Exhibit 99(d)(5)
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
made and entered into effective as of October ___, 2004 by and among (A) XXXXXX
BOATS & MOTORS, INC. a Texas corporation, XXXXXX BOATING CENTER FLORIDA, INC., a
Texas corporation, XXXXXX BOATS & MOTORS BATON ROUGE, INC., a Louisiana
corporation, XXXXXX BOATING CENTER OKLAHOMA, INC., an Texas corporation, XXXXXX
BOATING CENTER MISSISSIPPI, INC., a Texas corporation, XXXXXX BOATING CENTER
LOUISIANA, INC., a Louisiana corporation, and XXXXXX BOATING CENTER GEORGIA,
INC., a Texas corporation (collectively, "Borrower"; all references to Borrower
or "the undersigned" shall mean each of them, jointly and severally,
individually and collectively, and the successors and assigns of each) and (B)
TMRC, L.L.P., a Missouri limited liability company ("Lender"), successor in
interest to (i) Xxxxxxx Funding, Inc. and Anglo-American Servicing LLC, as
"Co-Agents" for the lenders identified in the Loan Agreement defined herein and
(ii) such lenders (Co-Agents along with such lenders sometimes collectively
referred to herein as "Assignor").
RECITALS:
WHEREAS, Borrower and Assignor entered into that certain Loan and Security
Agreement dated as of November 10, 2003 (as heretofore and hereafter amended,
modified or restated from time to time, the "Loan Agreement"; capitalized terms
used and not otherwise defined herein shall have the meaning ascribed to them in
the Loan Agreement); and
WHEREAS, pursuant to the Loan Agreement, Borrower is the maker of that
certain Promissory Note dated as of even date therewith, made payable to the
order of Assignor in the maximum principal amount of $5,300,000 (the "Xxxxxxx
Note"); and
WHEREAS, Co-Agents and Lender entered into that certain Assignment of
Loan, Promissory Note and Related Agreements dated as of October 1, 2004 (the
"Assignment") through which Assignor assigned all Assignor's right, title and
interest in and to the Loan Agreement and the Xxxxxxx Note along with the
related Loan Agreements defined in the Assignment.
WHEREAS, Borrower and Lender desire to amend the Loan Agreement and the
Xxxxxxx Note concurrent with the execution of the Assignment pursuant to the
terms hereof.
NOW, THEREFORE in consideration of the premises and of the covenants and
agreements herein contained, the parties hereto agree as follows:
1. Amendments to Loan Agreement.
(a) All references to Xxxxxxx Funding, Inc., Anglo-American
Servicing, LLC, "Co-Agents" and/or "Lender" in the Loan Agreement shall
hereafter be deemed to refer to Lender, as successor in interest.
(b) All references in the Loan Agreement to "November 30, 2006" with
respect to the maturity date under the note referenced therein are hereby
deleted in their entirety and replaced with "April 1, 2005."
(c) Schedule D of the Loan Agreement is hereby deleted in its
entirety.
(d) Section 2 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following new Section 2:
"2. The Loan
(a) Provided that no default under the Loan Documents shall
have occurred and be continuing, Lender agrees, subject to the terms
and conditions hereinafter set forth, to advance to Borrower up to
the Maximum Amount (defined below), which amount shall be used by
Borrower only for working capital or to refinance the total amount
owed by Borrower to Lender under the Tracker Note defined in
subparagraph (b).
(b) In conjunction with the execution hereof, Lender shall
advance and is hereby authorized to advance under the Loan Agreement
Five Hundred One Thousand Two Hundred Thirty-Three and 00/100
Dollars ($501,233.00) to Lender to payoff all outstanding principal
and interest under that certain First Amended and Restated
Promissory Note dated September 22, 2004 between Borrower and TMRC,
L.L.P. (the "Tracker Note"). In addition to such advance, the amount
outstanding under the Xxxxxxx Note at the time of the closing of the
Assignment shall remain due under and incorporated in the Restated
Note (defined below) (which amount, including interest thereon,
being Two Hundred Fifty Thousand Six Hundred Sixty Three and 70/100
Dollars ($250,663.70)).
