EXHIBIT 99(d)(7)
FIRST AMENDMENT TO FORBEARANCE AGREEMENT AND AMENDMENT TO LOAN AGREEMENTS
THIS FIRST AMENDMENT TO FORBEARANCE AGREEMENT AND AMENDMENT TO LOAN
AGREEMENTS ("Agreement") is made as of the 15th day of January, 2005, by and
among (i) Xxxxxx Boats & Motors, Inc. ("Xxxxxx") and the other Persons signatory
hereto as Borrowers under either or both Loan Agreements (as defined below)
(together with Xxxxxx, collectively, the "Borrowers"), (ii) the Persons
signatory hereto as Guarantors in connection with either or both Loan Agreements
("Guarantors" and together with the Borrowers, collectively, the "Loan
Parties"), (iii) GE Commercial Distribution Finance Corporation, as successor in
interest to Deutsche Financial Services Corporation, as lender under the GE Loan
Agreement (as defined below), and (iv) Transamerica Commercial Finance
Corporation, as lender ("TCFC") under the TCFC Loan Agreement. GE Commercial
Distribution Finance Corporation and TCFC have merged, and will hereinafter be
referred to as "GECDF" or "Lender."
RECITALS
A. Lender, Xxxxxx and the other Persons signatory thereto as Borrowers
(collectively, the "GE Borrowers") are parties to that certain Amended and
Restated Loan and Security Agreement dated as of December 10, 2001 (as the same
has been or may be further amended, restated, supplemented or otherwise modified
from time to time, the "GE Loan Agreement"), pursuant to which, among other
things, Lender has agreed, subject to the terms and conditions set forth in the
GE Loan Agreement, to make revolving loans, floorplan inventory loans and other
financial accommodations to the GE Borrowers.
B. Lender, Xxxxxx and the other Persons signatory thereto as Borrowers
(collectively, the "TCFC Borrowers") are parties to that certain Loan Agreement
dated as of January 28, 2000 (as the same has been or may be further amended,
restated, supplemented or otherwise modified from time to time, the "TCFC Loan
Agreement"), pursuant to which, among other things, Lender has agreed, subject
to the terms and conditions set forth in the TCFC Loan Agreement, to make
revolving loans and other financial accommodations to the TCFC Borrowers. The GE
Loan Agreement and the TCFC Loan Agreement shall be collectively referred to as
the "Loan Agreements," and the Loan Documents (as defined in the GE Loan
Agreement) and the Loan Documents (as defined in the TCFC Loan Agreement) shall
be collectively referred to as the "Loan Documents."
C. All of the Obligations (as defined in the GE Loan Agreement) and the
Liabilities (as defined in the TCFC Loan Agreement) are cross-collaterialized
and secured by first priority liens on all, or substantially all, of the
personal and real property of the Loan Parties (subject to specified permitted
liens as provided in the Loan Agreements) (all of the Loan Parties' respective
personal and real property securing the Obligations and Liabilities under the
Loan Agreements, collectively, the "Collateral").
X. Xxxxxx and TMRC, L.L.P. ("TMRC"), an affiliate of Tracker Marine L.L.C.
("Tracker"), have entered into a Merger Agreement (as defined in the Forbearance
Agreement), pursuant to which, and subject to the terms and conditions set forth
therein, TMRC would merge into Xxxxxx (the surviving entity in the Merger, the
"Surviving Corporation") by no later than March 4, 2005. The Surviving
Corporation would be owned and controlled directly or indirectly by Tracker.
Pursuant to the Loan Agreements, Xxxxxx cannot consummate the merger without the
prior written consent of Lender. In addition, as provided in the Merger
Agreement, the consummation of the Merger is conditioned upon Lender's agreement
to restructure its credit facilities in certain respects and to provide certain
other accommodations. Lender and Tracker have and will continue to engage in
discussions concerning the terms of a restructuring of these credit facilities
and other possible accommodations, although no agreement has been reached to
date.
E. Certain Defaults (as defined in the GE Loan Agreement) and Events of
Default (as defined in the TCFC Loan Agreement), in each case, as described in
the Exhibit A attached to the Forbearance Agreement (as defined below) (the
"Specified Defaults"), have occurred and are continuing, including, without
limitation, the Borrowers' failure to pay the Obligations and the Liabilities
under the Loan Agreements by the October 31, 2004 Termination Date under, and as
defined in, each Loan Agreement.
F. The Loan Parties and Lender are parties to that certain Forbearance
Agreement and Amendment to Loan Documents dated as of November 10, 2004
("Forbearance Agreement"), pursuant to which, among other things, the Lender
agreed to forbear from exercising certain default-related rights and remedies
against the Loan Parties and agreed to provide certain financing to the
Borrowers, in each case, for a specified time period ending no later than the
earlier of (x) the consummation of the Merger, or (y) January 15, 2005. Prior to
giving effect to this Agreement, from and after January 15, 2005 (or if earlier,
the date on which any Forbearance Default first occurred), as a result of these
ongoing Specified Defaults, the Lender has no further obligation to make any
revolving loans, inventory floorplan loans or other financial accommodations
under either Loan Agreement to any Borrower, and is entitled to exercise any and
all default-related rights and remedies under the Loan Documents and applicable
law. In addition, as a result of the occurrence of the Termination Date, all of
the Obligations and Liabilities under the Loan Agreements are due and payable.
G. The Loan Parties have advised Lender that they will be unable to meet
the original timeline for effectuating the Merger (as defined in the Forbearance
Agreement), and have requested that the Forbearance Agreement be amended in
various respects, including (i) an extension of the Outer Forbearance Date (as
defined in the Forbearance Agreement) until March 15, 2005, through which,
subject to the terms and conditions of the Forbearance Agreement, the Lender
would continue to forbear and continue to provide financing, (ii) extensions of
the timeline for effectuating the Merger, and (iii) modifications to certain
financial covenants set forth in the Forbearance Agreement.
H. The Lender has agreed to amend the Forbearance Agreement on the terms
and conditions set forth herein
NOW, THEREFORE, in consideration of the foregoing, the covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Amendments to Forbearance Agreement. Subject to the occurrence of the
Amendment Effective Date pursuant to Section 16 hereof:
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(a) The definition of "Outer Forbearance Date" set forth in Section
3(b) of the Forbearance Agreement is hereby amended to mean March 15, 2005.
