Exhibit 10.56
Consent and Waiver
Reference is made to the Subordinated Note Purchase Agreement (the
"Purchase Agreement") dated as of December 14, 2001 between Xxxxxx Boats &
Motors, Inc. (the "Company") and Brunswick Corporation ("Brunswick"), a copy of
which is attached as Exhibit A.
The undersigned is the lender pursuant to the Loan and Security
Agreement dated as of January 31, 2000, by and between Transamerica Commercial
Finance Corporation along with certain of its subsidiaries (such subsidiaries
together with any other subsidiaries or sub-subsidiaries of the Company that may
exist from time to time shall be collectively referred to as the
"Subsidiaries"), and Transamerica Commercial Finance Corporation relating to a
line of credit with a maximum credit amount of $45,000,000, as amended,
supplemented or modified from time-to-time (the "Loan Agreement").
The undersigned hereby consents to: (i) the Purchase Agreement, the
transactions contemplated thereby and the performance of the Company's
obligations thereunder including without limitation the issuance of $3,000,000
subordinated notes pursuant thereto and the conversion of such notes into common
stock of the Company, and (ii) contemporaneously with the execution and delivery
of this Consent and Waiver, the issuance of up to $1,500,000 of subordinated
notes (the "Insider Notes") of the Company to certain of the Company's founding
shareholders and directors listed on Schedule I hereto or their affiliates. The
undersigned confirms that the Notes issued pursuant to the Purchase Agreement
and the Insider Notes do, will and at all times shall constitute Subordinated
Indebtedness for the purposes of the Loan Agreement. The undersigned confirms
that no Event of Default (as defined in the Loan Agreement), or event which with
the passage of time would become an Event of Default ] will occur as a result of
the Company's entering into the Purchase Agreement and performing its
obligations hereunder or the Insider Notes.
Except for the Non-Waived Defaults (defined below) the undersigned
waives all Events of Default and events in existence as of the date of this
Consent and Waiver which with the passage of time would become Events of
Default, under the Loan Agreement or any agreement, including without
limitation, any security agreement, entered into in connection with the Loan
Agreement which were in existence as of the date hereof and all Events of
Default and events which with the passage of time would become Events of
Default, other than payment defaults, arising through January 30, 2002. For
purposes of this Consent and Waiver, "Non-Waived Defaults" shall mean any of any
of the following Events of Default under the Loan Agreement or any agreement,
document or instrument entered into in connection with or contemplated by the
Loan Agreement:
(A) Any Event of Default arising as a result of any failure to
make any required payment, including, but not limited to, any
payment of principal or interest; or
(B) Both (i) any Event of Default arising as a result of any
default or event of default (howsoever such terms are defined)
shall occur under the Purchase Agreement or any agreement,
document or instrument entered into in connection with or
contemplated by the Purchase Agreement; and (ii) Brunswick
shall take any action to enforce any of its rights, powers
1
and/or remedies under the Purchase Agreement or any agreement,
document or instrument entered into in connection with or
contemplated by the Purchase Agreement; or
(C) Any Event of Default arising as a result of any violation of
any covenant relating to ownership, control, management,
mergers, consolidations, sale or purchase of assets or stock
of Borrower and/or any of the Subsidiaries; or
(D) Any Event of Default arising as a result of any material
violation of any representation or warranty or any violation
of any representation or warranty that causes a material
adverse change in the business of the Company and/or any of
the Subsidiaries; or
(E) Any Event of Default arising as a result of any violation of
any covenant relating to granting of liens, other than
permitted liens, or the incurrence of indebtedness, other than
permitted indebtedness, of Borrower and/or any of the
Subsidiaries; or
(F) Any Event of Default arising as a result of the Company and/or
any of the Subsidiaries shall become insolvent or generally
fail to pay, or admit in writing its inability to pay, such
person's or entity's debts as they become due, or a proceeding
under any bankruptcy, reorganization, arrangement of debt,
insolvency, readjustment of debt or receivership law or
statute is filed by or against the Company and/or any of the
Subsidiaries or the Company and/or any of the Subsidiaries
makes an assignment for the benefit of creditors; or
(G) Any Event of Default arising as a result of any termination of
any guaranty; or
(H) Any Event of Default arising as a result of (i) any failure to
deliver on a timely basis as required in accordance with the
terms of the Loan Agreement or any agreement, document or
instrument relating to the Loan Agreement any borrowing base
certificate or other report relating to inventory and/or
accounts receivable; or (ii) any misrepresentation contained
in any borrowing base certificate or other report relating to
inventory and/or accounts receivable.