(c) Borrower shall have the right to borrow, repay and
reborrow, from time to time, the principal amount evidenced by this
Note, on the condition that (a) no default under the Loan Documents
shall have occurred and be continuing, (b) Lender has not made a
demand for full payment under this Note and (c) the unpaid principal
balance due under this Note at any one time does not exceed One
Million Two Hundred Fifty Thousand and 00/100 Dollars
($1,250,000.00) (the "Maximum Amount"). All such borrowings shall be
secured by the Mortgage."
(e) All references in the Loan Agreement to the Note are hereby
deemed to reference the Restated Note (defined below).
2. Amendments to the Note. Borrower shall execute and deliver a First
Amended and Restated Promissory Note in the form attached hereto as Exhibit A
(the "Restated Note") which Restated Note amends and restates the Xxxxxxx Note
and shall hereafter be deemed referenced upon all references to the "Note" in
the Loan Agreement.
3. Conditions to Effectiveness of this Amendment. Notwithstanding any
provision contained herein to the contrary, this Amendment shall not be
effective until (i) the Lender receives the Assignment, fully executed and in
form and substance satisfactory to Lender in its sole discretion, and (ii)
Borrower shall have delivered the following to Lender, each in form and
substance acceptable to Lender:
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(a) confirmation to Lender's satisfaction that Lender continues to
maintain a first priority security interest in the Collateral;
(b) A mortgagee's title insurance policy insuring as of the date hereof
Lender's interest in the real estate described in the Mortgage in form and
substance satisfactory to Lender.
(c) such other certifications and documents and the performance of such
other acts as Lender may reasonably request.
5. Representations and Warranties of Borrowers. To induce Lender to enter
into this Amendment, Borrower hereby represents and warrants to Lender that:
(a) the execution, delivery and performance by Borrower of this
Amendment, the Note and the other Loan Documents are within the company power of
Borrower, have been duly authorized by all necessary action and require no
action by or in respect of, or filing with, any governmental or regulatory body,
agency or official or any other third party. The execution, delivery and
performance by Borrower of this Amendment, the Note and the other Loan Documents
do not conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a default under or result in any violation of, and
Borrower is not now in default under or in violation of, the terms of the
Certificate or Articles of Organization or Operating Agreement of Borrower, any
applicable law, any rule, regulation, order, writ, judgment or decree of any
court or governmental or regulatory agency or instrumentality, or any agreement,
document or instrument to which Borrower is a party or by which it is bound or
to which it is subject;
(b) this Amendment, the Note and the other Loan Documents have been
duly executed and delivered by Borrower and constitute the legal, valid and
binding obligations of Borrower enforceable in accordance with their respective
terms; and
(c) as of the date hereof, all of the covenants, representations and
warranties of Borrower set forth in the Loan Agreement are, and on the date of
the effectiveness of this Amendment will be, true and correct and as of the date
hereof, there does not exist, and on the date of effectiveness of this Amendment
there will not exist, a "Default" or "Event of Default" or default or event of
default or any event which would constitute a "Default" or "Event of Default" or
default or event of default but for the passage of time or for the giving of
notice, or both under or within the meaning of the Loan Agreement or any other
Loan Document.
6. Confirmation of Loan Documents. Except to the extent amended by this
Amendment, the Restated Note or the other documents delivered in connection
herewith, all of the terms, provisions, conditions, agreements, covenants,
representations, warranties and powers contained in the Loan Agreement and the
other Loan Documents shall be and remain in full force and effect and the same
are hereby ratified and confirmed.
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7. Conflict. In the event of any inconsistency or conflict between this
Amendment and the Loan Agreement, the terms, provisions and conditions of this
Amendment shall govern and control.
8. Miscellaneous.
(a) The Loan Agreement, the Note and all other Loan Documents are
hereby amended wherever necessary to reflect the foregoing amendments.
(b) This Amendment shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns.
(c) This Amendment shall be construed in accordance with and be
governed by the laws of the State of Missouri.
(d) Borrower agrees to execute such other and further documents,
instruments and agreements as Lender may request to implement the
provisions of this Amendment.
(e) Wherever possible each provision of this Amendment shall be
interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Amendment shall be prohibited or invalid
under applicable law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Amendment.