(b) Clause (F) in Section 3(b) of the Forbearance Agreement is
hereby amended and restated in its entirety to read as follows:
"(F) any breach by Tracker of any of the provisions of that certain
letter agreement dated as of November 10, 2004, among Tracker,
Lender and Xxxxxx (the "Original Tracker Letter Agreement"), as
amended by that certain letter agreement dated as of January __,
2005, and as amended, supplemented or otherwise modified from time
to time with the prior written consent of Lender (the "Tracker
Letter Agreement"), including, without limitation, any failure by
Tracker to fund any working capital shortfall of Xxxxxx pursuant to
Section 7 of the Tracker Letter Agreement,"
(c) Section 6(a) of the Forbearance Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) The Borrowers and the other Loan Parties shall use their best
efforts to document, obtain all required consents and approvals, and
consummate on or before the Outer Forbearance Date, the Merger on
terms and conditions acceptable to Lender in its sole discretion.
Without limiting the foregoing, the Borrowers and the other Loan
Parties shall comply with the following covenants in connection with
their pursuit of the Merger:
(i) On or before November 22, 2004, Xxxxxx shall have filed a
Preliminary Proxy Statement (as defined in the Merger Agreement)
with the SEC and at all times shall diligently seek SEC clearance of
same and promptly prepare any amendments to the Preliminary Proxy
Statement or the Schedule 13E-3 required in response to any comments
of the SEC.
(ii) Xxxxxx shall use its best efforts at all times to obtain SEC
clearance of the Preliminary Proxy Statement and the Schedule 13E-3,
and to make any amendments or modifications thereto in order to
obtain such clearance, and Xxxxxx shall obtain SEC clearance of the
Preliminary Proxy Statement and the Schedule 13E-3, in each case as
the same may be amended, no later than February 15, 2005.
(iii) On or before the fifth Business Day after obtaining SEC
clearance, Xxxxxx shall have mailed the Proxy Statement (as defined
in the Merger Agreement) to its shareholders
(iv) Xxxxxx shall have convened the Shareholders' Meeting (as
defined in the Merger Agreement) on or before March 12, 2005, and
shall have obtained at or before such meeting all shareholder
approvals necessary to consummate the Merger.
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In addition, the Borrowers and the other Loan Parties (i) shall
comply with the provisions of the Merger Agreement and each of the
other agreements, instruments and documents entered into in
connection therewith, (ii) shall cause each condition precedent set
forth therein to be satisfied on or before the applicable deadline
set forth therein, and (iii) shall cause the Merger Agreement and
all such other agreements, instruments and documents to remain in
full force and effect at all times."
(d) Section 6(b) of the Forbearance Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) The Loan Parties shall comply with the following
financial covenants:
(i) The Loan Parties shall maintain a ratio of (x) Debt minus
Subordinated Debt to (y) Tangible Net Worth plus Subordinated Debt
(as each of the foregoing terms are defined in the GE Loan
Agreement) of not more than (A) 7.00 to 1 as of October 31, 2004,
(B) 8.60 to 1 as of November 30, 2004, (C) 11.25 to 1 as of Xxxxxxxx
00, 0000, (X) 14.00 to 1 as of January 31, 2005, and (E) 16.00 to 1
as of February 28, 2005; provided, however, that in the event
Tracker makes Tracker Loans (as defined in the Tracker Side Letter)
in November, 2004, in an aggregate principal amount in excess of
$1,000,000, then the foregoing monthly maximum leverage ratio for
November 30, 2004, shall be automatically increased to reflect the
lesser of (i) such excess amount of Tracker Loans or (ii) 250,000.
In addition, the calculation of Tangible Net Worth as of December
31, 2004, shall exclude all one-time or extraordinary charges,
adjustments or write-downs, to the extent that such charges,
adjustments or write-downs are non-cash expenditures, and have been
deducted in determining consolidated net income (or loss) for the
fiscal year ended September 30, 2004.
(ii) The Loan Parties shall maintain at all times Minimum Cash on
Hand of at least $500,000. As used herein, the term "Minimum Cash on
Hand" shall mean the aggregate amount of the Loan Parties'
unrestricted cash balances as set forth on, and calculated in
accordance with the methodology used for calculating such cash
balances in, the Loan Parties' weekly report captioned "Cash Flow
Estimates for Xxxxxx Marine" (hereinafter referred to as the "Weekly
Cash Flow Report)." For avoidance of doubt, Minimum Cash on Hand as
of the first Business Day of each week shall refer to the amount in
the actual rolling cash balance as of the end of the prior week
specified in the Weekly Cash Flow Report (provided that such
reported amount is calculated based on the same methodology
historically used by the Loan Parties in preparing that report).
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(iii) The Loan Parties shall not permit their negative consolidated
Adjusted EBITDA (as defined below) for the following months to be
greater (i.e., a higher negative amount) than the following amounts:
(I) ($1,305,000) for the month of October, 2004, (II) ($1,009,000)
for the month of November, 2005, (III) ($1,013,000) for the month of
December, 2004, (IV) ($380,000) for the month of January, 2005, and
(V) $0 for the month of February, 2005. As used herein, the term
"Adjusted EBITDA" shall mean for any period, (a) the Loan Parties'
consolidated net income for such period as determined in accordance
with GAAP, plus (b) the sum of the amount of interest, taxes and
depreciation and amortization charges deducted in determining
consolidated net income (or loss) for such period, minus (c) the sum
of all one-time or extraordinary charges, adjustments or
write-downs, to the extent that such charges, adjustments or
write-downs are non-cash expenditures, and have been deducted in
determining consolidated net income (or loss) for such period."
