Exhibit 99.1
FIFTH AMENDMENT TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
This is a Fifth Amendment to Amended and Restated Loan and Security
Agreement and (this "Agreement") made this 16th day of December, 2002, among
HOLIDAY RV SUPERSTORES, INC., ("Holiday RV") a Delaware corporation, HOLIDAY RV
SUPERSTORES OF SOUTH CAROLINA, INC., a South Carolina corporation, HOLIDAY RV
SUPERSTORES WEST, INC., a California corporation, COUNTY LINE SELECT CARS,
INC., a Florida corporation ("County Line"), HALL ENTERPRISES, INC., a Kentucky
corporation, and HOLIDAY RV SUPERSTORES OF NEW MEXICO, INC., a New Mexico
corporation (singularly, a "Borrower" and collectively, "Borrowers"); HOLIDAY
RV RENTAL/LEASING, INC., a Florida corporation, LITTLE VALLEY AUTO & RV SALES,
INC., a West Virginia corporation, HOLIDAY RV ASSURANCE SERVICE, INC., F/K/A
HOLIDAY RV ASSURANCE CORPORATION, a Florida corporation, and RECREATION USA
INSURANCE CORPORATION, a Florida corporation, HOLIDAY RV'S INSURANCE AGENCY,
INC., an Arizona corporation (singularly, a "Guarantor" and collectively
"Guarantors"); and XXXX FINANCE CO, LLC., a Delaware limited liability company
("Lender").
RECITALS
WHEREAS, prior to March 8, 2001, Borrowers, Guarantors, and Banc of
America Specialty Finance, Inc., a North Carolina corporation ("Specialty") and
Bank of America, N.A., a national banking association (the "Bank" and
collectively with Specialty called the "Prior Lender") were parties to certain
credit facilities.
WHEREAS, Borrowers requested an amended and restated credit facility
from the Prior Lender, and on or about March 8, 2001, Borrowers and Guarantors
entered into that certain Amended and Restated Loan and Security Agreement.
WHEREAS, on or about June 18, 2001, the Prior Lender, Borrowers and
Guarantors entered into a First Amendment to the Amended and Restated Loan and
Security Agreement.
WHEREAS, on or about January 10, 2002, the Prior Lender and Borrowers
and Guarantors entered into that certain Second Amendment to Amended and
Restated Loan and Security Agreement and Forbearance Agreement.
WHEREAS, on or about March 15, 2002, the Prior Lender and Borrowers
and Guarantors entered into that certain Third Amendment to Amended and
Restated Loan and Security Agreement and Forbearance Agreement.
WHEREAS, on or about November 11, 2002, the Prior Lender and Borrowers
and Guarantors entered into that certain Fourth Amendment to Amended and
Restated Loan and Security Agreement and Forbearance Agreement Extension (the
"Fourth Amendment").
WHEREAS, all capitalized terms used herein and not otherwise defined
shall have the
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meanings given in the Amended and Restated Loan and Security Agreement, First
Amendment to the Amended and Restated Loan and Security Agreement, the Second
Amendment to the Amended and Restated Loan and Security Agreement and
Forbearance Agreement, the Third Amendment to Amended and Restated Loan and
Security Agreement and Forbearance Agreement and the Fourth Amendment
(collectively, the "Amended Loan Agreement").
WHEREAS, the Lender have purchased all rights title and interest of
the Prior Lender under the Amended Loan Agreement and the obligations of
Borrowers thereunder.
WHEREAS, Lender has valid, perfected liens and security interests in
the Collateral.
WHEREAS, the term "Loan Documents" shall include this Agreement, the
Fourth Amendment, and the Third Amendment to Amended and Restated Loan and
Security Agreement and Forbearance Agreement, and Borrowers and Guarantors
reaffirm the Recitals contained therein.
WHEREAS, as of the date hereof, the following principal, non-default
interest, fees and other amounts were due and owing to Lender under the Loan
Documents (the "Current Outstanding Amounts"):
Principal $7,800,000.00
Interest at non-default rate $ 0
Other fees $ 0
Attorneys fees and other costs $ 0
WHEREAS, the above-stated amounts of principal and interest plus all
other fees due under the Loan Documents, including attorneys' fees and costs,
and the obligations of Borrower under the promissory note dated November 11,
2002 (the "Holding Note") in the original principal amount of $3,300,000
payable to Holding or its assigns shall be collectively called the
"Liabilities." The Liabilities continue to be and shall be secured by the
Collateral.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Borrowers and Guarantors hereby agree with Lender as follows:
AGREEMENT
ARTICLE 1 - GENERAL PROVISIONS
1.1 Recitals.
The above Recitals are incorporated herein as if fully set out below.