STATUTORY NOTICE:
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 REGARDLESS OF THE LEGAL THEORY UPON WHICH IT IS BASED, THAT
IS IN ANY WAY RELATED TO THIS NOTE OR THE INDEBTEDNESS EVIDENCED BY THIS NOTE.
TO PROTECT YOU (BORROWER) AND US (Lender) 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date set forth above.
BORROWER:
XXXXXX BOATS & MOTORS, INC.
By:
-------------------------------------
Title:
----------------------------------
Name:
-----------------------------------
XXXXXX BOATING CENTER FLORIDA, INC.
By:
-------------------------------------
Title:
----------------------------------
Name:
-----------------------------------
XXXXXX BOATS & MOTORS BATON ROUGE, INC.
By:
-------------------------------------
Title:
----------------------------------
Name:
-----------------------------------
XXXXXX BOATING CENTER OKLAHOMA, INC.
By:
-------------------------------------
Title:
----------------------------------
Name:
-----------------------------------
XXXXXX BOATING CENTER MISSISSIPPI, INC.
By:
-------------------------------------
Title:
----------------------------------
Name:
-----------------------------------
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XXXXXX BOATING CENTER LOUISIANA, INC.
By:
-------------------------------------
Title:
----------------------------------
Name:
-----------------------------------
XXXXXX BOATING CENTER GEORGIA, INC.
By:
-------------------------------------
Title:
----------------------------------
Name:
-----------------------------------
LENDER:
TMRC, L.L.P.
By:
-------------------------------------
Title:
----------------------------------
Name:
-----------------------------------
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EXHIBIT A
FIRST AMENDED AND RESTATED NOTE
THIS IS NOT A NOVATION
$5,300,000.00 October ___, 2004
FOR VALUE RECEIVED, the undersigned, XXXXXX BOATS & MOTORS, INC., XXXXXX
BOATING CENTER FLORIDA, INC., XXXXXX BOATING CENTER OKLAHOMA, INC., XXXXXX
BOATING CENTER MISSISSIPPI, INC., and XXXXXX BOATING CENTER GEORGIA, INC., all
of the foregoing being Texas Corporations, AND XXXXXX BOATS & MOTORS BATON
ROUGE, INC., and XXXXXX BOATING CENTER LOUISIANA, INC., both being Louisiana
corporations, all of the foregoing having an office at 00000 Xxxxx Xxxxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000 (collectively,"Borrower"), promise to pay to the order
of TMRC, L.L.P., a Missouri limited liability partnership, (successor in
interest to (i) Xxxxxxx Funding, Inc. and Anglo-American Servicing LLC, as
"Co-Agents" for the lenders identified in the Loan Agreement defined herein and
(ii) such lenders), located at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx
00000 ("Lender"), the principal sum of FIVE MILLION THREE HUNDRED THOUSAND AND
00/100 DOLLARS ($5,300,000.00), or so much thereof as may be advanced by Lender
to Borrower from time to time in accordance with the Loan Agreement (defined
below) (the "Principal Amount") together with interest on the unpaid Principal
Amount thereof computed from the date advanced (the "Commencement Date"), at the
rates provided herein until April 1, 2005, (the "Maturity Date"); provided,
however, that from and after (i) the Maturity Date, whether upon stated
maturity, acceleration or otherwise or (ii) the date on which the interest rate
hereunder is increased to the Default Rate (as hereinafter defined) as provided
herein, such additional interest shall be computed at the Default Rate.
As used herein, the term "Default Rate" shall mean a rate of interest of
twenty-five percent (25.0%) per annum, but in no event shall the Default Rate be
in excess of the Maximum Rate (as hereinafter defined).
If any payment of interest is not paid on or before the due date for such
payment, a late charge equal to the lesser of ten percent (10%) of such overdue
payment or the maximum amount permitted by applicable law shall automatically
become due to the holder of this promissory note (as this note may be amended,
restated, extended, renewed, replaced, or otherwise modified from time to time,
this "Note"), subject, however, to the limitation that late charges may be
assessed only once on each overdue payment. Said late charges do not constitute
interest and shall constitute compensation to the holder of this Note for
collection and co-lender administration costs incurred hereunder. In addition,
if any payment of principal or interest is not paid when due, the holder of this
Note shall have the right, upon notice to Borrower, to increase the rate of
interest per annum on all amounts outstanding to the Default Rate and, upon said
notice, such rate increase shall be effective retroactively as of the date from
which interest on the overdue payment was calculated and shall remain in force
and effect for so long as such default shall continue. Notwithstanding the
foregoing, in the event any default is cured prior to notification by Lender of
such rate increase then the rate may not be retroactively amended. This
paragraph shall not be construed as an agreement or privilege to extend the due
date of any payment, nor as a waiver of any other right or remedy accruing to
the holder of this Note by reason of any default.