(e) Section 3(c) of the Forbearance Agreement is hereby amended and
restated in its entirety as follows:
"(c) Subject to the occurrence of the Effective Date pursuant to
Section 19 hereof and subject to Lender's rights under this Section
3(c), and without limiting the generality of Section 3(b) hereof,
notwithstanding the pendency of any Specified Default but subject to
the terms and conditions of the Loan Documents (after giving effect
to the provisions of this Agreement), during the period from and
including the date hereof until the occurrence of a Termination
Event, Lender agrees to make Revolving Credit Loans and Floorplan
Inventory Loans under the GE Loan Agreement, and Revolving Loans
under the TCFC Loan Agreement in accordance with the provisions of
the applicable Loan Documents (after giving effect to the provisions
of this Agreement), and the following additional terms and
conditions:
(i) The aggregate outstanding amount of Obligations and Liabilities
at any time shall not exceed $33,000,000.
(ii) During the Forbearance Period, the "Borrowing Base" under the
TCFC Loan Agreement shall mean the sum of the following from time to
time, less any reserves as Lender in its sole discretion elects: (i)
100% of Borrowers' then existing Eligible Inventory A2; plus (ii)
92% of Borrowers' then existing Eligible Inventory B1; plus (iii)
92% of Borrowers' then existing Eligible Inventory B2; plus (iv) the
lesser of (A) $250,000 or (B) 75% of Borrowers' then existing
Eligible Inventory C1; plus (v) 75% of Borrowers' then existing
Eligible Inventory C2; plus (vi) 95% of Borrowers' then existing
Eligible Inventory D; plus (vii) 90% of Borrowers' then existing
Eligible Inventory E; plus (viii) 75% of the NADA "low wholesale"
value of Borrowers' then existing Eligible Inventory F; plus (ix)
the lesser of (A) 50% of the Borrowers' then existing Eligible
Inventory G or (B) $612,000; plus (x) 80% of Borrowers' then
existing Eligible Accounts Receivable (all of the foregoing
capitalized terms used in this clause (ii) having the meanings given
such terms in the TCFC Loan Agreement).
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(iii) During the Forbearance Period, the advance rates referenced in
the definitions of Eligible Used Inventory and Eligible Parts in the
GE Loan Agreement shall be as follows:
(A) Eligible Used Inventory-(1) 70 % for such Eligible
Used Inventory which is less than 365 days old, limited to a
maximum of $923,000 of availability from this class of
Inventory, and (2) 30% for such Eligible Used Inventory which
is more than 365 days old but less than 540 days old; and
(B) Eligible Parts-the lesser of $1,077,000 of
availability from this class of Inventory or 29% of such
Eligible Parts.
(iv) In addition to, and without limiting, any other restrictions on
the issuance of new open approvals, Lender will not issue during the
Forbearance Period any new open approvals under either Loan
Agreement unless (i) there is borrowing availability under either
Loan Agreement in an aggregate amount at least equal to the amount
of such new open approvals, (ii) the resulting aggregate amount of
all outstanding new open approvals under both Loan Agreements does
not exceed the aggregate amount of proceeds remitted to Lender
during the Forbearance Period for application to the Floorplan
Inventory Loans under the GE Loan Agreement or Inventory Loans under
the TCFC Loan Agreement and not reborrowed, and (iii) the aggregate
outstanding amount of Obligations and Liabilities at no time exceeds
$33 million.
(v) Lender's foregoing agreement to provide additional extensions of
credit does not constitute an amendment of the "Termination Date"
under either Loan Agreement."
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(f) The Loan Documents are hereby further amended to prohibit any
Borrower from (i) consigning any Inventory, or permitting any Inventory to
continue to be consigned, to any other Person (other than another Borrower that
is a borrower under the same Loan Agreement) or (ii) transferring any Inventory
to any location or facility owned by any Person (other than another Borrower
that is a borrower under the same Loan Agreement) or otherwise transferring
possession or control of any Inventory to any Person (other than another
Borrower that is a borrower under the same Loan Agreement) or permitting any
Inventory to remain at any such location or to remain in the possession or
control of any Person (other than another Borrower that is a borrower under the
same Loan Agreement), unless, in each case, (y) the applicable Borrower shall
have delivered written notice to Lender on or before the tenth Business Day
prior to the proposed date of such consignment or transfer, and (y) the Borrower
shall have delivered to Lender documentation, in form and substance satisfactory
to Lender in its sole discretion, duly executed and delivered by the consignee
and/or all other applicable Persons, ensuring or otherwise effectuating Lender's
first priority lien on such Inventory, providing Lender with access to such
Inventory, and containing such other terms and conditions as Lender may request.
Without limiting the foregoing, with respect to any Inventory as to which any
Borrower is proposing, as of the Amendment Effective Date, to consign to any
Person, Borrower shall deliver to Lender on or before January 31, 2005, the
documentation referenced in clause (y) of the immediately preceding sentence.
(g) Section 6(c)(ii) of the Forbearance Agreement is hereby amended
and restated in its entirety to read as follows:
"(ii) On or before December 10, 2004, and the twentieth calendar day
of each subsequent month, the Loan Parties shall provide to Lender a
report, in form and substance satisfactory to Lender, setting forth
in reasonable detail, the calculation of the Loan Parties'
consolidated Adjusted EBITDA and consolidated ratio of Debt minus
Subordinated Debt to Tangible Net Worth plus Subordinated Debt for
the immediately preceding calendar month."
SECTION 2. Confirmation by Borrowers and other Loan Parties of Obligations and
Liabilities.
(a) The Borrowers and the other Loan Parties hereby acknowledge and
agree that as of close of business on January 31, 2005, the aggregate amount of
the principal balance of the outstanding Obligations under the GE Loan Agreement
and the Liabilities under the TCFC Loan Agreement included at least the
following amounts:
GE Loan Agreement:
Revolving Credit Loans $ 1,789,081.51
Floorplan Inventory Loans
(including Open Approvals) $21,791,334.50
Total Principal Amount of
Obligations under GE Loan
Agreement $23,580,416.01
TCFC Loan Agreement:
Revolving Loans $ 9,152,353.50
Open Approvals $175,792.00
Total Principal Amount
of Liabilities under TCFC Loan
Agreement $9,328,145.50
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The foregoing amounts do not include all of the interest, fees, expenses, and
other amounts which are chargeable or otherwise reimbursable under any or all of
the Loan Agreements and the other Loan Documents. All of the Obligations and
Liabilities are currently due and payable, and none of the Borrowers and the
other Loan Parties has any rights of offset, defenses, claims or counterclaims
with respect to (i) any of the Obligations and Liabilities or their guaranty
obligations with respect thereto, (ii) any of the Loan Documents, or (iii) or
any of the rights, powers, privileges, remedies, benefits and protections
provided to the Lender under any or all of the Loan Documents and/or applicable
law.
