Exhibit 10.16
This Instrument Was Prepared
By
And Upon Recording Return To:
Patricia Snyder
Womble Carlyle Sandridge & Rice,
PLLC
301 South College Street, Suite 3500
Charlotte, NC 28202-6037
SECOND AMENDMENT TO DEED OF
TRUST, ASSIGNMENT OF
RENTS, SECURITY AGREEMENT, AND
FINANCING STATEMENT
NORTH CAROLINA, BEAUFORT
COUNTY
THIS SECOND
AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT, AND FINANCING STATEMENT (this “ Amendment
”) is made and entered into this 28 th day of September, 2007 by and
among FOUNTAIN POWERBOATS, INC. , a North Carolina
corporation, whose address is 1653 Wichard’s Beach Road,
Washington, North Carolina 27889 (hereinafter called “
Grantor ”), EDMUND HAWES, a resident of North
Carolina, whose address is 6805 Morrison Boulevard, Suite 100,
Charlotte, North Carolina 28211 (hereinafter called “
Trustee ”), and REGIONS BANK , an Alabama
chartered bank, whose address is 6805 Morrison Boulevard, Suite
100, Charlotte, North Carolina 28211 (hereinafter called “
Beneficiary ”).
RECITALS:
A. Grantor and Beneficiary are
parties to (i) a Loan Agreement (the “ Term Loan
Agreement ”), dated as of September 19, 2005,
pursuant to which Beneficiary made available to Grantor a term loan
in the principal amount of $16,500,000, and (ii) a Loan
Agreement (the “ Credit Line Agreement ”), dated
as of
July 12, 2006, pursuant to which
Beneficiary made available to Grantor a non-revolving line of
credit in the maximum principal amount of $5,000,000. The
Beneficiary’s obligations under each of the Term Loan
Agreement and Credit Line Agreement are secured by, among other
things, a Deed of Trust, Assignment of Rents, Security Agreement
and Financing Statement dated as of September 19, 2005, from
Grantor to Trustee, recorded on September 19, 2005, in Book
1477, Page 854, in the office of the Beaufort County Register of
Deeds, as amended by that certain First Amendment to Deed of Trust,
Assignment of Rents, Security Agreement and Financing Statement
dated as of July 12, 2006, among Grantor, Trustee and
Beneficiary, recorded on July 13, 2006, in Book 1532, Page
683, in the office of the Beaufort County Register of Deeds (as
further amended by this Amendment, and hereafter amended, modified,
restated, supplemented, extended or renewed from time to time, the
“ Deed of Trust ”). Except as otherwise provided
herein, capitalized terms used herein without definition shall have
the meanings ascribed to them in the Deed of Trust.
B. Powerboats has paid in full all
obligations to Bank under the Credit Line Agreement, and the Credit
Line Agreement has been terminated.
C. Fountain Dealers’ Factory
Super Store, Inc., a North Carolina corporation (the “
Affiliate ”), has requested a revolving line of credit
from Beneficiary to finance its inventory of new and used vessels,
watercraft, boats and boat motors. Pursuant to the
Affiliate’s request, Grantor, Beneficiary, the Affiliate, and
the Parent have entered into a Dealer Floor Plan and Security
Agreement, dated of even date herewith (the “ Floor Plan
Agreement ”), pursuant to which Beneficiary made
available to the Affiliate made available to Grantor a revolving
line of credit in the principal amount of $5,000,000 (the “
Floor Plan Loan ”).
D. In order to induce Beneficiary to
extend the Floor Plan Loan, and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
Grantor and Beneficiary have agreed to amend the Deed of Trust
pursuant to this Amendment to secure the payment and performance of
obligations of arising under the Floor Plan Agreement and the other
Credit Documents (as defined in the Floor Plan
Agreement).
NOW, THEREFORE, in consideration of
the foregoing and other good and valuable