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Principal and interest hereunder shall be payable as follows:
(a) On November 1, 2004 and on the 1st day of each month thereafter
through and including April 1, 2005, Borrower shall pay interest only at the
rate of twelve percent (12%) per annum on the Principal Amount outstanding
hereof; and
(b) All principal, interest and other sums due hereunder, shall be due and
payable on the Maturity Date.
Each payment shall be credited first to unpaid interest, and the balance,
if any, to the reduction of principal, provided that in the event payments of
principal or interest are past due or in default then each payment shall be
credited first, to Lender's reasonable and customary collection expenses, next
to late charges, next to any past due interest then unpaid, and the balance, if
any, to any past due reduction of principal then unpaid. The interest on this
Note shall be calculated on the basis of a 30-day month and a 360-day year.
This Note may be prepaid in whole or in part at any time, without penalty
or premium, it being understood and agreed that, except as expressly provided
herein, Borrower shall not be entitled, by virtue of any prepayment or
otherwise, to a refund of the Fee (as described in that certain Loan and
Security Agreement dated as of September 10, 2003 between Borrower and Co-Agent,
hereinafter, as heretofore or hereafter amended, restated or modified from time
to time, the "Loan Agreement"; terms used herein and not otherwise defined shall
have their respective meanings set forth in the Loan Agreement), interest, any
other fees, points, charges and the like paid by Borrower to Lender in
connection with the loan hereunder (the "Loan") and for fees and expenses
incurred by Lender in making the Loan, all of which payments shall be retained
by Lender from and after the date each such payment is made hereunder.
Borrower and each surety, endorser and guarantor hereof hereby waive all
demands for payment, presentations for payment, notices of intention to
accelerate maturity, notices of acceleration of maturity, demand for payment,
protest, notice of protest and notice of dishonor, to the extent permitted by
law. Borrower further waives trial by jury. No extension of time for payment of
this Note or any installment hereof, no alteration, amendment or waiver of any
provision of this Note and no release or substitution of any collateral securing
Borrower's obligations hereunder shall release, modify, amend, waive, extend,
change, discharge, terminate or affect the liability of Borrower under this
Note.
Any forbearance by the holder of this Note in exercising any right or
remedy hereunder or under any other agreement or instrument in connection with
this Loan or otherwise afforded by applicable law, shall not be a waiver or
preclude the exercise of any right or remedy by the holder of this Note. The
acceptance by the holder of this Note of payment of any sum payable hereunder
after the due date of such payment shall not be a waiver of the right of the
holder of this Note to require prompt payment when due of all other sums payable
hereunder or to declare a default for failure to make prompt payment.
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If this Note is placed in the hands of an attorney for collection,
Borrower shall pay all costs incurred and reasonable attorneys' fees for legal
services in the collection effort whether or not suit be brought. In the event
that either Borrower or Lender shall bring suit against the other demanding
performance of enforcement of other obligations herein or hereunder, then the
prevailing party shall be entitled to reimbursement of all reasonable attorney
fees.
At the election of the holder of this Note, all payments due hereunder may
be accelerated, and this Note shall become immediately due and payable without
notice or demand, upon the occurrence of any of the following events (each an
"Event of Default"): (1) Borrower fails to pay on or before five (5) days
following the date due, any amount payable hereunder; (2) Borrower fails to
perform or observe any other term or provision of this Note within ten (10) days
after written notice from Lender; (3) there exists a default, or
misrepresentation under any of the Loan Documents (which would have a material
impact on the repayment ability of Borrower or material impairment of the
Collateral hereunder), which default is not cured within any grace period
expressly provided therefor in such document; or (4) an involuntary proceeding
shall be commenced or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of Borrower, or of a
substantial part of the property or assets of Borrower, under Title 11 of the
United States Code or any other Federal, state or foreign bankruptcy,
insolvency, receivership, liquidation or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar official of Borrower or of
a substantial part of the property or assets of Borrower or (iii) the winding up
or liquidation of Borrower. In addition to the rights and remedies provided
herein, the holder of this Note may exercise any other right or remedy in any
other document, instrument or agreement evidencing, securing or otherwise
relating to the indebtedness evidenced hereby in accordance with the terms
thereof, or under applicable law, all of which rights and remedies shall be
cumulative.
