EXHIBIT 10.73
AMENDMENT NO. 3 TO XXXXXX BOATS & MOTORS, INC.
LOAN AND SECURITY AGREEMENT
Amendment No. 3 to Loan and Security Agreement dated as of March 13,
2002, by and between TRANSAMERICA COMMERCIAL FINANCE CORPORATION ("Lender") and
the Persons listed on Schedule I attached hereto (individually, a "Borrower" and
collectively, the "Borrowers").
P R E A M B L E:
- - - - - - - -
Pursuant to that certain Loan and Security Agreement dated as of
January 28, 2000, as amended from time to time by and among Lender and Borrowers
(collectively, the "Loan Agreement"), Lender made certain financing available to
Borrowers. Borrowers have requested Lender to modify certain terms and
provisions of the Documents. Lender has agreed to do so, upon the terms and
conditions of this Amendment.
NOW, THEREFORE, in consideration of the premises which are incorporated
herein by this reference and constitute an integral part of this Amendment, the
execution and delivery of this Amendment and the mutual covenants and agreements
hereafter set forth, the parties hereto agree as follows:
1. The "Documents", as defined in Section 1.1(S) of the Loan Agreement,
shall include, without limitation, the Loan Agreement, as amended by this
Amendment and any other amendments and/or restatements to the Loan Agreement and
the Guaranties, as confirmed, reaffirmed and amended by the Confirmations of
Guaranties, and as may be further confirmed, reaffirmed and amended from time to
time.
2. New Sections 1.1(QQQQ) through (TTTT) are added to the Loan
Agreement as follows:
"(QQQQ) "6% Series A Preferred Stock Statement of
Designations" shall mean that certain Statement of
Designations of 6% Series A Convertible Preferred Stock of
Parent, a copy of which is attached hereto as Exhibit
1.1(QQQQ).
(RRRR) "Tracker" shall mean TMRC, L.L.P., a Missouri limited
liability partnership.
(SSSS)"Tracker Escrow Agreement" shall mean that certain
Escrow Agreement dated as of the date of Amendment No. 3 to
this Agreement by and among Xxxxxx Boats & Motors, Inc,
Tracker and Jenkens & Xxxxxxxxx, PC, a copy of which is
attached hereto as Exhibit 1.1(SSSS).
(TTTT)"Tracker Stock Purchase Agreement" shall mean that
certain Preferred Stock and Warrant Purchase Agreement dated
as of the date of Amendment No. 3 to this Agreement by and
among Parent and Tracker, a copy of which is attached hereto
as Exhibit 1.1(TTTT).
(UUUU) "Tracker Warrant" shall mean that certain Warrant for
30,000 shares of Series A Cumulative Convertible Preferred
Stock of Parent to be issued pursuant to the Tracker Stock
Purchase Agreement and in the form attached as Exhibit B to
the Tracker Stock Purchase Agreement.
3. Contemporaneously with the execution and delivery of this Amendment,
the Guarantors shall execute and deliver to Lender confirmations, reaffirmations
and amendments of their Guaranties in form and manner satisfactory to Lender
(individually, a "Confirmation of Guaranty" and collectively, the "Confirmations
of Guaranty"). All references to each Guaranty in the Loan Agreement shall mean
such Guaranty, as confirmed, reaffirmed and amended by its applicable
Confirmation of Guaranty.
4. Section 3.11 of the Loan Agreement is amended to read as follows:
Section 3.11 Real Estate Liens in Favor of Lender. On or
before April 30, 2002, Borrowers will (i) execute or cause to
be executed mortgages or deeds of trust, as applicable,
promissory notes as may be required under local real estate
law, and similar and related documents necessary to perfect
liens in favor of Lender on such parcels of real estate
(collectively "Mortgages") in favor of Lender on each parcel
of real estate owned by any of the Xxxxxx Entities; and (ii)
cooperate with Lender (with costs to be paid by Borrowers) on
all preliminary work for such Mortgages, whether drafting
mortgages, deeds of trust, promissory notes and related
documents, obtaining appraisals, surveys, environmental site
assessments, or otherwise, all to be completed in form and
manner satisfactory to Lender on or before April 30, 2002,
except for the drafting of mortgages, deeds of trust,
promissory notes and related documents which shall be
completed in form and manner satisfactory to Lender on or
before April 30, 2002. Borrower will provide Lender by March
31, 2002 copies of all current mortgages and deeds of trust on
such property for Lender's review. Lender will release these
Mortgages parcel by parcel at the time of any sale or
sale-leaseback (i) if Borrowers have repaid in full all of the
Liabilities, or (ii) if Borrowers have not repaid all of the
Liabilities, but no Event of Default exists or will exist with
the giving of notice, the passage of time, or both, and, in
the sole determination of Lender, Borrowers have sufficient
liquidity and Lender's collateral position is satisfactory to
Lender.
