AGREEMENT TO TENDER
AGREEMENT TO TENDER, dated as of July 1, 1997, between Genmar
Holdings, Inc., a Delaware corporation (the "Company"), and Xxxxxxx Xxxxx Global
Allocation Fund, Inc., a Maryland corporation ("ML Global").
W I T N E S E T H
WHEREAS, the Company is currently contemplating an offer to purchase
(the "Offer") all of the outstanding 13 1/2% Senior Subordinated Notes due 2001
(the "Notes") issued by the Company and to solicit consents (the "Consent
Solicitation") from the holders of the Notes to certain amendments to the
Indenture, dated as of July 1, 1994, among the Company and Minstar, Inc.,
Miramar Marine Corporation, Genmar Industries, Inc., IJ Holdings Corp., Xxxxxx
Boat Corporation, Crestliner, Inc., Mastercrafters Corp., Miramar Marine
Holdings Inc. and Wood Manufacturing Company, Inc., as guarantors, and First
Trust National Association, as trustee, a summary of which is attached hereto as
EXHIBIT A (the "Amendments") and which may be modified by the Company after the
date hereof;
WHEREAS, pursuant to the Offer, the Company desires that ML Global
tender all of its Notes;
WHEREAS, pursuant to the Offer, ML Global desires to tender all of its
Notes;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, covenants and conditions hereinafter contained, the parties agree as
follows:
1. TENDER. Subject to the terms and conditions set forth herein and
in the Offer as substantially described in the draft Offer to Purchase and
Consent Solicitation Statement attached hereto as Annex I (as the same may be
amended or supplemented from time to time, the "Statement"), ML Global hereby
agrees to tender to the Company in the Offer (the "Tender") $32,000,000
principal amount of the Notes owned by ML Global (the "ML Global Notes"). The
Company and ML Global hereby mutually agree that ML Global shall not be
obligated to Tender the ML Global Notes to the Company (or may withdraw any such
Tender) if the Offer has not been consummated during the period from the date
hereof through September 29, 1997 (the "Period").
2. CONSENT. Subject to the terms and conditions set forth herein and
in the Offer as substantially described in the Statement, ML Global hereby
agrees to consent to the Amendments pursuant to the Consent Solicitation. ML
Global hereby further agrees that, if the Offer is consummated, its consent to
the Amendments pursuant to this Agreement is irrevocable.
The Company further agrees that, if the Offer is not consummated prior to the
end of the Period, ML Global shall not have been deemed to have consented to the
Amendments.
3. PAYMENT FOR AGREEMENT TO TENDER. The Company hereby agrees that
not later than July 3, 1997, it will pay to ML Global $960,000, an amount equal
to 3% of the principal amount of the ML Global Notes, by wire transfer of
immediately available funds to an account designated by ML Global in
consideration for ML Global's agreement to Tender. The payment to ML Global is
not conditioned on the commencement or completion of the Offer.
The Company agrees that, if it commences the Offer, it shall offer to
pay, to each holder tendering its Notes (i) 99% of the principal amount of the
Notes owned by such holder ("Tender Payment") and (ii) an additional 3% of the
principal amount of the Notes ("Consent Payment;" and together with the Tender
Payment, the "Payments") owned by each such holder for such holder's consent to
the Amendments, in each case conditioned on the terms of the Offer and the
Consent Solicitation. Pursuant to the Offer, ML Global will be paid for the ML
Global Notes an amount equal to the amount paid to all other holders of Notes
for their Notes pursuant to the Offer. ML Global hereby agrees to waive the
Consent Payment for itself and for all subsequent holders of the ML Global
Notes.
4. NO COMPANY OBLIGATION. Notwithstanding anything herein to the
contrary, the Company shall be under no obligation to make or commence the
Offer.
5. REPRESENTATIONS AND WARRANTIES OF ML GLOBAL. ML Global hereby
represents and warrants to the Company that:
5.1 AUTHORITY. ML Global has all requisite power and authority to
enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement and the
transactions contemplated hereby have been duly authorized by all necessary
action on ML Global's part, and this Agreement is the legal, valid and binding
agreement of ML Global enforceable in accordance with its terms.
5.2 TENDER OF ALL NOTES OWNED BY ML GLOBAL. As of the date hereof,
the aggregate principal amount of Notes owned by ML Global is $32,000,000.
5.3 OWNERSHIP OF ML GLOBAL NOTES. ML Global has good and valid title
to the ML Global Notes free and clear of all liens, charges, claims or
encumbrances whatsoever.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to ML Global that the Company has all requisite power
and authority to enter into this Agreement, to perform its obligations hereunder
and to consummate the
2
transactions contemplated hereby. This Agreement and the transactions
contemplated hereby have been duly authorized by all necessary action on the
Company's part, and this Agreement is the legal, valid and binding agreement of
the Company enforceable in accordance with its terms.
7. ADDITIONAL NOTES. ML Global hereby agrees that if ML Global
acquires any additional Notes after the date hereof and the Offer is commenced,
ML Global shall tender such Notes in the Offer for the Payments offered
thereunder by the Company. ML Global shall not have been deemed to have waived
the Consent Payment with respect to any additional Notes acquired by ML Global
after the date hereof.
8. NO OTHER SALES BY ML GLOBAL. ML Global hereby agrees that during
the Period, ML Global shall not, directly or indirectly, offer or agree to sell,
sell, transfer, pledge, exchange or otherwise dispose of, any Notes owned by ML
Global including, without limitation, enter into any proxy or other agreement
with respect to voting such Notes unless such transferee, pledgee, or subsequent
holder of such Notes agrees in writing to assume all the obligations of ML
Global hereunder and to be bound by all the provisions of this Agreement.
9. MISCELLANEOUS.
9.1 PERMISSION TO DISCLOSE. ML Global hereby agrees and consents to
the disclosure by the Company of this Agreement and all of the terms and
conditions hereof, including, without limitation, in connection with the Offer
and Consent Solicitation.
9.2 NOTICES. Except as otherwise provided in this Agreement, notices
and other communications under this Agreement shall be in writing and shall be
delivered by hand, or sent by registered or certified mail, addressed as set
forth below, or sent by telecopy or similar form of telecommunications, and
shall be deemed to have been given when received. Any such notice or other
communication shall be addressed (a) if to the Company, to 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000, ATTENTION: General Counsel,
and (b) if to ML Global, 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000,
ATTENTION: Xxxx X'Xxxxxxx, or to such other address as such party shall have
furnished to the other parties in writing.
9.3 AMENDMENTS. Any terms of this Agreement may be amended by, and
only by, an instrument in writing signed by the Company and ML Global.
9.4 EFFECT OF AGREEMENT. This Agreement, including the
representations and warranties contained herein, contains the entire agreement
between the Company and ML Global with respect to the subject matter hereof and
supersedes any prior agreement or understandings between the Company and ML
Global with respect to such subject matter.
3
9.5 GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with, the law of the State of New York.
9.6 TERMINATION. This Agreement shall terminate by its terms on the
date of expiration of the Period.
9.7 COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
4
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed by its respective officers thereunto duly authorized all
as of the date first above written.
XXXXXXX XXXXX GLOBAL ALLOCATION
FUND, INC.
By:
-------------------------------------
Name:
Title:
GENMAR HOLDINGS, INC.
By:
-------------------------------------
Name:
Title:
5
