EXHIBIT 10.1
SUPPLEMENTAL AGREEMENT TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
This is a Supplemental Agreement to Amended and Restated Loan and
Security Agreement and (this "Agreement") made this 14th day of January, 2003,
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"), XXXX FINANCE CO, LLC., a Delaware limited liability company
("Lender"), and AGI HOLDING CORP., a Delaware corporation ("Holding").
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 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, the Fourth Amendment and
the Fifth 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 Supplemental
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 amount is due
and owing to Lender under the Loan Documents (the "Current Outstanding Principal
Amount"):
Principal $7,666,076.93
WHEREAS, the above-stated amounts of principal as well as all interest,
fees and other amounts 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.
WHEREAS, the Borrowers and Guarantors have requested that Lender
advance Borrowers the sum of $1,300,000 so that Borrowers can make certain
payments necessary for the on-going conduct of business as set forth in Exhibit
A attached hereto the "Payment Applications").
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.
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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 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 AND AGREEMENTS.
(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 Principal
Amount set forth above is due and owing under the Amended Loan
Agreement.
(b) Borrowers and Guarantors acknowledge and agree that, by
virtue of this Supplemental 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.
(d) Borrowers and Guarantors acknowledge and agree that all
obligations due and owing under the Amended Loan Agreement, including
the Currently Outstanding Principal Amount, are currently due and
payable as a result of current defaults under the Amended Loan
Agreement, including but not limited to the failures and actions giving
rise to make the Payment Applications, and that after the Payment
Applications all obligations due and owing under the Amended Loan
Agreement, including the Currently Outstanding Principal Amount and the
advance pursuant to this Supplemental Agreement, will continue to be
currently due and payable on demand by Lender, and Lender has no
further obligation to make any Advances to Borrowers under the Amended
Loan Agreement, nor is there any obligation of Lender to term out the
indebtedness under the Amended Loan Agreement.
(e) Nothing contained in this Supplemental Agreement or
otherwise shall be construed to limit or restrict the ability of the
Lender to demand payment of all obligations due and owing under the
Amended Loan Agreement, including the Currently Outstanding Principal
Amount and the advance pursuant to this Supplemental Agreement, or
exercise its remedies under the Amended Loan Agreement and that any
forbearance in the same is solely at the discretion of the Lender.
Borrowers and Guarantors acknowledge that Lender has voluntarily
forborne from demanding payment of all amounts owed under the Amended
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Loan Agreement or exercising remedies under the Amended Loan Agreement.
Further, Borrowers and Guarantors acknowledge and that, by entering
into this Supplemental Agreement and making the Supplemental Advance
pursuant to this Supplemental Agreement, Lender shall have no
obligation to continue to forbear from demanding payment of all amounts
owed under the Amended Loan Agreement or exercising remedies under the
Amended Loan Agreement.
(f) Borrowers and Guarantors acknowledge and agree that the
conditions under the Term Sheet dated October 25, 2002 (the "Term
Sheet") among Holiday RV, Lender and the Xxxxxxx Xxxxx Trust u.t.a
dated September 15, 1997 (the "Xxxxx Trust") have not been satisfied;
provided, however, Lender and the Xxxxx Trust have waived such
conditions as to the conversion of the Series A Preferred Stock and
Series AA-2 Preferred Stock of Holiday RV owned by Lender and the Xxxxx
Trust and have agreed to convert their shares of the Series A Preferred
Stock and Series AA-2 Preferred Stock of Holiday RV on the terms of the
Term Sheet if the other holder of Series A Preferred Stock converts its
shares.
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; (e) the conduct of Lender in administering any financing arrangement
by and among Borrowers, Guarantors and Lender, or any of them, or (f) any rights
or claims against Lender, the Xxxxx Trust, Xxxxxxx Xxxxx or any other entity
owned or controlled by Xxxxxxx Xxxxx, including but not limited to any claims
arising under the Term Sheet.
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
entered into this Agreement fully understanding its terms and conditions and
voluntarily and without duress and with the advice of counsel.
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ARTICLE II -- SPECIAL PURPOSE ADVANCE
2.1 SPECIAL PURPOSE ADVANCE. Notwithstanding the Lender is not
obligated to make further advances under the Loan Documents, Lender is willing
to advance Borrowers the sum of $1,300,000 (the "Special Advance") so that
Borrowers can make the Payment Applications. Borrowers agree to use the proceeds
from the Special Advance solely to make the Payment Applications. Promptly upon
receipt of this Supplemental Agreement and an Out-of-State Affidavit duly
executed by the Borrowers and Guarantors, Lender will make the Special Advance.