5. New Sections 4.1(T) through (U) are added to the Loan Agreement as
follows:
"(T) Tracker Stock Purchase Agreement. The Tracker Stock
Purchase Agreement attached hereto as an exhibit is a true and
correct copy of the Tracker Stock Purchase Agreement and
represents the complete agreement of Tracker to purchase
50,000 shares of Parent 6% Series A Cumulative Convertible
Preferred Stock and the Warrant and there have been no
changes, modifications, alterations or amendments to the
Tracker Stock Purchase Agreement.
(U) Tracker Warrant. The Tracker Warrant attached hereto as an
exhibit is a true and correct copy of the Tracker Warrant and
represents the complete agreement of Tracker to purchase
30,000 shares of Parent 6% Series A Cumulative Convertible
Preferred Stock upon exercise of the Warrant and there have
been no changes, modifications, alterations or amendments to
the Tracker Warrant.
(V) Tracker Escrow Agreement. The Tracker Escrow Agreement
attached hereto as an exhibit is a true and correct copy of
the Tracker Escrow Agreement and represents the complete
agreement of Tracker to give to the escrow agent under the
Tracker Escrow Agreement the notice to exercise the Warrant
and purchase 30,000 shares of Parent 6% Series A Cumulative
Convertible Preferred Stock, with the proceeds of such
purchase used to payoff the Brunswick Financing and there have
been no changes, modifications, alterations or amendments to
the Tracker Escrow Agreement.
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(W) 6% Series A Preferred Stock Statement of Designations. The
6% Series A Preferred Stock Statement of Designations attached
hereto as an exhibit is a true and correct copy of the 6%
Series A Preferred Stock Statement of Designations and
represents the complete terms and provisions of Parent 6%
Series A Cumulative Convertible Preferred Stock and there have
been no changes, modifications, alterations or amendments to
the 6% Series A Preferred Stock Statement of Designations."
6. Section 5.1(K) of the Loan Agreement is amended to read as follows:
"(K) Stock. It will neither purchase, retire, redeem or
otherwise acquire any shares nor issue any additional shares
of any class of capital stock of it, except (i) that it may
issue additional shares of stock in connection with any
acquisition assets of another Person permitted under this
Agreement; and (ii) the repurchase of up to $1,000,000.00 in
the aggregate of its capital stock in the open market; and
(iii) for the issuance of 6% Series A Cumulative Convertible
Preferred Stock or common stock converted thereunder of Parent
to Tracker pursuant to the Tracker Stock Purchase Agreement
and the Tracker Warrant or as otherwise set forth in the 6%
Series A Preferred Stock Statement of Designations; and (iv)
the issuance of 528,584 shares of common stock of Parent to
certain existing shareholders of common stock of Parent with
respect to the potential conversion of the Initial Cash
Infusion by such shareholders into common stock of Parent
pursuant to those certain Subordinated Note Purchase Agreement
w/ Shareholder Purchasers dated as of December 14, 2001."
7. Section 5.1 (KK) of the Loan Agreement is amended to read as
follows:
"(KK) Lock Box. By no later than April 30, 2002, Borrowers and
the financial institution at which Borrowers have established
a Lock Box Account to collect monies solely for the Borrowers
shall execute and deliver to Lender such agreements, documents
and instruments satisfactory to Lender in order for Lender at
any time, in Lender's discretion, following the time when
either an Event of Default occurs or will occur with the
giving of notice, the passage of time or both, to require such
Lock Box Account be under the sole control of Lender and have
all payments received in such Lock Box Account to be paid to
Lender."