SECTION 3. General Release, Covenant Not to Xxx; Indemnity.
(a) In consideration of, among other things, Lender's execution and
delivery of this Agreement, and the other agreements of Lender contained herein
and for other good and valuable consideration, each of the Borrowers and the
other Loan Parties, on behalf of itself and its successors and assigns and other
legal representatives (collectively, "Releasors"), hereby forever agrees and
covenants not to xxx or prosecute against any Releasee (as defined below) and
hereby forever waives, releases and discharges to the fullest extent permitted
by law, each Releasee (as defined below) from, any and all claims (including,
without limitation, crossclaims, counterclaims, rights of set-off and
recoupment), causes of action, demands, suits, costs, expenses and damages
(collectively, the "Claims"), that such Releasor now has or hereafter may have,
of whatsoever nature and kind, whether known or unknown, whether now existing or
hereafter arising, whether arising at law or in equity, against any or all of
Lender in any capacity and its Affiliates, shareholders and "controlling
persons" (within the meaning of the federal securities laws), and their
respective predecessors, successors and assigns and each and all of the
officers, directors, employees, agents, attorneys and other representatives of
each of the foregoing (collectively, the "Releasees"), based in whole or in part
on facts, whether or not now known, existing on or before the execution of this
Agreement, that relate to, arise out of or otherwise are in connection with (i)
any aspect of the business, operations, assets, properties, affairs or any other
aspect of any Borrower or any other Loan Party, (ii) any aspect of the dealings
or relationships between or among any or all of the Borrowers and the other Loan
Parties and their Affiliates, on the one hand, and any or all of the Releasees,
on the other hand, (iii) any aspect of the dealings or relationships between or
among any or all of Tracker and its Affiliates, on the one hand, and any or all
of the Releasees, on the other hand, but only to the extent such dealings or
relationships relate to any aspect of any Borrower or any other Loan Party, or
(iv) any or all of the Loan Documents or any transactions contemplated thereby
or any acts or omissions in connection therewith. The receipt by any Borrower or
any other Loan Party of any revolving loans, floorplan inventory loans or other
financial accommodations made by Lender after the date hereof shall constitute a
ratification, adoption, and confirmation by each of the Borrowers and the other
Loan Parties of the foregoing general release of, and covenant not to xxx in
respect of, all Claims against any Releasee which are based in whole or in part
on facts, whether or not now known or unknown, existing on or prior to the date
of receipt of any such revolving loans, floorplan inventory loans or other
financial accommodations. In entering into this Agreement, the Borrowers and the
other Loan Parties have consulted with, and been represented by, legal counsel
and expressly disclaim any reliance on any representations, acts or omissions by
any of the Releasees and hereby agree and acknowledge that the validity and
effectiveness of the release set forth above does not depend in any way on any
such representations, acts and/or omissions or the accuracy, completeness or
validity hereof. The provisions of this Section 3 shall survive the termination
of the Loan Agreements and the other Loan Documents and payment in full of the
Obligations and Liabilities.
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(b) Each of Borrowers and the other Loan Parties hereby agrees that
it shall be jointly and severally obligated to indemnify and hold the Releasees
harmless with respect to any and all liabilities, obligations, losses,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever incurred by the Releasees, or any of them, whether
direct, indirect or consequential, as a result of or arising from or relating to
any proceeding by, or on behalf of any Person, including, without limitation,
the respective officers, directors, agents, trustees, creditors, partners or
shareholders of Borrowers and the other Loan Parties, whether threatened or
initiated, in respect of any claim for legal or equitable remedy under any
statue, regulation or common law principle arising from or in connection with
the negotiation, preparation, execution, delivery, performance, administration
and enforcement of this Agreement or any other document executed in connection
herewith. Without limiting the foregoing, each of the Borrowers and the other
Loan Parties acknowledges and agrees that in the event any Borrower, any other
Loan Party or any other Releasor asserts any Claim against any Releasee that is
released hereby or is the subject of the foregoing covenant not to xxx, the
Borrowers and other Loan Parties are jointly and severally liable to pay to such
Releasee, in addition to such other damages as such Releasee may sustain
thereby, all attorneys' fees and costs incurred by such Releasee in connection
with the assertion of such Claim. The foregoing indemnity shall survive the
termination of the Loan Agreements and the other Loan Documents and the payment
in full of the Obligations and Liabilities.
(c) To the extent that, notwithstanding the choice of law provisions
in this Agreement and the other Loan Documents, California law is deemed to
apply to the release, covenant not to xxx and indemnification provisions herein,
the Borrowers and the other Loan Parties warrant, represent and agree that they
are fully aware of California Civil Code Section 1542, which provides as
follows:
SEC. 1542. GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The Borrowers and the other Loan Parties hereby expressly waive the provisions
of California Civil Code Section 1542, and any rights they may have to invoke
the provisions of that statute now or in the future with respect to the Claims
being released pursuant to Section 3(a) hereof. In connection with the foregoing
waiver and relinquishment, the Borrowers and the other Loan Parties acknowledge
that they are aware that they or their attorneys or others may hereafter
discover claims or facts in addition to or different from those which the
parties now know or believe to exist with respect to the subject matter of the
Claims being released hereunder, but that it is nevertheless the intention of
the Borrowers and the other Loan Parties to fully, finally and forever settle,
release, waive and discharge all of the Claims which are being released pursuant
to Section 3(a) hereof. The release given herein shall remain in effect as a
full and complete general release, notwithstanding the discovery or existence of
any such additional or different claims or facts.
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(d) Each of the Borrowers and other Loan Parties understands,
acknowledges and agrees that the releases and covenants not to xxx set forth
above may be pleaded as a full and complete defense and may be used as a basis
for an injunction against any action, suit or other proceeding which may be
instituted, prosecuted or attempted in breach of the provisions of such release
or covenant not to xxx.
