Exhibit 10.17
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
THIRD AMENDMENT TO DEED OF
TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT, AND
FINANCING STATEMENT
NORTH CAROLINA, BEAUFORT
COUNTY
THIS THIRD AMENDMENT TO DEED OF
TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT, AND FINANCING
STATEMENT (this “
Amendment ”) is made and entered into this 16th day of
November, 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 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. The Beneficiary’s obligations under
the Term Loan 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 and that certain Second Amendment to Deed of
Trust, Assignment of Rents, Security Agreement and Financing
Statement dated as of September 28, 2007, among Grantor,
Trustee and Beneficiary, recorded on October 1, 2007, in Book
1609, Page 406, 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. Grantor has requested that the
credit facilities provided by the Beneficiary pursuant to the Loan
Agreement be amended pursuant to a First Amended and Restated Loan
Agreement, dated of even date herewith (as amended, modified,
restated or supplemented from time to time, the “ Amended
Loan Agreement ”), by and among Grantor, Beneficiary,
Fountain Powerboat Industries, Inc., a Nevada corporation (the
“ Parent ”), and Fountain Dealers’ Factory
Super Store, Inc., a North Carolina corporation (the “
Affiliate ”), pursuant to which Beneficiary makes
available to Grantor (i) a term loan in the principal amount
of $14,500,000 and (ii) a revolving line of credit in the
maximum principal amount of $2,000,000 ((i) and
(ii) collectively, the “ Amended Loan
”).
C. Grantor, Beneficiary, the
Affiliate, and the Parent have entered into a Dealer Floor Plan and
Security Agreement, dated September 28, 2007 (the “
Floor Plan Agreement ”), pursuant to which Beneficiary
made available to the Affiliate a revolving line of credit in the
principal amount of $5,000,000 (the “ Floor Plan Loan
”). The Affiliate’s obligations under the Floor Plan
Agreement are secured by, among other things, the Deed of
Trust.
D. In order to induce Beneficiary to
extend the Amended 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
