SEVENTEENTH AMENDMENT TO AMENDED AND RESTATED LOAN
AND SECURITY AGREEMENT
This
SEVENTEENTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this “Amendment”) is entered into as of
February 24, 2005, by and among GEHL COMPANY, a Wisconsin
corporation, GEHL POWER PRODUCTS, INC., a South Dakota corporation,
COMPACT EQUIPMENT ATTACHMENTS INC., a Wisconsin corporation,
HEDLUND-MARTIN, INC., a Pennsylvania corporation
(“Hedlund”), and MUSTANG MANUFACTURING COMPANY, INC., a
Minnesota corporation (herein, separately and collectively,
“Borrower” or “Gehl Company”) and GE
COMMERCIAL DISTRIBUTION FINANCE CORPORATION (successor in interest
to Deutsche Financial Services Corporation) and GE COMMERCIAL
DISTRIBUTION FINANCE CANADA (successor in interest to Deutsche
Financial Services Canada Corporation) (herein, separately and
collectively, “Lender”).
RECITALS
A.
Borrower and Lender (or their respective predecessors in interest)
are parties to that Amended and Restated Loan and Security
Agreement dated as of October 1, 1994 (as it has been and may be
further amended, restated, extended, renewed, replaced, or
otherwise modified from time to time, the “Loan
Agreement”).
B.
Borrower and Lender desire to amend the Loan Agreement and clarify
certain agreements and understanding among them on the terms and
conditions set forth herein.
AMENDMENT
Therefore, in
consideration of the mutual agreements herein and other sufficient
consideration, the receipt of which is hereby acknowledged,
Borrower and Lender hereby amend the Loan Agreement and agree as
follows:
1.
Definitions .
Capitalized terms used and not otherwise defined herein have the
meanings given them in the Loan Agreement. All references to the
“Agreement” in the Loan Agreement, any of the Other
Agreements or in this Amendment shall be deemed to be references to
the Loan Agreement as it is amended hereby and as it may be further
amended, restated, extended, renewed, replaced, or otherwise
modified from time to time.
2.
References to “Gehl
Company” . Each Reference in the Loan
Agreement and the Other Agreements to “Gehl Company”
shall be deemed to be, and is collectively a reference to, each of
Gehl Company, a Wisconsin corporation, Gehl Power Products, Inc., a
South Dakota corporation, Compact Equipment Attachments Inc., a
Wisconsin corporation, Hedlund-Martin, Inc., a Pennsylvania
corporation, and Mustang Manufacturing Company, Inc., a Minnesota
corporation, as if each such entity were stated
separately.
3.
Conditions to Effectiveness of
Amendment . This Amendment shall become
effective as of the date first written above if this Amendment has
been duly executed by all parties hereto.
4.
Consent to formation of Special
Purpose Entities . Borrower has advised Lender
that from time to time it intends to sell or contribute, for
reasonably equivalent value, the Released Assets (as defined
herein) on a nonrecourse basis with respect to credit losses to a
special purpose entity, Gehl Receivables LLC, a Delaware limited
liability company, owned by Gehl Company (the “SPE”).
The SPE will in turn, sell or contribute, for reasonably equivalent
value, such Released Assets, on a nonrecourse basis with respect to
credit losses, to a second special purpose entity, Gehl Funding
LLC, a Delaware limited liability company, owned by Gehl Company
(“SPE2”), which will issue notes secured by, among
other things, a lien on such Released Assets. Notwithstanding the
terms of Sections 6.1 and 6.2 of the Loan Agreement, the Lender
hereby consents to the creation of the SPE and SPE2 and the sale or
contribution of the Released Assets for reasonably equivalent value
as described above. Lender agrees that at no time has it had a lien
or security interest in the equity interests in SPE or SPE2 and
releases any lien or security interest that it may have in the
equity interests of SPE and SPE2. The consents contained in this
Section are specific in intent and are valid only for the specific
purpose for which given. Nothing contained herein obligates Lender
to agree to any additional waivers or consents of any provisions of
any of the Other Agreements.
5.
Release of Collateral
. With respect to the Loan Agreement, Lender hereby
releases its lien and security interest in all Released Assets.
This release is only with regards to the Loan Agreement. Nothing
contained herein shall affect in any respect Lender’s
ownership of, or lien and security interest on, any Released Assets
purchased by Lender.
