Exhibit 10.55
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, between Xxxxxx Boats & Motors, Inc.,
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 Deutsche
Financial Services Corporation relating to a Credit Facility of up to
$60,000,000, 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
Debt for the purposes of the Loan Agreement. The undersigned confirms that no
Default (as defined in the Loan Agreement), or event which with the passage of
time would become a 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 Defaults and events in existence as of the date of this Consent and
Waiver which with the passage of time would become Defaults, 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 Defaults and events which with the
passage of time would become Defaults, 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 Defaults under the Loan
Agreement or any agreement, document or instrument entered into in connection
with or contemplated by the Loan Agreement:
(A) Any 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 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 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
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(C) Any 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 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 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 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 Default arising as a result of any termination of any
guaranty; or
(H) Any 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 Default; that the undersigned may not take any action at any time
to declare such violation as an 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 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 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.
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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) Transamerica Commercial Finance Corporation executing 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.
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:
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Its:
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THE UNDERSIGNED ACKNOWLEDGE, AGREE AND CONSENT TO THE TERMS AND
PROVISIONS OF THE ABOVE CONSENT AND WAIVER:
BRUNSWICK CORPORATION
By:
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Its:
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Date: December 14, 2001
XXXXXX BOATS & MOTORS, INC.
By:
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Its:
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Date: December 14, 2001
XXXXXX BOATING CENTER GEORGIA, INC.
By:
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Its:
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Date: December 14, 2001
XXXXXX BOATING CENTER FLORIDA, INC.
By:
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Its:
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Date: December 14, 2001
ADVENTURE MARINE & OUTDOORS, INC.
By:
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Its:
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Date: December 14, 2001
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ADVENTURE MARINE SOUTH, INC.
By:
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Its:
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Date: December 14, 2001
ADVENTURE BOAT BROKERAGE, INC.
By:
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Its:
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Date: December 14, 2001
TBC MANAGEMENT, INC.
By:
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Its:
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Date: December 14, 2001
TBC MANAGEMENT, LTD.
By:
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Its:
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Date: December 14, 0000
XXX XXXXXXXX, INC.
By:
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Its:
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Date: December 14, 2001
XXXXXX BOATING CENTER ARLINGTON, INC.
By:
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Its:
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Date: December 14, 2001
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XXXXXX BOATING CENTER BEAUMONT, INC.
By:
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Its:
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Date: December 14, 2001
XXXXXX BOATING CENTER OKLAHOMA, INC.
By:
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Its:
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Date: December 14, 2001
XXXXXX BOATING CENTER TENNESSEE, INC.
By:
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Its:
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Date: December 14, 2001
XXXXXX XXXXXXX MARINE, INC.
By:
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Its:
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Date: December 14, 2001
FALCON MARINE, INC.
By:
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Its:
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Date: December 14, 2001
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FALCON MARINE ABILENE, INC.
By:
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Its:
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Date: December 14, 2001
XXXXXX BOATING CENTER ALABAMA, INC.
By:
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Its:
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Date: December 14, 2001
XXXXXX BOATING CENTER LOUISIANA, INC.
By:
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Its:
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Date: December 14, 2001
XXXXXX BOATS & MOTORS BATON ROUGE, INC.
By:
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Its:
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Date: December 14, 2001
XXXXXX BOATING CENTER MISSISSIPPI, INC.
By:
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Its:
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Date: December 14, 2001
XXXXXX BOATING CENTER LITTLE ROCK, INC.
By:
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Its:
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Date: December 14, 2001
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RED RIVER MARINE ARKANSAS, INC.
By:
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Its:
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Date: December 14, 2001
SHELBY MARINE CENTER, INC.
By:
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Its:
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Date: December 14, 2001
SHELBY MARINE PICKWICK, LLC
By:
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Its:
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Date: December 14, 2001
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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 Transamerica Commercial Finance Corporation