(e) Each of the Borrowers and other Loan Parties jointly and
severally represent, warrant and agree that the Releasors have not previously
assigned, transferred, hypothecated, or purported to assign, transfer or
hypothecate, any Claim or portion thereof which is released or is the subject to
a covenant not to xxx pursuant to this Section 3 hereof to another Person that
is not a signatory of this Agreement.
SECTION 4. Representations, Warranties And Covenants Of Borrowers and the other
Loan Parties.
To induce Lender to execute and deliver this Agreement, each of the
Borrowers and the other Loan Parties jointly and severally represents, warrants
and covenants that:
(a) (i) The execution, delivery and performance by each of the
Borrowers and the other Loan Parties of this Agreement, the Forbearance
Agreement (as amended by this Agreement), and all documents and instruments
delivered in connection herewith and/or the Loan Agreements and all other Loan
Documents have been duly authorized, and (ii) this Agreement, the Forbearance
Agreement (as amended by this Agreement), and all documents and instruments
delivered in connection herewith and/or the Loan Agreements and all other Loan
Documents are legal, valid and binding obligations of each of the Borrowers and
the other Loan Parties enforceable against each of the Borrowers and the other
Loan Parties in accordance with their respective terms, except as the
enforcement thereof may be subject to (x) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and (y) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law);
(b) After taking into account the Specified Defaults, each of the
representations and warranties contained in the Loan Agreements and the other
Loan Documents is true and correct on and as of the date hereof as if made on
the date hereof, except to the extent that such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date, and each of the
agreements and covenants in the Loan Agreements and the other Loan Documents is
hereby reaffirmed with the same force and effect as if each were separately
stated herein and made as of the date hereof;
(c) Neither the execution, delivery and performance of this
Agreement and all documents and instruments delivered in connection herewith nor
the consummation of the transactions contemplated hereby or thereby does or
shall contravene, result in a breach of, or violate (i) any provision of any
Borrower's or other Loan Party's corporate charter, bylaws, operating agreement,
partnership agreement or other governing documents, (ii) any law or regulation,
or any order or decree of any court or government instrumentality, or (iii) any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which any Borrower or any other Loan Party is a party or by which any Borrower
or any other Loan Party or any of its property is bound;
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(d) Lender's liens and security interests in the Collateral and the
Other Collateral continue to be valid, binding, enforceable and perfected
first-priority liens and security interests which secure the Obligations and
Liabilities (subject only to any liens or security interests expressly permitted
under the Loan Documents), and no tax or judgment liens are currently of record
against any Borrower or any other Loan Party; and
(e) The recitals to this Agreement are true and correct.
SECTION 5. Ratification of Liability. Each of the Loan Parties as debtors,
grantors, pledgors, guarantors, assignors, or in other similar capacities in
which such Loan Parties grant liens or security interests in their properties or
otherwise act as accommodation parties or guarantors, as the case may be, under
the Loan Documents, hereby ratifies and reaffirms all of its payment and
performance obligations and obligations to indemnify, contingent or otherwise,
under each of such Loan Documents to which such Loan Party is a party, and each
Loan Party hereby ratifies and reaffirms such Loan Party's grant of liens on or
security interest in its properties pursuant to such Loan Documents to which it
is a party as security for the Obligations under the GE Loan Agreement or the
Liabilities under the TCFC Loan Agreement, and confirms and agrees that such
liens and security interests hereafter secure all of the Obligations and
Liabilities, including, without limitation, all additional Obligations and
Liabilities hereafter arising or incurred pursuant to or in connection with
either Loan Agreement or any other Loan Document. Each of the Loan Parties
hereby agrees and reaffirms that the Loan Documents to which it is a party now
applies to all Obligations and Liabilities as defined in the applicable Loan
Agreement, as modified hereby (including, without limitation, all additional
Obligations and Liabilities hereafter arising or incurred pursuant to or in
connection with either Loan Agreement or any other Loan Document). Each of the
Loan Parties (i) acknowledges receipt of a copy of this Agreement and all other
agreements, documents, and instruments executed in connection herewith, (ii)
consents to the terms and conditions of same, and (iii) agrees and acknowledges
that each of the Loan Documents, as modified hereby, remains in full force and
effect and is hereby ratified and confirmed. The execution of this Agreement
shall not operate as a waiver or any right, power or remedy of Lender, nor
constitute a waiver or any provision of any of the Loan Documents nor constitute
a novation of any of the Obligations and Liabilities under the Loan Agreements
or other Loan Documents.
SECTION 6. Reference To And Effect Upon The Loan Agreements.
(a) Except as specifically amended hereby, all terms, conditions,
covenants, representations and warranties contained in the Loan Agreements, the
Forbearance Agreement (as amended by this Agreement), or any other Loan
Documents, and all rights of Lender and all of the Obligations and Liabilities,
shall remain in full force and effect. Each of the Borrowers and the other Loan
Parties hereby confirms that the Loan Agreements, the Forbearance Agreement (as
amended by this Agreement), and the other Loan Documents are in full force and
effect and that none of the Borrowers and the other Loan Parties has any
defenses, setoffs, claims or counterclaims to the Obligations and Liabilities
under the Loan Agreements or any other Loan Documents.
11
(b) Except as expressly set forth herein, the execution, delivery
and effectiveness of this Agreement and any consents and waivers set forth
herein shall not directly or indirectly (i) create any obligation to make any
further revolving loans, floorplan inventory loans or other extensions of credit
or to continue to defer the exercise of any default-related right or remedy or
any other enforcement action after a Termination Event, (ii) constitute a
consent or waiver of any past, present or future violations of any provisions of
either Loan Agreement or any other Loan Documents, (iii) amend, modify or
operate as a waiver of any provision of either Loan Agreement, the Forbearance
Agreement (as amended by this Agreement), or any other Loan Documents or any
right, power or remedy of Lender, (iv) constitute a consent to the Merger, or
any other transaction or restructuring involving any or all of the Borrowers and
the other Loan Parties, (v) constitute a course of dealing or other basis for
altering any Obligations or Liabilities or any other contract or instrument.
