Exhibit 10(r)
AMENDMENT TO LOAN AND SECURITY AGREEMENT DATED JUNE 26, 2000
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BETWEEN
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BROWN BROTHERS HARRIMAN & CO.
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AND
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WESTERBEKE CORPORATION
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This Amendment to Loan and Security Agreement (hereinafter, this
"Amendment") is made as of this __ day of September, 2000 by and between
WESTERBEKE CORPORATION, a Delaware corporation with its principal executive
office at 150 John Hancock Road, Myles Standish Industrial Park, Taunton,
Massachusetts (hereinafter, the Borrower") and BROWN BROTHERS HARRIMAN & 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
Loan and Security Agreement dated June 26, 2000 (hereinbefore and
hereinafter, the "Loan Agreement") pursuant to which, among other things,
the Lender extended in favor of the Borrower a Revolving Credit in the
original maximum principal amount of $5,000,000.00; and
WHEREAS, the Borrower has requested that the Lender (i) amend the Loan
Agreement to increase the Availability from $5,000,000.00 to $6,000,000.00,
and (ii)otherwise amend the Loan Agreement 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:
1. The 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, as modified by this
Amendment, are true as of the date hereof and that no Event of Default under
the Loan Agreement or any document executed in connection therewith has
occurred and is continuing.
2. The Borrower acknowledges and agrees that the Borrower has no
offsets, defenses, claims or counterclaims against the Lender with respect
to the Loan Agreement, 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.
3. Section 2-1(b)(i)(A) of the Loan Agreement is hereby amended by
deleting same in its entirety and substituting the following therefor:
"(A) Six Million Dollars($6,000,000.00).
Minus"
4. This Amendment shall become effective as of the date hereof upon
the satisfaction of the following conditions:
(a) Loan Documents. The Lender shall have received this
Amendment and an Amendment to Revolving Credit Note each
executed and delivered to the Lender by a duly authorized
officer of the Borrower.
(b) Corporate Proceedings of Borrower. The Lender shall have
received resolutions of the Borrower authorizing the
execution, delivery and performance of this Amendment and
all transactions contemplated hereby.
(c) Additional Assurances. The Borrower shall have delivered to
the Lender such additional documents, instruments or
agreements as the Lender may reasonably require in order to
give effect to the terms of this Amendment.
(d) Fees. The Borrower shall have paid to the Lender all fees
and expenses due by the Borrower to the Lender including
without limitation, all fees and expenses of the Lender's
attorneys.
5. 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 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.
6. Except as specifically modified herein, the Loan Agreement 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.
7. 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.
8. 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/ Carleton F. Bryant III
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Carleton F. Bryant, III
Executive Vice President,
Treasurer and Secretary
ACKNOWLEDGED AND AGREED:
BROWN BROTHERS HARRIMAN & CO.
By: /s/ Timothy T. Telman
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Timothy T. Telman
Vice President