The Special Advance shall be an Advance under the Amended Loan Agreement, shall
bear interest at the rate provided in the Amended Loan Agreement and shall
constitute one of the "Liabilities" under the Amended Loan Agreement so that
repayment thereof is secured by the Collateral and the guaranties of the
Guarantors.
2.2 Without limiting the right of Lender to demand payment of the
obligations under the Amended Loan Agreement, Borrowers and Guarantors hereby
agree to apply proceeds from the any of the following sales to repay the Special
Advance: (a) the wholesale sale of Winnebago units listed on Exhibit B attached
hereto, (b) the sale of the dealership in Las Cruces, New Mexico, or (c) the Net
Proceeds (as hereinafter defined) from the retail sales of the Winnebago units
listed on Exhibit B. The term "Net Proceeds" means the lesser of either (a) the
cost of such unit to the Borrowers and Guarantors or (b) the sales price of such
unit, less in either case the sales commission paid upon such retail sale.
2.3 ORIGINATION FEE. Borrowers shall pay Lender an origination fee for
the Special Advance of two percent (2%) of the amount of the Special Advance
payable within five days of the date on which the Special Advance.
ARTICLE III -AMENDMENTS TO LOAN DOCUMENTS
3.1 REPAYMENT OF ADVANCES. Without prejudice to the right of Lender to
demand repayment of the outstanding obligations of Borrowers and Guarantors
under the Loan Documents, including payment of principal, interest, fees and
other amounts, Borrowers and Guarantors hereby agree to apply the following
amounts to repay obligations under the Loan Documents: (a) the net proceeds from
the sale of the Las Cruces, New Mexico dealership (the "Las Cruces Sale"), (b)
the net proceeds from any new floor plan loan with any other lender using
certain inventory of Borrowers and Guarantors, and (c) any cash not required for
normal operations until (i) before the Las Cruces Sale, the outstanding
principal amount outstanding under the Loan Documents is reduced to $7,000,000,
and (ii) after the Las Cruces Sale, the outstanding principal amount outstanding
under the Loan Documents is reduced to $3,500,000.
ARTICLE IV - MISCELLANEOUS
4.1 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 Supplemental Agreement up to
the amount of $10,000.00 ("Lender's Expenses"), and (b) after execution of this
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Supplemental 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.
4.2 JOINDER BY GUARANTORS.
Guarantors consent to and join in this Agreement and agree to be bound
by its terms and conditions.
4.3 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.
4.4 COUNTERPARTS.
This Agreement may be executed in counterpart and each of the
counterparts shall be effective and enforceable.
4.5 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.
4.6 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 ANY ACT, OMISSION OR
TRANSACTION OF ANY BORROWER, ANY SUBSIDIARY, ANY GUARANTOR OR ANY OF THEIR
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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.
4.7 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.
4.8 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, HOLDINGS, THE XXXXX TRUST,
XXXXXXX XXXXX AND 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
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.
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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
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
HOLIDAY RV SUPERSTORES OF SOUTH CAROLINA, INC.
By
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
HOLIDAY RV SUPERSTORES WEST, INC.
By
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
HOLIDAY RV SUPERSTORES OF NEW MEXICO, INC.
By
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
COUNTY LINE SELECT CARS, INC.
By
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
HALL ENTERPRISES, INC.
By
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
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"GUARANTORS"
HOLIDAY RV RENTAL/LEASING, INC.
By
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
LITTLE VALLEY AUTO & RV SALES, INC.
By
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
HALL ENTERPRISES, INC.
By
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
HOLIDAY RV ASSURANCE SERVICE, INC., F/K/A HOLIDAY RV
ASSURANCE CORPORATION
By
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
RECREATION USA INSURANCE CORPORATION
By
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
HOLIDAY RV'S INSURANCE AGENCY, INC.
By
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Xxxxxx X. Xxxxxxx, Chief Executive Officer
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Confirmed and Approved:
SPECIAL OVERSIGHT COMMITTEE
By
---------------------------------
Xxx X. Xxxxxxxx, Committee Member
"LENDER"
XXXX FINANCE CO, LLC
By
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Xxxx Xxxxxxxx, Vice President
"HOLDING"
AGI HOLDING CORP.
By
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Xxxx Xxxxxxxx, Vice President
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