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 lossesto 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) if there is a Default,
Gehl Company
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