EXHIBIT 10.75
CONSENT AND WAIVER UNDER
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This CONSENT UNDER AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Agreement") is entered into and effective as of March 7, 2002, by and
among Xxxxxx Boats & Motors, Inc. ("TRVS"), TBC Arkansas, Inc., Xxxxxx Boating
Center Arlington, Inc., Xxxxxx Boating Center Beaumont, Inc., Xxxxxx Boating
Center Oklahoma, Inc., Xxxxxx Boating Center Tennessee, Inc., Xxxxxx Xxxxxxx
Marine, Inc., Falcon Marine, Inc., Falcon Marine Abilene, Inc., Xxxxxx Boating
Center Alabama, Inc., Xxxxxx Boating Center Louisiana, Inc., Xxxxxx Boats &
Motors Baton Rouge, Inc., Xxxxxx Boating Center Mississippi, Inc., Xxxxxx
Boating Center Little Rock, Inc., Red River Marine Arkansas, Inc., Shelby Marine
Center, Inc., and Shelby Marine Pickwick, LLC (collectively and separately,
jointly and severally, referred to as, "Borrower"), and Deutsche Financial
Services Corporation ("DFS").
Recitals:
A. Borrowers and Lender are party to that certain Amended and Restated
Loan and Security Agreement, dated as of December 14, 2001 (as amended
from time to time, the "Loan Agreement").
B. Lender and Borrower have agreed to the provisions set forth herein on
the terms and conditions contained herein.
Agreement
Therefore, in consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged, Borrower
and the Lender hereby agree as follows:
1. Definitions. All references to the "Agreement" or the "Loan Agreement" in the
Loan Agreement and in this Agreement shall be deemed to be references to the
Loan Agreement as it may be amended, restated, extended, renewed, replaced, or
otherwise modified from time to time. Capitalized terms used and not otherwise
defined herein have the meanings given them in the Loan Agreement.
2. Effectiveness of Agreement. This Agreement shall become effective as of March
7, 2002, but only if this Agreement has been executed by Borrower and the
Lender.
3. Consent to Transaction.
3.1. Notwithstanding the terms of Section 10.1 (Change of Name, Etc.)
of the Loan Agreement, Lender hereby consents, subject to the conditions
contained herein, to:
(A) the execution and performance by TRVS of the Preferred Stock and Warrant
Purchase Agreement by and between TRVS and TMRC, L.L.P. a Missouri limited
partnership ("Tracker"), substantially in the form provided by counsel for TRVS
on Xxxxx 0, 0000 (xxx "Xxxxx Xxxxxxxx Xxxxxxxxx"),
(X) the adoption by TRVS of the Statement of Designations of 6% Series A
Cumulative Convertible Preferred Stock substantially in the form provided by
counsel for TRVS on March 5, 2002 (the "Statement of Designation"),
(C) the issuance by TRVS to Tracker of shares of 6% Series A Cumulative
Convertible Preferred Stock of Xxxxxx Boats & Motors, Inc., substantially as set
forth in the Stock Purchase Agreement provided by counsel for TRVS on Xxxxx 0,
0000,
(X) the issuance by TRVS to Tracker of the Warrant to Purchase Series A
Preferred of Xxxxxx Boats & Motors, Inc., substantially in the form provided by
counsel for TRVS on March 5, 2002 (the "Warrant"), and
(E) upon Tracker's exercise of the Warrant and its related payment of $3,000,000
in cash, TRVS' prepaying in full on approximately June 10, 2002 of all
outstanding principal plus accrued interest on TRVS' Convertible Subordinated
Promissory Note with Brunswick Corporation, a Delaware corporation, dated
December 14, 2001.
3.2. The foregoing consent is conditioned upon:
(A) TRVS on or before March 31, 2002, selling approximately 21,390 shares of its
6% Series A Cumulative Convertible Preferred Stock ("Series A Stock") to
Tracker, for a cash purchase price of approximately $2,139,000 pursuant to the
Stock Purchase Agreement and in accordance with the Statement of Designation,
and in accordance with any other documents or agreements required by the terms
thereof to be executed in connection therewith, and
(B) Transamerica Commercial Finance Corporation ("Transamerica") providing its
written consent under its loan documents with the Borrower to the matters set
forth above in Section 3.1.
If any of the foregoing conditions are not satisfied (as determined by Lender in
its commercially reasonable discretion), the foregoing consents will be
automatically revoked.
