Exhibit 10(s)
AMENDMENT TO REVOLVING CREDIT NOTE
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DATED JUNE 26, 2000 MADE BY WESTERBEKE CORPORATION
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PAYABLE TO
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XXXXX BROTHERS XXXXXXXX & CO.
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This Amendment to Revolving Credit Note (hereinafter, this
"Amendment") is made as of this __ day of September, 2000 by and between
WESTERBEKE CORPORATION, a Delaware corporation with its principal place of
business at 000 Xxxx Xxxxxxx Xxxx, Xxxxx Xxxxxxxx Industrial Park, Taunton,
Massachusetts (hereinafter, the Borrower") and XXXXX BROTHERS XXXXXXXX &
CO. (hereinafter, the "Lender"), in consideration of the mutual covenants
contained herein and the benefits to be derived herefrom. Unless otherwise
specified herein, all capitalized terms shall have the same meaning as set
forth in the Loan Agreement (as defined hereinbelow).
W I T N E S S E T H:
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WHEREAS, the Borrower executed and delivered to the Lender a certain
Revolving Credit Note dated June 26, 2000 in the original principal amount
of $5,000,000.00 made by the Borrower payable to the Lender (hereinafter,
the "Note") in connection with a certain Loan and Security Agreement also
dated June 26, 2000 (hereinbefore and hereinafter, as amended of even date,
the "Loan Agreement") pursuant to which, among other things, the Lender
extended in favor of the Borrower a revolving line of credit in the
original maximum principal amount of $5,000,000.00; and
WHEREAS, the Borrower has requested that the Lender (i) amend the
Note to increase the maximum principal amount thereof from $5,000,000.00 to
$6,000,000.00, and (ii)otherwise amend the Note as provided for herein; and
WHEREAS, the Lender has indicated its willingness to do so, BUT ONLY
on the terms and conditions contained in this Amendment; and
WHEREAS, the Borrower has determined that this Amendment is in the
Borrower's best interest.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
9. The face amount of the Note is hereby amended and increased from
$5,000,000.00 to $6,000,000.00 and any and all references in the Note to
"$5,000,000.00" shall mean and refer to "$6,000,000.00".
10. Borrower hereby certifies to the Lender that, to the best of the
Borrower's knowledge and belief after due inquiry, the representations and
warranties contained in the Loan Agreement and the Note, as modified by
this Amendment, are true as of the date hereof and that no Event of Default
under the Note or Loan Agreement or any document executed in connection
therewith has occurred and is continuing.
11. The Borrower acknowledges and agrees that the Borrower has no
offsets, defenses, claims or counterclaims against the Lender with respect
to the Loan Agreement, the Note, this Amendment or any other document,
instrument or agreement executed and delivered by Borrower to the Lender in
connection therewith and, to the extent that the Borrower has any such
offsets, defenses, claims or counterclaims, the Borrower hereby
affirmatively WAIVES any such offsets, defenses, claims or counterclaims
and specifically RELEASES the Lender from any such liability on account
thereof.
12. This Amendment and all other documents, instruments or
agreements executed in connection herewith incorporate all discussions and
negotiations between the Borrower and the Lender, either expressed or
implied, concerning the matters included herein, any statute, custom, or
usage to the contrary notwithstanding. No such discussions or negotiations
shall limit, modify or otherwise affect the provisions hereof. No
modification, amendment, or waiver of any provision of this Amendment, the
Note or the Loan Agreement or any provision under any other agreement,
document or instrument between the Borrower and the Lender shall be
effective unless executed in writing by the party to be charged with such
modification, amendment or waiver, and if such party be the Lender, then by
a duly authorized officer thereof.
13. Except as specifically modified herein, the Note shall remain in
full force and effect as originally written and the Borrower hereby
ratifies and confirms all terms and conditions contained therein and
further ratifies and reaffirms all representations and warranties made
therein as of the date hereof.
14. This Amendment shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts and shall take effect as
a sealed instrument.
15. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original and all of which, when taken
together, shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals as of the date first written above.
WESTERBEKE CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx III
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Xxxxxxxx X. Xxxxxx, III
Executive Vice President,
Treasurer and Secretary
ACKNOWLEDGED AND AGREED:
XXXXX BROTHERS XXXXXXXX & CO.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Vice President