1.2 No Novation.
This Agreement does not novate or supercede the Loan Documents and
only supplements them, and Borrowers and Guarantors reaffirm and ratify the
terms, conditions and covenants of
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the Loan Documents, including but not limited to the Amended Loan Agreement,
and the liens and security interests granted therein and agree that, except as
expressly otherwise provided herein, their terms, conditions, and covenants
shall remain in full force and effect.
1.3 Acknowledgements.
(a) Borrowers and Guarantors acknowledge that Purchaser
has acquired all right, title and interest of the Prior Lender in the
Amended Loan Agreement and that the Currently Outstanding Amounts set
forth above are due and owing under the Amended Loan Agreement.
(b) Borrowers and Guarantors acknowledge and agree that,
by virtue of this Agreement, Holding shall be a Lender under the
Amended Loan Agreement, the Guaranties and the other Loan Papers, and
the obligations of Borrower under the Holding Note shall constitute
one of the Liabilities secured by the Collateral.
(c) All amounts outstanding under the Loan Documents
(including the Holding Note by virtue of this Agreement) and this
Agreement shall be and are secured by a first lien and security
interest in all of the property pledged to Lender by the Borrowers and
Guarantors, including but not limited to the Collateral, Deposit
Accounts, Inventory, Equipment, Fixtures, Accounts, Chattel Paper, and
the replacements, substitutions, additions and proceeds thereof.
1.4 Affirmation, Release and Waiver.
Borrowers and Guarantors affirm, acknowledge and agree that the
obligations of Borrowers and Guarantors under the Loan Documents are the valid
and binding obligations of each such Borrower and Guarantor. Further, each of
Borrowers and Guarantors represents and warrants that, as of the date hereof,
there is no claim, counterclaim, setoff, or defense to the Loan Documents or
Lender's exercise of any right or remedy available to Lender under any Loan
Documents or at law or in equity. Borrowers and Guarantors waive and
affirmatively agree not to allege or otherwise pursue any and every defense,
affirmative defense, counterclaim, cause of action, setoff or other right that
they have or may have as of the date hereof, whether known or unknown, legal or
equitable, including, without limitation, any contest of (a) any defaults; (b)
any provisions of any Loan Documents; (c) the rights of Lender in all of the
Collateral and all products and proceeds thereof; (d) the security interest of
Lender in any property, whether real or personal, tangible or intangible, or
any right or other interest, now or hereafter arising in connection with the
Collateral; or (e) the conduct of Lender in administering any financing
arrangement by and among Borrowers, Guarantors and Lender, or any of them.
1.5 Corporate Authorization.
Each of Borrowers and Guarantors represents and warrants that it has
taken all corporate action, including any approval of its respective
shareholders and directors, necessary to its execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and the
performance of their respective obligations hereunder, and each of them has
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entered into this Agreement fully understanding its terms and conditions and
voluntarily and without duress and with the advice of counsel.
ARTICLE II - AMENDMENTS TO LOAN DOCUMENTS
2.1 Definitions.
From and after the date hereof, the terms "Commitment" and
"Termination Date" in Section 1.01 of the Amended Loan Agreement is amended in
their entirety as follows:
(a) The term "Commitment" shall mean the principal
amount of the Liabilities outstanding on the date the Fifth Amendment
to the Amended Loan Agreement was executed and giving effect to such
amendment, to wit $7,800,000.00.
(b) The term "Termination Date" shall mean November 15,
2004.
2.2 Advances.
From and after the date hereof, Section 2.02 of the Amended Loan
Agreement is amended in its entirety as follows:
2.02. MAKING ADVANCES. From and after the date of this
Agreement, there shall be no further advances. Borrowers and
Guarantors acknowledge and agree that the amount of the Advances on
the date of this Agreement is the amount of the Commitment as defined
above.
2.3 Interest Rate.
From and after the date hereof, the first and second sentences in
Section 2.04 of the Amended Loan Agreement is amended in their entirety as
follows:
All Advances shall bear interest at a per annum rate equal to twelve
and three-quarters percent (12.75%).
From and after the date hereof, the third and fourth sentences in
Section 2.04 of the Amended Loan Agreement is amended in their entirety as
follows:
During the existence of an Event of Default prior to maturity of the
obligations to Lender or acceleration thereof, at the option of
Lender, amounts owing for Advances shall bear interest at a per annum
rate equal to twelve and three-quarters percent (12.75%), due and
payable on demand.
2.4 Deletion of Certain Provisions.
From and after the date hereof, Sections 2.03(d), 2.03(e), 3.03 and
4.05 of the Amended Loan Agreement are hereby deleted.