4. Representations and Warranties of Borrower. Each Borrower hereby represents
and warrants to Lender that (i) such Borrower's execution of this Agreement has
been duly authorized by all requisite action of such Borrower, (ii) no consents
are necessary from any third parties for such Borrower's execution, delivery or
performance of this Agreement, (iii) this Agreement, the Loan Agreement, and
each of the other Loan Documents, constitute the legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
terms, except to the extent that the enforceability thereof against Borrower may
be limited by bankruptcy, insolvency or other laws affecting the enforceability
of creditors rights generally or by equity principles of general application,
and (iv) after giving effect to this Agreement, there is no Default that has
occurred and is continuing which has not been waived in writing by Lender.
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5. Reaffirmation. Each Borrower hereby acknowledges and confirms that (i) the
Loan Agreement and the other Loan Documents remain in full force and effect,
(ii) such Borrower has no defenses to its obligations under the Loan Agreement
and the other Loan Documents, (iii) the Liens of the Lender granted under the
Loan Agreement secure all the Obligations, and continue in full force and
effect, and have the same priority as before this Agreement, and (iv) such
Borrower has no known claim against Lender arising from or in connection with
the Loan Agreement or the other Loan Documents.
6. Governing Law. This Agreement has been executed and delivered in St. Louis,
Missouri, and shall be governed by and construed under the laws of the State of
Missouri without giving effect to choice or conflicts of law principles
thereunder.
7. Section Titles. The section titles in this Agreement are for convenience of
reference only and shall not be construed so as to modify any provisions of this
Agreement.
8. Counterparts; Facsimile Transmissions. This Agreement may be executed in one
or more counterparts and on separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument. Signatures to this Agreement may be given by facsimile or other
electronic transmission, and such signatures shall be fully binding on the party
sending the same.
9. Fees and Expenses. Borrower shall promptly pay to Lender all reasonable fees,
expenses and other amounts owing to Lender under the Loan Agreement and the
other Loan Documents upon demand, including, without limitation, all reasonable
fees, costs and expenses incurred by Lender in connection with the preparation,
negotiation, execution, and delivery of this Agreement.
10. Incorporation By Reference. Lender and Borrower hereby agree that all of the
terms of the Loan Documents are incorporated in and made a part of this
Agreement by this reference.
11. Notice--Oral Commitments Not Enforceable.
The following notice is given pursuant to Section 432.045 of the Missouri
Revised Statutes; nothing contained in such notice shall be deemed to limit or
modify the terms of the Loan Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND
US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS
WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US,
EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
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follows}
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
XXXXXX BOATS & MOTORS, INC., as a Borrower
By:
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Name:
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Title:
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TBC ARKANSAS, INC., as a Borrower
By:
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Name:
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Title:
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XXXXXX BOATING CENTER ARLINGTON, INC., as a Borrower
By:
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Name:
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Title:
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XXXXXX BOATING CENTER BEAUMONT, INC., as a Borrower
By:
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Name:
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Title:
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XXXXXX BOATING CENTER OKLAHOMA, INC., as a Borrower
By:
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Name:
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Title:
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XXXXXX BOATING CENTER TENNESSEE, INC., as a Borrower
By:
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Name:
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Title:
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XXXXXX XXXXXXX MARINE, INC., as a Borrower
By:
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Name:
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Title:
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FALCON MARINE, INC., as a Borrower
By:
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Name:
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Title:
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FALCON MARINE ABILENE, INC., as a Borrower
By:
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Name:
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Title:
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XXXXXX BOATING CENTER ALABAMA, INC., as a Borrower
By:
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Name:
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Title:
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XXXXXX BOATING CENTER LOUISIANA, INC., as a Borrower
By:
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Name:
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Title:
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XXXXXX BOATS & MOTORS BATON ROUGE, INC., as a Borrower
By:
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Name:
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Title:
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XXXXXX BOATING CENTER MISSISSIPPI, INC., as a Borrower
By:
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Name:
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Title:
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XXXXXX BOATING CENTER LITTLE ROCK, INC., as a Borrower
By:
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Name:
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Title:
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RED RIVER MARINE ARKANSAS, INC., as a Borrower
By:
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Name:
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Title:
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SHELBY MARINE CENTER, INC., as a Borrower
By:
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Name:
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Title:
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SHELBY MARINE PICKWICK, LLC, as a Borrower
By:
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Name:
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Title:
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DEUTSCHE FINANCIAL SERVICES CORPORATION, as Lender
By:
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Name:
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Title:
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