8. New Sections 5.1(MM) through (PP) are added to the Loan Agreement as
follows:
"(MM) Tracker Stock Purchase Agreement. The Tracker Stock
Purchase Agreement will not be materially amended, altered or
terminated without the prior written consent of Lender.
Borrowers shall deliver to Lender copies of all amendments,
alterations or terminations of the Tracker Stock Purchase
Agreement.
(NN) Tracker Warrant. The Tracker Warrant will not be
materially amended, altered or terminated without the prior
written consent of Lender. Borrowers shall deliver to Lender
copies of all amendments, alterations or terminations of the
Tracker Warrant.
(OO) Tracker Escrow Agreement. The Tracker Escrow Agreement
will not be materially amended, altered or terminated without
the prior written consent of Lender. Borrowers shall deliver
to Lender copies of all amendments, alterations or
terminations of the Tracker Escrow Agreement.
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(PP) 6% Series A Preferred Stock Statement of Designations.
The 6% Series A Preferred Stock Statement of Designations will
not be materially amended, altered or terminated without the
prior written consent of Lender. Borrowers shall deliver to
Lender copies of all amendments, alterations or terminations
of the 6% Series A Preferred Stock Statement of Designations."
9. Sections 7.1(S) through (T) of the Loan Agreement are amended to
read as follows:
"(S) At any time any Person or group of Persons acting in
concert directly or indirectly purchases, transfers, sells or
assigns 30% or more of the shares of common stock of Parent
then outstanding; provided, however, that the purchase of the
6% Series A Cumulative Convertible Preferred Stock or common
stock converted thereunder in Parent by Tracker pursuant to
the Tracker Stock Purchase Agreement and the Tracker Warrant
and the transfer of such stock by Tracker to any affiliate of
Tracker that obtains ownership pursuant to an allowed transfer
under the Tracker Stock Purchase Agreement shall not
constitute an Event of Default pursuant to this clause (S);
(T) At any time any Person or group of Persons acting in
concert directly or indirectly owns, controls or has the power
to vote more than 50% of the shares of common stock of Parent
then outstanding; provided, however, that any ability by
Tracker or any affiliate of Tracker that is a permitted
assignee of Tracker pursuant to the Tracker Stock Purchase
Agreement to vote, own or control Tracker's 6% Series A
Cumulative Convertible Preferred Stock or common stock
converted thereunder in Parent in any manner whatsoever
pursuant to the 6% Series A Preferred Stock Statement of
Designation or to control the vote of directors of Parent
pursuant to the 6% Series A Preferred Stock Statement of
Designations shall not constitute an Event of Default pursuant
to this clause (T); "
10. All representations and warranties made to the Lender in the
Documents are hereby restated to the Lender and all of such representations and
warranties remain true and correct as of the date of this Amendment.
11. All of the pledges, assignments, transfers, conveyances, mortgages
and grants of security interest of any property given to Lender by any Borrower
or any Guarantor pursuant to the Documents, including, but not limited to,
pursuant to Article Three of the Loan Agreement, have constituted and shall and
hereinafter do continue to constitute pledges, assignments, transfers,
conveyances, mortgages and grants of security interests of property to secure
the Liabilities.
12. Lender's obligation to enter into this Amendment is subject to the
fulfillment of each and every one of the following conditions prior to, or
contemporaneously with the execution and delivery of this Amendment:
A. All of the conditions precedent set forth in the Loan
Agreement shall have been met; and
B. Lender shall have received such instruments, agreements and
documents in form and manner satisfactory to Lender and its counsel as Lender
may reasonably request and where applicable, duly executed and recorded,
including, but not limited to, the following:
(i) Certificates of the Secretaries of Borrowers and
certifying as to (a) all corporate actions taken and
consents made by Borrowers to authorize the
transactions provided for or contemplated under this
Amendment and the execution, delivery and performance
of the Documents; and (b) the names of the officers
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or employees of Borrowers authorized to sign the
Documents, together with a sample of the true
signature of each such Person. (Lender may
conclusively rely on such certificates until formally
advised by a like certificate of any changes
therein.);
(ii) the Confirmations of Guaranties;
(iii) Certificates of good standing for Borrowers in the
jurisdiction of their incorporation;
(iv) Such other instruments or documents as the Lender may
reasonably request.
C. No Event of Default shall have occurred and be continuing,
may occur with the giving of notice, the passage of time or both.