If this Note is transferred in any manner, the right, option or other
provisions herein shall apply with equal effect in favor of any subsequent
holder hereof.
Notwithstanding anything to the contrary contained herein, under no
circumstances shall the aggregate amount paid or agreed to be paid hereunder
exceed the highest lawful rate permitted under applicable usury law (the
"Maximum Rate") and the payment obligations of Borrower under this Note are
hereby limited accordingly. If under any circumstances, whether by reason of
advancement or acceleration of the maturity of the unpaid principal balance
hereof or otherwise, the aggregate amounts paid on this Note shall include
amounts which by law are deemed interest and which would exceed the Maximum
Rate, Borrower stipulates that payment and collection of such excess amounts
shall have been and will be deemed to have been the result of a mistake on the
part of both Borrower and the holder of this Note, and the party receiving such
excess payments shall promptly credit such excess (to the extent only of such
payments in excess of the Maximum Rate) against the unpaid principal balance
hereof and any portion of such excess payments not capable of being so credited
shall be refunded to Borrower.
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This Note is secured by, among other things, those certain mortgage and
security agreements (collectively, the "Mortgage"), certain assignments of
leases and rents (collectively, the "Assignment"), an assignment of licenses,
contracts, plans, specifications, surveys, drawings and reports (the "Assignment
of Licenses"), all of the foregoing being of even date herewith, a first lien on
the certain real estate collateral (the "Collateral") indentified in the
Mortgage and is entitled to the benefits and security thereof. Reference is made
to the Mortgage, Assignment and Assignment of Licenses for descriptions of the
respective limitations on, and rights and obligations of the Borrower and Lender
thereunder. Borrower hereby agrees to indemnify, defend and hold harmless Lender
from and against any and all claims, loss, cost, damage or expense (including,
without limitation, reasonable attorneys' fees) which may be incurred by Lender
in connection with or as a result of any default (following notice and the
opportunity to cure provided for in such document) by Borrower under the
Mortgage, Assignment or Assignment of Licenses, (following notice and the
opportunity to cure provided for in such document), or a default (following
notice and the opportunity to cure provided for in such document) under or
misrepresentation contained in any other agreement, document or certificate of
Borrower executed or delivered in connection with the Loan (collectively, the
"Loan Documents"). Borrower agrees that from and after the date hereof, Lender
shall have the right from time to time to, without prior notice or demand,
set-off, appropriate and apply toward the payment of any amount due hereunder in
such order of application as Lender may determine in its sole discretion, any
cash, credits, deposits, accounts, securities, and any other property of
Borrower in the possession, custody or control of Lender, including, without
limitation, any rebates, co-op, or promotional allowances.
All payments of principal and interest hereunder are payable in lawful
money of the United States of America and shall be made by wire transfer to the
account of Agent at Valley National Bank, pursuant to wiring instructions to be
provided to Borrower at Closing or to such other accounts as may be instructed
by Agent.
Borrower is hereby prohibited from exercising against Lender, any right or
remedy which it might otherwise be entitled to exercise against any one or more
(but less than all) of the parties constituting Lender, including, without
limitation, any right of setoff or any defense.
This Note shall be binding on the parties hereto and their respective
heirs, legal representatives, executors, successors and assigns.
This Note shall be construed without any regard to any presumption or rule
requiring construction against the party causing such instrument or any portion
thereof to be drafted.
