the Borrower Letter of Credit
Obligations, shall have the benefits and protections, including security, of the
Loan Agreement, the Guaranty Agreements by the Guarantors, the Guaranty Security
Agreements and the Mortgages.
12. CONTINUING FULL FORCE AND EFFECT. As amended hereby, the Loan
Agreement, the Guaranty Agreements by the Guarantors, the Guaranty Security
Agreements and the Mortgages shall continue in full force and effect.
[Signatures begin on the next page. The balance of this page is
intentionally blank.]
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IN WITNESS WHEREOF, this Amendment is executed as of the day and year
first set forth above.
BORROWER:
HOLIDAY RV SUPERSTORES, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
XXXX:
XXXX FINANCE CO, LLC
By /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Chief Financial Officer and Treasurer
THE TRUST:
THE XXXXXXX XXXXX LIVING TRUST
u. t. a. dated September 15, 1997
By /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Trustee
HOLDING:
AGI HOLDING CORP.
By /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Vice President
XXXXX:
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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GUARANTORS:
HOLIDAY RV SUPERSTORES OF SOUTH CAROLINA, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
HOLIDAY RV SUPERSTORES WEST, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
HOLIDAY RV SUPERSTORES OF NEW MEXICO, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
COUNTY LINE SELECT CARS, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
HOLIDAY RV RENTAL/LEASING, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
LITTLE VALLEY AUTO & RV SALES, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
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HALL ENTERPRISES, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
HOLIDAY RV ASSURANCE SERVICES, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
RECREATION USA INSURANCE CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
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