Except as expressly set forth herein, Lender reserves all of its rights, powers,
and remedies under the Loan Agreements, the Forbearance Agreement (as amended by
this Agreement), and the other Loan Documents, and/or applicable law. All of the
provisions of the Loan Agreements and the other Loan Documents, including,
without limitation, the time of the essence provisions, are hereby reiterated,
and if ever waived, reinstated.
(c) Upon the effectiveness of this Agreement, (i) the term "Loan
Documents" as used in any of the Loan Documents (as defined in the GE Loan
Agreement) or in any of the Loan Documents (as defined in the TCFC Loan
Agreement) shall include, without limitation, this Agreement and the Forbearance
Agreement (as amended by this Agreement), and (ii) all references to the
Forbearance Agreement in any Loan Document shall mean and be a reference to the
Forbearance Agreement (as amended by this Agreement, and as amended,
supplemented or otherwise modified from to time by an written instrument duly
executed and delivered by the Loan Parties and Lender).
SECTION 7. Attorneys' Fee And Expenses. Each of the parties shall bear its own
attorneys' fees and expenses in connection with the negotiation, preparation and
consummation of this Agreement and the other agreements and documents executed
in connection herewith, and the Loan Parties shall not be obligated to reimburse
Lender for any such attorneys' fees and expenses.
SECTION 8. Governing Law. THIS AGREEMENT (AND THE FORBEARANCE AGREEMENT, AS
AMENDED BY THIS AGREEMENT) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF
ILLINOIS.
SECTION 9. Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
(or the Forbearance Agreement as amended by this Agreement) for any other
purposes, and shall in no way define, limit or extend the scope or intent of
this Agreement (or the Forbearance Agreement as amended by this Agreement) or
any provision of this Agreement (or the Forbearance Agreement as amended by this
Agreement) and shall not affect the construction of this Agreement (or the
Forbearance Agreement as amended by this Agreement).
12
SECTION 10. Construction This Agreement, the Forbearance Agreement (as amended
by this Agreement), and all other agreements and documents executed in
connection herewith have been prepared through the joint efforts of all of the
parties. Neither the provisions of this Agreement, the Forbearance Agreement (as
amended by this Agreement), or any such other agreements, instruments and
documents nor any alleged ambiguity shall be interpreted or resolved against any
party on the ground that such party's counsel drafted this Agreement, the
Forbearance Agreement (as amended by this Agreement), or such other agreements,
instruments and documents, or based on any other rule of strict construction.
Each of the parties hereto represents and declares that such party has carefully
read this Agreement, the Forbearance Agreement (as amended by this Agreement),
and all other agreements, instruments and documents executed in connection
therewith, and that such party knows the contents thereof and signs the same
freely and voluntarily. The parties hereby acknowledge that they have been
represented by legal counsel of their own choosing in negotiations for and
preparation of this Agreement, the Forbearance Agreement (as amended by this
Agreement), and all other agreements, instruments and documents executed in
connection therewith and that each of them has read the same and had their
contents fully explained by such counsel and is fully aware of their contents
and legal effect. In addition, in this Agreement, (i) words "hereof," "herein,"
hereto," "hereunder" and words of similar import shall mean and refer to this
Agreement as a whole and not merely to the specific section or clause in which
the respective word appears, (ii) words importing gender shall include the other
genders as appropriate, (iii) any terms defined in this Agreement shall, unless
the context otherwise requires, be used in the singular or the plural depending
on the reference, and (iv) the words "include" and "including," and variations
thereof, shall not be deemed to be terms of limitation, but rather shall be
deemed to be followed by the words "without limitation." If any matter is left
to the decision, right, requirement, request, determination, judgment, opinion,
approval, consent, waiver, satisfaction, acceptance, agreement, option or
discretion of Lender or any of its Representatives in either Loan Agreement or
any other Loan Documents, such action shall be deemed to be exercisable by
Lender or such Representative in its sole and absolute discretion and according
to standards established in its sole and absolute discretion. Without limiting
the generality of the foregoing, "option" and "discretion" shall be implied by
the use of the words "if" and "may."
SECTION 11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, but
all such counterparts shall constitute one and the same instrument, and all
signatures need not appear on any one counterpart. Any party hereto may execute
and deliver a counterpart of this Agreement by delivering by facsimile
transmission a signature page of this Agreement signed by such party, and any
such facsimile signature shall be treated in all respects as having the same
effect as an original signature. Any party delivering by facsimile transmission
a counterpart executed by it shall promptly thereafter also deliver a manually
signed counterpart of this Agreement.
SECTION 12. Severability. The invalidity, illegality, or unenforceability of any
provision in or obligation under this Agreement (or the Forbearance Agreement as
amended by this Agreement) in any jurisdiction shall not affect or impair the
validity, legality, or enforceability of the remaining provisions or obligations
under this Agreement (or the Forbearance Agreement as amended by this Agreement)
or of such provision or obligation in any other jurisdiction.
13
SECTION 13. Time of Essence. Time is of the essence in the payment and
performance of each of the obligations of each of the Borrowers and the other
Loan Parties hereunder and under the Forbearance Agreement (as amended by this
Agreement) and with respect to all conditions to be satisfied by the Borrowers
and the other Loan Parties.
SECTION 14. Further Assurances. Each of the Borrowers and the other Loan Parties
agrees to take all further actions and execute all further agreements,
instruments and documents as Lender may from time to time reasonably request to
carry out the transactions contemplated by this Agreement and the Forbearance
Agreement (as amended by this Agreement).
SECTION 15. Notices. All notices, requests, and demands to or upon the
respective parties hereto shall be given in accordance with the Loan Agreements.
SECTION 16. Effectiveness. The provisions of Section 1 of this Agreement shall
become effective at the time (the "Amendment Effective Date") that all of the
following conditions precedent have been met (or waived) as determined by Lender
in its sole discretion:
(a) Agreement. Lender shall have received signed counterparts to
this Agreement duly executed and delivered by each of the Lender, Borrowers and
the other Loan Parties.
(b) Other Documents. Lender shall have received signed counterparts
to the amendment of the Original Tracker Letter Agreement in form and substance
satisfactory to Lender, duly executed and delivered by all of the parties
thereto.