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2.5 Limitations on Debt and Leases. The second paragraph of
Section 6.02 of the Amended Loan Agreement is hereby deleted.
2.6 Waiver of $150,000 Fee. Lender hereby waives the fee in the
amount of $150,000 under Section 5.1(b) of the Fourth Amendment.
2.7 Notices.
The addresses for any notices pursuant to Section 8.01 shall be as
follows:
(a) If to Borrowers, Subsidiaries or Guarantors:
c/o Holiday RV Superstores, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Xxxxx X. Xxxxxxx
Akerman Senterfitt & Xxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
(b) If to Lender:
XXxX Finance Co, LLC
0000 Xxxxx Xxx Xxx Xxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Vice President
With a copy to:
Xxxxxx X. Xxxxxxx
Xxxxxx, Xxxxxxxx and Xxxxxx, P.A.
5500 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
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ARTICLE III - MISCELLANEOUS
3.1 Attorney Fees and Costs.
Borrowers and Guarantors agree to be liable for the actual attorneys'
fees and expenses (including but not limited to audit fees, appraisals,
security, receiver fees) incurred by Lender: (a) in connection with the
defaults, negotiating, drafting, and closing this Agreement up to the amount of
$40,000.00 ("Lender's Expenses"), and (b) after execution of this Agreement in
connection with the enforcement of Lender's rights and remedies, including fees
and expenses incurred in collecting or liquidating the Collateral. Borrowers
and Guarantors agree to pay Lender's Expenses on the date hereof.
3.2 Joinder By Guarantors.
Guarantors consent to and join in this Agreement and agree to be bound
by its terms and conditions.
3.3 Binding Effect.
This Agreement constitutes the entire understanding and agreement
between the parties hereto, and shall be binding on the successors and assigns
of each of Borrowers and Guarantors and shall inure to the benefit of Lender
and its successors and assigns.
3.4 Counterparts.
This Agreement may be executed in counterpart and each of the
counterparts shall be effective and enforceable.
3.5 Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE ANY RIGHT TO JURY TRIAL WITH RESPECT TO ANY
DISPUTE ARISING OUT OF THIS AGREEMENT AND AGREE THAT ANY LITIGATION ARISING OUT
OF OR PERTAINING TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE CIRCUIT
COURT FOR HILLSBOROUGH COUNTY, FLORIDA EXCEPT WITH RESPECT TO ACTIONS REQUIRED
TO BROUGHT IN THE JURISDICTION WHERE COLLATERAL IS LOCATED FOR PURPOSES OF
ENFORCING RIGHTS AGAINST THAT COLLATERAL.
3.6 Indemnification by Borrowers and Guarantors.
BORROWERS AND GUARANTORS, JOINTLY AND SEVERALLY, AGREE TO INDEMNIFY,
DEFEND AND HOLD HARMLESS LENDER, ITS AFFILIATES, AND ALL OF THEIR DIRECTORS,
OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ATTORNEYS AND
ASSIGNS, FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES AND
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON,
INCURRED BY OR ASSERTED AGAINST ANY OF THEM IN ANY WAY RELATING TO OR ARISING
OUT OF ANY LOAN PAPERS, ANY TRANSACTION RELATED HERETO OR THERETO, OR
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ANY ACT, OMISSION OR TRANSACTION OF ANY BORROWER, ANY SUBSIDIARY, ANY GUARANTOR
OR ANY OF THEIR AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, AGENTS,
EMPLOYEES OR REPRESENTATIVES; PROVIDED, HOWEVER, THAT BORROWERS SHALL NOT
INDEMNIFY, DEFEND AND HOLD HARMLESS ANY INDEMNIFIED PERSON FOR LOSSES OR
DAMAGES THAT COMPANY PROVES WERE CAUSED BY SUCH PERSON'S WILLFUL MISCONDUCT,
GROSS NEGLIGENCE OR OTHER NEGLIGENCE. LENDER SHALL NOT BE LIABLE TO ANY
BORROWER OR ANY SUBSIDIARY OR ANY GUARANTOR FOR ANY CONSEQUENTIAL DAMAGES. This
indemnity shall survive repayment of Borrowers' obligations to Lender.