6.
Amendments to Loan Agreement
.
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6.1. Preamble
. The preamble of the Loan Agreement is amended by
inserting after the word “subsidiaries” the
following: |
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“, excluding only those special purpose subsidiaries
referenced in the Seventeenth Amendment to this Agreement, the
formation of which Lender has consented to”. |
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6.2.
“Accounts” . Section 1.1(a) of the
Loan Agreement is amended by inserting “but excluding the
Released Assets” at the end of such section immediately
preceding the period. |
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6.3. “Released
Assets” . A new Section 1.1(x) is hereby added
to the Loan Agreement as follows: |
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“1.1(x). Released Assets . “Released
Assets” means, all of Gehl Company’s and the other
Borrower’s, installment sale contracts or installment
promissory notes arising from (i) Gehl Company’s and the
other Borrower’s sale or financing (including a refinancing
of a previous financing by Gehl Company or another Borrower) of
Inventory to Dealers under installment sale contracts or
installment promissory notes which are owned by Gehl Company or
another Borrower; (ii) a Dealer’s sale or financing of
Finished Goods to retail customers under installment sale contracts
or installment promissory notes which such installment sales
contracts or installment promissory notes were purchased by and are
owned by Gehl Company or another Borrower; (iii) Gehl
Company’s and the other Borrower’s sale or financing
(including a refinancing of a previous financing by Gehl Company or
another Borrower) of Inventory to retail customers under
installment sale contracts or installment promissory notes which
are owned by Gehl Company or another Borrower; and (iv) installment
sale contracts or installment promissory notes repurchased by Gehl
Company and the other Borrowers from third party creditors to whom
Gehl Company previously sold or otherwise transferred such
installment sale contracts or installment promissory notes (items
(i) through and including (iv) collectively, the “Base
Released Assets”) together with: (A) any Inventory that was
sold or financed (including a refinancing of a previous financing
by Gehl Company or another Borrower) pursuant to the Base Released
Assets, (B) all rights of recourse against any Dealer only to the
extent related to the Base Released Assets, (C) all rights of
recourse against any third party to whom Gehl Company or any other
Borrower previously sold or otherwise transferred installment sale
contracts or installment promissory notes and such installment sale
contracts or installment promissory notes were repurchased by Gehl
Company or any other Borrower only to the extent related to the
Base Released Assets, (D) all refunds for the cost of extended
service contracts only to the extent related to Base Released
Assets, (E) all proceeds, including insurance proceeds, only to the
extent relating to the Base Released Assets, and including any such
proceeds deposited into any lockbox or bank account to which GECDF
has access pursuant to a written agreement between GECDF and the
depository bank, and (F) all books and records of Gehl Company and
the other Borrowers only to the extent relating to the Base
Released Assets. |
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The Released Assets do not include and the Released Assets do
not release GECDF’s Lien and security interest in, and GECDF
expressly retains GECDF’s Lien and security interest in, (x)
any Inventory manufactured, sold or distributed by any person or
entity (other than Gehl or another Borrower), whether obtained by
Gehl or any of the other Borrowers by repossession or purchase or
otherwise, if such Lien and security interest thereon was granted
to GECDF by any person or entity (other than Gehl or another
Borrower) or such Lien and security interest was purchased by GECDF
from any person or entity (other than Gehl or another Borrower),
(y) any Collateral other than the Released Assets, and (z) any
asset or property of any type or nature owned by any person or
entity (other than Gehl or another Borrower).” |
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Section 4.1 of the Loan Agreement is hereby deleted and
replaced with the following: |
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“ 4.1 Borrowing Base and Schedules. To facilitate
Gehl Company’s borrowings and the maintenance of
GECDF’s records, and to ensure that Gehl Company has not been
advanced funds in excess of the advance rates and available credit
contained in this Agreement, Gehl Company will, periodically, but
in any case not less often than monthly, within 15 days following
the end of each fiscal month or as otherwise agreed to by GECDF and
Gehl Company, deliver to GECDF a borrowing base certificate (a
“Borrowing Base Certificate”) together with a schedule
of Inventory (“Inventory Schedule”), a schedule of
Retail Accounts (“Retail Accounts Schedule”) and such
other information as may be requested from time to time by GECDF
with respect to the Collateral (the “Other
Information”), provided, however, (i) i |
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