13. All references to the Loan Agreement in any of the Documents shall
mean the Loan Agreement, as amended by this Amendment and as may be further
amended and/or restated from time to time.
14. Borrowers agree to pay all reasonable fees and out-of-pocket
expenses of Lender (including, but not limited to, outside counsel to Lender and
paralegals) in connection with the preparation of this Amendment and all
Documents relating to this Amendment.
15. The Loan Agreement (as amended by this Amendment), together with
the Documents, contain the entire agreement between the parties hereto with
respect to the transactions contemplated herein and supersede all prior
representations, agreements, covenants and understandings, whether oral or
written, related to the subject matter of the Loan Agreement. Except as
specifically set forth in the Agreement, Lender makes no covenants to any
Borrower, including, but not limited to, any other commitments to provide any
additional financing to any Borrower.
16. Notwithstanding anything else contained in this Amendment, the
Paragraphs 2, 5, 6, 8 and 9 shall only be deemed effective and have force and
effect when and only when Lender shall have received on or before March 31, 2002
evidence of the purchase by Tracker of 21,390 shares of 6% Series A Cumulative
Convertible Preferred Stock in Parent for $2,139,000.00 and the issuance by
Tracker Marine, L.L.C. of its firm, binding and irrevocable commitment letter
pursuant to Section 2.1(b)(iii) of the Tracker Stock Purchase Agreement all in
form and manner satisfactory to Lender and its counsel; provided, however, that
if the above shall not be delivered to Lender on or before March 31, 2002, then
such Paragraphs 2, 5, 6, 8 and 9 shall be deemed null and void, with the
remaining paragraphs of this Amendment remaining in full force and effect.
17. Each of the Borrowers hereby release, except in the instance of
gross negligence and wilful misconduct, the Lender and its officers, directors,
employees, agents, attorneys, personal representatives, successors, predecessors
and assigns from all manner of actions, cause and causes of action, suits,
deaths, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands, whatsoever, in law or in equity, and
particularly, without limiting the generality of the foregoing, in connection
with the Documents and any agreements, documents and instruments relating to the
Documents and the administration of the Documents, all indebtedness, obligations
and liabilities of any of the Xxxxxx Entities to the Lender and any agreements,
documents and instruments relating to the Documents and/or the Borrower
Documents (collectively, the "Claims"), which any of the Borrowers now have
against the Lender or ever had, or which might be asserted by their heirs,
executors, administrators, representatives, agents, successors, or assigns based
on any Claims which exist on or at any time prior to the date of this Amendment.
Each Borrower expressly acknowledges and agrees that each Borrower has have been
advised by counsel in connection with this Amendment and that each Borrower
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understands that this Paragraph constitutes a general release of the Lender and
that they each intend to be fully and legally bound by the same. Each Borrower
further expressly acknowledges and agrees that this general release shall have
full force and effect notwithstanding the occurrence of a Default or Event of
Default (however such terms are defined) pursuant to any of the Documents.
18. This Amendment may be executed in any number of counterparts, each
of which counterpart, once they are executed and delivered shall be deemed to be
an original and all of which counterparts taken together shall constitute but
one in the same amendment.
19. Except as specifically amended and modified by this Amendment, (A)
the Loan Agreement shall remain in full force and effect and is hereby restated
and incorporated herein by this reference; and (B) all terms defined in the Loan
Agreement shall have the same meanings herein as therein.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first above written.
LENDER: TRANSAMERICA COMMERCIAL FINANCE CORPORATION
------
By:_________________________________
Title: President
BORROWERS: XXXXXX BOATS & MOTORS, INC.
---------
By:________________________________
Title: President
XXXXXX BOATING CENTER GEORGIA, INC.
By:________________________________
Title: President
XXXXXX BOATING CENTER FLORIDA, INC.
By:__________________________________
Title: President
ADVENTURE MARINE & OUTDOORS, INC.
By:__________________________________
Title: President
ADVENTURE MARINE SOUTH, INC.
By:________________________________
Title: President
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ADVENTURE BOAT BROKERAGE, INC.
By:__________________________________
Title: President
TBC MANAGEMENT, INC.
By:__________________________________
Title: President
TBC MANAGEMENT, LTD.
By:__________________________________
Title: President
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