This Note shall be governed by and construed in accordance with the laws
of the State of Missouri without regard to choice of law consideration except
that at all times, the provisions for the creation, perfection, priority,
enforcement and foreclosure of the liens and security interests created under
the loan documents shall be governed by and construed according to the law of
the State in which the collateral for the Loan is located, it being understood
that, to the fullest extent permitted by the law of such state, the law of the
State of Missouri shall govern the validity and enforceability of all loan
documents, and the debt or obligations arising hereunder.. Borrower hereby
irrevocably consents to the jurisdiction of the courts of the State of Missouri
and of any federal court located in such State in connection with any action or
proceeding arising out of or relating to this Note or the other Loan Documents.
10
This Note is an amendment and restatement, but not a novation or
refinancing, of the Promissory Note from Borrower to Xxxxxxx Funding, Inc. and
Anglo-American Servicing LLC, as "Co-Agents" for the lenders identified in such
promissory note, dated as of November 10, 2003, in the original principal amount
of $5,300,000.00. This Note does not evidence or effect a release or
relinquishment of the priority of the security interests in any of the
Collateral.
A determination that any portion of this Note is unenforceable or invalid
shall not affect the enforceability or validity of any other provision, and any
determination that the application of any provision of this Note to any person
or circumstance is illegal or unenforceable shall not affect the enforceability
or validity of such provision to the extent legally permissible and otherwise as
it may apply to other persons or circumstances.
JURY TRIAL WAIVER. BORROWER AGREES THAT ANY SUIT, ACTION OR PROCEEDING,
WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY BORROWER OR THE HOLDER OF THIS NOTE ON
OR WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE
PARTIES WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT
BY A JURY. BORROWER AND LENDER EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR
PROCEEDING. FURTHER, BORROWER WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER,
IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE,
CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
BORROWER ACKNOWLEDGES AND AGREES THAT THIS PARAGRAPH IS A SPECIFIC AND MATERIAL
ASPECT OF THIS NOTE AND THAT LENDER WOULD NOT EXTEND CREDIT TO BORROWER IF THE
WAIVERS SET FORTH IN THIS PARAGRAPH WERE NOT A PART OF THIS NOTE.
STATUTORY NOTICE:
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 REGARDLESS OF THE LEGAL THEORY UPON WHICH IT IS BASED, THAT
IS IN ANY WAY RELATED TO THIS NOTE OR THE INDEBTEDNESS EVIDENCED BY THIS NOTE.
TO PROTECT YOU (BORROWER) AND US (LENDER) 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.
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the undersigned has executed this Note this ___
day of October, 2004.
WITNESS XXXXXX BOATS & MOTORS, INC.
A TEXAS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ -------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary and Treasurer
WITNESS XXXXXX BOATING CENTER FLORIDA, INC.,
A TEXAS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ -------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary and Treasurer
WITNESS XXXXXX BOATS & MOTORS BATON ROUGE, INC.,
A LOUISIANA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ -------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary and Treasurer
WITNESS XXXXXX BOATING CENTER OKLAHOMA, INC.,
A TEXAS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ -------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary and Treasurer
WITNESS XXXXXX BOATING CENTER MISSISSIPPI, INC.,
A TEXAS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ -------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary and Treasurer
WITNESS XXXXXX BOATING CENTER LOUISIANA, INC.,
A LOUISIANA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ -------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary and Treasurer
WITNESS XXXXXX BOATING CENTER GEORGIA, INC.,
A TEXAS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ -------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary and Treasurer
ACKNOWLEDGEMENT
STATE OF NEW JERSEY )
)SS
COUNTY OF BERGEN )
On the ___ day of October 2004, before me personally came Xxxxxxx X.
Xxxxxxx, who being by me duly sworn, did acknowledge, depose and said that he
signed, sealed and delivered this instrument as Secretary and Treasurer of
Xxxxxx Boats & Motors, Inc. A Texas Corporation, Xxxxxx Boating Center Florida,
Inc., A Texas Corporation, Xxxxxx Boats & Motors Baton Rouge, Inc., A Louisiana
Corporation, Xxxxxx Boating Center Oklahoma, Inc., A Texas Corporation, Xxxxxx
Boating Center Mississippi, Inc., A Texas Corporation, Xxxxxx Boating Center
Louisiana, Inc., A Louisiana Corporation, And Xxxxxx Boating Center Georgia,
Inc., A Texas Corporation, on behalf of said corporations.
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Notary Public