The undersigned expressly acknowledges and agrees that no violation of
any financial covenant or ratio at any time through January 30, 2002
shall constitute any Event of Default; that the undersigned may not
take any action at any time to declare such violation as an Event of
Default or to otherwise exercise any rights, powers and remedies with
respect to such violation; and that such violation shall not result in
the postponement or subordination of any payment under the Notes issued
pursuant to the Purchase Agreement. Notwithstanding the foregoing, in
the event of a financial covenant or ratio violation that exists or
continues after January 30, 2002, as determined based on financial
statements for the month ended January 31, 2002 or any subsequent
period (as opposed to the month, quarter or year ended December 31,
2001 or earlier), the existence of any waiver of such violation prior
to January 31, 2002 shall not preclude the undersigned on or after
January 31, 2002 from declaring a default or pursuing any remedies it
otherwise has based on such continuing violation of financial covenants
2
or ratios as determined based on financial statements for the month
ended January 31, 2002 or any subsequent period.
Nothing contained in this Consent and Waiver shall preclude the
undersigned from exercising its rights, powers and remedies under the
Loan Agreement with respect to any Event of Default (i) described in
clauses (A), (B), (C), (D), (E), (F), (G), and/or (H) above at any time
prior to January 31, 2002; and/or (ii) at any time after January 31,
2002.
The undersigned acknowledges that Brunswick Corporation is relying on
this Consent and Waiver as a condition to its closing under the
Purchase Agreement. The execution and delivery of this document by the
undersigned and the effectiveness of this document is expressly
conditioned on all of the following occurring contemporaneously with
the execution and delivery of this document by the undersigned:
(1) Brunswick, the Company and the Subsidiaries acknowledging and
agreeing to the terms and provisions of this document by
executing in the signature blocks below; and
(2) Brunswick and the Company executing and delivering the
Purchase Agreement and all agreements, documents and
instruments relating to the Purchase Agreement; and
(3) Brunswick purchasing the Notes for at least $3,000,000.00; and
(4) The Company receiving the $3,000,000.00 from Brunswick as the
purchase price for the Notes in immediately available funds;
and
(5) Brunswick executing and delivering to the undersigned a
subordination agreement in the form attached hereto as Exhibit
B; and
(6) The Company and the Subsidiaries executing and delivering to
the undersigned all such agreements, documents and instruments
required by the undersigned in connection with this document
and the Loan Agreement;
(7) Deutsche Financial Services Corporationexecuting and
delivering a consent and waiver in the form attached hereto as
Exhibit C.
IN WITNESS WHEREOF, the undersigned has executed this Consent and
Waiver as of the 14th day of December, 2001.
TRANSAMERICA COMMERCIAL FINANCE CORPOARTION:
By:
------------------------------------
Its:
-----------------------------------
3
THE UNDERSIGNED ACKNOWLEDGE, AGREE AND CONSENT TO THE TERMS AND
PROVISIONS OF THE ABOVE CONSENT AND WAIVER:
BRUNSWICK CORPORATION
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
XXXXXX BOATS & MOTORS, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
XXXXXX BOATING CENTER GEORGIA, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
XXXXXX BOATING CENTER FLORIDA, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
ADVENTURE MARINE & OUTDOORS, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
4
ADVENTURE MARINE SOUTH, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
ADVENTURE BOAT BROKERAGE, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
TBC MANAGEMENT, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
TBC MANAGEMENT, LTD.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 0000
XXX XXXXXXXX, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
XXXXXX BOATING CENTER ARLINGTON, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
5
XXXXXX BOATING CENTER BEAUMONT, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
XXXXXX BOATING CENTER OKLAHOMA, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
XXXXXX BOATING CENTER TENNESSEE, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
XXXXXX XXXXXXX MARINE, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
FALCON MARINE, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
6
FALCON MARINE ABILENE, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
XXXXXX BOATING CENTER ALABAMA, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
XXXXXX BOATING CENTER LOUISIANA, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
XXXXXX BOATS & MOTORS BATON ROUGE, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
XXXXXX BOATING CENTER MISSISSIPPI, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
7
XXXXXX BOATING CENTER LITTLE ROCK, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 0000
XXX XXXXX XXXXXX XXXXXXXX, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
SHELBY MARINE CENTER, INC.
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
SHELBY MARINE PICKWICK, LLC
By:
-----------------------------------
Its:
----------------------------------
Date: December 14, 2001
8
SCHEDULE 1
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
X. X. Xxxxx
Xxx Xxxxx
Xxxxx Xxxxx
Exhibit A
Subordinated Note Purchase Agreement dated as of December 14, 2001
between Xxxxxx Boats & Motors, Inc. and Brunswick Corporation
Exhibit B
Subordination Agreement
Exhibit C
Consent and Waiver by Deutsche Financial Services Corporation