3.7 Bankruptcy.
AS A MATERIAL INDUCEMENT TO THE AGREEMENTS OF LENDER IN THIS
AGREEMENT, BORROWERS AND GUARANTORS AGREE THAT IN THE EVENT THAT ANY BORROWER
OR ANY GUARANTOR IS THE SUBJECT OF ANY INSOLVENCY, BANKRUPTCY, RECEIVERSHIP,
DISSOLUTION, REORGANIZATION OR SIMILAR PROCEEDING, FEDERAL OR STATE, VOLUNTARY
OR INVOLUNTARY, UNDER ANY PRESENT OR FUTURE LAW OR ACT, LENDER IS ENTITLED TO
THE AUTOMATIC AND ABSOLUTE LIFTING OF ANY AUTOMATIC STAY AS TO THE ENFORCEMENT
OF ITS REMEDIES UNDER THIS AGREEMENT AGAINST ANY COLLATERAL OR SECURITY
INTEREST GRANTED TO LENDER OR AGAINST ANY ACCOUNT OF ANY BORROWER OR ANY
GUARANTOR INCLUDING SPECIFICALLY, BUT NOT LIMITED TO THE STAY IMPOSED BY
XXXXXXX 000 XX XXX XXXXXX XXXXXX BANKRUPTCY CODE, AS AMENDED, OR ANY SIMILAR
STATE LAW AND, TO ACCOMPLISH SUCH PURPOSES, BORROWERS AND GUARANTORS AGREE TO
THE FULL EXTENT PERMITTED BY LAW NOT TO SEEK TO TAKE ADVANTAGE OF ANY
APPRAISEMENT, VALUATION, STAY OR EXTENSION LAW NOW OR HEREAFTER IN FORCE, IN
ORDER TO PREVENT OR HINDER THE ENFORCEMENT OF THIS AGREEMENT OR THE PROVISIONS
OF THIS AGREEMENT. BORROWERS AND GUARANTORS HEREBY CONSENT TO THE IMMEDIATE
LIFTING OF ANY SUCH AUTOMATIC STAY, AND WILL NOT CONTEST ANY MOTION BY LENDER
TO LIFT SUCH STAY. BORROWERS AND GUARANTORS AGREE TO EXECUTE ALL DOCUMENTATION
NECESSARY TO WAIVE OR PROVIDE FOR RELIEF FROM ANY STAY PROVISIONS UNDER ANY
FEDERAL OR STATE LAW.
3.8 Release of Claims.
AS A MATERIAL INDUCEMENT TO THE AGREEMENTS OF LENDER IN THIS
AGREEMENT, BORROWERS AND GUARANTORS, ON BEHALF OF ITSELF AND ITS SUCCESSORS AND
ASSIGNS, DO HEREBY FULLY RELEASE AND FOREVER DISCHARGE LENDER, THEIR RESPECTIVE
SUCCESSORS IN INTEREST, ASSIGNS, OFFICERS, DIRECTORS, STOCKHOLDERS, AGENTS,
SERVANTS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES, OF AND FROM ANY AND ALL PAST,
PRESENT OR FUTURE CLAIMS, DEMANDS, OBLIGATIONS, ACTIONS, CAUSES OF ACTION,
RIGHTS, DAMAGES, COSTS, EXPENSES AND COMPENSATION OF ANY NATURE WHATSOEVER,
WHETHER BASED ON A TORT, CONTRACT, STATUTORY LIABILITY OR ANY OTHER THEORY OF
RECOVERY, WHICH ANY BORROWER OR ANY
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GUARANTOR NOW HAS OR MAY HEREAFTER ACCRUE OR OTHERWISE ACQUIRE, FOR OR BY
REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER OCCURRING UP TO THE DATE OF
THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
"BORROWERS"
HOLIDAY RV SUPERSTORES, INC.
By
--------------------------------
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
HOLIDAY RV SUPERSTORES OF SOUTH
CAROLINA, INC.
By
--------------------------------
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
HOLIDAY RV SUPERSTORES WEST, INC.
By
--------------------------------
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
HOLIDAY RV SUPERSTORES OF NEW
MEXICO, INC.
By
--------------------------------
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
HALL ENTERPRISES, INC.
By
--------------------------------
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
"GUARANTORS"
HOLIDAY RV RENTAL/LEASING, INC.
By
--------------------------------
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
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LITTLE VALLEY AUTO & RV SALES, INC.
By
--------------------------------
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
HALL ENTERPRISES, INC.
By
--------------------------------
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
HOLIDAY RV ASSURANCE SERVICE,
INC., F/K/A HOLIDAY RV ASSURANCE
CORPORATION
By
--------------------------------
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
RECREATION USA INSURANCE
CORPORATION
By
--------------------------------
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
HOLIDAY RV'S INSURANCE AGENCY, INC.
By
--------------------------------
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
"LENDER"
XXXX FINANCE CO, LLC
By
--------------------------------
Xxxx Xxxxxxxx, Vice President
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