(c) Due Authorization. Each of Borrowers and the other Loan Parties
shall have delivered to Lender (i) evidence of the corporate, limited liability
or partnership authority of Borrower or such Loan Party to execute, deliver and
perform this Agreement and, as applicable, all other agreements and documents
executed in connection therewith, and (ii) such other documents and instruments
as Lender may require, all of the foregoing of which shall be in form and
substance satisfactory to Lender. Without limiting the foregoing, Lender shall
have received from each Loan Party, all in form and substance satisfactory to
Lender, (i) a copy of resolutions duly adopted by the board of directors of each
Loan Party (or of such Loan Party's general partner or managing member, as the
case may be), authorizing and ratifying the execution and delivery by each such
Loan Party of this Agreement and all other agreements, instruments and documents
executed in connection therewith and the consummation of all transactions
contemplated therein, which resolutions shall be certified as true, complete and
correct by the corporate secretary of each Loan Party (or such Loan Party's
general partner or managing member, as the case may be), (ii) copies of each
Loan Party's articles of incorporation, bylaws, certificate of limited
partnership, agreement of limited partnership, articles of organization, or
operating agreement, as the case may be, and all other organizational or
formation documents of each Loan Party, together with all amendments,
supplements and other modifications thereto through the date hereof, certified
as true, complete and correct by the corporate secretary of each Loan Party (or
such Loan Party's general partner or managing member, as the case may be), (iii)
a certificate of the secretary of each Loan Party (or such Loan Party's general
partner or managing member, as the case may be) to the effect that none of such
Loan Party's articles of incorporation, bylaws, certificate of limited
partnership, agreement of limited partnership, articles of organization, or
operating agreement, as the case may be, and other organizational or formation
documents of such Loan Party has been amended, supplemented or otherwise
modified since January 28, 2000, and (iv) a certificate of the secretary of each
Loan Party (or such Loan Party's general partner or managing member, as the case
may be), certifying the names of such Loan Party's officers authorized to sign
this Agreement and all other agreements, instruments and documents to be
delivered hereunder, together with the true signatures of such officers.
14
(d) Representations and Warranties. The representations and
warranties contained herein shall be true and correct in all respects, and no
Default or Event of Default or event which with notice, the passage of time or
both would constitute a Default or Event of Default under the applicable Loan
Agreement, other than the Specified Defaults, shall exist on the date hereof.
(e) No Material Adverse Change. There shall have occurred no
material adverse change in the business, operations, financial conditions,
profits or prospects of any Borrower or other Loan Party, or in the Collateral.
(f) Approvals. The approval and/or consent shall have been obtained
from each Person whose approval or consent is necessary or required to enable
any or all of the Loan Parties to enter into this Agreement or any other
agreement, instrument or document to be executed in connection herewith, and to
perform their respective obligations hereunder and thereunder.
(g) Other Agreements, Instruments and Documents. The Lender shall
have received, in form and substance satisfactory to Lender, all such other
agreements, instruments and documents, certificates, consents, approvals,
waivers, financing statements or amendments and opinions (including, without
limitation, opinions of counsel to the Borrowers and the other Loan Parties) as
Lender may request.
(h) Other Proceedings. All corporate and other proceedings in
connection with the execution and delivery by each of the parties hereto or
thereto of this Agreement and the other agreements, instruments and documents to
be executed in connection herewith or in connection with the transactions
contemplated hereby or thereby shall be satisfactory to Lender and its legal
counsel, and the Lender shall have received all such counterpart originals or
certified or other copies of the agreements, instruments or documents evidencing
such proceedings as the Lender may request.
(i) Satisfaction of Lender's Counsel. All legal matters incident to
this Agreement and all other agreements, instruments and documents to be
executed in connection herewith, and all transactions contemplated hereby and
thereby, shall be satisfactory to counsel for the Lender.
By executing and delivering this Agreement, each Loan Party is representing and
warranting as to the satisfaction of the conditions set forth in Sections 16(e),
(f) and (g).
15
SECTION 17. Waivers by Borrowers and other Loan Parties. BORROWERS AND THE OTHER
LOAN PARTIES WAIVE (i) THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT,
PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE FORBEARANCE AGREEMENT (AS AMENDED BY THIS AGREEMENT), EITHER LOAN
AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS, THE LIABILITIES OR
THE COLLATERAL; (ii) PRESENTMENT, DEMAND AND PROTEST, AND NOTICE OF PRESENTMENT,
PROTEST, DEFAULT, NONPAYMENT, MATURITY, OR RELEASE WITH RESPECT TO ALL OR ANY
PART OF THE OBLIGATIONS OR LIABILITIES OR ANY GUARANTY THEREOF OR ANY
COLLATERAL; (iii) NOTICE PRIOR TO TAKING POSSESSION OR CONTROL OF ANY COLLATERAL
OR ANY BOND OR SECURITY WHICH MIGHT BE REQUIRED BY ANY COURT PRIOR TO ALLOWING
LENDER TO EXERCISE ANY OF LENDER'S REMEDIES; (iv) THE BENEFIT OF ALL VALUATION,
APPRAISEMENT AND EXEMPTION LAWS AND ALL RIGHTS WAIVABLE UNDER ARTICLE 9 OF THE
UNIFORM COMMERCIAL CODE; (v) ANY RIGHT ANY BORROWER OR ANY OTHER LOAN PARTY MAY
