Exhibit 10.1
WAIVER AND CONSENT
WAIVER AND CONSENT , dated as of January 13, 2009 (the " Waiver
and Consent "), to the Financing Agreement, dated as of
November 6, 2008 (as amended, restated, supplemented or otherwise
modified from time to time the " Financing Agreement "), by
and among MONACO COACH CORPORATION, a Delaware corporation ("
Monaco "), each subsidiary of Monaco listed as a "Borrower"
on the signature pages thereto (together with Monaco, each a "
Borrower " and collectively, the " Borrowers "), each
subsidiary of Monaco listed as a "Guarantor" on the signature pages
thereto (together with each other Person that becomes a "Guarantor"
thereunder, each a " Guarantor " and collectively, the "
Guarantors "), the lenders from time to time party thereto
(each a " Lender " and collectively, the "
Lenders "), ABLECO FINANCE LLC, a Delaware limited liability
company, as collateral agent for the Lenders (in such capacity,
the " Collateral Agent "), and as administrative agent
for the Lenders (in such capacity, the " Administrative
Agent " and together with the Collateral Agent, each an "
Agent " and collectively, the " Agents ").
W I T N E S
S E T H :
WHEREAS, the Borrowers, the Guarantors, the
Agents and the Lenders are parties to the Financing Agreement,
pursuant to which the Lenders have made a term loan to the
Borrowers, in the aggregate principal amount of
$39,300,000;
WHEREAS, the Loan Parties have requested that
the Agents and the Required Lenders waive any Events of Default
arising by reason of (i) noncompliance with Section 7.03(d) of the
Financing Agreement and (ii) Monaco's contemplated disposition of
the parcel of real property owned by it and described on Exhibit
A hereto (the " Disposed Property ") below the Release
Price (as described in the Financing Agreement) as required by
Section 7.02(c)(iii) of the Financing Agreement; and
WHEREAS, the Agents and the Required Lenders are
willing to waive Section 7.03(d) and Section 7.02(c)(iii) of the
Financing Agreement, in each case, pursuant to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises
and agreements herein, the parties hereto hereby agree as
follows:
1. Definitions
. All capitalized terms used herein and not otherwise
defined shall have the meanings assigned thereto in the Financing
Agreement.
(a)
(i) Subject
to the satisfaction of the conditions set forth in Section 4
hereof, the Agents and the Required Lenders hereby consent to and
waive any Event of Default that would otherwise arise under
Section 9.01(c) of the Financing Agreement or otherwise as a
result of a breach of Section 7.03(d) of the Financing
Agreement as of the date of delivery to the Working Capital Agent
of the last borrowing base certificate for the December 2008 fiscal
month of the Borrowers; provided , that the Loan Parties
have Availability and Qualified Cash of at least $5,800,000 as of
the date of delivery to the Working Capital Agent of the last
borrowing base certificate for the December 2008 fiscal month of
the Borrowers.
(ii) Subject to the
conditions set forth in Section 4 hereof, the Agents and the
Required Lenders hereby consent to Monaco's disposition of the
Disposed Property for Net Cash Proceeds below the Release Price for
the Disposed Property and waive any Event of Default that would
otherwise arise under Section 9.01(c) of the Financing
Agreement or otherwise as a result of a breach of
Section 7.02(c)(iii) of the Financing Agreement by reason of
such disposition; provided , that (A) the Net Cash Proceeds
of such disposition is not less than $270,509.95 and (B) 100% of
such Net Cash Proceeds is applied to repay the Term Loan in
accordance with Section 2.05(c)(iv) of the Financing
Agreement.
(b) The waivers and
consents in Section 2(a)(i) and (a)(ii) shall be effective solely
in the event the express conditions set forth in Section 2(a)(i)
and (a)(ii), respectively, are satisfied and only in this specific
instance and for the specific purposes set forth herein and do not
allow for any other or further departure from the terms and
conditions of the Financing Agreement or any other Loan Document,
which terms and conditions, except as otherwise expressly set forth
herein, shall remain in full force and effect.
3.
Representations . Each of the Loan Parties
represents and warrants that on the Waiver Effective Date (defined
below), after giving effect to the waivers and consents set forth
in this Waiver and Consent, no Default or Event of Default has
occurred and is continuing on the Waiver Effective Date.
4. Conditions to
Effectiveness . This Waiver and Consent shall become
effective only upon, or substantially contemporaneously with, the
satisfaction in full of the following conditions precedent (the
first date upon which all such conditions have been satisfied being
herein called the " Waiver Effective Date "):
(a) the Agents, the
Required Lenders and the Loan Parties shall have executed this
Waiver and Consent and shall have received counterparts of this
Waiver and Consent which bear the signatures of each Loan
Party;
(b) the Loan Parties
shall pay to the Collateral Agent for the benefit of the Lenders,
in immediately available funds, a fee in the amount of
$200,000.00;
(c) the Loan Parties
shall have commenced negotiations with the critical vendors listed
on Exhibit B hereto in connection with the construction and
development of Resort Property Lots located in Naples, Florida and
in Bay Harbor, Michigan regarding the payment of outstanding
payables;
(d) the Agents shall
have received all fees and expenses required to be paid or
reimbursed by the Loan Parties pursuant hereto or the Financing
Agreement or otherwise, in each case to the extent invoiced to the
Loan Parties on or prior to the date hereof, including all such
fees and expenses of counsel to the Agents;
(e) the
representations and warranties set forth in Section 3 shall be true
and correct as of the Waiver Effective Date; and
(f) all other legal
matters incident to this Waiver and Consent shall be satisfactory
to the Agents and counsel to the Agents.
5. Lien
Release . Subject to satisfaction in full of the
conditions set forth in Section 4 hereof, the Collateral Agent
shall deliver to Monaco a fully executed release, in the form
attached hereto as Exhibit C , releasing the Lien securing
the Obligations granted to the Collateral Agent on the Disposed
Property.
6. Covenant
. The Loan Parties shall continue to negotiate in good
faith with the critical vendors listed on Exhibit B hereto,
and the Loan Parties shall use commercially reasonable efforts to
enter into agreements with such critical vendors with respect to
payment schedules of remaining payables subject to terms and
conditions satisfactory to the Agents by February 9,
2009.
7. General
Release . Each Loan Party hereby acknowledges and
agrees that: (a) neither it nor any of its Affiliates
has any claim or cause of action against any Agent or any Lender
(or any of their respective Affiliates, officers, directors,
employees, attorneys, consultants or agents) and (b) each
Agent and each Lender has heretofore properly performed and
satisfied in a timely manner all of its obligations to such Loan
Party and its Affiliates under the Financing Agreement and the
other Loan Documents. Notwithstanding the foregoing, the
Agents and the Lenders wish (and each Loan Party agrees) to
eliminate any possibility that an