HAVE UPON PAYMENT IN FULL OF THE OBLIGATIONS AND LIABILITIES TO REQUIRE LENDER
TO TERMINATE ITS SECURITY INTEREST IN ANY COLLATERAL OR IN ANY OTHER PROPERTY OF
ANY BORROWER OR ANY OTHER LOAN PARTY UNTIL TERMINATION OF THE LOAN AGREEMENTS IN
ACCORDANCE WITH THEIR RESPECTIVE TERMS AND THE EXECUTION BY EACH OF THE
BORROWERS AND THE OTHER LOAN PARTIES AND BY EACH PERSON WHO PROVIDES FUNDS TO
ANY BORROWER OR OTHER LOAN PARTY WHICH ARE USED IN WHOLE OR IN PART TO SATISFY
THE OBLIGATIONS AND THE LIABILITIES, OF AN AGREEMENT INDEMNIFYING LENDER FROM
ANY LOSS OR DAMAGE THAT LENDER MAY INCUR AS THE RESULT OF DISHONORED CHECKS OR
OTHER ITEMS OF PAYMENT RECEIVED BY LENDER FROM ANY BORROWER, ANY OTHER LOAN
PARTY OR ANY ACCOUNT DEBTOR AND APPLIED TO ANY OF THE OBLIGATIONS AND
LIABILITIES AND RELEASING AND INDEMNIFYING, IN THE SAME MANNER AS DESCRIBED IN
SECTION 3 OF THIS AGREEMENT, THE RELEASEES FROM ALL CLAIMS ARISING ON OR BEFORE
THE DATE OF SUCH TERMINATION STATEMENT; AND (vi) NOTICE OF ACCEPTANCE HEREOF,
AND BORROWERS AND THE OTHER LOAN PARTIES ACKNOWLEDGE THAT THE FOREGOING WAIVERS
ARE A MATERIAL INDUCEMENT TO LENDER'S ENTERING INTO THIS AGREEMENT AND THAT
LENDER IS RELYING UPON THE FOREGOING WAIVERS IN ITS FUTURE DEALINGS WITH ANY OR
ALL OF THE BORROWERS AND THE OTHER LOAN PARTIES. BORROWERS AND THE OTHER LOAN
PARTIES WARRANT AND REPRESENT THAT THEY HAVE REVIEWED THE FOREGOING WAIVERS WITH
THEIR LEGAL COUNSEL AND HAVE KNOWINGLY AND VOLUNTARILY WAIVED THEIR JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
16
SECTION 18. Assignments; No Third Party Beneficiaries. This Agreement and the
Forbearance Agreement (as amended by this Agreement) shall be binding upon and
inure to the benefit of Borrowers, the other Loan Parties, and Lender and their
respective successors and assigns; provided, that none of Borrowers and the
other Loan Parties may delegate any of its duties hereunder and may not assign
any of its rights or remedies set forth in this Agreement or the Forbearance
Agreement (as amended by this Agreement) without the prior written consent of
Lender. No Person other than the parties hereto, and in the case of Section 3
hereof, the Releasees, shall have any rights hereunder or be entitled to rely on
this Agreement and all third-party beneficiary rights (other than the rights of
the Releasees under Section 3 hereof) are hereby expressly disclaimed.
SECTION 19. Final Agreement. This Agreement (including the exhibits and
schedules attached hereto), the Forbearance Agreement (as amended by this
Agreement, and including the exhibits and schedules attached hereto and
thereto), the Loan Agreements, the other Loan Documents, and the other written
agreements, instruments, and documents entered into in connection therewith
(collectively, the "Borrower/Lender Documents") set forth in full the terms of
agreement between the parties and are intended as the full, complete, and
exclusive contract governing the relationship between or among the parties,
superseding all other discussions, promises, representations, warranties,
agreements, and understandings between the parties with respect thereto. No term
of the Borrower/Lender Documents may be modified or amended, nor may any rights
thereunder be waived, except in a writing signed by the party against whom
enforcement of the modification, amendment, or waiver is sought. Any waiver of
any condition in, or breach of, any of the foregoing in a particular instance
shall not operate as a waiver of other or subsequent conditions or breaches of
the same or a different kind. Lender's exercise or failure to exercise any
rights or remedies under any of the foregoing in a particular instance shall not
operate as a waiver of its right to exercise the same or different rights and
remedies in any other instances. There are no oral agreements among the parties
hereto.
[Signature page to follow]
17
IN WITNESS WHEREOF, this First Amendment to Forbearance Agreement and
Amendment to Loan Documents has been executed by the parties hereto as of the
date first written above.
TCFC BORROWERS:
XXXXXX BOATS & MOTORS, INC.
TBC MANAGEMENT, INC.
TBC MANAGEMENT, LTD.
XXXXXX BOATING CENTER FLORIDA, INC.
XXXXXX BOATING CENTER GEORGIA, INC.
ADVENTURE MARINE SOUTH, INC.
ADVENTURE BOAT BROKERAGE, INC.
By:
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Title:
-----------------------------------------
GUARANTORS UNDER TCFC LOAN AGREEMENT:
XXXXXX XXXXXXX MARINE, INC.
FALCON MARINE, INC.
FALCON MARINE ABILENE, INC.
TBC ARKANSAS, INC.
XXXXXX BOATING CENTER TENNESSEE, INC.
XXXXXX BOATING CENTER LITTLE ROCK, INC.
XXXXXX BOATING CENTER OKLAHOMA, INC.
XXXXXX BOATING CENTER ARLINGTON, INC.
XXXXXX BOATING CENTER BEAUMONT, INC.
XXXXXX BOATING CENTER BATON ROUGE, INC.
XXXXXX BOATING CENTER LOUISIANA, INC.
XXXXXX BOATING CENTER ALABAMA, INC.
XXXXXX BOATING CENTER MISSISSIPPI, INC.
By:
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Title:
-----------------------------------------
GE BORROWERS:
XXXXXX BOATS & MOTORS, INC.
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 BOATING CENTER BATON ROUGE, INC.
XXXXXX BOATING CENTER MISSISSIPPI, INC.
XXXXXX BOATING CENTER LITTLE ROCK, INC.
RED RIVER MARINE ARKANSAS, INC.
SHELBY MARINE CENTER, INC.
SHELBY MARINE PICKWICK, LLC
By:
--------------------------------------------
Title:
-----------------------------------------
GUARANTORS UNDER GE LOAN AGREEMENT:
XXXXXX BOATING CENTER FLORIDA, INC.
XXXXXX BOATING CENTER GEORGIA, INC.
ADVENTURE MARINE & OUTDOORS, INC.
ADVENTURE MARINE SOUTH, INC.
ADVENTURE BOAT BROKERAGE, INC.
By:
--------------------------------------------
Title:
-----------------------------------------
LENDER:
GE COMMERCIAL DISTRIBUTION
FINANCE CORPORATION, as
successor-in-interest to
Deutsche Financial Services
Corporation and f/k/a
Transamerica Commercial
Finance Corporation
By:
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Title:
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